EXHIBIT A
NOTICE OF BORROWING
-------------------
[Date]
Wachovia Bank, National Association, as Administrative Agent
c/o Wachovia Securities
Real Estate Debt Capital Markets
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Charlotte, North Carolina 28288
Attn: ▇▇▇ ▇. ▇▇▇▇
Ladies and Gentlemen:
The undersigned, ElderTrust Operating Limited Partnership, a
Delaware limited partnership (the "Borrower"), refers to the Amended
and Restated Credit Agreement, dated as of August __, 2002 (as amended
from time to time, the "Credit Agreement," the terms defined therein
being used herein as therein defined), among ElderTrust, the Borrower,
various Banks (the "Banks") and you, as Administrative Agent for the
Banks, and hereby gives you irrevocable notice pursuant to Section 1.03
(a) of the Credit Agreement, that the undersigned hereby requests a
Borrowing of Revolving Loans under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing
(the "Proposed Borrowing") as required by Section 1.03(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is ______,
____. (1)
(ii) The aggregate principal amount of the Proposed Borrowing is
$__________.
(iii) The Revolving Loans to be made pursuant to the Proposed
Borrowing shall be initially maintained as [Base Rate Loans]
[Eurodollar Loans].
[(iv) The initial Interest Period for the Proposed Borrowing is
_____ month(s).] (2)
(1) Shall be a Business Day at least one Business Day in the case of
Base Rate Loans and three Business Days in the case of Eurodollar
Loans, in each case after the date hereof.
(2) To be included for a proposed Borrowing of Eurodollar Loans.
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and
correct in all material respects, both before and after giving effect
to the Proposed Borrowing and to the application of the proceeds
thereof, as though made on such date (it being understood and agreed
that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material
respects only as of such specified date);
(B) no Default or Event of Default has occurred and is continuing,
or would result from such Proposed Borrowing or from the application of
the proceeds thereof; and
(C) set forth on Annex A attached hereto is the information
required by Section 5.04(a) of the Credit Agreement, and each of the
applicable conditions referred to in Sections 5.04(c) and (d) of the
Credit Agreement has been satisfied or will be satisfied on or before
the date of the Proposed Borrowing.
Very truly yours,
ELDERTRUST OPERATING LIMITED
PARTNERSHIP
By: ElderTrust, its general partner
By: _______________________________
Name:
Title:
2
ANNEX A
[Set forth in reasonable detail the specific uses for the proceeds of
such Revolving Loans and show the categories of such uses]
3
EXHIBIT B-1
NOTE
$7,500,000 New York, New York
August 30, 2002
FOR VALUE RECEIVED, ELDERTRUST OPERATING LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Borrower"), hereby promises to pay
to GERMAN AMERICAN CAPITAL CORPORATION or its registered assigns (the
"Bank"), in lawful money of the United States of America in immediately
available funds, at the office of German American Capital Corporation
(the "Administrative Agent") located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Maturity Date (as defined in the Agreement referred
to below) the principal sum of SEVEN MILLION FIVE HUNDRED THOUSAND
DOLLARS ($7,500,000) or, if less, the unpaid principal amount of all
Loans (as defined in the Agreement) made by the Bank pursuant to the
Agreement.
The Borrower promises also to pay interest on the unpaid
principal amount hereof in like money at said office from the date
hereof until paid at the rates and at the times provided in Section
1.08 of the Agreement.
This Note is one of the Notes referred to in the Credit Agreement,
dated as of January 30, 1998, among ElderTrust, the Borrower, the
lenders from time to time party thereto (including the Bank), Deutsche
Bank AG, New York Branch, as Issuing Bank, and the Administrative Agent
(as amended, modified or supplemented from time to time, the "Agreement")
and is entitled to the benefits thereof and of the other Credit Documents
(as defined in the Agreement). This Note is secured by the Security
Documents (as defined in the Agreement) and is entitled to the benefits
of the Guaranties (as defined in the Agreement). This Note is subject
to voluntary prepayment and mandatory repayment prior to the Maturity
Date, in whole or in part, as provided in the Agreement, and Loans may
be converted from one Type (as defined in the Agreement) into another
Type to the extent provided in the Agreement.
In case an Event of Default (as defined in the Agreement) shall
occur and be continuing, the principal of and accrued interest on this
Note may be declared to be or may become due and payable in the manner
and with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice
of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
ELDERTRUST OPERATING LIMITED
PARTNERSHIP
By: ElderTrust, its general partner
By: _____________________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
2
EXHIBIT C
SECTION 3.04(b)(ii) CERTIFICATE
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of August __, 2002, among ElderTrust, ElderTrust
Operating Limited Partnership, the lenders from time to time party
thereto and Wachovia Bank, National Association, as Administrative
Agent (as amended from time to time, the "Credit Agreement").
Pursuant to the provisions of Section 3.04(b)(ii) of the Credit
Agreement, the undersigned hereby certifies that it is not a "bank"
as such term is used in Section 881(c)(3)(A) of the Internal Revenue
Code of 1986, as amended.
WACHOVIA BANK NATIONAL ASSOCIATION
By______________________________
Name:
Title:
Date: August ___, 2002
EXHIBIT D
August 30, 2002
Wachovia Bank, National Association,
as Administrative Agent
Real Estate Debt Capital Markets
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Amended and Restated Credit Agreement dated as of August
30, 2002 among ElderTrust, ElderTrust Operating Limited
Partnership, the Banks listed therein, and Wachovia Bank,
National Association, as Administrative Agent (the "Credit
Agreement")
Ladies and Gentlemen:
This firm has acted as counsel to ElderTrust, a Maryland real
estate investment trust (the "REIT"), ElderTrust Operating Limited
Partnership, a Delaware limited partnership (the "Borrower"), and the
subsidiaries of the Borrower identified on Schedule I attached hereto
(each, individually, a "Subsidiary" and collectively, the "Subsidiaries"),
in connection with the Credit Agreement and the execution and delivery
pursuant thereto of the Borrower's promissory note (the "Note"), dated
August 30, 2002, in the face amount of up to seven million five hundred
thousand dollars ($7,500,000). This opinion letter is furnished to you
pursuant to the requirements set forth in Section 4.03(i) of the Credit
Agreement in connection with the initial advance by the Banks under
Section 1.01 thereof on the date hereof. Capitalized terms used herein
which are defined in the Credit Agreement shall have the meanings set
forth in the Credit Agreement, unless otherwise defined herein.
For purposes of this opinion letter, we have examined copies of the
following documents (the "Documents"):
1. Executed copy of that certain General Assignment and Assumption
dated as of the date hereof by and between German American
Capital Company (the "Initial Lender"), as assignor, and
Wachovia Bank, National Association (sometimes referred to
herein as "Wachovia" and sometimes as the "Agent"), as assignee
(the "Loan Assignment").
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 2
2. Executed copies of each of the Mortgage Assignments.
3. Executed copies of each of the Mortgage Amendments.
4. Executed copy of the Mortgage for the Phillipsburg Property
(the "Phillipsburg Mortgage").
5. Executed copy of the Credit Agreement.
6. Executed copy of the Note.
7. Executed copy of the Security Agreement.
8. Executed copy of the Pledge and Security Agreement.
9. Executed copy of the Subsidiaries Guaranty.
10. Executed copy of the Control Agreement with respect to the
Reserve Account.
11. Completed copy of a UCC-1 financing statement naming the REIT,
as debtor, and the Agent, as secured party (the "REIT Financing
Statement"), which UCC-1 financing statement has been prepared
for filing in the UCC records of the Maryland State Department
of Assessments and Taxation (the "Maryland Filing Office"), a
copy of which is attached hereto as Exhibit I.
12. Completed copy of a UCC-1 financing statement naming the
Borrower, as debtor, and the Agent, as secured party (the
"Borrower Financing Statement"), which UCC-1 financing
statement has been prepared for filing in the UCC records of
the Secretary of State of the State of Delaware (the "Delaware
Filing Office"), a copy of which is attached hereto as Exhibit
II.
13. Completed copy of a UCC-1 financing statement naming ET Sub-
Phillipsburg I, L.L.C. ("ET Phillipsburg"), as debtor, and the
Agent, as secured party (the "Phillipsburg Financing Statement"),
which UCC-1 financing statement has been prepared for filing in
the Delaware Filing Office, a copy of which is attached hereto
as Exhibit III.
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 3
14. Completed copy of a UCC-1 financing statement naming ET Sub-
Heritage ▇▇▇▇▇, L.L.C. ("ET Heritage"), as debtor, and the
Agent, as secured party (the "Heritage Financing Statement"),
which UCC-1 financing statement has been prepared for filing
in the Delaware Filing Office, a copy of which is attached
hereto as Exhibit IV.
15. Completed copy of a UCC-1 financing statement naming ET Sub-
▇▇▇▇▇▇▇▇▇▇▇ Limited Partnership, L.L.P. ("ET ▇▇▇▇▇▇▇▇▇▇▇"), as
debtor, and the Agent, as secured party (the "▇▇▇▇▇▇▇▇▇▇▇
Financing Statement"), which UCC-1 financing statement has
been prepared for filing in the UCC records of the Virginia
State Corporation Commission (the "Virginia Filing Office"), a
copy of which is attached hereto as Exhibit V.
16. Completed copy of a UCC-1 financing statement naming ET Sub-
Willowbrook Limited Partnership, L.L.P. ("ET Willowbrook"),
as debtor, and the Agent, as secured party (the "Willowbrook
Financing Statement"), which UCC-1 financing statement has been
prepared for filing in the Virginia Filing Office, a copy of
which is attached hereto as Exhibit VI.
17. Completed copy of a UCC-1 financing statement naming ET Sub-
Sanatoga Limited Partnership ("ET Sanatoga"), as debtor, and
the Agent, as secured party (the "ET Sanatoga Financing
Statement"), which UCC-1 financing statement has been prepared
for filing in the Delaware Filing Office, a copy of which is
attached hereto as Exhibit VII.
18. Completed copy of a UCC-1 financing statement naming ET Sub-
Berkshire Limited Partnership ("ET Berkshire") as debtor, and
the Agent, as secured party (the "ET Berkshire Financing
Statement"), which UCC-1 financing statement has been prepared
for filing in the Delaware Filing Office, a copy of which is
attached hereto as Exhibit VIII.
19. Completed copy of a UCC-1 financing statement naming ET Sub-
Lehigh Limited Partnership ("ET Lehigh"), as debtor, and the
Agent, as secured party (the "ET Lehigh Financing Statement"),
which UCC-1 financing statement has been prepared for filing
in the Delaware Filing Office, a copy of which is attached
hereto as Exhibit IX.
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 4
20. Completed copy of a UCC-1 financing statement naming ET GENPAR,
L.L.C ("Genpar"), as debtor, and the Agent, as secured party
(the "Genpar Financing Statement"), which UCC-1 financing
statement has been prepared for filing in the Delaware Filing
Office, a copy of which is attached hereto as Exhibit X.
21. Completed copy of a UCC-1 financing statement naming ET
Sanatoga, LLC ("Sanatoga GP"), as debtor, and the Agent, as
secured party (the "Sanatoga GP Financing Statement"), which
UCC-1 financing statement has been prepared for filing in the
Delaware Filing Office, a copy of which is attached hereto as
Exhibit XI.
22. Completed copy of a UCC-1 financing statement naming ET
Berkshire, LLC ("Berkshire GP"), as debtor, and the Agent, as
secured party (the "Berkshire GP Financing Statement"), which
UCC-1 financing statement has been prepared for filing in the
Delaware Filing Office, a copy of which is attached hereto as
Exhibit XII.
23. Completed copy of a UCC-1 financing statement naming ET Lehigh,
LLC ("Lehigh GP"), as debtor, and the Agent, as secured party
(the "Lehigh GP Financing Statement"), which UCC-1 financing
statement has been prepared for filing in the Delaware Filing
Office, a copy of which is attached hereto as Exhibit XIII.
24. The Amended and Restated Certificate of Limited Partnership
of the Borrower, as certified by the Secretary of State of the
State of Delaware on August 14, 2002 and as certified by the
Secretary of the REIT as of the date hereof as being complete,
accurate and in effect.
25. The Second Amended and Restated Agreement of Limited
Partnership of the Borrower, as certified by the Secretary of
the REIT as of the date hereof as being complete, accurate
and in effect.
26. A certificate of good standing of the Borrower issued by the
Secretary of State of the State of Delaware dated August 14,
2002.
27. A certificate of subsistence of the Borrower issued by the
Department of State of the Commonwealth of Pennsylvania dated
August 14, 2002.
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 5
28. The Amended and Restated Declaration of Trust of the REIT, as
certified by the Maryland State Department of Assessments and
Taxation (the "MSDAT") on August 19, 2002 and as certified by
the Secretary of the REIT as of the date hereof as being
complete, accurate and in effect.
29. The Amended and Restated Bylaws of the REIT, as certified by
the Secretary of the REIT as of the date hereof as being
complete, accurate and in effect.
30. A certificate of good standing of the REIT issued by the MSDAT
dated August 19, 2002.
31. With respect to each of the Subsidiaries that is identified
under the heading "Limited Liability Companies" in the first
column of Schedule I attached hereto (the "LLC Subsidiaries"),
(i) the certificate of formation (including any amendments
thereto) of such Subsidiary, as certified by the Secretary of
State of the State of Delaware on the date indicated with
respect to such LLC Subsidiary in the third column of said
Schedule I and as certified by the Secretary of the REIT as of
the date hereof as being complete, accurate and in effect and
(ii) the limited liability company agreement (including any
amendments thereto) of each such LLC Subsidiary, as certified
by the Secretary of the REIT as of the date hereof as being
complete, accurate and in effect.
32. With respect to each of the Subsidiaries that is identified
under the heading "Limited Liability Partnerships" in the
first column of Schedule I attached hereto (the "LLP
Subsidiaries"), (i) the certificate of limited partnership
(including any amendments thereto) of such LLP Subsidiary,
as certified by the Virginia State Corporation Commission
("VSCC") on the date indicated with respect to such LLP
Subsidiary in the third column of said Schedule I and as
certified by the Secretary of the REIT as of the date hereof
as being complete, accurate and in effect and (ii) the
agreement of limited partnership of such LLP Subsidiary,
as certified by the Secretary of the REIT as of the date
hereof as being complete, accurate and in effect.
33. With respect to each of the Subsidiaries that is identified
under the heading "Limited Partnerships" in the first column
of Schedule I attached hereto (the "LP Subsidiaries"), (i)
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 6
the certificate of limited partnership of such LP Subsidiary,
as certified by the Secretary of State of the State of
Delaware on the date indicated with respect to such LP
Subsidiary in the third column of said Schedule I and as
certified by the Secretary of the REIT as of the date hereof
as being complete, accurate and in effect and (ii) the
agreement of limited partnership of such LP Subsidiary, as
certified by the Secretary of the REIT on the date hereof as
being complete, accurate and in effect.
34. Certificates of good standing of each of the LLC Subsidiaries
and LP Subsidiaries issued by the Secretary of State of the
State of Delaware and certificates of good standing of each
of the LLP Subsidiaries issued by the VSCC, in each case dated
the date described with respect to such Subsidiary in the fourth
column of Schedule I attached hereto.
35. Certificate of good standing of ET Phillipsburg (the Subsidiary
that owns the Phillipsburg Property) issued by the Department
of Treasury of the State of New Jersey dated August 28, 2002.
36. A certificate of registration of ET Heritage (the Subsidiary
that owns the only Borrowing Base Property located in
Massachusetts) issued by the Secretary of the Commonwealth of
the Commonwealth of Massachusetts dated August 20, 2002.
37. Certificates of subsistence of each of the LLP Subsidiaries and
each of the LP Subsidiaries, each of which owns Borrowing Base
Properties located in Pennsylvania, issued by the Department of
State of the Commonwealth of Pennsylvania dated the date
specified with respect to such Subsidiary in the fourth column
of Schedule II attached hereto.
38. Certain resolutions of the board of trustees of the REIT,
adopted by unanimous written consent dated as of August 23,
2002, authorizing, among other things, (i) the execution,
delivery and performance by the Credit Parties of the
Financing Documents to which each Credit Party is a party
and (ii) the consummation of the transactions described in
and contemplated by the Financing Documents, as certified
by the Secretary of the REIT as of the date hereof as being
complete, accurate and in effect.
39. Certain resolutions of the Borrower adopted, by action of the
sole general partner of the Borrower, dated as of August 29,
2002, authorizing, among other things (i) the execution,
delivery and performance by the Borrower of the Financing
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 7
Documents to which the Borrower or any of the Subsidiaries
are a party and (ii) the consummation of the transactions
described in and contemplated by the Financing Documents,
as certified by the Secretary of the REIT as of the date
hereof as being complete, accurate and in effect.
40. Certain resolutions of ET ▇▇▇▇▇▇▇▇▇▇▇, adopted by the
unanimous consent of its partners, dated as of August 29,
2002, authorizing, among other things, (i) the execution,
delivery and performance by ET ▇▇▇▇▇▇▇▇▇▇▇, of the
Subsidiaries Guaranty, the Pledge and Security Agreement,
the Security Agreement and the Mortgage Amendment relating
to the Mortgage encumbering the Borrowing Base Property
owned by ET ▇▇▇▇▇▇▇▇▇▇▇ and (ii) the consummation of the
transactions described in and contemplated thereby, as
certified by the Secretary of the REIT as of the date hereof
as being complete, accurate and in effect.
41. Certain resolutions of ET Willowbrook, adopted by the
unanimous consent of its partners, dated as of August 29,
2002, authorizing, among other things, (i) the execution,
delivery and performance by ET Willowbrook, of the
Subsidiaries Guaranty, the Pledge and Security Agreement,
the Security Agreement and the Mortgage Amendment relating
to the Mortgage encumbering the Borrowing Base Property
owned by ET Willowbrook and (ii) the consummation of the
transactions described in and contemplated thereby, as
certified by the Secretary of the REIT as of the date
hereof as being complete, accurate and in effect.
42. Certain resolutions of ET Sanatoga, adopted by the unanimous
consent of its partners, dated as of August 29, 2002,
authorizing, among other things, (i) the execution, delivery
and performance by ET Sanatoga, of the Subsidiaries Guaranty,
the Pledge and Security Agreement, the Security Agreement and
the Mortgage Amendment relating to the Mortgage encumbering the
Borrowing Base Property owned by ET Sanatoga and (ii) the
consummation of the transactions described in and contemplated
thereby, as certified by the Secretary of the REIT as of the
date hereof as being complete, accurate and in effect.
43. Certain resolutions of ET Berkshire, adopted by the unanimous
consent of its partners, dated as of August 29, 2002,
authorizing, among other things, (i) the execution, delivery
and performance by ET Berkshire, of the Subsidiaries Guaranty,
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 8
the Pledge and Security Agreement, the Security Agreement and
the Mortgage Amendment relating to the Mortgage encumbering the
Borrowing Base Property owned by ET Berkshire and (ii) the
consummation of the transactions described in and contemplated
thereby, as certified by the Secretary of the REIT as of the
date hereof as being complete, accurate and in effect.
44. Certain resolutions of ET Lehigh adopted by unanimous consent
of its partners, dated as of August 29, 2002, authorizing,
among other things, (i) the execution, delivery and performance
by ET Lehigh of the Subsidiaries Guaranty, the Pledge and
Security Agreement, the Security Agreement and the Mortgage
Amendment relating to the Mortgage encumbering the Borrowing
Base Property owned by ET Lehigh and (ii) the consummation of
the transactions described in and contemplated thereby, as
certified by the Secretary of the REIT as of the date hereof
as being complete, accurate and in effect.
45. A certificate of the Secretary of the REIT, dated as of the
date hereof, as to the incumbency and signatures of certain
officers of the REIT.
46. A certificate of certain officers of the REIT, dated as of the
date hereof, as to certain facts relating to the REIT, the
Borrower, and each of the Subsidiaries.
47. ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. litigation docket.
The Pledge and Security Agreement, the Security Agreement, the
Control Agreement referred to in Paragraph 10 above, the Mortgage
Amendments and the Phillipsburg Mortgage are sometimes hereinafter
referred to collectively as the "Security Documents." The Credit
Agreement, the Note, the Security Documents and the Subsidiaries
Guaranty are sometimes hereinafter referred to collectively as the
"Financing Documents." The documents referred to in paragraphs 24,
25, 28, 29, 31, 32 and 33 above are referred to as the "Organizational
Documents" of the Credit Parties (as hereinafter defined) identified
in such paragraphs. The Borrower, the REIT, and the Subsidiaries are
sometimes hereinafter referred collectively as the "Credit Parties".
As used in this opinion letter, the terms "accounts," "as-extracted
collateral," "chattel paper," "cooperative interest," "deposit account,"
"documents," "equipment," "fixtures," "general intangibles," "inventory,"
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 9
"instruments," "letter of credit rights," "commercial tort claims,"
"security," "supporting obligations," "timber to be cut," "transmitting
utility" and "proceeds" have the meanings set forth or incorporated in
the UCC, as hereinafter defined.
In our examination of the Financing Documents and the other
Documents, we have assumed the genuineness of all signatures, the legal
capacity of all natural persons, the accuracy and completeness of all
of the Documents, the authenticity of all originals of the Documents
and the conformity to authentic originals of all of the Documents
submitted to us as copies (including telecopies). As to matters of
fact relevant to the opinions expressed herein, we have relied on the
representations and statements of fact made in the Documents, we have
not independently established the facts so relied on, and we have not
made any investigation or inquiry other than our examination of the
Documents. This opinion letter is given, and all statements herein
are made, in the context of the foregoing.
As used in this opinion letter, the phrase "to our knowledge" means
the actual knowledge (that is, the conscious awareness of facts or other
information) of lawyers currently in the firm who have given substantive
legal attention to representation of the Credit Parties in connection with
the Financing Documents.
For purposes of this opinion letter, we have assumed that (i) each
of the parties to the subsidiaries Guaranty has all requisite power and
authority under all applicable laws, regulations and governing documents
to execute, deliver and perform its obligations thereunder, (ii)
Wachovia and each other party (other than the Credit Parties) to the
Financing Documents (other than the Subsidiaries Guaranty) has all
requisite power and authority under all applicable laws, regulations
and governing documents to execute, deliver and perform its obligations
under such Financing Documents and that Wachovia and each of such other
parties has complied with all legal requirements pertaining to its status
as such status relates to its rights to enforce the Financing Documents
against the Credit Parties, (ii) Wachovia and each of such other parties
(other than the Credit Parties) has duly authorized, executed and
delivered the Financing Documents to which it is a party, (iii) Wachovia
and each of such other parties (other than the Credit Parties) is validly
existing and in good standing in all necessary jurisdictions, (iv) the
Financing Documents to which Wachovia and each such party (other than
the Credit Parties) is a party constitute valid and binding obligations,
enforceable against each of them in accordance with their respective
terms, (v) there has been no mutual mistake of fact or misunderstanding
or fraud, duress or undue influence in connection with the negotiation,
execution or delivery of the Financing Documents, and the conduct of all
parties to the Financing Documents has complied with any requirements of
good faith, fair dealing and conscionability, (vi) there are and have
been no agreements or understandings among the parties, written or oral,
and there is and has been no usage of trade or course of prior dealing
among the parties that would, in either case, define, supplement or
qualify the terms of the Financing Documents and (vii) the Loan
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 10
Assignment and each Mortgage Assignment are valid and binding
obligations of each of the parties thereto, enforceable against each
such party in accordance with its terms, and that each of the "Loan
Documents" (as referred to in the Loan Assignment) and each Mortgage
to which a Mortgage Assignment relates is valid and in effect, and that
no default or event of default has occurred and is continuing thereunder
as of the date of the Loan Assignment or applicable Mortgage Assignment.
We have also assumed the validity and constitutionality of each relevant
statute, rule, regulation and agency or other governmental action covered
by this opinion letter. We have assumed that there is adequate
consideration for the Subsidiaries' obligations under the Subsidiaries
Guaranty.
For purposes of the opinions set forth in Paragraph (j) below, we
have made the following further assumptions: (i) that none of the
collateral described in the Security Agreement or the Pledge and
Security Agreement constitutes any of the following types of collateral:
as-extracted collateral, timber to be cut, fixtures or a cooperative
interest; (ii) that each of the Financing Statements (as hereinafter
defined) will be duly filed in the Delaware Filing Office, the
Maryland Filing Office or the Virginia Filing Office (each a "Filing
Office"), as specified above, as soon as practicable after the date
hereof with the appropriate fees and recording taxes (if any) paid;
(iii) that pending the completion of the filing of each of the
financing statements referred to in paragraphs 11 through 23 above
(the "Financing Statements") in the applicable Filing Office, all
operative facts (and applicable law) will remain unchanged from those
in existence on the date hereof; (iv) that (consistent with the
officers' certificate referred to in paragraph 46 above) none of the
Credit Parties is a transmitting utility; (v) that all the Credit
Parties that are a party to the Security Agreement or the Pledge and
Security Agreement are registered organizations and (vi) none of the
Interests (as defined in the Pledge and Security Agreement) constitutes
a security. Insofar as it relates to the Collateral (as defined in
Paragraph (j) below) constituting "proceeds", our opinion in Paragraph
(j) is subject to the limitations set forth in Section 9-315 of the
Uniform Commercial Code as in effect in the State of Delaware (the
"Delaware UCC"), Section 9-315 of the Uniform Commercial Code as in
effect in the State of Maryland (the "Maryland UCC"), Section 9-315 of
the Uniform Commercial Code as in effect in the State of New York (the
"New York UCC") and Section 8.9A-315 of the Uniform Commercial Code as
in effect in the Commonwealth of Virginia (the "Virginia UCC"). We call
your attention to the fact that security interests in certain categories
of Collateral may not be subject to perfection by the filing of a
financing statement or may be subject to perfection by more than one
method of perfection.
For purposes of the opinions expressed in paragraph (k) below, we
have made the following additional assumptions: (i) that the Reserve
Account is a deposit account and (ii) that for purposes of Section 9-304
of the UCC, the jurisdiction of the Depository Bank (as defined in
the Control Agreement identified in paragraph 10 above) is New York.
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 11
This opinion letter is based as to matters of law solely on
applicable provisions of the following, as currently in effect: (i)
the Delaware Revised Uniform Limited Partnership Act, as amended (the
"Delaware Limited Partnership Act"), (ii) Title 8 of the Maryland
Corporations and Associations Code Annotated, as amended (the
"Maryland REIT Law"), (iii) the Delaware Limited Liability Company
Act, as amended (the "Delaware LLC Act"), (iv) the Virginia Revised
Uniform Limited Partnership Act, as amended (the "Virginia Limited
Partnership Act"), (v) the Virginia Revised Uniform Partnership Act,
as amended (the "Virginia Partnership Act"), (vi) as to the opinions
expressed in paragraph (j) below, Articles 1, 8 and 9 of the Delaware
UCC, the Maryland UCC, the New York UCC and the Virginia UCC (as
applicable, the "UCC"), (vii) as to the opinions given in paragraph
(l) below, Regulations T, U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. 220, 221 and 224, respectively
(the "Margin Regulations"), (viii) as to the opinions expressed in
paragraph (n) below, the Investment Company Act of 1940, as amended
(the "Investment Company Act"), (ix) as to the opinions expressed
in paragraphs (g), (h) and (i) below, except to the extent excluded
below, federal law and internal New York law (but not including any
statutes, ordinances, administrative decisions, rules or regulations
of any political subdivision of the State of New York); provided,
however, that we express no opinion as to federal or state securities,
antitrust, unfair competition, banking, or tax laws or regulations and
we express no opinion as to any other laws, statutes, rules or
regulations not specifically identified above; and further provided
that, with respect to clause (ix) above, the opinions expressed herein
are based upon a review of those laws, statutes and regulations that,
in our experience, are generally recognized as applicable to the
transactions contemplated in the Financing Documents and (x) as to
the opinions expressed in paragraph (m) below, the law cited therein.
Based upon, subject to and limited by the foregoing, we are of the
opinion that:
(a) The REIT is validly existing as a real estate investment
trust and in good standing as of the date of the certificate specified
to in Paragraph 30 above under the laws of the State of Maryland.
(b) The Borrower is validly existing as a limited partnership
and in good standing as of the date of the certificate specified in
paragraph 26 above under the laws of the State of Delaware. The Borrower
is qualified as a foreign limited partnership and subsisting under the
laws of the Commonwealth of Pennsylvania as of the date of the certificate
specified in Paragraph 27 above.
(c) Each of the Credit Parties has the trust, limited
partnership, limited liability partnership or limited liability company
(as applicable) power to execute, deliver and perform the Financing
Documents to which it is a party. The execution, delivery and
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 12
performance as of the date hereof by each Credit Party of the
Financing Documents to which it is a party have been duly authorized
by all necessary trust, limited partnership, limited liability
partnership or limited liability company (as applicable) action of
such Credit Party.
(d) Each of the LLC Subsidiaries is validly existing as a
limited liability company and in good standing under the laws of the
State of Delaware as of the date specified with respect to such LLC
Subsidiary in the fourth column of Schedule I attached hereto. Each
of the LLC Subsidiaries is qualified and in good standing (in the
case of ET Phillipsburg) or subsisting (in the case of ET Heritage)
under the laws of the State specified with respect to such LLC
Subsidiary in the third column of Schedule II attached hereto as of
the date specified with respect to such LLC Subsidiary in the fourth
column of such Schedule II.
(e) Each of the LLP Subsidiaries is validly existing as a
limited liability partnership and in good standing under the laws of
the Commonwealth of Virginia as of the date specified with respect to
such LLP Subsidiary in the fourth column of Schedule I attached
hereto. Each of the LLP Subsidiaries is subsisting under the laws of
the Commonwealth of Pennsylvania as of the date specified with respect
to such LLP Subsidiary in the fourth column of Schedule II attached
hereto.
(f) Each of the LP Subsidiaries is validly existing as a
limited partnership and in good standing under the laws of the State
of Delaware as of the date specified with respect to such LP Subsidiary
in the fourth column of Schedule I attached hereto. Each of the LP
Subsidiaries is subsisting under the laws of the Commonwealth of
Pennsylvania as of the date specified with respect to such LP Subsidiary
in the fourth column of Schedule II attached hereto.
(g) Each of the Credit Agreement, the Note and the Security
Documents has been duly executed and delivered on behalf of each Credit
Party that is a party thereto. Each of the Credit Agreement, the Note,
the Security Agreement and the Pledge and Security Agreement constitutes
a valid and binding obligation of each Credit Party that is a party
thereto, enforceable against such Credit Party in accordance with its
terms.
(h) The Subsidiaries Guaranty has been duly executed and
delivered on behalf of each of the Subsidiaries and constitutes a valid
and binding obligation of each Subsidiary, enforceable against each
Subsidiary in accordance with its terms.
(i) The execution, delivery and performance as of the date
hereof by each Credit Party of the Financing Documents to which it is a
party do not (i) require any approval of the trustees, limited partners
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 13
or members (as applicable) of such Credit Party that has not been
obtained, (ii) violate the Maryland REIT Law, the Delaware LLC Act, the
Delaware Limited Partnership Act, the Virginia Limited Partnership Act or
the Virginia Partnership Act (as applicable) or the Organizational
Documents of such Credit Party, or (iii) violate any federal or State
of New York statute or regulation covered by this opinion letter.
(j) The Pledge and Security Agreement and the Security
Agreement each creates in favor of the Agent a UCC security interest in
each Credit Party's right, title and interest in and to the collateral
specified therein which is owned by such Credit Party to the extent that
(i) such collateral consists of general intangibles, accounts, documents,
chattel paper, equipment, inventory, instruments, supporting obligations,
letter-of-credit rights, commercial tort claims, and proceeds of the
foregoing, (ii) Article 9 of the UCC applies to security interests in
such collateral, and (iii) creation of UCC security interests in any
such collateral is permissible under applicable federal law and applicable
state law other than the UCC (to the extent encompassed by the foregoing
clauses (i), (ii), and (iii), the "Collateral"). To the extent that such
UCC security interest in each Credit Party's right, title and interest
in and to the Collateral owned by such Credit Party can be perfected
currently under the UCC by the filing of financing statements, (x) the
timely filing of the REIT Financing Statement in the Maryland Filing
Office, (y) the timely filing of the Borrower Financing Statement, the
Phillipsburg Financing Statement, the Heritage Financing Statement, the
Sanatoga Financing Statement, the Berkshire Financing Statement, the
Lehigh Financing Statement, the Genpar Financing Statement, the
Sanatoga GP Financing Statement, the Berkshire GP Financing Statement
and the Lehigh GP Financing Statement in the Delaware Filing Office
and (z) the timely filing of the ▇▇▇▇▇▇▇▇▇▇▇ Financing Statements and
the Willowbrook Financing Statements in the Virginia Filing Office will
be sufficient to perfect such security interest; except that we express
no opinion concerning the perfection of such security interest in
Collateral to the extent consisting of letter of credit rights,
commercial tort claims or supporting obligations.
(k) By virtue of the execution and delivery of the Control
Agreement referred to in paragraph 10 above by all of the parties
thereto, the Agent has a perfected security interest in the right,
title and interest of the Borrower in and to the Reserve Account.
(l) The use by the Borrower of the proceeds of the Loans
as contemplated in the Credit Agreement does not violate the Margin
Regulations.
(m) Pursuant to New York General Obligations Law 5-501, the
Lender is permitted to charge interest with respect to the Loan at the
rate or rates set forth in the Credit Agreement and the Note.
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 14
(n) Neither the REIT nor the Borrower is an "investment
company" within the meaning of the Investment Company Act.
Based solely upon the officers' certificate identified in
paragraph 47 above and a review of this firm's litigation docket, we
hereby confirm to you that, to our knowledge, there are no actions,
suits or proceedings pending or overtly threatened in writing against
the Credit Parties, or in which any Credit Party is a party, before
any court or governmental department, commission, board, bureau, agency
or instrumentality that question the validity of the Financing Documents
or any action taken or to be taken pursuant thereto, or that seek to
enjoin or otherwise prevent the consummation of the transactions
contemplated by the Financing Documents or to recover in damages or
obtain other relief as a result thereof.
