[Montchanin Loan Assignment]
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is
made and entered into as of January ____, 1998, among (i) Genesis Health
Ventures, Inc., a Pennsylvania corporation, in its capacity as the assigning
lender hereunder ("Genesis"), (ii) Elder Trust Operating Limited Partnership, a
Delaware limited partnership (the "Operating Partnership") and (iii) Senior
LifeChoice, LLC, a Pennsylvania limited liability company (together with its
successors and assigns, the "Borrower").
WHEREAS, Genesis and the Borrower entered into that certain
Construction Loan and Working Capital Deficit Agreement, dated as of September
30, 1997 (as may be amended or assigned from time to time, the "Loan
Agreement"), pursuant to which Genesis agreed to make a loan to the Borrower in
the aggregate principal amount of $9,500,000 (the "Loan"), and in connection
with which the Borrower executed and delivered to Genesis that certain Open-End
Mortgage and Security Agreement (the "Mortgage") in which Genesis was granted a
first priority lien in and to all of the property and premises, as improved from
time to time, located at Xxxxx 000, Xxxxxxxx Xxxx and Rockland Connector,
Brandywine Hundred, New Castle County, Delaware (the "Property") as well as a
security interest in Borrower's fixtures, equipment and other collateral
identified therein to secure the obligations of the Borrower in connection with,
among other things, the Loan.
WHEREAS, the Loan was evidenced by that certain Construction
Mortgage Note, dated as of September 30, 1997 (the "Note"), executed by
Borrower, and payable to the order of Genesis in the principal amount of
$9,500,000;
WHEREAS, simultaneously with the execution and delivery of the
Loan Agreement, the Borrower executed and delivered to Genesis that certain
Assignment of Rents and Leases and Collateral Assignment of Agreements Affecting
Real Estate (together, the "Assignments" and collectively with the Loan
Agreement, Note and Mortgage, and any all other documents executed in connection
therewith, as may be modified, replaced, renewed or amended from time to time,
the "Loan Documents");
WHEREAS, the Operating Partnership has agreed to purchase, and
Genesis has agreed to sell, transfer and assign to the Operating Partnership the
Note and all of Genesis' rights, title and interest therein and thereto, as well
as all of its rights, title and interest in and to each of the Loan Documents;
WHEREAS, the Operating Partnership wishes to become a party to
the Loan Agreement as a lender and is willing to assume the rights and
obligations of a lender therein contained;
WHEREAS, by executing this Agreement, Borrower is
acknowledging, agreeing and consenting to the assignment of all of Genesis'
rights, title and interests in and to the Loan Documents, and specifically, its
rights to all of the benefits as a secured party thereunder.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, hereby agree as follows:
1. CERTAIN DEFINITIONS.
For purposes of this Agreement, capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
2. ASSIGNMENT AND ASSUMPTION.
2.1 At or before 12:00 noon on January ____, 1998, the
Operating Partnership shall pay to Genesis, in immediately available funds, an
amount equal to __________________ Dollars ($__________) (the "Purchase Price").
Effective upon the date of receipt by Genesis of the Purchase Price (the
"Transfer Effective Date"), Genesis hereby irrevocably sells, assigns and
transfers to the Operating Partnership, without recourse, and the Operating
Partnership hereby irrevocably purchases, takes and assumes from Genesis the
Note, as well as all of the Loan Documents.
2.2 From and after the Transfer Effective Date, the Operating
Partnership shall be a party to the Loan Agreement as a lender for all purposes
thereof.
2.3 All principal payments that would otherwise be payable
from and after the Transfer Effective Date to or for the account of Genesis
pursuant to the Loan Agreement or the Note shall instead be payable to the
Operating Partnership.
2.4 All interest, fees and other amounts that otherwise accrue
for the account of Genesis from and after the Transfer Effective Date pursuant
to the Loan Agreement and the Note shall, instead, accrue for the account of,
and be payable to the Operating Partnership.
2.5 The parties hereto agree and acknowledge that effective
from and after the Transfer Effective Date, the Operating Partnership shall be
secured under, and shall be the beneficiary of the security interests and liens
granted under, the Mortgage, Loan Agreement, the Assignments and any and all of
the other Loan Documents to secure the obligations of the Borrower in connection
with the Loan, and that wherever the term "Lender" is used in any such document,
that term shall mean the Operating Partnership.
