CREDIT AND SECURITY AGREEMENT dated as of February 28, 2006 among CYPRESS ARLINGTON, LP and CYPRESS LEAWOOD, LLC collectively, as Borrowers and MERRILL LYNCH CAPITAL, a Division of Merrill Lynch Business Financial Services Inc., as Administrative...
EXHIBIT
10.2
Β
Β
dated
as of FebruaryΒ 28, 2006
Β
among
Β
CYPRESS
ARLINGTON, LP and CYPRESS LEAWOOD, LLC
Β
collectively,
as Borrowers
Β
and
Β
XXXXXXX
XXXXX CAPITAL,
Β
a
Division of Xxxxxxx Xxxxx Business Financial Services
Inc.,
Β
as
Administrative Agent and as a Lender
Β
and
Β
THE
ADDITIONAL LENDERS
Β
FROM
TIME TO TIME PARTY HERETO
Β
Β
Β
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Β
Β
THIS
CREDIT
AND SECURITY AGREEMENT
is dated
as of FebruaryΒ 28, 2006 by and among CYPRESS
LEAWOOD, LLC,Β a
Delaware limited liability company, CYPRESS
ARLINGTON, LP,Β a
Delaware limited partnership (each, individually as a Borrower, and
collectively, as Borrowers), the financial institutions or other entities
from
time to time parties hereto, each as a Lender, and XXXXXXX
XXXXX CAPITAL, a division of Xxxxxxx Xxxxx Business Financial Services
Inc.,
individually as a Lender and as Administrative Agent.
Β
RECITALS:
Β
R-1.Β Borrowers
have requested that Lenders make available to Borrowers term financing
facilities as described herein.
Β
R-2.Β Lenders
are willing to extend such credit to Borrowers under the terms and conditions
herein set forth.
Β
NOW,
THEREFORE,
in
consideration of the premises and the agreements, provisions and covenants
herein contained, Borrowers, Lenders and Administrative Agent agree as
follows:
Β
DEFINITIONS
Β
Β
The
following terms have the following meanings:
Β
"Account"
means
"account", as defined in Article 9 of the UCC.
Β
"Additional
Titled Agents"
has the
meaning given in Section
13.15.
Β
"Administrative
Agent"Β means
Xxxxxxx Xxxxx, in its capacity as administrative agent for the Lenders
hereunder, as such capacity is established in, and subject to the provisions
of,
Article 10, and the successors of Xxxxxxx Xxxxx in such capacity.
Β
"Affected
Lender"
has the
meaning given in Section
13.17(f).
Β
"Affiliate"Β means
with respect to any Person (a)Β any Person that directly or indirectly
controls such Person, (b)Β any Person which is controlled by or is under
common control with such controlling Person, and (c)Β each of such Person's
(other than, with respect to any Lender, any Lender's)Β officers or
directors (or Persons functioning in substantially similar roles)Β and the
spouses, parents, descendants and siblings of such officers, directors or
other
Persons. As used in this definition, the term "control"Β of
a
Person means the possession, directly or indirectly, of the power to vote
five
percent (5%)Β or more of any class of voting securities of such Person or to
direct or cause the direction of the management or
Β
policies
of a Person, whether through the ownership of voting securities, by contract
or
otherwise.
Β
"Affiliated
Financing Documents"
means
any credit, loan, letter of credit or related documents which are, by their
terms and by the terms of this Agreement, cross-defaulted with the Financing
Documents, and for which a Credit Party hereunder is liable or contingently
liable for payment or as security for which a Credit Party hereunder has
pledged, assigned or subjected any assets.
Β
"Agreement"Β means
this Credit and Security Agreement, as the same may be amended, supplemented,
restated or otherwise modified from time to time.
Β
"Allocable
Amount"
has the
meaning given in Section
15.1(g).
Β
"Anti-Terrorism
Laws"Β means
any
Laws relating to terrorism or money laundering, including Executive Order
No.Β 13224 (effective SeptemberΒ 24, 2001), the USA PATRIOT Act, the
Laws comprising or implementing the Bank Secrecy Act, and the Laws administered
by OFAC.
Β
"Asset
Disposition"Β means
any
sale, lease, license, transfer, assignment or other consensual disposition
by
any Borrower of any asset, but excluding dispositions of Inventory in the
Ordinary Course of Business.
Β
"Assignment
Agreement"
means
an agreement substantially in the form of ExhibitΒ A
hereto.Β
Β
"ARC"
means
American Retirement Corporation, a Tennessee corporation.
Β
"Bankruptcy
Code"Β means
Title 11 of the United States Code entitled "Bankruptcy", as the same may
be
amended, modified or supplemented from time to time, and any successor statute
thereto.
Β
"Base
Rate"Β means
a
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%)Β equal to (a)Β the rate of interest which is identified and normally
published by Bloomberg Professional Service PageΒ BBAM 1 as the offered rate
for loans in United States dollars for the period of one (1)Β month under
the caption British Bankers Association LIBOR Rates as of 11:00Β a.m.
(London time)Β as adjusted on a daily basis and effective on the second full
Business Day after each such day (unless such date is not a Business Day,
in
which event the next succeeding Business Day will be used); divided
by
(b)Β the sum of one minus
the
daily average during the preceding month of the aggregate maximum reserve
requirement (expressed as a decimal)Β then imposed under Regulation D of the
Board of Governors of the Federal Reserve System (or any successor
thereto)Β for "Eurocurrency Liabilities" (as defined therein). If Bloomberg
Professional Service (or another nationally-recognized rate reporting source
acceptable to Administrative Agent)Β no longer reports the LIBOR or
Administrative Agent determines in good faith that the rate so reported no
longer accurately reflects the rate available to Administrative Agent in
the
London Interbank Market or if such index no longer exists or if PageΒ BBAM 1
no longer
Β
exists
or
accurately reflects the rate available to Administrative Agent in the London
Interbank Market, Administrative Agent may select a replacement index or
replacement page, as the case may be.
Β
"Base
Rate Margin"Β means
two
and one tenth percent (2.10%).
Β
"Blocked
Person"
means
any Person: (a)Β listed in the annex to, or is otherwise subject to the
provisions of, Executive Order No.Β 13224, (b)Β a Person owned or
controlled by, or acting for or on behalf of, any Person that is listed in
the
annex to, or is otherwise subject to the provisions of, Executive Order
No.Β 13224, (c)Β a Person with which any Lender is prohibited from
dealing or otherwise engaging in any transaction by any Anti-Terrorism Law,
(d)Β a Person that commits, threatens or conspires to commit or supports
"terrorism" as defined in Executive Order No.Β 13224, or (e)Β a Person
that is named a "specially designated national" or "blocked person" on the
most
current list published by OFAC or other similar list.
Β
"Borrower"
and
"Borrowers"
mean
the entities described in the first paragraph of this Agreement and each
of
their respective successors and permitted assigns.
Β
"Borrower
Representative"
means
ARC, in its capacity as Borrower Representative pursuant to the provisions
of
SectionΒ 2.11,
or any
successor Borrower Representative selected by Borrowers and approved by
Agent.
Β
"Business
Day"
means
any day except a Saturday, Sunday or other day on which either the New York
Stock Exchange is closed, or on which commercial banks in Chicago and New
York
City are authorized by law to close.
Β
"Capital
Lease"
of any
Person means any lease of any property by such Person as lessee which would,
in
accordance with GAAP, be required to be accounted for as a capital lease
on the
balance sheet of such Person.
Β
"Capital
Replacement Reserve"
has the
meaning given in Section
2.5(d).
Β
"Casualty
Proceeds"
has the
meaning given in Section
9.3(b).
Β
"CCP"
has the
meaning given in Section
8.4b(xi).
Β
"CERCLA"
means
the Comprehensive Environmental Response, Compensation and Liability Act
of
1980, 42 U.S.C.A. § 9601 et
seq.,
as the
same may be amended from time to time.
Β
"Closed
Period"Β means
the
period from the Closing Date through the twelfth (12th)Β full
calendar month following the Closing Date.
Β
"Closing
Date"
means
the date of this Agreement.
Β
"CMS"
means
the federal Centers for Medicare and Medicaid Services (formerly the federal
Health Care Financing Administration), or any successor Governmental
Authority.
Β
"CNL"
means
CNL Financial Group, Inc., a Florida corporation.
Β
"Code"
means
the Internal Revenue Code of 1986.
Β
"Collateral"
means
all property, now existing or hereafter acquired, mortgaged or pledged to,
or
purported to be subjected to a Lien in favor of, Administrative Agent, for
the
benefit of Administrative Agent and Lenders, pursuant to this Agreement and
the
Security Documents.
Β
"Commitment
Annex"
means
Annex
A
to this
Agreement.
Β
"Commitment
Expiry Date"
means
FebruaryΒ 28, 2009.
Β
"Compliance
Certificate"
means a
certificate, duly executed by a Responsible Officer of Borrower Representative,
appropriately completed and substantially in the form of Exhibit
C
hereto.
Β
"CON"Β means
any
certificate of need or similar license which determines that there is a need
for
a healthcare facility at a particular location or within a certain geographic
region and entitles the holder to use a Licensed Location for a purpose
permitted under Healthcare Laws.
Β
"Contingent
Obligation"
means,
with respect to any Person, any direct or indirect liability of such Person:
(a)Β with respect to any debt, lease, dividend or other obligation of
another Person (a "Third
Party Obligation")Β if
the purpose or intent of such Person incurring such liability, or the effect
thereof, is to provide assurance to the obligee of such Third Party Obligation
that such Third Party Obligation will be paid or discharged, or that any
agreement relating thereto will be complied with, or that any holder of such
Third Party Obligation will be protected, in whole or in part, against loss
with
respect thereto; (b)Β with respect to any undrawn portion of any letter of
credit issued for the account of such Person or as to which such Person is
otherwise liable for the reimbursement of any drawing; (c)Β under any Swap
Contract or other derivative obligation; (d)Β to make take-or-pay or similar
payments if required regardless of nonperformance by any other party or parties
to an agreement; or (e)Β for any obligations of another Person pursuant to
any Guarantee or pursuant to any agreement to purchase, repurchase or otherwise
acquire any obligation or any property constituting security therefor, to
provide funds for the payment or discharge of such obligation or to preserve
the
solvency, financial condition or level of income of another Person. The amount
of any Contingent Obligation shall be equal to the amount of the obligation
so
Guaranteed or otherwise supported or, if not a fixed and determinable amount,
the maximum amount so Guaranteed or otherwise supported.
Β
"Controlled
Group"
means
all members of a group of corporations and all members of a group of trades
or
businesses (whether or not incorporated)Β under common
Β
control
which, together with any Borrower, are treated as a single employer under
SectionΒ 414(b), (c), (m)Β or (o)Β of the Code or Section
4001(b)Β of ERISA.
Β
"Covenant
Prepayment"
has the
meaning given in Section
6.7.
Β
"Credit
Exposure"
means
any period of time during which any Loan or other Obligation remains unpaid
or
outstanding; provided,
however,
that no
Credit Exposure shall be deemed to exist solely due to the existence of
contingent indemnification liability (other than liability in respect of
the
Affiliated Financing Documents), absent the assertion of a claim with respect
thereto.
Β
"Credit
Party"
means
subject to Section
1.6,
any
Guarantor under a Financing Document Guarantee, Cypress JV, General Partner,
each Borrower and any Subsidiary of any Borrower, whether now existing or
hereafter acquired or formed; and "Credit
Parties"
means
all such Persons, collectively.
Β
"Cypress
JV"
means
Cypress Arlington and Leawood JV, LLC, a Delaware limited liability company,
the
sole member or limited partner, as applicable, of such Borrower.
Β
"Debt"
of a
Person means at any date, without duplication, (a)Β all obligations of such
Person for borrowed money, (b)Β all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (c)Β all obligations
of such Person to pay the deferred purchase price of property or services,
except trade accounts payable arising and paid on a timely basis and in the
Ordinary Course of Business, (d)Β all Capital Leases of such Person,
(e)Β all non-contingent obligations of such Person to reimburse any bank or
other Person in respect of amounts paid under a letter of credit, banker's
acceptance or similar instrument, (f)Β all equity securities of such Person
subject to repurchase or redemption otherwise than at the sole option of
such
Person, (g)Β all obligations secured by a Lien on any asset of such Person,
whether or not such obligation is otherwise an obligation of such Person,
(h)Β "earnouts", purchase price adjustments, profit sharing arrangements,
deferred purchase money amounts and similar payment obligations or continuing
obligations of any nature of such Person arising out of purchase and sale
contracts; (i)Β all Debt of others Guaranteed by such Person;
(j)Β off-balance sheet liabilities and/or pension plan liabilities;
(k)Β obligations arising under non-compete agreements; and
(l)Β obligations arising under bonus, deferred compensation, incentive
compensation or similar arrangements, other than those arising in the Ordinary
Course of Business.
Β
"Debt
Service"
has the
meaning given in Section
6.1(a).
Β
"Debt
Service Coverage Ratio"
has the
meaning given in Section
6.1(a).
Β
"Debt
Yield Ratio"
has the
meaning given in Section
6.1(a).
Β
"Default"
means
any condition or event which with the giving of notice or lapse of time or
both
would, unless cured or waived, become an Event of Default.
Β
"Default
Rate"
has the
meaning given in Section 11.4.
Β
"Eligible
Swap Counterparty"
means
Administrative Agent or any Affiliate of Administrative Agent that from time
to
time enters into a Swap Contract with a Borrower or Borrowers.
Β
"Environmental
Laws"
means
any present and future federal, state and local laws, statutes, ordinances,
rules, regulations, standards, policies and other governmental directives
or
requirements, as well as common law, pertaining to the environment, natural
resources, pollution, health (including any environmental clean up statutes
and
all regulations adopted by any local, state, federal or other Governmental
Authority, and any statute, ordinance, code, order, decree, law rule or
regulation all of which pertain to or impose liability or standards of conduct
concerning medical waste or medical products, equipment or supplies), safety
or
clean-up that apply to any Borrower or the Project and relate to Hazardous
Materials, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601
et
seq.),
the
Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901
et
seq.),
the
Federal Water Pollution Control Act (33 U.S.C. § 1251 et
seq.),
the
Hazardous Materials Transportation Act (49 U.S.C. § 5101 et
seq.),
the
Clean Air Act (42 U.S.C. § 7401 et
seq.),
the
Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136
et
seq.),
the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001
et
seq.),
the
Occupational Safety and Health Act (29 U.S.C. § 651 et
seq.),
the
Residential Lead-Based Paint Hazard Reduction Act (42 U.S.C. § 4851
et
seq.),
any
analogous state or local laws, any amendments thereto, and the regulations
promulgated pursuant to said laws, together with all amendments from time
to
time to any of the foregoing and judicial interpretations thereof.
Β
"Environmental
Liens"
means
all Liens and other encumbrances imposed pursuant to any Environmental Law,
whether due to any act or omission of Borrower or any other Person.
Β
"ERISA"
means
the Employee Retirement Income Security Act of 1974, as the same may be amended,
modified or supplemented from time to time, and any successor statute thereto,
and any and all rules or regulations promulgated from time to time
thereunder.
Β
"ERISA
Plan"
means
any "employee benefit plan", as such term is defined in
SectionΒ 3(3)Β of ERISA (other than a Multiemployer Plan), which any
Borrower maintains, sponsors or contributes to, or, in the case of an employee
benefit plan which is subject to Section 412 of the Code or Title IV of ERISA,
to which any Borrower or any member of the Controlled Group may have any
liability, including any liability by reason of having been a substantial
employer within the meaning of Section 4063 of ERISA at any time during the
preceding five (5)Β years, or by reason of being deemed to be a contributing
sponsor under Section 4069 of ERISA.
Β
"Event
of Default"
has the
meaning given in Section
11.1.
Β
"Exit
Fee"
has the
meaning given in Section
2.3(d).
Β
"FF&E"
has the
meaning given in Section
9.2(d).
Β
"Financial
Covenants"
has the
meaning given in Section
6.5.
Β
"Financing
Documents"
means
this Agreement, any Notes, the Security Documents, any fee letter among Xxxxxxx
Xxxxx and any of the Borrowers relating to the transactions contemplated
hereby,
any subordination or intercreditor agreement pursuant to which any Debt (other
than any Subordinated Debt)Β and/or any Liens securing such Debt is
subordinated to all or any portion of the Obligations and all other documents,
instruments and agreements contemplated herein or thereby and heretofore
executed, executed concurrently herewith or executed at any time and from
time
to time hereafter, as any or all of the same may be amended, supplemented,
restated or otherwise modified from time to time, provided that the term
"Financing Documents" does not include the documents evidencing or securing
the
Mezzanine Loan.
Β
"Financing
Document Guarantee"
means
that certain Guaranty of Non-Recourse Carveouts Agreement and that certain
Debt
Service Guaranty, each executed by ARC of even date herewith, as well as
any
agreement that may exist from time to time pursuant to which any third party
other than a Borrower shall Guarantee the Obligations of the Borrowers under
this Agreement and/or the other Financing Documents.
Β
"Fiscal
Year"
means
the fiscal year of Borrowers ending on DecemberΒ 31 of each calendar
year.
Β
"GAAP"
means
generally accepted accounting principles set forth from time to time in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements
of
the Financial Accounting Standards Board (or agencies with similar functions
of
comparable stature and authority within the United States accounting
profession), which are applicable to the circumstances as of the date of
determination.
Β
"General
Partner"
means
Cypress Arlington GP, LLC, a Delaware limited liability company.
Β
"Governmental
Authority"
means
any nation or government, any state or other political subdivision thereof,
and
any agency, department or Person exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and
any
corporation or other Person owned or controlled (through stock or capital
ownership or otherwise)Β by any of the foregoing, whether domestic or
foreign.
Β
"Governmental
Payor"
means
Medicare, Medicaid, TRICARE, and other state or federal health care programs,
but specifically excluding Third Party Payors.
Β
"Guarantee"
by any
Person means any obligation, contingent or otherwise, of such Person directly
or
indirectly guaranteeing any Debt or other obligation of any other
Β
Person
and, without limiting the generality of the foregoing, any obligation, direct
or
indirect, contingent or otherwise, of such Person (a)Β to purchase or pay
(or advance or supply funds for the purchase or payment of)Β such Debt or
other obligation (whether arising by virtue of partnership arrangements,
by
agreement to keep-well, to purchase assets, goods, securities or services,
to
take-or-pay, or to maintain financial statement conditions or otherwise),
or
(b)Β entered into for the purpose of assuring in any other manner the
obligee of such Debt or other obligation of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part), provided,
however, that
the
term Guarantee shall not include endorsements for collection or deposit in
the
Ordinary Course of Business. The term "Guarantee"
used as
a verb has a corresponding meaning.
Β
"Guarantor"
means
ARC and any other Person that has executed or delivered, or shall in the
future
execute or deliver, any Financing Document Guarantee of any portion of the
Obligations.
Β
"Hazardous
Materials"
means
petroleum and petroleum products and compounds containing them, including
gasoline, diesel fuel and oil; explosives, flammable materials; radioactive
materials; polychlorinated biphenyls and compounds containing them; lead
and
lead-based paint; asbestos or asbestos-containing materials; underground
or
above-ground storage tanks, whether empty or containing any substance; any
substance the presence of which on the Project is prohibited by any
Environmental Laws; toxic mold, or any similar substance that requires special
handling due to environmental concerns; and any other material or substance
now
defined as a "hazardous substance," "hazardous material," "hazardous waste,"
"toxic substance," "toxic pollutant," "contaminant," "pollutant" or other
words
of similar import within the meaning of any Environmental Law, including:
(a)Β any "hazardous substance" defined as such in (or for purposes
of)Β CERCLA, or any so-called "superfund" or "superlien" Law; (b)Β any
"pollutant or contaminant" as defined in 42 U.S.C.A. Β§ 9601(33); (c)Β any
material now defined as "hazardous waste" pursuant to 40 C.F.R. Part 260;
(d)Β any petroleum or petroleum by-products, including crude oil or any
fraction thereof; (e)Β natural gas, natural gas liquids, liquefied natural
gas, or synthetic gas usable for fuel; (f)Β any "hazardous chemical" as
defined pursuant to 29 C.F.R. Part 1910; (g)Β any toxic substances, wastes,
materials, pollutants or contaminants (including, without limitation, asbestos,
polychlorinated biphenyls ("PCB's"), flammable explosives, radioactive
materials, infectious substances, materials containing lead-based paint or
raw
materials which include hazardous constituents); and (h)Β any other toxic
substance or contaminant that is subject to any Environmental Laws or other
past
or present requirement of any Governmental Authority.
Β
"Hazardous
Materials Contamination"
means
contamination (whether now existing or hereafter occurring)Β of the
improvements, buildings, facilities, personalty, soil, groundwater, air or
other
elements on or of the relevant property by Hazardous Materials, or any
derivatives thereof, or on or of any other property as a result of Hazardous
Materials, or any derivatives thereof, generated on, emanating from or disposed
of in connection with the relevant property.
Β
"Healthcare
Laws"
means
all applicable Laws relating to the possession, control, warehousing, marketing,
sale and distribution of pharmaceuticals, the operation of medical or senior
housing facilities (such as, but not limited to, nursing homes, skilled nursing
facilities, rehabilitation hospitals, intermediate care facilities and adult
care facilities), patient healthcare, patient healthcare information, patient
abuse, the quality and adequacy of medical care, rate setting, equipment,
personnel, operating policies, fee splitting, including without limitation,
(a)Β all federal and state fraud and abuse laws, including, without
limitation, the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(6)),
the Xxxxx Law (42 U.S.C. § 395n), the civil False Claims Act (31 U.S.C.
§ 729 et
seq.),
(b)Β TRICARE; (c)Β HIPAA, (d)Β Medicare; (e)Β Medicaid;
(f)Β quality, safety and accreditation standards and requirements of all
applicable state laws or regulatory bodies; (g)Β all laws, policies,
procedures, requirements and regulations pursuant to which Healthcare Permits
are issued; and (h)Β any and all other applicable health care laws,
regulations, manual provisions, policies and administrative guidance, each
of
(a)Β through (h)Β as may be amended from time to time.
Β
"Healthcare
Permit"
means a
Permit (a)Β issued or required under Healthcare Laws applicable to the
business of any Borrower or any of its Subsidiaries or necessary in the
possession, ownership, warehousing, marketing, promoting, sale, labeling,
furnishing, distribution or delivery of goods or services by a Borrower or
a
Licensed Operator under Healthcare Laws, and/or (b)Β issued or required
under Healthcare Laws applicable to the ownership of a Licensed
Location.
Β
"HIPAA"
means
the Health Insurance Portability and Accountability Act of 1996, as the same
may
be amended, modified or supplemented from time to time, and any successor
statute thereto, and any and all rules or regulations promulgated from time
to
time thereunder.
Β
"HIPAA
Compliant"
means
that the applicable Person is in compliance in all material respects with
each
of the applicable requirements of the so-called "Administrative Simplification"
provisions of HIPAA, and is not and could not reasonably be expected to become
the subject of any civil or criminal penalty, process, claim, action or
proceeding, or any administrative or other regulatory review, survey, process
or
proceeding (other than routine surveys or reviews conducted by any government
health plan or other accreditation entity)Β that could result in any of the
foregoing or that could reasonably be expected to adversely affect such Person's
business, operations, assets, properties or condition (financial or otherwise),
in connection with any actual or potential violation by such Person of the
provisions of HIPAA.
Β
"Indemnitees"
has the
meaning given in Section
12.2.
Β
"Insurance
Premiums"
has the
meaning given in Section
2.5(c).
Β
"Intercompany
Loans"
has the
meaning given in Section
2.11.
Β
"Inventory"
means
"inventory", as defined in Article 9 of the UCC.
Β
"JCAHO"
means
the Joint Commission on Accreditation of Healthcare Organizations.
Β
"Joint
Liability Payment"
has the
meaning given in Section
15.1(g).
Β
"Laws"
means
any and all federal, state, local and foreign statutes, laws, judicial
decisions, regulations, ordinances, rules, judgments, orders, decrees, codes,
plans, injunctions, permits andΒ governmental
restrictions (whether now or hereafter in effect), which are applicable to
any
Credit Party in any particular circumstance. "Laws"
includes, without limitation, Healthcare Laws.
Β
"Leases"
means
the singular or collective reference to leases, subleases or other arrangements
for occupancy of space within any Project or any part thereof now existing
or
hereafter executed; provided,
however,
that
the term "Leases"
as used
herein shall not
include
Resident Agreements; and provided,
further,
that
use of the term "Leases"
in any
Security Document shall
include
Resident Agreements even if Resident Agreements are, under applicable Laws,
not
governed as creating a landlord-tenant relationship (the intent being that
Administrative Agent shall have, as part of the Security Documents, a lien
upon
and collateral assignment of all Leases and Resident Agreements).
Β
"Lender"
means
each of (a)Β Xxxxxxx Xxxxx, (b)Β each other Person party hereto in its
capacity as a lender, (c)Β each other Person that becomes a party hereto as
Lender pursuant to Section
14.6,
and
(d)Β the respective successors of all of the foregoing, and "Lenders"
means
all of the foregoing. In addition to the foregoing, for the purpose of
identifying the Persons entitled to share in the Collateral and the proceeds
thereof under, and in accordance with the provisions of, this Agreement and
the
Security Documents, the term "Lender" shall include each Eligible Swap
Counterparty.
Β
"Licensed
Location"
means
any Project from which a Borrower or a Person with whom a Borrower has
contracted provides or furnishes goods or services governed by Healthcare
Laws,
and includes, without limitation, any business location of a Borrower which
is
subject to any Healthcare Permit.
Β
"Licensed
Operator"
means
the singular or collective (as the context requires)Β reference to the
following Persons: (a)Β any Borrower or any Subsidiary that is licensed
under Healthcare Laws to operate a Licensed Location, or is otherwise providing
or furnishing goods or services governed by Healthcare Laws, or is otherwise
providing or furnishing goods or services (other than the mere leasing of
a
Licensed Location as a lessor and the collection of rentals in connection
therewith)Β from a Licensed Location, (b)Β any Person with whom a
Borrower has contracted to provide such goods or services governed by Healthcare
Laws.
Β
"Lien"
means,
with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind, or any other type of preferential arrangement
that
has the practical effect of creating a security interest, in respect of such
asset. For the purposes of this Agreement and the other Financing Documents,
any
Borrower or any
Β
Subsidiary
shall be deemed to own subject to a Lien any asset which it has acquired
or
holds subject to the interest of a vendor or lessor under any conditional
sale
agreement, Capital Lease or other title retention agreement relating to such
asset.
Β
"Litigation"
means
any action, suit or proceeding before any court, mediator, arbitrator or
Governmental Authority.
Β
"Loan
Account"
has the
meaning given in Section
2.6(b).
Β
"Loan"
or
"Loans"
means
the Term Loan or Term Loans provided for herein.
Β
"Management
Agreement"
has the
meaning given in Section
8.7(b).
Β
"Manager"
has the
meaning given in SectionΒ 8.7(b).
Β
"Material
Adverse Effect"
means,
with respect to any event, act, condition or occurrence of whatever nature
(including any adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), whether singly or in conjunction
with
any other event or events, act or acts, condition or conditions, occurrence
or
occurrences, whether or not related (a)Β a material adverse change in, or a
material adverse effect upon, any of (i)Β the condition (financial or
otherwise), operations, business or properties of the Credit Parties taken
as a
whole, (ii)Β the rights and remedies of Administrative Agent or Lenders
under any Financing Document, or the ability of any Credit Party to perform
any
of its obligations under any Financing Document to which it is a party,
(iii)Β the legality, validity or enforceability of any Financing Document,
(iv)Β the existence, perfection or priority of any security interest granted
in any Financing Document; or (v)Β any Credit Party's or Licensed Operator's
ability to accept, admit and/or retain patients or residents or to own or
operate any Licensed Location, (b)Β an impairment to the likelihood that
revenues in general will be collected and paid in the normal course of a
Licensed Operator's or Borrowers' business and upon the same schedule and
with
the same frequency as such Licensed Operator's or Borrowers' recent collections
history; (c)Β the imposition of a fine against or the creation of any
liability of any Credit Party or Licensed Operator to any Governmental Authority
under any Healthcare Law in excess of $50,000.00; (d)Β a termination,
suspension or material limitation of any Healthcare Permits, (e)Β the
failure to satisfy any demand by any Governmental Authority to comply with
Law
or remediate any condition, or (f)Β termination by any third party of any
third party agreement required for the operation of any Project in the manner
contemplated by this Agreement which agreement is not promptly replaced by
Borrower on terms which are at least as favorable to the applicable Borrower
or
Borrowers in all material respects.
Β
"Material
Contracts"
has the
meaning given in Section
3.17.
Β
"Material
Lease"
means
any Lease other than a Permitted Lease.
Β
"Maximum
Lawful Rate"
has the
meaning given in SectionΒ 2.7(b).
Β
"Medicaid"
means
the medical assistance programs administered by state agencies and approved
by
CMS pursuant to the terms of Title XIX of the Social Security Act, codified
at
42 U.S.C. 1396 et
seq.
Β
"Medicare"
means
the program of health benefits for the aged and disabled administered by
CMS
pursuant to the terms of Title XVIII of the Social Security Act, codified
at 42
U.S.C. 1395 et
seq.
Β
"Xxxxxxx
Xxxxx"
means
Xxxxxxx Xxxxx Capital, a division of Xxxxxxx Xxxxx Business Financial Services
Inc., and its successors.
Β
"Mezzanine
Loan"
means
the loan in the amount of $17,226,000 made by Xxxxxxx Xxxxx to Arlington
&
Leawood Senior Housing LLC, the holder of the 80% membership interest in
Cypress
JV.
Β
"Multiemployer
Plan"
means a
multiemployer plan, that is intended to meet the definition set forth in
Section
4001(a)(3)Β of ERISA, to which any Borrower or any member of the Controlled
Group may have any liability.
Β
"Net
Operating Income"
has the
meaning given in Section
6.1.
Β
"Notes"
means
the Term Note or Term Notes provided for herein.
Β
"Obligations"
means
all obligations, liabilities and indebtedness (monetary (including post-petition
interest, whether or not allowed)Β or otherwise)Β of each Credit Party
under this Agreement or any other Financing Document, in each case howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due. In addition
to,
but without duplication of, the foregoing, the Obligations shall include,
without limitation, all obligations, liabilities and indebtedness arising
from
or in connection with all Swap Contracts entered into with any Eligible Swap
Counterparty.
Β
"OFAC"
means
the U.S. Department of Treasury Office of Foreign Assets Control.
Β
"OFAC
Lists"
means,
collectively, the Specially Designated Nationals and Blocked Persons List
maintained by OFAC pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079
(Sept. 25, 2001)Β and/or any other list of terrorists or other restricted
Persons maintained pursuant to any of the rules and regulations of OFAC or
pursuant to any other applicable Executive Orders.
Β
"Operating
Expenses"
has the
meaning given in Section
6.1a(vi).
Β
"Operating
Lease"
means
any lease of any Licensed Location to an Operating Lessee, and all amendments
thereto and extensions thereof.
Β
"Operating
Lessee"
means
any Person to whom any Borrower or any Subsidiary has leased a Licensed
Location.
Β
"Operating
Revenue"
has the
meaning given in Section
6.1(a).
Β
"Ordinary
Course of Business"
means,
in respect of any transaction involving any Credit Party, the ordinary course
of
such Credit Party's business, as conducted by such Credit Party in accordance
with past practices.
Β
"Organizational
Documents"
means,
with respect to any Person other than a natural person, the documents by
which
such Person was organized (such as a certificate of incorporation, certificate
of limited partnership or articles of organization, and including, without
limitation, any certificates of designation for preferred stock or other
forms
of preferred equity)Β and which relate to the internal governance of such
Person (such as by-laws, a partnership agreement or an operating, limited
liability or members agreement).
Β
"Participation
Agreements"
has the
meaning given in Section
8.4(b)(x).
Β
"Payment
Account"
means
the account specified on the signature pages hereof into which all payments
by
or on behalf of each Borrower to Administrative Agent under the Financing
Documents shall be made, or such other account as Administrative Agent shall
from time to time specify by notice to Borrower Representative.
Β
"Payment
Notification"
means a
written notification substantially in the form of ExhibitΒ D
hereto.
Β
"PBGC"
means
the Pension Benefit Guaranty Corporation and any Person succeeding to any
or all
of its functions under ERISA.
Β
"Pension
Plan"
means
any ERISA Plan that is subject to Section 412 of the Code or Title IV of
ERISA.
Β
"Permits"
means
all governmental licenses, authorizations, provider numbers, supplier numbers,
registrations, permits, certificates, franchises, qualifications,
accreditations, consents and approvals required under all applicable Laws
and
required in order to carry on its business as now conducted, including, without
limitation, Healthcare Permits.
Β
"Permitted
Contest"
means,
with respect to any tax obligation or other obligation allegedly or potentially
owing from any Borrower to any governmental tax authority or other third
party,
a contest maintained in good faith by appropriate proceedings promptly
instituted and diligently conducted and with respect to which such reserve
or
other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made on the books and records and financial statements
of
the applicable Borrower(s); provided,
however,
that
(a)Β compliance with the obligation that is the subject of such contest is
effectively stayed during such challenge; (b)Β Borrowers' title to, and its
right to use, the Collateral is not adversely affected thereby and
Administrative Agent's Lien and priority on
Β
the
Collateral are not adversely affected, altered or impaired thereby;
(c)Β Borrowers have given prior written notice to Administrative Agent of
Borrowers' intent to so contest the obligation; (d)Β in the case of real
estate taxes or assessments or mechanic's, workmen's, materialmen's or other
like Liens, Borrowers have obtained an endorsement, in form and substance
satisfactory to Administrative Agent, to the loan policy of title insurance
issued to Administrative Agent insuring over any Lien created by such
obligation, or Borrowers have deposited with Administrative Agent a bond
or
other security satisfactory to Administrative Agent, in its reasonable
discretion, against loss or injury by reason of such contest or the non-payment
of such obligation or charge (and if such security is cash, Administrative
Agent
may, but shall not be obligated to, deposit the same in an interest-bearing
account and interest accrued thereon, if any, shall be deemed to constitute
a
part of such security for purposes of this Agreement, but Administrative
Agent
(i)Β makes no representation or warranty as to the rate or amount of
interest, if any, which may accrue thereon and shall have no liability in
connection therewith and (ii)Β shall not be deemed to be a trustee or
fiduciary with respect to its receipt of any such security and any such security
may be commingled with other monies of Administrative Agent); (e)Β the
Collateral or any part thereof or any interest therein shall not be in any
danger of being sold, forfeited or lost by reason of such contest by Borrowers;
(f)Β Borrowers have given Administrative Agent notice of the commencement of
such contest and upon request by Administrative Agent, from time to time,
notice
of the status of such contest by Borrowers and/or confirmation of the continuing
satisfaction of this definition; and (g)Β upon a final determination of such
contest, Borrowers shall promptly comply with the requirements thereof.
Β
"Permitted
Leases"
means
each Lease listed on Schedule 1 and any Lease (other than any Resident
Agreement)Β for any portion of any Project that (a)Β is for demised
space of no more than 900 square feet, (b)Β is for a beauty parlor, xxxxxx
shop, rehabilitation center or other lawful use that is necessary or consistent
with, and ancillary to, the operation of a senior housing facility, and
(c)Β is terminable by Borrower upon not more than sixty (60)Β days'
notice.
Β
"Permitted
Liens"
means:
(a)Β deposits or pledges of cash to secure obligations under workmen's
compensation, social security or similar laws, or under unemployment insurance
(but excluding Liens arising under ERISA); (b)Β deposits or pledges of cash
to secure bids, tenders, contracts (other than contracts for the payment
of
money or the deferred purchase price of property or services), leases, statutory
obligations, surety and appeal bonds and other obligations of like nature
arising in the Ordinary Course of Business; (c)Β mechanic's, workmen's,
materialmen's or other like Liens arising in the Ordinary Course of Business
with respect to obligations which are not due, or which are being contested
pursuant to a Permitted Contest; (d)Β Liens on Collateral, for taxes or
other governmental charges not at the time delinquent or thereafter payable
without penalty or the subject of a Permitted Contest; (e)Β attachments,
appeal bonds, judgments and other similar Liens on Collateral other than
Accounts, for sums not exceeding $25,000 in the aggregate arising in connection
with court proceedings; provided,
however,
that
the execution or other enforcement of such Liens is effectively stayed and
the
claims secured thereby are the subject of a Permitted Contest; (f)Β those
matters which are set forth as exceptions to or
Β
subordinate
matters in the loan title insurance policy accepted by Administrative Agent
insuring the lien of the Security Documents; (g)Β Liens and encumbrances in
favor of Administrative Agent under the Financing Documents; and (h)Β Liens
and encumbrances in favor of the holders of the Affiliated Financing
Documents.
Β
"Person"
means
any natural person, corporation, limited liability company, professional
association, limited partnership, general partnership, joint stock company,
joint venture, association, company, trust, bank, trust company, land trust,
business trust or other organization, whether or not a legal entity, and
any
Governmental Authority.
Β
"Project"
means
the singular reference to each respective portion of the Collateral consisting
of the land, improvements and all other real and personal property encumbered
by
the lien of each respective mortgage, deed of trust, deed to secure debt
or
similar Security Document constituting a part of the Financing Documents.
"Projects"
means
all such Projects collectively.
Β
"Pro
Rata Share"
means
(a)Β with respect to a Lender's right to receive payments of principal and
interest with respect to the Term Loans, the Term LoanΒ Commitment
Percentage of such Lender, and (b)Β for all other purposes (including
without limitation the indemnification obligations arising under Section
13.6)Β with
respect to any Lender, the percentage obtained by dividing
(i)Β such Lender's then outstanding principal amount of the Term Loans,
by
(ii)Β the then outstanding principal amount of the Term Loans of all
Lenders.
Β
"Release"
has the
meaning given in 42 U.S.C § 9601 (22).
Β
"Released
Parties"
has the
meaning given in Section
14.19.
Β
"Releasing
Parties"
has the
meaning given in Section
14.19.
Β
"Replacement
Lender"
has the
meaning given in Section
13.17(f).
Β
"Required
Lenders"
means,
subject to the provisions of Section
13.13(d),
at any
time Lenders holding sixty-six and two thirds percent (66 2/3%)Β or more of
the outstanding principal balance of the Term Loans (taken as a
whole).
Β
"Resident
Agreements"
means
the singular or collective reference to all patient and resident care
agreements, admission agreements and service agreements which include an
occupancy agreement and all amendments, modifications or supplements
thereto.
Β
"Responsible
Officer"
means
any of the Chief Executive Officer, Chief Financial Officer or Managing Member
of Cypress JV or the General Partner.
Β
"Restricted
Distribution"
means
as to any Person (a)Β any dividend or other distribution (whether in cash,
securities or other property)Β on any equity interest in such Person (except
those payable solely in such Person's equity interests of the same class),
(b)Β any payment on account of (i)Β the purchase, redemption,
retirement, defeasance,
Β
surrender,
cancellation, termination or acquisition of any equity interests in such
Person
or any claim respecting the purchase or sale of any equity interest in such
Person, or (ii)Β any option, warrant or other right to acquire any equity
interests in such Person, (c)Β any management fees, salaries or other fees
or compensation to an Affiliate of Borrower, (d)Β any lease or rental
payments to an Affiliate or Subsidiary of Borrower, or (e)Β repayments of or
debt service on loans or other indebtedness held by an Affiliate of
Borrower.
Β
"Sale"
has the
meaning given in Section
2.12.
Β
"Securitization"
has the
meaning given in Section
14.8.
Β
"Security
Documents"
means
any agreement, document or instrument executed concurrently herewith or at
any
time hereafter pursuant to which one or more Credit Parties or any other
Person
either (a)Β Guarantees payment or performance of all or any portion of the
Obligations (including, without limitation, any Financing Documents Guarantee),
and/or (b)Β provides, as security for all or any portion of the Obligations,
a Lien on any of its assets in favor of Administrative Agent for its own
benefit
and the benefit of the Lenders, as any or all of the same may be amended,
supplemented, restated or otherwise modified from time to time.
Β
"Sellers"
means,
collectively, Xxxx Xxxxxxx Xxxx Xxxxx, XX, Xxxx Village Dallas, LP, Town
Village
Arlington, LP, each a Delaware limited partnership, and Town Village Leawood,
LLC a Delaware limited liability company.
Β
"Service
Agreement"
has the
meaning given in Section
9.1(h).
Β
"Settlement
Service"
has the
meaning given in Section
13.17(d).
Β
"Solvent"
means,
with respect to any Person, that such Person (a)Β owns and will own assets
the fair saleable value of which are (i)Β greater than the total amount of
its liabilities (including Contingent Obligations), and (ii)Β greater than
the amount that will be required to pay the probable liabilities of its then
existing debts as they become absolute and matured considering all financing
alternatives and potential asset sales reasonably available to it; (b)Β has
capital that is not unreasonably small in relation to its business as presently
conducted or after giving effect to any contemplated transaction; and
(c)Β does not intend to incur and does not believe that it will incur debts
beyond its ability to pay such debts as they become due.
Β
"Stated
Rate"
has the
meaning given in SectionΒ 2.7(b).
Β
"Subordinated
Debt"
means
any Debt of Borrowers incurred pursuant to the terms of Subordinated Debt
Documents.
Β
"Subordinated
Debt Documents"
means
any documents evidencing and/or securing Debt governed by a Subordination
Agreement.
Β
"Subordination
Agreement"
means
any agreement between Administrative Agent and another creditor of Borrowers,
as
the same may be amended, supplemented, restated or otherwise modified from
time
to time in accordance with the terms thereof, pursuant to which the Debt
owing
from any Borrower(s)Β and/or the Liens securing such Debt granted by any
Borrower(s)Β to such creditor are subordinated in any way to the Obligations
and the Liens created under the Security Documents, the terms and provisions
of
which such Subordination Agreements have been agreed to by and are acceptable
to
Administrative Agent in the exercise of its sole discretion.