Our opinions expressed in paragraph (g) above are subject to the
qualification that certain rights, remedies, waivers and other provisions
of the Financing Documents specified therein may not be enforceable in
accordance with their terms, but, subject to the exceptions,
qualifications and limitations set forth elsewhere in this opinion
letter, such unenforceability would not render the Financing Documents
specified therein invalid as a whole or preclude (i) the judicial
enforcement of the obligations of the Borrower to pay the principal
of the Note and interest thereon at the rate or rates (but not
including any increase in rate after default) set forth therein,
(ii) in circumstances in which a court will provide a remedy, the
Lender's right to accelerate and demand payment of the Loan, or (iii)
with regard to the UCC security interest which is the subject of
paragraph (j) above, and assuming that the Collateral Agent will
comply with all requirements of applicable procedural and substantive
law, the enforcement of such security interests as provided in Article
9 of the UCC.
Our opinion expressed in paragraph (h) above is subject to the
qualification that certain rights, remedies, waivers and other
provisions of the Subsidiaries Guaranty may not be enforceable in
accordance with their terms, but, subject to the exceptions,
qualifications and limitations set forth elsewhere in this opinion
letter, such unenforceability would not render the Subsidiaries
Guaranty invalid as a whole or preclude the judicial enforcement of
the obligations of the Subsidiaries after default of the Borrower
beyond any applicable cure period with respect to the Financing
Documents to pay the principal of the Note and interest thereon at
the rate or rates (but not including any increase in rate after
default) set forth therein, provided that we express no opinion
regarding the enforceability of the Subsidiaries Guaranty in the
event of or with respect to (i) any modification to or amendment of
the Subsidiaries' obligations under the Financing Documents which
increases such obligations without the consent of the Subsidiaries,
(ii) any election of remedies or other actions of the Agent or the
Banks following default by the Borrower under the Financing Documents
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 15
which prejudices the Subsidiaries, or (iii) any indemnity set forth
in the Subsidiaries Guaranty in favor of the Agent or the Banks or
any other party against the negligence or other acts or omissions
of the Agent, the Banks or any such other party, or their respective
agents, employees, contractors, or consultants.
In addition to the qualifications, exceptions and limitations
elsewhere set forth in this opinion letter, our opinions expressed
above are also subject to the effect of: (1) bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting
creditors' rights (including, without limitation, the effect of
statutory and other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers); (2) the exercise of judicial
discretion and the application of principles of equity including,
without limitation, requirements of good faith, fair dealing,
reasonableness, conscionability and materiality (regardless of whether
the applicable agreements are considered in a proceeding in equity or
at law) and (3) generally applicable rules of law that limit or affect
the enforceability of provisions that purport to waive or require waiver
of (or that have the effect of waiving) procedural, judicial or
substantive rights or defenses.
Wachovia Bank, National Association,
As Agent
August 30, 2002
Page 16
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This
opinion letter has been prepared solely for your use in connection with
the initial funding under the Credit Agreement on the date hereof,
and should not be quoted in whole or in part or otherwise be referred
to, and should not be filed with or furnished to any governmental
agency or other person or entity, without the prior written
consent of this firm.
Very truly yours,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
Schedule I
List of Subsidiaries
Date of
Certification of Date of Good
State of Certificate of Standing
Subsidiaries Organization Formation Certificate
------------ ------------ ---------------- ------------
Limited Liability Companies
---------------------------
ET Sub-Phillipsburg I, L.L.C. DE 8/14/02 8/14/02
ET Sub-Heritage ▇▇▇▇▇, L.L.C. DE 8/14/02 8/14/02
ET ▇▇▇▇▇▇, L.L.C DE 8/14/02 8/14/02
ET Sanatoga, LLC DE 8/14/02 8/14/02
ET Berkshire, LLC DE 8/14/02 8/14/02
ET, Lehigh, LLC DE 8/14/02 8/14/02
Limited Liability Partnerships
------------------------------
ET Sub-▇▇▇▇▇▇▇▇▇▇▇, Limited VA 8/15/02 8/15/02
Partnership, L.L.P.
ET Sub-Willowbrook, Limited VA 8/15/02 8/15/02
Partnership, L.L.P.
Limited Partnerships
--------------------
ET Sub-Sanatoga, Limited DE 8/14/02 8/14/02
Partnership, L.P.
ET Sub-Berkshire, Limited DE 8/14/02 8/14/02
Partnership, L.P.
ET Sub-Lehigh, Limited DE 8/14/02 8/14/02
Partnership, L.P.
Schedule II
Mortgages and Borrowing Base Properties
Name of Borrowing Date of Good
Base Property State of Standing
Covered by Location of Certificate
Name of Subsidiary Mortgage Property in State
------------------ ----------------- ----------- ------------
ET Sub-Phillipsburg I,
L.L.C. Phillipsburg NJ 8/28/02
ET Sub-Heritage ▇▇▇▇▇,
L.L.C. Heritage MA 8/20/02
ET-Sub ▇▇▇▇▇▇▇▇▇▇▇,
Limited Partnership,
L.L.P. ▇▇▇▇▇▇▇▇▇▇▇ PA 8/14/02
ET Sub-Willowbrook,
Limited Partnership,
L.L.P. Willowbrook PA 8/14/02
ET Sub-Sanatoga,
Limited Partnership,
L.P. Sanatoga PA 8/14/02
ET Sub-Berkshire,
Limited Partnership,
L.P. Berkshire PA 8/14/02
ET Sub-Lehigh, Limited
Partnership, L.P. Lehigh PA 8/14/02
2
EXHIBIT E
[NAME OF CREDIT PARTY]
Officers' Certificate
I, the undersigned, the [Secretary/Assistant Secretary] of [NAME
OF CREDIT PARTY] [NAME OF GENERAL PARTNER OF THE APPLICABLE PARTNERSHIP
CREDIT PARTY, the General Partner of _____________], a [corporation]
[partnership] [limited liability company] organized and existing under
the laws of the State of ________ (the "Company"), DO HEREBY CERTIFY
that:
1. This Certificate is furnished pursuant to the Amended and
Restated Credit Agreement, dated as of August 30, 2002 among ElderTrust,
ElderTrust Operating Limited Partnership, the lenders from time to time
party thereto, Deutsche Bank AG, New York Branch, as Issuing Bank, and
German American Capital Corporation, as Administrative Agent (such
Credit Agreement, as in effect on the date of this Certificate, being
herein called the "Credit Agreement"). Unless otherwise defined herein,
capitalized terms used in this Certificate shall have the meanings
set forth in the Credit Agreement.
2. The following named individuals are presently the elected
officers of the Company, each holds the office of the Company set forth
opposite his or her name below and has held such office as of the date
of signing of any Credit Document. The signature written opposite
the name and title of each such officer below is his or her correct
signature.
Name(3) Office Signature
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
____________________ ____________________ ____________________
3. Attached hereto as Exhibit A is a true and correct copy of the
[Certificate of Incorporation of the Company] [Certificate of Limited
Partnership of the Company] [Certificate of Limited Liability Company]
as filed in the Office of the Secretary of State of the State of its
formation, together with all amendments thereto adopted through the
date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the
[By-Laws of the Company] [Partnership Agreement of the Company] [Limited
Liability Company Agreement], together with all amendments thereto,
which were duly adopted and are in full force and effect on the date
hereof.
-----------------------
(3) Include name, office and signature of each officer who will sign
any Credit Document.
5. Attached hereto as Exhibit C is a true and correct copy of
resolutions which were duly adopted on __________, 2002 by [unanimous
written consent of the Board of [Directors] [Managers] of the Company]
[the written consent of the General Partner of the Company], and said
resolutions have not been rescinded, amended or modified. Except as
attached hereto as Exhibit C, no resolutions have been adopted by the
Company which deal with the execution, delivery or performance of any
of the Credit Documents to which the Company is party.
6. Attached hereto as Exhibit E are true and correct copies of
all Debt Agreements referred to in Section 4.05 of the Credit
Agreement. (4)
7. I know of no proceeding for the dissolution or liquidation of
the Company or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of
August, 2002.
ELDERTRUST OPERATING LIMITED
PARTNERSHIP
By: ElderTrust, its general partner
By: ______________________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
-----------------------
(4) Insert for Officers' Certificates of the Borrower only.
2
EXHIBIT F-2
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT, dated as of
August 30, 2002 (as amended, modified or supplemented from time to
time, this "Agreement"), made by each of the undersigned pledgors
(each, a "Pledgor" and, together with any other entity that becomes a
party hereto pursuant to Section 23 hereof, the "Pledgors"), in
favor of WACHOVIA BANK, NATIONAL ASSOCIATION, as Collateral Agent
(the "Pledgee"), for the benefit of the Secured Creditors (as defined
below). Except as otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement (as defined below) shall be
used herein as therein defined.
W I T N E S S E T H:
WHEREAS, ElderTrust, a Maryland real estate investment trust (the
"REIT"), ElderTrust Operating Limited Partnership, a Delaware limited
partnership (the "Borrower"), various banks, Deutsche Bank AG, New York
Branch, as issuing bank, and German American Capital Corporation, as
administrative agent, entered into a Credit Agreement dated as of
January 30, 1998, as amended by First Amendment to Credit Agreement
dated as of January 29, 1999, Second Amendment to Credit Agreement
dated as of March 31, 1999, Third Amendment to Credit Agreement dated
as of January 3, 2000, and Fourth Amendment to Credit Agreement dated
as of January 31, 2001 (as so amended, the "Existing Credit Agreement"),
pursuant to which the banks party thereto (the "Existing Banks") agreed
to make certain loans to the Borrower and issue certain letters of
credit for the account of the Borrower upon the terms and conditions
set forth therein;
WHEREAS, the obligations of the Borrower and the REIT under the
Existing Credit Agreement are secured in part by a Pledge and Security
Agreement dated as of January 30, 1998 (the "Existing Pledge and
Security Agreement") among the pledgors party thereto (the "Existing
Pledgors") and German American Capital Corporation, as collateral agent
(the "Existing Pledgee")
WHEREAS, the Existing Banks have assigned their rights and
interests under the Existing Credit Agreement and related documents to
the Banks pursuant to a General Assignment and Assumption dated as of
the date hereof;
WHEREAS, the REIT, the Borrower, the Banks, and Wachovia Bank,
National Association, as administrative agent (the "Administrative
Agent"), have agreed to amend and restate the Existing Credit Agreement
pursuant to an Amended and Restated Credit Agreement dated as of the
date hereof (as amended, modified or supplemented from time to time,
the "Credit Agreement");
WHEREAS, pursuant to the Credit Agreement, Wachovia Bank, National
Association, has been appointed as collateral agent in place of German
American Capital Corporation and the undersigned pledgors have agreed to
(and by their signatures hereto have) become parties to the Existing
Pledge and Security Agreement in place of the original pledgors
party thereto (and all parties that were "Pledgors" in the Existing
Pledge and Security Agreement that are not signatories to this Agreement
are released);
WHEREAS, the Pledgors and the Pledgee have agreed to amend and
restate the Existing Pledge and Security Agreement in a manner
consistent with the amendment and restatement of the Existing Credit
Agreement;
NOW, THEREFORE, IT IS AGREED that the Existing Pledge and Security
Agreement is hereby amended and restated in its entirety to read as
follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each
Pledgor for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations and
liabilities (including, without limitation, the principal of and interest
on the Notes issued by, and Loans made to, the Borrower under the Credit
Agreement and all indemnities, fees, expenses and interest thereon or
owed thereunder) of such Pledgor to the Bank Creditors, whether now
existing or hereafter incurred under, arising out of or in connection
with the Credit Agreement and the other Credit Documents (including,
without limitation, in the case of the Guarantor, all of its obligations
and liabilities under its Guaranty) to which such Pledgor is a party and
the due performance and compliance by such Pledgor with all of the
terms, conditions and agreements contained in the Credit Agreement and
such other Credit Documents (all such principal, interest, obligations
and liabilities described in this clause (i) being herein collectively
called the "Credit Agreement Obligations");
(ii) any and all reasonable sums advanced by the Pledgee in
order to preserve the Collateral (as hereinafter defined) or preserve
its security interest in the Collateral;
(iii) in the event of any proceeding for the collection or
enforcement of any obligations or liabilities referred to in clauses
(i) and (ii) above, upon the occurrence and during the continuance of
an Event of Default (such term, as used in this Agreement, shall mean
any Event of Default under, and as defined in, the Credit Agreement
and shall include, without limitation, any payment default (after the
expiration of any applicable grace period) on any of the Obligations
(as hereinafter defined)) shall have occurred and be continuing, the
reasonable expenses of retaking, holding, preparing for sale or lease,
selling or otherwise disposing of or realizing on the Collateral, or
of any exercise by the Pledgee of its rights hereunder, together with
reasonable attorneys' fees and court costs; and
2
(vi) all amounts paid by any Indemnitee (as defined in Section
11 hereof) as to which such Indemnitee has the right to reimbursement
under Section 11 of this Agreement;
all such obligations, liabilities, sums and expenses set forth in
clauses (i) through (v) of this Section 1 being herein collectively
called the "Obligations".
2. DEFINITION OF PARTNERSHIP INTERESTS, LIMITED LIABILITY
COMPANY INTERESTS, ETC. As used herein, (i) the term "Partnership
Interest" shall mean the entire partnership interest at any time owned
by any Pledgor of any partnership which owns or has an interest in a
Borrowing Base Property or which owns an equity interest in an entity
which, directly or indirectly, owns or has an interest in a Borrowing
Base Property, excluding, however, the REIT's partnership interests in
the Borrower and the Borrower's partnership interests in ET Genpar,
L.L.C. (each, a "Pledged Partnership Entity," which term shall not
include ET Genpar, L.L.C. or the Borrower); (ii) the term "Limited
Liability Company Interest" shall mean the entire limited liability
company and/or membership interest at any time owned by any Pledgor
in any limited liability company which owns or has an interest in a
Borrowing Base Property or which owns an equity interest in an entity
which, directly or indirectly, owns or has an interest in a Borrowing
Base Property (each, a "Pledged Limited Liability Company"); (iii)
the term "Interest" shall mean all of the Partnership Interests and
Limited Liability Company Interests; (iv) the term "Bank Creditors"
shall mean the Banks, the Collateral Agent and the Administrative
Agent; and (v) the term "Secured Creditors" shall mean the Bank
Creditors. Each Pledgor represents and warrants that on the date
hereof (i) the Partnership Interests held by such Pledgor consist of
those partnership interests as described in Annex A hereto; (ii) such
Partnership Interests constitute that percentage of the entire
partnership interest of each Pledged Partnership Entity as is set
forth in Annex A hereto; (iii) the Limited Liability Company Interests
held by such Pledgor consist of the number and type of limited
liability company interests as described in Annex B hereto; (iv) such
Limited Liability Company Interests constitute that percentage of the
issued and outstanding equity interest of each Pledged Limited Liability
Company as is set forth in Annex B hereto; and (v) such Pledgor owns no
other Interests.
3. GRANT OF SECURITY INTEREST
3.1 Pledge. (i) To secure the Obligations of such Pledgor and
for the purposes set forth in Section 1 hereof, each Pledgor hereby
pledges and grants to the Pledgee a first priority continuing security
interest in, and as part of such grant and pledge, hereby transfers and
assigns to the Pledgee all of the following, whether now existing or
hereafter acquired (the "Collateral"): (i) such Pledgor's Partnership
Interest in each Pledged Partnership Entity and all of such ▇▇▇▇▇▇▇'s
right, title and interest in each Pledged Partnership Entity and (ii)
such Pledgor's Limited Liability Company Interest in each Pledged
Limited Liability Company and all of such Pledgor's right, title and
interest in each Pledged Limited Liability Company, in each case
whether now or hereafter acquired and including, without limitation:
(A) all the capital thereof and its interest in all profits,
losses, Partnership Assets (as defined below), Limited Liability
3
Company Assets (as defined below) and other distributions to which
such Pledgor shall at any time be entitled in respect of such
Partnership Interest or Limited Liability Company Interest, as the
case may be;
(B) all other payments due or to become due to such Pledgor in
respect of such Partnership Interest or Limited Liability Company
Interest, as the case may be, whether under any partnership agreement,
limited liability company agreement, operating agreement or otherwise,
whether as contractual obligations, damages, insurance proceeds or
otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interest, liens and remedies, if any, under any
partnership agreement, limited liability company agreement or
operating agreement or at law or otherwise in respect of such
Partnership Interest or Limited Liability Company Interest, as the
case may be;
(D) all present and future claims, if any, of such Pledgor
against any Pledged Partnership Entity or Pledged Limited Liability
Company for moneys loaned or advanced, for services rendered or
otherwise;
(E) all of such Pledgor's rights under any partnership agreement,
limited liability company agreement or operating agreement or at law to
exercise and enforce every right, power, remedy, authority, option and
privilege of such Pledgor relating to such Partnership Interest or
Limited Liability Company Interest, as the case may be, including any
power to terminate, cancel or modify any partnership agreement, limited
liability company agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of and in
the name of such Pledgor in respect of such Partnership Interest or
Limited Liability Company Interest and any Pledged Partnership Entity
or Pledged Limited Liability Company, to make determinations, to
exercise any election (including, but not limited to, election of
remedies) or option or to give or receive any notice, consent, amendment,
waiver or approval, together with full power and authority to demand,
receive, enforce, collect, or receipt for any of the foregoing or
for any Partnership Asset or Limited Liability Company Asset, to
enforce or execute any checks, or other instruments or orders, to file
any claims and to take any action in connection with any of the
foregoing (with all of the foregoing rights only to be exercisable
upon the occurrence and during the continuance of an Event of Default);
(F) all other property hereafter delivered in substitution for
or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such other property and all
cash, securities, interest, dividends, rights and other property at
any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;
and
(G) to the extent not otherwise included, all proceeds and
supporting obligations of any or all of the foregoing.
(b) As used herein, (i) the term "Partnership Assets" shall mean
all assets, whether tangible or intangible and whether real, personal
or mixed (including, without limitation, all partnership capital and
interests in other partnerships), at any time owned or represented by
any Partnership Interest; and (ii) the term "Limited Liability Company
Assets" shall mean all assets, whether tangible or intangible and
whether real, personal or mixed (including, without limitation, all
4
limited liability company capital and interests in other limited
liability companies), at any time owned or represented by any Limited
Liability Company Interest.
3.2. Subsequently Acquired Interests. If any Pledgor shall
acquire (by purchase, distribution or otherwise) any additional
Interest at any time or from time to time after the date hereof, such
Pledgor (and in any event within five Business Days after receipt by
such Pledgor thereof) shall (i) forthwith pledge such Interest as
security with the Pledgee hereunder, (ii) cause the notice and control
agreement referred to in subsection (b) of Section 15 hereof to
be executed and delivered, and (iii) promptly thereafter deliver to
the Pledgee a certificate executed by any Authorized Officer of such
Pledgor describing such Interest and certifying that the same has been
duly pledged with the Pledgee hereunder.
3.3. Certificated Interests. Notwithstanding anything to the
contrary contained in Sections 3.2 or 3.4 hereof, to the extent any
Interest (whether now owned or hereafter acquired) is certificated, the
respective Pledgor shall promptly deliver to the Pledgee certificates
therefor, accompanied by such instruments of transfer as are acceptable
to the Pledgee, and shall promptly take all actions required to perfect
the security interest of the Pledgee under applicable law (including,
in any event, under the provisions of Articles 8 and 9 of the New York
UCC). Each Pledgor further agrees to take such actions as the Pledgee
deems necessary or desirable to effect the foregoing and to permit the
Pledgee to exercise any of its rights and remedies hereunder, and
agrees to provide an opinion of counsel reasonably satisfactory to the
Pledgee with respect to any such pledge of certificated Interests
promptly upon the reasonable request of the Pledgee.
3.4. Uncertificated Interests. Notwithstanding anything to the
contrary contained in Sections 3.2 or 3.3 hereof, to the extent any
Interest (whether now owned or hereafter acquired) is uncertificated,
the respective Pledgor shall promptly notify the Pledgee thereof, and
shall promptly take all actions required to perfect the security
interest of the Pledgee under applicable law (including, in any event,
under the provisions of Articles 8 and 9 of the New York UCC). Each
Pledgor further agrees to take such actions as the Pledgee deems
necessary or desirable to effect the foregoing and to permit the
Pledgee to exercise any of its rights and remedies hereunder, and
agrees to provide an opinion of counsel reasonably satisfactory to the
Pledgee with respect to any such pledge of uncertificated Interests
promptly upon the reasonable request of the Pledgee.
4. APPOINTMENT OF SUB-AGENTS. The Pledgee shall have the right
to appoint one or more sub-agents for the purpose of retaining physical
possession of the Collateral, which may be held (in the discretion of
the Pledgee) in the name of the Pledgee, as pledgee, or endorsed or
assigned in blank or in favor of the Pledgee, as pledgee, or any
nominee or nominees of the Pledgee or a sub-agent appointed by the
Pledgee. The Pledgee agrees to promptly notify the relevant Pledgor
after the appointment of any sub-agent; provided, however, that the
failure to give such notice shall not affect the validity of such
appointment.
5
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until
an Event of Default shall have occurred and be continuing, each Pledgor
shall be entitled to exercise any and all voting, consent,
administration, management and other rights and remedies under any
partnership agreement, limited liability company agreement or operating
agreement or otherwise with respect to the Interests of such Pledgor;
provided, that no vote shall be cast or any consent, waiver or
ratification given or any action taken which would violate or be
inconsistent with any of the terms of this Agreement, any other Credit
Document (collectively, the "Secured Debt Agreements"), or which would
have the effect of impairing the position or interests of the Pledgee
or any other Secured Creditor. All such rights of such Pledgor to
vote and to give consents, waivers and ratifications shall cease in
case an Event of Default shall occur and be continuing, and Section 7
hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless an Event of
Default shall have occurred and be continuing, all cash dividends
and distributions payable in respect of the Interests shall be paid
to the respective Pledgor; provided, that all cash dividends payable
in respect of the Interests which are determined by the Pledgee to
represent in whole or in part an extraordinary, liquidating or other
distribution in return of capital shall be paid, to the extent so
determined to represent an extraordinary, liquidating or other
distribution in return of capital, to the Pledgee and retained by it
as part of the Collateral. The Pledgee shall also be entitled to
receive directly, and to retain as part of the Collateral:
(i) all other property (other than cash) paid or
distributed by way of dividend, distribution or otherwise in respect
of the Interests;
(ii) all other property (including cash) paid or distributed
in respect of the Limited Liability Company Interests by way of stock-
split, spin-off, split-up, reclassification, combination of shares or
similar arrangement; and
(iii) all other property (including cash) which may be paid in
respect of the Collateral by reason of any consolidation, merger, exchange
of stock, conveyance of assets, liquidation or similar partnership or
corporate reorganization.
7. REMEDIES IN CASE OF EVENT OF DEFAULT. In case an Event of
Default shall have occurred and be continuing, the Pledgee shall be
entitled to exercise all of the rights, powers and remedies (whether
vested in it by this Agreement, by any other Secured Debt Agreement or
by law) for the protection and enforcement of its rights in respect of
the Collateral, and the Pledgee shall be entitled, without limitation,
to exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable remedies:
(i) to receive as Collateral all amounts payable in respect of
the Collateral payable to such Pledgor under Section 6 hereof;
(ii) to transfer all or any part of the Interests into the
Pledgee's name or the name of its nominee or nominees;
6
(iii) to vote all or any part of the Interests (whether or not
transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though it were the outright owner
thereof; and
(iv) at any time or from time to time to sell, assign and deliver,
or grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the
time or place of sale or adjournment thereof (except as provided below)
or to redeem or otherwise (all of which are hereby waived by each
Pledgor), for cash, on credit or for other property, for immediate or
future delivery without any assumption of credit risk, and for such
price or prices and on such terms as the Pledgee in its absolute
discretion may determine; provided, that at least 10 days' prior
written notice of the time and place of any such sale shall be given
to such Pledgor. Each Pledgor hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with
respect to the Collateral, whether before or after sale hereunder, and
all rights, if any, of marshalling the Collateral and any other security
for the Obligations or otherwise. The Pledgee may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed
for the sale, and such sale may be made at any time or place to which
the sale may be so adjourned. At any such sale, unless prohibited by
applicable law, the Pledgee on behalf of the Secured Creditors may bid
for and purchase all or any part of the Collateral so sold free from
any such right or equity of redemption. Neither the Pledgee nor any
other Secured Creditor shall be liable for failure to collect or
realize upon any or all of the Collateral or for any delay in so doing
nor shall any of them be under any obligation to take any action
whatsoever with regard thereto.
8. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy
of the Pledgee provided for in this Agreement or any other Secured Debt
Agreement or now or hereafter existing at law or in equity or by statute
shall be cumulative and concurrent and shall be in addition to every
other such right, power or remedy. The exercise or beginning of the
exercise by the Pledgee or any other Secured Creditor of any one or more
of the rights, powers or remedies provided for in this Agreement or any
other Secured Debt Agreement or now or hereafter existing at law or in
equity or by statute or otherwise shall not preclude the simultaneous or
later exercise by the Pledgee or any other Secured Creditor of all such
other rights, powers or remedies, and no failure or delay on the part of
the Pledgee or any other Secured Creditor to exercise any such right,
power or remedy shall operate as a waiver thereof. By accepting the
benefits of this Agreement, the Secured Creditors agree that this
Agreement may be enforced only by the action of the Pledgee, acting upon
the instructions of the Required Secured Creditors (as defined in the
Security Agreement) and that no other Secured Creditor shall have any
right individually to seek to enforce or to enforce this Agreement or
to realize upon the security to be granted hereby, it being understood
and agreed that such rights and remedies may be exercised by the Pledgee
for the benefit of the Secured Creditors in accordance with the terms
of this Agreement.
7
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Pledgee upon any sale or other disposition of the Collateral pursuant
to the terms of this Agreement, together with all other moneys received
by the Pledgee hereunder, shall be applied in the manner provided by
Section 5.4 of the Security Agreement.
(b) It is understood and agreed that the Borrower shall remain
liable, the Parent Guarantor shall remain liable, and the Subsidiary
Guarantors shall remain jointly and severally liable, in each case to
the extent of any deficiency between the amount of the proceeds of the
Collateral hereunder and the aggregate amount of the Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by
the Pledgee hereunder (whether by virtue of the power of sale herein
granted, pursuant to judicial process or otherwise), the receipt of the
Pledgee or the officer making the sale shall be a sufficient discharge
to the purchaser or purchasers of the Collateral so sold, and such
purchaser or purchasers shall not be obligated to see to the application
of any part of the purchase money paid over to the Pledgee or such
officer or be answerable in any way for the misapplication or
nonapplication thereof.
11. INDEMNITY. (a) Each Pledgor agrees jointly and severally to
indemnify, reimburse and hold harmless the Pledgee, each other Secured
Creditor and their respective successors, assigns, employees, agents and
servants (hereinafter in this Section 11 referred to individually as an
"Indemnitee," and collectively as the "Indemnitees") from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and costs, expenses or disbursements
(including reasonable attorneys' fees and expenses) (for the purposes
of this Section 11 the foregoing are collectively called "expenses")
of whatsoever kind and nature imposed on, asserted against or incurred
by any of the Indemnitees in any way relating to or arising out of this
Agreement, any other Secured Debt Agreement (as defined in the Security
Agreement) or any other document executed in connection herewith and
therewith or the enforcement of any of the terms of, or the preservation
of any rights under any such document, or in any way relating to or
arising out of the ownership, control, acceptance, possession,
condition, sale or other disposition, or use of the Collateral;
provided that no Indemnitee shall be indemnified pursuant to this
Section 11(a) for expenses to the extent caused by the gross negligence
or willful misconduct of such Indemnitee. Each Pledgor agrees that
upon written notice by any Indemnitee of the assertion of such a
liability, obligation, damage, injury, penalty, claim, demand, action,
suit or judgment, the relevant Pledgor shall to the extent requested
to do so assume full responsibility for the defense thereof. Each
Indemnitee agrees to promptly notify the relevant Pledgor of any such
assertion of which such Indemnitee has knowledge; provided that the
failure to give such notice shall not affect such Indemnitee's right
to indemnification hereunder except to the extent (but only to the
extent) that such ▇▇▇▇▇▇▇▇▇▇'s damages are increased as a result of
such failure.
(b) Without limiting the application of Section 11(a) hereof, each
Pledgor agrees jointly and severally to pay or reimburse the Pledgee for
any and all reasonable fees, costs and expenses of whatever kind or
nature incurred in connection with the creation, preservation or
protection of the Pledgee's Liens on, and security interest in, the
Collateral, including, without limitation, all fees and taxes in
8
connection with the recording or filing of instruments and documents
in public offices, payment or discharge of any taxes or Liens upon or
in respect of the Collateral, and all other fees, costs and expenses
in connection with protecting, maintaining or preserving the Collateral
and the Pledgee's interest therein, whether through judicial proceedings
or otherwise, or in defending or prosecuting any actions, suits or
proceedings arising out of or relating to the Collateral.
(c) If and to the extent that the obligations of any Pledgor under
this Section 11 are unenforceable for any reason, such Pledgor hereby
agrees to make the maximum contribution to the payment and satisfaction
of such obligations which is permissible under applicable law.
12. FURTHER ASSURANCES. Each Pledgor agrees that it will join
with the Pledgee in executing and, at such Pledgor's own expense, file
and refile under the UCC of any jurisdiction such financing statements,
continuation statements, amendments, assignments and other documents in
such offices as the Pledgee may deem necessary or appropriate and
wherever required or permitted by law in order to perfect and preserve
the Pledgee's security interest in the Collateral and hereby authorizes
the Pledgee to file financing statements and amendments thereto
relative to all or any part of the Collateral without the signature
of such Pledgor where permitted by law, and agrees to do such further
acts and things and to execute and deliver to the Pledgee such additional
conveyances, assignments, agreements and instruments as the Pledgee may
reasonably require or deem advisable to carry into effect the purposes of
this Agreement or to further assure and confirm unto the Pledgee its rights,
powers and remedies hereunder.
13. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance with
this Agreement and the Security Agreement all items of the Collateral at
any time received under this Agreement. It is expressly understood and
agreed that the obligations of the Pledgee as holder of the Collateral
and interests therein and with respect to the disposition thereof, and
otherwise under this Agreement, are only those expressly set forth in
this Agreement and in the Security Agreement. By accepting the benefits
hereof, each Secured Creditor shall be deemed to have agreed to the
terms and conditions set forth in Article VIII of the Security Agreement,
as the same may be amended, supplemented or otherwise modified from time
to time, which is incorporated herein by reference in its entirety;
provided that all references therein to "this Agreement" shall be a
reference to this Agreement, provided further that all references
therein to any "Assignor" shall be a reference to any "Pledgor," and
provided further that all references therein to the "Collateral Agent"
shall be a reference to the "Pledgee." The Pledgee shall act hereunder
on the terms and conditions set forth herein and in the Security
Agreement.
14. TRANSFER BY PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein
(except pursuant to this Agreement and as permitted by the Secured
Debt Agreements).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS.
(a) Each Pledgor represents, warrants and covenants that (i) it is the
legal, record and beneficial owner of, and has good and marketable title
to, all Interests and other Collateral pledged by it hereunder, or in
9
which it has granted a security interest pursuant hereto, subject to
no pledge, lien, mortgage, hypothecation, security interest, charge,
option or other encumbrance whatsoever, except the liens and security
interests created by this Agreement and the other Liens referred to in
clause (xii) below; (ii) it has full power, authority and legal right
to pledge and grant a security interest in all the Collateral pledged
and assigned by it pursuant to this Agreement; (iii) this Agreement has
been duly authorized, executed and delivered by such Pledgor and
constitutes the legal, valid and binding obligation of such Pledgor
enforceable in accordance with its terms, except to the extent that
the enforceability hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by equitable principles (regardless of
whether enforcement is sought in equity or at law); (iv) except as have
been obtained or made, no consent of any other party (including, without
limitation, any stockholder, partners or creditor of such Pledgor or
any of its Subsidiaries or of any partner of any Pledged Partnership
Entity or any member of any Pledged Limited Liability Company) and no
consent, license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority is required to be obtained by such Pledgor in
connection with the execution, delivery or performance of this
Agreement; (v) the execution, delivery and performance of this
Agreement by such Pledgor does not violate any provision of any
applicable law or regulation or of any order, judgment, writ, award
or decree of any court, arbitrator or governmental authority,
domestic or foreign, or of the certificate of incorporation,
certificate of partnership, partnership agreement or by-laws of
such Pledgor or of any securities issued by such Pledgor or any of
its Subsidiaries, or of any mortgage, indenture, lease, deed of trust,
agreement (including any partnership agreement of any Pledged
Partnership Entity or any limited liability company agreement or
operating agreement of any Pledged Limited Liability Company),
instrument or undertaking to which such Pledgor or any of its
Subsidiaries is a party or which purports to be binding upon such
Pledgor or any of its Subsidiaries or upon any of their respective
assets and will not result in the creation or imposition of (or
the obligation to create or impose) any lien or encumbrance on
any of the assets of such Pledgor or any of its Subsidiaries except
as contemplated by this Agreement; (vi) all Interests have been
validly acquired and are fully paid for and validly pledged
hereunder (it being understood that to the extent any such
Partnership Interest is issued by a Person other than a Subsidiary of
the REIT, such representation and warranty is made to the best of such
Pledgor's knowledge); (vii) the Interests pledged by it hereunder are
not dealt in or traded on securities exchanges or on securities
markets; (viii) the terms of the Interests pledged by it hereunder
do not provide that such Interests are securities governed by Article
8 of the UCC; (ix) the Interests pledged by it hereunder are not
"security entitlements" or held in a "securities account" by a
"securities intermediary" (as each term is defined in Article 8 of the
UCC); (x) no Person other than such Pledgor or the Pledgee has
"control" (as such term is defined in Article 8 of the UCC) of any
of the Interests pledged by it hereunder; (xi) this Agreement creates
(after all steps required under Article 8 of the UCC have been taken)
in favor of the Pledgee for the benefit of the Secured Creditors a
legal, valid and enforceable security interest in all right, title and
interest of each Pledgor in the Collateral owned by such Pledgor on any
date on which this representation and warranty is made or deemed made,
which security interest shall, (A) upon delivery to the Pledgee of any
certificates evidencing equity interests in a Pledged Partnership Entity
10
or in a Pledged Limited Liability Company, (B) upon the filing of
appropriate financing statements under the UCC in respect of any Pledged
Partnership Entity's partnership interest or Pledged Limited Liability
Company's limited liability company or membership interest that is not
represented by a certificate and (C) upon the taking of all steps
required under Article 8 and Article 9 of the UCC (which delivery,
filings and/or steps have been done (except that allowance is made
for time necessary to cause the filings to be filed with the filing
offices after closing) and remain in full force and effect as to the
Collateral owned by such Pledgor on any date on which this representation
and warranty is made or deemed made), constitute a fully perfected first
lien on, and security interest in, all right, title and interest of such
Pledgor in all of such Collateral, subject to no security interests of
any other Person; (xii) there are no currently effective financing
statements under the UCC covering any property which is now or hereafter
may be included in the Collateral except financing statements filed or
to be filed in favor of the Pledgee as secured party and financing
statements filed by German American Capital Corporation, as pledgee
under the Existing Pledge and Security Agreement, as secured party,
that will be assigned to the Pledgee; and (xiii) the Organizational
Identity (as defined in the Security Agreement) and exact legal name
of such Pledgor are set forth in the Security Agreement and such Pledgor
shall not change its Organizational Identity or legal name except in
accordance with the terms of the Security Agreement. Each Pledgor
covenants and agrees that it will defend the Pledgee's right, title
and security interest in and to the Collateral and the proceeds thereof
against the claims and demands of all persons whomsoever; and such
Pledgor covenants and agrees that it will have like title to and right
to pledge any other property at any time hereafter pledged to the Pledgee
as Collateral hereunder and will likewise defend the right thereto and
security interest therein of the Pledgee on behalf of the Secured
Creditors. Each of the representations, warranties and covenants
made by each Pledgor hereunder shall be deemed to be repeated on each
date on which such Pledgor pledges any Collateral hereunder.
