Prepared by:
Xxxxxx X. Xxxxxxxx III
Xxxxxx, Xxxxxxxx & Xxxxxxx, PLC
Xxxxx 0 000, XxxXxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
MORTGAGE DEED, ASSIGNMENT OF RENTS AND LEASES
AND SECURITY AGREEMENT
This Mortgage Deed, Assignment of Rents and Leases and
Security Agreement (as it may be amended and/or restated from
time to time, this "_______ Mortage") is made as of the ____ day
of May 1997, by OHI REALTY LIMITED PARTNERSHIP I, a
Massachusetts limited partnership with its principal place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxxxxx
00000-0000 (the "Mortgagor"), to and for the benefit of
NATIONAL HEALTH INVESTORS, INC., a Maryland corporation with its
principal office and mailing address at 000 Xxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxx 00000 (the "Mortagee").
KNOW ALL MEN BY THESE PRESENTS
That Mortgagor, for consideration paid, hereby irrevocably
grants, mortgages, transfers, hypothecates and assigns to
Mortgagee, with Mortgage Covenants the following tract(s) of land
and other property:
I. LAND: That certain parcel of land situated in Quincy,
County of Norfolk, Massachusetts. and more particularly described
in Exhibit A attached hereto and made a part hereof ( the
"Premises").
II. IMPROVEMENTS: All buildings and improvements now
situated upon the Premises or that may hereafter be constructed
on the Premises or added thereto, together with all fixtures now
or hereafter owned by Mortgagor or in which Mortgagor has an
interest (but only to the extent of such interest) and placed in
or upon the Premises or the buildings or improvements thereon
(collectively the "Improvements").
III. EASEMENTS: Any easement, bridge or right of way,
contiguous or adjoining the Premises and the Improvements
thereon, and all other easements, if any, inuring to the benefit
of the Premises.
IV. PERSONAL PROPERTY AND FIXTURES: All ofthe equipment,
personal property and fixtures of every kind and description now
or hereafter owned by Mortgagor or in which Mortgagor has an
interest (But only to the extent of such interest) and situated
or to be situated upon the Premises, together with any renewals,
replacements or additions thereto or substitutions therefor, and
now or hereafter located at, or used in connection with the
operation of the Premises.
V. RENTS AND LEASES: All rents, income, issues, profits,
royalties, and other benefits derived or to be derived from the
Premises, Improvements, and fixtures (all of which are called
"Rents") and all of Mortgagor's interest in any lease, license or
other agreement pursuant to which any Rents are
payable and all security and guaranties therefor (all of which
are called "Leases"); provided, however, that patient receivables
shall not be considered "Rents" or otherwise be encumbered
hereunder.
All of the Premises, Improvements and other property hereby
granted, sold and conveyed, or intended so to be, are referred to
collectively as the "Mortgaged Property."
TOGETHER WITH:
A. PROCEEDS FOR DAMAGE TO THE MORTGAGED PROPERTY: All
proceeds paid for any damage done to the Mortgaged Property, or
any part thereof, or for any portion thereof appropriated for any
character of public or quasi-public use in accordance with the
provisions, terms and conditions hereinafter set forth.
B. RECORDS: All of the records and books of account now
or hereafter maintained by Mortgagor in connection with the
operation of the Premises.
C. NAME AND GOODWILL: The right, in event of foreclosure
hereunder of the Mortgaged Property, to take and use any name by
which the Mortgaged Property is then known, and the goodwill of
Mortgagor with respect thereto.
SUBJECT, HOWEVER, to those certain liens, encumbrances and
other matters, if any, set forth on Exhibit B attached hereto and
incorporated herein by this reference (collectively the
"Permitted Exceptions").
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee
and its successors and assigns forever, subject to the Permitted
Exceptions together with all and singular the tenements,
hereditaments and appurtenances belonging or in anyway
appertaining thereto, whether now owned or acquired hereafter,
with the reversions, remainders, rents, issues, incomes and
profits thereof, and all of the estate, right, title, interest
and claim whatsoever that Mortgagor now has or may hereafter acqu
ire in and to the Mortgaged Property. And Mortgagor does hereby
bind itself, its heirs, successors and assigns, to warrant and
forever defend the same unto Mortgagee and its successors and
assigns against all persons whomsoever claiming or to claim the
same or any part thereof subject to the Permitted Exceptions.
Capitalized terms not otherwise defined herein shall have
the meanings set forth in that certain Loan Agreement dated as of
_______________, 1997 herewith by and between Mortgagor, OHI
Corporation d/b/a Oasis Healthcare, a Georgia corporation
("Oasis") and Mortgagee (as it may be amended and/or restated
from time to time, the "Loan Agreement").
The conveyance is made for the purpose of securing the
following:
(a) Payment of all principal, interest and other amounts
pursuant to the terms of a note in the amount of up to Eight
Million Three Hundred Thousand and No/I00 Dollars ($8,300,000.00)
executed by Mortgagor and Oasis having a _______________________,
1997 effective date and payable to the order of Mortgagee and any
and all extensions, modifications and renewals thereof and
substitutions therefor (such promissory note, together with the
second note described in (b) below, as either may be extended,
modified, or renewed or their substitution, is referred to
collectively, jointly and severally as
the "Note"), and of the performance of every obligation and
agreement of Mortgagor and/or Oasis contained in the Note;
(b) Payment of all other principal, interest and other
amounts which may become due under that certain $300,000
Promissory Note executed by Mortgagor and Oasis and payable to
the order of Mortgagee and all extensions, modifications and
renewals thereof and substitutions therefor.