Β
"Subsidiary"
means,
with respect to any Person, (a)Β any corporation of which an aggregate of
more than 50% of the outstanding capital stock having ordinary voting power
to
elect a majority of the board of directors of such corporation (irrespective
of
whether, at the time, capital stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening
of
any contingency)Β is at the time, directly or indirectly, owned legally or
beneficially by such Person or one or more Subsidiaries of such Person, or
with
respect to which any such Person has the right to vote or designate the vote
of
more than 50% of such capital stock whether by proxy, agreement, operation
of
law or otherwise, and (b)Β any partnership or limited liability company in
which such Person and/or one or more Subsidiaries of such Person shall have
an
interest (whether in the form of voting or participation in profits or capital
contribution)Β of more than 50% or of which any such Person is a general
partner or may exercise the powers of a general partner. Unless the context
otherwise requires, each reference to a Subsidiary shall be a reference to
a
Subsidiary of a Borrower.
Β
"Swap
Contract"
means
any "swap agreement", as defined in Section 101 of the Bankruptcy Code, that
is
intended to provide protection against fluctuations in interest
rates.
Β
"Taking"
shall
mean a condemnation or taking pursuant to the lawful exercise of the power
of
eminent domain.
Β
"Taxes"
has the
meaning given in Section
2.5(b)Β and
2.8.
Β
"Term
Loan"
has the
meaning given in Section
2.1.
Β
"Term
Loan Commitment"
means
$39,735,000.
Β
"Term
Loan Commitment Percentage"
means,
as to any Lender, (a)Β on the Closing Date, the percentage set forth
opposite such Lender's name on the Commitment Annex under the column
"Term
Loan Commitment Percentage"
(if
such Lender's name is not so set forth thereon, then, on the Closing Date,
such
percentage for such Lender shall be deemed to be zero), and (b)Β on any date
following the Closing Date, the percentage equal to the principal amount
of the
Term Loan held by such Lender on such date divided
by
the
aggregate principal amount of the Term Loan on such date.
Β
"Term
Loan Note"
has the
meaning given in Section
2.4.
Β
"Termination
Date"
means
the earlier to occur of (a)Β the Commitment Expiry Date, or (b)Β any
date on which Administrative Agent accelerates the maturity of the Loans
pursuant to SectionΒ 11.2.
Β
"Third
Party Payor"
means
Blue
Cross and/or Blue Shield, private
insurers,
managed
care plans
and any
other Person or entity which presently or in the future maintains Third Party
Payor Programs, but specifically excluding Governmental Payors.
Β
"Third
Party Payor Programs"
means
all payment and reimbursement programs, sponsored by a Third Party Payor,
in
which a Licensed Operator participates.
Β
"Transfer
Date"
has the
meaning given in Section
3.4(b).
Β
"TRICARE"
means
the program administered pursuant to 10 U.S.C. Section 1071 et
seq.),
Sections 1320a-7 and 1320a-7a of Title 42 of the United States Code and the
regulations promulgated pursuant to such statutes.
Β
"UCC"
means
the Uniform Commercial Code of the State of Illinois or of any other state
the
laws of which are required to be applied in connection with the perfection
of
security interests in any Collateral.
Β
"United
States"
means
the United States of America.
Β
Β
Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder (including without
limitation determinations made pursuant to the exhibits hereto)Β shall be
made, and all financial statements required to be delivered hereunder shall be
prepared on a consolidated basis in accordance with GAAP applied on a basis
consistent with the most recent audited consolidated financial statements
of
each Borrower delivered to Administrative Agent and each of the Lenders on
or
prior to the Closing Date. If
at any
time any change in GAAP would affect the computation of any financial ratio
or
financial requirement set forth in any Financing Document, and Administrative
Agent or Borrowers shall so request, the Administrative Agent, in its sole
discretion on behalf of Lenders, and Borrowers shall negotiate in good faith
to
amend such ratio or requirement to preserve the original intent thereof in
light
of such change in GAAP; provided,
however, that,
until so amended, (a)Β such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein, and
(b)Β Borrowers shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement which
include a reconciliation between calculations of such ratio or requirement
made
before and after giving effect to such change in GAAP.
All
amounts used for purposes of financial calculations required to be made herein
shall be without duplication.
Β
Β
References
in this Agreement to "Articles", "Sections", "Annexes", "Exhibits" or
"Schedules" shall be to Articles, Sections, Annexes, Exhibits or Schedules
of or
to this Agreement unless otherwise specifically provided. Any term defined
herein may be used in the singular or plural. "Include", "includes" and
"including" shall be deemed to be followed by "without limitation". Except
as
otherwise specified or limited herein, references to any Person include the
successors and assigns of such Person. References "from" or "through" any
date
mean, unless otherwise specified, "from and including" or "through and
including", respectively. References to any statute or act shall include
all
related current regulations and all amendments and any successor statutes,
acts
and regulations. References to any statute or act, without additional reference,
shall be deemed to refer to federal statutes and acts of the United States.
References to any agreement, instrument or document shall include all schedules,
exhibits, annexes and other attachments thereto. As used in this Agreement,
the
meaning of the term "material" or the phrase "in all material respects" is
intended to refer to an act, omission, violation or condition which reflects
or
could reasonably be expected to result in a Material Adverse
Effect.
Β
Β
Unless
otherwise specified herein, the settlement of all payments and fundings
hereunder between or among the parties hereto shall be made in lawful money
of
the United States and in immediately available funds.
Β
Β
As
of the
Closing Date it is contemplated and intended that each Borrower shall be
the
Licensed Operator of the Project (which shall be a Licensed Location)Β owned
by such Borrower. Therefore, all references to "Licensed Operators" shall
be
deemed to refer to the applicable Borrower, and all covenants, representations
and warranties applicable to a Licensed Operator shall nonetheless be deemed
to
be direct covenants, representations and warranties of the applicable Borrower,
even if such covenants, representations and warranties are, under the terms
of
this Agreement, contemplated to be undertaken or made indirectly through
an
Operating Lease.
Β
Β
References
to each "Credit Party" or "Credit Parties" in Sections
3.4,
3.6,
3.9,
3.13,
3.14,
3.15,
3.17,
4.1(e)
and
8.5(k)
shall
not include ARC.
Β
LOANS
Β
Β
(a)Β Β Β Β Term
Loan Amounts.
On the
terms and subject to the conditions set forth herein, the Lenders hereby
agree
to make to Borrowers on the Closing Date a term loan
Β
("Term
Loan")Β in
an original principal amount equal to Thirty-Nine Million Seven Hundred
Thirty-Five Thousand Dollars ($39,735,000). Each Lender's obligation to fund
the
Term Loan shall be limited to such Lender's Term Loan Commitment Percentage,
and
no Lender shall have any obligation to fund any portion of any Term Loan
required to be funded by any other Lender, but not so funded. No Borrower
shall
have any right to reborrow any portion of the Term Loan that is repaid or
prepaid from time to time.
Β
(b)Β Β Β Β [Reserved.]
Β
(c)Β Β Β Β Mandatory
Prepayments.
There
shall become due and payable and Borrowers shall prepay the Term Loan in
an
amount equal to the following on the following dates:
Β
(i)Β Β Β Β An
amount
equal to any Casualty Proceeds that Administrative Agent elects to apply
to the
Obligations in accordance with Section
9.3,
plus
any Casualty Proceeds that Administrative Agent elects to not apply to the
Obligations in accordance with Section
9.3,
but
only if Borrowers fail to reinvest such Casualty Proceeds in replacement
assets
comparable to the assets giving rise to such Casualty Proceeds if such
reinvestment is permitted pursuant to the terms of SectionΒ 9.3;
and
Β
(ii)Β Β Β Β An
amount
equal to any Covenant Prepayment required under Section
6.7,
on the
date provided for in Section
6.7.
Β
(d)Β Β Β Β Optional
Prepayments.
Other
than mandatory prepayments under Sections
2.1(c)(i)
and
2.1(c)(ii),
the
Term Loan may not be prepaid during the Closed Period. The Term Loan may
be
prepaid in full, but not in part, at any time following the expiration of
the
Closed Period, provided,
however,
that
Borrowers shall have given Administrative Agent at least thirty (30)Β days
prior written notice of the date of such prepayment together with an
appropriately completed Payment Notification.
Β
(e)Β Β Β Β All
Prepayments.
Except
as this Agreement may specifically provide otherwise, all prepayments of
the
Term Loan shall be applied by Administrative Agent to the Obligations in
such
order and manner as Administrative Agent may elect.
Β
(f)Β Β Β Β Extension
Option.
Borrowers may extend the Commitment Expiry Date two (2) times for a period
of
twelve (12) months each (each, an "Extension Option") upon Borrowers'
satisfaction of the following conditions:
Β
(i)Β Β Β Β Borrowers
shall have delivered to Administrative Agent written notice of each such
election (an "Extension Notice") no earlier than ninety (90) days and no
later
than forty-five (45) days prior to the applicable Commitment Expiry
Date;
Β
(ii)Β Β Β Β no
Default shall have occurred and be continuing and no Event of Default shall
have
occurred;
Β
(iii)Β Β Β Β Administrative
Agent shall have received each Borrower's and Guarantor's current financial
statements, certified as correct by each Borrower and
Β
Guarantor,
and no material adverse change with respect to any Project, any Borrower
or
Guarantor shall have occurred; and
Β
(iv)Β Β Β Β the
principal balance of the Mezzanine Loan shall be $4,200,000 or
less.
Β
Β
Β
(a)Β Β Β Β Interest.
From
and following the Closing Date, the Loans and the other Obligations shall
bear
interest at the sum of the Base Rate plus the applicable Base Rate Margin.
Interest on all Loans is payable in arrears on the first (1st) day of each
month
and on the maturity of such Loans, whether by acceleration or
otherwise.
Β
(b)Β Β Β Β Commitment
Fee.
Prior
to or contemporaneous with Borrowers' execution of this Agreement, Borrowers
have or shall pay Administrative Agent, for its own account and not for the
benefit of any other Lenders, a fee in an amount equal to Three Hundred Ninety
Seven Thousand Three Hundred Fifty Dollars ($397,350).
Β
(c)Β Β Β Β Exit
Fee.
On the
Termination Date or upon any voluntary prepayment of the Term Loan as permitted
hereunder or upon any mandatory prepayment of the Term Loan, Borrowers shall
pay
to Administrative Agent for the benefit of Lenders a fee (the "Exit
Fee")Β equal
to the Term Loan Commitment multiplied
by
the
Applicable Exit Fee Percentage. If any such prepayments are made, then upon
such
prepayment, Borrower shall pay to Administrative Agent the proportionate
amount
of the Exit Fee attributable to such prepayment; provided,
however,
that in
the event of a casualty or Taking and the application of any Casualty Proceeds
therefrom to a prepayment of a portion of the Obligations is required by
Administrative Agent, payment of the Exit Fee allocable to such prepayment
shall
not be required. The term "Applicable
Exit Fee Percentage"
means:
one percent (1.0%)Β if the payment is made on or before the twenty-fourth
(24th)Β full
calendar month following the Closing Date; and one half of one percent
(.50%)Β if the payment is made during or after the twenty-fifth
(25th)Β full calendar month following the Closing Date; provided,
however,
that if
the Termination Date occurs during the Closed Period, the Exit Fee shall
be an
amount equal to the sum of one percent (1.0%)Β multiplied
by
the Term
Loan Commitment plus
the
amount of interest which would have been due and payable from the Termination
Date through the end of the Closed Period, assuming a Base Rate equal to
the
Base Rate as of the Termination Date. Notwithstanding the foregoing, if (i)
the
Term Loan is repaid with the proceeds of an acquisition or refinancing mortgage
loan facility provided by Xxxxxxx Xxxxx with respect to both Projects or
(ii)
Xxxxxxx Xxxxx fails to deliver a term sheet with respect to providing such
mortgage loan facility within thirty (30) days after receipt from Borrowers
of a
written request for a term sheet, the Exit Fee will be waived.
Β
(d)Β Β Β Β Audit
Fees.
Borrowers shall pay to Administrative Agent, for its own account and not
for the
benefit of any other Lenders, all reasonable fees and expenses in connection
with audits of Borrowers' books and records, audits, valuations or appraisals
of
Β
the
Collateral, audits of Borrowers' compliance with applicable Laws and such
other
matters as Administrative Agent shall deem appropriate, which shall be due
and
payable on the first Business Day of the month following the date of issuance
by
Administrative Agent of a written request for payment thereof to Borrowers.
Notwithstanding the foregoing, provided that no Event of Default has occurred
and remains outstanding, Administrative Agent shall not charge audit fees
in
respect of any inspections or related actions unless such audit shows
discrepancies exceeding 10%. Unless an Event of Default has occurred and
is then
continuing audits by Lender shall not be undertaken more frequently than
annually.
Β
(e)Β Β Β Β Wire
Fees.
Borrowers shall pay to Administrative Agent, for its own account and not
for the
account of any other Lenders, on written demand, any and all reasonable fees,
costs or expenses which Administrative Agent pays to a bank or other similar
institution (including, without limitation, any fees paid by Administrative
Agent to any other Lender)Β arising out of or in connection with
(i)Β the forwarding to Borrowers or any other Person on behalf of Borrowers,
by Administrative Agent, of proceeds of the Loans made by any Lender to
Borrowers pursuant to this Agreement, and (ii)Β the depositing for
collection, by Administrative Agent, of any check or item of payment received
or
delivered to Administrative Agent on account of Obligations.
Β
(f)Β Β Β Β Real
Property Inspection Fee.
Borrowers shall pay to Administrative Agent, for its own account and not
for the
benefit of any other Lenders, on the Closing Date, and on each anniversary
of
the Closing Date thereafter, a real property inspection fee of Two Thousand
Dollars ($2,000)Β per Project per year.
Β
(g)Β Β Β Β Late
Charges.
If
payments of principal (other than a final installment of principal upon the
Termination Date), interest due on the Obligations, or any other amounts
due
hereunder or under the other Financing Documents are not timely made and
remain
overdue for a period of five (5)Β days, Borrowers, without notice or demand
by Administrative Agent, promptly shall pay to Administrative Agent, for
its own
account and not for the benefit of any other Lenders, as additional compensation
to Administrative Agent in administering the Obligations, an amount equal
to
five percent (5%)Β of each delinquent payment.
Β
(h)Β Β Β Β Computation
of Interest and Related Fees.
All
interest and fees under each Financing Document shall be calculated on the
basis
of a three hundred sixty (360)-day year for the actual number of days elapsed.
The date of funding of Loan shall be included in the calculation of interest.
The date of payment of a Loan shall be excluded from the calculation of
interest. If a Loan is repaid on the same day that it is made, one
(1)Β day's interest shall be charged. Interest on all Loans is payable in
arrears on the first (1st)Β day of each month and on the maturity of such
Loans, whether by acceleration or otherwise.
Β
(i)Β Β Β Β Automated
Clearing House Payments.
If an
Event of Default has occurred and Administrative Agent so elects, monthly
payments of interest and amortization shall be paid to Administrative Agent
by
Automated Clearing House debit of immediately available funds from the financial
institution account designated by Borrower Representative
Β
in
the
Automated Clearing House debit authorization executed by Borrowers or Borrower
Representative in connection with this Agreement, and shall be effective
upon
receipt. Borrowers shall execute any and all forms and documentation necessary
from time to time to effectuate such automatic debiting. In no event shall
any
such payments be refunded to Borrowers.
Β
Β
The
portion of the Term Loan made by each Lender shall be evidenced, if so requested
by such Lender, by a promissory note executed by Borrowers on a joint and
several basis (a "Term
Loan Note")Β in
an original principal amount equal to such Lender's Pro Rata Share of the
Term
Loan Commitment.
Β
Β
(a)Β Β Β Β Requirements.
Borrowers agree to establish and maintain all of the reserves and escrows
required in this Section
2.5.
All
sums so reserved or escrowed may be commingled with the general funds of
Administrative Agent and no such sums shall be deemed to be held in trust
for
the benefit of Borrowers. Interest at the rates available to Lender for escrow
depository accounts shall accrue and be added to the funds held by Lender
pursuant to Sections
2.5(b)Β and
2.5(c)Β hereunder.
No interest shall be payable on any other funds reserved or escrowed hereunder.
All sums so reserved or escrowed shall be part of the Collateral and shall
stand
as additional security for all of the Obligations. If Administrative Agent
at
any time reasonably determines that the amount on deposit in any reserve
or
escrow is insufficient for its intended purposes, Borrowers shall, within
ten
(10)Β days following notice from Administrative Agent, deposit such
additional sums as may reasonably be required by Administrative Agent. In
the
event of any default by Borrowers under the terms of this Agreement or any
other
Financing Document, Administrative Agent may, at its discretion, apply amounts
on hand in the reserves or escrows to cure such default. Upon demand of
Administrative Agent, Borrowers shall replenish the applicable reserve or
escrow
to restore any sums so applied by Administrative Agent. Upon the occurrence
of
an Event of Default and/or the maturity of any portion of the Obligations,
the
moneys then remaining on deposit with Administrative Agent shall, at
Administrative Agent's option, be applied against the Obligations in such
order
and manner as Administrative Agent may elect or as may otherwise be required
under this Agreement.
Β
(b)Β Β Β Β Real
Property Taxes.
At the
time of and in addition to the monthly installments of principal and/or interest
due under the Notes, Borrowers shall pay to Administrative Agent a sum equal
to
one-twelfth (1/12)Β of the amount estimated by Administrative Agent to be
sufficient (when aggregated with an initial deposit to be designated by
Administrative Agent and paid by Borrowers to Administrative Agent on the
Closing Date or otherwise upon demand of Administrative Agent)Β to pay at
least thirty (30)Β days before they become due and payable, all taxes,
assessments and other similar charges levied against any portion of the
Collateral constituting real property (collectively, the "Taxes").
In
the event such real property or any portion thereof is part of a larger tract
for purposes of taxation and assessments, Administrative Agent may require
the
Borrowers
Β
to
have
the real property taxed and assessed as a separate parcel or separate parcels,
or, in the alternative, to make the deposits required under this section
based
upon the taxation and assessment of the larger tract. So long as no Event
of
Default exists hereunder, Administrative Agent shall apply the escrows sums
to
pay the Taxes. Except as provided in the preceding sentence, the obligation
of
Borrowers to pay the Taxes is not affected or modified by the provisions
of this
paragraph.
Β
(c)Β Β Β Β Insurance
Premiums.
If an
Event of Default or failure to timely pay insurance premiums occurs, then
Borrowers shall pay to Administrative Agent an initial deposit amount which
is
sufficient when aggregated with the monthly payment described below to pay
the
Insurance Premiums next becoming due and on the first (1st)Β day of each
calendar month thereafter a sum equal to one-twelfth (1/12)Β of the amount
estimated by Administrative Agent to be sufficient to pay at least thirty
(30)Β days before they become due and payableΒ all insurance premiums
and other similar charges in connection with the insurance required to be
carried by Borrowers pursuant to this Agreement or the other Financing Documents
(collectively, the "Insurance
Premiums").
So
long as no Event of Default exists hereunder, Administrative Agent shall
apply
the sums to pay the Insurance Premiums. Except as provided in the preceding
sentence, the obligation of Borrowers to pay the Insurance Premiums is not
affected or modified by the provisions of this section. Notwithstanding the
foregoing, if the insurance premiums are paid via a premium financing
arrangement to which Administrative Agent has given its written consent,
which
consent shall not be unreasonably withheld, then (i)Β the amount to be
escrowed with Administrative Agent at any given time in respect of such
Insurance Premiums shall be three (3)Β months of payments under the premium
finance arrangement, (ii)Β Borrowers shall tender to Administrative Agent
each month (on such schedule as Administrative Agent shall reasonably
request)Β evidence that Borrowers (or the owner of the policy if the
Borrowers share in a blanket policy)Β has paid the applicable premium
finance amount due for the preceding month, and (iii)Β Administrative Agent
shall have no obligation to remit such escrowed sums in payment of the premium
finance amounts.
Β
(d)Β Β Β Β Capital
Replacement Reserve.
At the
time of and in addition to the monthly installments of principal and/or interest
due under any of the Notes, Borrowers shall pay to Administrative Agent monthly
deposits in the amount of $25 per residential unit at each Project (the
"Replacement
Minimum")Β to
be held by Administrative Agent in a capital replacement reserve ("Capital
Replacement Reserve").
So
long as no Event of Default has occurred and is then continuing, the funds
contained in the Capital Replacement Reserve shall be utilized to pay directly
or to reimburse Borrowers solely for capital improvements approved in advance
by
Administrative Agent in writing. Subject to the foregoing, Administrative
Agent
shall release funds from the Capital Replacement Reserve for the actual cost
of
such approved capital improvements upon Borrowers' providing Administrative
Agent with paid receipts, lien waivers and other documentation deemed reasonably
necessary by Administrative Agent with minimum draws of $25,000.00 which
shall
occur no more frequently than once per month. Notwithstanding the foregoing,
Borrowers' obligation to make deposits shall be suspended so long as no Event
of
Default has occurred and is then continuing and Borrowers provide Administrative
Agent with
Β
Β
satisfactory
evidence, on an annual basis beginning JanuaryΒ 1,Β 2007, that Borrowers
have expended during the preceding calendar year for approved capital
improvements at each Licensed Location an amount equal or greater than $300
per
residential unit at each Project; provided
that if
Borrowers do not satisfy said $300 per residential unit at each Project
requirement, then, no later than JanuaryΒ 31 of the applicable year,
Borrowers shall pay to Administrative Agent an amount equal to the amount
by
which $300 per residential unit at each Project exceeds the amount actually
spent during such year at such Project which amount shall be held by
Administrative Agent in the Capital Replacement Reserve.
Β
Β
(a)Β Β Β Β All
payments to be made by each Borrower under any Financing Document, including
payments of principal and interest made hereunder and pursuant to any other
Financing Document, and all fees, expenses, indemnities and reimbursements,
shall be made without set-off, recoupment or counterclaim, in lawful money
of
the United States and in immediately available funds. If any payment hereunder
becomes due and payable on a day other than a Business Day, such payment
shall
be extended to the next succeeding Business Day and, with respect to payments
of
principal, interest thereon shall be payable at the then applicable rate
during
such extension (it being understood and agreed that, solely for purposes
of
calculating financial covenants and computations contained herein and
determining compliance therewith, if payment is made, in full, on any such
extended due date, such payment shall be deemed to have been paid on the
original due date without giving effect to any extension thereto). Any payments
received in the Payment Account before noon (Chicago time)Β on any date
shall be deemed received by Administrative Agent on such date, and any payments
received in the Payment Account after noon (Chicago time)Β on any date shall
be deemed received by Administrative Agent on the next succeeding Business
Day.
Any optional or mandatory prepayment of a Term Loan shall be accompanied
by
timely delivery to Administrative Agent of an appropriately completed Payment
Notification, as provided in Section
2.1.
Β
(b)Β Β Β Β Administrative
Agent shall maintain a loan account (the "Loan
Account")Β on
its books to record Loans and other extensions of credit made by the Lenders
hereunder or under any other Financing Document, and all payments thereon
made
by each Borrower. All entries in the Loan Account shall be made in accordance
with Administrative Agent's customary accounting practices as in effect from
time to time. The balance in the Loan Account, as recorded in Administrative
Agent's books and records at any time shall be conclusive and binding evidence
of the amounts due and owing to Administrative Agent by each Borrower absent
clear and convincing evidence to the contrary; provided,
however,
that any
failure to so record or any error in so recording shall not limit or otherwise
affect any Borrower's duty to pay all amounts owing hereunder or under any
other
Financing Document. Administrative Agent shall endeavor to provide Borrowers
with a monthly statement regarding the Loan Account (but neither Administrative
Agent nor any Lender shall have any liability if Administrative Agent shall
fail
to provide any such statement). Unless any Borrower notifies Administrative
Agent of any objection to any such statement (specifically describing the
basis
for such objection)Β within thirty (30)Β days after the date
of
Β
Β
receipt
thereof, it shall be deemed final, binding and conclusive upon Borrowers
in all
respects as to all matters reflected therein.
Β
Β
(a)Β Β Β Β In
no
event shall the interest charged with respect to the Notes (if any)Β or any
other obligations of any Borrower under any Financing Document exceed the
maximum amount permitted under the laws of the State of Illinois or of any
other
applicable jurisdiction.
Β
(b)Β Β Β Β Notwithstanding
anything to the contrary herein or elsewhere, if at any time the rate of
interest payable hereunder or under any Note or other Financing Document
(the
"Stated
Rate")Β would
exceed the highest rate of interest permitted under any applicable law to
be
charged (the "Maximum
Lawful Rate"),
then
for so long as the Maximum Lawful Rate would be so exceeded, the rate of
interest payable shall be equal to the Maximum Lawful Rate; provided,
however,
that if
at any time thereafter the Stated Rate is less than the Maximum Lawful Rate,
each Borrower shall, to the extent permitted by law, continue to pay interest
at
the Maximum Lawful Rate until such time as the total interest received is
equal
to the total interest which would have been received had the Stated Rate
been
(but for the operation of this provision)Β the interest rate payable.
Thereafter, the interest rate payable shall be the Stated Rate unless and
until
the Stated Rate again would exceed the Maximum Lawful Rate, in which event
this
provision shall again apply.
Β
(c)Β Β Β Β In
no
event shall the total interest received by any Lender exceed the amount which
it
could lawfully have received had the interest been calculated for the full
term
hereof at the Maximum Lawful Rate. If, notwithstanding the prior sentence,
any
Lender has received interest hereunder in excess of the Maximum Lawful Rate,
such excess amount shall be applied to the reduction of the principal balance
of
the Loans or to other amounts (other than interest)Β payable hereunder, and
if no such principal or other amounts are then outstanding, such excess or
part
thereof remaining shall be paid to Borrowers.
Β
(d)Β Β Β Β In
computing interest payable with reference to the Maximum Lawful Rate applicable
to any Lender, such interest shall be calculated at a daily rate equal to
the
Maximum Lawful Rate divided by the number of days in the year in which such
calculation is made.
Β
Β
(a)Β Β Β Β All
payments of principal and interest on the Loans and all other amounts payable
hereunder shall be made free and clear of and without deduction for any present
or future income, excise, stamp, documentary, payroll, employment, property
or
franchise taxes and other taxes, fees, duties, levies, assessments, withholdings
or other charges of any nature whatsoever (including interest and penalties
thereon)Β imposed by any taxing authority, excluding taxes imposed
on or measured by Administrative Agent's or any Lender's net income by the
jurisdiction under which Administrative Agent or such Lender is organized
or
conducts business (other than solely as the result of entering into any of
the
Β
Β
Financing
Documents or taking any action thereunder)Β (all non-excluded items being
called "Taxes").
If
any withholding or deduction from any payment to be made by any Borrower
hereunder is required in respect of any Taxes pursuant to any applicable
Law,
then
Borrowers will: (i)Β pay directly to the relevant authority the full amount
required to be so withheld or deducted; (ii)Β promptly forward to
Administrative Agent an official receipt or other documentation satisfactory
to
Administrative Agent evidencing such payment to such authority; and
(iii)Β pay to Administrative Agent for the account of Administrative Agent
and Lenders such additional amount or amounts as is necessary to ensure that
the
net amount actually received by Administrative Agent and each Lender will
equal
the full amount Administrative Agent and such Lender would have received
had no
such withholding or deduction been required. If any Taxes are directly asserted
against Administrative Agent or any Lender with respect to any payment received
by Administrative Agent or such Lender hereunder, Administrative Agent or
such
Lender may pay such Taxes and Borrowers will promptly pay such additional
amounts (including any penalty, interest or expense)Β as is necessary in
order that the net amount received by such Person after the payment of such
Taxes (including any Taxes on such additional amount)Β shall equal the
amount such Person would have received had such Taxes not been asserted so
long
as such amounts have accrued on or after the day which is two hundred seventy
(270)Β days prior to the date on which Administrative Agent or such Lender
first made written demand therefor.
Β
(b)Β Β Β Β If
any
Borrower fails to pay any Taxes when due to the appropriate taxing authority
or
fails to remit to Administrative Agent, for the account of Administrative
Agent
and the respective Lenders, the required receipts or other required documentary
evidence, Borrowers shall indemnify Administrative Agent and Lenders for
any
incremental Taxes, interest or penalties that may become payable by
Administrative Agent or any Lender as a result of any such failure.
Β
(c)Β Β Β Β Each
Lender that (i)Β is organized under the laws of a jurisdiction other than
the United States, and (ii)(A) is a party hereto on the Closing Date or
(B)Β purports to become an assignee of an interest as a Lender under this
Agreement after the Closing Date (unless such Lender was already a Lender
hereunder immediately prior to such assignment) (each such Lender a
"Foreign
Lender")
shall
execute and deliver to each of Borrowers and Administrative Agent one or
more
(as Borrowers or Administrative Agent may reasonably request) United States
Internal Revenue Service Forms W-8ECI, W-8BEN, W-8IMY (as applicable) and
other
applicable forms, certificates or documents prescribed by the United States
Internal Revenue Service or reasonably requested by Administrative Agent
certifying as to such Lender's entitlement to a complete exemption from
withholding or deduction of Taxes. Borrowers shall not be required to pay
additional amounts to any Lender pursuant to this SectionΒ 2.8 with respect
to United States withholding and income Taxes to the extent that the obligation
to pay such additional amounts would not have arisen but for the failure
of such
Lender to comply with this paragraph other than as a result of a change in
law.
Β
Β
If
any
Lender shall reasonably determine that the adoption or taking effect of,
or any
change in, any applicable Law regarding capital adequacy, in each instance,
after the
Β
Β
Closing
Date, or any change after the Closing Date in the interpretation, administration
or application thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation, administration or application thereof,
or the compliance by any Lender or any Person controlling such Lender with
any
request, guideline or directive regarding capital adequacy (whether or not
having the force of law)Β of any such Governmental Authority, central bank
or comparable agency adopted or otherwise taking effect after the Closing
Date,
has or would have the effect of reducing the rate of return on such Lender's
or
such controlling Person's capital as a consequence of such Lender's obligations
hereunder to a level below that which such Lender or such controlling Person
could have achieved but for such adoption, taking effect, change,
interpretation, administration, application or compliance (taking into
consideration such Lender's or such controlling Person's policies with respect
to capital adequacy)Β then from time to time, upon written demand by such
Lender (which demand shall be accompanied by a statement setting forth the
basis
for such demand and a calculation of the amount thereof in reasonable detail,
a
copy of which shall be furnished to Administrative Agent), Borrowers shall
promptly pay to such Lender such additional amount as will compensate such
Lender or such controlling Person for such reduction, so long as such amounts
have accrued on or after the day which is two hundred seventy (270)Β days
prior to the date on which such Lender first made demand therefor.Β
Β
Β
If
any
Lender requires compensation under SectionΒ 2.9,
or
requires any Borrower to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
2.8,
then,
upon the written request of Borrower Representative,
such
Lender shall use reasonable efforts to designate a different lending office
for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder (subject to the terms of this Agreement)Β to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (a)Β would eliminate or materially reduce amounts
payable pursuant to any such Section, as the case may be, in the future,
and
(b)Β would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender (as determined in its
sole
discretion). Without limitation of the provisions of Section
12.1,
Borrowers hereby agree to pay all reasonable costs and expenses incurred
by any
Lender in connection with any such designation or assignment.
Β
Β
Each
Borrower hereby designates Borrower Representative as its representative
and
agent on its behalf for the purposes of giving instructions with respect
to the
disbursement of the proceeds of the Loans, giving and receiving all other
notices and consents hereunder or under any of the other Financing Documents
and
taking all other actions (including in respect of compliance with
covenants)Β on behalf of any Borrower or Borrowers under the Financing
Documents. Borrower Representative hereby accepts such appointment.
Notwithstanding anything to the contrary contained in this Agreement, no
Borrower other than Borrower Representative shall be entitled to take any
of the
foregoing
Β
Β
actions.
The proceeds of each Loan made hereunder shall be advanced to or at the
direction of Borrower Representative and if not used by Borrower Representative
for the purposes provided in this Agreement shall be deemed to be immediately
advanced by Borrower Representative to the appropriate other Borrower hereunder
as an intercompany loan (collectively, "Intercompany
Loans").
Administrative Agent and each Lender may regard any notice or other
communication pursuant to any Financing Document from Borrower Representative
as
a notice or communication from all Borrowers, and may give any notice or
communication required or permitted to be given to any Borrower or all Borrowers
hereunder to Borrower Representative on behalf of such Borrower or all
Borrowers. Each Borrower agrees that each notice, election, representation
and
warranty, covenant, agreement and undertaking made on its behalf by Borrower
Representative shall be deemed for all purposes to have been made by such
Borrower and shall be binding upon and enforceable against such Borrower
to the
same extent as if the same had been made directly by such Borrower.
Β
REPRESENTATIONS
AND WARRANTIES
Β
To
induce
Administrative Agent and Lenders to enter into this Agreement and to make
the
Loans and other credit accommodations contemplated hereby, each Borrower
hereby
represents and warrants to Administrative Agent and each Lender
that:
Β
Β
Each
Credit Party is an entity as specified on ScheduleΒ 3.1,
is duly
organized, validly existing and in good standing under the laws of the
jurisdiction specified on ScheduleΒ 3.1,
has the
same legal name as it appears in such Credit Party's Organizational Documents
and an organizational identification number (if any), in each case as specified
on ScheduleΒ 3.1,
and has
all powers and all Permits necessary or desirable in the operation of its
business as presently conducted or as proposed to be conducted, except where
the
failure to have such Permits could not reasonably be expected to have a Material
Adverse Effect. Each Credit Party is qualified to do business as a foreign
entity in each jurisdiction in which it is required to be so qualified, which
jurisdictions, in the case of the Borrowers, Cypress JV and the General Partner,
as of the Closing Date are specified on ScheduleΒ 3.1,
except
where the failure to be so qualified could not reasonably be expected to
have a
Material Adverse Effect. None of Borrowers, Cypress JV or the General Partner
(a)Β has had, over the five (5)Β year period preceding the Closing Date,
any name other than its current name, or (b)Β was incorporated or organized
under the laws of any jurisdiction other than its current jurisdiction of
incorporation or organization.
Β
Β
The
execution, delivery and performance by each Credit Party of the Financing
Documents to which it is a party are within its powers, have been duly
authorized by all necessary action pursuant to its Organizational Documents,
require no further action
Β
Β
by
or in
respect of, or filing with, any Governmental Authority and do not violate,
conflict with or cause a breach or a default under (a)Β any Law applicable
to any Credit Party or any of the Organizational Documents of any Credit
Party,
or (b)Β any agreement or instrument binding upon it, except for such
violations, conflicts, breaches or defaults as could not, with respect to
this
clause (b), reasonably be expected to have a Material Adverse
Effect.
Β
Β
Each
of
the Financing Documents to which any Credit Party is a party constitutes
a valid
and binding agreement or instrument of such Credit Party, enforceable against
such Credit Party in accordance with its respective terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or other
similar
laws relating to the enforcement of creditors' rights generally and by general
equitable principles.
Β
Β
The
authorized equity securities of each of the Credit Parties as of the Closing
Date is as set forth on ScheduleΒ 3.4.
All
issued and outstanding equity securities of each of the Credit Parties are
duly
authorized and validly issued, fully paid, nonassessable, free and clear
of all
Liens other than those in favor of Administrative Agent for the benefit of
Administrative Agent and Lenders, and such equity securities were issued
in
compliance with all applicable Laws. The identity of the holders of the equity
securities of each of the Credit Parties and the percentage of their
fully-diluted ownership of the equity securities of each of the Credit Parties
as of the Closing Date is set forth on ScheduleΒ 3.4.
No
shares of the capital stock or other equity securities of any Credit Party,
other than those described above, are issued and outstanding as of the Closing
Date. Except as set forth on ScheduleΒ 3.4
or
in the
Organizational Documents of Cypress JV, as of the Closing Date there are
no
preemptive or other outstanding rights, options, warrants, conversion rights
or
similar agreements or understandings for the purchase or acquisition from
any
Credit Party of any equity securities of any such entity.
Β
Β
(a)Β Β Β Β The
income statement of the Sellers as of November 30, 2005, copies of which
have
been delivered to Administrative Agent, fairly presents the results of
operations for the Projects for the period covered thereby.
Β
(b)Β Β Β Β [Reserved].
Β
(c)Β Β Β Β [Reserved].
Β
(d)Β Β Β Β Since
DecemberΒ 31, 2005, there has been no material adverse change in the
business, operations, properties or condition (financial or otherwise)Β of
ARC, taken as a whole. Since November 30, 2005, there has been no material
adverse change in the business, operations, properties or condition (financial
or otherwise)Β of any business, assets or entities being purchased by
Borrowers pursuant to the Financing Documents.
Β
Β
Β
Except
as
set forth on ScheduleΒ 3.6
as of
the Closing Date, and except as hereafter disclosed to Administrative Agent
in
writing, (a)Β there is no Litigation pending against, or to Borrowers'
knowledge threatened against or affecting, any Credit Party or any Project
and
(b)Β there is no material Litigation pending, or, to such Borrowers'
knowledge, threatened against Guarantor. There is no Litigation pending in
which
an adverse decision could reasonably be expected to have a Material Adverse
Effect or which in any manner draws into question the validity of any of
the
Financing Documents.
Β
Β
Each
Borrower is the lawful owner of, has good and marketable title to and is
in
lawful possession of, or has valid leasehold interests in, all properties
and
other assets (real or personal, tangible, intangible or mixed)Β purported or
reported to be owned or leased (as the case may be)Β by such Person, subject
to Permitted Liens.
Β
Β
No
Default or Event of Default has occurred and is continuing. No Credit Party
is
in breach or default under or with respect to any contract, agreement, lease
or
other instrument to which it is a party or by which its property is bound
or
affected, which breach or default could reasonably be expected to have a
Material Adverse Effect.
Β
Β
As
of the
Closing Date, there are no strikes or other labor disputes pending or, to
such
Borrower's knowledge, threatened against any Credit Party. Hours worked and
payments made to any employees of the Credit Parties have not been in violation
of the Fair Labor Standards Act or any other applicable Law dealing with
such
matters. All payments due from any Credit Party, or for which any claim may
be
made against any of them, on account of wages and employee and retiree health
and welfare insurance and other benefits have been paid or accrued as a
liability on their books, as the case may be. The consummation of the
transactions contemplated by the Financing Documents will not give rise to
a
right of termination or right of renegotiation on the part of any union under
any collective bargaining agreement to which it is a party or by which it
is
bound.
Β
Β
No
Credit
Party is an "investment company"
or a
company "controlled"
by an
"investment company"
or a
"subsidiary"
of an
"investment company,"
all
within the meaning of the Investment Company Act of 1940. No Credit Party
is
a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of
1935.
Β
Β
Β
None
of
the proceeds from the Loans have been or will be used, directly or indirectly,
for the purpose of purchasing or carrying any "margin stock" (as defined
in
Regulation U of the Federal Reserve Board), for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase or carry
any
"margin stock" or for any other purpose which might cause any of the Loans
to be
considered a "purpose credit" within the meaning of Regulation T, U or X
of the
Federal Reserve Board.
Β
Β
(a)Β Each
Credit Party is in compliance with the requirements of all applicable Laws,
except for such Laws the noncompliance with which could not reasonably be
expected to have a Material Adverse Effect.
Β
(b)Β None
of
the Credit Parties, or any of the entities shown in ScheduleΒ 3.4
or any
of their respective agents acting or benefiting in any capacity in connection
with the transactions contemplated by this Agreement is (i)Β in violation of
any Anti-Terrorism Law, (ii)Β engages in or conspires to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding,
or
attempts to violate, any of the prohibitions set forth in any Anti-Terrorism
Law, or (iii)Β is a Blocked Person. No Credit Party nor, to the knowledge of
any Credit Party, any of its Affiliates or agents acting or benefiting in
any
capacity in connection with the transactions contemplated by this Agreement,
(x)Β conducts any business or engages in making or receiving any
contribution of funds, goods or services to or for the benefit of any Blocked
Person, or (y)Β deals in, or otherwise engages in any transaction relating
to, any property or interest in property blocked pursuant to Executive Order
No.Β 13224, any similar executive order or other Anti-Terrorism
Law.
Β
Β
All
Federal, state and local tax returns, reports and statements required to
be
filed by or on behalf of each Credit Party have been filed with the appropriate
Governmental Authorities in all jurisdictions in which such returns, reports
and
statements are required to be filed and, except to the extent subject to
a
Permitted Contest, all Taxes (including real property Taxes)Β and other
charges shown to be due and payable in respect thereof have been timely paid
prior to the date on which any fine, penalty, interest, late charge or loss
may
be added thereto for nonpayment thereof. Except to the extent subject to
a
Permitted Contest, all state and local sales and use Taxes required to be
paid
by each Credit Party have been paid. All Federal and state returns have been
filed by each Credit Party for all periods for which returns were due with
respect to employee income tax withholding, social security and unemployment
taxes, and, except to the extent subject to a Permitted Contest, the amounts
shown thereon to be due and payable have been paid in full or adequate
provisions therefor have been made.
Β
Β
Β
(a)Β Β Β Β Each
ERISA Plan (and the related trusts and funding agreements)Β complies in form
and in operation with, has been administered in compliance with, and the
terms
of each ERISA Plan satisfy, the applicable requirements of ERISA and the
Code in
all material respects. Each ERISA Plan which is intended to be qualified
under
Section 401(a)Β of the Code is so qualified, and the United States Internal
Revenue Service has issued a favorable determination letter with respect
to each
such ERISA Plan which may be relied on currently. No Credit Party has incurred
liability for any material excise tax under any of Sections 4971 through
5000 of
the Code.
