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LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT WITH FINANCING STATEMENT
(FIXTURE FILING)
Dated as of March 31, 1990
FROM
MESA PSYCHIATRIC HOSPITAL, INC.
(the "Grantor")
TO
TRANSAMERICA TITLE INSURANCE COMPANY
(the "Security Trustee")
For the Benefit of
The Citizens and Southern National Bank,
and Xxxxx X. Xxxxx, as trustees under
a Trust Indenture dated as of March 31, 1990
(the "Indenture Trustees" or the "Beneficiaries")
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This instrument was
prepared by and when
recorded return to:
(Mesa, Arizona)
Xxxxxxx X. XxXxx
Xxxxxxx and Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Table of Contents
Section Page
Parties...................................................................... 1
Granting Clauses............................................................. 2
1. DEFINITIONS.............................................................. 11
2. GENERAL COVENANTS AND WARRANTIES......................................... 15
2.1. Note Agreements and Indenture Covenants.................... 15
2.2. Ownership of Granted Property.............................. 15
2.3. Further Assurances......................................... 15
2.4. Payment of Principal and Interest.......................... 16
2.5. Maintenance of Granted Property, Other Liens,
Compliance with Laws, Etc.................................. 16
2.6. Insurance.................................................. 17
2.7. Payment of Taxes and Other Charges......................... 20
2.8. Advances................................................... 21
2.9. Recordation................................................ 21
2.10. After-Acquired Property.................................... 21
2.11. Priority of this Deed of Trust; Future
Advances; Extensions, Modifications, and
Renewals................................................... 22
3. POSSESSION, USE AND RELEASE OF PROPERTY.................................. 22
3.1. Possession by Company; Dispositions Without
Release.................................................... 22
3.2. Eminent Domain............................................. 24
3.3. Purchaser Protected........................................ 25
3.4. Release of Granted Property - Indenture
Trustees Consent........................................... 25
4. APPLICATION OF INSURANCE AND CERTAIN OTHER MONEYS
RECEIVED BY THE INDENTURE TRUSTEES.................................. 26
4.1. Insurance Proceeds and Condemnation Awards................. 26
4.2. Other Proceeds............................................. 28
5. DEFAULTS AND REMEDIES THEREFOR........................................... 28
5.1. Events of Default.......................................... 28
5.2. Remedies................................................... 28
5.3. Application of Proceeds.................................... 34
5.4. Waiver of Extension, Appraisement and Stay
Laws....................................................... 34
5.5. Effect of Discontinuance of Proceedings.................... 35
5.6. Delay or Omission Not a Waiver............................. 35
6. MISCELLANEOUS............................................................ 36
6.1. Successors and Assigns..................................... 36
-i-
Section Page
6.2. Severability............................................... 36
6.3. Addresses for Notices...................................... 36
6.4. Headings and Table of Contents............................. 37
6.5. Release of Deed of Trust................................... 37
6.6. Counterparts............................................... 37
6.7. GOVERNING LAW.............................................. 37
6.8. Successor Security Trustee................................. 37
-ii-
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THIS LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT WITH FINANCING STATEMENT (FIXTURE FILING) dated as of March 31, 1990
(the "Deed of Trust") from MESA PSYCHIATRIC HOSPITAL, INC., an Arizona
corporation (the "Grantor"), having its principal office at 000 Xxxx Xxxxx Xxxx,
Xxxx, Xxxxxxx 00000 to TRANSAMERICA TITLE INSURANCE COMPANY, a California
corporation (the "Security Trustee"), whose post office address is 000 Xxxxx 0xx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000 for the benefit of The Citizens and Southern
National Bank, a national banking association, and XXXXX X. XXXXX, as trustees
under the hereinafter defined Indenture (together, the "Indenture Trustees"),
having an address as set forth in Section 6.3 hereof.
R E C I T A L S
A. Pursuant to a Lease dated May 12, 1986 (the "Ground Lease")
Lutheran Hospitals and Homes Society of America, a North Dakota non-profit
corporation (the "Fee Owner") demised and let to the Grantor the real property
described in Annex A hereto. A memorandum of the Ground Lease was recorded on
September 26, 1986 in Document Number 86-525337 in the records of the recorder
of Maricopa County, Arizona.
B. The Grantor together with the other Obligors have entered into that
certain Trust Indenture dated as of March 31, 1990 (the "Indenture") with The
Citizens and Xxxxxxx National Bank and Xxxxx X. Xxxxx, as Indenture 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 thereto
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.
C. 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
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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
Institutional Investors (the "Purchasers") named in Schedule I thereto,
providing for the commitment of the Purchasers to purchase the Notes.
D. 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.
E. 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 Deed of Trust 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".
F. The Grantor is duly authorized under all applicable provisions of
law, its charter and by-laws to issue the Notes and other indebtedness hereby
secured, to execute and deliver this Deed of Trust and to grant, convey and
assign the "Granted Property" (as hereinafter defined) to the Security Trustee
as security for the Notes and all corporate action and all consents, approvals
and other authorizations and all other acts and things necessary to make this
Deed of Trust the valid, binding and legal instrument for the security of the
Notes have been done and performed.
G. The Purchasers have required as a condition to their purchase of
the Notes that the Grantor execute and deliver this Deed of Trust as security
for the payment of the Notes.
NOW, THEREFORE, THIS DEED OF TRUST WITNESSETH: That the Grantor, in
consideration of the premises, the purchase and acceptance of the Notes by the
Purchasers, and the sum of Ten Dollars received by the Grantor from the
Purchasers and the Indenture Trustees and the Security
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Trustee 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 services 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 Notes, this Deed of Trust,
the Note Agreements and indenture, the Grantor does hereby warrant, pledge,
assign, bargain, hypothecate, convey, grant, transfer and set over unto the
Security Trustee and its successors in trust and assigns, and, where applicable,
to the Indenture Trustees for the purposes of personality, rents, issues and
profits, WITH POWER OF SALE, in and to all and singular the following described
properties, rights, interest and privileges and all of the Grantor's estate,
right, title and interest therein, thereto and thereunder (all of which
properties hereby granted, assigned and pledged or intended so to be are
hereinafter collectively referred to as the "Granted Property"):
GRANTING CLAUSE I
All the leasehold estate of the Grantor in the real property and all
the rights, privileges and franchises associated with the parcels of land in
Maricopa County, State of Arizona, described in Annex A attached hereto and made
a part hereof, including without limitation all right, title and interest of the
Grantor in, to and under the Ground Lease, together with the entire interest of
the Grantor 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 Grantor, 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
conditioning, 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).
