Exhibit 4
4(e) (Atria, Kapson, ARV Lines)
PLEDGE AND SECURITY AGREEMENT
(MEMBERSHIP INTERESTS)
THIS PLEDGE AND SECURITY AGREEMENT (this "AGREEMENT") dated as of July
11, 2002 is by and between CTMPII FC LF (MS), a Cayman Islands exempted
company ("SECURED PARTY"), having an address at c/o Capital Trust, 410 Park
Avenue, 14th Floor, New York, N.Y. 10022, and LF STRATEGIC REALTY INVESTORS
II L.P., a Delaware limited partnership ("LFSRI"), having an address at 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, X.X. 00000, LFSRI II ALTERNATIVE PARTNERSHIP
L.P., a Delaware limited partnership ("LFAP"), having an address at 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, X.X. 00000, LFSRI II-CADIM ALTERNATIVE
PARTNERSHIP L.P., a Delaware limited partnership ("CADIM" and, together
with LFSRI and LFAP, "PLEDGOR"), having an address at 00 Xxxxxxxxxxx Xxxxx,
Xxx Xxxx, X.X. 00000, PROMETHEUS ASSISTED LIVING LLC, a Delaware limited
liability company ("PROMETHEUS ASSISTED"), LFSRI II ASSISTED LIVING LLC, a
Delaware limited liability company ("LFSRI ASSISTED") and PROMETHEUS SENIOR
QUARTERS LLC, a Delaware limited liability company ("PROMETHEUS SQ,"
together with Prometheus Assisted and LFSRI Assisted, collectively,
"COMPANY"), each having an address at 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, X.X.
00000.
PRELIMINARY STATEMENT
A. Secured Party has agreed to make a loan to LFSRI II SPV REIT CORP.,
a Delaware corporation ("LFSRI II BORROWER") and SENIOR QUARTERS FUNDING
CORP., a Delaware corporation ("SENIOR QUARTERS BORROWER," Senior Quarters
Borrower collectively with LFSRI II Borrower, the "BORROWER"), in the
aggregate principal sum of up to $65,000,000 (the "LOAN") in accordance
with the provisions of a certain Loan Agreement (the "LOAN AGREEMENT")
dated of even date herewith, which Loan shall be evidenced by, and payable,
together with interest thereon, in accordance with the provisions of a
certain promissory note, the "NOTE." The Note, the Loan Agreement, this
Agreement and all other documents of any nature whatsoever evidencing,
securing or guaranteeing the Loan in whole or in part, or otherwise
executed and delivered in connection with the Loan or relating thereto, as
the same may be modified or amended from time to time, are hereinafter
referred to collectively as the "LOAN DOCUMENTS".
B. Capitalized terms used and not otherwise defined herein shall have
the respective meanings given to such terms in the Loan Agreement.
C. As of the date hereof Pledgor is the owner of 100% of the Equity
Interests in Company which together with the right to receive dividends and
other distributions on account thereof from time to time is hereinafter
collectively referred to as, the "INTERESTS".
D. Pledgor has previously entered into that certain Pledge and
Security Agreement dated as of February 8, 2001 (as amended or modified
from time to time, the "ORIGINAL PLEDGE AGREEMENT"), whereby Pledgor has
pledged to Capital Trust, Inc., the Interests and any certificates
representing the Interests, along with certain other collateral, as set
forth in the Original Pledge Agreement.
E. Secured Party was willing to make the Loan only if Pledgor and the
Company agreed to execute and deliver this Agreement as additional security
for the payment of all principal, interest, additional interest and other
sums of any nature whatsoever which may or shall become due under the Note,
the Loan Agreement and the other Loan Documents (collectively, the "DEBT")
and the observance and performance by Borrower, Pledgor, the Company and
the other members of the Borrower Control Group of all the terms, covenants
and provisions of the Loan Documents on the part of Pledgor and the Company
to be observed and performed.
F. Pledgor and the Company will derive substantial economic benefit
from the Loan and, therefore, Pledgor and the Company desire to execute
this Agreement in order to satisfy the condition described in the foregoing
paragraph E.
G. Borrower has agreed to make available a portion of the proceeds
from the Loan to the Pledgor.
NOW, THEREFORE, in consideration of the foregoing and Secured Party's
agreement to make the Loan and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Pledgor and the
Company hereby represent and warrant to and covenant and agree with Secured
Party as follows:
SECTION 1. SECURITY INTEREST. As security for the due and punctual
payment in full of the Debt and for the due and punctual performance by
Borrower, Pledgor, the Company and the other members of the Borrower
Control Group of all of the terms, covenants and provisions of the Loan
Documents (the Debt, the payment thereof and the performance of the terms,
covenants and provisions of the Loan Documents being hereinafter
collectively called the "Obligations"), Pledgor hereby pledges,
hypothecates, assigns, and delivers to Secured Party and grants to Secured
Party a security interest in and lien on all of Pledgor's right, title and
interest now owned or hereafter acquired in and to the following described
property (the "Collateral"):
(a) the Interests and any certificates representing the
Interests;
(b) all cash, securities, dividends, distributions, Proceeds, and
other property at any time and from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
of the Interests and any fees, commissions or other compensation
payable to Pledgor as a member of the Company (all of the foregoing,
collectively, "DISTRIBUTIONS");
(c) all contract rights, general intangibles, rights, claims,
powers, privileges, benefits and remedies arising from or in any way
related to ownership of the Interests, any certificates and other
instruments representing the Interests and the other Collateral
described above in paragraphs 1(a) and (b), including, without
limitation, all rights to vote or consent, or to receive any notice,
or to inspect or review any books, records or other information;
(d) all additions to the Collateral described in the foregoing
clauses (a) through (c) including without limitation any tangible or
intangible property in the Company obtained in the future by Pledgor,
all substitutions therefor and all replacements thereof; and
(e) all Proceeds of any of the foregoing.
Notwithstanding any contrary provision contained herein as used in
this Agreement, the terms "Collateral" and "Distributions" shall not
include any Money properly released from the Deposit Account or other
Collateral released by Secured Party pursuant to the terms of this
Agreement or the Deposit Account Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF PLEDGOR. Pledgor hereby
represents and warrants to Secured Party as of the date hereof as follows:
(a) No consent of any other person or entity (including, without
limitation, any owner or creditor of Pledgor) which has not been
obtained, is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement other than
the consent of the Senior Lender with respect to the Senior Loan,
which consent of Senior Lender has been obtained contemporaneously
herewith.
