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EXHIBIT 10.8
AMENDED AND RESTATED LOAN AGREEMENT
BETWEEN
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.,
D/B/A ▇▇▇▇▇▇ CAPITAL, A DIVISION OF
▇▇▇▇▇▇ BROTHERS HOLDINGS, INC.
AND
CAPITAL SENIOR LIVING COMMUNITIES, L.P.
JUNE 30, 1997
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AMENDED AND RESTATED LOAN AGREEMENT
BETWEEN ▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
D/B/A ▇▇▇▇▇▇ CAPITAL, A DIVISION OF
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
AND
CAPITAL SENIOR LIVING COMMUNITIES, L.P.
Page
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ARTICLE 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Assignment of Landlord's Interest in Leases . . . . . . . . . . . 1
1.3 Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 Canton Regency . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.5 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Cottonwood Village . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Debtor Relief Laws . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 2
1.9 Existing Loan . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.10 Existing Loan Documents . . . . . . . . . . . . . . . . . . . . . 4
1.11 Financial Statements . . . . . . . . . . . . . . . . . . . . . . 4
1.12 Financing Statements . . . . . . . . . . . . . . . . . . . . . . 4
1.13 Governmental Authority . . . . . . . . . . . . . . . . . . . . . 4
1.14 Governmental Requirements . . . . . . . . . . . . . . . . . . . . 4
1.15 The ▇▇▇▇▇▇▇▇ . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.16 HCP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.17 Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.18 Insurance Policies . . . . . . . . . . . . . . . . . . . . . . . 5
1.19 Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.20 Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.21 Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.22 Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.23 Loan Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.24 Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.25 Mortgages . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.26 NHP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.27 NHP Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.28 NHP Note Pledge . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.29 Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.30 Operators . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.31 Partnership Agreement . . . . . . . . . . . . . . . . . . . . . . 7
1.32 Partnership Interests . . . . . . . . . . . . . . . . . . . . . . 7
1.33 Partnership Pledge . . . . . . . . . . . . . . . . . . . . . . . 7
1.34 Partnership Properties . . . . . . . . . . . . . . . . . . . . . 7
1.35 Partnership Property Managers . . . . . . . . . . . . . . . . . . 7
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1.36 Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.37 Repurchase Agreement . . . . . . . . . . . . . . . . . . . . . . 8
1.38 Security Agreement . . . . . . . . . . . . . . . . . . . . . . . 8
1.39 Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.40 Title Company . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.41 Title Insurance Policies . . . . . . . . . . . . . . . . . . . . 8
1.42 Towne Centre . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 2. AGREEMENTS OF LENDER . . . . . . . . . . . . . . . . . . . . . . 8
2.1 Commitment of Lender . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Interest on the Loan, Adjustment of Interest . . . . . . . . . . 8
2.3 Limitation on Aggregate Amount of Advances . . . . . . . . . . . 9
2.4 Conditions to Tranche B Advances . . . . . . . . . . . . . . . . 9
2.5 Tranche A Advances . . . . . . . . . . . . . . . . . . . . . . 10
2.6 Future Acquisition . . . . . . . . . . . . . . . . . . . . . . 10
2.7 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.8 Conditions Precedent for the Benefit of Lender . . . . . . . . 10
2.9 Payment Procedure . . . . . . . . . . . . . . . . . . . . . . . 11
2.10 Full Recourse . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.11 Release by Lender: Further Assurances . . . . . . . . . . . . . 11
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF BORROWER . . . . . . . . . . 11
3.1 Organization and Authority of Borrower and its General Partner. 11
3.2 Execution and Delivery of Loan Documents . . . . . . . . . . . 12
3.3 Information Supplied by Borrower . . . . . . . . . . . . . . . 12
3.4 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . 12
3.5 Licenses, Permits . . . . . . . . . . . . . . . . . . . . . . . 12
3.6 No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.7 Access and Utilities . . . . . . . . . . . . . . . . . . . . . 13
3.8 Lien Potential . . . . . . . . . . . . . . . . . . . . . . . . 13
3.9 Complete Information . . . . . . . . . . . . . . . . . . . . . 13
3.10 Investment Company Act . . . . . . . . . . . . . . . . . . . . 13
3.11 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . 13
3.12 Intentionally Deleted . . . . . . . . . . . . . . . . . . . . . 13
3.13 Suits, Actions, etc. . . . . . . . . . . . . . . . . . . . . . 14
3.14 Title to the Property . . . . . . . . . . . . . . . . . . . . . 14
3.15 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . 14
3.16 Mortgage Debt . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.17 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.18 Illegal Activity . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 4. COVENANTS AND AGREEMENTS OF BORROWER . . . . . . . . . . 15
4.1 Compliance with Governmental Requirements . . . . . . . . . . . 15
4.2 Correction of Defects . . . . . . . . . . . . . . . . . . . . . 15
4.3 Underground Storage Tanks . . . . . . . . . . . . . . . . . . . 15
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4.4 Inspection of the Property . . . . . . . . . . . . . . . . . 15
4.5 Notices by Governmental Authority Fire and Casualty
Losses. etc. . . . . . . . . . . . . . . . . . . . . . . . . 15
4.6 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.7 Additional Acts . . . . . . . . . . . . . . . . . . . . . . . 16
4.8 Inspection of Property, Books and Records . . . . . . . . . . 16
4.9 Defense of Actions . . . . . . . . . . . . . . . . . . . . . 16
4.10 Prohibition of Assignment or Debt . . . . . . . . . . . . . . 16
4.11 Payment of Claims . . . . . . . . . . . . . . . . . . . . . . 17
4.12 Restrictions and Annexation . . . . . . . . . . . . . . . . . 18
4.13 Current Financial Statements and 1OK's . . . . . . . . . . . 18
4.14 Tax Receipts . . . . . . . . . . . . . . . . . . . . . . . . 18
4.15 Quarterly Reports . . . . . . . . . . . . . . . . . . . . . . 18
4.16 Maintenance of Securities . . . . . . . . . . . . . . . . . . 18
4.17 Loan Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.18 Affiliated Transactions . . . . . . . . . . . . . . . . . . . 19
4.19 Distribution Prohibition . . . . . . . . . . . . . . . . . . 19
4.20 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.21 Maintenance of Insurance on Partnership Properties . . . . . 20
ARTICLE 5. RIGHTS AND REMEDIES OF LENDER . . . . . . . . . . . . . . . . 20
5.1 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . 20
5.2 Cessation of Advances . . . . . . . . . . . . . . . . . . . . 20
5.3 No Waiver or Exhaustion . . . . . . . . . . . . . . . . . . . 20
ARTICLE 6. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 7. ENVIRONMENTAL COMPLIANCE . . . . . . . . . . . . . . . . . . 21
ARTICLE 8. GENERAL TERMS AND CONDITIONS . . . . . . . . . . . . . . . . 23
8.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.2 Modifications . . . . . . . . . . . . . . . . . . . . . . . . 24
8.3 Severability . . . . . . . . . . . . . . . . . . . . . . . . 24
8.4 Election of Remedies . . . . . . . . . . . . . . . . . . . . 24
8.5 Form and Substance . . . . . . . . . . . . . . . . . . . . . 24
8.6 No Third Party Beneficiary . . . . . . . . . . . . . . . . . 24
8.7 Number and Gender . . . . . . . . . . . . . . . . . . . . . . 24
8.8 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.9 APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . 24
8.10 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 24
8.11 WAIVER OF TRIAL BY JURY . . . . . . . . . . . . . . . . . . . 25
8.12 No Joint Venture . . . . . . . . . . . . . . . . . . . . . . 25
8.13 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.14 Renewal, Modification and Restatement . . . . . . . . . . . . 25
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LIST OF EXHIBITS:
Exhibit "A" Legal description of the Land.
Exhibit "B" Form of Request for Advance.
Exhibit "C" Partnership Properties, Partnership Property Managers and Operators
Exhibit "D" Partnership Property Debt
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AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (the "Loan Agreement") dated
as of June 30, 1997, is made by and between ▇▇▇▇▇▇ BROTHERS HOLDINGS INC.,
d/b/a/ ▇▇▇▇▇▇ CAPITAL, A DIVISION OF ▇▇▇▇▇▇ BROTHERS HOLDINGS INC., ("Lender"),
whose address is 3 World Financial Center, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and CAPITAL
SENIOR LIVING COMMUNITIES, L.P., a Delaware limited partnership ("Borrower"),
whose address is ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ with respect to a
loan in the principal sum of $77,000,000.00.
RECITALS
A. Reference is made to (i) that certain Loan Agreement dated as
of July 29, 1994 (the "First Agreement") between Bank One Texas, N.A. ("Prior
Lender") and Borrower and (ii) that certain Restatement of Loan Agreement dated
as of June 30, 1995, between Prior Lender and Borrower (the "Second
Agreement"). Lender and Borrower desire to restate and otherwise amend the
First Agreement and the Second Agreement in accordance with the terms of this
Loan Agreement.
B. Lender and Borrower agree as follows:
ARTICLE 1.
DEFINITIONS
For purposes of this Loan Agreement, the following terms shall have
the respective meanings assigned to them.
1.1 Advances. The term "Advances" shall mean a disbursement by
Lender of any of the proceeds of the Loan, which shall be used solely for the
purposes set forth in Section 1.21 herein.
1.2 Assignment of Landlord's Interest in Leases. The term
"Assignment of Landlord's Interest in Leases" shall mean an assignment by
Borrower to Lender of Borrower's interest in all leases covering all or a part
of the Property and all rights derived therefrom.
1.3 Borrower. The term "Borrower" shall mean all parties named
Borrower in the first paragraph of this Loan Agreement and any and all
subsequent record owners of the Property.
1.4 Canton Regency. The term "Canton Regency" shall mean that
certain congregate community owned by Borrower in Canton, Ohio commonly known
as Canton Regency Retirement Community as further described in Exhibit "A".
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1.5 Code. The term "Code" shall mean the Uniform Commercial Code
as in force in the State of Texas.
1.6 Cottonwood Village. The term "Cottonwood Village" shall mean
that certain congregate community owned by Borrower in Cottonwood, Arizona
commonly known as Cottonwood Village Retirement Community as further described
on Exhibit "A".
1.7 Debtor Relief Laws. The term "Debtor Relief Laws" shall mean
any applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, insolvency, reorganization, or similar laws affecting the rights
or remedies of creditors generally, as in effect from time to time.
1.8 Event of Default. The term "Event of Default" shall mean the
occurrence of any one or more of the following.
(a) A failure by Borrower to make any payment of
principal or interest on the Note when due;
(b) A failure by Borrower to comply with any of the other
terms or conditions specified herein and the continuation of such
failure, for a period of ten (10) days following the earlier of
Borrower's actual knowledge or written notice to Borrower of such
failure.
