EXECUTION COPY
EXHIBIT H-2
THIS DEED OF TRUST SECURES FUTURE ADVANCES IN ACCORDANCE WITH
CHAPTER 443, MISSOURI REVISED STATUTES
[AMENDED AND RESTATED] DEED OF TRUST (WITH POWER OF SALE,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT)
[MISSOURI FORM]
Effective Date: _____________, 1994
Total Indebtedness (Exclusive of Interest Thereon)
Not To Exceed: $150,000,000
Maturity Date: _____________________, 1996
Grantor: Health Care REIT, Inc.
Grantor's Notice Address: One SeaGate, Suite 1950
Toledo, Ohio 43604
Attention: Ms. Erin C. Ibele
Beneficiary: National City Bank, as Agent
Beneficiary's Notice Address: National City Center
1900 East Ninth Street
Cleveland, Ohio 44114
Attention: Metro Ohio Division
Trustee: __________________________________
Trustee's Address: __________________________________
__________________________________
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 - RECITALS . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 2 - OBLIGATIONS SECURED . . . . . . . . . . . . . . . 3
2.1 Security for Indebtedness . . . . . . . . . . . . . 3
2.2 Security for Future Advances . . . . . . . . . . . 4
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES 4
3.1 Existence . . . . . . . . . . . . . . . . . . . . . 4
3.3 Enforceability . . . . . . . . . . . . . . . . . . 5
3.4 Litigation; Proceedings . . . . . . . . . . . . . . 5
3.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . 5
3.6 Compliance with Laws . . . . . . . . . . . . . . . 5
3.7 ERISA . . . . . . . . . . . . . . . . . . . . . . . 5
3.8 Adverse Obligations; Labor Disputes . . . . . . . . 5
3.9 Insurance . . . . . . . . . . . . . . . . . . . . . 6
3.10 Solvency . . . . . . . . . . . . . . . . . . . . . 6
3.11 Investment Company Act Status . . . . . . . . . . . 6
3.12 Construction and Completion of Improvements . . . . 6
3.13 Title to the Premises . . . . . . . . . . . . . . . 6
3.14 Independence of Premises . . . . . . . . . . . . . 6
3.15 Business Purpose . . . . . . . . . . . . . . . . . 6
3.16 Full Disclosure . . . . . . . . . . . . . . . . . . 6
ARTICLE 4 - COVENANTS AND AGREEMENTS . . . . . . . . . . . . . 7
4.1 Payment of Indebtedness . . . . . . . . . . . . . . 7
4.2 Payment of Taxes . . . . . . . . . . . . . . . . . 7
4.3 Insurance . . . . . . . . . . . . . . . . . . . . . 7
4.4 Escrow Account for Taxes and Insurance . . . . . . 8
4.5 Changes in Law Regarding Taxes . . . . . . . . . . 9
4.6 Liens . . . . . . . . . . . . . . . . . . . . . . . 9
4.7 Transfers and Encumbrances . . . . . . . . . . . . 10
4.8 Waste . . . . . . . . . . . . . . . . . . . . . . . 10
4.9 Compliance with Laws and Private Restrictions . . . 10
4.10 Maintenance and Alterations . . . . . . . . . . . . 10
4.11 Management of the Premises . . . . . . . . . . . . 11
4.12 Performance of Prior Covenants . . . . . . . . . . 11
4.13 Compliance with Material Contracts; No Amendment
or Default of Material Contracts . . . . . . . . . 11
4.14 Visitation . . . . . . . . . . . . . . . . . . . . 11
4.15 Estoppel Certificates . . . . . . . . . . . . . . . 12
4.16 Indemnification . . . . . . . . . . . . . . . . . . 12
4.17 Notice Limiting Amount Secured -- Intentionally
Deleted . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 5 - CASUALTY LOSSES AND EMINENT DOMAIN . . . . . . . . 12
5.1 Casualty Loss and Application of Insurance
Proceeds . . . . . . . . . . . . . . . . . . . . . 12
5.2 Takings . . . . . . . . . . . . . . . . . . . . . . 14
5.3 Distribution of Taking Proceeds and Insurance
Proceeds . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 6 - ENVIRONMENTAL COMPLIANCE . . . . . . . . . . . . . 15
6.1 Definitions . . . . . . . . . . . . . . . . . . . . 15
6.2 Environmental Representations and Covenants . . . . 16
6.3 Right of Entry . . . . . . . . . . . . . . . . . . 18
6.4 Obligations of the Beneficiary and the Banks . . . 18
6.5 Indemnification Provisions . . . . . . . . . . . . 18
ARTICLE 7 - SECURITY AGREEMENT . . . . . . . . . . . . . . . . 18
ARTICLE 8 - DEFAULTS AND REMEDIES . . . . . . . . . . . . . . 20
8.1 Default . . . . . . . . . . . . . . . . . . . . . . 20
8.2 Acceleration of Maturity; Remedies . . . . . . . . 20
8.3 Power of Sale . . . . . . . . . . . . . . . . . . . 20
8.4 Performance By the Beneficiary . . . . . . . . . . 20
8.5 Appointment of Receiver . . . . . . . . . . . . . . 21
8.6 Rights and Powers of Trustee; Sale of the
Premises after Default . . . . . . . . . . . . . . 21
8.7 Resignation and Substitution of Trustee;
Liability of Trustee . . . . . . . . . . . . . . . 23
8.8 Remedies Non-Exclusive . . . . . . . . . . . . . . 23
8.9 Execution of Judgment . . . . . . . . . . . . . . . 24
8.10 Fees Payable on Foreclosure . . . . . . . . . . . . 24
ARTICLE 9 - ASSIGNMENT OF LEASES AND RENTS . . . . . . . . . . 24
ARTICLE 10 - GENERAL . . . . . . . . . . . . . . . . . . . . . 24
10.1 No Waiver . . . . . . . . . . . . . . . . . . . . 24
10.2 Legal Proceedings . . . . . . . . . . . . . . . . 25
10.3 Subrogation . . . . . . . . . . . . . . . . . . . 25
10.4 Release and Partial Release . . . . . . . . . . . 25
10.5 Subordination . . . . . . . . . . . . . . . . . . 25
10.6 Waiver of Homestead Rights and Appraisement . . . 26
10.7 Covenants to Run with the Land . . . . . . . . . . 26
10.8 No Claims Against Beneficiary or the Banks . . . . 26
10.9 Further Assurances . . . . . . . . . . . . . . . . 26
10.10 Recordation . . . . . . . . . . . . . . . . . . . 26
10.11 Notices . . . . . . . . . . . . . . . . . . . . . 27
10.12 Governing Law . . . . . . . . . . . . . . . . . . 27
10.13 Conflict With Laws . . . . . . . . . . . . . . . . 27
10.14 Interest Limitation . . . . . . . . . . . . . . . 27
10.15 Rules of Construction . . . . . . . . . . . . . . 27
10.16 Successors and Assigns; Assignment . . . . . . . . 27
10.17 Amendments and Waivers . . . . . . . . . . . . . . 28
10.18 Waiver of Jury Trial . . . . . . . . . . . . . . . 28
10.19 Jurisdiction; Venue, Inconvenient Forum . . . . . 28
10.20 Certain Defined Terms . . . . . . . . . . . . . . 28
ARTICLE 11 - DEFEASANCE . . . . . . . . . . . . . . . . . . . 29
EXHIBITS
Exhibit 1 - Legal Description of Premises
Exhibit 2 - Permitted Encumbrances
INDEX OF CERTAIN DEFINED TERMS
Term Definition
Beneficiary . . . . . . . . . . . . . . . . . . . . . Preamble
Banks . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Borrower . . . . . . . . . . . . . . . . . . . . . . . Preamble
Casualty Loss . . . . . . . . . . . . . . . . . . . . Section 5.1
Code . . . . . . . . . . . . . . . . . . . . . . . . . Section 7.1
Collateral . . . . . . . . . . . . . . . . . . . . . . Section 3.9
Collateral Documents . . . . . . . . . . . . . . . . . Recitals
Credit Agreement . . . . . . . . . . . . . . . . . . . Recitals
Deed of Trust . . . . . . . . . . . . . . . . . . . . Preamble
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
Grantor . . . . . . . . . . . . . . . . . . . . . . . Preamble
Hazardous Materials . . . . . . . . . . . . . . . . . Section 6.1