(c) Performance by Mortgagor and by Oasis and, if
applicable, by latros Health Network,
Inc., a Delaware corporation, of all obligations and payment of
any amounts due tinder (i) the Loan
Agreement; (ii) the Note (and/or either of them), (iii) the
Mortgages, including without limitation this
Mortgage, (iv) the Debt Service Reserve Agreement, (v) the
Capital Improvement Reserve Agreements,
(vi) the Security Agreement/ Facilities, (vii) the Security
Agreement/Deposits, (viii) the Escalator
Agreements, (ix) the Environmental Agreements, (x) the Guaranty,
and (xi) any other Loan Document;
(d) Payment of any and all sums or indebtedness now or
hereafter existing and owed to Mortgagee from Mortgagor and/or by
Oasis pursuant to the Loan Documents.
ARTICLE I - Covenants and Warranties.
Mortgagor covenants, warrants and agrees as follows:
1.1 Mortgagor is lawfully seized of the Mortgaged
Property and has the right to encumber it with the lien created
by this Mortgage, which lien is subject only to the Permitted
Exceptions. Mortgagor will defend the title thereto in any action
affecting the rights of the Mortgagee hereunder and pay all costs
of any such action (including, but not limited to, reasonable
attorneys' fees actually incurred), whether or not such action
(a) progresses to judgment, or (I)) is brought by or against
Mortgagee.
1.2 Subject to the terms of Section 5.11 of the Loan
Agreement, Mortgagor will pay or cause to be paid (before they
become delinquent) all taxes and exhibit the receipts therefor to
Mortgagee. The term "taxes" as used in this Section 1.2 shall be
deemed to include all assessments, impositions and other
governmental charges, ordinary or extraordinary, foreseen or
unforeseen, that may be levied, assessed or otherwise become a
lien upon or charge against the Mortgaged Property, or the
interest created therein by this Mortgage. After the occurrence
of an Event of Default and upon written demand by Mortgagee,
Mortgagor will deposit or cause to be deposited monthly with
Mortgagee or its duly authorized agent an amount that will create
a fund sufficient to make each and every payment of taxes in the
future as the same shall become due and payable. Such deposits
shall be received and held by Mortgagee or its agent, in a non-
interest bearing account, unless othenvise required by law, and
applied to the payment of each installment of such taxes as it
becomes due and payable and Mortgagor shall furnish to Mortgagee
or its agent, promptly upon receipt, the tax bills with respect
thereto. If Mortgagor shall have deposited amounts in the
aggregate more than sufficient to pay such taxes, the excess
shall be applied by Mortgagee toward the deposits next required
to be made hereunder or at its election shall be repaid to
Mortgagor. All of Mortgagor's interest in such deposits is hereby
assigned by Mortgagor to Mortgagee, and Mortgagor hereby pledges
to Mortgagee an interest in such deposits, as additional security
for the performance of the obligations secured hereby. Upon
performance in full of all indebtedness secured hereby, any
monthly deposits then held by Mortgagee or its agent shall be
repaid to Mortgagor, or as otherwise may be required by law.
1.3 Mortgagor will also pay or cause to be paid (before
they become delinquent) any and all assessments, water, sewer and
other utility charges and all other charges and encumbrances that
are or may be a lien upon the Mortgaged Property.
1.4 Mortgagor will commit or permit no waste on the
Mortgaged Property and will keep all Improvements now or
hereafter erected on the Premises in a sound condition and in
substantially the same condition as exists on the date of this
Mortgage normal wear and tear and fully-insured casualty
excepted.
1.5 Mortgagor will:
1.5.1 Promptly repair, restore, rebuild, replace or
alter as necessary any portion of the Mortgaged Property that may
be damaged or destroyed by fire or other casualty, or taken by
condemnation, as nearly as possible to the condition such
Improvements were in prior to such damage, destruction or taking,
without regard to the availability or adequacy of insurance
proceeds or condemnation awards; provided, however, Mortgagor's
repair obligations hereunder are contingent upon the Mortgagee's
making the insurance and condemnation proceeds subject to
Mortgagee's control available to Mortgagor as provided herein.
Mortgagor will give Mortgagee prompt notice of damage to such
Improvements or personal property in excess of $25,000.00;
1.5.2 Pay when due all invoices properly payable for labor
and construction materials thereon:
1.5.3 Provide management of the Mortgaged Property reasonably
satisfactory to the Mortgagee;
1.5.4 Not remove or demolish any such Improvements,
and make no change or alteration to such Improvements as would
reduce the value of the Improvements without the prior consent of
Mortgagee, which consent shall not be unreasonably withheld,
delayed or conditioned. Mortgagor further covenants that it will
not make, authorize or permit to be made any structural
alterations, or other significant renovations to the Mortgaged
Property, the estimated cost of which exceeds $100,000.00, except
in such manner and under such terms and conditions as Mortgagee
may reasonably require. No fixtures or personal property shall be
removed from the Mortgaged Property during the course of any work
performed in accordance with this Section 1.5.4 except as
authorized in Section 8.10 hereof, without the prior written
consent of Mortgagee. The provisions of this Section 1.5.4 shall
apply to any change, alteration or addition made or required to
be made by Mortgagor in the course of complying with the
provisions of any other section contained herein; provided,
however, Mortgagee's consent and approval is not required for
alterations required to comply with any of the Requirements or to
meet the Capital Expenditure requirements contained in the Loan
Agreement. Nothing herein shall prohibit Mortgagor from removing
from the Premises obsolete equipment or other personal property
if it is replaced with comparable or better items.