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All items included under this Deed of Trust, and the reversion or reversions,
remainder or remainders, in and to said land, and together with the entire
interest of the Grantor 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 Grantor, in, to and under any xxxxxxx,
xxxx, xxxxxx, xxxxx or strips of land adjoining said land, and all claims or
demands whatsoever of the Grantor either in law or in equity, in possession or
expectance, of, in and to said land, it being the intention of the parties
hereto that, so far as may be permitted by law, all property of the character
hereinabove described, which is now owned or is hereafter acquired by the
Grantor and is affixed or attached 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 the Deed of Trust, together with all accessions, parts
and appurtenances appertaining or attached thereto and all substitution,
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 thereof, 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 Granted Property shall not include any personal
property or equipment not owned by the Grantor so long as the same can be
removed without causing material damage to the Granted Property (all such
property being hereafter 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
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parts and fuel, items employed in the maintenance or repair of any structure or
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 Granted
Property or located on the Land Parcels and less any Equipment that may be
deleted from the Granted Property or removed from the Land Parcels, all in
accordance with the terms of this Deed of Trust (any and all such machinery,
equipment, parts and accessions being the "Equipment");
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 Granted Property; GRANTING CLAUSE IV
All leases and subleases belonging or 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 the Grantor as lessor sublessor 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 Grantor or any other lessor or sublessor 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 Grantor under the leases and subleases, nor shall any such
obligation be imposed upon the Indenture Trustees or the holder of any Note;
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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 Grantor
has an interest in mass or a joint or other interest or right of any kind
(including, without limitation, goods in which the Grantor has an interest or
right as consignee), and (iii) goods that are returned to or repossessed by the
Grantor), 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
Agreements"), including, without limitation, (i) all rights of the Grantor to
receive moneys due and to become due under or pursuant to the Assigned
Agreements, (ii) all rights of the Grantor to receive proceeds of any insurance,
indemnity, warranty or guaranty with respect to the Assigned Agreements, (iii)
claims of the Grantor 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 grantor 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 "Pledged 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 form time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Shares; and
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(B) all additional shares of stock from time to time acquired by the
Grantor 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 certificates (to the extent
permitted by law); rights to receive per diem or other reimbursements and
payments form 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); 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 xxxx applications, and all goodwill to which the Grantor
is entitled or of any businesses in which the Grantor is engaged, whether or not
such goodwill is associated with or related to any such xxxx or application;
license agreements relating to any of the foregoing and income therefrom; and
the right to xxx 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 Grantor 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 Grantor 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
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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 andy such cash, accounts, general intangibles, contract
rights, chattel paper, instruments or other 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 Granted 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
Indenture Trustees are 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 Granted Property, and (y) all cash, wherever located, not
included above in clause (x).
SUBJECT, HOWEVER, to Permitted Encumbrances, as defined in section 1
hereof;
TO HAVE AND TO HOLD the Granted Property unto the Security Trustee and
its successors in trust and assigns forever for the purpose of securing
performance of each agreement, covenant and warranty of the Grantor 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 Deed of Trust is to secure the obligation of the Grantor 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.
IN TRUST, NEVERTHELESS, WITH POWER OF SALE, upon the terms and trust
herein set forth for the benefit and security of all present and future
Indenture Trustees and Noteholders in accordance with the terms of the Indenture
and the Notes and all other sums payable hereunder or under the Indenture and
the Notes, and for the performance and observance of the Indenture, the Notes
and this Deed of Trust, all as herein set forth.
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PROVIDED, NEVERTHELESS, and these presents are upon the express
condition that if the Grantor performs the covenants herein and in the Indenture
contained and pays to the Indenture Trustee, 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 Security Trustee in the Granted Property shall cease and this
Deed of Trust 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 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 deed of trust or other instrument now or
hereafter given to secure the indebtedness which is secured by this Deed of
Trust, may be released by the Security Trustee without affecting the lien
and security interest hereof on the remainder or the obligations of the
Grantor 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 any other mortgage or deed of trust or other instrument now or
hereafter given to secure the indebtedness which is secured by this Deed of
Trust shall take the same subject to all of the provisions hereof.
3. The Grantor for itself and all who may claim through or under it
waives andy and all right to have the property and estates comprising the
Granted Property marshalled upon any foreclosure of the lien hereof, or to
have the Granted 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 Granted
Property sold as an entirety.
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4. Upon the occurrence of an Event of Default hereunder the Security
Trustee has, among other things, the right to sell the Granted Property at
a trustee's sale and/or U.C.C. sale or foreclose on the Granted Property,
in the manner described by applicable law, and dispose of the same. the
Security Trustee's deed or other instrument of conveyance, transfer or
release (which may be executed by the Security Trustee in its own name or
as attorney-in-fact for the Grantor and the Trustee is hereby irrevocably
appointed attorney-in- fact for the Grantor) 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 Grantor or any
person claiming under it, and to bar forever all claims by the Grantor or
the said Security Trustee to the property covered thereby and no grantee
from the Security Trustee shall be under any duty to inquire as to the
authority of the Security Trustee to execute the same, or to see to the
application of the purchase money.
SECTION 1. DEFINITIONS.
