Exhibit 10.53
CONSOLIDATED RESTATED MORTGAGE
THIS INSTRUMENT (the "Consolidated Mortgage") WITNESSES: That PHC OF
MICHIGAN, INC., a Massachusetts corporation having its principal place of
business at 200 Lake Street, Suite 102, Peabody, Massachusetts 01960, as a or",
and HELLER HEALTHCARE FINANCE, INC., a Delaware corporation having its principal
office at 2 Wisconsin Circle, 4" Floor, Chevy Chase, Maryland 20815, as
"Mortgagee".
RECITALS
WHEREAS, the following mortgages (all of such mortgages collectively, the
"Existing, Mortgages") were previously made by Mortgagor in favor of Mortgagee
or an entity to which Mortgagee is, directly or indirectly, the
successor-in-interest:
a. That certain first priority Mortgage made by Mortgagor in favor of
HealthCare Financial Partners Funding II, L.P. ("HCFPII") dated March 12, 1997,
and recorded in the official records of the Macomb County, Michigan registrar of
deeds (the "Macomb County Records") at Liber 07442 Page 175 on May 5, 1997 (as
it may be amended from time to time, the "Original Mortgage"), which Original
Mortgage has been assigned by HCFPII to Mortgagee pursuant to that certain
Assignment of Mortgage dated as of February 20, 2001 (the "HCFP Funding, II
Assignment"), which HCFP Funding Assignment is to be submitted promptly for
recording in the Macomb County Records.
The Original Term Mortgage secures the obligations of Mortgagor under that
certain Secured Note in the original principal amount of One Million One Hundred
Thousand and No/ 100 Dollars ($ 1,1 00,000.00) made by Mortgagor in favor of
HCFPII and dated March 12, 1997 (as it may be amended from time to time, the
"March 1997 Term Note"), under which March 1997 Term Note $779,166.55 remains
outstanding as of the date hereof. The March 1997 Term Note was previously
assigned:
i. By HCFPII to HCFP Funding II pursuant to that certain Allonge to Note
dated as of September 19, 1997;
ii. By HCFP Funding II to Wisconsin Circle 11 Funding Corporation ("Circle
II Funding") pursuant to that certain Allonge to Note dated as of September 19,
1997;
iii By Circle 11 Funding to U.S. Bank National Association ("U.S. Bank")
pursuant to that certain Allonge to Note dated as of September 19, 1997; and
iv. By U.S. Bank to Mortgagee pursuant to that certain Allonge to Note
dated as of December 1, 1999.
b. That certain third priority Mortgage made by Mortgagor in favor of HCFP
Funding, Inc. ("HCFP Funding") dated March 12, 1997, and recorded in the Macomb
County Records at Liber 07442 Page 186 on May 5, 1997 (as it may be amended from
time to time, the "Revolver Mortgage"), which Revolver Mortgage has been
assigned by HCFP Funding to Mortgagee pursuant to that certain Assignment of
Mortgage dated as of February 20, 2001 (the "Revolver Mortgage Assignment"),
which Revolver Mortgage Assignment is to be submitted promptly for recording in
the Macomb County Records.
c:\window\temp\consolcorrectedmortgagev2.doc
The Revolver Mortgage secures the obligations of Mortgagor, PHC of Utah,
Inc. ("PHCU"), PHC of Virginia, Inc. ("PHCVA"), PHC of Rhode Island, Inc.
("PHCRI") and Pioneer Counseling of Virginia, Inc. ("Pioneer" and, collectively
with Mortgagor, PHCU, PHCVA and PHCRI, the "Revolver Borrowers") under that
certain Revolving Credit Note in the original principal amount of Four Million
and No/100 Dollars ($4,000,000.00) made by the Revolver Borrowers in favor of
HCFP Funding and dated February 20, 1998 (as it may be amended from time to
time, the "February 1998 Revolving Credit Note"). The February 1998 Revolving
Credit Note was amended February 17, 2000 to decrease the maximum loan amount to
Two Million Five Hundred Thousand and No/ 100 Dollars ($2,500,000.00). The
February 1998 Revolving Credit Note has been assigned by HCFP Funding to
Mortgagee pursuant to that certain Allonge to Note dated as of February 20,
2001.
c. That certain Mortgage made by Mortgagor in favor of HCFP Funding II
dated December 9, 1997, and recorded in the Macomb County Records at Liber 07804
Page 73 on January 9, 1998 (as it may be amended from time to time, the
"December 1997 Mortgage"), which December 1997 Term Mortgage has been assigned
by HCFP Funding II to Mortgagee pursuant to that certain Assignment of Mortgage
dated as of February 20, 2001 (the "December 1997 Term Mortgage Assignment"),
which December 1997 Term Mortgage Assignment is to be submitted promptly for
recording in the Macomb County Records.
The December 1997 Mortgage secures the obligations of Mortgagor under that
certain Secured Term Note in the original principal amount of Five Hundred
Thousand and No/100 Dollars ($500,000.00) made by Mortgagor in favor of HCFP
Funding II and dated December 9, 1997 (the "December 1997 Term Note'), under
which December 1997 Term Note approximately $387,500.00 remains outstanding as
of the date hereof. The December 1997 Term Note has been assigned by HCFP
Funding II to Mortgagee pursuant to that certain Allonge to Note dated as of
February 20, 2001 (the "December 1997 Allonge").
d. That certain Restated Mortgage made by Mortgagor in favor of Mortgagee
dated November 22, 1999 (the "November 1999 Restated Term Mortgage'). The
November 1999 Restated Mortgage was intended (i) to restate the Original
Mortgage and (ii) in addition to securing Mortgagor's obligations under the
March 1997 Term Note, to further secure Mortgagor's obligations under that
certain Secured Term Note in the original principal amount of One Million and
No/100 Dollars ($1,000,000.00) made by Mortgagor in favor of Mortgagee and dated
November 23, 1999 (the "November 1999 Term Note"), under which November 1999
Term Note approximately $ 970,000.00 remains outstanding as of the date hereof.
e. That certain Restated Mortgage made by Mortgagor in favor of Mortgagee
dated May 26, 2000 (the "May 2000 Restated Term Mortgage"), which May 2000
Restated Term Mortgage was previously presented for recording in the Macomb
County Records.
