Exhibit 10.2
This instrument prepared by
and when recorded return to:
Xxxxxx X. Xxxxx, Esq.
Bilzin Xxxxxxx Xxxx Price & Xxxxxxx LLP
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-2336
________________________________________________________________________________
(Space Above For Recorder's Use Only)
NOTE AND DEED OF TRUST MODIFICATION
AND ASSUMPTION AGREEMENT
------------------------
(DLJ 1996-CF1)
(Loan No. 9690381)
THIS AGREEMENT ("Agreement") dated as of ____________, 1998, is
---------
entered into among LASALLE NATIONAL BANK, AS TRUSTEE FOR THE REGISTERED HOLDERS
OF DLJ MORTGAGE ACCEPTANCE CORP., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-CF1 ("Lender"), having an address at 000 XxXxxxx Xxxxxx, Xxxxx 0000,
------
Xxxxxxx, Xxxxxxxx 00000, Attn: Xxxxx Xxxxxx; DLJ 1996-CF1; Loan No. 9690381;
ATRIUM VENTURE, a California limited partnership, having an address at 0000-X
Xxxxx Xxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000, Attn.: Xxxxxxx X. Xxxxxxxx
("Original Borrower"); THE ATRIUM OF SAN XXXX LLC, a Delaware limited liability
-----------------
company, having an address at c/o SELCO Service Corp. Keycorp Leasing, 00 Xxxxx
Xxxxxx, Xxxxxx, XX 00000 ("New Borrower") and BROOKDALE LIVING COMMUNITIES OF
------------
CALIFORNIA, INC., a Delaware corporation, having an address at 00 Xxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Xxxxxx X. Xxxxxxxx, Xx.
("Tenant"). New Borrower's taxpayer identification number is 00-0000000.
------
Original Borrower and New Borrower are hereinafter sometimes collectively
referred to as "Borrower Parties."
----------------
PRELIMINARY STATEMENT
---------------------
A. Original Borrower is the current owner of fee title to that
certain real property (the "Land") and the buildings and improvements thereon
----
and the personal property incidental thereto (the "Improvements"), commonly
------------
known as the "The Atrium at San Xxxx" located in the County of Santa Xxxxx,
State of California, more particularly described in EXHIBIT "A" attached hereto
and made a part hereof (the Land and the Improvements are hereinafter sometimes
collectively referred to as the "Project").
-------
X. Xxxxxx is the current owner and holder of a loan ("Loan") in the
----
original principal amount of $18,400,000 evidenced by that certain Promissory
Note dated January 15, 1996 (the Promissory Note, as same may be renewed,
consolidated, replaced, extended, substituted, amended or otherwise modified,
shall hereinafter be referred to as the "Note") made by Original Borrower in
----
favor of Column Financial, Inc., a Delaware corporation ("Original Lender") in
---------------
the principal amount of $18,400,000 and secured by, among other things, (i) that
certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing dated as of January 15, 1996 (the "Deed of Trust") made by Original
-------------
Borrower in favor a trustee for the benefit of Original Lender and encumbering
the Project, recorded on January 18, 1996 in Book P168 at Page 871 in the
Official Records of Santa Xxxxx County, California ("Records"); (ii) that
-------
certain Assignment of Leases and Rents dated as of January 15, 1996 ("Assignment
----------
of Rents") made by Original Borrower in favor of Original Lender, recorded on
--------
January 18, 1996 in Book P168 at Page 939 in the Records; (iii) those certain
UCC-1 Financing Statements ("Financing Statements") reflecting Original
--------------------
Borrower, as Debtor and Original Lender, as Secured Party recorded on January
18, 1996 in Book P168 at Page 950 in the Records and filed on January 19, 1996
with the Office of the Secretary of State of California under File No. 96-
02260434; (iv) that certain Hazardous Substances Indemnity Agreement dated as of
January 15, 1996 ("Environmental Indemnity") made by Original Xxxxxxxx, Xxxxxxx
-----------------------
X. Xxxxxxxx and X. Xxxxx Xxxxxx in favor of Original Lender; and (v) that
certain Indemnity and Guaranty Agreement dated as of January 15, 1996
("Guaranty") made by Xxxxxxx X. Xxxxxxxx and X. Xxxxx Xxxxxx in favor of
--------
Original Lender.
C. The Note, the Deed of Trust, the Assignment of Rents, the Financing
Statements, the Environmental Indemnity, the Guaranty, and any and all other
agreements, documents and instruments evidencing or securing the Loan referred
to in or contemplated by the foregoing specifically enumerated documents shall
hereinafter be collectively referred to as the "Loan Documents."
--------------
D. New Borrower desires to purchase the Project from Original Borrower and
to assume the obligations of Original Borrower under the Loan Documents.
E. New Borrower also desires to lease the entire Project to Tenant
pursuant to the terms of that certain Lease Agreement (the "Lease") dated as of
-----
the date hereof between New Borrower, as Lessor-Owner and Tenant, as Lessee-
Operator.
F. In order to secure its obligations under the Lease, Xxxxxx has executed
and delivered to New Borrower, KCCI and SELCO a Pledge and Security Agreement
(Cash, Cash Equivalents and Investment Property) dated of even date herewith
(the "CD Pledge Agreement") pursuant to which Tenant pledged to New Borrower two
-------------------
certificates of deposits each issued by Fleet National Bank in the aggregate
amount of $6,900,000 (the "CDS") (the CDS, together with any replacements or
---
substitutions thereof and any other collateral pledged pursuant to the CD Pledge
Agreement, the "Supplemental Collateral").
-----------------------
-2-
G. In connection with the purchase of the Project by New Borrower, the 99%
member of New Borrower, SELCO Service Corporation, an Ohio corporation ("SELCO")
-----
will be obtaining a loan (the "A Investor Loan") from Healthcare Realty Trust
---------------
Incorporated, a Maryland corporation ("Healthcare Realty") evidenced by a
-----------------
promissory note (the "A Investor Note") made by SELCO in favor of Healthcare
---------------
Realty and a loan (the "B Investor Loan") from Key Corporate Capital, Inc., a
---------------
Michigan corporation ("KCCI") evidenced by a promissory note (the "B Investor
---- ----------
Note") made by SELCO in favor of KCCI. The A Investor Loan and the B Investor
----
Loan shall be collectively referred to as the "Equity Loans."
------------
H. The A Investor Loan will be secured by a Pledge and Security
Agreement (the "Membership Interest and Stock Pledge Agreement") made by SELCO
----------------------------------------------
in favor of Healthcare Realty pursuant to which SELCO will pledge all of its
membership interest (the "Pledged Interests") in New Borrower and all of its
-----------------
interest in the issued and outstanding stock (the "Pledged Stock") of The Atrium
-------------
at San Xxxx, Inc., the managing member ("Managing Member") of New Borrower to
---------------
Healthcare Realty. XXXXX's entering into the Membership Interest and Stock
Pledge Agreement is prohibited by the terms of the Deed of Trust without the
consent of Lender.
I. The B Investor Loan will be guaranteed by New Borrower pursuant to a
non-recourse guaranty (the "Guaranty") from New Borrower in favor of SELCO and
--------
KCCI, which Guaranty is secured by a pledge and non-recourse assignment to KCCI
and SELCO of all of New Borrower's right, title and interest in and to the CD
Pledge Agreement and the Supplemental Collateral. The Guaranty is prohibited by
the terms of Section 1.33 (d) of the Deed of Trust.
J. The respective rights of SELCO, Healthcare Realty, KCCI and New
Borrower with respect to the Equity Loans, the Pledged Interests, the Pledged
Stock and the Supplemental Collateral are set forth in a Loan and Participation
Agreement (the "Participation Agreement") entered into as of the date hereof
-----------------------
among SELCO, Healthcare Realty, KCCI and New Borrower.
K. The A Investor Note, the B Investor Note, the Membership Interest and
Stock Pledge Agreement, the Participation Agreement and the CD Pledge Agreement
and any and all other agreements, documents and instruments evidencing, securing
or in any manner relating to the Equity Loans shall hereinafter be collectively
referred to as the "Equity Loan Documents."
---------------------
L. A sale of the Project to and the assumption of the Loan by a third
party, the lease of the entire Project to Tenant by New Borrower and the
granting by New Borrower in favor of Tenant of an option to purchase the Project
or the interests of SELCO in New Borrower and Managing Member pursuant to the
terms of the Lease, the Membership Interest and Stock Pledge Agreement and the
Guaranty are all prohibited by the terms of the terms of the Deed of Trust
without the consent or waiver of Lender.
M. The Lender has agreed to consent to (i) Original Borrower selling the
Project to New Borrower, (ii) New Borrower assuming all of Original Borrower's
obligations under the Loan Documents, (iii) New Borrower entering into the Lease
of the entire Project with Tenant and New
-3-
Borrower granting Tenant the option to purchase the Project or the interests of
SELCO in New Borrower and Managing Member pursuant to the terms of the Lease,
(iv) the Membership Interests and Stock Pledge Agreement, and (v) New Borrower
entering into the Guaranty (collectively, the "Requested Actions"), all on the
-----------------
terms and conditions hereinafter set forth.
