LOAN AGREEMENT (Healthcare Center)
Exhibit
10.90
(Healthcare
Center)
THIS
LOAN
AGREEMENT (this “Agreement”)
is made
and entered into this
day of
December, 2005, by and between ARC BRANDYWINE, L.P., a Delaware limited
partnership (hereinafter called “Borrower”),
and
GUARANTY BANK, a federal savings bank (hereinafter called “Lender”);
ARTICLE
I
DEFINITIONS
1.1. Defined
Terms.
As used
in this Agreement, the following terms shall have the meanings
shown:
“Agency”.
The
Centers for Medicare and Medicaid Services, the Drug Enforcement Administration,
the Environmental Protection Agency, any other state or federal licensing
or
regulatory authority (including any licensing or regulatory authority
responsible for administering or dispensing Medicaid or Medicare payments
or any
other third party payor billing policies, procedures, limitations or
restrictions), or any other public or private agency or organization, including
without limitation, any public or private accreditation agency or
organization.
“CCRC
Property”.
The
continuing care retirement community which includes the Facility as well
as the
other facilities located on the property described on Exhibit A
attached
hereto and made a part hereof.
“Continuing
Care Agreement”.
Agreement by and between a resident and any Property Related Person executed
upon resident’s purchase of a residential unit on the CCRC Property which
provides for personal care services at the CCRC Property.
“Deficiency
Notices”.
All
notices and other written communications from any Agency or Governmental
Authority which licenses, regulates, certifies, accredits or evaluates the
Property Related Persons, the Property or the operation of the Property by
the
Property Related Persons alleging that the Property Related Persons, the
Property or the operation of the Property by the Property Related Persons
in
whole or in part fails to comply or, if corrective action is not taken, shall
fail to comply with, any or all of the Agency's or Governmental Authority's
requirements for and conditions of licensing, regulation, certification or
accreditation by or participation in programs of the Agency or Governmental
Authority or otherwise relating to the continuous operation of all or any
portion of the Property or the programs of the Property Related Persons or
the
eligibility or entitlement of the Property Related Persons to receive
reimbursement from any Agency or Governmental Authority.
“Facility”.
The
48-unit healthcare center located upon the CCRC Property.
“GAAP”.
Generally accepted accounting principles, as from time-to-time in effect
in the
United States of America, or such alternative accounting standard as may
be
acceptable to the Lender, consistently applied.
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“Governmental
Authority”.
The
United States, the state, the county and the city or any other political
subdivision in which the CCRC Property is located, and any other political
subdivision, agency or instrumentality having jurisdiction over the CCRC
Property or any of the Property Related Persons.
“Governmental
Requirements”.
All
laws, ordinances, statutes, codes, rules, regulations, orders and decrees
of any
Governmental Authority applicable to any of the Property Related Persons
or the
CCRC Property.
“Guarantor”.
American Retirement Corporation, a Tennessee corporation.
“Healthcare
Information Laws”.
As
defined in Section 3.1(k).
“HIPAA”.
As
defined in Section 3.1(k).
“Licenses”.
Any and
all licenses, operating permits, franchises, and other licenses, authorizations,
certifications, permits, or approvals, other than construction permits, issued
by, or on behalf of, any Governmental Authority now existing or at any time
hereafter issued, with respect to the acquisition, construction, renovation,
expansion, leasing, ownership and/or operation of the CCRC Property,
accreditation of the CCRC Property, any and all operating licenses issued
by any
Governmental Authority, any and all pharmaceutical licenses and other licenses
related to the purchase, dispensing, storage, prescription or use of drugs,
medications, and other “controlled substances,” and any and all licenses
relating to the operation of food or beverage facilities or amenities, if
any.
“Loan”.
The
$5,000,000 loan made this date by Lender to Borrower and evidenced by the
Note.
“Managed
Care Plans”.
Any
health maintenance organization, preferred provider organization, individual
practice association, competitive medical plan, referral service or similar
arrangement, entity, organization, or Person.
“Management
Agreement”.
The
Management Agreement dated December 6, 2005 by and between Manager and the
Borrower applicable to the Facility, as the same may be amended from time
to
time.
“Manager”.
ARC
Management, LLC, a Tennessee limited liability company, and any successor
manager of the Facility approved by Lender in writing.
“Material
Adverse Change”.
As to
the specified Person, a material adverse change in the business, operations,
property, condition (financial or otherwise) or prospects of such Person
and, in
addition, as to the Borrower, any material adverse change in (i) the ability
of
the Borrower to perform its obligations under this Agreement or any of the
other
Loan Documents or (ii) the validity or enforceability of this Agreement or
any
of the other Loan Documents or the rights or remedies of the Lender hereunder
or
thereunder.
“Net
Operating Income”.
The
gross income received by Borrower from the operation of the CCRC Property
for
the calendar quarter in question, less expenses incurred and/or paid by Borrower
in connection with the operation and maintenance of the CCRC Property that
are
allocable to such period (other than management fee expenses), computed on
an
accrual basis without regard to depreciation or debt service, but otherwise
in
accordance with generally accepted accounting principles consistently applied.
Included within the expenses shall be annual capital expenditures equal to
$300
per Unit. Documentation of Net Operating Income and expenses shall be certified
by an officer of Borrower with detail satisfactory to Lender and shall be
subject to the approval of Lender.
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“Note”.
The
$5,000,000 promissory note dated as of the date hereof from Borrower to
Lender.
“Operating
Agreements and Management Contracts”.
Any and
all contracts and agreements previously, now or at any time hereafter entered
into by the Property Related Persons with respect to the acquisition,
construction, renovation, expansion, ownership, operation, maintenance, use
or
management of the CCRC Property or otherwise concerning the operations and
business of the CCRC Property, including, without limitation, the Management
Agreement, any and all service and maintenance contracts, any employment
contracts, any and all management and operating agreements, any and all
consulting agreements, laboratory servicing agreements, pharmaceutical
contracts, physician, other clinician or other professional services provider
contracts, therapy referral, food and beverage service contracts, and other
contracts for the operation and maintenance of, or provision of services
to, the
CCRC Property.
“Participation
Agreements”.
Any and
all third party payor participation or reimbursement agreements now or at
any
time hereafter existing for the benefit of the Property Related Persons relating
to rights to payment or reimbursement from, and claims against, private
insurers, Managed Care Plans, employee assistance programs, Blue Cross and/or
Blue Shield, federal, state and local Governmental Authorities, including
without limitation, Medicare, Medicaid, TRICARE, VA and other third party
payors.
“Person”.
An
individual, a general or limited partnership, a limited liability company,
a
limited liability partnership, a corporation, a business trust, a joint stock
company, a trust, an unincorporated association, a joint venture, a Governmental
Authority or other entity of whatever nature.
