1
Exhibit 10.8
Form of
LEASEHOLD MORTGAGE
THIS LEASEHOLD MORTGAGE (the "Mortgage") is made effective as
of October 31, 2000 (the "Effective Date") by FINANCIAL CARE INVESTORS OF
[ ], LLC, a limited liability company organized under the laws of
the State of Delaware ("Tenant"), having its chief executive office at 0000
Xxxxx Xxxxx, Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000, in favor of HEALTH CARE REIT,
INC., a corporation organized under the laws of the State of Delaware
("Lender"), having its principal office at One SeaGate, Suite 1500, P. O.
Xxx 0000, Xxxxxx, Xxxx 00000-0000, and [ ], a corporation organized
under the laws of the State of [ ] ("Landlord"), having its principal
office at One SeaGate, Suite 1500, P. O. Xxx 0000, Xxxxxx, Xxxx 00000-0000.
In consideration of the loan advances described in Article 2
made or to be made by Lender to Tenant and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Tenant has executed and delivered this Mortgage and by these presents does
mortgage, warrant, grant, transfer and convey to Lender and to its successors
and assigns, forever all of Tenant's right, title, and interest to and under the
following property which Tenant now owns or may hereafter acquire:
1. The leasehold estate of Tenant in the real property
described on Exhibit A attached hereto and made a part hereof ("Real Property")
which is subject to the Lease Agreement dated as of September 22, 1998 by and
between Landlord (an affiliate of Lender) and Tenant, as amended by a First
Amendment to Lease dated as of September 30, 1999, and as further amended from
time to time (the "Lease") for the operation of the facility located on the Real
Property ("Improvements"), together with all options to purchase or lease said
Real Property or any portion of or interest in that Real Property, all
modifications, extensions and renewals
2
of the Lease and all rights to renew, cancel, modify or terminate the Lease or
extend the term of the Lease and all options, privileges and rights granted
Tenant under the Lease. The Real Property and Improvements are collectively
referred to as the "Property".
TO HAVE AND TO HOLD the same with all of the rights,
privileges and appurtenances thereto belonging unto Lender, its successors and
assigns forever in accordance with the terms and conditions set forth herein.
ARTICLE 1: WARRANTIES
Tenant covenants with Lender and its successors and assigns that the Lease is in
all respect valid and in full force and effect, that Tenant is not in default
under any of the terms and provisions thereof, that Tenant has no knowledge of,
nor has received any notice from the Landlord of any default under the Lease,
that no controversy exists involving any claim of default under the Lease.
ARTICLE 2: PURPOSES
2.1 Secured Obligations. This Mortgage secures performance of the following
obligations (the "Secured Obligations") of Tenant:
2.1.1 Payment of Credit Extended.
(a) The payment of the indebtedness of Balanced Care Corporation to
Lender in the original principal amount of $900,000.00, plus interest on the
unpaid balance thereof, which indebtedness is evidenced by a note made by
Balanced Care Corporation in favor of Lender with a maturity date of the earlier
of [i] the date on which Tenant acquires fee simple title to the Property
pursuant to the Option to Purchase under the Lease; or [ii] November 1, 2008
("BCC Note"), and any extensions, modifications, substitutions or renewals of
the indebtedness or the BCC Note.
(b) The payment of the indebtedness of Tenant to Landlord in the
original principal amount of $[ ], or so much thereof as shall have
been advanced to Tenant, plus interest on the unpaid balance thereof, which
indebtedness is evidenced by an Amended and Restated Note made by Tenant in
favor of Landlord with a maturity date of the earlier of [i] the date on which
Tenant acquires fee simple title to the Property pursuant to the Option to
Purchase under the Lease; or [ii] November 1, 2008 ("Tenant Note") and any
extensions, modifications, substitutions or
- 2 -
3
renewals of the indebtedness or the Tenant Note. The BCC Note and the Tenant
Note may be collectively called the "Note".