In consideration of $10.00 paid by each of the parties to the other, the
mutual covenants set forth below, and other good and valuable consideration,
receipt and sufficiency of which are acknowledged, the parties agree as follows:
1
-
ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS
-----------------------------------------------
1.1 ORIGINAL BORROWER REPRESENTATIONS. As a material inducement to Lender
---------------------------------
to enter into this Agreement and to consent to the Requested Actions, Original
Borrower acknowledges, warrants, represents and agrees to and with Xxxxxx as
follows:
(a) Authority of Original Borrower. Original Borrower is a duly
------------------------------
organized, validly existing limited partnership in good standing under the laws
of the State of California. Congregate Communities Corporation, a California
corporation is the only general partner of Original Borrower ("Original Borrower
-----------------
General Partner"). The execution, delivery, and performance of this Agreement
---------------
by Original Borrower has been duly and properly authorized pursuant to all
requisite partnership action. Original Borrower General Partner acting alone
without the joinder of any other partner of Original Borrower or any other party
has the power and authority to execute this Agreement on behalf of Original
Borrower and to duly bind Original Borrower under this Agreement. The
execution, delivery and performance of this Agreement by Original Borrower does
not and will not (i) violate any provision of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award presently in effect
having applicability to Original Borrower or the limited partnership agreement
of Original Borrower or (ii) result in a breach or constitute or cause a default
under any indenture, agreement, lease or instrument to which Original Borrower
is a party or by which the Project may be bound or affected.
(b) Authority of Original Borrower General Partner. Original Borrower
----------------------------------------------
General Partner is a duly organized, validly existing corporation in good
standing under the laws of the State of California. The execution and delivery
of, and performance under, this Agreement by Original Borrower General Partner
as general partner and on behalf of Original Borrower has been duly and properly
authorized pursuant to all requisite corporate action. Xxxxxxx X. Xxxxxxxx,
acting alone without the joinder of any other officer or director of Original
Borrower General Partner has the power and authority to execute this Agreement
on behalf of and to duly bind Original Borrower under this Agreement. The
execution, delivery or performance of this Agreement by Original Borrower
General Partner will not (i) violate any provision of any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award presently in
effect having applicability to Original Borrower General Partner or the articles
of incorporation or by-laws of Original Borrower General Partner or (ii) result
in a breach of or constitute or cause a default under any indenture,
-4-
agreement, lease or instrument to which Original Borrower General Partner is a
party or by which the Project may be bound or affected.
(c) Compliance with Laws. Original Borrower has not received any
--------------------
written notice from any governmental entity claiming that Original Borrower or
the Project is not presently in compliance with any laws, ordinances, rules and
regulations bearing upon the use and operation of the Project, including,
without limitation, any notice relating to zoning laws or building codes or
regulations.
(d) Rent Roll. The Rent Roll ("Rent Roll") attached hereto and made a
--------- ---------
part hereof as EXHIBIT "B" is a true, complete and accurate summary of all
tenant leases affecting the Project as of the date of this Agreement.
(e) Title to Project and Legal Proceedings. Original Borrower is the
--------------------------------------
current owner of fee title in the Project. Except for the action pending
against New Borrower and other parties in the Santa Xxxxx Superior Court, styled
Xxxxxx v. Floral Spectrum, Xxxxxx XxXxxxxx, individually and d/b/a Floral
-------------------------------------------------------------------------
Spectrum, Xxxxxxx XxXxxxxx individually and d/b/a Floral Spectrum, The Atrium
-----------------------------------------------------------------------------
and Does 1 to 20 under Case No. CV769755 (the "Pending Action"), there are no
---------------- --------------
pending or, to the best of Original Borrower's knowledge, threatened suits,
judgments, arbitration proceedings, administrative claims, executions or other
legal or equitable actions or proceedings against Original Borrower or the
Original Borrower General Partner or the Project, or any pending or threatened
condemnation proceedings or annexation proceedings affecting the Project, or any
agreements to convey any portion of the Project, or any rights thereto to any
person or entity not disclosed in this Agreement, including, without limitation,
any government or governmental agency.
(f) Seismic Repair. Original Borrower has completed all items of
--------------
Seismic Repair work identified in the Report of Seismic Design Consultants, Inc.
dated November 27, 1995 (Job Number 00-00-00-00). In connection with the
foregoing, Original Xxxxxx has released and paid to and Original Borrower has
received the $1,250.00 held back at the Loan closing for completion of such
work.
1.2 ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS OF NEW BORROWER. As a
---------------------------------------------------------------
material inducement to Lender to enter into this Agreement and to consent to the
Requested Actions, New Borrower acknowledges, warrants, represents and agrees to
and with Xxxxxx as follows:
(a) Authority of New Borrower. New Borrower is a duly organized,
-------------------------
validly existing limited liability company in good standing under the laws of
the State of Delaware and is authorized to transact business under the laws of
the State of California. The only members of Borrower are SELCO and the
Managing Member. The execution and delivery of, and performance under, this
Agreement by New Borrower has been duly and properly authorized pursuant to all
requisite limited liability company action. The Managing Member, acting alone
without the joinder of any other member or other officer or director of New
Borrower or any other party has the power
-5-
and authority to execute this Agreement on behalf of and to duly bind New
Borrower under this Agreement and the Loan Documents. Neither the execution,
delivery or performance of this Agreement nor the performance under the Loan
Documents by New Borrower will (i) violate any provision of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to New Borrower or the limited
liability company agreement of New Borrower or (ii) result in a breach of or
constitute or cause a default under any indenture, agreement, lease or
instrument to which New Borrower is a party or by which the Project may be bound
or affected.
(b) Authority of Managing Member. Managing Member is a duly
----------------------------
organized, validly existing corporation in good standing under the laws of the
State of Delaware. The execution and delivery of, and performance under, this
Agreement by Managing Member and on behalf of New Borrower has been duly and
properly authorized pursuant to all requisite corporate action.
________________ acting alone without the joinder of any other officer or
director of Managing Member has the power and authority to execute this
Agreement on behalf of and to duly bind New Borrower under this Agreement. The
execution, delivery or performance of this Agreement by Managing Member will not
(i) violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to Managing Member or the articles of incorporation or by-laws of
Managing Member or (ii) result in a breach of or constitute or cause a default
under any indenture, agreement, lease or instrument to which Managing Member is
a party or by which the Project may be bound or affected.
(c) Pledge of Interests. Except for XXXXX's pledge of the Pledged
-------------------
Interests and the Pledged Stock to Healthcare Realty, and except for the
transfers described in Sections 3.3 and 3.4 hereof, neither SELCO nor the
Managing Member has pledged, sold, conveyed or otherwise encumbered or
transferred their membership interests in New Borrower or the stock of Managing
Member and will not pledge, sell, convey or otherwise encumber or transfer their
membership interest in New Borrower or the stock of Managing Member without the
consent of Lender in accordance with and as required by Section 1.13 of the Deed
of Trust.
(d) Financial Statements. The financial statements and other
--------------------
information regarding SELCO and Healthcare Realty (collectively, the "Financial
---------
Statements") which have been previously delivered to Lender are true, complete
----------
and accurate in every material respect and accurately represent the financial
condition of SELCO through March 31, 1998, and Healthcare Realty through the
first quarter of 1998. There has not been any material adverse change to the
financial condition of SELCO or Healthcare Realty between the dates of the
Financial Statements and the date of this Agreement. SELCO, Healthcare Realty
and New Borrower acknowledge that the Financial Statements have been provided to
Lender to induce Lender to enter into this Agreement and are being relied upon
by Lender for such purposes.
(e) Assets of New Borrower. The only assets of New Borrower are the
----------------------
Project, cash and the CDs pledged to it by Xxxxxx described in and pursuant to
the CD Pledge Agreement.
-6-
(f) No Default. Neither New Borrower nor SELCO is in default and
----------
neither New Borrower nor SELCO has received notice of default from Tenant under
the Lease or from Healthcare Realty or KCCI under any of the Equity Loan
Documents.
(g) Bankruptcy. New Borrower covenants and agrees that in the event
----------
the Project or any portion thereof or interest therein becomes the property of
any bankruptcy estate or the subject of any proceeding for relief, protection,
reorganization, liquidation, dissolution or similar relief for debtors under any
local, state, federal or other insolvency law or laws providing relief for
debtors, then Lender shall immediately become entitled, in addition to other
relief to which Lender may be entitled under this Agreement, the Loan Documents,
in equity or at law, and without further notice or action of any kind, to obtain
(i) an order from the bankruptcy court granting immediate relief from the
automatic stay pursuant to Section 362 of the Bankruptcy Code so as to permit
Lender to foreclose upon the Project, and to exercise all other rights and
remedies of Lender, under Loan Documents, this Agreement, in equity or at law,
and (ii) an order from the bankruptcy court prohibiting New Borrower's use of
all "cash collateral" (as defined in Section 363 of the Bankruptcy Code). In
connection with such order for relief, New Borrower shall not allege or contend
(1) that the prior market value of the Project is more than the indebtedness
outstanding under the Loan and evidenced and secured by the Loan Documents as of
said date, and (2) that there is a reasonable likelihood of an effective
reorganization.
