EXECUTION COPY
EXHIBIT H-1
[AMENDED AND RESTATED] OPEN-END MORTGAGE, ASSIGNMENT
OF RENTS AND SECURITY AGREEMENT
[OHIO FORM]
Effective Date: _____________, 1994
Total Indebtedness (Exclusive of Interest Thereon)
Not To Exceed: $150,000,000
Maturity Date: _____________________, 1996
Mortgagor: Health Care REIT, Inc.
Mortgagor's Notice Address: One SeaGate, Suite 1950
Toledo, Ohio 43604
Attention: Ms. Erin C. Ibele
Agent: National City Bank
Agent's Notice Address: National City Center
1900 East Ninth Street
Cleveland, Ohio 44114
Attention: Metro Ohio Division
Fee Owner: Health Care REIT, Inc.
One SeaGate, Suite 1950
Toledo, Ohio 43604
Premises Address: __________________________________
__________________________________
______________________ County
This Instrument Prepared By and
After Recording Return To: CALFEE, HALTER & GRISWOLD
Suite 1800
800 Superior Avenue
Cleveland, Ohio 44114-2688
TABLE OF CONTENTS
Section Page
ARTICLE 1 - GRANTING CLAUSES . . . . . . . . . . . . . . . . 2
ARTICLE 2 - OBLIGATIONS SECURED . . . . . . . . . . . . . . 3
2.1 Security for Indebtedness . . . . . . . . . . . . 3
2.2 Security for Future Advances . . . . . . . . . . 3
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES . . . . . . . . . 3
3.1 Existence . . . . . . . . . . . . . . . . . . . . 3
3.3 Enforceability . . . . . . . . . . . . . . . . . 4
3.4 Litigation; Proceedings . . . . . . . . . . . . . 4
3.5 Taxes . . . . . . . . . . . . . . . . . . . . . . 4
3.6 Compliance with Laws . . . . . . . . . . . . . . 4
3.7 ERISA . . . . . . . . . . . . . . . . . . . . . . 4
3.8 Adverse Obligations; Labor Disputes . . . . . . . 5
3.9 Insurance . . . . . . . . . . . . . . . . . . . . 5
3.10 Solvency . . . . . . . . . . . . . . . . . . . . 5
3.11 Investment Company Act Status . . . . . . . . . . 5
3.12 Construction and Completion of Improvements . . . 5
3.13 Title to the Premises . . . . . . . . . . . . . . 5
3.14 Independence of Premises . . . . . . . . . . . . 5
3.15 Business Purpose . . . . . . . . . . . . . . . . 6
3.16 Full Disclosure . . . . . . . . . . . . . . . . . 6
ARTICLE 4 - COVENANTS AND AGREEMENTS . . . . . . . . . . . . 6
4.1 Payment of Indebtedness . . . . . . . . . . . . . 6
4.2 Payment of Taxes . . . . . . . . . . . . . . . . 6
4.3 Insurance . . . . . . . . . . . . . . . . . . . . 7
4.4 Escrow Account for Taxes and Insurance . . . . . 8
4.5 Changes in Law Regarding Taxes . . . . . . . . . 8
4.6 Liens . . . . . . . . . . . . . . . . . . . . . . 9
4.7 Transfers and Encumbrances . . . . . . . . . . . 9
4.8 Waste . . . . . . . . . . . . . . . . . . . . . . 9
4.9 Compliance with Laws and Private Restrictions . . 9
4.10 Maintenance and Alterations . . . . . . . . . . . 10
4.11 Management of the Premises . . . . . . . . . . . 10
4.12 Performance of Prior Covenants . . . . . . . . . 10
4.13 Compliance with Material Contracts; No Amendment
or Default of Material Contracts . . . . . . . . 10
4.14 Visitation . . . . . . . . . . . . . . . . . . . 11
4.15 Estoppel Certificates . . . . . . . . . . . . . . 11
4.16 Indemnification . . . . . . . . . . . . . . . . . 11
4.17 Notice Limiting Amount Secured . . . . . . . . . 11
ARTICLE 5 - CASUALTY LOSSES AND EMINENT DOMAIN . . . . . . . 12
5.1 Casualty Loss and Application of Insurance
Proceeds . . . . . . . . . . . . . . . . . . . . 12
5.2 Takings . . . . . . . . . . . . . . . . . . . . . 13
5.3 Distribution of Taking Proceeds and Insurance
Proceeds . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 6 - ENVIRONMENTAL COMPLIANCE . . . . . . . . . . . . 14
6.1 Definitions . . . . . . . . . . . . . . . . . . . 14
6.2 Environmental Representations and Covenants . . . 15
6.3 Right of Entry . . . . . . . . . . . . . . . . . 17
6.4 Obligations of the Agent and the Banks . . . . . 17
6.5 Indemnification Provisions . . . . . . . . . . . 17
ARTICLE 7 - SECURITY AGREEMENT . . . . . . . . . . . . . . . 17
ARTICLE 8 - DEFAULTS AND REMEDIES . . . . . . . . . . . . . 19
8.1 Default . . . . . . . . . . . . . . . . . . . . . 19
8.2 Acceleration of Maturity; Remedies . . . . . . . 19
8.3 Power of Sale . . . . . . . . . . . . . . . . . . 19
8.4 Performance By the Agent . . . . . . . . . . . . 19
8.5 Appointment of Receiver . . . . . . . . . . . . . 20
8.6 Taking Possession of the Premises . . . . . . . . 20
8.7 Remedies Non-Exclusive . . . . . . . . . . . . . 21
8.8 Execution of Judgment . . . . . . . . . . . . . . 21
8.9 Fees Payable on Foreclosure . . . . . . . . . . . 21
ARTICLE 9 - ASSIGNMENT OF LEASES AND RENTS . . . . . . . . . 21
ARTICLE 10 - GENERAL . . . . . . . . . . . . . . . . . . . . 21
10.1 No Waiver . . . . . . . . . . . . . . . . . . . . 21
10.2 Legal Proceedings . . . . . . . . . . . . . . . . 22
10.3 Subrogation . . . . . . . . . . . . . . . . . . . 22
10.4 Release and Partial Release . . . . . . . . . . . 22
10.5 Subordination . . . . . . . . . . . . . . . . . . 23
10.6 Waiver of Homestead Rights and Appraisement . . . 23
10.7 Covenants to Run with the Land . . . . . . . . . 23
10.8 No Claims Against Agent or the Banks . . . . . . 23
10.9 Further Assurances . . . . . . . . . . . . . . . 23
10.10 Recordation . . . . . . . . . . . . . . . . . . . 24
10.11 Notices . . . . . . . . . . . . . . . . . . . . . 24
10.12 Governing Law . . . . . . . . . . . . . . . . . . 24
10.13 Conflict With Laws . . . . . . . . . . . . . . . 24
10.14 Interest Limitation . . . . . . . . . . . . . . . 24
10.15 Rules of Construction . . . . . . . . . . . . . . 24
10.16 Successors and Assigns; Assignment . . . . . . . 25
10.17 Amendments and Waivers . . . . . . . . . . . . . 25
10.18 Waiver of Jury Trial . . . . . . . . . . . . . . 25
10.19 Jurisdiction; Venue, Inconvenient Forum . . . . . 25
10.20 Certain Defined Terms . . . . . . . . . . . . . . 26
ARTICLE 11 - DEFEASANCE . . . . . . . . . . . . . . . . . . 26
EXHIBITS
Exhibit 1 - Legal Description of Premises
Exhibit 2 - Permitted Encumbrances
INDEX OF CERTAIN DEFINED TERMS
Term Definition
Agent . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Banks . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Borrower . . . . . . . . . . . . . . . . . . . . . . . Preamble
Casualty Loss . . . . . . . . . . . . . . . . . . . . Section 5.1
Code . . . . . . . . . . . . . . . . . . . . . . . . Section 7.1
Collateral . . . . . . . . . . . . . . . . . . . . . Section 3.9
Collateral Documents . . . . . . . . . . . . . . . . . Recitals
Credit Agreement . . . . . . . . . . . . . . . . . . . Recitals
Default Rate . . . . . . . . . . . . . . . . . . . . Section 4.4
Environmental Claims . . . . . . . . . . . . . . . . . Section 6.1
Environmental Laws . . . . . . . . . . . . . . . . . . Section 6.1
Environmental Permits . . . . . . . . . . . . . . . . Section 6.1
Event of Default . . . . . . . . . . . . . . . . . . . Section 8.1
Hazardous Materials . . . . . . . . . . . . . . . . . Section 6.1
Improvements . . . . . . . . . . . . . . . . . . . . . Article 1(b)
Indebtedness . . . . . . . . . . . . . . . . . . . . . Section 2.1
Insurance Proceeds . . . . . . . . . . . . . . . . . . Section 5.1
Indemnitee . . . . . . . . . . . . . . . . . . . . . . Section 6.1
Land . . . . . . . . . . . . . . . . . . . . . . . . . Article 1(a)
Law . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.2
Loan Documents . . . . . . . . . . . . . . . . . . . . Recitals
Mortgage . . . . . . . . . . . . . . . . . . . . . . . Preamble
Mortgagor . . . . . . . . . . . . . . . . . . . . . . Preamble
Net Insurance Proceeds . . . . . . . . . . . . . Section 5.1(b)(ii)
Net Restoration Award . . . . . . . . . . . . . . . . Section 5.2
Notes . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Operator . . . . . . . . . . . . . . . . . . . . . . . Article 1(d)
Operator Lease . . . . . . . . . . . . . . . . . . . . Article 1(d)
Permitted Encumbrances . . . . . . . . . . . . . . . . Section 3.13
Person . . . . . . . . . . . . . . . . . . . . . . . . Section 6.1
Premises . . . . . . . . . . . . . . . . . . . . . . . Article 1
State . . . . . . . . . . . . . . . . . . . . . . . . Article 1(a)
Taking . . . . . . . . . . . . . . . . . . . . . . . . Section 5.2
Taking Proceeds . . . . . . . . . . . . . . . . . . . Section 5.2
Tax . . . . . . . . . . . . . . . . . . . . . . . . . Section 4.2
[AMENDED AND RESTATED] OPEN-END MORTGAGE, ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
THIS [AMENDED AND RESTATED] OPEN-END MORTGAGE, ASSIGNMENT
OF RENTS AND SECURITY AGREEMENT (the "Mortgage"), effective as of
the ______ day of ______________, 1994, is made by and between
HEALTH CARE REIT, INC., a Delaware corporation, whose federal
taxpayer identification number is __________, having a mailing
address at One SeaGate, Suite 1950, Toledo, Ohio 43604, Attention:
___________________ (hereinafter referred to as "Mortgagor"), and
NATIONAL CITY BANK, a national banking association, as Agent for
its benefit and the ratable benefit of the Banks (as defined
below), their successors and assigns (together with its successors
and assigns in such capacity, "Agent"), National City Center, 1900
East Ninth Street, Metro Division, Cleveland, Ohio 44114.
RECITALS:
WHEREAS, Mortgagor, as the "Borrower" has entered into
that certain Amended and Restated Credit Agreement dated as of the
effective date hereof (as the same may be supplemented, amended,
restated, modified or substituted from time to time, the "Credit
Agreement"; capitalized terms used herein without definition have
the meanings ascribed to such terms in the Credit Agreement) with
National City Bank and certain other banks as set forth in the
Credit Agreement (such banks and such other banks as may become
parties to the Credit Agreement from time to time, together with
their respective successors and assigns, all being hereinafter
collectively referred to as the "Banks") and Agent as agent for its
benefit and the ratable benefit of the Banks (together with its
successors and assigns in such capacity hereinafter referred to as
"Agent"), pursuant to which the Banks have agreed to loan to the
Mortgagor up to $150,000,000 upon the terms and conditions set
forth therein [which Credit Agreement amends and restates in its
entirety that certain Credit Agreement, dated as of October 1,
1989, by and between the Mortgagor as "Borrower" and National City
Bank as Agent for itself and the other banks (the "Original Banks")
(National City Bank acting in such capacity is hereinafter referred
to as the "Original Agent") which are parties thereto (the
"Original Credit Agreement")];
WHEREAS, to evidence the obligations of the Mortgagor to
the Banks under the Credit Agreement, the Mortgagor has executed
and delivered to the Banks one or more Revolving Credit Notes dated
as of the effective date hereof in the aggregate principal amount
of up to $150,000,000 (the "Notes")[, which Notes replace the notes
executed and delivered by the Mortgagor under the Original Credit
Agreement (the "Original Notes")];
[WHEREAS, the Mortgagor has executed and delivered to the
Original Agent a certain mortgage recorded in Volume ___________,
Page ___________, _________ County Records (the "Original
Mortgage") to secure to the Original Agent the obligations of the
Mortgagor to the Original Agent and the Original Banks under the
Original Credit Agreement and all other instruments and agreements
evidencing or securing such obligations or otherwise related
thereto;]
[WHEREAS, the Original Agent has assigned to Agent the
Original Credit Agreement, the Original Mortgage, and all other
instruments and agreements evidencing or securing the obligations
of the Mortgagor under the Original Credit Agreement or otherwise
related thereto;]
WHEREAS, the Mortgagor has executed and delivered to the
Agent this Mortgage to secure to the Agent the obligations of the
Mortgagor to the Banks under the Credit Agreement, the Collateral
Documents (as defined in the Credit Agreement), and all Related
Writings (as defined in the Credit Agreement) (the Notes, the
Credit Agreement, this Mortgage, the Collateral Documents and the
Related Writings are sometimes collectively referred to herein as
the "Loan Documents")[, which Mortgage amends and restates the
Original Mortgage in its entirety];
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and for
the purposes set forth below, the Mortgagor hereby covenants and
agrees as follows:
ARTICLE 1 - GRANTING CLAUSES
The Mortgagor does hereby give, grant, bargain, sell,
grant a security interest in, mortgage, pledge, hypothecate,
assign, and convey unto the Agent, its successors and assigns, all
right, title and interest of the Mortgagor (whether fee, leasehold,
legal, or equitable) in and to the following real and personal
property (hereinafter collectively referred to as the "Premises"):
(a) the real property situated in the City of ____________,
County of ____________, State of ________ (the "State"), described
in Exhibit 1 attached hereto and made a part hereof by reference,
together with all rights and easements now or hereafter created
which are appurtenant thereto (including without limitation all
streets, alleys, passages, water, water courses, riparian rights,
minerals, rights, liberties and privileges thereof, if any) and all
strips and gores and all related tenements and hereditaments, if
any (collectively referred to as the "Land"); and
(b) all buildings and improvements of every kind and
description now or hereafter erected or placed on the Land and all
materials intended for construction, reconstruction, alteration and
repair of such improvements now or hereafter erected thereon
(collectively, the "Improvements"), all of which materials shall be
deemed to be included within the Premises immediately upon the
delivery thereof to the Land, and all fixtures and articles of
personal property now or hereafter owned by the Mortgagor and
attached to, or located on, and used in the construction,
management or operation of the Land or the Improvements, including
but not limited to all furniture, furnishings, apparatus,
machinery, motors, elevators, fittings, radiators, awnings, shades,
blinds, office equipment, carpeting and other furnishings, and all
plumbing, heating, lighting, ventilating, refrigerating,
incinerating, air-conditioning and sprinkler equipment and fixtures
and appurtenances thereto, and all renewals or replacements
thereof, proceeds therefrom, or articles in substitution therefor,
whether or not the same are or shall be attached to the
Improvements in any manner; and
(c) all awards and other compensation heretofore or hereafter
to be made to the present and all subsequent owners of the Premises
for any taking by eminent domain, either permanent or temporary, of
all or any part of the Premises or any easement or appurtenance
thereof, including severance and consequential damage, and change
in grade of streets, which said awards and compensation are hereby
assigned to the Agent; and
(d) all of the Mortgagor's right, title and interest in all
present and future leases, subleases, lettings and licenses of the
Premises including, without limitation, the Lease Agreement between
Mortgagor and ___________ (the "Operator"), dated __________ (the
"Operator Lease"), cash or securities (including guaranties,
letters of credit and other credit enhancement instruments or
agreements), deposited thereunder to secure performance by the
Mortgagor's tenants (including, without limitation, the Operator)
of their obligations thereunder, whether such cash or securities
are to be held until the expiration of the terms of such leases or
applied to one or more of the expiration of such terms, as well as
in and to all judgments, awards of damages and other proceeds
relating to rent, tenancies, subtenancies and occupancies of the
land, Improvements and personalty, and in and to present and future
remainders, rents, issues and profits thereof; and
(e) all of the Mortgagor's interest in and to all unearned
premiums accrued, accruing or to accrue under any and all insurance
policies now or hereafter obtained by the Mortgagor insuring all or
any portion of the Premises and in and to any and all proceeds
payable under any one or more of said policies; and
(f) all of the Mortgagor's interest in all rents, issues,
proceeds, income, revenue and profits of or accruing from any of
the foregoing and any renewals, replacements, substitutions,
extensions, improvements, betterments, appurtenances and additions
to the Improvements or personalty made or acquired by the Mortgagor
after the date hereof and all licenses, permits and other like
rights or interests now or hereafter held or acquired by the
Mortgagor and necessary or useful for the operation of the
Premises.