Β
(b)Β Β Β Β During
the thirty-six (36)Β month period prior to the Closing Date or the making of
any Loan, (i)Β no steps have been taken to terminate any Pension Plan, and
(ii)Β no contribution failure has occurred with respect to any Pension Plan
sufficient to give rise to a Lien under SectionΒ 302(f)Β of ERISA. No
condition exists or event or transaction has occurred with respect to any
Pension Plan which could result in the incurrence by any Credit Party of
any
material liability, fine or penalty. No Credit Party has incurred liability
to
the PBGC (other than for current premiums)Β with respect to any employee
Pension Plan. All contributions (if any)Β have been made on a timely basis
to any Multiemployer Plan that are required to be made by any Credit Party
or
any other member of the Controlled Group under the terms of the plan or of
any
collective bargaining agreement or by applicable Law; no Credit Party nor
any
member of the Controlled Group has withdrawn or partially withdrawn from
any
Multiemployer Plan, incurred any withdrawal liability with respect to any
such
plan or received notice of any claim or demand for withdrawal liability or
partial withdrawal liability from any such plan, and no condition has occurred
which, if continued, could result in a withdrawal or partial withdrawal from
any
such plan, and no Credit Party nor any member of the Controlled Group has
received any notice that any Multiemployer Plan is in reorganization, that
increased contributions may be required to avoid a reduction in plan benefits
or
the imposition of any excise tax, that any such plan is or has been funded
at a
rate less than that required under SectionΒ 412 of the Code, that any such
plan is or may be terminated, or that any such plan is or may become
insolvent
Β
Β
Except
for fees payable to Administrative Agent and/or Lenders, no broker, finder
or
other intermediary has brought about the obtaining, making or closing of
the
transactions contemplated by the Financing Documents, and no Credit Party
has or
will have any obligation to any Person in respect of any finder's or brokerage
fees, commissions or other expenses in connection herewith or therewith.
All
brokerage and finder's fees, commissions and other expenses payable in
connection with the transactions contemplated by the Financing Documents
have
been paid in full by Borrowers contemporaneously with the execution of the
Financing Documents and the initial funding of the Loans. No broker, finder
or
other intermediary has brought about the obtaining, making or closing of
the
transactions contemplated by the Financing Documents, and no Credit Party
has or
will have any obligation to any Person in respect of any finder's or brokerage
fee in connection herewith or therewith.
Β
Β
Β
All
transactions contemplated by the Financing Documents to be consummated on
or
prior to the date hereof have been so consummated (including without limitation
the disbursement and transfer of all funds in connection therewith)Β in all
material respects pursuant to the provisions of the applicable Financing
Documents, true and complete copies of which have been delivered to
Administrative Agent, and in compliance with all applicable Law, except for
such
Laws the noncompliance with which would not reasonably be expected to have
a
Material Adverse Effect.
Β
Β
Except
for the Financing Documents and the other agreements set forth on Schedule
3.17
(collectively with the Financing Documents, the "Material
Contracts"),
as of
the Closing Date there are no (a)Β employment agreements covering the
management of any Credit Party, (b)Β collective bargaining agreements or
other labor agreements covering any employees of any Credit Party,
(c)Β agreements for managerial, consulting or similar services to which any
Credit Party is a party or by which it is bound, (d)Β agreements regarding
any Credit Party, its assets or operations or any investment therein to which
any of its equityholders is a party or by which it is bound, (e)Β real
estate leases, intellectual property licenses or other lease or license
agreements to which any Credit Party is a party, either as lessor or lessee,
or
as licensor or licensee, or (f)Β customer, distribution, marketing or supply
agreements to which any Credit Party is a party, in each case with respect
to
the preceding clauses (a), (c), (d), (e), and (f)Β requiring payment of more
than $100,000 in any year, (g)Β partnership agreements to which any Credit
Party is a general partner or joint venture agreements to which any Credit
Party
is a party, (h)Β third party billing arrangements to which any Credit Party
is a party, or (i)Β any other agreements or instruments to which any Credit
Party is a party, and the breach, nonperformance or cancellation of which,
or
the failure of which to renew, could reasonably be expected to have a Material
Adverse Effect. Schedule
3.17
sets
forth, with respect to each real estate lease agreement to which any Credit
Party is a party (as a lessee)Β and which is a Material Contract as of the
Closing Date, the address of the subject property and the annual rental (or,
where applicable, a general description of the method of computing the annual
rental). The consummation of the transactions contemplated by the Financing
Documents and the other Financing Documents will not give rise to a right
of
termination in favor of any party to any Material Contract (other than any
Credit Party), except for such Material Contracts the noncompliance with
which
would not reasonably be expected to have a Material Adverse Effect.
Β
Β
Except
in
each case as set forth on Schedule
3.18:
Β
(a)Β Β Β Β no
Hazardous Materials are located on any of the Projects except those that
are
both (i)Β in compliance with Environmental Laws and with permits issued
pursuant thereto (if such permits are required), if any, and (ii)Β either
(A)Β in amounts not in excess of
Β
Β
that
necessary to operate the applicable Project for the purposes set forth herein
or
in amounts used in the ordinary course of business, or (B)Β fully disclosed
to and approved by Administrative Agent; to each Borrower's knowledge, Hazardous
Materials have not been Released or threatened to be Released into the
environment, at, on, under or near any of the Projects in a manner that would
require the taking of any action under any Environmental Law and that have
given
rise to, or could reasonably be expected to give rise to, remediation costs
and
expenses on the part of any Borrower in excess of $250,000; and no portion
of
any Project is being used, or has been used at any previous time, for the
disposal, storage, treatment, processing or other handling of Hazardous
Materials in violation of any Environmental Law in any material respect nor,
to
each Borrower's knowledge, is any such property affected by any Hazardous
Materials Contamination;
Β
(b)Β Β Β Β no
Borrower knows of, nor has received, any written notice from any Person relating
to Hazardous Materials in, on, under or from any Project and no notice,
notification, demand, request for information, citation, summons, complaint
or
order has been issued, no complaint has been filed, no penalty has been assessed
and no investigation or review is pending, or to each Borrower's knowledge,
threatened by any Governmental Authority or other Person with respect to
any
(i)Β alleged violation by any Borrower of any Environmental Law,
(ii)Β alleged failure by any Borrower to have any Permits required in
connection with the conduct of its business or to comply with the terms and
conditions thereof, (iii)Β any generation, treatment, storage, recycling,
transportation or disposal of any Hazardous Materials, or (iv)Β Release of
Hazardous Materials;
Β
(c)Β Β Β Β to
the
best knowledge of each Borrower, all oral or written notifications of a Release
of Hazardous Materials required to be filed by or on behalf of any Borrower
under any applicable Environmental Law have been filed or are in the process
of
being timely filed by or on behalf of the applicable Borrower;
Β
(d)Β Β Β Β to
each
Credit Party's best knowledge, no property now owned by any Borrower and
no such
property previously owned by any Borrower, to which any Borrower has, directly
or indirectly, transported or arranged for the transportation of any Hazardous
Materials, is listed or proposed for listing, on the National Priorities
List
promulgated pursuant to CERCLA, or CERCLIS (as defined in CERCLA)Β or any
similar state list or is the subject of Federal, state or local enforcement
actions or, to the knowledge of such Borrower, other investigations which
may
lead to claims against any Credit Party for clean-up costs, remedial work,
damage to natural resources or personal injury claims, including, without
limitation, claims under CERCLA;
Β
(e)Β Β Β Β to
each
Credit Party's best knowledge, after reasonable investigation, there are
no
underground storage tanks located on any property owned or to be owned or
leased
by any Borrower that are not properly registered or permitted under applicable
Environmental Laws or that are leaking or disposing of Hazardous
Materials;
Β
(f)Β Β Β Β to
each
Credit Party's best knowledge, after reasonable investigation, there are
no
Liens under or pursuant to any applicable Environmental Laws on any real
property or other assets owned or leased by any Borrower, and no actions
by
any
Β
Β
Governmental
Authority have been taken or, to the knowledge of such Borrower, are in process
which could subject any of such properties or assets to such Liens;
and
Β
(g)Β Β Β Β to
each
Credit Party's best knowledge, after reasonable investigation, each Borrower
has
truthfully and fully provided to Administrative Agent, in writing, any and
all
information relating to environmental conditions in, on, under or from the
Projects, known to each Borrower or contained in each Borrower's files and
records, including but not limited to any reports relating to Hazardous
Materials in, on, under or migrating to or from the Projects and/or to the
environmental condition of the Projects.
Β
Β
Each
Borrower owns, is licensed to use or otherwise has the right to use, all
intellectual property that is material to the condition (financial or other),
business or operations of such Borrower. To such Borrower's knowledge, each
Borrower conducts its business without infringement or claim of infringement
of
any intellectual property rights of others and there is no infringement or
claim
of infringement by others of any intellectual property rights of any Borrower,
which infringement or claim of infringement could reasonably be expected
to have
a Material Adverse Effect.
Β
Β
Each
Borrower and Guarantor is Solvent.
Β
Β
None
of
the information (financial or otherwise)Β furnished by or on behalf of any
Credit Party to Administrative Agent or any Lender in connection with the
consummation of the transactions contemplated by the Financing Documents,
contains (with respect to information provided by third parties on behalf
of any
Credit Party, to the best knowledge of the Credit Parties)Β any untrue
statement of a material fact or omits to state a material fact necessary
to make
the statements contained herein or therein not misleading in light of the
circumstances under which such statements were made. All financial projections
delivered to Administrative Agent and the Lenders have been prepared on the
basis of the assumptions stated therein. Such projections represent each
Borrower's best estimate of such Borrower's future financial performance
and
such assumptions are believed by such Borrower to be fair and reasonable
in
light of current business conditions; provided,
however, that
Borrowers can give no assurance that such projections will be
attained.
Β
Β
The
rate
of interest paid under the Notes and the method and manner of the calculation
thereof do not violate any usury or other law or applicable Laws, any of
the
Organizational Documents or any of the Financing Documents.
Β
Β
Β
As
of the
Closing Date, each of the representations and warranties made in the Financing
Documents by each of the parties thereto is true and correct in all material
respects, and such representations and warranties are hereby incorporated
herein
by reference with the same effect as though set forth in their entirety herein,
as qualified therein, except to the extent that such representation or warranty
relates to a specific date, in which case such representation and warranty
shall
be true as of such earlier date.
Β
Section
3.24Β Subsidiaries.
There
are no Subsidiaries of Borrowers.
Β
AFFIRMATIVE
COVENANTS
Β
Each
Borrower agrees that, so long as any Credit Exposure exists:
Β
Β
(a)Β Β Β Β Each
Borrower will maintain a system of accounting established and administered
in
accordance with sound business practices to permit preparation of financial
statements in accordance with GAAP and to provide the information required
to be
delivered to Administrative Agent and the Lenders hereunder.
Β
(b)Β Β Β Β Each
Borrower will furnish to Administrative Agent (or cause to be furnished to
Administrative Agent)Β the following financial information and reports with
respect to each Borrower and each Licensed Operator, in each case in form
and
format and providing information satisfactory to Administrative Agent in
its
discretion:
Β
(i)Β Β Β Β if
applicable, for the Licensed Operator only, a sales and collections report
and
accounts receivable and payable aging schedule on a form reasonably acceptable
to Lender within twenty-five (25)Β days after the end of each calendar
month, which shall include, without limitation, a report of sales, credits
issued, and collections received;
Β
(ii)Β Β Β Β within
twenty-five (25)Β days of the end of each calendar month, internally
prepared monthly financial statements prepared for Borrowers on a consolidated
and consolidating basis in accordance with GAAP (including income statements
and
balance sheets for each Project and a consolidated operating cash flow
statement, accompanied by management analysis and actual vs. budget variance
reportsΒ for
each
Project;
Β
(iii)Β Β Β Β Reserved;
Β
(iv)Β Β Β Β within
twenty-five (25)Β days of the end of each calendar month, (A)Β a current
rent roll (including, a monthly schedule of delinquency receipts and payments),
and (B)Β a summary of all leasing activity then taking place with respect to
each Project;
Β
Β
(v)Β Β Β Β within
twenty-five (25)Β days after the end of each measurement period applicable
to any financial covenant hereunder, such financial reports and information
as
Administrative Agent shall require evidencing compliance with the applicable
financial covenants, which reports and information shall include, at a minimum,
delivery to Administrative Agent of a Compliance Certificate, and, if requested
by Administrative Agent, back-up documentation (including, without limitation,
invoices, receipts and other evidence of costs incurred during such quarter
as
Administrative Agent shall reasonably require)Β evidencing the propriety of
the deductions from revenues in determining such compliance;
Β
(vi)Β Β Β Β annual
projected profit and loss statements (prepared on a monthly basis)Β for the
succeeding fiscal year within forty-five (45)Β days before the end of each
fiscal year;
Β
(vii)Β Β Β Β internally
prepared annual financial statements prepared for Borrowers on a consolidated
and consolidating basis in accordance with GAAP within sixty (60)Β days
after the end of each fiscal year;
Β
(viii)Β Β Β Β annual
consolidated and consolidating audited financial statements prepared for
Borrowers in accordance with GAAP and prepared by a firm of independent public
accountants reasonably satisfactory to Administrative Agent, within one hundred
twenty (120)Β days after the end of each fiscal year;
Β
(ix)Β Β Β Β promptly
upon receipt thereof, copies of any reports by the independent accountants
in
connection with any interim audit and copies of each management control letter
provided by independent accountants;
Β
(x)Β Β Β Β for
each
Borrower, as requested by Administrative Agent, evidence satisfactory to
Administrative Agent that all federal and state taxes, including, without
limitation payroll taxes, that are due have been paid in full;
Β
(xi)Β Β Β Β for
Licensed Operator only, as requested, copies of all cost reports filed with
Medicare or Medicaid or any other Third Party Payor;
Β
(xii)Β Β Β Β within
ten (10)Β days after Administrative Agent request, a written statement, duly
acknowledged by Borrowers, setting forth any right of set-off, claims,
counterclaims, withholdings or other defenses to which any of the Collateral
or
Administrative Agent's rights with respect to the Collateral are subject
or that
exist against such sums and Borrowers' obligations under the Financing
Documents;
Β
(xiii)Β Β Β Β within
ten (10)Β days after Administrative Agent request, a written statement, duly
acknowledged by Licensed Operator, setting forth any right of set-off,
counterclaim or other defense that exists against such sums and Licensed
Operator's obligations under any Leases; and
Β
Β
(xiv)Β Β Β Β such
additional information, reports or statements regarding the Borrowers, the
Projects or Licensed Operator as Administrative Agent may from time to time
reasonably request.
Β
All
financial statements shall include a balance sheet and statement of earnings
and
shall be prepared in accordance with GAAP.
Β
(c)Β Β Β Β From
time
to time, if Administrative Agent determines that obtaining appraisals is
necessary in order for a Lender to comply with applicable Laws, each Borrower
shall furnish to Administrative Agent appraisal reports in form and substance
and from appraisers reasonably satisfactory to Administrative Agent stating
the
then current fair market values of all or any portion of the real estate
owned
by each Borrower. In addition to the foregoing, from time to time, but in
the
absence of a Default or Event of Default not more than once during each calendar
year, Administrative Agent may require Borrowers to obtain and deliver to
Administrative Agent appraisal reports in form and substance and from appraisers
reasonably satisfactory to Administrative Agent stating the then current
fair
market values of all or any portion of the real estate and personal property
owned by each Borrower.
Β
(d)Β Β Β Β Promptly
upon receipt or filing thereof, each Borrower shall deliver to Administrative
Agent copies of any reports or notices related to any material taxes and
any
other material reports or notices received by any Credit Party from, or filed
by
any Credit Party with, any Governmental Authority.
Β
(e)Β Β Β Β Promptly
upon their becoming available, Borrower shall deliver to Administrative Agent
copies of all Swap Contracts.
Β
Β
Each
Borrower (a)Β will pay and discharge, at or before maturity, all of their
respective obligations and liabilities, including tax liabilities, except
for
such obligations and/or liabilities (i)Β that may be the subject of a
Permitted Contest, or (ii)Β the nonpayment or nondischarge of which could
not reasonably be expected to have a Material Adverse Effect or result in
a Lien
against any Collateral, except for Permitted Liens, (b)Β will maintain, in
accordance with GAAP, appropriate reserves for the accrual of all of their
respective obligations and liabilities, (c)Β will not breach, or permit to
exist any default under, the terms of any commitment, contract, instrument
or
obligation (other than Leases)Β to which it is a party, or by which its
properties or assets are bound, except for such breaches or defaults which
could
not reasonably be expected to have a Material Adverse Effect, and (d)Β will
not breach, or permit to exist any default under, the terms of any Material
Lease to which it is a party as a lessor.
Β
Β
Β
(a)Β Β Β Β Each
Borrower will preserve, renew and keep in full force and effect their respective
existence and their respective rights, privileges and franchises necessary
or
desirable in the normal conduct of business.
Β
(b)Β Β Β Β Each
Borrower will preserve, renew and keep in full force and effect their respective
existence and their respective rights, privileges and franchises necessary
or
desirable to, at all times, comply with all single purpose entity requirements
set forth on Exhibit
B.
If any
of the Term Loans are placed in a securitization, then Borrowers shall promptly
upon notice from Administrative Agent, amend their respective Organizational
Documents to incorporate the single purpose entity requirements set forth
on
Exhibit
B,
at
Borrowers' sole cost and expense. Neither Borrower's election to provide
home
healthcare services nor Borrower's compliance with Section 8.3(e) shall be
a
violation of this Section
4.3(b)
or
Exhibit
B.
Β
(c)Β Β Β Β At
all
times, ARC or a wholly-owned Affiliate of ARC shall own twenty percent (20%)
or
more of the membership interests in Cypress JV.
Β
Β
(a)Β Β Β Β Each
Borrower will keep all property useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted. If all or any
part
of the Collateral becomes damaged or destroyed, each Borrower will promptly
and
completely repair and/or restore the affected Collateral in a good and
workmanlike manner, provided that such Borrower shall only be obligated to
repair or restore the affected Collateral if Administrative Agent agrees
to
disburse insurance proceeds or other sums to pay costs of the work of repair
or
reconstruction. Borrowers will not commit or allow waste or permit impairment
or
deterioration of the Collateral or abandon all or any part of the Collateral.
Borrowers will perform such acts to preserve the value of Collateral. Each
Borrower will (i)Β preserve its or their interest in and title to the
Collateral and will forever warrant and defend the same to Administrative
Agent
and Lenders against any and all claims made by, through or under Borrowers,
and
(ii)Β except in respect of Permitted Liens, forever warrant and defend the
validity and priority of the lien and security interest created in the Security
Documents against the claims of all Persons whomsoever claiming by, through
or
under Borrowers. The foregoing warranty of title shall survive the foreclosure
of the Security Documents and shall inure to the benefit of and be enforceable
by Administrative Agent in the event Administrative Agent acquires title
to any
Collateral pursuant to any foreclosure.
Β
(b)Β Β Β Β Borrowers
will pay or cause to be paid all Taxes prior to the date upon which any fine,
penalty, interest or cost for nonpayment is imposed, and furnish to
Administrative Agent, upon request, receipted bills of the appropriate taxing
authority or other documentation reasonably satisfactory to Administrative
Agent
evidencing the payment thereof. If Borrowers shall fail to pay any Taxes
in
accordance with this Section and is not contesting or causing a contesting
of
such Taxes pursuant to a Permitted Contest,
Β
Β
or
if
there are insufficient funds in the applicable reserves or escrows under
Article
2 to pay any such Taxes, Administrative Agent shall have the right, but shall
not be obligated, to (for the account of all Lenders)Β pay such Taxes, and
Borrowers shall repay to Administrative Agent, on written demand, any amount
paid by Administrative Agent, with interest thereon from the date of the
advance
thereof to the date of repayment, at the rate applicable during periods of
Default hereunder, and such amount shall constitute a portion of the
Obligations. Borrowers shall not pay any Taxes or other obligations in
installments unless permitted by applicable Laws, and shall, upon the request
of
Administrative Agent, deliver copies of all notices and bills relating to
any
Taxes or other charge covered by this Section to Administrative
Agent.
Β
(c)Β Β Β Β Upon
completion of any Permitted Contest, Borrowers shall promptly pay the amount
due, if any, and deliver to Administrative Agent proof of the completion
of the
contest and payment of the amount due, if any, following which Administrative
Agent Lender shall return the security, if any, deposited with Lender pursuant
to the definition of Permitted Contest.Β
Β
(d)Β Β Β Β Each
Borrower will maintain (i)Β casualty insurance on all real and personal
property on an all risks basis (including the perils of flood and quake),
covering the repair and replacement cost of all such property and coverage
for
business interruption and rent loss and professional liability and public
liability insurance (including products/completed operations liability
coverage)Β in the amounts and on such terms as attached hereto as
Schedule
4.4,
and
(ii)Β such other insurance coverage in such amounts and with respect to such
risks as Administrative Agent may reasonably request. All such insurance
shall
be provided by insurers having an A.M. Best policyholders rating reasonably
acceptable to Administrative Agent. Borrowers will not bring or keep any
article
on any business location of any Credit Party, or cause or allow any condition
to
exist, if the presence of such article or the occurrence of such condition
could
reasonably cause the invalidation of any insurance required by this Section
4.4(d),
or
would otherwise be prohibited by the terms thereof.
Β
(e)Β Β Β Β On
or
prior to the Closing Date, and at all times thereafter, each Borrower will
cause
Administrative Agent to be named as an additional insured, assignee and loss
payee (which shall include, as applicable, identification as mortgagee),
as
applicable, on each insurance policy required to be maintained pursuant to
this
Section
4.4
pursuant
to endorsements in form and content acceptable to Administrative
Agent.
Borrowers will deliver to Administrative Agent and the Lenders (i)Β on the
Closing Date, a certificate from Borrowers' insurance broker dated such date
showing the amount of coverage as of such date, and that such policies will
include effective waivers (whether under the terms of any such policy or
otherwise)Β by the insurer of all claims for insurance premiums against all
loss payees and additional insureds and all rights of subrogation against
all
loss payees and additional insureds, and that if all or any part of such
policy
is canceled, terminated or expires, the insurer will forthwith give notice
thereof to each additional insured, assignee and loss payee and that no
cancellation, reduction in amount or material change in coverage thereof
shall
be effective until at least thirty (30)Β days after receipt by each
additional insured, assignee and loss payee of written notice thereof,
(ii)Β upon the
Β
Β
request
of any Lender through Administrative Agent from time to time full information
as
to the insurance carried, (iii)Β within five (5)Β days of receipt of
notice from any insurer, a copy of any notice of cancellation, nonrenewal
or
material change in coverage from that existing on the date of this Agreement,
and (iv)Β forthwith, notice of any cancellation or nonrenewal of coverage by
any Borrower.
Β
(f)Β Β Β Β In
the
event any Borrower fails to provide Administrative Agent with evidence of
the
insurance coverage required by this Agreement, Administrative Agent may purchase
insurance at Borrowers' expense to protect Administrative Agent's interests
in
the Collateral. This insurance may, but need not, protect any Borrower's
interests. The coverage purchased by Administrative Agent may not pay any
claim
made by any Borrower or any claim that is made against any Borrower in
connection with the Collateral. The applicable Borrower may later cancel
any
insurance purchased by Administrative Agent, but only after providing
Administrative Agent with evidence that such Borrower has obtained insurance
as
required by this Agreement. If Administrative Agent purchases insurance for
the
Collateral, to the fullest extent provided by law Borrowers will be responsible
for the costs of that insurance, including interest and other charges imposed
by
Administrative Agent in connection with the placement of the insurance, until
the effective date of the cancellation or expiration of the insurance. The
costs
of the insurance may be added to the Obligations. The costs of the insurance
may
be more than the cost of insurance each Borrower is able to obtain on its
own.
Β
(g)Β Β Β Β Borrowers
shall not carry separate insurance concurrent in form or contributing in
the
event of loss with that required to be maintained under this
Section.
Β
Β
Each
Borrower will comply with the requirements of all applicable Laws, except
to the
extent that failure to so comply could not reasonably be expected to
(a)Β have a Material Adverse Effect, or (b)Β result in any Lien upon
either (i)Β a material portion of the assets of any such Person in favor of
any Governmental Authority, or (ii)Β any portion of the
Collateral.
Β
Β
Each
Borrower will keep proper books of record and account in accordance with
GAAP in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will permit
at the
sole cost of the applicable Borrower, representatives of Administrative Agent
and of any Lender (but at such Lender's expense unless such visit or inspection
is made concurrently with Administrative Agent)Β to visit and inspect any of
their respective properties, to examine and make abstracts or copies from
any of
their respective books and records, to conduct a collateral audit and analysis
of their respective operations and the Collateral and to discuss their
respective affairs, finances and accounts with their respective officers,
employees and independent public accountants as often as may reasonably be
desired. In the absence of an Event of Default, Administrative Agent or any
Lender exercising any rights pursuant to this Section
Β
4.6
shall
give the applicable Borrower commercially reasonable prior notice of such
exercise, and shall not (except for and in addition to the annual inspection
fee) require Borrower to reimburse the costs and expenses incurred in connection
with such visit or inspection for more than one (1)Β visit per year. No
notice shall be required during the existence and continuance of any Event
of
Default.
Β
Β
Borrowers
will use the proceeds of the Term Loans solely for payment of amounts due
in
respect of an acquisition of equity interests or assets contemplated by the
Financing Documents, transaction fees incurred in connection with the Financing
Documents and the refinancing on the Closing Date of Debt. No portion of
the
proceeds of the Loans will be used for family, personal, agricultural or
household use.
Β
Β
Β
Β
(a)Β Β Β Β Each
Borrower covenants and agrees that so long as such Borrower owns, manages,
is in
possession of, or otherwise controls the operation of the Projects: (i)Β all
uses and operations on or of the Projects, whether by such Borrower or any
other
Person, shall be in compliance with all Environmental Laws and permits issued
pursuant thereto in all material respects; (ii)Β there shall be no material
Releases of Hazardous Materials in, on, under or from the Projects;
(iii)Β there shall be no Hazardous Materials in, on, or under the Projects,
except those that are both (A)Β in compliance with all Environmental Laws in
all material respects and with permits issued pursuant thereto, if and to
the
extent required, and (B)Β (I)Β in amounts not in excess of that
necessary to operate the Projects for the purposes set forth herein or
(II)Β fully disclosed to and approved by Administrative Agent in writing;
(iv)Β each Borrower shall keep the Projects free and clear of all
Environmental Liens; (v)Β each Borrower shall, at its sole cost and expense,
fully and expeditiously cooperate in all activities pursuant to Subsection
4.10(c)Β below,
including but not limited to providing all relevant information and making
knowledgeable persons available for interviews; (vi)Β each Borrower shall,
at its sole cost and expense, perform any environmental site assessment or
other
investigation of environmental conditions in connection with the Projects,
pursuant to any reasonable written request of Administrative Agent, upon
Administrative Agent's reasonable belief that any Project is not in compliance
with all Environmental Laws in all material respects, and share with
Administrative Agent the reports and other results thereof, and Administrative
Agent and Lenders shall be entitled to rely on such reports and other results
thereof; (vii)Β each Borrower shall, at its sole cost and expense, comply
with all reasonable written requests of Administrative Agent to
(A)Β reasonably effectuate remediation of any Hazardous Materials in, on,
under or from the Projects as required by Environmental Laws; and
(B)Β comply in all material respects with any Environmental Law;
(viii)Β Borrower shall not allow any Operating Lessee or other user of the
Projects to violate any Environmental Law; and (ix)Β each Borrower shall
immediately notify Administrative Agent in writing after
Β
Β
it
has
become aware of (A)Β any material Release or threatened Release of Hazardous
Materials in, on, under, from or migrating towards the Projects; (B)Β any
non-compliance with any Environmental Laws related in any way to the Projects
in
any material respects; (C)Β any actual or potential Environmental Lien
against the Projects; (D)Β any required or proposed remediation of
environmental conditions relating to the Projects; and (E)Β any written or
other communication of which any Borrower becomes aware from any source
whatsoever (including but not limited to a Governmental
Authority)Β effecting or relating in any way to Hazardous Materials and the
Borrowers or any Project.
Β
(b)Β Β Β Β Administrative
Agent and any other Person designated by Administrative Agent, including
but not
limited to any representative of a Governmental Authority, and any environmental
consultant, and any receiver appointed by any court of competent jurisdiction,
shall have the right, but not the obligation, to enter upon the Projects
at all
reasonable times to assess any and all aspects of the environmental condition
of
the Projects and its use, including but not limited to conducting any
environmental assessment or audit (the scope of which shall be determined
in
Administrative Agent's sole discretion)Β and taking samples of soil,
groundwater or other water, air, or building materials, and conducting other
invasive testing, provided, however, that so long as no Default has occurred
and
is continuing, Borrower shall have the right to approve any sampling or other
invasive testing, such approval not to be unreasonably withheld. Each Borrower
shall cooperate with and provide access to Administrative Agent and any such
person or entity designated by Administrative Agent.
Β
(c)Β Β Β Β Each
Borrower shall establish and comply with that any operations and maintenance
program if recommended by Administrative Agent's environmental consultant
with
respect to the Projects, in form and substance reasonably acceptable to
Administrative Agent, and prepared by an environmental consultant reasonably
acceptable to Administrative Agent, which program may address any
asbestos-containing material or lead based paint that may now or in the future
be detected at or on the Projects. Without limiting the generality of the
preceding sentence, Administrative Agent may require to the extent reasonable
under the circumstances (i)Β periodic notices or reports to Administrative
Agent in form, substance and at such intervals as Administrative Agent may
specify, (ii)Β an amendment to such operations and maintenance program to
address changing circumstances, laws or other matters, (iii)Β at each
Borrower's sole expense, supplemental examination of the Projects by consultants
specified by Administrative Agent, (iv)Β access to the Projects by
Administrative Agent, its agents or servicer, to review and assess the
environmental condition of the Projects and each Borrower's compliance with
any
operations and maintenance program, and (v)Β variation of the operations and
maintenance program in response to the reports provided by any such
consultants.
Β
(d)Β Β Β Β If
any
Release or disposal of Hazardous Materials shall occur or shall have occurred
on
any real property or any other assets of any Borrower, such Borrower will
cause
the prompt containment and removal of such Hazardous Materials and the
remediation of such real property or other assets as is necessary to comply
in
all material respects with all Environmental Laws and to preserve the value
of
such real property or other assets. Without limiting the generality of the
foregoing, each Borrower shall comply with each
Β
Β
Environmental
Law requiring the performance at any Project by any Borrower or any other
Credit
Party of activities in response to the Release or threatened Release of a
Hazardous Material.
Β
(e)Β Β Β Β If
requested by Administrative Agent, Borrowers
will provide Administrative Agent within thirty (30)Β days after written
demand therefor with a bond, letter of credit or similar financial assurance
evidencing to the reasonable satisfaction of Administrative Agent that
sufficient funds are available to pay the cost of removing, treating and
disposing of any Hazardous Materials or Hazardous Materials Contamination
and
discharging any assessment which may be established on any property as a
result
thereof, such demand to be made, if at all, upon Administrative Agent's
reasonable business determination that the failure to remove, treat or dispose
of any Hazardous Materials or Hazardous Materials Contamination, or the failure
to discharge any such assessment, could reasonably be expected to have a
Material Adverse Effect.
Β
Β
Borrower
will enter into such non-material modifications (which shall in no event
adversely change or effect the rights or obligations of Borrowers) to the
Financing Documents as Administrative Agent may reasonably request in order
to
complete a successful syndication of the Loans and the Loan commitments as
determined by Administrative Agent in the exercise of its reasonable discretion.
Such modifications shall include, without limitation, reallocation of the
Term
Loan Commitment.
Β
Β
(a)Β Β Β Β Each
Borrower will at its own cost and expense, cause to be promptly and duly
taken,
executed, acknowledged and delivered all such further acts, documents and
assurances as may from time to time be necessary or as Administrative Agent
or
the Required Lenders may from time to time reasonably request in order to
carry
out the intent and purposes of the Financing Documents and the transactions
contemplated thereby, including all such actions to establish, create, preserve,
protect and perfect a first priority Lien (subject only to Permitted
Liens)Β in favor of Administrative Agent for the benefit of the Lenders on
the Collateral (including Collateral acquired after the date hereof), including
on any and all assets of each Credit Party, whether now owned or hereafter
acquired.
Β
(b)Β Β Β Β Upon
receipt of an affidavit of an officer of Administrative Agent or a Lender
as to
the loss, theft, destruction or mutilation of any Note or any other Financing
Document which is not of public record, and, in the case of any such mutilation,
upon surrender and cancellation of such Note or other applicable Financing
Document, Borrowers will issue, in lieu thereof, a replacement Note or other
applicable Financing Document, dated the date of such lost, stolen, destroyed
or
mutilated Note or other Financing Document in the same principal amount thereof
and otherwise of like tenor.
Β
Β
Β
Borrowers
will give prompt written notice to Administrative Agent of any litigation
or
governmental proceedings pending or threatened (in writing) against any Credit
Party which might have a Material Adverse Effect with respect to Borrowers,
any
other Credit Party or any Project.
Β
Β
During
the 12 month period following the Closing Date, Borrowers shall spend at
least
$375,000 (over and above the expenditures required by Section
2.5(d))
for one
or more of the deferred maintenance items reflected on and as required by
Schedule
4.14.
Β
Β
Each
of
the officers of Administrative Agent is hereby irrevocably made, constituted
and
appointed the true and lawful attorney for Borrowers (without requiring any
of
them to act as such)Β with full power of substitution to do the following,
all during the existence of an Event of Default: (a)Β endorse the name of
Borrowers upon any and all checks, drafts, money orders, and other instruments
for the payment of money that are payable to Borrowers and constitute
collections on Borrowers' Accounts; (b)Β execute in the name of Borrowers
any schedules, assignments, instruments, documents, and statements that
Borrowers are obligated to give Administrative Agent under this Agreement;
(c)Β take any action Borrowers are required to take under this Agreement;
and (d)Β do such other and further acts and deeds in the name of Borrowers
that Administrative Agent reasonably may deem necessary or desirable to enforce
any Account or other Collateral or perfect Administrative Agent's security
interest or Lien in any Collateral. This
power of attorney shall be irrevocable and coupled with an
interest.
Β
Β
After
written request by Administrative Agent, Borrowers, within fifteen
(15)Β days and at their expense, will furnish Administrative Agent with a
statement, duly acknowledged and certified, setting forth (a)Β the amount of
the original principal amount of the Notes, and the unpaid principal amount
of
the Notes, (b)Β the rate of interest of the Notes, (c)Β the date
payments of interest and/or principal were last paid, (d)Β any offsets or
defenses to the payment of the Obligations, and if any are alleged, the nature
thereof, (e)Β that the Notes and this Agreement have not been modified or if
modified, giving particulars of such modification, and (f)Β that there has
occurred and is then continuing no Default or if such Default exists, the
nature
thereof, the period of time it has existed, and the action being taken to
remedy
such Default.
Β
NEGATIVE
COVENANTS
Β
Each
Borrower agrees that, so long as any Credit Exposure exists:
Β
Β
Β
No
Borrower will, directly or indirectly, create, incur, assume, guarantee or
otherwise become or remain directly or indirectly liable with respect to,
any
Debt, except for: (a)Β Debt under the Financing Documents;
(b)Β unsecured Debt in the form of trade payables aged in a manner
consistent with ARC's past business practices; but in no event more than
ninety
(90)Β days; (c)Β Debt incurred or assumed for the purpose of financing
all or any part of the cost of acquiring any equipment used by a Borrower
in the
operation of a Project in the Ordinary Course of Business (including through
Capital Leases), in an aggregate principal amount at any time outstanding
not
greater than $100,000 per Project; (d)Β Debt, if any, arising under Swap
Contracts; and (e)Β other Debt approved by Administrative Agent from time to
time in its sole discretion.
Β
Β
No
Borrower will, directly or indirectly, create, assume or suffer to exist
any
Lien on any asset now owned or hereafter acquired by it, except for Permitted
Liens.
Β
Β
No
Borrower will, directly or indirectly, create, assume, incur or suffer to
exist
any Contingent Obligations, except for:
Β
(a)Β Β Β Β Contingent
Obligations arising in respect of the Debt under the Financing
Documents;
Β
(b)Β Β Β Β Contingent
Obligations resulting from endorsements for collection or deposit in the
Ordinary Course of Business;
and
Β
(c)Β Β Β Β Contingent
Obligations arising under indemnity agreements with title insurers to cause
such
title insurers to issue to Administrative Agent mortgagee title insurance
policies.
Β
Β
No
Borrower will, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Distribution at any time during which any Default
or
Event of Default has occurred and is then continuing, or if such Restricted
Distribution is reasonably likely to result in a monetary Default or Event
of
Default (including, without limitation, any violation of any financial covenant
on a pro forma basis).
Β
Β
No
Borrower will, directly or indirectly enter into or assume any agreement
(other
than the Financing Documents)Β prohibiting the creation or assumption of any
Lien upon its properties or assets, whether now owned or hereafter
acquired.
Β
Β
Β
No
Borrower will, directly or indirectly declare, pay, make or set aside any
amount
for payment in respect of any Subordinated Debt except as may be permitted
by
the applicable Subordination Agreement.
Β
Β
No
Borrower will, directly or indirectly (a)Β consolidate or merge with or into
any other Person, or (b)Β consummate any Asset Dispositions other than
dispositions of personal property assets for cash and fair value that the
applicable Borrower determines in good faith is no longer used or useful
in the
business of such Borrower if
all of
the following conditions are met: (i)Β after giving effect to any such
disposition, Borrowers are in compliance on a pro forma basis with the covenants
set forth in ArticleΒ 6 recomputed for the most recently ended month and
quarter for which information is available as though such disposition and
repayment had occurred during such month and quarter and is in compliance
with
all other terms and conditions of this Agreement; and (ii)Β no Default or
Event of Default then exists or would result from any such
disposition.
Β
(b)Β Β Β Β Borrower
shall not assign or attempt to assign its rights under this Agreement and
any
purported assignment shall be void. Borrower shall not suffer or permit any
sale, transfer, lease (other than a Lease permitted by this Agreement),
conveyance, alienation, pledge, assignment, mortgage, encumbrance hypothecation
(other than Permitted Liens) or other disposition of (i)Β all or any portion
of the Project or any portion of any other security for the Loan, (ii)Β all
or any portion of the Borrower's right, title and interest (legal or equitable)
in and to the Project or any portion of any other security for the Loan,
or
(iii)Β any interest in Borrower or any interest in Cypress JV (except that
ARC or its wholly owned Affiliate may acquire the interest from CNL or an
Affiliate of CNL so long as the Mezzanine Loan indebtedness is repaid in
full)
or General Partner (any of the foregoing, a "Transfer").
In
addition, if ARC fails to continue to exercise (A) control over the day to
day
management and operation of Borrower's business or the Projects pursuant
to the
Management Agreements, and (B)Β the power to appoint two members of the
committee which manages Cypress JV during the term of the Loan, then Lender
may,
at Administrative Agent's option, declare the Loan to be immediately due
and
payable, and Administrative Agent may invoke any remedies permitted by the
Financing Documents.
Β
(c)Β Β Β Β In
addition to the prohibitions set forth in Section 5.7(b) above, Borrower
shall
not engage in or permit a Transfer that would constitute or result in the
occurrence of one or more non-exempt prohibited transactions under ERISA
or the
Internal Revenue Code. Borrower agrees to unwind any such Transfer upon notice
from Lender or, at Lender's option, to assist Lender in obtaining such
prohibited transaction exemption(s) from the United States Pension and Welfare
Benefits Administration with respect to such Transfer as are necessary to
remedy
such prohibited transactions.
Β
Β
Β
(a)Β Β Β Β No
Borrower will, directly or indirectly (a)Β acquire or enter into any
agreement to acquire any assets other than in the Ordinary Course of Business;
(b)Β create, acquire or enter into any agreement to create or acquire any
Subsidiary; (c)Β engage or enter into any agreement to engage in any joint
venture or partnership with any other Person; or (d)Β acquire or own or
enter into any agreement to acquire or own any investment in any
Person.
Β
Β
Except
as
otherwise disclosed on Schedule
5.9,
and
except for transactions that are disclosed to Administrative Agent in advance
of
being entered into and which contain terms that are no less favorable to
the
applicable Borrower than those which might be obtained from a third party
not an
Affiliate of any Credit Party, no Borrower will, directly or indirectly,
enter
into or permit to exist any transaction (including the purchase, sale, lease
or
exchange of any property or the rendering of any service)Β with any
Affiliate of any Borrower.
Β
Β
No
Borrower or Cypress JV will, directly
or indirectly, amend
or
otherwise modify any Organizational Documents of such Person, except for
such
amendments or other modifications required under this Agreement, or by
applicable Law and fully disclosed to Administrative Agent, or amendments
which
are not material, provided that such amendments are submitted to Lender no
later
than five (5)Β Business Days before becoming effective.
Β
Β
Without
Administrative Agent's prior written consent, not to be unreasonably withheld,
no Borrower will, directly or indirectly, amend or otherwise modify any Material
Contract, which amendment or modification in any case:
Β
(a)Β Β Β Β is
contrary to the terms of this Agreement or any other Financing
Document;
Β
(b)Β Β Β Β could
reasonably be expected to be adverse to the rights, interests or privileges
of
the Administrative Agent or the Lenders or their ability to enforce the
same;
Β
(c)Β Β Β Β results
in the imposition or expansion in any material respect of any restriction
or
burden on any Borrower; or
Β
(d)Β Β Β Β reduces
in any material respect any rights or benefits of any Borrower (it being
understood and agreed that any such determination shall be in the reasonable
discretion of the Administrative Agent).
Β
Β
Without
Administrative Agent's prior written consent which may be granted or withheld
in
Administrative Agent's sole and absolute discretion, no Borrower will amend
any
Management Agreement. Each Borrower shall, prior to entering into any amendment
or other modification of any of the foregoing documents, deliver to
Administrative Agent reasonably in advance of the execution thereof, any
final
or execution form copy of amendments or other modifications to such
documents.
Β
Β
No
Borrower will change its Fiscal Year without the prior written consent of
Administrative Agent.