“Pledge
Agreement”.
Collectively, the Pledge Agreements dated as of the date hereof made by
Guarantor, ARCPI Holdings, Inc., a Delaware corporation, and ARC Brandywine
GP,
LLC, a Tennessee limited liability company, for the benefit of
Lender.
“Property
Related Persons”.
Borrower, Manager and ARC Brandywine GP, LLC.
“Purchase
Agreement”.
Agreement entered into by any resident and any Property Related Person whereby
resident agrees to purchase from the Property Related Person a life-estate
in a
residential unit located on the CCRC Property.
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“Repairs”.
As
defined in Section 3.1(l).
“Replacement
Reserve Escrow Account”.
As
defined in Section 3.1(l).
“Repurchase
Agreement”.
Agreement entered into by and between any resident and any Property Related
Person whereby resident or resident’s authorized agent is required to convey
resident’s life-estate interest in the unit to the Property Related Person upon
becoming a permanent resident of the healthcare facility or when the
Continuing-Care Agreement is terminated.
“Resident
Agreements”.
Any and
all contracts and agreements executed by, or on behalf of any resident or
other
Person seeking residency or occupancy in the CCRC Property and related services
from the Property Related Person. The term Resident Agreements shall also
include any and all contracts, authorizations, agreements and/or consents
executed by, or on behalf of any patient or other Person seeking services
from
the Property Related Persons pursuant to which the Property Related Persons
provide or furnish long-term care and related services at the CCRC Property,
including the consent to treatment and assignment of the payment of benefits
by
a third party.
“Security
Agreement”.
The
Security Agreement dated as of the date hereof made by Borrower and Manager
for
the benefit of Lender.
“Security
Instrument”.
That
certain Open-End Mortgage, Security Agreement and Fixture Filing dated as
of the
date hereof made by Borrower for the benefit of Lender.
“Unit”.
A fully
constructed unit at the CCRC Property, for which a certificate of occupancy
has
been issued by the applicable Governmental Authority.
“Work
Inspector”.
As
defined in Section 3.1(l).
Capitalized
terms not otherwise defined herein have the meaning assigned such terms in
the
Security Instrument or the Note, as the case may be.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
2.1. Representations
and Warranties of the Borrower.
To
induce the Lender to enter into this Agreement and to make the Loan, the
Borrower hereby represents and warrants to the Lender as of the date hereof
as
follows:
(a) Litigation.
With
respect to the CCRC Property, there is no threatened or pending revocation,
suspension, termination, probation, restriction, limitation or non-renewal
of
any material License or any similar accreditation or approval by or from
any
organization or Governmental Authority for healthcare providers, including,
without limitation, the issuance of any provisional License or other License
with a term of less than twelve (12) months, as a consequence of any sanctions
imposed by any Governmental Authority. There is no threatened or pending
assessment of any civil or criminal penalties by any Governmental
Authority.
(b) Compliance
with Laws.
No
Property Related Person is in violation of any Governmental Requirement
pertaining to the operation of the CCRC Property, patient rights, resident
rights, employment practices, health standards or controls. Except as disclosed
to the Lender prior to the date hereof, the Property Related Persons are
in
compliance with all accreditation standards and requirements to which each
is
subject. The Property Related Persons have obtained or applied for all Licenses
necessary to the ownership of their property and to the conduct of their
activities which, if not obtained, could materially adversely affect the
ability
of the Property Related Persons to conduct the activities of the CCRC Property,
including, without limitation, as appropriate, the dispensing, storage,
prescription, disposal, and use of drugs, medications and other “controlled
substances” and the maintenance of cafeteria and other food and beverage
facilities or services. To the extent the Property Related Persons have applied
for any required Licenses which have not yet been issued, the operation and
conduct of the CCRC Property by the Property Related Persons is nonetheless
in
compliance with all Governmental Requirements. The Property Related Persons
currently have obtained all Licenses necessary under Governmental Requirements
for the operation of the Facility.
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(c) Licenses
and Certifications.
With
respect to each License the Property Related Persons possess or have applied
for, (i) no material default has occurred or is continuing under the terms
thereof, and no event has occurred which, with the giving of notice or the
lapse
of time, or both, would constitute a material breach of any condition to
the
issuance, maintenance, renewal and/or continuance thereof, (ii) the Property
Related Persons have paid all fees, charges and other expenses to the extent
due
and payable with respect to, and have provided all information and otherwise
complied with all material conditions precedent to, the issuance, maintenance,
renewal, and continuance of such License, (iii) none of the Licenses are
conditional, provisional, probationary or restricted in any material way,
(iv)
the Property Related Persons have not received any notice from any Governmental
Authority relating to any actual or pending suspension, revocation, restriction,
or imposition of any probationary use of such License, nor has any License
been
materially amended, supplemented, rescinded, terminated, or otherwise modified
except as otherwise disclosed in writing to, and approved by, the Lender,
(v) no
Property Related Person has made any previous assignment of any of the Licenses
to any Person, except as security for loans and other financial accommodations,
if any, which are to be paid with the proceeds of the Loan and are to be
terminated promptly following the date hereof, (vi) no financing statement
covering any of the Licenses has been executed by a Property Related Person
or
is on file in any public office, except for those financing statements relating
to loans and other financial accommodations, if any, which are to be paid
with
the proceeds of the Loan and are to be terminated promptly following the
date
hereof, and (vii) each License has been issued for a period of at least twelve
(12) months from the date of issuance or for such lesser time to the extent
the
issuance for less than twelve (12) months is not the consequence of any
sanctions imposed by any Governmental Authority.
(d) Certain
Payments.
Neither
the Borrower nor any director, officer, member, partner, employee or agent
of
the Borrower acting for or on behalf of the Borrower has knowingly and willfully
paid or caused to be paid, directly or indirectly, in connection with the
business of the Borrower:
5
(i) any
bribe,
kickback or similar payment to any Governmental Authority or any agent of
any
supplier; or
(ii) any
contribution to any political party or candidate (other than personal funds
of
directors, officers, members, partners, employees or agents not reimbursed
by
their respective employers or as otherwise permitted by applicable
laws).
To
the
best of Borrower's knowledge, the above representation is true and correct
with
respect to the other Property Related Persons.
(e) Operating
Agreements and Management Contracts.