(b) Pledgor is duly organized, validly existing and in good
standing under the laws of the state of its formation and has all
requisite power and authority under the laws of such state and under
its organizational and charter documents to enter into and perform its
obligations under this Agreement.
(c) Pledgor has taken all necessary legal and other action to
authorize the execution, delivery and performance of this Agreement,
and this Agreement constitutes the valid and binding obligation and
agreement of Pledgor, enforceable in accordance with its terms,
subject to limitations as to enforceability imposed by bankruptcy,
reorganization, moratorium, insolvency and other laws of general
application relating to or affecting the enforceability of creditors'
rights and to equitable principles.
(d) Pledgor has not received any notice of default under any
agreement or instrument to which Pledgor is a party or by which
Pledgor or Pledgor's assets may be bound which default would have a
material adverse effect on Pledgor's business, assets, property or
financial or other condition, and Pledgor is not in default under any
order, judgment, award or decree of any court, arbitrator or other
governmental authority binding upon or affecting Pledgor or by which
any of Pledgor's assets may be bound or affected.
(e) Neither the execution and delivery of this Agreement nor the
compliance by Pledgor with the terms and provisions hereof are events
which of themselves, or with the giving of notice or the passage of
time, or both, would constitute, on the part of Pledgor, a violation
of or conflict with, or result in any breach of, or default under, the
terms, conditions or provisions of, or require any consent, permit,
approval, authorization, declaration or filing (other than filings now
or hereafter made by Pledgor as required under the Securities Exchange
Act of 1934, as amended, as a result hereof) which has not been made
or obtained under or pursuant to, (i) any statute, law, judgment,
decree, order, rule or regulation applicable to Pledgor, (ii) the
organizational and charter documents of Pledgor, if any, or (iii) any
other agreement or instrument to which Pledgor is a party (other than
the Senior Loan had the consent of the Senior Lender not been obtained
with respect hereto, such consent of Senior Lender having been so
obtained contemporaneously herewith) or by which Pledgor, or Pledgor's
assets, are bound, or result in the creation or imposition of any Lien
on any of the assets of Pledgor, and no such condition or event of
itself, or with the giving of notice or the passage of time, or both,
will result in the acceleration of the due date of any obligation of
Pledgor or by which any of Pledgor's assets are bound; provided,
however, that the compliance by Pledgor with the terms and provisions
hereof is subject to all applicable Federal and state securities laws.
(f) Except as have been disclosed in the March 31, 2001 financial
statements of Pledgor provided to Secured Party, there are no
judgments presently outstanding and unsatisfied against Pledgor or any
of Pledgor's assets, and neither Pledgor nor any of Pledgor's assets
is a party to or the subject of any actions or suits or proceedings in
equity or by any governmental authorities, and no such litigation or
proceeding has been threatened against Pledgor or against any of
Pledgor's assets, and no investigation in contemplation of such
litigation or proceeding has begun or is pending or has been
threatened.
(g) Intentionally Deleted.
(h) The financial statements of Pledgor and the Company furnished
to Secured Party are true, correct and complete in all material
respects and fairly present the financial condition of Pledgor and the
Company as at the end of and for the reporting periods covered
thereby. Except for the Permitted Indebtedness of Pledgor or the
Company or as shown on such financial statements, no borrowings (other
than the Senior Loan) have been made or indebtedness incurred by
Pledgor or the Company which is outstanding and which might give rise
to a lien or claim against any assets of Pledgor or Company. Except
for the Permitted Indebtedness of Pledgor or Company, there are no
liabilities, contingent or otherwise, or any unrealized or anticipated
losses from unfavorable commitments, whether arising before or after
the date of such financial statements, which are not disclosed in such
financial statements.
(i) As of the date hereof, each of Pledgor and Company, has filed
or caused to be filed all United States, state, local and foreign
income tax returns (if any) which are required to be filed and all
United States, state, local and foreign tax returns other than income
tax returns which are required to be filed and has paid or caused to
be paid all taxes shown on such returns or on any assessment made
against it and all other taxes, fees or other charges imposed on it by
any governmental authority, agency or instrumentality which have
become due and payable. No tax liens have been filed against Pledgor
or Company or against any of their respective assets, and no material
claims are being asserted against Pledgor or Company or any of their
respective assets in respect of any taxes.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Each
Company hereby represents and warrants to Secured Party, as to itself only,
as of the date hereof as follows:
(a) Company is duly organized, validly existing and in good
standing under the laws of the state of its formation and has all
requisite power and authority under the laws of such state and under
its organizational and charter documents to enter into and perform its
obligations under this Agreement.
(b) Company has taken all necessary legal and other action to
authorize the execution, delivery and performance of this Agreement,
and this Agreement constitutes the valid and binding obligation and
agreement of Company, enforceable in accordance with its terms,
subject to limitations as to enforceability imposed by bankruptcy,
reorganization, moratorium, insolvency and other laws of general
application relating to or affecting the enforceability of creditors'
rights and to equitable principles.
(c) Company has not received any notice of default under any
agreement or instrument to which it is a party or by which it or its
assets may be bound which default would have a material adverse effect
on its business, assets, property or financial or other condition, and
Company is not in default under any order, judgment, award or decree
of any court, arbitrator or other governmental authority binding upon
or affecting it or by which any of its assets may be bound or
affected.
(d) Neither the execution and delivery of this Agreement nor the
compliance by Company with the terms and provisions hereof are events
which of themselves, or with the giving of notice or the passage of
time, or both, would constitute, on the part of Company, a violation
of or conflict with, or result in any breach of, or default under, the
terms, conditions or provisions of, or require any consent, permit,
approval, authorization, declaration or filing (other than filings now
or hereafter made by Pledgor as required under the Securities Exchange
Act of 1934, as amended, as a result hereof) which has not been made
or obtained under or pursuant to, (i) any statute, law, judgment,
decree, order, rule or regulation applicable to Company, or (ii) the
organizational documents of Company or (iii) any other agreement or
instrument to which Company is a party (other than the Senior Loan had
the consent of the Senior Lender not been obtained with respect
hereto, such consent of Senior Lender having been so obtained
contemporaneously herewith) or by which Company, or its assets, are
bound, or result in the creation or imposition of any Lien on any of
the assets of Company, and no such condition or event of itself, or
with the giving of notice or the passage of time, or both, will result
in the acceleration of the due date of any obligation of Company or by
which any of its assets are bound; provided, however, that the
compliance by Company with the terms and provisions hereof is subject
to all applicable Federal and state securities laws.
