Exhibit 10.14
AMENDED, RESTATED AND CONSOLIDATED SECURITY AGREEMENT
THIS AGREEMENT entered into as of the 14th day of March, 2002, by and
between BALANCED CARE TENANT (MT), INC., a Delaware corporation, with its
principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (hereinafter referred to as the "Debtor"), and MEDITRUST ACQUISITION
COMPANY II LLC, a Delaware limited liability company with its principal place of
business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter,
the "Secured Party").
W I T N E S S E T H
WHEREAS, the Secured Party is the holder of the landlord's interest under
those certain twelve (12) Facility Lease Agreements more particularly described
in EXHIBIT A attached hereto (collectively, the "Existing Leases");
WHEREAS, the Debtor, Affiliates of the Debtor, the Secured Party and La
Quinta TRS, Inc. are parties to that certain Option, Settlement and Release
Agreement dated February 6, 2002 (the "Option Agreement"), pursuant to which,
among other things, (i) the Secured Party and the Debtor agreed to amend,
restate and consolidate the Existing Leases pursuant to that certain Master
Facility Lease Agreement of even date herewith to be executed simultaneously
herewith by and between the Secured Party and the Debtor (the "Lease") and (ii)
the Secured Party and the Debtor agreed to execute and deliver this Agreement as
additional security for the Obligations (as defined under the Lease);
WHEREAS, all of the Third Party Lessees (as defined under the Option
Agreement) have been merged into the Debtor with the Debtor being the surviving
entity (collectively, the "Mergers");
WHEREAS, pursuant to the Option Agreement, Balanced Care at ▇▇▇▇▇▇▇▇, Inc.
(the "Potomac Point Lessee") has assigned its interest under the Potomac Point
Lease Documents (as defined in the Option Agreement) to the Debtor and the
Debtor has assumed the Potomac Point Lessee's obligations under the Potomac
Point Lease Documents (the "Potomac Point Assignment");
WHEREAS, as a consequence of the Mergers and the Potomac Point Assignment,
the Debtor is the holder of the tenant's interest under the Existing Leases and
is party to and bound by
the agreements listed on EXHIBIT B attached hereto (collectively, the "Existing
Security Agreements"), which Existing Security Agreements provide additional
security for the obligations under the Existing Leases; and
WHEREAS, in connection with the amendment, restatement and consolidation
of the Existing Security Agreements, the Secured Party and the Debtor have
agreed that the Existing Security Agreements be amended, restated and
consolidated;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties hereto, which consideration
includes (a) the Secured Party's agreement to enter into the Option Agreement
and grant the Option Right (as defined under the Option Agreement) to the Buyer,
(b) the Secured Party's agreement to the "IPC/BCC Release" and the "BCC Release"
(as such terms are defined under the Option Agreement) and (c) the Secured
Party's agreement, notwithstanding the Existing Defaults (as defined under the
Option Agreement), to consent to the Stock Transfers (as defined under the
Option Agreement), the parties hereto agree to amend and restate the Existing
Security Agreements in their entirety and to that end agree that this Amended,
Restated and Consolidated Security Agreement shall be deemed effective as of the
date hereof, shall supersede the Existing Security Agreements in their entirety
and shall be referred to herein as the "Agreement". The parties hereto further
agree as follows:
ARTICLE 1. GRANT OF SECURITY INTEREST
1.1 To secure the prompt, punctual and faithful performance of all and
each of the present and future Obligations, the Debtor hereby grants to the
Secured Party a continuing first priority security interest in and to, and
assigns to the Secured Party, all of the Debtor's right, title and interest in
the following properties, assets and rights, all wherever located and whether
now existing or hereafter acquired or arising (all of which, together with any
other property in which the Secured Party may in the future be granted a
security interest pursuant hereto, is referred to hereinafter as the
"Collateral"): (a) all Accounts and all Receivables; (b) all Inventory; (c) all
General Intangibles; (d) all Equipment; (e) all Fixtures; (f) all Goods; (g) all
Tangible Personal Property (as defined under the Lease); (h) all Chattel Paper;
(i) all books, records, ledgers, print-