Improvements . . . . . . . . . . . . . . . . . . . . . Preamble
Indebtedness . . . . . . . . . . . . . . . . . . . . . Section 2.1
Insurance Proceeds . . . . . . . . . . . . . . . . . . Section 5.1
Indemnitee . . . . . . . . . . . . . . . . . . . . . . Section 6.1
Land . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Law . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.2
Loan Documents . . . . . . . . . . . . . . . . . . . . Recitals
Net Insurance Proceeds . . . . . . . . . . . . . Section 5.1(b)(ii)
Net Restoration Award . . . . . . . . . . . . . . . . Section 5.2
Notes . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Operator . . . . . . . . . . . . . . . . . . . . . . . Preamble
Operator Lease . . . . . . . . . . . . . . . . . . . . Preamble
Permitted Encumbrances . . . . . . . . . . . . . . . . Section 3.13
Person . . . . . . . . . . . . . . . . . . . . . . . . Section 6.1
Premises . . . . . . . . . . . . . . . . . . . . . . . Preamble
State . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Taking . . . . . . . . . . . . . . . . . . . . . . . . Section 5.2
Taking Proceeds . . . . . . . . . . . . . . . . . . . Section 5.2
Tax . . . . . . . . . . . . . . . . . . . . . . . . . Section 4.2
Trustee . . . . . . . . . . . . . . . . . . . . . . . Preamble
[AMENDED AND RESTATED] DEED OF TRUST (WITH POWER OF SALE,
ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT)
KNOW ALL MEN BY THESE PRESENTS:
THAT THE UNDERSIGNED, 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 "Grantor"), for the purpose of securing the payment
of the Indebtedness (hereinafter defined) to 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, "Beneficiary"), National City Center, 1900 East Ninth
Street, Metro Division, Cleveland, Ohio 44114, has granted,
bargained, sold, transferred, assigned and conveyed, and by these
presents does grant bargain, sell, transfer, assigns, conveey and
confirm unto __________________________, having a mailing address
at ________________________________________________, as Trustee and
unto his successors or assigns in the trust hereby created (such
trustee, and any successors in trust being hereinafter referred to
as the "Trustee"), and unto his or their assigns and successors,
forever, all right, title and interest of the Grantor (whether fee,
leasehold, legal, or equitable) in and to the following real and
personal property (hereinafter collectively referred to as the
"Premises"), and possession of said Premises now delivered unto the
Trustee:
(a) the real property situated in the City of _________,
County of _________, State of Missouri (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 Grantor 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 Beneficiary; and
(d) all of the Grantor'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
Grantor 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
Grantor'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 Grantor'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 Grantor 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 Grantor'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 Grantor
after the date hereof and all licenses, permits and other like
rights or interests now or hereafter held or acquired by the
Grantor and necessary or useful for the operation of the Premises.
TO HAVE AND TO HOLD all and singular the Premises, with
the appurtenances thereunto belonging unto the Trustee, his
successors and assigns forever.
IN TRUST, however, for the following purposes and upon
the terms, provisions and conditions herein set forth.
The Trustee hereby lets the Premises to Grantor until a
sale be had under the provisions therefor, upon the following terms
and conditions hereof, the Grantor, and every and all persons
claiming or possessing the Premises, and any part thereof, by,
through, or under it shall or will pay rent therefor during said
term at the rate of $.01 per month, payable monthly upon demand and
shall and will surrender peaceable possession of the Premises, and
any part thereof, sold under said provisions, to Trustee, his
successors, assignees, or purchasers thereof under such sale,
within ten days after making of such sale, without notice or demand
therefor.
ARTICLE 1 - RECITALS
WHEREAS, Grantor, 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 Beneficiary 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 "Beneficiary"), pursuant to which the Banks have agreed to loan
to the Grantor 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 Grantor 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 Beneficiary") which are parties thereto (the
"Original Credit Agreement")];
WHEREAS, to evidence the obligations of the Grantor to
the Banks under the Credit Agreement, the Grantor 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 Grantor under the Original Credit
Agreement (the "Original Notes")];
WHEREAS, the Grantor has executed and delivered a certain
deed of trust in favor of the Original Beneficiary as beneficiary
thereunder recorded in Volume ___________, Page ___________,
_________ County Records (the "Original Deed of Trust") to secure
to the Original Beneficiary the obligations of the Grantor to the
Original Beneficiary 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 Beneficiary has assigned to
Beneficiary the Original Credit Agreement, the Original Deed of
Trust, and all other instruments and agreements evidencing or
securing the obligations of the Grantor under the Original Credit
Agreement or otherwise related thereto;]
WHEREAS, the Grantor has executed and delivered to the
Beneficiary this Deed of Trust to secure to the Beneficiary the
obligations of the Grantor 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 Deed of Trust, the Collateral
Documents and the Related Writings are sometimes collectively
referred to herein as the "Loan Documents"),[which Deed of Trust
amends and restates the Original Deed of Trust 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 Grantor hereby covenants and
agrees as follows:
ARTICLE 2 - OBLIGATIONS SECURED
2.1 Security for Indebtedness. The Grantor has executed and
delivered this Deed of Trust 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 Grantor pursuant
to, and all other obligations and liabilities of the Grantor
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 Beneficiary or
any of the Banks pursuant to any term or provision of this Deed of
Trust or any of the other Collateral Documents in accordance with
the Credit Agreement;
(c) all advances or disbursements of the Beneficiary
with respect to the Premises pursuant to Section 8.4 of this Deed
of Trust for the payment of taxes, levies, assessments, insurance
premiums or costs incurred in the protection of the Premises as
provided herein or by law; and
(d) the unpaid balances of any loan advances and all
other liabilities and indebtedness of the Grantor 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 Grantor has granted to the
Beneficiary a lien against the Premises.
