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Exhibit
10.32
FORM OF CASH MANAGEMENT AGREEMENT
(SEVENTH MEZZANINE LOAN)
THIS CASH MANAGEMENT AGREEMENT (SEVENTH MEZZANINE
LOAN) (as may be amended, replaced,
restated, supplemented or otherwise modified from time to time,
this " Agreement
") is made as of the 21 st day of
December, 2007, by HCR VII
PROPERTIES, LLC , a Delaware limited
liability company (" Borrower ") having an
address at 333 N. Summit Street, Toledo, Ohio, 43604, and
JPMORGAN CHASE BANK, N.A. , a banking association chartered under the laws of the United
States of America, having an address at 270 Park Avenue, New York,
New York 10017 (in its capacity as collateral agent for itself and
any other Noteholder (as hereinafter defined) and together with its
successors and assigns, the " Lender ").
WHEREAS , pursuant to
that certain Loan Agreement (Seventh Mezzanine Loan), dated as of
the date hereof, by and among Lender and Borrower (as the same may
be amended, restated, replaced, supplemented or otherwise modified
from time to time, the " Loan
Agreement "), JPMorgan Chase Bank,
N.A., Column Financial, Inc. and Bank of America, N.A.
(collectively, the " Noteholders ") have made a
mezzanine loan in the aggregate principal amount of $250,000,000.00
(the " Loan ") to Borrower, evidenced by, among other things, that certain
Promissory Note (Seventh Mezzanine Loan), dated as of the date
hereof, and in favor of the Noteholders (as the same may be
amended, severed, split, extended, consolidated, replaced,
restated, supplemented or otherwise modified from time to time,
collectively, the " Note
");
WHEREAS , pursuant to
that certain Loan Agreement, dated as of the date hereof, by and
among each of the entities set forth on Schedule I attached thereto
(collectively, " Mortgage
Borrower "), HCR ManorCare Maryland
Properties, LLC, a Delaware limited liability company
(" Maryland Owner
"), and JPMorgan Chase Bank, N.A., in its capacity
as collateral agent for itself and any other Mortgage Noteholders
(as defined below) (together with its successors and assigns,
" Mortgage Lender
") (as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time, the "
Mortgage Loan Agreement
"), JPMorgan Chase Bank, N.A., Column
Financial, Inc., and Bank of America, N.A. (collectively, the
" Mortgage Noteholders
") have made a mortgage loan to Mortgage Borrower in
the aggregate principal amount of $3,000,000,000.00 (the "
Mortgage Loan "), which Mortgage Loan is
evidenced by, among other things, that certain Promissory Note,
dated as of the date hereof, and in favor of the Mortgage
Noteholders;
WHEREAS , pursuant to
that certain Loan Agreement (First Mezzanine Loan), dated as of the
date hereof, by and between JPMorgan Chase Bank, N.A., in its
capacity as collateral agent for itself and any other Noteholder
(as defined in the First Mezzanine Loan Agreement (as defined
below)) (together with its successors and assigns, "
First Mezzanine Lender
") and HCR I-A Properties, LLC, a Delaware
limited liability company (" IA
Borrower "), and HCR I-B
Properties, LLC, a Delaware limited liability company
(" IB Borrower
", and together with IA Borrower, individually,
collectively, jointly and severally, " First Mezzanine Borrower ")
(as may be amended, replaced, restated or otherwise modified from
time to time, the " First Mezzanine
Loan Agreement "), JPMorgan Chase
Bank, N.A., Column Financial, Inc. and Bank of America, N.A.