TO HAVE AND TO HOLD all and singular the Premises,
whether now owned, held or hereafter acquired by the Mortgagor,
unto the Agent, its successors and assigns, forever.
ARTICLE 2 - OBLIGATIONS SECURED
2.1 Security for Indebtedness. The Mortgagor has executed and
delivered this Mortgage for the purpose of securing the performance
of the covenants and agreements contained herein and in any
agreement made with respect to the obligations hereby secured, and
to secure the payment when due, but not necessarily in the order
set forth, of:
(a) any and all sums advanced, readvanced or loaned to, or to
be advanced, readvanced or loaned to, the Mortgagor pursuant to,
and all other obligations and liabilities of the Mortgagor arising
under or in connection with the Credit Agreement, together with
interest thereon at the rate or rates in effect from time to time
as provided in the Credit Agreement;
(b) all sums expended or advanced by the Agent or any of the
Banks pursuant to any term or provision of this Mortgage or any of
the other Collateral Documents in accordance with the Credit
Agreement;
(c) all advances or disbursements of the Agent with respect
to the Premises pursuant to Section 8.4 of this Mortgage for the
payment of taxes, levies, assessments, insurance premiums or costs
incurred in the protection of the Premises as provided in Section
5301.233, Ohio Revised Code; and
(d) the unpaid balances of any loan advances and all other
liabilities and indebtedness of the Mortgagor under the Credit
Agreement to the extent that the total unpaid indebtedness secured
hereby, exclusive of the interest thereon, does not exceed One
Hundred Fifty Million Dollars ($150,000,000);
(all of such debts, liabilities and obligations being collectively
referred to herein as the "Indebtedness"), and as security for the
payment of the Indebtedness the Mortgagor has granted to the Agent
a lien against the Premises.
2.2 Security for Future Advances. This Mortgage is given for the
purpose of creating a lien on the Premises and expressly is to
secure not only the existing Indebtedness but also (i) all
extensions, renewals, modifications or reamortizations of the
Indebtedness, all increases or additions to the Indebtedness, all
loans and future advances and readvances made by the Agent or any
of the Banks to the Mortgagor and all other debts, obligations and
liabilities of every kind and character of the Mortgagor now or
hereafter existing in favor of the Agent and the Banks whether such
debts, obligations or liabilities be direct or indirect, primary or
secondary, joint or several, fixed or contingent, and whether
originally payable to the Agent or any of the Banks or to a third
party and subsequently acquired by the Agent or any of the Banks
and (ii) future advances or readvances, whether such advances or
readvances are obligatory or to be made at the option of the Banks
or otherwise, to the same extent as if such future advances or
readvances were made, whether under the Credit Agreement, the Loan
Documents, or otherwise, on the date of the execution of this
Mortgage, and creates such a lien for all advances and readvances
regardless of who is the owner of the Premises at the time such
advances and readvances are made. The total amount of the
Indebtedness may decrease or increase from time to time and the
Banks may or shall, as required and obligated by the Credit
Agreement, at any time after this Mortgage is delivered for record
to the Office of the County Recorder where the Premises are
situated, make future advances and readvances to the Mortgagor;
however, the total unpaid balance secured at any one time shall not
exceed $150,000,000 plus interest thereon computed in accordance
with the Credit Agreement and any disbursement made for the payment
of taxes, levies or insurance on the Premises with interest on such
disbursements computed in accordance with the Credit Agreement.
Any such future advances and readvances, with interest, shall be
secured by this Mortgage and shall be evidenced by the Credit
Agreement and the Loan Documents.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
The Mortgagor represents and warrants as follows:
3.1 Existence. The Mortgagor is duly organized, validly existing
and in good standing under the laws of the state of its
incorporation. The Supplemental Schedule (as defined in the Credit
Agreement) sets forth the name and address of the Mortgagor as of
the Closing Date, the chief executive office of the Mortgagor and
the jurisdiction in which the Mortgagor is incorporated. All of
the outstanding stock of each Subsidiary (as defined in the Credit
Agreement) of the Mortgagor is owned by the Mortgagor and is fully
paid and non-assessable and owned by the Mortgagor free from any
security interest, option, equity or other right of any kind. The
Mortgagor is duly qualified to transact business in each state or
other jurisdiction in which it owns or leases any real property or
in which the nature of the business conducted makes such
qualification necessary or, if not so qualified, such failure to
qualify has neither resulted nor would, more likely than not,
result in a Material Impairment or a Material Adverse Effect (as
such terms are defined in the Credit Agreement).
3.2 Power, Authorization and Consent. The execution, delivery and
performance by the Mortgagor of this Mortgage and of all Related
Writings (as defined in the Credit Agreement) to which it is party
and the creation of all liens and security interests provided for
herein or therein (a) are within the Mortgagor's legal power and
authority, (b) have been duly authorized by all necessary or proper
action of the Mortgagor, (c) do not require the consent or approval
of any governmental body, agency, authority or any other Person (as
defined in the Credit Agreement) which has not been obtained and a
copy thereof furnished to the Agent and (d) will not violate (i)
any provision of any "Law" (which for purposes of this Mortgage
means any federal, state, local or foreign law, ordinance, or
regulation or any order, case precedent, ruling, directive,
judgment, injunction, award or decree or request having the force
of law or any other requirement of any governmental or regulatory
body, court, tribunal or arbitrator) applicable to the Mortgagor,
(ii) any provision of the Mortgagor's certificate or articles of
incorporation or by-laws or regulations, or (iii) any material
agreement or material indenture by which the Mortgagor or the
property of the Mortgagor is bound, except where such violation
specified in this clause (iii) has neither resulted nor would, more
likely than not, result in a Material Impairment or a Material
Adverse Effect (as such terms are defined in the Credit Agreement,
(e) will not result in the creation or imposition of any lien or
encumbrance on any property or assets of the Mortgagor except as
provided herein and in the Credit Agreement, or (f) will not result
in the disqualification of the Mortgage or any Subsidiary of the
Mortgagor as a REIT under Section 856 of the Internal Revenue Code.
3.3 Enforceability. This Mortgage constitutes the legal, valid
and binding obligation of the Mortgagor, enforceable against the
Mortgagor in accordance with its terms subject to any applicable
insolvency or bankruptcy Law of general applicability and general
principles of equity and any limitations imposed by standards of
commercial reasonableness, good faith and fair dealing.
3.4 Litigation; Proceedings. Except as set forth in the
Supplemental Schedule, no action, suit, investigation or proceeding
is now pending or, to the knowledge of the Mortgagor, threatened
against the Mortgagor at law, in equity or otherwise, or with
respect to this Mortgage or any Related Writing to which the
Mortgagor is a party, before any court, board, commission, agency
or instrumentality of any federal, state, local or foreign
government or of any agency or subdivision thereof, or before any
arbitrator or panel of arbitrators which has resulted or would,
more likely than not, result in a Material Adverse Effect.
3.5 Taxes. As of the Closing Date, the Mortgagor and each of its
Subsidiaries has filed all federal, state and local tax returns
which are required to be filed by it and paid all taxes due as
shown thereon, including interest and penalties (except to the
extent, if any, permitted by Section 5.03(a) of the Credit
Agreement).
3.6 Compliance with Laws. Without limiting the representations
made in Section 6.2, neither the Mortgagor, nor any Subsidiary of
the Mortgagor, nor, to the best knowledge of the Mortgagor, the
Operator, is in violation of any Law applicable to the business or
properties of the Mortgagor or any Subsidiary of the Mortgagor,
except for such minor and isolated violations when taken singly or
in the aggregate have neither resulted nor would, more likely than
not, result in a Material Adverse Effect.
3.7 ERISA. The Supplemental Schedule sets forth all of the
Employee Benefit Plans (as defined in the Credit Agreement) of the
Mortgagor and its ERISA Affiliates (as defined in the Credit
Agreement). No Accumulated Funding Deficiency (as defined in the
Credit Agreement) exists in respect of any Employee Benefit Plan of
the Mortgagor or any of its ERISA Affiliates which exceeds One
Hundred Thousand Dollars ($100,000). No Reportable Event (as
defined in the Credit Agreement) has occurred in respect of any
Employee Benefit Plan which is continuing and which (i) constitutes
grounds either for termination of the plan or for court appointment
of a trustee for the administration thereof or (ii) has resulted or
would, more likely than not, result in a Material Adverse Effect.
No "prohibited transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Internal Revenue Code of 1986, as amended) has
occurred that has resulted in or would, more likely than not,
result in, a Material Adverse Effect. None of the Mortgagor or any
of its ERISA Affiliates has (i) had an obligation to contribute to
any Multiemployer Plan, as defined in Section 4001(a)(3) of ERISA,
since 1987 or (ii) incurred or reasonably expects to incur any
liability for the withdrawal from such a Multiemployer Plan which
liability has resulted or would, more likely than not, result in a
Material Adverse Effect.
3.8 Adverse Obligations; Labor Disputes. Except as set forth in
the Supplemental Schedule, the Mortgagor is not subject to any
contract, agreement, corporate restriction, judgment, decree or
order materially and adversely affecting its business, property,
assets, operations or condition, financial or otherwise, is not a
party to any labor dispute (other than grievance disputes which do
not in the aggregate materially and adversely affect any of the
operations, financial condition, or business of the Mortgagor and
its Subsidiaries, if any, on a consolidated basis), and there are
no strikes, slow downs, walkouts or other concerted interruptions
of operations by employees whether or not relating to any labor
contracts which have resulted or would, more likely than not,
result in a Material Adverse Effect.
3.9 Insurance. As of the Closing Date, the insurance coverage of
the Mortgagor consists of those insurance policies disclosed on the
Supplemental Schedule as required by and set forth in Section
5.03(d) to the Credit Agreement and in the Collateral Documents.
3.10 Solvency. The Mortgagor and each of its Subsidiaries is
Solvent (as defined in the Credit Agreement).
3.11 Investment Company Act Status. The Mortgagor is not an
"investment company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms
are defined in the Investment Company Act of 1940, as amended (15
U.S.C. Section 80(a)(1), et seq.).
3.12 Construction and Completion of Improvements. All buildings
and Improvements comprising the Premises have been completed and
installed in a good workmanlike manner, in compliance with all
applicable Law, ordinances, building codes and the plans and
specifications except where noncompliance with any of the
foregoing, when taken singly or with all other instances of
noncompliance, has neither resulted nor would, more likely than
not, result in a Material Impairment. The Premises are served by
electric, gas, sewer, water, telephone and other utilities required
for their present and contemplated uses and operation. Any and all
streets, utility lines and offsite improvements, which provide
access to the Premises or are necessary for its present and
contemplated uses, have been completed, are serviceable and have
been accepted or approved by appropriate governmental bodies.
