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________________________________________________________________________________
________________________________________________________________________________
MORTGAGE AND SECURITY AGREEMENT
Dated as of March 31, 1990
FROM
HAVENWYCK HOSPITAL, INC.
(the "Mortgagor")
TO
THE CITIZENS AND SOUTHERN NATIONAL BANK,
a national banking association
and
XXXXX X. XXXXX
(the "Mortgagee")
________________________________________________________________________________
________________________________________________________________________________
This Instrument was
prepared by and when
recorded return to:
(Auburn Hills, Michigan) _________________________
Xxxxxxx X. XxXxx
Xxxxxxx and Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
TABLE OF CONTENTS
Section Page
1. DEFINITIONS............................................................. 10
2. GENERAL COVENANTS AND WARRANTIES........................................ 14
2.1 Note Agreements and Indenture Covenants................... 14
2.2 Ownership of Mortgaged Property........................... 14
2.3 Further Assurances........................................ 15
2.4 Payment of Principal and Interest......................... 15
2.5 Maintenance of Mortgaged Property, Other
Liens, Compliance with Laws, etc.......................... 15
2.6 Insurance................................................. 17
2.7 Payment of Taxes and Other Charges........................ 19
2.8 Advances.................................................. 20
2.9 Recordation............................................... 20
2.10 After-Acquired Property................................... 21
2.11 Priority of this Deed of Trust; Future
Advances; Extensions, Modifications, and
Xxxxxxxx.................................................. 21
3. POSSESSION, USE AND RELEASE OF PROPERTY................................. 21
3.1 Possession by Mortgagor; Dispositions Without
Release................................................... 21
3.2 Eminent Domain............................................ 23
3.3 Purchaser Protected....................................... 24
3.4 Release Of Mortgaged Property - Mortgagee
Consent................................................... 24
4. APPLICATION OF INSURANCE AND CERTAIN OTHER
MONEYS RECEIVED BY THE MORTGAGEE........................ 24
4.1 Insurance Proceeds and Condemnation Awards................ 24
4.2 Other Proceeds............................................ 27
5. DEFAULTS AND REMEDIES THEREFOR.......................................... 27
5.1 Events of Default......................................... 27
5.2 Remedies.................................................. 27
5.3 Application of Proceeds................................... 30
5.4 Waiver of Extension, Appraisement and Stay
Laws...................................................... 30
5.5 Waste..................................................... 31
5.6 Effect of Discontinuance of Proceedings................... 31
5.7 Delay or Omission Not a Waiver............................ 32
6. MISCELLANEOUS........................................................... 32
6.1 Successors and Assigns.................................... 32
6.2 Severability.............................................. 32
6.3 Addresses for Notices..................................... 32
6.4 Headings and Table of Contents............................ 33
6.5 Release of Mortgage....................................... 33
6.6 Counterparts.............................................. 33
6.7 GOVERNING LAW............................................. 33
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ATTACHMENTS TO MORTGAGE:
Annex A - Legal Description of Real Property
Annex B - Excluded Property
Schedule I - Purchasers
Schedule II - Assigned Agreements
Schedule III - Pledged Shares
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Table of Contents
Section Page
Parties...................................................................... 1
Granting Clauses............................................................. 2
1. DEFINITIONS.............................................................. 10
2. GENERAL COVENANTS AND WARRANTIES......................................... 14
2.1 Note Agreements and Indenture Covenants.................... 14
2.2 Ownership of Mortgaged Property............................ 14
2.3 Further Assurances......................................... 15
2.4 Payment of Principal and Interest.......................... 15
2.5 Maintenance of Mortgaged Property, Other
Liens, Compliance with Laws, etc........................... 15
2.6 Insurance.................................................. 17
2.7 Payment of Taxes and Other Charges......................... 19
2.8 Advances................................................... 20
2.9 Recordation................................................ 20
2.10 After-Acquired Property.................................... 21
2.11 Priority of this Deed of Trust; Future
Advances; Extensions, Modifications, and
Xxxxxxxx................................................... 21
3. POSSESSION, USE AND RELEASE OF PROPERTY.................................. 21
3.1 Possession by Mortgagor; Dispositions Without
Release.................................................... 21
3.2 Eminent Domain............................................. 23
3.3 Purchaser Protected........................................ 24
3.4 Release Of Mortgaged Property - Mortgagee
Consent.................................................... 24
4. APPLICATION OF INSURANCE AND CERTAIN OTHER
MONEYS RECEIVED BY THE MORTGAGEE......................... 24
4.1 Insurance Proceeds and Condemnation Awards................. 24
4.2 Other Proceeds............................................. 27
5. DEFAULTS AND REMEDIES THEREFOR........................................... 27
5.1 Events of Default.......................................... 27
5.2 Remedies................................................... 27
5.3 Application of Proceeds.................................... 30
5.4 Waiver of Extension, Appraisement and Stay
Laws....................................................... 30
5.5 Waste...................................................... 31
5.6 Effect of Discontinuance of Proceedings.................... 31
5.7 Delay or Omission Not a Waiver............................. 32
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Section Page
6. MISCELLANEOUS............................................................ 32
6.1 Successors and Assigns..................................... 32
6.2 Severability............................................... 32
6.3 Addresses for Notices...................................... 32
6.4 Headings and Table of Contents............................. 33
6.5 Release of Mortgage........................................ 33
6.6 Counterparts............................................... 33
6.7 GOVERNING LAW.............................................. 33
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THE MORTGAGE AND SECURITY AGREEMENT dated as of March 31, 1990 (the
"Mortgage") from HAVENWYCK HOSPITAL, INC., a Michigan corporation (the
"Mortgagor"), having its principal office at 0000 Xxxxxxxxxx Xxxxx, Xxxxxx
Xxxxx, Xxxxxxxx 00000 to The Citizens and Southern National Bank, a national
banking association, whose post office address is 00 Xxxxx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000, Attention: Corporate Trust Department and Xxxxx X. Xxxxx
(the "Individual Trustee") whose post office address is 00 Xxxxx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000, as Trustees (the Trustee and the Individual Trustee
being hereinafter collectively referred to as the "Mortgagee").
R E C I T A L S:
A. The Mortgagor together with the other Obligors have entered into
that certain Trust Indenture dated as of March 31, 1990 (the "Indenture") with
The Citizens and Southern National Bank, and Xxxxx X. Xxxxx, as Trustees,
pursuant to which the Obligors provide for, among other things, the creation and
securing of the full and prompt payment of all amounts due with respect there to
of the 11.6% Senior Secured Notes of the Obligors due March 31, 2000 in an
aggregate principal amount of $56,500,000 (the "Senior Secured Notes") and the
15.6% Subordinated Secured Notes, of the Obligors due March 31, 2000 in an
aggregate principal amount of $3,000,000 (the "Subordinated Secured Notes")
which Senior Secured Notes and Subordinated Secured Notes (hereinafter
collectively referred to as the "Notes") constitute the joint and several
obligation of the Obligors and are further described in the Indenture. the
holders from time to time of the Notes are hereinafter collectively referred to
as the "Noteholders". Unless herein otherwise defined, all capitalized terms
used herein shall have the same meaning as defined in the Indenture.
B. The Obligors require funds to prepay certain indebtedness for
borrowed money of the obligors (which indebtedness was issued by or guaranteed
by each of the Obligors) and to finance capital expenditures, renovations and
construction at facilities owned by certain of the Obligors and in order to
strengthen the financial and operating condition of each and every Obligor,
directly and indirectly, as a result of the enhanced ability of the Company to
provide financial, accounting, consulting and administrative assistance and
services to each other Obligor. In order to provide funds for such purposes, the
Obligors have entered into separate and several Note Purchase Agreements each
dated as of March 31, 1990 (the "Note Agreements") with each of the
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institutional investors (the "Purchasers") named in Schedule I thereto,
providing for the commitment of the Purchasers to purchase the Notes.
C. The Notes are further secured by the Pledge and Security Agreements
dated as of March 31, 1990 (the "Pledges") from the Company, Michigan
Psychiatric Services, Inc., Americare of Galax, Inc. and Bountiful Psychiatric
Hospital, Inc. to the Trustee.
D. The Notes and all principal thereof, premium if any, and interest
thereon and all additional amounts and other sums at any time due and owing
from, and required to be paid by the Obligors under the terms of the Notes, the
Note Agreements, the Indenture, the Pledge, this Mortgage or any other mortgage
or deed of trust executed and delivered by the other Obligors pursuant to the
Indenture are hereinafter sometimes referred to as the "Indebtedness hereby
secured".
E. The Mortgagor is duly authorized under all applicable provisions of
law, its charter and by-laws to issue the Notes, to execute and deliver this
Mortgage and to mortgage, convey and assign the "Mortgaged Property" (as
hereinafter defined) to the Mortgagee as security for the Notes and other
indebtedness hereby secured and all corporate action and all consents, approvals
and other authorizations and all other acts and things necessary to make this
Mortgage the valid, binding and legal instrument for the security of the Notes
have been done and performed.
F. The Purchasers have required as a condition to their purchaser of
the Notes that the Mortgagor execute and deliver this Mortgage as security for
the payment of the Notes.
