FORM OF COLLATERAL ASSIGNMENT OF
AGREEMENTS AFFECTING REAL ESTATE
THIS COLLATERAL ASSIGNMENT OF AGREEMENTS AFFECTING REAL ESTATE
(the "Assignment") is made as of this _____ day of _____________, 1998, by , a
______________________ with offices at _______________________________
("Borrower") to ELDERTRUST OPERATING LIMITED PARTNERSHIP, a Delaware limited
partnership, with offices at 000 XxXxxxxx Xxxx, Xxxxx 000, Xxxxxxx Xxxxxx, XX
00000 (together with its successors and assigns, "Lender").
BACKGROUND
X. Xxxxxx has agreed to advance up to _________ ($_________)
to Borrower (the "Loan") pursuant to a Construction Loan Agreement, dated as of
the date hereof, between Borrower and Lender (the "Loan Agreement"), the terms
and conditions of which are incorporated herein by this reference, for the
purpose of financing the construction, erection and completion of certain
improvements at and about the Property (as hereinafter defined) in order to
convert the Property into a senior assisted living facility (the "Project"). The
Loan is evidenced by a Secured Note of Borrower (the "Note") and other
collateral documents described in the Loan Agreement, all of even date herewith,
including, without limitation, a Mortgage and Security Agreement (the
"Mortgage") from Borrower in favor of Lender encumbering certain real property
situate in the Township of ___________________, as described more fully in
Exhibit A attached hereto and made a part hereof (the "Property") and a Guaranty
and Suretyship Agreement by ___________________ ("_____"), an affiliate of
Borrower, in favor of Lender (the "Guaranty"). The Mortgage will be
simultaneously recorded in _________________. The Loan Agreement, the Note, the
Mortgage, the Guaranty, and the other collateral documents described in or
accompanying the Loan Agreement, as the same may be modified, amended,
supplemented or assigned from time to time, are hereinafter sometimes
collectively referred to as the "Loan Documents." The Project and Property are
hereinafter referred to collectively as the "Premises". Capitalized terms not
otherwise defined herein shall have the same meanings as set forth in the Loan
Agreement.
B. As a condition of making the Loan to Borrower, Xxxxxx has
required Borrower to execute and deliver this Assignment.
TERMS AND CONDITIONS
In consideration of the Loan, and intending to be legally
bound, Borrower and Xxxxxx hereby agree:
0. Definition of Additional Collateral. The items which shall
be the subject of this Assignment and which are sometimes collectively referred
to herein as "Additional Collateral" are as follows:
0.1. All licenses, permits, approvals, certificates
and agreements with or from all boards, agencies, departments, governmental or
otherwise, relating, directly or indirectly, to the construction, ownership,
use, operation and maintenance of the Premises, whether heretofore or hereafter
issued or executed, together with all renewals, extensions and amendments
thereto and thereof (collectively, the "Licenses"; said boards, agencies,
departments, governmental or otherwise being hereinafter collectively referred
to as "Governmental Authorities").
0.2. All contracts related to the Project, including
(a) the Construction Contract between Borrower and _____________________________
dated __________________, (b) the Architect's Agreement between Borrower and
_________________________________ dated ________________________, (c) the
Interior Design Services Agreement between Borrower and
________________________________ dated __________________ and (d) all other
contracts, subcontracts, agreements, service and supply agreements, management
contracts and purchase orders which have heretofore been or will hereafter be
executed by or on behalf of Borrower, or which have been or will hereafter be
assigned to Borrower, in connection with the construction, use, operation and
maintenance of the Premises (collectively, and as the same may be amended,
modified or supplemented from time to time, the "Contracts"; the parties with
whom or to whom such Contracts have been, are or may hereafter be given are
hereinafter collectively referred to as the "Contractors").
0.3. All warranties, guarantees, and other rights of
Borrower, direct and indirect, against manufacturers, dealers, suppliers,
Contractors and others in connection with the work done or to be done and the
materials supplied or to be supplied for the Project (together, the
"Warranties").
1. Assignment. Borrower hereby assigns, transfers and sets
over unto Lender all of Xxxxxxxx's right, title and interest in and to the
Additional Collateral and all rights and benefits therefrom, as security for the
full, timely and faithful repayment by Borrower of the Loan and performance of
all of the obligations under the Loan Documents, to the fullest extent permitted
by law and by the terms of the Additional Collateral.
