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EXHIBIT 10.9
THIS INSTRUMENT WAS PREPARED
BY, AND UPON RECORDING SHOULD
BE RETURNED TO:
Xxx X. Xxxxx, Esq.
Walston, Wells, Xxxxxxxx & Bains, LLP
000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
000-000-0000
STATE OF ALABAMA )
COUNTY OF MADISON )
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (this "Instrument"), is made as of
the 29th day of March, 2001, by and between DIVERSICARE WINDSOR HOUSE, LLC, a
Delaware limited liability company ("Mortgagor"), whose address is 000 Xxxxxxx
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxx 00000, and GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation (together with its successors and assigns,
"Mortgagee"), whose address is 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000.
RECITALS
A. Mortgagor is indebted to Mortgagee for money loaned in the principal
sum of Four Million Seven Hundred Nine Thousand and No/100 Dollars
($4,709,000.00) (the "Loan"), as is evidenced by that certain Promissory Note of
even date herewith from Mortgagor, payable to the order of Mortgagee in
installments of principal and/or interest thereon, such final installment being
due on March 1, 2006.
B. As a condition precedent to making the Loan, Mortgagee has required
that Mortgagor execute this Instrument as security for the Loan and the other
Indebtedness (as hereinafter defined).
GRANTING CLAUSES
NOW, THEREFORE, for and in consideration of the Indebtedness, and to
secure the prompt payment thereof, Mortgagor does hereby irrevocably grant,
bargain, sell, convey, assign, transfer, mortgage, pledge and set over unto
Mortgagee, its successors and assigns forever, and grants to Mortgagee a
security interest in and to, the Mortgaged Property (as hereinafter defined).
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TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto
Mortgagee, its successors and assigns forever, subject however to the terms and
conditions herein:
PROVIDED, HOWEVER, that if Mortgagor shall pay to Mortgagee the entire
Indebtedness, at the times and in the manner stipulated herein, in the Note (as
hereinafter defined) and in the other Loan Documents (as hereinafter defined),
all without any deduction or credit for taxes or other similar charges paid by
Mortgagor, and shall cause all other obligated parties to, keep, perform, and
observe all and singular the covenants and promises herein, in the Note and in
each of the other Loan Documents to be kept, performed, and observed, all
without fraud or delay, then this Instrument, and all the properties, interests,
and rights hereby granted, bargained, and sold shall cease, terminate, and be
void, but shall otherwise remain in full force and effect.
AGREEMENT
AND Mortgagor and Mortgagee covenant and agree as follows:
1. DEFINITIONS. The following terms, when used in this Instrument
(including when used in the above recitals), shall have the following meanings:
(a) "1933 ACT" has the meaning given to that term in Section 13.
(b) "ACCOUNTS" means any rights of Mortgagor arising from the
operation of the Facility to payment for goods sold or leased or for services
rendered, not evidenced by an Instrument, including, without limitation, (i) all
accounts arising from the operation of the Facility, (ii) all moneys and
accounts, if any, held by Mortgagee pursuant to this Instrument or any other
Loan Document, and (iii) all rights to payment from Medicare or Medicaid
programs or similar state or federal programs, boards, bureaus or agencies, and
rights to payment from patients, residents, private insurers, and others arising
from the operation of the Facility, including rights to payment pursuant to
Reimbursement Contracts. Accounts shall include the Proceeds thereof.
(c) "AFFILIATE" means, with respect to any Person, (i) each Person
that controls, is controlled by or is under common control with such Person,
(ii) each Person that, directly or indirectly, owns or controls, whether
beneficially or as a trustee, guardian or other fiduciary, any of the Stock of
such Person, and (iii) each of such Person's officers, directors, members, joint
venturers and partners.
(d) "APPURTENANT RIGHTS" means all air rights, development rights,
zoning rights, easements, rights-of-way, strips and gores of land, vaults,
streets, roads, alleys, tenements, passages, sewer rights, waters, water
courses, water rights and powers, minerals, flowers, shrubs, crops, trees,
timber and other emblements now or hereafter appurtenant to, or used or useful
in connection with, or located on, under or above the Land, or any part or
parcel thereof, and all ground leases, estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments and appurtenances, reversions,
and remainders whatsoever, in any way belonging, relating or appertaining to the
Land, or any part thereof, now or hereafter.
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(e) "ASSIGNMENT OF LEASES AND RENTS" means that certain Assignment of
Leases and Rents of even date herewith executed by Mortgagor for the benefit of
Mortgagee.
(f) "ASSIGNMENT OF LICENSES" means that certain Assignment of
Licenses, Permits and Contracts of even date herewith executed by Mortgagor for
the benefit of Mortgagee.
(g) "BUSINESS DAY" means a day, other than Saturday, Sunday or legal
holidays, when Mortgagee is open for business.
(h) "COLLATERAL AGREEMENTS" means collectively, as applicable, the
Debt Service Reserve Escrow and Security Agreement of even date herewith by and
between Mortgagor and Mortgagee.
(i) "CONDEMNATION" has the meaning given to that term in Section 12.
(j) "CONTRACTS" means all license agreements, operating contracts,
and all management, service, employment, supply and maintenance contracts and
agreements, and any other agreements, licenses or contracts of any nature
whatsoever now or hereafter obtained or entered into by Mortgagor with respect
to the acquisition, construction, renovation, expansion, ownership, occupancy,
use, operation, maintenance and administration of the Facility and/or the
Mortgaged Property, including, without limitation, (i) any and all contracts,
authorizations, agreements and/or consents executed by, or on behalf of any
patient or other Person seeking services from Mortgagor pursuant to which
Mortgagor provides or furnishes skilled nursing care and related services at the
facility, including the consent to treatment and assignment of payment of
benefits by third party and (ii) any and all contracts between Mortgagor and any
resident of the Facility giving the resident certain rights of occupancy in the
Facility and providing for certain services to such resident.
(k) "CROSS COLLATERALIZATION AND CROSS-DEFAULT AGREEMENT" means that
certain Cross Collateralization and Cross-Default Agreement of even date
herewith executed by Mortgagor, Mortgagee and Diversicare of Pinedale, LLC.
(l) "DEFAULT RATE" has the meaning given to that term in the Note.
(m) "EQUIPMENT" means all beds, linen, televisions, carpeting,
telephones, cash registers, computers, lamps, glassware, rehabilitation
equipment, restaurant and kitchen equipment, and other fixtures and equipment of
Mortgagor located on, attached to or used or useful in connection with any of
the Mortgaged Property or the Facility and all renewals and replacements thereof
and substitutions therefor; provided, however, that with respect to any items
which are leased for the benefit of the Facility and not owned by Mortgagor, the
Equipment shall include the leasehold interest only of Mortgagor together with
any options to purchase any of said items and any additional or greater rights
with respect to such items which Mortgagor may hereafter acquire, but the
foregoing shall not be construed to mean that such leasing shall be permitted
hereunder and under the other Loan Documents.
(n) "EVENT OF DEFAULT" means the occurrence of any event listed in
Section 14.
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(o) "FACILITY" means the facility known as "Windsor House," presently
a 134-bed licensed facility (117-bed licensed skilled nursing and 17-bed
licensed congregate assisted living)located on the Land, as it may now or
hereafter exist, together with any other general or specialized care facilities,
if any (including any Alzheimer's care unit, subacute, and any skilled nursing
facility), now or hereafter operated on the Land.
(p) "FIXTURES" means all property which is now or hereafter so
attached to the Land or the Improvements as to constitute a fixture under
applicable law and all renewals and replacements thereof and substitutions
therefor, including, without limitation: machinery, equipment, engines, boilers,
incinerators, installed building materials; systems and equipment for the
purpose of supplying or distributing heating, cooling, electricity, gas, water,
air, or light; antennas, cable, wiring and conduits used in connection with
radio, television, security, fire prevention, or fire detection or otherwise
used to carry electronic signals; telephone systems and equipment; elevators and
related machinery and equipment; fire detection, prevention and extinguishing
systems and apparatus; security and access control systems and apparatus;
plumbing systems; water heaters, ranges, stoves, microwave ovens, refrigerators,
dishwashers, garbage disposers, washers, dryers and other appliances; light
fixtures, awnings, storm windows and storm doors; pictures, screens, blinds,
shades, curtains and curtain rods; mirrors; cabinets, paneling, rugs and floor
and wall coverings; fences, trees and plants; and exercise equipment.
(q) "GENERAL INTANGIBLES" means all intangible personal property of
Mortgagor arising out of or connected with the Mortgaged Property or the
Facility and all renewals and replacements thereof and substitutions therefor
(other than Accounts, Rents, Instruments, Inventory, Money, Permits and
Reimbursement Contracts), including, without limitation, things in action,
contract rights and other rights to payments of Money.
(r) "GOVERNMENTAL AUTHORITY" means any board, commission, department
or body of any municipal, county, state or federal governmental unit, or any
subdivision of any of them, that has or acquires jurisdiction over the Mortgaged
Property and/or the Improvements or the use, operation or improvement of the
Mortgaged Property.
(s) "GUARANTOR" means Advocat Inc., a Delaware corporation.
(t) "GUARANTY AGREEMENT" means that certain Guaranty Agreement of
even date herewith executed by Guarantor for the benefit of Mortgagee.
(u) "IMPOSITIONS" and "IMPOSITION DEPOSITS" have the meanings given
to those terms in Section 4.
(v) "IMPROVEMENTS" means all buildings, structures and improvements
of every nature whatsoever now or hereafter situated on the Land, including but
not limited to, all gas and electric fixtures, radiators, heaters, engines and
machinery, boilers, ranges, elevators and motors, plumbing and heating fixtures,
carpeting and other floor coverings, water heaters, awnings and storm sashes,
and cleaning apparatuses which are or shall be attached to the Land or said
buildings, structures or improvements.
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(w) "INDEBTEDNESS" means the aggregate of the principal of and
interest on the Note due and owing from time to time and all expenses, charges
and other amounts due and owing from time to time under the Note, the Loan
Agreement, this Instrument or any other Loan Document, including, without
limitation, prepayment premiums, late charges, default interest and advances to
protect the security of this Instrument under Section 7, if any.