3.13 Title to the Premises. (i) The Mortgagor has good and
marketable fee simple title to the Premises described on Exhibit 1,
free and clear of all liens, security interests, restrictions and
encumbrances except only those listed on Exhibit 2 attached hereto
and made a part hereof by reference (hereinafter collectively
referred to as the "Permitted Encumbrances"), (ii) the Mortgagor
has good and marketable title to each item of personal property
comprising the Premises (hereinafter collectively referred to as
the "Collateral) free and clear of all liens, security interests,
restrictions and encumbrances except only the Permitted
Encumbrances, and (iii) the Mortgagor has good right to bargain,
sell and convey the Premises in manner and form as above written.
The Mortgagor will warrant and defend the Premises with the
appurtenances thereunto belonging to the Agent and the Banks, their
successors and assigns, forever against all lawful claims and
demands whatsoever subject only to the Permitted Encumbrances.
3.14 Independence of Premises. The Mortgagor has not permitted
and shall not permit by act or omission any building or other
improvements on premises not subject to the lien of this Mortgage
to rely on the Premises or any part thereof or any interest therein
to fulfill any municipal or governmental requirement for the
existence of such premises or such building or improvement, and no
building or other improvement on the Premises has relied or shall
rely on any premises not subject to the lien of this Mortgage or
any interest therein to fulfill any governmental or municipal
requirement. Mortgagor shall not by act or omission impair the
integrity of the Premises as one or more separate subdivided zoning
lots separate and apart from all other premises.
3.15 Business Purpose. The Indebtedness is incurred solely for a
business purpose and not a personal, family, household or
agricultural purpose.
3.16 Full Disclosure. No information, exhibits or reports
furnished by the Mortgagor to the Agent or any Bank omits to state
any fact necessary to make the statements contained therein not
materially misleading in light of the circumstances and purposes
for which such information was provided. The Mortgagor has
provided all information requested by the Agent or any Bank and all
such information is complete and accurate in all material respects.
ARTICLE 4 - COVENANTS AND AGREEMENTS
The Mortgagor and its successors and assigns hereby
covenant and agree with the Agent and the Banks, their successors
and assigns, as follows:
4.1 Payment of Indebtedness. The Mortgagor will pay the
Indebtedness according to its tenor and effect when due and owing
and keep and perform all covenants, agreements, conditions and
stipulations thereof.
4.2 Payment of Taxes.
(a) The Mortgagor shall pay or cause to be paid, before any
penalty, interest or cost may be imposed, all real estate taxes,
assessments, levies, water and sewer rents and charges, charges for
public utilities and all other governmental charges, general and
special, ordinary and extraordinary, foreseen and unforeseen, of
any kind and nature whatsoever which at any time during the term of
this Mortgage may be assessed, levied, imposed upon, or grow or
become due and payable out of or in respect of, or become a lien
on, the Premises or any part thereof or any appurtenance thereto or
the Indebtedness or the interest of the Agent and the Banks therein
excepting the federal income tax imposed on the Agent or the Banks
under the laws of the United States (all such taxes, assessments,
levies, water and sewer rents and charges, charges for public
utilities, and other governmental charges being hereinafter
collectively referred to as "Taxes", and any of the same being
hereinafter referred to as a "Tax"); provided, however, that if any
Tax may at the option of the taxpayer be paid in installments
(whether or not interest shall accrue on the unpaid balance of such
Tax), the Mortgagor may exercise the option to pay the same (and
any accrued interest on the unpaid balance of such Tax) in
installments and, in such event, shall pay such installments as the
same respectively become due and before any fine, penalty, further
interest or cost may be added thereto. The Mortgagor shall submit
evidence of the payment of all Taxes to the Agent not less than ten
(10) Business Days after the due date for such payment. The
Mortgagor shall be entitled to the benefit of installment payments
regarding any Tax which is payable in installments, provided,
however, in the event the Mortgagor fails to make any installment
payment when due, the entire amount of such Tax (together with any
accrued interest on the unpaid balance thereof) shall, for the
purposes of this Section 4.2, be deemed due and payable by the
Mortgagor in its entirety on the day a lien would attach to the
Premises.
(b) Notwithstanding the provisions of subsection (a) above,
(i) the Mortgagor shall have the right to contest in good faith any
Tax upon posting with the Agent (or other agent if required under
applicable Law) sufficient security, satisfactory to the Agent, in
its reasonable judgment, for the payment thereof, with interest,
costs and penalties, under written agreement conditioning payment
of such contested Taxes upon determination of such contest, or
prior thereto if the continuance of such contest shall put the
Premises in jeopardy of tax sale or forfeiture; provided, however,
that the Mortgagor shall not be required to post such security so
long as (A) no Event of Default exists, and (B) the posting of such
security is not required to stay enforcement of such Tax and the
Premises are not in jeopardy of tax sale or forfeiture; and (ii) so
long as there exists no Event of Default under this Mortgage, the
Mortgagor shall make all payments of Taxes directly to the
appropriate authorities and without making the payments to the
escrow account contemplated by Section 4.4, but upon the occurrence
of any Event of Default, the provisions of Section 4.4 shall be
automatically applicable and in full force and effect.
4.3 Insurance.
(a) The Mortgagor shall cause the Operator of the Premises to
keep the Improvements on the Premises insured by a policy or
policies of all risk replacement cost insurance (with agreed amount
endorsement) against loss or damage by, or abatement of income
resulting from fire, flood and such other hazards, casualties and
contingencies (including, but not limited to, extended coverage,
vandalism, malicious mischief), in an amount not less than the
greater of (i) the full replacement cost thereof, or (ii) the
amount necessary so that none of the parties hereto shall be deemed
a co-insurer of a loss, and for such length of time as shall be
required by the Agent, which such policy shall be for the benefit
of the Mortgagor and the Agent, as their interests may appear, and
shall provide that no cancellation, reduction in amount, or change
in coverage shall be effective until at least thirty (30) days
after receipt by the Agent of written notice thereof. The
Mortgagor shall cause the Operator of the Premises to maintain
flood insurance, if required pursuant to a designation of the area
in which the Premises are located as flood prone or a flood risk
area, as defined by the Flood Disaster Protection Act of 1973, as
amended, in an amount of not less than the greater of (i) the sum
of the full replacement cost thereof, or (ii) the amount necessary
so that none of the parties hereto shall be deemed a co-insurer of
a loss, as well as comply with any additional requirements of the
National Flood Insurance Program as set forth in said Act. In the
event flood insurance in the required amount is not available,
flood insurance in the maximum amount available shall be obtained.
(b) The Mortgagor shall cause the Operator of the Premises to
maintain for the mutual benefit of the Agent and the Mortgagor
general public liability insurance against claims for personal
injury, death or property damage occurring upon, in or about the
Premises or any elevators therein and on, in or about the adjoining
streets and passageways, such insurance to afford protection to
such limits as the Agent may from time to time request, acting
reasonably. All of such insurance shall be primary and non-
contributing with any insurance policy which may be carried by the
Agent and the Banks.
(c) The Mortgagor shall cause the Operator of the Premises to
maintain all workers' compensation coverage required in connection
with the Premises by the applicable Law of the State.
(d) Absent the prior written consent of the Agent, all such
insurance policies shall be paid in full for periods of not less
than one (l) year in advance. So long as there exists no Event of
Default under this Mortgage, the Mortgagor shall make all payments
of insurance premiums directly and without making the payments to
the escrow account contemplated by Section 4.4, but upon the
occurrence of an Event of Default, the provisions of Section 4.4
shall be automatically applicable and in full force and effect.
(e) All insurance policies shall be issued by an insurer
lawfully doing business in the State and satisfactory to the Agent,
and, to the extent of its interest, are to be for the benefit of
and first payable in case of loss to the Agent as first mortgagee
without contribution. In the event the insurance coverage required
hereunder is provided as part of a blanket policy, then in such
event the amount of the coverage specifically applicable to the
Premises shall be stated on the face of the policy. The Mortgagor
shall place and keep the original policies of insurance required
hereunder with the Agent or, at the Mortgagor's election, a copy
thereof and an original certificate thereof, and shall deliver to
the Agent a new policy (or a copy thereof and an original
certificate thereof) in replacement for any expiring policy, with
evidence of advance premium payments, to the Agent at least thirty
(30) days before the date of such expiration at the Agent's address
as set forth at the beginning of this Mortgage, or at such other
place or to such other party as the Agent may, from time to time,
designate in writing.
(f) The Mortgagor, to the full extent permitted by Law and
without invalidating the insurance with respect to the Premises
required above, shall obtain endorsements by all insurers waiving
any right of subrogation against tenants under any leases with
respect to the Premises and shall require the same of such tenants.
The Agent and the Banks shall not, because of accepting, rejecting,
approving or obtaining insurance, incur any liability for the
existence, nonexistence, form or legal sufficiency thereof, the
solvency of any insurer, or the payment of losses.
(g) Upon foreclosure of this Mortgage, any Event of Default,
or other transfer of title or assignment of the Premises in
discharge, in whole or part, of the Indebtedness, all right, title
and interest of the Mortgagor in and to all policies of insurance,
or portions thereof, required by this Section 4.3 and relating to
the Premises shall inure to the benefit of and pass to the Agent.
4.4 Escrow Account for Taxes and Insurance. Subject to the
provisions of Sections 4.2(b) and 4.3(d) hereof, the Mortgagor will
pay to the Agent in addition to the monthly payments of principal
and interest under the terms of the Indebtedness secured hereby and
concurrently therewith monthly until the Indebtedness is fully
paid, the following sums:
(a) A sum equal to one-twelfth (1/12) of the estimated annual
cost of the Taxes, and one-twelfth (1/12) of the annual insurance
premiums required to keep the buildings, fixtures and equipment of
the Premises insured as required hereunder, which monthly payments
shall be credited to an escrow account, to be held by the Agent
without interest accruing thereon to pay each of the said
particular items. The amount of the estimated monthly payment
under this Section may be adjusted from time to time so that the
amount deposited by the Mortgagor shall approximate the total sum
required annually for payment of all Taxes and insurance premiums
required hereunder. This adjustment shall be made on demand of the
Agent and any deficiencies shall be paid by the Mortgagor within
ten (10) days of the Agent's demand therefor. If funds in the
escrow account are insufficient to pay all Taxes and insurance
premiums and the Mortgagor has failed, refused or neglected to pay
the same as they become due, the Agent may, but shall have no
obligation to, pay the same plus any interest or penalties due
thereon. Any such amount so paid by the Agent shall be added to
the Indebtedness forthwith with interest at the default rate of
interest as set forth in Section 2.06(c) of the Credit Agreement
(the "Default Rate"). No later than ten (10) days prior to the
date when any insurance premium payment or installment of Taxes is
due, without penalty, interest, or delinquency, the Mortgagor shall
present to the Agent the bill for any such premium or installment
of Taxes, and the Agent shall immediately draw a check on the
escrow account, payable to the appropriate insurance provider for
the insurance premiums or the appropriate taxing authority for the
Taxes, for the amount of said premium or installment (to the extent
such funds exist in the escrow account), and shall deliver such
check to the Mortgagor.
(b) Upon receipt of said check by the Mortgagor if such funds
are being escrowed, the Mortgagor shall pay and discharge, as the
same become payable, the insurance premiums and Taxes. The
Mortgagor will submit to the Agent such evidence of the due and
punctual payment of all insurance premiums and Taxes as the Agent
may require. Any deficiency in the fixed amount of any such
aggregate monthly payment not paid by Mortgagor to the Agent within
the grace period, if any, applicable to payments to be made under
the Credit Agreement shall constitute an Event of Default under
this Mortgage. In the event of a sale of the Premises (but without
it being considered a waiver of any rights contained herein), any
such funds then on deposit with the Agent, automatically and
without necessity of further notice or written assignment, shall be
transferred to and held thereafter for the account of the new owner
to be applied in accordance with the foregoing; provided, however,
that in the event any Event of Default has occurred and is
continuing at the time of a sale of the Premises, such funds may be
used by the Agent to satisfy such Event of Default. Any excess
funds then remaining shall be credited to subsequent payments of
Taxes and insurance premiums. If the amount of any such payment
shall exceed the estimate therefor, the Mortgagor shall upon demand
forthwith make good the deficiency. Failure to do so before the
due date of such payment shall be an Event of Default hereunder.
If the Premises are sold under foreclosure or are otherwise
acquired by the Agent after the occurrence of an Event of Default,
any remaining balance of such accumulated funds shall, at the
option of the Agent, be credited upon the Indebtedness as of the
date on which title to the Premises is transferred.
4.5 Changes in Law Regarding Taxes. If at any time the United
States or the State or any of their subdivisions having
jurisdiction shall levy, assess, or charge any Tax (i) upon this
Mortgage, the Indebtedness or the interest of the Agent and the
Banks in the Premises or (ii) upon the Banks by reason of or as
holder of any of the foregoing, then the Indebtedness and the
accrued interest thereon shall be and become due and payable at the
option of the Agent thirty (30) days after the mailing of notice of
such election to the Mortgagor; provided, however, said option
shall not be available if the Mortgagor lawfully may pay for (or
reimburse the Agent and/or any or all of the Banks for) such Tax
including interest and penalties thereon to or for the Agent and
elects to pay and does, in fact, pay when payable, for all such
Tax, including interest and penalties thereon. The Mortgagor
further agrees to deliver to the Agent, at any time, upon demand,
such evidence as may be required by any government agency having
jurisdiction in order to determine whether the Indebtedness hereby
secured is subject to or exempt from any such Tax or any other
governmental filing or reporting requirement.
4.6 Liens. Except as permitted under the Credit Agreement, the
Mortgagor shall keep the Premises free and clear from all
mechanics' liens and statutory liens of every kind other than Taxes
which may be a lien but not yet due and payable. Further, the
Mortgagor will keep and maintain the Premises free from all claims
of all persons supplying labor, materials or services which will
enter into or otherwise contribute to the construction of any and
all buildings and improvements now being erected or which hereafter
may be erected on the Premises, notwithstanding by whom such labor
or materials may have been contracted; provided, however, that the
Mortgagor shall have the right to contest in good faith any such
mechanics' lien or statutory lien upon posting with the Agent, or
such other agent as may be required pursuant to any applicable
statute, sufficient security, satisfactory to the Agent in its
reasonable judgment, for the payment thereof, with interest, costs
and penalties, under written agreement conditioning payment of such
contested mechanics' lien or statutory lien upon determination of
such contest, or prior thereto if the continuance of such contest
or litigation shall put the Premises in jeopardy of foreclosure
sale or forfeiture for such lien.
