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Exhibit 10.19
COLLATERAL ASSIGNMENT OF
MANAGEMENT AGREEMENT
This COLLATERAL ASSIGNMENT OF MANAGEMENT AGREEMENT (the
"Assignment") is made as of the 1st day of October, 2000 between BALANCED CARE
AT MERRILLVILLE, INC. a corporation organized under the laws of the State of
Delaware ("Tenant"), with its chief executive office located at 0000 Xxxxx
Xxxxx, Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000, and HEALTH CARE REIT, INC., a
corporation organized under the laws of the State of Delaware ("Landlord"), with
its principal office located at Xxx XxxXxxx, Xxxxx 0000, X.X. Xxx 0000, Xxxxxx,
Xxxx 00000.
R E C I T A L S
A. Landlord is granting to Tenant a lease of the real property
located in Merrillville, Indiana ("Property") pursuant to a Master Lease
Agreement between Landlord and Tenant of even date, as amended ("Lease"). Tenant
intends to operate a 63-unit (86-bed) assisted living (residential care)
facility (the "Facility") on the Property.
B. The Facility will be managed by BCC Development and
Management Co., a corporation organized under the laws of the State of Delaware
("Manager") pursuant to a Management Agreement between Tenant and Manager dated
October ____, 2000, as amended from time to time ("Management Agreement"), a
copy of which is attached hereto as Exhibit A.
C. Landlord has required as a condition of its granting the
Lease to Tenant that Tenant assign to Landlord all of Tenant's right, title, and
interest in and to the Management Agreement and that Manager consent to this
Assignment.
D. As used herein, "Lease Documents" means the Lease, and all
other documents and agreements executed in connection with the Lease, as
amended, modified, renewed or extended from time to time.
NOW, THEREFORE, as an inducement to Landlord to enter into the
Lease Documents and in consideration thereof, and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Tenant hereby transfers, assigns, and sets over unto Landlord, its successors
and assigns, all of
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the right, title, and interest of Tenant in and to the Management Agreement upon
the terms and conditions of this Assignment.
1. Representations and Warranties. Tenant represents and
warrants that [i] the copy of the Management Agreement attached hereto as
Exhibit A is a true and correct copy of the Management Agreement; [ii] Tenant's
interest in the Management Agreement is not subject to any claim, set-off, lien
or encumbrance of any kind or nature; [iii] the Management Agreement is in full
force and effect, there have been no modifications, supplements, amendments, or
addenda thereto, and it constitutes the entire agreement between Tenant and
Manager as to the Facility; and [iv] neither Tenant nor Manager, to Tenant's
knowledge, is in default under the Management Agreement.
2. Lease Obligations. The parties hereto acknowledge that
this Assignment is made as security for the obligations of Tenant under the
Lease Documents ("Lease Obligations") and that unless and until an Event of
Default (as defined in the Lease) occurs and remains uncured beyond any
applicable grace period, Tenant shall be entitled to the rights, benefits and
privileges of, and to act under, the Management Agreement. Tenant has executed,
or will execute, UCC-1 financing statements covering the rights secured hereby,
and agrees to execute such further instruments as Landlord may reasonably
request to perfect, continue or otherwise further secure the rights granted
herein.
3. Default. Upon the occurrence and during the continuance
of any Event of Default under the Lease Documents (which shall constitute a
default under this Assignment) that remains uncured beyond any applicable grace
period, Landlord may elect, at its option at any time, to exercise Tenant's
rights under the Management Agreement or to terminate the Management Agreement.
Landlord shall give written notice of such election to Tenant and Manager and
such election shall become effective on the date specified by Landlord in its
notice (which date shall not be earlier than the date of the notice). Any such
election shall be binding upon Tenant and Manager notwithstanding any provisions
in the Management Agreement to the contrary. Landlord shall not be obligated to
elect either option at any time.
4. Amendment; Termination. Tenant shall not amend, modify or
terminate the Management Agreement without the prior written consent of Landlord
(which consent shall not be unreasonably withheld).