1.6 Mortgagor will continuously operate the Mortgaged
Property or cause the Mortgaged Property to be operated in
material compliance with (a) all applicable laws, ordinances,
rules, regulations and directions of government authorities
having jurisdiction of the Mortgaged Property, and (b) the
requirements of all policies of insurance on the Mortgaged
Property and of the national or local Boards of Fire
Underwriters. Mortgagor will require that the Facility Operator
procure, pay for and maintain all permits, licenses and other
authorizations needed for the operation of the Mortgaged
Property.
1.7 Mortgagor will keep or cause to be kept proper and
separate books of account, in accordance with generally accepted
accounting practice, and make, or cause to be made, full and true
entries of all dealings with transactions of every kind relating
to the Mortgaged Property, which books and records will be open
to inspection by Mortgagee, its agents, accountants and
representatives, at all reasonable times.
1.8 All leases of all or any portion of the Mortgaged
Property hereafter made by Mortgagor, including without
limitation the Facility Lease of the Mortgaged Property between
Mortgagor and Oasis, will be subordinated to the lien created by
this Mortgage, and shall provide that, at the option of
Mortgagee, the tenant thereunder shall attorn to Mortgagee or any
assignee of Mortgagee. Other than leases with residents of the
Mortgaged Property, no lease will be executed by Mortgagor
without prior written approval of Mortgagee. Mortgagor will, from
time to time, promptly upon demand, deliver to the Mortgagee a
true and correct schedule of all such leases then in effect,
showing the name of the tenant, the space occupied, the rental
rate and the expiration date of the term.
ARTICLE II - Insurance.
2.1 Mortgagor will at all times keep the Mortgaged
Property or cause it to be kept insured in accordance with the
terms of the Loan Agreement.
ARTICLE III - Damage By Fire or Other Casualty.
3.1 If by reason of any damage or destruction to the
Mortgaged Property any sums are paid under any insurance policy
mentioned iii or contemplated by Article II hereof, such sums
shall be paid as follows:
3.1 .1 If the aggregate insurance proceeds received by
reason of any single instance of such damage or destruction
shall be $100,000.00 or less, such insurance proceeds shall
be paid over to Mortgagee and Mortgagor jointly or, at the
option of Mortgagee, to Mortgagor alone, to be held as a
trust fund to be used first for the payment of the entire
cost of restoring, repairing, rebuilding or replacing the
damaged or destroyed Mortgaged Property before using the
same for any other purpose; provided, however, that if any
uncured Event of Default shall exist hereunder at the time
such proceeds are so to be paid over, such proceeds shall be
paid over to Mortgagee alone, to be applied in Mortgagee's
discretion to the payment of the indebtedness secured hereby
as it shall become due or the repair of the Mortgaged
Property.
3.1.2 If the aggregate insurance proceeds received
by reason of any single instance of such damage or
destruction shall exceed $100,000.00, such proceeds shall be
paid to Mortgagee alone, to be applied toward reimbursement
of all costs and expenses of Mortgagee in collecting such
proceeds in the event Mortgagee is not able to promptly
collect such proceeds, and then to be released to Mortgagor
for the repair, restoration, rebuilding or replacement of
that part of the Mortgaged Property so damaged or destroyed,
or if an uncured Event of Default exists, at Mortgagee's
sole discretion to the payment of the indebtedness secured
hereby as it shall become due. Mortgagee is authorized (a)
to adjust and compromise such loss without the consent of
Mortgagor, (1,) to collect, receive and receipt for such
proceeds in the name of Mortgagee and Mortgagor, and (c) to
endorse Mortgagor's name upon any draft or check in payment
thereof.
3.1.3 In the event that the insurance proceeds
received pursuant to Section 3.1.2 hereof are to be applied
to the restoration of the Mortgaged Property, such
restoration shall be done, subject to the following
conditions:
(a) Mortgagor shall submit to Mortgagee plans
and specifications and a budget of all costs for such
restoration, which items shall be reasonably
satisfactory to Mortgagee;
(b) at any time and from time to time, to the
extent the estimated cost of completion of such
restoration exceeds then available insurance proceeds
during such restoration, the Mortgagor shall deposit
with Mortgagee the amount of such deficiency or
otherwise demonstrate the availability of funds for
such deficiency within ten (10) days after demand by
Mortgagee;
(c) the deficiency referred to in Section
3.1.3(b) hereof shall be spent on such restoration of
the Mortgaged Property prior to any advance of
insurance proceeds by Mortgagee;
(d) Mortgagee's being satisfied that all
leases with respect to the Mortgaged Property that are
in existence at the time of such damage will be, at the
time of completion of the reconstruction or repair of
the portions damaged, in full force and effect; and
(e) such proceeds shall be disbursed subject
to such other terms and conditions as Mortgagee shall
reasonably require.
