EXHIBIT 10.13
Revolving Line of Credit Agreement with
CNL Health Care Properties, Inc.,
CNL Health Care Partners, LP and Colonial Bank
MASTER REVOLVING
LINE OF CREDIT
LOAN AGREEMENT
THIS MASTER REVOLVING LINE OF CREDIT LOAN AGREEMENT, dated April 20,
2000 (the "Master Loan Agreement"), is made by and between CNL HEALTH CARE
PROPERTIES, INC., a Maryland corporation and CNL HEALTH CARE PARTNERS, LP, a
Delaware limited partnership (collectively "Borrower"), with its offices at 000
X. Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000, and COLONIAL BANK, a state
chartered bank organized and existing under the laws of the State of Alabama,
with its offices located at 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx,
00000 ("Bank").
RECITALS
A. Borrower has applied to Bank for a $25,000,000.00 credit facility
to provide financing for various loans of differing amounts (hereinafter
individually referred to as a "Loan" or collectively as the "Loans"), to be
advanced by Bank pursuant to the terms hereof.
B. Borrower will use the proceeds of the Loans to acquire assisted
living facilities, independent congregate care living facilities and medical
office buildings including skilled nursing beds as part of a larger community
and related improvements or amenities ("SLFs"), which shall be leased to
acceptable credit tenants, as herein provided.
C. Borrower and Bank wish to enter into this Master Loan Agreement to
provide a format to be effective, to the extent possible, with respect to such
Loans as Bank has presently agreed to make or may, in the future, agree to make.
D. From time to time Borrower and Bank shall enter into a Funding
Agreement/Loan Summary for each Loan which shall set forth certain specific loan
information (the "Loan Summaries" or, individually, a "Loan Summary") pertaining
to individual Loans that may be approved by Bank as provided herein and agreed
upon between the parties, the terms of which shall be incorporated herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Borrower and Bank hereby agree as
follows:
ARTICLE I
Definitions
1.1 For the purposes hereof, for each Loan:
a. "Architect" or "Supervising Architect" means the architect, who will serve as
Borrower's architect, as identified in the Loan Summary. Borrower shall retain
an architect who will perform various services in connection with SLFs on behalf
of Borrower under an Architect's Contract (as hereinafter defined) with
Borrower. Bank's Consultant and Borrower's supervising architect shall not be
the same person or firm; b. "Assisted Living Facility" means any Land, building
and related structure designed for assisted living of residents with all related
Improvements, amenities, utilities, parking areas and other facilities
associated therewith that is managed, maintained and operated by an entity with
substantial senior living facility ownership and management experience. c.
"Closing Date" means the date upon which a Loan is closed pursuant to the terms
hereof; d. "Commitment" means Bank's commitment letter (and all amendments
thereto) to Borrower, if any, as described in the Loan Summary, the terms and
conditions of which are incorporated herein by reference, but in the event of
any conflict or discrepancy between the terms of this Master Loan Agreement and
the Commitment, the terms of this Master Loan Agreement shall control; e.
"Consultant" means the architectural or engineering firm which Bank shall
designate to perform various services on behalf of Bank. The services to be
performed by Bank's Consultant include inspections of the SLFs and all
utilities, services, systems or facilities used in conjunction therewith; f.
"Default" means a violation of any term, covenant, or condition hereunder or a
Default as defined under any of the Loan Documents which remains uncured after
the expiration of any applicable grace period or required notice, if any,
provided in the Loan Documents; g. "Default Condition" means the occurrence or
existence of an event or condition which, upon the giving of notice or the
passage of time, or both, would constitute a Default; h. "Financing Statements"
means the UCC financing statements filed in order to perfect Bank's lien on
certain leases, contract rights, personal property and fixtures as more
particularly described therein; i. "Governmental Authorities" means any local,
state, or federal governmental agency, regulatory body or office, or any
quasi-govern mental office (including health and environmental), or any officer
or official of any such agency, office, or body whose consent or approval is
required as a prerequisite to the commencement of the construction of the
Improvements, or to the operation and occupancy of the Improvements or the SLF,
or to the performance of any act or obligation or the observance of any
agreement, provision or condition of whatsoever nature herein contained; j.
"Improvements" means all improvements on the Land (as defined hereinbelow),
including without limitation the improvements described in the Loan Summary; k.
"Land" means all the real property upon which an SLF is located, including,
without limitation, all improvements and amenities associated therewith, and
shall include all easements, licenses, permits, approvals, drainage rights,
impact fee or use credits and all other hereditaments, right, title and interest
associated and used in conjunction with the SLF; l. "Loan Documents" means this
Master Loan Agreement, the Note, the Assignment of Leases and Rents, the
Agreement Not to Encumber, and the Financing Statements, and any other document
or writing executed in connection therewith or in furtherance thereof; m. "Note"
means a promissory note dated as of the Closing Date executed by Borrower in
favor of Bank evidencing a particular Loan for a particular SLF, as well as any
promissory note or notes issued by Borrower in substitution, replacement,
extension, future advance, amendment, assumption or renewal of the Note or any
such promissory note or notes; n. "Operator" means the manager of an SLF under
an operating agreement. o. "Operating Agreement" means an agreement between a
tenant under a Primary Lease and a licensed management company experienced in
the management of SLFs to the reasonable satisfaction of Bank. p. "Permitted
Encumbrances" means those liens, encumbrances, easement and other matters
specified in the Agreement Not to Encumber as "Permitted Encumbrances"; q.
"Plans" means plans and specifications for the Improvements prepared by the
Architect and identified by Bank, and including such amendments thereto as may
from time to time be made by Borrower and approved by Bank. r. "Primary Lease"
means a valid, binding executed and existing lease for the use of a SLF which is
for an initial term of more than three (3) years and is entered into between
Borrower and either (i) a tenant who is an experienced SLF manager which is
deemed to be creditworthy by the Bank or (ii) a tenant who retains an
experienced Operator pursuant to an Operating Agreement and such other terms as
are acceptable to Bank and Bank counsel. s. "Title Policy" means the owner's
title policy meeting the requirements of this Master Loan Agreement.
ARTICLE II
Line of Credit Guidance Facility
2.1 Loan Facility. Upon the execution of this Master Loan Agreement, and subject
to the terms hereof, the Bank has agreed to provide a credit facility to the
Borrower in an amount up to a maximum of $25,000,000.00 (the "Master Facility").
Borrower hereby acknowledges and agrees that the execution of this Master Loan
Agreement does not obligate Bank to make a future Loan for any specific future
SLF or any other loans, and that any future request by Borrower for an
additional Loan for a new SLF shall be made or denied by Bank in the exercise of
its sole discretion. Such decision may not be based on any specific financial
performance or other criteria of Borrower, or an SLF, or by prior actions,
agreements or loans by Bank to Borrower. Bank shall retain full and complete
discretion to review and approve or disapprove future loan requests under this
Master Loan Agreement as and when such requests are made by Borrower. Bank shall
make any decisions on future requests for a Loan for a future SLF, if any, based
solely upon its own underwriting and other decision making processes. Borrower's
proper compliance with the Loan Documents (including, without limitation, this
Master Loan Agreement) will not be determinative of whether any future Loans or
other loan requests are approved or granted. Bank and Borrower acknowledge and
agree that the structure of this Master Loan Agreement has been prepared in such
a way as to set out the terms of any future Loans and to structure the Loan
Documents to provide a format that may reduce or minimize costs in the event
future Loans are made by Bank to Borrower and Borrower acknowledges it has fully
consulted with its legal counsel in connection therewith, and has satisfied
itself as to the structure and format of the Loan Documents delivered and
reviewed by Borrower as of the date of this Master Loan Agreement in that
regard.
2.2 Term of Master Facility. The Master Facility shall be for a term of five (5)
years from the date of this Master Loan Agreement, subject to termination by
Bank within ninety (90) days of each anniversary date of this Master Loan
Agreement, in the event the Bank determines there has been a material
deterioration in the Loan or value of the collateral, as determined in Bank's
reasonable discretion, and such termination shall be effective upon written
notice to Borrower within such ninety (90) day period, whereupon the Master
Facility shall expire and terminate on the date so specified in the notice,
provided any outstanding Loan would mature on the maturity date as provided that
in the respective Note evidencing such Loan, and would remain unaffected by such
termination.
2.3 Terms of Future Loans. Upon the approval of any request by Borrower of a new
Loan for a new SLF, such Loan shall be made in accordance with the terms and
provisions of this Master Loan Agreement and the following terms:
a. Interest Rate: The outstanding principal balance shall bear interest at a
variable rate per annum equal to either (i) the Base Rate, or (ii) the LIBOR
Rate plus the number of basis points necessary as of the Closing Date for the
interest rate under a Note to equal the Base Rate as of the Closing Date, for
Loans on SLFs, as selected by Borrower at the time of making each loan (the
"Interest Rate"). The Interest Rate shall be adjusted daily in accordance with
fluctuations in the Base Rate or the LIBOR Rate, as applicable. "Base Rate"
shall mean the fluctuating rate of interest per annum established by Colonial
Bank as its base lending rate in effect from time to time whether or not such
rate shall be otherwise published. Such Base Rate is established by Colonial
Bank as an index or base rate and may or may not at any time be the best or
lowest rate of interest offered by Bank. The "LIBOR Rate" means a rate per annum
for U.S. dollar deposits for a 90 day maturity as reported on page 3750 (under
the caption "USD" of the Telerate Services, Incorporated, screen or such other
display as may replace such page) as of 11:00 a.m., London time, two London
Business Days before the relevant Interest Period begins (or if not so reported,
a then as determined by Lender from another recognized source or interbank
quotation). LIBOR shall be rounded to the next higher 1/1000 of one percent.