Capitalized terms used in this Deed of Trust and not defined herein
shall have the meaning provided therefore in the Indenture. In addition to the
terms elsewhere defined in this Deed of Trust, the following terms shall have
the following meanings for all purposes of this Deed of Trust:
"Appraised Value" with respect to the Granted Property shall mean the
fair market value on the date of an appraisal of the Granted Property 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 Indenture Trustee 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
capitalized on the books of the Grantor in accordance with generally
accepted accounting principles: (i) the actual construction cost 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
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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 Notes including fees and
expenses referred to in Section 8 of the Note Agreements allocated by the
Grantor to the Granted Property, the physical survey an title charges
referred to in Section B(g) of the Note Agreements, the charges for the
environmental audit and appraisal referred to in Sections 8(h) and (i) of
the Note Agreements in respect of such Granted Property incurred by the
Grantor and debt service expenses, and all closing costs with respect to
the Granted Property.
"Default" shall mean nay 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 Granted 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 the Appraised Value of the Granted
Property and the denominator is the Appraised Value of al property of the
Obligors which is then subject to the lien of this Deed of Trust and each
and every other mortgage and deed of trust delivered to or for the benefit
of the Indenture Trustee under and pursuant to the Note Agreements and the
Indenture.
"Note" shall mean nay of, and "Notes" shall mean all of, the Notes
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:
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(a) Notes theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation;
(b) Notes for the payment or prepayment of which moneys in the
necessary amount shall have been paid to the Indenture Trustee,
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
Indenture Trustee shall have been made for giving such notice; 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 Grantor: Vice
President or the Secretary.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel who shall be satisfactory to the Indenture Trustees, and who may be
counsel to the Grantor.
"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;
(b) liens of or resulting form 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 Grantor 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;
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(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 Grantor 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 Grantor;
(e) mortgages, deeds of trust, liens and security interests
securing the Notes;
(f) leases permitted by the provisions of section 3.1(d); and
(g) the Ground Lease.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization.
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SECTION 2. GENERAL COVENANTS AND WARRANTIES.
The Grantor 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 or from 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
Note Agreements, the Pledges or the Indenture, as the case may be, were fully
set out in an amendment or supplement to this Deed of Trust; and the Grantor
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 Note Agreements, the Pledges and the 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 agreements so
incorporated herein by reference were set out and repeated herein at length.
Without limiting the foregoing, the Grantor covenants and agrees to pay all
taxes, assessments and governmental charges or levies imposed upon this Deed of
Trust or the Notes or any other indebtedness secured hereby.
2.2. Ownership of Granted Property. The Grantor covenants and warrants
that it has good and marketable title to the Granted Property hereinbefore
conveyed to the Security Trust free and clear of all liens, charges and
encumbrances whatever except Permitted Encumbrances, and the Grantor has full
right, power and authority to grant, convey and transfer the same to the
Security Trustee for the uses and purposes in this Deed of Trust set forth; and
the Grantor will warrant and defend the title to the Granted Property against
all claims and demands whatsoever.
2.3. Further Assurances. The Grantor 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 Security Trustee all of the Granted Property,
or property intended so to be, whether now owned or hereafter acquired.
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2.4. Payment of Principal and Interest. The Grantor will duly and
punctually pay the principal of, and premium, if any, and interest on all Notes
and all other amounts payable under the indebtedness hereby secured according to
the terms thereof.
2.5. Maintenance of Granted Property, Other Liens, Compliance with
Laws, Etc. (a) Without limiting the provisions of Section 3.8 of the of the
Indenture and subject to section 3 hereof, the Grantor shall (i) promptly
repair, restore or rebuild any buildings, improvements or Equipment now or
hereafter on the Granted Property which may become damages or be destroyed, (ii)
keep the Granted 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 Granted Property
and upon request exhibit satisfactory evidence of the discharge of such lien to
the Security Trustees, (iv) comply with all requirements of law or municipal
ordinances with respect to the Granted Property and the use thereof, failure to
comply with which would result in any material interference with the use or
operation of the Granted Property by the Grantor, (v) not, without the prior
written consent of Security Trustees, (A) initiate or support any zoning
reclassification of the Granted Property, seek any variance under existing
zoning ordinances applicable to the Granted Property or use or permit the use of
the Granted Property in a manner which would result in such use becoming a non-
conforming use under applicable zoning ordinances, (B) modify or amend any of
the Permitted Encumbrances, (C) impose any restrictive covenants or encumbrances
upon the Granted Property, execute or file any subdivision plat affecting the
Granted Property or consent to the annexation of the Granted Property to any
municipality or (D) permit or suffer the Granted 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 Granted Property except as required by law or
municipal ordinance; provided, however, the Grantor may make any alterations of
any kind to the Granted Property if (A) the market value of the Granted Property
would not be impaired; (B) such alterations shall be performed in a good and
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 2.6
hereof. The Grantor shall promptly pay all costs and expenses of each such
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addition, alteration, substitution and replacement, discharge all liens filed
against the Granted Property arising out of the same and procure and pay for all
permits and licenses required in connection therewith. The Grantor shall notify
the Indenture Trustees and each holder of the Noes of the filing of any lien
against the Granted Property in an amount greater than $25,000.
(b) The Grantor may, at its expense, (i) construct upon the Granted
Property additional buildings, structures and other improvements and (ii)
install, assemble and place upon the Granted Property any items of machinery and
equipment used or useful in the Company'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 Deed of Trust unless such property shall constitute
Excluded Property. Excluded Property shall not be deemed part of the Granted
Property for purposes of condemnation of casualty, and the Grantor may remove
the same from the Granted Property at any time prior to the expiration or
earlier termination of this Deed of Trust , provided that the Grantor, at its
expense, shall repair any damage to the Granted Property resulting from such
removal.
(c) The Granted 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 1968, or the Flood Disaster Protection Act of 1973, as amended,
or any successor law; or if the Granted Property is located in such an area,
Grantor will obtain and maintain insurance against damage or loss by flood on
such basis and in such amounts as shall be required by Indenture Trustees.
(d) The Grantor shall use and operate the Granted Property as a
hospital.
