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EXHIBIT 10.2
THIS DOCUMENT PREPARED
WITH THE ASSISTANCE OF AN
ATTORNEY LICENSED IN VIRGINIA
AND AFTER RECORDING
SHOULD BE RETURNED TO:
Jason P. Neumark, Esq.
Goldberg, Kohn, Bell, Black,
Rosenbloom & Moritz, Ltd.
55 East Monroe Street
Suite 3700
Chicago, Illinois 60603
SPACE ABOVE THIS LINE FOR RECORDER'S USE
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THIS IS A CREDIT LINE DEED OF TRUST
The maximum aggregate amount of principal to be
secured at any one time under this Deed of Trust is
$45,000,000.00
For purposes of calculating the mortgage tax, the value of
the real property located in Virginia is $4,000,000.00
LOAN NO. 20-199
DEED OF TRUST, ASSIGNMENT OF LEASES, RENTS AND PROFITS,
SECURITY AGREEMENT AND FINANCING STATEMENT
[LYNCHBURG, VIRGINIA]
This DEED OF TRUST, ASSIGNMENT OF LEASES, RENTS AND PROFITS,
SECURITY AGREEMENT AND FINANCING STATEMENT (this "DEED OF TRUST") is made as of
this 28th day of August, 2000, between AHC BORROWER I, INC., a Delaware
corporation ("BORROWER"), the grantor for indexing purposes, whose address is
c/o Alterra Healthcare Corporation, 10000 Innovation Drive, Milwaukee, Wisconsin
53226, to JOYCE J. GORMAN, a resident of the County of Fairfax, Virginia, having
an office at 9492 Lynnhall Place, Alexandria, Virginia 22309, as trustee
("TRUSTEE"), a grantee for indexing purposes, for the benefit of HELLER
HEALTHCARE FINANCE, INC., a Delaware corporation (in its individual capacity,
"HELLER"), as agent ("AGENT") for Lenders (as "LENDERS" is defined in the Loan
Agreement referred to below), whose address is 2 Wisconsin Circle, Suite 400,
Chevy Chase, Maryland 20815, a grantee for indexing purposes.
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RECITALS
A. Lenders have agreed, subject to the terms and conditions of that
certain Loan Agreement dated of even date herewith (said Loan Agreement, as
amended from time to time, being hereinafter referred to as the "LOAN
AGREEMENT"), executed by and between Borrower, Heller, as Agent and as a Lender
and the financial institutions who are or hereafter become parties to the Loan
Agreement as Lenders, to make a loan (the "LOAN") to Borrower. The Loan is
evidenced by that certain Promissory Note A of even date herewith in the
original principal amount of Thirty-Six Million and No/100 Dollars
($36,000,000.00) and that certain Subordinated Promissory Note B of even date
herewith in the original principal amount of Nine Million and No/100 Dollars
($9,000,000.00) (which notes, together with all notes issued in full or partial
replacements thereof, or in substitution or exchange therefor, and all
amendments thereto, is hereinafter referred to as the "NOTES"), providing for
monthly payments as set forth in the Notes, with the balance thereof, due and
payable on August 31, 2003 (said date, or any earlier date on which the entire
unpaid principal amount shall be paid or required to be paid in full, whether by
prepayment, acceleration or otherwise is hereinafter called the "MATURITY
DATE"). The terms and provisions of the Loan Agreement and Notes are hereby
incorporated by reference in this Deed of Trust. Capitalized terms used but not
defined herein shall have the meanings provided in the Loan Agreement.
B. Agent wishes to secure: (i) the payment of the Notes, together
withall interest, premiums, the "EXIT Fee" (as defined in the Loan Agreement),
and other amounts, if any, due in accordance with the terms of the Notes, as
well as the payment of any additional indebtedness accruing to Agent and/or
Lenders on account of any future payments, advances or expenditures made by
Agent and/or Lenders pursuant to the Notes, the Loan Agreement or this Deed of
Trust or any of the other Loan Documents (hereinafter defined) including,
without limitation, all advances of funds from the Working Capital Reserve or
the Interest Reserve; (ii) the performance of each and every covenant,
condition, and agreement contained in the Notes, the Loan Agreement, this Deed
of Trust, the Environmental Indemnity (as defined in the Loan Agreement) and any
other documents evidencing or securing the Loan or executed in connection
therewith (such documents together with any modifications, renewals, extensions
or replacements thereof are collectively referred to as the "LOAN DOCUMENTS");
and (iii) the payment and performance of any and all other debts, claims,
obligations, demands, monies, liabilities and indebtedness of any kind or nature
now or hereafter owing, arising, due or payable to Agent and/or Lenders from
Borrower or any Principal (as defined in the Loan Agreement) in connection with
the Loan. All payment obligations of Borrower or any Principal to Agent and/or
Lenders under the Loan or any of the Loan Documents are hereinafter sometimes
collectively referred to as the "INDEBTEDNESS," and all other obligations of
Borrower or any Principal to Agent and/or Lenders under the Loan or any of the
Loan Documents are hereinafter sometimes collectively referred to as the
"Obligations".
C. THE INDEBTEDNESS AND THE OBLIGATIONS SECURED BY THE LAND, THE
IMPROVEMENTS AND THE APPURTENANCES (AS HEREINAFTER DEFINED) WHICH HAVE BEEN
CONVEYED BY THIS DEED OF TRUST SHALL NOT EXCEED THE PRINCIPAL AMOUNT OF
$45,000,000.00 AND
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THIS IS THE AMOUNT WHICH IS THE BASIS UPON WHICH RECORDING FEES ARE TO BE
CALCULATED PURSUANT TO THE LAWS OF THE COMMONWEALTH OF VIRGINIA.