(h) New Borrower's Organizational Documents. New Borrower is and
---------------------------------------
will remain in compliance with, and its organizational documents do not conflict
with any of the requirements of Section 1.33 of the Deed of Trust. New Borrower
is not and will not be in violation of any of the terms, covenants, conditions
or other provisions of its organizational documents.
1.3 ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS OF BORROWER PARTIES.
-------------------------------------------------------------------
As a material inducement to Lender to enter into this Agreement and to consent
to the Requested Actions, Original Borrower and to the knowledge of New Borrower
(except as to Sections 1.3(a), 1.3(b) (relating to New Borrower only), as
applicable, and 1.3(c) (relating to New Borrower only) which is not limited to
New Borrower's knowledge), acknowledge, warrant, represent and agree to and with
Lender as follows:
(a) Indebtedness. As of May 5, 1998, the outstanding principal
------------
balance of the Loan which is being assumed by New Borrower is $18,035,397.88.
In addition, the following escrow and reserve balances are being held by Xxxxxx
as of the date hereof: (i) a tax escrow balance of $0; (ii) an insurance escrow
balance of $40,115.91; and (iii) a replacement reserve balance of $57,457.97.
Original Borrower, New Borrower and Xxxxxx acknowledge and agree that Xxxxxx
will continue to hold and disburse the escrow and reserve balances for the
benefit of New Borrower in accordance with the terms of the Loan Documents. By
its execution hereof, Xxxxxx represents and warrants that to Lender's actual
knowledge, (i) the foregoing amounts are correct, (ii) the Loan is not
-7-
in default, (iii) all interest and principal payments due under the Loan
Documents through and including May 1, 1998 have been paid, and (iv) there are
no written amendments to or modifications of the Loan Documents.
(b) Loan Documents. The Loan Documents constitute valid and legally
--------------
binding obligations of Original Borrower and, from and after the date hereof are
valid and legally binding obligations of New Borrower enforceable against New
Borrower and the Project in accordance with their terms except as such
enforceability may be affected by applicable bankruptcy or insolvency laws or
laws affecting the enforcement of creditors' rights or remedies generally.
Borrower Parties have no defenses, setoffs, claims, counterclaims or causes of
action of any kind or nature whatsoever against Lender or any of Lender's
officers, directors, servicers or predecessors in interest with respect to (i)
the Loan, (ii) the Loan Documents, (iii) the "secured indebtedness" or the
"indebtedness secured hereby" (as such term is defined in the Deed of Trust),
(iv) any other documents or instruments now or previously evidencing, securing
or in any way relating to the Loan, (v) the administration or funding of the
Loan or (vi) the development, operation or financing of the Project. To the
extent any of Borrower Parties would be deemed to have any such defenses,
setoffs, claims, counterclaims or causes of action, Borrower Parties waive and
relinquish them. New Borrower and by its execution hereof, Xxxxxx, acknowledge
that they have received copies of all of the Loan Documents. In addition, by
its execution hereof, Tenant consents to New Borrower waiving and relinquishing
any such defenses, setoffs, claims, counterclaims or causes of action.
(c) Further Assurances. Borrower Parties shall execute and deliver to
------------------
Lender such agreements, instruments, documents, financing statements and other
writings as may be reasonably requested from time to time by Xxxxxx to perfect
and to maintain the perfection of Xxxxxx's security interest in and to the
Project, and to consummate the transactions contemplated by or in the Loan
Documents and this Agreement.
1.4 ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS OF TENANT. As a
---------------------------------------------------------
material inducement to Lender to enter into this Agreement and to consent to the
Requested Actions, Tenant acknowledges, warrants, represents and agrees to and
with Lender as follows:
(a) Authority of Tenant. Tenant is a duly organized, validly
-------------------
existing corporation in good standing under the laws of the State of Delaware
and is duly authorized to transact business in the State of California. The
execution and delivery of, and performance under, this Agreement by Xxxxxx has
been duly and properly authorized pursuant to all requisite corporate action.
Any of Xxxx Xxxxxxx, Xxxxxx X. Xxxxxxxx, Xx. or Xxxxx Xxxxxxx acting alone
without the joinder of any other officer or director of Tenant has the power and
authority to execute this Agreement on behalf of and to duly bind Tenant under
this Agreement. The execution, delivery or performance of this Agreement by
Tenant will not (i) violate any provision of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award presently in effect
having applicability to Tenant or the articles or certificate of incorporation
or by-laws of Tenant or (ii) result in a breach of or constitute or cause a
default under any indenture, agreement, lease or instrument to which Tenant is a
party.
-8-
(b) Compliance with Laws. To Tenant's knowledge, all permits,
--------------------
licenses or other evidences of authority to use and operate the Project as it is
presently being operated and as contemplated by the Lease are current, valid and
in full force and effect.
(c) Lease. The Lease is in full force and effect and enforceable in
-----
accordance with its terms; neither Tenant nor, to Tenant's knowledge, New
Borrower is in default in the observance or performance of any condition or
agreement to be observed or performed by Tenant in advance; no Basic Rental or
Additional Rent (as such terms are defined in the Lease) or any other sums due
under the Lease have been waived, released, reduced, discounted or otherwise
discharged or compromised by New Borrower; and Xxxxxx has not received notice of
any other assignment of New Borrower's interest in the Lease.
(d) Payments of Basic Rental and Additional Rental. Tenant agrees to
----------------------------------------------
timely pay and deliver to Lender (or its designee), without any offset,
deduction, defense, abatement, diminution or counterclaim, all components of
Basic Rental and any and all components of Additional Rental or any other sums
due under the Lease which, by its terms, the Lease requires Tenant to pay
directly to Lender, as "Senior Lender" under the Lease. In addition, upon the
receipt by Tenant of a written notice (the "Rent Payment Notice") from Lender or
-------------------
from a receiver for the Project that there has been a default which has not been
cured during any applicable cure period under the Loan Documents notwithstanding
notice to Tenant of such default, and that all components of Basic Rental and
Additional Rental and all other payments due from Tenant under the Lease,
including without limitation, the End of Term Adjustment, the Equity Rental, the
Purchase Price, and the Termination Value are to be paid to Lender or to the
receiver until the Loan has been paid in full, Lessee shall pay to Lender all of
such sums, notwithstanding anything in the Equity Loan Documents or the Lease to
the contrary or any contrary instruction, direction or assertion of New
Borrower. New Borrower irrevocably directs and authorizes Tenant to comply with
any Rent Payment Notice, and New Borrower releases and discharges Tenant from
any liability to New Borrower, on account of such payments. After the Loan has
been paid in full, Lender shall return any excess funds received from Tenant to
New Borrower and the delivery by Lender to New Borrower of any such excess funds
shall be deemed to be a full release of Lender by New Borrower. Neither the
acceptance of the Basic Rental and the Additional Rental or any other payments
due directly to Lender under the Lease nor the delivery by Lender or the
receiver to Tenant of a Rent Payment Notice, or Tenant's compliance therewith
shall operate to place responsibility for the control, care, management or
repair of the Project upon Lender, nor for the performance of any of the terms
and conditions of the Lease, nor shall it operate to make Lender responsible for
any waste committed on the Project by the Tenant, any sub-tenant or any other
party or for any dangerous or defective condition of the Project or for any
negligence in the management, upkeep, repair or control of the Project.
Further, Xxxxxx's acceptance of any sums due under the Lease pursuant to the
Rent Payment Notice or otherwise directly from Tenant shall not affect or
otherwise diminish the indemnity or any other provisions set forth in the
Assignment of Rents except to the extent such sums paid to Lender satisfy the
obligations of New Borrower under the Loan Documents. Tenant shall be entitled
to rely on any Rent Payment Notice. Tenant's compliance with a Rent Payment
-9-
Notice shall not be deemed to violate the Lease. Tenant shall be entitled to
full credit under the Lease for any sums paid to Lender pursuant to a Rent
Payment Notice to the same extent as if such sums were paid directly to New
Borrower, as Owner under the Lease.
(e) Assets of Tenant. The only assets of Tenant are the right to use,
----------------
occupy, operate and purchase the Project pursuant to the Lease, cash and the CDs
which Tenant has pledged to New Borrower pursuant to the CD Pledge Agreement.
(f) No Default. Tenant is not in default and has not received notice
----------
of default from New Borrower under the Lease, the CD Pledge Agreement or any of
the other Equity Loan Documents.