The
Borrower has furnished to the Lender photocopies of all material Operating
Agreements and Management Contracts entered into with the Property Related
Persons, and all amendments, supplements and modifications thereto. With
respect
to each such Operating Agreement and Management Contract, (i) such Operating
Agreement and Management Contract is or will be at the time of execution
and
delivery thereof valid and binding on the parties thereto and in full force
and
effect, (ii) no material default has occurred or is continuing under the
terms
thereof, and no event has occurred which, with the giving of notice or the
lapse
of time, or both, would constitute a material default thereunder, and no
party
thereto has attempted or threatened to terminate any such Operating Agreement
and Management Contracts, (iii) the Property Related Persons have not made
any
previous assignment of the Operating Agreements and Management Contracts
to any
Person, except as security for loans and other financial accommodations,
if any,
which are to be paid with the proceeds of the Loan and are to be terminated
promptly following the date hereof, and (iv) no financing statement covering
any
of the Operating Agreements and Management Contracts is on file in any public
office, except for those financing statements relating to loans and other
financial accommodations which are to be paid with the proceeds of the Loan
and
are to be terminated promptly following the date hereof.
(f) Participation
Agreements.
The
Borrower hereby represents that the CCRC Property is a private pay retirement
community and as such, no Property Related Person has entered into any
Participation Agreement with respect to the CCRC Property.
(g) ▇▇▇▇-▇▇▇▇▇▇
Act.
The
Borrower has not, nor to the best of the Borrower's knowledge, has any prior
owner of the CCRC Property during the twenty (20) year period immediately
preceding the date hereof, received any funds to finance the construction
and/or
acquisition of the CCRC Property pursuant to Title VI of the Public Health
Service Act (commonly referred to as the ▇▇▇▇-▇▇▇▇▇▇ Act) or Title XVI of
the
Public Health Service Act.
(h) Fraud
and Abuse.
To the
Borrower's knowledge, each Property Related Person, its directors, officers
and
employees have not engaged in any activities which are in violation of Sections
1128A, 1128C or 1877 of the Social Security Act (42 U.S.C. §§ 1320a-7a, 1320a-7c
and 1395nn), the False Claims Act (31 U.S.C. § 3729 et seq.), the Program Fraud
Civil Remedies Act of 1986 (31 U.S.C. § 3801 et seq.) or other federal or state
laws and regulations, including, but not limited to, the following:
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(i) 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;
(ii) knowingly
and willfully making or causing to be made a false statement or representation
of a material fact for use in determining rights to any benefit or
payment;
(iii) failing
to
disclose knowledge of the occurrence of any event affecting the initial or
continued right to any benefit or payment on its own behalf or on behalf
of
another, with intent to fraudulently secure such benefit or
payment;
(iv) knowingly
and willfully offering, paying, soliciting, or receiving any remuneration
(including any kickback, bribe or rebate), directly or indirectly, overtly
or
covertly, in cash or in kind (A) in return for referring an individual to
a
Person for the furnishing or arranging for the furnishing of any item or
service, (B) in return for purchasing, leasing or ordering, or arranging
for or
recommending, purchasing, leasing or ordering any good, facility, service
or
item; or
(v) billing
a
patient, resident or payor for health services specified in 42 U.S.C. § 1395nn
or any other similar or comparable federal or state laws, or providing such
health services to a patient or resident, upon a referral from a physician
where
such physician has a financial relationship with the Property Related Person
to
which no exception applies under each of the applicable laws.
(i) Certificate
of Need Conditions.
The
Borrower covenants that it has developed and operated the CCRC Property and
is
providing services in a manner consistent with the representations made in
the
certificate of need application filed in connection with the CCRC Property
and
within the project scope and the conditions placed on the certificate of
need,
if any.
ARTICLE
III
COVENANTS
AND WARRANTIES
3.1. Affirmative
Covenants of the Borrower.
The
Borrower agrees as follows:
(a) Resident
Agreements.
The
Borrower will submit to the Lender when requested by the Lender, all information
requested by the Lender with respect to all Resident Agreements, excluding,
however any medical information or other protected health information as
defined
in 45 CFR §160-103.
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(b) Conduct
of Business and Compliance with Laws.
The
Borrower covenants and agrees that it or the Property Related Persons will
(i)
materially comply with all Governmental Requirements, including, without
limitation, the Occupational Safety and Health Act of 1970, regulations issued
under the Omnibus Budget Reconciliation Act of 1987, any Governmental
Requirement relating to “informed consents” and rights of patients and
residents, qualifications of staff, staffing requirements and delivery of
services in a manner sufficient to protect the health and safety of patients
and
residents, (ii) maintain in full force and effect all Licenses necessary
to the
ownership and/or operation of the CCRC Property, including, without limitation,
the license to operate the CCRC Property, Licenses and other approvals related
to the storage, dispensation, use, prescription and disposal of drugs,
medications and other “controlled substances” and, to the extent offered by the
Borrower, the maintenance of cafeteria and other food and beverage facilities
or
services, (iii) maintain or cause to be maintained the standard of care for
the
patients and residents of the CCRC Property at all times at a level necessary
to
ensure a level of quality care and services for the patients and residents
of
the CCRC Property no less than prudent industry standard for a similar facility,
(iv) 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
with, at least, that of the prudent industry standard and in conformity with
all
Governmental Requirements, (v) operate or cause to be operated the CCRC Property
in a prudent manner in material compliance with Governmental Requirements
relating thereto and cause all Licenses, permits, certificates of need, and
any
other agreements materially necessary for the use and operation of the CCRC
Property remain in effect, (vi) correct or cause to be corrected any deficiency
set forth in any Agency statement of deficiencies, the curing of which is
a
condition of continued licensure or for accreditation of the CCRC Property,
(vii) maintain or cause to be maintained sufficient inventory and equipment
of
types and quantities at the CCRC Property to enable the Property Related
Persons
to operate the CCRC Property adequately and in a manner which will enable
the
Borrower to comply with the provisions of the Loan Documents, and (viii)
maintain or cause to be maintained all deposits, including, without limitation,
deposits relating to residents, patients or Resident Agreements in accordance
with customary and prudent business practices and all Governmental
Requirements.
(c) Insurance.
The
Borrower shall ensure that all healthcare providers with whom the Property
Related Persons contract to provide services at the CCRC Property are insured
against claims arising from such services (including, without limitation,
malpractice coverage) with the same limits, if any, as applicable to the
Borrower pursuant to the Loan Documents or otherwise acceptable to the
Lender.
(d) Notices.
