ASSIGNMENT OF NOTE, LIENS AND OTHER LOAN DOCUMENTS
THIS ASSIGNMENT OF NOTE, LIENS AND OTHER LOAN DOCUMENTS (this
"Assignment") is executed and delivered as of this 15th day of August, 2000 (the
"Effective Date") by FLEET NATIONAL BANK, in its capacity as Agent and Lender
("Assignor"), unto CAPITAL SENIOR LIVING ILM-A, INC., a Delaware corporation
("Assignee").
R E C I T A L S
A. ILM II Senior Living, Inc., ILM II Holding, Inc. and ILM II Lease
Corporation, each a Virginia corporation (collectively, "Borrower"), executed
and delivered to Assignor that certain Promissory Note (the "Note") dated
September 29, 1998, in the original principal amount of Eight Million Eight
Hundred Thousand and No/100 Dollars ($8,800,000.00) payable to the order of
Assignor.
B. The Note is secured by, among other things, the following lien
instruments (collectively, the "Liens"):
(i) Construction Deed of Trust and Security Agreement dated to
be effective as of the date of the Note executed by Xxxxxxxx, as
grantor, in favor of Chicago Title Insurance Company, as trustee, for
the benefit of Assignor, as beneficiary, recorded December 3, 1998 in
Book 5529, Page 319, et seq., of the Official Real Property Records of
Xxxxxxx County, Nebraska, and covering certain real and personal
property more particularly described therein;
(ii) Construction Mortgage Deed and Security Agreement dated
to be effective as of the date of the Note executed by Xxxxxxxx, as
mortgagor, to Assignor, as mortgagee, recorded November 17, 1998, in
Book 3037, Page 2423, et seq., of the Official Real Property Records of
Xxx County, Florida, and covering certain real and personal property
more particularly described therein;
(iii) Deed of Trust and Security Agreement dated to be
effective as of the date of the Note executed by Xxxxxxxx, as grantor,
in favor of SMF Registered Services, Inc., as trustee, for the benefit
of Assignor, as beneficiary, recorded November 16, 1998, in Book 11853,
Page 891, et seq., of the Official Real Property Records of St. Louis
County, Missouri, and covering certain real and personal property more
particularly described therein;
(iv) Mortgage Deed and Security Agreement dated to be
effective as of the date of the Note executed by Xxxxxxxx, as
mortgagor, to Assignor, as mortgagee, recorded November 17, 1998, in
Book 5934, Page 791, et seq., of the Official Real Property Records of
Xxxxxxx County, Kansas, and covering certain real and personal property
more particularly described therein;
(v) Deed of Trust and Security Agreement dated to be
effective as of the date of the Note executed by Xxxxxxxx, as grantor,
in favor of Chicago Title Insurance Company, as trustee, for the
benefit of Assignor, as beneficiary, recorded November 16, 1998, as
Document No. 98-088705 in the Official Real Property Records of Santa
Xxxxxxx County,
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California, and covering certain real and personal property more
particularly described therein; and
(vi) Deed of Trust and Security Agreement dated to be
effective as of the date of the Note executed by Xxxxxxxx, as grantor,
in favor of Chicago Title Insurance Company, as trustee, for the
benefit of Assignor, as beneficiary, recorded November 20, 1998, as
Document No. 98-139530 in the Official Real Property Records of San
Xxxxxxx County, California, and covering certain real and personal
property more particularly described therein.
C. The Note, the Liens and all other documents executed in connection
therewith are hereinafter collectively referred to as the "Loan Documents". A
detailed schedule of the Loan Documents (other than the Note and Liens) is
attached hereto as Exhibit "A".
D. Assignor desires to sell and assign to Assignee, and the Assignee
desires to acquire from Assignor, the Note, the Liens and the other Loan
Documents.
A G R E E M E N T
NOW, THEREFORE, for and in consideration and the sum of Ten and No/100
Dollars ($10.00), the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, Assignor has transferred, conveyed, assigned, sold,
set over and delivered, and by these presents does hereby transfer, convey,
assign, sell, set over and deliver unto Assignee:
a. The Note and all indebtedness now or hereinafter evidenced
thereby.
b. The Liens and the other Loan Documents.
c. All of the rights, benefits, privileges, liens, security
interests and assignments owned, held, accruing or to accrue to, and
for the benefit of, Assignor under the Loan Documents.
d. All other liens, security interests, lien priority
agreements, guaranties, mortgagee policies of title insurance,
collateral assignments, covenants, agreements, certificates, pledges,
assignments, rights, benefits, and privileges in any way belonging or
to accrue to the benefit of Assignor in respect of the loan evidenced
by the Loan Documents (the "Loan"), the Loan Documents, or any other
document, instrument or agreement evidencing, governing or securing the
Loan.
e. All rights, powers and privileges now or hereafter existing
under or in connection with the Loan Documents or otherwise under any
common or statutory law, to use or assert any defenses or claims which
may relate to the Loan.