(b) Each Pledgor shall (i) execute and deliver to each Pledged
Partnership Entity and Pledged Limited Liability Company with respect
to which it has pledged any Interest hereunder a notice substantially
in the form of Annex C to this Agreement at the time such Interest is
pledged, (ii) cause each Pledged Partnership Entity and each Pledged
Limited Liability Company with respect to which it has pledged any
Interest hereunder to execute and deliver to the Pledgee a control
agreement substantially in the form of Annex D to this Agreement with
respect to such Interest at the time such Interest is pledged, and
(iii) cause German American Capital Corporation, as pledgee under the
Existing Pledge and Security Agreement, and each Pledged Partnership
Entity and each Pledged Limited Liability Company with respect to which
it has pledged any Interest hereunder to execute and deliver to the
Pledgee a release substantially in the form of Annex E to this
Agreement of any control agreements executed in favor of German
American Capital Corporation, as pledgee under the Existing Pledge
and Security Agreement.
16. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional and
shall remain in full force and effect without regard to, and shall not
be released, suspended, discharged, terminated or otherwise affected by,
any circumstance or occurrence whatsoever, including, without limitation:
(i) any renewal, extension, amendment or modification of or addition or
supplement to or deletion from any Secured Debt Agreement or any other
instrument or agreement referred to therein, or any assignment or
transfer of any thereof; (ii) any waiver, consent, extension,
indulgence or other action or inaction under or in respect of any
such Secured Debt Agreement or other agreement or instrument or this
Agreement; (iii) any furnishing of any additional security to the
11
Pledgee or its assignee or any acceptance thereof or any release of
any security by the Pledgee or its assignee; (iv) any limitation on
any party's liability or obligations under any such instrument or
agreement or any invalidity or unenforceability, in whole or in part,
of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to such
Pledgor or any Subsidiary of such Pledgor, or any action taken with
respect to this Agreement by any trustee or receiver, or by any court,
in any such proceeding, whether or not such Pledgor shall have notice
or knowledge of any of the foregoing.
17. REGISTRATION, ETC. If at any time when the Pledgee shall
determine to exercise its right to sell all or any part of the
Interests pursuant to Section 7 hereof, such Interests or the part
thereof to be sold shall not, for any reason whatsoever, be
effectively registered under the Securities Act, as then in effect,
the Pledgee may, in its sole and absolute discretion, sell such
Interests or part thereof by private sale in such manner and under
such circumstances as the Pledgee may deem necessary or advisable in
order that such sale may legally be effected without such registration;
provided, that at least 10 days' prior notice of the time and place
of any such sale shall be given to such Pledgor. Without limiting the
generality of the foregoing, in any such event the Pledgee, in its sole
and absolute discretion and subject to compliance with any applicable
securities laws: (i) may proceed to make such private sale
notwithstanding that a registration statement for the purpose of
registering such Interests or part thereof shall have been filed under
such Securities Act; (ii) may approach and negotiate with a single
possible purchaser to effect such sale; and (iii) may restrict such
sale to a purchaser who will represent and agree that such purchaser
is purchasing for its own account, for investment, and not with a view
to the distribution or sale of such Interests or part thereof. In the
event of any such sale, the Pledgee and the other Secured Creditors
shall incur no responsibility or liability for selling all or any part
of the Interests at a price which the Pledgee, in its sole and absolute
discretion, may in good ▇▇▇▇▇ ▇▇▇▇ reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might
be realized if the sale were deferred until after registration as
aforesaid.
18. TERMINATION, RELEASE. (a) After the Termination Date (as
defined below), this Agreement shall terminate (provided that all
indemnities set forth herein including, without limitation, in Section
11 hereof shall survive any such termination) and the Pledgee, at the
request and expense of the respective Pledgor, will promptly execute
and deliver to such Pledgor a proper instrument or instruments
acknowledging the satisfaction and termination of this Agreement, and
will duly assign, transfer and deliver to such Pledgor (without recourse
and without any representation or warranty) such of the Collateral as
may be in the possession of the Pledgee and as has not theretofore been
sold or otherwise applied or released pursuant to this Agreement. As
used in this Agreement, "Termination Date" shall mean the date upon
which the Total Commitment has been terminated, no Note is outstanding
(and all Loans have been repaid in full), and all Obligations then owing
have been paid in full.
(b) In the event that any part of the Collateral is sold in
connection with a sale permitted by the Credit Agreement or otherwise
released at the direction of the Required Secured Creditors and the
proceeds of such sale or sales or from such release are applied in
12
accordance with the provisions of the Credit Agreement, to the extent
required to be so applied, the Pledgee, at the request and expense of
the respective Pledgor, will duly assign, transfer and deliver to such
Pledgor (without recourse and without any representation or warranty)
such of the Collateral as is then being (or has been) so sold or
released and as may be in the possession of the Pledgee and has not
theretofore been released pursuant to this Agreement.
(c) At any time that any Pledgor desires that Collateral be
released as provided in the foregoing sub-section (a) or (b), it shall
deliver to the Pledgee a certificate signed by an Authorized Officer of
such Pledgor stating that the release of the respective Collateral is
permitted pursuant to such subsection (a) or (b).
(d) The Pledgee shall have no liability whatsoever to any Secured
Creditor as the result of any release of Collateral by it in accordance
with this Section 18.
19. NOTICES, ETC. Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the
respective parties hereto shall be deemed to have been duly given or
made when delivered in accordance with the provisions of Section 12.03
of the Credit Agreement, addressed as follows:
(a) if to any Pledgor, at its address set forth opposite its
signature below;
(b) if to the Pledgee, at:
Wachovia Bank, National Association
Wachovia Securities
Real Estate Debt Capital Markets
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 28288
Attention: ▇▇▇ ▇. ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Bank Creditor, at such address as such Bank Creditor
shall have specified in the Credit Agreement;
or at such other address as shall have been furnished in writing by any
Person described above to the party required to give notice hereunder.
20. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each Pledgor directly
affected thereby and the Pledgee (with the written consent of the
Required Secured Creditors).
21. PLEDGEE NOT BOUND. (a) Nothing herein shall be construed to
make the Pledgee or any other Secured Creditor liable as a general
partner or limited partner of any Pledged Partnership Entity or as a
member of any Pledged Limited Liability Company and neither the Pledgee
13
nor any other Secured Creditor by virtue of this Agreement or otherwise
(except as referred to in the following sentence) shall have any of the
duties, obligations or liabilities of a general partner or limited
partner of any Pledged Partnership Entity or of a member of any Pledged
Limited Liability Company. The parties hereto expressly agree that,
unless the Pledgee shall become the absolute owner of an Interest
pursuant hereto, this Agreement shall not be construed as creating a
partnership or joint venture among the Pledgee, any other Secured
Creditor and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph (a) of
this Section 21, the Pledgee, by accepting this Agreement, did not
intend to become (and shall not be construed to be) a general partner
or limited partner of any Pledged Partnership Entity or a member of any
Pledged Limited Liability Company or otherwise be deemed to be a co-
venturer with respect to any Pledgor, any Pledged Partnership Entity or
any Pledged Limited Liability Company either before or after an Event of
Default shall have occurred. The Pledgee shall have only those
powers set forth herein and, except as provided in the last sentence
of paragraph (a) of this Section 21, the Secured Creditors shall assume
none of the duties, obligations or liabilities of a general partner or
limited partner of any Pledged Partnership Entity or of a member of any
Pledged Limited Liability Company or of any Pledgor.
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of any Pledgor as a
result of the pledge hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all the
rights, powers, privileges and authority so created, shall not at any
time or in any event obligate the Pledgee or any other Secured Creditor
to appear in or defend any action or proceeding relating to the
Collateral to which it is not a party, or to take any action hereunder
or thereunder, or to expend any money or incur any expenses or perform
or discharge any obligation, duty or liability under the Collateral
except with respect to duties of care in connection with the Collateral
to the extent required by applicable law.
22. MISCELLANEOUS. This Agreement shall be binding upon the
successors and assigns of each Pledgor (although no Pledgor may assign
its rights and obligations hereunder except in accordance with the
provisions of the Secured Debt Agreements) and shall inure to the
benefit of and be enforceable by the Pledgee and the other Secured
Creditors and their respective successors and assigns. THIS AGREEMENT
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS EXCEPT
FOR THE CHOICE OF LAW PROVISIONS OF THE NEW YORK UCC. The headings in
this Agreement are for purposes of reference only and shall not limit or
define the meaning hereof. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which
shall constitute one instrument.
23. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of the Borrower that is required to execute a counterpart of
14
this Agreement pursuant to the Credit Agreement shall automatically
become a Pledgor hereunder by executing a counterpart hereof and
delivering the same to the Pledgee.
24. RECOURSE. This Agreement is made with full recourse to each
Pledgor (including, without limitation, with full recourse to all assets
of such Pledgor) and pursuant to and upon the representations, warranties,
covenants and the agreements on the part of such Pledgor contained herein,
in the other Secured Debt Agreements and otherwise in writing in
connection herewith or therewith.
15
[AMENDED AND RESTATED
PLEDGE AND SECURITY AGREEMENT]
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized
as of the date first above written.
Address: ELDERTRUST, as a Pledgor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By:______________________________
Suite 100 Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ Square Title: President and CEO
Pennsylvania 19348
Address: ELDERTRUST OPERATING LIMITED PARTNERSHIP,
as a Pledgor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust, general partner
Suite 100
Kennett Square By:______________________________
Pennsylvania 19348 Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET GENPAR, L.L.C., as a Pledgor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Suite 100 Partnership, sole member
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
[AMENDED AND RESTATED
PLEDGE AND SECURITY AGREEMENT]
Address: ET SUB-BERKSHIRE LIMITED
PARTNERSHIP, as a Pledgor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET Berkshire, LLC, general partner
Suite ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, authorized agent
By: ElderTrust, general partner
By:_____________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET BERKSHIRE, LLC, as a Pledgor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited Partnership,
Suite 100 authorized agent
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-HERITAGE ▇▇▇▇▇, LLC, as a
Pledgor
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: ElderTrust Operating Limited
Suite 202 Partnership, sole member
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
[AMENDED AND RESTATED
PLEDGE AND SECURITY AGREEMENT]
Address: ET SUB-LEHIGH LIMITED PARTNERSHIP, as
a Pledgor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET LEHIGH, LLC, general partner
Suite 100
Kennett Square By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, authorized agent
By: ElderTrust, general partner
By:_____________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET LEHIGH, LLC, as a Pledgor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited Partnership,
Suite 100 authorized agent
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-PHILLIPSBURG I, LLC, as a
Pledgor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Suite 100 Partnership, sole member
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
[AMENDED AND RESTATED
PLEDGE AND SECURITY AGREEMENT]
Address: ET SUB-▇▇▇▇▇▇▇▇▇▇▇ LIMITED PARTNERSHIP,
L.L.P., as a Pledgor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET GENPAR, L.L.C., general partner
Suite 100
Kennett Square By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, sole member
By: ElderTrust, general partner
By:_____________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-SANATOGA LIMITED PARTNERSHIP,
as a Pledgor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET SANATOGA, LLC, general partner
Suite ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, authorized agent
By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
[AMENDED AND RESTATED
PLEDGE AND SECURITY AGREEMENT]
Address: ET SANATOGA, LLC, as a Pledgor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Suite 100 Partnership, authorized agent
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-WILLOWBROOK LIMITED PARTNERSHIP,
L.L.P., as a Pledgor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET GENPAR, L.L.C., general partner
Suite 100
Kennett Square By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, sole member
By: ElderTrust, general partner
By:_____________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
[AMENDED AND RESTATED
PLEDGE AND SECURITY AGREEMENT]
Address: WACHOVIA BANK, NATIONAL ASSOCIATION,
as Collateral Agent
Wachovia Securities By:______________________
Real Estate Debt Capital
Markets Name:
301 South College, NC0172 Title:
Charlotte,
North Carolina 28288
By:______________________
Name:
Title:
ANNEX A
to
PLEDGE AND
SECURITY AGREEMENT
LIST OF PARTNERSHIP INTERESTS
Pledged Entity Pledgor PERCENTAGE OWNED
-------------- ------- ----------------
ET Sub-Willowbrook Limited Borrower 99.9% (LP)
Partnership, L.L.P. ET ▇▇▇▇▇▇, L.L.C. 0.1% (GP)
99.9% (LP)
ET Sub-▇▇▇▇▇▇▇▇▇▇▇ Limited Borrower 99.9% (LP)
Partnership, L.L.P. ET ▇▇▇▇▇▇, L.L.C. 0.1% (GP)
ET Sub-Berkshire Limited Borrower 99.0% (LP)
Partnership, L.L.P. ET Berkshire, L.L.C. 1.0% (GP)
ET Sub-Lehigh Limited Borrower 99.0% (LP)
Partnership, L.L.P. ET ▇▇▇▇▇▇, L.L.C. 1.0% (GP)
ET Sub-Sanatoga, Limited Borrower 99.0% (LP)
Partnership, L.L.P. ET ▇▇▇▇▇▇▇▇, L.L.C. 1.0% (GP)
A-1
ANNEX B
to
PLEDGE AND
SECURITY AGREEMENT
LIST OF LIMITED LIABILITY COMPANY INTERESTS
Pledged Entity Pledgor PERCENTAGE OWNED
-------------- ------- ----------------
ET Sub-Phillipsburg I, L.L.C. Borrower 100%
ET Sub-Heritage ▇▇▇▇▇, L.L.C. Borrower 100%
ET Berkshire, LLC Borrower 100%
ET ▇▇▇▇▇▇, L.L.C. Borrower 100%
ET ▇▇▇▇▇▇▇▇, L.L.C. Borrower 100%
B-1
ANNEX C
to
PLEDGE AND
SECURITY AGREEMENT
FORM OF PARTNERSHIP/LIMITED LIABILITY COMPANY NOTICE
[Letterhead of Pledgor]
[Date]
TO: [Name of Pledged Entity]
Notice is hereby given that, pursuant to an Amended and Restated
Pledge and Security Agreement (a true and correct copy of which is
attached hereto), dated as of August , 2002 (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the
"Pledge Agreement"), among [NAME OF PLEDGOR] (the "Pledgor"), the other
pledgors from time to time party thereto and Wachovia Bank, National
Association, as Pledgee (the "Pledgee") for the benefit of the Secured
Creditors described therein, the Pledgor has pledged and assigned to the
Pledgee for the benefit of the Secured Creditors, and granted to the
Pledgee for the benefit of the Secured Creditors a continuing security
interest in, all right, title and interest of the Pledgor, whether now
existing or hereafter arising or acquired, as a [[limited] [general]
[partner][member] in [NAME OF PLEDGED PARTNERSHIP ENTITY/LIMITED
LIABILITY COMPANY] (the "Pledged Entity"), and in, to and under the
[TITLE OF APPLICABLE PARTNERSHIP/LIMITED LIABILITY COMPANY/OPERATING
AGREEMENT] (the "Agreement"), including, without limitation:
(i) all the capital of the Pledged Entity and the Pledgor's
interest in all profits, losses, [Partnership Assets/Limited Liability
Company Assets] (as defined in the Pledge Agreement) and other
distributions to which the Pledgor shall at any time be entitled in
respect of such partnership interest;
(ii) all other payments due or to become due to the Pledgor in
respect of such interest, whether under the Agreement or otherwise,
whether as contractual obligations, damages, insurance proceeds or
otherwise;
(iii) all of its claims, rights, powers, privileges, authority,
options, security interest, liens and remedies, if any, under the
Agreement or at law or otherwise in respect of such interest;
(iv) all present and future claims, if any, of the Pledgor against
the Pledged Entity for moneys loaned or advanced, for services rendered
or otherwise;
(v) all of the Pledgor's rights under the Agreement or at law to
exercise and enforce every right, power, remedy, authority, option and
privilege of the Pledgor relating to the interest, including any power
to terminate, cancel or modify the Agreement, to execute any instruments
and to take any and all other action on behalf of and in the name of the
Pledgor in respect of the interest and the Pledged Entity, to make
determinations, to exercise any election (including, but not limited,
election of remedies) or option or to give or receive any notice, consent,
amendment, waiver or approval, together with full power and authority to
demand, receive, enforce, collect or receipt for any of the foregoing or
for any [Partnership Asset/Limited Liability Company Asset], to enforce
or execute any checks, or other instruments or orders, to file any claims
and to take any action in connection with any of the foregoing (with all
of the foregoing rights only to be exercisable upon the occurrence and
during the continuance of an Event of Default);
(vi) all other property hereafter delivered in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash, securities,
interest, dividends, rights and other property at any time and from time
to time received, receivable or otherwise distributed in respect of or
in exchange for any or all thereof; and
(vii) to the extent not otherwise included, all proceeds and
supporting obligations of any or all of the foregoing.
The Pledgor hereby requests the Pledged Entity to indicate the Pledged
Entity's acceptance of this Notice and consent to and confirmation of
its terms and provisions by (i) signing where indicated a copy of the
Control Agreement attached hereto as Attachment I, (ii) signing where
indicated a copy of the Release of Existing Control Agreement attached
hereto as Attachment II, and (iii) returning the same to the Pledgee on
behalf of the Secured Creditors.
[NAME OF PLEDGOR]
By:_______________________________
Title:
C-2
ANNEX D
to
PLEDGE AND
SECURITY AGREEMENT
ATTACHMENT I TO NOTICE
FORM OF CONTROL AGREEMENT
[NAME OF PLEDGED PARTNERSHIP ENTITY/LIMITED LIABILITY COMPANY]
(the "Pledged Entity") hereby acknowledges receipt of a copy of the
notice of the assignment by [NAME OF PLEDGOR] (the "Pledgor") of its
interest (the "Interest") under the [TITLE OF APPLICABLE PARTNERSHIP/
LIMITED LIABILITY COMPANY/OPERATING AGREEMENT] (the "Agreement") pursuant
to the terms of the Amended and Restated Pledge and Security Agreement,
dated as of August , 2002 (as amended, modified or supplemented
from time to time in accordance with the terms thereof, the "Pledge
Agreement"), among the Pledgor, the other pledgors from time to time
party thereto, and Wachovia Bank, National Association, as Pledgee
(the "Pledgee") for the benefit of the Secured Creditors described
therein. The undersigned hereby confirms that it is the issuer of
the Interest and that the Pledgor is the registered owner of such
Interest, and hereby irrevocably agrees that the undersigned will
comply with any and all instructions originated by the Pledgee on
behalf of the Secured Creditors in respect of such interest without
further consent from the Pledgor and, in the event of any conflict
between any instructions originated by the Pledgee and any
instructions originated by the Pledgor or any other person (other
than a court of competent jurisdiction), the undersigned shall comply
with the instructions originated by the Pledgee. The undersigned
also irrevocably agrees that it shall not register the Interest in the
name of any person other than the Pledgor or the Pledgee (unless
otherwise instructed by the Pledgee) and that it shall not agree to
comply with any instructions originated by any person other than the
Pledgor or the Pledgee without the further consent of the registered
owner of the Interest.
Dated: ______________, ____
[NAME OF PLEDGED ENTITY]
By:________________________________________
Title:
ACKNOWLEDGED BY:
[NAME OF ▇▇▇▇▇▇▇]
By:________________________________________
Title:
ACKNOWLEDGED BY:
[NAME OF PLEDGEE]
By:________________________________________
Title:
D-2
ANNEX E
to
PLEDGE AND
SECURITY AGREEMENT
ATTACHMENT II TO NOTICE
FORM OF RELEASE OF EXISTING CONTROL AGREEMENT
Reference is made to:
(i) a Notice (the "Notice") dated , given by [NAME OF
PLEDGOR] (the "Pledgor") pursuant to a Pledge and Security Agreement,
dated as of January 30, 1998 (as amended, modified or supplemented from
time to time in accordance with the terms thereof, the "Existing Pledge
Agreement"), among the Pledgor, the other pledgors from time to time
party thereto and German American Capital Corporation, as Pledgee (the
"Existing Pledgee") for the benefit of the Secured Creditors described
therein, whereby the Pledgor notified [NAME OF PLEDGED PARTNERSHIP
ENTITY/LIMITED LIABILITY COMPANY] (the "Pledged Entity") that the
Pledgor had pledged and assigned to the Existing Pledgee for the
benefit of the Secured Creditors, and granted to the Existing Pledgee
for the benefit of the Secured Creditors a continuing security interest
in, all right, title and interest of the Pledgor, whether now existing
or hereafter arising or acquired, as a [[limited] [general] partner]
[member] in the Pledged Entity, and in, to and under the [TITLE OF
APPLICABLE PARTNERSHIP/LIMITED LIABILITY COMPANY/OPERATING AGREEMENT]
(the "Agreement"); and
(ii) a Control Agreement (the "Existing Control Agreement")
dated , entered into by the Pledged Entity and the
Pledgor pursuant to the Existing Pledge Agreement, whereby the
Pledged Entity agreed, among other things, to comply with any and
all instructions originated by the Existing Pledgee on behalf of the
Secured Creditors in respect of such interest without further consent
from the Pledgor.
Whereas the Existing Pledgee has assigned its rights under the
Existing Pledge Agreement to Wachovia Bank, National Association, as
Pledgee (the "Pledgee") pursuant to an Amended and Restated Pledge
and Security Agreement, dated as of August , 2002 (as
amended, modified or supplemented from time to time in accordance
with the terms thereof, the "Pledge Agreement"), among the Pledgor,
the other pledgors from time to time party thereto and the Pledgee,
for the benefit of the Secured Creditors described therein, therefore
(i) the Existing Pledgee hereby releases the Pledged Entity and the
Pledgor from the Notice and the Existing Control Agreement and (ii)
the Pledged Entity, the Pledgor and the Existing Pledgee agree that
the Existing Control Agreement is hereby terminated, effective as of
the date that the Pledged Entity, the Pledgor and the Pledgee execute
a new Control Agreement.
Dated: ______________, ____
[NAME OF EXISTING PLEDGEE]
By:________________________________________
Title:
ACKNOWLEDGED BY:
[NAME OF PLEDGED ENTITY]
By:________________________________________
Title:
ACKNOWLEDGED BY:
[NAME OF ▇▇▇▇▇▇▇]
By:________________________________________
Title:
E-2
EXHIBIT G
AMENDED AND RESTATED SECURITY AGREEMENT
among
ELDERTRUST,
ELDERTRUST OPERATING LIMITED PARTNERSHIP,
VARIOUS SUBSIDIARIES
of
ELDERTRUST,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Collateral Agent
Dated as of August 30 , 200
AMENDED AND RESTATED SECURITY AGREEMENT
AMENDED AND RESTATED SECURITY AGREEMENT, dated as of August
__, 2002, made by each of the undersigned assignors (each, an
"Assignor" and, together with any other entity that becomes a party
hereto pursuant to Section 9.10 hereof, the "Assignors") in favor of
Wachovia Bank, National Association, as Collateral Agent (the
"Collateral Agent"), for the benefit of the Secured Creditors (as
defined below). Except as otherwise defined herein, capitalized terms
used herein and defined in the Credit Agreement (as defined below) shall
be used herein as so defined.
W I T N E S S E T H:
WHEREAS, ElderTrust, a Maryland real estate investment trust (the
"REIT"), ElderTrust Operating Limited Partnership, a Delaware limited
partnership (the "Borrower"), various banks, Deutsche Bank AG, New York
Branch, as issuing bank, and German American Capital Corporation, as
administrative agent, entered into a Credit Agreement dated as of
January 30, 1998, as amended by First Amendment to Credit Agreement
dated as of January 29, 1999, Second Amendment to Credit Agreement
dated as of March 31, 1999, Third Amendment to Credit Agreement dated
as of January 3, 2000, and Fourth Amendment to Credit Agreement
dated as of January 31, 2001 (as so amended, the "Existing Credit
Agreement"), pursuant to which the banks party thereto (the "Existing
Banks") agreed to make certain loans to the Borrower and issue certain
letters of credit for the account of the Borrower upon the terms and
conditions set forth therein;
WHEREAS, the obligations of the Borrower and the REIT under the
Existing Credit Agreement are secured in part by a Security Agreement
dated as of January 30, 1998 (the "Existing Security Agreement") among
the assignors party thereto (the "Existing Assignors") and German
American Capital Corporation, as collateral agent (the "Existing
Collateral Agent")
WHEREAS, the Existing Banks have assigned their rights and
interests under the Existing Credit Agreement and related documents
to the Banks pursuant to a General Assignment and Assumption dated
as of the date hereof;
WHEREAS, the REIT, the Borrower, the Banks, and Wachovia Bank,
National Association, as administrative agent (the "Administrative
Agent"), have agreed to amend and restate the Existing Credit Agreement
pursuant to an Amended and Restated Credit Agreement dated as of the
date hereof (as amended, modified or supplemented from time to time,
the "Credit Agreement");
WHEREAS, pursuant to the Credit Agreement, Wachovia Bank, National
Association, has been appointed as collateral agent in place of German
American Capital Corporation and the undersigned Assignors have agreed
to (and by their signatures hereto agree that they have) become parties
to the Existing Security Agreement in place of the original
assignors party thereto;
WHEREAS, the Assignors and the Collateral Agent have agreed to
amend and restate the Existing Security Agreement in a manner consistent
with the amendment and restatement of the Existing Credit Agreement;
NOW, THEREFORE, IT IS AGREED that the Existing Security Agreement
is hereby amended and restated in its entirety to read as follows:
ARTICLE I
SECURITY INTERESTS
1.1 Grant of Security Interests. (a) As security for all of the
Obligations of such Assignor, each Assignor does hereby pledge, assign
and transfer unto the Collateral Agent, and does hereby grant to the
Collateral Agent, for the benefit of the Secured Creditors, a continuing
security interest of first priority in, all of the right, title and
interest of such Assignor in, to and under all of the following
collateral located on, used in connection with the ownership or
operation of, or related to any of the Borrowing Base Properties,
whether now existing or hereafter from time to time acquired: (i)
each and every Receivable, (ii) all Contracts, together with all
Contract Rights arising thereunder, (iii) all Inventory, (iv) all
Equipment, (v) all computer programs of such Assignor and all
intellectual property rights therein and all other proprietary
information of such Assignor, including, but not limited to, trade
secrets (to the extent such computer programs, intellectual property
rights and proprietary information are assignable without violating any
agreements governing same), (vi) all other Goods, General Intangibles,
Permits, Chattel Paper, Letter-of-Credit Rights, Commercial Tort Claims,
Documents and Instruments, (vii) the Reserve Account and all Account
Collateral, Borrowing Base Income, Cash Equivalents and other amounts
permitted or required to be deposited therein pursuant to the Credit
Agreement, (viii) all revenues, receipts, income, accounts, and other
Receivables derived or to be derived from the ownership or operation
of any Borrowing Base Properties and related facilities located thereon,
including, without limitation of the generality of the foregoing, all
rent, advance deposits, charges for services and other revenues and
income derived or to be derived from the sale or rental of rooms,
apartments, units or other facilities, the provision of services, the
sale of food, beverages and merchandise, the rental of shops, the
leasing of commercial or residential spaces, the granting of concessions
(including concessions for the installation of coin-operated machines to
the extent of such Assignor's interest therein) within or about any
Borrowing Base Properties and related facilities, the rental or operation
of parking facilities and the provision of services to guests of any
Borrowing Base Properties and related facilities located thereon and
any other items of revenue, receipts or other income, (ix) all books
and records of each Assignor with respect to any and all of the
foregoing and (x) all Proceeds, products and Supporting Obligations of
any and all of the foregoing (all of each Assignor's right, title and
interest in the above, collectively, the "Collateral").
(b) The security interest of the Collateral Agent under this
Agreement extends to all Collateral of the kind which is the subject
of this Agreement which any Assignor may acquire at any time during the
term of this Agreement.
2
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and
delivery of this Agreement, as follows:
2.1. Necessary Filings. With respect to the Collateral that
consists of cash, Cash Equivalents and property in which a security
interest may be perfected by the filing of a financing statement under
the UCC, upon (i) possession by the Collateral Agent or its designee in
the case of cash, (ii) the taking of all action required under Articles
8 and 9 of the UCC in the case of Cash Equivalents and Instruments and
(iii) the filing of appropriate financing statements under the UCC in
the case of such other Collateral (all of which actions described in
preceding clauses (i), (ii) and (iii) shall have been taken and be in
full force and effect with respect to such Collateral owned by such
Assignor within 10 days following the Effective Date (or 30 days in
the case of cash and Cash Equivalents), the Collateral Agent has been
granted, for the benefit of the Secured Creditors and pursuant to this
Agreement, a legal, valid and enforceable security interest in all right,
title and interest of such Assignor in such Collateral, which security
interest is (with the exception of cash which is not in the possession
of the Collateral Agent) a fully per-fected first lien on, and security
interest in, all right, title and interest of such Assignor in all of
such Collateral, subject to no other Liens other than Permitted Liens,
provided that it will not be a breach of the representation and warranty
made in this Section 2.1 if the Collateral Agent does not have a perfected
security interest in Cash Equivalents which, in the aggregate, total less
than $100,000.
2.2. No Liens. Such Assignor is, and as to Collateral acquired by
it from time to time after the date hereof such Assignor will be, the
owner of all Collateral free from any Lien, security interest, encumbrance
or other right, title or interest of any Person (other than Permitted
Liens), and such Assignor shall defend the Collateral against all claims
and demands of all Persons at any time claiming the same or any interest
therein adverse to the Collateral Agent and the other Secured Creditors.
2.3. Other Financing Statements. As of the date hereof, there is no
financing statement (or similar statement or instrument of registration
under the law of any jurisdiction) covering or purporting to cover any
interest of any kind in the Collateral (other than financing statements
filed in respect of Permitted Liens and financing statements filed by
German American Capital Corporation, as administrative agent under the
Existing Security Agreement, as secured party, that will be assigned to
the Collateral Agent), and so long as the Termination Date has not
occurred, such Assignor will not execute or authorize to be filed in
any public office any financing statement (or similar statement or
instrument of registration under the law of any jurisdiction) or
statements relating to the Collateral, except financing statements
filed or to be filed in respect of and covering the security interests
granted hereby by such Assignor or in connection with Permitted Liens.
2.4. Organizational Identity; Records. The type of organization,
jurisdiction of organization, organizational identification number (if
applicable), tax identification number (if applicable) and location of
the chief executive office and records (collectively, the "Organizational
3
Identity") of such Assignor are indicated on Annex A hereto for such
Assignor. Such Assignor will not change its Organizational Identity
except as such Assignor may do so in accordance with the last sentence
of this Section 2.4. No Assignor shall change its Organizational
Identity until (i) it shall have given to the Collateral Agent not
less than 30 days' prior written notice of its intention to do so,
clearly describing such new Organizational Identity and providing such
other information in connection therewith as the Collateral Agent may
reasonably request, (ii) with respect to such new Organizational
Identity, it shall have taken all action, reasonably satisfactory to
the Collateral Agent, to maintain the security interest of the
Collateral Agent in the Collateral intended to be granted hereby at
all times fully perfected and in full force and effect and (iii) at
the request of the Collateral Agent, it shall have furnished an
opinion of counsel reasonably acceptable to the Collateral Agent to
the effect that all financing or continuation statements and
amendments or supplements thereto have been filed in the appropriate
filing office or offices, and all other actions have been taken, in
order to perfect (and maintain the perfection of) the security interest
granted hereby in respect of the types of Collateral referred to in
Section 2.1 hereof.
2.5. Location of Inventory and Equipment. All Inventory and
Equipment held on the date hereof by each Assignor is located at one
of the locations shown on Annex B hereto for such Assignor. Each
Assignor agrees that all Inventory and Equipment now held or
subsequently acquired by it shall be kept at (or shall be in
transport to) any one of the locations shown on Annex B hereto, or
such new location as such Assignor may establish in accordance
with the last sentence of this Section 2.5. Any Assignor may
establish a new location for Inventory and Equipment only if (i)
it shall have given to the Collateral Agent not less than 30
days' prior written notice of its intention so to do, clearly
describing such new location and providing such other information in
connection therewith as the Collateral Agent may request, (ii) with
respect to such new location, it shall have taken all action reasonably
satisfactory to the Collateral Agent to maintain the security interest
of the Collateral Agent in the Collateral in-tended to be granted hereby
at all times fully perfected and in full force and effect and (iii) at
the request of the Collateral Agent, it shall have furnished an opinion
of counsel reasonably acceptable to the Collateral Agent to the effect
that all financing or continuation statements and amendments or
supplements thereto have been filed in the appropriate filing office or
offices, and all other actions have been taken, in order to perfect
(and maintain the perfection of) the security interest granted hereby
in respect of the types of Collateral referred to in Section 2.1 hereof.
2.6. Reserve Account. (a) The Reserve Account shall be governed by
the provisions of the Credit Agreement in addition to the provisions of
this Agreement.
(b) On or prior to the Effective Date, the Borrower shall duly
authorize, execute and deliver to the Collateral Agent a Control
Agreement substantially in the form of Annex C hereto with respect to
the Reserve Account and shall take such other actions as may be
necessary or, in the reasonable opinion of the Collateral Agent,
desirable to perfect, preserve or protect the security interest of the
Collateral Agent in the Reserve Account.