4.7 Transfers and Encumbrances.
(a) Except as permitted under the Credit Agreement and except
for the Permitted Encumbrances, the Mortgagor shall not sell,
encumber (including without limitation by means of subordinate
mortgage or lien upon the Premises or any part thereof), assign,
lease or dispose of the Premises or any part thereof or interest
thereon, or (ii) enter into any contract or agreement to do
anything prohibited by clause (i) of this Section 4.7, expressly
including without limitation any land contract, lease/purchase,
lease/option or option agreement without, in each such case, first
obtaining the written consent of the Agent. Any such lease or
agreement not actually approved by the Agent shall, at the option
of the Agent, be null and void and shall not grant any rights in
the Premises to the parties named therein. If the Mortgagor (or
any permitted successor-in-interest thereof) is a corporation, then
any merger, consolidation or liquidation shall constitute a sale of
the Premises for the purpose of this Mortgage. If the Mortgagor
(or any permitted successor-in-interest thereof) is a partnership,
then any transfer of ownership of any partnership interests shall
constitute a sale of the Premises for purposes of this Mortgage.
Except as permitted under the Credit Agreement, in the event title
to the Premises or any part thereof or interest therein becomes
vested in a person or persons not approved by the Agent, the
Indebtedness shall become due and payable in full at the option of
the Banks in accordance with the terms of the Credit Agreement. In
the event title to the Premises or any part thereof or interest
therein becomes vested in a person or persons other than the
Mortgagor or the Agent, the Agent may, without notice to the
Mortgagor, deal with such successor- or successors-in-interest with
respect to this Mortgage and the Indebtedness in the same manner as
with the Mortgagor, without in any way releasing, discharging or
otherwise affecting any liability of the Mortgagor under this
Mortgage or for the Indebtedness.
(b) The consent of the Agent required hereunder may be
refused or predicated upon any terms, conditions and covenants
deemed advisable or necessary by the Agent in its sole discretion,
including but not limited to the right to change the interest rate,
date of maturity or payments of principal and/or interest, to
require payment of any amounts as additional consideration as a
transfer fee or otherwise and to require assumption of this
Mortgage and/or one or more Notes. Any lease or sublease of the
Premises or any part thereof or interest therein shall provide for
the attornment by the subtenant thereof and of all subtenants or
estates thereunder to the owner of the Premises after foreclosure
or after a deed in lieu of foreclosure in the event the lease or
sublease would otherwise have been terminated because of
foreclosure.
4.8 Waste. The Mortgagor shall not commit waste upon the Premises
or suffer waste to be committed thereon.
4.9 Compliance with Laws and Private Restrictions. The Mortgagor
will keep the Premises in full compliance with Law applicable to or
affecting the Premises if noncompliance with such Law, when taken
singly or with all other instances of noncompliance, has either
resulted or would, more likely than not, result in a Material
Adverse Effect. The Mortgagor shall observe and comply with all
conditions and requirements necessary to preserve and extend any
and all rights, licenses, permits (including but not limited to
zoning variances, special exceptions and non-conforming uses),
privileges, franchises and concessions which are applicable to the
Premises or which have been granted to or contracted for by the
Mortgagor in connection with any existing or presently contemplated
use of the Premises and shall obtain and keep in full force and
effect all necessary governmental and municipal approvals as may be
necessary from time to time to comply with all environmental,
ecological and other requirements and with any and all conditions
attached to the insurance relating to the Premises and maintenance
thereof, if noncompliance with any of the foregoing, when taken
singly or with all other instances of noncompliance, has either
resulted or would, more likely than not, result in a Material
Adverse Effect.
4.10 Maintenance and Alterations. The Mortgagor shall, or shall
cause the Operator of the Premises to, construct, keep and maintain
and make all necessary and proper replacements to all buildings and
improvements (including fixtures) and all apparatus and personal
property owned by the Mortgagor now or hereafter situated on the
Premises at all times in good working order, condition and repair,
fit and proper for the respective purposes for which they were
erected or installed, ordinary wear and tear excepted, and shall
refrain from wasting or destroying any such necessary assets or any
part thereof and from being negligent in the care or use thereof.
No buildings or substantial improvements on the Premises shall be
materially altered or demolished or removed by the Mortgagor
without the prior written consent of the Agent. The Mortgagor
further covenants and agrees to make no alterations to the
buildings and improvements now or hereafter located on the Premises
that affect or change either the quantity or quality thereof in any
material respect, without the prior written consent of the Agent.
4.11 Management of the Premises. Except as permitted under the
Credit Agreement and except for the Operator Lease, the Mortgagor
shall not enter into any franchise, management, operating or
license agreement regarding the Premises without the Agent's prior
written consent.
4.12 Performance of Prior Covenants. The Mortgagor hereby
acknowledges that the Indebtedness was incurred in good faith for
full value received. The Mortgagor covenants and agrees to make
all payments and perform all conditions and covenants called for in
any prior mortgages, easements, restrictions or other encumbrances
now encumbering the Premises or any part thereof or interest
therein and those called for in any other superior estate of the
Premises prior to the expiration of the cure or grace period
applicable thereto, if any, and in the event of default in any such
payment or payments, conditions or covenants, the Agent, without
waiving the option to declare an Event of Default hereunder, herein
reserves the right to make such payments, or perform such
conditions or covenants. Any and all such sums paid or expenses
incurred on behalf of the Agent, together with interest thereon
from the date of payment at the Default Rate, shall be added to the
Indebtedness and be secured by this Mortgage.
4.13 Compliance with Material Contracts; No Amendment or Default
of Material Contracts.
(a) The Mortgagor shall perform and observe, and cause each
of its Subsidiaries to perform and observe, all the material terms
and provisions of each material contract relating to the Premises
to be performed or observed by it, including, without limitation,
the Operator Lease and all other Operator Lease Documents (as
defined in the Credit Agreement) and maintain each such material
contract in full force and effect, and enforce, to the extent that
the Mortgagor, in its reasonable judgment, determines to be
appropriate, each such material contract in accordance with its
terms if the failure of the Mortgagor to perform, observe or
enforce any one or more of such contracts has neither resulted nor
would, more likely than not, result in a Material Adverse Effect.
The Mortgagor shall not permit any Operator under any Operator Loan
or Operator Lease to remain in material default thereof if such
default has resulted or would, more likely than not, result in a
Material Adverse Effect.
(b) The Mortgagor shall not, and shall not permit any of its
Subsidiaries to take any action to amend, cancel, terminate, waive
any provision of, consent to the noncompliance with any term of any
material contract with respect to the Premises (material contracts
being deemed to include, without limitation, the Operator Lease and
the Operator Lease Documents); provided, however, that the
Mortgagor may take any such action so long as such action (i) does
not relate to a material financial provision of any agreement which
is the subject of the Collateral Assignment of Operator Lease
Documents of even date herewith (the "Collateral Assignment"), (ii)
does not relate to any provision in any agreement which is the
subject of the Collateral Assignment and which provision is
expressly for the benefit of the mortgagee or assignee with respect
thereto, (iii) is taken in the ordinary course of the Mortgagor's
or such Subsidiary's business, (iv) is consistent with the
Mortgagor's past practices, (v) which would not, more likely than
not, result in a Material Adverse Effect, (vi) will not have an
adverse effect on the interest (including the perfection and
priority of any security interest or Lien in favor of the Agent or
the Mortgagor) of the Agent and the Banks in such agreement or the
assets with respect thereto or otherwise result in a Material
Impairment.
4.14 Visitation. The Mortgagor shall permit, and shall cause the
Operator of the Premises to permit, upon receipt of not less than
two Business Days' prior written notice, each of the Banks during
normal business hours: (i) to examine the Premises with the
guidance and supervision of the Mortgagor, and to examine the
Mortgagor's financial records and to make copies of and extracts
from such records; and (ii) to consult with the Mortgagor's
officers, directors, accountants, actuaries, trustees and plan
administrators, as the case may be, in respect of the Mortgagor's
financial condition, properties and operations and the financial
condition of the Mortgagor's Employee Benefit Plans, each of which
parties is hereby authorized to make such information available to
each of the Banks to the same extent that it would to the
Mortgagor; provided, however, that, all information obtained shall
be subject to the provisions of Section 8.03 of the Credit
Agreement.
4.15 Estoppel Certificates. Within ten (10) days after request by
the Agent, the Mortgagor shall furnish the Agent with a statement,
duly acknowledged and certified, setting forth (i) the amount of
the original principal amount of the Indebtedness, (ii) the unpaid
principal amount of the Indebtedness, (iii) the rate of interest of
the Indebtedness, (iv) the date installments of interest and
principal were last paid, (v) any offsets or defenses to the
payment of the Indebtedness, if any, and (vi) that the Indebtedness
and this Mortgage are valid, legal and binding obligations of the
Mortgagor and have not been modified or if modified, giving the
particulars of such modification.
4.16 Indemnification. The Mortgagor hereby indemnifies and agrees
to protect, defend, and save harmless the Agent and the Banks from
and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs, and expenses (including,
without limitation, attorneys' fees and expenses), imposed upon or
incurred by or asserted against the Agent or any of the Banks
(except liabilities, obligations, claims, damages, penalties,
causes of action, costs, and expenses resulting from the Agent's or
a Bank's gross negligence or willful misconduct) by reason of (i)
ownership of this Mortgage, the Premises, or any interest therein
or receipt of any rents; (ii) any alleged obligation or liability
on the part of the Agent to be performed or discharged under the
terms and provisions of any agreements relating to the Premises,
except for such liabilities as the Agent or any of the Banks may
specifically assume thereunder; (iii) any accident, injury to or
death of persons or loss of or damage to property occurring in, on,
or about the Premises or any part thereof or on the adjoining
sidewalks, curbs, adjacent property, or adjacent parking areas,
streets, or ways; (iv) any use, non-use, or condition in, on, or
about the Premises, or any part thereof or on the adjoining
sidewalks, curbs, adjacent property, or adjacent parking areas,
streets or ways; (v) any actions or omissions of the Mortgagor
relating to this Mortgage or the Loan Documents or any failure on
the part of the Mortgagor to perform or comply with any of the
terms of this Mortgage or the Loan Documents; (vi) the performance
of any labor or services or the furnishing of any materials or
other property in respect of the Premises or any part thereof;
(vii) any lease agreement or under or by reason of this Mortgage or
the exercise of rights or remedies hereunder and from any and all
claims and demands whatsoever which may be asserted against the
Agent or any of the Banks by reason of any alleged obligations or
undertakings on its part to perform or discharge any of the terms,
covenants or agreements contained in any such lease agreement; or
(viii) the failure of any person to file timely with the Internal
Revenue Service an accurate Form 1099-B, Statement for Recipients
of Proceeds from Real Estate, Broker and Barter Exchange
Transactions, which may be required in connection with this
Mortgage, or to supply a copy thereof in a timely fashion to the
recipient of the proceeds of the transaction in connection with
which this Mortgage is made. Any amounts payable to the Agent or
any of the Banks by reason of the application of this Section 4.16
shall be secured by this Mortgage and shall become immediately due
and payable and shall bear interest at the rate of interest then
applicable under the Credit Agreement from the date loss or damage
is sustained by the Agent and such of the Banks until paid. The
obligations and liabilities of the Mortgagor under this Section
4.16 shall survive the satisfaction, foreclosure, delivery of a
deed in lieu of foreclosure, execution, termination or cancellation
of the Notes, this Mortgage, the Credit Agreement, the Loan
Documents or any other documents relating thereto for whatever
reason.
4.17 Notice Limiting Amount Secured. The Mortgagor covenants that
it will not, without the prior written consent of the Agent, file
of record any notice limiting the maximum principal amount secured
by this Mortgage.
ARTICLE 5 - CASUALTY LOSSES AND EMINENT DOMAIN
5.1 Casualty Loss and Application of Insurance Proceeds.
(a) Insurance Proceeds. Each of the parties hereto agrees
that all amounts and proceeds (including instruments) in respect of
the proceeds of any casualty insurance policy on the Improvements
(the "Insurance Proceeds"), shall be paid by the respective
insurers directly to the Agent, and if paid to the Mortgagor such
Insurance Proceeds shall be received only in trust for the Agent,
shall be segregated from other funds of the Mortgagor and shall be
forthwith paid over to the Agent in the same form as received (with
any necessary endorsement). Each of the parties hereto agrees, to
the fullest extent that it effectively may do so under applicable
Law, that the Agent shall apply all such Insurance Proceeds in
accordance with the provisions of paragraph (b) of this Section
5.1.
(b) Repairs and Restoration.
(i) In case of any Casualty Loss when paragraph (ii) of
this subsection (b) is not applicable, and so long as no "Event of
Default" as defined in the Operator Lease has occurred and is
continuing under the Operator Lease (hereinafter referred to as a
"Lease Default"), the Mortgagor shall make or cause to be made the
repairs to or replacements of the Premises necessary to repair and
restore the Premises as nearly as possible to the condition the
Premises were in immediately prior to such Casualty Loss promptly
after the Insurance Proceeds are settled, and the Agent shall make
the Insurance Proceeds received by the Agent pursuant to the
provisions of this Mortgage as a result of such Casualty Loss,
after deduction of its reasonable costs and expenses, if any, in
collecting the same (the "Net Insurance Proceeds") available for
the repair and restoration of the Premises, provided that (i) no
Event of Default shall exist under the Loan Documents, and (ii) the
Mortgagor shall have provided to the satisfaction of the Agent (1)
contracts for such repair or replacement demonstrating the
Mortgagor's ability to effect such repair or replacement at a cost
not greater than such Insurance Proceeds (or, if such cost is
greater, accompanied by an explanation of the source of funds for
such excess amounts satisfactory to the Agent), and (2) cash-flow
projections and other assurances reasonably satisfactory to the
Agent providing for the Mortgagor's ability to meet its obligations
under the Loan Documents during the period from such Casualty Loss
until and following completion of such repair or replacement. Upon
satisfaction of the provisions of the preceding sentence of this
paragraph, the Net Insurance Proceeds will be disbursed by the
Agent to the Mortgagor to pay for the costs of repair and
restoration of the Premises. The Net Insurance Proceeds shall be
held by the Agent in a separate interest-bearing account until
expended in connection with the repair and restoration of the
Premises, it being agreed that any Net Insurance Proceeds (together
with any accrued interest thereon) so held by the Agent shall
constitute additional security for the payment of the Indebtedness
secured by this Mortgage. The Net Insurance Proceeds (together
with any accrued interest thereon) shall be paid by the Agent to
the Mortgagor for application of as much as may be necessary for
the payment of the costs of repair, rebuilding or restoration,
either on completion thereof or as the work progresses, as directed
by the Mortgagor, subject to the provisions of the Operator Lease.