2.6. Insurance. (a) Insurance Against Loss or Damage. The Grantor will
maintain or cause to be maintained with respect to the Granted 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 Grantor; provided, however, that the
amount of such insurance with respect to the Granted Property shall not at any
time be less than the greater of replacement value or Loan Value thereof.
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(b) Insurance Against Public Liability Property Damage. The Grantor
will maintain or cause to be maintained in effect, with insurers satisfactory to
the Indenture Trustees, insurance policies with respect to the Granted 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 Company; 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 than $25,000,000 in the aggregate for all claims made in any policy year.
All such insurance shall protect the Indenture Trustees and the Grantor in
respect of risks arising out of the condition, maintenance, use, ownership or
operation of the Granted Property. The grantor will indemnify the Indenture
Trustees and holders of the Notes from any and all liability imposed against
said Indenture Trustee and said holders of the Notes arising out of the
condition, maintenance, use, ownership or operation of the Granted Property.
(c) The Grantor 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 Grantor's operations, in whole or in part, by reason of
the total or partial suspension of, or interruption in, the operation of
the Granted Property caused by the damage to or destruction of any part of
the Granted 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
(iii)maintain liability insurance covering hospital operations,
including malpractice, against claims arising from professional services
performed by the Grantor with limits of not less than $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
Grantor in any policy year.
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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 Granted
Property is located (copies of which will be delivered to the Indenture Trustees
on the Closing Date) and shall provide that: (i) the Indenture Trustees and the
holders of the Notes shall be named as additional insureds, as their interest
may appear, (ii) the Indenture Trustees' interest shall be insured regardless of
any breach or violation by the Grantor of any warranties, declarations or
conditions contained in such policies, (iii) such insurance, as to the interest
of the Indenture Trustees therein, shall not be invalidated by the use or
operation of the Granted 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 Grantor, (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 Indenture Trustees and any such lapse,
cancellation, termination or change shall not be effective as to the Indenture
Trustees for 30 days after receipt of such notice, and (vi) appropriate
certification shall be made to the Indenture Trustees by each insurer with
respect thereto.
(e) Loss Payee. Provided no Default or Even t 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 Granted
Property shall be adjusted with the insurance companies by the Grantor, subject
to the approval of the Indenture Trustees if the loss exceeds 4100,000. The loss
so adjusted shall be paid to the Indenture Trustees pursuant to said loss
payable clause unless said loss is $100,000 or less in which case said loss
shall be paid directly to the Grantor, provided no Default or Event of Default
has occurred and is continuing, in which event any such loss shall be paid to
the Indenture Trustees.
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2.7. Payment of Taxes and Other Charges. The Grantor 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 rent sand 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 Granted Property or any part thereof or upon the real
property describe din annex A and required to be paid under the terms of the
Ground Lease or upon this Deed of Trust or the Notes secured thereby, or upon
the revenues, rents, issues, income and profits in respect of the Granted
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 Granted
Property or any part thereof, or upon the revenues, rents, issues, income and
profits of the Granted Property or in the diminution thereof or would result in
any material interference with the use or operation of the Granted Property by
the Grantor, (b) al 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 Granted Property, or any portion thereof, or upon the
revenues, rents, issues, income and profits of the Granted Property whether or
not the failure to pay any such tax, duty or impost might result in the creation
of a lien upon any assets of the Grantor or the Granted Property, or any portion
thereof, or upon the revenues, rents, issues, income and profits of the Granted
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 Grantor or the Granted
Property or any part thereof or upon the revenues, rents, issues, income and
profits of the Granted Property or in the diminution thereof, and whether or not
any such tax, duty or impost is payable directly by the Grantor 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 Granted Property or upon the revenues, rents, issues, income
and profits of the Granted Property 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 Grantor, without expense to the Indenture Trustees.
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Nothing in this section 2.7 shall require the payment of any sum which
is required to be paid by the Grantor pursuant to this section 2.7 so long as
the Grantor 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
Grantor or any material interference with the use or operation thereof by the
Grantor, and shall set up a a reserve, reasonably adequate, in the opinion of
the President or any Vice President of the Grantor against any such payment.
2.8. Advances. If the Grantor shall fail to comply with the covenants
contained herein or in the Note Agreements or the Indenture with respect to the
procuring of insurance, the payment of taxes, assessments and other charges, or
the keeping of the Granted Property in repair and free of other liens, the
Indenture Trustees may make advances to perform the same; and the Grantor 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 Guaranty Trust Company of New York from time to
time in New York City as its prime rate plus (B) 1% after demand; and evidenced
by the Notes or any of them; but no such advance shall be deemed to relieve the
Grantor form any default hereunder.
2.9. Recordation. The Grantor will, at its own expense, cause this
Deed of Trust, 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 Security Trustee and Indenture Trustees
hereunder, and will furnish to the Indenture Trustees promptly, and in any event
within thirty (30) days, after the execution and delivery of this Deed of Trust
and of each supplement an Opinion of Counsel stating that in the opinion of such
counsel this Deed of Trust 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.
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 Grantor or the Security Trustee
and Indenture Trustees and be, subject to the lien of this Deed of Trust as
22
fully and completely as though specifically described herein; but nevertheless
the Grantor shall from time to time, if requested by the Indenture Trustees,
execute and deliver any and all such further assurances, conveyances and
assignments thereof as the Indenture Trustees may reasonably require for the
purpose of expressly and specifically subjecting to the lien of this Deed of
Trust 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 Deed of Trust pursuant to the
Indenture or any supplemental indenture referencing this Deed of Trust, or which
is evidenced by any instrument stating that the indebtedness hereby secured is
secured by this Deed of Trust, shall be defined as a Future Advance. This
paragraph shall serve as notice to any subsequent encumbrancer of the Granted
Property that the Security Trustee and the Indenture Trustees claim the priority
of the lien of this Deed of Trust for all such Future Advances, as well as for
all other indebtedness hereby secured. This paragraph shall also be notice that
the Indenture Trustees reserve the right to modify, extend, consolidate, and
renew the indebtedness hereby secured, or any portions thereof, and the rates of
interest charge thereon, without affecting the priority of the lien created by
this Deed of Trust.