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2.7. Recourse. This Agreement is made with full recourse to each
Assignor (including, without limitation, with full recourse to all assets
of such Assignor) and pursuant to and upon all the warranties,
representations, covenants and agreements on the part of such Assignor
contained herein, in the other Secured Debt Agreements and otherwise in
writing in connection herewith or therewith.
2.8. Legal Names; Trade Names; Change of Name. The exact legal
name of such Assignor is indicated on Annex A hereto for such Assignor.
No Assignor has or operates in any jurisdiction under, or in the
preceding 12 months has had or has operated in any jurisdiction under,
any trade names, fictitious names or other names except its legal name
and such other trade or fictitious names as are listed on Annex D hereto
for such Assignor. No Assignor shall change its legal name or assume or
operate in any jurisdiction under any trade, fictitious or other name
except those names listed on Annex D hereto for such Assignor and new
names established in accordance with the last sentence of this Section
2.8. No Assignor shall assume or operate in any jurisdiction under any
new trade, fictitious or other name until (i) it shall have given to the
Collateral Agent not less than 30 days' prior written notice of its
intention so to do, clearly describing such new name and the jurisdictions
in which such new name shall be used and providing such other information
in connection therewith as the Collateral Agent may reasonably request,
(ii) with respect to such new name, it shall have taken all action
reasonably requested by the Collateral Agent to maintain the security
interest of the Collateral Agent in the Collateral intended to be granted
hereby at all times fully perfected and in full force and effect and (iii)
at the request of the Collateral Agent, it shall have furnished an opinion
of counsel reasonably acceptable to the Collateral Agent to the effect
that all financing or continuation statements and amendments or supplements
thereto have been filed in the appropriate filing office or offices, and
all other actions have been taken, in order to perfect (and maintain the
perfection of) the security interest granted hereby in respect of the types
of Collateral referred to in Section 2.1 hereof.
ARTICLE III
SPECIAL PROVISIONS CONCERNING RECEIVABLES;
CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER
3.1. Additional Representations and Warranties. As of the time
when each of its Receivables arises, each Assignor shall be deemed to
have represented and warranted that, to the best of such Assignor's
knowledge, such Receivable, and all records, papers and documents
relating thereto (if any) are what they purport to be, and to the best
of such Assignor's knowledge, such Receivable will evidence true and
valid obligations of the account debtor named therein.
3.2. Maintenance of Records. Each Assignor will keep and maintain
at its own cost and expense accurate records of its Receivables and
Contracts, including, but not limited to, originals of all documentation
(including each Contract) with respect thereto, records of all payments
received, all credits granted thereon, all merchandise returned and all
other dealings therewith, and such Assignor will make the same available
on such Assignor's premises to the Collateral Agent for inspection, at
such Assignor's own cost and expense, at any and all reasonable times
5
upon prior notice to such Assignor. Upon the occurrence and during the
continuance of an Event of Default and at the request of the Collateral
Agent, such Assignor shall, at its own cost and expense, deliver all
tangible evidence of its Receivables and Contract Rights (including,
without limitation, all documents evidencing the Receivables and all
Con-tracts) and such books and records to the Collateral Agent or to
its representatives (copies of which evidence and books and records may
be retained by such Assignor).
3.3. Direction to Account Debtors; Contracting Parties; etc. Upon
the occurrence and during the continuance of an Event of Default, and if
the Collateral Agent so directs any Assignor, such Assignor agrees (x)
to cause all payments on account of the Receivables and Contracts to be
made directly to the Collateral Agent as the Collateral Agent shall
direct, (y) that the Collateral Agent may, at its option, directly
notify the obligors with respect to any Receivables and/or under any
Contracts to make payments with respect thereto as provided in the
preceding clause (x) and (z) that the Collateral Agent may enforce
collection of any such Receivables and Contracts and may adjust, settle
or compromise the amount of payment thereof, in the same manner and to
the same extent as such Assignor. Without notice to or assent by any
Assignor, the Collateral Agent may, while any such Event of Default is
continuing, apply any or all amounts collected pursuant to this Section
3.3 to satisfy the Obligations, which application shall be effected in
the manner provided in Section 5.4 of this Agreement. The costs and
expenses (including reasonable attorneys' fees) of collection, whether
incurred by an Assignor or the Collateral Agent, shall be borne by the
relevant Assignor. The Collateral Agent shall deliver a copy of each
notice referred to in the preceding clause (y) to the relevant Assignor;
provided, that the failure by the Collateral Agent to so notify such
Assignor shall not affect the effectiveness of such notice or the other
rights of the Collateral Agent created by this Section 3.3; provided
further, that the Collateral Agent will promptly rescind any notice
theretofore given under this Section 3.3 after all Events of Defaults
have been cured or waived.
3.4. Modification of Terms; etc. Except in accordance with such
Assignor's ordinary course of business and consistent with sound business
judgment, no Assignor shall rescind or cancel any indebtedness evidenced
by any Receivable or under any Contract, or materially modify any term
thereof or make any material adjustment with respect thereto, or
extend or renew the same, or compromise or settle any material dispute,
claim, suit or legal proceeding relating thereto, or sell any Receivable
or Contract, or interest therein, without the prior written consent of
the Collateral Agent. To the extent consistent with sound business
judgment, each Assignor will duly fulfill all obligations on its part
to be fulfilled under or in connection with the Receivables and
Contracts and will do nothing to impair the rights of the Collateral
Agent in the Receivables or Contracts.
3.5. Collection. Each Assignor shall endeavor in accordance with
reasonable business practices to cause to be collected from the account
debtor named in each of its Receivables or obligor under any Contract,
as and when due (including, without limitation, amounts which are
delinquent, such amounts to be collected in accordance with generally
accepted lawful collection procedures) any and all amounts owing under
or on account of such Receivable or Contract, and apply forthwith upon
6
receipt thereof all such amounts as are so col-lected to the outstanding
balance of such Receivable or under such Contract, except that, prior to
the occurrence of an Event of Default, any Assignor may allow in the
ordinary course of busi-ness as adjustments to amounts owing under its
Receivables and Contracts (i) an extension or renewal of the time or
times of payment, or settlement for less than the total unpaid balance,
which such Assignor finds appropriate in accordance with reasonable
business judgment and (ii) a refund or credit due as a result of
returned or damaged merchandise or improperly per-formed services or
for other reasons which such Assignor finds appropriate in accordance
with reasonable business judgment. The reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees) of
collection, whether incurred by an Assignor or the Collateral
Agent, shall be borne by the relevant Assignor.
3.6. Delivery of Instruments. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by
any Instrument, such Instrument shall be promptly delivered to the
Collateral Agent, duly endorsed in a manner satisfactory to the
Collateral Agent, to be held as Collateral pursuant to this Agreement,
provided that, so long as no Event of Default shall have occurred and
be continuing, each Assignor may retain for collection in the ordinary
course of business any Instruments received by such Assignor in the
ordinary course of business, and the Collateral Agent shall, promptly
upon request of such Assignor, make appropriate arrangements for making
any other Instrument pledged by such Assignor available to such Assignor
for purposes of presentation, collection or renewal (any such arrangement
to be effected, to the extent deemed appropriate by the Collateral Agent,
against trust receipt or like document). Until such Collateral is
delivered to the Collateral Agent, such Assignor shall hold such property
in trust for the Secured Creditors, segregated from other property of such
Assignor, as additional collateral security for the Obligations.
3.7. Assignors Remain Liable Under Receivables. Anything herein to
the con-trary notwithstanding, the Assignors shall remain liable under
each of the Receivables to observe and perform all of the conditions and
obligations to be observed and performed by them thereunder, all in
accordance with the terms of any agreement giving rise to such Receivables.
Neither the Collateral Agent nor any other Secured Creditor shall have any
obligation or liability under any Receivable (or any agreement giving rise
thereto) by reason of or arising out of this Agreement or the receipt by
the Collateral Agent or any other Secured Creditor of any payment relating
to such Receivable pursuant hereto, nor shall the Collateral Agent or any
other Secured Creditor be obligated in any manner to perform any of the
obligations of any Assignor under or pursuant to any Receivable (or any
agreement giving rise thereto), to make any payment, to make any inquiry
as to the nature or the sufficiency of any payment received by them or as
to the sufficiency of any performance by any party under any Receivable
(or any agreement giving rise thereto), to present or file any claim, to
take any action to enforce any performance or to collect the payment of
any amounts which may have been assigned to them or to which they may be
entitled at any time or times.
3.8. Assignors Remain Liable Under Contracts. Anything herein to
the contrary notwithstanding, the Assignors shall remain liable under
each of the Contracts to observe and perform all of the conditions and
obligations to be observed and performed by them thereunder, all in
accordance with and pursuant to the terms and provisions of each
Contract. Neither the Collateral Agent nor any other Secured Creditor
7
shall have any obligation or liability under any Contract by reason of
or arising out of this Agreement or the receipt by the Collateral Agent
or any other Secured Creditor of any payment relating to such contract
pursuant hereto, nor shall the Collateral Agent or any other Secured
Creditor be obligated in any manner to perform any of the obligations
of any Assignor under or pursuant to any Contract, to make any payment,
to make any inquiry as to the nature or the sufficiency of any
performance by any party under any Contract, to present or file any
claim, to take any action to enforce any performance or to collect
the payment of any amounts which may have been assigned to them or to
which they may be entitled at any time or times.
3.9. Further Actions. Each Assignor will, at its own expense,
make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, certificates, reports and other assurances or instruments
and take such further steps relating to its Receivables, Contracts,
Instruments and other property or rights covered by the security
interest hereby granted, as the Collateral Agent may reasonably require.
ARTICLE IV
PROVISIONS CONCERNING ALL COLLATERAL
4.1. Protection of Collateral Agent's Security. Each Assignor
will at all times keep its Inventory and Equipment insured in favor of
the Collateral Agent, at such Assignor's own expense to the extent and
in the manner provided in the Secured Debt Agreements; all policies or
certificates with respect to such insurance (and any other insurance
maintained by such Assignor) (i) shall name the Collateral Agent as
additional insured and loss payee as its respective interest may appear
and (ii) shall state that such insurance policies shall not be cancelled
or materially changed without at least 30 days' prior written notice
thereof (or 10 days' prior written notice thereof in the case of non-
payment of premium) by the insurer to the Collateral Agent; and
certified copies of such policies or certificates with respect thereto
shall be deposited with the Collateral Agent. If any Assignor shall
fail to insure its Inventory and Equipment in accordance with the
preceding sentence, or if any Assignor shall fail to so name the
Collateral Agent as additional insured and loss payee or deposit all
policies or certificates with respect thereto, the Collateral Agent
shall have the right (but shall be under no obligation) to procure
such insurance and such Assignor agrees to promptly reimburse the
Collateral Agent for all costs and expenses of procuring such
insurance. Except to the extent otherwise permitted to be retained
by such Assignor or applied by such Assignor pursuant to the terms of
the Secured Debt Agreements, the Collateral Agent shall, at the time any
proceeds of such insurance are dis-tributed to the Secured Creditors,
apply such proceeds in accordance with Section 5.4 hereof and in
accordance with the Credit Agreement. Each Assignor assumes all
liability and responsibility in connection with the Collateral
acquired by it and the liability of such Assignor to pay the
Obligations shall in no way be affected or diminished by reason of the
fact that such Collateral may be lost, destroyed, stolen, damaged or
for any reason whatsoever unavailable to such Assignor.
4.2. Further Actions. Each Assignor will, at its own expense and
upon the request of the Collateral Agent, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to
time such lists, descriptions and designations of its Collateral,
8
warehouse receipts, receipts in the nature of warehouse receipts, bills
of lading, documents of title, vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, certificates, reports and other assurances or instruments
and take such further steps relating to the Collateral and other
property or rights covered by the secu-rity interest hereby granted,
which the Collateral Agent deems reasonably appropriate or advisable
to perfect, preserve or protect its security interest in the Collateral,
including, without limitation, (i) executing and delivering such
documents, and taking such further actions, as to establish the
Collateral Agent's control of any Collateral consisting of Letter-
of-Credit Rights or electronic Chattel Paper and (ii) executing and
delivering to the Collateral Agent such additional security agreements
or amendments to this Agreement in form and substance satisfactory to
the Collateral Agent which identify and assign, pledge and create a
security interest in new Commercial Tort Claims of such Assignor as
they arise.
4.3. Financing Statements. Each Assignor agrees to execute and
deliver to the Collateral Agent such financing statements, in form
reasonably acceptable to the Collateral Agent, as the Collateral Agent
may from time to time reasonably request or as are necessary or
desirable in the opinion of the Collateral Agent to establish and
maintain a valid, enforceable, first priority perfected security
interest in the Collateral (subject to Permitted Liens) as provided
herein and the other rights and security contemplated hereby all in
accordance with the UCC as enacted in any and all relevant jurisdictions
or any other relevant law. Each Assignor will pay any applicable filing
fees, recordation taxes and related expenses relating to its Collateral.
Each Assignor hereby authorizes the Collateral Agent to file any such
financing statements without the signature of such Assignor where
permitted by law, provided that the Collateral Agent shall deliver a
copy of any said financing statement to the relevant Assignor.
ARTICLE V
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
5.1. Remedies; Obtaining the Collateral Upon Default. Each
Assignor agrees that, if any Event of Default shall have occurred and
be continuing, then and in every such case, the Collateral Agent, in
addition to any rights now or hereafter existing under applicable law,
shall have all rights as a secured creditor under any UCC, and such
additional rights and remedies to which a secured creditor is entitled
under the laws in effect, in all relevant jurisdictions and may:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor
or any other Person who then has possession of any part thereof with
or without notice or process of law, and for that purpose may enter
upon such Assignor's premises where any of the Collateral is located
and remove the same and use in connection with such removal any and
all services, supplies, aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument
or other obligation (including, without limitation, the Receivables and
9
the Contracts) constituting the Collateral to make any payment required
by the terms of such agreement, instrument or other obligation directly
to the Collateral Agent;
(iii) withdraw all monies, securities and instruments in the Reserve
Account for application to the Obligations in accordance with Section 5.4
hereof;
(iv) sell, assign or otherwise liquidate any or all of the Collateral
or any part thereof in accordance with Section 5.2 hereof, or direct the
relevant Assignor to sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof, and, in each case, take possession of the
proceeds of any such sale or liquidation; and
(v) take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to deliver the same to the
Collateral Agent at any place or places designated by the Collateral
Agent, in which event such Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place or
places so designated by the Collateral Agent and there delivered
to the Collateral Agent;
(y) store and keep any Collateral so delivered to the
Collateral Agent at such place or places pending further action
by the Collateral Agent as provided in Section 5.2 hereof;
(z) while the Collateral shall be so stored and kept,
provide such guards and maintenance services as shall be necessary
to protect the same and to preserve and maintain them in good
condition;
it being understood that each Assignor's obligation so to deliver the
Collateral is of the essence of this Agreement and that, accordingly,
upon application to a court of equity having jurisdiction, the
Collateral Agent shall be entitled to a decree requiring specific
performance by such Assignor of said obligation. By accepting the
benefits of this Agreement, the Secured Creditors agree that this
Agreement may be enforced only by the action of the Collateral Agent
acting upon the instructions of the Required Secured Creditors and that
no other Secured Creditor shall have any right individually to seek to
enforce this Agreement or to realize upon the security to be granted
hereby, it being understood and agreed that such rights and remedies may
be exercised only by the Collateral Agent for the benefit of the Secured
Creditors in accordance with the terms of this Agreement and the Credit
Agreement.
5.2. Remedies; Disposition of the Collateral. Any Collateral
repossessed by the Collateral Agent under or pursuant to Section 5.1
hereof and any other Collateral whether or not so repossessed by the
Collateral Agent, may be sold, assigned, leased or otherwise disposed
of under one or more contracts or as an entirety, and without the
necessity of gathering at the place of sale the property to be sold,
and in general in such manner, at such time or times, at such place
or places and on such terms as the Collateral Agent may, in compliance
with any mandatory re-quirements of applicable law, determine to be
commercially reasonable. Any of the Collateral may be sold, leased or
otherwise disposed of, in the condition in which the same existed when
taken by the Collateral Agent. Any such disposition which shall be a
private sale or other private proceedings permitted by such requirements
shall be made upon not less than 10 days' prior writ-ten notice (which
notice shall be deemed reasonable) to the relevant Assignor specifying
10
the time at which such disposition is to be made and the intended sale
price or other consideration therefor, and shall be subject, for the
10 days after the giving of such notice, to the right of the relevant
Assignor or any nominee of such Assignor to acquire the Collateral
involved at a price or for such other consideration at least equal to
the intended sale price or other consideration so specified. Any such
disposition which shall be a public sale permitted by such requirements
shall be made upon not less than 10 days' prior written notice (which
notice shall be deemed reasonable) to the relevant Assignor specifying
the time and place of such sale and, in the absence of applicable
requirements of law, shall be by public auction (which may, at the
Collateral Agent's option, be subject to reserve), after publication
of notice of such auction (where required by applicable law) not less
than 10 days prior thereto. The Collateral Agent may, without notice
or publication, adjourn any public or private sale or cause the same to
be adjourned from time to time by announcement at the time and place
fixed for the sale, and such sale may be made at any time or place to
which the sale may be so adjourned. To the extent permitted by any such
requirement of law, the Collateral Agent may bid for and become the pur-
chaser of the Collateral or any item thereof, offered for sale in
accordance with this Section without accountability to the relevant
Assignor. If, under mandatory requirements of applicable law, the
Collateral Agent shall be required to make disposition of the
Collateral within a period of time which does not permit the giving
of notice to the relevant Assignor as hereinabove spe-cified, the
Collateral Agent need give such Assignor only such notice of disposition
as shall be reasonably practicable in view of such mandatory
requirements of applicable law.
5.3. Waiver of Claims. Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE
COLLATERAL AGENT'S TAKING POSSESSION OR THE COLLATERAL AGENT'S
DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING, WITHOUT LIMITATION,
ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR
REMEDIES, and each Assignor hereby further waives, to the extent
permitted by law:
(vi) all damages occasioned by such taking of possession except
any damages which are the direct result of the Collateral Agent's
gross negligence or willful miscon-duct;
(vii) all other requirements as to the time, place and terms of
sale or other requirements with respect to the enforcement of the
Collateral Agent's rights hereunder; and
(viii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Agreement or
the absolute sale of the Collateral or any portion thereof, and each
11
Assignor, for itself and all who may claim under it, insofar as it
or they now or hereafter lawfully may, hereby waives the benefit of
all such laws. Subject to applicable law, any sale of, or the grant
of options to purchase, or any other realization upon, any Collateral
shall operate to divest all right, title, interest, claim and demand,
either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity
against such Assignor and against any and all Persons claiming or
attempting to claim the Collateral so sold, optioned or realized
upon, or any part thereof, from, through and under such Assignor.
5.4. Application of Proceeds. (c) All moneys collected by the
Collateral Agent (or, to the extent the Pledge and Security Agreement
or any Mortgage require proceeds of collateral under such Security
Document to be applied in accordance with the provisions of this
Agreement, the Pledgee, Assignee or Mortgagee under such other
Security Document) upon any sale or other disposition of the
Collateral, together with all other moneys received by the
Collateral Agent hereunder, shall be applied as follows:
(i) first, to the payment of all amounts owing the Collateral
Agent of the type described in clauses (ii) and (iii) of the definition
of "Obligations";
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Primary Obligations shall be paid to the Secured Creditors as provided
in Section 5.4(d) hereof, with each Secured Creditor receiving an amount
equal to its outstanding Primary Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations, its Pro Rata
Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Secondary Obligations shall be paid to the Secured Creditors
as provided in Section 5.4(d) hereof, with each Secured Creditor
receiving an amount equal to its outstanding Secondary Obligations or,
if the proceeds are insufficient to pay in full all such Secondary
Obligations, its Pro Rata Share of the amount remaining to be
distributed; and
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, and
following the termination of this Agreement pursuant to Section 9.8(a)
hereof, to the relevant Assignor or to whomever may be lawfully
entitled to receive such surplus.
(d) For purposes of this Agreement (x) "Pro Rata Share" shall mean,
when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's
Primary Obligations or Secondary Obligations, as the case may be, and the
denominator of which is the then outstanding amount of all Primary
Obligations or Secondary Obligations, as the case may be, (y) "Primary
Obligations" shall mean all principal of, and interest on, all Loans and
all Fees and (z) "Secondary Obligations" shall mean all Obligations
other than Primary Obligations.
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(e) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured
Creditors hereunder shall be applied (for purposes of making
determinations under this Section 5.4 only) (i) first, to their Primary
Obligations and (ii) second, to their Secondary Obligations. If any
payment to any Secured Creditor of its Pro Rata Share of any distribution
would result in overpayment to such Secured Creditor, such excess amount
shall instead be distributed in respect of the unpaid Primary Obligations
or Secondary Obligations, as the case may be, of the other Secured
Creditors, with each Secured Creditor whose Primary Obligations or
Secondary Obligations, as the case may be, have not been paid in full
to receive an amount equal to such excess amount multiplied by a
fraction the numerator of which is the unpaid Primary Obligations or
Secondary Obligations, as the case may be, of such Secured Creditor and
the denominator of which is the unpaid Primary Obligations or Secondary
Obligations, as the case may be, of all Secured Creditors entitled to
such distribution.
(f) All payments required to be made to the Bank Creditors hereunder
shall be made to the Administrative Agent under the Credit Agreement for
the account of the Bank Creditors.
(g) For purposes of applying payments received in accordance with
this Sec-tion 5.4, the Collateral Agent shall be entitled to rely upon the
Administrative Agent under the Credit Agreement for a determination (which
the Administrative Agent and the Secured Creditors agree (or shall agree)
to provide upon request of the Collateral Agent) of the outstand-ing
Primary Obligations and Secondary Obligations owed to the Bank Creditors.
Unless it has actual knowledge (including by way of written notice from a
Bank Creditor) to the contrary, the Administrative Agent, in furnishing
information pursuant to the preceding sentence, and the Collateral Agent,
in acting hereunder, shall be entitled to assume that no Secondary
Obligations are outstanding.
(h) It is understood that the Borrower shall remain liable, the
Parent Guarantor shall remain liable, and the Subsidiary Guarantors
shall remain jointly and severally liable, in each case to the extent
of any deficiency between the amount of the proceeds of the Collateral
and the aggregate amount of the Obligations.
5.5. Remedies Cumulative. Each and every right, power and remedy
hereby specifically given to the Collateral Agent shall be in addition
to every other right, power and remedy specifically given under this
Agreement, the other Secured Debt Agreements or now or hereafter
existing at law, in equity or by statute and each and every right,
power and remedy whether specifically herein given or otherwise
existing may be exercised from time to time or simultaneously and as
often and in such order as may be deemed expedient by the Collateral
Agent. All such rights, powers and remedies shall be cumulative and
the exercise or the beginning of the exercise of one shall not be
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deemed a waiver of the right to exercise any other or others. No
delay or omission of the Collateral Agent in the exercise of any such
right, power or remedy and no renewal or extension of any of the
Obligations shall impair any such right, power or remedy or shall be
construed to be a waiver of any Default or Event of Default or an
acquiescence therein. No notice to or demand on any Assignor in any
case shall entitle it to any other or further notice or demand in
similar or other circumstances or constitute a waiver of any of the
rights of the Collateral Agent to any other or further action in
any circumstances without notice or demand. In the event that the
Collateral Agent shall bring any suit to enforce any of its rights
hereunder and shall be entitled to judgment, then in such suit the
Collateral Agent may recover reasonable expenses, including reasonable
attorneys' fees, and the amounts thereof shall be included in such
judgment.
5.6. Discontinuance of Proceedings. In case the Collateral Agent
shall have insti-tuted any proceeding to enforce any right, power or
remedy under this Agreement by foreclosure, sale, entry or otherwise,
and such proceeding shall have been discontinued or abandoned for any
reason or shall have been determined adversely to the Collateral Agent,
then and in every such case the relevant Assignor, the Collateral Agent
and each holder of any of the Obligations shall be restored to their
former positions and rights hereunder with respect to the Collateral
subject to the security interest created under this Agreement, and all
rights, remedies and powers of the Collateral Agent shall continue as
if no such proceeding had been instituted.
ARTICLE VI
INDEMNITY
6.1. Indemnity. (i) Each Assignor jointly and severally agrees
to indemnify, reimburse and hold the Collateral Agent, each other
Secured Creditor and their respective suc-cessors, permitted assigns,
employees and agents (hereinafter in this Section 6.1 referred to
individually as "Indemnitee," and collectively as "Indemnitees")
harmless from any and all liabilities, obligations, damages, injuries,
penalties, claims, demands, actions, suits, judgments and costs,
expenses or disbursements (including reasonable attorneys' fees and
expenses) (for the purposes of this Section 6.1 the foregoing are
collectively called "expenses") of whatsoever kind and nature imposed
on, asserted against or incurred by any of the Indemnitees in any way
relating to or arising out of this Agreement, any other Secured Debt
Agreement or any other document executed in connection herewith or
therewith or in any other way connected with the administration of
the transactions contemplated hereby or thereby or the enforcement
of any of the terms of, or the preservation of any rights under any
thereof, or in any way relating to or arising out of the manufacture,
ownership or use of the Collateral; provided that no Indemnitee
shall be indemnified pursuant to this Section 6.1(a) for losses,
damages or liabilities to the extent caused by the gross negligence
or willful misconduct of such Indemnitee. Each Assignor agrees
that upon written notice by any Indemnitee of the assertion of such a
liability, obligation, dam-age, injury, penalty, claim, demand, action,
suit or judgment, the relevant Assignor shall assume full responsibility
for the defense thereof. Each Indemnitee agrees to promptly notify the
relevant Assignor of any such assertion of which such Indemnitee has
knowledge; provided that the failure to give such notice shall not affect
such Indemnitee's right to indemnification hereunder except to the extent
(but only to the extent) that such Indemnitee's damages are increased as
a result of such failure.
(j) Without limiting the application of Section 6.1(a) hereof,
each Assignor agrees, jointly and severally, to pay, or reimburse the
Collateral Agent for any and all reasonable fees, costs and expenses of
whatever kind or nature incurred in connection with the creation,
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preservation or protection of the Collateral Agent's Liens on, and
security interest in, the Collateral, including, without limitation,
all fees and taxes in connection with the recording or filing of
instruments and documents in public offices, payment or discharge of
any taxes or Liens upon or in respect of the Collateral, premiums for
insurance with respect to the Collateral and all other fees, costs and
expenses in connection with protecting, maintaining or preserving the
Collateral and the Collateral Agent's interest therein, whether through
judicial proceedings or otherwise, or in defending or prosecuting any
actions, suits or proceedings arising out of or relating to the
Collateral.
(k) If and to the extent that the obligations of any Assignor under
this Section 6.1 are unenforceable for any reason, such Assignor hereby
agrees to make the maximum contribu-tion to the payment and satisfaction
of such obligations which is permissible under applicable law.
6.2. Indemnity Obligations Secured by Collateral; Survival. Any
amounts paid by any Indemnitee as to which such Indemnitee has the right
to reimbursement shall constitute Obligations secured by the Collateral.
The indemnity obligations of each Assignor contained in this Article VI
shall continue in full force and effect notwithstanding the full payment
of all of the other Obligations and notwithstanding the discharge thereof.
ARTICLE VII
DEFINITIONS
The following terms shall have the meanings herein specified.
Such definitions shall be equally applicable to the singular and plural
forms of the terms defined.
"Account Collateral" shall have the meaning provided in the Credit
Agreement.
"Administrative Agent" shall have the meaning provided in the Credit
Agreement.
"Agreement" shall mean this Amended and Restated Security Agreement as
the same may be modified, supplemented or amended from time to time in
accordance with its terms.
"Assignor" shall have the meaning provided in the first paragraph of
this Agreement.
"Bank Creditors" shall mean the Banks, the Collateral Agent and the
Administrative Agent.
"Banks" shall have the meaning provided in the Credit Agreement.
"Borrower" shall have the meaning provided in the recitals of this
Agreement.
"Borrowing Base Income" shall have the meaning provided in the Credit
Agreement.
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"Chattel Paper" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Class" shall have the meaning provided in Section 9.2 of this Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a) of this
Agreement.
"Collateral Agent" shall have the meaning provided in the first paragraph
of this Agreement.
"Commercial Tort Claims" shall mean any "commercial tort claim" as such
term is defined in the Uniform Commercial Code as in effect on the date
hereof in the State of New York, now or hereafter owned by any Assignor
and, in any event, shall include, but shall not be limited to, those
claims identified on Annex E hereto, as amended and supplemented from
time to time.
"Contract Rights" shall mean all rights of any Assignor under each
Contract to which such Assignor is a party or beneficiary, including,
without limitation, (i) any and all rights to receive and demand
payments under any or all Contracts, (ii) any and all rights to receive
and compel performance under any or all Contracts and (iii) any and all
other rights, interests and claims now existing or in the future arising
in connection with any or all Contracts.
"Contracts" shall mean all contracts between any Assignor and one or
more additional parties (including, without limitation, each franchise
agreement, each partnership agreement, and each limited liability
company agreement or operating agreement).
"Credit Agreement" shall have the meaning provided in the recitals of
this Agreement.
"Credit Agreement Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article VII.
"Default" shall mean any event which, with notice or lapse of time, or
both, would constitute an Event of Default.
"Documents" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of
New York, now or hereafter owned by any Assignor and, in any event, shall
include, but shall not be limited to, all machinery, equipment,
furnishings, fixtures, appliances, signs, artwork, office furnishings
and equipment, guest room furnishings, linens, dishware, partitions,
screens, awnings, shades, blinds, floor coverings and vehicles now or
hereafter owned by any Assignor and any and all additions, substitutions
and replacements of any of the foregoing, wherever located, together with
all attachments, components, parts, equipment and accessories installed
thereon or affixed thereto.
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"Event of Default" shall mean any Event of Default under, and as defined
in, the Credit Agreement and shall in any event, without limitation,
include any payment default on any of the Obligations after the
expiration of any applicable grace period.
"General Intangibles" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New
York and shall in any event include all of any Assignor's claims,
rights, powers, privileges, authority, options, security interests,
liens and remedies under any partnership agreement, limited liability
company agreement or operating agreement to which such Assignor is a
party or with respect to any partnership or limited liability company
of which such Assignor is a partner or a member, as the case may be.
"Goods" shall have the meaning provided in the Uniform Commercial Code
as in effect on the date hereof in the State of New York.
"Indemnitee" shall have the meaning provided in Section 6.1 of this
Agreement.
"Instrument" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Inventory" shall mean merchandise, inventory and goods, and all
additions, substitutions and replacements thereof, wherever located,
together with all goods, supplies, incidentals, packaging materials,
labels, materials and any other items used or usable in manufacturing,
processing, packaging or shipping same, in all stages of production --
from raw materials through work-in-process to finished goods -- and all
products and proceeds of whatever sort and wherever located and any
portion thereof which may be returned, rejected, reclaimed or
repossessed by the Collateral Agent from any Assignor's customers,
and shall specifically in-clude all "inventory" as such term is
defined in the Uniform Commercial Code as in effect on the date
hereof in the State of New York, now or hereafter owned by any
Assignor, provided that the term inventory shall not include any
liquor located in any jurisdiction to the extent that the laws of
such jurisdiction prohibit the creation of a security interest in
liquor.
"Letter-of-Credit Rights" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Lien" shall mean any security interest, mortgage, pledge, lien, claim,
charge, encumbrance, title retention agreement, lessor's interest in a
financing lease or analogous instrument, in, of, or on any Assignor's
property.
"Obligations" shall mean (i) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations and liabilities (including, without limitation, the
principal of and interest on the Notes issued by, and Loans made to,
the Borrower under the Credit Agreement, and all indemnities, fees and
interest thereon or owed thereunder) of each Assignor to the Bank
Creditors, whether now existing or hereafter incurred under, arising
out of or in connection with any Credit Document (including, without
limitation, in the case of the Guarantor, all of its obligations and
liabilities under its Guaranty) to which such Assignor is a party and
the due performance and compliance by each Assignor with all of the
terms, conditions and agreements contained in the Credit Agreement
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and such other Credit Documents (all such principal, interest,
obligations and liabilities being herein collectively called the
"Credit Agreement Obligations"); (ii) any and all reasonable sums
advanced by the Collateral Agent in order to preserve the Collateral
or preserve its security interest in the Collateral; (iii) in the
event of any proceeding for the collection or enforcement of any
obligations or liabilities referred to in clause (i) above, after an
Event of Default shall have occurred and be continuing, the reasonable
expenses of re-taking, holding, preparing for sale or lease, selling or
otherwise disposing of or realizing on the Collateral, or of any exercise
by the Collateral Agent of its rights hereunder, together with reasonable
attorneys' fees and court costs; and (iv) all amounts paid by any
Indemnitee as to which such Indemnitee has the right to reimbursement
under Section 6.1 of this Agreement.
"Organizational Identity" shall have the meaning provided in Section
2.4 of this Agreement.
"Permits" shall mean, to the extent permitted to be assigned by the
terms thereof or by applicable law, all licenses, permits, rights,
orders, variances, franchises or authorizations of or from any
governmental authority or agency in connection with the maintenance
or operation of any Borrowing Base Property owned or leased by any
Assignor.
"Primary Obligations" shall have the meaning provided in Section 5.4(b)
of this Agreement.
"Pro Rata Share" shall have the meaning provided in Section 5.4(b) of
this Agreement.
"Proceeds" shall have the meaning provided in the Uniform Commercial
Code as in effect in the State of New York on the date hereof or under
other relevant law and, in any event, shall include, but not be limited
to, (i) any and all proceeds of any insurance, indemnity, warranty or
guaranty payable to the Collateral Agent or any Assignor from time to
time with respect to any of the Collateral, (ii) any and all payments
(in any form whatsoever) made or due and payable to any Assignor from
time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral
by any governmental authority (or any person acting under color of
governmental authority) and (iii) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.
"Receivables" shall mean any "account" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of
New York, now or hereafter owned by any Assignor and, in any event, shall
include, but shall not be limited to, all of such Assignor's rights to
payment for goods sold or leased or services performed by such Assignor,
whether now in existence or arising from time to time hereafter,
including, without limitation, rights evidenced by an account, note,
contract, security agreement, chattel paper, or other evidence of
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indebtedness or security, together with (a) all security pledged,
assigned, hypothe-cated or granted to or held by such Assignor to
secure the foregoing, (b) all of any Assignor's right, title and interest
in and to any goods, the sale of which gave rise thereto, (c) all
guarantees, endorsements and indemnifications on, or of, any of the
foregoing, (d) all powers of attorney for the execution of any evidence
of indebtedness or security or other writing in connection
therewith, (e) all books, records, ledger cards, and invoices relating
thereto, (f) all evidences of the filing of financing statements and
other statements and the registration of other instruments in connection
therewith and amendments thereto, notices to other creditors or secured
parties, and certificates from filing or other registration officers,
(g) all credit information, reports and memoranda relating thereto and
(h) all other writings related in any way to the foregoing.