2.2 Security for Future Advances. This Deed of Trust 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
Beneficiary or any of the Banks to the Grantor and all other debts,
obligations and liabilities of every kind and character of the
Grantor now or hereafter existing in favor of the Beneficiary 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 Beneficiary or
any of the Banks or to a third party and subsequently acquired by
the Beneficiary 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 Deed of Trust, 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 Deed
of Trust is delivered for record to the Office of the County
Recorder where the Premises are situated, make future advances and
readvances to the Grantor; 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 Deed of Trust
and shall be evidenced by the Credit Agreement and the Loan
Documents.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
The Grantor represents and warrants as follows:
3.1 Existence. The Grantor 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 Grantor as of the
Closing Date, the chief executive office of the Grantor and the
jurisdiction in which the Grantor is incorporated. All of the
outstanding stock of each Subsidiary (as defined in the Credit
Agreement) of the Grantor is owned by the Grantor and is fully paid
and non-assessable and owned by the Grantor free from any security
interest, option, equity or other right of any kind. The Grantor
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 Grantor of this Deed of Trust 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
Grantor's legal power and authority, (b) have been duly authorized
by all necessary or proper action of the Grantor, (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
Beneficiary and (d) will not violate (i) any provision of any "Law"
(which for purposes of this Deed of Trust 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 Grantor, (ii) any provision of the Grantor's
certificate or articles of incorporation or by-laws or regulations,
or (iii) any material agreement or material indenture by which the
Grantor or the property of the Grantor 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 Grantor except
as provided herein and in the Credit Agreement, or (f) will not
result in the disqualification of the Deed of Trust or any
Subsidiary of the Grantor as a REIT under Section 856 of the
Internal Revenue Code.
3.3 Enforceability. This Deed of Trust constitutes the
legal, valid and binding obligation of the Grantor, enforceable
against the Grantor 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 Grantor, threatened
against the Grantor at law, in equity or otherwise, or with respect
to this Deed of Trust or any Related Writing to which the Grantor
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 Grantor 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 Grantor, nor any
Subsidiary of the Grantor, nor, to the best knowledge of the
Grantor, the Operator, is in violation of any Law applicable to the
business or properties of the Grantor or any Subsidiary of the
Grantor, 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
Grantor 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 Grantor 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 Grantor 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 Grantor 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 Grantor 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 Grantor 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 Grantor and each of its Subsidiaries is
Solvent (as defined in the Credit Agreement).
3.11 Investment Company Act Status. The Grantor 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 Grantor 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 Grantor 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 Grantor has good right to bargain, sell
and convey the Premises in manner and form as above written. The
Grantor will warrant and defend the Premises with the appurtenances
thereunto belonging to the Trustee and the Beneficiary 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 Grantor 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 Deed of
Trust 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 Deed of
Trust or any interest therein to fulfill any governmental or
municipal requirement. Grantor 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 Grantor to the Beneficiary 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 Grantor has
provided all information requested by the Beneficiary or any Bank
and all such information is complete and accurate in all material
respects.
ARTICLE 4 - COVENANTS AND AGREEMENTS
The Grantor and its successors and assigns hereby
covenant and agree with the Beneficiary and the Banks, their
successors and assigns, as follows:
4.1 Payment of Indebtedness. The Grantor 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 Grantor 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 Deed of Trust 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 Beneficiary and the Banks therein excepting the federal income
tax imposed on the Beneficiary 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 Grantor 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 Grantor shall submit evidence of the payment of all Taxes to
the Beneficiary not less than ten (10) Business Days after the due
date for such payment. The Grantor shall be entitled to the
benefit of installment payments regarding any Tax which is payable
in installments, provided, however, in the event the Grantor 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 Grantor in its entirety on the day a lien would
attach to the Premises.
(b) Notwithstanding the provisions of subsection (a)
above, (i) the Grantor shall have the right to contest in good
faith any Tax upon posting with the Beneficiary (or other agent if
required under applicable Law) sufficient security, satisfactory to
the Beneficiary, 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 Grantor 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 Deed of Trust, the Grantor 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 Grantor 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 Beneficiary, which such policy shall be for the
benefit of the Grantor and the Beneficiary, 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 Beneficiary of written notice
thereof. The Grantor 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 Grantor shall cause the Operator of the Premises
to maintain for the mutual benefit of the Beneficiary and the
Grantor 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 Beneficiary 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 Beneficiary and the Banks.
(c) The Grantor 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 Beneficiary,
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 Deed of Trust, the Grantor 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
Beneficiary, and, to the extent of its interest, are to be for the
benefit of and first payable in case of loss to the Beneficiary 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 Grantor shall place and keep the original policies of
insurance required hereunder with the Beneficiary or, at the
Grantor's election, a copy thereof and an original certificate
thereof, and shall deliver to the Beneficiary 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 Beneficiary at least thirty (30) days before the date of
such expiration at the Beneficiary's address as set forth at the
beginning of this Deed of Trust, or at such other place or to such
other party as the Beneficiary may, from time to time, designate in
writing.
(f) The Grantor, 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 Beneficiary 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 Deed of Trust, 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 Grantor 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 Beneficiary.
4.4 Escrow Account for Taxes and Insurance. Subject to the
provisions of Sections 4.2(b) and 4.3(d) hereof, the Grantor will
pay to the Beneficiary 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 Beneficiary 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 Grantor 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 Beneficiary and any deficiencies shall be paid by the
Grantor within ten (10) days of the Beneficiary's demand therefor.
If funds in the escrow account are insufficient to pay all Taxes
and insurance premiums and the Grantor has failed, refused or
neglected to pay the same as they become due, the Beneficiary may,
but shall have no obligation to, pay the same plus any interest or
penalties due thereon. Any such amount so paid by the Beneficiary
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
Grantor shall present to the Beneficiary the bill for any such
premium or installment of Taxes, and the Beneficiary 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 Grantor.
