EXHIBIT 10.8
FORM OF COLLATERAL ASSIGNMENT OF
MANAGEMENT AGREEMENT
This COLLATERAL ASSIGNMENT OF MANAGEMENT AGREEMENT (the "Assignment")
is made as of the 1st day of January, 2002 between BALANCED CARE TENANT (HCN),
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 PENNSYLVANIA BCC PROPERTIES, INC., a
corporation organized under the laws of the Commonwealth of Pennsylvania
("HCRI-PA/BCC"), and HCN BCC HOLDINGS, INC., a corporation organized under the
laws of the State of Delaware ("HCRI-HCN/BCC"), each with its principal office
located at One SeaGate, Suite 1500, P. O. Xxx 0000, Xxxxxx, Xxxx 00000-0000.
HCRI-PA/BCC and HCRI-HCN/BCC may be collectively called "Landlord".
R E C I T A L S
A. Landlord is granting to Tenant a lease of the real property located
in _________________, _______________ ("Property") pursuant to a Master Lease
Agreement between Landlord and Tenant of even date ("Lease"). Tenant intends to
operate a ___-unit (___-bed) _______________ facility (the "Facility") on the
Property.
B. The Facility will be managed by Financial Care Investors of
__________________, LLC, a limited liability company organized under the laws of
the State of Delaware, and Balanced Care at _____________________, Inc., a
corporation organized under the laws of the State of Delaware (collectively,
"Manager"), pursuant to a Management Agreement between Tenant and Manager of
even date, 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 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, setoff, lien or encumbrance of
any kind or nature other than such matters made by Tenant in favor of Landlord;
[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. Following the occurrence of any Event of Default under the
Lease Documents (which shall constitute a default under this Assignment) that
remains uncured beyond any applicable grace or notice period, Landlord may
elect, at its option at any time thereafter, 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 and in any event
not earlier than the date permitted under applicable law). Any such election
shall be binding upon Tenant and Manager
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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).
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. Following Landlord's assumption in
writing, Tenant shall not be liable for any actions of Landlord 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
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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 lawful action or actions.
8. Power of Attorney. Effective following the occurrence of an Event of
Default and the expiration of any applicable grace or notice period, Tenant
hereby 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.
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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 TENANT (HCN), INC.
By:/s/Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
PENNSYLVANIA BCC PROPERTIES, INC.
By:/s/Xxxx X. Xxxxx
Title: Vice President and
Corporate Secretary
HCN BCC HOLDINGS, 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 FINANCIAL CARE INVESTORS OF _____________________, LLC, a limited
liability company organized under the laws of the State of Delaware, and
BALANCED CARE AT ________________________, INC., a corporation organized under
the laws of the State of Delaware (collectively, "Manager"), each having an
address of 0000 Xxxxx Xxxxx, Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000, in favor of
PENNSYLVANIA BCC PROPERTIES, INC., a corporation organized under the laws of the
Commonwealth of Pennsylvania ("HCRI-PA/BCC"), and HCN BCC HOLDINGS, INC., a
corporation organized under the laws of the State of Delaware ("HCRI-HCN/BCC"),
each with its principal office located at One SeaGate, Suite 1500, P. O. Xxx
0000, Xxxxxx, Xxxx 00000-0000. HCRI-PA/BCC and HCRI-HCN/BCC may be collectively
called "Landlord".
1. Consent. Manager hereby consents to the foregoing Collateral
Assignment of Management Agreement (the "Assignment") made by Balanced Care
Tenant (HCN), 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 other than
such matters created by Tenant in favor of Landlord; [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, following an Event of
Default that remains uncured beyond any applicable grace or notice period under
the Lease Documents, Landlord may elect, at its option at any time thereafter,
to
exercise Tenant's rights under the Management Agreement or to terminate the
Management Agreement, in accordance with the terms and provisions of Section3 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.
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 Section5, 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 an Event of
Default under the Lease Documents, but that the right and option to exercise
such right
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or to an Event of 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.
FINANCIAL CARE INVESTORS OF
__________________, LLC
By:/s/Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
BALANCED CARE AT
____________________, INC.
By:/s/Xxxxx X. Xxxxxx
Title: Vice President and
Secretary
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