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outs, papers, data, file materials and information relating to the Leased
Property (as defined under the Lease), the Collateral, any account debtors in
respect thereof and/or to the operation of the Debtor's business, and all rights
of access to such books, records, ledgers, print-outs, papers, file materials
and information, and all property in which such books, records, ledgers,
print-outs, data, file materials and information are stored, recorded, and
maintained; (j) all Instruments, Documents of Title, Documents, policies and
certificates of insurance, Securities, deposits, Deposit Accounts, Letters of
Credit, money, cash or other property; (k) all federal, state, and local tax
refunds and/or abatements to which the Debtor is, or becomes entitled, no matter
how or when arising, including, but not limited to any loss carryback tax
refunds; (l) all trade secrets, computer programs, customer lists, patient
lists, manuals, assignments of patents and patents pending, developmental ideas
and concepts, and all papers, drawings, blueprints, sketches and documents
relating to all of the foregoing and/or relating to the operation of the
Debtor's business and/or the Collateral; (m) all Letter of Credit Rights; and
(n) all insurance proceeds, refunds and premium rebates, whether any of such
proceeds, refunds and premium rebates arise out of any of the foregoing or
otherwise; together with (i) all security pledged, assigned, hypothecated or
granted to or held by the Debtor to secure any of the foregoing, (ii) all
proceeds of the foregoing, (iii) General Intangibles arising out of the Debtor's
rights in any Goods, the sale of which gave rise thereto, (iv) any property
received in payment, settlement or compromise of any Account or Receivable, (v)
all guarantees, endorsements and indemnifications on, or of, any of the
foregoing, (vi) all rights, remedies and privileges pertaining to any of the
foregoing, (vii) all powers of attorney for the execution of any evidence of
indebtedness or security or other writing in connection therewith, (viii) all
evidences of the filing of financing statements and other statements and the
registration of other instruments in connection therewith and amendments thereto
and (ix) all of the Debtor's rights to use, in perpetuity, in connection with
the operation of the Facilities, the following names, as well as any other names
similar thereto and the good will of the Debtor with respect thereto: [PLEASE
PROVIDE LIST OF ALL NAMES USED IN CONNECTION WITH OPERATION OF THE FACILITIES]
1.2 The Debtor shall execute, upon request of the Secured Party, all
such instruments as may be required by the Secured Party with respect to the
perfection of the security interests
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granted herein. In addition, at the Secured Party's request, the Debtor shall
use commercially reasonable efforts to cause its depository bank, with respect
to Deposit Accounts, or issuer bank or other nominated person, with respect to
Letter of Credit Rights, to execute a control agreement that requires the
depository bank to act on the Secured Party's instruction, or the issuer bank of
any letter of credit or other nominated person to consent to an assignment of
proceeds under Section 5-114 of the UCC, or any other document or action
necessary to perfect the Secured Party's security interest in Deposit Accounts
or Letter of Credit Rights. A carbon, photographic, or other reproduction of
this Agreement or of any financing statement or other instrument prepared or
executed pursuant to this Section 1.2 shall be sufficient for filing to perfect
the security interests granted herein, to the extent permitted under applicable
law.
ARTICLE 2. CERTAIN DEFINITIONS
All capitalized terms not defined herein shall have the same meanings
ascribed to such terms under the Lease.
As herein used, the following terms have the following meanings:
2.1 The term "Accounts" shall have the same meaning ascribed to such
term under the UCC and shall include, without limitation, all payments to be
made under (and the rights to receive payments under) Residence Agreements and
Health-care-insurance receivables.
2.2 The term "Chattel Paper" shall have the same meaning ascribed to
such term under the UCC, including, without limitation, Electronic Chattel Paper
and Tangible Chattel Paper.
2.3 The term "Collateral" shall have the same meaning ascribed to such
term in Section 1.1.