2.1.2 Obligations Under Loan Documents. The performance of all obligations of
Tenant under the Loan Agreement (defined in Section 2.2.1), the Note, this
Mortgage and all other documents executed by Tenant or its affiliates in
connection therewith, any extensions, modifications or renewals thereof, and any
documents executed in substitution therefor (collectively, the "Loan
Documents").
2.1.3 Advances to Protect Property. The payment of unpaid balances of all
advances made by Lender for the payment of taxes, assessments, insurance
premiums, or costs incurred for the protection of the Property if paid by Lender
in accordance with the terms of the Lease.
2.1.4 Future Advances. The payment of any unpaid balances of loan advances which
Lender may make or may be obligated to make under this Mortgage or the Loan
Agreement at any time after this Mortgage is delivered to the recorder for
record to the extent that the total unpaid loan indebtedness, exclusive of
interest thereon, does not exceed the maximum amount of $[ ] which may
be outstanding at any time and from time to time.
2.2 Open-End Mortgage. This Mortgage is executed pursuant to, and is intended by
the parties to be subject to, the applicable provisions of the Loan Agreement.
It is expressly understood and acknowledged by Tenant that this Mortgage is
intended to secure future advances of principal by Lender made after this
Mortgage is left for record. In addition, notwithstanding any provision hereof
regarding the maximum principal indebtedness secured hereby, Tenant acknowledges
and agrees that additional amounts advanced by Lender to repair or protect the
Property as provided herein shall be deemed to constitute additional advances
secured by the lien of this Mortgage.
2.2.1 Loan Agreement. This Mortgage is subject to a certain Loan Agreement
("Loan Agreement") executed by Tenant and Landlord dated as of September 22,
1998, as amended by a First Amendment to Loan Agreement dated as of September
22, 1999, as amended and restated by a Second Amended and Restated Loan
Agreement of even date, and as further amended from time to time. The Loan
Agreement sets forth, among other things, the terms and conditions under which
Lender is obligated to advance up to the full amount of the Note and may make
non-obligatory advances, all of which are secured by this Mortgage. The Loan
Agreement is hereby incorporated herein and made a part hereof as though fully
rewritten herein, including
- 3 -
4
the defined terms. No defenses, offsets, or counterclaims available to Tenant
arising out of the Loan Agreement or Note shall be valid or effective against
any transferee of this Mortgage or the Note or its successors or assigns after
this Mortgage and the Note are collaterally assigned by Lender to one or more
transferees who are providing financing to Lender, and Tenant hereby expressly
waives all such defenses, offsets, or counterclaims to that extent. A copy of
the Loan Agreement is maintained at the offices of Lender and may be inspected
by interested persons.
2.3 Interpretation. This Mortgage form is and shall be construed accordingly to
reflect the fact that the credit giving rise to the Secured Obligations would
not have been extended by Lender but for the security provided by this Mortgage.
Where the sense requires it, the singular may be read as the plural or the
reverse and any gender may be read as any other gender.
ARTICLE 3: COVENANTS
3.1 Obligations. Tenant shall pay and perform all Secured Obligations when due
and required.
3.2 Lease.
3.2.1 Tenant agrees to keep and perform all obligations of the tenant under the
Lease. Tenant agrees not to commit or permit any breach of the Lease. If Tenant
shall default at the performance of any obligations of the Lease beyond
applicable cure periods, if any, Lender may, at its option and after written
notice to and receipt of consent from Landlord, with or without notice to
Tenant, take any action necessary or desirable to cure the default. Tenant
authorizes Lender to enter upon the Real Property for that purpose.
3.2.2 Tenant agrees to give immediate written notice to Lender of any default
under the Lease within Tenant's knowledge, or the receipt by Tenant of any
notice of default from Landlord and to furnish to Lender all information that
Lender may request concerning the performance by Tenant of obligations of the
tenant under the Lease.
3.2.3 Lender does not assume, nor shall it be deemed to have assumed or
otherwise be responsible for, performance of any of the obligations of Tenant as
Lessee under the Lease.