"REIT" shall have the meaning provided in the recitals of this Agreement.
"Representative" shall have the meaning provided in Section 5.4(d) of
this Agreement.
"Required Secured Creditors" shall mean the Required Banks, or, to the
extent required by Section 12.12 of the Credit Agreement, the
Supermajority Banks or each of the Banks under the Credit Agreement,
as the case may be, so long as any Credit Agreement Obligations remain
outstanding.
"Requisite Creditors" shall have the meaning provided in Section 9.2 of
this Agreement.
"Reserve Account" shall have the meaning provided in the Credit Agreement.
"Secondary Obligations" shall have the meaning provided in Section 5.4(b)
of this Agreement.
"Secured Creditors" shall mean the Bank Creditors.
"Secured Debt Agreements" shall mean and include this Agreement and the
other Credit Documents.
"Supporting Obligations" shall have the meaning provided in the Uniform
Commercial Code as in effect in the State of New York on the date
hereof or under other relevant law.
"Termination Date" shall have the meaning provided in Section 9.8 of this
Agreement.
ARTICLE VIII
THE COLLATERAL AGENT
8.1. Appointment. The Secured Creditors, by their acceptance of the
benefits of this Agreement, hereby irrevocably designate Wachovia Bank,
National Association, as Collateral Agent, to act as specified herein.
Each Secured Creditor hereby irrevocably authorizes, and each holder
of any Note by the acceptance of such Note and by the acceptance of the
benefits of this Agreement shall be deemed irrevocably to authorize,
the Collateral Agent to take such action on its behalf under the
provisions of this Agreement and any other instruments and agreements
referred to herein and to exercise such powers and to perform such
duties hereunder as are specifically delegated to or required of the
Collateral Agent by the terms hereof and such other powers as are
reasonably incidental thereto. The Collateral Agent may perform any
of its duties hereunder by or through its authorized agents or employees.
Without limiting the generality of the preceding sentence and
notwithstanding the provisions of Section 8.9, Wachovia Bank, National
Association, in its capacity as Collateral Agent, shall have the right
upon notice to the Borrower and the Banks to transfer and assign all of
its rights, duties and obligations as Collateral Agent hereunder and
under the other Credit Documents to any of its Affiliates.
8.2. Nature of Duties. (l) The Collateral Agent shall have no
duties or responsibilities except those expressly set forth in this
Agreement. The duties of the Collateral Agent shall be mechanical and
administrative in nature; the Collateral Agent shall not have by reason
of this Agreement or any other Secured Debt Agreement a fiduciary
relationship in respect of any Secured Creditor; and nothing in this
Agreement or any other Secured Debt Agreement, expressed or implied,
is intended to or shall be so construed as to impose upon the Collateral
Agent any obligations in respect of this Agreement except as expressly
set forth herein.
(m) The Collateral Agent shall not be responsible for insuring the
Collateral or for the payment of taxes, charges or assessments or
discharging of Liens upon the Collateral (except as required by Section
9.8 hereof) or otherwise as to the maintenance of the Collateral.
(n) The Collateral Agent shall not be required to ascertain or
inquire as to the performance by any Assignor of any of the covenants
or agreements contained in this Agreement or any other Secured Debt
Agreement.
(o) The Collateral Agent shall be under no obligation or duty to
take any action under this Agreement or any other Credit Document if
taking such action (i) would subject the Collateral Agent to a tax in
any jurisdiction where it is not then subject to a tax or (ii) would
require the Collateral Agent to qualify to do business in any
jurisdiction where it is not then so qualified, unless the Collateral
Agent receives security or indemnity satisfactory to it against such
tax (or equivalent liability), or any liability resulting from such
qualification, in each case as results from the taking of such action
under this Agreement or any other Credit Document or (iii) would subject
the Collateral Agent to in personam jurisdiction in any locations
where it is not then so subject.
(p) Notwithstanding any other provision of this Agreement,
neither the Collateral Agent nor any of its officers, directors,
employees, affiliates or agents shall, in its individual capacity,
be personally liable for any action taken or omitted to be taken by
it in accordance with this Agreement except for its own gross
negligence or willful misconduct.
8.3. Lack of Reliance on the Collateral Agent. Independently and
without reliance upon the Collateral Agent, each Secured Creditor, to
the extent it deems appropriate, has made and shall continue to make
(i) its own independent investigation of the financial condition and
affairs of each Assignor in connection with the making and the
20
continuance of the Obligations and the taking or not taking of any
action in connection therewith, and (ii) its own appraisal of the
creditworthiness of each Assignor, and the Collateral Agent shall
have no duty or responsibility, either initially or on a continuing
basis, to provide any Secured Creditor with any credit or other
information with respect thereto, whether coming into its possession
before the extension of any Obligations or the purchase of any Notes
or at any time or times thereafter. The Collateral Agent shall not be
responsible in any manner whatsoever to any Secured Creditor for the
correctness of any recitals, statements, information, representations
or warranties herein or in any document, certificate or other writing
delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility,
priority or sufficiency of this Agreement or the security interests
granted hereunder or the financial condition of any Assignor or be
required to make any inquiry concerning either the performance
or observance of any of the terms, provisions or conditions of this
Agreement, or the financial condition of any Assignor, or the
existence or possible existence of any Default or Event of
Default. The Collateral Agent makes no representations as to the
value or condition of the Collateral or any part thereof, or as to
the title of any Assignor thereto or as to the security afforded
by this Agreement.
8.4. Certain Rights of the Collateral Agent. (q) No Secured
Creditor shall have the right to cause the Collateral Agent to take
any action with respect to the Collateral, with only the Required
Secured Creditors having the right to direct the Collateral Agent
to take any such action. If the Collateral Agent shall request
instructions from the Required Secured Creditors with respect to
any act or action (including failure to act) in connection with
this Agreement, the Collateral Agent shall be entitled to refrain
from such act or taking such action unless and until it shall have
received instructions from the Required Secured Creditors and to
the extent requested, appropriate indemnification in respect of
actions to be taken, and the Collateral Agent shall not incur
liability to any Person by reason of so refraining. Without
limiting the foregoing, no Secured Creditor shall have any right
of action whatsoever against the Collateral Agent as a result of the
Collateral Agent acting or refraining from acting hereunder in
accordance with the instructions of the Required Secured Creditors.
(r) The Collateral Agent shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement at the request
or direction of any of the Secured Creditors, unless such Secured
Creditors shall have offered to the Collateral Agent reasonable
security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or
direction.
8.5. Reliance. The Collateral Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex or telecopier
message, cablegram, order or other document or telephone message
signed, sent or made by the proper Person or entity, and, with
respect to all legal matters pertaining to this Agreement and its
duties thereunder, upon advice of counsel selected by it.
8.6. Indemnification. To the extent the Collateral Agent is not
reimbursed and indemnified by any Assignor under this Agreement, the
Secured Creditors will reimburse and indemnify the Collateral Agent,
in proportion to their respective outstanding principal amounts of
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Obligations, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Collateral Agent in performing
its duties hereunder, or in any way relating to or arising out of its
actions as Collateral Agent in respect of this Agreement (including
any amounts required to be returned by the Collateral Agent in respect
of Collateral) except for those resulting solely from the Collateral
Agent's own gross negligence or willful misconduct. The indemnities
set forth in this Article VIII shall survive the repayment of all
Obligations, with the respective indemnification at such time to be
based upon the outstanding principal amounts (determined as described
above) of Obligations at the time of the respective occurrence upon
which the claim against the Collateral Agent is based or, if same
is not reasonably determinable, based upon the outstanding principal
amounts (determined as described above) of Obligations as in effect
immediately prior to the termination of this Agreement. The
indemnities set forth in this Article VIII are in addition to any
indemnities provided by the Banks to the Collateral Agent pursuant
to the Credit Agreement, with the effect being that the Banks shall
be responsible for indemnifying the Collateral Agent to the extent the
Collateral Agent does not receive payments pursuant to this Section
8.6 from the Secured Creditors (although in such event, and upon
the payment in full of all such amounts owing to the Collateral Agent,
the respective Banks who paid same shall be subrogated to the rights of
the Collateral Agent to receive payment from the Secured Creditors).
8.7. The Collateral Agent in its Individual Capacity. With respect
to its obligations as a lender under the Credit Agreement and any other
Credit Documents to which the Collateral Agent is a party, and to act as
agent under one or more of such Credit Documents, the institution acting
as Collateral Agent shall have the rights and powers specified therein and
herein for a "Bank", or an "Agent", as the case may be, and may exercise
the same rights and powers as though it were not performing the duties
specified herein; and the terms "Banks," "Required Banks," "holders of
Notes," or any similar terms shall, unless the context clearly otherwise
indicates, include the institution acting as Collateral Agent in its
individual capacity. The institution acting as Collateral Agent may
accept deposits from, lend money to, and generally engage in any kind
of banking, trust or other business with any Assignor or any Affiliate
or Subsidiary of any Assignor as if it were not performing the duties
specified herein or in the other Credit Documents, and may accept fees
and other consideration from any Assignor for services in connection
with the Credit Agreement, the other Credit Documents and otherwise
without having to account for the same to the Secured Creditors.
8.8. Holders. The Collateral Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and
until written notice of the assignment, transfer or endorsement thereof,
as the case may be, shall have been filed with the Collateral Agent.
Any request, authority or consent of any person or entity who, at the
time of making such request or giving such authority or consent, is the
holder of any Note, shall be final and conclusive and binding on any
subsequent holder, transferee, assignee or endorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
8.9. Resignation by the Collateral Agent. (s) The Collateral Agent
may resign from the performance of all of its functions and duties under
this Agreement at any time by giving 30 Business Days' prior written notice
22
to each Assignor and the Secured Creditors. Such resignation shall take
effect upon the appointment of a successor Collateral Agent pursuant to
clause (b) or (c) below.
(t) If a successor Collateral Agent shall not have been appointed
within said 30 Business Day period by the Required Secured Creditors, the
Collateral Agent, with the consent of each Assignor, which consent shall
not be unreasonably withheld, shall then appoint a successor Collateral
Agent who shall serve as Collateral Agent hereunder or thereunder until
such time, if any, as the Required Secured Creditors appoint a successor
Collateral Agent as provided above.
(u) If no successor Collateral Agent has been appointed pursuant
to clause (b) above by the 30th Business Day after the date such notice
of resignation was given by the Collateral Agent, the Required Secured
Creditors shall then appoint a successor Collateral Agent who shall
serve as Collateral Agent hereunder or thereunder until such time, if
any, as the Required Secured Creditors appoint a successor Collateral
Agent as provided above.
8.10. Fees and Expenses of Collateral Agent. (v) The Borrower
(by its execution and delivery hereof) hereby agrees that it shall pay
to Wachovia Bank, National Association, as the initial Collateral Agent,
such fees as have been separately agreed to in writing with Wachovia
Bank, National Association for acting as Administrative Agent and as
Collateral Agent here-under. In the event a successor Collateral Agent
is at any time appointed pursuant to the preceding Section 8.9, the
Borrower hereby agrees to pay such successor Collateral Agent such
reasonable fees for acting as such as would customarily be charged
by such Collateral Agent for acting in such capacity in similar
situations.
(w) In addition, each Assignor agrees jointly and severally to
pay all reasonable out-of-pocket costs and expenses of the Collateral
Agent in connection with this Agreement and any actions taken by the
Collateral Agent hereunder, and agrees to pay all costs and expenses
of the Collateral Agent in connection with the enforcement of this
Agreement and the documents and instruments referred to herein
(including, without limitation, reasonable fees and disbursements
of counsel for the Collateral Agent).
ARTICLE IX
MISCELLANEOUS
9.1. Notices. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective
parties hereto shall be deemed to have been duly given or made when
delivered in accordance with the provisions of Section 12.03 of the
Credit Agreement, addressed as follows:
(x) if to any Assignor, at it address set forth opposite its
signature below;
(y) if to the Collateral Agent, at:
23
Wachovia Bank, National Association
Wachovia Securities
Real Estate Debt Capital Markets
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 28288
Attention: ▇▇▇ ▇. ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(z) if to any Bank Creditor, at such address as such Bank Creditor
shall have specified in the Credit Agreement;
or at such other address as shall have been furnished in writing by any
Person described above to the party required to give notice hereunder.
9.2. Waiver; Amendment. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each Assignor directly
affected thereby and the Collateral Agent (with the written consent of
the Required Secured Creditors).
9.3. Obligations Absolute. The obligations of each Assignor
hereunder shall remain in full force and effect without regard to,
and shall not be impaired by, (a) any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation
or the like of such Assignor; (b) any exercise or non-exercise, or
any waiver of, any right, remedy, power or privilege under or in
respect of this Agreement or any other Secured Debt Agreement;
or (c) any amendment to or modification of any Secured Debt
Agreement (other than this Agreement) or any security for any of
the Obligations; whether or not any Assignor shall have notice or
knowledge of any of the foregoing.
9.4. Successors and Assigns. This Agreement shall be binding
upon each Assignor and its successors and assigns (although no Assignor
may assign its rights and obligations hereunder except in accordance
with the provisions of the Secured Debt Agreements) and shall inure to
the benefit of the Collateral Agent and the other Secured Creditors
and their respective successors and assigns. All agreements,
statements, representations and warranties made by each Assignor
herein or in any certificate or other instrument delivered by such
Assignor or on its behalf under this Agreement shall be considered to
have been relied upon by the Secured Creditors and shall survive the
execution and delivery of this Agreement and the other Secured Debt
Agreements regardless of any investigation made by the Secured Creditors
or on their behalf.
9.5. Headings Descriptive. The headings of the several sections
of this Agreement are inserted for convenience only and shall not in any
way affect the meaning or construction of any provision of this Agreement.
9.6. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
24
GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT
OF LAWS EXCEPT FOR THE CHOICE OF LAW PROVISIONS OF THE NEW YORK UCC.
9.7. Assignor's Duties. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Assignor shall remain
liable to perform all of the obligations, if any, assumed by it with
respect to the Collateral and unless the Collateral Agent or any Secured
Creditor shall become the absolute owner of any Collateral pursuant
hereto, the Collateral Agent and the other Secured Creditors shall not
have any obligations or liabilities by reason of or arising out of this
Agreement with respect to any such Collateral, nor shall the Collateral
Agent or the other Secured Creditors be required or obligated in any
manner to perform or fulfill any of the obligations of each Assignor
under or with respect to any Collateral.
9.8. Termination; Release. (aa) After the Termination Date, this
Agreement shall terminate (provided that all indemnities set forth herein
including, without limitation, in Section 6.1 hereof shall survive such
termination) and the Collateral Agent, at the request and expense of the
respective Assignor, will promptly execute and deliver to such Assignor a
proper instrument or instruments (including Uniform Commercial Code
termination statements on form UCC-3) acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver
to such Assignor (without recourse and without any representation or
warranty) such of the Collateral as may be in the possession of the
Collateral Agent and as has not theretofore been sold or otherwise applied
or released pursuant to this Agreement. As used in this Agreement,
"Termination Date" shall mean the date upon which the Total Commitment
has been terminated, no Note is outstanding (and all Loans have been
repaid in full), and all Obligations then owing have been paid in full.
(bb) In the event that any part of the Collateral is sold in
connection with a sale permitted by Section 8.02 of the Credit Agreement
or otherwise released at the direction of the Required Secured Creditors
and the proceeds of such sale or sales or from such release are applied
in accordance with the provisions of the Credit Agreement, to the extent
required to be so applied, such Collateral will be sold free and clear
of the Liens created by this Agreement and the Collateral Agent, at the
request and expense of the relevant Assignor, will duly assign,
transfer and deliver to such Assignor (without recourse and without
any representation or warranty) such of the Collateral as is then being
(or has been) so sold or released and as may be in the possession of the
Collateral Agent and has not theretofore been released pursuant to this
Agreement.
(cc) At any time that an Assignor desires that the Collateral Agent
take any action to acknowledge or give effect to any release of Collateral
pursuant to the foregoing Section 9.8(a) or (b), it shall deliver to the
Collateral Agent a certificate signed by an Authorized Officer of such
Assignor stating that the release of the respective Collateral is permitted
pursuant to said Section 9.8(a) or (b). The Collateral Agent shall have no
liability whatsoever to any Secured Creditor as the result of any release
of Collateral by it as permitted by this Section 9.8.
9.9. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts,
25
each of which when so executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with each
Assignor and the Collateral Agent.
9.10. Additional Assignors. It is understood and agreed that any
Subsidiary of the Borrower that is required to execute a counterpart of
this Agreement pursuant to the Secured Debt Agreements shall automatically
become an Assignor hereunder by executing a counterpart hereof and
delivering the same to the Collateral Agent.
26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date
first above written.
Address: ELDERTRUST, as an Assignor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By:______________________________
Suite 101 Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ Square, Title: President and CEO
Pennsylvania 19348
Address: ELDERTRUST OPERATING LIMITED
PARTNERSHIP, as an Assignor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust, general partner
Suite 100
Kennett Square By:______________________________
Pennsylvania 19348 Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET GENPAR, L.L.C., as an Assignor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Partnership,
Suite ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-BERKSHIRE LIMITED
PARTNERSHIP, as an Assignor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET Berkshire, LLC, general
Suite ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, authorized agent
By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET BERKSHIRE, LLC, as an Assignor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Suite 100 Partnership, authorized agent
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-HERITAGE ▇▇▇▇▇, LLC, as an
Assignor
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: ElderTrust Operating Limited
Suite 202 Partnership, sole member
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
-2-
Address: ET SUB-LEHIGH LIMITED PARTNERSHIP,
as an Assignor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET LEHIGH, LLC, general partner
Suite 100
Kennett Square By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, authorized agent
By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET LEHIGH, LLC, as an Assignor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Suite 100 Partnership, authorized agent
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-PHILLIPSBURG I, LLC, as an
Assignor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Suite 100 Partnership, sole member
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
-3-
Address: ET SUB-▇▇▇▇▇▇▇▇▇▇▇ LIMITED PARTNERSHIP,
L.L.P., as an Assignor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET GENPAR, L.L.C., general partner
Suite ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, sole member
By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and CEO
Address: ET SUB-SANATOGA LIMITED PARTNERSHIP,
as an Assignor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET SANATOGA, LLC, general partner
Suite ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, authorized agent
By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SANATOGA, LLC, as an Assignor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Suite 100 Partnership, authorized agent
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
-4-
Address: ET SUB-WILLOWBROOK LIMITED PARTNERSHIP,
L.L.P., as an Assignor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET GENPAR, L.L.C., general partner
Suite ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, sole member
By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
-5-
[AMENDED AND RESTATED SECURITY AGREEMENT]
Address: WACHOVIA BANK, NATIONAL ASSOCIATION,
as Collateral Agent
Wachovia Securities By:______________________
Real Estate Debt Capital Markets Name:
301 South College, NC0172 Title:
Charlotte, North Carolina 28288
By:______________________
Name:
Title
-6-
SCHEDULE OF ORGANIZATIONAL IDENTITY OF ASSIGNORS
ELDERTRUST
1. Exact Legal Name: ElderTrust
2. Type of Organization: Real Estate Investment Trust
3. Jurisdiction of Organization: Maryland
4. Organizational ID #: ▇▇▇▇▇▇▇▇▇
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor
set forth on Annex B
ELDERTRUST OPERATING LIMITED PARTNERSHIP
1. Exact Legal Name: ElderTrust Operating Limited
Partnership
2. Type of Organization: Limited Partnership
3. Jurisdiction of Organization: Delaware
4. Organizational ID #: 2779401
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor
set forth on Annex B
[AMENDED AND RESTATED SECURITY AGREEMENT]
ET ▇▇▇▇▇▇, L.L.C.
1. Exact Legal Name: ET GENPAR, L.L.C.
2. Type of Organization: Limited Liability Company
3. Jurisdiction of Organization: Delaware
4. Organizational ID #: 2837222
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor
set forth on Annex B
-2-
[AMENDED AND RESTATED SECURITY AGREEMENT]
ET SUB-BERKSHIRE LIMITED PARTNERSHIP
1. Exact Legal Name: ET Sub-Berkshire Limited Partnership
2. Type of Organization: Limited Partnership
3. Jurisdiction of Organization: Delaware
4. Organizational ID #: 3348003
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor set
forth on Annex B
ET BERKSHIRE, L.L.C.
1. Exact Legal Name: ET Berkshire, L.L.C.
2. Type of Organization: Limited Liability Company
3. Jurisdiction of Organization: Delaware
4. Organizational ID #: 2981609
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor set
forth on Annex B
ET SUB-HERITAGE ▇▇▇▇▇, L.L.C
1. Exact Legal Name: ET Sub-Heritage ▇▇▇▇▇, L.L.C.
2. Type of Organization: Limited Liability Company
3. Jurisdiction of Organization: Delaware
4. Organizational ID #: 2837226
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor set
fourth on Annex B
-3-
[AMENDED AND RESTATED SECURITY AGREEMENT]
ET SUB-LEHIGH LIMITED PARTNERSHIP
1. Exact Legal Name: ET Sub-Lehigh Limited Partnership
2. Type of Organization: Limited Partnership
3. Jurisdiction of Organization: Delaware
4. Organizational ID #: 3348013
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor set
forth on Annex B
ET ▇▇▇▇▇▇, L.L.C.
1. Exact Legal Name: ET ▇▇▇▇▇▇, ▇.▇.▇.
2. Type of Organization: Limited Liability Company
3. Jurisdiction of Organization: Delaware
4. Organizational ID #: 2981611
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor set
forth on Annex B
-4-
[AMENDED AND RESTATED SECURITY AGREEMENT]
ET SUB-PHILLIPSBURG I, L.L.C.
1. Exact Legal Name: ET Sub-Phillipsburg I, L.L.C.
2. Type of Organization: Limited Liability Company
3. Jurisdiction of Organization: Delaware
4. Organizational ID #: 2837232
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor
set forth on Annex B
ET SUB-▇▇▇▇▇▇▇▇▇▇▇ LIMITED PARTNERSHIP, L.L.P.
1. Exact Legal Name: ET Sub-▇▇▇▇▇▇▇▇▇▇▇ Limited
Partnership, L.L.P.
2. Type of Organization: Limited Liability Partnership
3. Jurisdiction of Organization: Virginia
4. Organizational ID #: L014724-1
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor
set forth on Annex B
-5-
[AMENDED AND RESTATED SECURITY AGREEMENT]
ET SUB-SANATOGA LIMITED PARTNERSHIP
1. Exact Legal Name: ET Sub-Sanatoga Limited Partnership
2. Type of Organization: Limited Partnership
3. Jurisdiction of Organization: Delaware
4. Organizational ID #: 3348017
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor set
forth on Annex B
ET SANATOGA, L.L.C.
1. Exact Legal Name: ET ▇▇▇▇▇▇▇▇, L.L.C.
2. Type of Organization: Limited Liability Company
3. Jurisdiction of Organization: Delaware
4. Organizational ID #: 2981604
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor set
forth on Annex B
-6-
[AMENDED AND RESTATED SECURITY AGREEMENT]
ET SUB-WILLOWBROOK LIMITED PARTNERSHIP, L.L.P.
1. Exact Legal Name: ET Sub-Willowbrook Limited
Partnership, L.L.P.
2. Type of Organization: Limited Liability Partnership
3. Jurisdiction of Organization: Virginia
4. Organizational ID #: L014720-9
5. Tax ID #: ▇▇-▇▇▇▇▇▇▇
6. Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
7. Other Record Locations: See locations for such Assignor set
forth on Annex B
-7-
SCHEDULE OF INVENTORY AND EQUIPMENT LOCATIONS
Assignor Location
-------- --------
REIT and Borrower ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ 19348
ET Sub-Berkshire Limited
Partnership Berkshire Commons
Berks County, Pennsylvania
ET Sub-Heritage ▇▇▇▇▇, L.L.C. Heritage ▇▇▇▇▇
Hampden County, Massachusetts
ET Sub-Lehigh Limited Partnership Lehigh Commons
Lehigh County, Pennsylvania
ET Sub-Phillipsburg I, L.L.C.
Phillipsburg ▇▇▇▇▇▇ County, New Jersey
ET Sub-Rittenhouse Limited
Partnership Rittenhouse
City of Philadelphia, Pennsylvania
ET Sub-Sanatoga Limited
Partnership Sanatoga Court
▇▇▇▇▇▇▇▇▇▇ County, Pennsylvania
ET Sub-Willowbrook Limited
Partnership Willowbrook
Lackawanna County, Pennsylvania
FORM OF RESERVE ACCOUNT CONTROL AGREEMENT
SCHEDULE OF TRADE AND FICTITIOUS NAMES
Assignor Trade/Fictitious Name
-------- ---------------------
1. ElderTrust ElderTrust REIT Co.
SCHEDULE OF COMMERCIAL TORT CLAIMS
None
2
TABLE OF CONTENTS
ARTICLE I
SECURITY INTERESTS............................................2
1.1. Grant of Security Interests........................2
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS.............3
2.1. Necessary Filings..................................3
2.2. No Liens...........................................3
2.3. Other Financing Statements.........................3
2.4. Organizational Identity; Records...................4
2.5. Location of Inventory and Equipment................4
2.6. Reserve Account....................................5
2.7. Recourse...........................................5
2.8. Trade Names; Change of Name........................5
ARTICLE III
SPECIAL PROVISIONS CONCERNING RECEIVABLES;
CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER...................6
3.1. Additional Representations and Warranties..........6
3.2. Maintenance of Records.............................6
3.3. Direction to Account Debtors; Contracting
Parties; etc.......................................6
3.4. Modification of Terms; etc.........................7
3.5. Collection.........................................7
3.6. Delivery of Instruments............................7
3.7. Assignors Remain Liable Under Receivables..........7
3.8. Assignors Remain Liable Under Contracts............8
3.9. Further Actions....................................8
ARTICLE IV
PROVISIONS CONCERNING ALL COLLATERAL..........................8
4.1. Protection of Collateral Agent's Security..........8
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4.2. Further Actions....................................9
4.3. Financing Statements...............................9
ARTICLE V
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT.................10
5.1. Remedies; Obtaining the Collateral Upon Default...10
5.2. Remedies; Disposition of the Collateral...........11
5.3. Waiver of Claims..................................12
5.4. Application of Proceeds...........................12
5.5. Remedies Cumulative...............................14
5.6. Discontinuance of Proceedings.....................15
ARTICLE VI
INDEMNITY....................................................15
6.1. Indemnity..........................................15
6.2. Indemnity Obligations Secured by Collateral;
Survival...........................................16
ARTICLE VII
DEFINITIONS..................................................16
ARTICLE VIII
THE COLLATERAL AGENT.........................................21
8.1. Appointment........................................21
8.2. Nature of Duties...................................22
8.3. Lack of Reliance on the Collateral Agent...........22
8.4. Certain Rights of the Collateral Agent.............22
8.5. Reliance...........................................23
8.6. Indemnification....................................23
8.7. The Collateral Agent in its Individual Capacity....23
8.8. Holders............................................24
8.9. Resignation by the Collateral Agent................24
8.10. Fees and Expenses of Collateral Agent..............24
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ARTICLE IX
MISCELLANEOUS................................................25
9.1. Notices............................................25
9.2. Waiver; Amendment..................................25
9.3. Obligations Absolute...............................25
9.4. Successors and Assigns.............................26
9.5. Headings Descriptive...............................26
9.6. Governing Law......................................26
9.7. Assignor's Duties..................................26
9.8. Termination; Release...............................26
9.9. Counterparts.......................................27
9.10. Additional Assignors...............................27
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ANNEX A Schedule of Organizational Identity of Assignors
ANNEX B Schedule of Inventory and Equipment Locations
ANNEX C Form of Reserve Account Control Agreement
ANNEX D Schedule of Trade and Fictitious Names
ANNEX E Schedule of Commercial Tort Claims
EXHIBIT H
AMENDED AND RESTATED SUBSIDIARIES GUARANTY
AMENDED AND RESTATED GUARANTY, dated as of August 30, 2002 (as
amended, modified or supplemented from time to time, this "Guaranty"),
made by each of the undersigned guarantors (each, a "Guarantor" and,
together with any other entity that becomes a party hereto pursuant to
Section 23 hereof, the "Guarantors"). Except as otherwise defined
herein, capitalized terms used herein and defined in the Credit
Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, ElderTrust, a Maryland real estate investment trust (the
"REIT"), ElderTrust Operating Limited Partnership, a Delaware limited
partnership (the "Borrower"), various banks, Deutsche Bank AG, New York
Branch, as issuing bank, and German American Capital Corporation, as
administrative agent, entered into a Credit Agreement dated as of
January 30, 1998, as amended by First Amendment to Credit Agreement
dated as of January 29, 1999, Second Amendment to Credit Agreement
dated as of March 31, 1999, Third Amendment to Credit Agreement dated
as of January 3, 2000, and Fourth Amendment to Credit Agreement
dated as of January 31, 2001 (as so amended, the "Existing Credit
Agreement"), pursuant to which the banks party thereto (the "Existing
Banks") agreed to make certain loans to the Borrower and issue certain
letters of credit for the account of the Borrower upon the terms and
conditions set forth therein;
WHEREAS, the obligations of the Borrower and the REIT under the
Existing Credit Agreement are guaranteed in part by a Guaranty dated
as of January 30, 1998 (the "Existing Subsidiaries Guaranty") by the
guarantors party thereto (the "Existing Guarantors").
WHEREAS, the Existing Banks have assigned their rights and
interests under the Existing Credit Agreement and related documents to
the Banks (as hereinafter defined) pursuant to a General Assignment and
Assumption dated as of the date hereof;
WHEREAS, the REIT, the Borrower, the Banks, and Wachovia Bank,
National Association, as administrative agent (the "Administrative
Agent"), have agreed to amend and restate the Existing Credit Agreement
pursuant to an Amended and Restated Credit Agreement dated as of the
date hereof (as amended, modified or supplemented from time to time,
the "Credit Agreement");
WHEREAS, pursuant to the Credit Agreement, the undersigned
guarantors, each of which is a direct or indirect Subsidiary of the
Borrower, have become parties to the Existing Subsidiaries Guaranty in
place of the original guarantors party thereto;
WHEREAS, the Banks and the Administrative Agent (collectively, the
"Creditors") and the Guarantors have agreed to amend and restate the
Existing Subsidiaries Guaranty in a manner consistent with the amendment
and restatement of the Existing Credit Agreement;
WHEREAS, each Guarantor will obtain benefits from the incurrence of
Loans by the Borrower under the Credit Agreement referred to above and,
accordingly, desires to execute this Guaranty in order to satisfy the
conditions described in the preceding paragraph; NOW, THEREFORE, IT IS
AGREED that the Existing Subsidiaries Guaranty is hereby amended and
restated in its entirety to read as follows:
1. Each Guarantor, jointly and severally, absolutely, irrevocably
and unconditionally guarantees to the Creditors the full and prompt
payment when due (whether at the stated maturity, by acceleration or
otherwise) of (x) the principal of and interest on the Notes issued by,
and the Loans made to, the Borrower under the Credit Agreement and (y)
all other obligations (including obligations which, but for the automatic
stay under Section 362(a) of the Bankruptcy Code, would become due) and
liabilities owing by the Borrower to the Creditors under the Credit
Agreement and each other Credit Document (including, without limitation,
indemnities, Fees and interest thereon), whether now existing or hereafter
incurred under, arising out of or in connection with the Credit Agreement
and each such other Credit Document and the due performance and compliance
by the Borrower with all of the terms, conditions and agreements contained
in the Credit Documents (all such principal, interest, liabilities and
obligations being herein collectively called the "Guaranteed Obligations"),
provided that the maximum amount payable by each Guarantor hereunder shall
at no time exceed the Maximum Amount (as hereinafter defined) of such
Guarantor. As used herein, "Maximum Amount" of any Guarantor means an
amount equal to 95% of the amount by which (A) the present fair saleable
value of such Guarantor's assets exceeds (B) the total liabilities of such
Guarantor (including the maximum amount reasonably expected to come due in
respect of contingent liabilities, other than contingent liabilities of
such Guarantor hereunder), in each case determined on the Effective
Date (or such other date on which such Guarantor first becomes a party
hereto) or on the day any demand is made under this Guaranty, whichever
date results in a higher Maximum Amount. Subject to the proviso in the
second preceding sentence, each Guarantor understands, agrees and
confirms that the Creditors may enforce this Guaranty up to the full
amount of the Guaranteed Obligations against each Guarantor without
proceeding against any other Guarantor, against the Borrower, against
any security for the Guaranteed Obligations, or under any other
guaranty covering all or a portion of the Guaranteed Obligations.
The Guaranteed Obligations may exceed any Guarantor's Maximum Amount
without affecting the liability of such Guarantor hereunder.
2. Additionally, each Guarantor, jointly and severally, absolutely,
unconditionally and irrevocably, guarantees the payment of any and all
Guaranteed Obligations to the Creditors whether or not due or payable by
the Borrower upon the occurrence in respect of the Borrower of any of the
events specified in Section 9.05 of the Credit Agreement, and absolutely,
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unconditionally and irrevocably, jointly and severally, promises to pay
such Guaranteed Obligations to the Creditors, or order, on demand, in
lawful money of the United States. This Guaranty shall constitute a
guaranty of payment, and not of collection.
3. The liability of each Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the indebtedness
of the Borrower, whether executed by such Guarantor, any other Guarantor,
any other guarantor or any other party, and the liability of each
Guarantor hereunder shall not be affected or impaired by any circumstance
or occurrence whatsoever, including, without limitation: (a) any
direction as to application of payment by the Borrower or by any other
party, (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the
indebtedness of the Borrower, (c) any payment on or in reduction of
any such other guaranty or undertaking except to the extent that any
such payment or reduction results in the actual permanent reduction
of the Guaranteed Obligations, (d) any dissolution, termination or
increase, decrease or change in personnel by the Borrower, (e) any
payment made to any Creditor on the indebtedness which any Creditor
repays the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, ▇▇▇▇-torium or other debtor relief
proceeding, and each Guarantor waives any right to the deferral or
modification of its obligations hereunder by reason of any such
proceeding, (f) any action or inaction by the Creditors as contemplated
in Section 6 hereof, or (g) any invalidity, irregularity or
unenforceability of all or part of the Guaranteed Obligations or of any
security therefor.