The May 2000 Restated Term Mortgage was intended (1) to restate the
Original Term Mortgage, as amended by the November 1999 Restated Term Mortgage
and (ii) in addition to securing Mortgagor's obligations under the March 1997
Term Note and the November 1999 Term Note, to further secure Mortgagor's
obligations under that certain Secured Term Note in the original principal
amount of Five Hundred Thousand and No/1000 Dollars ($500,000.00) made by
Mortgagor in favor of Mortgagee and dated May 26, 2000 (the "May 2000 Term
Note"), under which May 2000 Term Note $500,000.00 remains outstanding as of the
date hereof. Further, the May 2000 Restated Term Mortgage incorrectly indicated
that the November 1999 Restated Term Mortgage was presented for recording in the
Macomb County Records, as Mortgagee did not actually present the November 1999
Restated Mortgage for recording.
c:\window\temp\consolcorrectedmortgagev2.doc
WHEREAS, the Mortgagor and the Mortgagee desire to consolidate all of the
described Mortgages into this single Consolidated Mortgage so that Mortgagee may
be fully secured hereby to the full extent of its aggregate commitments to
Mortgagor under the March 1997 Term Note, the February 1998 Revolving Credit
Note, the December 1997 Term Note, the November 1999 Term Note and the May 2000
Term Note, and so that any deficiencies or errors with respect to any of the
Existing Mortgages may be corrected to the extent that this Consolidated
Mortgage amends and restates, and this Consolidated Mortgage is intended to so
amend and restate, each and every one of the Existing Mortgages.
NOW, THEREFORE, for value received, Mortgagor mortgages and warrants to
Mortgagee the property situated in the City of New Baltimore, County of Macomb,
and State of Michigan, with a street address of 35031 23 Mile Road, New
Baltimore, Michigan 48047, and legally described as shown on the attached
Exhibit A; together with the easements, rights-of-way, licenses, privileges,
hereditaments, and appurtenances belonging to the property, and all the rents,
issues, leases, and profits, the interest of Mortgagor in the property, either
at law or in equity, all buildings, structures, and improvements, and all
fixtures located in, on, or affixed to the property, and used or usable in
connection with the operation of the property (all of the above-stated property
are collectively referred to in this Consolidated Mortgage as the "premises").
This Consolidated Mortgage is given to secure the following:
a. payment of the indebtedness evidenced by the March 1997 Term Note;
b. payment of the indebtedness evidenced by the February 1998 Revolving
Credit Note;
c. payment of the indebtedness evidenced by the December 1997 Term Note;
d. payment of the indebtedness evidenced by the November 1999 Term Note;
e. payment of the indebtedness evidenced by the May 2000 Term Note;
f. payment by Mortgagor to Mortgagee of all sums expended or advanced by
Mortgagee pursuant to any or provision of this Consolidated Mortgage;
g. performance of the covenants, conditions, and agreements contained in
this Consolidated Mortgage and in any other documents securing the indebtedness
evidenced by the notes described in (a) - (e) above (collectively, the "Notes");
and
h. all other indebtedness and obligations of Mortgagor currently or
subsequently owing to Mortgagee, including but not limited to all future
advances under this Consolidated Mortgage or on the Notes, any loan agreements,
security agreements, pledge agreements, assignments, mortgages, leases,
guarantees, and any other agreements, instruments, or documents previously or
subsequently signed by Mortgagor, whether the indebtedness or obligations are
direct or indirect, absolute or contingent, primary or secondary, or related or
unrelated to the premises or the transaction of which this Mortgage is a part,
and any and all partial or full extensions or renewals of this indebtedness or
other indebtedness and obligations (all of the foregoing are collectively
referred to as the "indebtedness").
Mortgagor hereby warrants, covenants, and agrees that:
c:\window\temp\consolcorrectedmortgagev2.doc
1. Title. Mortgagor is seized of the premises, in fee simple. Mortgagor had
the right and power to mortgage and warrant the premises as set forth in this
Mortgage. The premises are free from all liens and encumbrances except easements
and restrictions of record disclosed in Lawyers Title Insurance Policy, Schedule
B, Policy No. 13 5-01-844628, dated May 6, 1997, relating to the premises.
Mortgagor will defend the premises against all claims and demands.
2. Payment of Indebtedness. Mortgagor will pay all indebtedness when due,
including the principal and interest, as provided in the Term Notes.
3. Taxes and Assessments. Until the indebtedness is fully satisfied,
Mortgagor will pay all taxes, assessments, and other similar charges and
encumbrances levied on the premises before they become delinquent, and will
promptly deliver to Mortgagee, without demand, receipts showing the payment.
4. Tax and Insurance Escrow. On request, at the option of Mortgagee,
Mortgagor will pay to Mortgagee monthly, in addition to each monthly payment
required by this Mortgage or under the Notes, a sum equivalent to one-twelfth of
the amount estimated by Mortgagee to be sufficient to enable Mortgagee to pay,
at least thirty (30) days before they become due, all taxes, assessments, and
other similar charges levied against the premises, and all insurance premiums on
any policy or policies of insurance required by this Mortgage. The additional
payments may be commingled with the general funds of Mortgagee, and no interest
shall be payable on those payments. On demand by Mortgagee, Mortgagor will
deliver and pay over to Mortgagee any additional sums necessary to make up any
deficiency in the amount necessary to enable Mortgagee to fully pay when due any
of the preceding items. In the event of any default by Mortgagor in performing
any of the terms of this Mortgage, Mortgagee may apply against the indebtedness,
in the manner that Mortgagee may de ine, any funds of Mortgagor then held by
Mortgagee under this paragraph.
5. Change of Law. If, after the date of this Mortgage, any statute or
ordinance is passed that changes in any way the laws now in force for the
taxation of mortgages or mortgaged debts or the manner in which those taxes are
collected, so as to affect this Mortgage or the interest of Mortgagee, the whole
of the principal sum secured by this Mortgage, with all interest and charges, if
any, at the option of Mortgagee, shall become due and payable.
6. Insurance. Mortgagor will procure, deliver to, and maintain for the
benefit of Mortgagee during the term of this Consolidated Mortgage:
a. a policy of hazard insurance, providing an all-risk extended coverage
endorsement, in an amount equal to the highest replacement value of the
premises;
b. a policy of comprehensive public liability insurance insuring against
bodily injury, with a coverage limit of at least $1,000,000 per occurrence (and
$3,000,000 in the aggregate), and against property damage, with a coverage limit
of at least $3,000,000, from any accident or occurrence with respect to the
premises.