(b) Upon receipt of said check by the Grantor if such
funds are being escrowed, the Grantor shall pay and discharge, as
the same become payable, the insurance premiums and Taxes. The
Grantor will submit to the Beneficiary such evidence of the due and
punctual payment of all insurance premiums and Taxes as the
Beneficiary may require. Any deficiency in the fixed amount of any
such aggregate monthly payment not paid by Grantor to the
Beneficiary within the grace period, if any, applicable to payments
to be made under the Credit Agreement shall constitute an Event of
Default under this Deed of Trust. 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
Beneficiary, 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 Beneficiary 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 Grantor 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 Beneficiary
after the occurrence of an Event of Default, any remaining balance
of such accumulated funds shall, at the option of the Beneficiary,
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
Deed of Trust, the Indebtedness or the interest of the Beneficiary
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 Beneficiary thirty (30) days after the mailing of
notice of such election to the Grantor; provided, however, said
option shall not be available if the Grantor lawfully may pay for
(or reimburse the Beneficiary and/or any or all of the Banks for)
such Tax including interest and penalties thereon to or for the
Beneficiary and elects to pay and does, in fact, pay when payable,
for all such Tax, including interest and penalties thereon. The
Grantor further agrees to deliver to the Beneficiary, 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 Grantor 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
Grantor 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
Grantor shall have the right to contest in good faith any such
mechanics' lien or statutory lien upon posting with the
Beneficiary, or such other agent as may be required pursuant to any
applicable statute, sufficient security, satisfactory to the
Beneficiary 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 Grantor 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 Beneficiary. Any such lease
or agreement not actually approved by the Beneficiary shall, at the
option of the Beneficiary, be null and void and shall not grant any
rights in the Premises to the parties named therein. If the
Grantor (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 Deed of
Trust. If the Grantor (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 Deed of Trust. 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 Beneficiary, 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 Grantor or the Beneficiary, the
Beneficiary may, without notice to the Grantor, deal with such
successor- or successors-in-interest with respect to this Deed of
Trust and the Indebtedness in the same manner as with the Grantor,
without in any way releasing, discharging or otherwise affecting
any liability of the Grantor under this Deed of Trust or for the
Indebtedness.
(b) The consent of the Beneficiary required hereunder
may be refused or predicated upon any terms, conditions and
covenants deemed advisable or necessary by the Beneficiary 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 Deed of Trust 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 Grantor shall not commit waste upon the
Premises or suffer waste to be committed thereon.
4.9 Compliance with Laws and Private Restrictions. The
Grantor 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 Grantor 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 Grantor 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 Grantor 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 Grantor 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 Grantor without the prior written consent of the
Beneficiary. The Grantor 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 Beneficiary.
4.11 Management of the Premises. Except as permitted under
the Credit Agreement and except for the Operator Lease, the Grantor
shall not enter into any franchise, management, operating or
license agreement regarding the Premises without the Beneficiary's
prior written consent.
4.12 Performance of Prior Covenants. The Grantor hereby
acknowledges that the Indebtedness was incurred in good faith for
full value received. The Grantor 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 Beneficiary, 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 Beneficiary, together with interest
thereon from the date of payment at the Default Rate, shall be
added to the Indebtedness and be secured by this Deed of Trust.
4.13 Compliance with Material Contracts; No Amendment or
Default of Material Contracts.
(a) The Grantor 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 Grantor, in its reasonable judgment, determines
to be appropriate, each such material contract in accordance with
its terms if the failure of the Grantor 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 Grantor 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 Grantor 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 Grantor 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 Grantor's or
such Subsidiary's business, (iv) is consistent with the Grantor'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 Beneficiary or the
Grantor) of the Beneficiary and the Banks in such agreement or the
assets with respect thereto or otherwise result in a Material
Impairment.
4.14 Visitation. The Grantor 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 Grantor, and to examine the
Grantor's financial records and to make copies of and extracts from
such records; and (ii) to consult with the Grantor's officers,
directors, accountants, actuaries, trustees and plan
administrators, as the case may be, in respect of the Grantor's
financial condition, properties and operations and the financial
condition of the Grantor'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 Grantor;
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 Beneficiary, the Grantor shall furnish the
Beneficiary 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 Deed of Trust are valid,
legal and binding obligations of the Grantor and have not been
modified or if modified, giving the particulars of such
modification.
4.16 Indemnification. The Grantor hereby indemnifies and
agrees to protect, defend, and save harmless the Beneficiary 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 Beneficiary or
any of the Banks (except liabilities, obligations, claims, damages,
penalties, causes of action, costs, and expenses resulting from the
Beneficiary's or a Bank's gross negligence or willful misconduct)
by reason of (i) ownership of this Deed of Trust, the Premises, or
any interest therein or receipt of any rents; (ii) any alleged
obligation or liability on the part of the Beneficiary to be
performed or discharged under the terms and provisions of any
agreements relating to the Premises, except for such liabilities as
the Beneficiary 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 Grantor relating to this Deed of Trust
or the Loan Documents or any failure on the part of the Grantor to
perform or comply with any of the terms of this Deed of Trust 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 Deed of Trust or the exercise of rights
or remedies hereunder and from any and all claims and demands
whatsoever which may be asserted against the Beneficiary 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 Deed of Trust, or to
supply a copy thereof in a timely fashion to the recipient of the
proceeds of the transaction in connection with which this Deed of
Trust is made. Any amounts payable to the Beneficiary or any of
the Banks by reason of the application of this Section 4.16 shall
be secured by this Deed of Trust 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 Beneficiary and such of the Banks until paid.
The obligations and liabilities of the Grantor 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 Deed of Trust, the Credit Agreement, the Loan
Documents or any other documents relating thereto for whatever
reason.
4.17 Notice Limiting Amount Secured -- Intentionally Deleted.
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 Beneficiary, and if paid to the
Grantor such Insurance Proceeds shall be received only in trust for
the Beneficiary, shall be segregated from other funds of the
Grantor and shall be forthwith paid over to the Beneficiary 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 Beneficiary
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 Grantor 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 Beneficiary shall
make the Insurance Proceeds received by the Beneficiary pursuant to
the provisions of this Deed of Trust 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
Grantor shall have provided to the satisfaction of the Beneficiary
(1) contracts for such repair or replacement demonstrating the
Grantor'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 Beneficiary), and (2) cash-
flow projections and other assurances reasonably satisfactory to
the Beneficiary providing for the Grantor'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 Beneficiary to the Grantor to pay for the costs of
repair and restoration of the Premises. The Net Insurance Proceeds
shall be held by the Beneficiary 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 Beneficiary shall constitute additional security for the
payment of the Indebtedness secured by this Deed of Trust. The Net
Insurance Proceeds (together with any accrued interest thereon)
shall be paid by the Beneficiary to the Grantor 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 Grantor, 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 Beneficiary 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
Beneficiary, certifying that all work in place has been completed
in accordance with the plans and specifications approved by the
Beneficiary 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 Beneficiary may, prior to making payment from such
separate award account, require the Grantor to provide evidence
that, or deposit with the Beneficiary moneys to be placed in such
account so that, there will be adequate moneys available for such
repair and restoration. The Beneficiary 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
Beneficiary remaining after payment of all costs of such repair,
rebuilding or restoration shall be applied by the Beneficiary 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
Beneficiary 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 Beneficiary 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 Grantor shall (i)
promptly upon any such threat of which it is aware or occurrence
provide written notice thereof to the Beneficiary, (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 Beneficiary, 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 Beneficiary segregated from other funds of the
Grantor and (v) forthwith pay over to the Beneficiary 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
Beneficiary, the Beneficiary may participate in any Taking
proceedings, and the Grantor shall from time to time use its best
efforts to deliver to the Beneficiary, to the furthest extent
possible, all instruments requested by it to permit such
participation.