SECTION 3. POSSESSION, USE AND RELEASE OF PROPERTY.
3.1. Possession by Company; Dispositions Without Release. So long as
no Default or Event of Default has occurred and is continuing, the Grantor shall
be permitted, subject to the provisions of this Section, to possess, use,
manage, operate and enjoy the Granted Property and to collect, receive, use,
invest and dispose of the rents, issues, profits, and other income from the
Granted Property, with power, in the ordinary course of business, freely and
without hindrance on the part of the Indenture Trustees, 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.
The Grantor shall have the right, from time to time if no Default
exists hereunder, without any release from or consent by the Indenture Trustees,
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(a) to sell or otherwise dispose of, free from the lien of this
Deed of Trust, any Equipment subject to the lien hereof which, in the
judgment of the Company, may have become obsolete or unfit for use or
no longer useful, necessary or profitable in the conduct of the
business of the Grantor 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 Grantor as, and costing not less than the
amount realized form, the property disposed of, which shall forthwith
become, without further action, subject to the lien of this Deed of
Trust;
(b) to the extent permitted under the Ground Lease, or in
conjunction with the Fee Owner, to grant rights-of-way and easements
over or in respect of any Granted Property, provided that such grant
will not, in the opinion of the Grantor expressed in an Officers'
Certificate furnished to the Indenture Trustees, impair the usefulness
of such property in the conduct of the Grantor's business and will not
be prejudicial to the interests of the holders of the Notes and
provided, further, that any cash consideration in excess of $50,000
received by the Grantor upon or in connection with the granting
thereof, forthwith upon its receipt by the Grantor, shall be deposited
with the Indenture Trustees;
(c) to alter, repair, replace, change the location or position of
and add to the Granted Property, provided that no change shall be made
in the location of any such property subject to the lien of this Deed
of Trust which removes such property into a jurisdiction in which this
Deed of Trust and any required financing or continuation statements
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 and sublease to others form time to time offices and
related areas included in the Granted Property, other than any thereof
essential to the operations carried on at the Granted Property;
provided that such lease is (i) by its terms expressly made subject to
24
the lien of this Deed of Trust and (ii) assigned to the Security
Trustee and/or the Indenture Trustees shall be required by the
Indenture Trustee, by an instrument in recordable form and otherwise
satisfactory in form and substance to the Indenture Trustees; and
further provided that the Grantor shall not lease or sublease all or
substantially all of the Granted Property without the prior written
consent of the Required Holders.
The Grantor will deliver to the Indenture Trustees, 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 Grantor) and the aggregate fair value to the
Grantor 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, deeds of trust, financing statements or other instruments as may be
necessary for the purpose of effectually 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,
deeds of trust, financing statements, lease assignments or other instruments
have been duly executed and are sufficient for such purpose or that no such
supplemental mortgages, deeds of trust, financing statements, lease assignments
or instruments are necessary.
3.2. Eminent Domain. If all or any of the Granted 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 Security Trustee at the request and
direction of the Indenture Trustees may release the property so taken and shall
be fully protected in so doing upon the Indenture Trustees being furnished with:
(a) an Officers' Certificate requesting such release, describing
the property so to be released and stating that such property has 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;
25
(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 Indenture Trustees 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, each equal to
such award to be held and applied by the Indenture Trustees 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 Security Trustee, the Indenture Trustees 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 of or lessee of any
property or rights permitted by this Article to be sold, leased or otherwise
disposed of by the Grantor shall be under any obligation to ascertain or inquire
into the authority of the Grantor to make any such sale, lease or other
disposition. Any release executed by the Security Trustee, the Indenture
Trustees or the holders of the Notes under this Section shall be sufficient for
the purpose of this Deed of Trust and shall constitute a good and valid release
of the property therein described from the lien hereof.
3.4. Release of Granted Property - Indenture Trustees 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 from
time to time by the holders of the Notes, the Grantor may sell or otherwise
dispose of any Granted Property then subject to the lien of this Deed of Trust
or any deed of trust supplement hereto, and the Security Trustee at the request
of the Indenture Trustees shall, subject to the terms of the Indenture, release
the same from the lien hereof.
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SECTION 4. APPLICATION OF INSURANCE AND CERTAIN OTHER MONEYS RECEIVED BY THE
INDENTURE TRUSTEES.
4.1. Insurance Proceeds and Condemnation Awards. (a) All proceeds of
fire and extended coverage insurance and of condemnation awards covering the
Granted Property equal to or in excess of $100,000 received by the Trustee under
the provisions of this Deed of Trust and/or the Indenture or any instruments
supplemental hereto or thereto, or under any policy or policies of insurance
covering the Granted Property or any part thereof, shall be held by the
Indenture Trustees as part of the Granted Property and shall be applied by the
Indenture Trustees 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 Granted Property (as evidenced by an Officers' Certificate
of the Grantor 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 Granted Property, the Grantor shall prepay the Notes
pursuant to Section 3.3 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 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 Grantor in accordance with clause (ii) below. Any
application of moneys pursuant to his section 4.1(m)(i) shall be made by
the Grantor within 60 days after the completion of the rebuilding or
restoration of the Granted 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 Grantor from time to time upon a written
application signed by the President and any Vice President of the Grantor
and accompanied by an approving certificate of an architect or engineer
selected by the Grantor and approved by the Indenture Trustees, for the
purpose of paying, or reimbursing the Grantor 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
27
application is made therefore within 12 months of the receipt of such
proceeds by the Indenture Trustees, and then only for an to the extent that
the Grantor shows by such architect's or engineer's certificates or other
evidence satisfactory to the Indenture Trustees that the portion of such
proceeds remaining on deposit with the Indenture Trustees, together with
any additional funds irrevocably allocated or otherwise provided for in a
manner satisfactory to the Indenture Trustees for such purpose, shall be
sufficient to complete such repairs or replacements and restore the Granted
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 form liens or encumbrances except this
Deed of Trust and Permitted Encumbrances. Every such application for the
payment f such insurance or condemnation moneys shall state that no Default
or Event of Default has occurred and is continuing and shall be accompanied
by a 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 of the date of such payment, the property will be subject to the lien of
this Deed of Trust as a first lien thereon subject only to Permitted
Encumbrances. The Grantor will remain solely responsible for the
rebuilding, restoration or substitution of the Granted 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 than $100,00 and no Default or Event of Default shall have occurred
and be continuing under this Deed of Trust, the amount payable in respect of any
such loss will be received by the Indenture Trustees and shall be by the
Indenture Trustees paid over immediately to the Grantor for use by the Grantor
in paying for replacement or repair of or substitutes for the damaged or
destroyed property.