"London Business Day" means any business day on which commercial banks are open
for international business (including dealings in dollar deposits) in London.
Notwithstanding the foregoing, the Note in the amount of Nine Million Seven
Hundred Thousand and 00/100 Dollars ($9,700,000.00) representing the initial
advance hereunder shall bear interest at 8.75% fixed per annum for two (2) years
in accordance with the terms of the Note. Lender shall have no obligation to
offer any fixed or variable rate to Borrower for any other advance hereunder
other than as set forth above. b. Term: Sixty (60) months from the Closing Date
of the Loan for a specific SLF. c. Loan Commitment Fee: Borrower shall pay to
Bank a loan commitment fee equal to one-half of one percent (1/2%) of the actual
disbursements under each Loan, as provided herein. Borrower may borrow, repay
and re-borrow under the Loan and during the first two (2) years after the date
of this Agreement, Borrower shall pay the one-half of one percent (1/2%) fee
only on the amounts initially disbursed under each Note (but not on any amounts
re-borrowed under
each Note) and in no event will Borrower be obligated to pay the commitment fee
on more than $25,000,000.00 disbursed under the Loan. Beginning on the second
anniversary of the date of this Agreement the one-half of one percent (1/2%) fee
shall be due on all disbursements thereafter.
2.4 Notes. The funds loaned under the Master Facility will be evidenced by
various Notes indicating the principal amount of each Loan made pursuant to the
line of credit; provided, however, that the amount actually due from Borrower to
Bank from time to time will be evidenced by the Bank's records (provided such
amounts are prepared and posted properly without arithmetic or mathematical
errors), and may increase and decrease from time to time, or be completely
repaid and again reborrowed, but in no event shall the total amount due exceed
$25,000,000.00.
2.5 Release by Borrower. Borrower waives and releases any claims, now or in the
future, known or unknown, that it may have to require or compel Bank to provide
future Loans other than as may be separately agreed by Borrower and Bank
pursuant to a subsequent commitment letter or other written agreement between
the parties, specifying the terms and conditions of such fundings. Any such
commitment or agreement shall be satisfactory to Bank, in its sole discretion.
In connection therewith, Borrower will execute such additional loan
documentation as Bank shall require including, without limitation, amendments
and modifications to the Loan Documents, together with the Loan Summary, which
will evidence and set forth the particular terms, conditions, restrictions,
agreements and covenants that pertain to the future Loans, as required by Bank.
Borrower acknowledges and agrees that the terms and conditions in any future
Loan Summary and related loan documentation shall be determined independently
from the terms of the Loan Documents and of any prior Loan Summary, if any, and
Borrower shall not rely upon the form and content of the terms of the Loan
Documents and of any prior Loan Summary as being determinative of what may be
included in a future Loan Summary.
2.6 Revolving Feature.The funds loaned under the Master Facility will be
evidenced by the various Notes; provided, however, that the amount actually due
from Borrower to Bank from time to time will be evidenced by Bank's records and
may increase and decrease form time to time or be completely repaid and again
reborrowed.
2.7 Disbursements Under Loans. The parties acknowledge and agree that the Bank
can make one or more disbursements of any Loan at the request of Borrower,
provided, however, the aggregate amount of such disbursements shall not exceed
the principal amount of the Note. Except to the extent previously satisfied in
the reasonable discretion of Bank, each disbursement of the Loan must satisfy
the conditions precedent set forth in Article IV of the Master Revolving Line of
Credit Loan Agreement and such other provisions of the Loan Documents as may
apply.
ARTICLE III
The Loans
As to each Loan made by Bank to Borrower:
3.1 Loan Terms. Subject to the terms and conditions of this Master Loan
Agreement, Bank will lend, and Borrower will borrow, such sums as Bank and
Borrower shall agree upon, as specified in the Loan Summary which borrowing
shall be evidenced by the Note. All of the terms, definitions, conditions, and
covenants of the Note, the Assignment of Leases and Rents, the Agreement Not to
Encumber, and any other documents executed in connection therewith or pursuant
thereto are expressly made a part of this Master Loan Agreement by reference in
the same manner and with the same effect as if set forth herein at length and
shall have the meaning set forth in such instrument(s) unless otherwise defined
herein.
3.2 Interest.The outstanding principal balance of the Loan shall bear interest
based on a 360 (actual) day year at the interest rate specified in the Note, and
principal and interest shall be due and payable in accordance with the terms of
the Note.
3.3 Disbursements. Bank agrees that it will, from time to time, and so long as
there shall exist no Default Condition or Default, disburse Loan proceeds to
Borrower pursuant to the Loan Documents. The conditions set forth in this
Article III hereof must be satisfied and the conditions set forth in Article IV
hereof must be satisfied before Bank will make the disbursement for each Loan
hereunder.
3.4 Draw Requests. At least three (3) days prior to each Loan disbursement by
Bank, Borrower must submit to Bank a Request for Disbursement on a form
acceptable to Bank, which shall include:
a. Request for Disbursement. A completed Request for Disbursement signed by
Borrower in a format acceptable and certified to Bank, setting forth the amount
of Loan proceeds desired, together with such certifications and additional
information as Bank may require.
b. Owner's Affidavit. A notarized affidavit from Borrower shall be submitted
which certifies that Owner is or shall upon application of the Disbursement
immediately become fee simple title holder to the SLF.
c. Equity Compliance. Copies of paid invoices or other acceptable documentation
indicating Borrower's investment of Borrower's own funds in the SLF for those
items and in the amounts indicated on the certified Cost Breakdown, attached as
an exhibit to the Funding Agreement/Loan Summary.
3.5 Disbursement Amounts. Following receipt of a Request for Disbursement and
receipt and review of the report of the Consultant, Bank shall determine the
amount of the disbursement it will make in accordance with the Bank's
underwriting policies adopted from time to time by the Bank.
3.6 Equity Requirements. If Bank determines that costs of acquisition of a SLF
exceed the amount specified on the Loan Summary, which includes certain
specified amounts of "up front" equity and deferred equity to be paid by
Borrower, or if Bank at any time determines in its reasonable discretion that
the Loan proceeds plus the amount of all equity investments made are not
sufficient to meet the Bank's underwriting policies, and to pay all other sums
due, then Bank shall, upon written Notice to Borrower, have the option of
requiring Borrower to deposit with Bank additional funds from some other source
(or submit evidence to Bank of equity investments previously made) in amounts
sufficient to cover the anticipated or resulting deficit before Bank will
disburse any additional Loan proceeds.
ARTICLE IV
Conditions Precedent to Disbursement of Each Loan
Bank shall not be obligated to make the Loan disbursement with respect
to each Loan until all of the following conditions precedent have been satisfied
as to such Loan by proper evidence, execution, and/or delivery to Bank of the
following items, all in form and substance reasonably satisfactory to Bank and
Bank's counsel:
4.1 Note. The original Note, properly executed, shall have been
delivered to Bank.
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4.2 Assignment of Leases and Rents, Security Agreement and Agreement Not to
Encumber. The Assignment of Leases and Rents, covering the SLF, which with the
Security Agreement shall be a validly perfected first priority lien, and with
the Agreement Not to Encumber shall have been delivered to Bank, and which shall
contain, among other provisions, the following provisions:
a. That upon any sale, conveyance, assignment or transfer of all or any
part of the SLF or any interest therein, Bank may, at Bank's option,
declare the Loan to be immediately due and payable without notice or
demand. Bank may, in Bank's sole discretion decide not to exercise
said option, in which event Bank's forbearance may be predicated on
such terms and conditions as Bank may, in Bank's sole discretion
require, including, but not limited to, Bank's approval of the
transferee's creditworthiness and management ability, the execution
and delivery to Bank by the transferee, prior to the sale, transfer,
assignment or conveyance, of a written assumption agreement containing
such terms as Bank may require, including, but not limited to, a
payment of a part of the principal amount of the Note, an increase in
the rate of interest payable on the Note, the payment of an assumption
fee, a modification of the term of the Note, and such other terms or
conditions as Bank may require, or Bank may make any such adjustments
in the terms of the Loan without requiring an assumption by such
transferee;
b. That Borrower shall not, without the prior written consent of Bank,
mortgage, pledge, hypothecate or otherwise encumber (other than by a
lease or leases of the property which shall be in compliance with the
terms hereof) all or any portion of the SLF, even if such pledge or
mortgage is subordinate to Bank's lien position, and any violation of
this prohibition shall give Bank the right immediately to accelerate
the maturity of the Loan without notice or demand;
c. That Borrower shall provide evidence that all ad valorem or other
applicable taxes and insurance premiums have been paid when due.
d. That all income, profits, rents, insurance proceeds or other incomes
from leases or any other source relating to the SLF are assigned to
the benefit of the Bank including but not limited to the Primary
Lease, all as more particularly set forth in the Assignment of Leases
and Rents.
e. Any and all Leases assigned to the Bank or tenant estoppel letters
pursuant hereto shall be required to contain a provision which
requires the tenant to give written notice to Bank of any and all
defaults of landlord and provides the Bank opportunity to cure the
same, such provision to be in a form and substance deemed adequate by
Bank and Bank's counsel.
f. That the Assignment of Leases and Rents and Security Agreement shall
be cross-defaulted with respect to any other indebtedness or
obligations from Borrower to Bank under the Loan.