Notwithstanding any Taking, the Grantor 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 Beneficiary 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 Beneficiary of the Taking Proceeds, the Beneficiary 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 Grantor
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 Beneficiary, and hereby
irrevocably authorizes and empowers the Beneficiary, in the name of
the Grantor 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 Grantor shall, upon demand of the
Beneficiary, make, execute and deliver any and all assignments and
other instruments sufficient for the purpose of assigning any such
award or payment to the Beneficiary, 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 Beneficiary such Taking will have a
material adverse effect on the business or financial condition of
(i) the Grantor or (ii) the Grantor and its Subsidiaries, if any,
on a consolidated basis, the Beneficiary shall make the proportion
of the aggregate award or payment received by the Beneficiary
pursuant to the provisions of this Deed of Trust 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
Beneficiary 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 Grantor 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
Beneficiary 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 Beneficiary. Upon satisfaction of
the provisions of the preceding sentence of this paragraph, the Net
Restoration Award will be disbursed by the Beneficiary to the
Grantor to pay for the costs of repair and restoration of the
Premises not taken. The Net Restoration Award shall be held by the
Beneficiary 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 Beneficiary shall
constitute additional security for the payment of all sums secured
by this Deed of Trust. The Net Restoration Award (together with
any accrued interest thereon) shall be paid by the Beneficiary to
the Grantor 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
Grantor. As a condition to the disbursement of the Net Restoration
Award (and any accrued interest thereon), the Beneficiary 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 Beneficiary, certifying that all work in place has
been completed in accordance with the plans and specifications
approved by the Beneficiary 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 Beneficiary may, prior to making
payment from such separate award account, require the Grantor to
provide evidence that, or deposit with the Beneficiary moneys to be
placed in such account so that, there will be adequate moneys
available for such repair and restoration. The Beneficiary 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 Beneficiary remaining after payment of all costs of such
repair, rebuilding or restoration shall be applied by the
Beneficiary 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 Beneficiary under the Loan Documents as
collateral security for the Indebtedness may be applied by the
Beneficiary in any one or more of the following ways:
(a) to the fulfillment of any of the covenants contained
herein as the Beneficiary may determine, including, without
limitation, the replacement or restoration of the Premises to a
condition satisfactory to the Beneficiary, 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 Deed of Trust);
(c) to the payment of the Indebtedness secured by this
Deed of Trust owing to the Beneficiary (including any interest or
premium accrued thereon); and/or
(d) to or at the direction of the Grantor, 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, investigations, 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 Beneficiary 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 Beneficiary.
(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 Grantor
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 Grantor 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 Grantor 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 Grantor, 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 Grantor 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 Grantor 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 Grantor, there are no
circumstances with respect to the Premises or the operations of the
Grantor or any of its Subsidiaries that could reasonably be
anticipated (i) to form the basis of an Environmental Claim against
the Grantor 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 Grantor 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 Grantor 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 Grantor 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 Grantor 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 Grantor 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 Deed of Trust, the Beneficiary 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 Beneficiary believes are necessary or desirable
to determine current compliance with the covenants and
representations contained herein.
6.4 Obligations of the Beneficiary and the Banks. Nothing
contained in this Article 6 shall obligate the Beneficiary 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 Grantor 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 Grantor in this Deed of Trust.
(b) The liability of the Grantor 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 Grantor 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 Deed of Trust by operation of law, the Beneficiary'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
Beneficiary's or the Banks' recourse to the Premises or to any
other security in the Indebtedness or limiting the Beneficiary's or
the Banks' rights to a deficiency judgment against the Grantor, (v)
any applicable statute of limitations, (vi) any investigation or
inquiry conducted by or on behalf of the Beneficiary or any other
Indemnitee or any information which the Beneficiary 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 Deed of Trust, (viii) the
sale, transfer or conveyance of all or part of the Premises, (ix)
the dissolution or liquidation of the Grantor, (ix) the release or
discharge, in whole or in part, of the Grantor, 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 Grantor under the
Loan Documents or under this Deed of Trust.
ARTICLE 7 - SECURITY AGREEMENT
This Deed of Trust 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 Grantor and comprising the
Premises (hereinafter the "Collateral") securing the Indebtedness.
This Deed of Trust 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 Deed of Trust, the Grantor by this Deed of Trust:
(a) grants to the Beneficiary a security interest in all
of the Grantor'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 Beneficiary 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 Deed of Trust 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 Grantor's right, title or interest therein without first
securing Beneficiary's written consent; and the Beneficiary may, at
its sole option, require the Grantor to apply the proceeds from the
disposition of Collateral in reduction of the Indebtedness hereby
secured; provided, however, that the Beneficiary 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 Beneficiary's prior
written consent;
(d) except as expressly permitted in the Credit
Agreement, agrees that if any of the Grantor'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 Beneficiary, such transfer shall constitute an Event
of Default by the Grantor under the terms of this Deed of Trust;
(e) agrees that upon or after the occurrence of any
Event of Default hereunder, the Banks may, with or without notice
to the Grantor, 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 Beneficiary 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 Beneficiary 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 Beneficiary and
toward payment of the Indebtedness, in such order and manner as the
Beneficiary may elect. Any notice given by the Beneficiary 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
Beneficiary, that upon the occurrence of an Event of Default the
Beneficiary may dispose of any or all of the Collateral at the same
time and place upon giving the same notice provided for in this
Deed of Trust, and in the same manner as the nonjudicial
foreclosure sale provided under the terms and conditions of this
Deed of Trust;
(g) authorizes the Beneficiary to file, in the
jurisdiction where this Deed of Trust 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 Grantor where permitted by law (a carbon, photographic or
other reproduction of this Deed of Trust 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 Grantor as of the date hereof,
has joined the Beneficiary 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 Deed
of Trust: (i) the Grantor 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 Grantor 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 Deed of
Trust; (iii) the Grantor shall fail to observe or perform any of
its covenants, agreements or obligations under Sections 4.2, 4.3 or
6.2 of this Deed of Trust and shall fail to cure such failure
within ten (10) Business Days; (iv) the Grantor shall fail to
observe or perform any of its covenants, agreements or obligations
under any provision of this Deed of Trust not specifically set
forth in clauses (i), (ii) or (iii) above within thirty (30)
Business Days after the giving of written notice to the Grantor 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 Beneficiary pursuant to the
Credit Agreement or any Related Writing) made in this Deed of Trust
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 Deed of Trust to the contrary
notwithstanding, and thereupon or at any time during the existence
of such Event of Default, the Beneficiary may proceed to foreclose
this Deed of Trust or otherwise pursue any other right or remedy
available under this Deed of Trust, 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 Beneficiary 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 Deed of Trust, 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 Grantor.