The
Borrower shall promptly notify the Lender in writing upon obtaining knowledge
of
the occurrence of:
(i) the
receipt by any Property Related Person of any notice, claim or demand from
any
Governmental Authority which alleges that a Property Related Person is in
violation of any of the terms of, or has failed to comply with any material
Governmental Requirement regulating its operation and business, including,
but
not limited to, the Health Care Financing Administration or any division
thereof, the Occupational Safety and Health Act and the Environmental Protection
Act;
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(ii) the
actual, threatened or pending (A) revocation, suspension, probation,
restriction, limitation, forfeiture or refusal to renew of any material License,
or (B) the issuance or pending issuance of any material License for a period
of
less than twelve (12) months, as a consequence of sanctions imposed by any
Governmental Authority, or (C) the assessment or threatened or pending
assessment, of any civil or criminal penalties by any Governmental Authority
or
agent, or any accreditation organization;
(iii) any
action, including, but not limited to the amendment of any License, or the
issuance of any new License or certification for the CCRC Property, under
which
a Property Related Person proposes (A) to develop a new facility or service,
(B)
change any existing facility or service, or (C) to eliminate any existing
or
proposed service, which action requires the Property Related Person to seek
either a certificate of need approval or exemption from certificate of need
review or which requires amendment of any License or the issuance of any
new
License or certificate for the CCRC Property;
(iv) any
other
development in the business or affairs of the Property Related Persons which
could have a Material Adverse Change; or
(v) any
actual, threatened or pending litigation with respect to the CCRC Property
or
the Property Related Persons;
in
each
case describing in detail satisfactory to the Lender in its reasonable
discretion the nature thereof and the action the Borrower proposes to take
with
respect thereto.
(e) Deficiency
Notices.
Without
implying any limitation on any other provisions of this Agreement or any
of the
other Loan Documents, the Borrower will furnish or cause to be furnished
to the
Lender reasonably promptly after receipt thereof copies of all (A) Deficiency
Notices, (B) Agency inspection reports, audits, surveys, investigations,
reviews
or evaluations, (C) relevant notices and written communications from any
state
or any Agency relating to material adjustments in reimbursement amounts or
to
rate reviews, modifications of rates, inflation adjustments, rate agreements
or
the like, and (D) responses by, or on behalf of, the Property Related Persons
with respect to any of the foregoing. The Borrower shall or shall cause the
Property Related Persons to promptly commence and diligently pursue the
correction of the subject of each Deficiency Notice, and shall correct the
subject of the Deficiency Notice promptly, but in any event prior to the
expiration of any period allowed by the Agency for correction. The Borrower
shall, at the Lender's request, promptly provide from time to time such cost
estimates, reports and other information as the Lender may require to
demonstrate to the Lender's satisfaction that the Property Related Persons
have
the financial and other ability to effect the correction and are taking the
actions required by this Section.
(f) Intentionally
Omitted.
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(g) Intentionally
Omitted.
(h) Census
Report and Surveys.
To the
extent permitted by all laws governing the privacy and confidentiality of
individually identifiable health information, the Borrower will furnish to
the
Lender promptly following the request of the Lender reports of the CCRC Property
periodic patient or resident census with a breakdown with respect to the
source
of payment, licensure survey results, accreditation survey results and such
other information relating to the operation of the CCRC Property as may
reasonably be requested by the Lender from time to time.
(i) Renewal
of Agreements.
The
Borrower will or will cause the Property Related Persons to take any and
all
steps necessary to renew all Resident Agreements, and Operating Agreements
and
Management Contracts, except to the extent that the Borrower deems such renewal
to be, in the exercise of prudent business judgment, contrary to the best
interests of the Borrower.
(j) Financial
Statements.
The
Borrower shall provide Lender the following financial statements and information
on a continuing basis during the term of the Loan:
(i) Within
one
hundred twenty (120) days after the end of each calendar year, unaudited
financial statements of Borrower and audited financial statements of Guarantor,
prepared by a nationally recognized accounting firm or independent certified
public accountant acceptable to Lender, which statements shall be prepared
in
accordance with GAAP, and shall include a balance sheet and statement of
income
and expenses for the year then ended. Lender reserves the right to require,
after an Event of Default, annual audited financial statements of
Borrower.
(ii) Within
thirty (30) days after the end of each calendar month, unaudited monthly
financial statements of the operations of the CCRC Property, prepared in
accordance with GAAP, which statements shall include a balance sheet and
statement of income and expenses for the calendar month then ended, together
with a rent roll/census of the CCRC Property as of the end of such month,
certified by a representative of Borrower to be true and correct to the best
of
the representative's knowledge and belief.
(iii) Within
forty-five (45) days of the end of each calendar quarter, a balance sheet
and
statement of income and expenses of Borrower and Guarantor for the quarter
then
ended, certified by a representative of Borrower and Guarantor, as applicable,
to be true and correct.
(iv) The
Lender
further reserves the right to require such other financial information of
Borrower, Guarantor and/or the CCRC Property in such form and at such other
times (including monthly or more frequently) as Lender shall reasonably deem
necessary, and Borrower agrees promptly to provide or to cause to be provided,
such information to Lender. All financial statements must be in the form
and
detail as Lender may from time to time reasonably request.
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(v) Within
forty-five (45) days after the end of each calendar quarter, a Compliance
Certificate in the form of Schedule
I
attached
hereto and certified by a representative of the Borrower to be true and correct
to the best of the representative's knowledge and belief.
(k) Compliance
with Healthcare Information Laws.
Without
limiting the generality of any other provision of this Agreement including,
without limitation, any other representation or warranty made herein, each
of
the Property Related Persons and the CCRC Property is in material compliance
with all applicable statutes, laws, ordinances, rules and regulations of
any
federal, state or local governmental authority primarily relating to the
confidentiality of patient healthcare information, including without limitation
the Health Insurance Portability and Accountability Act of 1996, as amended,
and
the rules and regulations promulgated thereunder (“HIPAA”)
(collectively, “Healthcare
Information Laws”).
The
Property Related Persons have maintained in all material respects all records
required to be maintained by any governmental agency or authority or otherwise
under the Healthcare Information Laws and there are presently no material
violations of the Healthcare Information Laws. Throughout the term of the
Loan,
the Property Related Persons will comply in all material respects with the
Healthcare Information Laws.
(l) Replacement
Reserve Escrow Account.
As
additional security for the Loan, upon request of Lender, Borrower shall
establish and maintain a capital repair reserve (the “Replacement
Reserve Escrow Account”)
with
Lender for payment of certain non-recurring types of costs and expenses incurred
by Borrower for interior and exterior work to the Facility, including, without
limitation, performance of work to the roofs, chimneys, gutters, downspouts,
paving, curbs, driveways, ramps, balconies, porches, patios, exterior walls,
exterior doors and doorways, floor coverings, windows, elevators and mechanical
and HVAC equipment (collectively, the “Repairs”)
provided such costs and expenses are incurred for repairs (A) not incurred
for
ordinary wear and tear at the Facility and (B) categorized under generally
accepted accounting principles as a capital expense and not as an operating
expense. Upon Lender's request that the Replacement Reserve Escrow Account
be
established and on each and every monthly payment date thereafter under the
Note
until the Note is fully paid and performed, Borrower shall deposit in the
Replacement Reserve Escrow Account concurrently with and in addition to the
monthly payment due under the Note a deposit to the Replacement Reserve Escrow
Account in an amount equal to one twelfth (1/12th) of $300 per Unit at the
Facility per annum.