made a mezzanine loan to First Mezzanine Borrower in the aggregate
principal amount of $100,000,000.00 (the " First Mezzanine Loan ");
WHEREAS , pursuant to
that certain Loan Agreement (Second Mezzanine Loan), dated as of
the date hereof, by and between JPMorgan Chase Bank, N.A., in its
capacity as collateral agent for itself and any other Noteholder
(as defined in the Second Mezzanine Loan Agreement (as defined
below)) (together with its successors and assigns, "
Second Mezzanine Lender
") and HCR II
PROPERTIES, LLC , a Delaware limited
liability company (" Second Mezzanine
Borrower ") (as may be amended,
replaced, restated or otherwise modified from time to time, the
" Second Mezzanine Loan
Agreement "), JPMorgan Chase Bank,
N.A., Column Financial, Inc. and Bank of America, N.A. made a
mezzanine loan to Second Mezzanine Borrower in the aggregate
principal amount of $250,000,000.00 (the " Second Mezzanine Loan ");
WHEREAS , pursuant to
that certain Loan Agreement (Third Mezzanine Loan), dated as of the
date hereof, by and between JPMorgan Chase Bank, N.A., in its
capacity as collateral agent for itself and any other Noteholder
(as defined in the Third Mezzanine Loan Agreement (as defined
below)) (together with its successors and assigns, "
Third Mezzanine Lender
") and HCR III
PROPERTIES, LLC , a Delaware limited
liability company (" Third Mezzanine
Borrower ") (as may be amended,
replaced, restated or otherwise modified from time to time, the
" Third Mezzanine Loan
Agreement "), JPMorgan Chase Bank,
N.A., Column Financial, Inc. and Bank of America, N.A. made a
mezzanine loan to Third Mezzanine Borrower in the aggregate
principal amount of $250,000,000.00 (the " Third Mezzanine Loan ");
WHEREAS , pursuant to
that certain Loan Agreement (Fourth Mezzanine Loan), dated as of
the date hereof, by and between JPMorgan Chase Bank, N.A., in its
capacity as collateral agent for itself and any other Noteholder
(as defined in the Fourth Mezzanine Loan Agreement (as defined
below)) (together with its successors and assigns, "
Fourth Mezzanine Lender
") and HCR IV
PROPERTIES, LLC , a Delaware limited
liability company (" Fourth Mezzanine
Borrower ") (as may be amended,
replaced, restated or otherwise modified from time to time, the
" Fourth Mezzanine Loan
Agreement "), JPMorgan Chase Bank,
N.A., Column Financial, Inc. and Bank of America, N.A. made a
mezzanine loan to Fourth Mezzanine Borrower in the aggregate
principal amount of $250,000,000.00 (the " Fourth Mezzanine Loan ");
WHEREAS , pursuant to
that certain Loan Agreement (Fifth Mezzanine Loan), dated as of the
date hereof, by and between JPMorgan Chase Bank, N.A., in its
capacity as collateral agent for itself and any other Noteholder
(as defined in the Fifth Mezzanine Loan Agreement (as defined
below)) (together with its successors and assigns, "
Fifth Mezzanine Lender
") and HCR V
PROPERTIES, LLC , a Delaware limited
liability company (" Fifth Mezzanine
Borrower ") (as may be amended,
replaced, restated or otherwise modified from time to time, the
" Fifth Mezzanine Loan
Agreement "), JPMorgan Chase Bank,
N.A., Column Financial, Inc. and Bank of America, N.A. made a
mezzanine loan to Fifth Mezzanine Borrower in the aggregate
principal amount of $250,000,000.00 (the " Fifth Mezzanine Loan ");
and
WHEREAS , pursuant to
that certain Loan Agreement (Sixth Mezzanine Loan), dated as of the
date hereof, by and between JPMorgan Chase Bank, N.A., in its
capacity as collateral agent for itself and any other Noteholder
(as defined in the Sixth Mezzanine Loan Agreement (as defined
below)) (together with its successors and assigns, "
Sixth Mezzanine Lender
") and HCR VI
PROPERTIES, LLC , a Delaware limited
liability company (" Sixth Mezzanine
Borrower ") (as may be amended,
replaced, restated or otherwise modified from time to time, the
" Sixth Mezzanine Loan
Agreement "), JPMorgan Chase Bank,
N.A., Column Financial, Inc. and Bank of America, N.A. made a
mezzanine loan to Sixth Mezzanine Borrower in the aggregate
principal amount of $250,000,000.00 (the " Sixth Mezzanine Loan ");
NOW THEREFORE , in
consideration of the mutual promises contained herein and for other
good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
Section 1.
Defined
Terms. (a) As used herein the following
capitalized terms shall have the respective meanings set forth
below:
"
IA Borrower "
shall have the meaning ascribed to such term in the Recitals
hereof.
"
IB Borrower "
shall have the meaning ascribed to such term in the Recitals
hereof.
"
Accounts " shall
mean, individually and collectively as the context requires,
(a) the Seventh Mezzanine Deposit Account and (b) the
Seventh Mezzanine Sub-accounts.
"
Agreement "
shall have the meaning ascribed to such term in the introductory
paragraph hereof.
2
"
Borrower " shall
have the meaning ascribed to such term in the introductory
paragraph hereof.
"
Borrower Distributions
" shall have the meaning set forth in
Section 5(b) hereof.