(x) "INSTRUMENTS" means all instruments, chattel paper, documents or
other writings obtained by Mortgagor from or in connection with the operation of
the Mortgaged Property or the construction and operation of the Facility
(including without limitation, all ledger sheets, computer records and
printouts, data bases, programs, books of account, trademarks or trade names,
utility contracts, maintenance and service contracts and files of Mortgagor
relating thereto).
(y) "INVENTORY" means all inventories of food, beverages and other
comestibles owned and held by Mortgagor for sale or use at or from the Mortgaged
Property or the Facility, and soap, paper supplies, medical supplies, drugs and
all other such goods, wares and merchandise held by Mortgagor for sale to or for
consumption by residents, guests or patients of the Land or the Facility and all
such other goods returned to or repossessed by Mortgagor.
(z) "LAND" means the land described in Exhibit "A" attached hereto
and incorporated herein.
(aa) "LEASES" means all present and future leases, subleases,
licenses, concessions or grants or other possessory interests now or hereafter
in force, whether oral or written, covering or affecting the Mortgaged Property
and/or the Facility, or any portion of the Mortgaged Property and/or the
Facility and all modifications, extensions or renewals thereof.
(ab) "LIEN" means any voluntary or involuntary mortgage, security
deed, deed of trust, lien, pledge, assignment, security interest, title
retention agreement, financing lease, levy, execution, seizure, judgment,
attachment, garnishment, charge, lien or other encumbrance of any kind,
including those contemplated by or permitted in this Instrument, the Loan
Agreement and the other Loan Documents.
(ac) "LOAN" has the meaning given to that term in the recitals.
(ad) "LOAN AGREEMENT" means that certain Loan Agreement of even date
herewith by and between Mortgagor and Mortgagee.
(ae) "LOAN DOCUMENTS" means the Note, the Loan Agreement, this
Instrument, the Assignment of Leases and Rents, the Assignment of Licenses, the
Guaranty Agreement, all Collateral Agreements, O&M Programs, the Subordination
Agreement, the Cross-Collateralization and Cross-Default Agreement, and any
other documents now or in the future executed by Mortgagor, any guarantor or any
other Person in connection with the Loan evidenced by the Note, as such
documents may be amended from time to time.
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(af) "MANAGED CARE PLANS" means any health maintenance organization,
preferred provider organization, individual practice association, competitive
medical plan, or similar arrangement, entity, organization, or Person.
(ag) "MEDICAID" means that certain program of medical assistance,
funded jointly by the federal government and the States, for impoverished
individuals who are aged, blind and/or disabled, and/or members of families with
dependent children, which program is more fully described in Title XIX of the
Social Security Act (42 U.S.C. xx.xx. 1396 et seq.) and the regulations
promulgated thereunder.
(ah) "MEDICARE" means that certain federal program providing health
insurance for eligible elderly and other individuals, under which physicians,
hospitals, skilled nursing homes, home health care, and other providers are
reimbursed for certain covered services they provide to the beneficiaries of
such program, which program is more fully described in Title XVIII of the Social
Security Act (42 U.S.C. xx.xx. 1395 et seq.) and the regulations promulgated
thereunder.
(ai) "MONEY" means all monies, cash, rights to deposit or savings
accounts, or other items of legal tender obtained from or for use in connection
with the operation of the Facility.
(aj) "MORTGAGED PROPERTY" means all of Mortgagor's present and future
right, title and interest in and to all of the following:
(i) the Land;
(ii) all Appurtenant Rights;
(iii) all Equipment;
(iv) all Improvements;
(v) all Fixtures;
(vi) all Accounts;
(vii) all Contracts;
(viii) all General Intangibles;
(ix) all Permits (to the extent assignment is permitted by
law);
(x) all Money;
(xi) all Instruments;
(xii) all Inventory;
(xiii) all Reimbursement Contracts (to the extent assignment
is permitted by law);
(xiv) all Rents;
(xv) all Personalty;
(xvi) all Leases;
(xvii) all Proceeds;
(xviii) all contracts, options and other agreements for the
sale of the Land, the Improvements, the Fixtures, the
Personalty or any other part of the Mortgaged Property
entered into by Mortgagor now or in the future,
including cash or securities deposited to secure
performance by parties of their obligations;
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(xix) all Imposition Deposits;
(xx) all refunds or rebates of Impositions by any municipal,
state or federal authority or insurance company (other
than refunds applicable to periods before the real
property tax year in which this Instrument is dated);
(xxi) all names under or by which any of the above Mortgaged
Property may be operated or known (other than the right
to the use of the name "Diverscare"), and all
trademarks, trade names, and goodwill relating to any
of the Mortgaged Property; and
(xxii) all renewals, replacements and Proceeds of any of the
foregoing and any substitutions therefor.
(ak) "MORTGAGEE" means the entity identified as "Mortgagee" in the
first paragraph of this Instrument, or any subsequent holder of the Note.
(al) "MORTGAGOR" means all persons or entities identified as
"Mortgagor" in the first paragraph of this Instrument, together with their
successors and assigns.
(am) "NOTE" means the note evidencing the Loan, including all
schedules, riders, allonges, endorsements, addenda or amendments together with
any renewals, replacements, substitutions, or extensions thereof.
(an) "NOTICE" has the meaning given to that term in Section 24.
(ao) "O&M PROGRAMS" has the meaning given to such term in the Loan
Agreement.
(ap) "OPINION OF COUNSEL" means an opinion or opinions in writing
signed by independent legal counsel to Mortgagor, designated by Mortgagor, and
reasonably satisfactory to Mortgagee.
(aq) "PARENT" means, with respect to a corporation, any other
corporation owning or controlling, directly or indirectly, fifty percent (50%)
or more of the voting stock of the corporation.
(ar) "PERMITS" means all licenses, permits and certificates used or
necessary in connection with the construction, ownership, operation, use or
occupancy of the Mortgaged Property and/or the Facility, including, without
limitation, business licenses, state health department licenses, food service
licenses, licenses to conduct business, certificates of need and all such other
permits, licenses and rights, obtained from any governmental, quasi-governmental
or private person or entity whatsoever concerning ownership, operation, use or
occupancy.
(as) "PERMITTED ENCUMBRANCES" has the meaning given to that term in
Section 5.2 of the Loan Agreement.
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(at) "PERSON" means any natural person, firm, trust, corporation,
partnership, limited liability company and any other form of legal entity.
(au) "PERSONALTY" means all furniture, furnishings, Equipment,
machinery, building materials, appliances, goods, supplies, tools, books,
records (whether in written or electronic form), computer equipment (hardware
and software) and other tangible personal property (other than Fixtures) which
are used now or in the future in connection with the ownership, management or
operation of the Land or the Improvements or are located on the Land or in the
Improvements, and any operating agreements relating to the Land or the
Improvements, and any surveys, plans and specifications and contracts for
architectural, engineering and construction services relating to the Land or the
Improvements.
(av) "PRIOR LIEN" has the meaning given to that term in Section 26.
(aw) "PROCEEDS" means all awards, payments, earnings, royalties,
issues, profits, liquidated claims and proceeds (including proceeds of insurance
and condemnation and any conveyance in lieu thereof), whether cash or noncash,
moveable or immoveable, tangible or intangible, from the sale, conversion
(whether voluntary or involuntary), exchange, transfer, collection, loss,
damage, condemnation, disposition, substitution or replacement of any of the
Mortgaged Property.
(ax) "PROPERTY JURISDICTION" means the jurisdiction in which the
Mortgaged Property is located.
(ay) "REIMBURSEMENT CONTRACTS" means all third-party reimbursement
contracts for the Facility which are now or hereafter in effect with respect to
residents or patients qualifying for coverage under the same, including Medicare
and Medicaid, Managed Care Plans and private insurance agreements, and any
successor program or other similar reimbursement program and/or private
insurance agreements, now or hereafter existing.
(az) "RENTS" means all rent and other payments of whatever nature
from time to time payable pursuant to the Leases (including, without limitation,
rights to payment earned under leases for space in the Improvements for the
operation of ongoing retail businesses such as newsstands, barbershops, beauty
shops, physicians' offices, pharmacies and specialty shops).
(ba) "SINGLE-PURPOSE ENTITY" means a Person which owns no interest or
property other than the Mortgaged Property.
(bb) "STOCK" means all shares, options, warrants, general or limited
partnership interests, membership interests, participations or other equivalents
(regardless of how designated) in a corporation, limited liability company,
partnership or any equivalent entity, whether voting or nonvoting, including,
without limitation, common stock, preferred stock, or any other "equity
security" (as such term is defined in Rule 3a11-1 of the General Rules and
Regulations promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended).
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(bc) "SUBORDINATION AGREEMENT" means that certain Subordination of
Management Agreement of even date herewith by and among Borrower, Diversicare
Management Services, a Tennessee corporation, and Lender.
(bd) "TAXES" means all taxes, assessments, vault rentals and other
charges, if any, general, special or otherwise, including all assessments for
schools, public betterments and general or local improvements, which are levied,
assessed or imposed by any public authority or quasi-public authority, and
which, if not paid, will become a lien, on the Land or the Improvements.