Β
Β
No
Borrower will, directly or indirectly, engage in any line of business other
than
those businesses engaged in on the Closing Date and businesses reasonably
related thereto.
Β
Β
No
Borrower will lease any Licensed Location under any Operating Lease without
Administrative Agent's consent, which may be withheld in Administrative Agent's
sole discretion.
Β
Β
No
Borrower will, directly
or indirectly, incur
or
assume (whether pursuant to a Guarantee or otherwise)Β any liability for
rental payments under a lease if, after giving effect thereto, the aggregate
amount of minimum lease payments that Borrowers have so incurred or assumed
will
exceed, $50,000 per Project for any calendar year under all such leases
(excluding Capital Leases).
Β
Β
No
Borrower will, directly or indirectly, enter into any arrangement with any
Person whereby in a substantially contemporaneous transaction any Borrower
sells
or transfers all or substantially all of its right, title and interest in
an
asset and, in connection therewith, acquires or leases back the right to
use
such asset.
Β
Β
Administrative
Agent hereby notifies Borrowers that pursuant to the requirements of
Anti-Terrorism Laws, and Administrative Agent's policies and practices,
Administrative Agent is required to obtain, verify and record certain
information and documentation that identifies Borrowers and its principals,
which information includes the name and address of each Borrower and its
principals and such other information that will allow Administrative Agent
to
identify such party in accordance with Anti-Terrorism Laws.
Β
Β
No
Borrower will, directly or indirectly, knowingly enter into any Financing
Documents or Material Contracts with any Person listed on the OFAC Lists.
Each
Borrower shall immediately notify Administrative Agent if such Borrower has
knowledge that any Borrower or any additional Credit Party is listed on the
OFAC
Lists or (a)Β is convicted on, (b)Β pleads nolo contendere to,
(c)Β is indicted on, or (d)Β is arraigned and held over on charges
involving money laundering or predicate crimes to money laundering. No Borrower
will, directly or indirectly, (i)Β conduct any business or engage in any
transaction or dealing with any Blocked Person, including, without limitation,
the making or receiving of any contribution of funds, goods or services to
or
for the benefit of any Blocked Person, (ii)Β deal in, or otherwise engage in
any transaction relating to, any property or interests in property blocked
pursuant to Executive Order No.Β 13224, any similar executive order or other
Anti-Terrorism Law, or (iii)Β engage in or conspire to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding,
or
attempts to violate, any of the prohibitions set forth in Executive Order
No.Β 13224 or other Anti-Terrorism Law.
Β
FINANCIAL
COVENANTS
Β
Borrowers
agree that, so long as any Credit Exposure exists:
Β
Β
(a)Β Β Β Β As
used
in this Article 6, the following terms have the following meanings:
Β
(i)Β Β Β Β "Debt
Yield Ratio"
means
the ratio (expressed as a percentage)Β of Net Operating Income (measured for
the trailing six (6)Β months and on an annualized basis)Β to the average
outstanding balance of the Loans at the time of determination.
Β
(ii)Β Β Β Β "Debt
Service"
means
all debt service (principal, if any, interest and recurring charges and fees
payable under this Agreement).
Β
(iii)Β Β Β Β "Debt
Service Coverage Ratio"
means
the ratio of Net Operating Income (measured for the trailing six (6) months
and
on an annualized basis) to Debt Service (measured for the trailing six (6)
months on an annualized basis).
Β
(iv)Β Β Β Β "Net
Operating Income"
means
"Operating
Revenue"
for the
applicable period annualized minus
"Operating
Expenses"
for the
applicable period.
Β
(v)Β Β Β Β "Operating
Revenue"
means
the sum of the following, based on customary industry accounting practices
and
reasonable adjustments made by Administrative Agent, and adjusted, however,
to
reflect a vacancy factor equal to the greater of actual vacancy or five percent
(5%):
Β
(A)Β Β Β Β all
amounts collected by or on behalf of Borrowers (including payments from Licensed
Operators) from residents of the Project
Β
Β
(including,
without limitation, rent, patient day charges, assisted living services,
rehabilitation service charges, non-refundable deposits, entrance fees and
property fees), as recognized revenue under GAAP, excluding:
(1)Β nonrecurring income, extraordinary items, revenues items of the type
described in subpart (C)Β below and other non-property related income (each
as reasonably determined by Administrative Agent); and (2)Β income from
residents (i)Β that are thirty (30)Β or more days delinquent,
(ii)Β that have been thirty (30)Β or more days delinquent two
(2)Β or more times during the immediately prior twelve (12)Β month
period, plus
Β
(B)Β Β Β Β without
duplication, all revenues of Licensed Operator in the form of reimbursements
under Third Party Payor Programs for services rendered during the preceding
three (3)Β months (and specifically excluding any cost report settlements or
other payments received in respect of services rendered prior to the preceding
three (3)Β months), plus
Β
(C)Β Β Β Β without
duplication, other operating revenues of Borrowers not to exceed $1,000.00
per
month for vending, catering and special events, food and beverage, parking,
subleases and other occupancy payments (other than late fees and interest
income)Β based upon collections and that are a normal, recurring operating
revenue, minus
Β
(D)Β Β Β Β rebates,
free rent and other concessions made by Borrowers (or Manager)Β to induce
residents to enter into Resident Agreements.
Β
(vi)Β Β Β Β "Operating
Expenses"
means
the sum of the following for any period: the expenses incurred by Borrowers
and
Manager in connection with operating the Projects (including any amounts
of
corporate overhead expense of ARC actually allocated by ARC and/or CNL to
Borrowers and/or the Projects, if any), determined on a stabilized accrual
basis
for such period (as determined in accordance with GAAP, and as reasonably
adjusted by Administrative Agent), including, without limitation:
(1)Β recurring expenses (e.g., real estate tax and insurance expenses or
deposits, tenant improvements, leasing commissions, carpeting replacement,
appliance and drapery replacement and such others as determined by
Lender)Β which are not paid out of the replacement reserve,
(2)Β management fees (whether paid or not)Β in an amount equal to the
greater of actual fees accrued or five percent (5%)Β of effective gross
income for the Projects, (3)Β a replacement reserve (whether reserved or
not)Β of not less than $300 per residential unit per annum, and (4)Β all
interest and fee obligations accruing under any Debt (other than scheduled
payments due and owing under the Loan). Insurance expenses shall be calculated
at the greater of (1)Β actual annual insurance premiums plus claims paid or
accrued (without duplication)Β for which no insurance coverage is available,
or (2)Β $400 per residential unit, per year.
"Operating
Expenses"
shall
specifically exclude income taxes, depreciation, and amortization.
Β
Β
Β
Β
Β
Β
Borrowers
covenant and agree to maintain the following minimum Debt Yield Ratio and
minimum Debt Service Coverage Ratio for the applicable period shown below
throughout the term of the Loan:
Β
|
Testing
Period
|
Β |
Minimum
Debt
Yield
Ratio
|
Β |
Minimum
Debt
Service
Coverage
Ratio
|
|
Each
six (6)Β month period ending DecemberΒ 31, 2006 and MarchΒ 31,
2007
|
Β |
6.00%
|
Β |
none
|
|
Each
six (6)Β month period ending JuneΒ 30, 2007, September 30, 2007,
DecemberΒ 31, 2007 and MarchΒ 31, 2008
|
Β |
8.00%
|
Β |
1.10
to 1.00
|
|
Each
six (6) month period ending JuneΒ 30, 2008, SeptemberΒ 30, 2008
and DecemberΒ 31, 2008
|
Β |
9.00%
|
Β |
1.20
to 1.00
|
|
Each
six (6)Β month period thereafter
|
Β |
10.00%
|
Β |
1.20
to 1.00
|
| Β | Β | Β | Β | Β |
Determinations
of compliance with the covenants in this Section
6.5
(collectively, the "Financial
Covenants")Β shall
be calculated as of the first (1st)
day of
each calendar quarter (commencing with a calculation as of JanuaryΒ 1,
2007).
Β
Β
Borrowers
shall furnish to Lender, concurrently with the financial reports and
documentation required by Section
4.1(b)(v),
evidence (in form and content satisfactory to Lender)Β of Borrowers'
compliance with the covenants in this Article and evidence that no Event
of
Default specified in this Article has occurred. Such evidence shall include,
without limitation, (a)Β a statement and report, on a form approved by
Administrative Agent, detailing Borrowers' calculations, and (b)Β if
requested by Administrative Agent, back-up documentation (including, without
limitation, invoices, receipts and other evidence of costs incurred during
such
quarter as Administrative Agent shall reasonably require)Β evidencing the
propriety of the calculations.
Β
Β
(a)Β Β Β Β In
the
event that Borrowers fail to satisfy either of the Financial Covenants as
of any
calculation date (i.e., the date as of which covenant compliance is
Β
Β
calculated;
not the date on which the determination of compliance or non-compliance is
made), Borrowers shall, within ten (10)Β calendar days after the date the
financial reports and compliance certificates required by Sections
4.1(b)(v)Β and
6.6
are due,
pay to Administrative Agent, as a mandatory prepayment, an amount (a
"Covenant
Prepayment")Β which,
if such amount were applied against the outstanding principal balance of
the
Loans, would be sufficient to satisfy each of the Financial Covenants as
of such
calculation date, calculating the outstanding principal balance of the Loans
after giving proforma effect to such Covenant Prepayment. Failure to satisfy
one
or both of the Financial Covenants shall be deemed an Event of Default under
Section
11.1
only if
Borrowers fail to make the Covenant Prepayment, together with the proportionate
amount of the Exit Fee owing with respect thereto, within said ten (10)Β day
period.
Β
(b)Β Notwithstanding
the provisions of Section 6.7(a), if Borrowers fail to satisfy one or both
of
the Financial Covenants for the first or second time during the term of the
Loans and no monetary Default or Event of Default has occurred and is
continuing, then, instead of applying the required Covenant Prepayment to
the
Loans, Administrative Agent shall hold such Covenant Prepayment as a cash
collateral deposit ("Covenant Deposit")Β without interest, and the
proportionate amount of the Exit Fee otherwise payable with respect thereto
will
not be payable except as and until provided below. If at any time after
Administrative Agent receives a Covenant Deposit, Borrowers satisfy the
Financial Covenants (without having to make a Covenant Prepayment and without
taking into account the Covenant Deposit)Β for two (2)Β consecutive
calendar quarters and provided that the Covenant Deposit has not theretofore
been applied to the Indebtedness as a result of the occurrence of an Event
of
Default or the occurrence of a third failure to satisfy either or both of
the
Financial Covenants, the Covenant Deposit shall be returned to Borrowers.
The
Covenant Deposit, if any, shall be given proforma application to principal
balance of the Loans solely for purposes of determining whether an additional
amount should be paid to Administrative Agent and added to the Covenant Deposit
if the Financial Covenants is not satisfied for a second time. If the Financial
Covenants is not satisfied (whether or not a Covenant Prepayment is
made)Β for a third time, then (i)Β Administrative Agent shall no longer
be required to hold any Covenant Prepayments as a Covenant Deposit and all
subsequent Covenant Prepayments shall be applied to the principal balance
of the
Loans and (ii)Β the Covenant Deposit, if any, shall be applied to the
principal balance of the Loans and the proportionate amount of the Exit Fee
with
respect thereto shall be due and payable within ten (10)Β calendar days
after the date of determination of non-compliance. The Covenant Deposit shall
be
Collateral. If an Event of Default occurs at any time, the Covenant Deposit
may
be immediately applied to the Indebtedness in such order as Administrative
Agent
determines and the Exit Fee shall be due with respect thereto.
Β
CONDITIONS
Β
Β
The
obligation of each Lender to make the initial Loans shall be subject to the
receipt or waiver by Administrative Agent of each agreement, document and
instrument set
Β
Β
forth
on
the closing checklist prepared by Administrative Agent or its counsel and
provided to Borrower in anticipation of Closing, each in form and substance
satisfactory to Administrative Agent, and to the satisfaction of the following
conditions precedent, each to the satisfaction of Administrative Agent in
its
sole discretion:
Β
(a)Β Β Β Β evidence
of the consummation of the transactions (other than the funding of the Loans
and
the closing of any acquisition for which the proceeds of the Loans are purchase
money)Β contemplated by the Financing Documents;
Β
(b)Β Β Β Β the
payment of all fees, expenses and other amounts due and payable under each
Financing Document;
Β
(c)Β Β Β Β the
absence, since DecemberΒ 31, 2005, of any material adverse change in any
aspect of the business, operations, properties, prospects or condition
(financial or otherwise)Β of any Credit Party, or any event or condition
which could reasonably be expected to result in such a material adverse change;
Β
(d)Β Β Β Β evidence
that ARC and CNL have invested a minimum of $5,450,150 of cash equity in
Borrowers, of which CNL has invested a minimum of $1,040,250 of cash equity,
in
addition to CNL's equity contributions from the proceeds of the Mezzanine
Loan,
and such equity infusion has been used by Borrowers to fund the transactions
under the Financing Documents and otherwise for working capital purposes,
and
all portions of such cash equity infusion which are not used on the Closing
Date
to fund the transactions under the Financing Documents shall remain available
to
Borrowers for working capital purposes and shall be unencumbered (other than
by
any Lien of Administrative Agent); and
Β
(e)Β Β Β Β all
conditions to funding of the Mezzanine Loan are satisfied.
Β
Β
Before
Closing, and thereafter (as and when determined by Administrative Agent in
its
discretion), Administrative Agent shall have the right to perform, all at
Borrowers' expense, the searches described in clauses (a), (b)Β and
(c)Β below against Borrowers and any other Credit Party, the results of
which are to be consistent with Borrowers' representations and warranties
and
covenants under this Agreement:
Β
(a)Β Β Β Β UCC
searches with the Secretary of State and local filing offices of each
jurisdiction where the applicable Person maintains its executive offices,
a
place of business, or assets and the jurisdiction in which the applicable
Person
is organized;
Β
(b)Β Β Β Β Judgment,
pending litigation, federal tax lien, personal property tax lien, and corporate
and partnership tax lien searches, in each jurisdiction searched under clause
(a)Β above;
Β
(c)Β Β Β Β Real
property title and lien searches in each jurisdiction in which any real property
Collateral is located; and
Β
Β
(d)Β Β Β Β Searches
of applicable corporate, limited liability company, partnership and related
records to confirm the continued existence, organization and good standing
of
the applicable Person and the exact legal name under which such Person is
organized.
Β
Β
Borrowers
shall complete and/or satisfy the obligations described on Schedule
7.3
within
the time periods set forth therein.
Β
REGULATORY
MATTERS
Β
Each
Borrower agrees that, so long as any Credit Exposure exists (for the avoidance
of doubt, any provisions relating to any CON with respect to any Licensed
Location shall be applicable only to the extent CON is required or may hereafter
be required under applicable Law with respect to such Licensed
Location):
Β
Β
To
induce
Administrative Agent and Lenders to enter into this Agreement and to make
the
Loans and other credit accommodations contemplated hereby, each Borrower
hereby
represents and warrants to Administrative Agent and each Lender that:
Β
(a)Β Β Β Β Each
of
the Projects is an independent living facility with respect to which no
Healthcare Permit is required for the operation thereof. None of the Licensed
Locations are in violation of any Health Care Laws, except where any such
violation would not have a Material Adverse Effect.
Β
(b)Β Β Β Β To
the
extent healthcare goods or services are provided at a Project, the Borrower
that
is the owner of such Project has (i)Β or is in the process of obtaining or
causing the Licensed Operator to obtain each Healthcare Permit and other
rights
from, and has made all declarations and filings with, all applicable
Governmental Authorities, all self regulatory authorities and all courts
and
other tribunals necessary, if any, to engage in the provision of such goods
and/or services and (ii)Β no knowledge that any Governmental Authority is
considering limiting, suspending or revoking any such Healthcare Permit.
All
Healthcare Permits which have been issued, if any, are valid and in full
force
and effect. Each Borrower who is the owner of a Licensed Location is or,
when
the applicable Healthcare Permit is issued, will be in material compliance
with
the terms and conditions of all such Healthcare Permits except where failure
to
be in such compliance or for a Healthcare Permit to be valid and in full
force
and effect would not have a Material Adverse Effect.
Β
(c)Β Β Β Β If
applicable, each Licensed Location has received and maintains accreditation
in
good standing and without impairment by all applicable accrediting
organizations, to the extent required by law (including any equivalent
regulation)Β or the terms of any Lease pertaining to the Licensed
Location.
Β
Β
(d)Β Β Β Β No
Borrower is a participant in any federal program whereby any federal, state
or
local government or quasi-governmental body, agency, board or other authority
may have the right to recover funds by reason of the advance of federal funds,
including, without limitation, those authorized under the Xxxx-Xxxxxx Act
(42
U.S.C. 291, et
seq.).
No
Borrower has received notice, and no Borrower is aware of any violation of
applicable anti-trust laws of any federal, state or local government or
quasi-governmental body, agency, board or other authority pertaining to the
Licensed Locations.
Β
(e)Β Β Β Β Each
Borrower that is the owner of a Licensed Location is the owner of record
of any
CON pertaining to such Licensed Location. If under applicable Healthcare
Laws,
the CON for a Licensed Location operated by a Borrower merges into a
state-issued license to operate the Licensed Location, then each such Borrower
is the owner of record of any CON pertaining to such Licensed
Location.
Β
(f)Β Β Β Β Each
Project located in a state where licensing as an independent living facility
is
not required under the applicable laws of the state where the Project is
located.
Β
(g)Β Β Β Β The
Licensed Locations and Licensed Operators do not have any uncorrected licensure
deficiencies.
Β
(h)Β Β Β Β Each
of
the representations and warranties of the Licensed Operators set forth in
Section
8.2
below
are true, complete and correct.
Β
(i)Β Β Β Β If
(i)Β any Borrower or is or becomes a "covered entity"
within
the meaning of HIPAA, or (ii)Β any Borrower is or becomes subject to the
"Administrative Simplification"
provisions of HIPAA, such Borrower is HIPAA Compliant.
Β
Β
To
induce
Administrative Agent and Lenders to enter into this Agreement and to make
the
Loans and other credit accommodations contemplated hereby, Borrowers hereby
represent and warrant the following to Administrative Agent:
Β
(a)Β Β Β Β Each
of
the representations and warranties of Borrowers set forth in Sections
8.1(a)Β through
8.1(f)Β above
are
true, complete and correct.
Β
(b)Β Β Β Β No
Licensed Operator is in violation of any of the Health Care Laws, except
where
any such violation would not have a Material Adverse Effect.
Β
(c)Β Β Β Β To
the
extent goods or services are being provided at a Project which require a
Healthcare Permit, each Licensed Operator has (i)Β or is in the process of
obtaining each Healthcare Permit and other rights from, and has made all
declarations and filings with, all applicable Governmental Authorities, all
self
regulatory authorities and all courts and other tribunals necessary to engage
in
the business conducted by it except for such Healthcare Permits with respect
to
which the failure to obtain would not have a Material Adverse Effect and
(ii)Β no knowledge that any Governmental Authority is
considering
Β
Β
limiting,
suspending or revoking any such Healthcare Permit. All Healthcare Permits
which
have been issued, if any, are valid and in full force and effect. Each Licensed
Operator is or upon issuance of the applicable Healthcare Permits, will be
in
material compliance with the terms and conditions of all such Healthcare
Permits
except where failure to be in such compliance or for a Healthcare Permit
to be
valid and in full force and effect would not have a Material Adverse
Effect.
Β
(d)Β Β Β Β To
the
extent a Licensed Operator submits claims to Governmental Payors, the Licensed
Operator has the requisite provider number and, if required, Healthcare Permits,
to xxxx Governmental Payors, except where the failure to have such provider
number or Healthcare Permits would not have a Material Adverse Effect. To
the
extent a Licensed Operator submits claims to Third Party Payors, the Licensed
Operator has any Healthcare Permit necessary to xxxx Third Party Payors except
where the failure to have such Healthcare Permit would not have a Material
Adverse Effect. There is no investigation, audit, claim review, or other
action
pending or, to the knowledge of any Licensed Operator, threatened which could
result in a revocation, suspension, termination, probation, restriction,
limitation, or non-renewal of any provider number or other Healthcare Permit
or
result in a Licensed Operator's or Licensed Location's exclusion from any
Governmental Payor program or Third Party Payor Program, nor has any Third
Party
Payor Program made any decision not to renew any provider agreement related
to
the Licensed Locations, nor have the Licensed Locations or Licensed Operators
made any decision not to renew any provider agreement, nor is there any action
pending or threatened to impose material intermediate or alternative sanctions
with respect to the Licensed Locations.
Β
(e)Β Β Β Β All
Medicare, Medicaid, and private insurance cost reports and financial reports
submitted by the Licensed Operator will be when submitted materially accurate
and complete and will not be misleading in any material respects. No cost
reports for the Licensed Locations remain "open" or unsettled, except as
otherwise disclosed to Administrative Agent.
Β
(f)Β Β Β Β If
applicable, each Licensed Operator has received and maintains accreditation
in
good standing and without impairment by all applicable accrediting
organizations, to the extent required by law (including any equivalent
regulation)Β or the terms of any Lease pertaining to the Licensed
Location.
Β
(g)Β Β Β Β No
Licensed Operator has been, or to its knowledge has been threatened to be,
(i)Β excluded from U.S. health care programs pursuant to 42 U.S.C. Β§1320a7
and related regulations, (ii)Β "suspended" or "debarred" from selling
products to the U.S. government or its agencies pursuant to the Federal
Acquisition Regulation, relating to debarment and suspension applicable to
federal government agencies generally (48 C.F.R. Subpart 9.4), or other
applicable laws or regulations, or (iii)Β made a party to any other action
by any governmental authority that may prohibit it from selling products
to any
governmental or other purchaser pursuant to any Law.
Β
(h)Β Β Β Β No
statement of charges or deficiencies has been made or penalty enforcement
action
has been undertaken against the Licensed Locations or any Licensed
Β
Β
Operator
(or any officer, director or stockholder of any of the foregoing)Β during
the last three (3)Β calendar years, and there have been no violations over
the past three (3)Β calendar years which have threatened any certification
of the Licensed Locations or any Licensed Operator for participation in
Medicare, Medicaid or other Third Party Payor Programs. There are no current,
pending or outstanding Medicare, Medicaid or Third Party Payor Program
reimbursement audits or appeals pending at the Licensed Locations.
Β
(i)Β Β Β Β Neither
Licensed Operators nor the Licensed Locations are subject to any proceeding,
suit or investigation by any federal, state or local government or
quasi-governmental body, agency, board or authority or any other administrative
or investigative body which may result in the imposition of a fine, alternative,
interim or final sanction, a lower reimbursement rate for services rendered
to
eligible patients which has not been provided for on their respective financial
statements, or which would have a material adverse effect on any Licensed
Operator or the operation of the Licensed Locations, or which would result
in
the revocation, transfer, surrender, suspension or other impairment of the
operating certificate or provider agreement of the Licensed Locations, nor
any
Healthcare Permit.
Β
(j)Β Β Β Β There
are
no Resident Agreements with patients or residents of the Licensed Locations
or
with any other persons or organizations which deviate in any material adverse
respect from the standard form customarily used at an independent living
facility or which conflict with any statutory or regulatory requirements.
All
resident records at the Licensed Locations and in the possession of or created
by the Licensed Operators, including resident trust fund accounts, are true
and
correct in all material respects.
Β
(k)Β Β Β Β Neither
the execution nor performance by Licensed Operator of any Financing Documents
nor the exercise of any remedies by any party thereunder, will adversely
affect
Licensed Operator's right to receive payments and reimbursements from
Governmental Payors with respect to the Licensed Locations, nor materially
reduce the payments and reimbursements from Governmental Payors which Licensed
Operator is receiving as of the date hereof.
Β
(l)Β Β Β Β Licensed
Operator is not a participant in any federal program whereby any federal,
state
or local government or quasi-governmental body, agency, board or other authority
may have the right to recover funds by reason of the advance of federal funds,
including, without limitation, those authorized under the Xxxx-Xxxxxx Act
(42
U.S.C. 291, et
seq.).
Β
(m)Β Β Β Β Licensed
Operator has received no notice, and is not aware of any violation in any
material respect of applicable antitrust laws, employment or landlord-tenant
Laws of any federal, state or local government or quasi-governmental body,
agency, board or other authority with respect to the Licensed Locations or
Licensed Operator.
Β
(n)Β Β Β Β No
Licensed Operator, or any of its respective officers, directors, shareholders
or
members has ever been charged with or investigated for committing any violation
of any state or federal statute or regulation involving fraudulent and
abusive
Β
Β
practices
relating to its or his participation in state or federally sponsored
reimbursement programs, including, without limitation, fraudulent billing
practices. The Licensed Locations and, to the knowledge of the Licensed
Operator, their contractors, have properly and legally billed all intermediaries
and Third Party Payors for services rendered with respect to the Licensed
Locations and have maintained their records to reflect such billing practices.
No funds relating to the Licensed Operators are now, or, to the knowledge
of the
Licensed Operators will be, withheld by any Medicare intermediary or other
Third
Party Payor. Neither the Licensed Locations nor any other healthcare facilities
managed by the Licensed Operator, nor any officer, director, shareholder
or
member of the Licensed Operator has engaged in any of the following:
(i)Β knowingly and willfully making or causing to be made a false statement
or representation of a material fact in any application for any benefit or
payment under any Healthcare Laws; (ii)Β knowingly and willfully making or
causing to be made any false statement or representation of a material fact
for
use in determining rights to any benefit or payment under any Healthcare
Laws;
(iii)Β failing to disclose knowledge by a claimant of the occurrence of any
event affecting the initial or continued right to any benefit or payment
under
any Healthcare Laws on its own behalf or on behalf of another, with intent
to
secure such benefit or payment fraudulently; (iv)Β knowingly and willfully
soliciting or receiving any remuneration (including any kickback, bribe or
rebate), directly or indirectly, overtly or covertly, in cash or in kind
or
offering to pay such remuneration (A)Β in return for referring an individual
to a Person for the furnishing or arranging for the furnishing of any item
or
service for which payment may be made in whole or in part by any Healthcare
Laws, or (B)Β in return for purchasing, leasing or ordering or arranging for
or recommending the purchasing, leasing or ordering of any good, facility,
service, or item for which payment may be made in whole or in part by any
Healthcare Laws; (v)Β presenting or causing to be presented a claim for
reimbursement for services that is for an item or services that was known
or
should have been known to be (A)Β not provided as claimed, or (B)Β false
or fraudulent; or (vi)Β knowingly and willfully making or causing to be made
or inducing or seeking to induce the making of any false statement or
representation (or omitting to state a fact required to be stated therein
or
necessary to make the statements contained therein not misleading)Β of a
material fact with respect to (A)Β a facility in order that the facility may
qualify for Governmental Authority certification, or (B)Β information
required to be provided under 42 U.S.C. Β§ 1320a-3.
Β
(o)Β Β Β Β If
applicable, Licensed Operator is HIPAA Compliant.
Β
Β
To
induce
Administrative Agent and Lenders to enter into this Agreement and to make
the
Loans and other credit accommodations contemplated hereby, each Borrower
hereby
covenants and agrees with Administrative Agent and each Lender that:
Β
(a)Β Β Β Β If
required under applicable Healthcare Laws, each Borrower has and shall maintain
in full force and effect a valid CON for no less than the number of units
in the
Licensed Locations as of the date of this Agreement.
Β
Β
(b)Β Β Β Β Each
Borrower shall maintain any applicable CON free from restrictions or known
conflicts which would materially impair the use or operation of each Licensed
Location for its current use, and shall not permit any CON to become
provisional, probationary or restricted in any way.
Β
(c)Β Β Β Β No
Borrower shall do (or suffer to be done by a Borrower or any Affiliate of
a
Borrower)Β any of the following without Administrative Agent's prior written
consent, which consent shall not be unreasonably withheld, conditioned or
delayed:
Β
(i)Β Β Β Β Replace
or transfer all or any part of any Licensed Location's units to another site
or
location;
Β
(ii)Β Β Β Β Transfer
or demise (other than a demised under an Operating Lease approved by
Administrative Agent in writing)Β any CON or other Healthcare Permit or
rights thereunder to any Person (other than Administrative Agent)Β or to any
location other than the Licensed Location to which such CON or Governmental
Approval pertains; or
Β
(iii)Β Β Β Β Pledge
or
hypothecate any CON or other Healthcare Permit as collateral security for
any
indebtedness other than indebtedness to Lender.
Β
(d)Β Β Β Β If
any
Licensed Location is currently accredited by JCAHO, Borrowers shall use diligent
efforts to do the following except to the extent that a Licensed Operator
is
otherwise obligated to do the following pursuant to any Lease: (i)Β maintain
such accreditation in good standing and without limitation or impairment,
(ii)Β promptly submit to JCAHO a plan of correction for any deficiencies
listed on any JCAHO accreditation survey report, and (iii)Β cure all such
deficiencies within such time frame as is necessary to preserve and maintain
in
good standing and without limitation or impairment such JCAHO
accreditation.
Β
(e)Β Β Β Β Within
twelve (12) months after the Closing Date, Borrowers will cause clinical
therapy
and rehabilitation services and companion programs to be offered and provided
at
the Projects and obtain all Healthcare Permits required to offer and provide
such services and programs. All revenue from such services shall be payable
to a
Borrower and not a third party provider.
Β
Β
To
induce
Administrative Agent and Lenders to enter into this Agreement and to make
the
Loans and other credit accommodations contemplated hereby, Borrowers hereby
covenant and agree to the following:
Β
(a)Β Β Β Β Licensed
Operators shall do nothing to cause Borrower to breach any of the provisions
of
Section
8.3.
Β
Β
(b)Β Β Β Β Licensed
Operators will:
Β
(i)Β Β Β Β timely
file or caused to be timely filed (after giving effect to any extension duly
obtained), all notifications, reports, submissions, Permit renewals, cost
reports and other reports of every kind whatsoever required by Healthcare
Laws
(which reports will be materially accurate and complete in all respects and
not
misleading in any material respect and shall not remain open or
unsettled);
Β
(ii)Β Β Β Β if
not
issued as of the Closing Date, use diligent efforts to obtain all Healthcare
Permits necessary under Healthcare Laws to carry on the business at the Licensed
Locations as it is conducted on the Closing Date or as necessary to provide
the
services and programs described in Section
8.3(e);
and
once any Healthcare Permit is issued, maintain in full force and effect,
and
free from restrictions, probations, conditions or known conflicts which would
materially impair the use or operation of any Licensed Location for its current
use, all such Healthcare Permits necessary under Healthcare Laws (A)Β to
carry on the business of Licensed Operator as it is conducted on the Closing
Date, and (B)Β if Licensed Operator receives or has applied for Medicaid or
Medicare reimbursements as part of its business, to continue to receive
reimbursement under Medicare and Medicaid in full compliance with all
requirements for participation in, and for the licensure required to provide
the
services that are reimbursable under, Medicare and Medicaid, including, without
limitation, the Medicare and Medicaid Patient Protection Act of 1987, as
the
same may be amended, and such other Third Party Payor Programs as to which
any
Licensed Operator receives or has applied for reimbursement as part of its
business;
Β
(iii)Β Β Β Β not
suffer or permit to occur any of the following:
Β
(A)Β Β Β Β any
transfer of a Healthcare Permit or rights thereunder to any Person (other
than a
Borrower or Administrative Agent)Β or to any location other than a Licensed
Location approved by Administrative Agent in advance in writing;
Β
(B)Β Β Β Β any
pledge or hypothecation of any Healthcare Permit as collateral security for
any
indebtedness other than indebtedness to Administrative Agent;
Β
(C)Β Β Β Β any
rescission, withdrawal, revocation, amendment or modification of or other
alteration to the nature, tenor or scope of any Healthcare Permit without
Administrative Agent's prior written consent, including, without limitation,
(I)Β any change to the authorized units/beds capacity of any Licensed
Location and/or the number of units/beds approved by the applicable Governmental
Authority, and (II)Β any transfer all or any part of any Licensed Location's
authorized units or beds to another site or location;
Β
(D)Β Β Β Β any
voluntary transfer of any resident of any Licensed Location to any other
facility, unless such transfer is at the request of the resident (without
economic incentives being given to the resident by an Affiliate of
Licensed
Β
Β
Operator)Β or
its payor or is for reasons relating to non-payment or the health, required
level of medical care or safety of the resident to be transferred;
Β
(E)Β Β Β Β without
Administrative Agent's prior written consent, the provision by Licensed Operator
of additional regulated services at any Licensed Location, including, without
limitation, medical services; or
Β
(F)Β Β Β Β any
fact,
event or circumstance for which notice to Administrative Agent is required
under
Section
8.5;
Β
(iv)Β Β Β Β operate
or cause the Licensed Locations to be operated in a manner such that the
Healthcare Permits remain in full force and effect;
Β
(v)Β Β Β Β maintain
or cause to be maintained the standard of care for the patients of the Licensed
Locations at all times at a level necessary to insure a level of quality
care
for the patients of the Licensed Locations comparable to that existing on
the
date of this Agreement;
Β
(vi)Β Β Β Β maintain
or cause to be maintained a standard of care in the storage, use, transportation
and disposal of all medical equipment, medical supplies, medical products
and
medical waste, of any kind and in any form, that is in accordance at least,
that
of the highest prudent industry standard and in conformity with all applicable
regulations and laws;
Β
(vii)Β Β Β Β operate
or cause to be operated the Licensed Location in a prudent manner in compliance
in all material respects with applicable Healthcare Laws and cause all
Healthcare Permits and any other agreements necessary for the use and operation
of the Licensed Location or as may be necessary for participation in Third
Party
Payor Programs to remain in effect without reduction in the number of licensed
beds or beds authorized for use in applicable Third Party Payor
Programs;
Β
(viii)Β Β Β Β maintain
or cause to be maintained sufficient inventory and equipment of types and
quantities at the Licensed Location to enable Licensed Operator to adequately
to
perform operation of the Licensed Location;
Β
(ix)Β Β Β Β to
the
extent required by applicable law, maintain or cause to be maintained all
deposits, including, without limitation, deposits relating to patients or
Resident Agreements if such deposits are in cash such deposits are to be
deposited and held by Licensed Operator (or the Manager under the Management
Agreement), as the case may be, at such commercial or savings bank or banks
as
may be reasonably satisfactory to Administrative Agent, if such deposits
are in
any other form, such deposits are to be maintained as Administrative Agent
may
expressly permit. Any bond or other instrument which Licensed Operator (or
the
Manager under the Management Agreement), as the case may be, is permitted
to
hold in lieu of cash deposits under any applicable legal requirements shall
be
maintained in full force and effect unless replaced by cash deposits as
hereinabove described, shall be issued by an institution reasonably satisfactory
to Administrative Agent,
Β
Β
shall,
if
permitted pursuant to any legal requirements, name Administrative Agent as
payee
or mortgagee thereunder (or at Administrative Agent's option, be fully
assignable to Administrative Agent)Β and shall, in all respects, comply with
any applicable in legal requirements and otherwise be reasonably satisfactory
to
Administrative Agent. Licensed Operator shall, upon request, provide
Administrative Agent with evidence reasonably satisfactory to Administrative
Agent of Licensed Operator's compliance with the foregoing. Following the
occurrence and during the continuance of any Event of Default, Licensed Operator
shall, upon Administrative Agent's request, if permitted by any applicable
legal
requirements, turn over to Administrative Agent the deposits (and any interest
theretofore earned thereon)Β with respect to the Licensed Locations, to be
held by Administrative Agent subject to the terms of their related
agreements;
Β
(x)Β Β Β Β provide
to Administrative Agent no later than two (2)Β Business Days after request,
to the extent applicable, an accurate, complete and current list of all
participation agreements with Third Party Payors with respect to the business
of
Licensed Operators (collectively, "Participation
Agreements").
Licensed Operators shall at all times comply in all material respects with
all
requirements, contracts, conditions and stipulations applicable to Licensed
Operators in order to maintain in good standing and without default or
limitation all such Participation Agreements; and
Β
(xi)Β Β Β Β maintain
a corporate health care regulatory compliance program ("CCP")Β which
includes at a minimum, the elements of an effective compliance program, as
published in the Federal Register from time to time, by the Department of
Health
and Human Services, Office of Inspector General (or any successor Governmental
Authority), without regard to whether such program is specifically applicable
to
the operations at the Licensed Locations.
Β
(c)Β Β Β Β No
Licensed Operator, shall, other than in the normal course of business, change
the terms of any of the Medicaid, Medicare or other Third Party Payor Programs
or its normal billing payment and reimbursement policies and procedures with
respect thereto (including without limitation the amount and timing of finance
charges, fees and write-offs).
Β
(d)Β Β Β Β No
Licensed Operator or any manager of the Licensed Locations shall rescind,
withdraw, revoke, amend, modify, supplement, or otherwise alter the nature,
tenor or scope of the Healthcare Permits for the Licensed Locations.
Β
(e)Β Β Β Β If
any
Licensed Location is currently accredited by JCAHO, Licensed Operators shall
(i)Β maintain such accreditation in good standing and without limitation or
impairment, (ii)Β promptly submit to JCAHO a plan of correction for any
deficiencies listed on any JCAHO accreditation survey report, and
(iii)Β cure all such deficiencies within such time frame as is necessary to
preserve and maintain in good standing and without limitation or impairment
such
JCAHO accreditation.
Β
Β
Β
Borrowers
shall notify Administrative Agent within three (3)Β Business Days of
Borrower's becoming aware of (but in any event prior to Borrowers submitting
any
requests for advances of reserves or escrows), and shall contractually obligate
(via written agreement acceptable to Administrative Agent)Β the Licensed
Operators to notify Administrative Agent of the occurrence of, any of the
following facts, events or circumstances, whether existing or pending, together
with such supporting data and information as shall be necessary to fully
explain
to Administrative Agent the scope and nature of the fact, event or circumstance,
and shall provide to Administrative Agent within two (2)Β Business Days of
Administrative Agent's request, such additional information as Administrative
Agent shall request regarding such disclosure:
Β
(a)Β Β Β Β a
Licensed Operator or any Credit Party, has become subject to any federal,
state,
local governmental or private payor civil or criminal investigations, inquiries,
validation review, program integrity review or reimbursement audits or statement
of deficiencies involving and/or related to its compliance with Healthcare
Laws
(including, without limitation, an inquiry or investigation of any Person
having
"ownership, financial or control interest" in any Borrowers (as that phrase
is
defined in 42 C.F.R. § 420.201 et
seq.))
which,
if adversely determined, could reasonably be expected to have a Material
Adverse
Effect, but excluding, where such certification is not existent as of the
Closing Date, issues related to initial Medicare or Medicaid certification
;
Β
(b)Β Β Β Β that
an
owner, officer, manager, employee or Person with a "direct or indirect ownership
interest" (as that phrase is defined in 42 C.F.R. § 420.201) in a Licensed
Operator or a Credit Party: (A)Β has had a civil monetary penalty assessed
against him or her pursuant to 42 U.S.C. § 1320a-7a or is the subject of a
proceeding seeking to assess such penalty; (B)Β has been excluded from
participation in a Federal Health Care Program (as that term is defined in
42
U.S.C. § 1320a-7b) or is the subject of a proceeding seeking to assess
such penalty; (C)Β has been convicted (as that term is defined in 42 C.F.R.
§ 1001.2) of any of those offenses described in 42 U.S.C.
§ 1320a-7b or 18 U.S.C. §§ 669, 1035, 1347, 1518 or is the subject of
a proceeding seeking to assess such penalty; or (D)Β has been involved or
named in a U.S. Attorney complaint made or any other action taken pursuant
to
the False Claims Act under 31 U.S.C. §§ 3729-3731 or qui tam action brought
pursuant to 31 U.S.C. § 3729 et
seq.;
Β
(c)Β Β Β Β any
claims, actions or appeals before any commission, board or agency charged
with
administering Healthcare Laws or programs operated under Healthcare Laws
(including without limitation any intermediary or carrier, the Provider
Reimbursement Review Board or the Administrator of the Center for Medicare
Services)Β with respect to any state or federal Medicare or Medicaid cost
reports or claims filed by any Licensed Operator, or any disallowance by
any
commission, board or agency in connection with any audit of such cost reports,
to the extent such audits are not routine;
Β
(d)Β Β Β Β [Reserved];
Β
Β
(e)Β Β Β Β [Reserved];
Β
(f)Β Β Β Β any
liability in respect of amounts received by Borrowers or any Licensed Operator
for the purchase or improvement of any real property under restricted or
conditioned grants or donations, including, without limitation, monies received
under the Public Health Service Act, 42 U.S.C. SectionΒ 291 et
seq.;
Β
(g)Β Β Β Β the
voluntary disclosure by any Credit Party or Licensed Operator to the Office
of
the Inspector General of the United States Department of Health and Human
Services, a Medicare fiscal intermediary or any state's Medicaid program
of a
potential material overpayment matter involving the submission of claims
to such
payor by any Licensed Operator;
Β
(h)Β Β Β Β receipt
by any Credit Party or Licensed Operator of any notice or communication from
the
Joint Commission on Accreditation of Healthcare Organizations that a Licensed
Location is (A)Β subject to or is required to file a plan of correction with
respect to any accreditation survey, or (B)Β in danger of losing its
accreditation due to a failure to comply with a plan of correction;
Β
(i)Β Β Β Β any
charges of resident abuse which are made in any legal or regulatory proceedings
or material licensing violations involving the Licensed Operator at the Licensed
Locations;
Β
(j)Β Β Β Β if
applicable, any health care survey report related to licensure or certification
(including, without limitation, an annual or biannual Medicare or Medicaid
certification survey report)Β which includes any statement of material
deficiencies pertaining to any Licensed Operator or any of the Licensed
Locations (whether via CMS 2567 form or otherwise);
Β
(k)Β Β Β Β without
duplication, any failure of any Credit Party or Licensed Operator to comply
with
any covenants or conditions in this Article 8;
Β
(l)Β Β Β Β any
revocation, suspension, termination, probation, restriction, limitation,
denial,
or nonrenewal affecting any Licensed Operator with respect to any Medicare
and/or Medicaid participation or provider agreement, certification, billing
number, assignment (via CMS 855 forms or otherwise), billing agent or electronic
funds transfer instruction, including, without limitation, any denial of
payment
for new admissions; and/or
Β
(m)Β Β Β Β any
revocation, suspension, termination, probation, restriction, limitation,
denial
or nonrenewal affecting any Licensed Operator with respect to any participation
or provider agreement with any Third Party Payor.
