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Cross-collateralization Agreement

This is an actual contract by Sunrise Senior Living.

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Sectors: Services
Governing Law: Virginia , View Virginia State Laws
Effective Date: May 20, 1999
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This instrument is a supplemental writing pursuant to Section 58.1-809 Code of Virginia and modifies that certain Multifamily Deed of Trust, Assignment of Rents and Security Agreement ("Deed of Trust") recorded immediately prior hereto and on which recordation tax has been paid based on the amount of $9,903,000. Pursuant to Section 58.1-803(B), Code of Virginia, the amount of $9,903,000 is the allocable portion of the overall indebtedness set forth in this instrument to the value of the property encumbered by the Deed of Trust and located in the Commonwealth of Virginia, therefore no additional recordation tax is due upon the recordation of this instrument.


[SUNRISE OF SPRINGFIELD]


CROSS-COLLATERALIZATION, CROSS-DEFAULT, AND MORTGAGE
MODIFICATION AGREEMENT


THIS CROSS-COLLATERALIZATION, CROSS-DEFAULT, AND MORTGAGE MODIFICATION AGREEMENT (this "Agreement") is made as of the 20th day of May, 1999 by and among GMAC Commercial Mortgage Corporation, a California corporation ("Lender") and the following borrowers (each referred to individually as a "Borrower" and all referred to collectively as the "Borrowers"):


- --------------------------------------------------------------------------------------------- Borrower Type of Entity - --------------------------------------------------------------------------------------------- Sunrise Abington Assisted Living, L.L.C. a Pennsylvania limited liability company - --------------------------------------------------------------------------------------------- Sunrise Granite Run Assisted Living, L.L.C. a Pennsylvania limited liability company - --------------------------------------------------------------------------------------------- Sunrise Haverford Assisted Living, L.L.C. a Pennsylvania limited liability company - --------------------------------------------------------------------------------------------- Sunrise Morris Plains Assisted Living, L.L.C. a New Jersey limited liability company - --------------------------------------------------------------------------------------------- Sunrise Old Tappan Assisted Living, L.L.C. a New Jersey limited liability company - --------------------------------------------------------------------------------------------- Sunrise Springfield Assisted Living, L.L.C. a Virginia limited liability company - --------------------------------------------------------------------------------------------- Sunrise Wayne Assisted Living, L.L.C. a New Jersey limited liability company - --------------------------------------------------------------------------------------------- Sunrise Westfield Assisted Living, L.L.C. a New Jersey limited liability company - ---------------------------------------------------------------------------------------------


CROSS-COLLATERALIZATION AGREEMENT (FREDDIE MAC) 2


RECITALS


The Lender has agreed to make a loan to each Borrower (each, a "Loan" and collectively, the "Loans"), in the following amounts:


- ----------------------------------------------------------------- Borrower Amount - ----------------------------------------------------------------- Sunrise Abington Assisted Living, L.L.C. $ 14,468,000 - ----------------------------------------------------------------- Sunrise Granite Run Assisted Living, L.L.C. $ 9,219,000 - ----------------------------------------------------------------- Sunrise Haverford Assisted Living L.L.C. $ 8,850,000 - ----------------------------------------------------------------- Sunrise Morris Plains Assisted Living, L.L.C. $ 11,725,000 - ----------------------------------------------------------------- Sunrise Old Tappan Assisted Living, L.L.C. $ 11,725,000 - ----------------------------------------------------------------- Sunrise Springfield Assisted Living, L.L.C. $ 9,903,000 - ----------------------------------------------------------------- Sunrise Wayne Assisted Living, L.L.C. $ 10,385,000 - ----------------------------------------------------------------- Sunrise Westfield Assisted Living, L.L.C. $ 11,725,000 - -----------------------------------------------------------------


The loans are collectively referred to as the "Loans" and individually as a "Loan".


Each Borrower's Loan will be secured by a Mortgage (as defined below) on real property identified in the following table, which is more particularly described in the exhibit to this Agreement specified in the following table, and on other property included within the definition of "Mortgaged Property" as described in each such Mortgage:


- -------------------------------------------------------------------------------------------------------------------------------- BORROWER PROPERTY NAME COUNTY AND STATE EXHIBIT - -------------------------------------------------------------------------------------------------------------------------------- Sunrise Abington Assisted Living, L.L.C Sunrise of Abington Montgomery County, Pennsylvania Exhibit A-1 - -------------------------------------------------------------------------------------------------------------------------------- Sunrise Granite Run Assisted Living, L.L.C. Sunrise of Granite Run Delaware County, Pennsylvania Exhibit A-2 - -------------------------------------------------------------------------------------------------------------------------------- Sunrise Haverford Assisted Living, L.L.C. Sunrise of Haverford Montgomery County, Pennsylvania Exhibit A-3 - -------------------------------------------------------------------------------------------------------------------------------- Sunrise Morris Plains Assisted Living, L.L.C. Sunrise of Morris Plains Morris County, New Jersey Exhibit A-4 - -------------------------------------------------------------------------------------------------------------------------------- Sunrise Old Tappan Assisted Living, L.L.C. Sunrise of Old Tappan Bergen County, New Jersey Exhibit A-5 - -------------------------------------------------------------------------------------------------------------------------------- Sunrise Springfield Assisted Living, L.L.C. Sunrise of Springfield Fairfax County, Virginia Exhibit A-6 - -------------------------------------------------------------------------------------------------------------------------------- Sunrise Wayne Assisted Living, L.L.C. Sunrise of Wayne Passaic County, New Jersey Exhibit A-7 - -------------------------------------------------------------------------------------------------------------------------------- Sunrise Westfield Assisted Living, L.L.C. Sunrise of Westfield Union County, New Jersey Exhibit A-8 - --------------------------------------------------------------------------------------------------------------------------------


CROSS-COLLATERALIZATION AGREEMENT (FREDDIE MAC) 3


Each Borrower is an affiliate of the other Borrowers and will receive a direct and material benefit from the Loans to the other Borrowers. The Lender is willing to make a Loan to each Borrower only if that Borrower agrees to pay and perform all of the Indebtedness of the other Borrowers with respect to the other Borrowers' respective Loans.


Each Borrower is executing this Agreement to evidence its agreement (a) to pay and perform as and when due all of the Indebtedness of the other Borrowers under the other Borrowers' Loan Documents, (b) that its obligations under this Agreement shall be secured by the Mortgage encumbering that Borrower's Property and (c) to bear joint and several liability for the Indebtedness of all other Borrowers as set forth in this Agreement.


1. DEFINITIONS. For purposes of this Agreement, the following terms shall have the meanings indicated:


"COMBINED OBLIGATIONS" means, with respect to each Borrower, that Borrower's obligations (a) to pay its Indebtedness and (b) to pay all other amounts payable under this Agreement and under the other Borrowers' Loan Documents.


"EVENT OF DEFAULT" shall have the meaning set forth in Section 5.


"FORECLOSURE" means, with respect to any Mortgage, a foreclosure of the Mortgage, a deed in lieu of such foreclosure, a sale of the Property pursuant to lawful order of a court of competent jurisdiction in a bankruptcy case filed under Title 11 of the United States Code, or any other similar disposition of the Property encumbered by the Mortgage.


"FRAUDULENT TRANSFER LAWS" means Section 548 of Title 11 of the United States Code or any applicable provisions of comparable state law, including any provisions of the Uniform Fraudulent Conveyance Act or Uniform Fraudulent Transfer Act, as adopted under applicable state law.


"INDEBTEDNESS" means, with respect to any Borrower, the "Indebtedness" as defined in that Borrower's Mortgage, without regard to additional obligations of that Borrower that are created by this Agreement.


"LOAN DOCUMENTS" means, with respect to each Borrower's Loan, the "Loan Documents" as defined in that Borrower's Mortgage, including without limitation the Mortgage and the related Note. "Loan Documents", when not used in reference to a particular Loan, refers to the Loan Documents of all Borrowers relating to all Loans.


"MORTGAGE" with respect to each Borrower means the Multifamily Mortgage, Deed of Trust or Deed to Secure Debt that secures that Borrower's Loan.


CROSS-COLLATERALIZATION AGREEMENT (FREDDIE MAC) 4


"NOTE" with respect to each Borrower means the Multifamily Note evidencing that Borrower's obligation to repay its Loan.


"PROPERTY" means, with respect to a Borrower and its Mortgage, the "Mortgaged Property" as defined in that Mortgage.


"TOTAL PROPERTY" means the aggregate of all the Properties.


Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in the Mortgages.


2. JOINT AND SEVERAL LIABILITY; INTEGRATION OF OBLIGATIONS.


(a) Notwithstanding anything to the contrary in this Agreement or any Borrower's Loan Documents, each Borrower shall pay and perform the Indebtedness of each other Borrower, as and when due. Accordingly, the Indebtedness of each Borrower shall be the joint and several obligation of each other Borrower.