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5. Landlord's Liability. Unless and until Landlord has assumed
in writing Tenant's obligations under the Management Agreement, Landlord shall
have no liability under the Management Agreement. Neither this Assignment nor
any other action on the part of Landlord, except the aforesaid assumption in
writing, shall constitute an assumption by Landlord of any of the obligations of
Tenant under the Management Agreement.
6. Enforcement. This Assignment is without prejudice to the
right of Landlord to enforce performance of the Lease Obligations when due, by
suit or in any lawful manner, or to resort to any other security for the
performance of the Lease Obligations, this Assignment being additional,
accumulative and concurrent security for the performance of the Lease
Obligations. The enumeration of certain rights, privileges and options in this
Assignment as vested in Landlord, or its successors and assigns, is not and
shall not be construed as a waiver of, nor to impair in any way, other rights of
Landlord or its successors or assigns, either at law or in equity, independent
of this Assignment, concerning this or any of the liabilities, obligations,
indebtedness, or collateral security securing the Lease Obligations. Landlord,
its successors and assigns, shall have the right to proceed against the security
granted hereunder or any other security granted for the performance of the Lease
Obligations and to proceed against all security at the same time or against
individually pledged or liened assets from time to time at the sole election of
Landlord. No action against any specific security granted for the Lease
Obligations shall be a bar to any subsequent action or actions against all or
any other security granted for the Lease Obligations.
7. Cure. Tenant agrees that Landlord shall have the right at
any time (but shall have no obligation) to take in its or in the name of Tenant
or otherwise, such actions as Landlord may at any time or from time to time
reasonably determine to be necessary to cure any default of Tenant under the
Management Agreement. Landlord shall incur no liability on account of any lawful
action taken by it or in its behalf in good faith pursuant to the foregoing
sentence or otherwise hereunder, whether or not the same shall prove to be
improper, inadequate or invalid in whole or in part and, Tenant agrees to
indemnify and hold Landlord harmless from and against any and all loss, cost,
liability or expense (including, but not limited to, reasonable attorneys' fees
and expenses) in connection with any such action or actions.
8. Power of Attorney. Effective upon the occurrence and during
the continuance of an Event of Default, Tenant hereby
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irrevocably constitutes and appoints Landlord its true and lawful
attorney-in-fact to act in Tenant's name or in Landlord's name or otherwise, to
enforce all rights of Tenant under the Management Agreement, and such power of
attorney, being coupled with an interest, is irrevocable until the Lease
Obligations are paid in full.
9. Notices. All notices hereunder shall be in writing, and
delivered personally, or by nationally recognized overnight courier service, or
by United States mail, postage prepaid, to the address set forth herein or to
such other address as may hereafter be provided in writing to the other party.
All notices shall be deemed to be given upon the earlier of actual receipt or
three days after deposit in the United States mail or one day after deposit with
the nationally recognized overnight courier.
10. Binding Effect and Assignment. This Assignment and any
actions taken by Landlord pursuant to and in accordance with this Assignment
shall be binding upon Tenant, Manager and their respective successors and
assigns, and shall inure to the benefit of Landlord and its successors and
assigns. Landlord may assign its rights hereunder, but Tenant may not assign its
rights or obligations under this Assignment without the prior written consent of
Landlord.
11. Governing Law. This Assignment shall be governed by and
construed in accordance with the internal laws of the State of Ohio, without
giving effect to the conflict of laws rules thereof.
12. Manager's Consent. Tenant hereby consents to the terms
and conditions of the Consent of Manager to Collateral Assignment of Management
Agreement attached hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Assignment to
be executed as of the date first above written.
BALANCED CARE AT MERRILLVILLE, INC.
By:/s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
HEALTH CARE REIT, INC.