4. The obligations of each Guarantor hereunder are independent
of the obligations of any other Guarantor, any other guarantor or the
Borrower, and a separate action or actions may be brought and prosecuted
against each Guarantor whether or not action is brought against any other
Guarantor, any other guarantor or the Borrower and whether or not any
other Guarantor, any other guarantor or the Borrower be joined in any
such action or actions. Each Guarantor waives, to the fullest extent
permitted by law, the benefit of any statute of limitations affecting
its liability hereunder or the enforcement thereof. Any payment by
the Borrower or other circumstance which operates to toll any statute
of limitations as to the Borrower shall operate to toll the statute of
limitations as to each Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this
Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice
of dishonor or nonpayment of any such liabilities, suit or taking of
other action by the Administrative Agent or any other Creditor against,
and any other notice to, any party liable thereon (including such
Guarantor, any other guarantor or the Borrower).
6. Any Creditor may at any time and from time to time without the
consent of, or notice to, any Guarantor, without incurring responsibility
to such Guarantor, and without impairing or releasing the obligations of
such Guarantor hereunder, upon or without any terms or conditions and in
whole or in part:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew or alter, any of the
Guaranteed Obligations (including any increase or decrease in the
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rate of interest thereon), any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the guaranty
herein made shall apply to the Guaranteed Obligations as so changed,
extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, impair, realize
upon or otherwise deal with in any manner and in any order any
property by whomsoever at any time pledged or mortgaged to secure,
or howsoever securing, the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly
in respect thereof or hereof, and/or any offset there against;
(c) exercise or refrain from exercising any rights against
the Borrower, any other Credit Party or otherwise act or refrain
from acting;
(d) release or substitute any one or more endorsers,
Guarantors, other guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof
to the payment of any liability (whether due or not) of the Borrower
to creditors of the Borrower other than the Creditors provided that
the Creditors will not, without the prior written consent of the
respective Guarantor, contractually subordinate the payment of all
or any part of the Guaranteed Obligations to any other creditor or
creditors of the Borrower, provided further that if any consent
required by the immediately preceding proviso is not obtained and
contractual subordination as described therein is agreed to, then
(x) any part of the Guaranteed Obligations not so subordinated will
continue to be entitled to the full benefits of this Guaranty and
(y) with respect to any part of the Guaranteed Obligations so
contractually subordinated, such Guarantor will be relieved of
its obligations hereunder only to the extent it establishes that
it has been actually damaged by such contractual subordination;
(f) apply any sums by whomsoever paid or howsoever realized
to any liability or liabilities of the Borrower to the Creditors
regardless of what liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission
or default under the Credit Documents or any of the instruments or
agreements referred to therein, or otherwise amend, modify or
supplement the Credit Documents or any of such other instruments
or agreements;
(h) act or fail to act in any manner referred to in this
Guaranty which may deprive such Guarantor of its right to
subrogation against the Borrower to recover full indemnity
for any payments made pursuant to this Guaranty; and/or
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(i) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or
equitable discharge of such Guarantor from it liabilities under
this Guaranty.
7. No invalidity, irregularity or unenforceability of all or any
part of the Guaranteed Obligations or of any security therefor shall
affect, impair or be a defense to this Guaranty, and this Guaranty shall
be primary, absolute, irrevocable and unconditional notwithstanding the
occurrence of any event or the existence of any other circumstances which
might constitute a legal or equitable discharge of a surety or guarantor
except payment in full of the Guaranteed Obligations.
8. This Guaranty is a continuing one and all liabilities to which
it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or delay
on the part of any Creditor in exercising any right, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein expressly
specified are cumulative and not exclusive of any rights or remedies
which any Creditor would otherwise have. No notice to or demand on
any Guarantor in any case shall entitle such Guarantor to any other or
further notice or demand in similar or other circumstances or constitute
a waiver of the rights of any Creditor to any other or further action in
any circumstances without notice or demand. It is not necessary for any
Creditor to inquire into the capacity or powers of the Borrower or the
officers, directors, partners or agents acting or purporting to act on
its behalf, and any indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
9. Any indebtedness of the Borrower now or hereafter held by any
Guarantor is hereby subordinated to the indebtedness of the Borrower to
the Creditors; and such indebtedness of the Borrower to any Guarantor,
if the Administrative Agent, after an Event of Default has occurred, so
requests at a time when any Guaranteed Obligations are outstanding, shall
be collected, enforced and received by such Guarantor as trustee for the
Creditors and be paid over to the Creditors on account of the indebtedness
of the Borrower to the Creditors, but without affecting or impairing in
any manner the liability of such Guarantor under the other provisions of
this Guaranty. Prior to the transfer by any Guarantor of any note or
negotiable instrument evidencing any indebtedness of the Borrower to
such Guarantor, such Guarantor shall mark such note or negotiable
instrument with a legend that the same is subject to this subordination.
Without limiting the generality of the foregoing, each Guarantor hereby
agrees with the Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of
this Guaranty (whether contractual, under Section 509 of the Bankruptcy
Code, or otherwise) until all Guaranteed Obligations have been paid in
full in cash (it being understood that each Guarantor is not waiving
any right of subrogation that it may otherwise have but is only waiving
the exercise thereof as provided above).
10. (i) Each Guarantor waives any right (except as shall be
required by applicable statute and cannot be waived) to require the
Creditors to: (i) proceed against the Borrower, any other Guarantor,
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any other guarantor of the Guaranteed Obligations or any other party;
(ii) proceed against or exhaust any security held from the Borrower,
any other Guarantor, any other guarantor of the Guaranteed Obligations
or any other party; or (iii) pursue any other remedy in the Creditors'
power whatsoever. Each Guarantor waives any defense based on or
arising out of any defense of the Borrower, such Guarantor, any other
Guarantor, any other guarantor of the Guaranteed Obligations or any
other party other than payment in full of the Guaranteed Obligations,
including, without limitation, any defense based on or arising out of
the disability of the Borrower, such Guarantor, any other Guarantor,
any other guarantor of the Guaranteed Obligations or any other party,
or the unenforceability of the Guaranteed Obligations or any part
thereof from any cause, or the cessation from any cause of the
liability of the Bor-rower other than payment in full of the
Guaranteed Obligations. The Creditors may, at their election,
foreclose on any security held by the Administrative Agent, the
Collateral Agent or the other Creditors by one or more judicial or
nonjudicial sales or exercise any other right or remedy the Creditors
may have against the Borrower or any other party, or any security,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Guaranteed Obligations have been paid
in full. Each Guarantor waives any defense arising out of any such
election by the Creditors, even though such election operates to impair
or extinguish any right of reimbursement or subrogation or other right
or remedy of such Guarantor against the Borrower or any other party or
any security.
(j) Each Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation,
notices of nonperformance, notices of protest, notices of dishonor,
notices of acceptance of this Guaranty, and notices of the existence,
creation or incurring of new or additional indebtedness. Each Guarantor
assumes all responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks which such Guarantor assumes and
incurs hereunder, and agrees that the Creditors shall have no duty to
advise any Guarantor of information known to them regarding such
circumstances or risks. Each Guarantor warrants and agrees that each
of the waivers set forth above is made with full knowledge of its
significance and consequences and that if any of such waivers are
determined to be contrary to any applicable law or public policy,
such waivers shall be effective only to the maximum extent permitted
by law.
11. In order to induce the Creditors to enter into the Credit
Agreement and to make the Loans pursuant to the Credit Agreement, each
Guarantor represents, warrants and covenants that:
(k) Status. Such Guarantor (i) is a duly organized and validly
existing corporation, partnership or limited liability company, as the
case may be, in good standing (if applicable) under the laws of the
jurisdiction of its organization, (ii) has the corporate, partnership
or limited liability company power and authority, as the case may
be, to own or lease its property and assets and to transact the business
in which it is engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction where the conduct of its business requires such qualification,
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except for failures to be so qualified which, individually or in the
aggregate, could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of such Guarantor.
(l) Power and Authority. Such Guarantor has the corporate,
partnership or limited liability company power and authority, as the
case may be, to execute, deliver and perform the terms and provisions
of this Guaranty and each other Credit Document to which it is a party
and has taken all necessary corporate or partnership action to authorize
the execution, delivery and performance by it of each such Credit
Document. Such Guarantor has duly executed and delivered this Guaranty
and each other Credit Document to which it is a party and each such Credit
Document constitutes the legal, valid and binding obligation of such
Guarantor enforceable in accordance with its terms, except to the extent
that the enforceability hereof and thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws affecting creditors' rights generally and by
equitable principles (regardless of whether enforcement is sought in
equity or at law).
(m) No Violation. Neither the execution, delivery or performance by
such Guarantor of this Guaranty or any other Credit Document to which it
is a party, nor compliance by it with the terms and provisions hereof and
thereof (i) will contravene any applicable provision of any law, statute,
rule or regulation, or any order, writ, injunction or decree of any court
or governmental instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of, any of the terms, covenants, conditions
or provisions of, or constitute a default under, or result in the creation
or imposition of (or the obligation to create or impose) any Lien (except
pursuant to the Security Documents) upon any of the property or assets of
such Guarantor or any of its Subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust, credit agreement or loan agreement
or any other material agreement, contract or instrument to which such
Guarantor or any of its Subsidiaries is a party or by which it or any
of its property or assets is bound or to which it may be subject or (iii)
will violate any provision of the certificate of incorporation,
certificate of partnership, partnership agreement, limited liability
company agreement or by-laws of such Guarantor or any of its Subsidiaries.
(n) Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration
with (except as have been obtained or made or contemplated by the Credit
Agreement), or exemption by, any governmental or public body or authority,
or any subdivision thereof, is required to authorize, or is required in
connection with, (i) the execution, delivery and performance of this
Guaranty or any other Credit Document to which such Guarantor is a party
or (ii) the legality, validity, binding effect or enforceability of this
Guaranty or any other Credit Document to which such Guarantor is a party.
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(o) Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of such Guarantor, threatened (i) with respect
to this Guaranty or (ii) that could reasonably be expected to materially
and adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of such
Guarantor.
12. Each Guarantor covenants and agrees that on and after the
Effective Date and until the Total Commitment has terminated and when
no Note remains outstanding and all Guaranteed Obligations have been
paid in full, such Guarantor shall take, or will refrain from taking,
as the case may be, all actions that are necessary to be taken or not
taken so that no violation of any provision, covenant or agreement
contained in Article VII or VIII of the Credit Agreement, and so that
no Default or Event of Default, is caused by the actions of such Guar-
antor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to pay all
out-of-pocket costs and expenses of each Creditor in connection with the
enforcement of this Guaranty (including reasonable legal fees and expenses)
and the out-of-pocket costs and expenses of the Administrative Agent in
connection with any amendment, waiver or consent relating hereto
(including reasonable legal fees and expenses).
14. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of each
Guarantor directly affected thereby and with the written consent of the
Required Secured Creditors (as defined in the Security Agreement), it
being understood that the addition or release of any Guarantor hereunder
shall not constitute a change, waiver, discharge or termination affecting
any Guarantor other than the Guarantor so added or released.
15. Each Guarantor acknowledges that an executed (or conformed) copy
of each of the Credit Documents has been made available to such Guarantor
and such Guarantor is familiar with the contents thereof.
16. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New
York Debtor and Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of
Default, each Creditor is hereby authorized at any time or from time to
time, without notice to any Guarantor or to any other Person, any such
notice being expressly waived, to set off and to appropriate and apply
any and all deposits (general or special) and any other indebtedness
at any time held or owing by such Creditor to or for the credit or the
account of such Guarantor, against and on account of the obligations and
liabilities of such Guarantor to such Creditor under this Guaranty,
irrespective of whether or not such Creditor shall have made any demand
hereunder and although said obligations, liabilities, deposits or claims,
or any of them, shall be contingent or unmatured.
17. All notices, requests, demands or other communications pursuant
hereto shall be deemed to have been duly given or made when delivered to
the Person to which such notice, request, demand or other communication
is required or permitted to be given or made under this Guaranty,
addressed to such party at (i) in the case of any Creditor, as provided
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in the Credit Agreement and (ii) in the case of any Guarantor, at its
address set forth opposite its signature below; or in any case at such
other address as any of the Persons listed above may hereafter notify
the others in writing.
18. If claim is ever made upon any Creditor for repayment or
recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the aforesaid payees
repays all or part of said amount by reason of (i) any judgment, decree
or order of any court or administrative body having jurisdiction over
such payee or any of its property or (ii) any settlement or compromise
of any such claim effected by such payee with any such claimant
(including the Borrower), then and in such event each Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall
be binding upon such Guarantor, notwithstanding any revocation hereof
or other instrument evidencing any liability of the Borrower, and such
Guarantor shall be and remain liable to the aforesaid payees hereunder
for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by any such payee.
19. (A) This Agreement shall be binding upon the successors and
assigns of each Guarantor (although no Guarantor may assign its rights
and obligations hereunder except in accordance with the provisions of
the Secured Debt Agreements) and shall inure to the benefit of and be
enforceable by the Administrative Agent and the other Secured
Creditors and their respective successors and assigns. THIS GUARANTY
AND THE RIGHTS AND OBLIGATIONS OF THE CREDITORS AND OF THE UNDERSIGNED
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK. Any legal action or proceeding with
respect to this Guaranty or any other Credit Document to which any
Guarantor is a party may be brought in the courts of the State of New
York or of the United States of America for the Southern District of
New York, and, by execution and delivery of this Guaranty, each Guarantor
hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts.
Each Guarantor hereby further irrevocably waives any claim that any such
courts lack jurisdiction over such Guarantor, and agrees not to plead or
claim in any legal action or proceeding with respect to this Guaranty or
any other Credit Document to which such Guarantor is a party brought in
any of the aforesaid courts that any such court lacks jurisdiction over
such Guarantor. Each Guarantor further irrevocably consents to the
service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to each Guarantor at its address set
forth opposite its signature below, such service to become effective
30 days after such mailing. Each Guarantor hereby irrevocably waives
any objection to such service of process and further irrevocably waives
and agrees not to plead or claim in any action or proceeding commenced
hereunder or under any other Credit Document to which such Guarantor is
a party that service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any of the Creditors to serve
process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against each Guarantor in any other
jurisdiction.
9
(B) Each Guarantor hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Guaranty or any other Credit Document to which such Guarantor is
a party brought in the courts referred to in clause (a) above and
hereby further irrevocably waives and agrees not to plead or claim
in any such court that such action or proceeding brought in any
such court has been brought in an inconvenient forum.
(C) EACH GUARANTOR AND EACH CREDITOR (BY ITS ACCEPTANCE OF THE
BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO
A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO
WHICH SUCH GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
20. (Intentionally Omitted)
21. This Guaranty may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A set
of counterparts executed by all the parties hereto shall be lodged
with the Guarantors and the Administrative Agent.
22. All payments made by any Guarantor hereunder will be made
without setoff, counterclaim or other defense.
23. It is understood and agreed that any Subsidiary of the Borrower
that is required to execute a counterpart of this Guaranty pursuant to
the Credit Agreement shall automatically become a Guarantor hereunder
by executing a counterpart hereof and delivering the same to the
Administrative Agent.
10
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
Address: ET GENPAR, L.L.C., as Guarantor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Partnership,
Suite 100 sole member
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-BERKSHIRE LIMITED
PARTNERSHIP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET Berkshire, LLC, general partner
Suite ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, authorized agent
By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET BERKSHIRE, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Suite 100 Partnership, authorized agent
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-HERITAGE ▇▇▇▇▇, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Suite 100 Partnership, sole member
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-LEHIGH LIMITED PARTNERSHIP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET LEHIGH, LLC, general partner
Suite 100
Kennett Square By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, authorized agent
By: ElderTrust, general partner
By:______________________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET LEHIGH, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Suite 100 Partnership, authorized agent
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:_____________________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
2
Address: ET SUB-PHILLIPSBURG I, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Suite 100 Partnership, sole member
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:____________________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-▇▇▇▇▇▇▇▇▇▇▇ LIMITED
PARTNERSHIP, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET GENPAR, L.L.C., general partner
Suite 100
Kennett Square By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, sole member
By: ElderTrust, general partner
By:_______________________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-SANATOGA LIMITED PARTNERSHIP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET SANATOGA, LLC, general partner
Suite ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, authorized agent
By: ElderTrust, general partner
By:_________________________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
3
Address: ET SANATOGA, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ElderTrust Operating Limited
Suite 100 Partnership, authorized agent
Kennett Square
Pennsylvania 19348 By: ElderTrust, general partner
By:_________________________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
Address: ET SUB-WILLOWBROOK LIMITED
PARTNERSHIP, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ET GENPAR, L.L.C., general partner
Suite 100
Kennett Square By: ElderTrust Operating Limited
Pennsylvania 19348 Partnership, sole member
By: ElderTrust, general partner
By:________________________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
4
Accepted and Agreed to:
WACHOVIA BANK, NATIONAL
ASSOCIATION, Individually and as
Administrative Agent
By___________________
Name:
Title:
5
EXHIBIT I-1
This document is intended
to be recorded in _______
County, ______________
FIRST AMENDMENT TO MORTGAGE, ASSIGNMENT OF
LEASES AND RENTS, SECURITY
AGREEMENT AND
FIXTURE FILING STATEMENT,
made by
[_______________________________________],
as Mortgagor,
to
WACHOVIA BANK, NATIONAL ASSOCIATION, as Collateral Agent,
as Mortgagee.
LOCATION OF PREMISES:
[ADD PROPERTY ADDRESS]
_______________________________________________________________________
THIS DOCUMENT PREPARED BY AND
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
MCGUIREWOODS LLP
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, Esq.
FIRST AMENDMENT TO MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING STATEMENT
THIS FIRST AMENDMENT TO MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING STATEMENT (this "Amendment"), made
as of the [____] day of [____], 2002 (as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to time,
this "Mortgage"), by [_________________________], a [limited partnership
organized under the laws of Delaware] ("Mortgagor"), having its principal
place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., to WACHOVIA BANK,
NATIONAL ASSOCIATION, in its capacity as Collateral Agent for the
benefit of the Secured Creditors (defined below) (together with its
successors and assigns, "Mortgagee") having its principal place of
business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇ ▇. ▇▇▇▇.
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇▇▇▇ is the owner of the fee simple interest in the
real property described on Exhibit A annexed hereto and made a part
hereof;
WHEREAS, ElderTrust, a Maryland real estate investment trust (the
"REIT"), ElderTrust Operating Limited Partnership, a Delaware limited
partnership (the "Borrower"), various banks, Deutsche Bank AG, New York
Branch, as issuing bank, and German American Capital Corporation, as
administrative agent, entered into a Credit Agreement dated as of
January 30, 1998, as amended by First Amendment to Credit Agreement
dated as of January 29, 1999, Second Amendment to Credit Agreement
dated as of March 31, 1999, Third Amendment to Credit Agreement dated
as of January 3, 2000, and Fourth Amendment to Credit Agreement dated
as of January 31, 2001 (as so amended, the "Existing Credit Agreement"),
pursuant to which the banks party thereto (the "Existing Banks")
agreed to make certain loans to the Borrower and issue certain letters
of credit for the account of the Borrower upon the terms and conditions
set forth therein;
WHEREAS, the obligations of the Borrower and the REIT under the
Existing Credit Agreement are secured in part by a Mortgage, Assignment
of Leases and Rents, Security Agreement and Fixture Filing Statement
dated as of January 30, 1998 (the "Existing Mortgage") between Mortgagor
and German American Capital Corporation, as collateral agent (the
"Existing Collateral Agent"), recorded in _______________.
WHEREAS, the Existing Banks have assigned their rights and interests
under the Existing Credit Agreement and related documents to the Banks
(as defined in the Amended and Restated Credit Agreement referenced below)
pursuant to an [Assignment of Loan Documents] dated as of the date hereof,
and the Existing Collateral Agent has assigned its interest under the
Existing Mortgage to the Mortgagee pursuant to an [Assignment of Mortgage]
dated as of the date hereof, recorded in the aforesaid land records
contemporaneously herewith;
WHEREAS, the REIT, the Borrower, the Banks, and Wachovia Bank, National
Association, as administrative agent (the "Administrative Agent"), have
agreed to amend and restate the Existing Credit Agreement pursuant to an
Amended and Restated Credit Agreement dated as of the date hereof (as
amended, modified or supplemented from time to time, the "Credit
Agreement");
WHEREAS, the Mortgagor and the Mortgagee have agreed to amend the
Existing Mortgage in a manner consistent with the amendment and
restatement of the Existing Credit Agreement;
NOW, THEREFORE, IT IS AGREED as follows:
1. Amendments. The Existing Mortgage is hereby amended as follows:
(a) The term "Credit Agreement" as used in the Mortgage, as
amended hereby, shall mean the Credit Agreement as defined in the
recitals to this Amendment.
(b) The term "Bank Creditors" or "Secured Creditors" as used in
the Mortgage shall mean the Banks and the Administrative Agent as defined
in the recitals to this Amendment and the Mortgagee as defined in the
first paragraph of this Amendment.
(c) Any references in the Existing Mortgage to " Interest Rate
Protection Agreements," "Other Hedging Agreements," "Letters of Credit,"
"Unpaid Drawings" and "Other Creditors" shall be of no further force or
effect.
(d) The term "Obligations" as used in the Existing Mortgage is
hereby amended to mean:
(A) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of the Loans in the
maximum principal amount of Seven Million Five Hundred Thousand
Dollars ($7,500,000), lawful money of the United States of America,
to be paid with interest in accordance with the Credit Agreement and
all obligations and liabilities (including, without limitation, the
principal of and interest on the notes issued, and loans made, under
the Credit Agreement, and all indemnities, fees and interest thereon
or owed thereunder), (B) performance of all of Mortgagor's other
obligations under the Credit Documents, (C) any and all sums advanced
by the Mortgagee in order to preserve or protect the Mortgaged Property
or preserve or protect its security title and interest in the Mortgaged
Property, (D) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of the
Mortgagor referred to in clauses (A), (B) and (C) above after an Event
of Default shall have occurred and be continuing, the reasonable expenses
of re-taking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Mortgaged Property, or of any exercise
by the Mortgagee of its rights hereunder, together with reasonable
attorneys' fees and court costs, and (E) all amounts as to which any
indemnitee has the right to reimbursement under paragraph 33 of the
Existing Mortgage, as amended hereby.
(e) All capitalized terms used in Paragraph 1(d) above which are
defined in the Credit Agreement, and all other capitalized terms used
in the Existing Mortgage that were defined by reference to the Existing
Credit Agreement, shall have the meaning set forth in the Credit
Agreement.
(f) The Organizational Identity (as defined in the Amended and
Restated Security Agreement dated as of the date hereof and executed in
connection with the Credit Agreement (the "Security Agreement")) and
exact legal name of the Mortgagor are set forth in the Security
Agreement, and the Mortgagor shall not change its Organizational
Identity or legal name except in accordance with the terms of the
Security Agreement.
2. Except as expressly amended herein, all of the terms and
conditions of the Existing Mortgage shall remain unchanged and in
full force and effect.
3. The Mortgagor hereby reaffirms its covenant and agreement to
perform, comply with, and be bound by each and every one of the terms
and provisions of the Existing Mortgage, as amended by this Amendment.
4. The parties to this Amendment do not intend that this Amendment
be construed as a novation of the Existing Mortgage.
5. Each term and provision of this Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
heirs, successors, personal representatives and assigns.
6. In the case any one or more of the provisions contained in this
Amendment shall be invalid, illegal or unenforceable, the validity and
enforceability of the remaining provisions contained herein shall not in
any way be affected or impaired thereby.
IN WITNESS WHEREOF, this Amendment has been duly executed by
▇▇▇▇▇▇▇▇▇ and the Mortgagee as of the day and year first written above.
WITNESSES MORTGAGOR
[___________________________], [a Delaware
limited partnership]
As to Mortgagor, signed, By: __________________________, its
sealed and delivered in general partner
the presence of
____________________
Unofficial Witness By: __________________________
Name:
Title:
____________________
Unofficial Witness
STATE OF ______________)
) ss
COUNTY OF _____________)
This instrument was acknowledged before me this ____ day of _______,
2002, by _________________, as _____________ of _____________________,
a ___________, as general partner of [_____________________], [a Delaware
limited partnership], on behalf of the partnership, who is personally known
to me or who has produced __________________________ as identification and
who did (did not) take an oath.
____________________________
Name:
Notarial Seal) Notary Public
State of ___________________
My Commission Expires:
____________________________
Notary Public
WITNESSES MORTGAGEE
WACHOVIA BANK, NATIONAL
ASSOCIATION, as collateral agent
As to Collateral Agent, signed, By: __________________________
sealed and delivered in Name:
the presence of Title:
____________________
Unofficial Witness
____________________
Unofficial Witness
STATE OF ______________)
) ss
COUNTY OF _____________)
This instrument was acknowledged before me this ____ day of _______,
2002, by _________________, as _____________ of WACHOVIA BANK, NATIONAL
ASSOCIATION, on behalf of the bank, who is personally known to me or who
has produced __________________________ as identification and who did
(did not) take an oath.
___________________________
Name:
(Notarial Seal) Notary Public
State of __________________
My Commission Expires:
___________________________
Notary Public
EXHIBIT A
The Premises
EXHIBIT I-2
This document is intended
to be recorded in ▇▇▇▇▇▇
County, New Jersey
MORTGAGE, ASSIGNMENT OF
LEASES AND RENTS, SECURITY
AGREEMENT AND
FIXTURE FILING STATEMENT,
made by
ET SUB-PHILLIPSBURG I, L.L.C.,
as Mortgagor,
to
WACHOVIA BANK, NATIONAL ASSOCIATION, as Collateral Agent,
as Mortgagee.
LOCATION OF PREMISES:
PHILLIPSBURG
▇▇▇▇▇▇ COUNTY, NEW JERSEY
______________________________________________________________________________
THIS DOCUMENT PREPARED BY AND
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
McGuireWoods LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TABLE OF CONTENTS
Page
1. Definitions and Principles of Construction.................4
2. Payment and Performance of Obligations.....................5
3. Warranty of Title..........................................5
4. Insurance..................................................5
5. Payment of Impositions, etc................................6
6. Recourse...................................................6
7. Casualty, Taking and Application of Proceeds...............6
8. Assignment of Leases and Rents.............................6
9. Maintenance of Mortgaged Property..........................7
10. Operation of the Mortgaged Property........................7
11. Transfer or Encumbrance of the Mortgaged Property..........7
12. Changes in Laws Regarding Taxation.........................8
13. No Credits on Account of the Obligations...................8
14. Documentary Stamps.........................................8
15. Usury Laws.................................................8
16. Books and Records..........................................8
17. Performance of Other Agreements............................9
18. Further Acts...............................................9
i
19. Recording of Mortgage......................................9
20. Prepayment.................................................9
21. Events of Default.........................................10
22. Overdue Principal and Interest............................10
23. Right to Cure Defaults....................................10
24. Prepayment After Event of Default.........................10
25. Right of Entry............................................10
26. Remedies..................................................10
27. Security Agreement and Fixture Filing.....................13
28. Actions and Proceedings...................................14
29. Waiver of Counterclaim....................................14
30. Recovery of Sums Required To Be Paid......................14
31. ▇▇▇▇▇▇▇▇▇▇▇ and Other Matters.............................14
32. Handicapped Access........................................14
33. Indemnification...........................................15
34. Notices...................................................15
35. Authority.................................................15
36. WAIVER OF NOTICE..........................................16
37. Sole Discretion of Mortgagee..............................16
38. Non-Waiver................................................16
ii
39. No Oral Change............................................16
40. Headings, etc.............................................17
41. Duplicate Originals.......................................17
42. Successors and Assigns....................................17
43. Assignments...............................................17
44. Governing Law; Severability...............................17
45. Priority of this Mortgage.................................17
46. Conflicts With Credit Agreement...........................17
47. Future Advances...........................................17
iii
MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING STATEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT
AND FIXTURE FILING STATEMENT, made as of the 30th day of August, 2002
(as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time, this "Mortgage"), by ET SUB-
PHILLIPSBURG I, L.L.C., limited liability company organized under the
laws of Delaware ("Mortgagor"), having its principal place of business
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., to WACHOVIA BANK, NATIONAL
ASSOCIATION, in its capacity as Collateral Agent for the benefit of the
Secured Creditors (defined below) (together with its successors and
assigns, "Mortgagee") having its principal place of business ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Charlotte, North Carolina 28288, Attention: ▇▇▇ ▇.
▇▇▇▇. All capitalized terms used herein shall have the respective
meanings set forth in Section 1 hereof.
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇▇▇▇ is the owner of the fee simple interest and/or
a valid leasehold interest in the real property described on Exhibit A
annexed hereto and made a part hereof;
WHEREAS, ElderTrust, a Maryland real estate investment trust,
ElderTrust Operating Limited Partnership (the "Borrower"), various
lenders from time to time party thereto (the "Banks"), Wachovia Bank,
National Association, as Administrative Agent (together with any
successor administrative agent, the "Administrative Agent"), have
entered into an Amended and Restated Credit Agreement, dated as of
August 30, 2002, providing for the making of Loans to the Borrower
as contemplated therein (as amended, modified or supplemented from
time to time, the "Credit Agreement") (the Banks, the Administrative
Agent and the Mortgagee are herein called the "Secured Creditors");
WHEREAS, pursuant to an Amended and Restated Subsidiaries Guaranty,
dated as of the date hereof, made jointly and severally by the Mortgagor
and the other Subsidiary Guarantors for the benefit of the Secured
Creditors, the Mortgagor has guaranteed to the Secured Creditors and the
Mortgagee the payment when due of all obligations and liabilities of the
Borrower under or with respect to the Credit Documents;
WHEREAS, it is a condition precedent to the extensions of credit under
the Credit Agreement that the Mortgagor shall have executed and delivered
to the Mortgagee this Agreement; and
WHEREAS, Mortgagor desires to execute and deliver this Mortgage to
satisfy the condition described in the preceding paragraph and to secure
the following: (A) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of the Loans in the
maximum principal amount of Seven Million Five Hundred Thousand Dollars
($7,500,000), lawful money of the United States of America, to be paid
with interest in accordance with the Credit Agreement and all obligations
and liabilities (including, without limitation, the principal of and
interest on the notes issued, and loans made, under the Credit Agreement,
and all indemnities, fees and interest thereon or owed thereunder), (B)
performance of all of Mortgagor's other obligations under the Credit
Documents, (C) any and all sums advanced by the Mortgagee in order to
preserve or protect the Mortgaged Property or preserve or protect its
security title and interest in the Mortgaged Property, (D) in the event
of any proceeding for the collection or enforcement of any indebtedness,
obligations or liabilities of the Mortgagor referred to in clauses (A),
(B) and (C) above after an Event of Default shall have occurred and be
continuing, the reasonable expenses of re-taking, holding, preparing
for sale or lease, selling or otherwise disposing of or realizing on
the Mortgaged Property, or of any exercise by the Mortgagee of its
rights hereunder, together with reasonable attorneys' fees and court
costs, and (E) all amounts as to which any indemnitee has the right
to reimbursement under paragraph 33 of this Mortgage, as amended hereby.