(e) There are no judgments presently outstanding and unsatisfied
against Company or any of its assets, and neither Company nor any of
its assets is a party to or the subject of any actions or suits or
proceedings in equity or by any governmental authorities, and no such
litigation or proceeding has been threatened against Company or
against any of its assets, and no investigation in contemplation of
such litigation or proceeding has begun or is pending or has been
threatened.
(f) Company's chief executive office is at the location
identified in the first paragraph of this Agreement.
(g) The Interests constitute 100% of the Equity Interests in the
Company.
(h) Prometheus SQ is the sole record and beneficial owner of 100%
of the Equity Interests in each of Prometheus SQ Holdings Corp.
("PROMETHEUS HOLDINGS"), a Delaware corporation and Atria Holdings LLC
("ATRIA"), a Delaware limited liability company except to the extent
any direct or indirect equity owners in Prometheus Holdings and Atria
are deemed to be a beneficial owner of the aforementioned Equity
Interests.
SECTION 4. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF PLEDGOR.
Pledgor hereby represents and warrants to Secured Party as of the date
hereof as follows with respect to the Interests:
(a) (i) Pledgor is the sole record and beneficial owner of the
Interests (except to the extent any direct or indirect equity owners
in Pledgor is deemed to be a beneficial owner of the Interests), free
and clear of all Liens (other than as created hereunder, under the
Original Pledge Agreement and under the Senior Loan Agreement);
Pledgor has legal title to the Interests and good right and lawful
authority to grant a security interest and lien in the same in the
manner hereby done or contemplated, after giving effect to the consent
of the Senior Lender, such consent having been given contemporaneously
herewith. (ii) The execution and delivery of this Agreement by Pledgor
and Company is not restricted in any way by (x) any agreement or
instrument to which Pledgor is a party relative to Pledgor's Equity
Interests in Prometheus Assisted and LFSRI Assisted, except for such
restrictions as have been waived by proper steps taken in compliance
with such restrictions, (y) any agreement or instrument relative to
Pledgor's Equity Interests in Prometheus SQ, except for the agreements
and instruments set forth on Exhibit A hereto and such restrictions as
have been waived, by proper steps taken in compliance with such
restrictions or (z) any applicable law governing Company. (iii) The
transferability of the Interests, with respect to either the grant of
a security interest and lien in the Collateral to Secured Party, or
any foreclosure sale of the Collateral by Secured Party (where Secured
Party or its affiliates purchases the Collateral) is not restricted in
any way by (x) any agreement or instrument to which Pledgor is a party
relative to Pledgor's Equity Interests in Prometheus Assisted and
LFSRI Assisted (other than the Senior Loan Documents) and except for
such restrictions as have been waived, by proper steps taken in
compliance with such restrictions, (y) any agreement or instrument
relative to Pledgor's Equity Interest in Prometheus SQ, except for the
agreements and instruments set forth on Exhibit A and except for such
restrictions as have been waived, by proper steps taken in compliance
with such restrictions, or (z) any law governing the Company (other
than applicable Federal and state securities laws). (iv) The Interests
are not subject to any option or similar arrangement; and no consent
or approval of any governmental body or regulatory authority, or of
any securities exchange, is necessary to the validity of the rights
created hereunder; and all action has been taken by Pledgor to create
and perfect, in favor of Secured Party, a security interest and lien
in the Interests, and Secured Party has acquired a second priority
perfected security interest and lien therein, subject and subordinate
only to the security interest and lien in the Interest in favor of the
Senior Lender under the Senior Loan Documents.
(b) Except as set forth in the Senior Loan Documents, there are
no outstanding or authorized options, warrants, rights, contracts,
rights to subscribe, conversion rights or other agreements or
commitments (collectively, "ADVERSE RIGHTS") to which Company or
Pledgor is a party providing for the issuance or acquisition of any
Equity Interests in Company.
(c) As to all Collateral acquired by Pledgor on and after the
date hereof, Pledgor shall be the legal and equitable owner of such
Collateral free and clear of all Liens (other than those created
hereunder and under the Original Pledge Agreement); each membership
interest or other security comprising such Collateral will have been
duly authorized, validly issued and be fully paid and non-assessable;
after giving effect to the consent of the Senior Lender (such consent
having been given contemporaneously herewith), Pledgor will have legal
title to such Collateral and good and lawful authority to pledge,
assign and deliver such Collateral in the manner hereby contemplated;
and no consent or approval of any governmental body or regulatory
authority, or of any securities exchange, is or will be necessary to
the validity of the rights created hereunder.
(d) Pledgor shall not, nor shall it cause, authorize or suffer
Company to, take any action, or fail to take any action, in
contravention of the terms, conditions and provisions of the Note, the
Loan Agreement, this Agreement or any of the other Loan Documents.
(e) None of the ownership interests comprising the Collateral are
dealt in or traded on securities exchanges or in securities markets,
and none by its terms expressly provides that it is a security
governed by Article 8 of the UCC or that it is an investment company
security, and none is held in a securities account (as defined in
Section 8-501 of the UCC.)
SECTION 5. COVENANTS.
(a) Entity Status. Pledgor will and will cause the Company to
continue to comply with the provisions of all of their respective
organizational and governing documents, and the laws of the state or
other jurisdiction in which each such Entity was formed relating to
each such Entity. All customary formalities regarding the Entity
existence of Pledgor and the Company will continue to be observed.
(b) Existence. Pledgor shall not and shall not suffer the Company
to (i) take any actions in violation of its organizational or
governing documents or (ii) amend, modify, waive or terminate its
organizational or governing documents.
(c) Other Actions. Pledgor shall not and shall not suffer Company
to:
(1) Liens on the Collateral. Incur, create, assume, become
or be liable in any manner with respect to, or permit to exist,
any Lien with respect to any Collateral except Liens in favor of
Secured Party or Senior Lender under the Senior Loan Documents.