All
sums
in the Replacement Reserve Escrow Account shall be held by Lender in the
Replacement Reserve Escrow Account to pay the costs and expenses of the Repairs
and Lender shall, to the extent funds are available for such purpose in the
Replacement Reserve Escrow Account, disburse to Borrower the amount incurred
and
paid by Borrower in performing such Repairs within 10 days following: (A)
the
receipt by Lender of a written request from Borrower for disbursement from
the
Replacement Reserve Escrow Account and a certification by Borrower that the
applicable item of Repair has been completed; (B) the delivery to Lender
of paid
invoices, receipts or other evidence satisfactory to Lender, verifying the
cost
and payment of performing the Repairs; (C) for disbursement requests in excess
of $10,000, the delivery to Lender of (1) affidavits, lien waivers or other
evidence reasonably satisfactory to Lender showing that all materialmen,
laborers, subcontractors and any other parties who might or could claim
statutory or common law liens and are furnishing or have furnished material
or
labor to the Facility have been paid all amounts due for labor and materials
furnished to the Facility; and (2) a certification from an inspecting architect,
engineer or other consultant reasonably acceptable to Lender (the “Work
Inspector”)
describing the completed Repairs and verifying the completion of the Repairs
and
the value of the completed Repairs.
11
Lender
shall not be required to make advances from the Replacement Reserve Escrow
Account more frequently than once in any 30 day period or in an amount less
than
the lesser of $5,000 or the total cost of the Repairs for which the disbursement
is requested. In making any payment from the Replacement Reserve Escrow Account,
Lender shall be entitled to rely on such request from Borrower without any
inquiry into the accuracy, validity or contestability of any such
amount.
The
Replacement Reserve Escrow Account shall not, unless otherwise explicitly
required by applicable law, be or be deemed to be escrow or trust funds.
The
Replacement Reserve Escrow Account shall be held in a separate account. Interest
on the funds contained in the Replacement Reserve Escrow Account shall be
paid
by Lender to Borrower upon payment in full of the Loan.
Upon
the
occurrence of an Event of Default, Lender may, but shall not be obligated,
to
apply at any time the balance then remaining in the Replacement Reserve Escrow
Account against the Loan in whatever order Lender shall subjectively determine,
together with the Make-Whole Breakage Amount arising on account of such payment.
Upon full payment of the Loan in accordance with its terms or at such earlier
time as Lender may elect, the balance of the Replacement Reserve Escrow Account
plus all interest thereon then in Lender's possession shall be paid over
to
Borrower and no other party shall have any right or claim thereto. Lender
shall
have a perfected security interest in the Replacement Reserve Escrow Account
as
additional security to secure payment of the Note and Borrower shall execute
and
deliver to Lender such further financing statements and take such other action
as Lender may require to evidence and/or perfect its security interest in
the
Replacement Reserve Escrow Account, including, without limitation, the execution
and delivery to Lender of a pledge and security agreement in form reasonably
satisfactory to Lender.
Funds
held
in the Replacement Reserve Escrow Account are solely for the protection of
Lender and entail no responsibility on Lender's part beyond the payment of
the
respective items for which they are held following receipt of bills, invoices
or
statements therefor in accordance with the terms hereof and beyond the allowing
of due credit for the sums actually received. Upon assignment of the Loan
by
Lender, any funds in the Replacement Reserve Escrow Account shall be turned
over
to the assignee and any responsibility of Lender, as assignor, with respect
thereto shall terminate.
(m) Management
of the CCRC Property.
The
management of the CCRC Property shall be by either: (i) Borrower or an entity
affiliated with Borrower approved by Lender for so long as Borrower or said
affiliated entity is managing the CCRC Property in a first class manner;
or (ii)
a professional property management company approved by Lender. Such management
by an affiliated entity or a professional property management company shall
be
pursuant to a written agreement approved by Lender. Any management agreement
shall provide for a maximum allowable management fee of 5% of gross revenues.
In
no event shall any manager be removed or replaced or the terms of any management
agreement modified or amended without the prior written consent of Lender.
After
an Event of Default or a default under any management agreement then in effect,
which default is not cured within any applicable grace or cure period, Lender
shall have the right to terminate, or to direct Borrower to terminate, such
management agreement upon 30 days' notice and to retain, or to direct Borrower
to retain, a new management agent approved by Lender. It shall be a condition
of
Lender's consent to any management agreement, whether with an affiliate of
Borrower or otherwise, that such manager enter into an agreement with Lender
whereby the manager acknowledges and agrees to the aforesaid rights of Lender
and as to such other matters as Lender may reasonably require.
12
(n) Net
Operating Income Test.
Subject
to the cure rights set forth below, it shall be an immediate Event of Default
if
the Net Operating Income is less than $1,000,000, to be tested as of the
end of
each calendar quarter. Borrower may cure a default under this Section 3.1(n)
upon payment to the Lender, within 45 days of the end of the calendar quarter
upon which the default occurs, of (i) in the case of the first such default,
(x)
$100,000, which amount shall be applied to reduce the outstanding principal
balance of the Note (as defined in the Security Instrument), in such order
as
Lender shall determine, and (y) $10,000, which amount shall be paid to Lender
as
a waiver fee and shall not be applied to payment of the Note, and (ii) in
the
case of the second such default, (x) $500,000, which amount shall be applied
to
reduce the outstanding principal balance of the Note (as defined in the Security
Instrument), in such order as Lender shall determine, and (ii) $20,000, which
amount shall be paid to Lender as a waiver fee and shall not be applied to
payment of the Note. No cure shall be available in the case of the third
such
default. Borrower will provide Lender with satisfactory evidence confirming
compliance with the provisions of this Section 3.1(n) within forty-five (45)
days after the close of each calendar quarter in the form of the Compliance
Certificate attached hereto as Schedule
I.
No
Make-Whole Breakage Amount shall be due on account of the payments under
Section
3.1(n).
(o) Intentionally
Omitted.
(p) State
Mandated Reserve Account.
Borrower
shall maintain with Lender at all times while the Loan is outstanding, the
State
of Pennsylvania mandated reserve account (the “State
Mandated Reserve Account”)
for the
CCRC Property.
(q) Commitment
Fee.
Upon the
execution of this Agreement, Borrower will pay Lender a loan commitment fee
in
the amount of $25,000.
(r) Transfer
of License.
Borrower
shall apply to the State of Pennsylvania to transfer the current Certificate
of
Licensure, issued by the Pennsylvania Department of Health, from ARC Brandywine
GP, LLC, the current license holder, to Borrower and shall provide Lender
a copy
of the new license upon issuance, but in any case, no later than June 30,
2006.