All policies of insurance required by this paragraph shall be in a form,
with companies, and in amounts acceptable to Mortgagee, and shall contain a
mortgagee endorsement clause acceptable to Mortgagee, with loss payable to
Mortgagee. Mortgagor will pay when due the premiums on any policy of insurance
required by Mortgagee, and will deliver to Mortgagee renewals of all policies at
least ten (10) days before their expiration date(s). Duplicates of all policies
shall be delivered to Mortgagee.
In the event of any loss or damage to the premises, Mortgagor will give
immediate written notice to Mortgagee, and Mortgagee may then make proof of the
loss or damage, if it is not promptly made by Mortgagor. All proceeds of
insurance shall be payable to Mortgagee, and any affected insurance company is
authorized and directed to make payment
c:\window\temp\consolcorrectedmortgagev2.doc
directly to Mortgagee. Mortgagee is authorized to settle, adjust or compromise
any claims for loss, damage, or destruction under any policy of insurance.
7. Maintenance and Repair. Mortgagor will not cause or permit the
commission of waste on the premises and will keep the premises in good condition
and repair. No building or other improvement on the premises shall be removed,
demolished, or materially altered without the prior written consent of
Mortgagee. Mortgagor will comply with all laws, ordinances, regulations, and
orders of all public authorities having jurisdiction over the premises. If the
premises, in the sole judgment of Mortgagee, require inspection or repair,
Mortgagee may enter upon the premises and inspect and/or repair the premises as
Mortgagee may deem advisable, and may take other action as Mortgagee may deem
appropriate to preserve the premises. Mortgagor will pay when due all charges
for utilities or services contracted for by Mortgagor.
8. Environmental Matters. No use, exposure, release, generation,
manufacture, storage, treatment, transportation or disposal of Hazardous
Material (as defined) has occurred or is occurring on or from the property. All
Hazardous Material used, treated, stored, transported to or from, generated or
handled on the property has been disposed of on or off the property by or on
behalf of Borrower in a lawful manner. There are no underground storage tanks
present on or under the property. No other environmental, public health or
safety hazards exist with respect to the property. "Hazardous Material" means
any substances defined or designated as hazardous or toxic waste, hazardous or
toxic material, hazardous or toxic substance, or similar term, by any
environmental statute, rule or regulation or any federal, state or local
governmental authority.
9. Waste. The failure of Mortgagor to meet its maintenance obligations or
to pay any taxes assessed against the premises or any insurance premium on
policies covering any property located on the premises shall constitute waste as
provided by MCLA 600.2927, MSA 27A.2927, and shall entitle Mortgagee to appoint
a receiver of the property for the purpose of preventing the waste. The receiver
may collect the rents and income from the premises.
10. Condemnation. If the premises, or any part, are taken under the power
of eminent domain, the entire award, to the full extent of the indebtedness,
shall be paid to Mortgagee. Mortgagee is empowered in the name of Mortgagor to
receive and give acquittance for any award, whether it is joint or several.
However, Mortgagee shall not be held responsible for failing to collect any
award.
11. Mortgagee Expenses. If Mortgagor fails to meet any of its obligations
under this Consolidated Mortgage, Mortgagee shall have the right, but not the
obligation, to perform in the place of Mortgagor. If Mortgagee incurs or expends
any sums, including reasonable attorney fees, whether or not in connection with
any action or proceeding, to (a) sustain the lien of this Consolidated Mortgage
or its priority, (b) protect or enforce any of Mortgagee's rights, (c) recover
any part of the indebtedness, (d) meet an obligation of Mortgagor under this
mortgage, or (e) collect insurance or condemnation proceeds, then those sums
shall become immediately due and payable by Mortgagor with interest at the
highest of the default rates set forth in the Notes from the date of Mortgagee's
payment until paid by Mortgagor. The sums expended in this manner by Mortgagee
shall be secured by this Consolidated Mortgage and be a lien on the premises
prior to any right, title, or interest on the premises attaching or accruing
subsequent to the lien of this Consolidated Mortgage.
c:\window\temp\consolcorrectedmortgagev2.doc
Assignment of Contracts and Licenses. Mortgagor assigns to Mortgagee, as
further security for payment of the indebtedness, Mortgagor's interest in all
agreements, contracts (including any contracts for the lease or sale of the
premises), licenses, and permits affecting the premises. The assignment shall
not be construed as a consent by Mortgagee to. any agreement, contract, license
or permit so assigned, or to impose any obligations on Mortgagee. Mortgagor
shall not cancel, amend, permit, or cause a default or termination of any of the
agreements, contracts, licenses, and permits used in conjunction with the
operation of the premises without the written approval of Mortgagee.
13. Assignment of Rents and Leases. As additional security for the payment
of the indebtedness, Mortgagor assigns and transfers to Mortgagee, pursuant to
1953 PA 210, as amended by 1966 PA 151 (MCLA 554.231 et seq., MSA 26.1137(l) et
seq.), all the rents, profits, and income under all leases, occupancy
agreements, or arrangements upon or affecting the premises (including any
extensions or amendments) now in existence or coming into existence during the
period this Consolidated Mortgage is in effect. This assignment shall nm with
the land and be good and valid as against Mortgagor and those claiming under or
through Mortgagor. This assignment shall continue to be operative during
foreclosure or any other proceedings to enforce this Consolidated Mortgage. If a
foreclosure sale results in a deficiency, this assignment shall stand as
security during the redemption period for the payment of the deficiency. This
assignment is given only as collateral security and shall not be construed as
obligating Mortgagee to perform any of the covenants or undertakings required to
be performed by Mortgagor in any leases.
In the event of default in any of the s or covenants of this Consolidated
Mortgage, Mortgagee shall be entitled to all of the rights and benefits of MCLA
554.231B.233, MSA 26.1137(1)B(3) and 1966 PA 151, and Mortgagee shall be
entitled to collect the rents and income from the premises, to rent or lease the
premises on the s that it may deem best, and to maintain proceedings to recover
rents or possession of the premises from any tenant or trespasser.
Mortgagee shall be entitled to enter the premises for the purpose of
delivering notices or other communications to the tenants and occupants.
Mortgagee shall have no liability to Mortgagor as a result of those acts.
Mortgagee may deliver all of the notices and communications by ordinary
first-class U.S. mail.