(2) Certain Restrictions. Enter into any agreement which
expressly restricts the ability of Pledgor or the Company to
enter into amendments, modifications or waivers of any of the
Loan Documents.
(3) Issuance of Equity Interests. Issue or allow to be
created any shareholder, partnership, trust or membership
interests, as applicable, or other Equity Interests in the
Company.
(d) Additional Covenant. Except as may be required under the
Senior Loan Documents, Pledgor shall not cause or suffer the Company
to, and the Company shall not, issue any Equity Interests or debt
instruments having rights which may be senior or prior to the rights
of Pledgor to receive Distributions from Company or which could
otherwise adversely affect the rights of the Interests.
(e) Reduction of Distributions. Subject to fiduciary obligations,
Pledgor shall not, directly or indirectly, without the prior written
consent of Secured Party, vote to amend the organizational documents
of Company to reduce the stated return to Pledgor thereunder or change
the formula for calculating cash from operations available therefor.
(f) Payment of Distributions. Pledgor shall cause Company to, and
Company shall, pay any and all of its available cash less Cost
Exclusions as a distribution directly to Pledgor subject to the terms
of the Senior Loan Deposit Account Agreement.
SECTION 6. DELIVERY OF COLLATERAL; VOTING RIGHTS; DISTRIBUTIONS;
SUBSTITUTION OF COLLATERAL.
(a) Any and all certificates representing the Collateral
(including without limitation additional or substitute certificates or
instruments representing Distributions or other Collateral that
hereafter may be issued) shall be delivered to the Secured Party in
suitable form for transfer by delivery, or shall be accompanied by
duly executed instruments of transfer or assignment in blank, with
signatures appropriately guaranteed, and accompanied by any required
transfer tax stamps, all in form satisfactory to Secured Party; it
being agreed and understood that the delivery of the Collateral (or
any certificates or instruments representing the Collateral or
Distributions) pursuant to the Original Pledge Agreement shall satisfy
Pledgor's delivery obligations under this Section 6(a).
(b) So long as there shall not have occurred and be continuing an
Event of Default (hereinafter defined), Pledgor shall be entitled to
exercise any and all voting rights and powers relating or pertaining
to the Collateral or any part thereof for any purpose not inconsistent
with the terms and provisions of the Note the Loan Agreement, this
Agreement and the other Loan Documents or otherwise in contravention
of any of the terms, covenants and provisions of the Note the Loan
Agreement, this Agreement or any of the other Loan Documents.
(c) Except as and to the extent provided herein and in the Loan
Documents until the Indebtedness is paid in full, Pledgor shall not
receive or be entitled to retain Distributions, if any, paid on the
Collateral. To the extent Pledgor receives any Distributions
prohibited hereunder, Pledgor shall receive same in trust for the
benefit of Secured Party and shall immediately deliver same to Secured
Party or its designated agent (accompanied by proper instruments of
assignment or stock powers executed by Pledgor in accordance with
Secured Party's instructions) to be held subject to the terms,
provisions and conditions of this Agreement, the Loan Agreement and
the Amended and Restated Deposit Account Agreement.
(d) Upon the occurrence of an Event of Default and so long as
said Event of Default shall continue, at the option of Secured Party,
(i) all rights of Pledgor to exercise the voting and consensual rights
and powers which Pledgor is entitled to exercise pursuant to the
foregoing subparagraph (b) shall cease, and all such rights shall
thereupon and without any further action or notice become vested in
Secured Party who shall have the sole and exclusive right and
authority to exercise (or refrain from exercising) such voting and
consensual rights and powers in its sole discretion, and (ii) Secured
Party shall receive and be entitled to retain any and all
Distributions until the Indebtedness is satisfied. THIS ASSIGNMENT OF
VOTING RIGHTS IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE BY
DISSOLUTION OR OTHERWISE. The exercise of any of the rights and
remedies of Secured Party under this paragraph shall not be or be
deemed to be a disposition of Collateral under Article 9 of the
Uniform Commercial Code as in effect in any applicable jurisdiction
(the "UCC") or an acceptance or a retention or a proposal to accept or
retain all or any part of the Collateral in satisfaction of all or any
of the Obligations. Any and all Distributions received by Secured
Party pursuant to the provisions of this paragraph shall be retained
by Secured Party as part of the Collateral and applied in accordance
with the provisions of Section 11 of this Agreement.
(e) No substitution of Collateral shall be permitted without the
prior written consent of Secured Party.
SECTION 7. COSTS AND EXPENSES. The Company and Pledgor shall pay all
costs, fees, expenses and charges incurred by Secured Party in connection
with the administration and enforcement of this Agreement and the security
interest granted hereunder (including, without limitation, all attorneys'
fees and costs). In addition, the Company and Pledgor agree to pay, and to
save Secured Party harmless from all liability for, any stamp or other
taxes which may be payable in connection with the execution or delivery of
this Agreement or the transactions contemplated hereby. The obligations of
the Company and Pledgor pursuant to this paragraph shall survive any
termination of this Agreement.