NOW, THEREFORE, in consideration of the premises contained herein, to
secure the repayment of the Indebtedness and the performance of the Obligations,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Borrower does hereby convey, assign, warrant, transfer,
pledge and grant to Trustee with general warranty of title and English covenants
of title, a security interest in the following described property and all
proceeds thereof (which property is hereinafter sometimes collectively referred
to as the "PROPERTY"):
A The real estate described on Exhibit A attached hereto (the
"LAND");
B. All of the following (collectively, the "IMPROVEMENTS"): all
buildings, improvements and fixtures now or in the future located or to be
constructed on the Land; to the extent not owned by tenants of the Property, all
machinery, appliances, equipment, furniture, fixtures and all other personal
property of every kind or nature located in or on, or attached to, or used or to
be used in connection with the Land, buildings, improvements or fixtures; all
building materials and goods procured for use or in connection with the
foregoing; and all additions, substitutions and replacements to any of the
foregoing;
C. To the extent assignable, all plans, specifications,
architectural renderings, drawings, soil test reports, other reports of
examination or analysis of the Land or the Improvements;
D. All easements, rights-of-way, water courses, mineral rights,
water rights, air rights and appurtenances in any way belonging, relating or
appertaining to any of the Land or Improvements, or which hereafter shall in any
way belong, relate or be appurtenant thereto ("APPURTENANCES");
E. To the extent now or hereafter allowed by law, all leases,
licenses and other agreements with regard to the occupancy of the Land and/or
Improvements, including without limitation, patient and resident care agreements
and service agreements which include an occupancy agreement, now or hereafter
entered into (the "LEASES") and all rents, prepayments, security deposits,
termination payments, royalties, profits, issues and revenues from the Land
and/or Improvements from time to time accruing under the Leases (the "RENTS"),
reserving to Borrower, however, so long as no Event of Default (hereinafter
defined) has occurred hereunder, the right to receive and apply the Rents in
accordance with the terms and conditions of Section 9 of this Deed of Trust;
F. All claims, demands, judgments, insurance proceeds, refunds,
reserves, deposits, rights of action, awards of damages, compensation,
settlements and other rights to the payment of money hereafter made resulting
from or relating to (i) the taking of the Land or the Improvements or any part
thereof under the power of eminent domain, (ii) any damage
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(whether caused by such taking, by casualty or otherwise) to the Land,
Improvements or Appurtenances or any part thereof, or (iii) the ownership or
operation of the Property;
G. To the extent assignable, all management contracts, permits,
certificates, licenses, approvals, contracts, purchase and sale agreements,
purchase options, entitlements, development rights and authorizations, however
characterized, issued or in any way furnished for the acquisition, construction,
development, operation and use of the Land, Improvements and/or Leases,
including building permits, environmental certificates, licenses, certificates
of operation, warranties and guaranties;
H. All accounts, contract rights, general intangibles, chattel
paper, documents, instruments, inventory, goods, equipment and all books and
records relating to the foregoing;
I. Any monies on deposit with or for the benefit of Agent,
including deposits for the payment of real estate taxes and any cash collateral
account;
J. All proceeds, products, replacements, additions, substitutions,
renewals and accessions of and to the Land, Improvements, Appurtenances or any
other property of the types described in the preceding granting clauses; and
K. Any and all after-acquired right, title or interest of Borrower
inand to any property of the types described in the preceding granting clauses.
TO HAVE AND TO HOLD the same together with all privileges,
hereditaments, easements and appurtenances thereunto belonging, to the Trustee
and the Trustee's successors and assigns to secure the Indebtedness and the
Obligations herein recited and upon this special trust: that should the
Indebtedness secured hereby be paid according to the tenor and effect thereof
when the same shall be due and payable and should the Borrower timely and fully
discharge its Obligations, then the Property shall be reconveyed and released to
the Borrower or the title there to shall be revested according to the provisions
of law;
Borrower covenants and agrees with Trustee and Agent as
follows:
1. AMOUNT SECURED. This Deed of Trust secures all present and
future loan disbursements made by the Lenders under the Notes, and all other
sums from time to time owing to the Lenders by the Borrower under the Loan
Documents; provided, however, that the Indebtedness and the Obligations secured
hereby shall not exceed an aggregate principal amount, at any one time
outstanding of $45,000,000.00. The Loan evidenced by the Notes is solely for
business and/or investment purposes, and is not for personal, family, household
or agricultural purposes.
2. PAYMENT OF INDEBTEDNESS; PERFORMANCE OF OBLIGATIONS. Borrower
shall promptly pay when due the Indebtedness and shall promptly perform all
Obligations, and will pay, and will reimburse to Agent and/or Trustee on demand
to the extent paid by
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Agent and/or Trustee, all recordation, transfer and other filing, registration
and recording fees, taxes, and commissions.
3. TAXES AND OTHER OBLIGATIONS. Borrower shall pay, when due, and
before any interest, collection fees or penalties shall accrue, all taxes,
assessments, fines, impositions and other charges and obligations, which may
become a lien on or charge against the Property (collectively, "CHARGES").
Borrower shall have the right to contest, in good faith by appropriate
proceedings, the amount or validity of any such Charges, so long as: (a)
Borrower has given prior written notice to Agent of Borrower's intent to so
contest or object to any such Charges; (b) such contest stays the enforcement or
collection of the Charges or any lien created; and (c) Borrower has obtained an
endorsement, in form and substance satisfactory to Agent, to the loan policy of
title insurance issued to Agent for the benefit of Lenders insuring over any
such lien, or Borrower has deposited with Agent a bond or other security
satisfactory to Agent in the amount of 150% of the amount of such Charges.