(c) Subject to section 2.6(e) hereof with respect to adjustments of
losses, any appraisal or adjustment of such loss or any settlement or payment of
indemnity therefore which shall be agreed upon between the Grantor and the
relevant insurance company shall be accepted by the Indenture Trustees.
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(d) In the event 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 Indenture Trustees 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 Grantor 10 days's 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
prepayment to be released to the Grantor. 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 Indenture
Trustees in connection with the release of property shall be held by the
Indenture Trustees as part of the Granted Property and shall be applied by the
Indenture Trustees 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 Grantor 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 Grantor.
SECTION 5. DEFAULTS AND REMEDIES THEREFOR.
5.1. Events of Default. The Grantor acknowledges and agrees, without
limitation, that each and all of the terms and provisions of Section 5.1 of the
Indenture have been and are incorporated into this Deed of Trust by reference to
the same extent as though fully set out herein and that the term Event of
Default wherever used in this Deed of Trust shall mean 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 Indenture Trustees (or the Security Trustee as may be required
by law) 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
29
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 Indenture Trustees may, by notice in writing to the Grantor,
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 6.4 of the Indenture) shall be and become
immediately due and payable.
(b) The Indenture Trustees (or the Security trustee as may be required
by law) personally or by agents or attorneys may enter into and take
possession of all or any part of the Granted Property, and may forthwith
use, operate and manage the Granted 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 Grantor hereunder and apply the net proceeds arising
from any such operation of the Granted Property as provided in section 5.3
hereof in respect of the proceeds of a sale of the Granted Property.
(c) (i) The Indenture Trustees (or the Security Trustee as may be
required by law) may pursuant to the power of sale granted hereunder, if at
the time such action may be lawful and always subject to compliance with
any mandatory legal requirements, either with or without taking possession
and either before or after taking possession and without instituting any
legal proceedings whatsoever and having first given notice of such sale by
registered or certified mail to the grantor once at least 20 days prior to
the date of such sale, and any other notice which may be required by law,
sell and dispose of said Granted Property or any part thereof at public
auction or private sale, as permitted by applicable law, to the highest
bidder, which may be the Grantor, in one lot as an entirety or in separate
lots (the Grantor for itself and for al who may claim by, through or under
it hereby expressly waiving and releasing all rights to have the property
30
covered by the lien of this Deed of Trust marshalled), and either for cash
or on credit, as permitted by applicable law, and on such terms as the
Indenture Trustees (or the Security Trustee as may be required by law) may
determine and at any place (whether or not it be the location of the
Granted Property or any part thereof) designated in the notice above
referred to. Any such sale or sales may be adjourned from time to time by
announcement at the time and place appointed for such sale or sales or for
any such adjourned sale or sales, without further published notice.
(ii) The Indenture Trustees (or the Security Trustee as may be
required by law) shall give written notice of the time and place of sale
legally describing the Granted Property to be soled by each of the
following methods:
(A) publication of such notice in a newspaper of general
circulation in the county wherein the Granted Property to be sold is
located (the "County"); such notice to be published at least once a
week for four consecutive weeks, with the last date of publication to
be not less than ten nor more than thirty days prior to the date fixed
for the sale;
(B) posting of such notice, at least twenty days before the date
of sale in come conspicuous place of the Granted Property to be sold,
if such can be accomplished without a breach of the peace, and at one
of the places provided for posting public notices at the court house
of the County;
(C) recording of such notice in the office of the recorder of the
County; and
(D) giving notice to all persons so requesting or who appear on
the records of the county recorder of the County to have an interest
in any of the Granted Property, in accordance with the requirements of
Title 33, Chapter 6.1, Section 33-809.
31
The Indenture Trustees (or the Security Trustee as may be
required by law) shall also, within five days after the recordation of
such notice of sale, mail by certified or registered mail, with
postage prepaid, a copy of any notice of sale to each party to this
Deed of Trust. Notice to each such party shall contain a statement
that an Event of Default has occurred, and setting forth the nature of
such Event of Default and of the election of the Indenture Trustees
(or the Security Trustee as may be required by law) to sell or cause
to be sold the Granted Property, and such notice shall be signed by
this agent.
The sale shall be held at the time and place designated in the
notice of sale hereinabove referred to, on a day other than a
Saturday, Sunday, or legal holiday, between the hours of nine o'clock
A.M. and five o'clock P.M at a specified place on the Granted
Property, at the court house or at a specified place at the principal
place of business of the Security Trustee, in the County.
The provisions hereof with respect to posting and giving notices
of sale are intended to comply with the provisions of Title 33,
Chapter 6.1 of the Arizona Revised Statutes, as amended, and in the
event the requirement for any notice under such Title 33, Chapter 6.1,
shall be eliminated or the prescribed manner of giving same is
modified by future amendment to such Title 33, Chapter 6.1, the
requirement for such particular notice shall be stricken from or
modified in this instrument in conformity with such amendment. The
manner herein prescribed for serving or giving any notice, other than
that to be posted or caused to be posted by the Indenture Trustees (or
the Security Trustee on behalf of the Indenture Trustees), shall not
be deemed exclusive but such notice or notices may be given in any
other manner which may be permitted by applicable la.w
If at the time designated in the notice of sale, the Security
Trustee, or the attorney conducting the sale, deems it in the interest
of the Indenture Trustees or the Beneficiaries, or both, to postpone
or continue the sale, he may postpone or continue the sale, giving
notice of the new time and place by public declaration at the time and
32
place last appointed for sale without further published notice. The
purchaser at the sale shall forthwith pay the price bid, either for
cash or on credit and on such terms as the Security Trustee may
determine and at any place (whether or not it be the location of the
Granted Property or any part thereof) designated in the notice above
referred to. Upon receipt of payment the Security Trustee shall
execute and deliver its deed without covenant or warranty expression
implied.