SECTION 8. EVENT OF DEFAULT. The occurrence of any of the following
events shall constitute an event of default (an "EVENT OF A DEFAULT")
hereunder:
(a) If any representation or warranty of Pledgor or the Company
made in this Agreement, or in any certificate, report, financial
statement or other instrument furnished in connection with this
Agreement shall prove false or misleading in any material respect the
effect of which shall cause or result in a Material Adverse condition
with respect to the Pledgor or the Company;
(b) If Pledgor or Company shall make a general assignment for the
benefit of creditors;
(c) If a court of competent jurisdiction enters a decree or order
for relief with respect to Pledgor or Company under Title 11 of the
United States Code as now constituted or hereafter amended or under
any other applicable Federal or state bankruptcy, insolvency or other
similar law, rule or regulation, or if such court enters a decree or
order appointing a receiver, liquidator, assignee, trustee, custodian,
examiner, magistrate, arbitrator, sequestrator (or similar official)
of Pledgor or Company or of any substantial part of their respective
properties, or if such court decrees or orders the winding up or
liquidation of the affairs of Pledgor or Company;
(d) If Pledgor or Company files a petition for relief or answer
or consent seeking relief under Title 11 of the United States Code as
now constituted or hereafter amended, or under any other applicable
Federal or state bankruptcy, insolvency or other similar law, rule or
regulation, or if Pledgor or Company fails to vigorously and
diligently oppose or otherwise consents to or acquiesces in the
commencement or prosecution of an involuntary case under Title 11 of
the United States Code as now constituted or hereafter amended, or
under any other applicable Federal or state bankruptcy, insolvency or
similar law, rule or regulation, or to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
examiner magistrate, arbitrator, sequestrator (or other similar
official) of Pledgor or Company or of any substantial part of their
respective properties, or if Pledgor or Company fails generally to pay
its debts as such debts become due, or if Pledgor or Company takes any
action in furtherance of any action described in this subparagraph;
(e) If any Affiliate of Pledgor or Company shall commence any
legal action seeking to cause Pledgor or Company or any Affiliate of
Pledgor or Company to take any of the actions described in
subparagraphs (b), (c) or (d) above with respect to Pledgor or
Company;
(f) If Pledgor or Company shall be in default of any other
provision provided herein and such default shall continue for a period
of thirty (30) days after notice from Secured Party; or
(g) If an "Event of Default" (as such term is defined in the Loan
Agreement) occurs.
SECTION 9. REMEDIES UPON DEFAULT. Upon the occurrence and during the
continuation of an Event of Default, Secured Party may, in addition to any
other rights or remedies which Secured Party may have, immediately and
without demand exercise with respect to the Collateral any and all rights
and remedies granted to a secured party under the UCC. Notwithstanding
anything to the contrary contained herein, Secured Party's rights related
to the enforcement of remedies under this Agreement shall be subject and
subordinate to the rights of Senior Lender under the Senior Loan Documents.
SECTION 10. SALE OF COLLATERAL.
(a) Sale of the Collateral may be made at any public or private
sale or at any broker's board or on any securities exchange, for cash,
upon credit or for future delivery, as Secured Party shall deem
appropriate. Secured Party shall be authorized at any such sale, in
its sole discretion, to restrict the prospective bidders or purchasers
to persons who will represent and agree that they are purchasing the
Collateral then being sold for their own account for investment and
not with a view to the distribution or resale thereof, and upon
consummation of any such sale Secured Party shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof
the Collateral so sold. Each such purchaser at any such sale shall
hold the property sold absolutely free from any claim or right on the
part of Pledgor, and Pledgor hereby waives, to the extent permitted by
law, all right of redemption, stay or appraisal which Pledgor now has
or may at any time in the future have under any rule of law or statute
now existing or hereafter enacted. To the extent that notice of sale
shall be required to be given by law, Secured Party shall give Pledgor
ten (10) days' notice in the manner herein specified of Secured
Party's intention to make any such public or private sale or sale at
any broker's board or on any such securities exchange. Such notice, in
case of public sale, shall state the time and place fixed for such
sale, and, in the case of sale at a broker's board or on a securities
exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will
first be offered for sale at such board or exchange. In case of
private sale, such notice shall state the time after which the
Collateral will be sold. Any such public sale shall be held at such
time or times within ordinary business hours and at such place or
places as Secured Party may fix in the notice of such sale. At any
such sale, the Collateral, or any portion thereof, may be sold as
Secured Party may in its sole discretion determine. To the extent
permitted by law, Secured Party may bid, which bid may be in whole or
in part, in the form of cancellation of indebtedness, for and purchase
for the account of Secured Party or its nominee the whole or any part
of the Collateral. Secured Party shall not be obligated to make any
sale of the Collateral if Secured Party shall determine not to do so,
regardless of the fact that notice of sale of the Collateral may have
been given. Secured Party may, without notice of publication, adjourn
any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such
sale may, without further notice, be made at the time and place to
which the same was so adjourned. In case sale of all or any part of
the Collateral is made on credit or for future delivery, the
Collateral so sold may be retained by Secured Party until the sales
price is paid by the purchaser or purchasers thereof, but Secured
Party shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold
and, in the case of any such failure, such Collateral may be sold
again upon like notice. As an alternative to exercising the power of
sale herein conferred upon it, Secured Party may proceed by a suit or
suits at law or in equity to foreclose this Agreement and to sell the
Collateral, or any portion thereof, pursuant to a judgment or decree
of a court or courts of competent jurisdiction. Pledgor agrees, to the
extent permitted by law, that any sale or other disposition of any of
the Collateral in accordance with the foregoing procedures shall be
deemed to be commercially reasonable under the UCC and otherwise
proper.
(b) In connection with any disposition of the Collateral, if
Secured Party elects to obtain the advice of any one or more
independent nationally known investment banking firms which are member
firms of the New York Stock Exchange (or other nationally recognized
exchange), with respect to the method or manner of sale or disposition
of any of the Collateral, the best price reasonably obtainable
therefor and any other details concerning such sale or disposition,
Pledgor agrees, to the extent permitted by law, that any sale or other
disposition of any of the Collateral in reliance on such advice shall
be deemed to be commercially reasonable under the UCC and otherwise
proper.
(c) Pledgor understands that compliance with federal or state
securities laws may very strictly limit the course of conduct of
Secured Party if Secured Party were to attempt to dispose of all or
any part of the Collateral and may also limit the extent to which or
the manner in which any subsequent transferee of the Collateral may
dispose of the same. Pledgor agrees that in any sale of any of the
Collateral, Secured Party is hereby authorized to comply with any such
limitation or restriction in connection with such sale as it may be
advised by counsel is necessary in order to avoid any violation of
applicable law (including, without limitation, compliance with such
procedures as may restrict the number of prospective bidders and
purchasers or further restrict such prospective bidders or purchasers
to persons who will represent and agree that they are purchasing for
their own account for investment and not with a view to the
distribution or resale of such Collateral), or in order to obtain any
required approval of the sale or of the purchaser by any governmental
regulatory authority or official, and Pledgor further agrees that such
compliance shall not result in such sale being considered or deemed
not to have been made in a commercially reasonable manner, nor shall
Secured Party be liable or accountable to Pledgor for any discount
allowed by reason of the fact that such Collateral is sold in
compliance with any such limitation or restriction.