4.3 Assignment of FF&E Account. An Assignment of FF&E Account (or provisions in
the Security Agreement), properly executed by Borrower and delivered to the
Bank.
4.4 Indemnity. A Hazardous Substance Certificate and Indemnification Agreement,
properly executed by Borrower, shall have been delivered to Bank.
4.5 Financing Statements. The Financing Statements on forms approved for filing
in the appropriate state and local filing offices shall have been properly
executed.
4.6 Title Policy.The Title Policy (or a satisfactory commitment or binder
therefore), as to each SLF from First American Title Insurance Company or such
other company or companies acceptable to Bank (the "Title Company"), and on such
form, approved by Bank issued by the Title Company to the Borrower in the amount
equal to or greater than the amount of the Loan insuring that the Borrower is
the fee simple owner of the SLF subject only to the Permitted Encumbrances.
4.7 Title Exceptions. Copies of all documents creating exceptions
to the Title Policy.
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4.8 Survey. Three (3) copies of a recent survey of the Land (the "Survey")
prepared by a registered land surveyor acceptable to Bank and certified to Bank,
the Title Company, and Borrower. Such survey shall show: (a) all boundaries of
the Land with courses and distances indicated including chord bearings and arc
and chord distances for all curves, (b) dimensions and locations of all existing
improvements and of all easements, private drives, roadways, encroachments,
utility and transmission lines, governmental regulation and jurisdictional
lines, building set back lines established by zoning regulations or private
covenants and restrictions, whether recorded or unrecorded, (c) the distances
to, and names of the nearest intersecting streets, (d) a narrative metes and
bounds legal description of the boundary of the Land, (e) the area of the Land
and the SLF and any Improvements thereon, (f) a certification as to the
applicable flood zone(s) for the Land; and if the subject property contains more
than one Flood Zone Designation, the boundary line(s) between the Flood Zone
Designated Areas, (g) a statement as to access to or from the SLF, (h) the date
of the survey and the surveyor's registration number and seal, (i) other facts
in any way affecting the Land, j) a certification that the survey was made in
accordance with the requirements for an ALTA land survey and in accordance with
applicable state law, and (k) such other details as the Bank may request.
4.9 Flood Hazards. Evidence as to whether or not the Land is located within an
area identified as having "special flood hazards" as such term is used in the
Federal Flood Disaster Protection Act of 1973. Such evidence can be the
certification that is required in connection with the survey required herein.
4.10 Flood Hazard Insurance. If all or any part of the Improvements is to be
located in an area having "special flood hazard", a flood insurance policy
naming Bank as a loss payee must be submitted to Bank.
Satisfactory evidence of premium payments must be provided.
4.11 Liability Insurance. Evidence of premium payments of Liability Insurance
meeting the requirements set forth in the Lease shall be provided to the Bank in
accordance with the terms set forth herein and in the Security Agreement. All
Liability Insurance shall be evidenced by policies complying with the terms of
the Lease. Each such policy is hereinafter referred as an "Insurance Policy".
The liability Insurance Policy shall list Bank as an additional insured.
Borrower agrees to cause the Land to be insured by property casualty insurance
in an amount not less than the appraised value of the Improvements. Borrower
agrees to notify Bank in the event that it receives any notice of termination of
the property casualty Insurance Policy. At such time as Bank may obtain a
mortgage on the Land, pursuant to the terms of the Loan Documents, Borrower
shall within five (5) days after notice from Bank cause Bank to be added as an
additional insured and mortgagee loss payee to the property casualty Insurance
Policy. During the time that Bank does not hold a mortgage encumbering the Land,
Borrower agrees not to exercise any of its rights to direct the application of
any proceeds under the property casualty Insurance Policy without the prior
written consent of the Bank. In the event that Borrower fails to comply with any
of the terms hereof, Bank may in addition to any other remedies it may have,
procure the requisite insurance at the cost and expense of Borrower and the same
shall be immediately due and payable within ten (10) days after notice from Bank
to Borrower. Failure of Borrower to timely pay such invoice shall be a default
under the Loan Documents. Copies of duly executed certificates of insurance for
all Insurance Policies shall be delivered to the Bank no more than ten (10) days
after the effective date of the Lease and upon the annual anniversary date
thereof and thereafter as may be reasonably requested by the Bank.
4.12 Property Insurance. Evidence of Property Insurance covering damages to each
SLF and all personal property and Improvements associated therewith and meeting
the requirements as set forth in the Security Agreement shall be provided to
Bank in accordance with the same terms as set forth in the requirements for
Casualty Insurance in Section 4.11 above.
4.13 Borrower's Organizational Documents And Resolutions. (i) A certified copy
from the appropriate governmental body of organizational documents of Borrower,
certifying that Borrower is duly organized, validly existing, and in good
standing under the state of its existence, (ii) evidence that Borrower has the
authority under such documents and laws to enter into the Loan as contemplated
by the Loan Documents, and (iii) if applicable, evidence that Borrower has made
all appropriate filings, including without limitation, qualification to do
business in the state where the Land is located, the state of its organization
or domicile, and Florida, necessary to enter into the Loan and execute the Loan
Documents. Additionally, Borrower shall provide (i) certified resolutions or
other corporate documents of Borrower evidencing that Borrower has taken all
requisite corporate action, and received all corporate approvals necessary to
enter into the Loan and execute the Loan Documents, and (ii) such other
documents or writings as Bank may reasonably request.
4.14 Fictitious Name Certificate. If Borrower utilizes or intends to utilize a
fictitious name, a copy of the Fictitious Name Certificate of the Borrower
issued by the Florida Secretary of State and any other jurisdiction in which
such filing is necessary.
4.15 Attorney's Opinion. The written opinions of counsel to Borrower (with
respect to the laws of Florida and the state where the Land is located, if
different), addressed to Bank, acceptable to Bank and Bank's counsel, as to
those matters required by Bank. The attorneys opinion, with respect to the
enforceability of remedies provided in the Loan Documents and related instrument
may be made subject to or as affected by, applicable bankruptcy, moratorium,
reorganization, insolvency or similar laws from time to time in effect affecting
the rights of creditors generally. As to matters of fact, such opinions may be
qualified to the extent of the knowledge of such counsel based upon due inquiry
and reasonable investigation.
4.16 Compliance with Laws and Matters of Record. Satisfactory documentary
evidence that the Land with Improvements, and the intended uses of the Land, are
in compliance with all applicable laws, regulations and ordinances and private
covenants, easements, and conditions of record. Such evidence is subject to
approval by Bank and Bank's counsel and may include letters, licenses, permits,
certificates and other correspondence from the appropriate Governmental
Authorities, opinions of Borrower's counsel or other counsel, and opinions or
certifications from the Architect, or the Engineer. The laws, regulations and
ordinances with which compliance should be evidenced include without limitation
the following: health and environmental protection laws, laws related to or
regulating water management districts, hazardous materials and substances and
storm water drainage, erosion control ordinances, tree and landscaping
ordinances, building codes, land use requirements, threshold building consultant
requirements, the development of regional impact Statutes, doing business and/or
licensing laws and zoning laws (the evidence submitted as to zoning should
include the zoning designation made for the Land, the permitted uses of the Land
under such zoning designation and zoning requirements as to parking, lot size,
ingress, egress and building setbacks).
4.17 Taxes. Evidence that each SLF is, or will be, separately assessed for tax
purposes and information as to tax parcel identification numbers, tax rates,
estimated tax values and the identities, of- the taxing authorities.
4.18 Utilities. Evidence of the availability and suitability of the water,
sewer, telephone, electrical, natural gas, and other utilities needed to
properly service the SLF in its intended use.
4.19 Plans and Specifications. With respect to SLFs, evidence of the Plans which
include architectural, structural, mechanical, plumbing, electrical and site
development (including storm drainage, utility lines, erosion control and
landscaping).
4.20 Permits. A copy certified by Borrower of evidence of all applicable permits
including, without limitation, the building permit and all permits pursuant
thereto, land use permits, dredge and stormwater discharge permits (federal and
state), and any other permits required for use and occupation of the SLF.
4.21 Engineers Report. Copies of the report signed by Borrower's Engineer
detailing the results of the engineers inspection of the SLF, certified to the
Borrower and Bank.
4.22 Soil Tests. Evidence of a prior report as to soil borings made on the Land
by a soil testing firm satisfactory to Bank or certification in the Engineers
Report as to such soil borings. The report and/or certification shall include
the conclusions and findings of the soil testing firm as to the suitability of
the soil for adequately supporting the improvements.
