Exhibit 10.46
COLLATERAL ASSIGNMENT OF
MANAGEMENT AGREEMENTS
THIS COLLATERAL ASSIGNMENT OF MANAGEMENT AGREEMENTS ("Assignment"), is
made and entered into as of March 31, 2002, by and among OCWEN FINANCIAL
CORPORATION, a Florida corporation ("Ocwen"), and BALANCED CARE REALTY (OFC),
INC., a Delaware corporation ("Realty"), BALANCED CARE AT MEDINA, INC., a
Delaware corporation ("BCM"), BALANCED CARE AT CENTERVILLE, INC., a Delaware
corporation ("BCC"), BALANCED CARE AT SHIPPENSBURG, INC., a Delaware corporation
("BCS"), and SENIOR CARE OPERATORS OF SHIPPENSBURG, LLC, a Delaware limited
liability company ("SCS"), execute this Assignment for the purpose of evidencing
their consent to assignments and other terms and conditions set forth herein.
WITNESSETH:
WHEREAS, Ocwen, Balanced Care Corporation, a Delaware corporation, BCM,
BCC, BCS, and SCS have entered into the Term Loan Agreement, as of the date
hereof ("Term Loan Agreement"), pursuant to which Ocwen has agreed to loan
Realty, and Realty has accepted from Ocwen, the principal sum of Nine Million
One Hundred Fifty-Three Thousand Three Hundred Fifty-Six Dollars ($9,153,356.00)
plus interest thereon ("Loan"). Realty's obligations under the Term Loan
Agreement are evidenced by a promissory note of even date herewith ("Term
Note").
WHEREAS, Ocwen is willing to enter into the Term Loan Agreement upon
the condition that Realty enter into this Assignment in favor of Ocwen.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises, mutual promises,
covenants, and agreements set forth herein, in order to induce Ocwen to enter
into the Term Loan Agreement, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, Realty does hereby
covenant, agree, warrant, represent, assign, set over and transfer to Ocwen all
of its right, title, privilege, and interest in the agreements described below.
1. Management Agreements. The contracts and agreements that shall be
the subject of this Assignment, are as follows:
(a) the Management Agreement by and between Realty and BCM,
dated of even date herewith, pursuant to which BCM has agreed
to provide certain management services to Realty in connection with the long
term care facility owned by Realty and located at 0000 Xxxxx Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxx 00000, a current copy of which is attached hereto as Exhibit A.
(b) the Management Agreement by and between Realty and BCC,
dated of even date herewith, pursuant to which BCC has agreed to provide certain
management services to Realty in connection with the long term care facility
owned by Realty and located at 0000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxxx, Xxxx
00000, a current copy of which is attached hereto as Exhibit B.
(c) the Management Agreement by and among Realty, BCS and SCS,
dated of even date herewith, pursuant to which BCS and SCS have agreed to
provide certain management services to Realty in connection with the long term
care facility owned by Realty and located at 000 Xxxxxx Xxxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, a current copy of which is attached hereto as
Exhibit C.
All of the foregoing shall be collectively referred to hereinafter as
the "Management Agreements."
2. Assignment. Realty hereby assigns, transfers and sets over unto
Ocwen all of its right, title, privilege, claims, remedies, payments, and any
and all other interests in and to the Management Agreements and all of the
rights and benefits therefrom as security for the full, timely and faithful
repayment by Realty of all and any amounts due and owing under the Term Loan
Agreement and Term Note, and the performance by Realty of all of its obligations
under the Term Loan Agreement, Security Documents, Management Agreements, and
Ancillary Documents (collectively, the Term Loan Agreement, the Term Note, the
Security Documents, the Management Agreements, and the Ancillary Documents shall
be referred to hereinafter as the "Loan Documents"). For the purposes and
subject to the terms set forth herein, the above assignment of the Management
Agreements is absolute, unconditional, and is a presently effective assignment
from Realty to Ocwen.
3. Security Interest. Realty hereby grants to Ocwen a security interest
in all of Realty's respective rights, privileges, title and interests in and to
the Management Agreements and all of the rights and benefits therefrom, and
Realty agrees that it shall execute appropriate UCC Financing Statements
relating thereto, and Ocwen shall have the right to file the same in order to
secure its interests therein.