Should Borrower fail to make any of such payments, Agent may,
at its option and at the expense of Borrower, pay the amounts due for the
account of Borrower. Upon the request of Agent, Borrower shall immediately
furnish to Agent copies of all notices of amounts due and receipts evidencing
payment. Borrower shall promptly notify Agent of any lien (other than liens
permitted under the Loan Agreement) on all or any part of the Property and shall
promptly discharge any unpermitted lien or encumbrance.
4. RESERVES FOR TAXES. At the time of and in addition to the
monthlyinstallments of principal and interest due under the Notes, Borrower
shall pay to Agent a sum equal to one-twelfth (1/12) of the amount estimated by
Agent to be sufficient to pay at least thirty (30) days before they become due
and payable, all taxes, assessments and other similar charges levied against the
Property (collectively, the "TAXES"). So long as no Event of Default exists
hereunder, Agent shall apply the sums to pay the Taxes. These sums shall be put
in an interest bearing account, with all interest earned to be credited to
Borrower. Upon written request by Borrower, Agent shall provide to Borrower an
accounting of such tax escrow account on a property-by-property basis. If Agent
at any time reasonably determines that such amount on deposit is insufficient to
fully pay such taxes, Borrower shall, within ten (10) days following notice from
Agent, deposit such additional sum as may be reasonably required by Agent. On
the Maturity Date, the moneys then remaining on deposit with Agent or its agent
shall, at Agent's option, be applied against the Indebtedness or promptly
thereafter refunded to Borrower. The obligation of Borrower to pay the Taxes is
not affected or modified by the provisions of this paragraph.
5. INSURANCE AND CONDEMNATION.
(A) INSURANCE.
(i) Borrower shall keep the Improvements insured, and shall
maintaingeneral liability coverage and such other coverages reasonably requested
by Agent, by carrier(s), in amounts and in form at all times reasonably
satisfactory to
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Agent, which carrier(s), amounts and form shall not be changed without the prior
written consent of Agent, such consent not to be unreasonably withheld.
(ii) In case of loss or damage by fire or other casualty, Borrower
shall give immediate written notice thereof to the insurance carrier(s) and to
Agent. Agent is authorized and empowered, and Borrower hereby irrevocably
appoints Agent as its attorney-in-fact (such appointment is coupled with an
interest), at its option, to make or file proofs of loss or damage and to settle
and adjust any claim under insurance policies which insure against such risks,
or to direct Borrower, in writing, to agree with the insurance carrier(s) on the
amount to be paid in regard to such loss.
(iii) Provided no Event of Default then exists and Borrower certifies
as to same, the net insurance proceeds (after deduction of Agent's reasonable
costs and expenses, if any, in collecting the same) shall be made available for
the restoration or repair of the Property if, in Agent's reasonable judgment:
(a) restoration or repair and the continued operation of the Property is
economically feasible; (b) the value of Agent's security is not reduced; (c) the
casualty loss is less than two-thirds (2/3) of the cost of replacement of the
Improvements (excluding the foundation and footing); (d) no Lease has terminated
as a result of the loss or damage; (e) the loss does not occur in the six (6)
month period preceding the stated Maturity Date and Agent's independent
consultant certifies that the restoration of the Property can be completed at
least ninety (90) days prior to the Maturity Date; and (f) Borrower deposits
with Agent from time-to-time an amount, in cash, which Agent, in its sole
discretion, determines is necessary, in addition to the net insurance proceeds
to pay in full the cost of the restoration or repair (Borrower's deposit shall
be disbursed prior to any disbursement of insurance proceeds held by Agent).
Notwithstanding the preceding sentence, provided no Event of Default then exists
and Borrower certifies as to same, if the casualty loss is less than $200,000,
Borrower may use the net insurance proceeds for the restoration or repair of the
Property provided that Borrower delivers a construction schedule and plans to
Agent within sixty (60) days of the casualty and provides an accounting of all
construction costs to Agent and any such proceeds not spent by Borrower shall
immediately be returned to Agent to be applied against the Indebtedness. Any
excess proceeds remaining after completion of such repair shall be distributed
first to Borrower to the extent Borrower has deposited funds with Agent for such
repair with the balance applied against the Indebtedness. Notwithstanding the
foregoing, it shall be a condition precedent to any disbursement of insurance
proceeds held by Agent hereunder that Agent shall have approved (x) all plans
and specifications for any proposed repair or restoration, (y) the construction
schedule and (z) the architect's and general contractor's contract for all
restoration that exceeds $50,000 in the aggregate. Agent may establish other
conditions it deems reasonably necessary to assure the work is fully completed
in a good and workmanlike manner free of all liens or claims by reason thereof,
and in compliance with all applicable laws, rules and regulations. At Agent's
option, the net insurance proceeds shall be disbursed pursuant to a construction
escrow acceptable to Agent
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(unless the casualty loss is less than $200,000). If an Event of Default then
exists, or if the casualty loss is greater than two-thirds (2/3) of the cost of
replacement of the Improvements (excluding the foundation and footing), or any
of the conditions set forth in clauses (a) through (f) or elsewhere in this
Section 5(a)(iii) have not been met or satisfied, the net insurance proceeds
shall be applied to the Indebtedness in such order and manner as Agent may
elect, whether or not due and payable, with any excess paid to Borrower.
(iv) In the event Borrower fails to provide Agent with evidence of
the insurance coverage required by this Deed of Trust, Agent may purchase
insurance at Borrower's expense to protect Agent's interests in the Property.
This insurance may, but need not, protect Borrower's interests. The coverage
purchased by Agent may not pay any claim made by Borrower or any claim that is
made against Borrower in connection with the Property. Borrower may later cancel
any insurance purchased by Agent, but only after providing Agent with evidence
that Borrower has obtained insurance as required by this Deed of Trust. If Agent
purchases insurance for the Property, Borrower will be responsible for the costs
of that insurance, including interest and other charges imposed by Agent in
connection with the placement of the insurance, until the effective date of the
cancellation or expiration of the insurance. The costs of the insurance may be
added to the Indebtedness. The costs of the insurance may be more than the cost
of insurance Borrower is able to obtain on its own.