4.23 Environmental Assessment.
a. An environmental assessment of the Land and Improvements performed at
Borrower's expense by a licensed engineer or other environmental consultant
satisfactory to Bank stating whether:
(i) the Land is located within any area designated as a hazardous
substance site by any of the Governmental
Authorities;
(ii) hazardous or toxic wastes or other materials or substances,
regulated, controlled, or prohibited by any federal, state or
local environmental laws, including but not limited to
asbestos, are located on the Land or Improvements; and
(iii) the Land has been cited or investigated in the past for any
violation of any such laws, regulations, or ordinances.
b. Receipt of any acceptable environmental audit is a condition precedent to
Bank's obligation under the Commitment and hereunder. If the environmental
assessment shall reveal any condition unacceptable to Bank, Bank may elect to be
relieved of any obligation under the Commitment after providing written notice
to Borrower. If Bank does not elect to terminate the Commitment, Borrower shall
obtain a Phase II audit or conduct other additional testing, at its sole cost
and expense, and Borrower shall promptly conduct such additional audits and
testing and/or complete such remedial action. Bank may require Borrower to
provide evidence that all necessary actions have been taken to remove any
hazardous substance contamination and/or to restore the site to a condition
acceptable to Bank and state and federal governmental agencies.
c. Bank shall use best efforts to keep and maintain matters set forth in the
Environmental Assessment confidential by and among the Bank's employees, agents,
representatives and assigns; excepting, however, when required by operation of
Law to report any matters contained therein to any governmental agency.
4.24 Leases. Copies of the then existing lease between the tenant for the SLF
(the "Tenant") and Borrower (the "Tenant Lease"), certified by Borrower and the
respective Tenant to be accurate, complete, unaltered, and binding.
4.25 Taxpayer Identification Number. Borrower's federal taxpayer identification
number.
4.26 Borrower's Affidavit. An affidavit of Borrower regarding the absence of any
other parties in possession of the SLF, other than the tenant under the Primary
Lease and the residents of the SLF (but merely in their capacity as residents)
and such other matters as may be requested by Bank;.
4.27 Fee. Subject to the terms of Paragraph 2.3(c) hereof, a fee equal to
one-half of one percent (1/2%) of the actual disbursements under each Loan shall
be due and payable by Borrower to the Bank at closing or subsequent
disbursement.
4.28 Notice. To the extent Property is located in Florida, a copy of a recorded
notice stating that all leases affecting the SLF, or any portion thereof,
prohibit the attachment of Tenant related liens.
4.29 Appraisal. A signed copy of an appraisal by an MAI certified appraiser
approved by Bank reflecting the value of the SLF to be not less than the amount
specified in the Loan Summary.
4.30 Comprehensive Plan. Documentary evidence, satisfactory to Bank and its
counsel, that use and operation of the SLF are consistent with concurrency
requirements and other applicable provisions of the local comprehensive plan,
local land development regulations, and any other similar requirements
("Comprehensive Plan"). Such evidence may include a certificate from Borrower's
Architect, on a form satisfactory to Bank, certifying to Bank that the use and
operation of the SLF are consistent with the Comprehensive Plan.
4.31 Facilities for Handicapped. Bank shall have received and approved evidence,
satisfactory to Bank, that the Improvements comply with all legal requirements
regarding access and facilities for handicapped or disabled persons, including,
without limitation, and to the extent applicable, Part V of the Florida Building
Construction Standards Act entitled "Accessibility by Handicapped Persons"
Chapter 553, Fla Stat. (or similar law in other jurisdictions, if applicable);
the Federal Architectural Barriers Act of 1988 (42 U.S.C. 4151, et. seq.), the
Fair Housing Amendment Act of 1988 (42 U.S.C. 3601, et. seq.), The Americans
With Disabilities Act of 1990 (42 U.S.C. 12101 et. seq.), and The Rehabilitation
Act of 1973 (29 U.S.C. 794)
4.32 Reports and Analysis. Such reports and analysis as reasonably requested by
the Bank to establish the financial feasibility of the development, use and
operation of the SLF as contemplated by the Loan.
4.33 No Defaults. No Default Condition or Default shall exist under the Loan
Documents.
4.34 Request. Bank shall have received Borrower's Request for Disbursement.
4.35 Tenant Estoppel Certificates and Subordination Agreements. Any tenant
occupying the SLF, or any portion thereof, or which will occupy the SLF, or any
portion thereof, shall execute and deliver to Bank a tenant estoppel certificate
and, if requested by Bank, subordination agreement in a form satisfactory to
Bank. In such event, the tenant shall also agree to provide the Bank notice and
opportunity to cure any and all defaults of landlord prior to tenant seeking any
remedy. The tenant estoppel certificate shall certify, among other things, the
date the tenant accepted occupancy of the leased premises (if applicable), the
absence of any lease defaults by landlord, the date the tenant commenced rent
payments (if applicable), the lease's material terms, and such other matters as
may be requested by Bank. The subordination agreement shall provide, among other
things, that the tenant's right, title and interest under the lease is
subordinate to the lien of Bank's Assignment of Leases and Rents, Security
Agreement and Assignment of FF&E Account.
4.36 Miscellaneous. All other Loan Documents or items that are customarily
provided in loan transactions of this type required by Bank and all other loan
documents or items set forth in the Commitment.
ARTICLE V
Borrower's Covenants and Agreements As To Each Loan
5.1 Payment and Performance. Borrower will pay when due all sums owing to Bank
under all of the Note(s), this Master Loan Agreement, the Assignment of Rents
and the other Loan Documents, and perform all obligations as outlined or
referenced therein.
5.2 Organization; Powers. CNL Health Care Properties, Inc. has been duly formed
and is validly existing as a corporation under the laws of the State of Maryland
and CNL Health Care Partners, L.P. has been duly formed and is validly existing
as a limited partnership under the laws of the State of Delaware and each has
all requisite power and authority to execute, deliver and perform its
obligations under this Agreement and other Loan Documents and to carry on its
business as now conducted and as proposed to be conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a material adverse effect.
5.3 Authorization; Enforceability. The Loan is within the Borrower's powers and
has been duly authorized by all necessary action. The Security Agreement and the
other Loan Documents have been duly executed and delivered by the Borrower and
constitute the legal, valid and binding obligations of the Borrower, enforceable
in accordance with their respective terms, except as such enforceability may be
limited by bankruptcy, insolvency, fraudulent, conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
5.4 Further Assurances. Borrower will promptly do any act and execute any
additional documents reasonably required by Bank to secure the Loan, to confirm
or perfect the lien of the Assignment of Leases and Rents or any other Loan
Documents or to comply with the Commitment, including, but not limited to,
additional financing statements or continuation statements, new or replacement
notes and/or Loan Documents and agreements supplementing, extending or otherwise
modifying the Loan Documents and certificates as to the amount of the
indebtedness evidenced by the Note from time to time.
5.5 Inspection. Borrower will permit Bank and its authorized agents to enter
upon the SLF during normal working hours and as often as Bank desires, for the
purpose of inspecting the SLF or the Improvements. Failure of Bank or its
authorized agents to discover deficiencies in the Improvements shall not make
Bank or its agent liable to Borrower or to any other person on account of such
failure, nor shall any prior failure constitute a waiver of Bank's rights.
Borrower specifically acknowledges that all inspections undertaken by Bank or
its agent shall be for the sole benefit of Bank and not for Borrower, or any
third party. The costs of all inspections shall be at Borrowers expense;
provided, however, that as long as there is no Default, such cost shall not
exceed $500.00 for each Loan. Notwithstanding anything herein to the contrary,
Bank agrees that its rights to inspect the Land and Improvements are subject to
the tenant's right under the Primary Lease. Borrower hereby assigns to Bank and
Bank's inspector for its benefit any and all rights of entry and inspection that
Borrower has under the Primary Lease.
5.6 Fees and Expenses. Whether or not the Loan is made, or all Loan proceeds
disbursed hereunder, Borrower agrees to pay all expenses incurred by Bank, or by
Borrower in order to meet Bank's requirements, in connection with the Loan,
including without limitation, commitment and renewal fees or deposits to bank,
fees for appraisal, reappraisal survey, recording, title insurance, builder's
risk and other insurance premiums, property taxes, intangible taxes, documentary
stamp taxes, the design architects and Architect's fees, the Engineer's fees,
the Consultant's fees, and such reasonable legal fees and costs incurred by Bank
in connection with the making of the Loan, the enforcement of bank's rights
under the Loan Documents, or in connection with litigation or threatened
litigation by a third party which arises because Bank made this Loan, Any such
amounts paid by Bank shall constitute part of the debt which is secured by the
Loan Documents, and shall be due and payable upon demand.
5.7 Use of Loan Funds. Borrower shall use all Loan proceeds initially disbursed
to Borrower under any Note solely in payment of costs incurred in connection
with acquiring the applicable SLF, in accordance with the applicable Loan
Summary. Initially disbursements of Loan funds under any Note with regard to one
SLF project shall not be utilized for any other project under this Master Loan
Agreement; provided, however, that if the initial Loan Funds under any Note are
paid down and subsequently re-borrowed under such Note, then such re-borrowed
proceeds may be used for the acquisition of another SLF under this Master Loan
Agreement.
5.8 Insurance. Borrower covenants to maintain or caused to be maintained
insurance as required herein and in the Security Agreement.
5.9 Taxes and Insurance. Upon the request of Bank, Borrower shall submit to Bank
such receipts and other statements which shall evidence, to the satisfaction of
Bank, that all taxes, assessments and insurance premiums have been paid in full.
5.10 Availability of Utilities. All utility services necessary for the
Improvements and the operation thereof for their intended purposes are presently
available through presently existing public or unencumbered private easements or
rights-of-ways in accordance with validly executed and enforceable utility
service agreements between Borrower and the provider of each of such services
(the "Utility Service Agreements") at the boundaries of the Land, including but
not limited to, water, storms and sanitary sewer, gas, electric and telephone
facilities, and all such utilities are non-interruptible.