3.2.4 Tenant agrees that as long as this Mortgage is in effect, there shall be
no merger of the Lease with the fee estate of the
- 4 -
5
Real Property, by reason of the fact that the Lease may be held directly or
indirectly by or for the account of any person who shall hold the fee interest
in all or part of the Real Property or any interest of the Landlord under the
Lease. In the event Tenant acquires the fee title or any other interest in the
Real Property covered by the Lease, unless Tenant furnishes to Lender evidence
reasonably satisfactory to Lender that the leasehold estate and the fee estate
have not merged and the Lease retains priority over any encumbrances on the fee
interest or other interest in the Real Property (or that there are no such
encumbrances), this Mortgage will attach to and cover and be a lien upon the fee
title or such other interest so acquired and the fee title or other interest
shall, without further assignment, mortgage or conveyance, become subject to the
lien of this Mortgage.
3.2.5 Except as otherwise set forth in the Lease, so long as this Mortgage is in
effect, Tenant agrees that no surrender or termination of the Lease, in whole or
in part, shall be valid or effective.
3.2.6 Tenant agrees that if the Lease is terminated prior to the expiration of
its term by reason of Tenant's default, and if, pursuant to any provision of the
Lease, or otherwise, Lender or its designee shall acquire, from Landlord, a new
lease of the fee interest of the Property or any part of the Property, Tenant
shall have no right, title or interest in the new lease.
3.2.7 Tenant agrees that if any action or proceeding shall be instituted to
evict Tenant or to recover possession of the Property or for any other purpose
affecting the Lease or this Mortgage, Tenant will immediately deliver to Lender
true copies of the complaint, summons, and all other pleadings and papers
received by Tenant.
3.2.8 Tenant shall pay, or reimburse Lender for, all sales taxes, intangible
taxes, mortgage taxes, gross receipts taxes, documentary stamp taxes, mortgage
assignment taxes, transfer taxes and similar taxes imposed on Lender relating to
the Secured Obligations, Note, this Mortgage, or the indebtedness secured by
this Mortgage. At the direction of Lender, Tenant shall pay or reimburse Lender
for such taxes 30 days after Lender gives notice to Tenant.
3.3 Insurance. Tenant shall furnish to Lender copies of all insurance policies,
certificates and other evidence of insurance required under the Lease on or
before the dates provided in the Lease and with those policies, certificates or
other evidence of insurance are required to be furnished to the Landlord under
the Lease.
- 5 -
6
3.4 Funds for Impositions and Insurance.
3.4.1 After an Event of Default and with the written consent of Landlord, Tenant
shall pay to Lender a sum (called "Funds") equal to one-twelfth of the yearly
payments for Impositions and insurance on the Property, as may be reasonably
estimated by Lender, together with the monthly payments to be made under the
Note. The Funds paid to Lender shall be used to make the specified payments and
as additional security for the Secured Obligations.
3.4.2 The Funds shall be deposited by Lender with an institution the deposits or
accounts of which are insured or guaranteed by federal or state agency, and
shall not be deemed to be funds held in trust, and may be held with the general
funds of such depository. The funds shall be placed in an interest-bearing
account. All interest thereon shall be considered "Funds".
3.4.3 If the amount of the Funds held by Lender together with future monthly
installments of Funds payable prior to the due dates of the Impositions and the
insurance on the Property shall not be sufficient to make payments as they fall
due, Tenant shall pay to Lender the amount necessary to pay the deficiency
within 10 days after the date from which Lender gives notice requesting payment
thereof.
3.4.4 Upon performance in full of the Secured Obligations, Lender shall promptly
refund to Tenant any Funds held by Lender.
3.4.5 If the Property is sold or acquired by Lender, Lender shall apply any
Funds then held by Lender as a credit against the Secured Obligations.
3.4.6 Lender has the right to make payments for which it is holding Funds, and
at its election, to make other payments required to be made by Tenant.