(d) In lieu of the sale pursuant to the power of sale conferred
by this Deed of Trust, at the option of the Indenture Trustees, this
Deed of Trust may be foreclosed in the same manner provided by law for
the foreclosure of mortgages on real property. The Indenture Trustees
shall also have all other rights and remedies available to them
hereunder and at law or in equity, specifically including but not
limited to those described in section 33-702.B of the Arizona Revised
Status, as amended, or any similar or successor statute for the
collection of rents, issues and profits and Arizona Revised Statutes
section 47-9101 et. seq., as amended. All rights and remedies shall be
cumulative. At any time the Indenture Trustees may declare themselves
to be a trustee and may treat this document as a mortgage. In such
event, (i) the Security Trustee shall have not authority and shall be
disregarded, (ii) the references to the "Trustee" shall be deemed to
refer to Indenture Trustees to the extent not inconsistent with
interpreting this instrument as though it were a mortgage, and (iii)
the Grantor in its capacity as mortgagor shall have been deemed to
have conveyed the Granted Property ab initio to the Indenture Trustees
as trustee, such conveyance for security and to be void upon the
condition that the Grantor pay all indebtedness hereby secured and
perform all of its obligations hereby secured.
(e) The Indenture Trustees may proceed to protect and enforce
their 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 Deed or Trust, or for
the enforcement of any other appropriate legal or equitable remedy.
33
Upon the bringing of any suit to foreclose this Deed of Trust 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 Grantor or anyone claiming under, by or through it, and without
regard to the solvency or insolvency of the Grantor or the then value
of the Granted Property, to have a receiver appointed of all the
Granted 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 Grantor does hereby irrevocably
consent to such appointment
(f) in case of any sale of the Granted 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 Deed of
Trust, 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 Indenture Trustees
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, or sale pursuant to the
power of sale, or U.C.C. sale, the Granted Property shall be sold for
a sum less than the total amount of indebtedness for which judgment is
therein given, the Indenture Trustees shall be entitled to the entry
of a deficiency decree against the Grantor and against the property of
the Grantor for the amount of such deficiency.
(g) In addition to any other remedies provided for hereby or by
law, the Indenture Trustees shall have the rights of a secured party
under the Uniform Commercial Code of the jurisdiction in which the
Granted Property is located upon the occurrence and continuance of an
Event of Default hereunder. Any requirement of said Uniform Commercial
Code for reasonable notification shall be met by mailing written
notice to the Grantor, 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.
34
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 Deed of Trust or the Indenture, the Indenture
Trustees 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 Deed of Trust.
5.3. Application of Proceeds. The purchase money proceeds and/or
avails of any sale of the Granted 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 Indenture Trustees pursuant to the provisions
of section section 2.6 and 3.2 hereof shall be paid to the Indenture Trustees
under the Indenture and such Indenture Trustees shall apply such proceeds and
avails, and all insurance monies and proceeds or awards of condemnation held by
the Indenture Trustees during the continuation of any Event of Default, in the
manner provided in section 6.10 of the Indenture or to the extent section 6.10
of the Indenture conflicts with section 33-812A of the Arizona Revised Statutes,
as amended, then in accordance with section 33-812A of the Arizona Revised
Statutes, as amended, but only to the extent required to be in compliance
therewith.
5.4. Waiver of Extension, Appraisement and Stay Laws. The Grantor
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 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 Granted
Property or any part thereof prior to any sale or sales thereof to be made
pursuant to any provision 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,
35
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 Indenture Trustees' 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 Indenture Trustees 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 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 Grantor in and to the
property sold and shall be a perpetual bar, both at law and in equity, against
the Grantor, its successors and assigns, and against any and all persons
claiming the property sold or any part thereof under, by or through the Grantor,
its successors or assigns.
5.5. Effect of Discontinuance of Proceedings. In case the Indenture
Trustees (or the Security Trustee on behalf of the Indenture Trustees) shall
have proceeded to enforce any right under this Deed of Trust by foreclosure,
sale, entry or otherwise, and such proceedings shall have been discontinued or
abandoned for any reason or shall have been determined adversely, than and in
every such case the Grantor and the Indenture Trustees (or the Security Trustee
on behalf of the Indenture Trustees) 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 Deed of
Trust.
5.6. Delay or Omission Not a Waiver. No delay or omission of the
Indenture Trustee to exercise any right or power arising from any default on the
part of the Grantor shall exhaust or impair any such right or power or prevent
its exercise during the continuance of such default. No waiver by the Indenture
Trustees (or the Security Trustee on behalf of the Indenture Trustees) 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 exclusively of any other remedy but each and every remedy shall to cumulative
and in addition to any and every remedy given hereunder or otherwise existing.
Nor shall the giving, taking or enforcement of any other or additional security,
36
collateral or guaranty for the payment of the indebtedness secured under this
Deed of Trust operate to prejudice, waive or affect the security of this Deed of
rust or any rights, powers or remedies hereunder nor shall the Indenture
Trustees (or the Security Trustee on behalf of the Indenture Trustees) 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
Deed of Trust contained by or on behalf of the Grantor, or by or on behalf of
the Indenture Trustees (or the Security Trustee on behalf of the Indenture
Trustees), shall bind and inure to the benefit of the respective successors and
assigns of such parties whether so expressed or not. The Grantor expressly
waives the benefits of section section 12-1641 and 12-1642 of the Arizona
Revised Statutes, as amended, and Arizona Rule of Civil Procedure 17(f) or such
similar provisions as may hereafter be adopted or enacted.