2.4 The term "Debtor" shall have the same meaning ascribed to such term
in the preamble of this Agreement.
2.5 The term "Deposit Account" shall have the same meaning ascribed to
such term under the UCC.
2.6 The term "Documents" shall have the same meaning ascribed to such
term under the UCC.
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2.7 The term "Documents of Title" shall have the same meaning ascribed
to such term under the UCC.
2.8 The term "Electronic Chattel Paper" shall have the same meaning
ascribed under the UCC.
2.9 The term "Equipment" shall have the same meaning ascribed to such
term under the UCC.
2.10 The term "Event of Default" shall have the same meaning ascribed to
such term in Article 5 of this Agreement.
2.11 The term "Fixtures" shall have the same meaning ascribed to such
term under the UCC.
2.12 The term "General Intangibles" shall have the same meaning ascribed
to such term under the UCC.
2.13 The term "Goods" shall have the same meaning ascribed to such term
under the UCC.
2.14 The term "Health-Care-Insurance Receivable" shall have the same
meaning ascribed to such term under the UCC.
2.15 The term "Instruments" shall have the same meaning ascribed to such
term under the UCC.
2.16 The term "Inventory" shall have the same meaning ascribed to such term
under the UCC.
2.17 The term "Lease" shall have the same meaning ascribed to such term
in the preamble of this Agreement.
2.18 The term "Letter of Credit Rights" shall have the same meaning
ascribed to such term under the UCC.
2.19 The term "Letters of Credit" shall mean all letters of credit naming
Debtor as a beneficiary.
2.20 The term "Liable Person" shall have the same meaning ascribed to
such term in Section 7.3.
2.21 The term "Proceeds" shall have the meaning ascribed to such term
under the UCC.
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2.22 The term "Receivables" shall mean collectively, all (i) Instruments,
Documents, Accounts, Proceeds, General Intangibles and Chattel Paper and (ii)
rights to payment for goods sold or leased or services rendered by Debtor or any
other party, whether now in existence or arising from time to time hereafter and
whether or not yet earned by performance, including, without limitation,
obligations evidenced by an account, note, contract, security agreement, chattel
paper, or other evidence of indebtedness.
2.23 The term "Receivables Collateral" refers to the Debtor's Accounts,
Deposit Accounts, Receivables, Chattel Paper, Instruments, Documents of Title,
Documents, Securities, Letters of Credit, Letter of Credit Rights and any other
rights to payment now held or in which the Debtor has an interest, or hereafter
acquired, or in which the Debtor obtains an interest.
2.24 The term "Secured Party" shall have the meaning ascribed to such
term in the preamble of this Agreement.
2.25 The term "Secured Party's Rights and Remedies" shall have the
meaning ascribed to such term in Section 6.4.
2.26 The term "Securities" shall have the same meaning ascribed to such
term under the UCC.
2.27 The term "Tangible Chattel Paper" shall have the same meaning
ascribed to such term under the UCC.
2.28 The term "UCC" shall mean the Uniform Commercial Code as adopted in
the Commonwealth of Massachusetts.
ARTICLE 3. REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 Subject to Section 6.1.2 of the Lease, the Debtor is, and shall
hereafter remain, the owner of the Collateral free and clear of all Liens and
charges with the exceptions of (a) the security interests created herein and (b)
the security interests and other encumbrances, if any, listed in Schedule 3.1
attached hereto and incorporated herein by reference as a material part hereof.
3.2 The Collateral is and shall be kept and maintained solely at the
following locations (hereinafter collectively
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referred to as the "Premises"): the Leased Property and/or the Debtor's
Principal Place of Business.