(B) CONDEMNATION.
(i) Borrower shall within five (5) business days of its receipt of
notice thereof, notify Agent of any action or proceeding relating to any
condemnation or other taking, whether direct or indirect, of the Property, or
part thereof, and Borrower shall, after consultation with and subject to Agent's
approval, appear in and prosecute any such action or proceeding, if required by
Agent. Upon Borrower's failure to act in accordance with Agent's prior approval,
Borrower authorizes Agent, at Agent's option, as attorney-in-fact for Borrower
(such appointment as attorney-in-fact is coupled with an interest), to commence,
appear in and prosecute, in Agent's or Borrower's name, any action or proceeding
relating to any condemnation or other taking of the Property, and to settle or
compromise any claim in connection with such condemnation or other taking. The
proceeds of any award, payment or claim for damages, direct or consequential, in
connection with any condemnation or other taking of the Property, or part
thereof, or for conveyances in lieu of condemnation, are hereby assigned to and
shall be paid to Agent and in accordance with the provisions of Section 5(b)(ii)
below. Agent is authorized (but is under no obligation) to collect any such
proceeds.
(ii) Agent may, in its sole discretion, elect to (y) apply the net
proceeds of any condemnation award (after deduction of Agent's reasonable costs
and expenses, if any, in collecting the same) in reduction of the Indebtedness
in such order and manner as Agent may elect, whether due or not or (z) make the
proceeds
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available to Borrower for the restoration or repair of the Property. If
the net proceeds of the condemnation award are made available to Borrower for
restoration or repair, the net proceeds of the condemnation award shall be
disbursed upon satisfaction of and in accordance with the terms and conditions
set forth in Section 5(a)(iii) above. Agent is authorized (but is under no
obligation) to collect any such proceeds.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower shall:
(a) not commit waste or permit impairment or deterioration of the Property; (b)
not abandon the Property; (c) keep the Property in good repair and restore or
repair promptly, in a good and workmanlike manner, all or any part of the
Property to the equivalent of its original condition, or such other condition as
Agent may approve in writing, upon any damage or loss thereto; (d) comply with
all laws, ordinances, regulations and requirements of any governmental body
applicable to the Property; (e) provide for management of the Property by a
property manager reasonably satisfactory to Agent pursuant to a contract in form
and substance reasonably satisfactory to Agent; and (f) give notice in writing
to Agent of and appear in and defend any action or proceeding purporting to
affect the Property, and, unless otherwise directed in writing by Agent, the
security granted by the Loan Documents or the rights or powers of Agent. Neither
Borrower nor any tenant or other person shall remove, demolish or alter any
Improvement on the Land except when incident to the replacement of fixtures,
equipment, machinery and appliances with items of like kind.
7. PROTECTION OF AGENT'S AND/OR LENDERS' SECURITY. If (a) Borrower
fails to pay the Indebtedness or to perform the Obligations, (b) any action or
proceeding is commenced which affects or could affect the Property or Agent's
and/or Lenders' interest therein, including any loss, damage, cost, expense or
liability incurred by Agent and/or Lender with respect to (i) any environmental
matters relating to the Property or (ii) the preparation of the commencement or
defense of any action or proceeding or any threatened action or proceeding
affecting the Loan Documents or the Property, then Agent, at Agent's option, may
make such appearances, disburse such sums and take such action as Agent deems
necessary, in its sole discretion, to protect the Property or Agent's and/or
Lenders' interest therein, including entry upon the Property to take such
actions Agent determines appropriate to preserve, protect or restore the
Property. Any amounts disbursed by Agent and/or Lenders pursuant to this Section
7 (including attorneys' fees, costs and expenses), together with interest
thereon at the "DEFAULT RATE" (defined in the Notes) from the date of
disbursement, shall become additional Indebtedness of Borrower secured by the
lien of this Deed of Trust and the other Loan Documents and shall be due and
payable on demand. Nothing contained in this Section 7 shall require Agent
and/or Lenders to incur any expense or take any action hereunder.
8. ACTIONS. Borrower shall warrant title and appear in and defend
any claim or any action or other proceeding purporting to affect title or other
interests relating to any part of the Property, the security of this Deed of
Trust or the rights of Agent and/or Lenders and give Agent prompt written notice
of any such claim, action or proceeding. Agent may, at the expense of Borrower,
appear in and defend any such claim, action or proceeding and any claim, action
or other proceeding asserted or brought against Agent
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and/or Lenders in connection with or relating to any part of the Property
or this Deed of Trust.
9. LEASES; ASSIGNMENT OF RENTS.
Borrower shall not, without Agent's prior written consent, execute,
modify, amend, surrender or terminate any non-residential Lease (other than
month-to-month non-residential Leases of less than 500 square feet ("EXCLUDED
LEASES")), except as expressly permitted by the Loan Agreement. All residential
Leases shall be on forms previously approved by Agent. Borrower shall not be
authorized to enter into any ground lease of the Property without Agent's prior
written approval. If Agent consents to any non-residential Lease (other than
Excluded Leases) or the renewal of any existing non-residential Lease (other
than Excluded Leases), at Agent's request, Borrower shall cause the tenant
thereunder to execute a subordination and attornment agreement in form and
substance satisfactory to Agent prior to Borrower's execution of such Lease.
Borrower shall comply with and observe Borrower's obligations as
landlord under all Leases. Borrower will not lease any portion of the Property
for non-residential use except as permitted under the Loan Agreement or except
with the prior written approval of Agent. Borrower shall deliver to Agent, a
rent roll as required by the Loan Agreement.