(g) Financial Statements. The financial statements and other
--------------------
information regarding Tenant's Parent (the "Parent Financial Statements") which
---------------------------
have been previously delivered to Lender are true, complete and accurate in
every material respect and accurately represent the financial condition of
Tenant's Parent through December 31, 1997. There has not been any material
adverse change to the financial condition of Tenant or Tenant's Parent between
the dates of the Parent Financial Statements and the date of this Agreement.
Tenant, Xxxxxx's Parent and New Borrower acknowledge that the Parent Financial
Statements have been provided to Lender to induce Lender to enter into this
Agreement and are being relied upon by Lender for such purposes.
(h) Bankruptcy. Tenant covenants and agrees that in the event the
----------
Project or any portion thereof or interest therein becomes the property of any
bankruptcy estate or the subject of any proceeding for relief, protection,
reorganization, liquidation, dissolution or similar relief for debtors under any
local, state, federal or other insolvency law or laws providing relief for
debtors, then Lender shall immediately become entitled, in addition to other
relief to which Lender may be entitled under this Agreement, the Loan Documents,
in equity or at law, and without further notice or action of any kind, to obtain
(i) an order from the bankruptcy court granting immediate relief from the
automatic stay pursuant to Section 362 of the Bankruptcy Code so as to permit
Lender to foreclose upon the Project, and to exercise all other rights and
remedies of Lender, under Loan Documents, this Agreement, in equity or at law,
and (ii) an order from the bankruptcy court prohibiting Tenant's use of all
"cash collateral" (as defined in Section 363 of the Bankruptcy Code). In
connection with such order for relief, Tenant shall not allege or contend (1)
that the prior market value of the Project is more than the indebtedness
outstanding under the Loan and evidenced and secured by the Loan Documents as of
said date, and (2) that there is a reasonable likelihood of an effective
reorganization.
(i) Title to Project and Legal Proceedings. To the best of knowledge
--------------------------------------
of Tenant, except for the Pending Action, there are no pending or threatened
suits, judgments, arbitration proceedings, administrative claims, executions or
other legal or equitable actions or proceedings against Tenant or the Project,
or any pending or threatened condemnation proceedings or annexation proceedings
affecting the Project, or any agreements to convey any portion of the
-10-
Project, or any rights thereto to any person or entity not disclosed in this
Agreement, including, without limitation, any government or governmental agency.
(j) To Tenant's knowledge, the Rent Roll ("Rent Roll") attached
---------
hereto and made a part hereof as EXHIBIT "B" is a true, complete and accurate
summary of all tenant leases affecting the Project as of the date of this
Agreement.
1.5 REAFFIRMATIONS. Original Borrower reaffirms and, to the best of New
--------------
Borrower's knowledge, New Borrower affirms and confirms the truth and accuracy
of all representations and warranties set forth in Section 1.1 of the Deed of
Trust as if made on the date hereof except for the representations made in
Section 1.1 (c) and 1.1 (o) of the Deed of Trust, which Original Borrower
reaffirms is true and accurate as of the date made and not as of the date
hereof. Original Borrower acknowledges and agrees that nothing contained in this
Agreement, nor New Borrower's assumption of Original Borrower's obligations
under the Loan Documents, shall release Original Borrower from the agreements,
obligations, duties, liabilities, covenants and undertakings arising prior to
the date upon which New Borrower acquires title to the Project and assumes the
Loan pursuant to the terms of this Agreement.
2
-
COVENANTS OF BORROWER PARTIES AND TENANT
----------------------------------------
2.1 ASSUMPTION OF LOAN. New Borrower hereby assumes the obligation to
------------------
pay the indebtedness due under the Loan and all of Original Borrower's other
obligations, as grantor, trustor, mortgagor, borrower, indemnitor, guarantor, or
maker, as the case may be, under the Loan Documents to the same extent as if New
Borrower had signed such instruments, rather than Original Borrower. New
Borrower agrees to comply with and be bound by all the terms, covenants and
agreements, conditions and provisions set forth in the Loan Documents.
2.2 LENDER'S COSTS FOR EQUITY LOANS. New Borrower shall pay Lender,
-------------------------------
within ten (10) days of demand, for all costs and expenses incurred by Xxxxxx
during the term of the Loan, including without limitation, reasonable attorney's
fees in connection with Xxxxxx's monitoring, reviewing, or interpreting and
enforcing its rights under the Equity Loan Documents. Any sums due under this
Section, together with any interest thereon if not timely paid, shall be
secured by the Deed of Trust.
2.3 ASSUMPTION FEE. Simultaneously with the execution hereof, Tenant on
--------------
behalf of New Borrower shall pay or cause to be paid to Lender an assumption
fee equal to $7,500.
2.4 CONSENT FEE Simultaneously with the execution hereof, Borrower
-----------
Parties and Tenant shall pay or cause to be paid to Lender a fee for Xxxxxx's
consent to the Requested Actions equal to $180,353.98.
-11-
2.5 RELEASE AND COVENANT NOT TO SUE - ORIGINAL BORROWER. Original
---------------------------------------------------
Borrower, on behalf of itself and all of its heirs, successors and assigns,
remise, release, acquit, satisfy and forever discharge Lender or any of Lender's
predecessors in interest and any subsidiary or affiliate of Lender or any of
Lender's predecessors in interest, and all of the past, present and future
officers, directors, contractors, employees, agents, servicers (including, but
not limited to, Lennar Partners, Inc.), attorneys, representatives,
participants, successors and assigns of Lender and Xxxxxx's predecessors in
interest (collectively, "Lender Parties") from any and all manner of debts,
--------------
accountings, bonds, warranties, representations, covenants, promises, contracts,
controversies, agreements, liabilities, obligations, expenses, damages,
judgments, executions, actions, inactions, claims, demands and causes of action
of any nature whatsoever, at law or in equity, known or unknown, either now
accrued or subsequently maturing, which Original Borrower now has or hereafter
can, shall or may have by reason of any matter, cause or thing, from the
beginning of the world to and including the date of this Agreement, including,
without limitation, matters arising out of or relating to (a) the Loan,
including, but not limited to, its administration or funding, (b) the Loan
Documents, (c) the assumption of the Loan by New Borrower, (d) the consent by
Lender to the Requested Actions, (e) the secured indebtedness described in the
Loan Documents, (f) the Indebtedness described in Section 1.3 hereof, (g) any
other agreement or transaction between any of Borrower Parties and any of Lender
Parties, and (h) the Project or its development, financing and operation.
Original Borrower for itself and all of its successors and assigns, covenant and
agree never to institute or cause to be instituted or continue prosecution of
any suit or other form of action or proceeding of any kind or nature whatsoever
against any of Lender Parties by reason of or in connection with any of the
foregoing matters, claims or causes of action arising through and including the
date of this Agreement.
As further consideration for the agreements herein contained, Original
Borrower hereby agree, represent and warrant that the matters released in this
Agreement are not limited to matters which are known or disclosed, and Original
Borrower hereby waives any and all rights and benefits with respect to any
matters arising out of or relating to matters arising out of or relating to (a)
the Loan, including, but not limited to, its administration or funding, (b) the
Loan Documents, (c) the secured indebtedness described in the Loan Documents,
(d) the assumption of the Loan by New Borrower, (e) the consent by Xxxxxx to
the Requested Actions, (f) the Indebtedness described in Section 1.3 hereof, (g)
any other agreement or transaction between any of Borrower Parties and any of
Lender Parties, and (h) the Project or its development, financing and operation
which Original Borrower now has, or in the future may have conferred upon
Original Borrower by virtue of the provisions of Section 1542 of the Civil Code
of the State of California which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
-12-
In this connection, Original Borrower hereby agrees, represents, and
warrants that it realizes and acknowledges that factual matters now unknown to
Original Borrower may have given or may hereafter give rise to causes of action,
claims, demands, debts, controversies, damages, costs, losses and expenses which
are presently unknown, unanticipated and unsuspected, and Original Borrower
further agrees, represents and warrants that the release herein contained has
been negotiated and agreed upon in light of that realization and that Original
Xxxxxxxx nevertheless hereby intends to release, discharge and acquit all
parties so released from any such unknown claims.