3.3 The Debtor, from time to time, upon reasonable notice and during
normal business hours (except in the case of an emergency), shall accord the
Secured Party and the Secured Party's representatives with such access, to all
properties owned by or over which the Debtor has control, as the Secured Party
and its representatives may reasonably require and in connection with such
access, the Debtor shall permit the Secured Party and such representatives, to
examine, inspect, copy, access and make extracts from any and all of the
Collateral, including, but not limited to, any and all of the Debtor's books,
records, electronically stored data, recorded data (regardless of the medium of
recording), papers, file materials and information (including, without
limitation, all records relating to Accounts and Receivables, the Debtor's
efforts to collect the Accounts and Receivables and any dispute relating to any
Accounts and Receivables), and to verify the Collateral or any portion thereof
(such verification, may include, without limitation, contact with account
debtors). The Debtor shall make available to the Secured Party, at no cost to
the Secured Party, any copying facilities available to the Debtor. The Debtor
shall provide the Secured Party with such information concerning the Debtor, the
Collateral, the operation of the Debtor's business, and the Debtor's financial
condition as the Secured Party may reasonably request from time to time. Until
the expiration or termination of this Agreement, the Debtor agrees not to
destroy any of the Collateral (including, without limitation, all books,
records, ledgers, print-outs, electronically stored data, recorded data, papers,
file materials and information relating to the Collateral), except in the
ordinary course of business to the extent permitted under the Lease. The
obligations of the Debtor hereunder are subject to, and the parties hereto shall
comply with, all applicable Legal Requirements pertaining to the maintenance and
confidentiality of patient records. The provisions contained in this Section 3.3
shall survive the expiration or termination of this Agreement.
3.4 The amount represented by the Debtor to the Secured Party from time
to time as owing by each account debtor or by all account debtors in respect of
the Accounts and Receivables will at such time in all material respects be the
correct amount actually owing by such account debtor or debtors thereunder.
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3.5 Subject to the terms of the Lease, the Debtor (a) promptly shall
pay, as they become due and payable, all taxes, unemployment contributions and
all other charges of any kind or nature levied, assessed, or claimed against the
Debtor or the Collateral by any Person whose claim could result in a Lien upon
assets of the Debtor or by any Governmental Authority, (b) properly shall
exercise any trust responsibilities imposed upon the Debtor in connection with
amounts withheld from employees' pay and (c) timely shall make all contributions
and other payments as may be required pursuant to any employee benefit plan now
or hereafter established by the Debtor. At its option, the Secured Party may,
but shall not be obligated, to pay all taxes, unemployment contributions, and
any and all other charges levied, assessed, or claimed against the Debtor or
upon the Collateral by any Person or Governmental Authority, and to make all
contributions or other payments on account of the Debtor's employee benefit
plans as the Secured Party may, in its discretion, deem necessary or desirable
to protect, maintain, preserve, collect, or realize upon any or all of the
Collateral or the value thereof or any right or remedy pertaining thereto.
3.6 The Debtor shall comply with all, and shall not use or permit the
use of any of the Collateral in violation of any, Legal Requirement.
3.7 Subject to the terms of the Lease, the Debtor shall not sell or
offer to sell, lease, or otherwise transfer or dispose of the Collateral or any
part thereof or any interest therein, except, with respect to Inventory, Goods,
Equipment, Fixtures and Tangible Personal Property, in the ordinary conduct of
the Debtor's business.
3.8 Without limiting any of the Debtor's obligations hereunder or under
any of the other Lease Documents, upon the occurrence of an Event of Default,
the Debtor shall promptly deliver to the Secured Party, in the same form as
received by the Debtor, all original items of the Receivables Collateral and all
security or collateral for, guarantees of, and Letters of Credit, trade and
bankers' acceptances, and similar letters and instruments in respect of, any of
the Receivables Collateral, each duly endorsed, assigned or otherwise made
payable to the Secured Party.
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3.9 The Debtor shall have and maintain insurance at all times with
respect to the Collateral that is required pursuant to the terms of the Lease.
3.10 The Debtor shall do, make, execute and deliver all such additional
and further acts, things, deeds, assurances and instruments as the Secured Party
may reasonably request, to vest more completely in and assure to the Secured
Party its rights hereunder and in or to the Collateral including, without
limitation, compliance with the Federal Assignment of Claims Act.