Borrower absolutely and unconditionally assigns and transfers to Agent
for the benefit of Lenders, all of Borrower's right, title and interest in and
to the Rents; provided, however, so long as there shall not have occurred an
Event of Default, Borrower shall have a revocable license to collect all Rents,
and shall hold the same, in trust, to be applied first to the payment of all
impositions, levies, taxes, assessments and other charges upon the Property,
second to maintenance of insurance policies upon the Property required hereby,
third to the expenses of Property operations, including maintenance and repairs
required hereby, and the performance of any unperformed Obligations, fourth to
the payment of that portion of the Indebtedness then due and payable, and fifth,
the balance, if any, to or as directed by Borrower. If an Event of Default has
occurred, Borrower's right to collect and secure the Rents shall cease and Agent
shall have the sole right, with or without taking possession of the Property to
collect all Rents. Borrower has executed and delivered to Agent, for the benefit
of Lenders, an Assignment of Leases and Rents of even date herewith, and, to the
extent the provisions of this Section 9 are inconsistent with the provisions of
said Assignment of Leases and Rents, the provisions of said Assignment of Leases
and Rents shall control.
10. STATEMENTS BY BORROWER. Borrower shall within ten (10) days
after Agent's request, furnish Agent with a written statement, duly
acknowledged, setting forth the sums, according to Borrower's books and records,
secured by the Loan Documents and any right of set-off, counterclaim or other
defense which exists against such sums and the Obligations.
11. TRANSFERS OF THE PROPERTY OR INTEREST IN BORROWER AND
PRINCIPALS. Borrower shall not (a) create or permit the creation of any new
ownership interest in
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Borrower, or (b) sell, transfer, convey or otherwise dispose of (or permit any
of the foregoing) (i) except as permitted under the Loan Agreement, all or any
part of the Property or the AHC Property or the assets of AHC Holding or any
interest therein, or (ii) any ownership interest in Borrower, AHC or AHC Holding
or (c) cause or permit the merger or consolidation of Borrower, AHC or AHC
Holding with or into any other entity.
12. NO ADDITIONAL LIENS, ENCUMBRANCES OR INDEBTEDNESS. Borrower
covenants not to execute any deed of trust, security agreement, assignment of
leases and rents or other agreement granting a lien (except for liens permitted
under the Loan Agreement and the liens granted to Agent for the benefit of
Lenders by the Loan Documents) against or encumbrance on the Property or take or
fail to take any other action which would result in a lien against the Property
or the interest of Borrower in the Property without the prior written consent of
Agent; provided, however, Borrower may in good faith, by appropriate proceeding,
contest the validity or amount of any asserted lien and, pending such contest,
Borrower shall not be deemed to be in default hereunder if Borrower shall first
obtain an endorsement, in form and substance satisfactory to Agent to the loan
policy of title insurance issued to Agent for the benefit of Lenders insuring
over such lien, or, if no such loan policy shall have been issued, then Borrower
shall deposit with Agent a bond or other security satisfactory to Agent in the
amount of 150% of the amount of such lien to assure payment of the same as and
when due.
13. BORROWER AND LIEN NOT RELEASED. Without affecting the liability
of Borrower or any other person liable for the payment of the Indebtedness or
the performance of any Obligations, and without affecting the lien or charge of
this Deed of Trust as security for the payment of the Indebtedness, Agent may,
from time to time and without notice to any junior lien holder or holder of any
right or other interest in and to the Property: (a) release any person so
liable; (b) waive or modify any provision of this Deed of Trust or the other
Loan Documents or grant other indulgences; (c) release all or any part of the
Property; (d) take additional security for any obligation herein mentioned; (e)
subordinate the lien or charge of this Deed of Trust; (f) consent to the
granting of any easement; or (g) consent to any map or plan of the Property.
14. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT.
(a) This Deed of Trust shall constitute a security agreement and a
financing statement pursuant to the Uniform Commercial Code (the "UCC") for any
portion of the Property which, under applicable law, may be subject to a
security interest pursuant to the UCC (such portion of the Property is
hereinafter called the "PERSONAL PROPERTY") and Borrower hereby grants to Agent
for the benefit of Lenders a security interest in the Personal Property. Agent
and Lenders shall have all of the rights and remedies of a secured party under
the UCC as well as all other rights and remedies available at law or in equity.
(b) Borrower agrees to execute and deliver to Agent any financing
statements, as well as extensions, renewals and amendments thereof, and
reproductions of this Deed of Trust in such form as Agent may require to perfect
a security interest with respect to the Personal Property. Borrower hereby
authorizes and empowers Agent and irrevocably
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appoints Agent its agent and attorney-in-fact to execute and file, on Borrower's
behalf, all financing statements and refilings and continuations thereof as
Agent deems necessary or advisable to create, preserve and protect such lien.
Borrower shall pay all costs of filing such financing statements and any
extensions, renewals, amendments and releases thereof, and shall pay all
reasonable costs and expenses of any record searches for financing statements as
Agent may reasonably require.
(c) Borrower shall not, without the prior written consent of Agent
oras may be explicitly permitted by the Loan Agreement, sell, assign, transfer,
encumber, remove or permit to be removed from the Property any of the Personal
Property. So long as no Event of Default exists, Borrower may sell or otherwise
dispose of the Personal Property when obsolete, worn out, inadequate,
unserviceable or unnecessary for use in the operation of the Property, but only
upon replacing the same with other Personal Property at least equal in value and
utility to the disposed Personal Property. Any replacement or substituted
Personal Property shall be subject to the security interest granted herein.
(d) To the extent permitted by law, Borrower and Agent agree that
with respect to all items of Personal Property which are or will become fixtures
on the Land, this Deed of Trust, upon recording or registration in the real
estate records of the proper office, shall constitute a "fixture filing" within
the meaning of the UCC.