(c) The incorrectness of any material representation or
warranty made by Borrower to Lender in this Loan Agreement, provided,
however, that if such incorrectness is capable of being cured,
Borrower shall have the right to cure such incorrectness for a period
of thirty (30) days after the earlier of Borrower's actual knowledge
of such incorrectness or written notice to Borrower of such
incorrectness;
(d) The failure by Borrower, HCP, NHP and/or the Property
and/or any Partnership Properties and Improvements to comply in any
material respect with any Governmental Requirements including, without
limitation, environmental laws, The Americans With Disabilities Act of
1990, The Judicial Fair Housing Act, and any other law, rule or
regulation mandating accessibility; and the continuation of such
failure for a period of thirty (30) days following the earlier of
Borrower's actual knowledge or written notice to Borrower of such
failure;
(e) An inability of Borrower to satisfy any condition
specified herein as precedent to the obligation of Lender to make an
Advance;
(f) In the event ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇:
fail to remain active in the management of Borrower; or their
individual beneficial interest in Borrower's general partner shall
decrease by more than ten percent (10%) of their current levels any
time during the term of the Loan;
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(g) Retirement Living Communities, L.P. should no longer
be the general partner of Borrower;
(h) The appointment of a receiver, trustee, conservator,
or liquidator of Borrower, HCP, NHP, any general partner of Borrower,
any of the Property, any of the Partnership Properties, or any other
property of Borrower, HCP or NHP and such appointment is not rescinded
within thirty (30) days following the appointment;
(i) The filing of any voluntary petition seeking an entry
of an order for relief as a debtor in a proceeding under the United
States Bankruptcy Code or seeking reorganization or rearrangement or
taking advantage of any Debtor Relief Laws, concerning Borrower, any
general partner of Borrower; Retirement Living Communities L.P.;
Capital Retirement Group, Inc.; Retirement Living Fiduciary Corp;
Retirement Partnership, Ltd.; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇; ▇▇▇▇▇ ▇. ▇▇▇▇▇▇; HCP or
NHP; or the admitting of material allegations of a petition filed
against Borrower or any one or more of said parties, in any
bankruptcy, reorganization, insolvency, conservatorship, or similar
proceeding, or an admission in writing by Borrower, or any one or more
of said parties of an inability to pay its, his or their debts as they
become due;
(j) The filing of any involuntary petition seeking an
entry of an order for relief as a debtor in a proceeding under the
United States Bankruptcy Code or seeking reorganization or
rearrangement or taking advantage of any Debtor Relief Laws,
concerning Borrower, any general partner of Borrower; Retirement
Living Communities L.P.; Capital Retirement Group, Inc.; Retirement
Living Fiduciary Corp; Retirement Partnership, Ltd.; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇;
▇▇▇▇▇ ▇. ▇▇▇▇▇▇; HCP or NHP; and any such petition is not rescinded or
dismissed within thirty (30) days following such filing;
(k) The making of a general assignment for the benefit of
creditors by Borrower, any general partner of Borrower or HCP or NHP;
(l) There shall be a material adverse change in the
financial circumstances of Borrower, general partner of Borrower;
Retirement Living Communities L.P.; Capital Retirement Group, Inc.;
Retirement Living Fiduciary Corp; or HCP or NHP;
(m) Except as otherwise expressly permitted in the
Mortgage, any sale, exchange, assignment or other transfer or
conveyance of the Property or any interest therein or of any
Partnership Interest or interest therein, or of any Partnership
Properties or any interest therein or of any of the NHP Notes or any
interest therein;
(n) The termination or replacement of any Manager,
Operator or any Partnership Property Manager without Lender's prior
written approval;
(o) The occurrence of any default under the Repurchase
Agreement;
(p) The occurrence of any default under the Partnership
Pledges;
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(q) the occurrence of any default under the NHP Note
Pledge;
(r) the occurrence of any default under the NHP Notes;
(s) the subordination of the lien of the NHP Indenture or
any mortgage or deed of trust securing the NHP Indenture to any other
lien or encumbrance; or
(t) the occurrence of any default under any other Loan
Document beyond the expiration of any applicable grace or notice
periods.
1.9 Existing Loan. The term "Existing Loan" shall mean the "Loan"
as defined in the Second Agreement.
1.10 Existing Loan Documents. The term "Existing Loan Documents"
shall mean the "Loan Documents" as defined in the Second Agreement.
1.11 Financial Statements. The term "Financial Statements" shall
mean such audited and unaudited balance sheets, profit and loss statements,
reconciliations of capital and surplus, changes in financial condition,
schedules of sources and applications of funds, operating statements, with
respect to Borrower and the Property (Lender acknowledges that Financial
Statements with respect to the Property may be unaudited), and other financial
information of Borrower, as shall be reasonably required by Lender, from time
to time. All annual Financial Statements with respect to Borrower shall be
audited by a certified public accountant and certified by Borrower. All other
Financial Statement shall be certified by Borrower. All Financial Statements
shall be in form reasonably satisfactory to Lender using generally accepted
accounting principles, consistently applied.
1.12 Financing Statements. The term "Financing Statements" shall
mean the Form UCC-1 or other financing statements and finance filings, to be
filed in the appropriate offices for the perfection of a security interest in
any of the Property or Partnership Interests securing the Loan.
1.13 Governmental Authority. The term "Governmental Authority"
shall mean the United States, the state, the county, the city, or any other
political subdivision in which the Property is located, and any other political
subdivision, agency, or instrumentality exercising jurisdiction over Borrower,
HCP or NHP with respect to the Property or any Partnership Property.
1.14 Governmental Requirements. The term "Governmental
Requirements" shall mean all laws, ordinances, rules, and regulations of any
Governmental Authority applicable to Borrower, HCP, NHP, the Property or any
Partnership Property, including but not limited to those described above.
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1.15 The ▇▇▇▇▇▇▇▇. The term "The ▇▇▇▇▇▇▇▇" or "Eagle Valley" shall
mean that certain congregate care community owned by Borrower in Indianapolis,
Indiana known as The ▇▇▇▇▇▇▇▇ or Eagle Valley Retirement Community and as
further described on Exhibit "A".
1.16 HCP. The term "HCP" shall mean Healthcare Properties, L.P., a
Delaware limited partnership pursuant to that certain second amended and
restated limited partnership agreement of Healthcare Properties Inc. dated May
31, 1995.
1.17 Improvements. The term "Improvements" shall mean the
buildings, structures and other improvements located on the real property
constituting portions of the Property or any Partnership Property.
1.18 Insurance Policies. The term "Insurance Policies" shall mean
the insurance policies required pursuant to the terms of the Mortgage.
1.19 Land. The term "Land" shall mean those certain parcels or
tracts of the real property described on Exhibit "A" attached hereto and
incorporated herein by reference.
1.20 Lender. The term "Lender" shall mean the Lender named in the
first paragraph of this Loan Agreement and its successors and assigns.
1.21 Loan. The term "Loan" shall mean the Loan by Lender to
Borrower, in an amount not to exceed $77,000,000.00 to (i) pay or otherwise
take-out the Existing Loan and to take by assignment the Second Agreement and
the Existing Loan Documents from Bank One Texas, (ii) to fund amounts that may
be due from Borrower and that are not paid by Borrower under the Repurchase
Agreement in accordance with Section 2.5 of this Loan Agreement and (iii) to
fund amounts due in connection with the renovation and expansion of Cottonwood
Village in accordance with the development plan and use of proceeds schedule
delivered to and approved by Lender.
1.22 Loan Documents. The term "Loan Documents" shall mean this
Loan Agreement, the Mortgages (or deed of trust, security agreement and
assignment of rents, as the case may be), the Note, the Assignment of Leases,
the Security Agreement, the Repurchase Agreement, the Partnership Pledge, the
NHP Note Pledge, the Financing Statements, the Specific Assignment,
Subordination, and Attornment Agreement dated June 30, 1997 between Manager,
Borrower and Lender, and such other instruments evidencing, securing, or
pertaining to the First Agreement and the Second Agreement (as amended and
restated hereby) and the Loan as shall, from time to time, be executed and
delivered by Borrower, or any other party to Lender pursuant to this Loan
Agreement.
1.23 Loan Fees. The term "Loan Fees" is defined in Section 4.17.
1.24 Manager. The term "Manager" shall mean Capital Senior Living,
Inc.
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1.25 Mortgages. The term "Mortgages" shall mean: (i) that certain
Ohio Open-End Mortgage dated July 29, 1994 executed by Borrower as "Mortgagor"
benefitting Lender as "Mortgagee" concerning the Canton Regency as recorded in
Volume 1688, Page 222, ▇▇▇▇▇ County Official Records, ▇▇▇▇▇ County, Ohio as
modified and extended pursuant to that certain Modification and Extension of
Lien dated as of June 30, 1995 executed by Borrower and Bank One, as recorded
in ▇▇▇▇▇ County Official Records, ▇▇▇▇▇ County, Ohio (Instrument No. 95033519),
as further amended by that certain Second Modification and Extension of Lien
between Borrower and Lender, dated the date hereof and intended to be recorded
simultaneously with the execution of this Loan Agreement in the aforementioned
records; (ii) that certain Mortgage, Security Agreement, Assignment of Rents
and Fixture Filing dated July 29, 1994 executed by Borrower as "Mortgagor" to
the benefit of Lender as "Mortgagee" concerning ▇▇▇▇▇▇▇▇, as recorded as
Instrument No. 94-119830, in the Office of the Recorder, ▇▇▇▇▇▇ County, Indiana
as modified and extended pursuant to that certain Modification and Extension of
Lien dated as of June 30, 1995 executed by Borrower to the benefit of Bank One,
recorded as Instrument No. ▇▇-▇▇▇▇▇▇▇, in the Office of the Recorder, ▇▇▇▇▇▇
County, Indiana as further amended by that certain Second Modification and
Extension of Lien between Borrower and Lender, dated the date hereof and
intended to be recorded simultaneously with the execution of this Loan
Agreement in the aforementioned records; (iii) that certain Mortgage, Security
Agreement, Assignment of Rents and Fixture Filing dated July 29, 1994 executed
by Borrower as "Mortgagor" to the benefit of Lender as "Mortgagee" concerning
Towne Centre. as recorded as Instrument No. 94054609, in the Office of the
Recorder, of Lake County, Indiana as modified and extended pursuant to that
certain Modification and Extension of Lien dated as of June 30, 1995 executed
by Borrower and Bank One, recorded as Instrument No. 95041757, in the Office of
the Recorder, Lake County, Indiana, as further amended by that certain Second
Modification and Extension of Lien between Borrower and Lender, dated the date
hereof and intended to be recorded simultaneously with the execution of this
Loan Agreement in the aforementioned records; and (iv) that certain Deed of
Trust Assignment of Leases and Rents, Security Agreement and Financing
Statement dated July 29, 1994 executed by Borrower as "Trustor" to Lawyer's
Title of Arizona, Inc., an Arizona corporation, as Trustee for the benefit of
Lender concerning Cottonwood Village as recorded in Book 2875, Pages 128-152,
Official Records of Yavapai County, Arizona as modified and extended pursuant
to that certain Modification and Extension of Lien dated as of June 30, 1995
executed by Borrower and Bank One, recorded in Book 3049, Page 335, Office
Records, Yavapai County, Arizona, as further amended by that certain Second
Modification and Extension of Lien between Borrower and Lender, dated the date
hereof and intended to be recorded simultaneously with the execution of this
Loan Agreement in the aforementioned records. Each of the foregoing documents
are to secure payment of the Note and the payment and performance of all
obligations specified in the Mortgages and this Loan Agreement, and evidencing
a valid and enforceable first lien on the Property subject only to the matters
which Lender may approve as reflected in each Title Insurance Policy.
1.26 NHP. The term "NHP" shall mean NHP Retirement Housing
Partners I Limited Partnership, a Delaware limited partnership pursuant to that
certain third amended and restated agreement of limited partnership dated
September 23, 1986, as amended by that certain first amendment to third amended
and restated agreement of limited partnership dated January 23, 1995.