(be) "TRANSFER" shall mean the conveyance, assignment, sale,
transfer, mortgaging, collateral assignment, encumbrance, pledging, alienation,
hypothecation, granting of a security interest in, granting of options with
respect to, or other disposition of (directly or indirectly, voluntarily or
involuntarily, by operation of law or otherwise, and whether or not for
consideration or of record) all or any portion of any legal or beneficial
interest (i) in all or any portion of the Mortgaged Property; (ii) in the Stock
of any corporation which is Mortgagor, a member of Mortgagor (if Mortgagor is a
limited liability company), a partner of Mortgagor or, if applicable, a partner
of a general partner of Mortgagor; and (iii) in Mortgagor (or any trust of which
Mortgagor is a trustee), or, if Mortgagor is a limited or general partnership,
limited liability company, joint venture, trust, nominee trust, tenancy in
common or other unincorporated form of business association or form of ownership
interest, in any Person having a direct legal or beneficial ownership in
Mortgagor, excluding any legal or beneficial interest in any constituent limited
partner or member of Mortgagor but including the interest of such limited
partner or member itself and further including any legal or beneficial interest
in any constituent general partner of Mortgagor, if applicable, in any general
partner of any constituent general partner of Mortgagor, or, if Mortgagor is a
limited liability company, in any constituent corporate member of Mortgagor. The
term "Transfer" shall also include, without limitation, the following: an
installment sales agreement wherein Mortgagor agrees to sell the Mortgaged
Property or any part thereof or any interest therein for a price to be paid in
installments; an agreement by Mortgagor leasing all or a substantial part of the
Mortgaged Property to one or more Persons pursuant to a single transaction or
related transactions, or a sale, assignment or other transfer of, or the grant
of a security interest in, Mortgagor's right, title and interest in and to any
Leases or any Rent; any instrument subjecting the Mortgaged Property to a
condominium regime or transferring ownership to a cooperative corporation or
other form of multiple ownership or governance; the dissolution or termination
of Mortgagor, any general partner of Mortgagor, any general partner of any
general partner of Mortgagor, if applicable, or, if Mortgagor is a limited
liability company, any corporate member of Mortgagor; the issuance of new Stock
in any corporation which is Mortgagor, a member of Mortgagor (if Mortgagor is a
limited liability company), a partner of Mortgagor or, if applicable, a partner
of a general partner of Mortgagor; and the merger or consolidation with any
other Person of Mortgagor, any general partner of Mortgagor, any general partner
of any general partner of Mortgagor, if applicable, or, if Mortgagor is a
limited liability company, any corporate member of Mortgagor.
(bf) "UCC COLLATERAL" has the meaning given to that term in
Section 2.
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2. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Instrument is also a
security agreement under the Uniform Commercial Code as adopted in the State of
Alabama for any of the Mortgaged Property which, under applicable law, may be
subject to a security interest under the Uniform Commercial Code as adopted in
the State of Alabama, whether acquired now or in the future, and all products
and cash and non-cash Proceeds thereof (collectively, "UCC Collateral"), and
Mortgagor hereby grants to Mortgagee a security interest in the UCC Collateral.
Mortgagor shall execute and deliver to Mortgagee promptly for the filing of such
financing statements and any extensions, renewals and amendments thereof, of any
termination statements and, upon Mortgagee's request, financing statements,
continuation statements and amendments, in such form as Mortgagee may require to
perfect or continue the perfection of this security interest. Mortgagor shall
pay all filing costs and all costs and expenses of any record searches for
financing statements that Mortgagee may require. Without the prior written
consent of Mortgagee, Mortgagor shall not create or permit to exist any other
lien or security interest in any of the UCC Collateral. If an Event of Default
has occurred and is continuing, Mortgagee shall have the remedies of a secured
party under the Uniform Commercial Code as adopted in the State of Alabama, in
addition to all remedies provided by this Instrument or existing under
applicable law. In exercising any remedies, Mortgagee may exercise its remedies
against the UCC Collateral separately or together and in any order, without in
any way affecting the availability of Mortgagee's other remedies hereunder
and/or under applicable law.
3. LEASES. Mortgagor shall not, without the prior written consent and
approval of Mortgagee which consent will not be unreasonably withheld, enter
into any Lease (except for admission of Facility patients or residents), or
enter into or permit any management agreement of or affecting any part of the
Mortgaged Property, except for the Management Agreement (as defined in the Loan
Agreement).
4. DEPOSITS FOR TAXES, INSURANCE AND OTHER CHARGES.
If (i) any reduction occurs in the Debt Reserve Fund below three (3)
months of debt service payments or upon evidence that Mortgagor has failed to
pay Taxes, insurance premiums or other similar charges affecting the Mortgaged
Property on a timely basis, (ii) Mortgagor does not establish a Debt Reserve
Fund on the Closing Date, or (iii) an Event of Default occurs under the Loan
Documents, then:
(a) Mortgagor shall deposit with Mortgagee on the day monthly
installments of principal and/or interest, or both, are due under the Note (or
on another day designated in writing by Mortgagee), until the Indebtedness is
paid in full, an additional amount sufficient to accumulate with Mortgagee the
entire sum required to pay, when due (i) to the extent applicable, the yearly
water and sewer charges which may be levied on all or any part of the Mortgaged
Property, (ii) the premiums for fire and other hazard insurance, business
interruption insurance and such other insurance as Mortgagee may require under
the Loan Agreement, (iii) the yearly Taxes, and (iv) amounts for other charges
and expenses which Mortgagee at any time reasonably deems necessary to protect
the Mortgaged Property, to prevent the imposition of liens on the Mortgaged
Property, or otherwise to protect Mortgagee's interests, all as reasonably
estimated from time to time by Mortgagee, plus one-sixth of such estimate. The
amounts deposited under the preceding sentence
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are collectively referred to in this Instrument as the "Imposition Deposits".
The obligations of Mortgagor for which the Imposition Deposits are required are
collectively referred to in this Instrument as "Impositions". The amount of the
Imposition Deposits shall be sufficient to enable Mortgagee to pay each
Imposition before the last date upon which such payment may be made without any
penalty or interest charge being added plus one-sixth of such estimate.
Mortgagee shall maintain records indicating how much of the monthly Imposition
Deposits and how much of the aggregate Imposition Deposits held by Mortgagee are
held for the purpose of paying property taxes, insurance premiums and each other
obligation of Mortgagor for which Imposition Deposits are required. Any waiver
by Mortgagee of the requirement that Mortgagor remit Imposition Deposits to
Mortgagee may be revoked by Mortgagee, in Mortgagee's discretion, at any time
upon notice to Mortgagor.
(b) Imposition Deposits shall be held in an institution (which may be
Mortgagee, if Mortgagee is such an institution) whose deposits or accounts are
insured or guaranteed by a federal agency. Mortgagee shall not be obligated to
open additional accounts or deposit Imposition Deposits in additional
institutions when the amount of the Imposition Deposits exceeds the maximum
amount of the federal deposit insurance or guaranty. Mortgagee shall apply the
Imposition Deposits to pay Impositions so long as no Event of Default has
occurred and is continuing. Unless applicable law requires, Mortgagee shall not
be required to pay Mortgagor any interest, earnings or profits on the Imposition
Deposits, but any interest, earnings or profits earned on the Imposition
Deposits shall belong to Grantor and shall be credited against future
installments of Imposition Deposits due. Mortgagor hereby pledges and grants to
Mortgagee a security interest in the Imposition Deposits as additional security
for all of Mortgagor's obligations under this Instrument and the other Loan
Documents. Any amounts deposited with Mortgagee under this Section 4 shall not
be trust funds, nor shall they operate to reduce the Indebtedness, unless
applied by Mortgagee for that purpose under Section 4(e).
(c) Mortgagor shall direct the applicable Governmental Authority to
deliver the invoices and bills for all Impositions to Mortgagee. If Mortgagee
receives a xxxx or invoice for an Imposition, Mortgagee shall pay the Imposition
from the Imposition Deposits held by Mortgagee. Mortgagee shall have no
obligation to pay any Imposition to the extent it exceeds Imposition Deposits
then held by Mortgagee, unless Mortgagor challenges such Impositions in
accordance with Section 9(d), below. Mortgagee may pay an Imposition according
to any xxxx, statement or estimate from the appropriate public office or
insurance company without inquiring into the accuracy of the xxxx, statement or
estimate or into the validity of the Imposition.
(d) If at any time the amount of the Imposition Deposits held by
Mortgagee for payment of a specific Imposition exceeds the amount reasonably
deemed necessary by Mortgagee plus one-sixth of such estimate, the excess shall
be credited against future installments of Imposition Deposits. If at any time
the amount of the Imposition Deposits held by Mortgagee for payment of a
specific Imposition is less than the amount reasonably estimated by Mortgagee to
be necessary plus one-sixth of such estimate, Mortgagor shall pay to Mortgagee
the amount of the deficiency within fifteen (15) days after notice from
Mortgagee.
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(e) If an Event of Default has occurred and is continuing, Mortgagee
may apply any Imposition Deposits, in any amounts and in any order as Mortgagee
determines, in Mortgagee's discretion, to pay any Impositions or as a credit
against the Indebtedness. Upon payment in full of the Indebtedness, Mortgagee
shall refund to Mortgagor any Imposition Deposits (together with any interest,
earnings or profits thereon) held by Mortgagee.
5. APPLICATION OF PAYMENTS. If at any time Mortgagee receives, from
Mortgagor or otherwise, any amount applicable to the Indebtedness which is less
than all amounts due and payable at such time, then Mortgagee may apply that
payment to amounts then due and payable in the manner set forth in the Note.
Neither Mortgagee's acceptance of an amount which is less than all amounts then
due and payable nor Mortgagee's application of such payment in the manner
authorized in the immediately preceding sentence shall constitute or be deemed
to constitute either a waiver of the unpaid amounts or an accord and
satisfaction. Notwithstanding the application of any such amount to the
Indebtedness, Mortgagor's obligations under this Instrument and the Note shall
remain unchanged.
6. USE OF PROPERTY. Unless required by applicable law, Mortgagor shall
not (a) except for any change in use approved by Mortgagee, allow changes in
the use for which all or any part of the Mortgaged Property is being used at the
time this Instrument was executed, (b) convert any part of the Facility to
commercial use, or (c) initiate or acquiesce in a change in the zoning
classification of the Mortgaged Property which would prohibit the continued use
of the Mortgaged Property as the same is being used at the time of this
Instrument.
7. PROTECTION OF MORTGAGEE'S SECURITY.
(a) If Mortgagor fails to perform any of its obligations under this
Instrument or any other Loan Document, or if any action or proceeding is
commenced which purports to affect the Mortgaged Property, Mortgagee's security
or Mortgagee's rights under this Instrument, including eminent domain,
insolvency, code enforcement, civil or criminal forfeiture, enforcement of
Hazardous Materials Laws, fraudulent conveyance or reorganizations or
proceedings involving a bankrupt or decedent, then Mortgagee at Mortgagee's
option and upon notice to Mortgagor may make such appearances, disburse such
sums and take such actions as Mortgagee reasonably deems necessary to perform
such obligations of Mortgagor and to protect Mortgagee's interest, including (i)
disbursement of fees and out of pocket expenses of attorneys, accountants,
inspectors and consultants, (ii) entry upon the Mortgaged Property to make
repairs or secure the Mortgaged Property, (iii) procurement of the insurance
coverages required under the Loan Agreement, and (iv) payment of amounts which
Mortgagor has failed to pay under Section 9.