2.6 RELEASE AND COVENANT NOT TO SUE - NEW BORROWER AND TENANT. New
---------------------------------------------------------
Borrower and Tenant, jointly and severally, on behalf of themselves and all of
their respective heirs, successors and assigns, remise, release, acquit, satisfy
and forever discharge Lender Parties from any and all manner of debts,
accountings, bonds, warranties, representations, covenants, promises, contracts,
controversies, agreements, liabilities, obligations, expenses, damages,
judgments, executions, actions, inactions, claims, demands and causes of action
of any nature whatsoever, at law or in equity, either now accrued or
subsequently maturing (but only as to matters arising prior to or on the date of
this Agreement), which New Borrower or Tenant now has or hereafter can, shall or
may have by reason of any matter, cause or thing, from the beginning of the
world to and including the date of this Agreement, including, without
limitation, matters arising out of or relating to (a) the Loan, including, but
not limited to, its administration or funding, (b) the Loan Documents, (c) the
assumption of the Loan by New Borrower, (d) the consent by Lender to the
Requested Actions, (e) the secured indebtedness described in the Loan Documents,
(f) the Indebtedness described in Section 1.3 hereof, (g) any other agreement or
transaction between any of Borrower Parties or Tenant and any of Lender Parties,
and (h) the Project or its development, financing and operation. New Borrower
and Tenant for themselves and all of their respective successors and assigns,
covenant and agree never to institute or cause to be instituted or continue
prosecution of any suit or other form of action or proceeding of any kind or
nature whatsoever against any of Lender Parties by reason of or in connection
with any of the foregoing matters, claims or causes of action arising through
and including the date of this Agreement.
2.7 ASSIGNMENT OF LEASES. To the extent that Tenant has any right, title
--------------------
or interest in, to or under any of the "Leases" or "Rents" described in the
Assignment of Rents, Tenant, subject to the terms of the Assignment of Rents,
hereby irrevocably, absolutely and unconditionally transfers, sells, assigns,
pledges and conveys to Lender, its successors and assigns, all of Xxxxxx's
right, title and interest in, to or under any of such Leases or Rents. Xxxxxx
further agrees to comply with all of the terms and provisions of the Assignment
of Rents as if it were the Assignor thereunder with the exception that Tenant
shall be entitled to pay SELCO Basic Rent (as such term is defined in the Lease)
under the Lease on a quarterly basis notwithstanding any provision in the
Assignment of Rents to the contrary. New Borrower consents to the foregoing
assignment by Xxxxxx to Xxxxxx and acknowledges and agrees that notwithstanding
such assignment by Tenant, New Borrower shall not be relieved of any of its
obligations under the Assignment of Rents notwithstanding anything in the
Assignment of Rents to the contrary.
-13-
2.8 MANAGEMENT OF PROJECT. Tenant shall personally manage the Project
----------------------
in its own name and for its own account. Neither New Borrower nor Xxxxxx has
engaged and has no present intention of engaging any affiliate of New Borrower,
Tenant or any third party to manage the Project for or on behalf of New Borrower
or Tenant. New Borrower and Tenant further covenant and agree to comply with all
terms and conditions of the Deed of Trust concerning the management of the
Project, including without limitation the obligation to obtain Xxxxxx's consent
to the management of the Project by any entity other than New Borrower or
Tenant.
2.9 PAYMENT OF TRANSACTION COSTS AND EXPENSES. New Borrower shall have
-----------------------------------------
paid or shall pay at the time of execution of this Agreement by Lender: (i) the
Assumption Fee; (ii) the Consent Fee; (iii) the legal fees and disbursements of
Lender's counsel, Bilzin Xxxxxxx Xxxx Price & Xxxxxxx LLP, in connection with
the preparation of this Agreement and the transactions contemplated in this
Agreement; (iv) all recording costs and documentary stamps, if any, due upon the
recording of this Agreement; and (v) the costs of updating Lender's policy of
title insuring the Deed of Trust to a current date and endorsing such policy to
include this Agreement in the description of the Deed of Trust with no
additional exceptions, or, at Xxxxxx's option, the cost of obtaining a new loan
title policy acceptable to Xxxxxx insuring the Deed of Trust as affected by this
Agreement.
3
-
ADDITIONAL PROVISIONS
---------------------
3.1 CONSENT OF LENDER. Subject to the terms of this Agreement, Lender
-----------------
hereby consents to the Requested Actions. Borrower Parties agree that this
Agreement shall not be deemed an agreement by Xxxxxx to consent to any other
transfer or conveyance of the Project or assumption of the Loan, or any other
actions of New Borrower requiring Xxxxxx's consent under the terms of the Loan
Documents.
3.2 NOTICES OF DEFAULT. Xxxxxx agrees to give Tenant a copy of any
------------------
notice of any default given to New Borrower under the Loan Documents and shall
give Tenant the opportunity to cure such default within the applicable cure
period, if any, set forth in the Loan Documents. Xxxxxx's agreement to give
Tenant notice and the opportunity to cure any event of default under the Loan
Documents should in no manner be deemed to create or extend any cure periods set
forth in the Loan Documents.
3.3 EQUITY LOANS. In the event of a default under any of the Equity Loan
------------
Documents, the remedy for which entitles Healthcare Realty or an affiliate of
Healthcare Realty (a "Healthcare Realty Affiliate") to acquire the Project or
---------------------------
the Pledged Interests and the Pledged Stock or if for any other reason
Healthcare Realty or a Healthcare Realty Affiliate acquires the Pledged
Interests and/or Pledged Stock or the Project, provided the Loan is not in
default, Lender shall consent to the transfer of the Project or of the Pledged
Interests and the Pledged Stock to Healthcare Realty or a Healthcare Realty
Affiliate provided the following terms and conditions are satisfied:
-14-
(a) New Hazardous Substances Indemnity. Healthcare Realty shall have
----------------------------------
executed and delivered to Lender a Hazardous Substances Indemnity Agreement in
the form attached hereto as EXHIBIT "C";
(b) New Indemnity and Guaranty. Healthcare Realty shall have executed
--------------------------
and delivered to Lender an Indemnity and Guaranty Agreement in the form attached
hereto as EXHIBIT "D";
(c) Assumption Agreement. In the event a Healthcare Realty Affiliate
--------------------
desires to acquire the Project, it shall have executed an assumption or similar
agreement in substantially the same form as this Agreement assuming all
obligations of New Borrower under the Loan Documents;
(d) Financial Condition. There shall not have been a material adverse
-------------------
change to Healthcare Realty's financial condition between the dates of the
Financial Statements delivered to Lender pursuant to Section 1.2(d) hereof and
the date Healthcare Realty or a Healthcare Realty Affiliate acquires the Pledged
Interests and the Pledged Stock or the Project;
(e) Bankruptcy Remote Entity. If a Healthcare Realty Affiliate
------------------------
desires to acquire the Project from New Borrower rather than the Pledged
Interests and the Pledged Stock, the Healthcare Realty Affiliate shall be a
single purpose, bankruptcy remote entity reasonably acceptable to Lender and
meeting at least the same bankruptcy remote entity requirements of New Borrower
and any reasonable additional bankruptcy remote entity requirements required by
Lender at the time of transfer of the Project (a "Bankruptcy Remote Entity").
------------------------
In addition, the Healthcare Realty Affiliate acquiring the Project shall have
provided to Lender non-consolidation, authority and enforceability opinions
issued by counsel reasonably acceptable to Lender containing substantially the
same opinions contained in the non-consolidation, authority and enforceability
opinions delivered to Lender in connection with the assumption of the Loan by
New Borrower as contemplated hereby;
(f) Assignment or Transfer Documents. Healthcare Realty or the
---------------------------------
Healthcare Realty Affiliate shall have delivered to Lender copies of all
assignment or conveyance documents executed in connection with the transfer of
the Pledged Interests and Pledged Stock from SELCO or the Project from New
Borrower to Healthcare Realty or the Healthcare Realty Affiliate;
(g) Title. Healthcare Realty or the Healthcare Realty Affiliate shall
------
also have delivered to Lender such endorsements to its loan title policy as
Lender may reasonably request reflecting the change of ownership of the Project
and updating the effective date thereof to the date of the transfer of the
Project, if applicable, or affirmatively insuring Lender that the transfer of
the Pledged Interests and/or the Pledged Stock to Healthcare Realty or the
Healthcare Realty Affiliate will not affect the validity, enforceability or
priority of Xxxxxx's lien on the Project; and
(h) Fees and Costs. Lender shall have been paid a non-refundable
--------------
transfer fee in an amount equal to all out-of-pocket costs and expenses,
including without limitation, attorney's fees and costs (which fees and costs
shall be payable whether or not the transfer of the Pledged
-15-
Interest and/or the Pledged Stock is consummated) incurred by Lender in
connection with such transfer.