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1.27 NHP Notes. The term "NHP Notes" shall mean those certain NHP
Retirement Partners I 13% nonrecourse pension notes in the aggregate principal
amount of $11,925,500.00, made by NHP to Borrower pursuant to the terms of that
certain indenture dated September 17, 1986 between NHP and The National Bank of
Washington in the principal amount of $100,000,000.00 (the "NHP Indenture") and
secured by those certain mortgages and/or deeds of trust encumbering the
Partnership Properties owned by NHP and more particularly described in the NHP
Indenture.
1.28 NHP Note Pledge. The term "NHP Note Pledge" shall mean that
certain Security Agreement dated the date hereof between Borrower and Lender.
1.29 Note. The term "Note" shall mean that certain Promissory Note
dated of even date herewith, in the stated principal amount of $ 77,000,000.00,
executed by Borrower and payable to the order of Lender.
1.30 Operators. The term "Operators" shall mean those operating
lessees of the HCP Partnership Properties set forth opposite the applicable
Partnership Property on Exhibit C.
1.31 Partnership Agreement. The term "Partnership Agreement" shall
mean Borrower's limited partnership agreement under the Delaware Revised
Uniform Limited Partnership Act and the certificate of limited partnership
filed with the Secretary of State of Delaware on December 17, 1985, under
Borrower's former name Retirement Living Tax-Exempt Mortgage Fund Limited
Partnership, as amended.
1.32 Partnership Interests. The term "Partnership Interests" shall
mean the 47% limited partnership interest of Borrower in HCP together with all
commitments of Borrower to acquire additional limited partnership interests in
HCP.
1.33 Partnership Pledge. The term "Partnership Pledge" shall mean
that certain Assignment and Security Agreement dated the date hereof given by
Borrower to Lender with respect to Borrower's Partnership Interests in HCP.
1.34 Partnership Properties. The term "Partnership Properties"
shall mean those certain properties described on Exhibit C to this Loan
Agreement which are owned by HCP and NHP, as the case may be.
1.35 Partnership Property Managers. The term "Partnership Property
Managers" shall mean the property managers set forth opposite each Partnership
Property on Exhibit C to this Loan Agreement.
1.36 Property. "Property" shall mean collectively: Canton Regency,
Cottonwood Village, ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ Centre, as well as the Land and
Improvements and all other property (real and personal, fixture or otherwise)
related thereto constituting the "Mortgaged Property", as described in the
Mortgages, and the collateral described in the Security Agreement.
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1.37 Repurchase Agreement. The term "Repurchase Agreement" shall
mean that certain Master Repurchase Agreement dated as of the date hereof
between Borrower and ▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇") and each Transaction (as
defined in the Repurchase Agreement) entered into pursuant thereto and pursuant
to this Loan Agreement.
1.38 Security Agreement. The term "Security Agreement" shall mean
the certain Amended and Restated Security Agreement dated the date
hereof between Borrower and Lender.
1.39 Survey. The term "Survey" shall mean the most recent
certified as built ALTA survey of each of the retirement communities
constituting the Property and the Partnership Properties in Borrower's
possession satisfactory to Lender.
1.40 Title Company. The term "Title Company" shall mean Lawyers
Title Insurance Corporation.
1.41 Title Insurance Policies. The term "Title Insurance Policies"
shall mean the following policies of mortgage title insurance issued by Lawyers
Title Insurance corporation: (i) Policy Number 135-00497267 as endorsed
pursuant to that certain endorsement to title policy issued by the Title
Company as of the date hereof related to the Mortgage concerning Town Centre;
(ii) Policy Number ▇▇▇-▇▇-▇▇▇▇▇▇ related to the Mortgage concerning Canton
Regency as endorsed pursuant to that certain endorsement to title policy issued
by the Title Company as of the date hereof; (iii) Policy Number 135-00-547-933
related to the Mortgage concerning Cottonwood Village as endorsed pursuant to
that certain endorsement to title policy issued by the Title Company as of the
date hereof; and (iv) Policy Number ▇▇▇-▇▇-▇▇▇▇▇▇ related to the Mortgage
concerning The ▇▇▇▇▇▇▇▇ as endorsed pursuant to that certain endorsement to
title policy issued by the Title Company as of the date hereof .
1.42 Towne Centre. The term "Towne Centre" shall mean that certain
congregate care community owned by Borrower in Merrillville, Indiana commonly
known as Towne Centre Retirement Community as further described in Exhibit "A".
ARTICLE 2.
AGREEMENTS OF LENDER
2.1 Commitment of Lender. As of the date hereof, Lender has made
an initial Advance to Borrower of Tranche B (as defined in the Note) in the
amount of $5,640,238.20. Subject to the conditions hereof, and provided that an
Event of Default has not occurred, Lender will make further Advances to
Borrower of Tranche B and Tranche A in accordance with this Loan Agreement and
solely for the purposes set forth in Section 1.21.
2.2 Interest on the Loan, Adjustment of Interest. Interest on the
Loan, at the rate specified in the Note, shall be computed on the outstanding
balance of Advances and shall be computed with respect to each Advance only
from the date of such Advance. Since the term of
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the Loan may be reduced to less than the full stated term under various
circumstances, it is not possible at the time of execution of this Agreement to
determine whether interest charged under the Note together with other loan
charges constituting interest (herein called "Loan Financing Charges") will
exceed the maximum interest rate permitted by applicable law for the actual
term of the Loan. Therefore, the parties agree that at the end of the actual
term of the Loan (as it may be renewed or extended), the following calculations
will be made: (i) first, the Loan Fees (to the extent that they constitute
interest) shall be added to the interest charged, collected or received by
Lender under the Note, such total being hereinafter called the "Stated
Interest"; and (ii) second, the maximum amount of interest that may be charged
under applicable law(including, without limitation, Section 501 of the
Depository Institutions Deregulation and Monetary Control Act of 1980, Public
Law No. 96-221) for the actual term of the Loan on the principal balance
remaining unpaid from time to time shall be calculated. If the Stated Interest
exceeds the Maximum Interest (as defined in the Note), the amount of such
excess shall be credited to the principal amount of the Note or refunded
immediately to Borrower if such principal amount has theretofore been entirely
paid. In no event shall the amount of the Loan Fees together with the interest
charged, collected or received by Lender under the Note exceed the highest
interest rate permitted by applicable law for the actual term of the Loan.
2.3 Limitation on Aggregate Amount of Advances. In no event shall
Lender be required to make any Advances in which the aggregate will exceed
$77,000,000.00 or if the making of such Advance would cause Lender to violate
any law, rule or regulation to which Lender is subject limiting the amount that
may be advanced by Lender as contemplated in this Loan Agreement.
2.4 Conditions to Tranche B Advances. As a condition precedent to
each Advance of Tranche B (a "Tranche B Advance") hereunder, in addition to all
other requirements herein, Borrower must satisfy the following requirements
and, if required by Lender, deliver to Lender evidence of such satisfaction:
(a) Borrower shall deliver to Lender a Request for
Advance in the form attached hereto as Exhibit "B" at least three (3)
business days prior to the date such advance is to be made; in no
event may Borrower request an Advance after December 15, 1997;
(b) There shall then exist no Event of Default;
(c) The representations and warranties made in this Loan
Agreement and the other Loan Documents shall be true and correct on
and as of the date of each Tranche B Advance, with the same effect as
if made on that date;
(d) There shall be no material adverse change in or
modification of the financial condition of Borrower, HCP or NHP;'
(e) Each Tranche B Advance shall be in an amount equal to
at least $250,000.00;
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(f) The maximum aggregate amount of Tranche B Advances
(other than the initial Tranche B Advance) shall be $7,000,000.00;
Borrower shall have no right to request, and Lender shall have no
obligation to readvance any sums that may be prepaid by Borrower.
(g) Lender shall have received satisfactory evidence
(which may include an endorsement to the Title Insurance Policies or a
lien search with respect to each Property and a lien search with
respect to the Partnership Properties) that there are no liens or
encumbrances on the Properties or the Partnership Properties other
than those approved by Lender as of the date hereof and contained in
the Title Insurance Policies issued to Lender as of the date hereof.
(h) ▇▇▇▇▇▇ is holding Securities pursuant to the
Repurchase Agreement in with a Market Value equal to or greater than
$64,500,000.00
2.5 Tranche A Advances. Borrower acknowledges that Lender is
obligated, whether or not an Event of Default exists under this Loan Agreement
or any other Loan Documents, to pay to ▇▇▇▇▇▇ any payments Borrower is required
to make pursuant to the Repurchase Agreement in the event of a failure by
Borrower to make such payments. Such obligation of Lender shall remain in full
force and effect, notwithstanding the occurrence or continuation of an Event of
Default under this Loan Agreement or any other Loan Documents, until all
indebtedness evidenced by the Note (including the obligations of Borrower under
the Repurchase Agreement) shall have been paid in full and the Repurchase
Agreement has been terminated. Borrower acknowledges that any such
disbursements shall constitute an obligatory Advance of a portion of Tranche A
under the Note (each such advance, a "Tranche A Advance"). In the event of
such payments by Lender, a Tranche A Advance shall be made simultaneously with,
and in the amount of such payment and Borrower shall commence paying interest
on such Tranche A Advance as provided in the Note. Borrower further
acknowledges and agrees that, except as set forth in this Section 2.5, Borrower
shall have no right to request an Advance of Tranche A, and that the maximum
aggregate amount of Tranche A Advances shall not exceed $64,500,000.00.
2.6 Future Acquisition. Borrower understands and agrees that so
long as Borrower has outstanding obligations to Lender related to the Loan,
Borrower shall not acquire any other retirement community, nursing home
facility, or other real estate property without the Lender's prior written
consent.
2.7 No Waiver. No Advance shall constitute a waiver of any
condition precedent to the obligation of Lender to make any further Advance or
preclude Lender from thereafter declaring the failure of Borrower to satisfy
such condition precedent to be an Event of Default.
2.8 Conditions Precedent for the Benefit of Lender. All
conditions precedent to the obligation of Lender to make any Advance are
imposed hereby solely for the benefit of Lender, and no other party may require
satisfaction of any such condition precedent or be entitled to assume that
Lender will refuse to make any Advance in the absence of strict compliance with
such
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conditions precedent. All requirements of this Loan Agreement may be waived by
Lender, in whole or in part, at any time, in a writing signed by Lender.
2.9 Payment Procedure. All payments and prepayments made by
Borrower under the Note or this Loan Agreement shall be made to Lender at its
offices specified herein in immediately available funds before 2:00 p.m. New
York time, on the date that such payment is required to be made. Any payment
received and accepted by Lender after such time shall be considered for all
purposes (including the calculation of interest) to the extent permitted by
law, as having been made to Lender on the next following Business Day.
2.10 Full Recourse. The Loan is fully recourse to Borrower and
Borrower shall be fully liable for the indebtedness evidenced by the Note and
for the performance of all agreements in this Loan Agreement, the Mortgages and
the other Loan Documents.