3.2 Provided that Mortgagee releases all available
proceeds to Mortgagor, nothing contained in this Article III
shall relieve Mortgagor of its obligations in Section 1.5.1
hereof in the event that no or inadequate proceeds of insurance
are available to defray the cost of such work, except that, on
the occurrence of any fire or other casualty that affects the
Mortgaged Property, Mortgagor shall have the right to pay
Mortgagee the entire principal balance of the Note, together with
all accrued and unpaid interest thereunder to the date of such
payment and all other sums, if any, then due under this Mortgage.
In addition, nothing contained herein shall relieve Mortgagor of
its duty to pay all installments of interest and to make all
other payments called for or required by the Note and this
Mortgage subsequent to the occurrence of any fire or other
casualty.
ARTICLE IV - Condemnation.
4.1 Promptly upon receipt by Mortgagor of notice of the
institution of any proceeding or negotiations for the taking of
the Mortgaged Property, or any part thereof, in condemnation or
by the exercise of the power of eminent domain, Mortgagor shall
give notice thereof to Mortgagee. Mortgagee may appear in any
such proceedings and participate in any such negotiations and may
be represented by counsel. Mortgagor, notwithstanding that
Mortgagee may not be a party to any such proceeding, will
promptly give to Mortgagee copies of all notices, pleadings,
judgments, determinations and other papers received by Mortgagor
in connection therewith. Mortgagor will not enter into any
agreement for the taking of the Mortgaged Property, or any part
thereof, with anyone authorized to acquire the same in
condemnation or by eminent domain unless Mortgagee shall first
have consented in writing thereto.
4.2 In the event of a taking of all or substantially all
of the Mortgaged Property in condemnation or by eminent domain,
the whole of the principal sum and accrued and unpaid interest
evidenced and secured by the Note and this Mortgage, together
with all other amounts, if any, secured hereby, shall forthwith
become due and payable, at the option of Mortgagee, and all
awards paid or payable on account of such taking shall be paid to
Mortgagee. As used in this Section 4.2, a taking of all or
substantially all of the Mortgaged Property shall mean a taking
of so much as leaves a balance that cannot economically be
operated for the purposes for which the same was operated or
intended to be operated prior to such taking.
4.3 In the event of a taking of less than substantially
all of the Mortgaged Property in condemnation or by eminent
domain, or by agreement in lieu thereof, all awards payable as a
result of such taking shall forthwith be paid to Mortgagee, and
the proceeds of such awards shall be applied first towards the
repair or restoration of the Mortgaged Property if such repair or
restoration is commercially feasible considering the remaining
indebtedness secured by this Mortgage and the balance towards the
payment of the indebtedness secured hereby. Provided, however,
that if any Event of Default shall exist hereunder at the time
such proceeds are so to be paid over, such proceeds shall be paid
over to Mortgagee alone, to be applied to the payment of the
indebtedness secured hereby as it shall become due. In the event
such proceeds are released, as aforesaid, to repair, restore and
alter the Mortgaged Property to the extent required as a result
of such taking, the proceeds of such taking shall be disbursed in
accordance with and subject to the provisions of Section 3.1.3
hereof.
ARTICLE V: RENTS AND LEASES
5.01 Assignment of Rents . Mortgagor hereby authorizes
Mortgagee or Mortgagee's agents to collect the Rents and hereby
directs each tenant of the Premises to pay the Rents to Mortgagee
or Mortgagee's agents; provided, however, that prior to the
occurrence and absent the continuation of an Event of Default
under this Mortgage, Mortgagor shall collect and receive all
Rents as licensee for the benefit of Mortgagee, and Mortgagor
shall apply the Rents so collected to the amount then due and
payable under this Mortgage, so long as no Event of Default has
occurred and is continuing, to the account of Mortgagor, it being
intended by Mortgagor and Mortgagee that this assignment of Rents
constitutes an absolute assignment and not an assignment for
additional security only. Upon the occurrence and during the
continuation of an Event of Default and without the necessity of
Mortgagee entering upon and taking and maintaining full control
of the Premises in person, by agent or by a receiver, Mortgagee
shall immediately be entitled to possession of all Rents as the
same become due and payable, including but not limited to, Rents
then due and unpaid, and all such Rents shall immediately upon
delivery be held by Mortgagor as licensee for the benefit of
Mortgagee only. Mortgagor agrees that during the continuation of
an Event of Default, each tenant of the Premises shall pay such
Rents to Mortgagee or Mortgagee's agent on Mortgagee's written
demand to each tenant therefor, delivered to each tenant
personally or by mail, without any liability on the part of said
tenant to inquire further as to the existence of an Event of
Default. Mortgagor hereby covenants that Mortgagor has not
executed any prior assignment of Rents, that Mortgagor has not
performed, and will not perform any acts that would prevent
Mortgagee from exercising its rights under this Article V .
Mortgagor covenants that Mortgagor will not hereafter collect or
accept payment of any Rents except for the following: (a)
payments of Rents for a period not more than one month prior to
the due dates of such Rents;(b) payment of Rents in arrears; and
(c) payments of security deposits for performance of any lessee's
or other obligor's covenants under any Lease in usual and
customary amounts. Mortgagor further covenants that Mortgagor
will execute and deliver to Mortgagee such further assignments of
Rents as Mortgagee may from time to time request.
5.02 Compliance with Leases. Mortgagor shall comply with
all Leases and shall notify Mortgagee if Mortgagor is unable to
do so or determines that it will be unable to do so for any
significant terms. Mortgagee may do whatever it determines is
necessary to insure that all Leases continue in effect whenever
Mortgagee determines that Mortgagor is or may be unable to
perform any significant term of the Leases.