If Mortgagor obstructs Mortgagee in its efforts to collect the rents and
income from the premises or unreasonably refuses or neglects to assist Mortgagee
in collecting the rent and income, Mortgagee shall be entitled to appoint a
receiver for the premises and the income, rents, and profits, with powers that
the court making the appointment may confer.
Mortgagor shall at no time collect advance rent in excess of one month
under any lease pertaining to the premises, and Mortgagee shall not be bound by
any rent prepayment made or received in violation of this paragraph. Mortgagee
shall not have any obligation to collect rent or to enforce any other
obligations of any tenant or occupant of the premises to Mortgagor. No action
taken by Mortgagee under this paragraph shall cause Mortgagee to become a
"mortgagee in possession."
14. Performance of Leases. Mortgagor shall observe and perform all
obligations contained in any lease affecting the premises. Mortgagor shall not
default in performing any of the obligations imposed on Mortgagor by any lease
if such a default gives the lessee the right to terminate or cancel the lease or
offset against rentals. Upon request, Mortgagor shall furnish to Mortgagee a
statement, in any reasonable detail that Mortgagee may request, of all leases
relating to the premises and executed counterparts of any and all leases.
c:\window\temp\consolcorrectedmortgagev2.doc
15. Records. With respect to the premises and its operations, Mortgagor
shall keep proper books in accordance with generally accepted accounting
principles consistently applied. Mortgagee shall have the right to examine the
books at reasonable times as Mortgagee may elect. Upon request, Mortgagor shall
furnish to Mortgagee within sixty (60) days after the end of each calendar year,
a financial statement of Mortgagor for the calendar year, in reasonable detail
and stating in comparative form the figures as of the end of the previous
calendar year, including statements of income and expense relating to operations
of the premises, certified by an independent certified public accountant
acceptable to Mortgagee. In addition, Mortgagor shall furnish to Mortgagee, in a
form acceptable to Mortgagee, interim financial statements that Mortgagee may
request, certified by Mortgagor.
16. Waiver. If Mortgagee (a) grants any extension of time with respect to
the payment of any part of the indebtedness, (b) takes other or additional
security for the payment of the indebtedness, (c) waives or fails to exercise
any right granted by this Consolidated Mortgage or the Notes, (d) grants any
release on any part of the security held for the payment of the indebtedness, or
(e) amends any of the s or provisions of this Consolidated Mortgage or the
Notes, such act, taking, waiver, omission, or amendment, as the case may be,
shall not release Mortgagor under any covenant of this Consolidated Mortgage or
the Notes, nor preclude Mortgagee from exercising any right or power granted,
nor impair the lien or priority of this Consolidated Mortgage.
17. Use of Premises. Mortgagor shall not make, or permit, without the prior
written consent of Mortgagee, (a) any use of the premises for any purpose other
than that for which they are now used; (b) any alterations of the buildings,
improvements, and fixtures located on the premises; (c) any purchase, lease of,
or agreement for any fixtures to be placed on the premises under which title is
reserved in the vendor. Mortgagor shall execute and deliver documents that may
be requested by Mortgagee to confirm the lien of this Consolidated Mortgage on
any fixtures, machinery, and equipment.
18. Events of Default. The occurrences listed below shall be deemed events
of default and shall entitle Mortgagee, at its option and without notice except
as required by law, to exercise any one or any combination of remedies under
this Consolidated Mortgage or permitted by law:
a. the failure by Mortgagor to (i) make any payment when due under the
Notes, or (ii) to perform any of the other s, covenants, or conditions of this
Consolidated Mortgage within a period of ten (10) days after written notice from
Mortgagee of Mortgagor's failure;
b. the institution of foreclosure or other proceedings to enforce any
junior lien or encumbrance on the premises;
c. the appointment by a court of a receiver or trustee of Mortgagor or for
any property of Mortgagor;
d. a decree by a court adjudicating Mortgagor a bankrupt or insolvent, or
for the sequestration of any of Mortgager's property;
e. the filing of a petition in bankruptcy by or against Mortgagor under the
federal Bankruptcy Code or any similar statute that is in effect;
f. an assignment by Mortgagor for the benefit of creditors or a written
admission by Mortgagor of the inability to pay debts generally as they become
due;
g. the failure to comply with all of the s and covenants of any leases or
other agreements, documents, or restrictions that now encumber, affect, or
pertain to the premises;
h. Mortgagor, without the written consent of Mortgagee, sells, conveys, or
transfers the premises, any interest in the premises, or any rents or profits
from the premises, or causes or allows any mortgage, lien, or other encumbrance,
or any writ of attachment, garnishment, execution, or other legal process to be
placed on the premises, or any part of the premises is transferred by operation
of law;
i. all or any part of the premises is damaged or destroyed by fire or other
casualty, regardless of whether such damages or destruction is covered, in whole
or in part, by a policy or policies of insurance, or all or any part of the
premises is taken by power of eminent domain.
19. Default Remedies. Upon the occurrence of any event of default of this
Consolidated Mortgage, Mortgagee shall have the option, in addition to and not
in lieu of all other rights and remedies provided by law, to do any or all of
the following:
a. Without notice, except as expressly required by law, to declare the
principal sum secured by the Consolidated Mortgage, together with all interest
and all other sums secured by this mortgage, to be immediately due and payable;
to demand any installment payment due or to accelerate the Notes; and to
institute any proceedings that Mortgagee deems necessary to collect and
otherwise to enforce the indebtedness and obligations secured by this Mortgage
and to protect the lien of this Consolidated Mortgage.
b. Commence foreclosure proceedings against the premises pursuant to
applicable laws. Mortgagee's commencement of a foreclosure shall be deemed an
exercise by Mortgagee of its option to accelerate the due date of all sums
secured by this Consolidated Mortgage. Mortgagor grants to Mortgagee, in the
event of the occurrence of an event of default, the power to sell the premises
at public auction by advertisement, without notice or hearing, except as
required by Michigan statutes.
c. To enter into peaceful possession of the premises and/or to receive the
rent, income, and profits, and to apply those in accordance with paragraph 13.
Mortgagor acknowledges having been advised that Mortgagee believes that the
value of the security covered by this Consolidated Mortgage is inextricably
intertwined with the effectiveness of the management, maintenance, and general
operation of the premises, and that Mortgagee would not make the loan secured by
this Consolidated Mortgage unless it could be assured that it would have the
right to take possession of the premises in order to manage, control management,
and enjoy the income, rents, and profits, immediately upon default by Mortgagor,
notwithstanding that foreclosure proceedings may not have been instituted, or
are pending, or that the redemption period may not have expired. Accordingly,
Mortgagor knowingly and voluntarily waives all right to possession of the
premises from and after the date of default, upon demand for possession by
Mortgagee.