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2.6 Concurrently with the execution of this Agreement, Genesis
will provide to the Operating Partnership conformed copies of all of the Loan
Documents.
2.7 By executing and delivering this Agreement, the parties
confirm and agree as follows:
(a) other than the representation and warranty that
it is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim and that Genesis has performed all of its
obligations under the Loan Documents to date. Genesis makes no representation
and warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Agreement
or any other Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Agreement, the Note or any other
Loan Document;
(b) Genesis makes no representation and warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under any of the Loan Documents;
(c) the Operating Partnership has received a copy of
each of the Loan Documents together with such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Agreement; and
(d) the Operating Partnership will, independently
and without reliance upon Genesis, continue to make its own credit decisions in
taking or not taking action under the Loan Documents.
(e) the Operating Partnership hereby agrees to
indemnify, defend and hold harmless Genesis and its officers, directors,
employees and agents from and against any and all liabilities, losses, claims,
damages and expenses, including reasonable attorneys' fees and expenses, of any
kind or nature directly or indirectly resulting from or arising out of any of
the Loan Documents assigned hereunder, or any act or omission to act by Genesis
or its officers, directors, employees or agents in connection therewith,
including, without limitation, all claims for commissions to any broker or
intermediary, disputes between or among Borrower, any subcontractors, material
suppliers, purchasers and tenants, unless caused by the gross negligence or
willful malfeasance of Genesis or by Genesis' breach of its representations and
warranties under this Agreement, or failure to perform under this Agreement.
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3. MISCELLANEOUS.
3.1 This Agreement shall be binding and inure to the benefit
of the parties hereto and their respective heirs, legal representatives,
successors and assigns.
3.2 If any of the provisions or terms of this Agreement shall
for any reason be held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any of the other terms hereof, and this
Agreement shall be construed as if such unenforceable term has never been
contained herein.
3.3 This Agreement may be executed in one or more
counterparts, each of which shall constitute an original Agreement but all of
which together shall constitute one and the same instrument.
3.4 The descriptive headings herein are for convenience only
and shall not affect the meaning or construction of any of the provisions
hereof. Words used herein, regardless of the number and gender specifically used
shall be deemed and construed to include any other number, singular, or plural,
and any other gender, masculine, feminine or neuter, as the context requires.
3.5 All notices, requests, consents, demands, approvals and
other communications hereunder shall be deemed to have been duly given, made or
served if in writing and when delivered personally (including without limitation
by means of telex, telecopies or telefax systems), or the day following delivery
to a nationally recognized, reputable overnight courier service which guarantees
delivery within twenty-four hours, charges prepaid, to the respective parties to
this Agreement as follows:
(a) If to the Borrower, to:
Senior Life Choice, LLC
0000 Xxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Attention:
With a copy (which shall not constitute notice) to:
Heller, Kapustin, Xxxxxxxx & Xxxxx
000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx, Esq.
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(b) If to Genesis, to:
Genesis Health Ventures, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Chairman & Chief Executive Officer
Law Department - General Counsel - Corporate
(c) If to the Operating Partnership, to:
ElderTrust Operating Limited Partnership
000 XxXxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
The designation of the person to be so notified or the address
of such person for the purposes of such notice may be changed from time to time
by similar notice in writing, except that any communication with respect to a
change of address shall be deemed to be given and made when received by the
party to whom such communication was sent.
3.6 The validity, meaning and effect of this Agreement shall
be determined in accordance with the laws of the State of Pennsylvania without
regard to conflicts of laws principles thereof.
3.7 No provision of this Agreement may be amended, modified,
terminated or waived except by a writing duly executed by each party sought to
be bound by such amendment, modification, termination or waiver.
3.8 The parties hereto agree to execute any and all such
further documents as the Operating Partnership may require or request in order
to carry out the intentions of the parties hereunder.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, each party hereto has duly executed or
caused this Assignment and Assumption Agreement to be duly executed on such
party's behalf as of the date first above written.
GENESIS HEALTH VENTURES, INC.,
Assignor
By:__________________________________
Name:________________________________
Title:_______________________________
ELDERTRUST OPERATING LIMITED PARTNERSHIP
Assignee
By: ElderTrust, a Maryland real estate
investment trust, general partner
By:__________________________________
Name:________________________________
Title:_______________________________
SENIOR LIFE CHOICE, LLC
Borrower
By:__________________________________
Name:________________________________
Title:_______________________________
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