15. EVENTS OF DEFAULT; ACCELERATION OF INDEBTEDNESS.
The occurrence of any one or more of the following events shall constitute an
"EVENT OF DEFAULT" under this Deed of Trust:
(a) failure of Borrower to pay, within five (5) days of the due
date, any of the Indebtedness, including any payment due under the Notes; or
(b) failure of Borrower to strictly comply with Sections 5(a)(i)
(insurance), 9 (Leases), 11 (prohibition on transfers), and 12 (no additional
liens) of this Deed of Trust; or
(c) failure of Borrower, within thirty (30) days after written
notice and demand, to satisfy each and every Obligation not set forth in the
subsections above; provided, however, if such Obligation cannot by its nature be
cured within thirty (30) days, and if Borrower commences to cure such failure
promptly after written notice thereof and thereafter diligently pursues the
curing thereof (and then in all events cures such failure within sixty (60) days
after the original notice thereof), Borrower shall not be in default hereunder
during such period of diligent curing; or
(d) the occurrence of an Event of Default under the Loan Agreement
or any other Loan Document.
Upon the occurrence of an Event of Default, at the option of Agent, the
Indebtedness shall become immediately due and payable without notice to Borrower
and Agent and Lenders shall be entitled to all of the rights and remedies
provided in the Loan Documents or at law or in equity and may foreclose the lien
of this Deed of Trust pursuant to the power of sale
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hereby granted or by judicial proceedings. Each remedy provided in the Loan
Documents is distinct and cumulative to all other rights or remedies under the
Loan Documents or afforded by law or equity, and may be exercised concurrently,
independently, or successively, in any order whatsoever.
Without limiting the generality of the foregoing, the
following provision is set forth herein in order to comply with the requirements
of ss. 6.1-330.88 of the Code of Virginia, if such requirements are applicable
to the Property: NOTICE - THE DEBT SECURED HEREBY IS SUBJECT TO CALL IN FULL OR
THE TERMS THEREOF BEING MODIFIED IN THE EVENT OF SALE OR CONVEYANCE OF THE
PROPERTY CONVEYED.
16. ENTRY; FORECLOSURE. Upon the occurrence of an Event of Default,
Borrower, upon demand of Agent or Trustee, shall forthwith surrender to Agent or
to Trustee (as Agent chooses) the actual possession of the Property, or to the
extent permitted by law, Agent, Trustee, or a receiver appointed by a court of
competent jurisdiction, may enter and take possession of all or any part of the
Property, and may exclude Borrower and its agents and employees wholly
therefrom, and may have joint access with Borrower to the books, papers and
accounts of Borrower. If Borrower shall for any reason fail to surrender or
deliver the Property or any part thereof after such demand by Agent or Trustee,
Agent, Trustee, or such receiver may obtain a judgment or decree conferring on
Agent, Trustee, or such receiver, the right to immediate possession of the
Property or requiring the delivery of the Property to Agent, Trustee, or such
receiver, and Borrower specifically consents to the entry of such judgment or
decree. Upon every such entering upon or taking of possession, Agent, Trustee,
or such receiver may hold, store, use, operate, manage and control the Property
and conduct the business thereof, and Agent, Trustee, or such receiver may take
any action required by applicable law or which Agent, Trustee, or such receiver
believes necessary to enforce compliance with the environmental provisions
contained herein or in the other Loan Documents, and negotiate with governmental
authorities with respect to the Property's environmental compliance and remedial
measures in connection therewith. Agent, Trustee, and such receiver and their
representatives shall have no liability for any loss, damage, injury, cost or
expense resulting from any action or omission which was taken or omitted in good
faith.
To the extent permitted by applicable law, when the
Indebtedness and/or the Obligations or any part thereof shall become due,
whether by acceleration or otherwise, Trustee may (upon written request of
Agent) or Agent may, either with or without entry or taking possession as herein
provided or otherwise, proceed by suit or suits at law or in equity or by any
other appropriate proceeding or remedy to: (a) enforce payment of the Notes or
the performance of any term, covenant, condition or agreement of Borrower under
any of the Loan Documents; (b) foreclose the lien hereof for the Indebtedness or
part thereof and sell the Property as an entirety or otherwise, as Agent may
determine; (c) exercise its rights under Section 13 with respect to all or any
portion of the Personal Property in accordance with the provisions of the UCC;
and/or (d) pursue any other right or remedy available to it under or by the law
and decisions of the State in which the Land is located. Notwithstanding any
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statute or rule of law to the contrary, the failure to join any tenant or
tenants of the Property as party defendant or defendants in any foreclosure
action or the failure of any such order or judgment to foreclose their rights
shall not be asserted by Borrower as a defense in any civil action instituted to
collect (a) the Indebtedness, or any part thereof or (b) any deficiency
remaining unpaid after foreclosure and sale of the Property.
Borrower hereby authorizes and empowers the Trustee, or his
successor or substitute, and it shall be his special duty at the request of
Agent to take possession of and/or to sell (or in the case of any default of any
purchaser to resell) the Property or any part thereof. Prior to any sale of the
Property by Trustee, Trustee shall notify Borrower in accordance with all
applicable laws. In the event of a postponement of any sale of the Property,
which may be done in the sole discretion of Trustee, no new or additional notice
need be given by Trustee to Borrower for the next scheduled sale of the
Property. Any sale made by Trustee hereunder may be as an entirety or in such
parcels as Agent may request at such time and place, and after such previous
public advertisement as Trustee shall deem advantageous and proper and at such
times and containing such information as required by applicable laws and rules,
without regard to any right of the Borrower or any other person to the
marshalling of assets; provided however that advertising by the Trustee of a
notice of sale once a week for two weeks shall be sufficient. Except as may be
required by Section 58-1.3340 of the Virginia Code, no purchaser of the Property
shall be required to see to the proper application of the purchase money. To the
extent permitted by applicable law, any sale may be adjourned by announcement at
the time and place appointed for such sale without further notice except as may
be required by law. The sale by Trustee of less than the whole of the Property
shall not exhaust the power of sale herein granted, and Trustee is specifically
empowered to make successive sale or sales under such power until the whole of
the Property shall be sold; and, if the proceeds of such sale of less than the
whole of the Property shall be less than the aggregate of the indebtedness
secured hereby and the expense of executing this trust as provided herein, this
Deed of Trust and the lien hereof shall remain in full force and effect as to
the unsold portion of the Property just as though no sale had been made;
provided, however, that Borrower shall never have any right to require the sale
of less than the whole of the Property but Agent shall have the right, at its
sole election, to request Trustee to sell less than the whole of the Property.