8.4 Performance By the Beneficiary. The Grantor hereby
agrees that in the event the Grantor 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 Beneficiary 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
Grantor agrees that the Beneficiary and the Banks shall thereupon
have a claim against the Grantor for all sums paid by the
Beneficiary for such Taxes, insurance, rents and defaults cured,
together with a lien upon the Premises for the sum so paid plus
Default Rate. The Beneficiary, in making any payment herein as
hereby authorized in the place and stead of the Grantor 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 Deed of Trust, and provided
further that in connection with any advance, the Beneficiary, in
the event of apparent or thereafter adverse title, lien or
encumbrance, or foreclosure, by the Beneficiary 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 Grantor
upon demand and shall be hereby secured.
8.5 Appointment of Receiver. In the event an action shall
be instituted to foreclose this Deed of Trust, or prior to
foreclosure but after the occurrence of an Event of Default, the
Beneficiary 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 Deed of Trust
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 Beneficiary and the Banks have an
adequate remedy at law. The Grantor 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 Deed of Trust 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 Beneficiary 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 Grantor 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 Beneficiary 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
Beneficiary 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
Beneficiary'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 Beneficiary 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 Deed of Trust and have the
same priority of collection as the Indebtedness.
8.6 Rights and Powers of Trustee; Sale of the Premises after
Default.
(a) If Grantor shall default hereunder, Grantor hereby
authorizes and empowers the Trustee (or in case of his death,
inability, refusal to act or absence from ___________ County,
Missouri, when any advertisement and sale are to be made hereunder,
then, whoever shall be sheriff of _____________ County, Missouri,
at the time when any such advertisement and sale are to be made,
who shall thereupon for the purpose of that advertisement and sale
succeed to the Trustee's title to the Premises and the trust herein
created respecting the same), may proceed to sell the Premises, and
any and every part thereof, at public vendue, to the highest
bidder, at the front door of the ______ County Circuit Court House
in _____________ in the County of ___________, State of Missouri
aforesaid, for cash, first giving twenty (20) days public notice of
the time, terms and place of sale, and of the property to be sold,
by advertisement in some newspaper printed and published in
_____________ County, Missouri, and any other notice required by
Missouri law, and upon such sale shall execute and deliver a deed
of conveyance of the property sold to the purchaser or purchasers
thereof, and any statement or recital of fact in such deed in
relation to the nonpayment of money hereby secured to be paid,
existence of the Indebtedness so secured, notice by advertisement,
sale, receipt of money, and the happening of any of the aforesaid
events whereby the sheriff may become successor as herein provided,
shall be prima facie evidence of the truth of such statement or
recital; and Trustee shall receive the proceeds of said sale out of
which he shall pay, first the cost and expenses of executing this
trust, including compensation to the Trustee, for his services and
next to Beneficiary, upon the usual vouchers therefor, all monies
paid for insurance or taxes and judgments upon statutory liens,
claims and interest thereon as hereinbefore provided for; and next
all interest, then due and unpaid; and next the principal of the
Indebtedness, with interest up to the time of such payment; and the
balance of such proceeds, if any, shall be paid to the Grantor.
Notwithstanding the foregoing provisions of this paragraph, notice
of such sale given in accordance with the requirements of the
applicable law of the State of Missouri in effect at the time of
such sale shall constitute sufficient notice of such sale. Trustee
covenants to faithfully perform the trust herein created. Grantor
hereby authorizes and empowers the Trustee to sell all or any
portion of the Premises, together or in lots or parcels, as the
Trustee may deem expedient, and to execute and deliver to the
purchaser or purchasers of such property, good and sufficient deeds
of conveyance of fee simple title with covenants of general
warranty made on behalf of the Grantor. Payment of the purchase
price to the Trustee shall satisfy the obligation of the purchaser
at such sale therefor, and such purchaser shall not be bound to
look after the application thereof. The sale or sales by the
Trustee of less than the whole of the Premises shall not exhaust
the power of sale herein granted, and the Trustee is specifically
empowered to make successive sale or sales under such power until
the whole of the Premises shall be sold; and if the proceeds of
such sale or sales of less than the whole of such Premises shall be
less than the aggregate of the Indebtedness secured hereby and the
expense of executing this trust, this Deed of Trust and the lien,
security interest and assignment hereof shall remain in full force
and effect as to the unsold portion of the Premises just as though
no sale or sales had been made; provided, however, that Grantor
shall never have any right to require the sale or sales of less
than the whole of the Premises, but Beneficiary shall have the
right, at its sole election, to request the Trustee to sell less
than the whole of the Premises. If default is made hereunder, the
holder of the Indebtedness or any part thereof on which the payment
is delinquent shall have the option to proceed with foreclosure in
satisfaction of such item either through judicial proceedings or by
directing the Trustee to proceed as if under a full foreclosure
conducting the sale as herein provided without declaring the entire
Indebtedness secured hereby due, and if sale is made because of
default of an installment, or a part of an installment, such sale
may be made subject to the unmatured part of the Note and other
Indebtedness secured by this Deed of Trust; and it is agreed that
such sale, if so made, shall not in any manner affect the unmatured
part of the Indebtedness secured by this Deed of Trust, but as to
such unmatured part, this Deed of Trust shall remain in full force
and effect as though no sale had been made under the provisions of
this paragraph. Several sales may be made hereunder without
exhausting the right of sale for any unmatured part of the
Indebtedness secured hereby.
(b) Grantor hereby agrees, in its behalf and in behalf
of its successors and assigns, that any and all statements of fact
or other recitals made in any deed of conveyance given by the
Trustee, with respect to the identity of Beneficiary or Grantor, or
with respect to the occurrence or existence of any default, or with
respect to the acceleration of the maturity of the Indebtedness
secured hereby, or with respect to the request to sell, the notice
of sale, the giving of notice to all debtors legally entitled
thereto, the time, place, terms and manner of sale, and receipt,
distribution, and application of the money realized therefrom, or
with respect to the due and proper appointment of a substitute
Trustee, and, without being limited by the foregoing, with respect
to any other act or thing having been duly done by the Beneficiary
or by the Trustee hereunder, shall be taken by all courts of law
and equity as prima facie evidence that the statements or recitals
state facts and are without further question to be so accepted, and
Grantor hereby ratifies and confirms every act that Trustee or any
substitute trustee hereunder may lawfully do in the Premises by
virtue hereof. The purchaser at any trustee's or foreclosure sale
hereunder may disaffirm any easement granted, or rental, lease or
other contract made in violation of any provision of this Deed of
Trust, and may take immediate possession of the Premises free from,
and despite the terms of, such grant of easement and rental or
lease contract. Beneficiary may bid and become the purchaser of
all or any part of the Premises at any trustee's or foreclosure
sale hereunder. If any of the Indebtedness hereby secured shall
not be paid when due and payable (after the lapse of any applicable
grace period), the Trustee or the Beneficiary shall have the right
and power to proceed by a suit or suits in equity or at law,
whether for the specific performance of any covenant or agreement
herein contained or in aid of the execution of any power herein
granted, or for any foreclosure hereunder or for the sale of the
Premises under the judgment or decree of any court or courts of
competent jurisdiction, or for the appointment of a receiver
pending any foreclosure hereunder or the sale of the Premises under
the order of a court or courts of competent jurisdiction or under
executory or other legal process, or for the enforcement of any
other appropriate legal or equitable remedy. The Grantor agrees,
to the full extent that it lawfully may, that in case one or more
or the defaults hereunder shall have occurred and shall not have
been remedied, then, and in every such case, the Beneficiary shall
have the right and power to enter into and upon and take possession
of all or any part of the Premises in the possession of the
Grantor, its successors or assigns, or its or their agents or
servants, and may exclude the Grantor, its successors or assigns,
and all persons claiming under the Grantor, and its or their agents
or servants, wholly or partly therefrom; and, holding the same, the
Beneficiary may use, administer, manage, operate and control the
Premises and conduct the business thereof, to the same extent as
the Grantor, its successors or assigns, might at the time do and
may exercise all rights and powers of the Grantor, in the name,
place and stead of the Grantor, or otherwise of any of the
foregoing rights and powers Beneficiary shall not be liable to
Grantor for any loss or damage thereby sustained unless due solely
to the willful misconduct or gross negligence of Beneficiary.