Such transfer shall not require the consent of Lender.
13
(s) Authorization
to Transact Business.
Within
ninety (90) days from the date hereof, Borrower shall provide Lender
satisfactory evidence that the Borrower is authorized to transact business
in
the commonwealth of Pennsylvania.
3.2. Negative
Covenants of the Borrower.
The
Borrower agrees as follows:
(a) Licenses.
The
Borrower will not allow any breach, withdrawal, rating reduction, restriction,
suspension, probation, failure to renew, cancellation, rescission, termination,
lapse or forfeiture of any License, permit, right, franchise or privilege
materially necessary for the ownership or operation of the CCRC Property
for the
purposes for which the CCRC Property is intended.
(b) Agreements.
The
Borrower will not allow any breach, withdrawal, restriction, suspension,
probation, failure to renew, cancellation, rescission, termination, lapse,
alteration, forfeiture or modification of any material Operating Agreements
and
Management Contracts.
(c) Participation
Agreements.
Neither
the Borrower nor any Property Related Persons will be a party to a Participation
Agreement with respect to the CCRC Property.
(d) Amendments;
Terminations.
The
Borrower will not amend or terminate or agree to amend or terminate any material
License or consent to a waiver of, or waive, any material provisions thereof
or
amend or terminate or agree to amend or terminate, any material Operating
Agreements and Management Contracts.
ARTICLE
IV
EVENTS
OF DEFAULT
4.1. Events
of Default.
Each of
the following shall be an Event of Default under this Agreement:
(a) Any
involuntary, imposed, required, actual, threatened or pending revocation,
suspension, termination, probation, restriction, limitation, forfeiture or
refusal to renew, any License necessary or material to the operation of the
CCRC
Property.
(b) If
the
United States Department of Health and Human Services, Office of the Inspector
General, or any federal, state or local Agency brings a claim, demand or
cause
of action against a Property Related Person or any shareholders, partners,
members, directors, officers, employees or agents of a Property Related Person
for violation of Section 1128A, 1128C or 1877 of the Social Security Act
(42
U.S.C. §§ 1320a-7a, 1320a-7c and 1395nn), the False Claims Act (31 U.S.C. § 3729
et seq.), or the Program Fraud Civil Remedies Act of 1986 (31 ▇.▇.▇. §▇▇▇▇ et
seq.).
(c) The
failure of Borrower timely and properly to observe, keep or perform any
covenant, agreement, warranty or condition herein required to be observed,
kept
or performed if such failure continues for 30 days after receipt by Borrower
of
written notice and demand for the performance of such covenant, agreement,
warranty or condition (the “Grace
Period”);
provided, however, that the Grace Period shall be extended up to an additional
60 days (for a total of 90 days from the date of default) if (i) Borrower
immediately commences and diligently pursues the cure of such default and
delivers (within the Grace Period) to Lender a written request for more time
and
(ii) Lender determines in good faith that (1) such default cannot be cured
within the Grace Period but can be cured within 90 days after the default,
(2)
no lien or security interest created by the Loan Documents will be impaired
prior to completion of such cure, and (3) Lender's immediate exercise of
any
remedies provided under the Loan Documents or by law is not necessary for
the
protection or preservation of the collateral subject to the Loan Documents
or
Lender's interest therein.
14
(d) The
occurrence of an Event of Default (as such term is defined therein) under
the
Security Instrument.
(e) Any
representation contained herein is false or misleading in any material respect
when made.
(f) The
occurrence of a default under Section 3.1(n) that is not cured pursuant to
the
terms set forth in such Section.
(g) The
occurrence of a default under the Pledge Agreement or Security Agreement
which
remains uncured after any applicable notice and cure periods.
ARTICLE
V
MISCELLANEOUS
5.1. Rights
of Lender.
Lender
may waive any default or Event of Default without waiving any other prior
or
subsequent default or Event of Default. Lender may remedy any Event of Default
without waiving the Event of Default remedied. Neither the failure by Lender
to
exercise, nor the delay by Lender in exercising, any right, power or remedy
upon
any Event of Default shall be construed as a waiver of such Event of Default
or
as a waiver of the right to exercise any such right, power or remedy at a
later
date. No single or partial exercise by Lender of any right, power or remedy
hereunder shall exhaust the same or shall preclude any other or further exercise
thereof, and every such right, power or remedy hereunder may be exercised
at any
time and from time to time. No modification or waiver of any provision hereof
or
consent to any departure by Borrower therefrom shall in any event be effective
unless the same shall be in writing and signed by Lender and then such waiver
or
consent shall be effective only in the specific instances, for the purpose
for
which given and to the extent therein specified. No notice to nor demand
on
Borrower in any case shall of itself entitle Borrower to any other or further
notice or demand in similar or other circumstances.
5.2. Heirs,
Successors and Assigns.
The
terms, provisions, covenants and conditions hereof shall be binding upon
Borrower, and the heirs, devisees, representatives, successors and assigns
of
Borrower including all successors in interest of Borrower in and to all or
any
part of the CCRC Property, and shall inure to the benefit of the Lender and
its
heirs, successors, substitutes and assigns. All references in this Agreement
to
Borrower or Lender shall be deemed to include all such heirs, devisees,
representatives, successors, substitutes and assigns.
15
5.3. Severability.
A
determination that any provision of this Agreement is unenforceable or invalid
shall not affect the enforceability or validity of any other provision and
any
determination that the application of any provision of this Agreement to
any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to any other
persons or circumstances.
5.4. Gender
and Number.
Within
this Agreement, words of any gender shall be held and construed to include
any
other gender, and words in the singular number shall be held and construed
to
include the plural, and words in the plural number shall be held and construed
to include the singular, unless in each instance the context otherwise
requires.
5.5. Counterparts.
This
Agreement may be executed in any number of counterparts with the same effect
as
if all parties hereto had signed the same document. All such counterparts
shall
be construed together and shall constitute one instrument, but in making
proof
hereof it shall only be necessary to produce one such counterpart.
5.6. Joint
and Several.
Where
two or more persons or entities have executed this Agreement as Borrower,
the
obligations of Borrower hereunder shall be joint and several.
5.7. Headings.
The
Section headings contained in this Agreement are for convenience only and
shall
in no way enlarge or limit the scope or meaning of the various and several
Sections hereof.
5.8. Amendments.
Neither
this Agreement nor any provision hereof may be changed, waived, discharged
or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination
is
sought.
5.9. Notice.
Any
notice or communication required or permitted hereunder shall be given in
the
manner set forth in the Security Instrument.
5.10. Time
Is
of the Essence.
Time is
of the essence of this Agreement.