5.03 Modification of Leases. etc. . Mortgagor shall not
change the material terms of any Lease and shall not reduce any
Rent without the prior written consent of Mortgagee. Mortgagor
shall not change the terms of any security interests or
guarantees securing or guaranteeing the payment of Rent to
Mortgagor.
5.04 No Delegation of Mortgagor's Duties and Indemnity .
Mortgagor does not hereby delegate to Mortgagee Mortgagor's
duties under the Leases and Mortgagee shall not be obligated to
discharge such duties. Mortgagor shall indemnify Mortgagee and
hold it harmless from all claims, regardless of merit, in any way
arising out of the Leases and the assignment to Mortgagee of the
Leases and Rents and any expenses related to such claims,
including without limitation attorneys' fees except claims based
upon the gross negligence or willful misconduct of Mortgagee
after Mortgagee takes possession of the Premises. Mortgagor shall
reimburse Mortgagee for any claims paid or expenses incurred by
Mortgagee which fall within the preceding indemnity immediately
upon demand.
5.05 Subordination of Leases. All Leases (including
without limitation the Facility Lease of the Mortgage Property,
between Mortgagor and Mortgagee) and the rights of tenants
thereunder shall be subordinate to the lien of this Mortgage and
to all terms, conditions and provisions hereof and to any
renewal, consolidation, extension, modification or replacement
hereof, and every Lease shall provide for such subordination
therein.
5.06 Attornent. The tenant of any Lease shall attorn to
anyone, including Mortgagee, who acquires the lessor's interest
in the Lease and the Premises ("Purchaser"), whether by
foreclosure sale or otherwise. The tenant's attomment shall be
effective immediately upon the Purchaser's succession to the
lessor's interest and the Lease shall continue in effect between
Purchaser, as lessor, and the tenant without any further act of
Purchaser, Mortgagee or the tenant. Purchaser shall have no
liability for any act, omission or obligation of the previous
lessor. Every Lease shall provide for such attomment therein.
ARTICLE VI- Default Provisions.
6.1 The occurrence of an Event of Default under the Loan
Agreement shall constitute an " Event of Default" under this
Mortgage.
ARTICLE VII - Remedies Upon Default.
7.1 Upon the occurrence of any Event of Default
hereunder, Mortgagee, at its option, without presentment, demand,
protest or notice of any kind, may declare the indebtedness
evidenced by the Note and the other Obligations (as defined in
the Loan Agreement) secured by this Mortgage immediately due and
payable. Mortgagee, however, need not, and is not obligated to,
declare said indebtedness due as a condition precedent to
exercising its rights and remedies as set forth herein.
7.2 Upon the occurrence of any Event of Default
hereunder:
7.2.1 Mortgagee, at its option, without obligation
to do so, without notice to, or demand on, Mortgagor and
without releasing Mortgagor from any liability under the
Note, this Mortgage or any other Loan Document, may make any
payment or perform any act that Mortgagor is obligated to
pay or do under the terms of this Mortgage or any other Loan
Document.
7.2.2 In exercising any of the rights set forth
under Section 7.2.1 hereof, Mortgagee may incur any
liability and expend whatever amounts it may deem necessary.
All such amounts, without notice or demand, shall be
immediately due and payable to Mortgagee by Mortgagor with
interest at the Default Rate and shall be secured hereby;
7.2.3 If Mortgagee shall pay or discharge any lien,
rents or claim on the Mortgaged Property, or pay any del
inquent tax, assessment or similar charge, Mortgagee shall
be subrogated to the rights of the holder of such lien,
rents or claim or to the rights of such taxing authority.
7.3 Upon the occurrence of any Event of Default
hereunder, Mortgagee, at its option, without notice, without any
liability to Mortgagor, to the extent permitted by law and
without regard to the adequacy of the security for said debt,
may:
7.3.1 Enter upon and take possession of the
Mortgaged Property (with or without bringing any action or
proceeding in court); or
7.3.2 Demand and receive payment of all rents,
benefits and profits of the Mortgaged Property, including
those past due and unpaid (whether or not Mortgagee has
taken possession of the Mortgaged Property); or
7.3.3 Have a receiver immediately appointed for the
Mortgaged Property and the earnings, revenues, rents,
issues, profits and other income thereof and therefrom, with
all such powers as the court making such appointment shall
confer.
7.4 If Mortgagee enters upon and takes possession of the
Mortgaged Property as provided in Section 7.3 hereof, Mortgagee
may operate and manage the Mortgaged Property and perform any
acts that Mortgagee, in its sole discretion, deems necessary or
desirable to protect and preserve the marketability, rentability,
increase the income or conserve the value of the Mortgaged
Property. Mortgagee shall have no liability for any action or
inaction while in possession of the Mortgaged Property so long as
such action or inaction is taken or refrained from being taken in
good faith.