TOGETHER WITH: all appurtenant right, title, interest and estate
of Mortgagor now owned, or hereafter acquired, in and to the following
property, rights, interests and estates (the Premises, the Improvements
and the following property, rights, interests and estates being
hereinafter collectively referred to as the "Mortgaged Property", which
Mortgaged Property constitutes a "Property" under and as defined in the
Credit Agreement):
(a) all easements, rights-of-way, strips and gores of land,
streets, ways, alleys, passages, sewer rights, water, water courses,
water rights and powers, air rights and development rights, licenses,
permits and construction and equipment warranties and all estates,
rights, titles, interests, privileges, liberties, tenements,
hereditaments and appurtenances of any nature whatsoever, in any way
belonging, relating or pertaining to the Premises and the Improvements
and the reversion and reversions, remainder and remainders, and all
land lying in the bed of any street, road or avenue, opened or
proposed, in front of or adjoining the Premises, to the center
line thereof and all the estates, rights, titles, interests, dower
and rights of dower, curtesy and rights of curtesy, property,
possession, claim and demand whatsoever, both at law and in equity,
of Mortgagor of, in and to the Premises and the Improvements and
every part and parcel thereof, with the appurtenances thereto;
(b) all machinery, equipment, fixtures (including, but not limited
to any and all partitions, dynamos, window screens and shades, drapes,
rugs and other floor coverings, awnings, motors, engines, boilers,
furnaces, pipes, plumbing, cleaning, call and sprinkler systems, fire
extinguishing apparatus and equipment, water tanks, swimming pools,
heating, ventilating, plumbing, lighting, communications and elevator
fixtures, laundry, incinerating, air conditioning and air cooling
2
equipment and systems, gas and electric machinery, and equipment,
disposals, dishwashers, furniture, refrigerators and ranges,
recreational equipment and facilities of all kinds, and water, gas,
electrical, storm and sanitary sewer facilities of all kinds, and
other utilities whether or not situated in easements, together with
all accessions, replacements, betterments and substitutions for
any of the foregoing) and other property of every kind and nature
whatsoever owned by Mortgagor, or in which Mortgagor has or shall
have an interest, now or hereafter located upon the Premises and the
Improvements, or appurtenant thereto, and in connection with the present
or future operation and occupancy of the Premises and the Improvements
and all building equipment, materials and supplies of any nature
whatsoever owned by ▇▇▇▇▇▇▇▇▇, or in which Mortgagor has or shall have
an interest, now or hereafter located upon the Premises and the
Improvements, or appurtenant thereto, or usable in connection
with the present or future operation and occupancy of the Premises
and the Improvements (hereinafter collectively called the "Equipment"),
and the right, title and interest of Mortgagor in and to any of the
Equipment which may be subject to any security interests, as defined
in the Uniform Commercial Code, as adopted and enacted by the state
or states where any of the Mortgaged Property is located (the "Uniform
Commercial Code"), superior in lien to the lien of this Mortgage;
(c) all awards or payments, including interest thereon, which may
heretofore or hereafter be made with respect to the Mortgaged Property,
whether from the exercise of the right of eminent domain (including, but
not limited to, any transfer made in lieu of or in anticipation of the
exercise of said right), or for a change of grade, or for any other
injury to or decrease in the value of the Mortgaged Property;
(d) all leasehold estates, leases, licenses, concession agreements,
franchises and other occupancy agreements and other agreements, including,
without limitation, any operating lease, demising, leasing or granting
rights of possession or use, or, to the extent of the interest therein
of the Mortgagor, any sublease, sub-sublease, underletting or sublicense,
which now or hereafter may affect the Mortgaged Property or any part
thereof or interest therein, and all renewals, extensions, subleases
or assignments thereof, (individually, a "Lease" and collectively,
the "Leases"), and all rents, issues, profits, royalties, receipts,
revenues, accounts receivable, security deposits and other deposits
(subject to the prior right of tenants making such deposits) and income,
including fixed, additional and percentage rents, occupancy charges,
operating expense reimbursements, reimbursements for increases in taxes,
sums paid by tenants to the Mortgagor to reimburse the Mortgagor for
amounts originally paid or to be paid by the Mortgagor or its agents or
affiliates for which such tenants were liable, as, for example, tenant
improvement costs in excess of any work letter, lease takeover costs,
moving expenses and tax and operating expense pass-throughs for which a
tenant is solely liable, marketing association dues, late charges, tenant
association dues, administrative cost reimbursements, parking,
maintenance, common area, tax, insurance, utility and service charges
and contributions, proceeds of sale of electricity, gas, heating, air-
conditioning and other utilities and services, deficiency rents and
liquidated damages and other benefits, including all property income
(the "Rents") and all proceeds from the sale or other disposition of
the Leases;
3
(e) all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property, including, without limitation,
the right to receive and apply the proceeds of any insurance, judgments,
or settlements made in lieu thereof, for damage to the Mortgaged
Property;
(f) any and all real estate tax refunds payable to Mortgagor with
respect to the Mortgaged Property, and refunds or reimbursements payable
with respect to bonds, escrow accounts, or other sums payable in
connection with the use, development, or ownership of the Mortgaged
Property;
(g) the right, in the name and on behalf of ▇▇▇▇▇▇▇▇▇, to appear
in and defend any action or proceeding brought with respect to the
Mortgaged Property and to commence any action or proceeding to protect
the interest of Mortgagee in the Mortgaged Property; and
(h) all (i) general intangibles, contract rights and accounts
receivable arising from any of the foregoing, (ii) any and all
replacements and renewals of or additions and substitutions to any
of the foregoing and (iii) all proceeds of any of the foregoing.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the use and benefit of Mortgagee, and the successors and
assigns of Mortgagee, forever and Mortgagor hereby binds itself and its
successors and assigns to warrant and forever defend the Mortgaged
Property unto Mortgagee and its successors and assigns against the claim
or claims of all persons claiming or to claim the same, or any part
thereof. PROVIDED, HOWEVER, these presents are upon the express
condition that, if ▇▇▇▇▇▇▇▇▇ shall well and truly pay and perform the
Obligations at the time and in the manner provided in the Credit
Documents, these presents and the estate hereby granted shall cease,
terminate and be void; AND, to protect the security of this Mortgage,
Mortgagor represents and warrants to and covenants and agrees with
Mortgagee as follows:
1. Definitions and Principles of Construction. Capitalized terms
used herein without definition shall have the respective meanings
ascribed to them in the Credit Agreement. Unless the context clearly
indicates a contrary intent or unless otherwise specifically provided
herein, words used in this Mortgage may be used interchangeably in
singular or plural form and the word "Mortgagor" shall mean "each
Mortgagor and any subsequent owner or owners of the Mortgaged Property
or any part thereof or any interest therein," the word "Mortgagee" shall
mean "Mortgagee and any of its successors and/or assigns," the word
"person" shall include an individual, corporation, partnership, limited
liability company, trust, unincorporated association, government,
governmental authority, and any other entity, and the words "Mortgaged
Property" shall include any portion of the Mortgaged Property and any
interest therein.
"Access Laws" has the meaning provided in paragraph 32 hereof.
"Credit Agreement" has the meaning provided in the second recital
hereto.
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"Equipment" has the meaning provided in paragraph (b) of the seventh
recital hereto.
"Impositions" means all real estate and personal property taxes,
water, sewer and vault charges and all other taxes, levies, assessments
and other similar charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, of any kind or nature
whatsoever, which may at any time prior to, at or after the
execution hereof be assessed, levied or imposed by, in each case a
Governmental Authority upon the Mortgaged Property or the property
income or the ownership, use, occupancy or enjoyment thereof, and any
interest, costs and penalties with respect to any of the foregoing.
"Improvements" has the meaning provided in the seventh recital
hereto.
"Leases" has the meaning provided in paragraph (d) of the seventh
recital hereto.
"Mortgage" has the meaning provided in the first paragraph hereof.
"Mortgagee" has the meaning provided in the first paragraph hereof.
"Mortgaged Property" has the meaning provided in the seventh recital
hereto.
"Mortgagor" has the meaning provided in the first paragraph hereof.
"Obligations" has the meaning provided in the seventh recital hereto.
"Other Charges" has the meaning set forth in Section 5 hereof.
"Premises" has the meaning provided in the seventh recital hereto.
"Rents" has the meaning provided in paragraph (d) of the seventh
recital hereto.
"UCC Collateral" has the meaning provided in paragraph 27 hereof.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect in the State of New Jersey.
2. Payment and Performance of Obligations. ▇▇▇▇▇▇▇▇▇ will pay and
perform the Obligations at the time and in the manner provided in the
Credit Documents without offset or counterclaim.
3. Warranty of Title. Mortgagor represents and warrants that it has
good fee simple title and/or a valid leasehold interest in and to the
Premises and the Improvements and has the full power, authority and right
to execute, deliver and perform its obligations under this Mortgage and to
mortgage, give, grant, bargain, sell, alien, convey, confirm, encumber,
pledge, assign and hypothecate the same and that Mortgagor possesses an
unencumbered fee and/or leasehold estate in the Premises and the
Improvements free and clear of all Liens, encumbrances, defenses, offsets
and charges whatsoever except for the Permitted Encumbrances. Mortgagor
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shall forever warrant, defend and preserve such title and the validity
and priority of the Lien of this Mortgage and shall forever warrant and
defend the same to Mortgagee against the claims of all persons and
parties whomsoever.
4. Insurance. Mortgagor, at its sole cost and expense, is required
to obtain the insurance coverages set forth in the Credit Agreement in
respect of the Mortgaged Property in accordance with the provisions
thereof.
5. Payment of Impositions, etc. Mortgagor shall pay all Impositions
now or hereafter levied or assessed or imposed against the Mortgaged
Property or any part thereof and all ground rents, maintenance charges,
other governmental impositions, and other charges, including without
limitation vault charges and license fees for the use of vaults, chutes
and similar areas adjoining the Premises, now or hereafter levied or
assessed or imposed against the Mortgaged Property or any part thereof
(the "Other Charges") as same become due and payable. Mortgagor will
deliver to Mortgagee, promptly upon Mortgagee's request, evidence
satisfactory to Mortgagee that the Impositions and Other Charges have
been so paid or are not then delinquent. Mortgagor shall not suffer and
shall promptly cause to be paid and discharged any Lien or charge
whatsoever which may be or become a Lien or charge against the Mortgaged
Property (except that, after prior written notice to Mortgagee, Mortgagor,
at its own expense, may contest the amount or validity or application in
whole or in part of any of the Impositions or Other Charges), and shall
promptly pay for all utility services (including gas, electricity, steam,
water, sewer and any other services or other charges of a similar nature,
whether public or private) provided to the Mortgaged Property. Mortgagor
shall furnish to Mortgagee or its designee receipts for the payment of
real estate taxes prior to the date the same shall become delinquent.
▇▇▇▇▇▇▇▇▇ will pay all taxes, charges, filing, registration and recording
fees, excises and levies imposed in connection with the recording of this
Mortgage or imposed upon Mortgagee by reason of its ownership of this
Mortgage, other than income, estate, inheritance, excess profits,
franchise and doing business taxes or similar taxes, and shall pay any
and all stamp taxes and other taxes required to be paid on the Obligations.
In the event Mortgagor fails to make any such payment within thirty (30)
days after written notice thereof from Mortgagee, then Mortgagee shall have
the right, but shall not be obligated to, pay the amount due and Mortgagor
shall, on demand, reimburse Mortgagee for said amount.
6. Recourse. Section 2.7 of the Security Agreement is hereby
incorporated herein by reference as if set forth in full.
7. Casualty, Taking and Application of Proceeds. If a Casualty Event
or a Taking occurs, ▇▇▇▇▇▇▇▇▇'s and Mortgagee's respective rights and
obligations with respect thereto, and the provisions governing the
collection and application of Insurance Proceeds and Condemnation Proceeds
received in connection therewith contained in the Credit Agreement shall
be applicable and are hereby incorporated herein by reference as if set
forth in full.
8. Assignment of Leases and Rents. (a) Mortgagor hereby
absolutely unconditionally and irrevocably transfers, assigns, conveys
and sets over unto Mortgagee all of ▇▇▇▇▇▇▇▇▇'s right, title and interest
in and to all current and future Leases, Rents and other property income,
6
it being intended by ▇▇▇▇▇▇▇▇▇ that this assignment constitutes a present,
absolute transfer and assignment and not an assignment for additional
security only. Such assignment to Mortgagee shall not be construed to
bind Mortgagee to the performance of any of the covenants, conditions or
provisions contained in any Lease or otherwise impose any obligation
upon Mortgagee. ▇▇▇▇▇▇▇▇▇ agrees to execute and deliver to Mortgagee
such additional instruments, in form and substance satisfactory to
Mortgagee, as may hereafter be reasonably requested by Mortgagee to
further evidence and confirm such assignment.
Subject to the terms of this paragraph 8 and Section 7.11 of the
Credit Agreement, Mortgagee grants to Mortgagor a revocable license
to operate and manage the Mortgaged Property and to collect the Rents
and the other property income; provided, that Mortgagor shall hold the
Rents, or a portion thereof sufficient to discharge all current sums
due on the Obligations, in trust for the benefit of Mortgagee for use
in the payment of such sums.
Upon the occurrence of an Event of Default, the license granted
to Mortgagor in this paragraph 8 shall automatically be revoked, and
Mortgagee shall immediately be entitled to possession of all Rents and
other property income, whether or not Mortgagee enters upon or takes
control of the Mortgaged Property. Mortgagee is hereby granted and
assigned by ▇▇▇▇▇▇▇▇▇ the right, at its option, upon revocation of the
license granted herein, to enter upon the Mortgaged Property in
person, by agent or by court-appointed receiver to collect the Rents
and the other property income. Any Rents and other property income
collected after the revocation of the license may be applied toward
payment of the Obligations in such priority and proportions as
Mortgagee in its discretion shall deem proper.
9. Maintenance of Mortgaged Property. Mortgagor shall cause the
Mortgaged Property to be maintained in a good and safe condition and
repair (subject to the provisions of the Credit Agreement relating to
Casualty Events and Takings). The Improvements and the Equipment shall
not be removed, demolished or materially altered (except for replacement
of the Equipment in the ordinary course of business) without the consent
of Mortgagee. Mortgagor shall comply in all material respects with all
laws, orders and ordinances affecting the Mortgaged Property, or the use
thereof. Mortgagor shall not undertake to construct any new building or
material Improvement on the Mortgaged Property without Mortgagee's prior
written consent. Mortgagor shall not initiate, join in, acquiesce in, or
consent to any change in any private restrictive covenant, zoning law or
other public or private restriction, limiting or defining the uses which
may be made of the Mortgaged Property or any part thereof without
Mortgagee's prior written consent. If under applicable zoning provisions
the use of all or any portion of the Mortgaged Property is or shall become
a nonconforming use, Mortgagor will not cause or permit such nonconforming
use to be discontinued or abandoned without the express written consent of
Mortgagee except as required by applicable law.
10. Operation of the Mortgaged Property. Mortgagor will obtain and
maintain all material licenses, authorizations, permits and/or approvals
necessary for the ownership, operation and management of the Mortgaged
Property, including, without limitation, all required environmental
permits.
7
11. Transfer or Encumbrance of the Mortgaged Property. (a)
Except for transfers permitted pursuant to the Credit Agreement,
Mortgagor shall not sell, convey, alien, mortgage, encumber, pledge
or otherwise transfer the Mortgaged Property or any part thereof. A
sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer
within the meaning of this paragraph 11 shall be deemed to include any
installment sales agreement wherein Mortgagor agrees to sell the
Mortgaged Property or any part thereof for a price to be paid in
installments or any agreement by Mortgagor leasing all or a substantial
part of the Mortgaged Property for other than actual occupancy by a space
tenant thereunder or any sale, assignment or other transfer of, or the
grant of a security interest in, ▇▇▇▇▇▇▇▇▇'s right, title and interest
in and to any Leases or any Rents or other property income.
Mortgagee shall not be required to demonstrate any actual impairment of
its security or any increased risk of default hereunder in order to
declare the Obligations immediately due and payable upon ▇▇▇▇▇▇▇▇▇'s sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property in violation of this Mortgage, or any other Mortgage
Loan Document. This provision shall apply to every sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged
Property that is not a transfer permitted pursuant to the terms of the
Credit Agreement, regardless of whether voluntary or not, or whether or
not Mortgagee has consented to any previous sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property.
12. Changes in Laws Regarding Taxation. If any law is enacted or
adopted or amended after the date of this Mortgage which deducts the
Obligations from the value of the Mortgaged Property for the purpose of
taxation or which imposes a tax, either directly or indirectly, on the
Obligations or Mortgagee's interest in the Mortgaged Property, Mortgagor
will pay such tax, with interest and penalties thereon, if any. In the
event Mortgagee is advised by counsel chosen by it that the payment of
such tax or interest and penalties by ▇▇▇▇▇▇▇▇▇ would be unlawful or
taxable to Mortgagee or unenforceable or provide the basis for a defense
of usury, then in any such event, Mortgagee shall notify Mortgagor thereof
and Mortgagee shall have the option, upon the expiration of such 30-day
period to declare the Obligations immediately due and payable.
13. No Credits on Account of the Obligations. Mortgagor will not
claim or demand or be entitled to any credit or credits on account of the
Obligations for any part of the Impositions or Other Charges assessed
against the Mortgaged Property, or any part thereof, and no deduction
shall otherwise be made or claimed from the assessed value of the
Mortgaged Property, or any part thereof, for real estate tax purposes
by reason of this Mortgage or the Obligations. In the event such claim,
credit or deduction shall be required by law, Mortgagee shall have the
option, by written notice of not less than thirty (30) days, to declare
the Obligations immediately due and payable.
14. Documentary Stamps. Mortgagor shall pay, together with interest,
fines, and penalties, if any, any documentary stamp, recording, transfer,
mortgage, intangibles or other taxes or fees whatsoever due under applicable
laws in connection with the making, execution, delivery, filing of record,
recordation, release, or discharge of this Mortgage.
8
15. Usury Laws. It is the intent of the Mortgagor and the Mortgagee
in the execution of this Mortgage and all other instruments evidencing
or securing the Obligations to contract in strict compliance with the
relevant usury laws. In furtherance thereof, the Mortgagor and the
Mortgagee stipulate and agree that none of the terms and provisions
contained in this Mortgage shall ever be construed to create a contract
for the use, forbearance or detention of money requiring payment of
interest at a rate in excess of the maximum interest rate permitted to
be charged by relevant law.
16. Books and Records. Mortgagor shall keep books and records of
account in accordance with the applicable provisions of the Credit
Agreement.
17. Performance of Other Agreements. Mortgagor shall observe and
perform each and every term to be observed or performed by Mortgagor
pursuant to the terms of any material agreement or recorded instrument
affecting or pertaining to the Mortgaged Property.
18. Further Acts. Mortgagor will, at the expense of ▇▇▇▇▇▇▇▇▇, and
without expense to Mortgagee, do, execute, acknowledge and deliver all
and every such further acts, deeds, conveyances, mortgages, assignments,
notices of assignments, transfers and assurances as Mortgagee shall,
from time to time, require, for the better assuring, conveying,
assigning, transferring, and confirming unto Mortgagee the property
and rights hereby mortgaged, given, granted, bargained, sold, aliened,
conveyed, confirmed, pledged, assigned and hypothecated or intended now
or hereafter so to be, or which Mortgagor may be or may hereafter become
bound to convey or assign to Mortgagee, or for carrying out the intention
or facilitating the performance of the terms of this Mortgage or for
filing, registering or recording this Mortgage. ▇▇▇▇▇▇▇▇▇, on demand,
will execute and deliver and hereby authorizes Mortgagee to execute in
the name of ▇▇▇▇▇▇▇▇▇ or without the signature of Mortgagor to the extent
Mortgagee may lawfully do so, one or more financing statements, chattel
mortgages or other instruments, to evidence more effectively the security
interest of Mortgagee in the Mortgaged Property. In the event that the
legal description attached hereto is inaccurate or does not fully describe
all of the real property in which the Mortgagor has an interest, ▇▇▇▇▇▇▇▇▇
hereby agrees to the amendment of such legal description and the legal
description contained in the corresponding title policy so that such error
is corrected, and ▇▇▇▇▇▇▇▇▇ shall execute and cause to be recorded, if
applicable, such documentation as may be appropriate for such purpose.
Mortgagor grants to Mortgagee an irrevocable power of attorney coupled
with an interest for the purpose of exercising and perfecting any and all
rights and remedies available to Mortgagee at law and in equity, including,
without limitation, such rights and remedies available to Mortgagee pursuant
to this paragraph 18.
19. Recording of Mortgage. Mortgagor forthwith upon the execution
and delivery of this Mortgage and thereafter, from time to time, will
cause this Mortgage, and any security instrument creating a Lien or
security interest or evidencing the Lien hereof upon the Mortgaged
Property and each instrument of further assurance to be filed,
registered or recorded in such manner and in such places as may
be required by any present or future law in order to publish notice
9
of and fully to protect the Lien or security interest hereof upon,
and the interest of Mortgagee in, the Mortgaged Property. Mortgagor
will pay all filing, registration or recording fees, and all expenses
incident to the preparation, execution and acknowledgment of this
Mortgage and the Notes, any mortgage supplemental hereto, any security
instrument with respect to the Mortgaged Property and any instrument of
further assurance, and all federal, state, county and municipal, taxes,
duties, imposts, assessments and charges arising out of or in connection
with the execution and delivery of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the
Mortgaged Property or any instrument of further assurance, except where
prohibited by law so to do. Mortgagor shall hold harmless and indemnify
Mortgagee, its successors and assigns, against any liability incurred by
reason of the imposition of any tax on the making and recording of this
Mortgage.
20. Prepayment. The Loans may only be prepaid in accordance with
the terms of the Credit Agreement and the other Credit Documents.
21. Events of Default. The Obligations shall become immediately
due and payable at the option of Mortgagee upon the occurrence of an
Event of Default (as defined in the Credit Agreement).
22. Overdue Principal and Interest. Section 1.08 of the Credit
Agreement requires interest to be paid at a higher rate ("Overdue Rate")
in certain circumstances. This charge shall be added to the Obligations,
and shall be deemed secured by this Mortgage. This clause, however, shall
not be construed as an agreement or privilege to extend the date of the
payment of the Obligations, nor as a waiver of any other right or remedy
accruing to Mortgagee by reason of the occurrence of any Event of Default.
If the Overdue Rate is above the maximum rate permitted by applicable law,
the Overdue Rate shall be the maximum rate permitted by applicable law.
23. Right to Cure Defaults. Upon the occurrence of any Event of
Default or if ▇▇▇▇▇▇▇▇▇ fails to make any payment or to do any act as
herein provided, Mortgagee may, but without any obligation to do so and
without notice to or demand on Mortgagor and without releasing Mortgagor
from any obligation hereunder, make or do the same in such manner and to
such extent as Mortgagee may deem necessary to protect the security hereof.
Mortgagee is authorized to enter upon the Mortgaged Property for such
purposes, or appear in, defend, or bring any action or proceeding to
protect its interest in the Mortgaged Property or to foreclose this
Mortgage or collect the Obligations, and the cost and expense thereof
(including reasonable attorneys' fees to the extent permitted by law),
with interest as provided in this paragraph 23, shall constitute a portion
of the Obligations and shall be due and payable to Mortgagee upon demand.
All such costs and expenses incurred by Mortgagee in remedying such Event
of Default or in appearing in, defending, or bringing any such action or
proceeding shall bear interest at the Overdue Rate, for the period after
notice from Mortgagee that such cost or expense was incurred to the date
of payment to Mortgagee. All such costs and expenses incurred by
Mortgagee together with interest thereon calculated at the Overdue Rate
shall be deemed to constitute a portion of the Obligations and be secured
by this Mortgage and the other Credit Documents and shall be immediately
due and payable upon demand by Mortgagee therefor.
10
24. Prepayment After Event of Default. If following the occurrence
of any Event of Default, Mortgagor shall tender payment of an amount
sufficient to satisfy the Obligations at any time prior to a sale of the
Mortgaged Property either through foreclosure or the exercise of other
remedies available under this Mortgage, such tender by Mortgagor shall
be deemed to be a voluntary prepayment under the Credit Agreement and
the Notes in the amount tendered and Mortgagor may be obligated under
the Credit Agreement to pay additional sums to Mortgagee as the result
of such voluntary prepayment.
25. Right of Entry. Mortgagee and its agents shall have the right
to enter and inspect the Mortgaged Property at all reasonable times.
26. Remedies. (a) Upon the occurrence of any Event of Default,
Mortgagee may at its election, take such action permitted at law or in
equity, without notice or demand, as it deems advisable to protect and
enforce its rights against Mortgagor and in and to the Mortgaged
Property, including, but not limited to, any one or more of the
following actions, each of which may be pursued concurrently or
otherwise, at such time and in such order as Mortgagee may determine,
in its sole discretion, without impairing or otherwise affecting the
other rights and remedies of Mortgagee:
(i) declare the entire unpaid Obligations to be immediately due
and payable;
(ii) institute proceedings for the complete foreclosure of this
Mortgage in which case the Mortgaged Property or any interest therein
may be sold for cash or upon credit in one or more parcels or in
several interests or portions and in any order or manner;
(iii) with or without entry, to the extent permitted and pursuant
to the procedures provided by applicable law, institute proceedings for
the partial foreclosure of this Mortgage for the portion of the
Obligations then due and payable, subject to the continuing Lien of
this Mortgage for the balance of the Obligations not then due;
(iv) sell for cash or upon credit the Mortgaged Property or any
part thereof and all estate, claim, demand, right, title and interest
of Mortgagor therein and rights of redemption thereof, pursuant to power
of sale or otherwise, at one or more sales, as an entirety or in parcels,
at such times and places, upon such terms and after such notice thereof
as may be required or permitted by law;
(v) institute an action, suit or proceeding in equity for the
specific performance of any covenant, condition or agreement contained
herein, in the Credit Agreement, in the Notes or in any other Credit
Documents;
(vi) recover judgment on the Notes either before, during or after
any proceedings for the enforcement of this Mortgage;
(vii) as a matter of right and without notice to Mortgagor or
anyone claiming under ▇▇▇▇▇▇▇▇▇, and without regard to the then value
of the Mortgaged Property or the interest of Mortgagor therein, apply
11
to any court having jurisdiction to appoint a receiver or receivers of
the Mortgaged Property, and ▇▇▇▇▇▇▇▇▇ hereby irrevocably consents to
such appointment and waives notice of any application therefor. Any
such receiver or receivers shall have all the usual powers and duties
of receivers in like or similar cases and all the powers and duties of
Mortgagee in case of entry as provided in paragraph 25 and shall
continue as such and exercise all such powers until the date of
confirmation of sale of the Mortgaged Property unless such receivership
is sooner terminated;
(viii) enforce Mortgagee's interest in the Leases, Rents and other
property income and enter into or upon the Mortgaged Property, either
personally or by its agents, nominees or attorneys and dispossess
Mortgagor and its agents and servants therefrom, and thereupon Mortgagee
may (A) use, operate, manage, control, insure, maintain, repair, restore
and otherwise deal with all and every part of the Mortgaged Property and
conduct the business thereat; (B) complete any construction on the
Mortgaged Property in such manner and form as Mortgagee deems advisable;
(C) make alterations, additions, renewals, replacements and improvements
to or on the Mortgaged Property; (D) exercise all rights and powers of
Mortgagor with respect to the Mortgaged Property, whether in the name of
Mortgagor or otherwise, including, without limitation, the right to make,
cancel, enforce or modify Leases, obtain and evict tenants, and demand,
sue for, collect and receive all earnings, revenues, Rents, issues,
profits and other income of the Mortgaged Property and every part thereof;
and (E) apply the receipts from the Mortgaged Property to the payment of
the Obligations, after deducting therefrom all expenses (including
reasonable attorneys' fees) incurred in connection with the aforesaid
operations and all amounts necessary to pay the taxes, assessments,
insurance and other charges in connection with the Mortgaged Property,
as well as just and reasonable compensation for the services of Mortgagee,
its counsel, agents and employees; and
(ix) pursue such other rights or remedies as may be available under
the Credit Agreement, the Notes, any of the other Credit Documents or
otherwise at law or in equity.
In the event of a sale, by foreclosure or otherwise, of less than all of
the Mortgaged Property, this Mortgage shall continue as a Lien on the
remaining portion of the Mortgaged Property.
(b) The proceeds of any sale made under or by virtue of this
paragraph, together with any other sums which then may be held by
Mortgagee under this Mortgage, whether under the provisions of this
paragraph or otherwise, shall be applied by Mortgagee to the payment
of the Obligations in such priority and proportions as Mortgagee in
its discretion shall deem proper.
(c) Mortgagee may adjourn from time to time any sale to be made
under or by virtue of this Mortgage by announcement at the time and
place appointed for such sale or for such adjourned sale or sales; and,
except as otherwise provided by any applicable provision of law,
Mortgagee, without further notice or publication, may cause such sale
to be made at the time and place to which the same shall be so adjourned.
12
(d) Upon the completion of any sale made by Mortgagee under or by
virtue of this paragraph, Mortgagee, or an officer of any court empowered
to do so, shall execute and deliver to the accepted purchaser a good and
sufficient instrument conveying, assigning and transferring all estate,
right, title and interest in and to the property and rights sold.
Mortgagee is hereby irrevocably appointed the true and lawful attorney
of ▇▇▇▇▇▇▇▇▇, in its name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the Mortgaged Property and
rights so sold and for that purpose Mortgagee may execute all necessary
instruments of conveyance, assignment and transfer, and may substitute
one or more persons with like power, ▇▇▇▇▇▇▇▇▇ hereby ratifying and
confirming all that its said attorney or such substitute shall lawfully
do by virtue hereof. Any sale made under or by virtue of this paragraph,
whether made under the power of sale herein granted or under or by virtue
of judicial proceedings or of a judgment or decree of foreclosure and
sale, shall operate to divest all the estate, right, title, interest,
claim and demand whatsoever, whether at law or in equity, of Mortgagor
in and to the property and rights so sold, and shall be a perpetual bar
both at law and in equity against ▇▇▇▇▇▇▇▇▇ and against any and all
persons claiming or who may claim the same, or any part thereof from,
through or under Mortgagor.
(e) Upon any sale made under or by virtue of this paragraph,
whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of
foreclosure and sale, Mortgagee may bid for and acquire the Mortgaged
Property or any part thereof and in lieu of paying cash therefor may
make settlement for the purchase price by crediting upon the Obligations
the net sales price after deducting therefrom the expenses of the sale
and costs of the action and any other sums which Mortgagee is authorized
to deduct under this Mortgage.
(f) No recovery of any judgment by ▇▇▇▇▇▇▇▇▇ and no levy of an
execution under any judgment upon the Mortgaged Property or upon any
other property of Mortgagor shall affect in any manner or to any extent
the Lien of this Mortgage upon the Mortgaged Property or any part thereof,
or any Liens, rights, powers or remedies of Mortgagee hereunder, but such
Liens, rights, powers and remedies of Mortgagee shall continue
unimpaired as before.
27. Security Agreement and Fixture Filing. (a) This Mortgage is both
a real property mortgage and a "security agreement" within the meaning of
the Uniform Commercial Code. The Mortgaged Property includes both real
and personal property and all other rights and interests, whether
tangible or intangible in nature, of Mortgagor in the Mortgaged Property.
Mortgagor by executing and delivering this Mortgage has granted and
hereby grants to Mortgagee, as security for the Obligations, a security
interest in the Mortgaged Property to the full extent that the Mortgaged
Property may be subject to the Uniform Commercial Code (said portion of
the Mortgaged Property so subject to the Uniform Commercial Code being
called in this paragraph 27 the "UCC Collateral"). If an Event of
Default shall occur, Mortgagee, in addition to any other rights and
remedies which it may have, shall have and may exercise immediately and
without demand, any and all rights and remedies granted to a secured
party upon default under the Uniform Commercial Code, including,
without limiting the generality of the foregoing, the right to take
possession of the UCC Collateral or any part thereof, and to take
such other measures as Mortgagee may deem necessary for the care,
13
protection and preservation of the UCC Collateral. Upon request or
demand of Mortgagee, Mortgagor shall at its expense assemble the UCC
Collateral and make it available to Mortgagee at a convenient place
acceptable to Mortgagee. Mortgagor shall pay to Mortgagee on demand
any and all expenses, including legal expenses and attorneys' fees,
incurred or paid by Mortgagee in protecting the interest in the UCC
Collateral and in enforcing the rights hereunder with respect to the
UCC Collateral. Any notice of sale, disposition or other intended
action by Mortgagee with respect to the UCC Collateral sent to
Mortgagor in accordance with the provisions hereof at least ten (10)
days prior to such action, shall constitute commercially reasonable
notice to Mortgagor. The proceeds of any disposition of the UCC
Collateral, or any part thereof, may be applied by Mortgagee to the
payment of the Obligations in such priority and proportions as
Mortgagee in its discretion shall deem proper.
(b) Certain of the Mortgaged Property is or will become "fixtures"
(as that term is defined in the Uniform Commercial Code) on the Premises,
described or referred to in this Mortgage, and this Mortgage, upon being
filed for record in the real estate records of the city or county wherein
such fixtures are situated, shall operate also as a financing statement
filed as a fixture filing in accordance with the applicable provisions of
said Uniform Commercial Code upon such of the Mortgaged Property that is
or may become fixtures.
The principal place of business of Mortgagor and the place where ▇▇▇▇▇▇▇▇▇'s
books and records in respect of the Mortgaged Property are kept is the
address of Mortgagor first set forth above.
28. Actions and Proceedings. Mortgagee has the right to appear in
and defend any action or proceeding brought with respect to the Mortgaged
Property and to bring any action or proceeding, in the name and on behalf
of Mortgagor, which Mortgagee, in its discretion, decides should be brought
to protect its interest in the Mortgaged Property. Mortgagee shall, at
its option, be subrogated to the Lien of any deed of trust, mortgage or
other security instrument discharged in whole or in part by the Obligations,
and any such subrogation rights shall constitute additional security for the
payment of the Obligations.
29. Waiver of Counterclaim. Mortgagor hereby waives the right to
assert a counterclaim, other than a mandatory or compulsory counterclaim,
in any action or proceeding brought against it by Mortgagee, and waives
trial by jury in any action or proceeding brought by either party hereto
against the other or in any counterclaim asserted by Mortgagee against
Mortgagor, or in any matters whatsoever arising out of or in any way
connected with this Mortgage, the Credit Agreement, the Notes, any of
the other Credit Documents or the Obligations.
30. Recovery of Sums Required To Be Paid. Mortgagee shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Obligations as the same become due, without
regard to whether or not the balance of the Obligations shall be due
14
and without prejudice to the right of Mortgagee thereafter to bring an
action of foreclosure, or any other action, for a default or defaults
by Mortgagor existing at the time such earlier action was commenced.
31. Marshalling and Other Matters. Mortgagor hereby waives, to the
extent permitted by law, the benefit of all appraisement, valuation,
stay, extension, reinstatement and redemption laws now or hereafter in
force and all rights of marshalling in the event of any sale hereunder
of the Mortgaged Property or any part thereof or any interest therein.
Further, Mortgagor hereby expressly waives any and all rights of
redemption from sale under any order or decree of foreclosure of this
Mortgage on behalf of Mortgagor, and on behalf of each and every person
acquiring any interest in or title to the Mortgaged Property subsequent
to the date of this Mortgage and on behalf of all persons to the extent
permitted by applicable law.
32. Handicapped Access. (a) ▇▇▇▇▇▇▇▇▇ agrees that the Mortgaged
Property shall comply to the extent applicable with the requirements
of the Americans with Disabilities Act of 1990, the Fair Housing
Amendments Act of 1988, all state and local laws and ordinances related
to handicapped access, and all rules, regulations, and orders issued
pursuant thereto including, without limitation, the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities (collectively "Access Laws"). Notwithstanding any
provisions set forth herein or in any other document regarding
Mortgagee's approval of alterations of the Mortgaged Property,
Mortgagor shall not alter the Mortgaged Property in any manner
which would increase Mortgagor's responsibilities for compliance with
the applicable Access Laws after completion of the alterations
without the prior written approval of Mortgagee. The foregoing shall
apply to tenant improvements constructed by Mortgagor or by any of its
tenants. Mortgagee may condition any such approval upon receipt of a
certificate of Access Law compliance from an architect, engineer, or
other person acceptable to Mortgagee. ▇▇▇▇▇▇▇▇▇ agrees to give prompt
notice to Mortgagee of the receipt by ▇▇▇▇▇▇▇▇▇ of any complaints
related to violation of any Access Laws and of the commencement of any
proceedings or investigations which relate to compliance with applicable
Access Laws.
33. Indemnification. Mortgagor shall protect, defend, indemnify
and save harmless Mortgagee from and against all liabilities,
obligations, claims, demands, damages, penalties, causes of action,
losses, fines, costs and expenses (including without limitation
reasonable attorneys' fees and expenses), imposed upon or incurred
by or asserted against Mortgagee by reason of (a) ownership of this
Mortgage, the Mortgaged Property or any interest therein or receipt of
any Rents or other property income; (b) any accident, injury to or death
of persons or loss of or damage to property occurring in, on or about
the Mortgaged Property or any part thereof or on the adjoining sidewalks,
curbs, adjacent property or adjacent parking areas, streets or ways; (c)
any use, nonuse or condition in, on or about the Mortgaged Property or
any part thereof or on the adjoining sidewalks, curbs, adjacent property
or adjacent parking areas, streets or ways; (d) any failure on the part
of Mortgagor to perform or comply with any of the terms of this Mortgage;
(e) performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any
15
part thereof; or (f) any failure of the Mortgaged Property to comply
with any Access Laws, except to the extent any of the foregoing result
from, or arise out of, Mortgagee's gross negligence or willful misconduct.