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4. Occurrence of Event of Default. Until the occurrence of an Event of
Default, as defined in any of the Loan Documents, which is continuing and which
shall not have been cured by any applicable cure period, Realty may retain, use
and enjoy the benefits of the Management Agreements. After the occurrence of an
Event of Default as aforesaid, Ocwen may, at its option, enforce this Assignment
by notifying Realty by registered or certified mail or by personal delivery sent
or delivered to the address hereinafter prescribed for sending notices. The
affidavit or written statement of an officer, agent or attorney of Ocwen stating
that there has been an Event of Default as aforesaid shall constitute conclusive
evidence thereof, and any of BCM, BCS, BCC, and SCS, or any other Person, is
authorized and directed to rely thereon.
5. Performance; Amendments. Realty agrees to faithfully observe and
perform all of the material obligations and agreements imposed upon Realty under
the Management Agreements, and agrees that the Management Agreements shall not
be encumbered, terminated, cancelled, or materially amended or modified without
the prior written consent of Ocwen, which consent shall not be unreasonably
withheld. For purposes hereof, "material" amendments or modifications of the
Management Agreements shall include, without limitation, amendments or
modifications which adversely affect Ocwen's security as determined by Ocwen in
its reasonable discretion.
6. No Assumption. Until the exercise by Ocwen of its rights hereunder
as a consequence of an Event of Default, as described above, which is continuing
beyond any applicable cure period, Ocwen will not be deemed in any manner to
have assumed any of the Management Agreements, be obligated to perform any
obligation of Realty under the Management Agreements, or be liable to BCM, BCC,
BCS, SCS, or any other Person, by reason of a default or breach by any party
under the Management Agreements. Realty agrees to indemnify, defend, and to hold
Ocwen harmless of and from any and all liability, loss or damage that it may or
might incur by reason of any claims or demands against it based on or arising
out of (i) an alleged assumption of Realty's duties and obligations to perform
and discharge the terms, covenants and agreements in the Management Agreements,
or (ii) this Assignment; such indemnification of Ocwen by Realty shall not be
required to the extent any claim or demand results from Ocwen's gross negligence
or willful misconduct.
7. Remedies. After the occurrence of an Event of Default, as described
above, which is continuing beyond any applicable cure periods, Ocwen shall have
all rights under applicable law, and as
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a secured party under the Uniform Commercial Code, to enforce this Assignment,
and in addition, shall have the right, at its option, to (i) enforce its rights,
remedies, powers and privileges to and under the Management Agreements, as
described in this Assignment, without interference from Realty, and/or (ii) to
the extent permitted by law, either itself or an agent or nominee of Ocwen, in
lieu of Realty, may, with or without entry upon the Property (as defined below)
and/or the Project Properties, take over and enjoy the benefits of, and perform
all acts contemplated by the Management Agreements, in the same manner and to
the same extent as Realty may do. In the event Ocwen elects to do either or both
of the foregoing, Realty shall cooperate in causing BCM, BCC, BCS, and SCS to
materially comply with all the terms and conditions of the Management
Agreements. As used herein, "Property" shall mean the real property owned by
Realty, located at the following addresses, on which the Project Properties are
located: (i) 0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000, (ii) 0000 Xxxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxxx, XX 00000, and (iii) 000 Xxxxxx Xxxxxx Xxxx,
Xxxxxxxxxxxx, XX 00000.
Upon an Event of Default, which is continuing beyond any applicable
cure periods, and during the continuance thereof, Realty hereby irrevocably
constitutes and appoints Ocwen as its attorney-in-fact, coupled with an
interest, to demand, receive and enforce Realty's rights with respect to the
items covered hereby, to give appropriate receipts, releases and satisfactions
for and on behalf of Realty and to do any and all acts in the name of Ocwen with
the same force and effect as Realty could do if this Assignment had not been
made, including, at Ocwen's option, to enforce and enjoy the benefits of the
Management Agreements and to require performance thereunder by the other
contracting party. Upon an Event of Default, which is continuing beyond any
applicable cure periods, in connection with any and all of the foregoing powers,
and without limiting the same, Ocwen may effect new Management Agreements,
cancel or surrender existing Management Agreements, alter and/or amend the terms
of and renew existing Management Agreements, and make concessions to BCM, BCC,
BCS, and/or SCS, if Ocwen deems such appropriate. Except for the gross
negligence or willful misconduct of Ocwen, Realty hereby releases any and all
claims that it has or might have against Ocwen arising out of such performance
by Ocwen.