6.2. Severability. The unenforceability or invalidity of any provision
or provisions of this Deed of Trust shall not render any other provision 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:
If to the Grantor: Mesa Psychiatric Hospital,
Inc.
000 Xxxx Xxxxx Xxxx
Xxxx, Xxxxxxx 00000
Attention: Chief Financial
Officer
FAX: ________________________
Telephone: __________________
37
If to the Security Transamerica Title Insurance
Trustee: Company
000 Xxxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: __________________
FAX: (602) __________________
Telephone: __________________
If to the Indenture The Citizens and Southern
Trustees: Bank,
as trustee under an
Indenture of Trust dated
as of March 31, 1990
00 Xxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust
Department
FAX: (000) 000-0000
Telephone: (000) 000-0000
Any party may designate an 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 Deed of Trust 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 Deed of Trust. The Indenture Trustees shall release
and discharge this Deed of rust 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 Deed of Trust may be executed, acknowledged
and delivered in any number of counterparts, each of such counterparts
constituting an original but all together only one Deed of Trust.
6.7. GOVERNING LAW. THIS DEED OF TRUST SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH ARIZONA LAW.
6.8. Successor Security Trustee. The Beneficiaries may appoint a
successor Security Trustee in the manner prescribed by section 33-804 of the
Arizona Revised Statutes, as amended, or any successor statute. The Security
Trustee may resign by the giving of written notice of such registration to the
38
Beneficiaries and by such further acts as are required by law. If the Security
Trustee shall resign or become disqualified from executing the obligations under
this Deed of rust or shall fail or refuse to execute the same when requested by
the Beneficiaries to do so, of if, for any reason, the Beneficiaries shall
prefer to appoint a substitute trustee, and if preferred, several substitute
trustees in succession, each such successor trustee shall succeed to all the
estates, rights, powers and duties of the aforenamed Security Trustee.
39
IN WITNESS WHEREOF, the Grantor has cause this Deed of Trust to be
executed in its behalf by its President and attested by its Assistant Secretary,
all as of the day and year above written.
MESA PSYCHIATRIC HOSPITAL, INC.
By______________________________
Its President
ATTEST:
____________________________________
Assistant Secretary
40
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
On this ________ day of April, 1990, before me, __________, a Notary
Public, personally appeared Xxxxx X. Xxxxx, who acknowledged himself to be the
President of Mesa Psychiatric Hospital, Inc., an Arizona 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.
_____________________________
Notary Public
(Notarial Seal)
LEGAL DESCRIPTION OF REAL PROPERTY
PARCEL NO. 1
That part of the East half of the Northwest quarter of the Northeast quarter of
Section 16, Township 1 North, Range 5 East of the Gila and Salt River Base and
Meridian, Maricopa County, Arizona, described as follows:
COMMENCING at the Northeast corner of said Section 16;
thence South 88 degrees 40' 15" West 1253.68 feet to the
Northeast corner of the North 695.00 feet of
said East half;
thence continuing South 00 degree 10' 08" East 2.86 feet
along said East line to a point on the
Northwesterly Right-of-Way line for "Xxxxx
Road" as set forth in instrument recorded in
Docket 9044, page 91 records of said County;
thence along said Northwesterly Right-of-Way,
along a curve to the left having a radius of
470.74 feet, a delta of 32 degrees 30' 03", and a
chord bearing and distance of South 35 degrees 19'
23" West, 263.46 feet, to a Point of Spiral
Curve;
thence continuing along said Northwesterly Right-
of-Way, along said spiral curve to the left,
having an "A" of 10 and a chord bearing and
distance of South 14 degrees 10' 49" West, 115.49
feet, to a Point of Curve;
thence continuing along said Northwesterly Right-
of-Way, along a curve to the left having a
radius of 3183.02 feet, a delta of 00 degree 52'
34" and a chord bearing and distance of South
10 degrees 25' 43" West, 48.66 feet to the most
Southerly corner of that certain parcel
described in said Memorandum of Lease;
thence along a non-tangent line North 12 degrees 58' 08"
West (Record North 12 degrees 43' West) 381.00 feet
to a point on the South line of the North
695.00 feet of said Northwest quarter of the
Northeast quarter, said point being South 88 degrees
40' 15" West, (Record South 88 degrees 47' West)
275.00 feet from the East line of said
Northwest quarter of the Northeast quarter;
thence South 88 degrees 40' 15" West 349.01 feet along
said South line of the North 695.00 feet as
set forth in said Memorandum of Lease;
2
ANNEX A
(to Deed of Trust and Security Agreement)
EXCLUDED PROPERTY
The property covered by the following U.C.C. filing Statements
constitutes Excluded Property hereunder:
FILING LOCATION: SECRETARY OF STATE, ARIZONA
DEBTOR: Healthcare Service America
SECURED PARTY: Xxxxxxxx Leasing
FILING NO.: 481266
DATE FILED: April 10, 1987
COLLATERAL: Leased copier equipment
FILING LOCATION: SECRETARY OF STATE, ARIZONA
DEBTOR: Healthcare Services of America
SECURED PARTY: Xxxxxxxx Leasing
FILING NO.: 482958
DATE FILED: April 24, 1987
COLLATERAL: Leased office equipment
SCHEDULE I
Purchasers
Aetna Life Insurance Company
Xxxxxxxx, Xxxxxxxxxxx 00000
Monumental Life Insurance Company
x/x Xxxxxxxxxx Xxxxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Connecticut Mutual Life Insurance Company
Xxxxxxxx, Xxxxxxxxxxx 00000
SCHEDULE II
Assigned Agreements
NONE.
Schedule II
(to Deed of Trust and Security Agreement)
SCHEDULE III
Pledged Shares
NONE.
Schedule III
(to Deed of Trust and Security Agreement)