2.11 Release by Lender: Further Assurances. Upon the satisfaction
of the Note and all other applicable obligations of Borrower arising under the
Loan Documents, including the payment in full of all principal, interest and
other sums due under the Note, the Loan Documents and the termination of the
Repurchase Agreement, Lender shall, at Borrower's cost and expense, promptly
take all necessary action, make all required deliveries and provide all release
documents and/or instruments required to terminate and release the collateral
security and liens provided by Borrower to secure the Loan. Further, Lender
agrees to cooperate with Borrower and, at Borrower's cost and expense, provide
such further documentation as may be reasonably required to better evidence,
confirm or acknowledge such release and termination of Lender's lien or
security rights and interests in and to the collateral security, it being
understood that the Loan may be repaid from proceeds arising from the sale of
such collateral security by Borrower in connection with the proposed initial
public offering by Capital Senior Living Corporation.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF BORROWER
Borrower hereby represents and warrants as follows:
3.1 Organization and Authority of Borrower and its General
Partner. Borrower is a duly organized, validly existing Delaware limited
partnership and in good standing under the applicable laws of Delaware, and is
qualified to do business and is in good standing in each state where its
business activities require such qualification, with full power and authority
to enter into this Agreement. Borrower's general partner, Retirement Living
Communities L.P., is an Indiana limited partnership in good standing under
applicable laws of Indiana and is qualified to do business and is in good
standing in each state where its business activities require such qualification
with full power and authority to enter into this Agreement. If the issuance of
any interest in Borrower, or in any constituent business entity of Borrower is
subject to any state or federal securities laws and/or the rules and
regulations of the Securities and Exchange Commission, each such issuance has
been and will be in compliance with all said laws and regulations to which it
is subject.
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3.2 Execution and Delivery of Loan Documents. The execution and
delivery of the Loan Documents executed or delivered by Borrower, and the
consummation of the transactions contemplated thereby: (i) have been duly
authorized by all actions required under the ten-ns and provisions of their
governing instruments, and to the best of Borrower's knowledge, the laws of the
State of New York, and/or any applicable requirement of a Governmental
Authority; (ii) create legal, valid and binding obligations on Borrower; (iii)
do not require the approval or consent of any Governmental Authority having
jurisdiction over Borrower, or the property of Borrower; and (iv) with respect
to Borrower, and to the best of knowledge of Borrower with respect to HCP and
NHP, do not and will not constitute a violation of, or default under, (A) the
governing instruments of Borrower, of HCP or NHP, (B) any requirement of a
Governmental Authority applicable to Borrower, HCP or NHP, or (C) any mortgage,
indenture, agreement, commitment, or instrument to which Borrower, HCP or NHP
is a party or by which any of their assets are bound, nor create or cause to be
created any mortgage, lien, encumbrance, or charge against the assets of
Borrower other than those expressly permitted by the Loan Documents.
3.3 Information Supplied by Borrower. The Financial Statements of
Borrower; Retirement Living Communities, L.P.; Capital Retirement Group, Inc.;
HCP and NHP heretofore delivered to Under are true, complete and correct in all
material respects, have been prepared on a consistent basis and fairly and
accurately present the respective financial conditions of the subjects thereof
as of the respective dates thereof. No material adverse change has occurred
since the respective dates thereof. Borrower has delivered true and correct
copies of the federal income tax returns of Retirement Living Fiduciary Corp.
3.4 Compliance with Laws. To Borrower's knowledge, the use of the
Property and the Partnership Properties comply with all Government
Requirements, applicable zoning ordinances, regulations and restrictive
covenants affecting the Property, the Partnership Properties and all other
requirements of a Governmental Authority, and all requirements for such use
have been satisfied.
3.5 Licenses; Permits. Borrower represents and warrants to
Lender that, to Borrower's knowledge, all necessary licenses, permits and other
necessary certificates have been issued in Borrower's or Manager's name with
respect to the Property (or in HCP's or the Operator's name or NHP's or the
applicable Partnership Property Manager's name, as applicable, with respect to
the Partnership Properties) and Borrower and Manager (or HCP or the applicable
Operator, or NHP or the applicable Partnership Property Manager, as applicable,
with respect to the Partnership Properties) is in good standing with all
Governmental Authorities in connection with all nursing home beds required to
be licensed and other facilities constituting a portion of the Property or the
Partnership Properties. Borrower represents and warrants to Lender that no
health care or similar licenses or permits are required for the Partnership
Properties owned by NHP. Borrower further represents and warrants that all
necessary and applicable certificates of occupancy, permits and other
appropriate authorization and approval matters from Governmental Authorities
have been issued and are in existence with regard to the Property and the
Partnership Properties. Borrower will provide Lender copies of all regulatory
surveys and reports required
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by Governmental Authorities for the nursing care facilities which Borrower, HCP
or NHP operates within 10 Business Days after Borrower's receipt thereof.
3.6 No Defaults. Borrower is not in default under any of the Loan
Documents, and no event has occurred which by notice, the passage of time or
otherwise would constitute an event of default under any of the Loan Documents.
None of Borrower, HCP or NHP is in default in the payment of any indebtedness
for borrowed money or under the terms and provisions of any agreement or
instrument evidencing any such indebtedness, and, to Borrower's knowledge, none
of Borrower, HCP or NHP is in default with respect to any order, writ,
injunction, decree or demand of any court or of any other requirement of a
Governmental Authority.
3.7 Access and Utilities. The Property and each Partnership
Property is in good condition and repair, is free of any material defects and
has adequate rights of access to public ways and all water, sanitary sewer and
storm drain facilities. All public utilities necessary or convenient to the
full use and enjoyment of the Property and each Partnership Property are
available at the boundaries of the Property and each Partnership Property and
same are in service. All roads necessary for the full utilization of the
Property and each Partnership Property for their intended purposes are present
or the necessary rights-of-way therefor have either been acquired.
3.8 Lien Potential. None of Borrower, HCP or NHP has made any
contract or arrangement of any kind which has given rise to (or the performance
of which by the other party thereto would give rise to) a lien or claim of lien
on the Property or the Partnership Properties or the Partnership Interests, or
other collateral covered by the Loan Documents, except for the collateral
documents executed in connection with the Loan and the NHP Notes.
3.9 Complete Information. No representation or warranty of
Borrower contained in any of the Loan Documents, and no statement contained in
any certificate, schedule, list, financial statement or other instrument
furnished to Lender by or on behalf of Borrower, HCP or NHP contains, or will
intentionally contain, any untrue statement of a material fact, or omits, or
will intentionally omit, to state a material fact necessary to make the
statements contained herein or therein not misleading. To Borrower's
knowledge, all information material to the transactions contemplated herein has
been expressly disclosed in writing by Borrower to Lender.
3.10 Investment Company Act. Borrower is not an investment company
as defined in the Investment Company Act of 1940, as amended.
3.11 Payment of Taxes. Borrower, HCP and NHP have filed all
federal, state and other tax returns and reports required to be filed, and has
paid all taxes as shown on said returns and reports and all assessments
received by it to the extent that such taxes and assessments have become due
(except to the extent that the same are being contested in good faith by
appropriate proceedings diligently prosecuted and as to which adequate reserves
have been set aside in conformity with generally accepted accounting
principles).
3.12 Intentionally Deleted.
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3.13 Suits, Actions, etc. There are no actions, suits, or
proceedings pending or, to Borrower's knowledge, threatened in any court or
before or by any individual, entity or Governmental Authority against or
affecting Borrower; Retirement Living Communities L.P.; Capital Retirement
Group, Inc.; Retirement Living Fiduciary Corp.; HCP or NHP which could have a
material adverse effect on the ability of each of any such parties, as
applicable, to perform their respective obligations under the Loan Documents or
otherwise, or against or affecting the Property, the Partnership Properties or
the Partnership Interests, or involving the validity, enforceability, or
priority of any of the Loan Documents, at law or in equity. The consummation
of the transactions contemplated hereby, and the performance of any of the
terms and conditions hereof and of the other Loan Documents by Borrower, will
not result in a breach of, or constitute a default in, any mortgage, deed of
trust, lease, promissory note, loan agreement, credit agreement, partnership
agreement, or other agreement to which Borrower or any of the forenamed
entities is a party or by which Borrower, HCP or NHP may be bound.
3.14 Title to the Property. Borrower holds full legal and
equitable title to the Property subject only to title exceptions set forth in
the Title Insurance Policies. Borrower holds full legal and equitable title to
the Partnership Interests and the NHP Notes subject to no liens or
encumbrances. HCP and NHP hold full legal and equitable title to the
respective Partnership Properties subject only to such liens and encumbrances
approved by Lenders as of the date hereof.
3.15 ERISA Compliance.
(a) As of the date hereof and throughout the term of the
Loan, Borrower is not and will not be an "employee benefit plan" as
defined in Section 3(3) of ERISA, which is subject to Title I of
ERISA, and (ii) the assets of Borrower do not and will not constitute
"plan assets" of one or more such plans for purposes of Title I of
ERISA, and
(b) As of the date hereof and throughout the term of the
Loan (i) Borrower is not and will not be a "governmental plan" within
the meaning of Section 3(3) of ERISA and (ii) transactions by or with
Borrower are not and will not be subject to state statutes applicable
to Borrower regulating investments of and fiduciary obligations with
respect to governmental plans.
3.16 Mortgage Debt. There are no mortgages, deeds of trust, or
similar liens or encumbrances securing any debt on any of the Partnership
Properties other than the liens securing the NHP Notes or as set forth on
Exhibit D to this Loan Agreement.
3.17 Solvency. Each of Borrower, HCP and NHP are solvent as of
the date hereof.
3.18 Illegal Activity. No portion of the Property or the
Partnership Properties, the NHP Notes or the Partnership Interests have been
purchased with the proceeds of illegal activity.
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ARTICLE 4.
COVENANTS AND AGREEMENTS OF BORROWER
Borrower hereby covenants and agrees as follows:
4.1 Compliance with Governmental Requirements. Borrower, HCP and
NHP shall timely comply in all material respects with all Governmental
Requirements and, if requested by Lender, deliver to Lender evidence of such
compliance.
4.2 Correction of Defects. Borrower shall correct or cause to be
corrected (a) any material defect in the Improvements, or (b) any encroachment
by any part of the Improvements or any other structure located on the Property
or any Partnership Property on any building line, easement, property line, or
restricted area.
4.3 Underground Storage Tanks. Borrower represents and warrants:
(i) Borrower has formally registered underground storage tanks ("UST's")
located at Towne Centre and Canton Regency with all Governmental Authorities;
(ii) the UST's are in full compliance with all Governmental Requirements; (iii)
to the best of Borrower's knowledge, the UST's do not leak and are in first
class condition; (iv) Borrower has conducted tightness tests on the UST's and
has provided or shall upon request provide Lender with copies of all such test
results, and shall comply with all future requirements, requests and
recommendations of Lender concerning the UST'S; (v) Borrower shall fully comply
with all future obligations and otherwise maintain said UST's in a manner so as
to comply with all future Governmental Requirements.
4.4 Inspection of the Property. Borrower shall permit, and shall
cause HCP and NHP to permit Lender, any Governmental Authority, and their
agents and representatives, to enter upon the Property or any Partnership
Property and any location for the purpose of inspection of the Property at all
reasonable times.
4.5 Notices by Governmental Authority Fire and Casualty Losses,
etc. Borrower shall timely comply with and promptly furnish, and cause HCP
and NHP to timely comply with and promptly furnish, to Lender true and complete
copies of any official notice or claim by any Governmental Authority pertaining
to the Property or any Partnership Property. Borrower shall promptly notify
Lender of any fire or other casualty or any notice of taking or eminent domain
action or proceeding affecting the Property or any Partnership Property.