As a condition to the disbursement of the Net Insurance Proceeds
(and any accrued interest thereon), the Agent shall be entitled to
receive (1) title continuation from the title company insuring the
Premises evidencing that no mechanics' liens have been filed
against the Premises, (2) a certificate from an engineer selected
by the Agent, certifying that all work in place has been completed
in accordance with the plans and specifications approved by the
Agent and (3) certificates or affidavits from contractors and
materialmen that all sums payable to such contractors and
materialmen to the date of such certificates or affidavits have
been paid. The Agent may, prior to making payment from such
separate award account, require the Mortgagor to provide evidence
that, or deposit with the Agent moneys to be placed in such account
so that, there will be adequate moneys available for such repair
and restoration. The Agent shall not be obligated to make any
payment from such account if there exists an Event or Default
hereunder. Any balance of the Net Insurance Proceeds (together
with any accrued interest thereon) held by the Agent remaining
after payment of all costs of such repair, rebuilding or
restoration shall be applied by the Agent in accordance with
Section 5.3 below.
(ii) If a Lease Default shall have occurred and an Event
of Default shall have occurred and be continuing at the time of a
Casualty Loss, all insurance payments in respect of such portion of
the Premises shall be paid to and applied by the Agent as specified
in Section 5.3 hereof. If there shall have occurred a Casualty
Loss resulting in the actual or constructive total loss of all of
the Premises or more than 50% of the licensed beds at the health
care facility operated by Operator at the Premises under the
Operator Lease, all insurance payments in respect of such portion
of the Premises shall be paid to and applied by the Agent as
specified in Section 5.3 hereof, subject to the terms of the
Operator Lease.
5.2 Takings. If any compulsory transfer or taking or transfer
under threat of compulsory transfer or taking by any agency,
department, authority, commission, board, instrumentality, or
political subdivision of the State or the United States of America
shall be threatened in writing or occur with respect to all or any
portion of the Premises (each such occurrence being hereinafter
referred to as a "Taking"), the Mortgagor shall (i) promptly upon
any such threat of which it is aware or occurrence provide written
notice thereof to the Agent, (ii) diligently pursue all its rights
to compensation against the State or the United States, as the case
may be, or against any agency, department, authority, commission,
board, instrumentality or political subdivision thereof in respect
of such Taking, (iii) not, without the written consent of the
Agent, compromise or settle any claim against the State or the
United States, as the case may be, or against any agency,
department, authority, commission, board, instrumentality or
political subdivision thereof, (iv) hold all amounts and proceeds
(including instruments) received in respect of any Taking ("Taking
Proceeds") in trust for the benefit of the Agent segregated from
other funds of the Mortgagor and (v) forthwith pay over to the
Agent all such amounts and proceeds in the same form as received
(with any necessary endorsement), free and clear of any
encumbrances of any kind or nature whatsoever, to be applied in
accordance with the provisions of this Section or Section 5.3
below, as the case may be. To the extent that participation is
legally available to the Agent, the Agent may participate in any
Taking proceedings, and the Mortgagor shall from time to time use
its best efforts to deliver to the Agent, to the furthest extent
possible, all instruments requested by it to permit such
participation.
Notwithstanding any Taking, the Mortgagor shall continue
to pay all payments at the time and in the manner provided for in
the Loan Documents and the amount outstanding on the Indebtedness
shall not be reduced until any award or payment therefor shall have
been actually received and applied by the Agent to the prepayment
of the Indebtedness under the Credit Agreement. If the Premises
are sold, through foreclosure or otherwise, prior to the receipt by
the Agent of the Taking Proceeds, the Agent shall have the right to
receive such Taking Proceeds or a portion thereof sufficient to
repay the Indebtedness as though the same were being prepaid under
the Credit Agreement, whichever is less. The Mortgagor shall file
and prosecute its claim or claims for any such award or payment in
good faith and with due diligence and cause the same to be
collected and paid over to the Agent, and hereby irrevocably
authorizes and empowers the Agent, in the name of the Mortgagor or
otherwise to collect and receipt for any such award or payment and
to file and prosecute such claim or claims, and although it is
hereby expressly agreed that the same shall not be necessary in any
event, the Mortgagor shall, upon demand of the Agent, make, execute
and deliver any and all assignments and other instruments
sufficient for the purpose of assigning any such award or payment
to the Agent, free and clear of any encumbrances of any kind or
nature whatsoever.
If less than all the Premises are taken, unless in the
reasonable judgment of the Agent such Taking will have a material
adverse effect on the business or financial condition of (i) the
Mortgagor or (ii) the Mortgagor and its Subsidiaries, if any, on a
consolidated basis, the Agent shall make the proportion of the
aggregate award or payment received by the Agent pursuant to the
provisions of this Mortgage as a result of such Taking which is
specifically awarded for the repair and restoration of the portion
of the Premises not taken or in the absence of any such specific
award, is in the sole opinion of the Agent necessary to pay for the
costs which will be incurred in connection with the repair and
restoration of the portion of the Premises not taken after
deduction of its reasonable costs and expenses, if any, in
collecting the same (the "Net Restoration Award") available for the
repair and restoration of the Premises not taken, provided that (i)
no Event of Default shall exist under the Loan Documents, (ii) the
Mortgagor shall proceed with the repair and restoration of the
Premises not taken as nearly as possible to the condition the
Premises not taken were in immediately prior to such Taking
promptly after the award is settled, and (iii) the Agent shall be
satisfied that upon the completion of such repair and restoration
the appraised value of the Premises not taken after such repair and
restoration, will not be materially less than the value immediately
prior to such Taking, as determined by an appraiser selected by the
Agent. Upon satisfaction of the provisions of the preceding
sentence of this paragraph, the Net Restoration Award will be
disbursed by the Agent to the Mortgagor to pay for the costs of
repair and restoration of the Premises not taken. The Net
Restoration Award shall be held by the Agent in a separate
interest-bearing account until expended in connection with the
repair and restoration of the Premises not taken, it being agreed
that any Net Restoration Award (together with any accrued interest
thereon) so held by the Agent shall constitute additional security
for the payment of all sums secured by this Mortgage. The Net
Restoration Award (together with any accrued interest thereon)
shall be paid by the Agent to the Mortgagor for application of as
much as may be necessary for the payment of the costs of repair,
rebuilding or restoration, either on completion thereof or as the
work progresses, as directed by the Mortgagor. As a condition to
the disbursement of the Net Restoration Award (and any accrued
interest thereon), the Agent shall be entitled to receive (i) title
continuation from the title company insuring the Premises
evidencing that no mechanics' liens have been filed against the
Premises, (ii) a certificate from an engineer selected by the
Agent, certifying that all work in place has been completed in
accordance with the plans and specifications approved by the Agent
and (iii) certificates or affidavits from contractors and
materialmen that all sums payable to such contractors and
materialmen to the date of such certificates or affidavits have
been paid. The Agent may, prior to making payment from such
separate award account, require the Mortgagor to provide evidence
that, or deposit with the Agent moneys to be placed in such account
so that, there will be adequate moneys available for such repair
and restoration. The Agent shall not be obligated to make any
payment from such account if there exists an Event of Default
hereunder. Any balance of the Net Restoration Award (together with
any accrued interest thereon) held by the Agent remaining after
payment of all costs of such repair, rebuilding or restoration
shall be applied by the Agent in accordance with Section 5.3 below.
5.3 Distribution of Taking Proceeds and Insurance Proceeds.
Except as otherwise provided in this Article 5, all Taking Proceeds
and Insurance Proceeds with respect to the occurrence of a Casualty
Loss or Taking, as well as all payments or amounts then held or
thereafter received by the Agent under the Loan Documents as
collateral security for the Indebtedness may be applied by the
Agent in any one or more of the following ways:
(a) to the fulfillment of any of the covenants contained
herein as the Agent may determine, including, without limitation,
the replacement or restoration of the Premises to a condition
satisfactory to the Agent, in accordance with this Article 5;
(b) to the payment of all costs incurred in the collection
thereof (including, without limitation, reasonable attorneys' fees
and expenses except as may have been limited by Law or by judicial
order or decision entered in any action to foreclose this
Mortgage);
(c) to the payment of the Indebtedness secured by this
Mortgage owing to the Agent (including any interest or premium
accrued thereon); and/or
(d) to or at the direction of the Mortgagor, unless a court
of competent jurisdiction may otherwise direct by final order not
subject to appeal.
ARTICLE 6 - ENVIRONMENTAL COMPLIANCE
6.1 Definitions. The following definitions apply to the
provisions of this Article:
(a) "Environmental Laws" means any federal, state or local
law, regulation, ordinance, or order pertaining to the protection
of the environment and the health and safety of the public,
including (but not limited to) the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 USC Sections 9601
et seq.; the Resource Conservation and Recovery Act ("RCRA"), 42
USC Sections 6901 et seq., the Hazardous Materials Transportation Act, 49
USC Sections 1801 et seq., the Federal Water Pollution Control Act (33
USC Sections 1251 et seq.), the Toxic Substances Control Act (15 USC Sections
2601 et seq.) and the Occupational Safety and Health Act (29 USC Sections
651 et seq.), and all similar state, regional or local laws,
treaties, regulations, statutes or ordinances, common law, civil
laws, or any case precedents, rulings, requirements, directives or
requests having the force of law of any foreign or domestic
governmental authority, agency or tribunal, and all foreign
equivalents thereof, as the same have been or hereafter may be
amended, and any and all analogous future laws, treaties,
regulations, statutes or ordinances, common law, civil laws, or any
case precedents, rulings, requirements, directives or requests
having the force of law of any foreign or domestic governmental
authority, agency or tribunal and the regulations promulgated
pursuant thereto, which governs:
(i) the existence, cleanup and/or remedy of
contamination on property;
(ii) the emission or discharge of Hazardous Materials
into the environment;
(iii) the control of hazardous wastes;
(iv) the use, generation, transport, treatment, storage,
disposal, removal or recovery of Hazardous Materials; or
(v) the maintenance and development of wetlands.
(b) "Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investiga-
tions, proceedings, consent orders or consent agreements relating
in any way to any Environmental Law or any Environmental Permit
("Claims"), including, without limitation, (a) any and all Claims
by governmental or regulatory authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to
any applicable Environmental Law, and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from
Hazardous Materials or arising from alleged injury or threat of
injury to health or the environment.
(c) "Environmental Permits" means all permits, approvals,
notifications, identification numbers, licenses and other
authorizations required under any applicable Environmental Laws.
(d) "Hazardous Material" means and includes (i) any asbestos
or other material composed of or containing asbestos which is, or
may become, even if properly managed, friable; (ii) petroleum and
any petroleum product, including crude oil or any fraction thereof,
and natural gas or synthetic natural gas liquids or mixtures
thereof; (iii) any hazardous, toxic or dangerous waste, substance
or material defined as such in (or for purposes of) CERCLA or RCRA,
any so-called "Superfund" or "Superlien" law, or any other
applicable Environmental Laws, and (iv) any other substance whose
generation, handling, transportation, treatment or disposal is
regulated pursuant to any Environmental Laws.
(e) "Indemnitee" means the Agent and the Banks and all
subsequent holders of the Indebtedness, their respective successors
and assigns, their respective officers, directors, employees,
agents, representatives, contractors and subcontractors and any
subsequent owner of the Premises who acquires title thereto from or
through the Agent.
(f) "Person" means and includes an individual, partnership,
corporation (including a business trust), joint stock company,
trust, unincorporated association, joint venture or other entity,
or a government or any political subdivision or department or
agency thereof.
6.2 Environmental Representations and Covenants. The Mortgagor
represents, warrants, covenants and agrees as follows:
(a) The Premises is in material compliance with Environmental
Laws except where such noncompliance, taken singly or taken
together with all other noncompliance with Environmental Laws, has
neither resulted nor would, more likely than not, result in a
Material Adverse Effect. There is no noncompliance with any
Environmental Law or existence of any environmental condition
which, when taken singly or in the aggregate, has resulted or
would, more likely than not, result in a Material Adverse Effect.
With respect to the Premises (a) there are no pending or threatened
Environmental Claims against the Mortgagor or the Operator or any
other environmental condition with respect to the Premises which,
taken singly or taken together with all pending or threatened
Environmental Claims, has resulted or would, more likely than not,
result in a Material Adverse Effect, (b) the Mortgagor and the
Operator has been issued and is in compliance with all
Environmental Permits except where noncompliance, whether taken
singly or taken together with all other noncompliance with
Environmental Permits, has neither resulted nor would, more likely
than not, result in a Material Adverse Effect, (c) Hazardous
Materials have not been released or disposed of on or from the
Premises or, to the best knowledge of the Mortgagor, on or from any
property adjoining the Premises which, in either case, whether
taken singly or taken together with all other releases or
dispositions of Hazardous Materials, has resulted or would, more
likely than not, result in a Material Adverse Effect. No portion
of the Premises is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar federal or state list of sites requiring investigation or
clean-up. There are no underground storage tanks, active or
abandoned, including petroleum storage tanks, landfills, lagoons,
surface impoundments, disposal areas or disposal ponds, on or under
the Premises that are in violation of any applicable Environmental
Law except where such violation, taken singly or taken together
with all other such violations of Environmental Laws, has neither
resulted nor would, more likely than not, result in a Material
Adverse Effect. The Mortgagor has not and each of its Subsidiaries
has not directly transported or directly arranged for the
transportation of any Hazardous Material to any location which is
listed or proposed for listing on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar federal or
state list or which is the subject of any federal, state or local
enforcement actions or other investigations which may lead to
claims against the Mortgagor or any of its Subsidiaries for any
remedial work, damage to natural resources or personal injury,
including claims under CERCLA except where such actions, taken
singly or in the aggregate, have neither resulted nor would, more
likely than not, result in a Material Adverse Effect. There are no
polychlorinated biphenyls or friable asbestos present at the
Premises in violation of any applicable Environmental Law where
such violation, taken singly or taken together with all such
violations, has resulted or would, more likely than not, result in
a Material Adverse Effect. No conditions exist at, on or under the
Premises which, with the passage of time, or the giving of notice
or both, would give rise to liability under any Environmental Law
which liability, taken singly or together with all other such
liabilities, has resulted or would, more likely than not, be
expected to result in a Material Adverse Effect. No generation,
manufacture, storage, treatment, transportation or disposal of
Hazardous Material has occurred or is occurring on or from the
Premises which, when taken singly or taken together with all such
generation, manufacture, storage, treatment, transportation or
disposal, has resulted or would, more likely than not, result in a
Material Adverse Effect.