Trustee may, after any request or direction by Agent, sell not only the real
property but also the Collateral and other interests which are a part of the
Property, or any part thereof, as a unit and as a part of a single sale, or may
sell any part of the Property separately from the remainder of the Property. It
shall not be necessary for Trustee to have taken possession of any part of the
Property or to have present or to exhibit at any sale any of the Collateral.
After each sale, Trustee shall make to the purchaser or purchasers at such sale
good and sufficient conveyances, conveying the property so sold to the purchaser
or purchasers in fee simple, subject to the Liens permitted hereunder (and to
such leases and other matters, if any, as Trustee may elect upon request of
Agent), and shall receive the proceeds of said sale or sales and apply the same
as herein provided. Payment of the purchase price to the Trustee shall satisfy
the obligation of purchaser at such sale therefor, and such purchaser shall not
be responsible for the application thereof. The power of sale granted herein
shall not be exhausted by any sale held hereunder by Trustee or his substitute
or successor, and such power of sale may be exercised
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from time to time and as many times as Agent may deem necessary until all of the
Property has been duly sold and all secured indebtedness has been fully paid. In
the event any sale hereunder is not completed or is defective in the opinion of
Agent, such sale shall not exhaust the power of sale hereunder and Agent shall
have the right to cause a subsequent sale or sales to be made hereunder. Any and
all statements of fact or other recitals made in any deed or deeds or other
conveyances given by Trustee or any successor or substitute appointed hereunder
as to nonpayment of the secured indebtedness or as to the occurrence of any
default, or as to Agent's having declared all of said indebtedness to be due and
payable, or as to the request to sell, or as to notice of time, place and terms
of sale and the properties to be sold having been duly given, or as to the
refusal, failure or inability to act of Trustee or any substitute or successor
trustee, or as to the appointment of any substitute or successor trustee, or as
to any other act or thing having been duly done by Agent or by such Trustee,
substitute or successor, shall be taken as prima facie evidence of the truth of
the facts so stated and recited. The Trustee or his successor or substitute may
appoint or delegate any one or more persons as agent to perform any act or acts
necessary or incident to any sale held by Trustee, including the posting of
notices and the conduct of sale, but in the name and on behalf of Trustee, his
successor or substitute. If Trustee or his successor or substitute shall have
given notice of sale hereunder, any successor or substitute Trustee thereafter
appointed may complete the sale and the conveyance of the property pursuant
thereto as if such notice had been given by the successor or substitute Trustee
conducting the sale.
Borrower hereby assents to the passage of a decree for the
sale of the Property by any equity court having jurisdiction.
Upon any foreclosure sale, Agent may bid for and purchase the
Property and shall be entitled to apply all or any part of the Indebtedness as a
credit to the purchase price.
Following a foreclosure sale, the Trustee shall deliver to the
purchaser the Trustee's deed (and bill of sale as to any personality) conveying
the property so sold by Special Warranty of title. The recitals in the Trustee's
deed shall be prima facie evidence of the statements made therein. The Trustee
shall apply the proceeds of such sale in the manner required by applicable law,
provided that the Trustee shall be entitled to receive a reasonable fee, which
shall not exceed three percent (3%) of the gross sales price.
If a foreclosure proceeding is commenced by the Trustee but
terminated prior to its completion, the Trustee's fees will be reasonable but
not more than one percent (1%) of the unpaid Indebtedness if the termination
occurs prior to the first sale and not more than two percent (2%) of the unpaid
Indebtedness if the termination occurs after the first public auction sale.
17. APPOINTMENT OF RECEIVER OR MORTGAGEE IN POSSESSION. If
an Event of Default is continuing or if Agent shall have accelerated the
Indebtedness and/or the Obligations, Agent, or Trustee at Agent's written
request, upon application to a court of competent jurisdiction, shall be
entitled as a matter of strict right, without notice, and without regard to the
occupancy or value of any security for the Indebtedness and the Obligations or
the insolvency of any party bound for its payment, to the appointment, at its
option, of itself
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as mortgagee in possession, or of a receiver to take possession of and to
operate the Property, and to collect and apply the Rents.
18. EXPENDITURES AND EXPENSES. In any action to foreclose the lien
hereof or otherwise enforce Trustee's or Agent's or Lenders' rights and remedies
hereunder, there shall be allowed and included as additional Indebtedness all
Costs (as defined in the Loan Agreement) which may be paid or incurred by or on
behalf of Agent and/or Trustee. All Costs and such other costs, expenses and
fees as may be incurred by Agent and/or Trustee in the protection of the
Property and the maintenance of the lien of this Deed of Trust, including,
attorneys' fees and costs in any litigation or proceeding affecting this Deed of
Trust, the Notes, the other Loan Documents, the Property or the Personal
Property, including probate, appellate, and bankruptcy proceedings and any
post-judgment proceedings to collect or enforce any judgment or order relating
to this Deed of Trust or the other Loan Documents or in preparation for the
commencement or defense of any action or proceeding, shall be immediately due
and payable to Agent, or Trustee, as applicable, with interest thereon at the
Default Rate, and shall be secured by this Deed of Trust.