7.5 Upon the occurrence of an Event of Default
hereunder:
7.5.1 Mortgagee is irrevocably appointed the agent
and attorney-in-fact of Mortgagor, which appointment is
hereby coupled with an interest, in its name and stead and
on its behalf, for the purposes of effectuating any sale for
the enforcement of this Mortgage, whether under the power of
sale hereby given or pursuant to judicial proceedings or
otherwise, to execute and deliver all such deeds,
conveyances, bills of sale, assignments, transfers and other
instruments as Mortgagee may consider necessary or
appropriate, and to substitute one or more persons with like
power, Mortgagor hereby ratifying and confirming all that
Mortgagee, or such substitute or substitutes, shall lawfully
do by virtue hereof, provided however Mortgagee will give
Mortgager
seven (7) days notice prior to exercise of said power of
attorney. In addition, if so requested by Mortgagee or by
any purchaser, Mortgagor shall ratify and confirm any such
sale by executing and delivering to Mortgagee or to such
purchaser or purchasers all such proper deeds, conveyances,
assignments, instruments of transfer and releases as may be
designated in any such request.
7.5.2 This Mortgage is upon the STATUTORY CONDITION
and upon the further condition that all covenants and
agreements of Mortgagor contained herein, in the Loan
Agreement, the Note and the other Loan Documents, shall be
kept and fully performed, for any breach of which Mortgagee
shall have the STATUTORY POWER OF SALE.
7.6 Acceptance by Mortgagee of any payment in an amount
less than the amount then due on the indebtedness secured hereby
shall be deemed an acceptance on account only and the failure to
pay the entire amount then due shall be and continue to be an
Event of Default; at any time thereafter and until the entire
amount then due on said indebtedness has been paid, Mortgagee
shall be entitled to exercise all rights conferred upon Mortgagee
in this Mortgage upon the occurrence of an Event of Default.
7.7 No remedy herein conferred upon Mortgagee shall be
exclusive of any other remedy herein or by law or equity provided
or permitted, but such shall be cumulative and in addition to
every other remedy given herein or now or hereafter existing at
law or equity.
7.8 The exercise of any option in this Mortgage by
Mortgagee shall not be deemed a waiver of its rights to exercise
any other option; and the filing of a suit for collection of the
Note and foreclosure of this Mortgage as a mortgage or for any
other default hereunder shall not preclude sale pursuant to the
power of sale contained in this Mortgage after a dismissal of the
suit. No provision hereof shall be deemed to release Mortgagor's
obligation to pay the interest, principal and other sums and
charges secured hereby until such time as all thereof have been
paid to the Mortgagee in full.
7.9 If foreclosure should be commenced by Mortgagee, at
any time before the sale of the Mortgaged Property, Mortgagee may
abandon such sale and may at any time or times thereafter again
commence such sale, or Mortgagee may xxx for foreclosure of this
Mortgage in the courts; if Mortgagee should xxx for such
foreclosure, it may at any time before entry of final judgment
dismiss the suit and sell the Mortgaged Property pursuant to the
power of sale contained herein.
7.10 At any foreclosure sale, whether pursuant to the
power of sale contained in this Mortgage, or pursuant to the
judgment of a court, all of the Mortgaged Property at the option
of Mortgagee and without notice to Mortgagor, may be sold as a
whole and it shall not be necessary to have said personal
property present at the place of sale. The recitals in the xxxx
of sale to any purchaser at such sale shall be full and
conclusive evidence of the truth of the matters stated therein,
and all prerequisites to such sale shall be presumed to have been
performed and such sale and xxxx of sale shall be conclusive
against Mortgagor.
7.11 Mortgagor agrees, to the extent that it may
lawfully so agree, that if an Event of Default shall occur
hereunder, neither Mortgagor nor anyone claiming through or under
Mortgagor shall or will set Lip, seek or claim to take advantage
of any appraisement, valuation, redemption, moratorium or
marshalling laws now or hereafter in force in the locality where
the property subject to the lien of this Mortgage may be
situated, in order to prevent or hinder the enforcement or
foreclosure of this Mortgage,
or the absolute sale of the Mortgaged Property, or the final or
absolute putting into possession thereof, immediately after such
sale, of the purchaser thereof, and Mortgagor for itself and its
successors and assigns hereby waives, to the full extent that it
may lawfully do so, the benefit of all such laws and any and all
right to have the estates comprising the security intended to be
created hereby marshalled upon any foreclosure of the lien hereof
and agrees that the Mortgaged Property may be sold as an
entirety.
7.12 Mortgagor, to the extent that it may lawfully do
so, hereby submits to the jurisdiction of the courts of the
Commonwealth of Massachusetts and the United States District
Court for the District of Massachusetts, as well as to the
jurisdiction of all courts from which an appeal may be taken from
the aforesaid courts, for the purpose of any suit, action or
other proceeding arising out of the breach by Mortgagor of any of
obligations under or with respect to the Note or this Mortgage,
and expressly waives any and all objections it may have as to
venue in any of such courts.
ARTICLE VIII- Miscellaneous Provisions.
8.1 Without affecting the liability of Mortgagor, or any
other person (except any person expressly released in writing),
for payment of the debt secured hereby or for the performance of
any obligations secured by this Mortgage, and without affecting
the lien or other rights of Mortgagee with respect to any
Mortgaged Property not expressly released in writing, Mortgagee
at any time, and from time to time, either before or after
maturity of the Note, and without notice or consent, may:
8.1.1 Release any person liable for payment of the
indebtedness secured hereby or for the performance of any
obligation secured hereby;
8.1.2 Make any agreement extending the time, or
otherwise altering the terms of payment of the indebtedness
secured hereby, or modifying or waiving any obligation
secured hereby, or subordinating, modifying or otherwise
dealing with the lien securing payment of the indebtedness
secured hereby;
8.1.3 Exercise or refrain from exercising or waive
any right Mortgagee may have;
8.1.4 Accept additional security of any kind for
the indebtedness secured hereby; and
8.1.5 Release or otherwise deal with any property,
real or personal, securing the indebtedness secured hereby,
including all or any part of the Mortgaged Property.