(b) Without limiting the representations made in Section
6.2(a), to the best knowledge of the Mortgagor, there are no
circumstances with respect to the Premises or the operations of the
Mortgagor or any of its Subsidiaries that could reasonably be
anticipated (i) to form the basis of an Environmental Claim against
the Mortgagor or any of its Subsidiaries or the Premises that,
taken singly or together with all such circumstances, has resulted
or would, more likely than not, result in a Material Adverse Effect
or (ii) to cause the Premises to be subject to any restrictions on
ownership, occupancy, use or transferability under any applicable
Environmental Law which have resulted or would, more likely than
not, result in a Material Adverse Effect.
(c) The Mortgagor will and will cause the Operator to use and
operate the Premises and all of its respective facilities thereon
in material compliance with all Environmental Laws except where
noncompliance, taken singly or with all other instances of
noncompliance, has neither resulted nor would, more likely than
not, result in a Material Adverse Effect. The Mortgagor will and
will cause the Operator to keep all necessary Environmental Permits
in effect and remain in material compliance therewith, and handle
all Hazardous Materials in compliance with all applicable
Environmental Laws except where noncompliance, when taken singly or
with all other instances of noncompliance, has neither resulted nor
would, more likely than not, result in a Material Adverse Effect.
The Mortgagor shall not, and shall not permit the Operator, to
suffer to exist an environmental condition which, when taken singly
or with all other such conditions, has resulted or would, more
likely than not, result in a Material Adverse Effect. The
Mortgagor shall promptly resolve any noncompliance with
Environmental Laws and keep the Premises property free of any Lien
imposed by any Environmental Law which individually or in the
aggregate has resulted or would, more likely than not, result in a
Material Adverse Effect.
(d) The Mortgagor shall conduct, or cause the Operator to
conduct, such investigation, study, sampling and testing, and
undertake, or cause the Operator to undertake, such cleanup,
removal, remedial or other action as may be necessary to comply
with all applicable Environmental Laws and any final orders or
directives of all governmental authorities; provided however, that,
this section shall not apply to any noncompliance with any such
orders or directives if and to the extent that the same shall be
contested in good faith by timely and appropriate proceedings which
are effective to stay enforcement thereof and against which
appropriate reserves have been established.
6.3 Right of Entry. In addition to all rights of entry contained
in this Mortgage, the Agent shall have the right to enter and
inspect the condition of the Premises at any reasonable time and to
conduct, or to designate a representative to conduct such
inspection, testing, environmental audit or other procedures that
the Agent believes are necessary or desirable to determine current
compliance with the covenants and representations contained herein.
6.4 Obligations of the Agent and the Banks. Nothing contained in
this Article 6 shall obligate the Agent or any of the Banks to take
any action with respect to the Premises, any Hazardous Materials
thereon, or any condition or activity that is in violation of
Environmental Laws or to take any action against any person with
respect to such substances, condition or activity.
6.5 Indemnification Provisions.
(a) The Mortgagor hereby covenants and agrees, at its sole
cost and expense, to indemnify, protect, defend and save harmless
each and every Indemnitee from and against any and all damages,
losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs,
disbursements and/or expenses (including, without limitation,
attorneys' and experts' fees, expenses and disbursements) of any
kind or nature whatsoever which may at any time be imposed upon,
incurred by or asserted or awarded against any Indemnitee relating
to, resulting from or arising out of (i) Environmental Claims or
(ii) a material misrepresentation or inaccuracy in any
representation or warranty or a material breach of or failure to
perform any covenant made by the Mortgagor in this Mortgage.
(b) The liability of the Mortgagor to each Indemnitee
hereunder shall in no way be limited, abridged, impaired or
otherwise affected by (i) any amendment or modification of the Loan
Documents by or for the benefit of the Mortgagor or any subsequent
owner of the Premises, (ii) any extensions of time for payment or
performance of all or any portion of the Indebtedness or any other
person from the performance or observance of any of the agreements,
covenants, terms or conditions contained in the Loan Documents or
this Mortgage by operation of law, the Agent's voluntary act or
otherwise, (iii) the invalidity or unenforceability of any of the
terms or provisions of the Loan Documents, (iv) any exculpatory
provision contained in the Loan Documents limiting the Agent's or
the Banks' recourse to the Premises or to any other security in the
Indebtedness or limiting the Agent's or the Banks' rights to a
deficiency judgment against the Mortgagor, (v) any applicable
statute of limitations, (vi) any investigation or inquiry conducted
by or on behalf of the Agent or any other Indemnitee or any
information which the Agent or any other Indemnitee may have or
obtain with respect to the environmental or ecological condition of
the Premises, (vii) the sale, assignment or foreclosure of the
Indebtedness or this Mortgage, (viii) the sale, transfer or
conveyance of all or part of the Premises, (ix) the dissolution or
liquidation of the Mortgagor, (ix) the release or discharge, in
whole or in part, of the Mortgagor, in any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation
or reorganization, arrangement, readjustment, composition,
liquidation or similar proceeding or (xi) any other circumstances
which might otherwise constitute a legal or equitable release or
discharge, in whole or in part, of the Mortgagor under the Loan
Documents or under this Mortgage.
ARTICLE 7 - SECURITY AGREEMENT
This Mortgage is hereby deemed to be as well a security
agreement for the purpose of creating a security interest in and to
all personal property owned by Mortgagor and comprising the
Premises (hereinafter the "Collateral") securing the Indebtedness.
This Mortgage also constitutes a financing statement with respect
to any and all property included in the Premises which is or may
become fixtures. Without derogating any of the provisions of this
Mortgage, the Mortgagor by this Mortgage:
(a) grants to the Agent a security interest in all of the
Mortgagor's right, title and interest in and to all Collateral,
including, but not limited to, the items referred to above,
together with all additions, accessions and substitutions and all
similar property hereafter acquired and used or obtained for use
on, or in connection with the Premises, and together with the
proceeds of the Collateral, which are intended to be hereby
secured; however, such intent shall never constitute an expressed
or implied consent on the part of the Agent or any of the Banks to
the sale of any or all of the Collateral;
(b) agrees that the security interest hereby granted by this
Mortgage shall secure the payment of the Indebtedness, including
any judgment, order or decree on the same;
(c) except as permitted in the Credit Agreement, agrees not
to sell, convey, mortgage or grant a security interest in, or
otherwise dispose of or encumber, any of the Collateral or any of
the Mortgagor's right, title or interest therein without first
securing Agent's written consent; and the Agent may, at its sole
option, require the Mortgagor to apply the proceeds from the
disposition of Collateral in reduction of the Indebtedness hereby
secured; provided, however, that the Agent agrees to terminate its
interest with respect to any Collateral which is either (i) sold in
accordance with the terms of Section 5.04(a) of the Credit
Agreement or (ii) sold with the Agent's prior written consent;
(d) except as expressly permitted in the Credit Agreement,
agrees that if any of the Mortgagor's rights in the Collateral are
voluntarily or involuntarily transferred, whether by sale, creation
of a security interest, attachment, levy, garnishment or other
judicial process, without the prior written consent of the Agent,
such transfer shall constitute an Event of Default by the Mortgagor
under the terms of this Mortgage;
(e) agrees that upon or after the occurrence of any Event of
Default hereunder, the Banks may, with or without notice to the
Mortgagor, but subject to the provisions of the Credit Agreement
(including the notice requirement set forth in Section 6.02
thereof), exercise their rights to declare all Indebtedness secured
by the security interest created hereby immediately due and
payable, in which case the Agent shall have all rights and remedies
granted by law and more particularly the Uniform Commercial Code as
adopted by the State (as the same may be amended, revised,
supplemented, substituted or replaced from time to time, the
"Code"), including, but not limited to, the right to take
possession of the Collateral, and for this purpose may enter upon
any premises on which any or all of the Collateral is situated
without being deemed guilty of trespass and without liability for
damages thereby occasioned, and take possession of and operate said
Collateral or remove it therefrom. The Agent shall have the
further right to take any action it deems necessary, appropriate or
desirable, at its option and in its discretion, to repair,
refurbish or otherwise prepare the Collateral for sale, lease or
other use or disposition, and to sell at public or private sales or
otherwise dispose of, lease or utilize the Collateral or any part
thereof in any manner authorized or permitted by law and to apply
the proceeds thereof toward payment of any costs and expenses
(including reasonable attorneys' fees and legal expenses, to the
extent permitted by law) thereby incurred by the Agent and toward
payment of the Indebtedness, in such order and manner as the Agent
may elect. Any notice given by the Agent as provided herein at
least ten (10) days before the time of sale or disposition shall be
deemed reasonable and shall fully satisfy any requirements for
giving of said notice;
(f) agrees, to the extent permitted by law and without
limiting any rights and privileges herein granted to the Agent,
that upon the occurrence of an Event of Default the Agent may
dispose of any or all of the Collateral at the same time and place
upon giving the same notice provided for in this Mortgage, and in
the same manner as the nonjudicial foreclosure sale provided under
the terms and conditions of this Mortgage;
(g) authorizes the Agent to file, in the jurisdiction where
this Mortgage will be given effect, one or more financing or
continuation statements and amendments thereto, relative to all or
any part of the Collateral without the signature of the Mortgagor
where permitted by law (a carbon, photographic or other
reproduction of this Mortgage or any financing statement covering
the Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law); and
(h) acknowledges that the Mortgagor as of the date hereof,
has joined the Agent in the execution of one or more financing
statements, to be filed in accordance with the provisions of the
Code.
ARTICLE 8 - DEFAULTS AND REMEDIES
8.1 Default. Any of the following occurrences or acts shall
constitute an Event of Default ("Event of Default") under this
Mortgage: (i) the Mortgagor shall fail to pay the Indebtedness or
any Obligation when due or when declared due in accordance with the
Credit Agreement prior to the expiration of the cure or grace
period applicable thereto, if any; (ii) the Mortgagor shall fail to
observe or perform any of its covenants, agreements or obligations
under Sections 4.6, 4.7, 4.12, 4.13(b) or 4.17 of this Mortgage;
(iii) the Mortgagor shall fail to observe or perform any of its
covenants, agreements or obligations under Sections 4.2, 4.3 or 6.2
of this Mortgage and shall fail to cure such failure within ten
(10) Business Days; (iv) the Mortgagor shall fail to observe or
perform any of its covenants, agreements or obligations under any
provision of this Mortgage not specifically set forth in clauses
(i), (ii) or (iii) above within thirty (30) Business Days after the
giving of written notice to the Mortgagor by any Bank that it is to
be remedied; (v) an Event of Default as defined in the Credit
Agreement shall occur and shall continue uncured after the
expiration of the cure or grace period applicable thereto, if any;
or (vi) any representation, warranty or statement (other than any
made by any Bank or the Agent pursuant to the Credit Agreement or
any Related Writing) made in this Mortgage shall be false or
erroneous in any respect when made or deemed made, as the case may
be.
8.2 Acceleration of Maturity; Remedies. Upon the occurrence of an
Event of Default, at the option of the Banks, in accordance with
the provisions of the Credit Agreement, the whole Indebtedness
hereby secured shall become immediately due and payable, although
the period specified for the payment thereof may not have expired,
anything contained in this Mortgage to the contrary
notwithstanding, and thereupon or at any time during the existence
of such Event of Default, the Agent may proceed to foreclose this
Mortgage or otherwise pursue any other right or remedy available
under this Mortgage, at law or in equity, including, but not
limited to, the rights and remedies set forth in Article 7 hereof
and in Sections 8.3 through 8.9 below.
8.3 Power of Sale. Upon the occurrence of an Event of Default,
the Agent is hereby granted the right, if and to the extent
permitted by law, to sell or cause to be sold at public auction the
Premises and to convey the same by the execution and delivery to
the purchaser at such sale of good and sufficient deeds and
instruments of conveyance in law, pursuant to the statute in such
case made and provided, and out of the proceeds of such sale to
retain the moneys due under the terms of this Mortgage, the costs
and charges of such sale and also the attorneys' fees, if and to
the extent required by law, rendering the surplus moneys (if any)
to the Mortgagor.