NOW, THEREFORE, THIS MORTGAGE WITNESSETH: That the Mortgagor, in
consideration of the premises, the purchaser and acceptance of the Notes by the
Purchasers, and of the sum of Ten Dollars received by the Mortgagor from the
Purchasers and the Mortgagee and other good and valuable consideration, receipt
whereof is hereby acknowledged, and in order to strengthen the financial and
operating condition of each and every Obligor directly and indirectly, as a
result of the enhanced ability of the Company to provide financial, accounting,
consulting and administrative assistance and service to each other Obligor, and
in order to secure the payment of the principal of, premium, if any, and
interest on the Notes according to their tenor and effect, and to secure the
payment of all other indebtedness hereby secured and the performance and
observance of all the covenants, agreements and conditions contained in the
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Notes, this Mortgage, the Note Agreements and the Indenture, the Mortgagor does
hereby warrant, mortgage, pledge, assign, bargain, hypothecate, convey, grant,
transfer and set over unto the Mortgagee and its successors in trust and
assigns, and grants to the Mortgagee and its successors in trust and assigns a
security interest with power of sale, in and to all and singular the following
described properties, rights, interest and privileges and all of the Mortgagor's
estate, right, title and interest therein, thereto and thereunder (all of which
properties hereby mortgaged, assigned and pledged or intended so to be are
hereinafter collectively referred to as the "Mortgaged Property"):
GRANTING CLAUSE I
The parcels of land in Oakland County, State of Michigan described in
Annex A attached hereto and made a part hereof, together with the entire
interest of the Mortgagor in and to all buildings, structures, improvements and
appurtenances now standing, or at any time hereafter constructed or placed, upon
such land, including all right, title and interest of the Mortgagor, if any, in
and to all building material, building equipment, and (except as hereinafter set
forth) all fixtures of every kind and nature whatsoever on said land or in any
building, structure or improvement now or hereafter standing on said land which
are classified as fixtures under applicable law and which are used in connection
with the operation, maintenance or protection of said buildings, structure and
improvements as such (including, without limitation, all boilers, air condition,
ventilating, plumbing, heating, lighting and electrical systems and apparatus,
all communications equipment and intercom systems and apparatus, all sprinkler
equipment and apparatus, and all elevators and escalators). All items included
under this Mortgage, and the reversion or reversions, remainder or remainders,
in and to said land, and together with the entire interest of the Mortgagor in
and to all and singular the tenements, hereditaments, easements, rights of way,
rights, privileges and appurtenances to said land, belonging or in anywise
appertaining thereto, including, without limitation, the entire right, title and
interest of the Mortgagor, in, to and under any streets, ways, alleys, gores or
strips of land adjoining said land, and all claims or demands whatsoever of the
Mortgagor either in law or in equity, in possession or expectancy, of, in and to
said and, it being the intention of the parties hereto that, so far as may be
permitted by law, all property of the character xxxxxxxxxxx described, which is
now owned or is hereafter acquired by the Mortgagor and is affixed or attached
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or annexed to said land, shall be and remain or become and constitute a portion
of said land and the security covered by and subject to the lien of this
Mortgage, together with all accessions, parts and appurtenances appertaining or
attached thereto and all substitutions, renewals or replacements of and
additions, improvements, accessions and accumulations to any and all thereof,
and together with all rents, income, revenues, awards, issues and profits
hereof, and the present and continuing right to make claim for, collect, receive
and receipt for any and all of such rents, income, revenues, awards, issues and
profits arising therefrom or in connection therewith (all such property being
hereinafter collectively referred to as the "Land Parcels"). The Mortgaged
Property shall not include any personal property or equipment not owned by the
Mortgagor so long as the same can be removed without causing material damage to
the Mortgaged Property (all such property being hereinafter collectively
referred to as "Excluded Property"). The Excluded Property is described in Annex
B hereto.
GRANTING CLAUSE II
All machinery and equipment in all of its forms, wherever located, now
or hereafter existing (including, but not limited to, all drugs, environmental
monitoring devices, medical supplies, hospital supplies, uniforms, x-ray or
nuclear magnetic resonance devices, imaging devices, laboratory equipment,
Medical equipment, surgical equipment, quality control equipment, motors, test
equipment, computer software, data processing equipment, printers, presses,
computer test equipment, industrial machinery, equipment and fixtures,
transportation equipment, office and other machinery, video or audio
reproduction devices, stretchers, wheel-chairs, furniture, aircraft, ambulances,
rolling stock, motor vehicles, trailers, tractors, trucks, cars, tools, spare
parts and fuel, items employed in the maintenance or repair of any structure of
any grounds, all foodstuffs of any kind, drawings, books, records and equipment
containing books and records or in which books and records are stored), and all
parts thereof and all accessions thereto and replacements thereof, together with
any additional machinery and equipment that may become part of the Mortgaged
Property or located on the Land Parcels and less any Equipment that may be
deleted from the Mortgaged Property or removed from the Land Parcels, all in
accordance with the terms of this Mortgage (any and all such machinery,
equipment, parts and accessions being the "Equipment");
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GRANTING CLAUSE III
All insurance proceeds, judgments, awards of damages, settlements and
other compensation arising out of any damage, destruction, condemnation or
taking of the Mortgaged Property;
All leases and subleases belonging and otherwise appertaining to the
Land Parcels, including all extended terms and all extensions and renewals of
the term of such leases and subleases, together with all right, title and
interest of th Mortgagor as lessor thereunder, including, without limitation,
the present and continuing right to make claim thereunder, including, without
limitation, the present and continuing right to make claim for, collect, receive
and receipt for any and all of the rents, income, revenues, issues and profits
and other sums of money payable or receivable under such leases and subleases,
whether payable as rent or otherwise, to receive and give notices thereunder, to
bring actions and proceedings thereunder or for the enforcement thereof, and to
do any and all things which the Mortgagor or any other lessor is or may become
entitled to do under the leases and subleases; provided that the assignment made
by this Granting Clause IV shall not impair or diminish any obligation of the
Mortgagor under the leases and subleases, nor shall any such obligation be
imposed upon the Mortgagee or the holder of any Note;
GRANTING CLAUSE V
All inventory in all of its forms, wherever located, now or hereafter
existing (including, but not limited to (i) drugs, medical supplies, hospital
supplies, books, uniforms, medical equipment, surgical equipment, video or audio
reproduction devices and foodstuffs of any kind, (ii) goods in which the
Mortgagor has an interest in mass or a joint or other interest or right of any
kind (including, without limitation, goods in which the Mortgagor has an
interest or right as consignee), and (iii) goods that are returned to or
repossessed by the Mortgagor), and all accessions thereto and products thereof
and documents therefor (any and all such inventory, accessions, products and
documents being the "Inventory");
GRANTING CLAUSE VI
All agreements listed on Schedule II, as each of such agreements may
be amended, supplemented or otherwise modified and in effect from time to time
(such agreements as so amended or modified and in effect, being the "Assigned
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Agreements"), including, without limitation, (i) all rights of the Mortgagor to
receive moneys due and to become due under or pursuant to the Assigned
Agreements, (ii) all rights of the Mortgagor to receive proceeds of any
insurance, indemnity, warranty or guaranty with respect to the Assigned
Agreements, (iii) claims of the Mortgagor for damages arising out of or for
breach of or default or misrepresentation under the Assigned Agreements or any
documents, instruments or opinions delivered pursuant thereto, (iv) the right of
the Mortgagor to terminate the Assigned Agreements, to perform thereunder and to
compel performance and otherwise exercise all remedies thereunder, and (v) all
rights to receive per diem or other reimbursements and payments from private
insurance companies, federal or state governmental agencies or any other person
or entity in respect of services provided (in each case, to the extent permitted
by law);
GRANTING CLAUSE VII
All of the following collateral (the "Security Collateral"):
(A) all shares (the "Pledge Shares") of stock described in Schedule
III and issued by the corporations named therein and the certificates
representing the Pledged Shares, and all dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares; and
(B) all additional shares of stock from time to time acquired by the
Mortgagor in any manner, and the certificates representing such additional
shares, and all dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of such additional shares;
GRANTING CLAUSE VIII
To the extent not otherwise covered by Granting Clauses I through VII,
inclusive, all cash, accounts, general intangibles (including, but not limited
to, all: governmental or regulatory permits or certificate s(to the extent
permitted by law); rights to receive per diem or other reimbursements and
payments from private insurance companies, federal or state governmental
agencies or any other person or entity in respect of services provided (in each
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case, to the extent permitted by law); tax refunds; intellectual property rights
of any kind (whether arising under federal, state or foreign law), know how,
trade secrets, engineering plans, computer software, drawings and other
proprietary information (including without limitation any business or
organization plans, reports or projections of any kind, whether or not fixed in
any tangible medium); patents and patent applications; unpatented inventions
(whether or not patentable); copyrights; trademarks, trade names, service marks,
trademark and service mark applications, and all good will to which the
Mortgagor is entitled or of any businesses in which the Mortgagor is engaged,
whether or not such goodwill is associated with or related to any such mark or
application; license agreements relating to any of the foregoing and income
therefrom; and the right to sue for all past, present and future infringements
of the foregoing, contract rights to the extent a security interest or lien may
be granted in or on such contract rights pursuant to the relevant contract
(including, but not limited to, all rights of the Mortgagor to receive moneys
due and to become due under or pursuant to any accounts, general intangibles and
contract rights and all of the rights of the Mortgagor to terminate, and to
perform, compel performance and otherwise exercise all remedies under, such
accounts, general intangibles and contract rights), chattel paper, instruments
and other obligations, in each case, of any kind, now or hereafter existing,
whether or not arising out of or in connection with the sale or lease of goods
or the rendering of services, and all rights now or hereafter existing in and to
all mortgages, security agreements, leases and other contracts securing or
otherwise relating to any such cash, accounts, general intangibles, contract
rights, chattel paper, instruments and obligations (any and all such cash,
accounts, general intangibles, contract rights, chattel paper, instruments and
obligations being the "Receivables", and any and all such mortgages, security
agreements, leases and other contracts being the "Related Contracts"): and
GRANTING CLAUSE IX
All proceeds of any and all of the foregoing Mortgaged Property
including, without limitation, proceeds that constitute property of the types
described in Granting Clauses I through VIII, inclusive, and, to the extent not
otherwise included, (x) all payments under insurance (whether or not the
Mortgagee is the loss payee thereof), or any indemnity, warranty or guaranty,
payable by reason of loss or damage to or otherwise with respect to any of the
foregoing Mortgaged Property, and (y) all cash, wherever located, not included
above in clause (x).
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SUBJECT, HOWEVER, to Permitted Encumbrances, as defined in section 1
hereof;
TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee and its
successors in trust and assigns forever for the purpose of securing performance
of each agreement, covenant and warranty of the Mortgagor contained herein and
payment of the indebtedness hereby secured from time to time issued under and
pursuant to the Note Agreements and the Indenture. It is understood and agreed
that this Mortgage is to secure the obligation of the Mortgagor to repay all
sums due or to become due in respect of the Notes executed and delivered
pursuant to the Note Agreements and the Indenture, including those heretofore
executed and those of even date herewith.
PROVIDED, NEVERTHELESS, and these present are upon the express
condition that if the Mortgagor performs the covenants herein and in the
indenture contained and pays to the Mortgagee, its successors in trust and
assigns, the full amount of all principal of, and premium, if any, and interest
on the Notes and all other indebtedness hereby secured, the estate, right and
interest of the Mortgagee in the Mortgaged Property shall cease and this
Mortgage shall become null and void, but otherwise to remain in full force and
effect.
It is agreed and understood by the parties hereto that:
1. The Notes are to be secured by other mortgages and deeds of trust
of other Obligors on other real estate in the States or Commonwealths of
Michigan, North Carolina, Utah, Arizona and West Virginia. Each and all of
said mortgages and deeds of trust are intended to and shall constitute
security for the entire indebtedness represented by said Notes without
allocation.
2. Any part of the security herein described, and any security
described in any other mortgage or other instrument now or hereafter given
to secure the indebtedness which is secured by this Mortgage, may be
released by the Mortgagee without affecting the lien and security interest
hereof on the remainder or the obligations of the Mortgagor on and in
respect of the Notes and any person acquiring any direct or indirect
interest in the security herein described or in any security described in
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any other mortgage or other instrument now or hereafter given to secure the
indebtedness which is secured by this Mortgage shall take the same subject
to all of the provisions hereof.
3. The Mortgagor for itself and all who may claim through or under it
waives any and all right to have the property and estates comprising the
Mortgaged Property marshalled upon any foreclosure of the lien hereof, or
to have the Mortgaged Property hereunder and the property covered by any
other mortgage or deed of trust securing the Notes marshalled upon any
foreclosure of any of said mortgages or deeds of trust, and agrees that any
court having jurisdiction to foreclose such lien may order the Mortgaged
Property sold as an entirety.
4. Upon the occurrence of an Event of Default hereunder the Mortgagee
has, among other things, the right to foreclose on the Mortgaged Property,
in the manner described by applicable law, and dispose of the same. The
Mortgagee's deed or other instrument of conveyance, transfer of release
(which may be executed by the Mortgagee in its own name or as
attorney-in-fact for the Mortgagor and the Mortgagee is hereby irrevocably
appointed attorney-in-fact for the Mortgagor) shall be effective to convey
and transfer to the grantee an indefeasible title to the property covered
thereby, discharged of all rights of redemption by the Mortgagor or any
person claiming under it, and to bar forever all claims by the Mortgagor or
the said Mortgagee to the property covered thereby and no grantee from the
Mortgagee shall be under any duty to inquire as to the authority of the
Mortgagee to execute the same, or to see the application of the purchase
money.
SECTION 1. DEFINITIONS.
Capitalized terms used in this Mortgage and not defined herein shall
have the meaning provided therefore in the Indenture. In addition to the terms
elsewhere defined in this Mortgage, the following terms shall have the following
meanings for all purposes of this Mortgage:
"Appraised Value" with respect to the Mortgaged Property shall mean
the fair market value on the date of an appraisal of the Mortgaged Property
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as shown by (i) the appraisal thereof furnished to the Purchasers in
accordance with the provisions of Section 7(a)(vi) of the Note Agreements
or Section 10.2(b)(v) or Section 10.2(c)(vi) of the Indenture or (ii) the
appraisal thereof furnished to the Mortgagee in accordance with the
provisions of section 4.2 of the Indenture.
"Cost" shall mean an amount equal to the sum of the following items
capitalizing on the books of the Mortgagor in accordance with generally
accepted accounting principles: (i) the actual construction costs thereof,
including cost of land and buildings, landscaping, on and off site
improvements, architectural, engineering and other professional fees,
interest and taxes during construction and all carrying charges, but
excluding the cost of Excluded Property and (ii) fees and expenses in
connection with the placement, issuance and sale of the Notes including
fees and expenses referred to in Section 8 of the Note Agreements allocated
by the Mortgagor to the Mortgaged Property, the physical survey and title
charges referred to in Section 8(g) of the Note Agreements, the charges for
the environmental audit and appraisal referred to in Section 8(h) and (i)
of the Note Agreements in respect of such Mortgaged Property incurred by
the Mortgagor and debt service expenses, and all closing costs with respect
to the Mortgaged Property.
"Default" shall mean any event or condition, the occurrence of which
would, with the lapse of time or the giving of notice, or both, constitute
an Event of Default.
"Event of Default" shall mean any events specified in section 5
hereof.
"Loan Value" of the Mortgaged Property shall be an amount determined
by multiplying the aggregate unpaid principal amount of the Notes
outstanding immediately prior to the date on which the Loan Value is to be
determined by a fraction the numerator of which is t he Appraised Value of
the Mortgaged Property and the denominator is the Appraised Value of all
property of the Obligors which is then subject to the lien of this Mortgage
and each and every other mortgage and deed of trust delivered to the
Mortgagee under and pursuant to the Note Agreements and the Indenture.
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"Note" shall mean any of, and "Notes" shall mean all of, the Noes then
outstanding under the Note Agreements and the Indenture. The term
"outstanding" when used with reference to Notes shall mean, as of any
particular time, all Notes delivered by the Obligors under the Note
Agreements and the Indenture and secured hereby and by each and every other
mortgage delivered pursuant to the Note Agreements and the Indenture,
except:
(a) Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes for the payment or prepayment of which moneys in the
necessary amount shall have been paid to the Mortgagee, provided, that
if such Notes are to be prepaid prior to the maturity thereof, notice
of such prepayment shall have been given as provided in Section 5.6 of
the Indenture or provision satisfactory to the Trustee shall have been
made for giving such notices; and
(c) Notes in lieu of or in substitution for which other Notes
shall have been authenticated and delivered pursuant to the terms of
Section 2.6 of the Indenture.
"Officers' Certificate" shall mean a certificate signed by the
President and by any one of the following officers of the Mortgagor: Vice
President or the Secretary.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel who shall be satisfactory to the Mortgagee, and who may be counsel
to the Mortgagor.
"Permitted Encumbrances" shall mean:
(a) liens for property taxes and assessments or governmental
charges or levies and liens securing claims or demands of mechanics
and materialmen, provided that payment thereof is not at the time
required by section 2.7;
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(b) Liens of or resulting from any judgment or award, the time
for the appeal or petition for rehearing of which shall not have
expired, or in respect of which the Mortgagor shall at any time in
good faith be prosecuting an appeal or proceeding for a review and in
respect of which a stay of execution pending such appeal or proceeding
for review shall have been secured;
(c) liens, charges, encumbrances and priority claims incidental
to the conduct of business or the ownership of properties and assets
(including warehousemen's and attorneys' liens and statutory
landlords' liens) and deposits, pledges or liens to secure the
performance of bids, tenders or trade contracts, or to secure
statutory obligations, surety or appeal bonds or other liens of like
general nature incurred in the ordinary course of business and not in
connection with the borrowing of money, provided in each case, the
obligation secured is not overdue or, if overdue, is being contested
in good faith by appropriate actions or proceedings;
(d) minor survey exceptions or minor encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and
other similar purposes, or zoning or other restrictions as to the use
of real properties, which are necessary for the conduct of the
activities of the Mortgagor or which customarily exist on properties
of corporations engaged in similar activities and similarly situated
and which do not in any event materially impair their use in the
operation of the business of the Mortgagor;
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(e) mortgages, liens and security interests securing the Notes;
and
(f) leases permitted by the provisions of section 3.1(d).
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization.
SECTION 2. GENERAL COVENANTS AND WARRANTIES.
The Mortgagor covenants, warrants and agrees as follows:
2.1 Note Agreements and Indenture Covenants. Each and all of the
terms, provisions, restrictions, covenants and agreements set forth in the
Notes, the Note Agreements, the Pledges and the Indenture, and in each and every
supplement thereto or amendment thereof which may at any time for form time to
time be executed and delivered by the parties thereto or their successors and
assigns are incorporated herein by reference to the same extent as though each
and all of said terms, provisions, restrictions, covenants and agreements were
fully set out herein and as though any amendment or supplement to the Notes, the
Notes Agreements, the Pledges or the Indenture, as the case may be, were fully
set out in an amendment or supplement to this Mortgage; and the Mortgagor does
hereby covenant and agree well and truly to abide by, perform and be governed
and restricted by each and all of the matters provided for by the Notes, the
Notes Agreements, the Pledges and Indenture and so incorporated herein to the
same extent and with the same force and effect as if each and all of said terms,
provisions, restrictions, covenants and agreement so incorporated herein by
reference were set out and repeated herein at length. Without limiting the
foregoing, the Mortgagor covenants and agrees to pay all taxes, assessments and
governmental charges or levies imposed upon this Mortgage or the Notes or any
other indebtedness secured hereby.
2.2 Ownership of Mortgaged Property. The Mortgagor covenants and
warrants that it has good and marketable title to the Mortgaged Property
hereinbefore conveyed to the Mortgagee free and clear of all liens, charges and
encumbrances whatever except Permitted Encumbrances, and the Mortgagor has full
right, power and authority to convey, transfer and mortgage the same to the
Mortgagee for the uses and purposes in this Mortgage set forth; and the
Mortgagor will warrant and defend the title to the Mortgaged Property against
all claims and demands whatsoever.
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2.3 Further Assurances. The Mortgagor will, at its own expense, do,
execute, acknowledge and deliver all and every further act, deed, conveyance,
transfer and assurance necessary or proper for the better assuring, conveying,
assigning and confirming unto the Mortgagee all of the Mortgaged Property, or
property intended so to be, whether now owned or hereafter acquired.
2.4 Payment of Principal and Interest. The Mortgagor will duly and
punctually pay the principal of, and premium, if any, and interest on all Notes
and all other amounts payable under indebtedness hereby secured according to the
terms thereof.
2.5 Maintenance of Mortgaged Property, Other Liens, Compliance with
Laws, etc. (a) Without limiting the provisions of Section 3.8 of the Indenture
and subject to section 3 hereof, the Mortgagor shall (i) promptly repair,
restore or rebuild any buildings, improvements or Equipment now or hereafter on
the Mortgaged Property which may become damaged or be destroyed, (ii) keep the
Mortgaged Property in good condition and repair, ordinary wear and tear
excepted, without waste, and free from all claims, liens, charges and
encumbrances other than Permitted Encumbrances, (iii) pay when due any
indebtedness which may be secured by a lien or charge on the Mortgaged Property
and upon request exhibit satisfactory evidence of the discharge of such lien to
the Mortgagee, (iv) comply with all requirements of law or municipal ordinances
with respect to the Mortgaged Property and the use thereof, failure to comply
with which would result in any material interference with the use or operation
of the Mortgaged Property by the Mortgagor, (v) not, without the prior written
consent of Mortgagee, (A) initiate or support any zoning reclassification of the
Mortgaged Property, seek any variance under existing zoning ordinances
applicable to the Mortgaged Property or use or permit the use of the Mortgaged
Property in a manner which would result in such use becoming a nonconforming use
under applicable zoning ordinances, (B) modify or amend any of the Permitted
Encumbrances, (C) impose any restrictive covenants or encumbrances upon the
Mortgaged Property, execute or file any subdivision plat affecting the Mortgaged
Property or consent to the annexation of the Mortgaged Property to any
municipality or (D) permit or suffer the Mortgaged Property to be used by the
public or any person in such manner as might make possible a claim of adverse
usage or possession or of any implied dedication or easement, and (vi) make no
material alterations in said Mortgaged Property except as required by law or
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municipal ordinance; provided, however, the Mortgagor may make any alterations
of any kind to the Mortgaged Property if (A) the market value of the Mortgaged
Property would not be impaired; (B) such alterations shall be performed in a
good and a workmanlike manner; and (C) such alterations shall be expeditiously
completed in compliance with all laws, ordinances, orders, rules, regulations
and requirements applicable thereto, including to the extent necessary to
maintain in full force and effect the policies of insurance required by section
2.5 hereof. The Mortgagor shall promptly pay all costs and expenses of each such
addition, alteration, substitution and replacement, discharge all liens filed
against the Mortgaged Property arising out of the same and procure and pay for
all permits and licenses required in connection therewith. The Mortgagor shall
notify the Mortgagee and each holder of the Notes of the filing of any lien
against the Mortgaged Property in an amount greater then $25,000.
(b) The Mortgagor may, at its expense, (i) construct upon the
Mortgaged Property additional buildings, structures and other improvements and
(ii) install, assemble and place upon the Mortgaged property an items of
machinery and equipment used or useful in the Mortgagor's business, in each case
upon compliance with the provisions of paragraph (a) of this section 2.5. All
such buildings, structures and other improvements shall be and remain part of
the Land Parcels and shall be subject to this Mortgage unless such property
shall constitute Excluded Property. Excluded Property shall not be deemed part
of the Mortgaged Property for purposes of condemnation or casualty, and the
Mortgagor may remove the same from the Mortgaged Property at any time prior to
the expiration or earlier termination of this Mortgage, provided that the
Mortgagor, at its expense, shall repair any damage to the Mortgaged Property
resulting form such removal.
(c) The Mortgaged Property is not located in an area identified by the
Secretary of Housing and Urban Development or a successor thereto as an area
having special flood hazards pursuant to the terms of the National Flood
Insurance Act of 1963, or the Flood Disaster Protection Act of 1973, as amended,
or any successor law; or if the Mortgaged Property is located in such an area,
Mortgagor will obtain and maintain insurance against damage or loss by flood on
such basis and in such amounts as shall be required by Mortgagee.
(d) The Mortgagor shall use and operate the Mortgaged Property as a
hospital.
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2.6 Insurance. (a) Insurance Against Loss or Damage. The Mortgagor
will maintain or cause to be maintained with respect to the Mortgaged Property
insurance against loss by fire, windstorm and explosion and with extended
coverage and against such other risks of physical loss as are customarily
insured against, and in such amounts as are customarily carried by companies
owning property of a similar character and similarly located and engaged in a
business similar to that engaged in by the Mortgagor; provided, however, that
the amount of such insurance with respect to the Mortgaged Property shall not at
any time be less than the greater of replacement value or Loan Value thereof.
(b) Insurance Against Public Liability and Property Damage. The
Mortgagor will maintain or cause to be maintained in effect, with insurers
satisfactory to the Mortgagee, insurance policies with respect to the Mortgaged
Property, insuring against liability for loss or damage to the Person or
property of others from such risks and in such amounts as are customarily
carried by companies owning property of a similar character and engaged in a
business similar to that engaged in by the Mortgagor; provided, however, that in
no event shall the insurance maintained in accordance with this paragraph be
less than an aggregate of $25,000,000 for claims arising out of a single
occurrence and not less then $25,000,000 in the aggregate for all claims made in
any policy year. All such insurance shall protect the Mortgagee and the
Mortgagor in respect of risks arising out of the condition, maintenance, use,
ownership or operation of the Mortgaged Property. The Mortgagor will indemnify
the Mortgagee and holders of the Noes from any and all liability imposed against
said Mortgagee and holders of the Notes arising out of the condition,
maintenance, use, ownership or operation of the Mortgaged Property.
(c) The Mortgagor will maintain or cause to be maintained:
(i) all such worker's compensation or similar insurance as may be
required by law;
(ii) use and occupancy (or business interruption) insurance, covering
interruption of the Mortgagor's operations, in whole or in part, by reason
of the total or partial suspension of, or interruption in, the operation of
the Mortgaged Property caused by the damage to or destruction of any part
of the Mortgaged Property, with such exceptions as are customarily imposed
by insurers, in an amount sufficient to comply with the requirements of a
standard 50% gross earnings business interruption form; and
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(iii) maintain liability insurance covering hospital operations,
including malpractice, against claims arising from professional services
performed by the Mortgagor with limits of not less then $20,000,000 with
respect to injuries or deaths arising out of a single occurrence and not
less than $20,000,000 in the aggregate for all claims made against the
Mortgagor in any policy year.
For the purposes of this Section, "policy year" means a period of twelve months
while the insurance coverage in question is in force measured from the effective
date of such coverage or any anniversary of such effective date.
(d) Form of Policies. Any insurance policies carried in accordance
with this section 2.6 shall be written by companies of recognized national
standing authorized to do business in the jurisdiction in which the Mortgaged
Property is located (copies of which will be delivered to the Trustee on the
Closing Date) and shall provide that : (i) the Mortgagee and the holders of the
Notes shall be named as additional insureds, as their interest may appear, (ii)
the Mortgagee's interest shall be insured regardless of any breach or violation
by the Mortgagor of any warranties, declarations or conditions contained in such
policies, (iii) such insurance, as to the interest of the Mortgagee therein,
shall not be invalidated by the use or operation of the Mortgaged Property for
purposes which are not permitted by such policies, (iv) the insurers shall waive
any right of subrogation of the insurers to any set-off or counterclaim or any
other deduction, whether by attachment or otherwise, in respect of any liability
of the Mortgagor, (v) if any premium or installment is not paid when due, or if
such insurance would lapse or be cancelled, terminated or materially changed for
any reason whatsoever, the insurers will promptly notify the Mortgagee and any
such lapse, cancellation, termination or change shall not be effective as to the
Mortgagee for 30 days after receipt of such notice, and (vi) appropriate
certification shall be made to the Mortgagee by each insurer with respect
thereto.
(e) Loss Payee. Provided no Default or Event of Default has occurred
and is continuing, the loss, if any, under any policy pertaining to loss by
reason of damage to or destruction or condemnation of any portion of the
Mortgaged Property shall be adjusted with the insurance companies by the
Mortgagor, subject to the approval of the Mortgagee if the loss exceeds
$100,000. The loss so adjusted shall be paid to the Mortgagee pursuant to said
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loss payable clause. Is said loss is $100,000 or less, then said shall be paid
first to the Mortgagee, and shall be by the Mortgagee paid over immediately to
the Mortgagor for use by the Mortgagor in paying for replacement or rep[air of
or substitutes for the damaged or destroyed property, provided no Default or
Event of Default has occurred and is continuing, in which event any such loss
shall be paid to the Mortgagee.
2.7 Payment of Taxes and Other Charges. The Mortgagor will pay and
discharge, before the same shall become delinquent, together with interest and
penalties thereon, if any, (a) all taxes, assessments (including assessments for
benefits from public works or improvements whenever begun or completed), levies,
fees, water and sewer rents and charges, and all other governmental charges,
general and special, ordinary and extraordinary, and whether or not within the
contemplation of the parties hereto, which are at any time levied upon or
assessed against it or the Mortgaged Property or any part thereof or upon this
Mortgage or the Notes secured thereby, or upon the revenues, rents, issues,
income and profits in respect of the Mortgaged Property, or arising in respect
of the occupancy, use or possession thereof, which failure to pay would result
in the creation of a lien upon the Mortgaged Property or any part thereof, or
upon the revenues, rents, issues, income and profits of the Mortgaged Property
or in the diminution thereof or would result in any material interference with
the use or operation of the Mortgaged Property by the Mortgagor, (b) all
corporate franchise, excise and other taxes, fees and charges assessed, levied
or imposed in respect of its corporate existence or its right to do business in
any state, (c) all income, excess profits, excise, sales, franchise, gross
receipts and other taxes, duties or imposts, whether of a like or different
nature, assessed, levied or imposed by any governmental authority on it or the
Mortgaged Property, or any portion thereof, or upon the revenues, rents, issues,
income and profits of the Mortgaged Property whether or not the failure to pay
any such tax, duty or impost might result in the creation of a lien upon any
asset of the Mortgagor or the Mortgaged Property or any part thereof or upon the
revenues, rents, issues, income and profits of the Mortgaged Property or in the
diminution thereof, and whether or not any such tax, duty or impost is payable
directly by the Mortgagor or is subject to withholding at the source and (d) all
lawful claims and demands of mechanics, laborers, materialmen and others which,
if unpaid, might result in the creation of a lien on the Mortgaged Property or
upon the revenues, rents, issues, income and profits of the Mortgaged Property
19
and, in general, will do or cause to be done everything necessary so that the
lien hereof shall be fully preserved, at the cost of the Mortgagor, without
expense to the Mortgagee.
Nothing in this section 2.7 shall require the payment of any sum which
is required to be paid by the Mortgagor pursuant to this section 2.7 so long as
the Mortgagor shall in good faith contest its obligation so to do by appropriate
proceedings which will prevent the forfeiture or sale of any property of the
Mortgagor or any material interference with the use or operation thereof by the
Mortgagor, and shall set up a reserve, reasonably adequate, in the opinion of
the President or any Vice President of the Mortgagor against any such payment.
2.8 Advances. If the Mortgagor shall fail to comply with the covenants
contained herein or in th Note Agreements or in the Indenture with respect to
the procuring of insurance, the payment of taxes, assessments and other charges,
or the keeping of the Mortgaged Property in repair and free of other liens, the
Mortgagee may make advances to perform the same; and the Mortgagor agrees to
repay all sums so advanced upon demand with interest at a rate equal to the
greater of (i) 13.6% per annum and (ii) the sum of (A) the rate of interest
publicly announced by Xxxxxx Xxxxxxxx Trust Company of New York from time to
time in new York city as its prime rate plus (B) 1% after demand; and all sums
so advanced, with interest, shall be secured hereby in priority to the
indebtedness evidenced by the Notes or any of them; but no such advance shall be
deemed to relieve the Mortgagor from any default hereunder.
2.9 Recordation. The Mortgagor will, at its own expense, cause this
Mortgage, all supplements hereto, and any financing statements and continuation
statements required by law, including the Uniform Commercial Code, in respect
thereof at all times to be kept recorded and filed at its own expense in such
manner and in such places as may be required by law in order to fully preserve
and protect the rights of the Mortgagee hereunder, and will furnish to the
Mortgagee promptly, and in any event within thirty (30) days, after the
execution and delivery of this Mortgage and of each supplement an Opinion of
Counsel stating that in the opinion of such counsel this Mortgage or such
supplement or such financing statement or continuation statement, as the case
may be, has been properly recorded or filed for record so as to make effective
of record the lien intended to be created hereby.
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2.10 After-Acquired Property. Any and all property hereafter acquired
which is of the kind or nature described in the Granting Clauses hereof and is
or intended to become a part thereof, shall ipso facto, and without any further
conveyance, assignment or act on the part of the Mortgagor or the Mortgagee
become and be, subject to the lien of this Mortgage as fully and completely as
though specifically described herein; but nevertheless the Mortgagor shall from
time to time, if requested by the Mortgagee, execute and deliver any and all
such further assurances, conveyances and assignments thereof as the Mortgagee
may reasonably require for the purpose of expressly and specifically subjecting
to the lien of this Mortgage any and all such property.
2.11 Priority of this Deed of Trust; Future Advances; Extensions,
Modifications, and Renewals. Any portion of the indebtedness hereby secured
which is incurred after the execution of this Mortgage pursuant to the Indenture
or any supplemental indenture referencing this Mortgage, or which is evidence by
any instrument stating that the indebtedness hereby secured is secured by this
Mortgage , shall be defined as a Future Advance. This paragraph shall serve as
notice to any subsequent encumbrancer of the Mortgaged Property that the
Mortgagee claims the priority of the lien of this Mortgage for all such Future
Advances, as well as for all other indebtedness hereby secured. This paragraph
shall also be noticed that the Mortgagee reserves the right to modify, extend,
consolidate, and renew the indebtedness hereby secured, or any portions thereof,
and the rates of interest charged thereon, without affecting the priority of the
lien created by this Mortgage.
SECTION 3. POSSESSION, USE AND RELEASE OF PROPERTY.
3.1 Possession by Xxxxxxxxx; Dispositions Without Release. So long as
no Default or Event of Default has occurred and is continuing, the Mortgagor
shall be permitted, subject to the provisions of this Section, to possess, use,
manage, operate and enjoy the Mortgaged Property and to collect, receive, use,
invest and dispose of the rent, issues, profits, and other income from the
Mortgaged Property, with power, in the ordinary course of business, freely and
without hindrance on the part of the Mortgagee, to use, consume and dispose of
any thereof except such as are subject to the lien hereof or intended so to be,
and to deal with, exercise any and all rights under, receive and enforce
performance under, and adjust and settle all matters relating to current
performance of, choses in action, leases and contracts.
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The Mortgagor shall have the right, from time to time if no Default
exists hereunder, without any release from or consent by the Mortgagee,
(a) to sell or otherwise dispose of, free from the lien of this
Mortgage, any Equipment subject to the lien hereof which, in the judgment
of the Mortgagor, may have become obsolete or unfit for use or no longer
useful, necessary or profitable in the conduct of the business of the
Mortgagor not exceeding in value at the date of disposition thereof $50,000
in any single transaction or a total of $100,000 in any calendar year, upon
substituting for the same other Equipment of the same character and of at
least equal value, utility and useful life to the Mortgagor as, and costing
not less than the amount realized from, the property disposed of, which
shall forthwith become, without further action, subject to the lien of this
Mortgage;
(b) to grant rights-of-way and easements over or in respect of any
Mortgaged Property, provided that such grant will not, in the opinion of
the Mortgagor expressed in an Officers' Certificate furnished to th
Mortgagee, impair the usefulness of such property in the conduct of the
Mortgagor's business and will not be prejudicial to the interest of the
holders of the Notes and provided, further, that any cash consideration in
excess of $50,000 received by the Mortgagor upon or in connection with the
granting thereof, forthwith upon its receipt by the Mortgagor, shall be
deposited with the Mortgagee;
(c) to alter, repair, replace, change the location or position of an
add to the Mortgaged Property, provided that no change shall be made in the
location of any such property subject to the lien of this Mortgage which
removes such property into a jurisdiction in which this Mortgage and any
required financing or continuation statement covering security interests in
such property have not been recorded, registered or filed in the manner
required by law to preserve the lien of this indenture on such property or
otherwise impairs the lien hereof; and
(d) to lease to others from time to time offices and related areas
included in the Mortgaged Property, other than any thereof essential to the
22
operations carried on at the Mortgaged Property; provided that such lease
is (i) by its terms expressly made subject to the lien of this Mortgage and
(ii) assigned to the Mortgagee by an instrument in recordable form and
otherwise satisfactory in form and substance to the Mortgagee; and further
provided that the Mortgagor shall not lease all or substantially all of the
Mortgaged Property without the prior written consent of the Required
Holders.
The Mortgagor will deliver to th Mortgagee, on or before July 31 in
each year after the year 1989, (i) an Officers' Certificate setting forth, with
respect to transactions during the preceding calendar year pursuant to section
3.1(a), the aggregate fair value at the date or dates of disposition of, the
aggregate amount realized from, and a general description of, any property
disposed of pursuant to section 3.1(a) (and stating that such property had
become obsolete or unfit for use or no longer useful, necessary or profitable in
the conduct of the business of the Mortgagor) and the aggregate fair value to
the Mortgagor of, the cost of, and a general description of, any property
acquired in substitution for such property sold or disposed of, (ii) such
supplemental mortgages, financing statement or other instruments as may be
necessary for the purpose of effectively subjecting such acquired property to
the lien hereof and any lease assignment of a lease entered into pursuant to
section 3.1(d) and (iii) an Opinion of Counsel that such supplemental mortgages,
financing statements, lease assignments or other instruments have been duly
executed and are sufficient for such purpose or that no such supplemental
mortgages, financing statements, lease assignments or instruments are necessary.
3.2 Eminent Domain. If all or any of the Mortgaged Property shall be
taken by eminent domain or shall be sold in lieu and in reasonable anticipation
of the taking thereof by eminent domain, the Mortgagee may release the property
so taken and shall be fully protected in so doing upon being furnished with:
(a) an Officers' Certificate requesting such release, describing the
property so to be released and stating that such property ahs been taken by
eminent domain or that such sale has been made in lieu of and in reasonable
anticipation of a taking by eminent domain, accompanied by an appropriate
instrument of release;
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(b) an Opinion of Counsel to the effect that such property has been
(i) lawfully taken by exercise of the right of eminent domain or (ii) sold
in lieu and in reasonable anticipation of the taking of such property by
eminent domain and that such property could lawfully have been taken by the
grantee by eminent domain, that the award for such property so taken has
become final or an appeal therefrom is not advisable in the interests of
the Mortgagee or the holders of the Notes and that the execution of such
instrument is appropriate to evidence such release; and
(c) except as otherwise provided in section 4.1, cash equal to such
award to be held and applied by the Mortgagee under the indenture.
3.3 Purchaser Protected. No purchaser in good faith of property
purporting to be released herefrom shall be bound to ascertain the authority of
the Mortgagee or the holders of the Notes to execute a release or to inquire as
to the existence of any conditions herein prescribed for the exercise of such
authority. No purchaser or lessee of any property or rights permitted by this
Article to be sold, leased or otherwise disposed of by the Mortgagor shall be
under any obligation to ascertain or inquire into the authority of the Mortgagor
to make any such sale, lease or other disposition. Any release executed by the
Mortgagee or the holders of the Notes under this Section shall be sufficient for
the purpose of this Mortgage and shall constitute a good and valid release of
the property therein described from the lien hereof.
3.4 Release Of Mortgaged Property - Mortgagee Consent. In addition to
the sales and releases pursuant to section section 3.2 and 3.3 hereof, and, to
the extent and on the terms and upon compliance with the conditions provided for
in any written consent given thereto at any time or form time to time by the
holders of the Notes, the Mortgagor may sell or otherwise dispose of any
Mortgaged Property then subject to the lien of this Mortgage or any mortgage
supplement hereto, and the Mortgagee shall, subject to the terms of the
indenture, release the same from the lien hereof.
SECTION 4. APPLICATION OF INSURANCE AND CERTAIN OTHER MONEYS RECEIVED BY THE
MORTGAGEE.
4.1 Insurance Proceeds and Condemnation Awards. (a) All proceeds of
fire and extended coverage insurance and of condemnation awards covering the
Mortgaged Property equal to or in excess of $100,000 received by the Mortgagee
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under the provisions of this Mortgage and/or the Indenture or any instruments
supplemental hereto or thereto, or under any policy or policies of insurance
covering the Mortgaged Property or any part thereof, shall be held by the
Mortgagee as part of the Mortgaged Property and shall be applied by the
Mortgagee as follows:
(i) If the total amount of any one loss or condemnation or taking, as
the case may be, shall equal or exceed $100,000 and the cost of rebuilding
or restoring the Mortgaged Property (as evidenced by an Officers'
Certificate of the Mortgagor detailing the same) shall be less than the
proceeds of insurance or the award or consideration received on account of
condemnation or other taking of the Mortgaged Property, the Mortgagor shall
prepay the Notes pursuant to Section 5.3 of the Indenture in a principal
amount equal to such excess, together with interest accrued on the Notes to
be prepaid to the date of payment and a premium equal to the
Yield-Maintenance Premium, upon the terms and in the manner provided in
Section 5.3 of the Indenture and the balance, if any, of any such proceeds
shall be released to or upon the order of the Mortgagor in accordance with
clause (ii) below. Any application of moneys pursuant to this section
4.1(a)(i) shall be made by the Mortgagor within 60 days after the
completion of the rebuilding or restoration of the Mortgaged Property; and
(ii) If the total amount in the case of any one loss or condemnation
or taking, as the case may be, shall equal or exceed $100,000, such
proceeds shall be paid to the Mortgagor from time to time upon a written
application signed by the President and any Vice President of the Mortgagor
and accompanied by an approving certificate of an architect or engineer
selected by the Mortgagor and approved by the Mortgagee, for the purpose of
paying, or reimbursing the Mortgagor for the payment of, the reasonable
cost, as shown by such certificate, of repairing or replacing part or all
of the property damaged or destroyed, but only if written application is
made therefor within 12 months of the receipt of such proceeds by the
Mortgagee, and then only for and to the extent hat the Mortgagor shows by
such architect's or engineer's certificates or other evidence satisfactory
to the Mortgagee that the portion of such proceeds remaining on deposit
with the Mortgagee, together with any additional funds irrevocably
allocated or otherwise provided for in a manner satisfactory to the
Mortgagee for such purpose, shall be sufficient to complete such repairs or
25
replacements and restore the Mortgaged Property as nearly as possible to
the market value and condition which existed immediately prior to the
damage, destruction, condemnation or taking, as the case may be, free from
liens or encumbrances except this Mortgage and Permitted Encumbrances.
Every such application for the payment of such insurance or condemnation
moneys shall state that no Default or Event of Default has occurred and is
continuing and shall be accompanied by date down endorsement to the
lender's title insurance policy being delivered pursuant to Section
7(a)(iv) of the Note Agreement insuring that, as the date of such payment,
the property will be subject to the lien of this Mortgage as a first lien
thereon subject only to Permitted Encumbrances. The Mortgagor will remain
solely responsible for the rebuilding, restoration or substitution of the
Mortgaged Property, whether or not the proceeds of insurance maintained in
accordance with the provisions hereof are sufficient therefor.
(b) In cases involving insurance proceeds where the amount of any one
loss is less then $100,000 and no Default or Event of Default shall have
occurred and be continuing under this Mortgage, the amount payable in respect of
any such loss will be received by the Mortgagee and shall be by the Mortgagee
paid over immediately to the Mortgagor for use by the Mortgagor in paying for
replace or repair of or substitutes for the damages or destroyed property.
(c) Subject to section 2.6(c) hereof with respect to adjustments of
losses, any appraisal or adjustment of such loss or any settlement or payment of
indemnity therefor which shall be agreed upon between the Mortgagor and the
relevant insurance company shall be accepted by the Mortgagee.
(d) In the vent the insurance moneys or condemnation award, as the
case may be, shall not have been applied to one or more of the purposes
specified in section 4.1(a) hereof within the 12-month period provided for
thereby, then the Mortgagee shall apply such insurance moneys or condemnation
award, as the case may be, to the prepayment, with premium, of the Notes
together with interest accrued thereon in an amount sufficient to exhaust such
cash as nearly as may be upon giving the Mortgagor 10 days' advance notice of
its intent so to do, such prepayment to be made in units of $1,000 but otherwise
to be made ratably on all outstanding Notes in accordance with the principal
amounts unpaid thereon, together with interest accrued thereon and a premium
26
equal to the Yield-Maintenance Premium; any balance remaining after such
prepayment to be released to the Mortgagor. Partial prepayments made pursuant to
this section 4.1(d) shall be paid and applied upon the terms and in the manner
provided in Section 5 of the Indenture.
4.2 Other Proceeds. Any other moneys received by the Mortgagee in
connection with the release or property shall be held by the Mortgagee as part
of the Mortgaged Property and shall be applied by the Mortgagee to the
prepayment, with premium, of the Notes together with interest accrued thereon in
an amount sufficient to exhaust such cash as nearly as may be upon giving the
mortgagor 10 days' advance notice of its intent so to do, such prepayment to be
made in units of $1,000 but otherwise to be made ratably on all outstanding
Notes in accordance with the principal amounts unpaid thereon, together with
interest accrued thereon and a premium equal to the Yield-Maintenance Premium;
any balance remaining after such payment to be released to the Mortgagor.
SECTION 5. DEFAULTS AND REMEDIES THEREFOR.
5.1 Events of Default. The Mortgagor acknowledges and agrees, without
limitation, that each and all of the terms and provisions of Section 6.1 of the
Indenture have been and are incorporated into this Mortgage by reference to the
same extent as though fully set out herein and that the term Event of Default
wherever used in this Mortgage shall man an Event of Default as defined in
Section 6.1 of the Indenture.
5.2 Remedies. When any Event of Default has occurred and is
continuing, the Mortgagee may exercise any one or more or all, and in any order,
of the remedies hereinafter set forth or as provided for in the Indenture, it
being expressly understood that no remedy herein or in the Indenture conferred
is intended to be exclusive of any other remedy or remedies; but each and every
remedy shall be cumulative and shall be in addition to every other remedy given
herein or now or hereafter existing at law or in equity or by statute:
(a) The Mortgagee may, by notice in writing to the Mortgagor, declare
the entire unpaid balance of the Notes to be immediately due and payable;
and thereupon the entire principal and interest accrued on the Notes and,
to the extent permitted by law, the Yield- Maintenance Premium (as defined
in Section 5.4 of the Indenture) shall be and become immediately due and
payable.
27
(b) The Mortgagee personally and by agents or attorneys may enter into
and take possession of all or any part of the Mortgaged Property, and may
forthwith use, operate and manage the Mortgaged Property, collect the
earnings and income therefrom, pay all principal charges including taxes
and assessments levied thereon and operating and maintenance expenses and
all disbursements and liabilities of the Mortgagor hereunder and apply the
net proceeds arising from any such operation of the Mortgaged Property as
provided in section 5.3 hereof in respect of the proceeds of a sale of the
Mortgaged Property.
(c) The Mortgagee may commence foreclosure proceedings against the
Mortgaged Property as an entirety (including personal property) or
otherwise as the Mortgagee may determine, through judicial proceedings or
by advertisement, at the option of the Mortgagee, pursuant to the statutes
in such case made and provided, and may sell the Mortgaged property or
cause the same to be sold at public sale and convey the same to the
purchaser, in accordance with said statutes, in a single parcel or in
several parcels at the option of the Mortgagee. The Mortgagee is hereby
granted the power to sell any or all of the Mortgaged Property as provided
herein. The Mortgagor hereby acknowledges that this Mortgage contains a
Power of Sale and that in the event the Mortgagee elects to foreclose by
advertisement pursuant to the Power of Sale, in accordance with MCLA
600.3201 et seq., the Mortgagor expressly waives a hearing prior to sale
and any rights, constitutional or otherwise, that the Mortgagor might
otherwise have to require any judicial foreclosure. The Mortgagee shall
give at least 20 days' notice of such sale by three publications in any
newspaper, daily or weekly, of general circulation published in the County
in which the Mortgaged Property is located and all other such additional
notice, if any, required by applicable law. Further, the Mortgagee shall
give notice of such sale by registered or certified mail to Mortgagor once
at least 20 days prior to the date of such sale and any other such
additional notice, if any, required by applicable law. This Power of Sale
shall not be exhausted by any one or more such sales as to any apart of the
Mortgaged Property not theretofore lawfully sold, but shall continue
unimpaired until all the Mortgaged Property shall have been sold or the
indebtedness secured hereby shall have been fully paid and satisfied.
28
WARNING: THIS MORTGAGE CONTAINS A POWER OF SALE AND UPON DEFAULT MAY
BE FORECLOSED BY ADVERTISEMENT. IN FORECLOSURE BY ADVERTISEMENT AND SALE OF
THE MORTGAGED PROPERTY IN CONNECTION THEREWITH, NO HEARING IS REQUIRED AND
THE ONLY NOTICE REQUIRED IS TO PUBLISH NOTICE IN A LOCAL NEWSPAPER AND TO
POST A COPY OF THE NOTICE ON THE PREMISES.
(d) The Mortgagee may proceed to protect and enforce its rights by a
suit or suits in equity or at law, or for the specific performance of any
covenant or agreement contained herein or in the Notes, or in aid of the
execution of any power herein or therein granted, or for the foreclosure of
this Mortgage, or for the enforcement of any other appropriate legal or
equitable remedy. Upon the bringing of any suit to foreclosure this
Mortgage or to enforce any other remedy available hereunder, the plaintiff
shall be entitled as a matter of right, without notice and without giving
bond to the Mortgagor or anyone claiming under, by or through it, and
without regard to the solvency or insolvency of the Mortgagor or the then
value of the Mortgaged Property, to have a receive appointed of all the
Mortgaged Property and of the earnings, income, rents, issues, profits and
proceeds thereof, with such power as the court making such appointment
shall confer, and the Mortgagor does hereby irrevocably consent to such
appointment.
(e) In case of any sale of the Mortgaged Property, or of any part
thereof, pursuant to any judgment or decree of any court or otherwise in
connection with the enforcement of any of the terms of this Mortgage, the
principal of the Notes, if not previously due, and the interest accrued
thereon, shall at once become and be immediately due and payable; also in
the case of any such sale, the Mortgagee may bid and become the purchaser,
and the purchaser or purchasers, for the purpose of making settlement for
or payment of the purchase price, shall be entitled to turn in and use the
Notes and any claims for interest and premium matured and unpaid thereon,
in order that there may be credited as paid on the purchase price the sum
apportionable and applicable to the Notes, including principal and interest
and premium thereof, out of the net proceeds of such sale after allowing
for the proportion of the total purchase price required to be paid in
actual cash. If at any foreclosure proceeding the Mortgaged Property shall
29
be sold for a sum less than the total amount of indebtedness for which
judgment is therein given, the Mortgagee shall be entitled to the entry of
a deficiency decrees against the Mortgagor and against the property of the
Mortgagor for the amount of such deficiency.
(f) In addition to any other remedies provided for hereby or by law,
the Mortgagee shall have the rights of a secured party under the Uniform
Commercial Code of the jurisdiction in which the Mortgaged Property is
located upon the occurrence and continuance of an Event of Default
hereunder. any requirement of said Uniform Commercial Code or reasonable
notification shall be met by mailing written notice to the Mortgagor, at
its address set forth in section 6.3 hereof, at least 10 days prior to the
sale or other event for which such notice is required.
It is understood and agreed that the Notes are also secured by other
mortgages and deeds of trust and that in case of default in any of the terms,
conditions or provisions of this Mortgage or the Indenture, the Mortgagee may
resort to part or all of the security for the Notes, the Note Agreements and the
Indenture and foreclose the mortgages and deeds of trust in any order. The
pendency of any proceeding with respect to any one of the above- mentioned
mortgages and deeds of trust shall not be grounds for the abatement of, or for
hindering, staying, delaying or preventing any proceeding with respect to
foreclosure of this Mortgage.
5.3 Application of Proceeds. The purchase money proceeds and/or avails
of any sale of the Mortgaged Property, or any part hereof and the proceeds and
the avails of any remedy hereunder and all insurance monies or proceeds or
awards of condemnation paid to the Mortgagee pursuant to the provisions of
section section 2.6 and 3.2 hereof shall be paid to the Trustee under the
Indenture and such Trustee shall apply such proceeds and avails, and all
insurance monies and proceeds or awards of condemnation held by the Mortgagee
during the continuation of any Event of Default, in the manner provided in
section 6.10 of the indenture.
5.4 Waiver of Extension, Appraisement and Stay Laws. The Mortgagor
covenants that, to the extent that such rights may be lawfully waived, it will
not now, or at any time hereafter, insist upon or plead, or in any manner
whatever claim or take any benefit or advantage of, legal, equitable and
statutory rights of redemption, exemption or homestead, any stay or extension
law now or at any time
30
hereafter in force or any other similar exemptions and rights arising under or
created by an applicable statute or judicial decision, or claim, take or insist
upon any benefit or advantage of or from any law now or hereafter in force
providing for the valuation or appraisement of the Mortgaged Property or any
part thereof prior to any sale or sales thereof to be made pursuant to any
provision herein contained, or to the decree, judgment or order of any court of
competent jurisdiction or, after confirmation of any such sale or sales claim or
exercise any right under any statute now or hereafter made or enacted by any
state or otherwise to redeem the property so sold or any part thereof, and
hereby expressly waives for itself and on behalf of each and every person who
may claim under it, all benefit and advantage of any such law or laws which
would otherwise be available to any such person in connection with the
enforcement of any of the Mortgagee's remedies hereunder; and covenants that it
will not in connection with any such enforcement proceedings invoke or utilize
any such law or laws or otherwise hinder, delay or impede the execution of any
power herein granted and delegated to the Mortgagee but will suffer and permit
the execution of every such power as though no such law or laws had been made or
enacted.
Any sale, whether under any power of sale hereby given or by virtue of
judicial proceedings, shall operate to divest all right, title, interest, claim
and demand whatsoever, either at law or in equity, of the Mortgagor in and to
the property sold and shall be a perpetual bar, both at law and in equity,
against the Mortgagor, its successors and assigns, and against any and all
persons claiming the property sold or any part thereof under, by or through the
Mortgagor, its successors or assigns.
5.5 Waste. The failure of the Mortgagor to pay any taxes or
assessments assessed against the Mortgaged Property or any installment thereof,
or any premiums payable with respect to any insurance policy covering the
Mortgaged Property shall constitute waste, as provided by Michigan Compiled
Laws, 194B, as amended, Section 600.2927. The Mortgagor further hereby consents
to the appointment of a receiver under said statute, should the Mortgagee elect
to seek such relief thereunder.
5.6 Effect of Discontinuance of Proceedings. In case the Mortgagee
shall have proceeded to enforce any right under this Mortgage by foreclosure,
sale, entry or otherwise, and such proceedings shall have been discontinued or
abandoned for any reason or shall have been determined adversely, then and in
every such case the Mortgagor and the Mortgagee shall be restored to their
position and rights hereunder as they existed immediately prior to the
commencement of such proceedings with respect to the property subject to the
lien of this Mortgage.
31
5.7 Delay or Omission Not a Waiver. No delay or omission of the
Mortgagee to exercise any right or power arising from any default on the part of
the Mortgagor shall exhaust or impair any such right or power or prevent its
exercise during the continuance of such default. No waiver by the Mortgagee of
any such default, whether such waiver be full or partial, shall extend to or be
taken to affect any subsequent default, or to impair the rights resulting
therefrom, except as may be otherwise provided herein. No remedy hereunder is
intended to be exclusive of any other remedy but each and every remedy shall be
cumulative and in addition to any and every other remedy given hereunder or
otherwise existing. Nor shall the giving, taking or enforcement of any other or
additional security, collateral or guaranty for the payment of the indebtedness
secured under this Mortgage operate to prejudice, waive or affect the security
of this Mortgage or any rights, powers or remedies hereunder; nor shall the
Mortgagee be required to first look to, enforce or exhaust such other or
additional security, collateral or guaranties.
SECTION 6. MISCELLANEOUS.
6.1 Successors and Assigns. Whenever any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; and all the covenants, promises and agreements in this
Mortgage contained by or on behalf of the Mortgagor, or by or on behalf of the
Mortgagee, shall bind and inure to the benefit of the respective successors and
assigns of such parties whether so expressed or not.
6.2 Severability. The unenforceability or invalidity of any provisions
or provisions of this Mortgage shall not render any other provisions or
provisions herein contained unenforceable or invalid.
6.3 Addresses for Notices. All notices or other communications
required or contemplated by the provisions hereof shall, unless otherwise
specified, be in writing and shall be deemed to have been given or made on the
fifth business day after deposit thereof in the United States mail, by
registered or certified mail, postage prepaid, or when received if delivered by
hand or sent by facsimile communication the receipt of which is confirmed,
addressed as follows:
32
If to the Mortgagor: Havenwyck Hospital, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial
Officer
FAX: ______________________
Telephone:_________________
If to the Mortgagee: The Citizens and Southern
National Bank, as trustee
under a Trust Indenture
dated as of March 31, 1990
00 Xxxxx Xxxxxx, X.X.
Atlanta, Georgia 30308
Attention: Corporate Trust
Department
FAX: (000) 000-0000
Telephone: (000) 000-0000
Any party may designate any additional or different address for
subsequent notices or communications by notice duly given in accordance with
this Section to the other party.
6.4 Headings and Table of Contents. The headings of the sections of
this Mortgage and table of contents are inserted for purposes of convenience
only and shall not be construed to affect the meaning or construction of any of
the provisions hereof.
6.5 Release of Mortgage. The Mortgagee shall release and discharge
this Mortgage and the lien hereof by proper instrument or instruments upon
presentation of satisfactory evidence that all indebtedness secured hereby has
been fully paid or discharged.
6.6 Counterparts. This Mortgage may be executed, acknowledged and
delivered in any number of counterparts, each of such counterparts constituting
an original but all together only one Mortgage.
6.7 GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH MICHIGAN LAW.
IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be
executed in its behalf by its President and attested by its Assistant Secretary
and The Citizens and Southern National Bank, a national banking association, as
Trustee, has caused this Mortgage to be executed on its behalf by one of its
Corporate Trust Officers and attested by one of its Senior Vice Presidents and
Xxxxx X. Xxxxx, as Individual Trustee, has hereunto set her hand, all as of the
day and year above written.
Witnesses: HAVENWYCK HOSPITAL, INC.
________________________________
Printed name:___________________
By_______________________
________________________________ Its President
Printed name:___________________
ATTEST:
________________________________
Assistant Secretary
Witnesses: THE CITIZENS AND SOUTHERN
NATIONAL BANK, a national
banking association, as
Trustee
________________________________
Printed name:___________________
By_______________________
________________________________ Its ___________________
Printed name:___________________
ATTEST:
By: ____________________________
Its_________________________
Witnesses: XXXXX X. XXXXX, as
Individual Trustee
________________________________ ________________________
Printed name:___________________
________________________________
Printed name:___________________
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
On this ________ day of April, 1990, before me __________, a Notary
Public, personally appeared Xxxxx X. Xxxxx, who acknowledged himself to be the
President of Havenwyck Hospitals, Inc., a Michigan corporation, and that he, as
such President, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
(Notarial Seal)
_____________________________
Notary Public
My commissions expires: _________________, 1990 ______.
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
On this ________ day of _______, 1990, before me __________, a Notary
Public, personally appeared __________, who acknowledged himself to be
________________ of the Citizens and Southern National Bank, a national banking
association, and that he, as such ___________, being duly authorized so to do
executed the foregoing instrument for the purposes therein contained, by signing
the name of said bank by himself as ______________.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
(Notarial Seal)
_____________________________
Notary Public
My commissions expires: _________________, 1990 ______.
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
On this ________ day of _______, 1990, before me __________, a Notary
Public, personally appeared Xxxxx X. Xxxxx, known to me to be the person whose
name is subscribed to the within instrument as the Individual Trustee and
acknowledged to me that she executed the same as such Individual Trustee.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________
Notary Public
(Notarial Seal)
My commissions expires: _________________, 1990 ______.
LEGAL DESCRIPTION OF REAL PROPERTY
Part of the northwest one-quarter of Section 23, Town 3 North, Range 10 East,
being more particularly described as follows: Beginning at a point which is
North 00 degrees 13 minutes 10 seconds East 1,360.94 feet along the West line of
Section 23, which is also the East line of Assessor's Plat No. 104 (Liber 49,
Page 26 and 26A, Oakland County Records) from the West one-quarter corner of
Section 23, Town 3 North, Range 10 East; thence along the West line of Section
23, 897.98 feet; thence North 69 degrees 00 minutes 00 seconds East 270.00 feet;
thence South 65 degrees 09 minutes 27 seconds East 538.14 feet; thence South 39
degrees 10 minutes 58 seconds East 292.62 feet; thence South 01 degrees 26
minutes 00 seconds West 135.00 feet; thence along the centerline of Mt. Xxxxxxx
Road (University Drive), Southwesterly 177.16 feet along a curve concave to the
Northwest (Radius of 1,084.04 feet, central angle 09 degrees 21 minutes 30
seconds, along chord bears South 67 degrees 41 minutes 35 seconds West 176.97
feet), and South 72 degrees 22 minutes 30 seconds West 817.91 feet to the point
of beginning.
Parcel Identification No. 00-00-000-000
Address of Property:
0000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
ANNEX A
(to Mortgage and Security Agreement)
EXCLUDED PROPERTY
The property covered by the following U.C.C. Financing Statements
constitutes Excluded Property hereunder:
FILING LOCATION: SECRETARY OF STATE, MICHIGAN
DEBTOR: Havenwyck Hospital, Inc.
SECURED PARTY: Inncomp Financial Services
DATE FILED: February 24, 1989
FILING NO.: 0186614
COLLATERAL: Lease computer equipment
FILING LOCATION: SECRETARY OF STATE, MICHIGAN
DEBTOR: Havenwyck Hospital, Inc.
SECURED PARTY Lake Leasing Corporation
DATE FILED: July 24, 1987
FILING NO.: B962221
COLLATERAL: Leased office equipment
FILING LOCATION: SECRETARY OF STATE, MICHIGAN
DEBTOR: Life Center of Auburn Hills
SECURED PARTY: General Funding Corp.
DATE FILED: June 24, 1985
FILING NO.: B682584
COLLATERAL: Copy machine
ANNEX B
(to Mortgage and Security Agreement)
FILING LOCATION: SECRETARY OF STATE, MICHIGAN
DEBTOR: The Life Center of Michigan,
Inc.
SECURED PARTY: The Citizens and Southern
National Bank
DATE FILED: March 26, 1985
FILING NO.: B647549
COLLATERAL: Chrysler Van
FILING LOCATION: SECRETARY OF STATE, MICHIGAN
DEBTOR: Havenwyck Hospital, Inc.
SECURED PARTY Bankers Leasing Assn., Inc.
DATE FILED: October 26, 1987
FILING NO.: B995664
COLLATERAL: Leased office equipment
ANNEX B
(to Mortgage and Security Agreement)
SCHEDULE I
Purchasers
Aetna Life Insurance Company
Hartford, Connecticut 06156
Monumental Life Insurance Company
c/o Monumental Corporation
Baltimore, Maryland 21202
Connecticut Mutual Life Insurance Company
Hartford, Connecticut 06154
Schedule I
(to Mortgage and Security Agreement)
SCHEDULE II
Assigned Agreements
NONE.
Schedule II
(to Mortgage and Security Agreement)
SCHEDULE III
Pledged Shares
NONE.
Schedule III
(to Mortgage and Security Agreement)