2. Prior to Default; Notice of Default. Until the occurrence
of an Event of Default under any of the Loan Documents, Borrower may retain, use
and enjoy the benefits of the Additional Collateral. Upon the occurrence of any
Event of Default under any of the Loan Documents, Lender may enforce this
Assignment upon notice to Borrower. The affidavit or written statement of an
officer, agent or attorney of Xxxxxx stating that there has been an Event of
Default shall constitute conclusive evidence thereof, and any of the
Governmental Authorities and Contractors or any other person is authorized and
directed to rely thereon.
3. Remedies.
3.1. Upon the occurrence of any Event of Default,
Lender may elect to exercise any and all of Borrower's rights and remedies to,
upon and under the Additional Collateral, without any interference or objection
from Borrower, and Borrower shall cooperate in causing the Contractors to comply
with all the terms and conditions of the Contracts.
3.2. Upon the occurrence of any Event of Default
under any Loan Document, if and to the extent permitted by law and the terms of
the Additional Collateral, Lender may, with or without entry upon the Premises,
at its option, exercise any one or more of the following rights, powers and
remedies: (a) take over and enjoy the benefits of the Licenses, Contracts and
the other Additional Collateral and exercise Borrower's rights under the
Additional Collateral, and perform all acts in the same manner and to the same
extent as Xxxxxxxx is entitled; (b) enter and take possession of the Premises;
and (c) take over and assume the management, operation and maintenance of the
Premises and perform in its own name or in the name of Borrower all acts
necessary and proper in connection therewith. Borrower hereby appoints Lender
its attorney-in-fact to enforce such remedies and to otherwise enforce the
purposes of this Assignment. The aforesaid power of attorney shall be deemed
coupled with an interest and shall be irrevocable. In connection with any and
all of the foregoing powers, and without limiting the same, Lender may effect
new Contracts, Licenses and Warranties, cancel or surrender existing Contracts,
Licenses and Warranties, alter and amend the terms of and renew existing
Contracts and Licenses, and make concessions to Governmental Authorities and
Contractors and warrantors. Borrower hereby releases any and all claims which it
has or might have against Lender arising out of any such action by Xxxxxx.
4. Faithful Performance. Xxxxxxxx agrees faithfully to observe
and perform all of the obligations and agreements imposed upon Borrower under
the Licenses, Contracts and Warranties. From and after the date hereof, no
Contract or License may be altered, amended or canceled.
5. No Assumption by Xxxxxx. Lender will not be deemed in any
manner to have assumed any liabilities or obligations relating to any of the
Additional Collateral, nor shall Lender be liable to Governmental Authorities or
Contractors by reason of any default by any party under the Licenses or
Contracts. Xxxxxxxx agrees to indemnify and to hold Lender harmless of and from
any and all liability, loss or damage which it may or might incur by reason of
any claims or demands against it based on its alleged assumption of Xxxxxxxx's
duty and obligation to perform and discharge the terms, covenants and agreements
of said Licenses, Contracts and Warranties.
6. Liberal Construction; Advances by Xxxxxx. All of the
foregoing powers herein granted to Lender shall be liberally construed. Any
amounts expended by Xxxxxx in the exercise of its rights hereunder, together
with any reasonable attorneys' fees incurred in connection herewith, shall be
considered advances for and on behalf of Xxxxxxxx, secured by this Assignment
and also evidenced and secured by the other Loan Documents. Any amounts so
advanced shall bear interest at the Default Rate set forth in the Note from the
respective dates of any such advances to the date of repayment in full.
7. Copies Furnished. Borrower shall, upon request of Xxxxxx,
furnish Lender with a complete list of all Contracts, Licenses and Warranties.
Further, if requested, Xxxxxxxx shall deliver to Lender executed or certified
copies of all Contracts, Licenses, Warranties and other written agreements,
correspondence and memoranda between Borrower (and its predecessors in title)
and Contractors and Governmental Authorities setting forth the contractual and
other arrangements between them. Such requests may be made at any reasonable
time. Monthly requests, or more frequent requests if made after the occurrence
of an Event of Default, shall be deemed reasonable.