5.11 Additional Construction. Except for construction by tenant permited in the
Primary Lease, Borrower shall not construct or permit the construction of any
improvements on the Land other than those Improvements approved in writing by
Bank.
5.12 Financial Statements. Borrower shall submit annual audit reports and
semi-annual unaudited company prepared financial statements to the Bank. Such
statements shall include, at a minimum: a balance sheet; an income and expense
statement; a statement showing contingent liabilities; detailed cash flow
statements for each project or entity in which Borrower has an interest and on
which Bank has advanced funds under a Loan; and any supporting schedules or
documentation which Bank may require. Detailed cash flow statements shall
include, as applicable: the project name; location; percentage of Borrower's
ownership interest; leasing status; net operating income; current loan balance;
debt service; source of any operating deficit; amount and beneficiary of any
cash distributions; and the amount of cash invested in or received from that
enterprise. In addition detailed cash flow projects for the next fiscal year
(twelve month period) for each SLF or entity shall be submitted. Each unaudited
statement must contain a certification to Bank of the statement's accuracy and
completeness signed by the highest ranking financial officer of the Borrower.
Annual statements of business entities (including corporation and partnership)
shall be audited and bear the unqualified opinion of an acceptable certified
public accountant. The annual statements shall be submitted no later than April
30th of each year of the Loan term.
Interim statements shall be submitted within 30 days of Bank's request.
5.13 Appraisals. In addition to the appraisals required by Bank prior to closing
of the Loan, updated appraisals shall be prepared at Borrower's expense when
requested by Bank or when required in connection with any extension options in
the Note. Such appraisals shall be prepared in accordance with written
instructions from Bank and by a professional appraiser selected and engaged by
Bank. Borrower shall cooperate fully with the appraisal process and shall allow
the appraiser reasonable access to the SLF and its tenants. Bank agrees that it
shall not require appraisals more frequently than annually unless Borrower is in
default or unless required of Bank by any banking agency or regulation.
5.14 Hazardous Substances. Concurrently with the execution hereof, Borrower
warrants and represents to Bank that, to the best of Borrowers knowledge, the
SLF and all real property, now or previously owned by Borrower during the period
of Borrowers ownership, and are not now being used in violation of any federal,
state or local environmental law, ordinance or regulation; that no proceedings
have been commenced, or notices(s) received, concerning any alleged violation of
any such environmental law, ordinance or regulation. Borrower covenants that it
shall not permit any such materials to be brought onto the SLF or any other real
property owned by Borrower, or if so brought or found located thereon, shall be
immediately removed with proper disposal, and all required environmental cleanup
procedures shall be diligently undertaken pursuant to all applicable laws,
ordinances and regulations. Borrower herein indemnifies and holds Bank harmless
against any loss, claim or costs incurred by Bank in connection with the
warranties granted herein. Borrowers obligations hereunder shall survive any
proceeding to enforce Bank's rights under the Loan Documents.
If the Bank has reasonable belief of the existence of an environmental
problem or if required by any banking regulation, but no more frequently than
once each calendar year, the Bank may in its reasonable discretion, at its
election, obtain one or more environmental assessments of the Land prepared by a
geohydrologist, an independent engineer, or other qualified consultant or expert
approved by Bank evaluating or confirming (i) whether any Hazardous Substances
are present in the soil or water at the Land and (ii) whether the use and
operation of the Land complies with all applicable Environmental Laws relating
to air quality, environmental control, release of oil, hazardous materials,
hazardous wastes and hazardous substances, and any and all other applicable
environmental laws. Environmental assessments may include detailed visual
inspection as to the Land including, without limitation, any and all storage
areas, storage tanks, drains, dry xxxxx, and leasing areas and the taking of
soil samples, surface water samples, and ground water samples, as well as such
other investigations or analyses as are necessary or appropriate for a complete
determination of the compliance of the Land and the use and operation thereof
with all applicable Environmental Laws. Such environmental assessment shall be
the sole cost and expense of Borrower.
In the event that it is determined that additional tests and/or
remediation are necessary as a result of the aforesaid assessments, or in the
event such additional testing or remediation is recommended by the aforesaid
assessments, Borrower agrees to immediately perform the tests or undertake the
remediation as recommended. In the event contamination or other environmental
problem is found on the Land and Borrower does not promptly undertake the
remediation as recommended, Borrower shall be in default hereunder.
Bank shall use best efforts to keep and maintain matters set forth in
any hazardous substances notices and/or environmental assessments confidential
by and among the Bank's employees, agents, representatives and assigns;
excepting, however, when required by operation of law to report any such matters
contained therein to any governmental agency.
5.15 Leases Affecting SLF. Borrower shall not, without the express prior written
consent of Bank, enter into any lease affecting the SLF or any part thereof
(including the Primary Lease), or amend, modify, extend, terminate or cancel,
accept the surrender of any portion of the SLF which is the subject of a lease
(except by expiration of such lease in accordance with its terms), subordinate,
accelerate the payment of rent as to, or change the terms of any renewal option
of any lease now existing or hereafter created, or permit or suffer an
assignment or sublease thereof, except as set out herein. Any lease or any
modification, extension, or renewal of any lease, affecting or relating to all
or any portion of a SLF shall be subject to Bank's prior written approval.
Copies of all leases or modifications, renewals, or extensions thereto, approved
by the Bank shall be certified as accurate and complete by Borrower and Tenant
and delivered to the Bank within fifteen (15) days of execution.
5.16 Assignment of Contracts. As additional security for the Loan and for the
performance by Borrower of all of its obligations hereunder Borrower hereby
collaterally assigns to Bank all of Borrower's interest in any and all
contracts, agreements, permits, licenses, approvals, or other documents or
writing relating to the leasing, management or operation of the Improvements.
This assignment shall not, however, be deemed to impose upon Bank any of
Borrowers obligations under any such contract. Borrower will fulfill the
obligations of Borrower under all contracts, enforce the performance thereof and
give immediate notice to Bank of any material default by the other party to such
contract. Further, Borrower, will not, without the prior written consent of Bank
(i) materially modify, or amend the terms of any material contract, or (ii)
waive or release the performance of any-material obligation to be performed by
the other party to any such contract.
5.17 Subordinate Financing. Borrower shall not permit there to exist nor shall
Borrower obtain any subordinate financing of the SLF, or any part thereof, or
any other property granted as security for the Loan.
5.18 Transfer of Property or Borrower. Borrower shall not permit any change in
its ownership, or the ownership of its general partners, the nature and
operation of its business or the nature and character of Borrower or the SLF,
nor shall Borrower sell, assign, transfer, hypothecate or dispose of all or any
portion of the SLF except as permitted hereby, without the prior written consent
of Bank, which consent shall be withheld or granted in Bank's sole and absolute
discretion. Notwithstanding the foregoing, the sale or disposition of shares or
units of Borrower sold or transferred pursuant to a registration made with the
Securities and Exchange Commission pursuant to the Securities and Exchange Act
of 1934 shall be deemed a permissible transaction.
5.19 Americans With Disabilities Act. Borrower covenants and agrees that, during
the term of the Loan, the SLF will be in full compliance with the Americans With
Disabilities Act ("ADA" of July 26, 1990, 42 U.S.C Section 12191, et. seq.) as
amended from time to time, and the regulations promulgated pursuant thereto.
Borrower shall be solely responsible for all ADA compliance costs including
without limitation, reasonable attorneys fees and litigation costs, which
responsibility shall survive the repayment of the Loan and foreclosure of the
SLF.
ARTICLE VI
Borrower's Representations and Warranties As to Each Loan
6.1 Representations and Warranties. Borrower hereby represents and warrants to
Bank that:
a. Representations and Warranties in Loan Documents. All of the representations
and warranties contained in the Assignment of Leases and Rents, the Agreement
Not to Encumber and the other Loan Documents are true and correct and are
incorporated herein by reference as if set out in full.
b. Other Financing. Borrower has not (i) received any other financing for the
acquisition of the SLF existing as of the date of the Loan for such SLF, or (ii)
received any other financing of Improvements, equipment or other facilities used
in conjunction with each SLF.
c. Governmental Requirements and Other Requirements, To Borrowers knowledge,
after due inquiry, the use and operation of the SLF does and shall comply with
all covenants, conditions and restrictions affecting the Land or any portion
thereof; and do and shall comply with all Governmental Requirements.
d. Use of the SLF. To Borrower's knowledge there is no (i) plan, study or effort
by any Governmental Authority or any nongovernmental person or agency which may
adversely affect the current or planned use of the SLF, or (ii) any intended or
proposed Governmental Requirement (including, but not limited to, zoning
changes) which may adversely affect the current or planned use of the SLF.
e. Moratorium. Other than applicable government regulations for new SLFs with
respect to which Borrower is in compliance, there is no moratorium or like
governmental order or restriction now in effect with respect to the operation of
the SLF and, to the best of Borrower's knowledge, no moratorium or similar
ordinance or restriction is now contemplated.
f. Permits. To Borrower's knowledge, after due inquiry, prior to the closing on
each Loan, all permits, approvals and consents of Governmental Authorities and
public and private utilities having jurisdiction necessary in connection with
such SLF shall have been issued and be in good standing.