This Assignment is made without RECOURSE, REPRESENTATION OR WARRANTY except as
expressly provided herein. Assignor hereby represents and warrants to Assignee
that:
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(1) Assignor is the sole legal and beneficial owner and holder
of the Note, the Liens, and the Loan Documents, free and clear of any and all
liens and security interests of any person, and the Loan has not been
transferred, assigned or pledged;
(2) As of August 16, 2000, the outstanding principal balance
of the Note is $1,165,208.81; the accrued but unpaid interest thereon is
$3,352.99; and no escrow funds are held by Assignor; and
(3) Assignor has all requisite power and authority to execute
and deliver, and to perform all of its obligations under, this Assignment and
this Assignment does not, and the consummation of the transaction contemplated
herein will not, require any consent or approval of any person that has not
already been obtained. This Assignment is the legal, valid and binding
obligation of Assignor.
Assignor grants full power to Assignee to take all legal action as may
be necessary or required under the Loan Documents, including, without
limitation, the right to make compromises, execute and deliver receipts,
releases and acquittances in full discharge thereof and to enforce payment
thereof by suit or otherwise.
This Assignment may be executed in more than one counterpart. Assignor
agrees to deliver the original Note endorsed to Assignee (without recourse or
warranty) as well as all of the original Loan Documents and related loan closing
materials in Assignor's possession within 14 days following Assignor's receipt
of Assignee's funds hereunder.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
to be effective for all purposes as of the Effective Date.
ASSIGNOR:
FLEET NATIONAL BANK,
in its capacity as Agent and Lender
By:________________________________
Name:______________________________
Title:_____________________________
ASSIGNEE:
CAPITAL SENIOR LIVING ILM-A, INC.
By:________________________________
Name:______________________________
Title:_____________________________
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BORROWER CONSENT AND ACKNOWLEDGMENT
Borrower hereby executes this Assignment of Note, Liens and Other Loan
Documents between Fleet National Bank, as assignor, and Capital Senior Living
ILM-A, Inc., as assignee, in order to evidence its consent to the foregoing
assignment transaction as well as its acknowledgment that Assignee has succeeded
to the rights and interests of Assignor under the Note, the Liens and the other
Loan Documents. This Consent and Acknowledgment may be executed in more than one
counterpart.
BORROWER:
--------
ILM II SENIOR LIVING, INC.,
a Virginia corporation
By:________________________
Name:______________________
Title:_____________________
ILM II HOLDING, INC..
a Virginia corporation
By:________________________
Name:______________________
Title:_____________________
ILM II LEASE CORPORATION,
a Virginia corporation
By:________________________
Name:______________________
Title:_____________________
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STATE OF __________ ss.
ss.
COUNTY OF _________ ss.
This instrument was acknowledged before me on this _____ day of August,
2000, by __________________________, ___________________________ of FLEET
NATIONAL BANK, a national banking association, on behalf of said association.
Notary Public in and for the State of _____________
My Commission Expires:
___________________________________________________
Printed Name
----------------------------
STATE OF __________ ss.
ss.
COUNTY OF _________ ss.
This instrument was acknowledged before me on this _____ day of August,
2000, by __________________________, ___________________________ of CAPITAL
SENIOR LIVING ILM-A, INC., a Delaware corporation on behalf of said corporation.
Notary Public in and for the State of _____________
My Commission Expires:
___________________________________________________
Printed Name
----------------------------
STATE OF __________ ss.
ss.
COUNTY OF _________ ss.
This instrument was acknowledged before me on this _____ day of August,
2000, by __________________________, ___________________________ of ILM II
SENIOR LIVING, INC., a Virginia corporation on behalf of said corporation.
Notary Public in and for the State of _____________
My Commission Expires:
___________________________________________________
Printed Name
----------------------------
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STATE OF __________ ss.
ss.