(b) Any amounts disbursed by Mortgagee under this Section 7, or under
any other provision of this Instrument, or under any of the other Loan
Documents, that treats such disbursement as being made under this Section 7,
shall be added to, and become part of the Indebtedness, shall be immediately due
and payable and shall bear interest from the date of disbursement until paid at
the Default Rate.
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(c) Nothing in this Section 7 shall require Mortgagee to incur any
expense or take any action.
8. INSPECTION. Mortgagee, its agents, representatives, and designees may
make or cause to be made entries upon and inspections of the Mortgaged Property
(including environmental inspections and tests) during normal business hours, or
at any other reasonable time, upon reasonable advance notice to Mortgagor (which
may be oral) except in an emergency or during the continuance of an Event of
Default. Grantor may have a representative present during such entry and
inspection and any such entry and inspection shall be subject to the right of
any patients/residents of the Mortgaged Property.
9. TAXES; OPERATING EXPENSES.
(a) Subject to the provisions of Section 9(c) and Section 9(d),
Mortgagor shall pay, or cause to be paid, all Taxes when due and before the
addition of any interest, fine, penalty or cost for nonpayment.
(b) Subject to the provisions of Section 9(c), Mortgagor shall pay or
cause to be paid the expenses of operating, managing, maintaining and repairing
the Mortgaged Property (including insurance premiums, utilities, repairs and
replacements) before the last date upon which each such payment may be made
without any penalty or interest charge being added or lien imposed.
(c) As long as no Event of Default has occurred and is continuing,
Mortgagor shall not be obligated to pay Taxes, insurance premiums or any other
individual Imposition to the extent that Imposition Deposits are held by
Mortgagee for the purpose of paying that specific Imposition. If an Event of
Default exists, Mortgagee may exercise any rights Mortgagee may have with
respect to Imposition Deposits without regard to whether Impositions are then
due and payable.
(d) Mortgagor, at its own expense, may contest by appropriate legal
proceedings, conducted diligently and in good faith, the amount or validity of
any Imposition other than insurance premiums, if (i) Mortgagor notifies
Mortgagee of the commencement or expected commencement of such proceedings, (ii)
the Mortgaged Property is not in danger of being sold or forfeited, as
determined by Mortgagee, (iii) if requested by Mortgagee, Mortgagor deposits
with Mortgagee cash reserves or other collateral sufficient to pay the contested
Imposition, (iv) Mortgagor furnishes whatever security is required in the
proceedings or is reasonably requested by Mortgagee, which may include the
delivery to Mortgagee of the reserves established by Mortgagor to pay the
contested Imposition, as additional security, and (v) such contest operates to
suspend enforcement of such Imposition.
(e) Upon request by Mortgagee for a specific Imposition Mortgagor
shall promptly deliver to Mortgagee a copy of all notices of, and invoices for,
Impositions, and if Mortgagor pays any Imposition directly, Mortgagor shall
promptly furnish to Mortgagee receipts evidencing such payments.
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(f) In the event of the passage of any law subsequent to the date of
this Instrument in any manner changing or modifying the laws now in force
governing the taxation of deeds of trust or mortgages or debts secured by deeds
of trust or mortgages or the manner of collecting any such taxes so as to
adversely affect Mortgagee (including, without limitation, a requirement that
internal revenue stamps be affixed to this Instrument or any of the other Loan
Documents), Mortgagor will promptly pay any such tax. If Mortgagor fails to make
such prompt payment, or if any law prohibits Mortgagor from making such payment
or would penalize Mortgagee if Mortgagor makes such payment, then the entire
unpaid balance of the Indebtedness shall, without notice, immediately become due
and payable at the sole option of Mortgagee. In no event, however, shall any
income taxes of Mortgagee or franchise taxes of Mortgagee measured by income, or
taxes in lieu of such income taxes or franchise taxes, be required to be paid by
Mortgagor.
10. LIENS; ENCUMBRANCES. Mortgagor acknowledges that the existence of
any Lien on the Mortgaged Property, other than Permitted Encumbrances, whether
voluntary, involuntary or by operation of law, not discharged and released or
bonded off and removed from the Mortgaged Property within thirty (30) days of
its creation is a "Transfer" which constitutes an Event of Default as provided
under Section 14, and will subject Mortgagor to personal liability under the
Note.
11. PRESERVATION, MANAGEMENT AND MAINTENANCE OF MORTGAGED PROPERTY.
Mortgagor (a) shall not commit waste or permit impairment or deterioration of
the Mortgaged Property, (b) shall not abandon the Facility, (c) shall restore or
repair promptly, in a good and workmanlike manner, any damaged part of the
Mortgaged Property to the equivalent of its original condition, or such other
condition as Mortgagee may approve in writing, whether or not insurance proceeds
or condemnation awards are available to cover any costs of such restoration or
repair, except to the extent Mortgagee applies such insurance proceeds or
condemnation awards to reduce the Indebtedness, (d) shall keep the Mortgaged
Property in good repair, including the replacement of Personalty and Fixtures
with items of equal or better function and quality, (e) shall provide for
professional management of the Mortgaged Property by a manager satisfactory to
Mortgagee, in its sole discretion, under a contract approved by Mortgagee in
writing, and (f) shall give notice to Mortgagee of and, unless otherwise
directed in writing by Mortgagee, shall appear in and defend any action or
proceeding purporting to affect the Mortgaged Property, Mortgagee's security or
Mortgagee's rights under this Instrument. Mortgagor shall not (and shall not
permit any other person to) remove, demolish or alter the Mortgaged Property or
any part of the Mortgaged Property except in connection with the replacement of
tangible Personalty.
12. CONDEMNATION.
(a) Mortgagor shall promptly notify Mortgagee of any action or
proceeding relating to any condemnation or other taking, or conveyance in lieu
thereof, of all or any part of the Mortgaged Property, whether direct or
indirect (a "Condemnation"). Mortgagor shall appear in and prosecute or defend
any proceeding relating to any Condemnation unless otherwise directed by
Mortgagee in writing. Mortgagor authorizes and appoints Mortgagee as
attorney-in-fact for Mortgagor to commence, appear in and prosecute, in
Mortgagee's or Mortgagor's name, any action
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or proceeding relating to any Condemnation and to settle or compromise any claim
in connection with any Condemnation. This power of attorney is coupled with an
interest and therefore is irrevocable. However, nothing contained in this
Section 12 shall require Mortgagee to incur any expense or take any action.
Mortgagor hereby transfers and assigns to Mortgagee all right, title and
interest of Mortgagor in and to any award or payment with respect to (i) any
Condemnation, or any conveyance in lieu of Condemnation, and (ii) any damage to
the Mortgaged Property caused by governmental action that does not result in a
Condemnation.
(b) Subject to the provisions of Section 4.5 of the Loan Agreement,
Mortgagee, in its sole discretion, may apply such awards or proceeds, after the
deduction of Mortgagee's expenses incurred in the collection of such amounts, at
Mortgagee's option, to the restoration or repair of the Mortgaged Property or to
the payment of the Indebtedness, with the balance, if any, to Mortgagor. Unless
Mortgagee otherwise agrees in writing, any application of any awards or proceeds
to the Indebtedness shall not extend or postpone the due date of any monthly
installments referred to in the Note, Section 4 of this Instrument or any
Collateral Agreement, or change the amount of such installments. Mortgagor
agrees to execute such further evidence of assignment of any awards or proceeds
as Mortgagee may require.
13. TRANSFERS OF THE MORTGAGED PROPERTY OR BENEFICIAL INTERESTS IN
MORTGAGOR. Except as otherwise permitted under this Section 13, no Transfer of
any part of the Mortgaged Property or any beneficial interest of Mortgagor shall
be permitted without Mortgagee's prior written consent which may be withheld in
Mortgagee's sole and absolute discretion. Any transfer made in violation of this
Section shall constitute an Event of Default. Notwithstanding any provision of
this Section to the contrary, in no event shall a Transfer resulting in a change
of control of Mortgagor or the Mortgaged Property are permitted without
Mortgagee's prior written consent which may be withheld in Mortgagee's sole and
absolute discretion.
The following Transfers shall be permitted, subject to Beneficiary's
prior written consent, which consent shall not be unreasonably withheld or
delayed, provided that (1) no such Transfer (in a series of one or more
transactions) shall result in a change in control of Grantor, (2) in no event
shall Grantor or, if Grantor is a limited partnership, the general partner of
Grantor (or the general partner of the general partner of Grantor) or, if
Grantor is a limited liability company, any corporate member of Grantor which is
a Single-Purpose Entity, cease to be a Single-Purpose Entity, and (3) in no
event shall any such Transfer result in the dissolution or termination of
Grantor, any general partner of Grantor or any general partner of any general
partner of Grantor, if applicable, or, if Grantor is a limited liability
company, any corporate member of Grantor:
(1) Transfers of Stock in any corporation which is Grantor, any
general or limited partner or member of Grantor or any Person holding an
interest therein;
(2) Transfers of limited partnership interests in any limited
partnership which is Grantor, any general or limited partner or member of
Grantor or any Person holding an interest therein; and
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(3) Transfers of membership interests in any limited liability
company which is Grantor, any general or limited partner or member of Grantor or
any Person holding an interest therein.