3.11 The agreements, representations, covenants and warranties contained
herein are in addition to any others previously, presently or hereafter made by
the Debtor to or with the Secured Party in any other instrument.
3.12 From and after the occurrence of an Event of Default and subject to
applicable law, the Secured Party may, in its sole and absolute discretion,
require the Debtor to establish a lock box with a bank or other financial
institution designated by the Secured Party. If such a lock box is established,
the Debtor shall thereafter require all of its account and contract debtors to
make payment directly to such lock box.
ARTICLE 4. COLLECTION OF ACCOUNTS RECEIVABLE,
CONTRACT RIGHTS AND OTHER RECEIVABLES COLLATERAL.
4.1 From and after the occurrence of an Event of Default and subject to
applicable law, (a) the Secured Party may notify any of the Debtor's account or
contract debtors, either in the name of the Secured Party or the Debtor, to make
payment directly to the Secured Party or such other address as may be specified
by the Secured Party, and may advise any Person of the Secured Party's security
interest in and to the Receivables Collateral, and may collect directly from the
obligors thereon, all amounts due on account of the Receivables Collateral and
(b) at the Secured Party's request, the Debtor will provide written
notifications to any or all of the Debtor's account or contract debtors
concerning the Secured Party's security interest in the Receivables Collateral
and will request that such account or contract debtors forward payment thereof
directly to the Secured Party.
4.2 From and after the date hereof, the Debtor shall hold any proceeds
and collections of any of the Collateral in trust
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for the Secured Party, provided that, without limiting any provisions of the
other Lease Documents, until the occurrence of an Event of Default, the Debtor
may use such proceeds to pay bills in the ordinary course of business. From and
after the occurrence of an Event of Default (a) the Debtor shall not commingle
such proceeds or collections with any other funds of the Debtor and (b) upon
demand, the Debtor shall deliver all such proceeds to the Secured Party
immediately upon the receipt thereof by the Debtor in the identical form
received but duly endorsed or assigned on behalf of the Debtor to the Secured
Party.
4.3 The Debtor hereby irrevocably constitutes and appoints the Secured
Party as the Debtor's true and lawful attorney, with full power of substitution,
such powers to be effective following the occurrence of an Event of Default, to
convert the Receivables Collateral into cash at the sole risk, cost, and expense
of the Debtor, but for the sole benefit of the Secured Party. Subject to
applicable law, the rights and powers granted the Secured Party by the within
appointment include but are not limited to the right and power to: prosecute,
defend, compromise, settle, or release any action relating to the Collateral;
receive, open, and dispose of all mail addressed to the Debtor and to take
therefrom any remittances on or proceeds of any Collateral; sign change of
address forms to change the address to which the Debtor's mail is to be sent as
the Secured Party shall designate; endorse the name of the Debtor in favor of
the Secured Party upon any and all checks or other items constituting
remittances or proceeds of Collateral; sign and endorse the name of the Debtor
on, and to receive as secured party, any of the Collateral, any invoices,
schedules of Collateral, freight or express receipts, or bills of lading,
storage receipts, warehouse receipts, or other documents of title of a same or
different nature relating to the Collateral; sign the name of the Debtor on any
notice to the obligors on the Receivables Collateral; take all such action as
may be necessary to obtain the payment on any Letter of Credit of which the
Debtor is a beneficiary; take all action as may be necessary to obtain control
of, and obtain payment from, any Deposit Accounts or Letter of Credit Rights;
and sign and file or record on behalf of the Debtor any financing or other
statement in order to perfect or protect the Secured Party's security interest.
The Secured Party shall not be obligated to perform any of such acts or to
exercise any of such powers, but if the Secured Party elects so to perform or
exercise, the Secured Party shall not be accountable for more than it actually
receives as a
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result of such exercise of power, and shall not be responsible to Debtor except
for the Secured Party's actual willful misconduct. All powers conferred upon the
Secured Party by this Agreement, being coupled with an interest, shall be
irrevocable until terminated by a written instrument executed by a duly
authorized officer of the Secured Party and shall not be affected by any
disability or incapacity which the Debtor may suffer and shall survive the same.