SECTION 11. APPLICATION OF MONIES. All monies (including, without
limitation, Distributions) received or collected by Secured Party pursuant
to this Agreement shall be held as Collateral by Secured Party and after
the occurrence of an Event of Default shall be applied by Secured Party
first, to the payment of all costs incurred in the collection of such
monies (including attorneys' fees and expenses) and second, to the payment
of the Indebtedness in such order and priority as Secured Party may in its
sole discretion determine. The balance, if any, of such monies remaining
after payment in full of such costs and the Obligations shall be remitted
to Pledgor or as otherwise directed by a court of competent jurisdiction.
SECTION 12. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Pledgor hereby
appoints Secured Party, effective upon an Event of Default and during the
continuation thereof, as the attorney-in-fact of Pledgor for the purpose of
carrying out the provisions of this Agreement and taking any action and
executing any instrument which Secured Party may deem necessary or
advisable to accomplish the purposes hereof, which appointment is
irrevocable and coupled with an interest. Without limiting the generality
of the foregoing, upon an Event of Default and during the continuation
thereof, Secured Party shall have the right and power to receive, endorse
and collect all checks and other orders for the payment of money made
payable to Pledgor or Company representing any Distribution or any part of
any thereof and to give full discharge for the same.
SECTION 13. NO WAIVER. No failure or delay on the part of Secured
Party in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or
power preclude any other or further exercise thereof or the exercise of any
other right or power hereunder nor shall Secured Party's waiver of any
right or remedy against Pledgor release or relieve Pledgor from its
obligations hereunder. No modification or waiver of any provision of this
Agreement nor consent to any departure by Pledgor therefrom shall be
effective unless the same shall be in writing and signed by Secured Party,
and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on
Pledgor in any case shall, of itself, entitle Pledgor to any other or
further notice or demand in similar or other circumstances. If any notice
is required by law to be given to Pledgor or Company by Secured Party, five
(5) days' notice given by registered mail, return receipt requested, and
addressed to such party at the address set forth herein shall be deemed for
all purposes to be reasonable notice.
SECTION 14. DURATION OF SECURED PARTY'S RIGHTS AND TERMINATION. Until
the Indebtedness shall have been paid in full, all rights, powers and
remedies granted to Secured Party under this Agreement shall continue to
exist and may be exercised by Secured Party at any time and from time to
time. Upon payment in full of the Indebtedness, Secured Party shall
reassign and redeliver, without recourse or warranty and at the expense of
Pledgor, or cause to be so reassigned and redelivered, to Pledgor or to
such person or persons as Pledgor shall designate, against receipt, such of
the Collateral, if any, as shall not have been sold or otherwise applied by
Secured Party pursuant to the terms hereof and still be held by Secured
Party hereunder, together with appropriate instruments of reassignment and
release.
SECTION 15. AGREEMENTS OF PLEDGOR. Until the Indebtedness is paid and
performed in full, Pledgor covenants and agrees with Secured Party as
follows:
(a) Pledgor shall furnish or cause to be furnished to Secured
Party from time to time, at the request of Secured Party, such
information concerning Pledgor or the Company as Secured Party may
reasonably request;
(b) Except for the Permitted Indebtedness, Pledgor shall not, as
to itself, and shall not authorize or permit the Company to, make any
loans to members of Pledgor or to set aside any funds for any such
purpose;
(c) Except as created hereby or by the Original Pledge Agreement
and except for the Permitted Indebtedness, Pledgor shall not authorize
or permit the Company to create any mortgage, pledge, title retention
lien, or other Lien or incur any indebtedness (directly or as a
guarantor) or any Lien with respect to any assets now owned or
hereafter acquired by Company, or to take or fail to take any other
action whatsoever, in contravention of Section 5 of this Agreement or
otherwise inconsistent with the terms and provisions of the Note, the
Loan Agreement, this Agreement or any of the other Loan Documents;
(d) Pledgor shall not, and shall not authorize or permit the
Company to, in any manner further encumber, sell, transfer or convey,
or permit to be further encumbered, sold, transferred or conveyed in
any manner, the Collateral other than in compliance with Section
2.6(b) of the Loan Agreement or as otherwise may be required by Senior
Lender in accordance with the terms of the Senior Loan Agreement;
(e) Pledgor shall not consent to or authorize any action by
Company with respect to entering into any merger or consolidation with
any corporation or other person or party, or changing the character of
its business, or adding any additional members to Company; provided,
that, Pledgor and the Company shall be permitted to enter into a
merger or consolidation with respect to the Assisted Living Investment
so long as such transaction does not reduce the value of the Interests
(as determined by Secured Party), and Pledgor and the Company shall be
permitted to take any actions that are reasonably necessary to effect
the foregoing transaction, including but not limited to, forming a
direct or indirect subsidiary of Pledgor for purposes of holding the
Assisted Living Investments (or any of them).
(f) Pledgor shall take any steps necessary to prevent Company
from doing any act or thing prohibited pursuant to this Section or
which would otherwise be in contravention of any representation,
warranty, term, covenant or provision set forth in the Loan Agreement
or any of the other Loan Documents.
SECTION 16. LIMITATION ON DUTIES AND LIABILITIES OF SECURED PARTY;
INDEMNIFICATION.
(a) Beyond the exercise of reasonable care in the custody of any
Collateral in its possession, Secured Party shall have no duty as to
any Collateral or as to the preservation of rights against prior
parties or any other rights pertaining thereto. Secured Party shall
have no duty as to any Collateral, to ascertain or take action with
respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not Secured Party has
or is deemed to have knowledge of such matters, or as to the taking of
any necessary steps to preserve rights against any parties or any
other rights pertaining to any Collateral. Secured Party shall be
deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is
accorded treatment substantially equal to that which it accords other
collateral of the same type in its possession. Except for gross
negligence and willful misconduct, Secured Party shall not be liable
or responsible for any loss or damage to any of the Collateral, or for
any diminution in the value thereof, by reason of the act or omission
of Secured Party or any agent, bailee or custodian selected by Secured
Party in good faith or for taking any necessary steps to preserve
rights against any parties with respect to any Collateral or for the
collection of any proceeds of any Collateral or for any invalidity,
lack of value or uncollectability of any of the Collateral.