g. Condition of SLF. To Borrower's knowledge, after due inquiry, at time of
closing of each Loan, (i) no defect or condition of the SLF Improvements, Land
or the soil, ground water or geology of or under the Land and (ii) no other
agreement, arrangement, understanding or conditions whatsoever, exists which
will delay or impair the use, or the operation of SLF for its intended purpose.
h. Surveys. The Survey, and all plot plans and other documents heretofore
furnished by Borrower to Bank with respect to Land and Improvements are accurate
and complete as of their respective dates. To Borrower's knowledge, after due
inquiry (which inquiry will consist of review of the Survey and an inspection of
the Land) there are no encroachments onto the Land and no Improvements on the
Land encroach onto any adjoining property.
i. Sale of Securities. Borrower has not instituted, caused to be instituted or
been a party to and, to the best of Borrower's knowledge, there has not been any
public offering with respect to the Land and Improvements, or either, within the
meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934
("Securities Laws") unless the same comply with all Laws, Including but not
limited to the Securities laws, and Borrower promptly and timely provides a copy
of all materials filed with any Governmental Authority in conjunction therewith.
j. Reliance on Representations. Borrower acknowledges that Bank has relied upon
the Borrowers representations and is not charged with any knowledge contrary
thereto that may be received by an examination of the public records wherein the
Land is located or that may have been received by any officer, director, agent,
employee of shareholder of Bank.
ARTICLE VII
Events of Default
7.1 Default. The occurrence of any one or more of the following events (time
being of the essence as to this Master Loan Agreement and all of its provisions)
with respect to one or more Loans constitutes a "Default" by Borrower under this
Master Loan Agreement, and at the option of Bank, under the other Loan Documents
for the respective Loan or any other Loan:
a.Scheduled Payment. Borrower's failure to make any payment required under
any of the Note(s) when due.
b. Monetary Default. Borrower's failure to make any other payment required by
this Master Loan-Agreement or the other Loan Documents, within ten (10) days of
the due date, which payment is not received by Bank within fifteen (15) days of
receipt of written notice of such failure from Bank.
c. Other. Borrower's failure to perform any other obligation imposed upon
Borrower by this Master Loan Agreement or any other Loan Document within the
time period specified, or as may be specified by Bank, if in the reasonable
opinion of Bank such Default is curable, should such failure not be cured by
Borrower within thirty (30) days of receipt of written notice from the Bank,
except when a shorter or longer period is specifically provided in any provision
of the Loan Documents. This provision shall not be construed to provide Borrower
with any grace period in complying with any obligations imposed on Borrower by
the terms of the Loan Documents.
d. Representation. Any representation or warranty of Borrower contained in this
Master Loan Agreement or in any certificate delivered pursuant hereto, or in any
other instrument or statement furnished in connection herewith, proves to be
incorrect or misleading in any adverse respect as of the time when the same
shall have been made, including, without limitation, any and all financial
statements, operating statements, and schedules attached thereto, furnished by
Borrower to Bank or pursuant to any provision of this Master Loan Agreement,
provided such representation or warranty is made accurate by Borrower within
thirty (30) days of receipt of written notice from Bank. e. Bankruptcy.Borrower
or any general partner of Borrower or any affiliate (i) files a voluntary
petition in bankruptcy or a petition or answer seeking or acquiescing in any
reorganization or for an arrangement, composition, readjustment, liquidation,
dissolution, or similar relief for itself pursuant to the United States
Bankruptcy Code or any similar law or regulation, federal or state, relating to
any relief for debtors, now or hereafter in effect; or (ii) makes an assignment
for the benefit of creditors or admits in writing its inability to pay or fails
to pay its debts as they become due; or (iii) suspends payment of its
obligations or take any action in furtherance of the foregoing; or (iv) consents
to or acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator or other similar official of Borrower, a general partner
of Borrower, for all or any part of the SLF or other assets of such party, or
either; or (v) has filed against it an involuntary petition, arrangement,
composition, readjustment, liquidation dissolution, or an answer proposing an
adjudication of it as a bankruptcy or insolvent, or is subject to reorganization
pursuant to the United States Bankruptcy Code, an action seeking to appoint a
trustee, receiver, custodian, or conservator or liquidator, or any similar law,
federal or state, now or hereinafter in effect, and such action is approved by
any court of competent jurisdiction and the order approving the same shall not
be vacated or stayed within sixty (60) days from entry; or (vi) consents to the
filing of any such petition or answer, or shall fail to deny the material
allegations of the same in a timely manner.
f. Judgments. (1) A final judgment other than a final judgment in connection
with any condemnation, and including any judgment or other final determination
of any contest permitted by the Assignment of Rent, is entered against Borrower,
any Guarantor, or any general partner of Borrower, that (i) adversely affects
the value, use or operation of any SLF, or any portion thereof, in Bank's sole
judgment, or (ii) materially adversely affects, or may materially adversely
affect, the validity, enforceability or priority of the lien or security
interest created by the Loan Document in Bank's sole judgment, or both; or (2)
execution or other final process issues thereon with respect to any SLF, or any
portion thereof, and (3) Borrower or any general partner of Borrower, does not
discharge the same or provide for its discharge in accordance with its terms, or
procure a stay of execution thereon, in any event within thirty (30) days from
entry, or Borrower shall not, within such period or such longer period during
which execution on such judgment shall have been entered, and cause its
execution to be stayed during such appeal, or if on appeal such order, decree or
process shall be affirmed and Borrower shall not discharge such judgment
provided for its discharge in accordance with its terms within sixty (60) days
after the entry of such order or decree or affirmance, or if any stay of
execution on appeal is released or otherwise discharged.
g. Liens. Any federal, state or local tax lien or any claim of lien for labor or
materials in an amount in excess of $100,000.00 or any other lien or
encumbrances of any nature whatsoever is recorded against Borrower or any SLF,
or any part thereof, and is not removed by payment or transferred to substitute
security in the manner provided by law, within thirty (30) days after it is
recorded in accordance with applicable law, or is not contested by Borrower in
the manner permitted by loan Documents.
h. Leases. Borrower's default in the performance of its obligations as lessor
under any lease of all or any portion of the SLF, including the Primary Lease,
which default could result, in Bank's sole judgment, in the termination of said
lease provided such default is not cured by Borrower within thirty (30) days
after receipt of written notice from Bank.
i. Other Notes or Mortgages. Borrower's default in the performance or payment of
Borrowers obligations under any other note or under any mortgage encumbering all
or any part of the SLF, if the other mortgage is permitted by the Bank, whether
such other note or mortgage is held by Bank or by any other party, provided such
default is not cured by Borrower within thirty (30) days after receipt of
written notice from the Bank.
j. Borrower Default Under Loan Documents. Borrower's default in the payment or
performance of any of Borrowers obligations under any of the Loan Documents
pertaining to any Loan, including this Master Loan Agreement and any amendments,
riders or Loan Summaries attached hereto, provided such default is not cured by
Borrower within thirty (30) days of receipt of written notice from Bank,
excepting, however, if this thirty (30) day period should conflict with any
other notice and opportunity to cure provision contained in the Loan Documents.
k. Borrower's Continued Existence. Borrower shall cease to exist or to be
qualified to do or transact business in the state in which the SLF is located or
shall be dissolved or shall be a party to a merger or consolidation, or shall
sell all or substantially all of its assets without providing thirty (30) days
written notice to the Bank in the event of any voluntary dissolution, mergers or
consolidations or after thirty (30) days written notice from Bank in the event
of involuntary merger, dissolution or consolidation.
l. Stock in Borrower/Change in Partners. If any legal or beneficial interest,
including, but not limited to, shares of stock of Borrower are issued, sold
transferred, conveyed, assigned, mortgaged, pledged, or otherwise disposed of so
as to result in change of control of Borrower, whether voluntarily or by
operation of law, other than a sale by CNL Health Care Partners, LP of limited
partnership interests in itself and whether with or without consideration, or
any agreement for any of the foregoing is entered into; or, of any general
partnership interest or other equity interest in Borrower is sold, transferred,
assigned, conveyed, mortgaged, pledged, or otherwise disposed of, whether
voluntarily or by operation of law, and whether with or without consideration,
or any agreement for any of the foregoing is entered into, or any general
partner of Borrower withdraws from the partnership; unless otherwise permitted
or approved by the Bank.
m. Transfer of Property or Ownership. Any sale, conveyance, transfer,
assignment, or other disposition of all or any part of any SLF.
n. False Statement. Any statement or representation of Borrower contained in the
loan application or any financial statements or other materials furnished to
Bank or any other lender prior or subsequent to the making of the Loan secured
hereby are discovered to have been false or incorrect or incomplete, which
statement or representation is not made accurate within thirty (30) days of
receipt of written notice from Bank.
o. Default Under Indemnity. Borrower shall default under any obligation imposed
by any indemnity whether contained within any of the Loan Documents, (including,
without limitation, the Hazardous Substance Certificate and Indemnification
Agreement), or otherwise, which default is not cured by Borrower within thirty
(30) days of receipt of written notice from Bank.
p. Cross Default. Any default by Borrower under any other documents or
instruments evidencing any other loans by Bank to Borrower (or any one if more
than one Borrower) or in any mortgages or other collateral documents securing
such loans, which default is not cured by Borrower within thirty (30) days of
receipt of written notice from Bank.
q. Non-Compliance with the Plans and Specifications. Failure of any of the
Improvements to comply with the requirements of any Governmental authority
unless Borrower, after thirty (30) days notice, undertakes and diligently
pursues the correction of such failure.
r. Non-Payment of Debts. Borrower is generally not paying its debts as such
debts become due, provided such debts are not paid and evidence of such payment
provided to Bank within thirty (30) days of receipt of written notice from Bank.
s. Securities Laws Violation. The assertion of any violation by Borrower of the
1933 Securities Act, 1934 Securities Act or the Blue Sky Laws by any
Governmental-Authorities or the institution of any securities litigation not
dismissed within sixty (60) days of the commencement of same.
t. Miscellaneous. If at any time Bank shall determine that there has been a
material adverse change in the financial condition or prospect of Borrower,
provided such change is not cured by Borrower to Bank's reasonable satisfaction
within sixty (60) days of receipt of written notice from Bank.
u. Cure. To the extent the Borrower needs additional time to cure any
non-monetary default and Borrower is diligently pursuing said cure, Borrower
shall have reasonable time to complete said cure.