3.5 Application of Payments. All payments and proceeds of sale received by
Lender under this Mortgage shall be credited as set forth in the Note.
3.6 Charges and Liens. Except to the extent Tenant makes payments therefor under
ss.3.4 and except for items being contested in good faith in compliance with the
requirements of the Loan Agreement, Tenant shall promptly pay before delinquent
taxes,
- 6 -
7
assessments, levies, and any other charges which have or may become a lien on
any of the Property.
3.7 Preservation of Property. Subject to the terms of the Lease, Tenant shall
keep the Property in good repair, and shall neither commit waste nor permit
impairment or deterioration of the Property.
3.8 Protection of Security. If Tenant fails to perform Tenant's agreements under
this Mortgage or if any action or proceeding is commenced which materially
affects Lender's interest in the Property, including, without limit, any
proceeding concerning eminent domain, insolvency, any decedent, or enforcement
of any ordinance, legislation, or regulation, then Lender is authorized to make
such appearances, disburse such sums, and take such action that Lender
reasonably determines is necessary or desirable to protect the Property and
Lender's interest therein, including, without limit, the disbursement of sums
for payment of reasonable attorneys' fees, taxes, assessments, insurance
premiums, costs incurred for the protection of the Property, and the entry upon
the Property to make repairs.
3.9 Inspection. After reasonable notice to Tenant, Lender or any person
authorized by Lender may enter upon and inspect any of the Property at all
reasonable times.
3.10 Eminent Domain. If the Property or any part thereof becomes the subject of
any proceeding ("Condemnation") for the taking of property or any conveyance in
lieu thereof, the provisions set forth in the Lease regarding Condemnation shall
prevail in the event that there are any proceeds paid to Tenant as a result of a
Condemnation. After the payment of any amount due to Landlord under the Lease,
the balance of the Condemnation proceeds shall be paid or caused to be paid by
Tenant to Lender to be applied to the payment of principal under the Note, up to
the outstanding amount of Secured Obligations, and Tenant hereby directs such
payment to be made directly to Lender and hereby assigns to Lender Tenant's
right thereto.
3.10.1 Payment Pending Restoration. Tenant's obligation to make payment on
Secured Obligations shall not xxxxx pending any repair or restoration of the
Property due to the Condemnation. In addition, Tenant shall reimburse Lender,
within 10 days after demand, for all reasonable costs, expenses, and fees
(including architect and engineer fees) incurred by Lender in connection with
any repair or restoration of the Property due to the Condemnation.
- 7 -
8
3.10.2 Condemnation Proceeds Not Trust Funds. Notwithstanding anything in this
Mortgage or at law or equity to the contrary, none of the Proceeds paid to
Lender shall be deemed trust funds, and Lender shall be entitled to dispose of
such proceeds as provided in this ss.3.10. Tenant expressly assumes all risk of
loss, including a decrease in the use, enjoyment, or value, of the Property from
any Condemnation.
3.11 Other Mortgages and Liens.
3.11.1 Prior Mortgages. If any of the Property is subject or becomes subject to
a lien prior to the lien of this Mortgage, the following provisions shall apply:
[i] Tenant shall pay when due all amounts required to be paid under any
obligation secured by a prior lien and shall otherwise perform all of the
obligations of Tenant hereunder.
[ii] Tenant shall not request, accept, or permit payment to Tenant of
any loan amount or disbursement the repayment of which is secured by any prior
mortgage without prior express written consent from Lender.
[iii] Tenant shall be in compliance with ss.ss.3.3 and 3.4 if Tenant
pays the Impositions and maintains the insurance coverage required under any
prior mortgage to which Lender has expressly consented.
[iv] A default in any prior mortgage shall be a default under this
Mortgage.
[v] Lender may cure any defaults of Tenant under any prior Mortgage or
pay, in whole or in part, any prior lien. To the extent of such payments, Lender
shall be subrogated to the rights and lien of the prior lien; however, any prior
lien rights to which Lender may become subrogated shall not merge with the lien
of this Mortgage.