(c) In the event a foreclosure hereunder shall be
commenced by the Trustee, or his substitute or successor, the
Beneficiary may at any time before the sale of the Premises direct
the Trustee to abandon the sale, and may then institute suit for
the collection of the Indebtedness, and for the foreclosure of this
Deed Of Trust. It is agreed that if the Beneficiary should
institute a suit for the collection of the Indebtedness and for the
foreclosure of this Deed of Trust, the Beneficiary may at any time
before the entry of a final judgment in said suit dismiss the same,
and require the Trustee, his substitute or successor to sell the
Premises in accordance with the provisions of this Deed of Trust.
(d) The Beneficiary shall have the right to become the
purchaser at any sale held by any Trustee or substitute or
successor or by any receiver or public officer, and Beneficiary
purchasing at any such sale shall have the right to credit upon the
amount of the bid made therefor, to the extent necessary to satisfy
such bid, the Indebtedness owing to the Beneficiary, or if
Beneficiary holds less than all of such indebtedness the pro rata
part thereof owing to the Beneficiary.
Resignation and Substitution of Trustee; Liability of
Trustee.
(a) The Trustee may resign by an instrument in writing
addressed to the Beneficiary, or the Trustee may be removed at any
time with or without cause by an instrument in writing executed by
the Beneficiary. In case of the death, resignation, removal or
disqualification of the Trustee or if for any reason the
Beneficiary shall deem it desirable to appoint a substitute or
successor trustee to act instead of the herein named trustee or any
substitute or successor trustee, then the Beneficiary shall have
the right and is hereby authorized and empowered to appoint a
successor trustee, or a substitute trustee, without other formality
than appointment and designation in writing executed by the
Beneficiary and the authority hereby conferred shall extend to the
appointment of other successor and substitute trustees successively
until the Indebtedness secured hereby has been paid in full or
until the Premises is sold hereunder. If the Beneficiary is a
corporation and such appointment is executed in its behalf by an
officer of such corporation, such appointment is executed in its
behalf by an officer of such corporation, such appointment shall be
conclusively presumed to be executed with authority and shall be
valid and sufficient without proof of any action by the board of
directors or any superior officer of the corporation. Upon the
making of any such appointment and designation, all of the estate
and title of the Trustee in the Premises shall vest in the named
successor or substitute trustee and he or it shall thereupon
succeed to and shall hold, possess and execute all the rights,
powers, privileges, immunities and duties herein conferred upon the
Trustee, and shall duly assign, transfer and deliver any of the
properties and monies held by said Trustee hereunder to said
successor or substitute Trustee. All references herein to the
Trustee shall be deemed to refer to the Trustee (including any
successor or substitute appointed and designated as herein
provided) from time to time acting hereunder. Grantor hereby
ratifies and confirms any and all acts which the herein named
Trustee or his successor or successors, substitute or substitutes
in this trust, shall do lawfully by virtue hereof.
(b) The Trustee shall not be liable for any error of
judgment or act done by the Trustee in good faith, or be otherwise
responsible or accountable under any circumstances whatsoever,
except for the Trustee's gross negligence or willful misconduct.
The Beneficiary shall have the right to rely on any instrument,
document or signature authorizing or supporting any action taken or
proposed to be taken by him hereunder, believed by him in good
faith to be genuine. All monies received by the Trustee shall,
until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated
in any manner from any other monies (except to the extent required
by law), and the Trustee shall be under no liability for interest
on any monies received by him hereunder. Grantor will reimburse
the Trustee for, and indemnify and save him harmless against, any
and all liability and expenses which may be incurred by him in the
performance of his duties hereunder.
8.8 Remedies Non-Exclusive. Each remedy or right of the
Beneficiary 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 Beneficiary and the Banks.
8.9 Execution of Judgment. If more than one property, lot,
parcel, estate or interest is covered by this Deed of Trust, and if
this Deed of Trust 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 Beneficiary's election.
8.10 Fees Payable on Foreclosure. In case of foreclosure of
this Deed of Trust 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 Deed of Trust; and, to the extent permitted by
law, there shall be included in any judgment or decree foreclosing
this Deed of Trust 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 Beneficiary, if any, for any purpose authorized in this Deed of
Trust 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 Grantor hereby absolutely and unconditionally assigns
to the Beneficiary 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 Grantor'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 Grantor
hereby irrevocably grants to the Beneficiary 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 Beneficiary hereby conditionally
waives such right, and grants to the Grantor the revocable license
to collect and to enforce the same, provided, however, that said
waiver and such license of the Grantor to collect such rents and to
enforce such leases may, after the occurrence of an Event of
Default, be revoked by the Beneficiary at any time by giving notice
of such revocation to the Grantor. All rents collected by the
Grantor after the giving of such notice of revocation by the
Beneficiary shall be held by the Grantor as a trust fund for the
Beneficiary. Following such notice of revocation, the Beneficiary
may retain and apply the rents toward payment of the Indebtedness
in such order and manner as the Beneficiary may elect.