19. APPLICATION OF PROCEEDS OF FORECLOSURE SALE. The proceeds of
any foreclosure sale of the Property shall be distributed and applied in the
order of priority set forth in the Notes with the excess, if any, being applied,
to any party entitled thereto as their rights may appear required by applicable
law.
20. WAIVER OF STATUTE OF LIMITATIONS. To the extent permitted by
law, Borrower hereby waives the right to assert any statute of limitations as a
bar to the enforcement of the lien created this Deed of Trust or any of the Loan
Documents or to any action brought to enforce the Notes or any Indebtedness or
Obligation secured by any of the Loan Documents.
21. WAIVER OF HOMESTEAD AND REDEMPTION. Borrower hereby waives all
right of homestead exemption in the Property. Borrower hereby waives all right
of redemption on behalf of Borrower and on behalf of all other persons acquiring
any interest or title in the Property by, through or under Agent and/or Lenders
subsequent to the date of this Deed of Trust.
22. GOVERNING LAW; SEVERABILITY. This Deed of Trust shall be
governed by and construed in accordance with the internal laws of the State of
Illinois, except that the provisions of the laws of the jurisdiction in which
the Land is located shall be applicable to the creation, perfection and
enforcement of the lien created by this Deed of Trust. The invalidity,
illegality or unenforceability of any provision of this Deed of Trust shall not
affect or impair the validity, legality or enforceability of the remainder of
this Deed of Trust, and to this end, the provisions of this Deed of Trust are
declared to be severable.
23. NOTICE. Notices shall be given under this Deed of Trust in
conformity with the terms and conditions of the Loan Agreement and in conformity
with applicable law.
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24. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY;
AGENTS; CAPTIONS. The covenants and agreements contained in the Loan Documents
shall bind, and the rights thereunder shall inure to, the respective successors
and assigns of Lender and Borrower, subject to the provisions of Section 11
hereof. All covenants and agreements of Borrower shall be joint and several. In
exercising any rights under the Loan Documents or taking any actions provided
for therein, Agent may act through its employees, agents or independent
contractors as authorized by Agent. The captions and headings of the paragraphs
of this Deed of Trust are for convenience only and are not to be used to
interpret or define the provisions hereof.
25. RELEASE. Upon payment of all Indebtedness and the performance
of all Obligations, Agent and Trustee shall release this Deed of Trust. This
Deed of Trust is also subject to release in accordance with Section 1.6 of the
Loan Agreement. Borrower shall pay Trustee's and Agent's reasonable costs
incurred in releasing this Deed of Trust and any financing statements related
hereto.
26. LOSS OF NOTES. Upon notice from Agent of the loss, theft, or
destruction of any of the Notes and upon receipt of an affidavit of lost notes
pertaining to such Note and an indemnity reasonably satisfactory to Borrower
from Agent, or in the case of mutilation of such Note, upon surrender of such
mutilated Note, Borrower shall make and deliver a new note of like tenor in lieu
of the then to be superseded Note.
27. REPLACEMENT OF NOTES. Any one or more of the financial
institutions which are or become a party to the Loan Agreement as Lenders may
from time to time be replaced and, accordingly, one or more of the Notes may
from time to time be replaced, provided that the terms of the Notes following
such replacement, including the principal amount evidenced thereby, shall remain
the same. As the indebtedness secured by this Deed of Trust shall remain the
same, such replacement of the Notes shall not be construed as a novation and
shall not affect, diminish or abrogate Borrower's liability under this Deed of
Trust or the priority of this Deed of Trust.
28. TRUSTEE. Trustee may act by agent or attorney, and it is not
necessary for Trustee to be personally present at any foreclosure sale.
29. SUBSTITUTE TRUSTEE. Agent may from time to time, for any reason
or for no reason, substitute another trustee or trustees, corporations or
persons, in place of Trustee or any trustee herein named. Upon each such
appointment, the substituted trustee or trustees shall be vested with all the
rights, titles, interests, powers, duties and trusts conferred upon the Trustee
herein named. Each appointment and substitution shall be evidenced by an
instrument in writing, executed and acknowledged by Agent, which when recorded
in the Clerk's Office of the Circuit Court of the city or county in which the
Land is located, shall be conclusive proof of the proper substitution and
appointment and notice to all parties in interest.
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30. SHORT FORM INCORPORATION. The following short form provisions
are incorporated into this Deed of Trust by reference as permitted by Section
55-60, Code of Virginia;
(1) Exemptions waived.
(2) Subject to all upon default.
(3) Renewal, extension or reinstatement permitted.
(4) Substitution of trustee permitted.
(5) Any trustee may act.
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IN WITNESS WHEREOF, Borrower has executed this Deed of Trust
or has caused the same to be executed by its duly authorized representatives as
of the date first above written.
BORROWER:
AHC BORROWER I, INC.,
a Delaware corporation
By \s\ Mark W. Ohlendorf
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Mark W. Ohlendorf
Its Vice President
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ACKNOWLEDGMENT
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
I, Barbara A. Powers, a Notary Public in and for and residing
in said County and State, DO HEREBY CERTIFY THAT Mark W. Ohlendorf, the Vice
President of AHC BORROWER I, INC., a Delaware corporation, personally known to
me to be the same person whose name is subscribed to the foregoing instrument
appeared before me this day in person and acknowledged that he signed and
delivered said instrument as his own free and voluntary act and as the free and
voluntary act of said corporation for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 28th day of August,
2000.
/s/Barbara A. Powers
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Notary Public
My Commission Expires:
9/16/2003
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EXHIBIT A
LEGAL DESCRIPTION