8. Advances. All of the foregoing powers herein granted Ocwen shall be
liberally construed. Ocwen need not expend its own funds in the exercise of such
power. However, Ocwen may, after the occurrence of an Event of Default, which is
continuing beyond any applicable cure periods, after giving notice to Realty as
provided in Section 4 above, at its option, and without releasing
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Realty from any obligation hereunder, discharge any obligation which Realty
fails to discharge under or with respect to said Management Agreements,
including without limitation, defending any legal action. All such amounts
expended by Ocwen shall be deemed reasonable and considered as advances secured
by this Assignment and also evidenced and secured by the other Loan Documents,
and Realty agrees to pay promptly upon demand all sums expended by Ocwen in
connection herewith, including attorneys' fees, together with interest thereon
at the Default Rate of interest set forth in the Term Loan Agreement.
9. Copies. Realty shall, upon the written request of Ocwen, furnish it
with current, executed copies of all of the Management Agreements, if such
Management Agreements have been amended from the versions attached hereto.
10. No Waiver. This Assignment may be enforced from time to time by
Ocwen at its discretion, with or without order of any court and with or without
appointment of a receiver, as Ocwen shall determine. Ocwen may also at any time
cease to enforce this Assignment. Any failure on the part of Ocwen promptly to
exercise any option hereby given or reserved shall not prevent the exercise of
any such option at any time thereafter. The waiver by Ocwen of any breach of any
term, covenant, or condition contained in this Assignment or any default in the
performance of any obligations under this Assignment, shall not be deemed to be
a waiver of any other breach or default of the same or any other term, covenant,
condition or obligation, nor shall any waiver of any incident of breach or
default constitute a continuing waiver of same. Ocwen may pursue and enforce any
remedy or remedies accorded it hereunder independently or, in conjunction or
concurrently with, or subsequent to its pursuing enforcement of any remedy or
remedies that it may have under the other Loan Documents.
11. Capitalized Terms. Capitalized terms that are used in this
Assignment but that are not defined herein shall have the meanings ascribed to
such terms in the Term Loan Agreement, unless the context hereof clearly
requires otherwise.
12. Miscellaneous. When the context so requires, the singular shall
include the plural and conversely, and use of any gender shall include all
genders.
13. Conformity with Term Loan Agreement. The provisions set forth in
Sections 8.1, 8.2, 8.3, 8.4, 8.5, 8.9, 8.10, 8.11, 8.12, 8.13, 8.15, 8.16, 8.19,
8.20, and 8.23 of the Term Loan Agreement shall be applicable to this Assignment
as though set forth herein in full.
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14. Survivability. Upon the payment in full of the Term Note, and the
payment in full of any other sums or monies due Ocwen pursuant to the terms of
the Term Loan Agreement (except for any Additional Payments due pursuant to
Section 1.6 of the Term Loan Agreement), this Assignment shall terminate and be
of no further force and effect, and in such event, Ocwen will, at the expense of
Realty, redeliver and reassign the Management Agreements to Realty and take all
action necessary to terminate the security interest of Ocwen in the Management
Agreements. Notwithstanding anything set forth herein or in any other Loan
Document to the contrary, the following sections of this Assignment shall
survive the payment in full of the Term Note, or any other termination or
expiration of this Assignment or the Loan Documents until the expiration of any
and all applicable statutes of limitation relating to claims that may arise
under and pursuant to or as a result of the terms of the following sections: 6,
13, 17 and 18.