5.11. Assignment
by Lender.
Lender
shall have the right to assign any portion of the Loan Documents and/or the
Loan
and to disseminate to such assignee or any proposed assignee any information
it
has pertaining to the Loan, including without limitation, complete and current
credit information on Borrower, any of its principals and any guarantor.
In the
event of such an assignment, Borrower will agree to such modifications to
the
Loan Documents as will facilitate such assignment, provided that such
modifications will not materially add to the obligations of Borrower. It
is
understood that any assignment by Lender will not result in additional cash
expense to Borrower. Neither the shareholders, nor the trustees of a real
estate
investment trust assignee shall be personally liable for the obligations
of such
trust and Borrower will agree to look solely to the trust property for the
payment of any claim hereunder.
5.12. Loan
Participation
.
Borrower acknowledges and agrees that Lender may, from time to time, sell
or
offer to sell interests in the Loan and Loan Documents to one or more
participants. Borrower authorizes Lender to disseminate to such participant
or
prospective participant, any information it has pertaining to the Loan,
including without limitation, complete and current credit information on
the
Borrower, any of its principals and guarantor. Upon request, Borrower shall
execute and deliver new or replacement promissory notes to Lender and the
assignee of Lender evidencing their respective prorata share of the Loan,
provided Borrower is provided with cancelled notes or other indemnities or
assurances with respect to notes being replaced, if any.
16
5.13. Confidential
Information.
During
the term of the Loan, Lender, its agents or employees may encounter individually
identifiable healthcare information or other confidential information relating
to the residents at the Facility or the CCRC Property (collectively, the
"Confidential
Information").
Unless
otherwise required by law, Lender, its agents and employees shall not disclose,
compile, aggregate, remove from the Facility or record in any manner any
Confidential Information, and shall not cause Borrower, any Property Related
Person, the Facility or the CCRC Property to violate any laws, regulations
or
ordinances intended to protect the privacy rights of the residents at the
Facility, including, without limitation, HIPAA or its implementing
regulations.
IN
WITNESS
WHEREOF, Borrower and Lender have hereunto caused these presents to be executed
on the date first above written.
REMAINDER
OF PAGE INTENTIONALLY BLANK
SIGNATURE
PAGES FOLLOW
17
SIGNATURE
PAGE OF BORROWER TO
ARC
BRANDYWINE, L.P., a Delaware limited partnership
|
By:
|
ARC
Brandywine GP, LLC, a Tennessee
limited liability company, its general partner |
|
By:
|
|
Name:
|
| Title: |
SIGNATURE
PAGE OF LENDER TO
| GUARANTY BANK, a federal savings bank | ||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
|
|
||
| Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Senior Vice President |
||
SCHEDULE
I
COMPLIANCE
CERTIFICATE
Quarterly
Net Operating Income Test
Guaranty
Bank
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇
▇▇▇▇▇
Attn:
Healthcare Finance Lending Division
|
RE:
|
Loan
Agreement dated December ___, 2005 (the “Agreement”),
by and between ARC Brandywine, L.P. (the “Borrower”),
and Guaranty Bank
|
The
undersigned officer of Borrower does hereby certify, to the best of his
knowledge and belief, that for the calendar quarter ending ____________,
20___(the “Calendar
Quarter”):
1. No
Event
of Default has occurred or exists except ____________________
___________________________________________.
___________________________________________.
2. The
CCRC
Property quarterly Net Operating Income was:
|
Required:
|
$1,000,000
|
Actual: $__________
3. The
financial statements of Borrower and the CCRC Property and the rent roll/census
attached hereto are true and correct. Copies of the financial statements
of
Guarantor are attached.
4. Attached
hereto are copies of all matters with respect to which Borrower is required
to
give Lender notice under Section 3.1(d) of the Loan Agreement.
5. Capitalized
terms not defined herein shall have the meanings given to such terms in the
Agreement.
6. The
manner
of calculation of the above is attached.
ARC
BRANDYWINE, L.P., a Delaware limited
partnership
By: ARC
Brandywine GP, LLC, a Tennessee
limited
liability company, its general partner
|
By:
|
|
Name:
|
| Title: |
Exhibit
A
LEGAL
DESCRIPTION
CCRC
PROPERTY
PREMISES
A
ALL
THAT
CERTAIN LOT OR PIECE OF GROUND SITUATE IN WEST BRANDYWINE TOWNSHIP, ▇▇▇▇▇▇▇
COUNTY, PENNSYLVANIA, BOUNDED AND DESCRIBED ACCORDING TO ALTA/ASCM LAND TITLE
SURVEY FOR FREEDOM VILLAGE AT BRANDYWINE, PREPARED BY ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ AND
ASSOCIATES, INC., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇, DATED MAY 16, 2005, AS FOLLOWS:
BEGINNING
AT A SPIKE ON THE TITLE LINE IN THE BED OF CALN MEETINGHOUSE ROAD (T-413),
A
CORNER OF LANDS NOW OR FORMERLY OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
HIS
WIFE; THENCE EXTENDING ALONG SAID TITLE LINE IN THE BED OF SAID ROAD THE
SIX (6)
FOLLOWING COURSES AND DISTANCES: (1) SOUTH 83 DEGREES 00 MINUTES 14 SECONDS
EAST
101.67 FEET TO A PK NAIL; (2) SOUTH 81 DEGREES 46 MINUTES 14 SECONDS EAST
160.73
FEET TO A PK NAIL: (3) SOUTH 72 DEGREES 08 MINUTES 14 SECONDS EAST 180.25
FEET
TO A PK NAIL; (4) SOUTH 70 DEGREES 14 MINUTES 14 SECONDS EAST 179.80 FEET
TO A
PK NAIL; (5) SOUTH 69 DEGREES 21 MINUTES 14 SECONDS EAST 295.20 FEET TO A
PK
NAIL; (6) SOUTH 71 DEGREES 03 MINUTES 57 SECONDS EAST 431.61 FEET TO A SPIKE
ON
THE LINE DIVIDING EAST BRANDYWINE AND WEST BRANDYWINE TOWNSHIPS; THENCE
EXTENDING THE ALONG SAME, CROSSING THE SOUTHERLY SIDE OF CALN MEETINGHOUSE
ROAD
AND ALONG LANDS NOW OR FORMERLY OF ▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, RESPECTIVELY, SOUTH 00 DEGREES 21 MINUTES 14 SECONDS WEST 609.79
FEET, TO A REBAR IN THE NORTH LINE OF LANDS NOW OR FORMERLY OF ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; THENCE EXTENDING ALONG SAID LANDS THE THREE
(3)
FOLLOWING COURSES AND DISTANCES: (1) LEAVING THE TOWNSHIP DIVIDING LINE,
SOUTH
85 DEGREES 10 MINUTES 24 SECONDS WEST 15.86 FEET TO A REBAR; (2) SOUTH 04
DEGREES 49 MINUTES 36 SECONDS EAST 174.90 FEET TO AN IRON PIN; (3) SOUTH
85
DEGREES 11 MINUTES 30 SECONDS WEST 1161.31 FEET TO A CORNER OF LANDS NOW
OR
FORMERLY OF COATESVILLE HOSPITAL CORPORATION; THENCE EXTENDING ALONG SAME,
ALONG
LANDS OF PREMISES "B" - TRACT I (AS SHOWN ON SAID PLAN), AND ALONG LANDS
NOW OR
FORMERLY OF ▇▇▇▇▇▇▇ ▇. AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, NORTH 05 DEGREES 30 MINUTES
14
SECONDS WEST, CROSSING A DRAINAGE EASEMENT AND RECROSSING THE SOUTHERLY SIDE
OF
CALN MEETINGHOUSE ROAD, 1284.26 FEET TO THE FIRST MENTIONED POINT AND PLACE
OF
BEGINNING. CONTAINING: 29.368 ACRES OF LAND, BE THE SAME MORE OR LESS.