3.11.2 No Merger of Liens. Lender may at any time during the term of this
Mortgage hold more than one lien against the Property or any part thereof. All
such liens held by Lender shall remain separate and distinct from each other and
each shall retain its individual priority and shall not merge with any other
lien held by Lender, unless and until Lender executes and records an instrument
expressly merging any such liens. If a default in this Mortgage occurs, Lender
may foreclose upon any lien against the Property held by it in such order and at
such times as Lender may elect. If Lender acquires title to the Property other
than
- 8 -
9
through foreclosure of this Mortgage, the lien of this Mortgage shall
continue and shall not merge with Lender's title to the Property.
3.11.3 No Consent. Nothing in thisss.3.11 shall be construed to mean that Lender
consents to any lien prior to the lien of this Mortgage.
3.12 Advances and Default Rate. Any payment made by Lender that Lender has the
right to make under any term of this Mortgage (except for payments from Funds
for which Funds have been deposited by Tenant) and expenses incurred and
payments made by Lender in taking action authorized by this Mortgage shall be
indebtedness of Tenant secured by this Mortgage, shall be payable upon demand,
shall bear interest at the Default Rate (as defined in the Note) from the date
of disbursement, and shall be deemed advances under subsections 2.1.3 and 2.1.4.
3.13 Damage, Destruction and Rebuilding. In the event of a casualty, as
hereinafter defined, Tenant shall comply with the terms of the Lease. In the
event the Lease is not in effect, the following provisions shall apply:
3.13.1 Notice of Casualty. If the Property, or any part thereof, shall be
destroyed, in whole or in part, or damaged by fire, flood, windstorm or other
casualty (a "Casualty"), Tenant shall give written notice thereof to Lender
within one business day after the occurrence of the Casualty. Within 15 days
after the occurrence of the Casualty, Tenant shall provide the following
information to Lender: [i] the date of the Casualty; [ii] the nature of the
Casualty; [iii] a description of the damage or destruction caused by the
Casualty, including the type of Property damaged and the area of the
Improvements damaged; [iv] a preliminary estimate of the cost to repair,
rebuild, restore or replace the Property; [v] a preliminary estimate of the
schedule to complete the repair, rebuilding, restoration or replacement of the
Property; [vi] a description of the anticipated property insurance claim,
including the name of the insurer, the insurance coverage limits, the deductible
amount, the expected settlement amount, and the expected settlement date; and
[vii] a description of the business interruption claim, including the name of
the insurer, the insurance coverage limits, the deductible amount, the expected
settlement amount, and the expected settlement date. Within five days after
request from Lender, Tenant will provide Lender with copies of all
correspondence to the insurer and any other information reasonably requested by
Lender.
- 9 -
10
3.13.2 Application of Insurance Proceeds. Provided Lender has obtained the prior
written approval of Landlord, Lender may elect either to [i] require the Tenant
to rebuild or repair the Property according to plans and specifications approved
in writing by Lender and upon such conditions as Lender may reasonably require;
or [ii] apply the net proceeds of insurance against the Secured Obligations to
be credited as set forth in the Note. Notwithstanding the foregoing, if the
amount of insurance proceeds does not exceed $250,000.00 and there is no
existing uncured Event of Default hereunder, Tenant shall have the right to
require that the proceeds be applied to the restoration of the Property which
shall be upon such conditions as Lender may require. All net proceeds of
insurance policies resulting from claims for casualty to the Property or any
element thereof shall be paid to and held by Lender subject to the provisions of
this Mortgage.
3.13.3 Repair. In the event Lender elects to have the Property rebuilt or
repaired [i] the Tenant shall promptly repair or rebuild the Property in a good
and workmanlike manner, in compliance with all laws and regulations, and in
accordance with plans and specifications, construction budget and construction
schedule approved by Lender; and [ii] Lender shall apply so much of the net
proceeds of such insurance as may be necessary to pay or reimburse the costs of
such repair or rebuilding, either on completion thereof or as the work
progresses.