3.4 TRANSFER OF PLEDGED INTERESTS AND PLEDGED STOCK TO TENANT. Upon the
---------------------------------------------------------
the occurrence of any event under the Lease in which Tenant or an affiliate of
Tenant or Tenant's Parent (a "Tenant Affiliate") is required or entitled and
----------------
desires to acquire the Project or the Pledged Interests and the Pledged Stock,
notwithstanding anything to the contrary in the Loan Documents, Lender shall
consent to such transfer of the Project or the Pledged Interests and the Pledged
Stock provided the following terms and conditions are satisfied:
(a) Financial Condition. There shall not have been a material adverse
-------------------
change to the Tenant's Parent financial condition between the dates of the
Parent Financial Statements delivered to Lender pursuant to Section 1.4(g)
hereof and the date Tenant or a Tenant Affiliate acquires the Pledged Interests
and the Pledged Stock or the date a Tenant Affiliate acquires the Project;
(b) Assumption Agreement. In the event Tenant or a Tenant Affiliate
--------------------
acquires the Project, Tenant or a Tenant Affiliate shall have executed an
assumption or similar agreement in substantially the same form as this Agreement
assuming all obligations of New Borrower under the Loan Documents;
(c) Bankruptcy Remote Entity. In the event that Tenant or a Tenant
------------------------
Affiliate desires to acquire the Project from New Borrower, Tenant or a Tenant
Affiliate shall be a Bankruptcy Remote Entity and shall cause to be delivered to
Lender the legal opinions described in Section 3.3(e) hereof;
(d) Assignment or Transfer Documents. Tenant or the Tenant Affiliate
--------------------------------
shall have delivered to Lender copies of all assignment or conveyance documents
executed in connection with the transfer of the Pledged Interests and Pledged
Stock from SELCO or the Project from New Borrower to Tenant or the Tenant
Affiliate;
(e) Title. Tenant or the Tenant Affiliate shall have also delivered
-----
to Lender such endorsements to its loan title policy as Lender may reasonably
request reflecting the change of ownership of the Project and updating the
effective date thereof to the date of the transfer of the Project, if
applicable, or affirmatively insuring Lender that the transfer of the Pledged
Interests and/or the Pledged Stock to Tenant or the Tenant Affiliate will not
affect the validity, enforceability or priority of Xxxxxx's lien on the Project;
and
(f) Fees and Costs. Tenant shall have paid Lender a non-refundable
--------------
transfer fee in an amount equal to all out-of-pocket costs and expenses,
including without limitation, reasonable attorney's fees and costs (which fees
and costs shall be payable whether or not the transfer of the Project or the
Pledged Interests and the Pledged Stock to Tenant is consummated) incurred by
Lender in connection with such transfer to Tenant.
-16-
3.5 DEFINITION OF AFFILIATE. For purposes of Sections 3.3 and 3.4 of
-----------------------
this Agreement, the term "Affiliate" shall mean an entity wholly owned by
Healthcare Realty, Tenant or Tenant's Parent, as applicable.
3.6 MODIFICATIONS TO LOAN DOCUMENTS. Section 1.33(d) of the Deed of
-------------------------------
Trust is hereby modified to delete subparagraph (iii) thereof and Section 2.1(b)
of the Deed of Trust is hereby amended to correct the reference from Section
"1.15" to Section "1.13".
3.7 SCRIVENOR'S ERROR IN LEGAL DESCRIPTION. The parties acknowledge
--------------------------------------
that the legal description attached to the Deed of Trust and all of the other
Loan Documents contains a scrivenor's error. Therefore, Original Borrower, New
Borrower and Xxxxxx hereby agree that the legal description attached hereto as
EXHIBIT "A" is the correct legal description that should have been attached to
the Deed of Trust and all of the other Loan Documents, and hereby modify the
Deed of Trust and all of the other Loan Documents to substitute the legal
description attached hereto as EXHIBIT "A" for the incorrect legal descriptions
attached as the legal description exhibits to the Deed of Trust and all of the
other Loan Documents. All references to the term "Land", "Property", "Real
Estate", "Exhibit A" or any of the other legal description exhibits in the Deed
of Trust or any of the other Loan Documents shall hereinafter mean and refer to
the real property described in EXHIBIT "A" attached hereto and incorporated
herein.
3.8 ADDITIONAL DOCUMENTS. Contemporaneously with the execution and
--------------------
delivery of this Agreement and as a material inducement to Lender to enter into
this Agreement, (a) New Borrower and Tenant shall have executed and delivered to
Lender UCC-2 Statements of Change amending the Financing Statements for
recording in the Records and in the Secretary of State of California to, among
other things, add New Borrower and Tenant as additional debtors; (b) Tenant
shall have executed and delivered to Lender a Collateral Assignment and Security
Agreement in Respect of Contracts, Licenses and Permits in a form reasonably
satisfactory to Lender and UCC Financing Statements related thereto; (c) Tenant
and Tenant's Parent shall have executed and delivered to Lender an Indemnity and
Guaranty Agreement (the "New Indemnity and Guaranty Agreement"; (d) New
------------------------------------
Borrower, Tenant and Tenant's Parent shall have executed and delivered to Lender
a Hazardous Substances Indemnity Agreement (the "New Hazardous Substances
------------------------
Indemnity"); (e) Tenant shall have executed and delivered to Lender a UCC
---------
Financing Statement with respect to all of Tenant's right, title and interest
in, to and under any Leases or Rents (as such terms are defined in the
Assignment of Rents); (f) Tenant shall have executed and delivered to Lender a
Certificate of Independent Director and a Certificate Regarding Standard Lease;
(g) New Borrower shall have caused each of the Indemnified Parties (as such term
is defined in the Lease) to execute and deliver to Lender an Indemnity Priority
Agreement regarding the relationship and priorities between the indemnities
required by the Lease and the New Hazardous Substances Indemnity Agreement and
the New Indemnity and Guaranty Agreement; (h) X. Xxxxx Xxxxxx and Xxxxxxx X.
Xxxxxxxx shall have executed and delivered to Lender a Reaffirmation of
Indemnity and Guaranty and Consent of Indemnitors; and (i) Original Borrower and
X. Xxxxx Xxxxxx and Xxxxxxx X. Xxxxxxxx shall have
-17-
executed and delivered to Lender a Reaffirmation of Hazardous Substances
Indemnity Agreement and Consent of Indemnitors.
3.9 ALIENATION AND FURTHER ENCUMBRANCES. For purposes of Section
-----------------------------------
1.13 of the Deed of Trust, (a) the transfer, pledge or assignment of Tenant's
interest in the Lease, (b) the transfer of the Pledged Interests or the Pledged
Stock to any person or entity other than Healthcare Realty, a Healthcare Realty
Affiliate, Tenant or a Tenant Affiliate, (c) the transfer of the Project to any
person or entity other than a Bankruptcy Remote Entity wholly owned by Tenant,
Tenant's Parent or Healthcare Realty pursuant to the terms of Sections 3.3 and
3.4 hereof, or (d) the transfer by New Borrower of its interest in the Leasehold
Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (the
"Leasehold Deed of Trust") dated as of the date hereof given by Xxxxxx, as
-----------------------
Trustor in favor of New Borrower, as Beneficiary shall all be deemed a transfer
of an interest in or of the Project which shall be prohibited without Lender's
consent as provided in said Section 1.13. Notwithstanding the foregoing, Xxxxxx
may transfer the Tenant's interest in the Lease to a Tenant Affiliate provided
such Tenant Affiliate is a Bankruptcy Remote Entity and assumes Tenant's
obligations under the Lease and this Agreement and executes any and all
documents reasonably requested by Xxxxxx to effectuate such assumption.
3.10 DEFINED TERMS IN LOAN DOCUMENTS. New Borrower agrees that from
-------------------------------
and after the date hereof, that the term "Rents and Profits" as used in the Deed
of Trust and the term "Leases" as used in the Assignment of Rents shall include,
but not be limited to, the Lease and that the term "Rents" as used in the
Assignment of Rents shall include, but not be limited to, all components of
Basic Rental, Additional Rental, the End of Term Adjustment, the Purchase Price,
the Termination Value, Equity Rental or Equity Rent (as either of such terms
are defined in the Lease) and any other amounts which are payable by Tenant
under the Lease. In addition, all references to the term "Loan Documents" in
the Deed of Trust and the Assignment of Rents shall hereinafter mean and refer
to (i) all of the Loan Documents described therein; (ii) this Agreement; and
(iii) any and all other documents executed in connection with this Agreement.
New Borrower agrees that the term Property, as used in the Deed of
Trust, includes all of New Borrower's right, title and interest in, to and under
the Assigned Contracts and Permits, as such term is defined in that certain
Collateral Assignment and Security Agreement in Respect of Contracts, Licenses
and Permits (the "Collateral Assignment") dated as the date hereof given by
---------------------
Tenant in favor of New Borrower.
3.11 OBLIGATIONS UNDER LOAN DOCUMENTS. New Borrower and Tenant
--------------------------------
acknowledge and agree that Tenant's agreement to perform on New Borrower's
behalf, New Borrower's obligations under the Loan Documents, shall not relieve
New Borrower from any liability to perform such obligations, and Tenant's or New
Borrower's failure to timely and fully perform such obligations shall constitute
a default under the Loan Documents.