20. Sale of Premises as a Whole or in Parcels. Upon any foreclosure sale of
the premises, the premises may be sold either as a whole or in parcels, as
Mortgagee may elect and if in parcels, to be divided as Mortgagee may elect, or,
at the election of Mortgagee, the premises may be offered first in parcels and
then as a whole, with the offer producing the highest price for the entire
property to prevail.
21. Assignment. Mortgagor shall not make a conveyance of any interest in
the premises. A "conveyance" of Mortgagor's interest in the premises shall
include without limitation any voluntary or involuntary disposition or dilution
of legal or beneficial title to the premises by any means. If ownership of the
premises, or any part, becomes vested in a person other than Mortgagor (with or
without Mortgagee's consent), Mortgagee may, without notice to Mortgagor, deal
with the successors in interest with reference to this Consolidated Mortgage or
the Notes without in any way releasing or otherwise affecting Mortgagor's
liability under the Notes and this Consolidated Mortgage.
22. Application of Proceeds. In the event of the payment to Mortgagee,
pursuant to this Consolidated Mortgage, of any rents or profits, or proceeds of
any insurance or condemnation award, or proceeds from the sale of the premises
upon foreclosure, Mortgagee shall have the right to apply the rents, profits, or
proceeds, in amounts and proportions that Mortgagee shall, in its sole
discretion, de ine, against the cost and expenses incurred by Mortgagee in
exercising its rights under this mortgage, payment of the interest and principal
due under the Notes, payment of any other portion of the indebtedness, and
payment of expenses incurred in preserving the premises. Application by
Mortgagee of any proceeds toward the last maturing installments of principal and
interest to become due or then due under the Notes shall not excuse Mortgagor
from making the regularly scheduled payments due under the Notes and this
Consolidated Mortgage, nor shall the application reduce the amount of the
payments. In the event of the payment of proceeds as a result of an insurance or
condemnation award, Mortgagee shall have the right, but not the obligation, to
require all or part of the proceeds of any insurance or condemnation award to be
used to restore any part of the premises damaged or taken by reason of the
occurrence which gave rise to the payment of the proceeds.
CAUTION: PARAGRAPH 23 CONTAINS A WAIVER OF IMPORTANT LEGAL RIGHTS
23. Waiver of Rights. This Consolidated Mortgage contains a power of sale
which permits Mortgagee to cause the premises to be sold in the event of a
default. Mortgagee may elect to cause the premises to be sold by advertisement
rather than pursuant to court action, and Mortgagor voluntarily and knowingly
waives any right Mortgagor may have by virtue of any applicable constitutional
provision or statute to any notice or court hearing prior to the exercise ofthe
power of sale, except as may be expressly required by the Michigan statute
governing foreclosures by advertisement. In addition, Mortgagor knowingly and
voluntarily waives any right Mortgagor may have to remain in possession of the
premises or to collect any rents or income therefrom during the pendency of any
foreclosure proceedings and during any applicable redemption period. Also,
paragraphs 18 and 21 above entitle Mortgagee to require immediate payment of the
balance of the indebtedness in full if the premises are sold or otherwise
transferred. By execution of this mortgage, Mortgagor represents and
acknowledges that the meaning and consequences of these paragraphs have been
discussed as fully as desired by Mortgagor with Mortgagor's legal counsel.
24. Environmental Matters. Mortgagor agrees to indemnify Mortgagee against,
and hold it harmless from, all obligations and liabilities relating to the
premises arising out of claims made or suits brought for investigation, study,
remedial work, monitoring, or other costs and expenses arising from or
associated with response to any environmental matters, including but not limited
to any (a) water pollution, air pollution, noise, odor, spills, leaks, or
inadvertent discharges, emissions, or releases, or the generation,
transportation, storage, treatment, or disposal of solid waste, including
hazardous waste, hazardous substances, pollutants and contaminants; (b) injury,
sickness, disease, or death of any person; or (c) damage to any property,
regardless of whether the cause of the injury or damage occurred before or after
the date of this Consolidated Mortgage. Mortgagor further agrees that Mortgagee
shall have no liability for any environmental contamination associated with
Mortgagor's business or the premises, and that any involvement of Mortgagee with
Mortgagor's business to protect its security interest in the premises shall not
constitute Mortgagor as an "owner or operator, of Mortgagor's business for
purposes of determining environmental liability. In any event, if Mortgagee
becomes obligated, by judicial or administrative judgment or settlement of a
claim, to pay any amounts for response to any environmental contamination
associated or connected with Mortgagor's business or the premises, any payment
by Mortgagee shall be deemed additional indebtedness secured by the hen of this
mortgage, shall be immediately due and payable to Mortgagee, and shall bear
interest until paid at the highest of the default interest rates specified in
the Notes.
25. Covenants Run with Land. All of the terms and covenants of this
Consolidated Mortgage shall run with the land and shall be binding on and inure
to the benefit of the respective legal representatives and successors of the
parties.
c:\window\temp\consolcorrectedmortgagev2.doc
26. Release of Consolidated Mortgage. If Mortgagor pays to Mortgagee the
money required by the Notes, in the manner and at the times provided in the
Notes, and all other sums of the indebtedness payable by Mortgagor to Mortgagee,
and keeps and performs the s, covenants, and agreements of Mortgagor with
Mortgagee, then this Consolidated Mortgage shall be satisfied, and Mortgagee
shall release this Consolidated Mortgage.
27. Notice. All notices, demands, and requests required or permitted to be
given to Mortgagor or by law shall be deemed delivered when deposited in the
United States mail, with postage prepaid, addressed to Mortgagor or Mortgagee at
their last known addresses.
28. Severability. If any provision of this Consolidated Mortgage is in
conflict with any statute or rule of law of the State of Michigan or is
otherwise unenforceable for any reason, then that provision shall be deemed null
and void to the extent of the conflict or unenforceability, but shall be deemed
separable from and shall not invalidate any other provision of this Consolidated
Mortgage.