ARTICLE VIII
Bank's Rights and Remedies
The following rights and remedies are available to Bank as to all
Loans then outstanding and any SLFs pertaining thereto:
8.1 Acceleration. Upon the occurrence of a Default, the entire unpaid principal
balance of the Note in Default and all accrued but unpaid interest thereon and
any costs or expenses then due to Bank and any and all other obligations of
Borrower to Bank, shall, at the option of Bank and without notice to Borrower,
become immediately due and payable and, Bank shall have no further obligation to
make any advance, disbursement or Loan under this Master Loan Agreement.
8.2 Remedies. Upon the occurrence of a Default, Bank may avail itself of any and
all rights and remedies available at law or in equity or as provided under this
Master Loan Agreement or any of the other Loan Documents.
8.3 Action to Protect Bank's Interest and Granting Mortgage. From and after the
occurrence of a Default, the Bank shall be entitled to pursue any and all
remedies provided in the Loan Documents to protect the Bank's interest. In
addition to all remedies of Bank provided in this Agreement and in the Loan
Documents, upon a Default Borrower shall, within twenty (20) days of receiving
notice, execute a Mortgage securing the Note in Default with a first lien upon
the respective SLF. Such Mortgage shall be upon terms as set forth in Exhibit
"A" attached hereto. In the event Borrower fails or refuses to execute any of
said Mortgages, Borrower does hereby irrevocably appoint and grant to the Bank
power of attorney for Borrower to act for Borrower in regard to the Bank's
request including the right to execute any and all such Mortgages and documents
relating thereto, to record the same upon the public records and to do all
things necessary to create a first mortgage lien upon each respective SLF.
Borrower shall be responsible for all cost and expenses related to such
Mortgages including but not limited to recording, documentary, or other taxes,
and a mortgage title insurance policy insuring Bank's mortgage.
8.4 Special Remedy. In the event the Primary Lease shall be terminated for any
reason whatsoever, in addition to all other remedies available to Bank under the
Loan Documents, Borrower shall, within twenty (20) days of receiving notice from
Bank, execute a Mortgage securing the Note with respect to such SLF for which
the Primary Lease has terminated unless Borrower has provided the Lender a new
Primary Lease upon substantially similar terms as exist at the time of making
the Loan for such SLF and meeting the requirements of this Master Loan Agreement
(hereinafter a "Qualified Lease"), in the reasonable judgment of Bank. Such
Mortgage shall be upon terms as set forth in Exhibit "A" attached hereto. In the
event Borrower fails or refuses to execute said Mortgage(s), Borrower does
hereby irrevocably appoint and grant to the Bank power of attorney for Borrower
to act for Borrower in regard to the Bank's request including the right to
execute any such Mortgage(s) and documents relating thereto, to record the same
upon the public records and to do all things necessary to create a first
mortgage lien upon said SLF(s). Borrower shall be responsible for all cost and
expenses related to such Mortgage(s) including but not limited to recording,
documentary, or other taxes, and a mortgage title insurance policy insuring
Bank's mortgage. Bank agrees to release the lien created by any Mortgage made
pursuant to this Section 8.4 if Borrower is not in Default and Borrower has or
subsequently obtains a Qualified Lease.
8.5 Remedies Cumulative; Nonwaiver. All remedies of Bank provided for herein or
in the other Loan Documents for any Loan are cumulative and shall be in addition
to any and all other rights and remedies provided for or available under the
other Loan Documents, at law or in equity. The exercise of any right or remedy
by Bank hereunder shall not in any way constitute a cure or waiver of a Default
Condition or a Default hereunder or under the Loan Documents, or All remedies of
Bank provided for herein or in the other Loan Documents for any Loan are
cumulative and shall be in addition to any and all other rights and remedies
provided for or available under the other Loan Documents, at law or in equity.
The exercise of any right or remedy by Bank hereunder shall not in any way
constitute a cure or waiver of a Default Condition or a Default hereunder or
under the Loan Documents, or
8.6 Remedies Cumulative; Nonwaiver. All remedies of Bank provided for herein or
in the other Loan Documents for any Loan are cumulative and shall be in addition
to any and all other rights and remedies provided for or available under the
other Loan Documents, at law or in equity. The exercise of any right or remedy
by Bank hereunder shall not in any way constitute a cure or waiver of a Default
Condition or a Default hereunder or under the Loan Documents, or invalidate an
act done pursuant to any notice of the occurrence of a Default Condition or a
Default hereunder or under the Loan Documents, or invalidate any act done
pursuant to any notice of the occurrence of a Default Condition or Default, or
prejudice Bank in the exercise of said rights, Bank realizes all amounts owed to
it under the Loan Documents.
8.7 No Liability of Bank. Whether or not Bank elects to employ any or all
remedies available to it in the event of an occurrence of a Default Condition or
Default, Bank shall not be liable for the construction of or failure to
construct or complete or protect the Improvements or for payment of any expense
incurred in connection with the exercise or any remedy available to Bank or for
the construction or Completion of the Improvements or for the performance or
nonperformance of any other obligation of Borrower.
8.8 Security Interest. It is understood and agreed that Bank shall have and
enjoy and is hereby granted a lien on, and a security interest in, all real and
personal property and fixtures described in the Security Agreement and
Assignment of Leases and Rents, and including without limitation, any and all
materials of Borrower (stored on-site or off-site) reserves, deferred payments,
deposits or advance payments for materials (stored on-site or off-site)
undisbursed Loan proceeds, insurance refunds, impound accounts, refunds for
overpayment of any kind, and such lien and security interest shall constitute
additional security for the debt of Borrower under the Loan Documents (including
but not limited to the FF&E Account), and Bank shall have and possess any and
all rights and remedies of a secured party provided by law with respect to
enforcement of and recovery on its security interest on such items and amounts.
In the event of a conflict between this paragraph and any security interest
granted pursuant to the Assignment of Leases and Rents, the terms and provisions
contained in the Assignment of Leases and Rents shall control.
ARTICLE IX
General Conditions
The following conditions shall be applicable throughout the term of
this Master Loan Agreement:
9.1 Loan Summary. For any Loan made pursuant to this Master Loan Agreement to be
effective, Borrower must complete and execute the Loan Summary pertaining
thereto and the same must be accepted by Bank in its sole discretion and
executed by the Bank, and Borrower must comply with all the applicable terms and
conditions hereof including, without limitation, the execution and delivery of
the Loan Documents which pertain to the Loan.
9.2 Waivers. No waiver of any Default Condition or Default or breach by Borrower
hereunder shall be implied from any delay or omissions by Bank to take action on
account of such Default Condition or Default, and no express waiver shall affect
any Default Condition or Default other than the Default specified in the waiver
and it shall be operative only for the time and to the extent therein stated.
Waivers or any covenants, terms or conditions contained herein must be in
writing and shall not be construed as a waiver of any subsequent breach of the
same covenant, term or condition. The consent or approval by Bank to or of any
act by Borrower requiring further consent or approval shall not be deemed to
waive or render unnecessary the consent or approval to or of any subsequent or
similar act. No single or partial exercise of any right or remedy of Bank
hereunder shall preclude any further exercise thereof or the exercise of any
other or different right or remedy.
9.3 Benefit. This Master Loan Agreement is made and entered into for the sole
protection and benefit of Bank and Borrower, their successors and assigns, and
no other person or persons have any right to action hereon or rights to the Loan
all proceeds at any time, nor shall Bank owe any duty whatsoever to any claimant
for labor or services performed or material furnished in connection with the
SLF, or to apply any undisbursed portion of the Loan to the payment of any such
claim, or to exercise any right or power of Bank hereunder or arising from any
Default Condition or Default by Borrower.
9.4 Assignment. The terms hereof shall be binding upon and inure to the benefit
of the heirs, successors, assigns, and personal representatives of the parties
hereto; provided, however, that Borrower shall not assign this Master Loan
Agreement or any of its rights, interests, duties or obligations hereunder or
any Loan proceeds or other moneys to be advanced hereunder in whole or in part
without the prior written consent of Bank and that any such assignment (whether
voluntary or by operation of law) without said consent shall be void. It is
expressly recognized and agreed that Bank may assign this Master Loan Agreement,
the Agreement Not to Encumber, the Assignment of Leases and Rents and any other
Loan Documents in whole or in part, to any other person, firm, or legal entity
provided that all of the provisions hereof shall continue in full force and
effect and, in the event of such assignment, Bank shall thereafter be relieved
of all liability under the Loan Documents arising from and after the date of
such assignment and any Loan disbursements made by any assignee shall be deemed
made in pursuant and not in modification hereof and shall be secured by the
Assignment of Leases and Rents and any other Loan Documents.