4.6 Expenses. Whether or not the transactions contemplated under
this Loan Agreement and the Loan Documents shall be consummated, Borrower shall
pay all expenses in connection with such transactions, including, without
limitation, the cost and expenses of preparation of this Loan Agreement and of
any other document or instrument Lender considers necessary or appropriate with
respect to the Loan, the cost and expenses of or incident to the enforcement or
performance of and compliance with any of the provisions of this Loan Agreement
or any agreement or condition contained in any other document or instrument
required by Lender,
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and any other costs and expenses related to the transactions contemplated under
this Loan Agreement. Furthermore, Borrower agrees to reimburse Lender for all
other expenses incurred by Lender associated with the due diligence examination
of the Property, the Partnership Properties, the NHP Notes and the Partnership
Interests, review of all materials and records presented to Lender, travel
expenses incurred for inspection of the Property, and the Partnership
Properties, reasonable attorney's fees incurred and other costs and expenses
related to the Loan.
4.7 Additional Acts. In addition to the acts recited herein and
contemplated to be performed, executed and/or delivered by Borrower, Borrower
hereby agrees, at any time, and from time to time, to perform, execute and/or
deliver to Lender any and all such further acts, additional instruments, or
further assurances as may be necessary or proper to (i) implement the intent of
the parties under this Loan Agreement; (ii) correct any errors in this Loan
Agreement or any other instrument relating thereto or any other Loan Document;
(iii) assure Lender a valid and direct first lien and prior first perfected
security interest under the Loan Documents or any of them on the Property
and/or the Partnership Interest; (iv) create, perfect, preserve, maintain and
protect the liens and security interests created or intended to be created by
the Loan Documents; and (v) provide the rights and remedies to Lender granted
or provided for by the Loan Documents.
4.8 Inspection of Property, Books and Records. Borrower shall
permit, and shall cause HCP and NHP to permit, Lender, at all reasonable times:
(i) to examine and inspect the Property and the Partnership Properties; and
(ii) examine, inspect and copy the books and records of Borrower pertaining to
the Loan, the Property, the Partnership Properties and all contracts,
statements, invoices, bills, and claims related thereto and the Partnership
Interests. All such books and records shall be kept and maintained in
accordance with generally accepted accounting principles.
4.9 Defense of Actions. Lender may (but shall not be obligated
to) commence, appear in, or defend any action or proceeding purporting to
affect the Loan, the Property, the Partnership Interests or the Partnership
Properties, or the respective rights and obligations of Lender and Borrower
pursuant to this Loan Agreement. Lender may (but shall not be obligated to)
pay all necessary expenses, including attorneys' fees and expenses incurred in
connection with such proceedings or actions, which Borrower agrees to repay to
Lender upon demand.
4.10 Prohibition of Assignment or Debt.
(a) Borrower shall not assign or encumber any interest in
the Property, the Partnership Interests, or the NHP Notes, or consent
to the encumbrance of an interest in Borrower's general partner
without the prior written consent of Lender, and the general partner
of Borrower shall not assign or encumber any interest in Borrower
without the prior written consent of Lender except sales of limited
partnership units in Borrower in the ordinary course of business.
Borrower shall not (i) incur any other debt or contingent liability
except as may be approved in writing by Lender; (ii) pledge any assets
belonging to Borrower except as may be approved by Lender; or (iii)
dispose of any asset (personal property or real property) belonging to
Borrower without the prior written consent of
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Lender; provided, however, that with respect to the purchase of
inventory, supplies and equipment necessary for the day to day
operation of any one or more of the facilities comprising the
Property, and the purchase of any equipment necessary for the repair
and/or replacement of any equipment or improvement used or operated in
connection with any one or more of the facilities comprising the
Property, nothing herein shall prohibit such purchases, replacements
or dispositions or require Lender's approval; further provided
however, nothing herein is intended to revise or diminish Borrower's
rights stated in Section 2.5 above in connection with the acquisition
of other properties which meet the financial criteria set forth
therein. Borrower shall make no loans whatsoever to anyone without
the prior written consent of Lender.
(b) Neither HCP or NHP shall assign or encumber any
interest in the Partnership Properties without the prior written
consent of Lender. Neither HCP or NHP shall (i) incur any other debt
or contingent liability except as may be approved in writing by
Lender; (ii) any assets belonging to HCP or NHP except as may be
approved by Lender; or (iii) dispose of any asset (personal property
or real property) belonging to HCP or NHP without the prior written
consent of Lender; provided, however, that with respect to the
purchase of inventory, supplies and equipment necessary for the day to
day operation of any one or more of the facilities comprising the
Partnership Properties, and the purchase of any equipment necessary
for the repair and/or replacement of any equipment or improvement used
or operated in connection with any one or more of the facilities
comprising the Partnership Properties, nothing herein shall prohibit
such purchases, replacements or dispositions or require Lender's
approval. Neither HCP or NHP shall make any loans whatsoever to
anyone without the prior written consent of Lender.
(c) Without the prior written consent of Lender, Borrower
shall not enter into any merger or consolidation with, or sell, lease,
transfer or otherwise dispose of all or substantially all of its
assets to any entity.
(d) Borrower, HCP and NHP shall carry on and conduct
their business in substantially the same manner and substantially the
same field of enterprise as it is presently conducted.
4.11 Payment of Claims. Borrower, HCP or NHP shall promptly pay or
cause to be paid when due all costs and expenses incurred in connection with
the Property, the Partnership Properties and the Improvements, and Borrower,
HCP or NHP shall keep the Property and the Partnership Properties free and
clear of any liens, charges, or claims other than the lien of the Mortgage and
other liens approved in writing by Lender. Notwithstanding anything to the
contrary contained in this Loan Agreement, Borrower, HCP or NHP, provided such
entity does so in good faith and in diligent and continuous manner, may (a)
contest the validity or amount of any claim of any contractor, consultant, or
other person providing labor, materials, or services with respect to the
Property or the Partnership Properties, and (b) contest any tax or special
assessments levied by any Governmental Requirements, and such contest on the
part of Borrower, HCP or NHP shall not be a default hereunder and shall not
release Lender from its obligations to
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make Advances hereunder; provided, however, that during the pendency of any
such contest, Borrower, HCP or NHP, as applicable, shall furnish to Lender and
the Title Company an indemnity bond with a corporate surety satisfactory to
Lender and the Title Company, a new letter of credit issued by a financial
institution approved by Lender and the Title Company, or other security
acceptable to them, in an amount equal to twice the amount being contested plus
a reasonable additional sum to cover possible costs, interest, and penalties
and provided further that Borrower, HCP and NHP, as applicable, shall pay any
amount adjudged by a court of competent jurisdiction to be due, with all costs,
interest, and penalties thereon, before such judgment becomes a lien on the
Property or the Partnership Properties.
4.12 Restrictions and Annexation. Borrower shall not, and shall
not permit HCP or NHP to, impose any restrictive covenants or encumbrances
upon the Property or the Partnership Properties, execute or file any
subdivision plat affecting the Property or the Partnership Properties, take any
action whatsoever to convert the Property or the Partnership Properties or any
part thereof to a condominium or cooperative, or consent to any action taken by
any Governmental Authority without the prior written consent of Lender.
4.13 Current Financial Statements and 1OK's. Borrower shall
deliver to Lender current annual audited Financial Statements of Borrower,
along with a copy of any Form 10K filed with the Securities and Exchange
Commission within ninety (90) days after the end of Borrower's fiscal year. In
addition Borrower will promptly prepare and deliver, or cause to be prepared
and delivered, to Lender such other Financial Statements as Lender may from
time to time reasonably request.
4.14 Tax Receipts. Borrower shall furnish Lender with receipts, or
tax statements marked "Paid" to evidence the payment of all taxes levied on the
Property and the Partnership Properties on or before thirty (30) days prior to
the date such taxes become delinquent.
4.15 Quarterly Reports. Borrower will provide Lender with copies
of each Form 10-Q filed with the Securities and Exchange Commission, together
with quarterly unaudited Financial Statements, within 60 days of the end of
each calendar quarter.
4.16 Maintenance of Securities.
(a) At all times during the term of the Loan, Borrower
shall maintain Securities with a Market Value (as defined in the
Repurchase Agreement) of at least at least $64,500,000.00 in an
account maintained by ▇▇▇▇▇▇ pursuant to the Repurchase Agreement. On
the date hereof, Borrower shall sell and deliver to ▇▇▇▇▇▇ U.S.
Treasury issues (primary issue) ("U.S. Treasuries") with a maturity of
3 months, or such other U.S. Government obligations satisfactory to
Borrower and Lender with a maturity of less than 3 months, in either
case with a Market Value of at least $64,500,000.00, and enter into a
Repurchase Agreement with ▇▇▇▇▇▇ which provides for a Repurchase Date
on the date of such Securities' maturity. Unless the Loan has been
repaid in full as of each such Repurchase Date, Borrower shall on each
such Repurchase Date (i) repurchase the Securities pursuant to the
Repurchase Agreement, (ii) sell and deliver to ▇▇▇▇▇▇
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replacement U.S. Treasuries with a maturity equal to 3 months, or such
other U. S. Government obligations satisfactory to Borrower and Lender
with a maturity of less than 3 months, in either case with a Market
Value of at least $64,500,000.00, (iii) simultaneously enter into a
confirmation pursuant to the Repurchase Agreement with ▇▇▇▇▇▇ which
provides for a Repurchase Date on the date of such Securities'
maturity, and (iv) pay to ▇▇▇▇▇▇ a fee of $5,000.00 in connection with
the replacement of the Securities. Borrower and Lender agree and
acknowledge that all or a portion of the Repurchase Price may be used
by ▇▇▇▇▇▇ to purchase the replacement Securities.
(b) Borrower has collaterally assigned its interest in
the Repurchase Agreement to Lender as additional security for the
repayment of the Loan, and all payments due thereunder to Borrower,
whether as a result of the occurrence of an Event of Default under the
Repurchase Agreement or upon the Maturity Date, or otherwise, shall be
paid to Lender and applied to the payment of the indebtedness
evidenced by the Note in such order and priority as Lender may
determine in its sole discretion.
4.17 Loan Fees. On the date hereof, Borrower shall pay Lender an
administrative fee equal to $15,000.00.
4.18 Affiliated Transactions. Borrower agrees that all
transactions with third party entities will be fully negotiated and shall be on
an "arms-length" bona fide type basis. Although none of Borrower, HCP or NHP
is prohibited from entering into service agreements or other contracts with
affiliated entities, any such agreements shall be on competitive terms, and
shall otherwise be fair and equitable. Any agreement with a third party
affiliated entity (other than an agreement entered into in connection with an
initial public offering of Capital Senior Living, Inc. shall be subject to
review and approval by Lender and shall be subject to termination if same does
not meet with Lender's reasonable approval; provided however, Lender
acknowledges its consent and approval of management fees payable under the
management agreements approved by Lender as evidenced by the Specific
Assignment, Subordination and Attornment Agreement of June 30, 1997 between
Manager, Borrower and Lender.
4.19 Distribution Prohibition. Prior written approval from Lender
shall be required in connection with any proposed distribution by Borrower, to
any partner, investor, or other related affiliated entity except for the
reimbursement of actual expenses incurred and the payment of commissions and
fees to Borrower's general partner as provided for in the Partnership
Agreement.