The power of attorney conferred on the Secured Party pursuant to the provisions
of this Article 4 is provided solely to protect the interests of the Secured
Party and shall not impose any duty on the Secured Party to exercise any such
power, and neither the Secured Party nor such attorney-in-fact shall be liable
for any act, omission, error in judgment or mistake of law, except as the same
may result from its gross negligence or willful misconduct.
ARTICLE 5. EVENTS OF DEFAULT
Upon the occurrence of a default beyond the applicable notice and/or grace
periods, if any, under this Agreement or any of the other Lease Documents (each,
hereinafter referred to as an "Event of Default" hereunder), at the option of
the Secured Party, the Lease Obligations shall become immediately due and
payable by the Debtor; in addition to which, the Secured Party may exercise its
rights and remedies upon default, as set forth under this Agreement. The
occurrence of any such Event of Default shall also constitute, without notice or
demand, a default under all other Related Party Agreements.
ARTICLE 6. RIGHTS AND REMEDIES UPON DEFAULT
6.1 Upon the occurrence of any Event of Default and at any time
thereafter, the Secured Party shall have all of the rights and remedies of a
secured party upon default under the UCC; in addition to which, the Secured
Party shall have all of the following rights and remedies: (a) to collect the
Receivables Collateral; (b) to take possession of the Collateral and to maintain
and to use the same at the Premises (or elsewhere) pending any disposition
thereof; (c) to sell, lease, or otherwise dispose of any or all of the
Collateral in its then condition or following such preparation or processing as
the Secured Party deems advisable having due regard to compliance with any
statute or regulation which might affect, limit, or apply to the Secured Party's
disposition of the Collateral; and/or (d) to apply the Receivables Collateral,
or the proceeds of the Collateral,
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towards (but not necessarily in complete satisfaction of) the Lease Obligations
in such order as the Secured Party may determine (in its sole and absolute
discretion). The Secured Party may conduct any such sale or other disposition of
the Collateral at the Premises (or elsewhere). Unless the Collateral is
perishable, threatens to decline speedily in value, or is of a type customarily
sold on a recognized market (in which event the Secured Party shall give the
Debtor such notice as may be practicable under the circumstances), the Secured
Party shall give the Debtor at least the greater of the minimum notice required
by law or seven (7) days' prior written notice of the date, time and place of
any proposed public sale, and/or of the date after which any private sale or
other disposition of the Collateral may be made. The Secured Party may purchase
the Collateral, or any portion of it, at any public sale conducted pursuant to
this Agreement.
6.2 In connection with the Secured Party's exercise of the Secured
Party's Rights and Remedies, in accordance with and to the maximum extent
permitted by applicable law, the Secured Party may enter upon, occupy, and use
any premises owned or occupied by the Debtor, and may exclude the Debtor from
such premises or portion thereof as may have been so entered upon, occupied, or
used by the Secured Party. The Secured Party shall not be required to remove any
of the Collateral from any such premises upon the Secured Party's taking
possession thereof, and may render any Collateral unusable to the Debtor. In no
event shall the Secured Party be liable to the Debtor for use or occupancy by
the Secured Party of any premises pursuant to this Agreement, nor for any charge
(such as wages for the Debtor's employees and utilities) incurred in connection
with the Secured Party's exercise of the Secured Party's Rights and Remedies.
6.3 Upon the occurrence of any Event of Default, the Secured Party may
require the Debtor to assemble the Collateral and make it available to the
Secured Party at the Debtor's sole risk and expense at a place or places
designated by the Secured Party which are reasonably convenient to both the
Secured Party and the Debtor.