9.5 Amendments. This Master Loan Agreement shall not be amended except by a
written instrument signed by all parties hereto.
9.6 Terms. Whenever the context and construction so require, all words used in
the singular number herein shall be deemed to have been used in the plural, and
vice versa, and the masculine gender shall include the feminine and neuter and
the neuter shall include the masculine and feminine.
9.7 Post-Closing Environmental Assessments. In addition to the environmental
report required to be furnished to Bank as a condition precedent to closing,
Bank may, but no more frequently than annually, at Bank's sole option, and at
the Borrower's expense, require an environmental assessment or updated
assessment conforming to Bank's Guidance Document, from a reputable
environmental consultant satisfactory to Bank as to whether the SLF, or any
portion thereof, has been or is presently being used for the handling, storage,
transportation or disposal of hazardous or toxic materials. If such report
indicates such past, or present use, handling, storage, transportation or
disposal of hazardous or toxic materials, such shall be deemed to constitute a
default by the Borrower under the Loan Documents.
9.8 Cross Default/Cross Collateral. A default hereunder or under any of the
documents evidencing or securing a Loan shall constitute an event of default
under any other Loan of Borrower to Bank. Any default under any document
evidencing or securing such other indebtedness shall constitute a default
hereunder.
9.9 Anti-Coercion Notice. The insurance laws of the State of Florida provide
that Bank may not require Borrower to take insurance through any particular
insurance agent or company to insure the Land or Improvements. Borrower, subject
to the rules adopted by the Florida Insurance Commissions, has the right to have
insurance placed with an insurance agent or company of Borrower's choice,
provided the company meets Bank's requirements. Bank has the right to designate
reasonable financial requirements as to the company and the adequacy of the
insurance coverage. Borrower shall also execute any documents required by
similar laws of any other state which may be applicable.
9.10 Entire Agreement. This Master Loan Agreement, when accepted, shall
constitute the entire agreement between Borrower and Bank, and it may not be
altered or amended unless agreed to in writing by Bank and Borrower.
9.11 Indemnification. Borrower shall indemnify and hold Bank and its directors,
officers, agent, employees, and attorneys harmless from all liability, loss
expense or damage of any kind or nature, including, without limitation, any
suits, proceedings, claims, demands, or damages (including attorney's fees and
costs paid or incurred in connection therewith at both trial and appellate
levels), incurred or arising by reason of:
a. This Master Loan Agreement or the making of a Loan (except for liability,
loss, expense, or damage arising from the willful misconduct of Bank);
b. Any claim or action for the payment of any brokerage commissions or fees
which may be claimed to be payable in connection with this Master Loan
Agreement; and
c. The past, present or future handling, storage, transportation, or disposal
of hazardous substances upon the SLF, or any portion thereof.
These indemnifications shall survive the full payment and performance
of the obligations of the Borrower under the Loan Documents.
9.12 Choice of Law. The Loans, and all documents executed in connection
therewith shall be governed by and construed in accordance with Florida law
except with respect to the enforcement of the Assignment of Leases and Rents,
the Security Agreement, the Financing Statements and the Agreement Not To
Encumber, which shall be governed by the laws of the State where the SLF is
located, and Borrower shall execute such instruments necessary in connection
therewith.
9.13 Controlling Agreement. The parties intend to conform strictly to the
applicable usury laws. All agreements between Bank and Borrower (or any other
party liable with respect to any indebtedness under the Loan Documents) are
hereby limited by the provision of this paragraph which shall override and
control all such agreements, whether now existing or hereafter arising and
whether written or oral. In no way, nor in any event or contingency (including
but not limited to prepayment default, demand for payment or acceleration of the
maturity of any obligation), shall the interest contracted for, charged or
received under this Master Loan Agreement or otherwise exceed the maximum amount
permissible under applicable law. If, from any possible construction of any
document interest would otherwise be payable to bank in excess of the maximum
lawful amount any such construction shall be subject to the provisions of this
paragraph and such document shall be automatically reformed and the interest
payable to Bank shall be automatically reduced to the maximum amount permitted
under applicable law, without the necessity of execution of any amendment or new
document. If Bank shall ever receive anything of value which is characterized as
interest under applicable law and which would apart from this provisions be in
excess of the maximum lawful amount, an amount equal to the amount which would
have been excessive interest shall be applied to the reduction of the principal
amount owing in the inverse order of its maturity and to the payment of
interest, or refunded to Borrower if and to the extent such amount which would
have been excessive exceeds unpaid principal. The right to accelerate maturity
of any indebtedness does not include the right to accelerate any interest which
has not otherwise accrued on the date of such acceleration, and Bank does not
intend to charge or receive any unearned interest in the event of acceleration.
All interest paid or agreed to be paid to Bank shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full
stated term (including any renewal or extension) of such indebtedness so that
the amount of interest on account of such indebtedness does not exceed the
maximum permitted by applicable law.
9.14 NOTICE TO ALL BORROWERS AND OTHER OBLIGORS, FINAL AGREEMENT. The following
notice is incorporated in this Master Loan Agreement; and such of the Loan
Documents as Bank may specify and shall contain such notice in solid capital
letters;
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
9.15 Savings Clause. Invalidation of any one or more of the provisions of this
Master Loan Agreement shall in no way affect any of the other provisions hereof,
which shall remain in full force and effect.
9.16 Execution in Counterparts. This Master Loan Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same instrument, and in making proof
of this Master Loan Agreement, it shall not be necessary to produce or account
for more than one such counterpart.
9.17 Captions. The captions herein are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of this
Master Loan Agreement nor the intent of any provisions hereof.
9.18 Notices. Each notice, request, demand, director or other communication
provided for hereunder shall be in writing and mailed (by registered or
certified mail, return receipt requested), delivered by hand, or sent by
facsimile (with receipt confirmed by facsimile) to Borrower or Bank at the
addresses indicated herein. Notices and other communications mailed shall be
deemed given three (3) days after being mailed; those sent by facsimile shall be
deemed given when sent, and those delivered by hand or reputable overnight
courier shall be deemed given when delivered. To the greatest extent permitted
under applicable law, Borrower waives all notice and demand in connection with
or relating to this Agreement. Borrower agrees that in any instance in which
reasonable advance notice to Borrower is required by law, such requirement shall
be satisfied if notice is given (deemed given) at least five (5) days in
advance.
9.19 No Commitment. Nothing in this Master Loan Agreement shall be construed or
deemed to be a commitment by Bank to make any future Loan or Loans to Borrower
other than as may be set forth in any Commitment Letter or other agreements as
Borrower and Bank may agree upon.
9.20 WAIVER OF JURY TRIAL. BY ACCEPTANCE HEREOF, BORROWER AGREES THAT NEITHER
BORROWER, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF BORROWER
ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE PARTIES SHALL SEEK A JURY TRIAL
IN ANY LAWSUIT, PROCEEDINGS, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE
BASED UPON OR ARISING OUT OF THIS MASTER LOAN AGREEMENT OR ANY INSTRUMENT
EVIDENCING, SECURING, OR RELATING TO THE INDEBTEDNESS AND OTHER OBLIGATIONS
EVIDENCE HEREBY, ANY RELATED AGREEMENT OR INSTRUMENT, ANY OTHER COLLATERAL FOR
THE INDEBTEDNESS EVIDENCE HEREBY OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR
AMONG THE PARTIES, OR ANY OF THEM. NONE OF THE PARTIES WILL 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 WAIVED. THE PROVISIONS OF THIS SECTION HAVE BEEN
FULLY NEGOTIATED BY THE PARTIES WITH BANK, AND THESE PROVISIONS SHALL BE SUBJECT
TO NO EXCEPTIONS. BANK HAS IN NO WAY AGREED WITH OR REPRESENTED TO ANY OF THE
PARTIES THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
9.21 Joint and Several. If there is more than one entity executing as Borrower
under this Master Loan Agreement, each and every entity executing this Master
Loan Agreement on behalf of Borrower shall be joint and severally liable for all
debts and obligations and this Master Loan Agreement.
IN WITNESS WHEREOF, Borrower and Bank have executed this Master Loan
Agreement as of the above written date by their duly authorized respective
officers.
WITNESSES: BORROWER:
CNL HEALTH CARE
PROPERTIES, INC., a Maryland
corporation
/s/ Xxxxxx X. Xxxxxx
Print Name: Xxxxxx X. Xxxxxx
By: /s/ Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxxxx
Print Name: Xxxxxx Xxxxxx Title: Executive Vice President and
Chief Operating Officer
CNL HEALTH CARE
PARTNERS, LP, a Delaware
Limited partnership
By: CNL Health Care GP Corp.,
a Delaware corporation, general
partner
/s/ Xxxxxx X. Xxxxxx
Print Name: Xxxxxx X. Xxxxxx
By: /s/ Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxxxx
Print Name: Xxxxxx Xxxxxx Title: Executive Vice President and
Chief Operating Officer