8.4 Performance By the Agent. The Mortgagor hereby agrees that in
the event the Mortgagor shall fail to comply with any or all of its
covenants, agreements, conditions and stipulations herein set forth
and such failure becomes an Event of Default, then the Agent shall
be and hereby is authorized and empowered at its option, but
without legal obligation so to do, to pay and/or perform the same
without waiver of any other remedy, including, without limitation,
payment and/or performance (i) of any unpaid obligation secured by
any lien on the Premises and all or any part of any unpaid Taxes;
(ii) to effect insurance on the Premises in the amounts required
hereunder; and (iii) to enter or have its agents enter upon the
Premises whenever necessary for the purpose of inspecting the
Premises and curing any Event of Default. The Mortgagor agrees
that the Agent and the Banks shall thereupon have a claim against
the Mortgagor for all sums paid by the Agent for such Taxes,
insurance, rents and defaults cured, together with a lien upon the
Premises for the sum so paid plus Default Rate. The Agent, in
making any payment herein as hereby authorized in the place and
stead of the Mortgagor relating to (i) Taxes, may do so according
to any bill, statement or estimate procured from the appropriate
public office without inquiry into the validity of any Tax, sale
forfeiture, tax lien or title or claim thereof; or (ii) any adverse
title, lien, statement of lien, encumbrance, claim or charge, shall
be the sole judge of the legality or validity of same; or (iii) any
other purpose herein and hereby authorized, but not enumerated in
this Section, may do so whenever, in its good faith judgment and
discretion, such advance or advances shall seem necessary or
desirable to protect the full security intended to be created by
this Mortgage, and provided further that in connection with any
advance, the Agent, in the event of apparent or thereafter adverse
title, lien or encumbrance, or foreclosure, by the Agent or any
other lien claimant, at its option, may and is hereby authorized to
obtain a continuation report of title prepared by a title insurance
company, the cost and expense of which shall be repayable by the
Mortgagor upon demand and shall be hereby secured.
8.5 Appointment of Receiver. In the event an action shall be
instituted to foreclose this Mortgage, or prior to foreclosure but
after the occurrence of an Event of Default, the Agent shall be
entitled to the appointment of receiver of the rents, issues and
profits of the Premises as a matter of right and without notice,
with power to collect the rents, issues and profits of the Premises
due and becoming due during the period of default and/or the
pendency of such foreclosure suit to and including the date of
confirmation of the sale under such foreclosure and during the
redemption period, if any, after such confirmation, such rents and
profits being hereby expressly assigned and pledged as security for
the payment of the Indebtedness secured by this Mortgage without
regard to the value of the Premises or the solvency of any person
or persons liable for the payment of the Indebtedness and
regardless of whether the Agent and the Banks have an adequate
remedy at law. The Mortgagor for itself and for any subsequent
owner of the Premises hereby waives any and all defenses to the
application for a receiver as above provided and hereby
specifically consents to such appointment without notice, but
nothing herein contained is to be construed to deprive the holder
of this Mortgage of any other right, remedy or privilege it may now
have under the law to have a receiver appointed. The provision for
the appointment of receiver and the assignment of such rents,
issues and profits is made an express condition upon which the
loans hereby secured are made. In such event, the court shall at
once on application of the Agent or its attorney in such action, ex
parte and without notice, appoint a receiver to take immediate
possession of, manage and control the Premises, for the benefit of
the holder or holders of the Indebtedness and of any other parties
in interest, with power to collect the rents and profits of the
Premises during the pendency of such action, and to apply the same
toward the payment of the Indebtedness, notwithstanding that the
Premises or any part thereof is occupied by the Mortgagor or any
other person. The rights and remedies herein provided for shall be
deemed to be cumulative and in addition to, and not in limitation
of, those provided by law; and if there be no receiver so
appointed, the Agent itself may proceed to collect the rents,
issues and profits from the Premises. From any said rents, issues
and profits collected by the receiver or by the Agent prior to a
foreclosure sale shall be deducted the cost of collection thereof
and the expenses of operation of the Premises, including but not
limited to real estate commissions, the receiver's fee and the
reasonable fees of its attorney, if any, the Agent's attorney's
fees, if permitted by law, and court costs; the remainder shall be
applied against the Indebtedness hereby secured. In the event such
rents, issues and profits and other income are not adequate to pay
all Taxes and other expenses of operation, the Agent may, but shall
not be obligated to, advance to any receiver the amounts necessary
to operate, maintain and repair the Premises and any such amounts
so advanced, together with interest thereon at the Default Rate
from and after the date of advancement, shall be secured by this
Mortgage and have the same priority of collection as the
Indebtedness.
8.6 Taking Possession of the Premises. Upon the occurrence of an
Event of Default, the Agent is authorized prior or subsequent to
the institution of any foreclosure proceedings to enter upon the
Premises, or any part thereof, and to take possession of the
Premises and of all books, records and accounts relating thereto
and to exercise without interference from the Mortgagor any and all
rights which the Mortgagor has with respect to the management,
possession, operation, protection or preservation of the Premises,
including the right to rent the same for the account of the
Mortgagor and to deduct from such rents all costs, expenses and
liabilities of every character incurred by the Agent in collecting
such rents and in managing, operating, maintaining, protecting or
preserving the Premises and to apply the remainder of such rents on
the Indebtedness hereby secured in such manner as the Agent may
elect. All such costs, expenses and liabilities incurred by the
Agent in collecting such rents and in managing, operating,
maintaining, protecting or preserving the Premises, if not paid out
of rents as hereinabove provided, shall constitute a demand
obligation owing by the Mortgagor and shall draw interest from the
date of expenditure until paid at the Default Rate, all of which
shall constitute a portion of the Indebtedness. If necessary to
obtain the possession provided for above, the Agent may invoke any
and all legal remedies to dispossess the Mortgagor, including
specifically one or more actions for forcible entry and detainer,
trespass to try title and restitution. In connection with any
action taken by the Agent pursuant to this Section, the Agent shall
not be liable for any loss sustained by the Mortgagor resulting
from any failure to let the Premises, or any part thereof, or from
any other act or omission of the Agent in managing the Premises
unless such loss is caused by the willful misconduct or bad faith
of the Agent, nor shall the Agent be obligated to perform or
discharge any obligation, duty or liability under any lease
agreement covering the Premises or any part thereof or under or by
reason of this instrument or the exercise of rights or remedies
hereunder. Nothing in this Section shall impose any duty,
obligation or responsibility upon the Agent and the Banks for the
control, care, management or repair of the Premises, nor for the
carrying out of any of the terms and conditions of any such lease
agreement; nor shall it operate to make the Agent and the Banks
responsible or liable for any waste committed on the Premises by
the tenants or by any other parties or for any dangerous or
defective condition of the Premises, or for any negligence in the
management, upkeep, repair or control of the Premises resulting in
loss or injury or death to any tenant, licensee, employee or
stranger. The Mortgagor hereby assents to, ratifies and confirms
any and all actions of the Agent and the Banks with respect to the
Premises taken under this Section.
8.7 Remedies Non-Exclusive. Each remedy or right of the Agent and
the Banks shall not be exclusive of but shall be in addition to
every other remedy or right now or hereafter existing at law or in
equity. No delay in the exercise or omission to exercise any
remedy or right accruing on any Event of Default hereunder shall
impair any such remedy or right or be construed to be a waiver of
any such Event of Default or acquiescence therein, nor shall it
affect any subsequent Event of Default of the same or different
nature. Every such remedy or right may be exercised concurrently
or independently and when and as often as may be deemed expedient
by the Agent and the Banks.
8.8 Execution of Judgment. If more than one property, lot,
parcel, estate or interest is covered by this Mortgage, and if this
Mortgage is foreclosed upon, or judgment is entered upon any
obligation hereby secured, execution may be made upon any one or
more of the properties, lots, estates, parcels or interests and not
upon the others, or upon all of such properties or parcels, either
together or separately, and at different times or at the same time,
and execution sales may likewise be conducted separately or
concurrently, in each case at the Agent's election.
8.9 Fees Payable on Foreclosure. In case of foreclosure of this
Mortgage in any court of law or equity, whether or not any order or
judgment has been entered therein, and to the extent permitted by
law, a reasonable sum as aforesaid shall be allowed for attorney's
fees of the plaintiff in such proceedings, for stenographer's fees
and for all moneys expended for documentary evidence and the cost
of a complete abstract of title and title report for the purpose of
such foreclosure, such sums to be secured by the lien of this
Mortgage; and, to the extent permitted by law, there shall be
included in any judgment or decree foreclosing this Mortgage and be
paid out of said rents, issues and profits or out of the proceeds
of any sale made in pursuance of any such judgment or decree: (i)
all costs and expenses of such suit or suits, advertising, sale and
conveyance, including attorneys' fees and stenographer's fees, if
and to the extent permitted by law, outlays for documentary
evidence and the cost of said abstract, examination of title and
title report; (ii) all moneys advanced by the Agent, if any, for
any purpose authorized in this Mortgage with interest as herein
provided; (iii) all the accrued interest remaining unpaid on the
Indebtedness; and (iv) the Indebtedness.
ARTICLE 9 - ASSIGNMENT OF LEASES AND RENTS
The Mortgagor hereby absolutely and unconditionally
assigns to the Agent all of its interest as lessor with respect to
all existing and future leases of the Premises (including, without
limitation, the Operator Lease). This assignment is a present
assignment of the Mortgagor's interest in all such leases and to
the rents and profits thereunder as additional collateral for the
Indebtedness hereby secured. This assignment of leases and rents
is a present, absolute and irrevocable assignment and is made to
secure and enforce the payment of the Indebtedness. The Mortgagor
hereby irrevocably grants to the Agent the present and continuing
right, coupled with an interest, to collect such rents and to
enforce such leases and to enter and possess the Premises for such
purposes. However, the Agent hereby conditionally waives such
right, and grants to the Mortgagor the revocable license to collect
and to enforce the same, provided, however, that said waiver and
such license of the Mortgagor to collect such rents and to enforce
such leases may, after the occurrence of an Event of Default, be
revoked by the Agent at any time by giving notice of such
revocation to the Mortgagor. All rents collected by the Mortgagor
after the giving of such notice of revocation by the Agent shall be
held by the Mortgagor as a trust fund for the Agent. Following
such notice of revocation, the Agent may retain and apply the rents
toward payment of the Indebtedness in such order and manner as the
Agent may elect.
ARTICLE 10 - GENERAL
10.1 No Waiver. No sale of the Premises, no forbearance on the
part of the Agent or the Banks, no extension of the time for the
payment of the Indebtedness or any change in the terms thereof
consented to by the Agent or any of the Banks shall in any way
whatsoever operate to release, discharge, modify, change or affect
the original liability of the Mortgagor herein, either in whole or
in part. No waiver by the Agent of any breach of any covenant of
the Mortgagor herein contained shall be construed as a waiver of
any subsequent breach of the same or any other covenant herein
contained. The failure of the Agent to exercise the option for
acceleration of maturity and/or foreclosure (including sale under
power of sale hereunder) following any Event of Default hereunder
or to exercise any other option granted to the Agent and the Banks
hereunder in any one or more instances, or the acceptance by the
Agent and the Banks of partial payments hereunder shall not
constitute a waiver of any such Event of Default, nor extend or
affect the grace period, if any, but such option shall remain
continuously in force with respect to any unremedied or uncured
Event of Default. Acceleration of maturity once claimed in
accordance with the Credit Agreement may, at the option of the
Agent and the Banks in accordance with the Credit Agreement, be
rescinded by written acknowledgment to that effect by the Agent,
but the tender and acceptance of partial payments alone shall not
in any way affect or rescind such acceleration of maturity, or
extend or affect the grace period, if any. The Agent and the Banks
may pursue their rights without first exhausting their rights
hereunder and all rights, powers and remedies hereby conferred upon
the Agent and the Banks are in addition to each and every right
which the Agent and the Banks may have hereunder at law or equity,
and may be enforced concurrently therewith.
10.2 Legal Proceedings. If any action or proceeding be commenced,
to which action or proceeding the Agent or any of the Banks is made
a party by reason of the execution of this Mortgage or the
Indebtedness or in which it becomes necessary to defend or uphold
the lien of this Mortgage, or the priority thereof or possession of
the Premises, or otherwise to perfect the security hereunder, or in
any suit, action, legal proceeding or dispute of any kind in which
the Agent or any of the Banks is made a party or appears as party
plaintiff or defendant, affecting the Credit Agreement, the Loan
Documents, the Indebtedness, this Mortgage, or the interest created
herein, or the Premises, including, but not limited to, bankruptcy,
probate and administration proceedings, foreclosure of this
Mortgage or any condemnation action involving the Premises, all
reasonable sums paid by the Agent or any of the Banks for the
expense of any litigation to prosecute and defend the rights and
liens created hereby shall be paid by the Mortgagor to the Agent,
together with interest thereon from the date of payment at the rate
of interest then applicable under the Credit Agreement. Any such
sum and the interest thereon shall be immediately due and payable
and be hereby secured, having the benefit and priority of the lien
hereby created.
10.3 Subrogation. Should the proceeds of the Indebtedness, the
repayment of which is hereby secured, or any part thereof, or any
amount paid out or advanced by the Agent, be used directly or
indirectly to pay off, discharge, or satisfy, in whole or in part,
any prior lien or encumbrance upon the Premises or any part
thereof, then the Agent and the Banks shall be subrogated to such
other liens or encumbrances and to any additional security held by
the holder thereof and shall have the benefit of the priority of
all of the same.
10.4 Release and Partial Release. The Mortgagor agrees, without
affecting the liability of any person for payment of the
Indebtedness hereby secured or affecting the lien of this Mortgage
upon the Premises or any part thereof (other than persons or
property explicitly released as a result of the exercise by the
Agent of its rights and privileges hereunder), that the Agent,
without notice, and without regard to the consideration, if any,
paid therefor, and notwithstanding the existence at that time of
any inferior liens thereon, may release as to itself and this
Mortgage any part of the security herein described or any person
liable for the Indebtedness (or any part thereof) hereby secured,
without in any way affecting the priority of the lien of this
Mortgage to the full extent of the Indebtedness remaining unpaid
upon any part of the security not expressly released, and may agree
with any party obligated on the Indebtedness or having any interest
in the security herein described to extend the time for payment of
any part or all of the Indebtedness hereby secured. Such agreement
shall not, in any way, release or impair the lien hereof, but shall
extend the lien hereof as against the title of all parties having
any interest in said security which interest is subject to said
lien. In the event the Agent: (i) releases, as aforesaid, any part
of the security described herein or any person liable for the
Indebtedness (or any part thereof) hereby secured, (ii) grants an
extension of time for any payments of the Indebtedness hereby
secured, (iii) takes other or additional security for the payment
thereof, or (iv) waives or fails to exercise any right granted
herein or in the Credit Agreement, or the Loan Documents, no such
act or omission shall release the Mortgagor, subsequent purchasers
of the Premises or any part thereof, or makers or sureties of this
Mortgage under any covenant of this Mortgage or preclude the Agent
or any of the Banks from exercising any right, power or privilege
herein granted or intended to be granted with respect to any other
Event of Default then made or any subsequent Event of Default.