COUNTY OF _________ ss.
This instrument was acknowledged before me on this _____ day of August,
2000, by __________________________, ___________________________ of ILM II
HOLDING, INC., a Virginia corporation on behalf of said corporation.
Notary Public in and for the State of _____________
My Commission Expires:
___________________________________________________
Printed Name
----------------------------
STATE OF __________ ss.
ss.
COUNTY OF _________ ss.
This instrument was acknowledged before me on this _____ day of August,
2000, by ________________________, _________________________ of ILM II LEASE
CORPORATION, a Virginia corporation on behalf of said corporation.
Notary Public in and for the State of _____________
My Commission Expires:
___________________________________________________
Printed Name
----------------------------
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EXHIBIT "A"
Schedule of Loan Documents
1. Term Loan Agreement dated as of 9/29/98 between Borrower and Assignor.
2. Collateral Assignment of Leases and Rents dated to be effective as of the
date of the Note, executed by Xxxxxxxx in favor of Assignor filed 12/3/98,
recorded at Book 1272, Page 558, et seq., of the Official Real Property
Records of Xxxxxxx County, Nebraska;
3. Collateral Assignment of Leases and Rents dated to be effective as of the
date of the Note, executed by Xxxxxxxx in favor of Assignor filed 11/17/98
recorded at Book 3037, Page 2441, et seq., of the Official Real Property
Records of Xxx County, Florida;
4. Collateral Assignment of Leases and Rents dated to be effective as of the
date of the Note, executed by Xxxxxxxx in favor of Assignor filed 11/16/98
recorded at Book 11853, Page 917, et seq., of the Official Real Property
Records of St. Louis County, Missouri;
5. Collateral Assignment of Leases and Rents dated to be effective as of the
date of the Note, executed by Xxxxxxxx in favor of Assignor filed 11/17/98
recorded at Book 5934, Page 809, et seq., of the Official Real Property
Records of Xxxxxxx County, Kansas;
6. Collateral Assignment of Leases and Rents dated to be effective as of the
date of the Note, executed by Xxxxxxxx in favor of Assignor filed 11/16/98
recorded as Document No. 98- 088706, et seq., of the Official Real Property
Records of Santa Xxxxxxx County, California;
7. Collateral Assignment of Leases and Rents dated to be effective as of the
date of the Note, executed by Xxxxxxxx in favor of Assignor filed 11/20/98
recorded as Document No. 98- 139531, et seq., of the Official Real Property
Records of San Xxxxxxx County, California;
8. Pledge and Security Agreement dated as of 9/29/98 executed by ILM II Senior
Living, Inc., as pledgor, in favor of Assignor, in connection with the
pledge of four (4) certain promissory notes and mortgages more particularly
described therein.
9. Collateral Assignment and Security Agreement in Respect of Contracts,
Licenses and Permits dated as of 9/29/98 executed by ILM II Holding, Inc.
and ILM II Lease Corporation, as assignor, and Assignor.
10. Environmental Indemnity dated as of 9/29/98 executed by Xxxxxxxx in favor
of Assignor.
11. Guaranty dated as of 9/29/98 executed by ILM II Senior Living, Inc. in
favor of Assignor.
12. UCC-1 Financing Statement filed 12/4/98 recorded as Document No. 001140, et
seq., of the Official Real Property Records of Xxxxxxx County, Nebraska;
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13. UCC-1 Financing Statement filed 10/22/98 recorded at Book 3026, Page 3872
as Document No. 4493995, et seq., of the Official Real Property Records of
Xxx County, Florida;
14. UCC-1 Financing Statement filed 11/12/98 recorded at Book 11848, Page 2087,
et seq., of the Official Real Property Records of St. Louis County,
Missouri;
15. UCC-1 Financing Statement filed 10/22/98 recorded as Document No. 98-03103,
et seq., of the Official Real Property Records of Xxxxxxx County, Kansas;
16. UCC-1 Financing Statement filed 10/22/98 recorded as Document No.
98-081819, et seq., of the Official Real Property Records of Santa Xxxxxxx
County, California;
17. UCC-1 Financing Statement filed 10/22/98 recorded as Document No. 98125327,
et seq., of the Official Real Property Records of San Xxxxxxx County,
California.
18. UCC-1 Financing Statement filed 10/22/98 recorded as Document No.
9830060052, Secretary of State of Carolina.
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