6.4 The rights, remedies, powers, privileges, and discretions of the
Secured Party hereunder and under the other Lease Documents (herein, the
"Secured Party's Rights and Remedies") shall be cumulative and not exclusive of
any rights or remedies which it otherwise may have. No delay or omission by
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the Secured Party in exercising or enforcing any of the Secured Party's Rights
and Remedies shall operate as, or constitute, a waiver thereof. No waiver by the
Secured Party of any Event of Default shall operate as a waiver of any other
default hereunder or under any of the other Lease Documents. No exercise of any
of the Secured Party's Rights and Remedies and no other agreement or transaction
of whatever nature entered into between the Secured Party and the Debtor at any
time, shall preclude any other exercise of the Secured Party's Rights and
Remedies. No waiver by the Secured Party of any of the Secured Party's Rights
and Remedies on any one occasion shall be deemed a waiver on any subsequent
occasion, nor shall it be deemed a continuing waiver. All of the Secured Party's
Rights and Remedies and all of the Secured Party's rights, remedies, powers,
privileges, and discretions under any Related Party Agreement are cumulative and
not alternative or exclusive and may be exercised by the Secured Party at such
time or times and in such order of preference as the Secured Party in its sole
discretion may determine.
ARTICLE 7. MISCELLANEOUS
7.1 The Secured Party shall have no duty as to the collection or
protection of the Collateral beyond the safe custody of such of the Collateral
as may come into the possession of the Secured Party and shall have no duty as
to the preservation of rights against prior parties or of any other rights
pertaining thereto. The Secured Party's Rights and Remedies may be exercised
without resort or regard to any other source of satisfaction of the Lease
Obligations.
7.2 The obligations of the Debtor under this Agreement shall continue in
full force and effect until all of the Lease Obligations have been fully paid
and performed.
7.3 The Secured Party shall be at liberty, without giving notice to or
obtaining the assent of the Debtor and without relieving the Debtor of any of
the Lease Obligations, to deal with each other Person who now is or after the
date hereof becomes liable in any manner for any of the Lease Obligations (a
"Liable Person"), in such manner as the Secured Party in its sole discretion
deems fit, and to this end the Debtor gives to the Secured Party full authority
in its sole discretion to do any or all of the following things: (a) extend
credit, make loans, and afford other financial accommodations to any Liable
Person, enter into leases of real and personal property and agreements and
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contracts of any nature whatsoever, at such times, in such amounts, and on such
terms as the Secured Party may approve, (b) vary the terms and grant extensions
or renewals of any present or future indebtedness or obligation to the Secured
Party of any Liable Person, (c) grant time, waivers, and other indulgences in
respect thereto, (d) vary, exchange, release or discharge, wholly or partially,
or delay in or abstain from perfecting and enforcing any security or guaranty or
other means of obtaining payment of any of the Lease Obligations which the
Secured Party now has or acquires after the date hereof, (e) accept partial
payments from any Liable Person, (f) release or discharge, wholly or partially,
any endorser or guarantor and (g) compromise or make any settlement or other
arrangement with any Liable Party. The Debtor waives all suretyship defenses of
every kind and nature.
7.4 This Agreement shall be in addition to any guaranty or other
security for the Lease Obligations, and it shall not be prejudiced or rendered
unenforceable by the invalidity of any such guaranty or other security.
7.5 The Debtor waives: notice of acceptance hereof, notice of any action
taken or omitted by the Secured Party in reliance hereon, and any requirement
that the Secured Party be diligent or prompt in making demands hereunder, giving
notice of any default by a Liable Person or asserting any other right of the
Secured Party hereunder. The Debtor also irrevocably waives, to the fullest
extent permitted by law, all defenses which at any time may be available in
respect of the Debtor's obligations hereunder by virtue of any homestead
exemption, statute of limitations, valuation, stay, moratorium law or other
similar law now or hereafter in effect.