4.20 ERISA.
(a) Borrower shall not engage in any transaction which
would cause any obligation, or action taken or to be taken, hereunder
(or the exercise by Lender of any of its rights under the Loan
Documents) to be a non-exempt (under a statutory or administrative
class exemption) prohibited transaction under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA").
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(b) Borrower further covenants and agrees to deliver to
Under such certifications or other evidence from time to time
throughout the term of the Loan as requested by Under in its sole
discretion, that (i) Borrower is not an "employee benefit plan" as
defined in Section 3(3) of ERISA; (ii) Borrower is not subject to
state statutes regulating investments and fiduciary obligations with
respect to governmental plans; and (iii) one or more of the following
circumstances is true:
(A) Equity interests in Borrower are publicly
offered securities, within the meaning of 29 C.F.R. Section
2510.3-101(b)(2);
(B) Less than 25 percent of each outstanding
class of equity interests in Borrower are held by "benefit
plan investors" within the meaning of 29 C.F.R. Section
2510.3-101(f)(2); or
(C) Borrower qualifies as an "operating company"
or a "real estate operating company" within the meaning of 29
C.F.R. Section 2510.3-101(c) or (e) or an investment company
registered under The Investment Company Act of 1940.
4.21 Maintenance of Insurance on Partnership Properties. HCP shall
maintain insurance with respect to each of the Partnership Properties owned by
HCP that meets the requirements of the Insurance Policies set forth in the
Mortgages unless such Partnership Properties are subject to mortgage debt as
set forth in Exhibit D, in which case such insurance shall meet the
requirements contained in such mortgages, and NHP shall maintain the insurance
required pursuant to the NHP Indenture with respect to each Partnership
Property owned by NHP.
ARTICLE 5.
RIGHTS AND REMEDIES OF LENDER
5.1 Acceleration. Upon the occurrence of an Event of Default,
subject to the terms and conditions of the Note, Under may, at its option,
declare the Loan immediately due and payable without notice of any kind.
5.2 Cessation of Advances. Upon the occurrence of an Event of
Default, the obligation of Lender to disburse the Loan and all other
obligations of Lender hereunder shall, at Lender's option, immediately
terminate.
5.3 No Waiver or Exhaustion. No waiver by Lender of any of its
rights or remedies hereunder, in the other Loan Documents, or otherwise, shall
be considered a waiver of any other or subsequent right or remedy of Lender, no
delay or omission in the exercise or enforcement by Lender of any rights or
remedies shall ever be construed as a waiver of any right or remedy of Lender;
and no exercise or enforcement of any such rights or remedies shall ever be
held to exhaust any right or remedy of Lender.
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ARTICLE 6.
INDEMNIFICATION
Borrower agrees to and does hereby indemnify Lender and hold Lender
harmless as follows:
(a) against any and all claims, demands, causes of action, loss,
damage, liabilities, costs and expenses (including, without limitation,
reasonable attorneys' fees and court costs and settlement costs) ("Losses")
asserted against or incurred by Lender by reason of, arising out of, or in
connection with. the Loan, the Partnership Interests, the Partnership Pledges,
the Repurchase Agreement, the NHP Note Pledge, the NHP Notes and/or any
violation or breach by Borrower of any of the terms and provisions of the Loan
Documents, unless such claims, demands, causes of action, loss damages,
liabilities, costs or expenses result from the gross negligence or willful
misconduct of Lender.
(b) Borrower shall, at its sole cost and expense, protect, defend,
indemnify, release and hold harmless the Lender from and against any and all
Losses (including, without limitation, reasonable attorneys' fees and costs
incurred in the investigation, defense, and settlement of Losses incurred in
correcting any prohibited transaction or in the sale of a prohibited loan, and
in obtaining any individual prohibited transaction exemption under ERISA that
may be required, in Lender's sole discretion) that Lender may incur, directly
or indirectly, as a result of a default under Sections 3.15 or 4.20 of this
Loan Agreement or any other provision herein that relates to ERISA.
ARTICLE 7.
ENVIRONMENTAL COMPLIANCE
Borrower represents that, except for medical wastes generated and
removed in compliance with all environmental laws and in the ordinary course of
operation of the Property and the Partnership Properties, there are no toxic
wastes or other toxic or hazardous substances or materials being generated,
stored or otherwise used or held on, under or about the Property or the
Partnership Properties (save and except the fuel oil stored in the underground
storage tanks described herein related to Towne Centre and Canton Regency), or
being transported to, from or across the Property or the Partnership
Properties, by Borrower or, to Borrower's knowledge, any other person, and
Borrower shall at no time permit the same. Borrower represents that it has
not, and to Borrower's knowledge no other person or other entity has, released
or otherwise discharged any such wastes, substances or materials on, under or
about the Property or the Partnership Properties.. In the event that any such
wastes, substances or materials are hereafter found or otherwise exist on,
under or about the Property or the Partnership Properties, Borrower shall take
all necessary and appropriate actions and shall spend all necessary sums to
cause the same to be cleaned up and immediately removed, and Lender shall in no
event be liable or responsible for any costs or expenses incurred in so doing.
Borrower shall at all times observe and satisfy the
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requirements of and maintain the Property and the Partnership Properties in
compliance with all federal, state and local environmental protection,
occupational, health and safety or similar laws, ordinances, restrictions,
licenses, and regulations, including but not limited to the Federal Water
Pollution Prevention and Control Act (33 U.S.C. Section 1251 et seq.), Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), Safe Drinking
Water Act (42 U.S.C. Section 300f u.), Toxic Substances Control Act (I 5 U.S.
C. Section 2601 et seq., the Clean Air Act (42 U.S.C. Section 7401 et seq.),
and Comprehensive Environmental Response of Compensation and Liability Act (42
U.S.C. Section 9601 et seq.). Should Borrower at any time default in or fail to
perform or observe any of its obligations under this Article 7, Lender shall
have the right, but not the duty, without limitation upon any of Lender's
rights pursuant thereto, to perform the same, and Borrower agrees to pay to
Lender, on demand, all costs and expenses incurred by Lender in connection
therewith, including without limitation reasonable attorneys' fees, together
with interest from the date of expenditure at the default rate specified in the
Note. Borrower hereby indemnities Lender and agrees to hold Lender harmless
from and against any loss incurred by or liability imposed on Lender by reason
of (i) Borrower's failure to perform or observe any of its obligations or
agreements under this Article 7, or (ii) any of its representations under this
Article 7, having been materially incorrect, including without limitation any
and all reasonable attorneys' fees and costs incurred in connection with any
lawsuit or court action, or any proceeding before or involving any state or
federal or other regulatory agency or other governmental agency. Borrower
further agrees that it shall indemnify, defend and hold Lender harmless from
and against any claim, action, suit, proceeding, loss, cost, damage, liability,
deficiency, fine, penalty, punitive damage or expense (including, without
limitation, reasonable attorneys' fees) resulting from, arising out of, or
based upon (i) the presence, release, use, generation, discharge, storage or
disposal of any hazardous or toxic wastes or materials on, under, in or about,
or the transportation of any such wastes to or from, the Property or the
Partnership Properties, or (ii) the violation, or alleged violation, of any
statute, ordinance, order, rule, regulation, permit, judgment or license
relating to the use, generation, release, discharge, storage, disposal or
transportation of hazardous or toxic wastes or materials on, under, in or
about, to or from, the Property or the Partnership Properties. This indemnity
shall include, without limitation, any damage, liability, fine, penalty,
punitive damage, cost or expense (including without limitation all
post-foreclosure cleanup and removal costs and expenses) arising from or out of
any claim, action, suit or proceeding for personal injury (including sickness,
disease or death), tangible or intangible property damage, compensation for
lost wages, business income, profits, or other economic loss, damage to the
natural resources or the environment, nuisance, pollution, contamination, leak,
spill, release or other adverse effect on the environment. The obligations of
Borrower and the rights of Lender under this Article 7 are in addition to and
not in substitution of the obligations of Borrower and rights of Lender under
the laws and regulations cited above in this Article 7, and any other similar
applicable laws. As used herein, the terms "toxic" or "hazardous" wastes,
substances or materials shall include, without limitation, all those so
designated and all those in any way regulated by any of the above-cited laws or
regulations, or any other present or future environmental or other similar laws
or regulations, as well as laboratory wastes, medical waste and biohazardous
waste, contaminated clothing, body fluids, contaminated medical instruments and
equipment, catheters, used bandages, gauzes, needles and other sharps.
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ARTICLE 8.
GENERAL TERMS AND CONDITIONS
8.1 Notices. All notices, demands requests, and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been given and received when presented personally or three (3)
business days after being deposited in a regularly maintained receptacle for
the United States Postal Service, postage prepaid, registered or certified,
return receipt requested, addressed to Borrower or Lender, as the case may be,
at the respective addresses set forth below or such other address as Borrower
or Lender may from time to time designate by written notice to the other as
herein required. The address for notices hereunder is:
Borrower: Capital Senior Living Communities, L.P.
c/o Capital Retirement Group Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Darko
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lender: ▇▇▇▇▇▇ Brothers Holdings, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇ Philips
Suite 2300 Marquis Two Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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8.2 Modifications. No provision of this Loan Agreement or the
other Loan Documents may be modified, waived, or terminated except by
instrument in writing executed by the party against whom a modification,
waiver, or termination is sought to be enforced.
8.3 Severability. In case any of the provisions of this Loan
Agreement shall for any reason be held to be invalid, illegal, or
unenforceable, such invalidity, illegality, or unenforceability shall not
affect any other provision hereof, and this Loan Agreement shall be construed
as if such invalid, illegal, or unenforceable provision had never been
contained herein.
8.4 Election of Remedies. Lender shall have all of the rights and
remedies granted in the Loan Documents and available at law or in equity, and
these same rights and remedies shall be cumulative and may be pursued
separately, successively, or concurrently against Borrower, or any property
covered under the Loan Documents at the sole discretion of Lender. The
exercise of, or failure to exercise, any of the same shall not constitute a
waiver or release thereof or of any other right or remedy, and the same shall
be nonexclusive.
8.5 Form and Substance. All documents, certificates, insurance
policies, and other items required under this Loan Agreement and the other Loan
Documents to be executed and/or delivered to Lender shall be in form and
substance satisfactory to Lender.
8.6 No Third Party Beneficiary. This Loan Agreement is for the
sole benefit of Lender, its successors and assigns, and Borrower, and is not
for the benefit of any third party.
8.7 Number and Gender. Whenever used herein the singular number
shall include the plural and the singular, and the use of any gender shall be
applicable to all genders. The duties, covenants, obligations, and warranties
of Borrower in this Loan Agreement shall be joint and several obligations of
Borrower, and of each Borrower, if more than one.
8.8 Captions. The captions, headings, and arrangements used in
this Loan Agreement are for convenience only and do not in any way affect,
limit, amplify, or modify the terms and provisions hereof.
8.9 APPLICABLE LAW. THIS LOAN AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE LAWS OF
THE UNITED STATES APPLICABLE TO TRANSACTIONS WITHIN SUCH STATE. THIS LOAN
AGREEMENT IS FULLY PERFORMABLE IN NEW YORK.
8.10 Entire Agreement. The Loan Documents constitute the entire
understanding and agreement between Borrower and Lender with respect to the
transactions arising in connection with the Loan and supersede all prior
written or oral understandings and agreements between Borrower and Lender with
respect to the matters addressed in the Loan Documents. Borrower hereby
acknowledges that, except as incorporated in writing in the Loan Documents,
there are not, and were not, and no persons are or were authorized by Lender to
make, any representations, understandings, stipulations, agreements or
promises, oral or written, with respect to the matters addressed in the Loan
Documents.