15. Assignment. This Assignment shall bind and shall inure to the
benefit of the successors and assigns of Ocwen. Ocwen does not consent to any
assignment of this Assignment by Realty. Subject to Section 8.16 of the Term
Loan Agreement, Ocwen may assign its rights and interests under this Assignment
freely. If an assignment is made, Realty shall render performance under this
Assignment to and with the assignee. Realty hereby waives and will not assert
against any assignee any claims, defenses, or set-offs that Realty could assert
against Ocwen except defenses which cannot be waived.
16. Consent of Management Companies. Each of BCM, BCC, BCS, and SCS
hereby fully consent and agree to the assignments set forth herein and to the
other terms and provisions of this Assignment. Each of BCM, BCC, BCS, and SCS
shall take whatever further actions, execute any instruments or agreements
reasonably requested by, and otherwise offer their assistance and cooperation to
Ocwen in order to effectuate the assignment of the Management Agreements
contemplated herein and otherwise to allow for Ocwen's full and complete
enjoyment of its rights and benefits set forth herein.
17. Representations and Warranties. Realty hereby warrants and
represents to Ocwen as follows:
(i) It has made no prior assignments of or granted any security
interest in any of its rights under the Management Agreements, except those in
favor of Ocwen;
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(ii) That, to the best of its knowledge, all of the Management
Agreements are in full force and effect on the date hereof, subject to no
defenses, set-offs, or counterclaims whatsoever;
(iii) That to the best of its knowledge, there exists no event,
condition, or occurrence that constitutes or which with notice and/or passage of
time would constitute, a breach of or default under any term or condition of any
of the Management Agreements. Realty also hereby covenants and agrees not to do
any act that would destroy or impair the security to Ocwen of this Assignment;
and,
(iv) Realty will not waive or give any consent with respect to
any material default or material variation in the performance under the
Management Agreements, will at all times take proper steps to enforce all of the
material provisions and conditions thereof, and will forthwith notify Ocwen of
any material default or event of default thereunder.
18. JURY WAIVER. OCWEN AND REALTY HEREBY VOLUNTARILY, IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN OCWEN AND
REALTY ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS ASSIGNMENT OR ANY
OTHER AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO OCWEN TO
ENTER INTO THE TERM LOAN AGREEMENT. IT SHALL NOT IN ANY WAY AFFECT, WAIVE,
LIMIT, AMEND OR MODIFY OCWEN'S ABILITY TO PURSUE ANY REMEDY, EITHER IN LAW OR IN
EQUITY, AVAILABLE TO IT.
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IN WITNESS WHEREOF, Realty and Ocwen have caused this COLLATERAL
ASSIGNMENT OF MANAGEMENT AGREEMENTS to be duly executed on the date first above
written.
Signed and acknowledged REALTY:
in the presence of:
BALANCED CARE REALTY (OFC), INC.
/s/Xxxxxxx X. Xxxxxx
Witness
Printed Name: Xxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Print Name: Xxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx Title: Vice President and Secretary
Witness
Printed Name: Xxxxx X. Xxxxxx
BALANCED CARE AT MEDINA, INC.
/s/Xxxxxxx X. Xxxxxx
Witness
Printed Name: Xxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Print Name: Xxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx Title: Vice President and Secretary
Witness
Printed Name: Xxxxx X. Xxxxxx
BALANCED CARE AT CENTERVILLE, INC.