Β
Β
If
there
shall occur any fact, event or circumstance for which Borrowers or Licensed
Operators are required to give Administrative Agent notice under Section
8.5
above,
or if there shall occur any breach of this Article 8 (or the corresponding
provisions of
Β
Β
any
Financing Document), Borrowers shall take, and shall cause the Licensed
Operators to take (subject to the terms of any Financing Documents and the
terms
of any Lease to the Licensed Operator), such action as is necessary to validly
challenge or otherwise appropriately respond to such fact, event or circumstance
within any timeframe required by applicable Healthcare Laws, and shall
thereafter diligently pursue the same to a favorable conclusion, all to the
effect that the fact, event or circumstance giving rise to Borrowers' or
Licensed Operators' notice obligation under Section
8.5
or the
breach of this Article 8 (or the corresponding provisions of any Financing
Documents), shall be dismissed, rescinded, eliminated and otherwise cease
to
exist on that date which is the earlier to occur of (a)Β sixty
(60)Β days after the date any Borrower became aware of such fact, event or
circumstance, or (b)Β the expiration of any cure period given under
applicable Healthcare Laws to cure any such breach. Provided that Borrowers
are
at all times in compliance with the foregoing covenants and diligently pursue
and obtain the cure described above within the timeframe described above,
the
existence of any fact, event or circumstance for which Borrowers or Licensed
Operators are required to give Administrative Agent notice under Section
8.5,
or the
existence of a breach of this Article 8 (or the corresponding provisions
of any
Financing Documents), shall not, in and of itself, constitute a breach of
Borrowers' or Licensed Operators obligations hereunder or thereunder unless
the
same shall (y)Β have a Material Adverse Effect, or (z)Β have occurred as
a result of any Credit Parties' or any Licensed Operators' negligence, willful
misconduct, willful breach of this Agreement or Healthcare Laws or failure
to
adhere to commercial reasonable standards of operations.
Β
Β
(a)Β Β Β Β Without
in any way limiting the other provisions of this Agreement, Borrowers shall
not
change the Licensed Operator of any Licensed Location. Borrowers shall cause
the
Licensed Locations at all times to be operated by the Licensed Operators
identified on Schedule
8.7.
If the
Licensed Operator for a Licensed Location is a Person separate and distinct
from
Borrowers as of the date of this Agreement, then, without Administrative
Agent's
prior written consent, no Borrower shall become the Licensed Operator for
such
Licensed Location, nor shall Borrowers or any Affiliate of any Borrower render
any regulated healthcare service at any Licensed Location in connection with
or
in the furtherance of the operation of the Licensed Location.
Β
(b)Β Β Β Β Borrowers
shall not change or permit any Licensed Operator to change the manager of
any
Licensed Location or make any modification, amendment, termination or
cancellation of any management contract for any Licensed Location or agreements
with brokers, without the prior written consent of Administrative Agent in
its
sole and absolute discretion. Any substitute property manager shall be required
to enter into an assignment and subordination of management or operating
agreement in form and substance reasonably satisfactory to Administrative
Agent.
Borrowers shall, and shall cause the Projects initially and at all times
until a
substitute property manager is approved by Administrative Agent to be managed
by
ARC or an Affiliate or Affiliates of ARC approved by Administrative Agent
(collectively in the singular, the "Manager")Β pursuant
to management/operating agreements approved by Administrative Agent in writing
(the "Management
Agreements").
Such
restrictions and approval rights are solely for the purposes of assuring
that
the Projects are
Β
Β
managed
and operated in a first-class manner consistent with Healthcare Laws and
the
preservation and protection of the Licensed Locations as security for the
Obligations and shall not place responsibility for the control, care, management
or repair of the Licensed Locations upon Administrative Agent, or make
Administrative Agent responsible or liable for any negligence in the management,
operation, upkeep, repair or control
of
the Licensed Locations.
Β
Β
Upon
written notice from Administrative Agent to Borrowers following the occurrence
of an Event of Default that is continuing hereunder, or immediately if, at
any
time during the term hereof, a Licensed Operator vacates any Licensed Location,
the following provisions shall be effective:
Β
(a)Β Β Β Β Borrowers
shall, or shall cause Licensed Operator to, cooperate with the Administrative
Agent to effectuate a change of ownership of the Healthcare Permits for any
Licensed Location to a replacement operator designated by Administrative
Agent
("Replacement
Operator"),
subject to required approval of any Governmental Authority, and in connection
therewith, cooperate to effectuate, if requested, the assignment of any Third
Party Payor or Governmental Payor contracts (to the extent assignable).
Borrowers further shall provide to Administrative Agent all information and
records requested by Administrative Agent in connection with the change of
ownership of the Healthcare Permits; and
Β
(b)Β Β Β Β In
order
to facilitate an efficient transfer of the operations of any Licensed Location,
Borrowers shall, if and to the extent requested by Administrative Agent,
(i)Β deliver to Administrative Agent copies of all Healthcare Permits and
the most recent reports and notices pertaining to such Licensed Location
required to be delivered under Section
8.5;
(ii)Β continue and maintain, and cause Licensed Operator to continue and
maintain, the operation of such Licensed Location in the ordinary course
of
business, including, without limitation, the retention of all residents at
the
Licensed Location to the fullest extent possible until the transfer of the
operations of such Licensed Location to the Replacement Operator is completed;
(iii)Β enter into such operation transfer agreements, management agreements,
and other agreements as may be requested by Administrative Agent until the
transfer of the operations of such Licensed Location to the Replacement Operator
is completed; and (iv)Β provide continued access to Administrative Agent and
its agents to show such Licensed Location to potential replacement operators.
Subject to all laws governing the privacy and confidentiality of individually
identifiable health information, Borrowers hereby consents to the disclosure
by
Administrative Agent to potential replacement operators of Borrowers' financial
statements, licensure reports and surveys, financial and property due diligence
materials and other documents, materials and information relating to the
Licensed Locations.
Β
Β
REAL
PROPERTY MATTERS
Β
Each
Borrower agrees that, so long as any Credit Exposure exists:
Β
Β
(a)Β Β Β Β Without
the prior written consent of Administrative Agent, Borrowers shall not:
(i)Β enter into any Leases, other than Permitted Leases; (ii)Β modify,
amend, renew, surrender, terminate, consent to a sublease of, consent to
a
transfer of, xxxxx rent or other payments due under or otherwise grant any
financial or other concession under any Material Lease or any Permitted Lease
if
the effect thereof would cause the Permitted Lease to become a Material Lease;
(iii)Β accept any rental payment under any Leases more than one
(1)Β month in advance of its due date or in violation of the cash management
or lockbox provisions of this Agreement; or (iv)Β enter into any ground
lease or master operating lease of any Project.
Β
(b)Β Β Β Β Without
the prior written consent of Administrative Agent, Borrowers shall not, and
shall not permit the Manager to: (i)Β modify in any material respect the
form of Resident Agreement previously approved by Administrative Agent;
provided
that
Borrowers will submit all proposed form modifications to Administrative Agent
prior to the use thereof, (ii)Β accept any payment under any Resident
Agreement more than one (1)Β month in advance of its due date or in
violation of the cash management or lockbox provisions of this Agreement;
(iii)Β enter into any subleases with respect to any Project except for
Permitted Leases; (iv)Β modify, amend, renew, surrender, terminate, consent
to a sublease of, consent to a transfer of, xxxxx rent or other payments
due
under or otherwise grant any financial or other concession under any sublease
(except for Permitted Leases)Β with respect to any Project; or
(v)Β enter into any Resident Agreement for a term of more than one
(1)Β year, or upon rates other than market rates or upon a form that fails
to comply in all material respects with applicable Laws.
Β
(c)Β Β Β Β Borrowers
shall, and shall cause Licensed Operator to, provide Administrative Agent
with a
copy of all Material Leases no less than ten (10)Β days prior to execution
of such Leases and such Leases shall be on the form of lease previously approved
by Administrative Agent (which form shall include an automatic attornment
provision whereby, in the event of a foreclosure, the tenant automatically
shall
recognize the successor owner as landlord and such tenant shall have no right
to
terminate its lease in the event of such foreclosure). If Administrative
Agent
consents to any new Material Lease or the modification or renewal of any
existing Material Lease, at Administrative Agent's request, Borrowers or
Licensed Operator, as applicable, shall cause the tenant thereunder to execute
a
subordination and attornment agreement in form and substance satisfactory
to
Administrative Agent.
Β
(d)Β Β Β Β Any
Operating Lease (or, at Administrative Agent's option, any subordination
agreement between Administrative Agent and the Operating Lessee
pertaining
Β
Β
to
such
Operating Lease)Β shall at all times be in form and substance satisfactory
to Administrative Agent.
Β
(e)Β Β Β Β Borrowers
shall not suffer or permit any breach or default to occur in any of Borrowers'
obligations under any of the Material Leases nor suffer or permit the same
to
terminate by reason of any failure of Borrowers to meet any requirement of
any
Material Lease.
Β
(f)Β Β Β Β Borrowers
shall not suffer or permit any breach or default by a Licensed Operator to
occur
in any of the Licensed Operator's obligations under any Resident Agreement
nor
suffer or permit the same to terminate by reason of any failure of the Licensed
Operator to meet any requirement of any Resident Agreement.
Β
(g)Β Β Β Β If
any
Borrower has authorized or permitted an Operating Lessee to apply for or
maintain the CON, or if the CON for a Licensed Location operated by an Operating
Lessee merges into a state-issued license to operate the Licensed Location,
Borrower shall not, at any time, pledge, transfer, hypothecate or otherwise
alienate the CON.
Β
(h)Β Β Β Β If
the
Licensed Operator (other than ARC) for a Licensed Location is a Person separate
and distinct from the Borrowers, then the Licensed Operator's use or occupancy
of the Licensed Location shall at all times be pursuant to a management or
service agreement (each, a "Service
Agreement")
approved by Administrative Agent. The term Service Agreement shall not include
the Management Agreement. Any Service Agreements existing as of the Closing
Date
are identified on Schedule
9.1(h).
Each
Service Agreement shall provide Administrative Agent the right to terminate
the
rights of the Licensed Operator upon Administrative Agent (or its designee)
or
any receiver taking possession of the applicable Project or acquisition of
the
applicable Project through foreclosure, a deed in lieu of foreclosure UCC
sale
or otherwise. In the event a Licensed Operator loses its license to provide
the
goods or services covered by a Service Agreement, Borrowers shall act in
good
faith to promptly replace such Service Agreement or assist such Licensed
Operator to reinstate such license in accordance with the terms of the
applicable Service Agreement.
Β
Β
(a)Β Β Β Β Without
the prior written consent of Administrative Agent in each instance, which
consent shall not be unreasonably withheld or delayed, Borrowers shall not
demolish, remove, construct, or, except as otherwise expressly provided herein,
restore, or alter the Projects or any portion thereof in any material respect;
nor consent to or permit any such demolition, removal, construction,
restoration, addition or alteration which would diminish in any material
respect
the value of the Projects. No excavation, construction, earth work, site
work or
any other mechanic's lienable work shall be done to or for the benefit of
a
Project, without Administrative Agent's approval, except for normal repair
and
maintenance in the ordinary course of business. Borrowers shall, at their
expense, (i)Β take good care of the Projects including grounds generally,
and utility systems and sidewalks, roads, alleys, and curbs therein, and
shall
keep the same in good, safe and insurable condition and in compliance with
all
applicable Laws in all material respects, (ii)Β promptly make all repairs
to
Β
Β
the
Projects, above grade and below grade, interior and exterior, structural
and
nonstructural, ordinary and extraordinary, unforeseen and foreseen, which
are
necessary in order to maintain the Projects in a manner consistent with their
quality and use as required hereby, and (iii)Β not commit or suffer to be
committed any waste of the Projects or do or suffer to be done anything which
will increase the risk of fire or other hazard to the Projects or impair
the
value thereof. Borrowers shall keep the sidewalks, vaults, gutters and curbs
comprising, or adjacent to, the Projects, clean and free from dirt, snow,
ice,
rubbish and obstructions.
Β
(b)Β Β Β Β Unless
required by applicable Law, Borrowers shall not permit or engage in changes
in
the use of any Project (including any change from residential to non-residential
use, or from non-residential use to residential use)Β from the use at the
time this Agreement was executed without Administrative Agent's prior written
consent. Borrowers shall not request and shall not initiate or acquiesce
in a
change in the plat of subdivision, or zoning classification or use of any
Project, or grant any encumbrances or easements burdening any Project, without
in each case obtaining Administrative Agent's prior written consent, not
to be
unreasonably withheld. Borrowers shall not desert or abandon the Projects
or
cause or permit the use or occupancy of any part of the Projects to be
discontinued if such discontinuance or use change would violate in any material
respect any zoning or other law, ordinance or regulation.
Β
(c)Β Β Β Β Borrowers
shall not, and neither shall permit, the Projects or any portion thereof
to be
converted or take any preliminary actions which could lead to a conversion
to
condominium or cooperative form or ownership.
Β
(d)Β Β Β Β All
of
Borrowers' personal property delivered upon, attached to, used or required
to be
used in connection with the operation of any Project (collectively, the
"FF&E")Β shall
always be located at such Project and except as otherwise permitted herein
shall
be kept free and clear of all Liens other than the Permitted Liens. Borrowers
shall not, without the prior written consent of Administrative Agent, remove
or
permit to be removed from any Project any of the FF&E except to repair or
replace the same except as otherwise permitted herein.
Β
(e)Β Β Β Β Borrowers
shall not consent to or initiate the joint assessment of any Project
(i)Β with any other real property constituting a separate tax lot and
Borrowers represent and covenant that each Project is are and shall remain
a
separate tax lot, or (ii)Β with any portion of the Projects which may be
deemed to constitute personal property, or any other procedure whereby the
lien
of any taxes which may be levied against such personal property shall be
assessed or levied or charged to the Project as a single lien.
Β
Β
(a)Β Β Β Β Borrowers
shall notify Administrative Agent promptly of the commencement or threat
of any
Taking of the Projects or any portion thereof or of the occurrence of any
casualty with respect to any Project.
Β
Β
(b)Β Β Β Β Subject
to the provisions of Section
9.4
below,
Administrative Agent may elect to collect, retain and apply against the
Obligations of Borrowers under this Agreement or any of the other Financing
Documents all proceeds of insurance resulting from any loss at any Project
or of
any Taking of all or any portion of a Project (individually and collectively
referred to as "Casualty
Proceeds")Β after
deduction of all expenses of collection and settlement, including attorneys'
and
adjusters' fees and charges. If any insurance proceeds are paid by check,
draft
or other instrument payable to any Borrower and Administrative Agent jointly,
such Borrower authorizes Administrative Agent to endorse such Borrower's
name
thereon and do such other things as Administrative Agent may deem advisable
to
reduce the same to cash. Administrative Agent is authorized and empowered,
and
each Borrower hereby irrevocably appoints Administrative Agent as its (or
their)Β attorney-in-fact (such appointment is coupled with an interest), at
Administrative Agent's option, to make or file proofs of loss or damage and
to
settle and adjust any claim under insurance policies which insure against
such
risks, or to direct Borrowers, in writing, to agree with the insurance
carrier(s)Β on the amount to be paid in regard to such loss. Any Casualty
Proceeds remaining after repayment of the Obligations shall be paid by
Administrative Agent to Borrowers.
Β
(c)Β Β Β Β Notwithstanding
anything in Section
9.3(b)Β to
the
contrary, in the event of any casualty to any Project or any Taking of part
of
any Project, Administrative Agent agrees to make available the Casualty Proceeds
to restoration of the Project if (i)Β no Event of Default exists,
(ii)Β all Casualty Proceeds are deposited with Administrative Agent,
(iii)Β in Administrative Agent's reasonable judgment, the amount of Casualty
Proceeds, together with additional amounts, if any, deposited by Borrower
with
Administrative Agent, available for restoration of the Project is sufficient
to
pay the full and complete costs of such restoration, (iv)Β the casualty or
Taking will not require residential units at the affected Project comprising
in
the aggregate more than fifteen percent (15%)Β of the occupancy space at the
Project to become vacant during the restoration, (v)Β the income to
Borrowers from such affected Project (excluding the effect of business
interruption or rent loss insurance)Β will not decrease more than fifteen
percent (15%)Β as a result of such casualty or Taking, (vi)Β in
Administrative Agent's sole determination, the Obligations will not exceed
seventy-five percent (75%)Β of the fair market value of the Project (based
upon Administrative Agent's allocation of the Loan to such Project) after
completion of restoration but prior to any re-tenanting, (vii)Β in
Administrative Agent's reasonable determination, the affected Project can
be
restored to an architecturally and economically viable project in compliance
with applicable Laws, and (viii)Β in Administrative Agent's reasonable
determination, such restoration is likely to be completed not later than
six
(6)Β months prior to the Termination Date.
Β
(d)Β Β Β Β Notwithstanding
the foregoing, if the damage to the Project does not exceed $1,250,000, and
so
long as no Default has occurred and is continuing, Borrowers shall be entitled
to receive the Casualty Proceeds attributable thereto, provided, however,
that
Borrowers shall use the Casualty Proceeds to restore or rebuild the Project
in
all material respects to its condition prior to such casualty or
Taking.
Β
Β
Β
(a)Β Β Β Β In
case
Administrative Agent does not elect to apply or does not have the right to
apply
the Casualty Proceeds to the Obligations, as provided in Section
9.3
above,
Borrowers shall:
Β
(i)Β Β Β Β Proceed
with diligence to make settlement with insurers or the appropriate governmental
authorities and except as provided in Section
9.3(d)Β above,
cause the Casualty Proceeds to be deposited with Administrative
Agent;
Β
(ii)Β Β Β Β In
the
event of any delay in making settlement with insurers or the appropriate
governmental authorities or effecting collection of the Casualty Proceeds,
deposit with Administrative Agent the full amount required to complete
construction as aforesaid;
Β
(iii)Β Β Β Β If
the
damage exceeds $1,250,000, in the event the Casualty Proceeds are insufficient
to assure Administrative Agent that the all contemplated repairs or construction
will be completed, promptly deposit with Administrative Agent any amount
necessary to assure that such contemplated repairs or construction will be
completed; and
Β
(iv)Β Β Β Β Promptly
proceed with the assumption of construction of the applicable Project, including
the repair of all damage resulting from such fire, Taking or other cause
and
restoration to its former or reasonably equivalent condition in all material
respects.
Β
(b)Β Β Β Β Any
request by Borrowers for a disbursement by Administrative Agent of Casualty
Proceeds and funds deposited by Borrowers shall be subject to reasonable
construction loan type draw requirements as determined by Administrative
Agent.
Β
(c)Β Β Β Β Notwithstanding
anything to the contrary, if the damage to the applicable Project does not
exceed $1,250,000 and so long as no Default has occurred and is continuing,
Borrowers may settle and adjust any claim without the consent of Administrative
Agent and agree with the insurance company or companies (or Governmental
Authority, in the case of a Taking)Β on the amount to be paid upon the loss,
provided, however, that such adjustment is carried out in a competent and
timely
manner. Any monies collected under this subsection (c)Β shall be applied in
accordance with Section
9.3(d)Β below.
Β
(d)Β Β Β Β If
the
damage to the applicable Project exceeds $1,250,000, then Administrative
Agent
may elect to file the respective proof of loss, settle and adjust any claim
without the consent of Borrowers and agree with the insurance company on
the
amount of the Casualty Proceeds in the place and stead of Borrowers and without
the consent of Borrowers; provided, however,
that so long as no Event of Default exists, Administrative Agent agrees to
work
with Borrowers and to keep Borrowers fully apprised of any and all action
Administrative Agent takes to settle or adjust any claim. Borrowers
hereby release
Β
Β
Administrative
Agent from any and all liability with respect to the settlement and adjustment
by Administrative Agent of any claims in respect of any casualty.Β
Β
Β
After
and
during the continuance of an Event of Default, Borrowers shall be deemed
to have
appointed Administrative Agent as their attorney-in-fact to seek a reduction
or
reductions in the assessed valuation of the Projects for real property tax
purposes or for any other purpose and to prosecute any action or proceeding
in
connection therewith. This power, being coupled with an interest, shall be
irrevocable for so long as any part of the Obligations remains unpaid and
any
Event of Default shall be continuing.Β
Β
Β
No
Borrower has commingled the funds related to the Projects with funds from
any
other property. Neither Borrowers nor any partner, stockholder, member or
other
principal in Borrowers is or will be, and no legal or beneficial interest
of a
partner, stockholder, member or other principal in Borrowers is or will be
held,
directly or indirectly, by a "foreign corporation", "foreign partnership",
"foreign trust", "foreign estate", "foreign person", "affiliate" of a "foreign
person" or a "United States intermediary" of a "foreign person" within the
meaning of the Internal Revenue Code SectionsΒ 897, 1445 or 7701, the
Foreign Investments in Real Property Tax Act of 1980, the International Foreign
Investment Survey Act of 1976, the Agricultural Foreign Investment Disclosure
Act of 1978, or the regulations promulgated pursuant to such Acts or any
amendments to such Acts.
Β
Β
To
induce
Administrative Agent and Lenders to enter into this Agreement and to make
the
Loans and other credit accommodations contemplated hereby, each Borrower
hereby
represents and warrants to Administrative Agent and each Lender the following
with respect to each individual Project, standing alone and without reliance
upon any other Project:
Β
(a)Β Β Β Β Except
as
disclosed to Administrative Agent in writing, (i)Β no condemnation of any
portion of any Project, has commenced or, to any Borrower's knowledge, is
contemplated by any Governmental Authority, (ii)Β except as disclosed to
Administrative Agent in writing, no condemnation or relocation of any roadways
abutting any Project has commenced or, to any Borrower's knowledge, is
contemplated by any Governmental Authority, and (iii)Β no proceeding to deny
access to any Project from any point or planned point of access to any Project,
has commenced or, to any Borrower's knowledge, is contemplated by any
Governmental Authority.
Β
(b)Β Β Β Β Except
as
disclosed to Administrative Agent in writing the contemplated use of any
Project
as an independent living facility and the contemplated accessory uses do
not
violate, in any material respects, (i)Β any Laws (including subdivision,
zoning and building Laws and Environmental Laws), or (ii)Β any building
permits, covenants,
Β
Β
conditions
and restrictions of record, or agreements affecting any Project or any part
thereof. Neither the zoning authorizations, subdivision approvals or variances
nor any other right to construct or to use any Project is to any extent
dependent upon or related to any real estate other than the real property
constituting the Collateral. Except as disclosed to Administrative Agent
on the
land title surveys delivered to Administrative Agent prior to the Closing
Date,
no building or other improvement encroaches upon any property line, building
line, set back line, side yard line or any recorded or visible easement (or
other easement of which Borrowers are aware or has reason to believe may
exist)Β with respect to any Project. Except as disclosed on such surveys, no
Project is situated in an area designated as having special flood hazards
as
defined by the Flood Disaster Protection Act of 1973, as amended, or designated
as a wetland by any governmental entity having jurisdiction over the Project.
All Permits required for the use and occupancy of the Project have been
obtained. All Laws relating to the construction of and operation of the
Improvements have been complied with in all material respects and all permits
and licenses required for the construction of and operation of the Project
have
been obtained. The Project is accessible through fully improved and dedicated
roads, accepted for maintenance and public use by public authority having
jurisdiction. The Project has adequate water, gas and electrical supply,
storm
and sanitary sewerage facilities, telephone facilities, other required public
utilities, fire and police protection, and means of access between the Project
and public highways; none of the foregoing will be foreseeably delayed or
impeded by virtue of any requirements under any applicable Laws. The Project
includes all property and rights that may be reasonably necessary or desirable
to promote the present uses and enjoyment thereof. To the best of each
Borrower's knowledge, there are no, nor are there any alleged or asserted,
violations of law, regulations, ordinances, codes, permits, licenses,
declarations, covenants, conditions or restrictions of record, or other
agreements relating to any Project, or the improvements thereto, or any part
thereof. Final certificates of occupancy or non-residential use permits have
been obtained for all improvements on the Project. The parcels of land
comprising the Project are contiguous, subdivided parcels and are in full
compliance with applicable subdivision ordinances. No subdivision or
resubdivision of such parcels is required to: (y)Β convey, transfer, assign
or lease such parcels, either individually or as a whole; or (z)Β rebuild
after a casualty all or any portion of the improvements on the Project to
current size and configuration.
Β
(c)Β Β Β Β The
Project is taxed separately without regard to any other property and for
all
purposes the Project may be mortgaged, conveyed and otherwise dealt with
as an
independent parcel. There are no unpaid or outstanding real estate or other
taxes or assessments on or against any Project or any part thereof, except
general real estate taxes for fiscal year 2006 not yet due or payable. To
each
Credit Party's knowledge, there is no pending or contemplated action pursuant
to
which any special assessment may be levied against any portion of any
Project.
Β
(d)Β Β Β Β There
has
been no damage or destruction of any part of any Project by fire or other
casualty that has not been repaired. Except for the deferred maintenance
items,
if any, reflected on Schedule
4.14
or as
part of routine maintenance or capital improvements required to be made by
Borrowers under this Agreement, there are presently no material
Β
Β
existing
defects in any Project and no material repairs or alterations thereof are
reasonably necessary or appropriate.
Β
(e)Β Β Β Β No
Borrower has entered into any Material Leases that are currently in effect
other
than as set forth on the rent roll delivered by Borrower to Administrative
Agent
prior to the closing of the Loans, which Borrower certifies is true and correct
in all material respects. True, correct and complete copies of the form of
Lease, Resident Agreement and other lease or care documents and all
non-residential Leases, as amended, as in effect with respect to Borrower's
or
Operator's operation of the Project, have been delivered to Administrative
Agent. All Material Leases are in full force and effect. Neither Borrower
nor
any tenant is in material default under any Material Lease. Borrower has
disclosed to Administrative Agent in writing any material default by any
tenant
under any Material Lease and no notice of termination has been issued under
any
Lease. All rents or other payments required of the tenant under the Material
Lease due to date have been collected and have been collected no more than
one
(1)Β month in advance, and no tenant has been granted any rent concession or
inducement whatsoever except as reflected on the rent roll previously delivered
to Administrative Agent.
Β
(f)Β Β Β Β The
Resident Agreements comply with all applicable Laws in all material respects,
including Healthcare Laws.
Β
SECURITY
AGREEMENT
Β
Β
(a)Β Β Β Β As
security for the payment and performance of the Obligations, and the payment
and
performance of all obligations, and without limiting any other grant of a
Lien
and security interest in any Security Document, Borrowers hereby assign and
grant to Administrative Agent a continuing first priority Lien on and security
interest in, upon, and to all right, title and interest in and to any and
all
property and interests in property of Borrowers whether now owned or hereafter
created, acquired or arising including all of the following properties and
interests in properties (the "Personal
Property";
unless
otherwise defined in this Agreement, all terms used in this ArticleΒ 10
shall have the meanings given them in ArticleΒ 9 of the Uniform Commercial
Code):
Β
(i)Β Β Β Β All
of
Borrowers' Accounts, and all of Borrowers' money, contract rights, chattel
paper, documents, deposit accounts, securities, investment property and
instruments with respect thereto, and all of Borrowers' rights, remedies,
security, Liens and supporting obligations, in, to and in respect of the
foregoing;
Β
(ii)Β Β Β Β To
the
extent not listed above, all of Borrowers' money, securities, investment
property, deposit accounts, instruments, general intangibles, healthcare
insurance receivables, inventory and other property and the proceeds
thereof;
Β
Β
(iii)Β Β Β Β All
of
Borrowers' letter-of-credit rights and commercial tort claims;
Β
(iv)Β Β Β Β All
of
Borrowers' now owned or hereafter acquired machinery, equipment, computer
equipment, tools, tooling, furniture, fixtures, goods, supplies, materials,
work
in process, whether now owned or hereafter acquired, together with all
additions, parts, fittings, accessories, special tools, attachments, and
accessions now and hereafter affixed thereto and/or used in connection
therewith, all replacements thereof and substitutions therefor, and all cash
and
non-cash proceeds and products thereof and all present and future warranties,
manuals and other written materials relating thereto;
Β
(v)Β Β Β Β All
of
Borrowers' now owned or hereafter acquired goods of any kind and any and
all
tangible and intangible books and records of Borrowers relating to Borrowers,
their businesses, their financial condition, records and statements, the
Licensed Locations and/or the Collateral; and
Β
(vi)Β Β Β Β To
the
extent not listed above as original collateral, the proceeds (including,
without
limitation, insurance proceeds)Β and products of any or all of the
foregoing, and all accessions to, substitutions for or replacements of and
rents
and profits from any or all of the foregoing.
Β
(b)Β Β Β Β Pursuant
to the Liens created pursuant to SectionΒ 10.1
and
pursuant to all of the other Security Documents (if any)Β (including,
without limitation, any and all UCC financing statements being filed by
Administrative Agent against any Credit Party), and assuming that any such
Security Document that is intended to be filed with any governmental public
recording office has been so filed, Administrative Agent has been granted
and
has a valid and perfected first priority security interest and Lien in the
Collateral, including the Personal Property (subject only to any Permitted
Liens
permitted under the terms of this Agreement and the other Financing
Documents)Β securing the payment of the Obligations, and such security
interests and Liens are entitled to all of the rights, priorities and benefits
afforded by the UCC or other applicable Laws as enacted in any relevant
jurisdiction which relate to perfected security interests. No authorization,
approval or other action by, and no notice to or filing with, any Governmental
Authority or consent of any other Person is required for (i)Β the grant by
each Borrower to Administrative Agent of the security interests and Liens
in the
Collateral, including the Personal Property, provided for under this Agreement
and the other Security Documents (if any), or (ii)Β the exercise by
Administrative Agent of its rights and remedies with respect to the Collateral,
including the Personal Property, provided for under this Agreement and the
other
Security Documents or under any applicable Law, including the UCC.
Β
Β
(a)Β Β Β Β Borrowers
shall not take any of the following actions or make any of the following
changes
unless Borrowers have given at least thirty (30)Β days prior written notice
to Administrative Agent of Borrowers' intention to take any such action and
have
executed any and all documents, instruments and agreements and taken any
other
actions
Β
Β
with
Administrative Agent may request after receiving such written notice in order
to
protect and preserve the Liens, rights and remedies of Administrative Agent
with
respect to the Collateral: (i)Β change the legal name or organizational
identification number of any Borrower, or (ii)Β change the jurisdiction of
incorporation or formation of any Borrower or allow any Borrower to designate
any jurisdiction as an additional jurisdiction of incorporation for such
Borrower.
Β
(b)Β Β Β Β Borrowers
shall cause all equipment and other tangible personal property other than
inventory to be maintained and preserved in the same condition, repair and
in
working order as when new, ordinary wear and tear excepted, and shall promptly
make or cause to be made all repairs, replacements and other improvements
in
connection therewith that are necessary or desirable to such end.
Β
(c)Β Β Β Β Each
Borrower hereby authorizes Administrative Agent to file without the signature
of
such Borrower one or more UCC financing statements relating to all or any
part
of the Collateral, which financing statements may list Administrative Agent
as
the "secured party" and such Borrower as the "debtor" and which describe
and
indicate the collateral covered thereby as all or any part of the Collateral
under the Financing Documents (including an indication of the collateral
covered
by any such financing statement as "all assets" of such Borrower now owned
or
hereafter acquired), in such jurisdictions as Administrative Agent from time
to
time determine are appropriate, and to file without the signature of such
Borrower any continuations of or amendments to any such financing statements,
in
any such case in order for Administrative Agent to perfect, preserve or protect
the Liens, rights and remedies of Administrative Agent with respect to the
Collateral.
Β
(d)Β Β Β Β Without
limiting or contradicting any of the provisions of SectionsΒ 4.1,
10.3(b)Β 10.3(c)Β or any other provisions of the Financing Documents
requiring the delivery by Borrowers to Administrative Agent and/or the Lenders
of any reports, certificates, information or schedules, Borrowers shall furnish
to Administrative Agent from time to time any statements and schedules further
identifying or describing the Collateral and any other information, reports
or
evidence concerning the Collateral as Lender may reasonably request from
time to
time.
Β
Β
(a)Β Β Β Β Upon
the
occurrence of and during the continuance of an Event of Default under this
Agreement or the other Financing Documents, Administrative Agent, in addition
to
all other rights, options, and remedies granted to Administrative Agent under
this Agreement or at law or in equity, may exercise, either directly or through
one or more assignees or designees, all rights and remedies granted to it
under
all Financing Documents and under the UCC in effect in the applicable
jurisdiction(s)Β and under any other applicable law; including, without
limitation:
Β
(i)Β Β Β Β The
right
to take possession of, send notices regarding, and collect directly the
Collateral, with or without judicial process;
Β
Β
(ii)Β Β Β Β The
right
to (by its own means or with judicial assistance)Β enter any of Borrowers'
premises and take possession of the Collateral, or render it unusable, or
to
render it usable or saleable, or dispose of the Collateral on such premises
in
compliance with subsection (iii)Β below and to take possession of Borrowers'
original books and records, to obtain access to Borrowers' data processing
equipment, computer hardware and software relating to the Collateral and
to use
all of the foregoing and the information contained therein in any manner
Administrative Agent deems appropriate, without any liability for rent, storage,
utilities, or other sums, and Borrowers shall not resist or interfere with
such
action (if Borrowers' books and records are prepared or maintained by an
accounting service, contractor or other third party agent, Borrowers hereby
irrevocably authorize such service, contractor or other agent, upon notice
by
Administrative Agent to such Person that an Event of Default has occurred
and is
continuing, to deliver to Administrative Agent or its designees such books
and
records, and to follow Administrative Agent's instructions with respect to
further services to be rendered);
Β
(iii)Β Β Β Β The
right
to require Borrowers at Borrowers' expense to assemble all or any part of
the
Collateral and make it available to Administrative Agent at any place designated
by Lender;
Β
(iv)Β Β Β Β The
right
to notify postal authorities to change the address for delivery of Borrowers'
mail to an address designated by Administrative Agent and to receive, open
and
dispose of all mail addressed to any Borrower; and
Β
(v)Β Β Β Β The
right
to enforce Borrowers' rights against Account Debtors and other obligors,
including, without limitation, the right to collect Accounts directly in
Administrative Agent's own name (as agent for Lenders)Β and to charge the
collection costs and expenses, including attorneys' fees, to
Borrowers.
Β
(b)Β Β Β Β Without
restricting the generality of the foregoing and for the purposes aforesaid,
each
Borrower hereby appoints and constitutes Administrative Agent its lawful
attorney-in-fact with full power of substitution in the Collateral to use
unadvanced funds remaining under this Agreement or which may be reserved,
escrowed or set aside for any purposes hereunder at any time, or to advance
funds in excess of the face amount of the Notes, to pay, settle or compromise
all existing bills and claims, which may be liens or security interests,
or to
avoid such bills and claims becoming liens against the Collateral; to execute
all applications and certificates in the name of such Borrower and to prosecute
and defend all actions or proceedings in connection with the Collateral;
and to
do any and every act which such Borrower might do in its own behalf; it being
understood and agreed that this power of attorney shall be a power coupled
with
an interest and cannot be revoked.
Β
Β
EVENTS
OF DEFAULT
Β
Β
For
purposes of the Financing Documents, the occurrence of any of the following
conditions and/or events, whether voluntary or involuntary, by operation
of law
or otherwise, shall constitute an "Event
of Default":
Β
(a)Β Β Β Β Borrowers
shall fail to pay all amounts due under the Financing Documents on the
Termination Date or any Borrower shall fail to pay within five (5)Β days of
when due any principal, interest, premium or fee under any Financing Document
or
any other amount payable under any Financing Document;
Β
(b)Β Β Β Β any
Borrower shall fail to observe or perform any covenant contained in Section
2.12,
SectionΒ 4.4(b),
Section
4.4(d),
SectionΒ 4.7,
SectionΒ 4.10,
ArticleΒ 5,
ArticleΒ 6
(subject
to the provisions of Section
6.7),
Section
8.3(c),
clauses
(iii), (iv)Β or (x)Β of Section
8.4(b),
Section
8.4(c),
Section
8.4(e)Β or
Section
8.5
or
Borrowers shall fail to deliver any financial reports or statements when
due
under Section
4.1
and such
default is not remedied or waived within five (5)Β Business Days after
receipt by Borrower Representative of notice from Administrative Agent of
such
default, or Borrowers shall fail to permit any visit or inspection required
by
Section
4.6
within
two (2)Β Business Days after notice;
Β
(c)Β Β Β Β any
Event
of Default under and as defined in any other Financing Document occurs or
any
Credit Party defaults in the performance of or compliance with any term
contained in this Agreement or in any other Financing Document (other than
occurrences described in other provisions of this Section
11.1
for
which a different grace or cure period is specified or for which no grace
or
cure period is specified and thereby constitute immediate Events of
Default)Β and such default is not remedied or waived within thirty
(30)Β days after the earlier of (i)Β receipt by Borrower Representative
of notice from Administrative Agent or Required Lenders of such default or
(ii)Β actual knowledge of any Borrower or any other Credit Party of such
default, provided, however, if such default cannot by its nature be cured
within
thirty (30)Β days, but such Credit Party commences cure within said thirty
(30)Β day period and diligently pursues such cure thereafter, such Credit
Party shall have an additional reasonable time to complete such cure up to
a
maximum of ninety (90)Β days or any Event of Default under and as defined in
any other Financing Document occurs;
Β
(d)Β Β Β Β any
representation, warranty, certification or statement made by any Credit Party
or
to Borrowers' knowledge any other Person in any Financing Document or in
any
certificate, financial statement or other document delivered pursuant to
any
Financing Document is incorrect in any respect (or in any material respect
if
such representation, warranty, certification or statement is not by its terms
already qualified as to materiality)Β when made;
Β
Β
(e)Β Β Β Β (i)Β failure
of any Borrower to pay when due or within any applicable grace period any
principal, interest or other amount on Debt (other than the Loans) or in
respect
of any Swap Contract, or the occurrence of any breach, default, condition
or
event with respect to any Debt (other than the Loans) or in respect of any
Swap
Contract, if the effect of such failure or occurrence is to cause, or to
permit
the holder or holders of any such Debt, or the counterparty under any such
Swap
Contract, to cause, Debt or other liabilities having an individual principal
amount in excess of $100,000 or having an aggregate principal amount in excess
of $100,000 to become or be declared due prior to its stated maturity; or
(ii)Β the occurrence of any breach or default under any terms or provisions
of any Subordinated Debt Document or under any agreement subordinating the
Subordinated Debt to all or any portion of the Obligations or the occurrence
of
any event requiring the prepayment of any Subordinated Debt;
Β
(f)Β Β Β Β any
Credit Party shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its
debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect
or seeking the appointment of a trustee, receiver, liquidator, custodian
or
other similar official of it or any substantial part of its property, or
shall
consent to any such relief or to the appointment of or taking possession
by any
such official in an involuntary case or other proceeding commenced against
it,
or shall make a general assignment for the benefit of creditors, or shall
fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
Β
(g)Β Β Β Β an
involuntary case or other proceeding shall be commenced against any Credit
Party
seeking liquidation, reorganization or other relief with respect to it or
its
debts under any bankruptcy, insolvency or other similar law now or hereafter
in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property,
and
such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of sixty (60)Β days; or an order for relief shall be entered
against any Credit Party under the federal bankruptcy laws as now or hereafter
in effect;
Β
(h)Β Β Β Β (i)Β institution
of any steps by any Person to terminate a Pension Plan if as a result of
such
termination any Borrower or any member of the Controlled Group could be required
to make a contribution to such Pension Plan, or could incur a liability or
obligation to such Pension Plan, in excess of $100,000, (ii)Β a contribution
failure occurs with respect to any Pension Plan sufficient to give rise to
a
Lien under Section 302(f)Β of ERISA, or (iii)Β there shall occur any
withdrawal or partial withdrawal from a Multiemployer
Plan and the withdrawal liability (without unaccrued interest)Β to
Multiemployer Plans as a result of such withdrawal (including any outstanding
withdrawal liability that any Borrower or any member of the Controlled Group
have incurred on the date of such withdrawal)Β exceeds $100,000;
Β
(i)Β Β Β Β one
or
more judgments or orders for the payment of money (not paid or fully covered
by
insurance maintained in accordance with the requirements of this Agreement
and
as to which the relevant insurance company has acknowledged
Β
Β
coverage)Β aggregating
in excess of $1,000,000 shall be rendered against any or all Borrowers and
either (i)Β enforcement proceedings shall have been commenced by any
creditor upon any such judgments or orders or (ii)Β there shall be any
period of twenty (20)Β consecutive days during which a stay of enforcement
of any such judgments or orders, by reason of a pending appeal, bond or
otherwise, shall not be in effect;
Β
(j)Β Β Β Β ARC
shall
cease to, directly or indirectly, own and control at least (i)Β 20% of the
outstanding equity interests of Cypress JV, or (ii)Β Cypress JV ceases to
own all of the membership interests in General Partner;
Β
(k)Β Β Β Β any
Lien
created by any of the Security Documents shall at any time fail to constitute
a
valid and perfected Lien on all of the Collateral purported to be secured
thereby, subject to no prior or equal Lien except Permitted Liens, or any
Borrower shall so assert;
Β
(l)Β Β Β Β any
Borrower shall be prohibited or otherwise materially restrained from conducting
the business theretofore conducted by it by virtue of any casualty, any labor
strike, any determination, ruling, decision, decree or order of any court
or
regulatory authority of competent jurisdiction or any other event and such
casualty, labor strike, determination, ruling, decision, decree, order or
other
event remains unstayed and in effect for any period of ten
(10)Β days;
Β
(m)Β Β Β Β the
institution by any Governmental Authority of criminal proceedings against
any
Credit Party; or
Β
(n)Β Β Β Β Borrowers
shall fail to perform any of the post-closing obligations as required by
Section
7.3
and
Schedule
7.3;
or
Β
(o)Β Β Β Β ARC
breaches any financial covenant contained in a Financing Document
Guaranty.