8.2 In the event that Mortgagor conveys its interest in
the Mortgaged Property to parties not appearing in this Mortgage
(without implying any right of Mortgagor to do so without
Mortgagee's written consent), Mortgagee may, without notice to
Mortgagor, deal with such successor or successors in interest
with reference to this Mortgage and the Note secured hereby,
either by way of forbearance on the part of Mortgagee or
extension of the time of payment of the debt or any sum hereby
secured, without in any way modifying or affecting the conveyance
under this Mortgage or the original liability of Mortgagor or any
other party on the Note secured hereby, either in whole or in
part.
8.3 All payments on the debt and advancements, if any,
hereby secured shall be applied, first to advancements, if any,
in the order of maturity, and second, to the payment of the
indebtedness evidenced by the Note hereinabove described and
secured hereby and other sums owed under the terms of the Loan
Agreement and the other Loan Documents in such manner as
Mortgagee shall deem
appropriate. Proceeds from foreclosure sales and insurance
proceeds or condemnation awards shall be applied in the same
manner after payment of all costs and expenses of sales,
including reasonable attorney's and auctioneer's fees actually
incurred.
8.4 At any time and from time to time until payment of
the indebtedness secured hereby and upon request of Mortgagee,
Mortgagor will promptly execute and deliver to the Mortgagee such
additional instruments as may be reasonably required to further
evidence the lien of this Mortgage and further to protect the
security position of this Mortgagee with respect to the property
subject to this Mortgage.
8.5 In the event of any sale of the Mortgaged Property
under the provisions hereof Mortgagor shall forthwith surrender
possession thereof to the purchaser. Upon failure to do so,
Mortgagor shall thereupon be a tenant at sufferance of such
purchaser, and upon its failure to surrender possession of the
Mortgaged Property upon demand, such purchaser, his heirs or
assigns shall be entitled to institute and maintain an
appropriate action for possession of the Mortgaged Property.
8.6 Upon performance in full of the obligations secured
hereby, this Mortgage shall become null and void and shall be
released by Mortgagee at Mortgagor's expense.
8.7 In case any one or more of the provisions contained
in the Note or in this Mortgage shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision hereof or thereof, but each shall be construed as
if such invalid, illegal or unenforceable provision had never
been included.
8.8 All notices, requests, demands, consents or other
communications given hereunder or in connection herewith shall be
in writing and shall be sent as provided in the Loan Agreement.
8.9 Mortgagee and its agents may enter and inspect the
Mortgaged Property during usual business hours after reasonable
prior notice.
8.10 It is the intent of the parties hereto that this
Mortgage shall constitute a security agreement within the meaning
of the Code with respect to all fixtures and personal property
above referred to and all replacements thereof, substitutions
therefor or additions thereto (said property being sometimes
hereinafter referred to as the "Personalty"), and that a security
interest shall attach thereto for the benefit of Mortgagee to
secure the indebtedness evidenced by the Note and secured by this
Mortgage, and all other sums and charges that may become due
hereunder or thereunder. Mortgagor hereby authorizes Mortgagee to
file financing and continuation statements with respect to the
Personalty without the signature of Mortgagor whenever lawful.
Upon the occurrence and during the continuation of an Event of
Default and to the extent permitted by law, Mortgagee shall have
the option of proceeding as to both real and personal property in
accordance with its rights and remedies in respect of the real
property comprising the Mortgaged Property, in which event the
default provisions of the Code shall not apply. The parties agree
that in the event Mortgagee elects to proceed with respect to the
Personalty separately from the real property, five (5) days'
notice of the sale of the Personalty shall be reasonable notice.
Mortgagor agrees that, without the written consent of Mortgagee,
Mortgagor will not remove or permit to be removed from the
Mortgaged Property any of the Personalty unless the same is
immediately replaced with unencumbered fixtures or articles of
personal property, as the case may be, of a quality and value
equal or superior to those which they replace. All such
replacements, renewals and additions shall become and be
immediately subject to the security interest of this Mortgage and
be covered hereby.
Mortgager shall, from time to time, on request of Mortgagee,
deliver an inventory of the Personalty in reasonable detail,
including an itemization of all items leased to Mortgagor or
subject to conditional xxxx iof sale, security agreement or other
title retention agreement.
8.11 Mortgagor, to the extent reasonably within its control,
will preserve and renew all rights of way, easemnets, grants,
priveleges, licenses and franchises reasonably necessary for the
use of the Mortgaged Property from time to time and will not,
without the prior consent of the Mortgagee initiate, join in or
consent to any private or restrictive covenant or other public
or private restriction as the use of the Motgaged Property.
Mortgager shall, however, comply with all restrictive covenants
that may at any time affect the Mortgaged Property, zoning
ordinances and other public or private restrictions as to the use
of the Mortgaged Property.
