punitive or consequential
damages.
SECTION 16.
GOVERNING LAW AND JURISDICTION. THIS CONTROL AGREEMENT HAS BEEN
DELIVERED TO AND ACCEPTED BY SECURED PARTY AND WILL BE DEEMED TO BE MADE IN THE
STATE OF CALIFORNIA. THIS CONTROL AGREEMENT AND ANY DISPUTE, CLAIM OR
CONTROVERSY ARISING OUT OF OR RELATING TO THIS CONTROL AGREEMENT (WHETHER
ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA WITHOUT
REGARD TO CONFLICTS OF LAW RULES THAT WOULD RESULT IN THE APPLICATION OF A
DIFFERENT GOVERNING LAW (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING
TO THE LAW OF GOVERNING PERFECTION AND EFFECT OF PERFECTION OR PRIORITY OF THE
SECURITY INTERESTS).
SECTION 17.
WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS CONTROL AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT, BREACH
G-1-32
OF DUTY, COMMON LAW, STATUTE OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE, THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
CONTROL AGREEMENT BY, AMONG OTHER THINS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION. EACH PARTY HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL.
(Remainder of page intentionally left blank)
G-1-33
IN WITNESS WHEREOF, each of the undersigned has caused this Control Agreement to
be duly executed and delivered as of the date first above written.
PLEDGOR:
SH DR CALIFORNIA IV, LLC,
a Delaware limited liability company
By:
Name:
Title:
SECURED PARTY:
HCP, INC.,
a Maryland corporation
By:
Name:
Title:
(Signatures continued on following page(s))
G-1-34
ISSUERS:
WPG CONCORD SENIOR LIVING LLC, a
California limited liability company
By:
Name:
Title:
WPG SAN JOSE SENIOR LIVING LLC, a
California limited liability company
By:
Name:
Title:
WPG SANTA CLARITA SENIOR LIVING
LLC, a California limited liability company
By:
Name:
Title:
(End of signatures)
G-1-35
EXHIBIT G-2
FORM OF PLEDGE AND SECURITY AGREEMENT
(DOWLING COURT II HCP LOAN)
PLEDGE AND SECURITY AGREEMENT
between
HCP, INC.
and
SH DR CALIFORNIA IV, LLC
Dated as of July 18, 2019
G-2-1
TABLE OF CONTENTS
Page
Section 1
DEFINED TERMS
4
1.1
Definitions
4
1.2
Other Definitional Provisions
7
Section 2
GRANT OF SECURITY INTEREST; CONTINUING LIABILITY UNDER COLLATERAL
7
Section 3
REPRESENTATIONS AND WARRANTIES
8
3.1
Organization and Qualification; Authority; Binding Effect
8
3.2
No Conflict; Required Filings and Consents
9
3.3
Title; No Other Liens
9
3.4
Valid, Perfected First Priority Liens
9
3.5