"
Business Day "
shall mean any day other than a Saturday, Sunday or any other day
on which national banks in New York, New York are not open for
business.
"
Collateral "
shall have the meaning set forth in Section 5(c) hereof.
"
Eligible Account " shall mean an account separate and identifiable from all
other funds held by the holding institution that is either
(a) an account or accounts maintained with a federal or
state-chartered depository institution or trust company which
complies with the definition of Eligible Institution or (b) a
segregated trust account or accounts maintained with a federal or
state chartered depository institution or trust company acting in
its fiduciary capacity which, in the case of a state chartered
depository institution or trust company, is subject to regulations
substantially similar to 12 C.F.R. §9.10(b), having in either
case a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal and state
authority. An Eligible Account will not be evidenced by a
certificate of deposit, passbook or other instrument.
"
Eligible Institution
" shall mean a depository institution or trust
company, the short-term unsecured debt obligations or commercial
paper of which are rated at least "A-1+" by S&P, "P-1" by
Moody's and "F-1+" by Fitch in the case of accounts in which funds
are held for thirty (30) days or less (or, in the case of
Letters of Credit or accounts in which funds are held for more than
thirty (30) days, the long-term unsecured debt obligations of
which are rated at least "AA" by Fitch and S&P and "Aa2" by
Moody's).
"
Fifth Mezzanine Borrower
" shall have the meaning ascribed to such term in
the Recitals hereof.
"
Fifth Mezzanine Loan Agreement
" shall have the meaning ascribed to such term in
the Recitals hereof.
"
Fifth Mezzanine Lender
" shall have the meaning ascribed to such term in
the Recitals hereof.
"
Fifth Mezzanine Loan
" shall have the meaning ascribed to such term in
the Recitals hereof.
"
First Mezzanine Borrower
" shall have the meaning ascribed to such term in
the Recitals hereof.
"
First Mezzanine Lender
" shall have the meaning ascribed to such term in
the Recitals hereof.
"
First Mezzanine Loan
" shall have the meaning ascribed to such term in
the Recitals hereof.
"
First Mezzanine Loan Agreement
" shall have the meaning ascribed to such term in
the Recitals hereof.
"
Fitch " shall
mean Fitch, Inc.
"
Fourth Mezzanine Borrower
" shall have the meaning ascribed to such term in
the Recitals hereof.
"
Fourth Mezzanine Loan Agreement
" shall have the meaning ascribed to such term in
the Recitals hereof.
"
Fourth Mezzanine Lender
" shall have the meaning ascribed to such term in
the Recitals hereof.
"
Fourth Mezzanine Loan
" shall have the meaning ascribed to such term in
the Recitals hereof.
"
Interest Rate Floor " shall mean those certain interest rate hedge instruments sold
by HCR Healthcare, LLC in the notional amount of the aggregate
principal amount of the Mortgage Loan and the Mezzanine Loans,
having a LIBOR floor of 4%.
"
Lender " shall
have the meaning ascribed to such term in the introductory
paragraph hereof.
3
"
Loan " shall
have the meaning ascribed to such term in the Recitals
hereof.
"
Loan Agreement "
shall have the meaning ascribed to such term in the Recitals
hereof.
"
Low DSCR General Reserve Funds
" shall have the meaning ascribed to such term
in Section 3(c)(vi)
hereof.
"
Low DSCR General Reserve
Sub-account " shall have the meaning
ascribed to such term in Section 2(a)(iv) hereof.
"
Low DSCR Interest Floor Reserve
Funds " shall have the meaning
ascribed to such term in Section 3(c)(v )
hereof.
"
Low DSCR Interest Floor Reserve
Sub-account " shall have the meaning
ascribed to such term in Section 2(a)(iii )
hereof.
"
Maryland Owner "
shall have the meaning ascribed to such term in the Recitals
hereof.
"
Monthly Debt Service Payment
Amount " shall mean, with respect to
any Payment Date, a sum equal to the amount of interest due and
payable under the Loan on such Payment Date.
"
Moody's " shall
mean Moody's Investors Service, Inc.
"
Mortgage Borrower " shall have the meaning ascribed to such term in the Recitals
hereof.
"
Mortgage Cash Management
Account " shall mean the "Cash
Management Account" as defined in the Mortgage Cash Management
Agreement.
"
Mortgage Cash Management
Agreement " shall mean that certain
Cash Management Agreement, dated as of the date hereof, by and
among Mortgage Borrower, Maryland Owner and Mortgage Lender, as the
same may be amended, restated, replaced, suppl
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