Β
All
cure
periods provided for in this Section shall run concurrently with any cure
period
provided for in any applicable Financing Documents under which the default
occurred.
Β
Β
Upon
the
occurrence and during the continuance of an Event of Default, Administrative
Agent may, and shall if requested by Required Lenders, by notice to Borrower
Representative declare the Obligations to be, and the Obligations shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
Borrower and Borrowers will pay the same; provided, however, that in the
case of
any of the Events of Default specified in Section
11.1(f)Β or
11.1(g)Β above,
without any notice to any Borrower or any other act by Administrative Agent
or
the Lenders, all of the Obligations shall become immediately due and payable
without presentment, demand, protest or other notice of any kind, all of
which
are hereby waived by each Borrower and Borrowers will pay the same.
Β
Β
Β
Β
At
the
election of Administrative Agent or Required Lenders, after the occurrence
of an
Event of Default and for so long as it continues, the Loans and other
Obligations shall bear interest at rates that are five percent (5.0%)Β per
annum in excess of the rates otherwise payable under this Agreement (each,
the
"Default
Rate").
Β
Β
During
the continuance of any Event of Default, each Lender is hereby authorized
by
each Borrower at any time or from time to time, with reasonably prompt
subsequent notice to such Borrower (any prior or contemporaneous notice being
hereby expressly waived)Β to set off and to appropriate and to apply any and
all (a)Β balances held by such Lender or any of such Lender's Affiliates at
any of its offices for the account of such Borrower (regardless of whether
such
balances are then due to such Borrower), and (b)Β other property at any time
held or owing by such Lender to or for the credit or for the account of such
Borrower, against and on account of any of the Obligations; except that no
Lender shall exercise any such right without the prior written consent of
Administrative Agent. Any Lender exercising a right to set off shall purchase
for cash (and the other Lenders shall sell)Β interests in each of such other
Lender's Pro Rata Share of the Obligations as would be necessary to cause
all
Lenders to share the amount so set off with each other Lender in accordance
with
their respective Pro Rata Share of the Obligations. Each Borrower agrees,
to the
fullest extent permitted by law, that any Lender and any of such Lender's
Affiliates may exercise its right to set off with respect to the Obligations
as
provided in this Section
11.5.
Β
Β
Notwithstanding
anything to the contrary contained in this Agreement, upon the occurrence
and
during the continuance of an Event of Default, (a)Β each Borrower
irrevocably waives the right to direct the application of any and all payments
at any time or times thereafter received by Administrative Agent from or
on
behalf of such Borrower or any Guarantor of all or any part of the Obligations,
and, as between Borrowers on the one hand and Administrative Agent and Lenders
on the other, Administrative Agent shall have the continuing and exclusive
right
to apply and to reapply any and all payments received against the Obligations
in
such manner as Administrative Agent may deem advisable notwithstanding any
previous application by Administrative Agent and (b)Β the proceeds of any
sale of, or other realization upon, all or any part of the Collateral shall
be
applied: first,
to all
reasonable fees, costs, indemnities, liabilities, obligations and expenses
incurred by or owing to Administrative Agent with respect to this Agreement,
the
other Financing Documents or the Collateral; second,
to all
reasonable fees, costs, indemnities, liabilities, obligations and expenses
incurred by or owing to any Lender with respect to this Agreement, the other
Financing Documents or the Collateral; third,
to
accrued and unpaid interest on the Obligations (including any interest which,
but for the provisions of the Bankruptcy Code,
Β
Β
would
have accrued on such amounts); fourth,
to the
principal amount of the Obligations outstanding (excluding any Obligations
in
respect of any Swap Contract); fifth,
to the
Obligations owing to any Eligible Swap Counterparty in respect of any Swap
Contracts permitted by the terms of this Agreement; and fifth,
to any
other indebtedness or obligations of Borrowers owing to Administrative Agent
or
any Lender under the Financing Documents. Any balance remaining shall be
delivered to Borrowers or to whoever may be lawfully entitled to receive
such
balance (including any holder of the indebtedness evidenced by the Affiliated
Financing Documents)Β or as a court of competent jurisdiction may direct. In
carrying out the foregoing, (y)Β amounts received shall be applied in the
numerical order provided until exhausted prior to the application to the
next
succeeding category, and (z)Β each of the Persons entitled to receive a
payment in any particular category shall receive an amount equal to its pro
rata
share of amounts available to be applied pursuant thereto for such category.
Β
Β
(a)Β Β Β Β Except
as
otherwise provided for in this Agreement and to the fullest extent permitted
by
applicable law, each Borrower waives: (i)Β presentment, demand and protest,
and notice of presentment, dishonor, intent to accelerate, acceleration,
protest, default, nonpayment, maturity, release, compromise, settlement,
extension or renewal of any or all Financing Documents, the Notes or any
other
notes, commercial paper, accounts, contracts, documents, instruments, chattel
paper and Guarantees at any time held by Lenders on which any Borrower may
in
any way be liable, and hereby ratifies and confirms whatever Lenders may
do in
this regard; (ii)Β all rights to notice and a hearing prior to
Administrative Agent's or any Lender's taking possession or control of, or
to
Administrative Agent's or any Lender's replevy, attachment or levy upon,
any
Collateral or any bond or security which might be required by any court prior
to
allowing Administrative Agent or any Lender to exercise any of its remedies;
and
(iii)Β the benefit of all valuation, appraisal and exemption Laws. Each
Borrower acknowledges that it has been advised by counsel of its choices
and
decisions with respect to this Agreement, the other Financing Documents and
the
transactions evidenced hereby and thereby.
Β
(b)Β Β Β Β Each
Borrower for itself and all endorsers, guarantors and sureties and their
heirs,
legal representatives, successors and assigns, (i)Β agrees that its
liability shall not be in any manner affected by any indulgence, extension
of
time, renewal, waiver, or modification granted or consented to by Lender;
(ii)Β consents to any indulgences and all extensions of time, renewals,
waivers, or modifications that may be granted by Administrative Agent or
any
Lender with respect to the payment or other provisions of the Financing
Documents, and to any substitution, exchange or release of the Collateral,
or
any part thereof, with or without substitution, and agrees to the addition
or
release of any Borrower, endorsers, guarantors, or sureties, or whether
primarily or secondarily liable, without notice to any other Borrower and
without affecting its liability hereunder; (iii)Β agrees that its liability
shall be unconditional and without regard to the liability of any other
Borrower, Administrative Agent or any Lender for any tax on the indebtedness;
and (iv)Β to
the
fullest extent permitted by law,
expressly waives the benefit of any statute or rule of law
Β
Β
or
equity
now provided, or which may hereafter be provided, which would produce a result
contrary to or in conflict with the foregoing.
Β
(c)Β Β Β Β To
the
extent that Administrative Agent or any Lender may have acquiesced in any
noncompliance with any requirements or conditions precedent to the closing
of
the Loans or to any subsequent disbursement of Loan proceeds, such acquiescence
shall not be deemed to constitute a waiver by Administrative Agent or any
Lender
of such requirements with respect to any future disbursements of Loan proceeds
and Administrative Agent may at any time after such acquiescence require
Borrowers to comply with all such requirements. Any forbearance by
Administrative Agent or Lender in exercising any right or remedy under any
of
the Financing Documents, or otherwise afforded by applicable law, including
any
failure to accelerate the maturity date of the Loans, shall not be a waiver
of
or preclude the exercise of any right or remedy nor shall it serve as a novation
of the Notes or as a reinstatement of the Loans or a waiver of such right
of
acceleration or the right to insist upon strict compliance of the terms of
the
Financing Documents. Administrative Agent's or any Lender's acceptance of
payment of any sum secured by any of the Financing Documents after the due
date
of such payment shall not be a waiver of Administrative Agent's and such
Lender'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
Administrative Agent as the result of an Event of Default shall not be a
waiver
of Administrative Agent's right to accelerate the maturity of the Loans,
nor
shall Administrative Agent's receipt of any condemnation awards, insurance
proceeds, or damages under this Agreement operate to cure or waive any Credit
Party's default in payment of sums secured by any of the Financing
Documents.
Β
(d)Β Β Β Β Without
limiting the generality of anything contained in this Agreement or the other
Financing Documents, each Borrower agrees that if an Event of Default is
continuing (i)Β Administrative Agent and Lenders are not subject to any "one
action" or "election of remedies" law or rule, and (ii)Β all Liens and other
rights, remedies or privileges provided to Administrative Agent or Lenders
shall
remain in full force and effect until Administrative Agent or Lenders have
exhausted all remedies against the Collateral and any other properties owned
by
Borrowers and the Financing Documents and other security instruments or
agreements securing the Loans have been foreclosed, sold and/or otherwise
realized upon in satisfaction of Borrowers' obligations under the Financing
Documents.
Β
(e)Β Β Β Β Nothing
contained herein or in any other Financing Document shall be construed as
requiring Administrative Agent or any Lender to resort to any part of the
Collateral for the satisfaction of any of Borrowers' obligations under the
Financing Documents in preference or priority to any other Collateral, and
Administrative Agent may seek satisfaction out of all of the Collateral or
any
part thereof, in its absolute discretion in respect of Borrowers' obligations
under the Financing Documents. In addition, Administrative Agent shall have
the
right from time to time to partially foreclose upon any Collateral in any
manner
and for any amounts secured by the Financing Documents then due and payable
as
determined by Administrative Agent in its sole discretion, including, without
limitation, the following circumstances: (i)Β in the event any Borrower
defaults beyond any applicable grace period in the payment of one or more
scheduled payments of principal
Β
Β
and/or
interest, Administrative Agent may foreclose upon all or any part of the
Collateral to recover such delinquent payments, or (ii)Β in the event
Administrative Agent elects to accelerate less than the entire outstanding
principal balance of the Loans, Administrative Agent may foreclose all or
any
part of the Collateral to recover so much of the principal balance of the
Loans
as Lender may accelerate and such other sums secured by one or more of the
Financing Documents as Administrative Agent may elect. Notwithstanding one
or
more partial foreclosures, any unforeclosed Collateral shall remain subject
to
the Financing Documents to secure payment of sums secured by the Financing
Documents and not previously recovered.
Β
(f)Β Β Β Β To
the
fullest extent permitted by law, each Borrower, for itself and its successors
and assigns, waives in the event of foreclosure of any or all of the Collateral
any equitable right otherwise available to any Credit Party which would require
the separate sale of the any of the Collateral or require Administrative
Agent
or Lenders to exhaust their remedies against any part of the Collateral before
proceeding against any other part of the Collateral; and further in the event
of
such foreclosure each Borrower does hereby expressly consent to and authorize,
at the option of Lender, the foreclosure and sale either separately or together
of each part of the Collateral.
Β
Β
The
parties acknowledge and agree that, for certain Events of Default,
Administrative Agent and Lenders may have no adequate remedy in money damages
and, accordingly, shall be entitled to an injunction (including without
limitation, a temporary restraining order, preliminary injunction, writ of
attachment, or order compelling an audit)Β against such Events of Default.
However, no specification in this Agreement of a specific legal or equitable
remedy shall be construed as a waiver or prohibition against any other legal
or
equitable remedies in the event of a breach or threatened breach of any
provision of this Agreement.
Each
Credit Party waives, to
the
fullest extent permitted by law,
the
requirement of the posting of any bond in connection with such injunctive
relief. By joining in the Financing Documents as a Credit Party, each Credit
Party specifically joins in this Section as if this Section were a part of
each
Financing Documents executed by the Credit Party.
Β
Β
Administrative
Agent and Lenders shall have no obligation to marshal any assets in favor
of any
Credit Party, or against or in payment of any of the other Obligations or
any
other obligation owed to Administrative Agent or Lenders by any Credit
Party.
Β
Β
EXPENSES
AND INDEMNITY
Β
Β
Each
Borrower hereby agrees to promptly pay (a)Β all reasonable costs and
expenses of Administrative Agent (including without limitation the reasonable
fees, costs and expenses of counsel to, and independent appraisers and
consultants retained by Administrative Agent)Β in connection with the
examination, review, due diligence investigation, documentation, negotiation
and
closing of the transactions contemplated by the Financing Documents, in
connection with the performance by Administrative Agent of its rights and
remedies under the Financing Documents and in connection with the continued
administration of the Financing Documents, including (i)Β any amendments,
modifications, consents and waivers to and/or under any and all Financing
Documents and (ii)Β any periodic public record searches conducted by or at
the request of Administrative Agent (including, without limitation, title
investigations, UCC searches, fixture filing searches, judgment, pending
litigation and tax lien searches and searches of applicable corporate, limited
liability, partnership and related records concerning the continued existence,
organization and good standing of certain Persons), (b)Β without limitation
of the preceding clause (a), all costs and expenses of Administrative Agent
(including recordation and transfer taxes)Β in connection with the creation,
perfection and maintenance of Liens pursuant to the Financing Documents,
(c)Β without limitation of the preceding clause (a), all costs and expenses
of Administrative Agent in connection with (i)Β protecting, storing,
insuring, handling, maintaining or selling any Collateral; (ii)Β any
litigation, dispute, suit or proceeding relating to any Financing Document;
and
(iii)Β any workout, collection, bankruptcy, insolvency and other enforcement
proceedings under any and all of the Financing Documents, and (d)Β all costs
and expenses incurred by Lenders in connection with any litigation, dispute,
suit or proceeding relating to any Financing Document and in connection with
any
workout, collection, bankruptcy, insolvency and other enforcement proceedings
under any and all Financing Documents, provided, however, that to the extent
that the costs and expenses referred to in this clause (d)Β consist of fees,
costs and expenses of counsel, Borrowers shall be obligated to pay such fees,
costs and expenses for counsel to Administrative Agent and for only one counsel
acting for all Lenders (other than Administrative Agent).
Β
Β
Each
Borrower hereby agrees to indemnify, pay and hold harmless Administrative
Agent
and Lenders and the officers, directors, employees, trustees, agents, investment
advisors, collateral managers, servicers, and counsel of Administrative Agent
and Lenders (collectively called the "Indemnitees")Β from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any
kind
or nature whatsoever (including the fees and disbursements of counsel for
such
Indemnitee)Β in connection with any investigative, response, remedial,
administrative or judicial matter or proceeding, whether or not such Indemnitee
shall be designated a party thereto and including any such proceeding initiated
by or on behalf of a Credit Party, and the reasonable expenses of investigation
by engineers, environmental
Β
Β
consultants
and similar technical personnel and any commission, fee or compensation claimed
by any broker (other than any broker retained by Administrative Agent or
Lenders)Β asserting any right to payment for the transactions contemplated
hereby, which may be imposed on, incurred by or asserted against such Indemnitee
as a result of or in connection with the transactions contemplated hereby
or by
the other Financing Documents (including (a)(i)Β as a direct or indirect
result of the presence on or under, or escape, seepage, leakage, spillage,
discharge, emission or release from, any property now or previously owned,
leased or operated by any Borrower, or any other Person of any Hazardous
Materials or any Hazardous Materials Contamination, (ii)Β arising out of or
relating to the offsite disposal of any materials generated or present on
any
such property or (iii)Β arising out of or resulting from the environmental
condition of any such property or the applicability of any governmental
requirements relating to Hazardous Materials, whether or not occasioned wholly
or in part by any condition, accident or event caused by any act or omission
of
any Borrower, (b)Β proposed and actual extensions of credit under this
Agreement)Β and the use or intended use of the proceeds of the Loans and
(c)Β any brokerage claims in connection with the sale or any leasing of any
Project, except that no Borrower shall have any obligation hereunder to an
Indemnitee with respect to any liability resulting from the gross negligence
or
willful misconduct of such Indemnitee, as determined by a final non-appealable
judgment of a court of competent jurisdiction or for any liability with respect
to clauses (a)Β or (c)Β first occurring after transfer of title of a
Project following a foreclosure or pursuant to a conveyance in lieu of
foreclosure provided that the applicable Borrower is no longer in possession
of
the applicable Project. To the extent that the undertaking set forth in the
immediately preceding sentence may be unenforceable, each Borrower shall
contribute the maximum portion which it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all such indemnified
liabilities incurred by the Indemnitees or any of them.
Β
ADMINISTRATIVE
AGENT
Β
Β
Each
Lender hereby irrevocably appoints and authorizes Administrative Agent to
enter
into each of the Financing Documents to which it is a party (other than this
Agreement)Β on its behalf and to take such actions as Administrative Agent
on its behalf and to exercise such powers under the Financing Documents as
are
delegated to Administrative Agent by the terms thereof, together with all
such
powers as are reasonably incidental thereto. Subject to the terms of
Section
13.16
and to
the terms of the other Financing Documents, Administrative Agent is authorized
and empowered to amend, modify, or waive any provisions of this Agreement
or the
other Financing Documents on behalf of Lenders. The provisions of this Article
13 are solely for the benefit of Administrative Agent and Lenders and neither
any Borrower nor any other Credit Party shall have any rights as a third
party
beneficiary of any of the provisions hereof. In performing its functions
and
duties under this Agreement, Administrative Agent shall act solely as agent
of
Lenders and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for any Borrower
or
any other Credit Party. Administrative Agent
Β
Β
may
perform any of its duties hereunder, or under the Financing Documents, by
or
through its agents or employees.
Β
Β
Administrative
Agent
shall
have the same rights and powers under the Financing Documents as any other
Lender and may exercise or refrain from exercising the same as though it
were
not Administrative Agent, and Administrative Agent and its Affiliates may
lend
money to, invest in and generally engage in any kind of business with each
Credit Party or Affiliate of any Credit Party as if it were not Administrative
Agent hereunder.
Β
Β
The
duties of Administrative Agent shall be mechanical and administrative in
nature.
Administrative Agent shall not have by reason of this Agreement a fiduciary
relationship in respect of any Lender. Nothing in this Agreement or any of
the
Financing Documents is intended to or shall be construed to impose upon
Administrative Agent any obligations in respect of this Agreement or any
of the
Financing Documents except as expressly set forth herein or
therein.
Β
Β
Administrative
Agent may consult with legal counsel, independent public accountants and
other
experts selected by it and shall not be liable for any action taken or omitted
to be taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
Β
Β
Neither
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to any Lender for any action taken or not taken by it in
connection with the Financing Documents, except that Administrative Agent
shall
be liable with respect to its specific duties set forth hereunder but only
to
the extent of its own gross negligence or willful misconduct in the discharge
thereof as determined by a final non-appealable judgment of a court of competent
jurisdiction. Neither Administrative Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (a)Β any statement, warranty or representation made
in connection with any Financing Document or any borrowing hereunder;
(b)Β the performance or observance of any of the covenants or agreements
specified in any Financing Document; (c)Β the satisfaction of any condition
specified in any Financing Document; (d)Β the validity, effectiveness,
sufficiency or genuineness of any Financing Document, any Lien purported
to be
created or perfected thereby or any other instrument or writing furnished
in
connection therewith; (e)Β the existence or non-existence of any Default or
Event of Default; or (f)Β the financial condition of any Credit Party.
Administrative Agent shall not incur any liability by acting in reliance
upon
any notice, consent, certificate, statement, or other writing (which may
be a
bank wire, telex, facsimile or electronic transmission or similar
writing)Β believed by it to be
Β
Β
genuine
or to be signed by the proper party or parties. Administrative Agent shall
not
be liable for any apportionment or distribution of payments made by it in
good
faith and if any such apportionment or distribution is subsequently determined
to have been made in error the sole recourse of any Lender to whom payment
was
due but not made, shall be to recover from other Lenders any payment in excess
of the amount to which they are determined to be entitled (and such other
Lenders hereby agree to return to such Lender any such erroneous payments
received by them).
Β
Β
Each
Lender shall, in accordance with its Pro Rata Share, indemnify Administrative
Agent (to the extent not reimbursed by Borrowers)Β upon demand against any
cost, expense (including counsel fees and disbursements), claim, demand,
action,
loss or liability (except such as result from Administrative Agent's gross
negligence or willful misconduct as determined by a final non-appealable
judgment of a court of competent jurisdiction)Β that Administrative Agent
may suffer or incur in connection with the Financing Documents or any action
taken or omitted by Administrative Agent hereunder or thereunder. If any
indemnity furnished to Administrative Agent for any purpose shall, in the
opinion of Administrative Agent, be insufficient or become impaired,
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against even if so directed by Required
Lenders until such additional indemnity is furnished.
Β
Β
Administrative
Agent may at any time request instructions from Lenders with respect to any
actions or approvals which by the terms of this Agreement or of any of the
Financing Documents Administrative Agent is permitted or desires to take
or to
grant, and if such instructions are promptly requested, Administrative Agent
shall be absolutely entitled to refrain from taking any action or to withhold
any approval and shall not be under any liability whatsoever to any Person
for
refraining from any action or withholding any approval under any of the
Financing Documents until it shall have received such instructions from Required
Lenders or all or such other portion of the Lenders as shall be prescribed
by
this Agreement. Without limiting the foregoing, no Lender shall have any
right
of action whatsoever against Administrative Agent as a result of Administrative
Agent acting or refraining from acting under this Agreement or any of the
other
Financing Documents in accordance with the instructions of Required Lenders
(or
all or such other portion of the Lenders as shall be prescribed by this
Agreement)Β and, notwithstanding the instructions of Required Lenders (or
such other applicable portion of the Lenders), Administrative Agent shall
have
no obligation to take any action if it believes, in good faith, that such
action
would violate applicable Law or exposes Administrative Agent to any liability
for which it has not received satisfactory indemnification in accordance
with
the provisions of Section
13.6.
Β
Β
Each
Lender acknowledges that it has, independently and without reliance upon
Administrative Agent or any other Lender, and based on such documents
and
Β
Β
information
as it has deemed appropriate, made its own credit analysis and decision to
enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon Administrative Agent or any other Lender, and based
on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking any action
under the Financing Documents.
Β
Β
Lenders
irrevocably authorize Administrative Agent, at its option and in its discretion,
to (a)Β release any Lien granted to or held by Administrative Agent under
any Security Document (i)Β upon payment
in full of all Obligations or (ii)Β constituting property sold or disposed
of as part of or in connection with any disposition permitted under any
Financing Document (it being understood and agreed that Administrative Agent
may
conclusively rely without further inquiry on a certificate of a Responsible
Officer as to the sale or other disposition of property being made in full
compliance with the provisions of the Financing Documents); and (b)Β release
or subordinate any Lien granted to or held by Administrative Agent under
any
Security Document constituting property described in Section
5.7(b)Β (it
being
understood and agreed that Administrative Agent may conclusively rely without
further inquiry on a certificate of a Responsible Officer as to the
identification of any property described in SectionΒ 5.7(b)).
Upon
request by Administrative Agent at any time, Lenders will confirm Administrative
Agent's authority
to release and/or subordinate particular types or items of Collateral pursuant
to this Section
13.9.
Β
Β
Administrative
Agent and each Lender hereby appoint each other Lender as agent for the purpose
of perfecting Administrative Agent's security interest in assets which, in
accordance with the Uniform Commercial Code in any applicable jurisdiction,
can
be perfected by possession or control. Should any Lender (other than
Administrative Agent)Β obtain possession or control of any such assets, such
Lender shall notify Administrative Agent thereof, and, promptly upon
Administrative Agent's request therefor, shall deliver such assets to
Administrative Agent or in accordance with Administrative Agent's instructions
or transfer control to Administrative Agent in accordance with Administrative
Agent's instructions. Each Lender agrees that it will not have any right
individually to enforce or seek to enforce any Security Document or to realize
upon any Collateral for the Loans unless instructed to do so by Administrative
Agent (or consented to by Administrative Agent, as provided in Section
11.5),
it
being understood and agreed that such rights and remedies may be exercised
only
by Administrative Agent.
Β
Β
Administrative
Agent shall not be deemed to have knowledge or notice of the occurrence of
any
Default or Event of Default except with respect to defaults in the payment
of
principal, interest and fees required to be paid to Administrative Agent
for the
account of Lenders, unless Administrative Agent shall have received written
notice from a Lender or a
Β
Β
Borrower
referring to this Agreement, describing such Default or Event of Default
and
stating that such notice is a "notice of default". Administrative Agent will
notify each Lender of its receipt of any such notice. Administrative Agent
shall
take such action with respect to such Default or Event of Default as may
be
requested by Required Lenders (or all or such other portion of the Lenders
as
shall be prescribed by this Agreement)Β in accordance with the terms hereof.
Unless and until Administrative Agent has received any such request,
Administrative Agent may (but shall not be obligated to)Β take such action,
or refrain from taking such action, with respect to such Default or Event
of
Default as it shall deem advisable or in the best interests of
Lenders.
Β
Β
Administrative
Agent may at any time give notice of its resignation to the Lenders and
Borrowers. Upon receipt of any such notice of resignation, Required Lenders
shall have the right, in consultation with Borrowers, to appoint a successor
Administrative Agent, and provided that, if no Default or Event of Default
has
occurred and is outstanding, Borrowers shall have the right to consent to
any
such successor Administrative Agent, which consent shall not be unreasonably
withheld, conditioned or delayed. Upon the acceptance of a successor's
appointment as Administrative Agent hereunder and notice of such acceptance
to
the retiring Administrative Agent, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
(or
retired)Β Administrative Agent, the retiring Administrative Agent's
resignation shall become immediately effective and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder
and
under the other Financing Documents (if such resignation was not already
effective and such duties and obligations not already discharged, as provided
below in this paragraph). The fees payable by Borrowers to a successor
Administrative Agent under this Agreement shall be the same as those payable
to
its predecessor unless otherwise agreed among Borrowers and such successor.
If
no such successor shall have been so appointed by Required Lenders and shall
have accepted such appointment within thirty (30)Β days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders (but without any
obligation)Β appoint a successor Administrative Agent, and provided that, if
no Default or Event of Default has occurred and is outstanding, Borrowers
shall
have the right to consent to any such successor Administrative Agent, which
consent shall not be unreasonably, withheld, conditioned or delayed. From
and
following the expiration of such thirty (30)Β day period, Administrative
Agent shall have the exclusive right, upon one (1)Β Business Days' notice to
Borrower Representative and the Lenders, to make its resignation effective
immediately. From and following the effectiveness of such notice, (a)Β the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Financing Documents, and (b)Β all
payments, communications and determinations provided to be made by, to or
through Administrative Agent shall instead be made by or to each Lender
directly, until such time as Required Lenders appoint a successor Administrative
Agent as provided for above in this paragraph. The provisions of this Agreement
shall continue in effect for the benefit of any retiring Administrative Agent
and its sub-agents after the effectiveness of its resignation hereunder and
under the other
Β
Β
Financing
Documents in respect of any actions taken or omitted to be taken by any of
them
while the retiring Administrative Agent was acting or was continuing to act
as
Administrative Agent.
Β
Β
(a)Β Β Β Β Term
Loan Payments.
Payments of principal, interest and fees in respect of the Term Loans will
be
settled on the date of receipt if received by Administrative Agent on the
last
Business Day of a month or on the Business Day immediately following the
date of
receipt if received on any day other than the last Business Day of a
month.
Β
(b)Β Β Β Β Return
of Payments.
Β
(i)Β Β Β Β If
Administrative Agent pays an amount to a Lender under this Agreement in the
belief or expectation that a related payment has been or will be received
by
Administrative Agent from a Borrower and such related payment is not received
by
Administrative Agent, then Administrative Agent will be entitled to recover
such
amount from such Lender on demand without setoff, counterclaim or deduction
of
any kind, together with interest accruing on a daily basis at the Federal
Funds
Rate.
Β
(ii)Β Β Β Β If
Administrative Agent determines at any time that any amount received by
Administrative Agent under this Agreement must be returned to any Borrower
or
paid to any other Person pursuant to any insolvency law or otherwise, then,
notwithstanding any other term or condition of this Agreement or any other
Financing Document, Administrative Agent will not be required to distribute
any
portion thereof to any Lender. In addition, each Lender will repay to
Administrative Agent on demand any portion of such amount that Administrative
Agent has distributed to such Lender, together with interest at such rate,
if
any, as Administrative Agent is required to pay to any Borrower or such other
Person, without setoff, counterclaim or deduction of any kind.
Β
(c)Β Β Β Β Defaulted
Lenders.
The
failure of any Defaulted Lender to make any payment required by it hereunder
shall not relieve any other Lender of its obligations to make payment, but
neither any other Lender nor Administrative Agent shall be responsible for
the
failure of any Defaulted Lender to make any payment required hereunder.
Notwithstanding anything set forth herein to the contrary, a Defaulted Lender
shall not have any voting or consent rights under or with respect to any
Financing Document or constitute a "Lender" (or be included in the calculation
of "Required Lenders" hereunder)Β for any voting or consent rights under or
with respect to any Financing Document.
Β
(d)Β Β Β Β Sharing
of Payments.
If any
Lender shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of setoff or otherwise)Β on account of any Loan
(other than pursuant to the terms of Section
2.9)Β in
excess of its pro rata share of payments entitled pursuant to the other
provisions of this Section
13.13,
such
Lender shall purchase from the other Lenders such participations in extensions
of credit made by such other Lenders (without recourse, representation or
warranty)Β as shall be necessary to cause such purchasing Lender to share
the excess payment or other recovery ratably with each of
Β
Β
them;
provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase
shall
be rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery, without interest. Each Borrower agrees that any
Lender
so purchasing a participation from another Lender pursuant to this clause
(d)Β may, to the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section
11.5)Β with
respect to such participation as fully as if such Lender were the direct
creditor of Borrowers in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives
a
secured claim in lieu of a setoff to which this clause (d)Β applies, such
Lender shall, to the extent practicable, exercise its rights in respect of
such
secured claim in a manner consistent with the rights of the Lenders entitled
under this clause (d)Β to share in the benefits of any recovery on such
secured claim.
Β
Β
Upon
and
during the continuance of any Default or Event of Default, Administrative
Agent
itself may, but shall not be obligated to, cause any obligation of any Credit
Party hereunder or under any other Financing Document to be performed at
Borrowers' expense. Upon and during the continuance of any Default or Event
of
Default, Administrative Agent is further authorized by Borrowers and the
Lenders
to make expenditures from time to time which Administrative Agent, in its
reasonable business judgment, deems necessary or desirable to (a)Β preserve
or protect the business conducted by Borrowers, the Collateral, or any portion
thereof, and/or (b)Β enhance the likelihood of, or maximize the amount of,
repayment of the Loans and other Obligations. Each Borrower hereby agrees
to
reimburse Administrative Agent on demand for any and all costs (which costs
shall be reasonable), liabilities and obligations incurred by Administrative
Agent pursuant to this Section
13.14.
Each
Lender hereby agrees to indemnify Administrative Agent upon demand for any
and
all costs, liabilities and obligations incurred by Administrative Agent pursuant
to this Section
13.14,
in
accordance with the provisions of Section
13.6.
Β
Β
Except
for rights and powers, if any, expressly reserved under this Agreement to
any
bookrunner, arranger or to any titled agent named on the cover page of this
Agreement, other than Administrative Agent (collectively, the "Additional
Titled Agents"),
and
except for obligations, liabilities, duties and responsibilities, if any,
expressly assumed under this Agreement by any Additional Titled Agent, no
Additional Titled Agent, in such capacity, has any rights, powers, liabilities,
duties or responsibilities hereunder or under any of the other Financing
Documents. Without limiting the foregoing, no Additional Titled Agent shall
have
nor be deemed to have a fiduciary relationship with any Lender. At any time
that
any Lender serving as an Additional Titled Agent shall have transferred to
any
other Person (other than any Affiliates)Β all of its interests in the Loans,
such Lender shall be deemed to have concurrently resigned as such Additional
Titled Agent.
Β
Β
Β
In
addition to the required signatures under Section
14.5,
no
provision of this Agreement or any other Financing Document may be amended,
waived or otherwise modified unless such amendment, waiver or other modification
is in writing and is signed or otherwise approved by the following
Persons:
Β
(a)Β Β Β Β if
any
amendment, waiver or other modification would increase a Lender's funding
obligations in respect of any Term Loan, by such Lender; and/or
Β
(b)Β Β Β Β if
the
rights or duties of Administrative Agent are affected thereby, by Administrative
Agent;
Β
Provided
that,
in
each of (a)Β and (b)Β above, no such amendment, waiver or other
modification shall, unless signed by all the Lenders directly affected thereby,
(i)Β reduce the principal of, rate of interest on or any fees with respect
to any Loan or forgive any principal, interest (other than default
interest)Β or fees (other than late charges)Β with respect to any Loan;
(ii)Β postpone the date fixed for, or waive, any payment (other than a
payment pursuant to SectionΒ 2.1(c)Β or
Section
6.7)Β of
principal of any Loan, or of interest on any Loan (other than default
interest)Β or any fees provided for hereunder (other than late
charges)Β or for any termination of any commitment; (iii)Β change the
definition of the term Required Lenders or the percentage of Lenders which
shall
be required for Lenders to take any action hereunder; (iv)Β release all or
substantially all of the Collateral, authorize any Borrower to sell or otherwise
dispose of all or substantially all of the Collateral or release any Guarantor
of all or any portion of the Obligations of its Guarantee obligations with
respect thereto, except, in each case with respect to this clauseΒ (iv), as
otherwise may be provided in this Agreement or the other Financing Documents
(including in connection with any disposition permitted hereunder);
(v)Β amend, waive or otherwise modify this Section
13.16
or the
definitions of the terms used in this Section
13.16
insofar
as the definitions affect the substance of this Section
13.16;
or
(vi)Β consent
to the assignment, delegation or other transfer by any Credit Party of any
of
its rights and obligations under any Financing Document or release any Borrower
of its payment obligations under any Financing Document, except, in each
case
with respect to this clauseΒ (vi), pursuant to a merger or consolidation
permitted pursuant to this Agreement. It is hereby understood and agreed
that
all Lenders shall be deemed directly affected by an amendment, waiver or
other
modification of the type described in the preceding clauses (iii), (iv),
(v)Β and (vi)Β of the preceding sentence.
Β
Β
(a)Β Β Β Β Any
Lender may at any time assign to one or more Eligible Assignees all or any
portion of such Lender's Loans together with all related obligations of such
Lender hereunder. Except as Administrative Agent may otherwise agree, the
amount
of any such assignment (determined as of the date of the applicable Assignment
Agreement or, if a "Trade
Date"
is
specified in such Assignment Agreement, as of such Trade Date)Β shall be in
a minimum
aggregate amount equal to $1,000,000 or, if less, the assignor's entire
interests in the outstanding Loans; provided, however, that, in connection
with
simultaneous
Β
Β
assignments
to two or more related Approved Funds, such Approved Funds shall be treated as
one assignee for purposes of determining compliance with the minimum assignment
size referred to above. Borrowers and Administrative Agent shall be entitled
to
continue to deal solely and directly with such Lender in connection with
the
interests so assigned to an Eligible Assignee until Administrative Agent
shall
have received and accepted an effective Assignment Agreement
executed,
delivered and fully completed by the applicable
parties thereto
and
a
processing fee of $3,500;
provided,
however,
that
only one processing fee shall be payable in connection with simultaneous
assignments to two or more related Approved Funds.
Β
(b)Β Β Β Β From
and
after the date on which the conditions described above have been met,
(i)Β such Eligible Assignee shall be deemed automatically to have become a
party hereto and, to the extent of the interests assigned to such Eligible
Assignee pursuant to such Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and (ii)Β the assigning Lender, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment Agreement, shall be released from its rights and obligations
hereunder (other than those that survive termination pursuant to Section
14.1).
Upon
the request of the Eligible Assignee (and, as applicable, the assigning
Lender)Β pursuant to an effective Assignment Agreement, each Borrower shall
execute and deliver to Administrative Agent for delivery to the Eligible
Assignee (and, as applicable, the assigning Lender)Β Notes in the aggregate
principal amount of the Eligible Assignee's Term Loans (and, as applicable,
Notes in the principal amount of that portion of the principal amount of
the
Term Loans retained by the assigning Lender). Upon receipt by the assigning
Lender of such Note, the assigning Lender shall return to Borrower
Representative any prior Note held by it.
Β
(c)Β Β Β Β Notwithstanding
the foregoing provisions of this Section
13.17
or any
other provision of this Agreement, any Lender may at any time pledge or assign
a
security interest in all or any portion of its rights under this Agreement
to
secure obligations of such Lender, including any pledge or assignment to
secure
obligations to a Federal Reserve Bank; provided, however, that no such pledge
or
assignment shall release such Lender from any of its obligations hereunder
or
substitute any such pledgee or assignee for such Lender as a party
hereto.
Β
(d)Β Β Β Β Notwithstanding
the foregoing provisions of this Section
13.17
or any
other provision of this Agreement, Administrative Agent has the right, but
not
the obligation, to effectuate assignments of Loans via an electronic settlement
system acceptable to Administrative Agent as designated in writing from time
to
time to the Lenders by Administrative Agent (the "Settlement
Service").
At
any time when the Administrative Agent elects, in its sole discretion, to
implement such Settlement Service, each such assignment shall be effected
by the
assigning Lender and proposed assignee pursuant to the procedures then in
effect
under the Settlement Service, which procedures shall be consistent with the
other provisions of this Section
13.17.
Each
assigning Lender and proposed Eligible Assignee shall comply with the
requirements of the Settlement Service in connection with effecting any
assignment of Loans pursuant to the Settlement Service. If so elected by
each of
Administrative Agent and the Borrowers, Administrative Agent's and the
Borrowers' approval of such Eligible Assignee shall be deemed to have been
automatically granted with
Β
Β
respect
to any transfer effected through the Settlement Service. Assignments and
assumptions of the Loans shall be effected by the provisions otherwise set
forth
herein until Administrative Agent notifies Lenders of the Settlement Service
as
set forth herein.
Β
(e)Β Β Β Β Any
Lender may at any time, without the consent of, or notice to, any Borrower
or
Administrative Agent, sell to one or more Persons participating interests
in its
Loans, commitments or other interests hereunder (any such Person, a
"Participant").
In
the event of a sale by a Lender of a participating interest to a Participant,
(i)Β such Lender's obligations hereunder
shall remain unchanged for all purposes, (ii)Β Borrowers and Administrative
Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations hereunder, and (iii)Β all amounts payable by each Borrower shall
be determined as if such Lender had not sold such participation and
shall
be paid directly to such Lender. No Participant shall have any direct or
indirect voting rights hereunder except with respect to (x)Β any event
described in Section
13.16
expressly requiring the unanimous vote of all Lenders or, as applicable,
all
affected Lenders, and (y)Β the institution or commencement of enforcement
remedies. Each Lender agrees to incorporate the requirements of the preceding
sentence into each participation agreement which such Lender enters into
with
any Participant. Each Borrower agrees that if amounts outstanding under this
Agreement are due and payable (as a result of acceleration or otherwise),
each
Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same
extent
as if the amount of its participating interest were owing directly to it
as a
Lender under this Agreement; provided, however, that such right of set-off
shall
be subject to the obligation of
each
Participant to share with Lenders, and Lenders agree to share with each
Participant, as provided in Section
11.5.
Β
(f)Β Β Β Β Within
thirty (30)Β days after: (i)Β receipt by Administrative Agent of notice
and demand from any Lender for payment of additional costs as provided in
Section
2.9,
which
demand shall not have been revoked, (ii)Β any Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section
2.8,
(iii)Β any Lender is a Defaulted Lender, and the circumstances causing such
status shall not have been cured or waived; or (iv)Β any failure by any
Lender to consent to a requested amendment, waiver or modification to any
Financing Document in which Required Lenders have already consented to such
amendment, waiver or modification but the consent of each Lender, or each
Lender
affected thereby, is required with respect thereto, (each relevant Lender
in the
foregoing clausesΒ (i)Β through (iv)Β being an "AffectedΒ Lender")Β each
of Borrower Representative and Administrative Agent may, at its option, notify
such Affected Lender and, in the case of Borrowers' election, the Administrative
Agent, of such Person's intention to obtain, at Borrowers' expense, a
replacement Lender ("Replacement
Lender")Β for
such Lender, which Replacement Lender shall be an Eligible Assignee and,
in the
event the Replacement Lender is to replace an Affected Lender described in
the
preceding clause (iv), such Replacement Lender consents to the requested
amendment, waiver or modification making the replaced Lender an Affected
Lender.
In the event Borrowers or Administrative Agent, as applicable, obtains a
Replacement Lender within ninety (90)Β days following notice of its
intention to do so, the Affected Lender shall
Β
Β
sell,
at
par, and assign all of its Loans and funding commitments hereunder to such
Replacement Lender in accordance with the procedures set forth in Section
14.6(a);
provided, however, that (i)Β Borrowers shall have reimbursed such Lender for
its increased costs and additional payments for which it is entitled to
reimbursement under Section
2.8
or
Section
2.9,
as
applicable, of this Agreement through the date of such sale and assignment
and
(ii)Β Borrowers shall pay to Administrative Agent the $3,500 processing fee
in respect of such assignment. In the event that a replaced Lender does not
execute an Assignment Agreement pursuant to Section
13.17(a)Β within
five (5)Β Business Days after receipt by such replaced Lender of notice of
replacement pursuant to this Section
13.17(f)Β and
presentation to such replaced Lender of an Assignment Agreement evidencing
an
assignment pursuant to this Section
13.17(f),
such
replaced Lender shall be deemed to have consented to the terms of such
Assignment Agreement, and any such Assignment Agreement executed by
Administrative Agent, the Replacement Lender and, to the extent required
pursuant to Section
13.17(a),
Borrowers, shall be effective for purposes of this Section
13.17(f)Β and
Section
13.17(a).
