Exhibit 10.10
MORTGAGE AND SECURITY AGREEMENT
A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE.
A POWER OF SALE MAY ALLOW THE MORTGAGEE TO TAKE
THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING
TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY
THE MORTGAGOR UNDER THIS MORTGAGE.
THIS MORTGAGE AND SECURITY AGREEMENT made this
day of April, 1997, by and between WATERFORD DEVELOPMENT
COMPANY, L.L.C., an Oklahoma limited liability company, hereinafter
referred to as "Mortgagor", and LTC PROPERTIES, INC., a Maryland
corporation, hereinafter referred to as "Mortgagee".
WITNESSETH:
That Mortgagor, in consideration of the premises and to secure the
payment of the sum of One Million Eight Hundred Sixty-Eight Thousand
Five Hundred Dollars ($1,868,500.00) does by these presents, grant,
bargain, sell, assign, encumber, mortgage and convey unto Mortgagee,
with power of sale, and grants a security interest in, all interest of
Mortgagor in and to the property described on Exhibit "A" attached hereto
situated in Xxxxx County, State of Oklahoma, together with the
improvements thereon and all appurtenances thereunto belonging
(hereinafter referred to as the "Subject Premises").
TO HAVE AND TO HOLD the same together with all of the
rights, tenements and appurtenances thereunto belonging or in any wise
appertaining.
This instrument is intended as a mortgage to secure the payment of
a certain Promissory Note (the "Note") bearing even date herewith,
executed by Mortgagor to Mortgagee in the principal amount of
$1,868,500.00, together with interest thereon and all extensions or
renewals of all or any part of the indebtedness, obligations, loans,
advances, whether as future advances or otherwise, and liabilities
described herein (collectively the "Indebtedness"). This Mortgage is
intended and given to secure all of the Indebtedness.
Mortgagor hereby covenants and agrees as follows:
1. Mortgagor is the owner in fee simple of the Subject
Premises and the Subject Premises are free and clear of all liens, claims
and encumbrances, except easements of record, that said Mortgagor has
good right and authority to sell, convey and mortgage the same and will
warrant and defend the same against the claims of all persons
whomsoever.
2. Mortgagor will pay the above recited Indebtedness and
interest thereon when and as the same shall become due and Mortgagor
shall do and perform all other acts and agreements herein contained as
well as those contained in the Note.
3. Mortgagor will keep the improvements on the Subject
Premises in as good repair as they now are, ordinary wear and tear
excepted, and the same shall not be destroyed or removed without the
consent of Mortgagee and Mortgagor will not
commit or allow any waste on the Subject Premises nor do any other act
whereby the property hereby conveyed and mortgaged shall become less
valuable; that the Subject Premises shall not be used for any illegal or
disreputable business or purpose or used for a purpose which will injure or
render the Subject Premises unfit or less desirable for their present use and
purposes; and in case any damage should result from any cause, proper or
suitable repairs will be immediately made so that the improvements on the
Subject Premises will be maintained in at least as good condition as the
same are at the present time, ordinary wear and tear excepted, provided,
however, in the event of substantial damage to the improvements on the
Subject Premises which shall require a substantial rebuilding thereof,
Mortgagor shall not be required to rebuild. If Mortgagor elects not to so
rebuild, Mortgagee shall be entitled to receive the proceeds from the
insurance on the Subject Premises up to an amount equal to the balance
due pursuant to the Note secured hereby, including accrued interest then
payable.
4. Mortgagor shall keep the Subject Premises free from all
judgments, mechanic's liens and other statutory liens of whatsoever nature.
5. Mortgagor shall pay any and all ad valorem taxes and
assessments upon the Subject Premises when and as the same come due
and upon request shall promptly furnish copies of receipts for such
payments to Mortgagee.
6. Mortgagor agrees to maintain insurance against fire and
other hazards in a sum and with a company satisfactory to and for the
benefit of Mortgagee, as its interest may appear, upon the buildings,
improvements and fixtures upon the Subject Premises, provided that
Mortgagor shall not be required to maintain such insurance in an amount
more than the balance due pursuant to the Note secured hereby.
7. In the event of a failure of Mortgagor to keep the Subject
Premises free from judgments, mechanic's liens or other statutory liens, or
in the event of a failure of Mortgagor to pay ad valorem taxes and
assessments as and when due, or to maintain insurance upon the
improvements, Mortgagee shall have the right, but not the obligation, to
pay said liens, claims, taxes or assessments, or insurance together with
penalties and interest thereon and such sums shall be charged hereunder as
principal money bearing interest at the rate provided in the Note and such
sums together with interest shall be secured by this Mortgage provided
upon any such payment by Mortgagee, Mortgagee shall not be held to
have waived any right accruing to Mortgagee because of non-payment by
Mortgagor thereof.
8. If Mortgagor shall pay or cause to be paid to Mortgagee the
Indebtedness evidenced by the aforesaid Note in accordance with the
terms and conditions thereof, together with all interest thereon and shall
keep and perform each and all of the covenants and conditions herein, then
these presents and the estate hereby created shall remain wholly
discharged and void and this Mortgage shall be released at the cost of
Mortgagee, otherwise, they shall remain in full force and effect.