8. No Waiver, Mortgagee in Possession or Joint Venture.
Nothing herein contained shall be construed as making Lender a mortgagee in
possession, or as constituting a waiver or suspension by Lender of its right to
enforce payment of the debts under the terms of the Loan Documents. Xxxxxx is
not the agent, partner or joint venturer of either the Borrower or of any of the
Contractors or Governmental Authorities.
9. Xxxxxx's Option to Enforce. This Assignment may be enforced
from time to time by Xxxxxx in its discretion, with or without order of any
court, and with or without appointment of a receiver, as Lender shall determine.
Lender may also, at any time, cease to enforce this Assignment. Any failure on
the part of Lender promptly to exercise any option hereby given or reserved
shall not prevent the exercise of any such option at any time thereafter. Lender
may pursue and enforce any remedy or remedies accorded it herein independently
of, in conjunction or concurrently with, or subsequent to its pursuit and
enforcement of any remedy or remedies which it may have under any of the Loan
Documents under law or at equity.
10. Warranties and Representations. Borrower warrants and
represents that:
10.1. It has the right, power and authority to
execute and deliver this Assignment.
10.2. All third party consents and approvals
necessary to effectuate this Agreement, if any, have been obtained and are in
full force and effect.
10.3. It has made no prior assignment of the
Additional Collateral.
10.4. All Additional Collateral which exists on the
date hereof is in full force and effect on the date hereof, subject to no
appeal, claims, litigation, defaults, defenses, setoffs or counterclaims
whatsoever. All fees required for the full effectiveness of each existing
License have been paid in full.
10.5. There exists no event, condition or occurrence
which constitutes, or which with notice or the passage of time would constitute,
a breach of or default under any term or condition of any of the Additional
Collateral. Borrower hereby covenants and agrees not to do any act which would
destroy or impair the security to the Lender of this Assignment.
11. Termination of Assignment. This Assignment shall terminate
upon the repayment in full of the Note and the full performance of the
obligations under the Loan Documents.
12. Construction. When the content so requires, the singular
shall include the plural and conversely, and use of any gender shall include all
genders.
13. Notices. All notices and other communications under this
Assignment shall be made in accordance with Section 8.6 of the Loan Agreement.
14. JURISDICTION. BORROWER HEREBY SUBMITS AND CONSENTS TO THE
JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA AND THE COURTS OF
THE UNITED STATES LOCATED IN THE COMMONWEALTH OF PENNSYLVANIA IN ANY AND ALL
ACTIONS OR PROCEEDINGS ARISING HEREUNDER OR PURSUANT HERETO, AND IRREVOCABLY
AGREES TO SERVICE OF PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS
ADDRESS SET FORTH HEREIN OR SUCH OTHER ADDRESS AS BORROWER MAY DIRECT BY NOTICE
TO LENDER. BORROWER IRREVOCABLY AS AN INDEPENDENT COVENANT WAIVES A JURY TRIAL
AND THE RIGHT THERETO IN ANY ACTION OR PROCEEDING BETWEEN BORROWER AND LENDER,
WHETHER HEREUNDER OR OTHERWISE.
15. Headings. The headings preceding the text of the
paragraphs of this Assignment are inserted only for convenience of reference and
shall not constitute a part of this Assignment, nor shall they in any way affect
its meaning, construction or effect.
16. Miscellaneous. This Assignment (a) shall be governed by
and construed according to the law of the Commonwealth of Pennsylvania (but not
including the choice of law provisions thereof), (b) shall be binding upon
Borrower, its successors and assigns, including any subsequent owner of the
Premises, and shall inure to the benefit of Lender, its successors and assigns,
including any assignee of or participant in the Loan, and (c) may not be amended
except by a written agreement executed by the parties hereto.
IN WITNESS WHEREOF, Xxxxxxxx has caused this Assignment to be
duly executed as of the day and year first above mentioned.
WITNESS:
_________________________ By: ____________________________
Name: Name:
Title:
[CORPORATE SEAL]
_______________________:
: ss.
COUNTY OF______________:
On this _______________ day of ____________, 1998, before me,
a Notary Public in and for the aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
____________________ of , a ________________________, and that he, as such
______________ being authorized to do so, executed the foregoing instrument for
the purposes therein contained by signing the name of such corporation by
himself as such ___________________.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
[Notarial Seal] _________________________________
Notary Public
My Commission Expires:
EXHIBIT A