Upon
any such assignment and payment, such replaced Lender shall no longer constitute
a "Lender" for purposes hereof, other than with respect to such rights and
obligations that survive termination as set forth in Section
14.1.
Β
Β
As
used
in this Article 13, the following terms have the following
meanings:
Β
"Approved
Fund"
means
any (a)Β investment company, fund, trust, securitization vehicle or conduit
that is (or will be)Β engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary
course of its business or (b)Β any Person (other than a natural
person)Β which temporarily warehouses loans for any Lender or any entity
described in the preceding clause (a)Β and that, with respect to each of the
preceding clauses (a)Β and (b), is administered or managed by (i)Β a
Lender, (ii)Β an Affiliate of a Lender or (iii)Β a Person (other than a
natural person)Β or an Affiliate of a Person (other than a natural
person)Β that administers or manages a Lender.
Β
"Assignment
Agreement"
means
an agreement substantially in the form of Exhibit
A
hereto.
Β
"Defaulted
Lender"
means,
so long as such failure shall remain in existence and uncured, any Lender
which
shall have failed to make any Loan or other credit accommodation, disbursement
or reimbursement required pursuant to the terms of any Financing
Document.
Β
"Eligible
Assignee"
means
(a)Β a Lender, (b)Β an Affiliate of a Lender, (c)Β an Approved Fund,
and (d)Β any other Person (other than a natural person)Β approved by
(i)Β Administrative Agent, and (ii)Β unless an Event of Default has
occurred and is continuing, Borrower Representative (such approval of Borrower
Representative not to be unreasonably withheld or delayed, and shall be deemed
provided unless expressly withheld by Borrower Representative within three
(3)Β Business Days of request therefor); provided, however,
that
Β
Β
notwithstanding
the foregoing, "Eligible
Assignee"
shall
not include any Borrower or any of a Borrower's Affiliates.
Β
"Federal
Funds Rate"
means,
for any day, the rate of interest per annum (rounded upwards, if necessary,
to
the nearest whole multiple of 1/100 of 1%)Β 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 on such day, as published
by
the Federal Reserve Bank of New York on the Business Day next succeeding
such
day, provided, however, that (a)Β if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on
the
next preceding Business Day, and (b)Β if no such rate is so published on
such next preceding Business Day, the Federal Funds Rate for such day shall
be
the average rate quoted to Administrative Agent on such day on such transactions
as determined by Administrative Agent.
Β
MISCELLANEOUS
Β
Β
All
agreements, representations and warranties made herein and in every other
Financing Document shall survive the execution and delivery of this Agreement
and the other Financing Documents. The provisions of SectionsΒ 2.8
and
2.9
and
ArticleΒ 12 and 13 shall survive the payment of the Obligations (both with
respect to any Lender and all Lenders collectively), any termination of this
Agreement, and any judgment with respect to any Obligations, including any
final
foreclosure judgment with respect to any Security Document, and no unpaid
or
unperformed, current or future, Obligations will merge into any such
judgment.
Β
Β
No
failure or delay by Administrative Agent or any Lender in exercising any
right,
power or privilege under any Financing Document shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other
or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein and therein provided shall be cumulative and
not
exclusive of any rights or remedies provided by law. Any reference in any
Financing Document to the "continuing" nature of any Event of Default shall
not
be construed as establishing or otherwise indicating that any Borrower or
any
other Credit Party has the independent right to cure any such Event of Default,
but is rather presented merely for convenience should such Event of Default
be
waived in accordance with the terms of the applicable Financing
Documents.
Β
Β
(a)Β Β Β Β All
notices, requests and other communications to any party hereunder shall be
in
writing (including prepaid overnight courier, facsimile transmission or similar
writing)Β and shall be given to such party at its address, facsimile number
or e-mail address
Β
Β
set
forth
on the signature pages hereof (or, in the case of any such Lender who becomes
a
Lender after the date hereof, in an Assignment Agreement or in a notice
delivered to Borrower Representative and Administrative Agent by the assignee
Lender forthwith upon such assignment)Β or at such other address, facsimile
number or e-mail address as such party may hereafter specify for the purpose
by
notice to Administrative Agent and Borrower Representative; provided, however,
that notices, requests or other communications shall be permitted by electronic
means only in accordance with the provisions of Section
14.3(b).
Each
such notice, request or other communication shall be effective (i)Β if given
by facsimile, when such notice is transmitted to the facsimile number specified
by this Section and the sender receives a confirmation of transmission from
the
sending facsimile machine, or (ii)Β if given by mail, prepaid overnight
courier or any other means, when received or
when
receipt is refusedΒ at
the
applicable address specified by this Section.
Β
(b)Β Β Β Β Notices
and other communications to the parties hereto may be delivered or furnished
by
electronic communication (including facsimile transmission, e-mail and Internet
or intranet websites)Β pursuant to procedures approved from time to time by
Administrative Agent, provided, however, that the foregoing shall not apply
to
default notices or any notice of the exercise of remedies to any Credit Party
unless such electronic communication is confirmed within one (1)Β Business
Day by overnight courier or notices sent directly to any Lender if such Lender
has notified the Administrative Agent that it is incapable of receiving notices
by electronic communication. The Administrative Agent or Borrower Representative
may, in its discretion, agree to accept notices and other communications
to it
hereunder by electronic communications pursuant to procedures approved by
it,
provided, however, that approval of such procedures may be limited to particular
notices or communications.
Β
(c)Β Β Β Β Unless
the parties otherwise agree, (i)Β notices and other communications sent to
an e-mail address shall be deemed received upon the sender's receipt of an
acknowledgment from the intended recipient (such as by the "return receipt
requested" function, as available, return e-mail or other written
acknowledgment), and (ii)Β notices or communications posted to an Internet
or intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing clause
(i)Β of notification that such notice or communication is available and
identifying the website address therefor, provided, however, that if any
such
notice or other communication is not sent or posted during normal business
hours, such notice or communication shall be deemed to have been sent at
the
opening of business on the next Business Day.
Β
Β
In
case
any provision of or obligation under this Agreement or any other Financing
Document shall be invalid, illegal or unenforceable in any jurisdiction,
the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall
not in any way be affected or impaired thereby.
Β
Β
Β
No
provision of this Agreement or any other Financing Document may be materially
amended, waived or otherwise modified unless such amendment, waiver or other
modification is in writing and is signed or otherwise approved by Borrowers,
the
Required Lenders and any other Lender to the extent required under Section
13.16;
provided,
however,
that
Administrative Agent shall be entitled, in its sole but commercially reasonable
discretion and without the consent of any other Lender, to waive any financial
covenant of any Credit Party.
Β
Β
No
Credit
Party may assign, delegate or otherwise transfer any of its rights or other
obligations hereunder or under any other Financing Document without the prior
written consent of Administrative Agent and each Lender.
Β
Β
Headings
and captions used in the Financing Documents (including the Exhibits, Schedules
and Annexes hereto and thereto)Β are included for convenience of reference
only and shall not be given any substantive effect.
Β
Β
Administrative
Agent and each Lender shall hold all non-public information regarding the
Credit
Parties, their Affiliates and their respective businesses identified as such
by
Borrowers and obtained by Administrative Agent or any Lender pursuant to
the
requirements hereof in accordance with such Person's customary procedures
for
handling information of such nature, except that disclosure of such information
may be made (a)Β to their respective agents, employees, Subsidiaries,
Affiliates, attorneys, auditors, professional consultants, rating agencies,
insurance industry associations and portfolio management services, (b)Β to
prospective transferees or purchasers of any interest in the Loans and to
prospective contractual counterparties (or the professional advisors thereto)
in
Swap Contracts, provided, however, that any such Persons shall have agreed
to be
bound by the provisions of this Section
14.8,
(c)Β as required by Law, subpoena, judicial order or similar order and in
connection with any litigation, (d)Β as may be required in connection with
the examination, audit or similar investigation of such Person and (e)Β to
a Person that is a trustee, investment advisor, collateral manager, servicer,
noteholder or secured party in a Securitization (as hereinafter defined)Β in
connection with the administration, servicing and reporting on the assets
serving as collateral for such Securitization. For the purposes of this Section,
"Securitization"
shall
mean a public or private offering by a Lender or any of its Affiliates or
their
respective successors and assigns, of securities which represent an interest
in,
or which are collateralized, in whole or in party, by the Loans.
Confidential information shall include only such information identified as
such
at the time provided to Administrative Agent and shall not include information
that either: (i)Β is in the public domain, or becomes part of the public
domain after disclosure to such Person through no fault of such Person,
or
Β
Β
(ii)Β Β Β Β is
disclosed
to such Person by a Person other than a Credit Party, provided, however,
Administrative Agent does not have actual knowledge that such Person is
prohibited from disclosing such information. The obligations of Administrative
Agent and Lenders under this Section
14.8
shall
supersede and replace the obligations of Administrative Agent and Lenders
under
any confidentiality agreement in respect of this financing executed and
delivered by Administrative Agent or any Lender prior to the date
hereof.
Β
Β
To
the
fullest extent permitted by applicable law, no Borrower shall assert, and
each
Borrower hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages)Β arising out of, in connection with, or as a
result of this Agreement, any other Financing Document or any agreement or
instrument contemplated hereby or thereby, the transactions contemplated
hereby
or thereby, any Loan or the use of the proceeds thereof. No Indemnitee shall
be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Financing Documents or the transactions contemplated
hereby or thereby.
Β
Β
THIS
AGREEMENT, EACH NOTE AND EACH OTHER FINANCING DOCUMENT, AND ALL MATTERS RELATING
HERETO OR THERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW,
TORT
LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES. EACH BORROWER HEREBY CONSENTS TO THE JURISDICTION OF
ANY
STATE OR FEDERAL COURT LOCATED WITHIN CHICAGO, STATE OF ILLINOIS AND IRREVOCABLY
AGREES THAT, SUBJECT TO ADMINISTRATIVE AGENT'S ELECTION, ALL ACTIONS OR
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER FINANCING
DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. EACH BORROWER EXPRESSLY SUBMITS
AND
CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE
OF
FORUM NON CONVENIENS. EACH BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY
AND
ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON
SUCH
BORROWER BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED
TO
SUCH BORROWER AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE
SHALL BE COMPLETE TEN (10)Β DAYS AFTER THE SAME HAS BEEN POSTED.
Β
Β
Β
EACH
OF EACH BORROWER, ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY
WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING
OUT
OF OR RELATING TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE
A
COURT AND NOT BEFORE A JURY. EACH OF EACH BORROWER, ADMINISTRATIVE AGENT
AND
EACH LENDER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER
INTO
A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO
THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS, AND THAT EACH WILL CONTINUE
TO
RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH OF EACH BORROWER,
ADMINISTRATIVE AGENT AND EACH LENDER WARRANTS AND REPRESENTS THAT EACH HAS
HAD
THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT
EACH
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
Β
Β
(a)Β Β Β Β Publication.
No
Credit Party will directly or indirectly publish, disclose or otherwise use
in
any public disclosure, advertising material, promotional material, press
release
or interview, any reference to the name, logo or any trademark of Xxxxxxx
Xxxxx
or any of its Affiliates or any reference to this Agreement or the financing
evidenced hereby, in any case except (i)Β as required by Law, subpoena or
judicial or similar order, in which case the applicable Credit Party shall
give
Administrative Agent prior written notice of such publication or other
disclosure, or (ii)Β with Xxxxxxx Xxxxx'x prior written
consent.
Β
(b)Β Β Β Β Advertisement.
Each
Lender and each Credit Party hereby authorizes Xxxxxxx Xxxxx to publish the
name
of such Lender and Credit Party, the existence of the financing arrangements
referenced under this Agreement, the primary purpose and/or structure of
those
arrangements, the amount of credit extended under each facility, the title
and
role of each party to this Agreement, and the total amount of the financing
evidenced hereby in any "tombstone", comparable advertisement or press release
which Xxxxxxx Xxxxx elects to submit for publication. In addition, each Lender
and each Credit Party agrees that Xxxxxxx Xxxxx may provide lending industry
trade organizations with information necessary and customary for inclusion
in
league table measurements after the Closing Date. With respect to any of
the
foregoing, Xxxxxxx Xxxxx shall provide Borrowers with an opportunity to review
and confer with Xxxxxxx Xxxxx regarding the contents of any such tombstone,
advertisement or information, as applicable, prior to its submission for
publication and, following such review period, Xxxxxxx Xxxxx may, from time
to
time, publish such information in any media form desired by Xxxxxxx Xxxxx,
until
such time that Borrowers shall have requested Xxxxxxx Xxxxx xxxxx any such
further publication.
Β
Β
Β
This
Agreement and the other Financing Documents may be signed in any number of
counterparts, each of which shall be an original, with the same effect as
if the
signatures thereto and hereto were upon the same instrument. Signatures by
facsimile shall bind the parties hereto. This Agreement and the other Financing
Documents constitute the entire agreement and understanding among the parties
hereto and supersede any and all prior agreements and understandings, oral
or
written, relating to the subject matter hereof.
Β
Β
The
parties hereto have participated jointly in the negotiation and drafting
of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
hereto and no presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any provisions of this
Agreement.
Β
Β
Time
is
of the essence in each Borrower's and each other Credit Party's performance
under this Agreement and all other Financing Documents.
Β
Β
Unless
expressly provided herein to the contrary, any approval, consent, waiver
or
satisfaction of Administrative Agent or Lenders with respect to any matter
that
is the subject of this Agreement, the other Financing Documents may be granted
or withheld by Administrative Agent and Lenders in their sole and absolute
discretion and credit judgment.
Β
Β
Β
EACH
BORROWER WAIVES THE BENEFIT OF ANY AND EVERY STATUTE, ORDINANCE, OR RULE
OF
COURT WHICH MAYΒ BE LAWFULLY WAIVED CONFERRING UPON SUCH BORROWER ANY RIGHT
OR PRIVILEGE OF EXEMPTION, HOMESTEAD RIGHTS, STAY OF EXECUTION, OR SUPPLEMENTARY
PROCEEDINGS, OR OTHER RELIEF FROM THE ENFORCEMENT OR IMMEDIATE ENFORCEMENT
OF A
JUDGMENT OR RELATED PROCEEDINGS ON A JUDGMENT.
Β
Β
Each
Borrower, voluntarily, knowingly, unconditionally, and irrevocably, with
specific and express intent, for and on behalf of itself and its agents,
attorneys, heirs, successors, and assigns (collectively the "Releasing
Parties")Β does
hereby fully and completely release, acquit and forever discharge each
Indemnitee, and any other person,
Β
Β
firm,
business, corporation, insurer, or association which may be responsible or
liable for the acts or omissions of any Indemnitee, or who may be liable
for the
injury or damage resulting therefrom (collectively the "Released
Parties"),
of
and from any and all actions, causes of action, suits, debts, disputes, damages,
claims, obligations, liabilities, costs, expenses and demands of any kind
whatsoever, at law or in equity, whether matured or unmatured, liquidated
or
unliquidated, vested or contingent, xxxxxx or inchoate, known or unknown
that
the Releasing Parties (or any of them)Β has against the Released Parties or
any of them (whether directly or indirectly). The foregoing release shall
be
deemed renewed and reaffirmed as of the date of each advance of proceeds
under
any Loans and each other accommodation made or granted to any Borrower by
any
Released Party under any Financing Document. Each Borrower acknowledges that
the
foregoing release is a material inducement to Administrative Agent's and
each
Lender's decision to extend to Borrower the financial accommodations hereunder
and has been relied upon by Administrative Agent and each Lender in agreeing
to
extend the credit herein contemplated and in making each advance or other
accommodation hereunder.
Β
JOINT
AND SEVERAL LIABILITY; GUARANTOR PROVISIONS
Β
Β
(a)Β Β Β Β Borrowers
is defined collectively to include all Persons constituting the Borrowers;
provided, however, that any references herein to "any Borrower", "each Borrower"
or similar references, shall be construed as a reference to each individual
Person comprising the Borrowers. Each Person comprising Borrowers shall be
jointly and severally liable for all of the obligations of Borrowers under
this
Agreement and the Borrowers under the Affiliated Financing Documents (the
"Affiliated
Borrowers"),
regardless of which of the Borrowers or the Affiliated Borrowers actually
receives the proceeds of the indebtedness governed hereby or the benefit
of any
other extensions of credit hereunder or the benefit of any other extension
of
credit under the Affiliated Financing Documents, or the manner in which the
Borrowers, the Affiliated Borrowers, the Administrative Agent or the Lenders
account therefor in their respective books and records. In addition, each
entity
comprising Borrowers hereby acknowledges and agrees that all of the
representations, warranties, covenants, obligations, conditions, agreements
and
other terms contained in this Agreement shall be applicable to and shall
be
binding upon and measured and enforceable individually against each Person
comprising Borrowers as well as all such Persons when taken together. By
way of
illustration, but without limiting the generality of the foregoing, the terms
of
SectionΒ 11.1
of this
Agreement are to be applied to each individual Person comprising the Borrowers
(as well as to all such Persons taken as a whole), such that the occurrence
of
any of the events described in SectionΒ 11.1
of this
Agreement as to any Person comprising the Borrowers shall constitute an Event
of
Default even if such event has not occurred as to any other Persons comprising
the Borrowers or as to all such Persons taken as a whole (except as otherwise
expressly provided therein).
Β
(b)Β Β Β Β Each
Borrower acknowledges that it will enjoy significant benefits from the business
conducted by the other Borrowers and the Affiliated Borrowers because
of,
Β
Β
inter
alia, their combined ability to bargain with other Persons including without
limitation their ability to receive the credit extensions under this Agreement
and the other Financing Documents and the Affiliated Financing Documents
on
favorable terms granted by this Agreement and other Financing Documents and
the
Affiliated Financing Documents which would not have been available to an
individual Borrower acting alone. Each Borrower has determined that it is
in its
best interest to procure the credit facilities contemplated hereunder, with
the
credit support of the other Borrowers as contemplated by this Agreement and
the
other Financing Documents and the credit support of the Affiliated Borrowers
as
contemplated by the Affiliated Financing Documents.
Β
(c)Β Β Β Β Administrative
Agent and Lenders have advised the Borrowers that each of them is unwilling
to
enter into this Agreement, the other Financing Documents and the Affiliated
Financing Documents and make available the credit facilities extended hereby
or
thereby to any Borrower or Affiliated Borrower unless each Borrower agrees,
among other things, to be jointly and severally liable for the due and proper
payment of the Obligations of each other Borrower under this Agreement and
other
Financing Documents and of each Affiliated Borrower under the Affiliated
Financing Documents. Each Borrower has determined that it is in its best
interest and in pursuit of its purposes that it so induce the Administrative
Agent and Lender to extend credit pursuant to this Agreement and the other
documents executed in connection herewith (i)Β because of the desirability
to each Borrower of the credit facilities hereunder and to each Affiliated
Borrower of the credit facilities under the Affiliated Financing Documents
and
the interest rates and the modes of borrowing available hereunder and
thereunder, (ii)Β because each Borrower may engage in transactions jointly
with other Borrowers or Affiliated Borrowers, and (iii)Β because each
Borrower may require, from time to time, access to funds under this Agreement
for the purposes herein set forth. Each Borrower, individually, expressly
understands, agrees and acknowledges, that the credit facilities contemplated
hereunder would not be made available on the terms herein in the absence
of the
collective credit of all of the Persons constituting the Borrowers and the
Affiliated Borrowers, the joint and several liability of all such Persons,
and
the cross-collateralization of the collateral of all such Persons hereunder
and
under the Affiliated Financing Documents. Accordingly, each Borrower,
individually acknowledges that the benefit to each of the Persons comprising
the
Borrowers as a whole constitutes reasonably equivalent value, regardless
of the
amount of the indebtedness actually borrowed by, advanced to, or the amount
of
credit provided to, or the amount of collateral provided by, any individual
Borrower.
Β
(d)Β Β Β Β Each
Borrower has determined that it is and, after giving effect to the transactions
contemplated by this Agreement, the other Financing Documents and the Affiliated
Financing Documents (including, without limitation, the inter-Borrower
arrangement set forth in this Section)Β will be Solvent and has and will
have the ability to pay its debts from time to time incurred in connection
with
the conduct of its business as such debts mature and that the value of the
benefits to be derived by such Borrower from the access to funds under this
Agreement (including, without limitation, the inter-Borrower arrangement
set
forth in this Section)Β is reasonably equivalent to the obligations
undertaken pursuant hereto.
Β
Β
(e)Β Β Β Β The
Borrower Representative (on behalf of each Borrower)Β shall maintain records
specifying (i)Β all Obligations incurred by each Borrower, (ii)Β the
date of such incurrence, (iii)Β the date and amount of any payments made in
respect of such Obligations, and (iv)Β all inter-Borrower obligations
pursuant to this Section. The Borrower Representative shall make copies of
such
records available to the Administrative Agent, upon request.
Β
(f)Β Β Β Β To
the
extent that applicable law otherwise would render the full amount of the
joint
and several obligations of any Borrower hereunder, under the other Financing
Documents and under the Affiliated Financing Documents invalid or unenforceable,
such Borrower's obligations hereunder and under the other Financing Documents
and Affiliated Financing Documents shall be limited to the maximum amount
which
does not result in such invalidity or unenforceability; provided, however,
that
each Borrower's obligations hereunder and under the other Financing Documents
and Affiliated Financing Documents shall be presumptively valid and enforceable
to their fullest extent in accordance with the terms hereof or thereof, as
if
this SectionΒ were not a part of this Agreement.
Β
(g)Β Β Β Β To
the
extent that any Borrower shall make a payment under this SectionΒ of all or
any of the Obligations (other than credit facilities made to that Borrower
for
which it is primarily liable)Β (a "Joint
Liability Payment")Β which,
taking into account all other Joint Liability Payments then previously or
concurrently made by any other Borrower, exceeds the amount which such Borrower
would otherwise have paid if each Borrower had paid the aggregate Obligations
satisfied by such Joint Liability Payments in the same proportion that such
Borrower's Allocable Amount (as defined below)Β (as determined immediately
prior to such Joint Liability Payments)Β bore to the aggregate Allocable
Amounts of each of the Borrowers as determined immediately prior to the making
of such Joint Liability Payments, then, following indefeasible payment in
full
in cash of the Obligations and termination of the Commitments, such Borrower
shall be entitled to receive contribution and indemnification payments from,
and
be reimbursed by, each other Borrower for the amount of such excess, pro
rata
based upon their respective Allocable Amounts in effect immediately prior
to
such Joint Liability Payments. As of any date of determination, the
"Allocable
Amount"
of any
Borrower shall be equal to the maximum amount of the claim which could then
be
recovered from such Borrower under this SectionΒ without rendering such
claim voidable or avoidable under SectionΒ 548 of Chapter 11 of the
Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer
Act,
Uniform Fraudulent Conveyance Act or similar statute or common law.
Β
(h)Β Β Β Β Except
as
specifically provided in this Agreement or any of the other Financing Documents,
Administrative Agent shall have the exclusive right to determine the time
and
manner of application of any payments or credits, whether received from any
Borrower or any other source, and such determination shall be binding on
all
Borrowers. All such payments and credits may be applied, reversed and reapplied,
in whole or in part, to any of the Obligations as Administrative Agent shall
determine in its sole discretion without affecting the validity or
enforceability of the Obligations of any other Borrower or Affiliated
Borrower.
Β
Β
(i)Β Β Β Β Each
Borrower hereby agrees that, except as hereinafter provided, its obligations
hereunder shall be unconditional, irrespective of (i)Β the absence of any
attempt to collect the Obligations from any obligor or other action to enforce
the same; (ii)Β the waiver or consent by Administrative Agent and/or any
applicable Lender(s)Β with respect to any provision of any instrument
evidencing the Obligations, or any part thereof, or any other agreement
heretofore, now or hereafter executed by a Borrower or Affiliated Borrower
and
delivered to Administrative Agent and/or any Lender; (iii)Β failure by
Administrative Agent to take any steps to perfect and maintain its security
interest in, or to preserve its rights to, any security or collateral for
the
Obligations; (iv)Β the institution of any proceeding under the United States
Bankruptcy Code, or any similar proceeding, by or against a Borrower or
Affiliated Borrower or Administrative Agent's or any Lender's election in
any
such proceeding of the application of SectionΒ 1111(b)(2)Β of the United
States Bankruptcy Code; (v)Β any borrowing or grant of a security interest
by a Borrower or Affiliated Borrower as debtor-in-possession, under
SectionΒ 364 of the United States Bankruptcy Code; (vi)Β the
disallowance, under XxxxxxxΒ 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, of
all or any portion of Administrative Agent's or any Lender's claim(s)Β for
repayment of any of the Obligations; or (vii)Β any other circumstance other
than payment in full of the Obligations which might otherwise constitute
a legal
or equitable discharge or defense of a guarantor or surety.
Β
(j)Β Β Β Β Until
all
Obligations have been paid and satisfied in full, no payment made by or for
the
account of a Borrower or Affiliated Borrower including, without limitation,
(i)Β a payment made by such Borrower or Affiliated Borrower on behalf of the
liabilities of any other Borrower or Affiliated Borrower, or (ii)Β a payment
made by any other person under any Guarantee, shall entitle such Borrower
or
Affiliated Borrower, by subrogation or otherwise, to any payment from any
other
Borrower or Affiliated Borrower or from or out of any other Borrower's or
Affiliated Borrower's property and such Borrower or Affiliated Borrower shall
not exercise any right or remedy against any other Borrower or Affiliated
Borrower or any property of any other Borrower or Affiliated Borrower by
reason
of any performance of such Borrower or Affiliated Borrower of its joint and
several obligations hereunder.
Β
(k)Β Β Β Β Any
notice given by one Borrower hereunder shall constitute and be deemed to
be
notice given by all Borrowers and Affiliated Borrowers, jointly and severally.
Notice given by Administrative Agent or any Lender to any one Borrower or
Affiliated Borrower hereunder or pursuant to any Financing Documents or
Affiliated Financing Documents in accordance with the terms hereof or thereof
shall constitute notice to each and every Borrower and Affiliated Borrower.
The
knowledge of one Borrower or Affiliated Borrower shall be imputed to all
Borrowers and Affiliated Borrowers and any consent by one Borrower or Affiliated
Borrower shall constitute the consent of and shall bind all Borrowers and
Affiliated Borrower.
Β
(l)Β Β Β Β This
SectionΒ is intended only to define the relative rights of Borrowers and
Affiliated Borrowers and nothing set forth in this SectionΒ is intended to
or shall impair the obligations of Borrowers, jointly and severally, to pay
any
amounts as and when the same shall become due and payable in accordance with
the
terms of this Agreement or any other Financing Documents. Nothing contained
in
this SectionΒ shall limit the liability of any
Β
Β
Borrower
to pay the credit facilities made directly or indirectly to that Borrower
and
accrued interest, Fees and expenses with respect thereto for which such Borrower
shall be primarily liable.
Β
(m)Β Β Β Β The
parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of each Borrower to which such contribution
and indemnification is owing. The rights of any indemnifying Borrower against
the other Borrowers or Affiliated Borrowers under this SectionΒ shall be
exercisable upon the full and indefeasible payment of the Obligations and
the
termination of the credit facilities hereunder and under the Affiliated
Financing Documents.
Β
Β
(a)Β Β Β Β Each
Borrower, as joint and several primary obligor of the Obligations directly
incurred by any other Borrower or by any Affiliated Borrower, authorizes
Administrative Agent and Lenders, without giving notice to such Borrower
or to
any other Borrower or any Affiliated Borrower (to the extent permitted hereunder
or under any Affiliated Financing Document)Β or obtaining such Borrower's
consent or any other Borrower's or Affiliated Borrower's consent (to the
extent
permitted hereunder or under any Affiliated Financing Document)Β and without
affecting the liability of such Borrower for the Obligations directly incurred
by the other Borrower or Affiliated Borrower, from time to time to:
Β
(i)Β Β Β Β compromise,
settle, renew, extend the time for payment, change the manner or terms of
payment, liquidate, discharge the performance of, decline to enforce, or
release
all or any of the Obligations; grant other indulgences to any Borrower in
respect thereof; or modify in any manner any documents relating to the
Obligations;
Β
(ii)Β Β Β Β declare
all Obligations due and payable upon the occurrence and during the continuance
of an Event of Default;
Β
(iii)Β Β Β Β take
and
hold security for the performance of the Obligations of any Borrower and
exchange, enforce, waive and release any such security;
Β
(iv)Β Β Β Β release,
surrender or exchange any deposits or other property securing the Obligations
or
on which Administrative Agent and/or any applicable Lender(s)Β at any time
may have a Lien; release, substitute or add any one or more endorsers or
guarantors of the Obligations of any other Borrower or Affiliated Borrower
or
such Borrower; or compromise, settle, renew, extend the time for payment,
discharge the performance of, decline to enforce, or release all or any
obligations of any such endorser or guarantor or other Person who is now
or may
hereafter be liable on any Obligations or release, surrender or exchange
any
deposits or other property of any such Person;
Β
(v)Β Β Β Β accept
partial payments, apply payments received by Administrative Agent and/or
any
applicable Lender(s)Β from any Borrower or any Affiliated
Β
Β
Borrower
to any Obligations, in such order as Administrative Agent shall determine,
in
its sole discretion; and
Β
(vi)Β Β Β Β subject
to the provisions hereof, assign this Agreement in whole or in
part.
Β
(b)Β Β Β Β Each
Borrower, as a primary, joint and several obligor with respect to the
Obligations directly incurred by any other Borrower or any Affiliated Borrower,
waives:
Β
(i)Β Β Β Β any
defense based upon any legal disability or other defense of any other Borrower
or any Affiliated Borrower, or by reason of the cessation or limitation of
the
liability of any other Borrower or any Affiliated Borrower from any cause
(other
than full payment of all Obligations), including, without limitation, failure
of
consideration, breach of warranty, statute of frauds, statute of limitations,
accord and satisfaction, and usury;
Β
(ii)Β Β Β Β any
defense based upon any legal disability or other defense of any other guarantor
or other Person;
Β
(iii)Β Β Β Β any
defense based upon any lack of authority of the officers, directors, partners
or
agents acting or purporting to act on behalf of any other Borrower or Affiliated
Borrower or any principal of any other Borrower or Affiliated Borrower or
any
defect in the formation of any other Borrower or Affiliated Borrower or any
principal of any other Borrower or Affiliated Borrower;
Β
(iv)Β Β Β Β any
defense based upon the application by any other Borrower or Affiliated Borrower
of the proceeds of the credit facilities or the loans under the Affiliated
Financing Documents for purposes other than the purposes represented by such
other Borrower or Affiliated Borrower to Administrative Agent and Lenders
or
intended or understood by Administrative Agent and Lenders or such
Borrower;
Β
(v)Β Β Β Β any
defense based on such Borrower's rights, under statute or otherwise, to require
Administrative Agent and/or any applicable Lender(s)Β to xxx any other
Borrower or Affiliated Borrower or otherwise to exhaust its rights and remedies
against any other Borrower or Affiliated Borrower or any other Person or
against
any collateral before seeking to enforce its right to require such Borrower to
satisfy the Obligations of any other Borrower or Affiliated
Borrower;
Β
(vi)Β Β Β Β any
defense based on Administrative Agent's or any Lender's failure at any time
to
require strict performance by any Borrower of any provision of the Financing
Documents or by any Affiliated Borrower of any provisions of the Affiliated
Financing Documents. Such Borrower agrees that no such failure shall waive,
alter or diminish any right of Administrative Agent and/or any applicable
Lender(s)Β thereafter to demand strict compliance and performance therewith.
Nothing contained herein shall prevent Administrative Agent and/or any
applicable Lender(s)Β from foreclosing on any Lien, or exercising any rights
available to Administrative Agent and/or any applicable
Β
Β
Lender(s)Β thereunder,
and the exercise of any such rights shall not constitute a legal or equitable
discharge of such Borrower;
Β
(vii)Β Β Β Β any
defense arising from any act or omission of Administrative Agent and/or any
applicable Lender(s)Β which changes the scope of such Borrower's risks
hereunder, but the foregoing shall not limit any Credit Party from asserting
claims based on breaches of this Agreement or willful misconduct by
Administrative Agent and/or any applicable Lender;
Β
(viii)Β Β Β Β any
defense based upon Administrative Agent's or any Lender's election of any
remedy
against such Borrower or any other Borrower or Affiliated Borrower or any
of
them; any defense based on the order in which Administrative Agent and/or
any
Lender(s)Β enforces its remedies;
Β
(ix)Β Β Β Β any
defense based on (A)Β Administrative Agent's or any applicable Lender's
surrender, release, exchange, substitution, dealing with or taking any
additional collateral, (B)Β Administrative Agent's or any applicable
Lender's abstaining from taking advantage of or realizing upon any Lien or
other
Guarantee, and (C)Β any impairment of collateral securing the Obligations,
including, without limitation, Administrative Agent's or any applicable Lender's
failure to perfect or maintain a Lien in such collateral;
Β
(x)Β Β Β Β any
defense based upon Administrative Agent's or any Lender's failure to disclose
to
such Borrower any information concerning any other Borrower's or Affiliated
Borrower's financial condition or any other circumstances bearing on any
other
Borrower's or Affiliated Borrower's ability to pay the Obligations;
Β
(xi)Β Β Β Β any
defense based upon any statute or rule of law which provides that the obligation
of a surety must be neither larger in amount nor in any other respects more
burdensome than that of a principal;
Β
(xii)Β Β Β Β any
defense based upon Administrative Agent's and/or any Lender's election, in
any
proceeding instituted under the Bankruptcy Code, of the application of
Bankruptcy Code Β§1111(b)(2)Β or any successor statute;
Β
(xiii)Β Β Β Β any
defense based upon any borrowing or any grant of a security interest under
Bankruptcy Code Β§364;
Β
(xiv)Β Β Β Β any
defense based on Administrative Agent's and/or any Lender's failure to be
diligent or to satisfy any other standard imposed on a secured party, in
exercising rights with respect to collateral securing the
Obligations;
Β
(xv)Β Β Β Β except
as
otherwise expressly set forth herein: notice of acceptance hereof; notice
of the
existence, creation or acquisition of any Obligation; notice of any Event
of
Default; notice of the amount of the Obligations outstanding from time to
time;
notice of any other fact which might increase such Borrower's risk; diligence;
presentment; demand of payment; protest; filing of claims with a court in
the
event of any other Borrower's receivership or bankruptcy and all other notices
and demands to which such
Β
Β
Borrower
might otherwise be entitled (and agrees the same shall not have to be made
on
the other Borrower as a condition precedent to such Borrower's obligations
hereunder);
Β
(xvi)Β Β Β Β any
defense based on errors and omissions by Administrative Agent and/or any
Lender
in connection with its administration of the credit facilities or the loans
made
under the Affiliated Financing Documents, but the foregoing shall not limit
any
Credit Party from asserting claims based on breaches of this Agreement or
willful misconduct by Administrative Agent and/or any applicable
Lender;
Β
(xvii)Β Β Β Β any
defense based on application of fraudulent conveyance or transfer law or
shareholder distribution law to any of the Obligations or the security
therefor;
Β
(xviii)Β Β Β Β any
defense based on Administrative Agent's and/or any Lender's failure to seek
relief from stay or adequate protection in any other Borrower's or Affiliated
Borrower's bankruptcy proceeding or any other act or omission by Administrative
Agent and/or any Lender which impairs such Borrower's prospective subrogation
rights;
Β
(xix)Β Β Β Β any
defense based on legal prohibition of Administrative Agent's and/or any Lender's
acceleration of the maturity of the Obligations during the occurrence of
an
Event of Default or any other legal prohibition on enforcement of any other
right or remedy of Administrative Agent and/or any Lender with respect to
the
Obligations and the security therefor;
Β
(xx)Β Β Β Β any
defense available to a surety under applicable law; and
Β
(xxi)Β Β Β Β the
benefit of any statute of limitations affecting the liability of such Borrower
hereunder or the enforcement hereof.
Β
(c)Β Β Β Β Each
Borrower further agrees that its obligations hereunder shall not be impaired
in
any manner whatsoever by any bankruptcy, extensions, moratoria or other relief
granted to any other Borrower or Affiliated Borrower pursuant to any statute
presently in force or hereafter enacted.
Β
(d)Β Β Β Β Each
Borrower authorizes Administrative Agent and each Lender to exercise, in
its
sole discretion, any right, remedy or combination thereof which may then
be
available to Administrative Agent or such Lender, since it is such Borrower's
intent that the Obligations be absolute, independent and unconditional
obligations of such Borrower under all circumstances. Notwithstanding any
foreclosure of any Lien with respect to any or all of any property securing
the
Obligations, whether by the exercise of the power of sale contained therein,
by
an action for judicial foreclosure or by an acceptance of a deed in lieu
of
foreclosure, each Borrower shall remain bound under such Borrower's Guarantee
of
the Obligations directly incurred by any other Borrower or Affiliated
Borrower.
Β
(e)Β Β Β Β This
Agreement is a primary and original obligation of each of the Borrowers and
each
of the Borrowers shall be liable for all existing and future Obligations
of
Β
Β
any
other
Borrower or Affiliated Borrower as fully as if such Obligations were directly
incurred by such Borrower.
Β
[SIGNATURES
APPEAR ON FOLLOWING PAGES]
Β
Β
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above
written.
Β
|
BORROWERS:
Β
CYPRESS
LEAWOOD, LLC,
a
Delaware limited liability company
Β
Β
By:__________________________________
Name:________________________________
Its:__________________________________
Β
Address:______________________________
_____________________________________
Β
Facsimile
number:_______________________
E-mail
Address:_________________________
Taxpayer
Identification Number:
_____________________________________
|
|
| Β | |
| Β | |
|
CYPRESS
ARLINGTON, LP,
a
Delaware limited partnership
|
|
| Β | Β |
|
By:
|
Cypress
Arlington GP, LLC, a Delaware limited liability company, its general
partner
|
| Β | Β |
| Β |
By:_________________________________
Name:_______________________________
Its:_________________________________
Β
Address:_____________________________
____________________________________
Β
Facsimile
number:______________________
E-mail
Address:________________________
Taxpayer
Identification Number:
____________________________________
|
Β
Β
Β
|
ADMINISTRATIVE
AGENT AND LENDERS:
Β
XXXXXXX
XXXXX CAPITAL, a division of Xxxxxxx Xxxxx Business Financial Services
Inc., as Administrative Agent and a Lender
Β
By:_________________________________________
Name:_______________________________________
Title:________________________________________
Β
Address:Β 000
X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attn:
Account Manager for MLC-HCF
ARC
transaction
Facsimile
number: (000)Β 000-0000
E-Mail
Address: XXX_XXX_XX0@xx.xxx
|
|
With
copies to:
Β
Xxxxxxx
Xxxxx Capital
000
X. XxXxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attn:
Group Senior Transaction Attorney, Healthcare
Finance
Facsimile
Number: (000)Β 000-0000
|
|
Xxxxxxx
Xxxxx Capital
0000
Xxxxxxxxx Xxx., Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Group Senior Transaction Attorney, Healthcare
Finance
Facsimile
Number: (000)Β 000-0000
|
|
And
with an additional copy to:
Β
Goldberg,
Kohn, Bell, Black,
Xxxxxxxxxx
& Moritz, Ltd.
00
Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxxx X. Xxxxxxxxxx
Facsimile
number: (000)Β 000-0000
E-mail
Address:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxx.xxx
|
|
Payment
Account Designation:
Β
ABA
No.:
Account
No.:
Account
Name:
Reference:
|
(Signature
Page to Credit and Security Agreement)
ANNEXES,
EXHIBITS AND SCHEDULES
Β
ANNEXES
Annex
AΒ -Β Commitment
Annex
EXHIBITS
Exhibit
AΒ -Β Assignment
Agreement
Exhibit
BΒ -Β Single
Purpose Entity Requirements
Exhibit
CΒ -Β Compliance
Certificate
Exhibit
DΒ -Β Payment
Notification
Exhibit
EΒ -Β Borrowers'
Taxpayer Identification Numbers
SCHEDULES
Schedule
1Β -Β Permitted
Leases
Schedule
3.1Β -Β Existence,
Organizational Identification Numbers, Foreign Qualification,
Prior Names
Schedule
3.4Β -Β Capitalization
Schedule
3.6Β -Β Litigation
Schedule
3.17Β -Β Material
Contracts
Schedule
3.18Β -Β Environmental
Compliance
Schedule
4.4Β -Β Insurance
Requirements
Schedule
4.14Β -Β Deferred
Maintenance Items
Schedule
5.9Β -Β Affiliate
Transactions
Schedule
7.3Β -Β Post-Closing
Deliveries and Covenants
Schedule
8.7Β -Β Licensed
Operators
Schedule
9.1(h) -Β Service
Agreements
Β
 |
Annex
A to Credit Agreement (Commitment
Annex)
|
Β
Β
|
Lender
|
Term
Loan
Commitment
Amount
|
Term
Loan
Commitment
Percentage
|
|
Xxxxxxx
Xxxxx Capital
|
$39,735,000
|
100%
|
|
TOTALS
|
$39,735,000
|
100%
|
Β
Β
|
Exhibit
A to Credit Agreement (Assignment
Agreement)
|
This
Assignment Agreement (this "Assignment
Agreement")Β is
entered into as of __________ by and between the Assignor named on the signature
page hereto ("Assignor")Β and
the Assignee named on the signature page hereto ("Assignee").
Reference is made to the Credit Agreement dated as of February __, 2006 (as
amended or otherwise modified from time to time, the "Credit
Agreement")Β among
XXXXXXX XXXXX CAPITAL, as Administrative Agent and Lender and the other Lenders
party thereto from time to time and CYPRESS LEAWOOD, LLC a Delaware limited
liability company, and CYPRESS ARLINGTON, L.P., a Delaware limited partnership
("Borrowers"),
the
financial institutions party thereto from time to time, as Lenders, and Xxxxxxx
Xxxxx Capital, a division of Xxxxxxx Xxxxx Business Financial Services Inc.,
as
Administrative Agent. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Credit Agreement.