(4) Notwithstanding any provision herein to the contrary, no Transfer
otherwise permitted under this Section 13 shall occur unless Grantor shall have
given Beneficiary not less than ten (10) Business Days prior notice of the
intended Transfer together with a certificate of the financial officer of
Grantor stating (i) the nature and size of the interest to be the subject of the
Transfer, (ii) the name and address of the Person to which such interest shall
be conveyed, sold or transferred unless such interest is to be conveyed, sold or
transferred pursuant to a registered public sale pursuant to applicable
securities laws, and (iii) that the proposed transaction is a bona fide sale,
transfer or conveyance solely for cash or equivalent consideration, if
applicable. Beneficiary reserves the right to condition any consent required
pursuant to this Section 13 with respect to a Transfer upon (A) the payment of
all expenses incurred by Beneficiary as set forth below and, in connection with
the Transfer of any fee interest in the Security Property, an assumption fee
equal to one percent (1.0%) of the outstanding balance of the Loan, (B)
Beneficiary's approval of the financial condition, managerial capabilities and
ownership structure of the proposed transferee, including requiring that the
transferee of any fee interest in the Security Property be a Single-Purpose
Entity, (C) if the Transfer shall result in a change in control of Grantor or
the Security Property, execution of an assumption agreement by the proposed
transferee, in form and content acceptable to Beneficiary, (D) the Loan being in
good standing and free from any Event of Default, and (E) if required by
Beneficiary, receipt of an Opinion of Counsel reasonably satisfactory to
Beneficiary stating that, if effected, the proposed Transfer would have no
effect on the enforceability of the Mortgage or the other Loan Documents, and
would not result in the dissolution or termination of Grantor, the managing
member of Grantor, if applicable, any general partner of Grantor or any general
partner of any general partner of Grantor, if applicable. Grantor agrees to pay
on demand all expenses (including, without limitation, reasonable attorney's
fees and disbursements, title search costs and title insurance endorsement
premiums) incurred by Beneficiary in connection with the review, approval and
documentation of any Transfer. In no event shall any Transfer otherwise
permitted under this Section occur if such Transfer is required to be registered
under the Securities Act of 1933, as amended (the "1933 Act"), or any state
securities or Blue Sky laws, or offered pursuant to Rule 144A under the 1933
Act.
(5) Notwithstanding any other provision of this Section 13 to the
contrary, Transfers of partnership interests, membership interests or corporate
shares in Grantor or any Person holding an interest in Grantor between or among
partners, members or shareholders existing as such on the date hereof, or
Transfers of such interests to immediate family members of existing partners,
members or shareholders or to trusts for estate planning purposes for the
benefit of existing partners, members or shareholders or members of the
transferor's immediate family shall be permitted without Beneficiary's consent,
provided that in no event shall Grantor and any Person holding an interest in
Grantor who is a Single-Purpose Entity cease to be a Single-Purpose Entity and
provided no such Transfer results in a change of control of Grantor.
14. EVENTS OF DEFAULT. The occurrence of any one or more of the
following shall constitute an Event of Default under this Instrument:
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(a) any failure by Mortgagor to pay or deposit within ten (10) days
after the same becomes due any amount required by the Note, this Instrument or
any other Loan Document;
(b) any failure by Mortgagor to maintain the insurance coverage
required under the Loan Agreement which continues beyond the applicable cure
period; if any, provided therein;
(c) any failure by Mortgagor to comply with the provisions of Section
25;
(d) fraud or material misrepresentation or material omission by
Mortgagor, any of its officers, directors, trustees, general partners or
managers or any guarantor in connection with (i) the application for or creation
of the Indebtedness, (ii) any financial statement, financial report,
certification, or other report or information required under the Loan Agreement
required to be provided to Mortgagee during the term of the Indebtedness, or
(iii) any request for Mortgagee's consent to any proposed action, including a
request for disbursement of funds under any Collateral Agreement;
(e) a failure of Mortgagor to comply with the provisions of Section
13;
(f) the commencement of a forfeiture action or proceeding, whether
civil or criminal, which, in Mortgagee's reasonable judgment, could result in a
forfeiture of the Mortgaged Property or otherwise materially impair the lien
created by this Instrument or Mortgagee's interest in the Mortgaged Property;
(g) any failure by Mortgagor to perform any of its obligations under
this Instrument (other than those specified in Sections 14 (a) through (f))
hereof and other than those specified in Sections 7.1(a), (b) and (c) of the
Loan Agreement), as and when required, which continues for a period of thirty
(30) days after notice of such failure by Mortgagee to Mortgagor; provided,
however, that if such default cannot be cured within such thirty (30) day
period, then such cure period shall be extended for an additional sixty (60)
days as long as Mortgagor is diligently and in good faith prosecuting such cure
to completion. However, no such notice or grace period shall apply in the case
of any such failure which could, in Mortgagee's judgment, absent immediate
exercise by Mortgagee of a right or remedy under this Instrument, result in harm
to Mortgagee, impairment of the Note or this Instrument or any other security
given under any other Loan Document;
(h) any failure by Mortgagor to perform any of its obligations as and
when required under any Loan Document other than this Instrument which continues
beyond the applicable cure period, if any, specified in that Loan Document;
(i) any exercise by the holder of any debt instrument secured by a
mortgage, deed of trust or deed to secure debt on the Mortgaged Property of a
right to declare all amounts due under that debt instrument immediately due and
payable;
(j) the Mortgaged Property becomes part of a bankrupt debtor's estate
pursuant to any chapter of the Federal Bankruptcy Code or the Mortgaged Property
otherwise becomes
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subject to any reorganization, receivership (other than a receivership
proceeding instituted by Mortgagee) or insolvency proceeding or any similar
proceeding pursuant to any federal, state or foreign law affecting debtor and
creditor rights; or
(k) if any representation or warranty made by Mortgagor in that
certain Loan Closing Certification executed in connection with the Loan is not
true and correct in any material respect at the time when the facts therein set
forth were stated or certified, or upon Mortgagor's breach of any covenant made
in that Loan Closing Certification and, if susceptible of cure, such breach
remains uncured of thirty (30) days after Mortgagee gives written notice of such
breach to Mortgagor.
15. REMEDIES.
(a) Acceleration of Maturity. If an Event of Default shall have
occurred, then the entire Indebtedness shall, at the option of Mortgagee,
immediately become due and payable without notice or demand, time being of the
essence of this Instrument, and no omission on the part of Mortgagee to exercise
such option when entitled to do so shall be construed as a waiver of such right.
(b) Intentionally Deleted.
(c) Performance by Mortgagee. Upon the occurrence of an Event of
Default, Mortgagee may, at its sole option, pay, perform or observe the same,
and all payments made or costs or expenses incurred by Mortgagee in connection
therewith, with interest thereon at the Default Rate (as defined in the Note) or
at the maximum rate from time to time allowed by applicable law, whichever is
less, shall be secured hereby and shall be, without demand, immediately repaid
by Mortgagor to Mortgagee. Notwithstanding anything to the contrary herein,
Mortgagee shall have no obligation, explicit or implied to pay, perform, or
observe any term, covenant, or condition.
(d) Receiver. If any Event of Default shall have occurred and be
continuing, Mortgagee, upon application to a court of competent jurisdiction,
shall be entitled as a matter of strict right, without notice and without regard
to the sufficiency or value of any security for the Indebtedness or the solvency
of any party bound for its payment, to the appointment of a receiver to take
possession of and to operate the Facility and to collect and apply the Rents.
The receiver shall have all the rights and powers permitted under the laws of
the Property Jurisdiction. Mortgagor will pay unto Mortgagee upon demand all
expenses, including receiver's fees, actual attorney's fees, costs and agent's
compensation, incurred pursuant to the provisions of this Section, and upon any
Mortgagor's failure to pay the same, any such amounts shall be added to the
Indebtedness and shall be secured by this Instrument.
(e) Mortgagee's Power of Enforcement. If an Event of Default shall
have occurred and be continuing, Mortgagee may, either with or without entry or
taking possession as hereinabove provided or otherwise, proceed by suit or suits
at law in equity or any other appropriate proceeding or remedy (i) to enforce
payment of the Note or the performance of any term thereof or any other right,
(ii) to foreclose this Instrument and to sell, as an entirety or in separate
lots or
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parcels, the Mortgaged Property, as provided by applicable Alabama law, and
(iii) to pursue any other remedy available to it, all as Mortgagee shall deem
most effectual for such purposes. Mortgagee shall take action either by such
proceedings or by the exercise of its powers with respect to entry or taking
possession, as Mortgagee may determine.
(f) Right to Enter and Take Possession.
(1) If an Event of Default shall have occurred and is
continuing, Mortgagor, upon demand of Mortgagee, shall forthwith
surrender to Mortgagee the actual possession of the Mortgaged Property
and, if and to the extent permitted by law, Mortgagee itself, or by such
officers or agents as it may appoint, may enter and take possession of
all or any part of the Mortgaged Property without the appointment of a
receiver or an application therefor, and may exclude Mortgagor and its
agents and employees wholly therefrom, and take possession of the books,
papers and accounts of Mortgagor relating thereto;
(2) If Mortgagor shall for any reason fail to surrender or
deliver the Mortgaged Property or any part thereof after such demand by
Mortgagee, Mortgagee may obtain a judgment or decree conferring upon
Mortgagee the right to immediate possession or requiring Mortgagor to
deliver immediate possession of the Mortgaged Property to Mortgagee.
Mortgagor will pay to Mortgagee, upon demand, all expenses of obtaining
such judgment or decree, including reasonable costs and expense incurred
by Mortgagee, its attorneys and agents, and all such expenses and costs
shall, until paid, become part of the Indebtedness and shall be secured
by this Instrument;
(3) Upon every such entering or taking of possession, Mortgagee
may hold, store, use, operate, manage and control the Mortgaged Property
and conduct the business thereof, and, from time to time (i) make all
necessary and proper maintenance, repairs, renewals, replacements,
additions, betterments and improvements thereto and thereon and purchase
or otherwise acquire additional Fixtures, Personalty and Equipment; (ii)
insure or keep the Mortgaged Property insured; (iii) manage and operate
the Mortgaged Property and exercise all of the rights and powers of
Mortgagor to the same extent as Mortgagor could in its own name; or and
(iv) enter into any and all agreements with respect to the exercise by
others of any of the powers herein granted to Mortgagee, all as
Mortgagee from time to time may determine to be in its best interest.