ARTICLE 10 - GENERAL
10.1 No Waiver. No sale of the Premises, no forbearance on
the part of the Beneficiary 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 Beneficiary or any of the Banks shall
in any way whatsoever operate to release, discharge, modify, change
or affect the original liability of the Grantor herein, either in
whole or in part. No waiver by the Beneficiary of any breach of
any covenant of the Grantor 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 Beneficiary 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
Beneficiary and the Banks hereunder in any one or more instances,
or the acceptance by the Beneficiary 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 Beneficiary and the Banks in accordance with the
Credit Agreement, be rescinded by written acknowledgment to that
effect by the Beneficiary, 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 Beneficiary and the Banks may pursue their rights without
first exhausting their rights hereunder and all rights, powers and
remedies hereby conferred upon the Beneficiary and the Banks are in
addition to each and every right which the Beneficiary 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 Beneficiary or any of
the Banks is made a party by reason of the execution of this Deed
of Trust or the Indebtedness or in which it becomes necessary to
defend or uphold the lien of this Deed of Trust, 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 Beneficiary 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
Deed of Trust, or the interest created herein, or the Premises,
including, but not limited to, bankruptcy, probate and
administration proceedings, foreclosure of this Deed of Trust or
any condemnation action involving the Premises, all reasonable sums
paid by the Beneficiary 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 Grantor to the Beneficiary, 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 Beneficiary, 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 Beneficiary 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 Grantor agrees, without
affecting the liability of any person for payment of the
Indebtedness hereby secured or affecting the lien of this Deed of
Trust upon the Premises or any part thereof (other than persons or
property explicitly released as a result of the exercise by the
Beneficiary of its rights and privileges hereunder), that the
Beneficiary, 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 Deed of Trust 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 Deed of Trust 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
Beneficiary: (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 Grantor, subsequent purchasers of the Premises or any
part thereof, or makers or sureties of this Deed of Trust under any
covenant of this Deed of Trust or preclude the Beneficiary 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 Deed of Trust, together with any
renewal, consolidation, extension, modification, or replacement
thereof, which now or at any time affects the Premises or any
interest of the Grantor in the Premises. By acceptance of this
Deed of Trust, the Beneficiary agrees that the Beneficiary 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 Deed
of Trust 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 Grantor shall
cause Operator to execute, acknowledge and deliver at any time and
from time to time upon demand by the Beneficiary or any other
holder of this Deed of Trust, such documents as may be requested by
the Beneficiary or any other holder of this Deed of Trust 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 Beneficiary, this Deed of Trust 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 Beneficiary 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 Grantor 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 Beneficiary or the Banks. Nothing
contained in this Deed of Trust shall constitute any request by the
Beneficiary 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 Grantor 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 Beneficiary 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 Deed
of Trust.
10.9 Further Assurances. The Grantor shall execute,
acknowledge and deliver any and all such further acts, conveyances,
documents, mortgages and assurances as the Beneficiary may
reasonably require for accomplishing the purpose hereof forthwith
upon the request of the Beneficiary, whether in writing or
otherwise. If the Grantor shall not have delivered to the
Beneficiary duly executed statements or agreements referred to
hereinabove within ten (10) days of the Beneficiary's demand
therefor, the Beneficiary may file such Uniform Commercial Code
financing statements or agreements in the name of the Grantor. The
Grantor hereby appoints the Beneficiary as its attorney-in-fact in
connection with any of the applicable Premises covered by this Deed
of Trust, 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 Deed
of Trust remains in effect. The Grantor, within ten (10) days
after request by the Beneficiary, will furnish a written statement
duly acknowledged, of the amount due upon this Deed of Trust 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 Beneficiary or any
of the Banks to any third party or (ii) an audit of the Beneficiary
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 Beneficiary, the
Grantor, at its expense, will cause all instruments of further
assurance requested by the Beneficiary (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
Deed of Trust 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 Beneficiary and the Banks as to the Premises. However, neither
a demand so made by the Beneficiary, nor the failure of the
Beneficiary 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 Deed of Trust, it being understood and agreed
that this covenant and any security instrument delivered to the
Beneficiary 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 Grantor, 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 Beneficiary, 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 Beneficiary pursuant
to Article 8 shall not be effective until received by the
Beneficiary.
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 Deed
of Trust 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 Deed of Trust 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 Deed of
Trust.
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 Grantor (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 Deed of
Trust, 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 Deed of Trust shall remain operative and in full
force and effect. Any interest paid in excess of the lawful rate
shall be refunded to the Grantor. 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 Beneficiary
may determine. If the excessive amount of interest paid exceeds
the Indebtedness, the portion exceeding the Indebtedness shall be
refunded in cash by the Beneficiary. Any such crediting or refund
shall not cure or waive any default by the Grantor hereunder or
under the Indebtedness. The Grantor agrees, however,that in
determining whether or not any interest payable under the
Indebtedness or this Deed of Trust 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 Grantor herein contained are joint and several.
10.16 Successors and Assigns; Assignment. This Deed of Trust
is binding upon the Grantor, its successors and assigns, and the
rights, powers and remedies of the Beneficiary under this Deed of
Trust shall inure to the benefit of the Beneficiary and its
successors and assigns. The Grantor may not assign its obligations
or rights hereunder without the consent of the Beneficiary and each
of the Banks. Each of the Beneficiary 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 Deed of Trust, nor consent to any departure by
the Grantor 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 Deed
of Trust 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 Deed of Trust 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 Beneficiary in addition
to the Banks required above to take such action, affect the rights
or duties of the Beneficiary under this Deed of Trust.
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 GRANTOR
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 DEED OF TRUST, 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 DEED OF
TRUST, 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 DEED OF TRUST, 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 GRANTOR CONFIRMS THAT THE FOREGOING WAIVERS
ARE INFORMED AND FREELY MADE.
10.20 Certain Defined Terms. As used herein, the term
"Beneficiary" 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 Deed of Trust is that if either (a)
the Grantor shall punctually pay the Indebtedness and all other
obligations hereby secured when due and owing, and shall perform
the covenants of the Grantor arising from the Indebtedness, and
shall punctually perform all of the Grantor's covenants and
agreements herein contained, or (b) the Grantor shall satisfy the
requirements of Section 2.08(b), 2.08(d) or 2.08(e) of the Credit
Agreement, this Deed of Trust shall be released by the Beneficiary,
at the cost and expense of the Grantor; otherwise the same shall
remain in full force and virtue in law. In case of failure of the
Beneficiary to so release this Deed of Trust, all claims for
statutory penalties and damages are hereby waived.
IN WITNESS WHEREOF, the Grantor has caused this Deed of
Trust to be duly executed and delivered in Cleveland, Ohio as of
the day and year first above written.
Signed and acknowledged The "Grantor"
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 ___________ )
On this ____ day of _______, 1994, before me appeared
_________________________________ and ___________________________,
to me personally known, who, being duly sworn (or affirmed) did say
that they are the ____________________ and _____________________,
respectively, of HEALTH CARE REIT, INC., a Delaware corporation
(the "Grantor"), and that [the seal affixed to said instrument is
the corporate seal of said corporation] OR [said corporation has no
corporate seal], and that said instrument was signed and sealed in
behalf of said corporation by authority of its board of directors,
and said _____________________________ and ________________________
acknowledged said instrument to be the free act and deed of said
corporation.
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
DEED OF TRUST (WITH ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT)
Legal Description of Premises
EXHIBIT 2
TO
DEED OF TRUST (WITH 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 Grantor and _____________________,
dated _________________, as amended by __________________________.