Β
Assignor
and Assignee hereby agree as follows:
Β
1.Β Β Β Β Assignor
hereby sells and assigns to Assignee, and Assignee hereby purchases and assumes
from Assignor the interests set forth on the schedule attached hereto (the
"Schedule"),
in
and to Assignor's rights and obligations under the Credit Agreement as of
the
effective date set forth on the Schedule (the "EffectiveΒ Date").
Such
purchase and sale is made without recourse, representation or warranty except
as
expressly set forth herein. On the Effective Date, Assignee shall pay to
Assignor an amount equal to the aggregate amounts assigned pursuant to the
Schedule and Assignor shall pay to Assignee a closing fee in respect of the
transactions contemplated hereby in the amount specified on the
Schedule.
Β
2.Β Β Β Β Assignor
(a)Β represents that as of the Effective Date, that it is the legal and
beneficial owner of the interests assigned hereunder free and clear of any
adverse claim, (b)Β makes no other representation or warranty and assumes no
responsibility with respect to any statement, warranties or representations
made
in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, any other Financing Documents or any other instrument or document
furnished pursuant thereto; and (c)Β makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any
other
Credit Party or any other Person or the performance or observance by any
Credit
Party of its Obligations under the Credit Agreement or any other Financing
Documents or any other instrument or document furnished pursuant
thereto.
Β
3.Β Β Β Β Assignee
(a)Β confirms that it has received a copy of the Credit Agreement and the
other Financing Documents, together with copies of the most recent financial
statements delivered pursuant thereto and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision
to
enter into this Assignment Agreement; (b)Β agrees that it will,
independently and without reliance upon Administrative Agent, Assignor or
any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
Β
Β
decisions
in taking or not taking action under the Credit Agreement; (c)Β appoints and
authorizes Administrative Agent to take such action as Administrative Agent
on
its behalf and to exercise such powers under the Credit Agreement and the
other
Financing Documents as are delegated to Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto;
(d)Β agrees that it will perform in accordance with their terms all
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; (e)Β represents that on the date of this
Assignment Agreement it is not presently aware of any facts that would cause
it
to make a claim under the Credit Agreement; (f)Β represents and warrants
that Assignee is not a Foreign Lender or, if it is a Foreign Lender,
(i)Β that it has delivered to Administrative Agent the documentation
required to be delivered to Administrative Agent by
Section
13
below
and
(i)Β that if it is claiming exemption from U.S. federal withholding tax
under Section 871(h)Β or 881(c)Β of the Code with respect to payments of
"portfolio interest", (w)Β it is not a "bank" within the meaning of Section
881(c)(3)(A)Β of the Code, (x)Β it is not a 10-percent shareholder of
any Credit Party within the meaning of Section 881(c)(3)(B)Β or Section
871(h)(3)(B)Β of the Code, (y)Β it is not a controlled foreign
corporation related to any Credit Party within the meaning of
SectionΒ 881(c)(3)(C)Β of the Code, and (z)Β it is not a conduit
entity participating in a conduit financing arrangement (as defined in Section
1.881-3 of the Code Treasury Regulations); (g)Β represents and warrants that
Assignee is (or, upon receipt of the required consents hereto by Administrative
Agent and Borrowers will become)Β an Eligible Assignee, and
(h)Β represents and warrants that it has experience and expertise in the
making or the purchasing of loans such as the Loans, and that it has acquired
the interests described herein for its own account and without any present
intention of selling all or any portion of such interests.
Β
4.Β Β Β Β Each
of
Assignor and Assignee represents and warrants to the other party hereto that
it
has full power and authority to enter into this Assignment Agreement and
to
perform its obligations hereunder in accordance with the provisions hereof,
that
this Assignment Agreement has been duly authorized, executed and delivered
by
such party and that this Assignment Agreement constitutes a legal, valid
and
binding obligation of such party, enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of
equity.
Β
5.Β Β Β Β Upon
the
effectiveness of this Assignment Agreement pursuant to Section
13
below,
(a)Β Administrative Agent shall register Assignee as a Lender, pursuant to
the terms of the Credit Agreement, (b)Β Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment Agreement,
have
the rights and obligations of a Lender thereunder, (c)Β Assignor shall, to
the extent provided in this Assignment Agreement, relinquish its rights and
be
released from its obligations under the Credit Agreement and
(d)Β Administrative Agent shall thereafter make all payments in respect of
the interest assigned hereby (including payments of principal, interest,
fees
and other amounts)Β to Assignee. Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Effective Date
by
Administrative Agent or with respect to the making of this assignment directly
between themselves.
Β
Β
6.Β Β Β Β Each
of
Assignor and Assignee hereby agrees from time to time, upon request of the
other
such party hereto, to take such additional actions and to execute and deliver
such additional documents and instruments as such other party may reasonably
request to effect the transactions contemplated by, and to carry out the
intent
of, this Assignment Agreement.
Β
7.Β Β Β Β Neither
this Assignment Agreement nor any term hereof may be changed, waived, discharged
or terminated, except by an instrument in writing signed by the party
(including, if applicable, any party required to evidence its consent to
or
acceptance of this Assignment Agreement)Β against whom enforcement of such
change, waiver, discharge or termination is sought.
Β
8.Β Β Β Β For
the
purposes hereof and for purposes of the Credit Agreement, the notice address
of
Assignee shall be as set forth on the Schedule. Any notice or other
communication herein required or permitted to be given shall be in writing
and
delivered in accordance with the notice provisions of the Credit Agreement.
Β
9.Β Β Β Β In
case
any provision in or obligation under this Assignment Agreement shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected
or
impaired thereby.
Β
10.Β Β Β Β THIS
ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
Β
11.Β Β Β Β This
Assignment Agreement shall be binding upon, and shall inure to the benefit
of,
the parties hereto and their respective successors and assigns.
Β
12.Β Β Β Β This
Assignment Agreement may be signed in any number of counterparts, each of
which
shall be an original, with the same effect as if the signatures hereto were
upon
the same agreement.
Β
13.Β Β Β Β This
Assignment Agreement shall become effective as of the Effective Date upon
the
satisfaction of each of the following conditions: (a)Β the execution of a
counterpart hereof by each of Assignor and Assignee, (b)Β the execution of a
counterpart hereof by Administrative Agent and each Borrower as evidence
of its
consent hereto to the extent required pursuant to Section
13.17Β of
the Credit Agreement, (c)Β the receipt by Administrative Agent of the
administrative fee referred to in Section
13.17(a)Β of
the
Credit Agreement, (d)Β in the event Assignee is a Foreign Lender, the
receipt by Administrative Agent of United States Internal Revenue Service
Forms
W-8ECI, W-8BEN or W-8IMY (as applicable), and such other forms, certificates
or
documents, including those prescribed by the United States Internal Revenue
Service, properly completed and executed by Assignee, certifying as to
Assignee's entitlement to exemption from withholding or deduction of Taxes,
and
(e)Β the receipt by Administrative Agent of originals or facsimiles of the
counterparts described above.
Β
Β
The
parties hereto have caused this Assignment Agreement to be executed and
delivered as of the date first written above.
Β
|
ASSIGNOR:
___________________________
Β
By:_________________________________
Title:________________________________
|
|
ASSIGNEE:
___________________________
Β
By:_________________________________
Title:________________________________
Β
|
|
Consented
to:
Β
Xxxxxxx
Xxxxx Capital, a division of Xxxxxxx Xxxxx
Business
Financial Services Inc., as Administrative Agent
Β
By:_________________________________
Title:________________________________
Β
|
|
CYPRESS
LEAWOOD, LLC
|
||
| Β | Β | |
| Β |
By:______________________________
Name:____________________________
Its:______________________________
Β
Address:__________________________
_________________________________
Β
Facsimile
number:___________________
E-mail
Address:_____________________
Taxpayer
Identification Number:
_________________________________
|
|
|
CYPRESS
ARLINGTON, L.P.,
Β
a
Delaware limited partnership
Β
|
||
|
By:
|
Cypress
Arlington GP, LLC, a Delaware limited liability company, its general
partner
|
|
| Β | Β | |
| Β |
By:_________________________
Name:_______________________
Its:_________________________
Β
Address:____________________
___________________________
Β
Facsimile
number:______________
E-mail
Address:_______________
Taxpayer
Identification Number:
___________________________
|
|
Schedule
to Assignment Agreement
Β
Assignor:Β ____________________
Β
Assignee:Β ____________________
Β
Effective
Date:Β ____________________
Β
Credit
Agreement dated as of February __, 2006 among Cypress Leawood, LLC and Cypress
Arlington, L.P., as Borrowers, the financial institutions party thereto from
time to time, as Lenders, and Xxxxxxx Xxxxx Capital, a division of Xxxxxxx
Xxxxx
Business Financial Services Inc., as Administrative Agent
Β
Interests
Assigned:
Β
|
Commitment/Loan
|
Term
Loan
|
|
Assignor
Amounts
|
$__________
|
|
Amounts
Assigned
|
$__________
|
|
Assignor
Amounts
(post-assignment)
|
Β
$__________
|
|
Closing
Fee:
|
$__________
|
Assignee
Information:
| Β | Β |
|
Address
for Notices:
___________________________
___________________________
Attention:___________________
Telephone:___________________
Facsimile:____________________
|
Address
for Payments:
Β
Bank:__________________________
ABA
#:_________________________
Account
#:______________________
Reference:______________________
|
Β
Β
Β
|
Exhibit
B to Credit Agreement (SPE
Requirements)
|
1.Β Β Β Β The
Borrowers' business and purposes are and will continue to be limited to the
following:
Β
(a)Β Β Β Β to
enter
into and perform its obligations under this Agreement and the other Financing
Documents;
Β
(b)Β Β Β Β to
acquire, own, hold, lease, maintain, develop and improve the
Projects;
Β
(c)Β Β Β Β to
sell,
transfer, service, convey, dispose of, pledge, assign, borrow money against,
finance or otherwise deal with the Projects to the extent permitted under
the
Financing Documents;
Β
(d)Β Β Β Β to
refinance the Projects in connection with a permitted repayment of the Loans;
and
Β
(e)Β Β Β Β to
engage
in any lawful act or activity and to exercise any powers permitted to entities
of the type (e.g., limited partnerships, limited liability companies,
corporations, as applicable to each Borrower)Β formed under the laws of the
state of organization of such Person as of the date of this Agreement that
are
related or incidental to and necessary, convenient or advisable for the
accomplishment of the above mentioned purposes.
Β
2.Β Β Β Β Borrowers
shall do (or cause to be done)Β all things necessary in order to preserve
their existence to the fullest extent permitted by law. Except as expressly
permitted by the Financing Documents (if at all), Borrowers shall do (or
cause
to be done)Β all of the following:
Β
(a)Β Β Β Β not
own
any asset or property other than (i)Β a fee interest in the Projects, and
(ii)Β incidental personal property necessary for the ownership or operation
of the Projects;
Β
(b)Β Β Β Β not
enter
into any contract or agreement with any Affiliate of the Borrowers, any
constituent party of the Borrowers, any guarantor or indemnitor under any
of the
Financing Documents or any Affiliate of any such constituent party or guarantor
or indemnitor, except upon terms and conditions that are intrinsically fair
and
substantially similar to those that would be available on an arm's-length
basis
with third parties other than any such party;
Β
(c)Β Β Β Β maintain
their intention to remain solvent and pay their debts and liabilities
(including, as applicable, shared personnel and overhead expenses)Β from
their assets, to the extent of their assets, as the same shall become
due;
Β
Β
(d)Β Β Β Β do
or
cause to be done all things necessary to observe organizational formalities
of
the Borrowers and preserve their existence, and not terminate or fail to
comply
with any of the provisions in this Section.
Β
(e)Β Β Β Β maintain
all of their books, records, financial statements and bank accounts separate
from those of their Affiliates and any other person or entity; provided,
however, that the Borrowers' financial position, assets, results of operations
and cash flows may be included in a consolidated financial statement of an
Affiliate of the Borrowers in accordance with GAAP so long as any such
consolidated financial statement contains a note indicating that the Borrowers
and their Affiliates comprising the consolidated group are separate legal
entities;
Β
(f)Β Β Β Β hold
themselves out to the public as a legal entities separate and distinct from
each
other and from any other entity (including any Affiliate of the Borrowers,
any
guarantor or any constituent party of the Borrowers), correct any known
misunderstanding regarding their status as a separate entities, conduct business
in their own name, and not identify themselves or any of their Affiliates
as a
division or part of the other; provided, however, that all Borrowers shall
be
permitted to, and shall at all times, hold themselves out to the public as
entities that operate as a common enterprise;
Β
(g)Β Β Β Β to
the
extent of cash flow available from ownership of the Projects and other business
of the Borrowers, intend to maintain adequate capital for the normal obligations
reasonably foreseeable in a business of their size and character and in light
of
their contemplated business operations;
Β
(h)Β Β Β Β not
commingle the funds and other assets of the Borrowers with those of any
Affiliate or constituent party, any guarantor or any other person, except
for
funds deposited into any lockbox accounts or other cash management arrangements
required under this Agreement;
Β
(i)Β Β Β Β maintain
their assets in such a manner that it will not be costly or difficult to
segregate, ascertain or identify its individual assets from those of any
Affiliate or constituent party, any guarantor or any other person or
entity;
Β
(j)Β Β Β Β not
permit any Affiliate or constituent party independent access to the Borrowers'
bank accounts, except Borrower Representative in connection with any lockbox
account or other cash management arrangements required hereunder, any property
management agreements entered into by Borrowers and approved by Administrative
Agent, and otherwise in connection with property or cash management activities
consistent with the terms of the Financing Documents;
Β
(k)Β Β Β Β pay
the
salaries of their own employees, if any;
Β
(l)Β Β Β Β compensate
each of their consultants and agents, if any;
Β
(m)Β Β Β Β maintain
an arm's-length relationship with their Affiliates;
Β
Β
(n)Β Β Β Β allocate
fairly and reasonably shared expenses, if any, including shared office
space;
Β
(o)Β Β Β Β not
pledge any of their assets for the benefit of any person or entity other
than
Administrative Agent, except as expressly permitted by the Financing Documents
(if at all);
Β
(p)Β Β Β Β have
no
obligation to indemnify their equity owners or members (but not including
their
respective individual officers, as the case may be, except to the extent
that
payment of such obligation is fully subordinated to the payment of the
Obligations; provided, however, the foregoing shall not apply where the
indemnity is paid from third party funds, such as insurance
proceeds;
Β
(q)Β Β Β Β maintain
records, books of account and bank accounts separate and apart from any other
person or entity (other than any lockbox account or other cash management
arrangement required hereunder); and file their own tax returns, if any,
as may
be required under applicable law, provided, however, that the Borrowers may
file
their federal tax return on a consolidated basis); and maintain their books,
records, resolutions and agreements as official records; and
Β
(r)Β Β Β Β not
make
any loans or advances to any third party, and not acquire obligations or
securities of their Affiliates, except, in each case, as permitted under
the
Financing Documents.
Β
3.Β Β Β Β So
long
as the Loans remain outstanding, the Borrowers shall not do (or cause to
be
done)Β any of the following except to the extent otherwise permitted under
the Financing Documents (if at all):
Β
(a)Β Β Β Β assume,
guarantee, become obligated for, or hold themselves out to be responsible
for
the debts or obligations of any other person or entity or the decisions or
actions respecting the daily business or affairs of any other
person;
Β
(b)Β Β Β Β engage,
directly or indirectly, in any business other than the actions required or
permitted to be performed under the Borrower's Organizational Documents (as
the
same may be amended or supplemented from time to time with Administrative
Agent's consent);
Β
(c)Β Β Β Β incur,
create or assume any indebtedness other than the Loans except as otherwise
permitted by the Financing Documents;
Β
(d)Β Β Β Β make
or
permit to remain outstanding any loan or advance to, or own or acquire any
stock
or securities of, any person or entity;
Β
(e)Β Β Β Β form,
acquire or hold any subsidiary (whether corporate, partnership, limited
liability company or other); or
Β
Β
(f)Β Β Β Β to
the
fullest extent permitted by law, engage in any dissolution, liquidation,
consolidation, merger or sale of all or substantially all of their
assets.
Β
Β
|
Exhibit
C to Credit Agreement (Compliance
Certificate)
|
COMPLIANCE
CERTIFICATE
Β
[BORROWER
REPRESENTATIVE]
Β
Date:
__________, _____
Β
This
certificate is given by _____________________, a Responsible Officer of
_____________ ("Borrower
Representative"),
pursuant to that certain Credit Agreement dated as of February __, 2006 among
CYPRESS LEAWOOD, LLC and CYPRESS ARLINGTON, L.P., each a Delaware limited
partnership (collectively, "Borrower"),
the
Lenders from time to time party thereto and Xxxxxxx Xxxxx Capital, a division
of
Xxxxxxx Xxxxx Business Financial Services Inc., as Administrative Agent for
Lenders (as such agreement may have been amended, restated, supplemented
or
otherwise modified from time to time, the "Credit
Agreement").
Capitalized terms used herein without definition shall have the meanings
set
forth in the Credit Agreement.
Β
The
undersigned Responsible Officer hereby certifies to Administrative Agent
and
Lenders that:
Β
(a)Β Β Β Β the
financial statements delivered with this certificate in accordance with
SectionΒ 4.1
of the
Credit Agreement fairly present in all material respects the results of
operations and financial condition of Borrower and its Subsidiaries as of
the
dates and the accounting period covered by such financial
statements;
Β
(b)Β Β Β Β I
have
reviewed the terms of the Credit Agreement and have made, or caused to be
made
under my supervision, a review in reasonable detail of the transactions and
conditions of Borrower and its Subsidiaries during the accounting period
covered
by such financial statements;
Β
(c)Β Β Β Β such
review has not disclosed the existence during or at the end of such accounting
period, and I have no knowledge of the existence as of the date hereof, of
any
condition or event that constitutes a material Default or an Event of Default,
except as set forth in Schedule
1
hereto,
which includes a description of the nature and period of existence of such
Default or an Event of Default and what action Borrower has taken, is
undertaking and proposes to take with respect thereto; and
Β
(d)Β Β Β Β Borrower
is in compliance with the covenants contained in Article 6 of the Credit
Agreement, and Guarantor is in compliance with the covenants contained in
the
Guarantee constituting a part of the Financing Documents, except as set forth
below.
Β
(e)Β Β Β Β Except
as
noted on Schedule
2
attached
hereto, the Credit Agreement contains a complete and accurate list of all
business locations of Borrowers and all names under which each Borrower
currently conducts business; Schedule
2
specifically notes any changes in the names under which Borrower conducts
business.
Β
Β
(f)Β Β Β Β Except
as
noted on Schedule
3
attached
hereto, the undersigned has no knowledge of any federal or state tax liens
having been filed against the Borrower or any Collateral or the Guarantor,
to
the extent that tax liens against Guarantor would result in a Material Adverse
Effect or would adversely affect the Collateral.
Β
(g)Β Β Β Β Except
as
noted on Schedule
3
attached
hereto, the undersigned has no knowledge of any failure of the Borrower or
the
Guarantor, to the extent that tax liens against Guarantor would result in
a
Material Adverse Effect or would adversely affect the Collateral to make
required payments of withholding or other tax obligations of the Borrower
or the
Guarantor, to the extent that tax liens against Guarantor would result in
a
Material Adverse Effect or would adversely affect the Collateral during the
accounting period to which the attached statements pertain or any subsequent
period.
Β
(h)Β Β Β Β [Reserved.]
Β
(i)Β Β Β Β [Reserved.]
Β
(j)Β Β Β Β Schedule
4
attached
hereto contains a complete and accurate statement of all deposit or investment
accounts maintained by Borrower.
Β
(k)Β Β Β Β Except
as
described on Schedule
5
attached
hereto:
Β
(i)Β Β Β Β there
are
no current, pending or threatened proceedings relating to a condemnation
or
other public taking of any Project;
Β
(ii)Β Β Β Β no
Project has suffered no casualty or other damage or loss of the type typically
covered by hazard insurance;
Β
(iii)Β Β Β Β all
insurance required to be maintained by Borrowers or ARC for the benefit of
Borrower is in force and premiums therefor have been paid as and when due
and no
Borrower has made any claims thereunder;
Β
(iv)Β Β Β Β the
undersigned has no knowledge of any current, pending or threatened changes
to
the zoning classification or permitted uses of any Project; and
Β
(l)Β Β Β Β Except
as
described in the Credit Agreement or in Schedule
6
attached
hereto, the undersigned has no knowledge of any current, pending or
threatened:
Β
(i)Β Β Β Β material
litigation against any Borrower;
Β
(ii)Β Β Β Β inquiries,
investigations or proceedings concerning the business affairs, practices,
licensing or reimbursement entitlements of any Borrower;
Β
(iii)Β Β Β Β default
by Borrower under any material contract to which either of them is a party,
including, without limitation, any Material Leases.
Β
Β
Such
calculations and the certifications contained therein are true, correct and
complete;
Β
The
foregoing certifications and computations are made as of ___________________,
_____ (end of month)Β and delivered this ____ day of _____________,
20___.
Β
|
Sincerely,
Β
By_______________________________________
Name_____________________________________
Title
________________ of
Borrower Representative
|
List
of Schedules:
Schedule
1 - Non-Compliance with Covenants
Schedule
2 - Business Locations and Names of Borrower
Schedule
3 - Unpaid Tax or Withholding Obligations
Schedule
4 - List of all Deposit and Investment Accounts of Borrower
Schedule
5 - Events Affecting Real Property (condemnation, insurance, zoning,
taxes)
Schedule
6 - Pending Litigation, Inquiries or Investigations; Defaults under Material
Contracts
Β
Schedules
to Compliance Certificate
Schedule
1 - Non-Compliance with Covenants
Schedule
2 - Business Locations and Names of Borrower
Schedule
3 - Unpaid Tax or Withholding Obligations
Schedule
4 - List of all Deposit and Investment Accounts of Borrower
Schedule
5 - Events Affecting Real Property (condemnation, insurance, zoning,
taxes)
Schedule
6 - Pending Litigation, Inquiries or Investigations; Defaults under Material
Contracts
Worksheets
for covenant calculations
Β
Β
|
Exhibit
D to Credit Agreement (Payment
Notification)
|
[BORROWER
REPRESENTATIVE]
Β
Date:
___________, ______
Β
Reference
is hereby made to the Credit Agreement dated February __, 2006 among the
undersigned, Xxxxxxx Xxxxx Capital, a division of Xxxxxxx Xxxxx Business
Financial Services Inc., as Administrative Agent and the financial institutions
party thereto. Capitalized terms used here have the meanings ascribed thereto
in
the Credit Agreement.
Β
Please
be
advised that funds in the amount of $_____________ will be wire transferred
to
Administrative Agent on _________, 200_. Such funds shall constitute
[an
optional]
[a
mandatory]
prepayment of the Term Loans, with such prepayments to be applied in the
manner
specified in Section
2.1(e).
Such
mandatory prepayment is being made pursuant to Section __________ of the
Credit
Agreement.
Β
Fax
to MLC Operations 000-000-0000 no later than noon Chicago
time
Β
|
Note:
|
Funds
must be received no later than noon Chicago time for same day
application
|
Β
Wire
Instructions:
Bank
Name:
LaSalle
Bank National Association
000
X.
XxXxxxx Xxxxxx
Xxxxxxx,
XX 00000
ABA#Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β 0000-0000-0
Β
Account
Name:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β _______________________
Β
Account
#:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ______________________
Reference:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (Client
Name)
Address:
Xxxxxxx
Xxxxx Capital
000
X.
XxXxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
XX 00000
IN
WITNESS WHEREOF, the undersigned officer has executed and delivered this
certificate this ____ day of ___________, ____.
Β
|
By_______________________________________
Name_____________________________________
Title
________________ of
Borrower Representative
|
Β
|
Exhibit
E to Credit Agreement (Borrowers'
Taxpayer
Identification Numbers)
|
Β
See
Schedule 3.1
Β
Β
Β
|
Schedule
1
-
Permitted
Leases
|
Β
|
Lessee
|
Location
|
Annual
Rent
|
|
Reachout
Home Care
|
Arlington,
Texas
|
January
2006 - March 2006
Higher
of $750 per month or 10% of average monthly sales for September
2005
through November 2005
|
|
April
2006 - June 2006
Higher
of $1,000 per month or 10% of average monthly sales for December
2005
through February 2006
|
||
|
July
2006 and thereafter
Higher
of $1,000 per month or 10% of average monthly sales for previous
quarter
|
Β
Β
Β
|
Schedule
3.1
-
Existence,
Organizational Identification
Numbers,
Foreign Qualification, Prior
Names
|
|
Cypress
Leawood, LLC
|
Β |
|
d/b/a:
Town Village Leawood (application to be made at closing)
|
Β |
|
Organization
ID No.:
|
4100355
|
|
EIN:
|
00-0000000
|
|
State
of Formation:
|
Delaware
|
|
Foreign
Qualifications:
|
Kansas
|
|
Cypress
Arlington, L.P.
|
Β |
|
d/b/a:
Town Village Arlington (application to be made at closing)
|
Β |
|
Organization
ID No.:
|
4103302
|
|
EIN:
|
00-0000000
|
|
State
of Formation:
|
Delaware
|
|
Foreign
Qualifications:
|
Texas
|
|
Cypress
Arlington & Leawood JV, LLC
|
Β |
|
Organizational
ID No.:
|
4100362
|
|
EIN:
|
00-0000000
|
|
State
of Formation:
|
Delaware
|
|
Cypress
Arlington GP, LLC
|
Β |
|
Organization
ID No.:
|
4100358
|
|
EIN:
|
00-0000000
|
|
State
of Formation:
|
Delaware
|
|
Foreign
Organizations:
|
Texas
|
|
American
Retirement Corporation
|
Β |
|
Organization
ID No.:
|
0325434
|
|
EIN:
|
00-0000000
|
|
State
of Formation:
|
Tennessee
|
Β
Β
Β
|
Schedule
3.4
-
Capitalization
|
Β
Β
Β
|
Schedule
3.6
-
Litigation
|
None
Β
Β
|
Schedule
3.17 -
Material
Contracts
|
Management
Agreements listed on Schedule
5.9.
Β
Β
|
Schedule
3.18
-
Environmental
Compliance
|
Those
matters referenced in the following reports prepared by Property Solutions
Incorporated:
Phase
I
Environmental Site Assessment dated February 22, 2006 for Town Village Leawood,
Leawood, Kansas
Phase
I
Environmental Site Assessment dated February 22, 2006 for Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxxx
Β
Β
|
Schedule
4.4
-
Insurance
Requirements
|
The
following requirements for insurance are effective as of the Closing Date.
Lender reserves the absolute right to modify, amend or supplement these
requirements at any time and from time to time during the term of the Loan
and
Borrower will be required to satisfy any such modified, amended or supplemented
requirements after commercially reasonable notice to Borrower from Lender
of
such modification, amendment or supplement.
Β
Property
Insurance for Borrower: Β
Β
1.Β Β Β Β Issued
on
XXXXX
27
form
(Evidence of Insurance), signed by authorized agent.
Β
2.Β Β Β Β Insurance
carrier(s)Β must be rated A- VII or better (by A.M. Best).
Β
3.Β Β Β Β XXXXX
27
should
disclose: (a)Β annual premium for the coverages should be shown on the
XXXXX
27;
(b)Β premiums that remain unpaid for the term of the policy, if any.
Lender
has accepted the schedule of estimated 2006 insurance expense provided by
Xxxxx
XxXxxxxx from the Borrower.
Β
4.Β Β Β Β Policy
should be an all risk/special perils coverage form.
Β
5.Β Β Β Β Policy
must provide replacement cost coverage with waiver of coinsurance or agreed
amount endorsement.
Β
6.Β Β Β Β Policy
must provide waiver of terrorism exclusion (or indicate "no terrorism
exclusion").
Β
7.Β Β Β Β Deductible
shall be no greater than $10,000. Lender
has approvedΒ the
property deductible of $50,000 ($100,000 with respects to flood and earthquake).
Β
ΓΒ If
the
deductible is subject to an
overall aggregate deductible, this must be disclosed with a copy of the specific
aggregate deductible agreement provided.
Β
8.Β Β Β Β Building
coverage must be greater than or equal to replacement cost valued by Xxxxxxx
Xxxxx Capital or its representatives (if the policy is a blanket policy insuring
other properties, and there is any sub-limit on the amount of coverage for
any
particular property, such limit should be shown on the evidence of insurance).
Renewal amount and annual agreed amount endorsement shall be adjusted by
Borrower, subject to Lender's approval, to maintain proper insurable values.
Lender
has approved the following actual coverage: Building, Business Personal
Property, and Business Income coverages are written on a blanket basis with
total limits of $500,000,000.
Β
9.Β Β Β Β Loss
of
Rents coverage must be greater than or equal to twelve (12)Β months rental
income (if the policy is a blanket policy insuring other properties, and
there
is any sublimit on the amount of coverage for any particular property, such
limit should be shown on the evidence of insurance). Lender
has approved the following actual coverage: Building,
Β
Β
Business
Personal Property, and Business Income coverages are written on a blanket
basis
with total limits of $500,000,000.
Β
10.Β Β Β Β Policy
must provide for Boiler & Machinery coverage.
Β
11.Β Β Β Β Policy
must provide for Building Law and Ordinance coverage.
Β
12.Β Β Β Β Policy
must provide for windstorm coverage, if applicable (For Florida/Coastal
properties).
Β
13.Β Β Β Β Policy
must provide for flood coverage, if applicable (For properties in FEMA flood
zones A, B, V, and X-Shaded). Lender
has approved the following actual coverage: Flood coverage is written at
a
blanket limit of $50,000,000
with a deductible of $100,000 each occurrence. Lender has confirmed that
no
flood coverage is required for any Property in this
transaction.
Β
14.Β Β Β Β Policy
must provide for earthquake coverage, if applicable (For properties located
in
Seismic Zones 3 and 4). Lender
has approved the following actual coverage: Earthquake coverage is written
at a
blanket limit of $50,000,000 with a deductible of $100,000 each occurrence.
Lender has confirmed that no earthquake coverage is required for any Property
in
this transaction.
Β
15.Β Β Β Β Xxxxxxx
Xxxxx Capital shall be named on the XXXXX 27 as Mortgagee and Loss Payee
(as
applicable)Β and Certificate Holder.
Β
16.Β Β Β Β XXXXX
27
must provide for thirty (30)Β days' notice of cancellation or any material
change in the policy to Xxxxxxx Xxxxx Capital, and if possible, deleting
"endeavor to" and "but failure to mail such notice shall impose no obligation
or
liability of any kind upon the company, its agents or representatives" language.
Cancellation notice only-no notice for "material change". Xxxxx 27 does not
contain "endeavor to" wording.
Β
17.Β Β Β Β Policy
must contain waiver of subrogation by insurer with respect to contractual
releases made by insured prior to loss.
Β
18.Β Β Β Β Higher
limits and special coverages in addition to those indicated above may be
required depending upon the property size and nature of operations (if a
joint
venture).
Β
Β
Property
Insurance for Operator: Β
Β
1.Β Β Β Β Operator
must carry business interruption insurance with a coverage of twelve
(12)Β months. Lender
has approved the following actual coverage: Building, Business Personal
Property, and Business Income coverages are written on a blanket basis with
total limits of $500,000,000.
Β
2.Β Β Β Β Issued
on
XXXXX
27
form
(Evidence of Insurance), signed by authorized agent.
Β
3.Β Β Β Β Insurance
carrier(s)Β must be rated A- VII or better (by A.M. Best).
Β
4.Β Β Β Β XXXXX
27
should
disclose: (a)Β annual premium for the coverages should be shown on the Xxxxx
27; (b)Β premiums that remain unpaid for the term of the policy, if any.
Lender
has accepted the schedule of estimated 2006 insurance expense provided by
Xxxxx
XxXxxxxx from the Borrower.
Β
5.Β Β Β Β Policy
should be an all risk/special perils coverage form.
Β
6.Β Β Β Β Policy
must provide replacement cost coverage with waiver of coinsurance or agreed
amount endorsement. Lender
has approved the following actual coverage: Building, Business Personal
Property, and Business Income coverages are written on a blanket basis with
total limits of $500,000,000.
Β
7.Β Β Β Β Policy
must provide waiver of terrorism exclusion (or indicate "no terrorism
exclusion").
Β
8.Β Β Β Β Deductible
shall be no greater than $10,000. Lender
has approvedΒ the
property deductible of $50,000 ($100,000 with respects to flood and
earthquake).
Β
9.Β Β Β Β XXXXX
27
must provide for thirty (30)Β days' notice of cancellation or any material
change in the policy to Xxxxxxx Xxxxx Capital. Cancellation notice only-no
notice for "material change". Xxxxx 27 does not contain "endeavor to"
wording.
Β
10.Β Β Β Β Policy
must contain waiver of subrogation by insurer with respect to contractual
releases made by insured prior to loss.
Β
11.Β Β Β Β Xxxxxxx
Xxxxx Capital shall be named on the XXXXX
27
as
Mortgagee and Loss Payee (as applicable)Β and Certificate
Holder.
Β
Β
General
and Professional Liability Insurance:
Β
1.Β Β Β Β Certificate
must be issued on XXXXX
25
form
(Certificate of Ins.), signed by authorized agent.
Β
2.Β Β Β Β Insurance
carrier(s)Β must be rated A- VII or better (by A.M. Best).
Β
3.Β Β Β Β XXXXX
25
should
disclose: (a)Β annual premium for the coverages should be shown on the
XXXXX
25;
(b)Β premiums that remain unpaid for the term of the policy, if any.
Lender
has accepted the schedule of estimated 2006 insurance expense provided by
Xxxxx
XxXxxxxx from the Borrower.
Β
4.Β Β Β Β Policy
should include coverage for Contractual Liability.
Β
5.Β Β Β Β Policy
should include waiver of terrorism exclusion (or indicate "no terrorism
exclusion"). All Professional and General Liability policies provide coverage
for claims arising from acts of terrorism. All certificates reflect this
coverage with the exception of the Lexington policy which provides $4,000,000
General Liability coverage. This policy has been reviewed and coverage is
provided for claims arising from acts of terrorism.
Β
6.Β Β Β Β Policy
must have a deductible not greater than $25,000. Lender
has approved deductibles discussed below in item 7 of this
section.
Β
ΓΒ If
the
deductible is subject to an overall aggregate deductible, this must be disclosed
with a copy of the specific aggregate deductible agreement
provided.
Β
7.Β Β Β Β Coverage
is required in a minimum $1,000,000 per claim and $3,000,000 in the aggregate
(aggregate may apply to other insureds beyond the other named insureds listed
below only with Lender's prior written consent): [enter names of named insurance
- i.e., the policy owner - and the other named insureds; this should consist
only of borrowers unless MLC otherwise approves].
Β
Lender
has approved the following coverage: The combined general liability and
professional liability insurance program is written as
follows:
Β
| Β |
Γ
|
The
primary general liability coverage is written with a limit of $4,000,000
each occurrence, with a $4,000,000 policy aggregate including a
self-insured retention of $1,000,000. Claims made by "patients"
are
covered for claims arising out of specified perils, as identified
in the
policy, only.
|
| Β |
Γ
|
There
is also a $4,000,000 excess of $1,000,000 coverage for general
liability
and professional liability claims provided by a captive program
that is
currently.
|
Β
Β
Β
| Γ |
The
two policies described above are designed to transfer some of the
liability of the $5,000,000 self-insured retention which the combined
General Liability/Professional Liability program provided by XL
Insurance
Ltd. Bermuda is subject to. The limit provided is $15,000,000 under
one
policy and a second covering only General Liability has been written
for
an additional
$10,000,000.
|
| Β |
Γ
|
Total
combined primary and excess general liability coverage is $25,000,000
with
a $1,000,000 self-insured retention. Total combined coverage for
professional liability is $15,000,000 with a $1,000,000 self-insured
retention.
|
8.Β Β Β Β XXXXX
25
should provide for thirty (30)Β days' notice of cancellation or any material
change in the policy to Xxxxxxx Xxxxx Capital, and if possible, deleting
"endeavor to" and "but failure to mail such notice shall impose no obligation
or
liability of any kind upon the company, its agents or representatives" language.
Lender
has approved the certificates without the requested changes to the notice
of
cancellation.
Β
9.Β Β Β Β Policy
must name Xxxxxxx
Xxxxx Capital as additional insured and must name the
following as other named insureds: The entities identified on Schedule
5.9.
Β
10.Β Β Β Β Policy
must include Separation of Insureds/Cross Liability.
Β
11.Β Β Β Β Policy
will be written on a claims-made basis. Lender
has approved the following: The primary general liability insurance program
is
written on an Occurrence basis. The two combined Excess General Liability
and
Professional Liability insurance programs are written on a Claims-Made basis
with the retroactive date of coverage being the inception date of coverage
on
October 31, 2005.
Β
12.Β Β Β Β Insurance
shall be noted as being primary without right of contribution of any other
insurance carried by or on behalf of Lessor per each policies terms and
conditions.
Β
13.Β Β Β Β Higher
limits and special coverages in addition to those indicated above may be
required depending upon the property size and nature of operations (if a
joint
venture).
Β
Β
Automobile
Liability Insurance (must show the following):
Β
| 1. |
Issued
on Xxxxx 25 form (Certificate of Insurance), signed by authorized
agent.
|
| 2. |
Insurance
carrier (s)Β rated A- VII or better (by A.M.
Best).
|
| 3. |
Current
policy term.
|
| 4. |
Coverage
for Owned, Non-Owned, and Hired
autos.
|
| 5. |
Annual
premium for the coverages shown. Lender
has accepted the schedule of estimated 2006 insurance expense provided
by
Xxxxx XxXxxxxx from the
Borrower.
|
| 6. |
Premiums
that remain unpaid for the policy term, if any.
|
| 7. |
Waiver
of terrorism exclusion (or indicate "no terrorism
exclusion").
|
| 1. |
Liability
deductible not greater than $5,000. Lender
has approvedΒ the
automobile liability deductible of
$100,000.
|
| 2. |
If
the deductible is subject to an overall aggregate deductible, this
must be
disclosed with a copy of the specific aggregate deductible agreement
provided.
|
| 3. |
Minimum
$1,000,000 per occurrence limit (primary and umbrella/excess can
be
combined to achieve minimum limit.
|
| 4. |
Thirty
(30)Β days (ten (10)Β days for non-payment)Β notice of
cancellation or any material change in the policy to Xxxxxxx Xxxxx
Capital
deleting "endeavor to" and "but failure to mail such notice shall
impose
no obligation or liability of any kind upon the company, its agents
or
representatives" language. Lender
has approved the certificates without the requested changes to
the notice
of cancellation.
|
| 5. |
Xxxxxxx
Xxxxx Capital included as Additional Insured (see
below).
|
| Β |
6.
|
Waiver
of Subrogation endorsement in favor of Xxxxxxx Xxxxx Capital (see
below).
Lender
has accepted the following: The current insurance carrier would
not
provide Waiver of Subrogation in favor of Lender. However, the
policy does
name Lender as Additional Insured which insures Lender to the extent
of
Lender's insurable interest in the automobiles for this
transaction.
|
| 7. |
Separation
of Insureds/Cross Liability included. Lender
has accepted this as per the policy terms and
conditions.
|
Β
| 8. |
Insurance
shall be noted as being primary without right of contribution of
any other
insurance carried by or on behalf of Lessor. This
has been accepted by the
Lender.
|
| 9. |
Higher
limits and special coverages in addition to those indicated above
may be
required depending upon the property size and nature of operations
(if a
joint venture).
|
Β
Certificate
Holder and Entity to be Shown on Required
Endorsements:
Β
Xxxxxxx
Xxxxx Capital, a Division of
Xxxxxxx
Xxxxx Business Financial Services Inc.,
and
its
successors and assigns
000
X. Xx
Xxxxx Xxxxxx - 16th
Floor
Xxxxxxx,
XX 00000
Attn:
Portfolio Management
Insurance
Consultant for Xxxxxxx Xxxxx Capital:
Β
Lockton
Companies, Inc.
0000
Xxx
Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Β
|
Primary
Contact:
|
Β |
Secondary
Contact:
|
|
Xxxxx
Xxxxx, CIC, CRM
|
Β |
Xxxxxx
Xxxxx, AIS
|
|
Account
Manager, Commercial Insurance
|
Β |
Account
Manager, Commercial Insurance
|
|
713.458.5200
(Main)
|
Β |
713.458.5200
(Main)
|
|
713.458.5246
(Direct)
|
Β |
713.458.5425
(Direct)
|
|
000.000.0000
(Mobile)
|
Β |
000.000.0000
(Mobile)
|
|
000.000.0000
(Fax(
|
Β |
000.000.0000
(Fax)
|
|
xxxxxx@xxxxxxx.xxx
(E-mail)
|
Β |
xxxxxx@xxxxxxx.xxx
(E-mail)
|
Β
Β
Β
|
Schedule
4.14
-
Deferred
Maintenance
Schedule
|
Β
Β
|
Leawood
|
|
E-Call
system
|
|
Visitor
parking
|
|
Kitchen
A/C
|
|
Apartment
combinations
|
| Β |
| Β |
|
Arlington
TX
|
|
Auto
entry doors
|
|
E-Call
system
|
|
Exterior
painting*
|
|
Roof
repair*
|
|
Enhancements
to curb appeal
|
*
Required
Β
Β
|
Schedule
5.9 - Affiliate
Transactions
|
Β
Management
Agreement for Town Village Arlington and Town Village Leawood Continuing
Care
Retirement Community dated February 28, 2006 by and between Cypress Arlington,
L.P., Cypress Leawood, LLC and ARC Management LLC.
Β
Β
|
Schedule
7.3 - Post Closing Deliveries
and Covenants
|
Β
Β
Β
Β
Β
|
Schedule
8.7 - Licensed
Operators
|
Β
None.
Β
Β
Β
|
Schedule
9.1(h) - Service
Agreement
|
Β
None
Β
Β
Β
Β