7.6 As long as the Lease Obligations remain unpaid or undischarged, the
Debtor will not, by paying any sum recoverable hereunder (whether or not
demanded by the Secured Party) or by any means or on any other ground, claim any
set-off or counterclaim against any Liable Person in respect of any liability of
the Debtor to such Liable Person or, in proceedings under the bankruptcy or
other similar laws of the United States, any state or any other jurisdiction or
any insolvency proceedings of any nature, prove in competition with the Secured
Party in respect of any payment hereunder or be entitled to have the benefit of
any counterclaim or proof of claim or dividend or payment by or on behalf of any
Liable Person or the benefit of
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any other security for any Liability which, now or hereafter, the Secured Party
may hold or in which it may have any share.
7.7 The Debtor shall pay, on demand, all costs and expenses (including,
without limitation, attorneys' fees and expenses) now or hereafter reasonably
incurred by the Secured Party (a) in connection with the protection or
enforcement of any of the Secured Party's rights and remedies against the
Debtor, any of the Collateral, and any other Liable Person (including, without
limitation, the exercise of any of the Secured Party's Rights and Remedies)
and/or (b) on account of the Secured Party's relationship with any member of the
Leasing Group.
7.8 This Agreement shall be construed, and the rights and obligations of
the Debtor and the Secured Party shall be determined, in accordance with the
laws of the Commonwealth of Massachusetts, except (a) that the laws of the state
where the Collateral is located shall govern this Agreement to the extent
necessary to perfect and/or enforce the Liens created by this Agreement and to
the extent necessary to obtain the benefit of the rights and remedies set forth
herein with respect to the Collateral and (b) for procedural requirements which
must be governed by the laws of the state in which the Collateral is located. To
the maximum extent permitted by applicable law, the Debtor hereby submits to the
jurisdiction of the courts of the Commonwealth of Massachusetts and the United
States District Court for the District of Massachusetts, as well as to the
jurisdiction of all courts from which an appeal may be taken from the aforesaid
courts, for the purpose of any suit, action or other proceeding arising out of,
or with respect to any of the Lease Documents, the negotiation and/or
consummation of the transactions evidenced by the Lease Documents, the Lessor's
relationship of any member of the Leasing Group in connection with the
transactions evidenced by the Lease Documents and/or the performance of any
obligation or the exercise of any remedy under any of the Lease Documents and
expressly waives any and all objections the Debtor may have as to venue in any
of such courts.
7.9 This Agreement shall remain in full force and effect until
specifically terminated in writing by a duly authorized officer of the Secured
Party. In the event that any of the Lease Obligations remain outstanding, such
termination by the Secured Party may be conditioned upon such further
indemnifications provided to the Secured Party by or on behalf of the Debtor as
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the Secured Party may request. Until specifically terminated in writing as set
forth above, this Agreement shall itself constitute conclusive evidence of
validity, effectiveness and continuing force hereof and any Person may rely
hereon. Upon the satisfaction in full of all of the Lease Obligations, the
Secured Party, upon the written request of the Debtor, shall execute and deliver
to the Debtor, at the Debtor's expense, all instruments of assignment or other
instruments as may be necessary to establish full title of the Debtor to the
Collateral, subject to any prior sale or other disposition pursuant to the terms
and provisions of this Agreement.
7.10 It is intended that the security interests created by this Agreement
attached to all of the Debtor's assets now owned or hereafter acquired which are
capable of being subject to a security interest.
7.11 The Debtor acknowledges having received a copy of this Agreement.
7.12 The provisions set forth in Article 22, Article 23 and Sections 2.2,
16.8 through 16.10, 24.2 through 24.10 and 24.12 of the Lease are hereby
incorporated by reference, mutatis, mutandis, and shall be applicable to this
Agreement as if set forth in full herein.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Debtor and the Secured Party duly executed this
Agreement as a sealed instrument as of the day and year first above written.
WITNESS: DEBTOR:
BALANCED CARE TENANT (MT), INC., a
Delaware corporation
/s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Secretary
WITNESS: SECURED PARTY:
MEDITRUST ACQUISITION COMPANY II
LLC, a Delaware limited liability
company
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By:/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (SEAL)
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
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