1
PREMISES
B
ALL
THOSE
CERTAIN LOTS OR PIECES OF GROUND SITUATE IN WEST BRANDYWINE TOWNSHIP, ▇▇▇▇▇▇▇
COUNTY, PENNSYLVANIA, BOUNDED AND DESCRIBED ACCORDING TO AN ALTA/ASCM LAND
TITLE
SURVEY FOR FREEDOM VILLAGE AT BRANDYWINE, PREPARED BY ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ AND
ASSOCIATES, INC.,125 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇, DATED MAY 16, 2005, AS FOLLOWS:
TRACT
I
BEGINNING
AT A MAG NAIL SET ON THE TITLE LINE IN THE BED OF REECEVILLE ROAD (S.R. 4005),
THE SOUTHWESTERLY CORNER OF LANDS NOW OR FORMERLY OF ▇▇▇▇ AND ▇▇▇▇ ▇. MAX;
THENCE EXTENDING ALONG SAID LANDS AND CROSSING THE EASTERLY SIDE OF SAID
ROAD,
ALONG THE SOUTHERLY SIDE OF A SIGN/GRADING EASEMENT, NORTH 84 DEGREES 48
MINUTES
04 SECONDS EAST CROSSING A MONUMENT AT 30.14 FEET, A TOTAL DISTANCE OF 240.05
FEET TO A POINT 0.60' SOUTHWEST OF A MONUMENT FOUND, A CORNER OF LANDS NOW
OR
FORMERLY OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; THENCE EXTENDING ALONG
SAME, CROSSING A 20 FOOT WIDE WATER EASEMENT, NORTH 84 DEGREES 46 MINUTES
59
SECONDS EAST 509.84 FEET TO A REBAR SET IN THE WEST LINE OF PREMISES A,
HEREINABOVE DESCRIBED; THENCE EXTENDING ALONG SAID LANDS, SOUTH 05 DEGREES
30
MINUTES 14 SECONDS EAST 60.00 FEET TO A REBAR SET, A CORNER OF LANDS NOW
OR LATE
OF COATESVILLE HOSPITAL CORPORATION; THENCE EXTENDING ALONG SAID LANDS, THE
FOLLOWING TWO (2) COURSES AND DISTANCES: (1) RECROSSING SAID WATER EASEMENT,
SOUTH 84 DEGREES 46 MINUTES 59 SECONDS WEST 512.44 FEET TO AN IRON PIN; (2)
ALONG THE NORTHERLY SIDE OF A SIGN/GRADING EASEMENT, SOUTH 84 DEGREES 48
MINUTES
04 SECONDS WEST, CROSSING OVER A MAG NAIL SET ON THE EASTERLY SIDE OF PREMISES
B
- TRACT II HEREINBELOW DESCRIBED, ALONG THE NORTHERLY LINE OF THE SAME, CROSSING
OVER ANOTHER MAG NAIL SET ON THE EASTERLY SIDE OF SAID REECEVILLE ROAD, 239.05
FEET TO A MAG NAIL SET ON THE TITLE LINE IN THE BED OF SAID ROAD; THENCE
EXTENDING ALONG SAME, NORTH 03 DEGREES 58 MINUTES 08 SECONDS WEST 60.01 FEET
TO
THE FIRST MENTIONED POINT AND PLACE OF BEGINNING.
CONTAINING:
1.034 ACRES OF LAND, BE THE SAME MORE OR LESS.
TRACT
II
BEGINNING
AT A MAG NAIL SET ON THE EASTERN LEGAL RIGHT-OF-WAY LINE OF REECEVILLE ROAD
(S.R. 4005), 40 FEET WIDE AND ON THE SOUTH LINE OF TRACT I, HEREINABOVE
DESCRIBED; THENCE FROM SAID POINT OF BEGINNING, ALONG TRACT I, NORTH 84 DEGREES
48 MINUTES 04 SECONDS EAST 10.00 FEET TO A MAG NAIL SET; THENCE LEAVING SAID
LINE OF TRACT I, ALONG LANDS NOW OR LATE OF ▇▇▇▇▇▇▇ ▇. AND ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
THE FOLLOWING TWO (2) COURSES AND DISTANCES: (1) IN A SOUTHERLY DIRECTION,
SOUTH
03 DEGREES 58 MINUTES 08 SECONDS EAST 250.00 FEET TO AN IRON PIN; (2) SOUTH
84
DEGREES 48 MINUTES 04 SECONDS WEST 10.00 FEET TO A POINT ON THE EASTERN LEGAL
RIGHT-OF-WAY LINE OF REECEVILLE ROAD (S.R. 4005) 40 FEET WIDE; THENCE CONTINUING
ALONG SAID RIGHT-OF-WAY LINE IN A NORTHERN DIRECTION, NORTH 03 DEGREES 58
MINUTES 08 SECONDS WEST250.00 FEET TO THE POINT AND PLACE OF BEGINNING.
2
CONTAINING:
2,500 SQUARE FEET OF LAND, BE THE SAME MORE OR LESS.
BEING:
▇▇▇▇▇▇▇ COUNTY TAX PARCEL 29-7-172
EXCEPTING
THEREOUT AND THEREFROM: ALL THOSE LIFE ESTATE INTERESTS CONVEYED IN CONDOMINIUM
UNITS (FREEDOM VILLAGE AT BRANDYWINE, A CONDOMINIUM) IN VARIOUS DEEDS OUT
OF
FREEDOM VILLAGEAT BRANDYWINE LIMITED PARTNERSHIP (DECLARANT).
3