29. Venue and Jurisdiction. All provisions of this Consolidated Mortgage
shall be governed by and construed in accordance with the laws of the State of
Michigan. Venue shall be in Macomb County, Michigan for any action brought with
regard to this Mortgage. Mortgagor consents to personal jurisdiction over it by
any Michigan courts to the extent that personal jurisdiction may be necessary to
enforce any of the provisions of this Consolidated Mortgage.
[SIGNATURES FOLLOW]
c:\window\temp\consolcorrectedmortgagev2.doc
Signed on the date set forth above.
MORTGAGOR:
WITNESSES: PHC OF MICHIGAN, INC.,
a Massachusetts corporation
/s/ Paula C. Wurts By: /s/ Bruce A. Shear
Name: Paula C. Wurts Bruce A. Shear
President
/s/ Erica Cashell
Name: Erica Cashell
Name:
ACKNOWLEDGMENT
STATE OF MASSACHUSETTS )
COUNTY OF ESSEX )
The foregoing instrument was acknowledged before me on March 9, 2001, by
Bruce A. Shear, the President of PHC of Michigan, Inc., a Mass, on behalf of the
corporation.
/s/ Janet Esterkes
Notary Public, Essex County
My commission expires June 5, 2003
c:\window\temp\consolcorrectedmortgagev2.doc
Exhibit "A"
Legal Description
Lots 32 and 33 of ASSESSOR'S CRICKLEWOOD PLAT, excepting therefrom that portion
which lies Southerly of a line which is 50 feet Northerly of (as measured at
right angles) and parallel to the Southerly line of fractional Section 13, Town
3 North, Range 14 East, City of New Baltimore, Macomb County, Michigan. Plat
recorded in Liber 35 of Plats, Page 12, Macomb County Records. ALSO EXCEPTING a
portion of Lot 32 of "Assessor's Cricklewood Plat", described as follows:
Commencing at the original Southeast comer of said Lot 32 of said "Assessor's
Cricklewood Plat'; thence North 01 degrees 41 minutes West 17.00 feet to the
point of beginning, said point being on the Northerly right-of-way line of 23
Mile Road (50 feet wide); thence North 89 degrees 19 minutes West along said
right-of-way 5.36 feet; thence leaving said right-of-way line North 00 degrees
59 minutes 17 seconds West, 576.95 feet to the Northerly line of said Lot 32;
thence North 88 degrees 04 minutes East along said North line 8.43 feet to the
Northeast comer of said Lot 32; thence South 00 degrees 41 minutes East along
the Easterly line of said Lot 32, 577.25 feet back to the point of beginning.
c:\window\temp\consolcorrectedmortgagev2.doc
SECOND AMENDED AND RESTATED CROSS-COLLATERALIZATION
AND CROSS-DEFAULT AGREEMENT
BY AND AMONG
PHC, INC.
PHC OF MICHIGAN, INC.
PHC OF UTAH, INC.
PHC OF VIRGINIA, INC.
(collectively, "Borrower")
AND
HELLER HEALTHCARE FINANCE, INC.
("Lender")
March _____, 2001
Prepared by and after
recording, return to:
Katherine R. Lofft, Esq.
Heller Healthcare Finance,
Inc.
2 Wisconsin Circle, 4' Floor
Chevy Chase, Maryland 20815
H:\WP\LEGAL\CLIENTS\PHCMICH\FEB2001\CROSSCOLLATAMENDRESTS.DOC
SECOND AMENDED AND RESTATED CROSS-COLLATERALIZATION
AND CROSS-DEFAULT AGREEMENT
THIS SECOND AMENDED AND RESTATED CROSS-COLLATERALIZATION AND CROSS-DEFAULT
AGREEMENT made as of the day of March 2001, is executed by and among PHC, INC.,
a Massachusetts corporation ("PHC"), PHC OF MICHIGAN, INC., a Massachusetts
corporation having its principal place of business at 200 Lake Street, Suite
102, Peabody, Massachusetts 01960 ("PHCM"), PHC OF UTAH, INC., a Massachusetts
corporation ("PHCU'), PHC OF VIRGINIA, INC., a Massachusetts corporation
("PHCVA" and collectively with PHC, PHCM and PHCU, the "Borrower '), and HELLER
HEALTHCARE FINANCE, INC., a Delaware corporation having its principal office at
2 Wisconsin Circle, 4' Floor, Chevy Chase, Maryland 20815 ("HHF", f/k/a HCFP
Funding II, Inc. ("HCFP Funding"), the assignee of HealthCare Financial
Partners-Funding II, L.P. ("HCFPII")) (collectively, the "Lender").
RECITALS
WHEREAS, Borrower, together with PHC of Rhode Island, Inc. ("PHCRI") and
Pioneer Counseling of Virginia, Inc. ("Pioneer and, collectively with Borrower
and PHCRI, the "Original Borrower"), and HCFP Funding, Inc. ("HCFP Funding"),
HCFP Funding II and U.S. Bank National Association entered into that certain
Cross-Collateralization and Cross-Default Agreement (the "Agreement") dated as
of July 13, 1998, and recorded in the official records of the Macomb County,
Michigan registrar of deeds (the "Macomb County Records") at Liber 09402 Page
208 on March 7, 2000, pursuant to which Original Borrower agreed, among other
things, to cross-collateralize the Loans (as defined herein) with one another
and to provide for the cross-default of the Loans with one another (as amended
and restated by that certain Amended and Restated Cross-Collateralization and
Cross-Default Agreement dated as of May 26, 2000 by and among the Original
Borrower and HHF, as amended and restated hereby and as it may be further
amended, restated, supplemented or modified from time to time, the "Agreement").
