Exhibit 10.53
AMENDED AND RESTATED CONSOLIDATED MORTGAGE
$5,688,598.00
MORTGAGOR: PHC OF MICHIGAN, INC.
MORTGAGEE: HELLER HEALTHCARE FINANCE, INC.
December 6, 2001
Prepared by and after recording, return to:
Katherine R. Lofft, Esq.
Heller Healthcare Finance, Inc.
2 Wisconsin Circle, 4th Floor
Chevy Chase, Maryland 20815
AMENDED AND RESTATED CONSOLIDATED MORTGAGE
THIS INSTRUMENT (the "Amended 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
"Mortgagor", and HELLER HEALTHCARE FINANCE, INC., a Delaware corporation having
its principal office at 2 Wisconsin Circle, 4th Floor, Chevy Chase, Maryland
20815, as "Mortgagee".
RECITALS
WHEREAS, that certain Consolidated Restated Mortgage was previously made by
Mortgagor in favor of Mortgagee dated March ___, 2001, and recorded in the
official records of the Macomb County, Michigan registrar of deeds (the "Macomb
County Records" at Liber ____ Page __ on ___________ __, 2001 (as it may be
amended from time to time, the "Original Consolidated Mortgage"), and which
Original Consolidated Mortgage secured the obligations of Mortgagor under those
certain notes identified in the Recitals to the Consolidated Restated Mortgage
and more specifically identified as follows:
(a) that certain Secured Term Note in the original principal amount of One
Million One Hundred Thousand and No/100 Dollars ($1,100,000.00) made
by Mortgagor in favor of Mortgagee's predecessor-in-interest and dated
March 12, 1997 (as amended, modified or supplemented from time to
time, the "March 1997 Term Note");
(b) that certain Revolving Credit Note in the original principal amount of
Four Million and No/100 Dollars ($4,000,000.00) made by Mortgagor, PHC
of Utah, Inc. ("PHCU"), PHC of Virginia, Inc. ("PHCVA"), PHC of Rhode
Island, Inc. ("PHCRI") and Pioneer Counseling of Virginia, Inc. in
favor of Mortgagee's predecessor-in-interest and dated February 20,
1998 (as amended, modified or supplemented from time to time, the
"February 1998 Revolving Credit Note"), which February 1998 Revolving
Credit Note was subsequently amended to reduce the principal amount of
such note to Three Million and No/100 Dollars ($3,000,000.00);
(c) 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 Mortgagee's predecessor-in-interest and dated
December 9, 1997 (as amended, modified or supplemented from time to
time, the "December 1997 Term Note");
(d) 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 (as amended, modified or
supplemented from time to time, the "November 1999 Term Note"); and
(e) 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 (as amended,
modified or supplemented from time to time, the "May 2000 Term Note");
WHEREAS, the Mortgagor, PHCU and PHCVA have entered into a Consolidating Amended
and Restated Secured Term Note dated of even date with this Amended Consolidated
Mortgage pursuant to which, among other things, the following obligations have
been consolidated and combined: (a) the obligations of Mortgagor under (i) the
March 1997 Term Note, (ii) the December 1997 Term Note, (iii) the November 1999
Term Note and (iv) the May 2000 Term Note, (b) the obligations of Mortgagor,
PHCU and PHCVA under that certain Letter Agreement dated as of August 9, 2001
(the "Letter Agreement") in respect of the Overline Loan (as defined in the
Letter Agreement) made by Lender to Borrower pursuant to the Letter Agreement,
and (c) the obligations of PHCVA allocated to it under the February 1998
Revolving Credit Note; and
WHEREAS, the Mortgagee and the Mortgagor desire to amend the Original
Consolidated Mortgage to (a) reference the new Consolidating Amended and
Restated Term Note and (b) increase the amount secured by the Original
Consolidated Mortgage to reflect an increase in the obligations of Borrower
secured thereby.
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 Amended Consolidated Mortgage as the
"premises").
This Amended Consolidated Mortgage is given to secure the following:
a. payment of the indebtedness evidenced by the Consolidating Amended and
Restated Term Note;
b. payment of the indebtedness of Mortgagor and PHCU only evidenced by
the February 1998 Revolving Credit Note;
c. payment by Mortgagor to Mortgagee of all sums expended or advanced by
Mortgagee pursuant to any term or provision of this Amended
Consolidated Mortgage;
d. performance of the covenants, conditions, and agreements contained in
this Amended Consolidated Mortgage and in any other documents securing
the indebtedness evidenced by the notes described in (a) and (b) above
(as amended, modified or restated from time to time, together, the
"Notes"); and
e. all other indebtedness and obligations of Mortgagor currently or
subsequently owing to Mortgagee, including but not limited to all
future advances under this Amended 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 obligations as the same may be amended, modified or restated
from time to time are collectively referred to as the "indebtedness").
Mortgagor hereby warrants, covenants, and agrees that:
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. 135-01-844628, 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. INTENTIONALLY DELETED.
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 Amended 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 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 Amended 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
Amended 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 Amended
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
Amended Consolidated Mortgage.
12. 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(1) 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 Amended Consolidated Mortgage is in effect. This assignment shall
run 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 Amended 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 terms or covenants of this Amended
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 terms 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.
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 Amended 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 terms or provisions of this Amended
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 Amended Consolidated Mortgage or the Notes, nor preclude Mortgagee from
exercising any right or power granted, nor impair the lien or priority of this
Amended 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 Amended 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 Amended 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 terms, covenants, or
conditions of this Amended 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 Mortgagor'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 terms 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
Amended 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 Amended 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 Amended 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 Amended 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 Amended 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 Amended 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 Amended Consolidated
Mortgage or the Notes without in any way releasing or otherwise affecting
Mortgagor's liability under the Notes and this Amended Consolidated Mortgage.
22. Application of Proceeds. In the event of the payment to Mortgagee,
pursuant to this Amended 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, determine, 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 Amended 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 Amended 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 of the
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 Amended 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 lien 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 Amended
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.
26. Release of Amended 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 terms, covenants, and
agreements of Mortgagor with Mortgagee, then this Amended Consolidated Mortgage
shall be satisfied, and Mortgagee shall release this Amended 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 Amended 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 Amended
Consolidated Mortgage.
29. Venue and Jurisdiction. All provisions of this Amended 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 Amended
Consolidated Mortgage.
[SIGNATURES FOLLOW]
Signed on the date set forth above.
MORTGAGOR:
WITNESSES: PHC OF MICHIGAN, INC.,
a Massachusetts corporation
/s/ Janet Esterkes By: /s/ Bruce A. Shear
Name: Bruce A. Shear
President
/s/ Erica H. Cashell
Name:
ACKNOWLEDGMENT
STATE OF MASSACHUSETTS )
COUNTY OF ESSEX )
The foregoing instrument was acknowledged before me on December 10, 2001, by
Bruce A. Shear, the President of PHC of Michigan, Inc., a Massachusetts
corporation, on behalf of the corporation.
/s/ Paul C. Wurts
Notary Public, Essex County
My commission expires November 29, 2002.
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 corner 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 corner 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.