By:/s/Xxxx X. Xxxxx
Title: Vice President and
Corporate Secretary
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EXHIBIT A: MANAGEMENT AGREEMENT
CONSENT OF MANAGER TO COLLATERAL
ASSIGNMENT OF MANAGEMENT AGREEMENT
CONSENT made effective as of the date of the Assignment
(hereinafter defined) by BCC DEVELOPMENT AND MANAGEMENT CO., a corporation
organized under the laws of the State of Delaware ("Manager"), having an address
of 0000 Xxxxx Xxxxx, Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000, in favor of HEALTH CARE
REIT, INC., a corporation organized under the laws of the State of Delaware
("Landlord"), with its principal office located at Xxx XxxXxxx, Xxxxx 0000, X.X.
Xxx 0000, Xxxxxx, Xxxx 00000.
1. Consent. Manager hereby consents to the foregoing
Collateral Assignment of Management Agreement (the "Assignment") made by
Balanced Care at Merrillville, Inc., a corporation organized under the laws of
the State of Delaware ("Tenant"), in favor of Landlord, to which this Consent of
Manager is attached and made a part thereof. All capitalized terms used herein
shall have the meanings set forth in the Assignment.
2. Representations and Warranties. Manager represents and
warrants that [i] the copy of the Management Agreement attached to the
Assignment as Exhibit "A" is a true and correct copy of the Management
Agreement; [ii] Tenant's interest in the Management Agreement is not subject to
any claim, setoff, lien, or encumbrance of any kind or nature to the best of
Manager's knowledge; [iii] the Management Agreement is in full force and effect,
there have been no modifications, supplements, amendments, or addenda thereto,
and it constitutes the entire agreement between Tenant and Manager as to the
Facility; and [iv] neither Tenant, to Manager's knowledge, nor Manager is in
default under the Management Agreement.
3. Default. Manager acknowledges and agrees that, upon the
occurrence and during the continuance of an Event of Default under the Lease
Documents, Landlord may elect, at its option at any time, to exercise Tenant's
rights under the Management Agreement or to terminate the Management Agreement,
in accordance with the terms and provisions of Section .3 of the Assignment.
Manager agrees that any such election by Landlord, including termination of the
Management Agreement, will be effective and will be binding upon Manager
notwithstanding any right of notice, cure period, termination only for cause or
any other provision in the Management Agreement to the contrary.
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4. Notice to Landlord. Manager agrees that it will not
terminate the Management Agreement or cease to perform its services thereunder
for any reason, including but not limited to, Tenant's failure to make any
payment to Manager or other breach or default, without giving Landlord 30 days
notice of such intention to terminate or cease performing its services as
Manager. If Landlord satisfies the conditions precedent set forth in Section .5,
Manager will continue to perform its obligations under the Management Agreement
as if Landlord were a party thereto, and the Management Agreement shall be
deemed to be reinstated in full.
5. Performance of Contract. Manager agrees that if Landlord
shall exercise any of its rights under the Assignment, Manager will perform its
obligations under the Management Agreement for the benefit and at the written
direction of Landlord; provided, however, that it is a condition precedent to
the continued performance by Manager [i] that Landlord has exercised its rights
within 30 days of the date of Landlord's receipt of notice of Tenant's default
from Manager, and [ii] that Landlord within the 30 day period has agreed in
writing to perform Tenant's obligations under the Management Agreement in
connection with the continued performance of the work including, but not limited
to, payment to Manager.
6. Acknowledgments and Agreements. Manager acknowledges and
agrees to the following:
[i] The Management Agreement will not be modified, amended,
or terminated without the prior written consent of Landlord (which consent shall
not be unreasonably withheld); and
[ii] That Landlord neither assumes nor has any obligation
to Manager to exercise its rights under the Assignment or to declare a default
under the Lease Documents, but that the right and option to exercise such right
or to declare a default rests in the sole and absolute discretion of Landlord.
7. Binding Effect; Assignment. This Consent shall be binding
upon Manager and its successors and assigns, and shall inure to the benefit of
Landlord and its successors and assigns. Landlord may assign its rights
hereunder, but Manager may not assign its rights or obligations under this
Consent without the prior written consent of Landlord except as permitted under
the Lease.
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IN WITNESS WHEREOF, Manager has executed or caused this
Consent to be executed as of the date first set forth above.
BCC DEVELOPMENT AND MANAGEMENT CO.
By:/s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
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