OF
CITIZENSHIP BETWEEN THE PARTIES THERETO, SO THAT IT IS TO BE BROUGHT IN A UNITED
STATES DISTRICT COURT, IT SHALL BE BROUGHT IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO OR ANY SUCCESSOR FEDERAL COURT HAVING ORIGINAL
JURISDICTION.
67
Section 10.15.
WAIVER OF JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF BORROWER AND LENDER HEREBY
WAIVES ANY RIGHT THAT EACH MAY HAVE TO A TRIAL BY JURY ON ANY CLAIM,
COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING OUT OF OR IN
ANY WAY RELATED TO THIS AGREEMENT OR THE LOAN, OR (B) IN ANY WAY CONNECTED WITH
OR PERTAINING OR RELATED TO OR INCIDENTAL TO ANY DEALINGS OF LENDER AND/OR
BORROWER WITH RESPECT TO THE LOAN DOCUMENTS OR IN CONNECTION WITH THIS AGREEMENT
OR THE EXERCISE OF EITHER PARTY'S RIGHTS AND REMEDIES UNDER THIS AGREEMENT OR
OTHERWISE, OR THE CONDUCT OR THE RELATIONSHIP OF THE PARTIES HERETO, IN ALL OF
THE FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE. BORROWER AGREES THAT LENDER MAY FILE A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING,
VOLUNTARY, AND BARGAINED AGREEMENT OF BORROWER IRREVOCABLY TO WAIVE ITS RIGHTS
TO TRIAL BY JURY AS AN INDUCEMENT TO LENDER TO MAKE THE LOAN, AND THAT, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY WHATSOEVER
(WHETHER OR NOT MODIFIED HEREIN) BETWEEN BORROWER AND LENDER SHALL INSTEAD BE
TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
68
IN WITNESS WHEREOF, Borrower and Lender have caused this Loan Agreement to be
properly executed as of the date first above written.
BORROWER:
WITNESS:
DENVER LOWRY JV, LLC, a Delaware limited liability company
By:
ARC Lowry, LLC, a Name:
Tennessee limited liability company, its Manager
By:
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
LENDER:
WITNESS:
GMAC COMMERCIAL MORTGAGE BANK, a Utah
industrial bank
By:
Name:
Name:
Title:
EXHIBIT A
LEGAL DESCRIPTION
A-1
EXHIBIT B
DESCRIPTION OF PLANS AND
PAYMENT AND PERFORMANCE BONDS
The Plans:
Payment and Performance Bonds:
B-1
EXHIBIT C
APPROVED BUDGET
C-1
EXHIBIT D
OWNERSHIP INTERESTS
Member's Name and Address
Initial Capital
Contribution
Percentage Interests
Denver Lowry Senior Housing, LLC
CNL Center at City Commons
450 South Orange Avenue
Orlando, Florida 32801
$10,000,000
80%
ARC Lowry, LLC
111 Westwood Place, Suite 200
Brentwood, Tennessee 37027
$2,500,000
20%
Total
$12,500,000
100%
D-1
EXHIBIT E
COMPLIANCE CERTIFICATE
GMAC Commercial Mortgage Corporation
8333 Douglas Avenue, Suite 1460
Dallas, Texas 75225
GMAC Commercial Mortgage Bank
100 South Wacker Drive, Suite 400
Chicago, Illinois 60606
Re:
Loan Agreement dated November _____, 2005 (together with amendments, if any, the
"Loan Agreement") by and between GMAC Commercial Mortgage Bank, as Lender, and
Denver Lowry JV, LLC, a Delaware limited liability company, as Borrower
The undersigned officer of the above named Borrower, does hereby certify that
for the quarterly financial period ending __________________:
1. No Default