9. It is further expressly agreed that the following will
constitute an event of default under this Mortgage:
(a) Any default in the payment at the time and place and in the
manner provided for payment of the debt evidenced by said Note or
interest thereon or any other sums secured hereby;
(b) The creation of any mechanic's liens or other liens upon the
Subject Premises or any part thereof which might be prior to the lien of
this Mortgage;
(c) The institution of bankruptcy proceedings by or against
Mortgagor;
(d) There shall exist upon the Subject Premises or any part
thereof any lien or encumbrance created by Mortgagor which is prior to
this Mortgage or which affects adversely the priority or lien of this
Mortgage; or
(e) If Lessee ceases to maintain in effect any license, permit,
certificate or approval necessary or otherwise required to operate the
Subject Premises as a residential care home or other similar long term care
facility or if any such cessation is threatened in writing by any
governmental authority having jurisdiction over the issuance or revocation
of any license, permit, certificate or approval necessary or required to
operate the Subject Premises, and if the event or condition causing such
threatened cessation has not been cured by Lessee within any applicable
cure period.
10. Upon the occurrence of an event of default, Mortgagee
may, without notice, demand or presentment which are hereby waived by
Mortgagor, declare the entire unpaid balance immediately due and payable
and Mortgagee may proceed to enforce any and all rights and remedies
Mortgagee may have under Oklahoma law, including, but not limited to
the right to foreclose this Mortgage by judicial process. In the event of
judicial foreclosure, the court shall direct the sale of the Subject Premises
to be with or without appraisement, as Mortgagee may elect at the time
judgment is rendered.
As an alternative to judicial foreclosure, Mortgagee shall be
entitled to exercise the provisions providing for a foreclosure by power of
sale pursuant to the Oklahoma Power of Sale Mortgage Foreclosure Act,
46 O.S. Sec.40, et seq. (the "Act"); PROVIDED, HOWEVER, that in
connection with such election, Mortgagee shall first give Mortgagor a
written notice of Mortgagee's intention to foreclose by power of sale in the
manner provided by the Act.
11. Mortgagor may not sell or convey all or any part of the
Subject Premises or an interest therein without the prior written consent of
Mortgagee. ff an or any part of the Subject Premises or any interest therein
is sold or transferred without Mortgagee's prior written consent,
Mortgagee may, at its option, require immediate payment in full of all
sums secured by this Mortgage.
12. Any portion of the Subject Premises which by law is or
may be real property shall be deemed to be a part of the real property for
the purposes of this Mortgage. The remainder of the Subject Premises
shall be subject to the Uniform Commercial Code, and this Mortgage shall
constitute a Security Agreement with respect thereto. Mortgagor hereby
grants to Mortgagee a security interest in that portion of the Subject
Premises not deemed a part of the real property for the purpose of securing
performance of all of Mortgagor's obligations herein. With respect to such
security interest (a) Mortgagee may exercise all rights granted or to be
granted a secured party under the Uniform Commercial Code as enacted in
the State of Oklahoma; and (b) upon the occurrence of an event of default
as defined hereunder, Mortgagee shall have a right of possession superior
to any right of possession of Mortgagor or any person claiming through or
on behalf of Mortgagor. Any notice required by the Uniform Commercial
Code shall be sufficient if given in the manner provided in paragraph 13 to
the parties named therein.
13. Any notice given pursuant hereto shall be in writing and
shall be sent by registered or certified mail, return receipt requested,
postage prepaid, by overnight courier guaranteeing overnight delivery, or
by personal service including facsimile transmission, to the respective
addresses as follows or to such other address as the respective party may
designate by written notice, duly mailed to the other:
To Mortgagee: LTC PROPERTIES, INC.
000 Xxxx Xxxxxx Xxxxxx
P.O. Box 74742
Chicago, Illinois 60694-5020
With a copy to: STERN, NEUBAUER, XXXXXXXXX & PAULY
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
0000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000-0000
To Mortgagor: WATERFORD DEVELOPMENT COMPANY, L.L.C.
c/o Sterling House Corporation
000 X. Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxx 00000
With a copy to: XXXXXXXX & XXXXXXXXX
Attn: Xxxxx X. Xxxxxxxx, Esq.
0000 X. Xxxxxx
Xxxxxxx, Xxxxxx 00000
Notice shall be deemed given three (3) business days after deposit in the
mail, on the date shown on courier's delivery receipt if sent by overnight
courier and on receipt if sent by personal service.
IN WITNESS WHEREOF, the Mortgagor has executed this
Mortgage as of the day and year first above written.
WATERFORD DEVELOPMENT COMPANY,
L.L.C., an Oklahoma limited liability company
By: /s/Xxxxxx Xxxx
Its: President of Its Managing Member
ACKNOWLEDGEMENT
STATE OF KANSAS
ss:
COUNTY OF SEDGWICK
This instrument was acknowledged before me this 18th day of
April, 1997, by Xxxxxx Xxxx, as Manager of Waterford Development
Company, L.L.C., an Oklahoma limited liablity company.
Notary Public
My Commission Expires:
(SEAL)
EXHIBIT "A"
LEGAL DESCRIPTION
DURANT, OKLAHOMA
The North 335 feet of the W/2 SE/4 SW/4 NE/4 of Section 30, Township
6 South, Range 9 East of the Indian Base and Meridian, in Xxxxx County,
Oklahoma according to the Government Survey thereof.