8.12 If at any time any governmental body shall impose a
stamp, documentary or other similar tax on the Note, this
Mortgage, the indebtedness secured hereby or the income generated
therefrom, or any modification, amendment, extension or
consolidation of either thereof, Mortgagor will pay the same
promptly after demand by Mortgagee, but in any event prior to the
due date thereof, and furnish evidence of such payment to
Mortgagee.
8.13 This Mortgage shall insure and bind the successors and
assigns of the parties hereto, and shall be so construed that
whenever applicable with reference to any of the parties hereto,
the use of the sungular number shall include the plural number,
the use of the plural number shall include the singular number,
the use of the masculine gender shall include the feminine
gender, and shall likewise be so construed as applicable to and
including a partneship or partneerships, corporation or
corporations or any other entity that may be a part or parties
hereto. This Mortgage may not be waived, changed or discharges
orally, but only in xxx greement in writing signed by the party
against whom any waiver, charge or discharge is sought.
8.14 It is understood and agreed that the validity,
construction and interpretation of this Mortgage will be in
accordance with the laws of the State of Massachusetts.
IN WITNESS WHEREOF, Mortgagor has duly caused this Mortgage
to be executed on ______________, 1997 to be effective as of the
day and year indicated above.
OHI REALTY LIMITED PARTNERSHIP I,
a Massachusetts limited partnership
By: Iatros Health Network, Inc.,
General Partner
By:_______________________
Title:____________________
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF ___________________ ____________________, 1997
Then personally appeared before me the above named
_______________, the _______________________of latros Health
Network, Inc., the general partner of
OHI REALTY LIMITED PARTNERSHIP I, a Massachusetts limited
partnership, and acknowledged the foregoing instrument to be
his/her free act and deed and the free act and deed of latros
Health Network, Inc., as general partner of OHI Realty Limited
Partnership I as aforesaid.
__________________________
Notary Public
My Commission Expires:
EXHIBIT A
Property Description
Parcel 1: A certain parcel of land together with the
buildings thereon, situated on Xxxx Street, Taunton, Bristol
County, Commonwealth of Massachusetts, being shown as Lot No.2 on
a Plan entitled "Plan of Land belonging to Xxxxx X. Xxxxxxxxx
Estate Taunton, Mass., made by Xxxx X Xxxxxxx, dated October
1, 1947" recorded with said Registry of Deeds in Plan Book 40,
Plan 68. Excepting therefrom, a certain parcel of land,
containing 8.18 acres, as shown on a plan entitled, "Property in
Taunton, Mass., owned by Long Lane Company, Scale: 1 inch = 40
feet, dated May, 1972. Bristol Land Surveyors Taunton" recorded
with said Registry of Deeds in Plan Book 138, Page 69. The
subject premises are described on said Plan Book 138, Plan 69, as
"Long Lane Company," and as more particularly described in deed
recorded with said Registry of Deeds in Book 1727, Page 1110, and
are more particularly described as follows:
Beginning at a point on the north side of Xxxx Street that
is S 78 -07'-53" W, 188.49 feet from a Mass. Highway Bound at
station 34+95;
thence S 78 -07'-53" W, 131.55 feet to a Mass. Highway bound and
by Xxxx Street;
thence S 81 -33'-58" W, 72.05 feet by Xxxx Street;
thence N 30 -12'-10" W, 322.56 feet by land now or formerly of X'Xxxxx;
thence N 71 -18'-00" E, 273.62 feet by Parcel 2;
thence S 17 -24'-00" E, 344.69 feet by Parcel 2 to the point of
beginning. Containing 78,349 square feet.
Parcel 2: A certain parcel of land together with the buildings thereon,
situated on Xxxx Street, Taunton, Bristol County, Commonwealth of
Massachusetts, containing 8.18 acres, as shown on a Plan
entitled "Property in Taunton, Mass., owned by Long Lane Company,
Scale 1 inch = 40 feet, dated May, 1972. Bristol Land Surveyors,
Taunton" recorded with said Registry of Deeds in Plan Book 138,
Page 69, and as more particularly described in deed recorded with
said Registry of Deeds in Book 2165, Page 192, and more particularly
described as follows:
Beginning at a point on the north side of Xxxx Street that
is S 78 -07'-53" W, 88.49 feet from a Mass. Highway Bound at
station 34+95;
thence S 78 -07' -53" W, 100.00 feet by Xxxx Street;
thence N 17 -24' -00" W, 344.69 feet by Parcel 1;
thence S 71 -18' -00" W, 273.62 feet by Parcel 1;
thence S 79 -29' -10" W, 134.96 feet by land now or formerly of X'Xxxxx;
thence N 28 -4O' -30" W, 385.71 feet by land now or formerly of South
Bay Corporation;
thence N 15 -27' -00" E, 254.48 feet by land now or formerly of
Penn Central Railroad Co.;
thence N 65 -50' -30" E, 360.00 feet by land now or formerly of the
City of Taunton;
thence S 29 -05' -00" E, 642.61 feet by lands now or formerly of
Gebelien and Xxxx;
thence S 55 -49' -00" W, 45.00 feet by land now or formerly of Xxxxxx;
thence S 17 -24' -00" E, 356.64 feet by said Xxxxxx to point of
beginning. Containing 354,063 square feet.
EXHIBIT B
Permitted Exceptions
1. Taxes for the year 1997 to the extent they are due and
payable. Subsequent taxes are a lien but not yet due and
payable.
2. Sewer connection shown on Plan recorded in Plan Book 138,
Plan 69.