10.5 Subordination.
(a) The Operator Lease and Operator's rights under the Lease
are subordinate to this Mortgage, together with any renewal,
consolidation, extension, modification, or replacement thereof,
which now or at any time affects the Premises or any interest of
the Mortgagor in the Premises. By acceptance of this Mortgage, the
Agent agrees that the Agent shall have no right to disturb
Operator's possession, use and occupancy of the Premises or
Operators's enjoyment of its rights under the Lease unless and
until a Lease Default shall occur under the Operator Lease. Any
foreclosure action with respect to this Mortgage shall not affect
Operator's rights under the Operator Lease unless and until a Lease
Default occurs. The foregoing provisions will be self-operative,
and no further instrument will be required in order to effect them.
However, the Mortgagor shall cause Operator to execute, acknowledge
and deliver at any time and from time to time upon demand by the
Agent or any other holder of this Mortgage, such documents as may
be requested by the Agent or any other holder of this Mortgage to
confirm or effect such subordination, provided that any such
document shall include a non-disturbance provision as set forth in
this Section satisfactory to Operator.
(b) Notwithstanding the provisions of Subparagraph (a) above,
at the option of the Agent, this Mortgage shall become subject and
subordinate in whole or in part (but not in respect to the priority
of entitlement to insurance proceeds or any award in condemnation)
to any or all leases and/or subleases (including, without
limitation, the Operator Lease) of all or any part of the Premises,
upon the execution by the Agent and recording thereof, at any time
hereafter, in the Office of the County Recorder where the Premises
are situated, a unilateral declaration to that effect.
10.6 Waiver of Homestead Rights and Appraisement. To the extent
permitted by law with respect to the Indebtedness and any renewals
or extensions thereof, the Mortgagor waives, relinquishes and
renounces any and all homestead and exemption rights and all
benefit of any and every law now or hereafter in force to exempt
from levy and sale, as well as the benefit of all valuation and
appraisement privileges and moratoria under or by virtue of the
constitution and laws of the State or any other state or of the
United States, now existing or hereafter enacted.
10.7 Covenants to Run with the Land. All the covenants hereof
shall run with the land.
10.8 No Claims Against Agent or the Banks. Nothing contained in
this Mortgage shall constitute any request by the Agent or any of
the Banks, express or implied, for the performance of any labor or
services or the furnishing of any materials or other property in
respect of the Premises or any part thereof, or be construed to
give the Mortgagor any right, power or authority to contract for or
permit the performance of any labor or services or the furnishing
of any materials or other property in such fashion as would provide
the basis for any claim either against the Agent or any of the
Banks or that any lien based on the performance of such labor or
services or the furnishing of any such materials or other property
prior to the lien of this Mortgage.
10.9 Further Assurances. The Mortgagor shall execute, acknowledge
and deliver any and all such further acts, conveyances, documents,
mortgages and assurances as the Agent may reasonably require for
accomplishing the purpose hereof forthwith upon the request of the
Agent, whether in writing or otherwise. If the Mortgagor shall not
have delivered to the Agent duly executed statements or agreements
referred to hereinabove within ten (10) days of the Agent's demand
therefor, the Agent may file such Uniform Commercial Code financing
statements or agreements in the name of the Mortgagor.
TheMortgagor hereby appoints the Agent as its attorney-in-fact in
connection with any of the applicable Premises covered by this
Mortgage, to execute and file on its behalf any Uniform Commercial
Code financing statements or other statements in connection
therewith with the appropriate public office. This power, being
coupled with an interest, shall be irrevocable so long as this
Mortgage remains in effect. The Mortgagor, within ten (10) days
after request by the Agent, will furnish a written statement duly
acknowledged, of the amount due upon this Mortgage and the
Indebtedness (both unpaid principal and accrued interest) and
whether any offset or defenses exist against the Indebtedness, and
any other information which might reasonably be requested in
connection with (i) the sale of the loan by the Agent or any of the
Banks to any third party or (ii) an audit of the Agent or any of
the Banks, which statement expressly shall provide that it may be
relied on for such purposes.
10.10 Recordation. At the request of the Agent, the Mortgagor, at
its expense, will cause all instruments of further assurance
requested by the Agent (including, without limitation, all
necessary amendments, supplements and continuation statements) at
all times to be kept recorded, filed and registered in such manner
and in such places as may be required by law in order fully to
establish, preserve and protect the lien of this Mortgage as a
valid first mortgage lien on all real property, fixtures and
interests therein included in the Premises, subject only to the
Permitted Encumbrances and any other Liens permitted by the Credit
Agreement, and a valid, perfected first priority security interest
in the Collateral, subject only to the Permitted Encumbrances and
any other Liens permitted by the Credit Agreement (including, in
each such case, without limitation, any such properties acquired
after the execution hereof), and the rights of the Agent and the
Banks as to the Premises. However, neither a demand so made by the
Agent, nor the failure of the Agent or any of the Banks to make any
such demand, shall be construed as a release of any such Premises,
or any part thereof, from the lien of this Mortgage, it being
understood and agreed that this covenant and any security
instrument delivered to the Agent or any of the Banks pursuant
hereto are cumulative and given as additional security.
10.11 Notices. All notices and other communications provided for
hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered, if to the Mortgagor, at its address
at One SeaGate, Suite 1950, Toledo, Ohio 43604, Attention: Ms.
Erin C. Ibele; if to any Bank, at its Lending Office specified
opposite its name on Schedule I to the Credit Agreement; and if to
the Agent, at its address at 1900 East Ninth Street, Cleveland,
Ohio, Attention: Metro Ohio Division or, as to each party, at such
other address as shall be designated by such party in a written
notice to each of the other parties. All such notices and
communications shall, when mailed, telecopied, telegraphed, telexed
or cabled, be effective when deposited in the mails, telecopied,
delivered to the telegraph company, confirmed by telex answerback
or delivered to the cable company, respectively, except that
notices and communications to the Agent pursuant to Article 8 shall
not be effective until received by the Agent.
10.12 Governing Law. The Indebtedness secured hereby was incurred
in the State of Ohio pursuant to various documents executed in the
State of Ohio in connection with a multi-state transaction governed
by the laws of the State of Ohio. This Mortgage and all
substantive terms and provisions hereof shall be governed by and
construed according to the laws of the State of Ohio, except to the
extent that the creation, attachment and enforcement of the lien of
this Mortgage must be governed by the laws of the State.
10.13 Conflict With Laws. If any provision(s) hereof are in
conflict with any statute or rule of law of the State, or are
otherwise unenforceable for any reason whatsoever, then such
provision(s) shall be deemed null and void to the extent of such
conflict or unenforceability, but shall be deemed separable from
and shall not invalidate any other provisions of this Mortgage.
10.14 Interest Limitation. Nothing herein contained nor any
transaction related thereto shall be construed or shall so operate
either presently or prospectively to require the Mortgagor (a) to
pay interest at a rate greater than is now lawful in such case to
contract for, but shall require payment of interest only to the
extent of such lawful rate, or (b) to make any payment or do any
act contrary to law, but if any clause and provision herein
contained shall otherwise so operate to invalidate this Mortgage,
in whole or in part, then such clauses and provisions only shall be
held for naught as though not herein contained and the remainder of
this Mortgage shall remain operative and in full force and effect.
Any interest paid in excess of the lawful rate shall be refunded to
the Mortgagor. Such refund shall be paid by application of the
excessive amount of interest paid against the Indebtedness and
shall be applied in such order as the Agent may determine. If the
excessive amount of interest paid exceeds the Indebtedness, the
portion exceeding the Indebtedness shall be refunded in cash by the
Agent. Any such crediting or refund shall not cure or waive any
default by the Mortgagor hereunder or under the Indebtedness. The
Mortgagor agrees, however,that in determining whether or not any
interest payable under the Indebtedness or this Mortgage exceeds
the highest rate permitted by law, any non-principal payment
(except payments specifically stated in the Indebtedness to be
"interest"), including without limitation prepayment premiums and
late charges, shall be deemed, to the extent permitted by law, to
be an expense, fee, premium or penalty rather than interest.
10.15 Rules of Construction. Whenever used, the singular number
shall include the plural, the plural the singular and the use of
any gender shall include all genders. Each defined term used
herein and not otherwise defined herein hall have the meaning
ascribed such term in the Credit Agreement. All of the covenants
of the Mortgagor herein contained are joint and several.
10.16 Successors and Assigns; Assignment. This Mortgage is
binding upon the Mortgagor, its successors and assigns, and the
rights, powers and remedies of the Agent under this Mortgage shall
inure to the benefit of the Agent and its successors and assigns.
The Mortgagor may not assign its obligations or rights hereunder
without the consent of the Agent and each of the Banks. Each of
the Agent and the Banks may assign its rights hereunder subject to
the limitations set forth in Article VIII of the Credit Agreement.
10.17 Amendments and Waivers. No amendment or waiver of any
provision of this Mortgage, nor consent to any departure by the
Mortgagor therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Majority Banks (as
defined in the Credit Agreement), and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by
all the Banks, do any of the following: (a) reduce the principal
of, or interest on, any fees or other amounts payable hereunder,
(b) change the method of computing of interest or any fee, (c)
release any Operator Lease Document from the operation of this
Mortgage other than as provided in Section 2.08 of the Credit
Agreement, (d) amend this Section 10.17 or (e) amend, modify or
waive any provision of this Mortgage where such provision requires
consent or waiver by all Banks or any amendment of such a provision
which would amend such requirement of consent by all Banks; and
provided, further, that no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Banks
required above to take such action, affect the rights or duties of
the Agent under this Mortgage.
10.18 Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE AND AGREE
THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT AND THE
RELATED WRITINGS WOULD INVOLVE DIFFICULT AND COMPLEX ISSUES AND
THEREFORE AGREE THAT ANY LAW SUIT GROWING OUT OF OR INCIDENTAL TO
ANY SUCH CONTROVERSY WILL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. THE MORTGAGOR
CONFIRMS THAT THE FOREGOING WAIVER IS INFORMED AND FREELY MADE.
10.19 Jurisdiction; Venue, Inconvenient Forum.
(a) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF ANY OHIO STATE COURT OR FEDERAL COURT
OF THE UNITED STATED OF AMERICA SITTING IN CUYAHOGA COUNTY, OHIO,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS MORTGAGE, THE CREDIT
AGREEMENT, ANY COLLATERAL DOCUMENT OR ANY RELATED WRITING OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH OHIO STATE OR, TO THE EXTENT PERMITTED BY
LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS MORTGAGE,
THE CREDIT AGREEMENT, ANY COLLATERAL DOCUMENT OR ANY RELATED
WRITING IN THE COURTS OF ANY JURISDICTION.
(b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND
EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS MORTGAGE, THE CREDIT AGREEMENT, ANY
COLLATERAL DOCUMENT OR ANY OTHER RELATED WRITING IN ANY OHIO STATE
OR FEDERAL COURT SITTING IN OHIO. EACH OF THE PARTIES HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT. THE MORTGAGOR CONFIRMS THAT THE FOREGOING
WAIVERS ARE INFORMED AND FREELY MADE.
10.20 Certain Defined Terms. As used herein, the term "Agent"
means National City Bank, a national banking association, acting in
its capacity as agent for its benefit and the ratable benefit of
the Banks, together with its successors and assigns in such
capacity, and the term "Banks" means National City Bank and certain
other banks as set forth in the Credit Agreement, and such other
banks as may become parties to the Credit Agreement from time to
time, together with their respective successors and assigns.
ARTICLE 11 - DEFEASANCE
The condition of this Mortgage is that if either (a) the
Mortgagor shall punctually pay the Indebtedness and all other
obligations hereby secured when due and owing, and shall perform
the covenants of the Mortgagor arising from the Indebtedness, and
shall punctually perform all of the Mortgagor's covenants and
agreements herein contained, or (b) the Mortgagor shall satisfy the
requirements of Section 2.08(b), 2.08(d) or 2.08(e) of the Credit
Agreement, this Mortgage shall be released by the Agent, at the
cost and expense of the Mortgagor; otherwise the same shall remain
in full force and virtue in law. In case of failure of the Agent
to so release this Mortgage, all claims for statutory penalties and
damages are hereby waived.
IN WITNESS WHEREOF, the Mortgagor has caused this
Mortgage to be duly executed and delivered in Cleveland, Ohio as of
the day and year first above written.
Signed and acknowledged The "Mortgagor":
in the presence of:
HEALTH CARE REIT, INC.
______________________________ By:____________________________
Signature of Witness
(as to both signatures) Print
Name:__________________________
Print
Name:________________________ Title:_________________________
_____________________________ And:___________________________
Signature of Witness
(as to both signatures) Print
Name:__________________________
Print
Name:________________________ Title:_________________________
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County,
personally appeared HEALTH CARE REIT, INC., a Delaware corporation
(the "Mortgagor"), by _______________________________________, its
_____________________ and __________________________________, its
___________________ who acknowledged that they did sign the
foregoing Mortgage and that the same is the free act and deed of
said corporation and of the Mortgagor, and the free act and deed of
each of them personally and as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal at Cleveland, Ohio, this _______ day of
__________________, 1994.
____________________________________
Notary Public
My Commission Expires:
This instrument Prepared By:
CALFEE, HALTER & GRISWOLD
Suite 1800
800 Superior Avenue
Cleveland, Ohio 44114-2688
EXHIBIT 1
TO
AMENDED AND RESTATED OPEN-END MORTGAGE, ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
Legal Description of Premises
EXHIBIT 2
TO
AMENDED AND RESTATED OPEN-END MORTGAGE,ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
Permitted Encumbrances
1. Liens permitted under the Credit Agreement.
2. Real property taxes and assessments, both general and special,
which are a lien but not yet due and payable.
3. Zoning ordinances, if any.
4. Lease Agreement between the Mortgagor and ___________________,
dated ______, as amended by __________________________.