(b) While each Loan represents a separate and independent obligation of each Borrower, the Borrowers acknowledge that, in requesting the Lender to make the Loans, they intend:


i. that the Loans be treated as if they were a single, integrated
indebtedness of the Borrowers, and


ii. that the Total Property secures to the Lender the payment and
performance of all of the Borrowers' Combined Obligations.


Accordingly, if any Borrower fails to pay fully, when due, any amount payable to the Lender under this Agreement or any Loan Document, then the Lender may elect, in its discretion, to treat that amount as being due and owing by the other Borrowers, on a joint and several basis, and such amount may be recovered from the value of each of the Properties, on a pro rata basis or otherwise, as determined by the Lender in its discretion.


3. AMENDMENT OF BORROWER MORTGAGE TO GRANT ADDITIONAL SECURITY. Each Borrower's Mortgage is hereby amended to provide that:


(a) such Mortgage secures the Combined Obligations of that Borrower
under this Agreement as well as the Indebtedness of that Borrower
under its own Loan Documents, and


(b) the Total Property secures all Borrowers' Combined Obligations,
without apportionment or allocation of any Property or any
portion of any Property (except that the Combined Obligations may
be apportioned among the Properties for the sole and limited
purpose of determining the amount of


CROSS-COLLATERALIZATION AGREEMENT (FREDDIE MAC) PAGE 4 5


transfer or recordation taxes or documentary stamps required in
connection with recordation of this Agreement and the Mortgages).


4. AMENDMENT OF MORTGAGE TO PROVIDE FOR CROSS-DEFAULT. Each Borrower's Mortgage is hereby amended to provide that any Event of Default under this Agreement shall constitute an Event of Default under that Mortgage.


5. EVENTS OF DEFAULT. Each of the following events shall constitute an "Event of Default" under this Agreement:


(a) A default or breach by any Borrower of any provision of this Agreement.


(b) A default or breach by any Borrower under any of its Loan Documents beyond any notice, grace or cure period set forth in that Loan Document; or


(c) Any event or condition defined as an "Event of Default" under any Loan Document.


6. REMEDIES. Upon the occurrence of an Event of Default, the Lender in its discretion may, but shall not be obligated to, exercise any or all of the following remedies:


(a) declare immediately due and payable the Indebtedness of any or all Borrowers whether or not the Lender exercises its right to declare immediately due and payable the Indebtedness related to a particular Mortgage under which the Event of Default may have occurred; and


(b) exercise any or all of its rights and remedies under this Agreement, any Loan Document or applicable law.


The Lender may exercise such remedies in one or more proceedings, whether contemporaneous or consecutive or a combination of both, to be determined by Lender in its sole discretion. The Lender may enforce its rights against any one or more Properties or portions of Properties, in such order and manner as it may elect in its sole discretion. The enforcement of any one Mortgage shall not constitute an election of remedies, and shall not limit or preclude the enforcement of any other Mortgage or Loan Document, through one or more additional proceedings. The Lender may bring any action or proceeding, including but not limited to judicial or non-judicial foreclosure proceedings, without regard to the fact that one or more other proceedings may have been commenced elsewhere with respect to the same Property or Properties or any portion of them. Each Borrower waives any rights it may have, whether at law or in equity, to require the Lender to enforce or exercise any of its rights or remedies under this Agreement, under any Mortgage, or under any other Loan Document in any particular manner or order or in any particular state or county.


No judgment obtained by Lender in any one or more enforcement proceedings shall merge the related Indebtedness into that judgment, and all Indebtedness which remains unpaid shall remain a continuing obligation of the Borrowers.


CROSS-COLLATERALIZATION AGREEMENT (FREDDIE MAC) PAGE 5 6


7. APPLICATION OF PROCEEDS. Proceeds of the enforcement or foreclosure of any Mortgage shall be applied first to the repayment of the "Indebtedness" as defined in that Mortgage. Any funds remaining after such application shall be applied to the payment of the other Combined Obligations in such order as the Lender may determine in its sole discretion.


8. ADJUSTMENT OF COMBINED OBLIGATIONS. If the Combined Obligations of any Borrower are otherwise subject to avoidance under any Fraudulent Transfer Law, then the Combined Obligations of that Borrower shall be limited to the largest amount that would not render its Combined Obligations subject to avoidance as a fraudulent transfer or conveyance under that Fraudulent Transfer Law.


9. BORROWERS' RIGHTS OF SUBROGATION, ETC.


(a) Until the Combined Obligations have been paid and performed in full, each Borrower shall withhold exercise of any right of sub
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