/s/Xxxxxxx X. Xxxxxx
Witness
Printed Name: Xxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Print Name: Xxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx Title: Vice President and Secretary
Witness
Printed Name: Xxxxx X. Xxxxxx
BALANCED CARE AT SHIPPENSBURG,
/s/Xxxxxxx X. Xxxxxx
Witness
Printed Name: Xxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Print Name: Xxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx Title: Vice President and Secretary
Witness
Printed Name: Xxxxx X. Xxxxxx
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s/Xxxxxxx X. Xxxxxx SENIOR CARE OPERATORS OF
Witness SHIPPENSBURG, LLC
Printed Name: Xxxxxxx X. Xxxxxx By: BALANCED CARE AT SHIPPENSBURG, INC.,
its Manager
/s/Xxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
Witness Print Name: Xxxxx X. Xxxxxx
Printed Name: Xxxxx X. Xxxxxx Title: Vice President and Secretary
OCWEN:
/s/Xxxx X. Xxxxxxxxx OCWEN FINANCIAL CORPORATION
Witness
Printed Name: Xxxx X. Xxxxxxxxx
By:/s/Xxxxxxx X. Xxxxxx
/s/Xxxxxxx X. Xxx Print Name: Xxxxxxx X. Xxxxxx
Witness Title: Sr. Vice President
Printed Name: Xxxxxxx X. Xxx
COMMONWEALTH OF PENNSYLVANIA )
) SS
COUNTY OF CUMBERLAND )
Before me, the subscriber, a Notary Public in and for said State and
County, personally appeared Xxxxx X. Xxxxxx, the Vice President and Secretary of
Balanced Care Realty (OFC), Inc., a Delaware corporation, who acknowledged the
signing of the foregoing instrument on behalf of Balanced Care Realty (OFC),
Inc., to be his/her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal this 9th day of April, 2002.
/s/Xxxxxxx X. Xxxxx
Notary Public
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COMMONWEALTH OF PENNSYLVANIA )
) SS
COUNTY OF CUMBERLAND )
Before me, the subscriber, a Notary Public in and for said State and
County, personally appeared Xxxxx X. Xxxxxx, the Vice President and Secretary of
Balanced Care at Medina, Inc., a Delaware corporation, who acknowledged the
signing of the foregoing instrument on behalf of Balanced Care at Medina, Inc.,
to be his/her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal this 9th day of April, 2002.
/s/Xxxxxxx X. Xxxxx
Notary Public
COMMONWEALTH OF PENNSYLVANIA )
) SS
COUNTY OF CUMBERLAND )
Before me, the subscriber, a Notary Public in and for said State and
County, personally appeared Xxxxx X. Xxxxxx, the Vice President and Secretary of
Balanced Care at Centerville, Inc., a Delaware corporation, who acknowledged the
signing of the foregoing instrument on behalf of Balanced Care at Centerville,
Inc., to be his/her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal this 9th day of April, 2002.
/s/Xxxxxxx X. Xxxxx
Notary Public
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XXXXXXXXXXXX XX XXXXXXXXXXXX )
) SS
COUNTY OF CUMBERLAND )
Before me, the subscriber, a Notary Public in and for said State and
County, personally appeared Xxxxx X. Xxxxxx, the Vice President and Secretary of
Balanced Care at Shippensburg, Inc., a Delaware corporation, who acknowledged
the signing of the foregoing instrument on behalf of Balanced Care at
Shippensburg, Inc., to be his/her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal this 9th day of April, 2002.
/s/Xxxxxxx X. Xxxxx
Notary Public
COMMONWEALTH OF PENNSYLVANIA )
) SS
COUNTY OF CUMBERLAND )
Before me, the subscriber, a Notary Public in and for said State and
County, personally appeared Xxxxx X. Xxxxxx, the Vice President and Secretary of
Balanced Care at Shippensburg, Inc., the acting manager of Senior Care Operators
of Shippensburg, LLC, a Delaware limited liability company, who acknowledged the
signing of the foregoing instrument on behalf of Senior Care Operators of
Shippensburg, LLC, by and through its manager, Balanced Care at Shippensburg,
Inc., to be his/her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal this 9th day of April, 2002.
/s/Xxxxxxx X. Xxxxx
Notary Public
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STATE OF FLORIDA )
) SS
COUNTY OF PALM BEACH )
Before me, the subscriber, a Notary Public in and for said State and
County, personally appeared Xxxxxxx X. Xxxxxx, as Senior Vice President of Ocwen
Financial Corporation, a Florida corporation, who acknowledged the signing of
the foregoing instrument on behalf of Ocwen Financial Corporation, to be his/her
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal this 4th day of April, 2002.
/s/Xxxxx Xxxxxx Xxxxxx
Notary Public
This instrument was prepared by: Squire, Xxxxxxx & Xxxxxxx L.L.P., 0000
Xxxxxxxxxx Xxxxxx, 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000.
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