Any amounts payable to Mortgagee by reason of the application of this
paragraph 33 shall be secured by this Mortgage and shall become
immediately due and payable and shall bear interest at the Overdue Rate
from the date loss or damage is sustained by Mortgagee until paid. The
obligations and liabilities of Mortgagor under this paragraph 33 shall
survive any termination, satisfaction, assignment, entry of a judgment
of foreclosure, delivery of a deed in a non-judicial foreclosure or
delivery of a deed in lieu of foreclosure of this Mortgage.
34. Notices. Any notice, demand, statement, request or consent
made hereunder shall be in writing and shall be delivered in the manner
specified for notices in the Credit Agreement to the address, as set
forth above, of the party to whom such notice is to be given, or to such
other address as Mortgagor or Mortgagee, as the case may be, shall in
like manner designate in writing.
35. Authority. (a) Mortgagor represents and warrants that
Mortgagor (and the undersigned representative of Mortgagor, if any)
has full power, authority and right to execute, deliver and perform
its obligations pursuant to this Mortgage, and to mortgage, give, grant,
bargain, sell, alien, convey, confirm, pledge, hypothecate and assign
the Mortgaged Property pursuant to the terms hereof and to keep and
observe all of the terms of this Mortgage on Mortgagor's part to be
performed. Mortgagor represents and warrants that Mortgagor is not a
"foreign person" within the meaning of 1445(f)(3) of the Internal Revenue
Code of 1986, as amended and the related Treasury Department regulations,
including temporary regulations.
36. WAIVER OF NOTICE. MORTGAGOR SHALL NOT BE ENTITLED TO ANY NOTICES
OF ANY NATURE WHATSOEVER FROM MORTGAGEE EXCEPT WITH RESPECT TO MATTERS FOR
WHICH THIS MORTGAGE OR THE OTHER CREDIT DOCUMENTS SPECIFICALLY AND
EXPRESSLY PROVIDE FOR THE GIVING OF NOTICE BY MORTGAGEE TO MORTGAGOR
AND EXCEPT WITH RESPECT TO MATTERS FOR WHICH MORTGAGEE IS REQUIRED BY
APPLICABLE LAW TO GIVE NOTICE, AND MORTGAGOR HEREBY EXPRESSLY WAIVES THE
RIGHT TO RECEIVE ANY NOTICE FROM MORTGAGEE WITH RESPECT TO ANY MATTER FOR
WHICH THIS MORTGAGE OR THE OTHER CREDIT DOCUMENTS DOES NOT SPECIFICALLY
AND EXPRESSLY PROVIDE FOR THE GIVING OF NOTICE BY MORTGAGEE TO MORTGAGOR.
37. Sole Discretion of Mortgagee. Wherever pursuant to this
Mortgage, Mortgagee exercises any right given to it to approve or
disapprove, or any arrangement or term is to be satisfactory to
Mortgagee, the decision of Mortgagee to approve or disapprove or to
decide that arrangements or terms are satisfactory or not satisfactory
shall be in the sole discretion of Mortgagee and shall be final and
conclusive, except as may be otherwise expressly and specifically
provided herein.
38. Non-Waiver. The failure of Mortgagee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of
16
any term of this Mortgage. Mortgagor shall not be relieved of
Mortgagor's obligations hereunder by reason of (a) the failure of
Mortgagee to comply with any request of Mortgagor to take any action
to foreclose this Mortgage or otherwise enforce any of the provisions
hereof or of the Credit Agreement, the Notes or the other Credit
Documents, (b) the release, regardless of consideration, of the whole
or any part of the Mortgaged Property, or of any person liable for the
Obligations or any portion thereof, or (c) any agreement or stipulation
by Mortgagee extending the time of payment or otherwise modifying or
supplementing the terms of the Credit Agreement, the Notes, this
Mortgage or the other Credit Documents. Mortgagee may resort for the
payment of the Obligations to any other security held by Mortgagee in
such order and manner as Mortgagee, in its discretion, may elect.
Mortgagee may take action to recover the Obligations, or any portion
thereof, or to enforce any covenant hereof without prejudice to the
right of Mortgagee thereafter to foreclose this Mortgage or to pursue
other remedies available in the other Credit Documents or at law or in
equity. The rights and remedies of Mortgagee under this Mortgage shall
be separate, distinct and cumulative and none shall be given effect to
the exclusion of the others. No act of Mortgagee shall be construed as
an election to proceed under any one provision herein to the exclusion
of any other provision. Mortgagee shall not be limited exclusively to
the rights and remedies herein stated but shall be entitled to every
right and remedy now or hereafter afforded in the other Credit Documents
or at law or in equity.
39. No Oral Change. This Mortgage, and any provisions hereof, may
not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of
Mortgagor or Mortgagee, but only by an agreement in writing signed
by the party against whom enforcement of any modification, amendment,
waiver, extension, change, discharge or termination is sought.
40. Headings, etc. The headings and captions of various paragraphs
of this Mortgage and the Table of Contents contained herein are for
convenience of reference only and are not to be construed as defining
or limiting, in any way, the scope or intent of the provisions hereof.
41. Duplicate Originals. This Mortgage may be executed in any
number of duplicate originals and each such duplicate original shall
be deemed to be an original.
42. Successors and Assigns. This Mortgage applies to, inures to
the benefit of and binds the parties hereto and their respective
successors and assigns.
43. Assignments. Mortgagee shall have the right to assign or
transfer its rights under this Mortgage without limitation. Any
assignee or transferee shall be entitled to all the benefits
afforded Mortgagee under this Mortgage.
44. Governing Law; Severability. This Mortgage shall be governed
by and construed in accordance with the laws of the State of New York
including, without limitation, Section 5-1401 of the General Obligations
Law, but otherwise without regard to conflict of law principles; provided,
however, that with respect to the creation, attachment, perfection,
priority and enforcement of the Liens created by this Mortgage, this
Mortgage shall be governed by and construed in accordance with the laws
17
of the State of New Jersey. In the event that any provision or clause
of this Mortgage conflicts with Applicable Laws, such conflicts shall
not affect other provisions of this Mortgage which can be given effect
without the conflicting provision, and to this end the provisions of this
Mortgage are declared to be severable.
45. Priority of this Mortgage. The parties hereto intend that this
Mortgage create a first priority, perfected Lien upon and security
interest in the Premises and all other portions of the Mortgaged Property
for so long as any of the Obligations remain outstanding, subject only
to Permitted Encumbrances. Therefore, notwithstanding the relative
priority of recordation of this Mortgage and any other instrument of
record with respect to the Mortgaged Property or any portion thereof,
the Liens and security interests created hereby in the Mortgaged
Property are and shall be superior to the Liens and security interests
created by any such instrument, subject only to Permitted Encumbrances.
46. Conflicts With Credit Agreement. If any term or provision of
this Mortgage shall contradict or otherwise conflict with any term or
provision of the Credit Agreement, the parties hereto agree that the
term or provision contained in the Credit Agreement shall control for
so long as the Credit Agreement remains in force in respect of Mortgagor.
47. Future Advances. In addition to all other indebtedness secured
by this Mortgage, this Mortgage shall also secure and shall constitute
a first Lien on the Mortgaged Property for all future advances made by
Mortgagee to Mortgagor for any purpose within twenty (20) years from the
date of this Mortgage to the same extent as if such advances were made
on the date of the execution of this Mortgage. Any such advances may
be made at the option of Mortgagee. The total amount of the
indebtedness, including future advances, that is secured by this
Mortgage, may increase or decrease from time to time, but shall not
exceed a maximum principal amount of $7,500,000 at any one time, plus
accrued and unpaid interest thereon and any disbursements made by
Mortgagee for the payment of taxes, levies or insurance on all or any
part of the Mortgaged Property encumbered by this Mortgage, with
accrued and unpaid interest on such disbursement.
IN WITNESS WHEREOF, this Mortgage has been duly executed by
▇▇▇▇▇▇▇▇▇ as of the day and year first written above.
MORTGAGOR
ET SUB-PHILLIPSBURG I, L.L.C., a
Delaware Limited liability company
18
By: ElderTrust Operating Limited
Partnership, sole member
By: ElderTrust, general partner
By:______________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
STATE OF _____________)
) ss
COUNTY OF ____________)
On this ____ day of August, 2002, before me personally appeared
▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., who acknowledged himself to be the President and
CEO of ElderTrust, general partner of ElderTrust Operating Limited
Partnership, sole member of ET Sub-Phillipsburg I, L.L.C., a Delaware
limited liability company, and that he, as such officer, being
authorized to do so, executed the foregoing instrument for the
purposes therein contained by signing the name of the company by
himself as such officer.
_____________________________________
Name:
(Notarial Seal) Notary Public
My Commission Expires:
19
EXHIBIT A
Legal Description of Property
EXHIBIT J
OFFICER'S SOLVENCY CERTIFICATE
I, the undersigned, the Chief Executive Officer of ElderTrust, a
real estate investment trust organized and existing under the laws of
the State of Maryland (the "REIT"), do hereby certify on behalf of the
REIT that:
1. This Certificate is furnished pursuant to Section 4.14 of the
Amended and Restated Credit Agreement, dated as of August 30, 2002, among
the REIT, ElderTrust Operating Limited Partnership, a Delaware limited
partnership (the "Borrower"), the lenders from time to time party thereto,
and Wachovia Bank, National Association, as Administrative Agent (such
Amended and Restated Credit Agreement, as in effect on the date of this
Certificate, being herein called the "Credit Agreement"). Unless
otherwise defined herein, capitalized terms used in this Certificate
shall have the meanings set forth in the Credit Agreement.
2. For purposes of this Certificate, the terms below shall have the
following definitions:
(a) "Fair Value"
The amount at which the assets, in their entirety, of each of
(i) the REIT and its Subsidiaries (taken as a whole) and (ii)
the Borrower (on a stand-alone basis) would change hands
between a willing buyer and a willing seller, within a
commercially reasonable period of time, each having reasonable
knowledge of the relevant facts, with neither being under any
compulsion to act.
(b) "Present Fair Salable Value"
The amount that could be obtained by an independent willing
seller from an independent willing buyer if the assets of
each of (i) the REIT and its Subsidiaries (taken as a whole)
and (ii) the Borrower (on a stand-alone basis) are sold with
reasonable promptness under normal selling conditions in a
current market.
(c) "New Financing"
The indebtedness incurred or to be incurred by the REIT and its
Subsidiaries under the Credit Documents and all other financing
contemplated by the Credit Documents.
(d) "Stated Liabilities"
The recorded liabilities (including Contingent Liabilities that
would be recorded in accordance with GAAP consistently applied)
of the REIT, and its Subsidiaries at ___________, 2002, together
with (i) the net change in long-term debt (including current
maturities) between ___________, 2002 and the date hereof and
(ii) without duplication, the amount of all New Financing.
(e) "Contingent Liabilities"
The maximum estimated amount of liability reasonably likely
to result from pending litigation, asserted claims and
assessments, guaranties, uninsured risks and other contingent
liabilities of the REIT and its Subsidiaries (exclusive of
such Contingent Liabilities to the extent reflected in Stated
Liabilities).
(f) "Will be able to pay its Stated Liabilities, including
Contingent Liabilities, as they mature."
For the period from the date hereof through the stated
maturity of all New Financing, each of (i) the REIT and its
Subsidiaries (taken as a whole) and (ii) the Borrower (on a
stand-alone basis) will have sufficient assets and cash flow
to pay their respective Stated Liabilities and Contingent
Liabilities as those liabilities mature or otherwise become
due.
(g) "Does not have Unreasonably Small Capital"
For the period from the date hereof through the stated
maturity of all New Financing, each of (i) the REIT and its
Subsidiaries (taken as a whole) and (ii) the Borrower (on
a stand-alone basis), after consummation of all Indebtedness
(including the Loans) being incurred or assumed and Liens
created by the REIT and its Subsidiaries in connection
therewith, is a going concern and has sufficient capital
to ensure that it will continue to be a going concern for
such period and to remain a going concern despite moderately
negative deviations from the Projections discussed below.
3. For purposes of this Certificate, I, or officers of the REIT
and the Borrower under my direction and supervision, have performed
the following procedures as of and for the periods set forth below.
(a) I have reviewed the financial statements and Projections
referred to in Sections 4.15 and 6.05 of the Credit
Agreement.
(b) I have read:
1. the Credit Documents and the respective Schedules and
Exhibits thereto.
(c) With respect to Contingent Liabilities, I:
1. inquired of certain officials of the REIT and its
Subsidiaries who have responsibility for legal,
financial and accounting matters as to the existence
and estimated liability with respect to all Contingent
Liabilities known to them;
2. confirmed with senior officers of the REIT and its
Subsidiaries that, to the best of such officers'
knowledge, (i) all appropriate items were included in
Stated Liabilities or Contingent Liabilities made known
to me in the course of my inquiry and that (ii) the
amounts relating thereto were the estimated amount of
liability reasonably likely to result therefrom as of
the date hereof;
2
3. I hereby certify that, to the best of my knowledge, all
material Contingent Liabilities have been considered in
making the certification set forth in paragraph 4 below,
and with respect to each such Contingent Liability the
estimated amount of liability reasonably likely to result
therefrom was used in making such certification.
(a) I have made inquiries of certain officers of the REIT and its
Subsidiaries which have responsibility for financial reporting and
accounting matters regarding whether they were aware of any events or
conditions that, as of the date hereof, would cause each of (i) the
REIT and its Subsidiaries (taken as whole) or (ii) the Borrower (on a
stand-alone basis) after giving effect to the financing transactions
(including the incurrence of the New Financing), to (x) have assets
with a Fair Value or Present Fair Salable Value that are less than the
sum of Stated Liabilities and Contingent Liabilities; (y) have
Unreasonably Small Capital; or (z) not be able to pay its Stated
Liabilities and Contingent Liabilities as they mature or otherwise
become due.
4. Based on and subject to the foregoing, I hereby certify on
behalf of the REIT that, after giving effect to the financing
transactions (including the New Financing), it is my informed opinion
that as of the date hereof (x) the Fair Value and Present Fair Salable
Value of the assets of each of (i) the REIT and its Subsidiaries (taken
as a whole) and (ii) the Borrower (on a stand-alone basis) exceed their
respective Stated Liabilities and Contingent Liabilities; (y) each of
(i) the REIT and its Subsidiaries (taken as a whole) and (ii) the
Borrower (on a stand-alone basis) will not have Unreasonably Small
Capital; and (z) each of (i) the REIT and its Subsidiaries (taken as a
whole) and (ii) the Borrower (on a stand-alone basis) will be able to
pay each of their respective Stated Liabilities and Contingent
Liabilities as they mature or otherwise become due.
IN WITNESS WHEREOF, the REIT has caused its duly authorized chief
accounting officer to execute and deliver this Certificate this _______
day of August, 2002.
ELDERTRUST OPERATING LIMITED
PARTNERSHIP
By____________________________
Name: ▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
3
EXHIBIT L
ELDERTRUST OPERATING LIMITED PARTNERSHIP
BORROWING BASE AVAILABILITY CERTIFICATE
The Borrowing Base Availability for the fiscal quarter ended ___________,
200_, is determined as the lesser of A) 50% of the Appraised Value
("App. Value") and B) 60% of the Capitalized Adjusted Net Operating
Income ("Cap. Value"). The Adj. NOI is determined as the net operating
income of a Borrowing Base Property for the fiscal quarter most recently
ended annualized less Reserves, the sum of which divided by the
Capitalization Rate. The Reserves are defined to be $300 per bed per
annum. The Capitalization Rate is defined as 11.5%.
Method A Method B
---------------------- ---------------------
Property Name App. Value Adv. Amt Cap. Value Adv. Amt. BB Availability
------------- ---------- -------- ---------- --------- ---------------
Berkshire Commons
Lehigh Commons
Sanatoga Court
Phillipsburg
Heritage ▇▇▇▇▇
Willowbrook
▇▇▇▇▇▇▇▇▇▇▇
Total
EXHIBIT M-1
ELDERTRUST OPERATING LIMITED PARTNERSHIP
QUARTERLY BORROWING BASE PROPERTY FINANCIAL REPORT
To the Administrative Agent and each of the Banks party to the Amended
and Restated Credit Agreement, dated as of Agusut 30, 2002 among
ElderTrust, ElderTrust Operating Limited Partnership, the lenders from
time to time party thereto, and Wachovia Bank, National Association, as
Administrative Agent.
The Operating Statement for [identify Borrowing Base Property]
attached hereto, which covers the period from ________ to __________,
is true and correct in all material respects to the best of my
knowledge.
Sincerely,
NOTE: The Operating Statement should be in form of, and provide the
information as set forth in, the operating statements for the Borrowing
Base Properties provided by the Borrower to the Administrative Agent
prior to the Effective Date.
EXHIBIT N
ELDERTRUST OPERATING LIMITED PARTNERSHIP
QUARTERLY CASH FLOW REPORT
To the Administrative Agent and each of the Banks party to the Amended
and Restated Credit Agreement, dated as of August 30, 2002, among
ElderTrust, ElderTrust Operating Limited Partnership, the lenders from
time to time party thereto, and Wachovia Bank, National Association, as
Administrative Agent.
EBITDA
Operating profit $
Depreciation and amortization
Interest income
Corporate expenses
Other non-cash charges
EBITDA
Cash interest payments $
FF&E - existing properties
Capex - new units
Cash taxes
Debt maturities, net of new issuances
Debt prepayments
Dividends
Dispositions
Acquisitions
Changes in other operating accounts
NET CASH FLOW
This Cash Flow Report is for ElderTrust, the Borrower and its
Subsidiaries on a consolidated basis for the period ending __________,
is true and correct in all material respects to the best of my knowledge.
Sincerely,
EXHIBIT O
Subordination Provisions to be attached
to each Intercompany Note evidencing
a loan made by a Subsidiary Guarantor
that is not a Wholly-Owned Subsidiary
Section 1.01. Subordination of Liabilities. _________________
(the "Company"), for itself, its successors and assigns, covenants and
agrees, and each holder of the Intercompany Note to which this Annex A
is attached (the "Note") by its acceptance thereof likewise covenants
and agrees, that the payment of the principal of, interest on, and all
other amounts owing in respect of, the Note (the "Subordinated
Indebtedness") is hereby expressly subordinated, to the extent and in
the manner hereinafter set forth, to the prior payment in full in
cash of all Senior Indebtedness (as defined in Section 1.07 hereof).
The provisions of this Annex A shall constitute a continuing offer to
all persons who, in reliance upon such provisions, become holders of,
or continue to hold, Senior Indebtedness, and such provisions are made
for the benefit of the holders of Senior Indebtedness, and such holders
are hereby made obligees hereunder the same as if their names were
written herein as such, and they and/or each of them may proceed to
enforce such provisions.
Section 1.02. Company not to Make Payments with Respect to
Subordinated Indebtedness in Certain Circumstances. (a) Upon the
maturity of any Senior Indebtedness (including interest thereon or
fees or any other amounts owing in respect thereof), whether at stated
maturity, by acceleration or otherwise, all Obligations (as defined in
Section 1.07 hereof) owing in respect of such Senior Indebtedness, in
each case to the extent due and owing, shall first be paid in full in
cash, before any payment of any kind or character, whether in cash,
property, securities or otherwise, is made on account of the
Subordinated Indebtedness.
(b) If any default or event of default under the Credit Agreement
(as defined in Section 1.07 hereof) is then in existence or would result
therefrom, the Company may not, directly or indirectly, make any payment
of any Subordinated Indebtedness and may not acquire any Subordinated
Indebtedness for cash or property until all Senior Indebtedness has been
paid in full in cash. Each holder of the Note hereby agrees that, so
long as any such default or event of default exists, it will not sue
for, or otherwise take any action to enforce the Company's obligations
to pay, amounts owing in respect of the Note.
(c) In the event that notwithstanding the provisions of the
preceding subsections (a) and (b) of this Section 1.02, the Company
shall make any payment on account of the Subordinated Indebtedness at a
time when payment is not permitted by said subsection (a) or (b), such
payment shall be held by the holder of the Note, in trust for the benefit
of, and shall be paid forthwith over and delivered to, the holders of
Senior Indebtedness or their representative or the trustee under the
indenture or other agreement pursuant to which any instruments evidencing
any Senior Indebtedness may have been issued, as their respective
interests may appear, for application pro rata to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all
Senior Indebtedness in full in cash in accordance with the terms of such
Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness. Without in
any way modifying the provisions hereof or affecting the subordination
effected hereby if the hereafter referenced notice is not given, the
Company shall give the holder of the Note prompt written notice of any
event which would prevent payments under Section 1.02(a) or (b) hereof.
Section 1.03. Subordination to Prior Payment of all Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Company.
Upon any distribution of assets of the Company upon dissolution, winding
up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the
benefit of creditors or otherwise):
(a) the holders of all Senior Indebtedness shall first be entitled
to receive payment in full in cash of all Senior Indebtedness (including,
without limitation, post-petition interest at the rate (including the
default rate) provided in the documentation with respect to the Senior
Indebtedness, whether or not such post-petition interest is an allowed
claim against the debtor in any bankruptcy or similar proceeding) before
the holder of the Note is entitled to receive any payment of any kind
or character on account of the Subordinated Indebtedness;
(b) any payment or distributions of assets of the Company of any
kind or character, whether in cash, property or securities to which the
holder of the Note would be entitled except for the provisions hereof,
shall be paid by the liquidating trustee or agent or other person making
such payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or other trustee or agent, directly to the holders
of Senior Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness may have been issued, to the
extent necessary to make payment in full in cash of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness; and
(c) In the event that, notwithstanding the foregoing provisions
of this Section 1.03, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, shall be received by the holder of the Note on account
of Subordinated Indebtedness before all Senior Indebtedness is paid
in full in cash, such payment or distribution shall be received and
held in trust for and shall be paid over to the holders of the Senior
Indebtedness remaining unpaid or unprovided for or their representative
or representatives, or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Indebtedness
may have been issued, for application to the payment of such Senior
Indebtedness until all such Senior Indebtedness shall have been paid in
full in cash, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
2
Without in any way modifying the provisions hereof or affecting
the subordination effected hereby if the hereafter referenced notice
is not given, the Company shall give prompt written notice to the
holder of the Note of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon assignment for the benefit of
creditors or otherwise).
Section 1.04. Subrogation. Subject to the prior payment in full
in cash of all Senior Indebtedness, the holder of the Note shall be
subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of assets of the Company applicable
to the Senior Indebtedness until all amounts owing on the Note shall be
paid in full, and for the purpose of such subrogation no payments or
distributions to the holders of the Senior Indebtedness by or on behalf
of the Company or by or on behalf of the holder of the Note by virtue
hereof which otherwise would have been made to the holder of the Note
shall, as between the Company, its creditors other than the holders of
Senior Indebtedness, and the holder of the Note, be deemed to be payment
by the Company to or on account of the Senior Indebtedness, it being
understood that the provisions hereof are and are intended solely for
the purpose of defining the relative rights of the holder of the Note,
on the one hand, and the holders of the Senior Indebtedness, on the
other hand.
Section 1.05. Obligation of the Company Unconditional. Nothing
contained herein or in the Note is intended to or shall impair, as
between the Company and the holder of the Note, the obligation of the
Company, which is absolute and unconditional, to pay to the holder of
the Note the principal of and interest on the Note as and when the same
shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holder of the
Note and creditors of the Company other than the holders of the Senior
Indebtedness, nor, except as specifically provided herein, shall
anything herein or therein prevent the holder of the Note from
exercising all remedies otherwise permitted by applicable law upon
an event of default under the Note, subject to the rights, if any,
herein of the holders of Senior Indebtedness in respect of cash,
property, or securities of the Company received upon the exercise
of any such remedy. Upon any distribution of assets of the Company
referred to herein, the holder of the Note shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction
in which such dissolution, winding up, liquidation or reorganization
proceedings are pending, or a certificate of the liquidating trustee
or agent or other person making any distribution to the holder of the
Note, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or hereof.
Section 1.06. Subordination Rights not Impaired by Acts or
Omissions of Company or Holders of Senior Indebtedness. No right of
any present or future holders of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act by any such holder, or by
any noncompliance by the Company with the terms and provisions of the
Note, regardless of any knowledge thereof which any such holder may have
or be otherwise charged with. The holders of the Senior Indebtedness
may, without in any way affecting the obligations of the holder of the
3
Note with respect hereto, at any time or from time to time and in their
absolute discretion, change the manner, place or terms of payment of,
change or extend the time of payment of, or renew or alter, any Senior
Indebtedness or amend, modify or supplement any agreement or instrument
governing or evidencing such Senior Indebtedness or any other document
referred to therein, or exercise or refrain from exercising any other
of their rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder and the release of any
collateral securing such Senior Indebtedness, all without notice
to or assent from the holder of the Note.
Section 1.07. Senior Indebtedness. The term "Senior Indebtedness"
shall mean all Obligations (as defined below) of the Company under the
Subsidiaries Guaranty (as amended, modified, supplemented, extended,
restated, refinanced, replaced or refunded from time to time) dated as
of August __, 2002, among the Company and the other Subsidiary Guarantors
party thereto as defined in the Amended and Restated Credit Agreement
(as amended, modified, supplemented, extended, restated, refinanced,
replaced or referenced from time, the "Credit Agreement"), dated as of
August __, 2002, by and among ElderTrust, ElderTrust Operating Limited
Partnership, the lenders from time to time party thereto, and Wachovia
Bank, National Association, as Administrative Agent (the "Agent"). As
used herein, the term "Obligation" shall mean any principal, interest,
premium, penalties, fees, expenses, indemnities and other liabilities
and obligations (including guaranties in respect thereof) payable under
the documentation governing any Senior Indebtedness (including interest
accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided for in the
respective documentation, whether or not such interest is an allowed
claim against the debtor in any such proceeding).
4
EXHIBIT P
ASSIGNMENT AND ASSUMPTION AGREEMENT
Date: __________, 20__
Reference is made to the Credit Agreement described in Item 2 of
Annex I hereto (as such Credit Agreement may hereafter be amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement"). Unless defined in Annex I hereto, terms defined in the
Credit Agreement are used herein as therein defined. ___________
(the "Assignor") and __________ (the "Assignee") hereby agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee without
recourse and without representation or warranty (other than as expressly
provided herein), and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the date hereof which
represents the percentage interest specified in Item 4 of Annex I
hereto (the "Assigned Share") of all of the outstanding rights and
obligations under the Credit Agreement; including, without limitation,
all rights and obligations with respect to the Assigned Share of the
Total Commitment (if not theretofore terminated) and all outstanding
Loans.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes
no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with the Credit Agreement or the other Credit Documents or
any other instrument or document furnished pursuant thereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or the other Credit Documents or any
other instrument or document furnished pursuant thereto; and (iii) makes
no representation or warranty and assumes no responsibility with respect
to the financial condition of any Credit Party or the performance or
observance by any Credit Party of any of its obligations under the
Credit Agreement or the other Credit Documents to which it is a party
or any other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement and the other Credit Documents, together with copies
of the financial statements referred to therein and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption
Agreement; (ii) agrees that it will, independently and without reliance
upon the Administrative Agent, the Assignor or any other Bank and based
on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (iii) confirms that it is an Eligible
Transferee under Section 12.04(b) of the Credit Agreement; (iv) appoints
and authorizes each Agent to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement and the other Credit
Documents as are delegated to such Agent, by the terms thereof, together
with such powers as are reasonably incidental thereto; [and] (v) agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement are required to be performed by
it as a Bank[; and (vi) to the extent legally entitled to do so, attaches
the forms described in Section 12.04(b) of the Credit Agreement]. (5)
4. Following the execution of this Assignment and Assumption
Agreement by the Assignor and the Assignee, an executed original hereof
(together with all attachments) will be delivered to the Administrative
Agent. The effective date of this Assignment and Assumption Agreement
shall be the date of execution hereof by the Assignor and the Assignee,
the receipt of the consent of the Administrative Agent to the extent
required by Section 12.04(b) of the Credit Agreement, the receipt by the
Administrative Agent of the administrative fee referred to in such
Section 12.04(b) and the recordation of the assignment effected hereby
on the Register by the Administrative Agent as provided in Section 12.16
of the Credit Agreement, or such later date, if any, which may be
specified in Item 5 of Annex I hereto (the "Settlement Date").
5. Upon the delivery of a fully executed original hereof to the
Administrative Agent, as of the Settlement Date, (i) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Assumption Agreement, have the rights and obligations of
a Bank thereunder and under the other Credit Documents and (ii) the
Assignor shall, to the extent provided in this Assignment and Assumption
Agreement, relinquish its rights (except in respect of Sections 1.10,
3.04 and 12.01 of the Credit Agreement for the period prior to the
Settlement Date) and be released from its obligations under the Credit
Agreement and the other Credit Documents.
6. It is agreed that the Assignee shall be entitled to (x) all
interest on the Assigned Share of the Loans at the rates specified in
Item 6 of Annex I hereto and (y) all Commitment Commission on the
Assigned Share of the Total Commitment (if not theretofore terminated)
at the rate specified in Item 7 of Annex I hereto, which, in each case,
accrue on and after the Settlement Date, such interest and, if applicable,
Commitment Commission, to be paid by the Administrative Agent directly
to the Assignee. It is further agreed that all payments of principal made
on the Assigned Share of the Loans which occur on and after the Settlement
Date will be paid directly by the Administrative Agent to the Assignee.
Upon the Settlement Date, the Assignee shall pay to the Assignor an amount
specified by the Assignor in writing which represents the Assigned Share
of the principal amount of the respective Loans pursuant to the Credit
Agreement which are outstanding on the Settlement Date. The Assignor and
the Assignee shall make all appropriate adjustments in payments under the
Credit Agreement for periods prior to the Settlement Date directly between
themselves.
(5) Include if the Assignee is organized under the laws of a jurisdiction
outside of the United States.
2
7. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Assignment and
Assumption Agreement, as of the date first above written, such execution
also being made on Annex I hereto.
Accepted this _____ day [NAME OF ASSIGNOR]
of ____________, ____ as Assignor
By__________________________
Title:
[NAME OF ASSIGNEE]
as Assignee
By__________________________
Title:
Consented to as of _________ ___, ____.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By________________________________ (6)
Name:
Title:
By________________________________
Name:
Title:
(6) The consent of the Administrative Agent is required for assignments
pursuant to Section 12.04(b)(y) of the Credit Agreement.
3
▇▇▇▇▇ FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
ANNEX I
1. Borrower: ElderTrust Operating Limited Partnership
2. Name and Date of Credit Agreement:
Amended and Restated Credit Agreement, dated as of August __, 2002,
among ElderTrust, ElderTrust Operating Limited Partnership, the
Banks from time to time party thereto, and Wachovia Bank, National
Association, as Administrative Agent, as amended to the date hereof.
3. Date of Assignment Agreement:
4. Amounts (as of date of item #3 above):
[Assigned Commitment](7) Outstanding Principal of Loans
a. Aggregate Amount for all Banks
$________ $________
b. Assigned Share (8)
________% ________%
c. Amount of Assigned Share
$________ ________%
5. Settlement Date:
6. Rate of Interest
to the Assignee: As set forth in Section 1.08 of the
Credit Agreement (unless otherwise
agreed to by the Assignor and the
Assignee) (9)
7. Commitment As set forth in Section 2.01(a) of the
Credit Agreement (unless otherwise
agreed to by the Assignor and the
Assignee) (10)
(7) For assignments made prior to the termination of the ▇▇▇▇ Commitment.
(8) Percentage taken to 12 decimal places.
(9) The Borrower and the Administrative Agent shall direct the entire
amount of the interest to the Assignee at the rate set forth in
Section 1.08 of the Credit Agreement, with the Assignor and Assignee
effecting the agreed upon sharing of the interest through payments
by the Assignee to the Assignor.
8. Notice:
ASSIGNOR:
_____________________
_____________________
_____________________
_____________________
Attention:
Telephone:
Telecopier:
Reference:
ASSIGNEE:
_____________________
_____________________
_____________________
_____________________
Attention:
Telephone:
Telecopier:
Reference:
Payment Instructions:
ASSIGNOR:
_____________________
_____________________
_____________________
_____________________
Attention:
Reference:
(10) Insert "Not Applicable" in lieu of text if the Total Commitment
has beenterminated. Otherwise, the Borrower and the
Administrative Agent shall direct the entire amount of the
Commitment Commission to the Assignee at the rate set forth in
[Section 2.01(a)] of the Credit Agreement, with the Assignor
and the Assignee effecting the agreed upon sharing of Committment
Commission through payment by the Assignee to the Assignor.
2
ASSIGNEE:
_____________________
_____________________
_____________________
_____________________
Attention:
Reference:
Accepted and Agreed:
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By By
(Print Name and Title) (Print Name and Title)
3
EXHIBIT R
FORM OF COMPLETION CERTIFICATE
This Certificate is delivered pursuant to Section 7.16(f) of the
Amended and Restated Credit Agreement, dated as of August __, 2002
among ElderTrust, ElderTrust Operating Limited Partnership (the
"Borrower"), the lending institutions party thereto (the "Banks"),
and Wachovia Bank, National Association, as Administrative Agent
(as amended, restated, supplemented or otherwise modified to the date
hereof, the "Credit Agreement"). All capitalized terms used herein and
not otherwise defined herein shall have the meanings ascribed to such
terms in the Credit Agreement.
The undersigned, to the best of [his] or [her] knowledge, does
hereby certify that with respect to the [Renovation/Restoration] of
[SPECIFY PROPERTY] (the "Property"):
(i) all work required to be performed at or about the Property
to complete the [Renovation/Restoration], including all punch list
items, has been performed in substantial accordance with the approved
plans and specifications and otherwise in accordance with the
provisions of the Credit Agreement;
(ii) all necessary inspections by all applicable governmental
authorities for the use, occupancy and operation of the Improvements
at the Property have been satisfactorily completed; and
(iii) a permanent certificate of occupancy for the entire
Improvements and all other certificates, licenses, permits and
approvals necessary for the use, occupancy and operation of the
Property as a [senior living care facility] [medical office building]
have been issued, and the Improvements are undamaged and available
for regular use, occupancy and operation.
DATED:
[NAME OF ARCHITECT/ENGINEER]
By:___________________________
Name:
Title:
