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EXHIBIT 10.57
OPEN-END LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
THIS INSTRUMENT SECURES FUTURE ADVANCES
MADE AS OF THE 19TH DAY OF DECEMBER, 1997,
Between
TC REALTY OF ALTOONA, INC., A DELAWARE CORPORATION
("Mortgagor");
And
BALANCED CARE CORPORATION, A DELAWARE CORPORATION
("Mortgagee").
WITNESSETH THAT:
WHEREAS, Mortgagor is the Lessee under that certain First
Amended and Restated Facility Lease Agreement dated as of December 19, 1997 (the
"Lease") between Mortgagor and MEDITRUST ACQUISITION CORPORATION II, a Delaware
corporation (the "Lessor"), whereby Lessee has leased from Lessor the Land and
Improvements (as those terms are hereinafter defined); and
WHEREAS, a memorandum of lease concerning the Lease will be
filed simultaneously herewith in the Recorder's Office of Xxxxx County,
Pennsylvania; and
WHEREAS, the Mortgagor and Mortgagee entered into that certain
Shortfall Funding Agreement dated as of December 19, 1997 (the "Shortfall
Agreement"); and
WHEREAS, BCC at Altoona, Inc., a Delaware corporation (the
"MANAGEMENT FIRM") and Mortgagor have entered into that certain Management
Agreement dated as of December 19, 1997 (the "MANAGEMENT AGREEMENT"), whereby
Mortgagor has delegated all duties and obligations of Mortgagor under the Lease
Documents (as defined in the Lease) and the Transaction Documents (as defined in
the Shortfall Agreement) relating to the operation of the Facility (as defined
in the Shortfall Agreement) to the Management Firm; and
WHEREAS, the Mortgagor desires to execute and deliver this
Mortgage to Mortgagee as additional security for the faithful and timely
performance of the obligations of Mortgagor under the Shortfall Agreement, as
the same may be amended, modified or otherwise extended, and all obligations
secured by the other Transaction Documents (as defined in the Shortfall
Agreement); and
WHEREAS, the Mortgagor, the Mortgagee and the Lessor have
entered into that certain Subordination and Standstill Agreement dated as of
December 19, 1997, (the "Subordination Agreement") whereby Mortgagee has agreed
to subordinate its rights and interests granted by Lessee hereunder to the
interests of the Lessor, as more fully provided in the Subordination Agreement;
and
WHEREAS, Lessee has granted to Lessor that certain Open-End
Leasehold Mortgage and Security Agreement dated as of December 19, 1997 (the
"FIRST LEASEHOLD
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MORTGAGE"), whereby Lessee has granted to Lessor a first priority security
interest in Lessee's leasehold interest in the Lease as more fully provided in
the First Leasehold Mortgage.
NOW, THEREFORE, in consideration of the obligations of
Mortgagee under the Shortfall Agreement (and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged) and
as security for the due and punctual payment of the obligations incurred under
the Shortfall Agreement, this Mortgage, and the Debt (as hereinafter defined) in
accordance with the terms hereof and thereof, Mortgagor, intending to be legally
bound hereby, has given, granted, bargained and sold, aliened, enfeoffed,
released, conveyed, confirmed, mortgaged, assigned, transferred, and set-over,
and by these presents does give, grant, bargain and sell, alien, release,
convey, confirm, enfeoff, mortgage, assign, transfer, and set-over unto
Mortgagee, its successors and assigns forever,
ALL Mortgagor's estate, right, title, interest, claim and
demand in and with respect to the following property (hereinafter called the
"Mortgaged Property"):
A. Mortgagor's leasehold interest pursuant to the Lease in and
to the parcel of land situate in Xxxxx County, Pennsylvania, and more
particularly described in Exhibit "A" attached hereto and made a part hereof and
all easements and rights of way over such land (hereinafter called the "Land").
B. All the buildings, structures and improvements of every
kind and description now or hereafter erected or placed on the Land, and all
facilities, fixtures, machinery, apparatus, appliances, installations,
machinery, equipment and other property, whether real, personal or mixed,
including, without limitation, electrical equipment necessary for the operation
of such buildings and heating, air conditioning and plumbing equipment now or
hereafter attached to, located in or used in connection with those buildings,
structures or other improvements, and including all Mortgagor's right, title and
interest (including purchase options and similar rights) under any equipment
leases which do not validly prohibit the mortgaging of such interest
(hereinafter collectively called the "Improvements").
C. All rights of way or use, servitudes, licenses, franchises,
easements, tenements, hereditaments, privileges, covenants, agreements and
appurtenances now or hereafter belonging or appertaining to any of the Land or
Improvements.
D. All of the right, title and interest of Mortgagor, as
lessor, in and to each lease covering any Mortgaged Property or any part
thereof, including, without limitation, all rentals and other sums payable to
them thereunder.
E. Together with reversions, remainders, easements, rents,
issues and profits arising or issuing from said Land and from the buildings,
structures and improvements thereon, including, but not limited to, the rents,
issues and profits arising or issuing from all leases and subleases now or
hereafter entered into covering all or any part of said Land and/or the
buildings, structures and improvements thereon, all of which leases, subleases,
rents, issues and profits are hereby assigned and, if requested by Mortgagee,
shall be caused to be further assigned to Mortgagee by Mortgagor. The foregoing
assignment shall include without limitation, cash or securities deposited under
leases to secure performance of lessees of their obligations thereunder, whether
such cash or securities are to be held until the expiration of the term of such
leases or applied to one or more installments of rent coming due prior to the
expiration of such term.
F. Together with any and all awards, damages, payments and
other compensation and any and all claims therefor and rights thereto which may
result from taking or injury by virtue of
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the exercise of the power of eminent domain of or to, or any damage, injury or
destruction in any manner caused to, said Land and Improvements thereon, or any
part thereof, or from any change of grade or vacation of any street abutting
thereon, all of which awards, damages, payments, compensation, claims and rights
are hereby assigned, transferred and set over to Mortgagee to the fullest extent
that Mortgagor may under the law do.
G. Together with and including all property of whatsoever
nature now or hereafter situate upon the Mortgaged Property and used or intended
to be used in connection with any building or other improvements now or
hereafter erected thereon.
H. Together with and including all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or liquidated
claims, including, without limitation, proceeds of insurance and condemnation
awards subject to the terms hereof.
Mortgagor hereby warrants and covenants that it is the lawful
owner of a leasehold interest in and to the Mortgaged Property pursuant to the
Lease; that Mortgagor has good, right and lawful authority to convey and
encumber the same; that the Mortgaged Property is free and clear from all liens
and encumbrances, other than (i) those liens and encumbrances stated on Exhibit
B attached hereto and (ii) the First Leasehold Mortgage (collectively, the
"Permitted Encumbrances"); and that it will warrant and defend such title to the
Mortgaged Property against the claims of all persons whomsoever.
And without limiting any of the other provisions of this
Mortgage, Mortgagor, as debtor, expressly grants unto Mortgagee, as secured
party, a security interest in all those portions of the Mortgaged Property which
may be subject to the Pennsylvania Uniform Commercial Code (the "Code")
provisions applicable to secured transactions, and Mortgagor will execute and
deliver to Mortgagee upon demand, and hereby irrevocably appoints Mortgagee or
any officer of Mortgagee the attorney-in-fact of Mortgagor (without requiring
them to act as such), such appointment being coupled with an interest, to
execute, deliver and file, such financing statements and other instruments as
Mortgagee may require in order to perfect and maintain such security interest
under the Code on the aforesaid collateral.
To have and to hold the same unto Mortgagee, its successors
and assigns, forever.
This conveyance is intended as a mortgage and is given for the
purpose of securing the faithful performance of Mortgagor under the Transaction
Documents and the Debt (as hereinafter defined).
This Mortgage is executed and delivered subject to the
following covenants, conditions and agreements:
1. Initially capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in the Shortfall Agreement.
"Debt", as used herein, means, collectively, (i) all indebtedness, obligations
and liabilities whether of principal, interest, fees, expenses, charges or
otherwise, now existing or hereafter incurred under this Mortgage and the other
Transaction Documents, as any of the same may be amended, supplemented or
modified from time to time, together with any and all extensions, renewals,
refinancings or refunding thereof in whole or in part, (ii) all costs and
expenses, liabilities, obligations and advances, including without limitation,
to the extent permitted by law, reasonable attorneys' fees and legal expenses,
incurred by Mortgagee in the collection or satisfaction of any of the
indebtedness or other obligations referred to in clause (i) above, and (iii) any
advances made by Mortgagee for the insurance, maintenance, preservation,
protection or
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enforcement of, or realization upon, any property or assets now or hereafter
made subject to a mortgage, pledge, lien or security interest granted pursuant
to this Mortgage or the other Transaction Documents, or pursuant to any other
agreement, instrument or note relating to any of the Debt, including, without
limitation, advances for taxes, insurance, repairs and the like.
2. Without limiting any of the provisions set forth in the
Subordination Agreement, this Open-End Leasehold Mortgage and Security Agreement
is expressly subordinated to the prior payment and satisfaction of the First
Leasehold Mortgage.
3. Until payment in full of the Debt and termination of all
obligations, duties and commitments under the Transaction Documents, Mortgagor
shall (i) pay and discharge, when and as the same shall become due and payable,
all taxes, assessments, sewer and water rents, and any and all other charges,
claims and liens assessed, levied, imposed or created from time to time upon the
Mortgaged Property or any part thereof, (ii) pay all ground rents reserved from
the Mortgaged Property and pay and discharge all mechanics' liens which may be
filed against the Mortgaged Property, (iii) pay and discharge any documentary,
stamp or other tax, including interest and penalties thereon, if any, now or
hereafter becoming payable hereon, (iv) provide, renew and keep in force by
paying the necessary premiums and charges thereon such policies of hazard and
liability insurance upon the buildings and Improvements now or hereafter erected
upon the Mortgaged Property in such amounts as are required from time to time by
the Lessor under the Lease. All such insurance policies shall be underwritten by
companies licensed in Pennsylvania to issue insurance with a rating by Best's
Insurance Rating Service (or such other rating service as Mortgagee shall
direct) of no less than A-, shall be endorsed with a standard mortgagee clause
in favor of Mortgagee as its interest may appear, shall not be subject to
contribution and shall provide (without qualification in favor of the insurer to
use "best efforts" or similar language) for at least thirty (30) days prior
written notice of modification or cancellation to Mortgagee. Mortgagor shall
provide certificates evidencing compliance with the foregoing insurance
requirements to Mortgagee promptly upon request.
4. Risk of loss of, damage to or destruction of the Mortgaged
Property is and shall remain upon Mortgagor. Mortgagor shall promptly give
written notice to Mortgagee of damage or destruction to the Mortgaged Property.
If Mortgagor fails to effect and keep in force insurance covering the Mortgaged
Property as required by Mortgagee, or fails to pay the premiums thereon when
due, Mortgagee may, but shall not be obligated to, do so for the account of
Mortgagor and add the cost thereof to the Debt.
5. Mortgagor shall maintain all buildings and Improvements
subject to this Mortgage in good working order and condition, ordinary wear and
tear excepted. Mortgagee shall have the right to enter upon the Mortgaged
Property at any time for the purpose of inspecting the order, condition and
repair of the buildings and Improvements erected thereon.
6. Mortgagor, at its sole cost and expense, shall promptly
comply with all present and future laws, ordinances, orders, rules,
requirements, and regulations of any governmental authority exercising
jurisdiction over the Mortgaged Property.
7. Mortgagor shall ensure, at its sole cost and expense, that
the Mortgaged Property complies and continues to comply in all material respects
with all applicable federal, state and local laws, rules, regulations, orders,
and judicial determinations with respect to the existence on, discharge from, or
removal from the Mortgaged Property of solid wastes, toxic or hazardous
substances, waste, contaminants or other regulated substances ("Hazardous
Substances") the release, storage, disposal or transportation of which is
regulated by any federal, state or local law (the "Environmental Laws").
Mortgagor shall notify Mortgagee promptly and in reasonable detail in the event
that Mortgagor
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becomes aware of the presence of any violation of any Environmental Law with
respect to the Mortgaged Property. Mortgagee shall not be liable for and
Mortgagor shall indemnify, defend and hold Mortgagee harmless from and against
all losses, costs, liabilities, damages and expenses (including, without
limitation, reasonable attorneys' and engineers' fees and costs incurred in the
investigation, defense and settlement of claims) that Mortgagee may suffer or
incur (as holder of this Mortgage, as mortgagee in possession or as successor in
interest to Mortgagor as owner of the Mortgaged Property by virtue of a
foreclosure or acceptance of a deed in lieu of foreclosure) as a result of or in
connection with any Environmental Law (including the assertion that any lien
existing or arising pursuant to any Environmental Law takes priority over the
lien of this Mortgage) or breach of any covenant or undertaking by Mortgagor in
this Mortgage. Mortgagor hereby represents and warrants to Mortgagee that, to
the best knowledge of Mortgagor after due inquiry, no Hazardous Substances are
present on the Mortgaged Property. The provisions of this paragraph 7 shall
survive the termination of this Mortgage, the foreclosure of this Mortgage
and/or the delivery of a deed in lieu of foreclosure.
8. Mortgagor will, from time to time, make, do, execute and
acknowledge, as the situation may require, such further acts, deeds,
conveyances, mortgages, security agreements, financing statements, continuation
statements and other assurances as may be required for the purpose of
effectuating the intent hereof and for better assuring and confirming to
Mortgagee, its successors and assigns, the lien and security interest created by
this Mortgage.
9. In the event Mortgagor neglects or refuses to pay the
charges mentioned at paragraph 3 of this Mortgage, or fails to maintain the
buildings and Improvements as aforesaid, Mortgagee may, but shall not be
obligated to, do so, and add to the Debt the cost thereof together with interest
at the maximum lawful rate, and collect the same as a part of said Debt.
10. Except for Permitted Encumbrances, Mortgagor covenants
and agrees not to create, nor permit to accrue, upon all or any part of the
Mortgaged Property, any debt, lien or charge which would be prior to, or on a
parity with, or subordinate to, the lien of this Mortgage without the prior
written consent of Mortgagee.
11. In the event Mortgagee pays any prior lien on the
Mortgaged Property, Mortgagee shall be subrogated to the rights of the holder of
such prior lien as fully as if such lien had been assigned to Mortgagee.
12. Any or all leases or subleases of all or any part of the
Mortgaged Property (whether presently in effect or hereafter granted), other
than the Lease, shall be subordinated to this Mortgage and to the rights of
Mortgagee and, together with any and all rents, issues or profits relating
thereto, shall be, subject to the terms of the Lease Documents (as defined in
the Lease), assigned at the time of execution to Mortgagee as additional
collateral security for the Debt, all in such form, substance and detail as is
satisfactory to Mortgagee in its sole discretion. Mortgagor covenants and agrees
that no lease or any rentals under any lease, or any rents, issues or profits
issuing from the Mortgaged Property shall be sold, assigned, transferred,
mortgaged, pledged or otherwise disposed of or encumbered, except first to
Lessor pursuant to the Lease Documents and then to Mortgagee pursuant to this
Mortgage, whether by operation of law or otherwise, without the prior written
consent of Mortgagee, and any attempts to do so shall be null and void.
13. This Mortgage and the indebtedness secured hereby may not
be assumed, and Mortgagor shall not sell, convey, assign or otherwise transfer
any interest in the Mortgaged Property, or sublease the Mortgaged Property or
agree to do so, except as expressly provided for in the Lease Documents, without
the prior written consent of Mortgagee. Any default under this paragraph 13
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shall cause an immediate acceleration of the Debt without any demand by
Mortgagee.
14. "Default" shall mean (i) a failure by Mortgagor to pay
when due all sums Mortgagor is obligated to pay pursuant to the Notes, (ii) the
Mortgagor shall breach any representation, warranty, covenant, agreement or term
under this Mortgage or other Transaction Documents; or (iii) any other default
(other than a default by the Lessor, BCC or an affiliate of BCC) shall occur
under any Transaction Document; provided, however, Mortgagor shall not be in
Default hereunder if the breach or default specified in Subsections (i), (ii) or
(iii) of this Paragraph 14 results from a failure by the Management Firm to
perform its obligations under the Management Agreement.
15. Subject to the terms of the Subordination Agreement, if a
Default shall occur then, and in any such event, all of the Debt shall become
immediately due and payable without presentment, demand or further notice, and
Mortgagee shall have such rights, remedies, powers and privileges as are set
forth in the Note, this Mortgage, and the other Transaction Documents or as
otherwise provided by law, including without limitation the right:
(i) to institute an action in mortgage
foreclosure for the enforcement of this Mortgage and to
prosecute the same to judgment, execution and sale of the
Mortgaged Property, or any part or parts thereof, until
collection of the entire Debt is realized, together with costs
of suit and reasonable attorney's fees for collection; and
Mortgagor hereby waives and releases all errors in said
proceedings (including without limitation defects in service
of process), waives stay of execution, the right of
inquisition and extension of time of payment, agrees to
condemnation of any property levied upon by virtue of any such
execution, and waives all exemption from levy and sale of any
property that now is or hereafter may be exempted by law;
and/or
(ii) to immediately sell the Mortgaged Property,
or any part or parts thereof, under power of sale, which power
is hereby granted to Mortgagee to the full extent permitted by
law; and/or
(iii) to be appointed as receiver of the Mortgaged
Property, to enter into possession of the Mortgaged Property,
or any part or parts thereof, and to lease or operate the same
and collect all rents and profits therefrom and, after
deducting all costs of collection, carrying and administration
expense, to apply the net rents and profits to the payment of
the Debt as hereinafter provided. FOR THE PURPOSE OF OBTAINING
POSSESSION THE MORTGAGOR HEREBY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF
PENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR THE MORTGAGOR AND
ITS SUCCESSORS AND ASSIGNS, TO SIGN AN AGREEMENT FOR ENTERING
IN ANY COMPETENT COURT AN AMICABLE ACTION IN EJECTMENT FOR
POSSESSION OF THE MORTGAGED PROPERTY AND TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST THE MORTGAGOR AND ITS SUCCESSORS AND
ASSIGNS, IN FAVOR OF THE MORTGAGEE, FOR RECOVERY BY THE
MORTGAGEE OF POSSESSION THEREOF, FOR WHICH THIS MORTGAGE, OR A
COPY HEREOF VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT
WARRANT; AND THEREUPON A WRIT OF POSSESSION MAY IMMEDIATELY
ISSUE FOR POSSESSION OF THE MORTGAGED PROPERTY, WITHOUT ANY
PRIOR WRIT OR PROCEEDING WHATSOEVER AND WITHOUT ANY STAY OF
EXECUTION. IF FOR ANY REASON AFTER SUCH AMICABLE ACTION OF
EJECTMENT HAS BEEN COMMENCED IT SHALL BE DISCONTINUED, OR
POSSESSION OF THE MORTGAGED PROPERTY SHALL REMAIN IN OR BE
RESTORED TO THE MORTGAGOR, THE MORTGAGEE SHALL HAVE THE RIGHT
FOR THE SAME DEFAULT OR ANY SUBSEQUENT DEFAULT TO BRING ONE OR
MORE FURTHER AMICABLE ACTIONS AS ABOVE
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PROVIDED TO RECOVER POSSESSION OF THE MORTGAGED PROPERTY. AN
AMICABLE ACTION IN EJECTMENT MAY BE BROUGHT AND JUDGMENT MAY
BE CONFESSED THEREIN BEFORE OR AFTER THE INSTITUTION OF
PROCEEDINGS TO FORECLOSE OR TO ENFORCE THE NOTE, OR AFTER
ENTRY OF JUDGMENT THEREON OR ON THE NOTE, OR AFTER A SHERIFF'S
SALE OF THE MORTGAGED PROPERTY IN WHICH THE MORTGAGEE IS THE
SUCCESSFUL BIDDER.
16. Mortgagee shall apply the proceeds of any foreclosure sale
of, or other disposition or realization upon, or rents or profits from the
Mortgaged Property to satisfy the Debt in the following order:
(a) First: to the payment of any obligations secured
by a lien that has priority over the lien of this Mortgage;
(b) Second: to the payment of all costs and expenses
incurred in connection with such sale or other realization;
(c) Third: to the payment of interest due upon the
Note and any other Debt;
(d) Fourth: to the payment of the principal due upon
the Note or any other Debt owed to Mortgagee; and
(e) Fifth: the balance (if any) of such proceeds
shall be paid to the Mortgagor subject to any duty imposed by law or otherwise
to the holder of any subordinate lien in the collateral known to the Mortgagee
and subject to the direction of a court of competent jurisdiction.
If any such proceeds from the Mortgaged Property, together
with the proceeds of any other collateral granted to the Mortgagee by Mortgagor,
shall be insufficient to pay the amounts secured hereby, Mortgagor shall be
liable for the deficiency, and any surplus will be distributed as required by
law.
17. Subject to the terms of the Subordination Agreement,
Mortgagee shall have the right upon a default, in connection with the exercise
of its remedies hereunder, to the appointment of a receiver to collect the
rents, issues, income and profits of the Mortgaged Property without notice and
without regard to the adequacy of the Mortgaged Property to secure the Debt.
18. If at any time the Mortgaged Property, or any part
thereof, is taken or damaged by condemnation proceedings under right of eminent
domain or in any other manner, Mortgagee shall, subject to the rights of Lessor
under the Lease, the Subordination Agreement, and the First Leasehold Mortgage,
be entitled to receive all compensation, damages, awards, or other relief.
Subject to the foregoing, Mortgagor shall promptly assign to Mortgagee all such
proceeds to be applied on account of the Debt after deducting therefrom all
expenses incurred, including reasonable attorneys' fees, and any balance
thereafter to be paid to Mortgagor, and Mortgagee shall be authorized, at its
option, to commence, appear in, and/or prosecute in its own name any action or
proceeding or to make any reasonable compromise or settlement in connection with
such taking or damage.
19. Mortgagor will indemnify against, and on demand repay
Mortgagee for, any loss, damage, expense, or reasonable attorneys' fees which
may be reasonably incurred by reason of any action or proceeding affecting the
Mortgaged Property or the title thereto or Mortgagee's interest under this
Mortgage, to which Mortgagee is made a party (by intervention or otherwise).
Such indemnity obligation shall be deemed Debt secured by this Mortgage upon
demand for indemnification from Mortgagee to Mortgagor. The provisions of this
paragraph 19 shall survive the termination of
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this Mortgage, the foreclosure of this Mortgage and/or the delivery of a deed in
lieu of foreclosure.
20. The agreements and obligations of Mortgagor hereunder are
continuing, absolute and unconditional irrespective of the genuineness, validity
or enforceability of the Notes or this Mortgage or any other instrument or
instruments now or hereafter evidencing the Debt or any part thereof, or of any
other agreement or agreements now or hereafter entered into by Mortgagee and
Mortgagor pursuant to which the Debt or any part thereof is issued, or of any
other circumstance which might otherwise constitute a legal or equitable
discharge of such agreements and obligations. Without limitation upon the
foregoing, such obligations will not be affected by (i) any renewal, refinancing
or refunding of the Debt in whole or in part, (ii) any extension of the time of
payment of any note or other instrument or instruments now or hereafter
evidencing the Debt or any part thereof, (iii) any amendment to or modification
of the terms of the Note, this Mortgage or other instruments now or hereafter
evidencing the Debt or any part thereof or of any other agreement or agreements
now or hereafter entered into by Mortgagee and Mortgagor pursuant to which the
Debt or any part thereof is issued or secured, (iv) any substitution, exchange
or release of, or failure to preserve, perfect or protect, or other dealing in
respect of, the Mortgaged Property or any other property or any security for the
payment of the Debt or any part thereof, (v) any bankruptcy, insolvency,
arrangement, composition, assignment for the benefit of creditors or similar
proceeding commenced by or against Mortgagor, or (vi) any other matter or thing
whatsoever whereby the agreements and obligations of Mortgagor hereunder would
or might otherwise be released or discharged.
21. The rights and remedies of Mortgagee as provided in this
Mortgage and in the other Transaction Documents, or contained in any of them,
shall be cumulative and concurrent, may be pursued separately, successively or
together against Mortgagor or against the Mortgaged Property at the sole
discretion of Mortgagee, and may be exercised as often as occasion thereof shall
arise. The failure to exercise any such right or remedy shall in no event be
construed as a waiver or release thereof. Any failure by Mortgagee to insist
upon strict performance by Mortgagor of any of the terms and provisions of this
Mortgage shall not be deemed to be a waiver of any of the terms or provisions of
this Mortgage, and Mortgagee shall have the right thereafter to insist upon
strict performance by Mortgagor of any and all of them.
22. Mortgagee may release, regardless of consideration, any
part of the security held for the Debt without, as to the remainder of the
security, in any way impairing or affecting the lien of this Mortgage or its
priority over any subordinate lien. For payment of the Debt secured hereby
Mortgagee may resort to any other security therefor held by Mortgagee in such
order and manner as Mortgagee may elect. All costs related to any release of the
lien of this Mortgage shall be paid by Mortgagor.
23. Mortgagor hereby waives and releases all benefit that
might accrue to Mortgagor by virtue of any present or future law exempting the
Mortgaged Property, or any part of the proceeds arising from any sale thereof,
from attachment, levy or sale on execution, or providing for any stay of
execution, exemption from civil process or extension of time for payment, and,
unless specifically required herein, all notices of Mortgagor's default or of
Mortgagee's election to exercise, or Mortgagee's actual exercise of any option
under this Mortgage or any Document.
24. All notices and other communications provided for under
this Mortgage or any other Documents shall be in writing and mailed or
delivered, if to the Mortgagor, at its address of: 0000 XXX Xxxxxxxxx, Xxxxx
0000, Xxxx Xxxxx Xxxxxxx, XX 00000; Attn: Xxxxx X. Xxxxxxx, or, if to the
Mortgagee, at its address of: 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxxx, XX
00000, or at such other address as shall be designated by such party in a
written notice to the other party from time to time. All such notices and
communications shall, when mailed, be effective three days after being
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deposited in the mail.
25. This Mortgage shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania. If any provision
of this Mortgage shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Mortgage.
26. No provision of this Mortgage may be amended,
supplemented, waived or otherwise modified, except by means of a writing
executed by each of the parties hereto, and then only to the extent set forth in
such writing.
27. The covenants, conditions and agreements contained in this
Mortgage shall bind, and the benefits thereof shall inure to, the parties hereto
and their respective successors and assigns; provided, however, that Mortgagor
may not, voluntarily or by operation of law, assign this Mortgage.
28. MORTGAGOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY FOR ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS
MORTGAGE OR THE NOTES, IN EACH CASE WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND THE MORTGAGOR HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT THE MORTGAGEE MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
PARAGRAPH 28 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE MORTGAGOR
TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
29. Mortgagor hereby covenants and agrees to execute and
deliver unto Mortgagee such instruments and documents, and take such further
actions, as Mortgagee may request in connection with this Mortgage and the
Notes.
30. Subject to the rights of the Lessor under the Lease, the
Subordination Agreement, the First Leasehold Mortgage and the other Lease
Documents, this Mortgage constitutes a security agreement under the Uniform
Commercial Code and creates a security interest in all that property (and the
proceeds thereof) included in the Mortgaged Property which might otherwise be
deemed "personal property". Mortgagor shall execute, deliver, file and refile
any financing statements, continuation statements, or other security agreements
Mortgagee may require from time to time to confirm the lien of this Mortgage
with respect to such property. Without limiting the foregoing, in the event that
Mortgagor fails or refuses to execute and deliver such financing statements,
continuation statements or other security agreements, then Mortgagor hereby
irrevocably appoints Mortgagee attorney-in-fact for Mortgagor to execute,
deliver and file such instruments for and on behalf of Mortgagor.
31. This instrument is intended to be an Open End Mortgage as
defined in 42 Pa.C.S.A. Section 8143(f) and, as such, is entitled to the
benefits of Senate Xxxx 693, 1989 session of the General Assembly of
Pennsylvania (the "Act") as codified at 42 Pa.C.S.A. Section 8143 et seq. The
parties to this instrument intend that, in addition to any other debt or
obligations secured hereby, this instrument shall secure unpaid balances of
advances made pursuant to the Shortfall Agreement after this instrument is left
for record with the Recorder's Office of the County where the Property is
located, whether such advances are made pursuant to an obligation of BCC or
otherwise. The maximum principal amount of unpaid indebtedness secured by this
instrument is TEN MILLION DOLLARS ($10,000,000), plus interest thereon, which
indebtedness may consist of present and future loans made under the Shortfall
Agreement, fees payable pursuant thereto, advances made with respect to any
property for the payment of, among other things, taxes, assessments, maintenance
charges, insurance premiums and the like, and costs and expenses,
9
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including but not limited to attorney's fees, incurred for the protection of the
Property or the lien and security of this instrument or by reason of any default
hereunder or under any other Transaction Document.
32. Notwithstanding any other provision of this Mortgage to
the contrary, in no event shall the directors or officers of the Mortgagor, or
the shareholders, directors or officers of the sole shareholder of Mortgagor,
ever be personally liable to Mortgagee for the payment and/or performance of any
obligation set forth in this Mortgage; provided, however, the foregoing shall in
no way prevent or limit Mortgagee from exercising all rights and remedies of
Mortgagee under the Option Agreement (as defined in the Shortfall Agreement).
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WITNESS, intending to be legally bound hereby, the due
execution hereof as of the day and year first above written.
WITNESS/ATTEST: TC REALTY OF ALTOONA, INC.
------------------------- By:/s/ Signature Illegible
-------------------------------------------
------------------------- Title:-------------------------------------
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Schedule to Exhibit 10.57 filed pursuant to Instruction 2 to Item 601(a) of
Regulation S-K
Open End Leasehold Mortgage and Security Agreement
Project Parties Date
------- ------- ----
Blytheville, AR TC Realty of Blytheville, 12/19/97
Inc. (Mortgagor)
Balanced Care
Corporation (Mortgagee)
Maumelle, AR TC Realty of Maumelle, 12/19/97
Inc. (Mortgagor)
Balanced Care
Corporation (Mortgagee)
Mountain Home, AR TC Realty of Mountain 12/19/97
Home, Inc. (Mortgagor)
Balanced Care
Corporation (Mortgagee)
Pocahontas, AR TC Realty of Pocahontas, 12/19/97
Inc. (Mortgagor)
Balanced Care
Corporation (Mortgagee)
Sherwood, AR TC Realty of Sherwood, 12/19/97
Inc. (Mortgagor)
Balanced Care
Corporation (Mortgagee)
Reading, PA TC Realty of Reading, Inc. 12/19/97
(Mortgagor)
Balanced Care
Corporation (Mortgagee)
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Project Parties Date
------- ------- ----
Dillsburg, PA Black Box of Dillsburg, 12/31/97
Inc. (Mortgagor)
Balanced Care
Corporation (Mortgagee)
Martinsburg, WV Black Box of Martinsburg, 12/31/97
Inc. (Mortgagor)
Balanced Care
Corporation (Mortgagee)
Peckville, PA Black Box of Peckville, 12/31/97
Inc. (Mortgagor)
Balanced Care
Corporation (Mortgagee)
Lewisburg, PA Black Box of Lewisburg, 12/31/97
Inc. (Mortgagor)
Balanced Care
Corporation (Mortgagee)
Berwick, PA TC Realty of Berwick, 1/7/98
Inc. (Mortgagor)
Balanced Care
Corporation (Mortgagee)
Chippewa, PA TC Realty of Chippewa, 1/7/98
Inc. (Mortgagor)
Balanced Care
Corporation (Mortgagee)