3.12 SECURITY AGREEMENT FROM TENANT AS TO PROPERTY IN DEED OF TRUST.
--------------------------------------------------------------
As a material inducement to Lender to consent to the New Borrower entering into
the Lease with Tenant, Tenant
-18-
hereby irrevocably grants, transfers, conveys and assigns to Lender IN TRUST
WITH POWER OF SALE, for the benefit and security of Lender, as Beneficiary
thereunder, under and subject to the terms and conditions set forth in the Deed
of Trust all of Tenant's right, title and interest in, to and under any of the
"Property" described in Deed of Trust, including the Assigned Contracts and
Permits, as such term is defined in the Collateral Assignment. In order to
perfect Xxxxxx's security interest in and to such "Property," including any
replacements or proceeds thereof, Tenant is simultaneously herewith executing
and delivering to Lender UCC-2 Financing Statements of Change amending the
existing Financing Statements to add Tenant as additional debtor and to add the
Assigned Contracts and Permits to the description of the collateral.
3.13 CONSENT OF TENANT TO MODIFICATION OF LOAN DOCUMENTS So long as
---------------------------------------------------
the Lease has not been terminated and there is no event of default thereunder,
Lender and New Borrower agree that they will not amend or modify any of the Loan
Documents without first obtaining Tenant's prior written consent.
3.14 FINANCIAL STATEMENTS. Notwithstanding New Borrower's obligation
--------------------
to deliver audited financial statements as set forth in Section 1.18(d) of the
Deed of Trust, so long as the Lease remains in effect, New Borrower shall not be
required to provide such audited financial statements provided that Tenant
provides such audited financial statements on itself and further delivers all
other financial statements required by and otherwise complies with the terms of
Section 1.18 of the Deed of Trust.
In addition to the financial statements required under Section
1.18 of the Deed of Trust, on an annual basis, New Borrower shall cause SELCO
and Healthcare Realty, and Tenant shall cause Tenant's Parent to deliver to
Lender an annual report and the same type of financial statements for the then
current year that were delivered to Lender in connection with this Agreement.
3.15 XXXXXX'S CONSENT TO REQUESTED ACTIONS. Lender's consent to the
-------------------------------------
Requested Actions should in no manner be deemed to (a) waive any rights Lender
has to consent to any matters in the Lease or in any of the Equity Loan
Documents that require its consent under the Loan Documents unless Lender has
specifically given its consent to any such matters in this Agreement, or (b)
change the standards of Xxxxxx's consent as set forth in the Loan Documents or
(c) waive or modify any of other covenants, conditions, terms, or provision of
the Loan Documents unless such modification is specifically set forth herein.
3.16 LEASEHOLD DEED OF TRUST. Tenant and New Borrower agree not to
-----------------------
amend or modify the Leasehold Deed of Trust without first obtaining the prior
written consent of Senior Lender.
-19-
4
-
MISCELLANEOUS PROVISIONS
------------------------
4.1 NO LIMITATION OF REMEDIES. No right, power or remedy conferred
-------------------------
upon or reserved to or by Lender in this Agreement is intended to be exclusive
of any other right, power or remedy conferred upon or reserved to or by Lender
under this Agreement, the Loan Documents or at law, but each and every remedy
shall be cumulative and concurrent, and shall be in addition to each and every
other right, power and remedy given under this Agreement, the Loan Documents or
now or subsequently existing at law.
4.2 NO WAIVERS. Except as otherwise expressly set forth in this
----------
Agreement, nothing contained in this Agreement shall constitute a waiver of any
rights or remedies of Lender under the Loan Documents or at law. No delay or
failure on the part of any party hereto in the exercise of any right or remedy
under this Agreement shall operate as a waiver, and no single or partial
exercise of any right or remedy shall preclude other or further exercise thereof
or the exercise of any other right or remedy. No action or forbearance by any
party hereto contrary to the provisions of this Agreement shall be construed to
constitute a waiver of any of the express provisions. Any party hereto may in
writing expressly waive any of such party's rights under this Agreement without
invalidating this Agreement.
4.3 SUCCESSORS OR ASSIGNS. Whenever any party is named or referred
---------------------
to in this Agreement, the heirs, executors, legal representatives, successors,
successors-in-title and assigns of such party shall be included. All covenants
and agreements in this Agreement shall bind and inure to the benefit of the
heirs, executors, legal representatives, successors, successors-in-title and
assigns of the parties, whether so expressed or not.
4.4 CONSTRUCTION OF AGREEMENT. Each party hereto acknowledges that
-------------------------
it has participated in the negotiation of this Agreement and no provision shall
be construed against or interpreted to the disadvantage of any party hereto by
any court or other governmental or judicial authority by reason of such party
having or being deemed to have structured, dictated or drafted such provision.
Borrower Parties at all times have had access to an attorney in the negotiation
of the terms of and in the preparation and execution of this Agreement.
Borrower Parties have had the opportunity to review and analyze this Agreement
for a sufficient period of time prior to execution and delivery. No
representations or warranties have been made by or on behalf of Lender, or
relied upon by Borrower Parties, pertaining to the subject matter of this
Agreement, other than those set forth in this Agreement. All prior statements,
representations and warranties, if any, are totally superseded and merged into
this Agreement, which represent the final and sole agreement of the parties with
respect to the subject matters. All of the terms of this Agreement were
negotiated at arm's length, and this Agreement was prepared and executed without
fraud, duress, undue influence or coercion of any kind exerted by any of the
parties upon the others. The execution and delivery of this Agreement is the
free and voluntary act of Borrower Parties.
-20-
4.5 INVALID PROVISION TO AFFECT NO OTHERS. If, from any
-------------------------------------
circumstances whatsoever, fulfillment of any provision of this Agreement or any
related transaction at the time performance of such provision shall be due,
shall involve transcending the limit of validity presently prescribed by any
applicable usury statute or any other applicable law, with regard to obligations
of like character and amount, then ipso facto, the obligation to be fulfilled
---- -----
shall be reduced to the limit of such validity. If any clause or provision
operates or would prospectively operate to invalidate this Agreement, in whole
or in part, then such clause or provision only shall be deemed deleted, as
though not contained, and the remainder of this Agreement shall remain operative
and in full force and effect.
4.6 NOTICES. Except as otherwise specifically provided to the
-------
contrary, any and all notices, elections, approvals, consents, demands, requests
and responses ("Communications") permitted or required to be given under this
--------------
Agreement and the Loan Documents shall not be effective unless in writing,
signed by or on behalf of the party giving the same, and sent by certified or
registered mail, postage prepaid, return receipt requested, or by hand delivery
or overnight courier service (such as Federal Express), to the party to be
notified at the address of such party set forth below or at such other address
within the continental United States as such other party may designate by notice
specifically designated as a notice of change of address and given in accordance
with this Section. Any Communications shall be effective upon the earlier of
their receipt or three days after mailing in the manner indicated in this
Section. Receipt of Communications shall occur upon actual delivery but if
attempted delivery is refused or rejected, the date of refusal or rejection
shall be deemed the date of receipt. Any Communication, if given to Lender,
must be addressed as follows, subject to change as provided above:
LaSalle National Bank, as Trustee
c/o Mellon Mortgage Company
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxx Xxxxxx and Pep Llinas
Loan Number: DLJ1996-CF1; 9690381
With a copy to:
Bilzin Xxxxxxx Xxxx Price & Xxxxxxx LLP
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-2336
Attn: Xxxxxx X. Xxxxx, Esq.
and, if given to Original Borrower, must be addressed as follows,
notwithstanding any other address set forth in the Loan Documents to the
contrary, subject to change as provided above:
-21-
Atrium Venture
c/o The Atrium at San Xxxx
0000-X Xxxxx Xxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
With a copy to:
Xxxxxx & Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxxxxxx X. Xxxxxxxxx, Esq.
and, if given to New Borrower, must be addressed as follows, subject to change
as provided above:
The Atrium of San Xxxx LLC
c/o SELCO Service Corporation
Keycorp. Leasing
00 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Telephone No.:________________
Facsimile No.:_________________
and
With a copy to:
Tenant at the address set forth below
and if given to Tenant, must be addressed as follows, subject to change as
provided above:
Brookdale Living Communities of California, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
-22-
With a copy to:
Xxxxx, Xxxxxx, XxxXxx & Xxxxxxxxxx, P.C.
000 X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
4.7 GOVERNING LAW. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California.
4.8 HEADINGS; EXHIBITS. The headings of the articles, sections and
------------------
subsections of this Agreement are for the convenience of reference only, are not
to be considered a part of this Agreement and shall not be used to construe,
limit or otherwise affect this Agreement.
4.9 MODIFICATIONS. The terms of this Agreement may not be changed,
-------------
modified, waived, discharged or terminated orally, but only by an instrument or
instruments in writing, signed by the Party against whom the enforcement of the
change, modification, waiver, discharge or termination is asserted.
4.10 TIME OF ESSENCE; CONSENTS. Time is of the essence of this
-------------------------
Agreement and the Loan Documents. Any provisions for consents or approvals in
this Agreement shall mean that such consents or approvals shall not be effective
unless in writing and executed by Xxxxxx.