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8.11 WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, BORROWER, AND LENDER EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION
WITH THIS LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY MATTER ARISING
HEREUNDER OR THEREUNDER.
8.12 No Joint Venture. Notwithstanding anything to the contrary
herein contained, Lender, by entering into this Agreement or by taking any
action pursuant hereto, will not be deemed a partner or joint venturer with
Borrower, HCP or NHP.
8.13 Assignment. Lender hereby agrees that it shall not assign
this Loan Agreement or the other Loan Documents prior to the occurrence of an
Event of Default to any entity other than an affiliate of Lender without the
consent of Borrower.
8.14 Renewal, Modification and Restatement. This Loan Agreement is
being executed in renewal, modification and restatement of the First Agreement
and the Second Agreement, each executed by Borrower and Prior Lender. To the
extent the terms and provisions of this Loan Agreement conflict with or
otherwise contradict the terms and provisions of the First Agreement or the
Second Agreement, Borrower and Lender hereby agree that this Loan Agreement
shall be controlling.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
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EXECUTED and DELIVERED as of the date first recited.
LENDER:
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.,
D/B/A ▇▇▇▇▇▇ CAPITAL,
A DIVISION OF ▇▇▇▇▇▇ BROTHERS
HOLDING INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Title: Authorized Signatory
------------------------------------
BORROWER:
CAPITAL SENIOR LIVING COMMUNITIES,
L.P., a Delaware limited partnership
By: Retirement Living Communities, L.P.,
General Partner
By: Capital Retirement Group, Inc.,
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
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EXHIBIT "A"
I. CANTON REGENCY RETIREMENT COMMUNITY
CANTON, ▇▇▇▇▇ COUNTY, OHIO
Parcel No. 1
Situated in the Township of ▇▇▇▇▇▇▇, County of ▇▇▇▇▇, State of Ohio:
Known as and being a part of the Southeast Quarter Section 36,
Township-11 (▇▇▇▇▇▇▇ Township), Range-9, ▇▇▇▇▇ County, Ohio, and being
more particularly bounded and described as follows:
Beginning for the same at a point marked by a P.K. nail found at the
northeast ▇▇▇▇▇ of said Southeast Quarter of Section 36; Thence N 85
degrees 05' 26" W along a portion of the north line of said Southeast
Quarter Section 36, a distance of 840.17 feet to a point marked by an
iron bar found (said point also being defined as bearing S 85 degrees
05 (sic) 26" E - 704.62 feet with said quarter section line from a
point at the northwest ▇▇▇▇▇ of a (19.026 acre) tract of land formerly
owned by Petros Development, as described in Official Record Volume
257, Page 345), and being the true place of beginning for the tract of
land herein described, Thence S 04 degrees 19' 10" W along a common
line between the lands of Congregate Housing Partnership of Canton,
and said Petros Development, as described in Official Record Volume
412, Pace 820 in said Deed Record, a distance of 493.48 feet to a
point marked by an iron bar found, Thence S 85 degrees 05' 26" E
continuing along said common line, a distance of 76.18 feet to a point
marked by an iron bar set; Thence S 15 degrees 14' 46" E continuing
along said common line, a distance of 130.89 feet to a point marked by
an iron bar set on the north right-of-way line of 22nd Street N.W. -
60 feet wide, as dedicated in Plat Book 54, Page 106 in the ▇▇▇▇▇
County Records of Plats; Thence along a portion of the north
right-of-way line of said ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇. along the arc of a curve to
the left in a southwesterly direction, with said curve having a
central angle of 31 degrees 33' 21", a radius of 255.00 feet an arc
length of 140.45 feet, a distance of 140.45 feet to point marked by an
iron bar set on the east line of a 9.65 acre tract of land now or
formerly owned by ▇▇▇▇ ▇▇▇▇▇▇, as described in Deed Volume 2533, Page
640 in said Deed Records (last stated curve course has a chord bearing
and distance of S 58 degrees 58' 20" W - 138.71 feet); Thence N 04
degrees 37' 17" E along a portion of the east line of said ▇▇▇▇ ▇▇▇▇▇▇
tract, a distance of 104.38 feet to a point marked by an iron bar
found; Thence N 85 degrees 37' 21"W along the north line of said ▇▇▇▇
▇▇▇▇▇▇ tract of land, a distance of 712.00 feet to a point marked by
an iron bar found on the east line of a tract of land now or formerly
owned by K.P.C. Associates, as recorded in Official Record Volume
669, Page 344 in Deed Records; Thence N 04 degrees 19' 10" E along a
portion of the east line of said K.P.C. Associates tract of land, and
along a portion of the east line of a tract of land now or formerly
owned by ▇. ▇▇▇▇▇▇▇. as recorded in Official Record Volume 278, page
374 in said deed records, a distance of 600.00 feet to a point marked
by a stone found on the north line of said Southeast Quarter Section
36; Thence S 85 degrees 05' 26" E along a portion
Exhibit "A" - 1
33
of the north line of said Southeast Quarter Section 36, a distance of
704.62 feet to a point marked by an iron bar found and being the true
place of beginning and containing 10.009 acres of land more or less.
NOTE: Reference direction for the bearing system used in the above
description derived from Official Record Volume 257, Page 345, using
S. 04 degrees 40' 00" W for the east line of the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
Exhibit "A" - 2
34
EXHIBIT "A"
II. COTTONWOOD VILLAGE RETIREMENT COMMUNITY
MERIDIAN, YAVAPAI COUNTY, ARIZONA
A portion of the Northwest one quarter of the Southwest one quarter of
Section 34, Township 16 North, Range 3 East of the Gila and Salt River
Base and Meridian, Yavapai County, Arizona, being more particularly
described as follows:
COMMENCING for reference at the West quarter ▇▇▇▇▇ of said Section 34;
thence North 89 degrees 13 minutes 11 seconds East along the East-West
mid-section line of said Section 34, a distance of 87.60 feet to a
point;
thence South 00 degrees 15 minutes 00 seconds East, a distance 48.00
feet to the South right of way line of ▇▇▇▇▇▇ Avenue and the East
right of way line of ▇▇▇▇▇▇▇ Street;
thence North 89 degrees 13 minutes 11 seconds East along said
Southerly right of way line of ▇▇▇▇▇▇ Avenue, a distance of 401.51
feet to the TRUE POINT OF BEGINNING;
thence continuing North 89 degrees 13 minutes 11 seconds East along
said Southerly right of way line, a distance of 290.07 feet to a
point;
thence South 00 degrees 48 minutes 56 seconds East, a distance of
360.62 feet to a point;
thence South 89 degrees 42 minutes 40 seconds West, a distance of
238.69 feet to a point;
thence North 00 degrees 48 minutes 41 seconds West, a distance of
195.41 feet to a point;
thence South 89 degrees 05 minutes 15 seconds West, a distance of
51.40 feet to a point;
thence North 00 degrees 49 minutes 01 seconds West, a distance of
163.28 feet to the TRUE POINT OF BEGINNING.
Parcel No. 2:
A parcel of land located in the Northwest one-quarter of the Southwest
one-quarter of Section 34, Township 16 North, Range 3 East of the Gila
and Salt River Base and Meridian, Yavapai County, Arizona, being more
particularly described as follows:
COMMENCING for reference at the West quarter corner of said Section
34;
thence North 89 degrees 13 minutes 11 seconds East, along the
East-West mid-section line of said Section 34, a distance of 87.60
feet to a point;
Exhibit "A" - 3
35
thence South 00 degrees 15 minutes 00 seconds East, a distance of
48.00 feet to a point on the Southerly right- of-way of East ▇▇▇▇▇▇
Avenue and Easterly right-of-way of ▇▇▇▇▇▇▇ Street;
thence North 89 degrees 13 minutes 11 seconds East, along the said
Southerly right-of-way line of East ▇▇▇▇▇▇ Avenue, a distance of
291.58 feet to the TRUE POINT OF BEGINNING.
Parcel No. 3:
A parcel of land located in the Southwest quarter of Section 34,
Township 16 North, Range 3 East of the Gila and Salt River Base and
Meridian, Yavapai County, Arizona, more particularly described as
follows:
COMMENCING at the Northwest corner of said Southwest quarter, from
which the Northeast corner of said Southwest quarter bears North 89
degrees, 13 minutes, 11 seconds, East, a distance of 2722.03 feet;
thence North 89 degrees, 13 minutes, 11 seconds, East, along the North
line of said Southwest quarter, a distance of 87.64 feet (87.60 feet -
record); thence South 00 degrees, 14 minutes, 29 seconds, East, a
distance of 48.02 feet (South 00 degrees, 15 minutes, 00 seconds,
East, 48.00 feet - record) to the TRUE POINT OF BEGINNING;
Thence North 89 degrees, 11 minutes, 56 seconds, East, a distance of
291.63 feet (North 89 degrees, 13 minutes, 11 seconds, East, 291.58
feet - record); thence South 00 degrees, 48 minutes, 43 seconds, East,
a distance of 357.23 feet (South 00 degrees, 49 minutes, 01 seconds,
East, 347.19 feet - records); thence South 89 degrees, 43 minutes, 33
seconds, West (South 89 degrees, 42 minutes, 00 seconds, West -
record), a distance of 295.18 feet; thence North 00 degrees, 14
minutes 29 seconds, West (North 00 degrees, 15 minutes, 00 seconds,
West - record), along the East line of South ▇▇▇▇▇▇▇ Street, a
distance of 354.54 feet to the TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM all oil, minerals, ores and metals of every kind,
as reserved in Deed recorded in Book 187 of Deeds, Page 331.
Exhibit "A" - 4
36
EXHIBIT "A"
III. ▇▇▇▇▇▇▇▇ RETIREMENT COMMUNITY
(A/K/A EAGLE VALLEY RETIREMENT COMMUNITY)
INDIANAPOLIS, ▇▇▇▇▇▇ COUNTY, INDIANA
A part of the Southwest Quarter of Section 22, Township 16 North,
Range 2 East, in ▇▇▇▇▇▇ County, Indiana, more particularly described
as follows:
Commencing at the Southeast ▇▇▇▇▇ of said Southwest Quarter; thence
North 86 degrees 48 minutes 04 seconds West, along the South line of
said Quarter, 940.56 feet to the centerline of U.S. Highway 136
(Crawfordsville Road); thence North 60 degrees 32 minutes 36 seconds
West, along said centerline, 140.65 feet to the point of beginning;
thence continuing North 60 degrees 32 minutes 36 seconds West along
said centerline, 579.99 feet; thence North 29 degrees 27 minutes 24
seconds East 344.21 feet, thence South 60 degrees 32 minutes 36
seconds East 556.19 feet to the centerline of Valley Farms Road;
thence South 25 degrees 30 minutes 00 seconds West, along said
centerline 345.04 feet, the point of beginning.