Mortgagee may collect and receive all the Rents, including those past
due as well as those accruing thereafter, and, after deducting (A) all
reasonable expenses of taking, holding, managing and operating the
Mortgaged Property (including compensation for the services of all
persons employed for such purposes); (B) the reasonable cost of all such
maintenance, repairs, renewals, replacements, additions, betterments,
improvements, purchases and acquisitions; (C) the cost of such insurance
deemed necessary by Mortgagor; (D) such taxes, assessments and other
similar charges as Mortgagee may at its option pay; (E) other proper and
reasonable charges upon the Mortgaged Property or any
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part thereof; and (F) the reasonable fees, expenses and disbursements of
the attorneys and agents of Mortgagee, Mortgagee shall apply the
remainder of the monies and proceeds so received by Mortgagee, first, to
the payment of accrued interest; second, to the payment of Imposition
Deposits and to other sums required to be paid hereunder; and third, to
the payment of overdue installments of principal and any other unpaid
Indebtedness then due. Anything in this Section to the contrary
notwithstanding, Mortgagee shall not incur any liability as a result of
any exercise by Mortgagee of its rights under this Instrument, and
Mortgagee shall be liable to account only for the Rents actually
received by Mortgagee;
(4) Mortgagor agrees to use commercially reasonably efforts to
cause the licensed operator of the Facility to promptly notify all of
its account debtors, including the Medicaid and Medicare agencies and
other account debtors pursuant to all Reimbursement Contracts, to the
extent permitted under applicable law, to make payments to one or more
such deposit accounts upon Mortgagee's request and as designated by
Mortgagee, and, to the extent permitted under any law applicable to
Medicare and Medicaid, Mortgagor agrees to provide any necessary
endorsements to checks, drafts and other forms of payment so that such
payments will be properly deposited in such accounts. Mortgagee may
require that the deposit accounts be established so as to comply with
any applicable Medicaid, Medicare and other requirements applicable to
payments of any accounts receivable. Mortgagee may cause moneys to be
withdrawn from such deposit accounts and applied to the Indebtedness in
such order as Mortgagee may elect. Mortgagor appoints Mortgagee as
Mortgagor's attorney-in-fact, which appointment is coupled with an
interest and is irrevocable, to provide, after the occurrence of an
Event of Default and so long as such default is continuing, any notice,
endorse any check, draft or other payment for deposit, or take any other
action which Mortgagor agrees to undertake in accordance with this
Section 15(f)(4), to the extent permitted under any law applicable to
Medicare and Medicaid; and
(5) Whenever all the Indebtedness shall have been paid and all
Events of Default shall have been cured, Mortgagee shall surrender
possession of the Mortgaged Property to Mortgagor, its successors and/or
assigns. The same right of taking possession, however, shall exist if
any subsequent Event of Default shall occur and be continuing.
(g) Purchase by Mortgagee. Upon any foreclosure sale, Mortgagee may
bid for and purchase the Mortgaged Property and shall be entitled to apply all
or any part of the Indebtedness as a credit to the purchase price.
(h) Application of Proceeds of Sale. In the event of a foreclosure or
other sale of all or any portion of the Mortgaged Property, the proceeds of said
sale shall be applied, first, to the expenses of such sale and of all
proceedings in connection therewith, including actual attorney's fees and
expenses (and attorney's fees and expenses shall become absolutely due and
payable whenever foreclosure is commenced); then to insurance premiums, liens,
assessments, Impositions
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and charges, including utility charges and any other amounts advanced by
Mortgagee hereunder, and interest thereon; then to payment of the Indebtedness
in such order of priority as Mortgagee shall determine, in its sole discretion;
and finally the remainder, if any, shall be paid to Mortgagor, or to the person
or entity lawfully entitled thereto.
(i) Mortgagor as Tenant Holding Over. In the event of any such
foreclosure sale, Mortgagor (if Mortgagor shall remain in possession) shall be
deemed a tenant holding over and shall forthwith deliver possession to the
purchaser or purchasers at such sale or be summarily dispossessed according to
provisions of law applicable thereto.
(j) Waiver of Appraisement, Valuation, Etc. Mortgagor agrees, to the
full extent permitted by law, that in case of an Event of Default on the part of
Mortgagor hereunder, neither Mortgagor nor anyone claiming through or under
Mortgagor will assert, claim or seek to take advantage of any appraisement,
redemption, valuation, stay, homestead, extension, exemption or laws now or
hereafter in force, in order to prevent or hinder the enforcement of foreclosure
of this Instrument, or the absolute sale of the Mortgaged Property, or the
delivery of possession thereof immediately after such sale to the purchaser at
such sale.
(k) Discontinuance of Proceedings. In case Mortgagee shall have
proceeded to enforce any right, power or remedy under this Instrument by
foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to Mortgagee, then in every such case, Mortgagor and Mortgagee shall
be restored to their former positions and rights hereunder, and all rights,
powers and remedies of Mortgagee shall continue as if no such proceedings had
occurred.
(l) Waiver.
(i) No delay or omission by Mortgagee or by any holder of
the Note to exercise any right, power or remedy
accruing upon any default shall exhaust or impair any
such right, power or remedy or shall be construed to be
a waiver of any such default, or acquiescence therein,
and every right, power and remedy given by this
Instrument to Mortgagee may be exercised from time to
time and as often as may be deemed expedient by
Mortgagee. No consent or waiver expressed or implied by
Mortgagee to or of any breach or default by Mortgagor
in the performance of the obligations of Mortgagor
hereunder shall be deemed or construed to be a consent
or waiver to or of any other breach or default in the
performance of the same or any other obligations of
Mortgagor hereunder. Failure on the part of Mortgagee
to complain of any act or failure to act or failure to
declare an Event of Default, irrespective of how long
such failure continues, shall not constitute a waiver
by Mortgagee of its rights hereunder or impair any
rights, powers or remedies of Mortgagee hereunder.
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(ii) No act or omission by Mortgagee shall release,
discharge, modify, change or otherwise affect the
original liability under the Note, this Instrument,
other Loan Documents or any other obligation of
Mortgagor or any subsequent purchaser of the Mortgaged
Property or any part thereof, or any maker, co-signer,
endorser, surety or guarantor, nor preclude Mortgagee
from exercising any right, power or privilege herein
granted or intended to be granted in any Event of
Default then existing or of any subsequent default, nor
alter the lien of this Instrument, except as expressly
provided in an instrument or instruments executed by
Mortgagee. Without limiting the generality of the
foregoing, Mortgagee may (A) grant forbearance or an
extension of time for the payment of all or any portion
of the Indebtedness; (B) take other or additional
security for the payment of any of the Indebtedness;
(C) waive or fail to exercise any right granted herein,
in the Note or in other Loan Documents; (D) release any
part of the Mortgaged Property from the security
interest or lien of this Instrument or otherwise change
any of the terms, covenants, conditions or agreements
of the Note, this Instrument or other Loan Documents;
(E) consent to the filing of any map, plat or replat
affecting the Land; (F) consent to the granting of any
easement or other right affecting the Mortgaged
Property; (G) make or consent to any agreement
subordinating the security title or lien hereof, or (H)
take or omit to take any action whatsoever with respect
to the Note, this Instrument, the other Loan Documents,
the Mortgaged Property or any document or instrument
evidencing, securing or in any way related to the
Instrument, all without releasing, discharging,
modifying, changing or affecting any such liability, or
precluding Mortgagee from exercising any such right,
power or privilege with respect to the lien of this
Instrument. In the event of the sale or transfer by
operation of law or otherwise of all or any part of the
Mortgaged Property, Mortgagee, without notice, is
hereby authorized and empowered to deal with any such
vendee or transferee with respect to the Mortgaged
Property or the Indebtedness, or with reference to any
of the terms, covenants, conditions or agreements
hereof, as fully and to the same extent as it might
deal with the original parties hereto and without in
any way releasing or discharging any liabilities,
obligations or undertakings of Mortgagor, any guarantor
of the Indebtedness or others.
(iii) Mortgagor waives and relinquishes any and all rights it
may have, whether at law or equity, to require
Mortgagee to proceed to enforce or exercise any rights,
powers and remedies it may have under the Loan
Documents in any particular manner, in any particular
order, or in any particular state or other
jurisdiction. Mortgagor expressly waives and
relinquishes any and all rights and remedies that
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Mortgagor may have or be able to assert by reason of
the laws of the state of jurisdiction pertaining to the
rights and remedies of sureties.
Mortgagor makes these arrangements, waivers and relinquishments
knowingly and as a material inducement to Mortgagee in making the Loan, after
consulting with and considering the advice of independent legal counsel selected
by Mortgagor.
(m) Suits to Protect the Mortgaged Property. Mortgagee shall have
power to institute and maintain such suits and proceedings as it may deem
expedient (i) to prevent any impairment of the Mortgaged Property by any acts
which may be unlawful or constitute an Event of Default under this Instrument;
(ii) to preserve or protect its interest in the Mortgaged Property and in the
Rents arising therefrom; and (iii) to restrain the enforcement of or compliance
with any legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order would materially impair the security hereunder or
be prejudicial to the interest of Mortgagee.
(n) Proofs of Claim. In the case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other
proceedings affecting Mortgagor, its creditors or its properties, Mortgagee, to
the extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have the claims of
Mortgagee allowed in such proceedings for the entire amount due and payable by
Mortgagor under this Instrument at the date of the institution of such
proceedings and for any additional amount which may become due and payable by
Mortgagor hereunder after such date.
(o) Actions Without Mortgagor's Consent. Mortgagor agrees that
Mortgagee may do any one or all of the following without notice to or the
consent of Mortgagor and without affecting Mortgagee's rights or remedies
against Mortgagor: (i) accept partial payment of, compromise, settle, renew,
extend the time for payment or performance of, or refuse to enforce any of
Mortgagor's Indebtedness to Mortgagee under or in connection with this
Instrument or any of the other Loan Documents; (ii) grant any indulgence or
forbearance to Guarantor or any other Person under or in connection with any or
all of the Loan Documents; (iii) release, waive, substitute or add any or all
collateral securing payment of any or all of the Indebtedness; (iv) release,
substitute or add any one or more endorsers or guarantors of any or all of the
Indebtedness; and (v) exercise any right or remedy with respect to the
Indebtedness or any collateral securing the Indebtedness, notwithstanding any
effect on or impairment of Mortgagor's subrogation, reimbursement or other
rights against Guarantor or any other Person under or in connection with any or
all of the Loan Documents.