WHEREAS, Borrower is currently indebted to Lender pursuant to the following
existing loans (collectively, the "Existing Loans"):
a. A revolving credit loan (the "February 1998 Revolving Loan") from Lender
to the Original Borrower in the original maximum aggregate principal sum of Four
Million and No/ 100 Dollars ($4,000,000.00), which February 1998 Revolving Loan
is evidenced by that certain Loan and Security Agreement dated as of February
20, 1998 by and among the Original Borrowers and HCFP Funding and that certain
Revolving Credit Note dated as of February 20, 1998 made by Original Borrowers
in favor of HCFP Funding, and which loan is secured by that certain third
priority Mortgage made by PHCM in favor of HCFP Funding dated March 12, 1997,
and recorded on May 5, 1997 in the Macomb County Records at Liber 07442 Page 186
(as it may be amended from time to time, the "Revolver Mortgage");
b. A loan (the "March 1997 Loan") from HCFPII to PHCM in the original
principal sum of One Million One Hundred Thousand and No/100 Dollars
($1,100,000.00), which March 1997 Term Loan is evidenced by that certain Secured
Note dated as of March 12,1997 made by PHCM payable to HCFPII, and which March
1997 Term Loan is secured by that certain first priority Mortgage made by PHCM
in favor of HCFPII dated March 12, 1997, and recorded on May 5, 1997 in the
Macomb County Records at Liber 07442 Page 175 (the "Original Term Mortgage");
c. A second term loan (the "December 1997 Term Loan") from HCFP Funding II
to PHCM in the original principal sum of Five Hundred Thousand and No/100
Dollars ($500,000.00), which December 1997 Term Loan is evidenced by that
certain Secured Term Note dated December 9, 1997 made by PHCM payable to HCFP
Funding II, and which
H:\WP\LEGAL\CLIENTS\PHCMICH\FEB2001\CROSSCOLLATAMENDRESTS.DOC
December 1997 Term Loan is secured by that certain Mortgage made by PHCM in
favor of HCFP Funding II dated December 9, 1997, and recorded on January 9, 1998
in the Macomb County Records at Liber 07804 Page 73 (the "December 1997 Term
Mortgage");
d. A third term loan (the "November 1999 Term Loan") from HHF to PHCM in
the original principal sum of One Million and No/100 Dollars ($1,000,000.00),
which November 1999 Term Loan is evidenced by that certain Secured Term Note
dated November 22,1999 made by PHCM payable to HHF, and which November 1999 Term
Loan is secured by the Original Mortgage as amended by that certain Restated
Mortgage made by PHCM in favor of HHF dated November 22, 1999 (the "November
1999 Restated Mortgage and
e. A fourth term loan (the "May 2000 Term Loan) from HHF to PHCM in the
original principal sum of Five Hundred Thousand and No/100 Dollars
($500,000.00), which May 26, 2000 Term Loan is evidenced by that certain Secured
Term Note dated May 26, 2000 made by PHCM payable to HHF, and which May 2000
Term Loan is secured by the Original Mortgage, as amended by the November 1999
Restated Term Mortgage and as further amended by that certain Restated Mortgage
made by PHCM in favor of HHF dated May 26, 2000 (the "May 2000 Restated Term
Mortgage").
WHEREAS, to consolidate the various security documents previously executed
in connection with the Existing Loans (certain of which documents were not
properly recorded or presented for recording, as the case may be, in the Macomb
County Records) and to secure all of the Existing Loans, PHCM and HHF have
entered into that certain Consolidated Restated Mortgage dated of even date
herewith (the "Consolidated Mortgage"), which Consolidated Mortgage, among other
things, combines and consolidates each of the Revolver Mortgage, the Original
Term Mortgage, the December 1997 Term Mortgage, the November 1999 Restated
Mortgage and the May 2000 Restated Term Mortgage, and further secures all of the
Existing Loans with a lien on the PHCM property described therein;
WHEREAS, Lender has agreed to maintain the Existing Loans, provided that
each of the entities comprising Borrower agrees to execute this Agreement
providing for, among other things, the cross-collateralization and
cross-defaulting of all of the Existing Loans, and that each of the entities
comprising Borrower further agrees that this Agreement shall be submitted
promptly for recording in the Macomb County Records together with the
Consolidated Mortgage; and
WHEREAS, the entities comprising Borrower are all affiliated entities under
common control and ownership (except that PHC is a public company) and will
receive direct and indirect benefits from the continuance of the Existing Loans
and of the financing arrangements represented thereby, which benefits, among
others, provide adequate consideration for them to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, to induce
Lender to continue the Existing Loans and the financing arrangements represented
thereby and by the other Loan Documents (as defined below) and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower agrees with Lender and Lender agrees with Borrower, as
follows:
1. Loan Documents. As used in this Agreement, the term "Loan Documents"
shall mean any and all loan documents evidencing or securing any or all of the
February 1998 Revolving Loan, the March 1997 Term Loan, the December 1997 Term
Loan, the November 1999 Term Loan and the May 2000 Term Loan.
2. Cross-Collateralization. Each of the Existing Loans is hereby
cross-collateralized with each of the other Existing Loans, and Borrower agrees
that the collateral described in the Loan Documents with respect to any Existing
Loan shall, in addition to securing such Existing Loan as described in such Loan
Documents, secure
H:\WP\LEGAL\CLIENTS\PHCMICH\FEB2001\CROSSCOLLATAMENDRESTS.DOC
the obligations of any or all of the entities comprising Borrower, as the
case may be, under all of the other Existing Loans and the respective Loan
Documents relating thereto, including without limitation: (a) the obligation of
any Borrower or its Affiliates to pay the principal and interest on any or all
of the Existing Loans, as the case may be, as the same may hereafter be renewed,
modified, amended or extended, and to pay all other indebtedness or other fees,
expenses or other charges with respect thereto, and to perform all of the s and
conditions under the Loan Documents in respect of any or all of the Existing
Loans, and (b) the obligation of PHC with respect to the real property
encumbered by the Consolidated Mortgage that secures all of the Existing Loans
as set forth above.
3. Cross-Default. Each of the Existing Loans is hereby cross-defaulted with
each of the other Existing Loans, and Borrower agrees that the occurrence of an
Event of Default as defined in, and pursuant to any of the Loan Documents with
respect to any Existing Loan, which Event of Default is not cured within the
applicable period as set forth therein, shall constitute an immediate Event of
Default (without need of notice or the expiration of any additional cure period
other than as specified in such Loan Documents) under all of the other Existing
Loans and the respective Loan Documents relating thereto.
4. Severability. In case any provision of this Agreement shall be invalid,
illegal, or unenforceable, such provision shall be deemed to have been modified
to the extent necessary to make it valid, legal and enforceable. The validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
5. No Modification Except in Writing. None of the terms of this Agreement
may be waived, altered, amended or otherwise changed except by an instrument in
writing duly executed by all of the parties hereto.
6. Further Assurances. Each entity comprising Borrower shall execute and
deliver such further instruments and perform such further acts as may be
requested by Lender from time to time to confirm the provisions of this
Agreement and the Loan Documents, to carry out more effectively the purposes of
this Agreement and the Loan Documents, or to confirm the priority of any lien
created by any of the Loan Documents.