Exhibit "A" - 5
37
EXHIBIT "A"
IV. TOWNE CENTRE RETIREMENT COMMUNITY (A/K/A MERRILLVILLE TOWN CENTER)
MERRILLVILLE, LAKE COUNTY, INDIANA
Parcel 1: Fee Simple
A Parcel of land in the South 1/2 of the Northeast 1/4 of Section 17,
Township 35 North, Range 8 West of the Second Principal Meridian, in
the Town of Merrillville, Lake County, Indiana, being more
particularly described as follows: Commencing at the Northeast ▇▇▇▇▇
of said Section 17; thence South 0 degrees 04 minutes 02 seconds West
1,321.79 feet along the East line of said Section 17, to the Point of
Beginning, said point being the Northeast ▇▇▇▇▇ of the South half of
the Northeast Quarter of said Section 17; thence continuing along said
last mentioned course 1,321.79 feet to the Southeast ▇▇▇▇▇ of the
South half of the Northeast Quarter of said Section 17; thence North
89 degrees 46 minutes 13 seconds West 100.00 feet along the South line
of the South half of the Northeast Quarter of said Section 17; thence
North 00 degrees 04 minutes 02 seconds East 350.00 feet; thence North
89 degrees 46 minutes 13 seconds West 580.10 feet; thence North 39
degrees 00 minutes 00 seconds West 353.23 feet-, thence North 40
degrees 00 minutes 00 seconds East 907.81 feet to the North line of
the South half of the Northeast Quarter of said Section 17; thence
South 89 degrees 50 minutes 37 seconds East 320.00 feet along the
North line of the South half of the Northeast Quarter of said Section
17 to the Point of Beginning; less the 10-foot strip lying in the
right-of-way for ▇▇▇▇ ▇▇▇▇▇▇ along the southernmost boundary of such
Parcel 1.
Parcel 2. Fee Simple
A parcel of land in the South 1/2 of the Northeast 1/4 of Section 17,
Township 35 North, Range 8 West of the Second Principal Meridian, in
the Town of Merrillville, Lake County, Indiana, being more
particularly described as follows: Commencing at the Northeast ▇▇▇▇▇
of said Section 17; thence South 0 degrees 04 minutes 02 seconds West
2,643.58 feet along the East line of said Section 17 to the Southeast
▇▇▇▇▇ of the South 1/2 of the Northeast 1/4 of said Section 17; thence
North 89 degrees 46 minutes 13 seconds West 100.00 feet along the
South line of the South 1/2 of the Northeast 1/4 of said Section to
the Point of Beginning, thence continuing along said last mentioned
course 500.00 feet; thence North 0 degrees 04 minutes 02 seconds East
200.00 feet; thence North 28 degrees 00 minutes 00 seconds West 170.25
feet; thence South 89 degrees 46 minutes 13 seconds East 580.10 feet;
thence South 0 degrees 04 minutes 02 seconds West 350.00 feet to the
Point of Beginning, Excepting therefrom the South 10 feet.
Parcel 3. As to Easement Rights Only
Non-exclusive right of way and easement for access, utility and
drainage over and across the following described property: A parcel of
land in the South half of the Northeast
Exhibit "A" - 6
38
quarter of Section 17, Township 35 North, Range 8 West of the Second
Principal Meridian, in the Town of Merrillville, Lake County, Indiana,
being more particularly described as follows: Commencing at the
Northeast ▇▇▇▇▇ of said Section 17; thence South 0 degrees 04 minutes
02 seconds West 2,643.58 feet along the East line of said Section 17
to the Southeast ▇▇▇▇▇ of the South half of the Northeast quarter of
said Section 17; thence North 89 degrees 46 minutes 13 seconds West
600.00 feet along the South line of the South half of the Northeast
quarter of said Section 17 to the Point of Beginning; thence
continuing along said last mentioned course 1,446.82 feet to a point
that is 600.00 feet East of the Southwest ▇▇▇▇▇ of the Northeast
quarter of said Section 17; thence North 0 degrees 00 minutes 00
seconds West 1,236.4 feet to the South line of the North 5 rods of the
West 80 rods of the said South half; thence South 89 degrees 50
minutes 37 seconds East 720.00 feet; thence North 0 degrees 00 minutes
00 seconds West 82.50 feet along the East line of the North 5 rods of
the West 80 rods; thence South 89 degrees 50 minutes 37 seconds East
1,008.32 feet along the North line of the South half of the Northeast
quarter of Section 17; thence South 40 degrees 00 minutes 00 seconds
West 907.81 feet; thence South 39 degrees 00 minutes 00 seconds East
353.23 feet; thence South 28 degrees 00 minutes 00 seconds East 170.25
feet; thence South 0 degrees 04 minutes 02 seconds West 200.00 feet to
the Point of Beginning.
As granted in a certain easement agreement dated October 9, 1985 and
recorded October 18, 1985 as Document No. 824907.
Exhibit "A" - 7
39
EXHIBIT B
APPLICATION FOR ADVANCE
LENDER: ▇▇▇▇▇▇ Brothers Holdings Inc. REQUEST FOR
d/b/a ▇▇▇▇▇▇ Capital, a Division ADVANCE NO.
---------
of ▇▇▇▇▇▇ Brothers Holdings, Inc.
BORROWER: Capital Senior Living Communities, L.P.
AMOUNT:
DATE: , 19__
------------
(a) This application and the items accompanying this application
(which are incorporated herein for all purposes) are delivered pursuant to the
Amended and Restated Loan Agreement (the "Loan Agreement") dated as of June 30,
1997, between Lender and Borrower, and each of the defined terms of which has
the same meaning when used herein or in the attachments unless indicated
otherwise. Borrower hereby certifies to Lender that this application is true
and correct in all respects and that this application and every item
incorporated herein are genuine and in all respects what they purport and
appear to be, and Borrower agrees that Lender may rely upon same in making the
requested Advance.
(b) Borrower hereby requests to borrow the principal amount of
$___________ (the "Requested Advance",) from Lender, during normal banking
business hours on ____________, 19__ (which date is not less than three
Business Days hence), which when borrowed will cause the principal amount then
outstanding on the Note to be $____________________.
(c) On the date hereof, and at the time the Requested Advance is
to be made, (a) the representations and warranties made in all of the Loan
Documents and certificates delivered pursuant thereto are and will be true and
correct in all material respects, (b) no Default or Event of Default has or
will have occurred and is or will be continuing, (c) Borrower has performed all
acts required by the Loan Documents to have been previously performed by
Borrower, and (d) no material adverse change in the financial condition of
Borrower, HCP or NHP has occurred and is continuing on the date hereof.
(d) The purpose of this Requested Advance is:
----------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
All proceeds of all previous Advances have been, and the proceeds of the
requested Advance will be, spent only for the purposes permitted by the Loan
Agreement and only for the purposes
Exhibit "B" - 1
40
specified in all Applications for Advances, and accompanying items, heretofore
or herewith delivered to Lender.
AS A FURTHER CONDITION TO ANY REQUEST FOR ADVANCE, AND IN ORDER FOR SUCH
REQUEST TO BE EFFECTIVE, THE ORIGINAL SIGNATURES OF BOTH ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ AND
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, THE CHIEF EXECUTIVE OFFICER AND CHIEF OPERATING OFFICER,
RESPECTIVELY, OF CAPITAL RETIREMENT GROUP, INC., THE GENERAL PARTNER OF
RETIREMENT LIVING COMMUNITEES, L.P. WHICH IS THE GENERAL PARTNER OF CAPITAL
SENIOR LIVING COMMUNITIES, L.P., MUST APPEAR BELOW.
Exhibit "B" - 2
41
The address of Borrower for Borrower:
Notice is:
14160 Dallas Parkway CAPITAL SENIOR LIVING
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ COMMUNITIES, L.P.,
a Delaware limited partnership
By: Retirement Living Communities, L.P.
By: Capital Retirement Group, Inc.,
General Partner
By:
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Chief Executive Officer
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chief Executive Officer
Exhibit "B" - 3
42
EXHIBIT C
PARTNERSHIP PROPERTIES
--------------------------------------------------------------------------------------------------------------
Partnership Operator (under
Owner Property Location Manager Operating Lease)
--------------------------------------------------------------------------------------------------------------
HCP Cambridge Cambridge, MA Capital Senior N/A
Living Inc.
--------------------------------------------------------------------------------------------------------------
HCP Cane Creek Martin, TN N/A Health South, successor by
merger to Rebound, Inc.
--------------------------------------------------------------------------------------------------------------
HCP Cedarbrook Nashville, TN N/A Health South, successor by
merger to Rebound, Inc.
--------------------------------------------------------------------------------------------------------------
HCP ▇▇▇▇▇▇▇▇ Creek Lancaster, SC N/A Health South, successor by
merger to Rebound, Inc.
--------------------------------------------------------------------------------------------------------------
HCP Sandybrook Mt. ▇▇▇▇, FL N/A Health South, successor by
merger to Rebound, Inc.
--------------------------------------------------------------------------------------------------------------
HCP Hearthstone Round Rock, TX N/A ARA Living Center of Texas
--------------------------------------------------------------------------------------------------------------
HCP ▇▇▇▇▇▇▇ Evansville, IN N/A AmHealth Inc.
--------------------------------------------------------------------------------------------------------------
HCP Trinity ▇▇▇▇▇ Forth Worth, TX N/A Integrated Health
Services, successor by
merger to Arbor Living
Center
--------------------------------------------------------------------------------------------------------------
NHP Amberleigh Williamsburgh, NY Capital Senior N/A
--------------------------------------------------------------------------------------------------------------
NHP Atrium of Carmichael, CA Capital Senior N/A
Carmichael
--------------------------------------------------------------------------------------------------------------
NHP Crosswood Oaks Citrus Heights, CA Capital Senior N/A
Living Inc.
--------------------------------------------------------------------------------------------------------------
NHP Heatherwood Southfield, MI Capital Senior N/A
Living Inc.
--------------------------------------------------------------------------------------------------------------
NHP Veranda Club Boca Raton, FL Capital Senior N/A
Living Inc.
--------------------------------------------------------------------------------------------------------------
Exhibit "C" - 1
43
EXHIBIT D
PARTNERSHIP DEBT
------------------------------------------------------------------------------------------------
Mortgage Debt
(other than NHP Indenture)
-----------------------------------
Partnership Original Current Amount
Owner Property Location Amount Outstanding
------------------------------------------------------------------------------------------------
HCP Cambridge Cambridge, MA
------------------------------------------------------------------------------------------------
HCP Cane Creek Martin, TN $ 2,200,000 $ 987,966
------------------------------------------------------------------------------------------------
HCP Cedarbrook Nashville, TN $ 2,000,000 $ 1,062,237
------------------------------------------------------------------------------------------------
HCP ▇▇▇▇▇▇▇▇ Creek Lancaster, SC
------------------------------------------------------------------------------------------------
HCP ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇ $ 1,500,000 $ 1,377,879
------------------------------------------------------------------------------------------------
HCP Hearthstone Round Rock, TX $ 4,700,000 $ 4,282,980
------------------------------------------------------------------------------------------------
HCP ▇▇▇▇▇▇▇ Evansville, IN
------------------------------------------------------------------------------------------------
HCP Trinity ▇▇▇▇▇ Forth Worth, TX
------------------------------------------------------------------------------------------------
NHP Amberleigh Williamsburgh, NY
------------------------------------------------------------------------------------------------
NHP Atrium of ▇▇▇▇▇▇▇▇▇▇ Carmichael, CA
------------------------------------------------------------------------------------------------
NHP Crosswood Oaks Citrus Heights, CA
------------------------------------------------------------------------------------------------
NHP Heatherwood Southfield, MI
------------------------------------------------------------------------------------------------
NHP Veranda Club Boca Raton, FL
------------------------------------------------------------------------------------------------
Exhibit "D" - 1