(b) The pledge and assignment of the Collateral and grant of a
security interest is for collateral purposes only, and, prior to its
foreclosure thereon, Secured Party shall neither by virtue of this
Security Agreement, by the receipt of Distributions or Payor Proceeds,
by exercise of voting rights or by the exercise of any of its rights
or remedies hereunder be deemed to be a member, interest holder,
partner or stockholder, as applicable, of Company or to have any
liability for the debts, obligations or liabilities of Pledgor or
Company or any other member, interest holder, partner or stockholder,
as applicable, of Company. Without limiting the generality of the
foregoing, by accepting the pledge, assignment and security interests
described herein, Secured Party does not thereby assume any debts,
obligations, responsibilities, covenants, agreements or liabilities of
Pledgor in connection with the Collateral or of Pledgor to Company, or
to any third parties dealing with Company.
(c) Pledgor shall indemnify and hold harmless Secured Party from
and against any and all liability, loss, or damage that Secured Party
may suffer or incur and which arises out of or results from claims of
third parties, including another stockholder, member, interest holder
or partner, as applicable, based on the rights or obligations of
Company or a stockholder, member, interest holder or partner, as
applicable, of Company under the Company's organizational and charter
documents, this Agreement, or acceptance of Distributions or the
exercise of any of the rights or remedies of Secured Party hereunder;
any claim of any alleged obligation, liability or duty on the part of
Company to perform or discharge any of the terms, covenants, or
provisions of the Company's organizational and charter documents or
any liability or obligation of Company or Pledgor; together with all
costs and expenses (including, without limitation, court costs and
attorneys' fees and costs) paid or incurred in connection therewith;
or any receipt of Distributions from Company or anyone else. Pledgor
shall reimburse Secured Party upon demand for the full amount of any
indemnity to which Secured Party may be entitled hereunder and the
full amount of the indemnity obligation shall be considered to be an
Obligation and shall be secured hereby.
(d) Pledgor upon demand shall pay to Secured Party the amount of
any and all reasonable expense, including the reasonable fees and
disbursements of counsel and of any experts and agents, which Secured
Party may incur in connection with (i) the administration of this
Agreement, (ii) the custody, preservation, use or operation of, or the
sale of, collection from, or other realization upon, any of the
Collateral, (iii) the exercise or enforcement of any of the rights of
Secured Party hereunder, or (iv) the failure by Pledgor or Company to
perform or observe any of the provisions hereof.
(e) All costs and expenses, including reasonable attorneys' fees
and costs, incurred or paid by Secured Party in exercising any right,
power or remedy conferred in this Agreement, or in the enforcement
thereof, shall become a part of the Debt and shall bear interest from
the date incurred or paid by Secured Party at the Default Rate (as
such term is defined in the Loan Agreement).
SECTION 17. SECURITY INTEREST ABSOLUTE. All rights of Secured Party
and the security interests hereunder, and all obligations secured hereby,
shall be absolute and unconditional, irrespective of any lack of validity
or enforceability of the other Loan Documents; any change in the time,
manner or place of payment of, or in any other term of, all or any of the
Obligations or any other amendment or waiver of or any consent to any
departure from the Loan Documents; any exchange, release or non-perfection
of any other collateral for the Indebtedness, or any release or amendment
or waiver of or consent to departure from any of the Loan Documents; or any
other circumstance (other than payment and performance of the Obligations
in full) that might otherwise constitute a defense available to, or a
discharge of Pledgor or any other obligor under any of the Loan Documents,
or any third party grantor of collateral for the Obligations or any part
thereof.
SECTION 18. NOTICE. Any notice, request, demand, statement,
authorization, approval or consent made hereunder shall be in writing and
shall be hand delivered or sent by Federal Express, or other reputable
national courier service, or by postage pre-paid registered or certified
mail, return receipt requested, and shall be deemed given (i) when received
at the following addresses if hand delivered or sent by Federal Express, or
other reputable national courier service, and (ii) three (3) business days
after being postmarked and addressed as follows if sent by registered or
certified mail, return receipt requested:
If to Secured Party:
c/o Capital Trust, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx XxxxXxxxxx
With copies to:
c/o Capital Trust, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxx and Loan Administrator
and
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxx X. Xxxxxxx
If to Pledgor or Company:
c/o Lazard Freres Real Estate Investors L.L.C.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxx X. Xxxxx
With a copy in the case of any notice to Pledgor or Company to:
c/o Lazard Freres Real Estate Investors L.L.C.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxxx X. Xxxxxxxxxx, Esq.
and
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx Xxxxxxxxxxx, Esq.
Each party may designate a change of address by notice to the other
parties, given at least fifteen (15) days before such change of address is
to become effective.
SECTION 19. FURTHER ASSURANCES.
(a) Pledgor will, at Pledgor's expense and in such manner and
form as Secured Party may require, execute, deliver, file and record
any financing statement, specific assignment or other paper and take
any other action necessary or desirable, or that Secured Party may
request, in order to create, preserve, perfect or validate any
security interest, or to enable Secured Party to exercise and enforce
its rights hereunder with respect to any of the Collateral, or better
to assure and confirm unto Secured Party its rights, powers and
remedies hereunder. To the extent permitted by applicable law, Pledgor
hereby authorizes Secured Party to execute and file, in the name of
Pledgor or otherwise, UCC financing statements (which may be carbon,
photographic, photostatic or other reproductions of this Agreement or
of a financing statement relating to this Agreement) which Secured
Party in its sole discretion may deem necessary or appropriate to
further perfect its rights under this Agreement. Pledgor hereby
consents and agrees that the issuer of the Collateral or any registrar
or transfer agent for any of the Collateral shall be entitled to
accept the provisions hereof as conclusive evidence of the right of
Secured Party to effect any transfer pursuant to the provisions
hereof, notwithstanding any other notice or direction to the contrary
heretofore or hereafter given by Pledgor or any other party to such
issuer, registrar or transfer agent.
(b) Pledgor agrees that Pledgor will not change (i) Pledgor's
name, identity or organizational structure in any manner, or (ii) the
location of Pledgor's principal place of business or chief executive
office unless Pledgor shall have given Secured Party not less than
thirty (30) days' prior written notice thereof which notice must state
in bold print that the notice is being sent for the purpose of
allowing the Secured Party to determine whether, or not to amend any
UCC financing statements filed in connection with this Agreement.