16. REMEDIES CUMULATIVE. Each right and remedy provided in this
Instrument is distinct from all other rights or remedies under this Instrument
or any other Loan Document or afforded by applicable law, and each shall be
cumulative and may be exercised concurrently, independently, or successively, in
any order.
17. FORBEARANCE.
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(a) Mortgagee may agree with Mortgagor, from time to time, at
Mortgagee's option and without giving notice to, or obtaining the consent of, or
having any effect upon the obligations of any guarantor or other third party
obligor, extend the time for payment of all or any part of the Indebtedness,
reduce the payments due under this Instrument, the Note, or any other Loan
Document, release anyone liable for the payment of any amounts under this
Instrument, the Note, or any other Loan Document, accept a renewal of the Note,
modify the terms and time of payment of the Indebtedness, join in any extension
or subordination agreement, release any Mortgaged Property, take or release
other or additional security, modify the rate of interest or period of
amortization of the Note or change the amount of the monthly installments
payable under the Note, or otherwise modify this Instrument, the Note, or any
other Loan Document.
(b) Any forbearance by Mortgagee in exercising any right or remedy
under the Note, this Instrument, the Guaranty Agreement, or any other Loan
Document or otherwise afforded by applicable law, shall not be a waiver of or
preclude the exercise of any right or remedy. The acceptance by Mortgagee of
payment of all or any part of the Indebtedness after the due date of such
payment, or in an amount which is less than the required payment, shall not be a
waiver of Mortgagee's right to require prompt payment when due of all other
payments on account of the Indebtedness or to exercise any remedies for any
failure to make prompt payment. Enforcement by Mortgagee of any security for the
Indebtedness shall not constitute an election by Mortgagee of remedies so as to
preclude the exercise of any other right available to Mortgagee. Mortgagee's
receipt of any insurance and/or condemnation proceeds shall not operate to cure
or waive any Event of Default.
18. LOAN CHARGES. If any applicable law limiting the amount of interest
or other charges permitted to be collected from Mortgagor is interpreted so that
any charge provided for in any Loan Document, whether considered separately or
together with other charges levied in connection with any other Loan Document,
violates that law, and Mortgagor is entitled to the benefit of that law, that
charge is hereby reduced to the extent necessary to eliminate that violation.
The amounts, if any, previously paid to Mortgagee in excess of the permitted
amounts shall be applied by Mortgagee to reduce the principal of the
Indebtedness. For the purpose of determining whether any applicable law limiting
the amount of interest or other charges permitted to be collected from Mortgagor
has been violated, all Indebtedness which constitutes interest, as well as all
other charges levied in connection with the Indebtedness which constitute
interest, shall be deemed to be allocated and spread over the stated term of the
Note. Unless otherwise required by applicable law, such allocation and spreading
shall be effected in such a manner that the rate of interest so computed is
uniform throughout the stated term of the Note.
19. WAIVER OF STATUTE OF LIMITATIONS. To the extent permitted by
applicable law Mortgagor hereby waives the right to assert any statute of
limitations as a bar to the enforcement of the lien of this Instrument or to any
action brought to enforce any Loan Document.
20. WAIVER OF MARSHALLING. Notwithstanding the existence of any other
security interests in the Mortgaged Property held by Mortgagee or by any other
party, Mortgagee shall have the right to determine the order in which any or all
of the Mortgaged Property shall be subjected to the remedies provided in this
Instrument, the Note, the Loan Agreement, any other
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Loan Document or under applicable law. Mortgagee shall have the right to
determine the order in which any or all portions of the Indebtedness are
satisfied from the proceeds realized upon the exercise of such remedies.
Mortgagor and any party who now or in the future acquires a security interest in
the Mortgaged Property and who has actual or constructive notice of this
Instrument waives any and all right to require the marshalling of assets or to
require that any of the Mortgaged Property be sold in the inverse order of
alienation or that any of the Mortgaged Property be sold in parcels or as an
entirety in connection with the exercise of any of the remedies permitted by
applicable law or provided in this Instrument.
21. FURTHER ASSURANCES. Mortgagor shall execute, acknowledge, and
deliver, at its sole cost and expense, all further acts, deeds, conveyances,
assignments, estoppel certificates, financing statements, transfers and
assurances as Mortgagee may require from time to time in order to better assure,
grant, and convey to Mortgagee the rights intended to be granted, now or in the
future, to Mortgagee under this Instrument and the Loan Documents.
22. ESTOPPEL CERTIFICATE. Within ten (10) days after a request from
Mortgagee, Mortgagor shall deliver to Mortgagee a written statement, signed and
acknowledged by Mortgagor, certifying to Mortgagee or any person designated by
Mortgagee, as of the date of such statement, (a) that the Loan Documents are
unmodified and in full force and effect (or, if there have been modifications,
that the Loan Documents are in full force and effect as modified and setting
forth such modifications); (b) the unpaid principal balance of the Note; (c) the
date to which interest under the Note has been paid; (d) that Mortgagor is not
in default in paying the Indebtedness or in performing or observing any of the
covenants or agreements contained in this Instrument or any of the other Loan
Documents (or, if Mortgagor is in default, describing such default in reasonable
detail); (e) whether or not there are then existing any setoffs or defenses
known to Mortgagor against the enforcement of any right or remedy of Mortgagee
under the Loan Documents; and (f) any additional facts reasonably requested by
Mortgagee.
23. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.
(a) This Instrument, and any Loan Document which does not itself
expressly identify the law that is to apply to it, shall be governed by the laws
of Property Jurisdiction.
(b) Each of Mortgagor and Mortgagee consents to the exclusive
jurisdiction of any and all state and federal courts with jurisdiction in the
Property Jurisdiction over Mortgagor and Mortgagor's assets. Mortgagor agrees
that its assets shall be used first to satisfy all claims of creditors organized
or domiciled in the United States and that no assets of Mortgagor in the United
States shall be considered part of any foreign bankruptcy estate.
(c) Each of Mortgagor and Mortgagee agrees that any controversy
arising under or in relation to the Note, this Instrument, or any other Loan
Document shall be litigated exclusively in the Property Jurisdiction. The state
and federal courts and authorities with jurisdiction in the Property
Jurisdiction shall have exclusive jurisdiction over all controversies which
shall arise under or in relation to the Note, any security for the Indebtedness,
or any other Loan Document. Mortgagor irrevocably consents to service,
jurisdiction, and venue of such courts for any such
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litigation and waives any other venue to which it might be entitled by virtue of
domicile, habitual residence or otherwise.
24. NOTICE.
(a) All notices, demands and other communications ("Notice") under or
concerning this Instrument shall be in writing. Each Notice shall be addressed
to the intended recipient at its address set forth in this Instrument, and shall
be deemed given on the earliest to occur of (i) the date when the Notice is
received by the addressee; (ii) the first Business Day after the Notice is
delivered to a recognized overnight courier service, with arrangements made for
payment of charges for next Business Day delivery; or (iii) the third Business
Day after the Notice is deposited in the United States mail with postage
prepaid, certified mail, return receipt requested.
(b) Any party to this Instrument may change the address to which
Notices intended for it are to be directed by means of Notice given to the other
party in accordance with this Section 24. Each party agrees that it will not
refuse or reject delivery of any Notice given in accordance with this Section
24, that it will acknowledge, in writing, the receipt of any Notice upon request
by the other party and that any Notice rejected or refused by it shall be deemed
for purposes of this Section 24 to have been received by the rejecting party on
the date so refused or rejected, as conclusively established by the records of
the U.S. Postal Service or the courier service.
(c) Any Notice under the Note and any other Loan Document which does
not specify how Notices are to be given shall be given in accordance with this
Section 24.
(d) A copy of any Notice sent to Mortgagee pursuant to this Section
24 shall be sent to:
Xxx X. Xxxxx, Esq.
Walston, Wells, Xxxxxxxx & Bains, LLP
000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
A copy of any Notice sent to Mortgagor pursuant to this
Section 24 shall be sent to:
Diversicare Windsor House, LLC
c/o Advocat Inc.
000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Attn: CFO
25. SINGLE-PURPOSE ENTITY. Until the Indebtedness is paid in full,
Mortgagor shall maintain its status as a Single-Purpose Entity and comply with
all those covenants with respect to its status as a Single-Purpose Entity as set
forth in Section 5.5 of the Loan Agreement.
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26. SUBROGATION. If, and to the extent that, the proceeds of the Loan
are used to pay, satisfy or discharge any obligation of Mortgagor for the
payment of money that is secured by a pre-existing mortgage, deed of trust or
other lien encumbering the Mortgaged Property (a "Prior Lien"), such loan
proceeds shall be deemed to have been advanced by Mortgagee at Mortgagor's
request, and Mortgagee shall automatically, and without further action on its
part, be subrogated to the rights, including lien priority, of the owner or
holder of the obligation secured by the Prior Lien, whether or not the Prior
Lien is released.
27. LOAN CHARGES. If any applicable law limiting the amount of interest
or other charges permitted to be collected from Mortgagor is interpreted so that
any charge provided for in any Loan Document, whether considered separately or
together with other charges levied in connection with any other Loan Document,
violates that law, and Mortgagor is entitled to the benefit of that law, that
charge is hereby reduced to the extent necessary to eliminate that violation.
The amounts, if any, previously paid to Mortgagee in excess of the permitted
amounts shall be applied by Mortgagee to reduce the principal of the
Indebtedness. For the purpose of determining whether any applicable law limiting
the amount of interest or other charges permitted to be collected from Mortgagor
has been violated, all Indebtedness which constitutes interest, as well as all
other charges levied in connection with the Indebtedness which constitute
interest, shall be deemed to be allocated and spread over the stated term of the
Note. Unless otherwise required by applicable law, such allocation and spreading
shall be effected in such a manner that the rate of interest so computed is
uniform throughout the stated term of the Note.