4.11 NONRECOURSE. Any provision of this Agreement or the Loan
-----------
Documents to the contrary notwithstanding, the liability of New Borrower
hereunder, if any, shall be satisfied solely from the assets of New Borrower,
including the Project, but not from New Borrower's rights to the CDs or the CD
Pledge Agreement and any other collateral pledged thereunder. No recourse under
or upon any representation, warranty, obligation covenant or agreement contained
herein or for any claim based herein or in respect hereto shall be had against
any past, present or future member, manager, stockholder, director, officer,
employee, attorney, administrator, trustee or agent, as such, of New Borrower or
the Managing Member of New Borrower or any of their respective assets or
properties unless such claim is based on the fraud, gross negligence or willful
misconduct of such party.
Furthermore, Xxxxxx acknowledges and agrees that it shall have no
right, interest (including security interest or lien) or claim to the CDs or New
Borrower's rights under the CD Pledge Agreement, it being understood that KCCI
and SELCO have each relied upon the pledge to KCCI and SELCO of the CDs by
Xxxxxx and New Borrower and the other collateral pledged under the CD Pledge
Agreement in KCCI making a loan to SELCO and SELCO using the proceeds of such
loan, plus additional equity money provided by XXXXX in making an equity
contribution to New Borrower.
-23-
4.12 COUNTERPARTS. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
4.13 JURISDICTION; WAIVER OF TRIAL BY JURY. TENANT AND BORROWER
-------------------------------------
PARTIES, TO THE FULL EXTENT PERMITTED BY LAW, XXXXXX KNOWINGLY, INTENTIONALLY
AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (i) SUBMIT TO
PERSONAL JURISDICTION IN THE STATE OF CALIFORNIA OVER ANY SUIT, ACTION OR
PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THE NOTE, THIS DEED OF
TRUST OR ANY OTHER OF THE LOAN DOCUMENTS, (ii) AGREE THAT ANY SUCH ACTION, SUIT
OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION SITTING IN SANTA XXXXX COUNTY, CALIFORNIA, (iii) SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND, (iv) TO THE FULLEST EXTENT PERMITTED BY LAW,
AGREE THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM
(BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO BRING ANY ACTION, SUIT
OR PROCEEDING IN ANY OTHER FORUM). BORROWER PARTIES AND TENANT FURTHER CONSENT
AND AGREE TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE
PREPAID, TO THE BORROWER PARTIES OR TENANT AT THE ADDRESSES FOR NOTICES
DESCRIBED IN SECTION 4.6 HEREOF, AND CONSENT AND AGREE THAT SUCH SERVICE SHALL
CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN
SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER
PERMITTED BY LAW).
(b) LENDER, TENANT AND BORROWER PARTIES, TO THE FULL EXTENT
PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON
THE ADVICE OF COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER FOREGO THE RIGHT
TO A TRAIL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN
ANY WAY RELATING TO THE INDEBTEDNESS SECURED BY THE LOAN DOCUMENTS OR ANY
CONDUCT, ACT OR OMISSION OF LENDER, BORROWER PARTIES, OR TENANT OR ANY OF THEIR
DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY
OTHER PERSONS AFFILIATED WITH LENDER, BORROWER PARTIES, OR TENANT IN EACH OR THE
FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
-24-
The parties have executed and delivered this Agreement as of the day and
year first above written.
Signed, sealed and delivered LENDER:
------
in the presence of:
LASALLE NATIONAL BANK, AS
TRUSTEE FOR THE REGISTERED
______________________________ HOLDERS OF DLJ MORTGAGE
Print witness name:___________ ACCEPTANCE CORP., COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-CF1
By: Lennar Partners, Inc.,
as attorney-in-fact
Sign:_________________________ By:___________________(SEAL)
Print witness name:_____________ Name: _____________________
Title: Vice President
STATE OF FLORIDA )
) SS.:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this ___ day of
________, 1998, by _________________, as Vice President of Lennar Partners,
Inc., a Florida corporation, on behalf of said corporation as attorney-in-fact
for LASALLE NATIONAL BANK, AS TRUSTEE FOR THE REGISTERED HOLDERS OF DLJ MORTGAGE
ACCEPTANCE CORP., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1996-
CF1. He is personally known to me or has produced a __________ driver's license
as identification.
Sign Name:_____________________________
Print Name:_____________________________
My Commission Expires: NOTARY PUBLIC
Serial No. (none, if blank): ______________
-25-
ORIGINAL BORROWER:
-----------------
Signed, sealed and delivered ATRIUM VENTURE, a California limited
in the presence of: partnership
____________________________ By: Congregate Communities Corporation,
Print Name:_________________ a California corporation, its General
Partner
Sign:_______________________ By: __________________________(SEAL)
Print Name: _________________ Name:______________________________
Title:_____________________________
STATE OF CALIFORNIA )
) SS.:
COUNTY OF ________ )
On ____________, 1998, before me, the undersigned, a Notary Public in
and for said State, personally appeared ____________ known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
________________________________________________
Notary Public in and for the State of California
-26-
NEW BORROWER:
------------
Signed, sealed and delivered THE ATRIUM OF SAN XXXX LLC,
in the presence of: a Delaware limited liability company,
Sign:_______________________ By: The Atrium of San Xxxx, Inc.,
Print Name:_________________ a Delaware corporation, its Managing
Member
By:__________________________
Name:_______________________ Sign:________________________
Title:______________________ Print Name: _________________
STATE OF _________ )
) SS.:
COUNTY OF ________ )
On _________, 1998, before me, the undersigned, a Notary Public in and for
said State, personally appeared _______________________ known to me (or proved
to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
_______________________________________________
Notary Public in and for the State of California
-27-
TENANT:
------
Signed, sealed and delivered BROOKDALE LIVING COMMUNITIES OF
in the presence of: CALIFORNIA, INC., a Delaware corporation
Sign:_______________________
Print Name:__________________
By:______________________________
Sign:_______________________ Name:____________________________
Print Name: _________________ Title:___________________________
STATE OF ILLINOIS )
) SS.:
COUNTY OF COOK )
On _________, 1998, before me, the undersigned, a Notary Public in and for
said State, personally appeared _______________________ known to me (or proved
to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
______________________________________________
Notary Public in and for the State of Illinois
-28-
EXHIBIT "A"
-----------
LEGAL DESCRIPTION
-----------------
-29-
EXHIBIT "B"
RENT ROLL
THIS PAGE LEFT INTENTIONALLY BLANK FOR RECORDING PURPOSES.
-30-
EXHIBIT "C"
HEALTHCARE REALTY HAZARDOUS SUBSTANCES INDEMNITY
-31-
EXHIBIT "D"
HEALTHCARE REALTY INDEMNITY AND GUARANTY AGREEMENT
-32-
JOINDER BY HEALTHCARE REALTY,
TENANT'S PARENT AND MANAGING MEMBER
The undersigned, Healthcare Realty Trust Incorporated, a Maryland
corporation (the "Healthcare Realty"), Brookdale Living Communities, Inc., a
-----------------
Delaware corporation ("Tenant's Parent"), and The Atrium of San Xxxx, Inc., a
---------------
Delaware corporation ("Managing Member") hereby join in the foregoing Note and
---------------
Deed of Trust Assumption Agreement as of the date thereof (the "Assumption
----------
Agreement") for the sole purpose of confirming, as applicable (i) the truth and
---------
correctness of the representations made to Lender in Section 1.2(d) (as to
Healthcare Realty only); Section 1.4(d) (as to Tenant's Parent); and Sections
1.2(b) and 1.2(c) (as to Managing Member).
In addition, Healthcare Realty agrees to give Xxxxxx notice of any
defaults under any of the Equity Loan Documents to which it is a party that, if
not cured, may result in a transfer of the Pledged Interests or the Pledged
Stock to Healthcare Realty, Tenant or otherwise.
HEALTHCARE REALTY TRUST
By:__________________________
Name:________________________
Title:_______________________
STATE OF ________________ )
) SS.:
COUNTY OF _______________ )
On _________, 1998, before me, the undersigned, a Notary Public in and for
said State, personally appeared _______________________ known to me (or proved
to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
______________________________________
Notary Public in and for the State of
[SIGNATURES CONTINUED ON NEXT PAGE]
-33-
BROOKDALE LIVING COMMUNITIES, INC,
a Delaware corporation
By:_______________________________
Name:_____________________________
Title:____________________________
STATE OF ___________ )
) SS.:
COUNTY OF __________ )
On _________, 1998, before me, the undersigned, a Notary Public in and for
said State, personally appeared _______________________ known to me (or proved
to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
______________________________________________
Notary Public in and for the State of Illinois
[SIGNATURES CONTINUED ON NEXT PAGE]
-34-
THE ATRIUM OF SAN XXXX, INC.
a Delaware corporation
By:____________________________
Name:__________________________
Title:_________________________
STATE OF ___________ )
) SS.:
COUNTY OF __________ )
On _________, 1998, before me, the undersigned, a Notary Public in and for
said State, personally appeared _______________________ known to me (or proved
to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
______________________________________
Notary Public in and for the State of
-35-