7. Enforceability. Each entity comprising Borrower represents and warrants
to Lender that this Agreement and the Loan Documents are the legal, valid and
binding obligations of each entity constituting Borrower, jointly and severally,
and are enforceable against each such entity in accordance with their respective
terms.
8. Recording: Binding Effect.
(a) This Agreement will be recorded in the Macomb County Records and the
official records of the City of Salem, Virginia. In connection with the
recordation of this Agreement, all necessary recording, intangible, or
documentary stamp taxes will be duly paid by the Borrower. THIS AGREEMENT IS
BEING GIVEN AS ADDITIONAL COLLATERAL TO SECURE THE OBLIGATIONS OF THE RESPECTIVE
ENTITIES COMPRISING BORROWER UNDER THEIR RESPECTIVE LOAN DOCUMENTS.
(b) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, administrators, successors and
assigns.
9. Controlling Law. This Agreement shall be governed by the laws of the
State of Maryland without regard to any otherwise applicable conflicts of law
principles thereof.
H:\WP\LEGAL\CLIENTS\PHCMICH\FEB2001\CROSSCOLLATAMENDRESTS.DOC
10. Release. Except for Lender's obligations, if any, to Borrower under the
Loan Documents, each entity comprising Borrower, on behalf of itself and its
partners, affiliates, successors and assigns (collectively, the "Releasing
Parties"), hereby releases and forever discharges Lender and each of its
parents, subsidiaries and affiliated corporations and partnerships (including
the partners therein and thereof), and the partners, partners of partners,
subsidiaries, divisions, affiliates, officers, directors, shareholders,
trustees, employees, agents, attorneys and advisors of each of the foregoing,
and each of their respective heirs, successors and assigns (collectively, the
"Released Parties", all of whom are intended to be the beneficiaries of this
release) from any and all claims and causes of action of whatever kind and
nature based upon acts or omissions by any of them, whether such claims, causes
of action, acts or omissions are or were known or unknown, suspected or
unsuspected, which the Releasing Parties or any of them may have or have had, in
whole or in part, prior to the date of this Agreement.
11. WAIVER OF JURY TRIAL. EACH ENTITY COMPRISING BORROWER HEREBY WAIVES ANY
RIGHT TO A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR
CAUSE OF ACTION (A) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR
THE EXISTING LOANS, OR (B) IN ANY WAY CONNECTED WITH OR PERT OR INCIDENTAL TO
ANY DEALINGS OF LENDER AND/OR BORROWER WITH RESPECT TO THE LOAN DOCUMENTS OR IN
CONNECTION WITH THIS AGREEMENT OR THE EXERCISE OF ANY PARTY'S RIGHTS AND
REMEDIES UNDER THIS AGREEMENT OR OTHERWISE, OR THE CONDUCT OR THE RELATIONSHIP
OF THE PARTIES HERETO, IN ALL OF THE FOREGOING CASES WHETHER NOW EXISTING OR
HEREAFTER ARISING AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH
ENTITY COMPRISING BORROWER AGREES THAT LENDER MAY FILE A COPY OF THIS AGREEMENT
WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY, AND BARGAINED
AGREEMENT OF BORROWER IRREVOCABLY TO WAIVE THEIR RIGHTS TO TRIAL BY JURY, AND
THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY
WHATSOEVER (WHETHER OR NOT MODIFIED HEREIN) BETWEEN BORROWER AND LENDER SHALL
INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT
A JURY.
[SIGNATURES ON FOLLOWING PAGE]
H:\WP\LEGAL\CLIENTS\PHCMICH\FEB2001\CROSSCOLLATAMENDRESTS.DOC
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
properly executed on the date of the respective notarial acknowledgment set
forth below.
BORROWER:
WITNESSES: PHC, INC.,
a Massachusetts corporation
/s/ Paula C. Wurts By: /s/ Bruce A. Shear
Name: Paula C. Wurts Bruce A. Shear
President
/s/ Erica Cashell
Name: Erica Cashell
WITNESSES: PHC OF MICHIGAN, INC.,
a Massachusetts corporation
/s/ Paula C. Wurts By: /s/ Bruce A. Shear
Name: Paula C. Wurts Bruce A. Shear
President
/s/ Erica Cashell
Name: Erica Cashell
WITNESSES: PHC OF UTAH, INC.,
a Massachusetts corporation
/s/ Paula C. Wurts By: /s/ Bruce A. Shear
Name: Paula C. Wurts Bruce A. Shear
President
/s/ Erica Cashell
Name: Erica Cashell
[SIGNATURES CONTINUED ON NEXT PAGE]
H:\WP\LEGAL\CLIENTS\PHCMICH\FEB2001\CROSSCOLLATAMENDRESTS.DOC
WITNESSES: PHC OF VIRGINIA, INC.,
a Massachusetts corporation
/s/ Paula C. Wurts By: /s/ Bruce A. Shear
Name: Paula C. Wurts Bruce A. Shear
President
/s/ Erica Cashell
Name: Erica Cashell
LENDER:
HELLER HEALTHCARE FINANCE, INC.
a Delaware corporation (f/k/a HCPF
Funding, Inc., the assignee of
HealthCare
Financial Partners-Funding II, L.P.)
WITNESS:
____________________________________ By: _________________________________
Name Name:
Title:
- ------------------------------------
Name
H:\WP\LEGAL\CLIENTS\PHCMICH\FEB2001\CROSSCOLLATAMENDRESTS.DOC
NOTARY ACKNOWLEDGMENT
STATE OF MASSACHUSETTS )
COUNTY OF ESSEX )
Before me, a Notary Public in and for said County and State, on this day
personally appeared Bruce A. Shear, known to me (or proved to me on the oath of
___________) to be the person whose name is subscribed to the foregoing
instrument and known to me to be the managing member of PHC, INC., a
Massachusetts corporation and acknowledged to me that he executed said
instrument for the purposes and consideration therein expressed, as the act of
said corporation.
Given under my hand and seal this 9th day of March 2001: .
/s/ Janet Esterkes
Notary Public, Essex County
My commission expires June 5, 2003
This instrument prepared by, and upon recording should be returned to:
Katherine R. Lofft, Esq.
Heller Healthcare Finance, Inc.
2 Wisconsin Circle, 4th Floor
Chevy Chase, Maryland 20815
H:\WP\LEGAL\CLIENTS\PHCMICH\FEB2001\CROSSCOLLATAMENDRESTS.DOC