(c) Pledgor agrees to do and to cause the Company to do such
further reasonable acts and things, and to execute and deliver such
additional conveyances, assignments, agreements and instruments, as
Secured Party may at any time request in connection with the
administration or enforcement of this Agreement (including, without
limitation, to aid Secured Party in the sale of all or any part of the
Collateral) or related to the Collateral or any part thereof or in
order better to assure and confirm unto Secured Party its rights,
powers and remedies hereunder.
SECTION 20. CUMULATIVE RIGHTS AND REMEDIES. All remedies afforded to
Secured Party by reason of this Agreement are separate and cumulative
remedies and it is agreed that no one of such remedies shall be deemed to
be in exclusion of any other remedies available to Secured Party and shall
not in any manner limit or prejudice any other legal or equitable remedies
which Secured Party may have. The rights, powers and remedies given to
Secured Party by this Agreement shall be in addition to all rights, powers
and remedies given to Secured Party by virtue of any statue or rule of law
and all such rights, powers and remedies are cumulative and not
alternative, and may be exercised and enforced successively or
concurrently.
SECTION 21. PARTIES BOUND. This Agreement shall be binding upon and
inure to the benefit of Pledgor, Company and Secured Party and their
respective successors and assigns.
SECTION 22. SEVERABILITY. If any term, covenant or provision of this
Agreement shall be held to be invalid, illegal or unenforceable in any
respect, this Agreement shall be construed without such term, covenant or
provision.
SECTION 23. NO ORAL CHANGE. This Agreement may only be modified,
amended, changed, discharged or terminated by an agreement in writing
signed by the parties hereto against whom enforcement is sought.
SECTION 24. GOVERNING LAW. This agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of laws.
SECTION 25. HEADINGS. Section headings used herein are for convenience
only and shall not affect the construction of this Agreement.
SECTION 26. "PLEDGOR". The term "Pledgor" as used herein shall, if
this Agreement is signed by more than one pledgor, mean "the pledgors and
each of them" and each obligation of Pledgor herein contained shall be the
joint and several undertaking of all such pledgors, except where expressly
stated to the contrary in this Agreement.
SECTION 27. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and each such counterpart shall for all purposes be deemed
to be an original, and all such counterparts together shall constitute but
one and the same agreement.
SECTION 28. CONSENT BY COMPANY. Company is executing this Agreement
for the purposes of making the representations and warranties contained in
Section 3, evidencing its agreement to the provisions of this Agreement
applicable to it, and consenting to the other provisions hereof and to the
exercise by Secured Party of its remedies provided herein.
- SIGNATURES ON NEXT PAGE -
IN WITNESS WHEREOF, Secured Party, Pledgor and Company have duly
executed this Agreement the date first above written.
SECURED PARTY: CTMPII FC LF (MS)
By:
---------------------------------
Name:
Title:
PLEDGOR: LF STRATEGIC REALTY INVESTORS II L.P.,
LFSRI II ALTERNATIVE PARTNERSHIP L.P.,
and LFSRI II-CADIM ALTERNATIVE
PARTNERSHIP L.P., all Delaware limited partnerships
By: Lazard Freres Real Estate Investors L.L.C.,
a New York limited liability company,
Their general partner
By:
---------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Principal and Chief
Financial Officer
PROMETHEUS ASSISTED: PROMETHEUS ASSISTED LIVING LLC
By: LF Strategic Realty
Investors II L.P., Its managing member
By: Lazard Freres Real Estate
Investors L.L.C., their General
Partner
By:
---------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Principal and Chief
Financial Officer
LFSRI ASSISTED: LFSRI II ASSISTED LIVING LLC,
By: LF Strategic Realty
Investors II L.P.,
Its Managing Member
By: Lazard Freres Real Estate Investors
L.L.C.,
Its General Partner
By:
---------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Principal and Chief
Financial Officer
PROMETHEUS SQ: PROMETHEUS SENIOR QUARTERS LLC
By: LF Strategic Realty Investors II L.P.,
Its Managing Member
By: Lazard Freres Real Estate Investors L.L.C.,
Its General Partner
By:
---------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Principal and Chief Financial
Officer
EXHIBIT A
1. Second Amended and Restated Credit Agreement dated as of October
11, 2001 among Atria, Inc., as Borrower, LF Strategic Realty Investors II
L.P., LFSRI II - CADIM Alternative Partnership L.P., LFSRI II Alternative
Partnership L.P., Hillhaven Properties, Ltd., Atria Stony Brook, LLC,
Atrium at Weston Court, LLC, Atria Springdale, LLC, Kapson Tinton Falls
Corp. and Kapson Senior Quarters Corp., as Guarantors, and Bankers Trust
Company, as Lender and Agent and the Loan Documents, as defined therein;
2. Additional Guaranty dated as of March 29, 2000 among Prometheus
Senior Quarters LLC, Prometheus SQ Holdings Corp., Prometheus SQ Interim
Corp., Atria, Inc., Kapson Senior Quarters Corp., Kapson Kew Gardens Corp.,
Kapson Riverdale Corp. and Fleet Bank, National Association and the Loan
Documents set forth on Schedule A thereto, as reaffirmed pursuant to that
certain Reaffirmation of Additional Guaranty;
3. Shareholders and Registration Rights Agreement dated as of
September 15, 1998 among Atria Communities, Inc., Kapson Senior Quarters
Corp., Vencor, Inc., Vencor Holdings, LLC and the Management Shareholders
listed on Schedule I thereto;
4. Loan Agreement dated as of July 11, 2002 between Salomon Brothers
Realty Corp., LaSalle Bank National Association, A2000 Senior LLC, A98
Senior LLC and K98 Senior LLC, and certain other parties;
5. Senior Loan Documents; and
6. Certain other agreements relating to indebtedness of Atria, Inc.,
Kapson Senior Quarters Corp. and/or their subsidiaries which is secured by
real property or Equity Interests of subsidiaries of Atria, Inc. and/or
Kapson Senior Quarters Corp. which may contain change of control or similar
provisions (including, without limitation, requirements that the Fund
directly or indirectly have a certain amount of capital invested in Atria,
Inc., Kapson Senior Quarters Corp. and/or their subsidiaries).