28. DISCLOSURE OF INFORMATION. Mortgagee may furnish financial
information regarding Mortgagor or the Mortgaged Property to third parties with
an existing or prospective interest in the enforcement, evaluation, performance,
purchase or securitization of the Indebtedness, including but not limited to
credit rating agencies, but not further or otherwise without the prior written
consent of Mortgagor. Mortgagor irrevocably waives any and all rights it may
have under applicable law to prohibit such disclosure, including but not limited
to any right of privacy; but such disclosure shall be subject to prohibitions or
limitations on disclosure of any such data under applicable laws or regulations,
including without limitation any duly enacted "Patient's Xxxx of Rights" or
similar legislation, and such limitations, as may be necessary to preserve the
confidentiality of the Facility-patient relationship and any physician-patient
privilege.
29. RELEASE. Upon Mortgagee's written request stating that (i) all
Indebtedness secured by this Instrument has been paid or performed in full
(other than contingent Indebtedness which by their terms survive the release
hereof and as to which no event giving rise to the incurrence of any such
Indebtedness shall have occurred), and (ii) all fees due Mortgagee in connection
with release of this Instrument have been paid, Mortgagor shall release the
Mortgaged Property from the lien of this Instrument. Upon the payment and
performance in full of all Indebtedness (other than contingent obligations which
survive the release hereof and as to which no event giving rise to the
incurrence of any such obligation shall have occurred), and upon request of
Mortgagor, Mortgagee shall release the lien of this Instrument upon the
Mortgaged Property and shall surrender to Mortgagor the Note and all other
documents evidencing the Indebtedness secured by this Instrument.
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The recitals in the release of any matters or facts shall be conclusive proof of
their truthfulness. Such release shall operate as a reassignment of the Rents
and profits assigned to Mortgagee under the Assignment of Leases and Rents.
Mortgagee shall deliver this Instrument and the Note after release to the Person
or Persons legally entitled thereto.
30. EXECUTION OF DOCUMENTS BY MORTGAGEE. Without notice to or affecting
the liability of Mortgagor or any other Person for the payment or performance of
the Indebtedness, without affecting the lien or priority of this Instrument or
Mortgagee's rights and remedies under the Loan Documents, and without liability
to Mortgagor or any other Person, Mortgagee shall have the right, at any time
and from time to time, to do any one or more of the following: (a) release any
part of the Mortgaged Property and (b) execute any extension agreement relating
to any or all of the Indebtedness, any document subordinating the lien of this
Instrument to any other lien or document, or any other document relating to the
Mortgaged Property, Indebtedness, or Loan Documents.
31. JOINT AND SEVERAL LIABILITY. If more than one Person or entity signs
this Instrument as Mortgagor, the obligations of such Persons shall be joint and
several.
32. RELATIONSHIP OF PARTIES; NO THIRD PARTY BENEFICIARY. The
relationship between Mortgagee and Mortgagor shall be solely that of creditor
and debtor, respectively, and nothing contained in this Instrument shall create
any other relationship between Mortgagee and Mortgagor. No creditor of any party
to this Instrument and no other person shall be a third party beneficiary of
this Instrument or any other Loan Document.
33. SEVERABILITY; AMENDMENTS. The invalidity or unenforceability of any
provision of this Instrument shall not affect the validity or enforceability of
any other provision, and all other provisions shall remain in full force and
effect. This Instrument contains the entire agreement among the parties as to
the rights granted and the obligations assumed in this Instrument. This
Instrument may not be amended or modified except by a writing signed by the
party against whom enforcement is sought.
34. MISCELLANEOUS PROVISIONS. The captions and headings of the sections
of this Instrument are for convenience only and shall be disregarded in
construing this Instrument. Any reference in this Instrument to an "Exhibit" or
a "Section" shall, unless otherwise explicitly provided, be construed as
referring, respectively, to an Exhibit attached to this Instrument or to a
section of this Instrument. All Exhibits attached to or referred to in this
Instrument are incorporated by reference into this Instrument. Any reference in
this Instrument to a statute or regulation shall be construed as referring to
that statute or regulation as amended from time to time. Use of the singular in
this Agreement includes the plural and use of the plural includes the singular.
As used in this Instrument, the term "including" means "including, but not
limited to."
35. WAIVER OF TRIAL BY JURY. EACH OF MORTGAGOR AND MORTGAGEE (A)
COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE THAT
IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY TO THE
EXTENT THAT ANY SUCH
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RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF
COMPETENT LEGAL COUNSEL, AND THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY
EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A JURY TRIAL WOULD
OTHERWISE EXIST. MORTGAGOR AND MORTGAGEE ARE AUTHORIZED TO SUBMIT THIS
INSTRUMENT TO ANY COURT HAVING JURISDICTION OVER THE SUBJECT MATTER AND THE
PARTIES TO ANY LOAN DOCUMENT, SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF
MORTGAGOR'S AND MORTGAGEE'S WAIVER OF THE RIGHT TO JURY TRIAL. FURTHER, EACH OF
MORTGAGOR AND MORTGAGEE CERTIFIES THAT NEITHER MORTGAGOR'S NOR MORTGAGEE'S
REPRESENTATIVES OR AGENTS HAVE REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
ENFORCEMENT OF THIS WAIVER WILL NOT BE SOUGHT.
36. WAIVER OF AUTOMATIC STAY. TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW, MORTGAGOR HEREBY AGREES THAT, IN CONSIDERATION OF MORTGAGEE'S AGREEMENT TO
MAKE THE LOAN AND IN RECOGNITION THAT THE FOLLOWING COVENANT IS A MATERIAL
INDUCEMENT FOR MORTGAGEE TO MAKE THE LOAN, IN THE EVENT THAT MORTGAGOR SHALL (A)
FILE WITH ANY BANKRUPTCY COURT OF COMPETENT JURISDICTION OR BE THE SUBJECT OF
ANY PETITION UNDER ANY SECTION OR CHAPTER OF TITLE 11 OF THE UNITED STATES CODE,
AS AMENDED ("BANKRUPTCY CODE"), OR SIMILAR LAW OR STATUTE; (B) BE THE SUBJECT OF
ANY ORDER FOR RELIEF ISSUED UNDER THE BANKRUPTCY CODE OR SIMILAR LAW OR STATUTE;
(C) FILE OR BE THE SUBJECT OF ANY PETITION SEEKING ANY REORGANIZATION,
ARRANGEMENT, COMPOSITION, READJUSTMENT, LIQUIDATION, DISSOLUTION, OR SIMILAR
RELIEF UNDER ANY PRESENT OR FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO
BANKRUPTCY, INSOLVENCY, OR OTHER RELIEF FOR DEBTORS; (D) HAVE SOUGHT OR
CONSENTED TO OR ACQUIESCED IN THE APPOINTMENT OF ANY TRUSTEE, RECEIVER,
CONSERVATOR, OR LIQUIDATOR; OR (E) BE THE SUBJECT OF AN ORDER, JUDGEMENT OR
DECREE ENTERED BY ANY COURT OF COMPETENT JURISDICTION APPROVING A PETITION FILED
AGAINST MORTGAGOR FOR ANY REORGANIZATION, ARRANGEMENT, COMPOSITION,
READJUSTMENT, LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER ANY PRESENT OR
FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO BANKRUPTCY, INSOLVENCY OR RELIEF
FOR DEBTORS, THEN, SUBJECT TO COURT APPROVAL, MORTGAGEE SHALL THEREUPON BE
ENTITLED AND MORTGAGOR HEREBY IRREVOCABLY CONSENTS TO, AND WILL NOT CONTEST, AND
AGREES TO STIPULATE TO RELIEF FROM ANY AUTOMATIC STAY OR OTHER INJUNCTION
IMPOSED BY SECTION 362 OF THE BANKRUPTCY CODE, OR SIMILAR LAW OR STATUTE
(INCLUDING, WITHOUT LIMITATION, RELIEF FROM ANY EXCLUSIVE PERIOD SET FORTH IN
SECTION 1121 OF THE BANKRUPTCY CODE) OR OTHERWISE, ON OR AGAINST THE EXERCISE OF
THE RIGHTS AND REMEDIES OTHERWISE AVAILABLE TO MORTGAGEE AS PROVIDED IN THE LOAN
DOCUMENTS, AND AS OTHERWISE PROVIDED BY LAW, AND
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MORTGAGOR HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO OBJECT TO SUCH RELIEF.
37. SUCCESSORS AND ASSIGNS BOUND. This Instrument shall bind, and the
rights granted by this Instrument shall inure to, the respective successors and
assigns of Mortgagee and Mortgagor.
38. COUNTERPARTS. This Instrument may be executed in any number of
counterparts, all of which when taken together shall constitute one and the same
Instrument.
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IN WITNESS WHEREOF, Mortgagor and Mortgagee have caused this
Instrument to be properly executed as of the date first above written.
MORTGAGOR:
WITNESS:
DIVERSICARE WINDSOR HOUSE, LLC, a Delaware
limited liability company
------------------------------
By: Diversicare Leasing Corp., a Tennessee
corporation, its sole member
------------------------------
[Print Name] By:
------------------------------------
Xxxxx X. Xxxxx, Xx., Senior Vice
President
WITNESS: MORTGAGEE:
GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation
------------------------------
------------------------------ --------------------------------------------
[Print Name] Xxxxx X. Xxxxxxxx, Senior Vice President
STATE OF TENNESSEE )
____________ COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that Xxxxx X. Xxxxx, Xx., whose name as Senior Vice
President of Diversicare Leasing Corp., a Tennessee corporation and the sole
member of Diversicare Windsor House, LLC, a Delaware limited liability company,
is signed to the foregoing instrument and who is known to me, acknowledged
before me on this day that, being informed of the contents of said instrument,
he, as such officer and with full authority, executed the same voluntarily for
and as the act of said limited liability company.
Given under my hand and official seal this the ____ day of March, 2001.
-------------------------
Notary Public
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AFFIX SEAL
My commission expires: _________
STATE OF ALABAMA )
JEFFERSON COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that Xxxxx X. Xxxxxxxx, whose name as Vice President of
GMAC Commercial Mortgage corporation, a California corporation, is signed to the
foregoing instrument and who is known to me, acknowledged before me on this day
that, being informed of the contents of said instrument, he, as such officer and
with full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this the ____ day of March, 2001.
-------------------------
Notary Public
AFFIX SEAL
My commission expires: _________
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EXHIBIT "A"
LEGAL DESCRIPTION
A-1