3.13.4 Insufficient Proceeds. If the proceeds of any insurance settlement are
not sufficient to pay the costs of such repair, rebuilding or restoration in
full, Tenant shall deposit with Lender at Lender's option, and within 10 days of
Lender's request, an amount not to exceed the then outstanding principal
indebtedness secured hereby. Tenant shall not, by reason of the deposit or
payment, be entitled to any reimbursement from Lender or diminution in or
postponement of the payments to Lender on the Note.
3.13.5 No Abatement; Expenses. Tenant's obligation to make payments on Secured
Obligations shall not xxxxx pending the repairs or rebuilding of the Property.
Tenant shall pay the costs, expenses and fees of any architect or engineer
employed by Lender to review any plans and specifications and to supervise and
approve the repairs or rebuilding of the Property.
3.13.6 Not Trust Funds. Notwithstanding anything herein or at law or equity to
the contrary, none of the insurance proceeds paid to Lender as herein provided
shall be deemed trust funds, and Lender shall be entitled to dispose of such
proceeds as provided in this ss.3.13. Tenant expressly assumes all risk of loss,
including a
- 10 -
11
decrease in the use, enjoyment or value, of the Project from any casualty
whatsoever, whether or not insurable or insured against.
ARTICLE 4: TRANSFER OF THE PROPERTY; ASSUMPTION
4.1 Tenant's Successors. This Mortgage shall be binding upon Tenant's successors
and assigns and shall be binding upon and inure to the benefit of Lender and its
successors and assigns; however, Tenant may neither assign Tenant's rights under
this Mortgage nor delegate Tenant's duties under this Mortgage without the
express written consent of Lender.
4.2 No Transfer. Except for transfers made in connection with Permitted Liens
(as defined in the Loan Agreement), Tenant shall not sell, lease, xxxxx x xxxx
on or security interest in, or otherwise transfer or encumber all or any part of
the Property or any legal or equitable interests therein without the prior
written consent of Lender.
4.3 No Release of Tenant. No sale, transfer, or encumbrance of the Property or
of Tenant's rights under this Mortgage and the Note and no delegation of Secured
Obligations under this Mortgage or any other Secured Obligations shall release
Tenant from liability for any Secured Obligations unless: [i] Lender and such
transferee or delegee agree in writing that such transferee or delegee is
satisfactory to Lender and that such transferee or delegee shall perform the
Secured Obligations and pay such interest thereon as Lender may request, and
[ii] Lender delivers to Tenant a written release.
ARTICLE 5: [RESERVED]
ARTICLE 6: DEFAULT, ACCELERATION, AND REMEDIES
6.1 Event of Default. The occurrence of any Event of Default under a Loan
Document or the Lease shall constitute an Event of Default under this Mortgage.
6.2 Rights and Remedies Upon Default. Whenever any Event of Default occurs,
subject to the prior rights of Landlord and with Landlord's prior written
consent, Lender may take any one or more of the following remedial steps
concurrently or successively in addition to any other remedies under the Loan
Documents, at law or in equity, to the extent permitted by applicable law.
6.2.1 Lender may enter and take possession of the Property without terminating
this Mortgage, and complete construction of the Improvements (or any part
thereof) and perform the obligations of Tenant under the Loan Documents.
- 11 -
12
6.2.2 The Property may be sold by private sale without judicial process or
appraisal (the same being hereby waived) upon 10 days' notice to Tenant and, by
such sale, foreclose Tenant's equity of redemption in the Property completely
and as effectively as through an action to foreclose, the same being hereby
waived.
6.2.3 Lender may foreclose this Mortgage or accept delivery of a deed in lieu of
foreclosure. In any foreclosure or sale, the Property may be sold in one or more
parcels, lots, or groups (including mixtures of personal and real property, or
separately, any provision of law to the contrary notwithstanding) and, to the
extent permitted by law, Lender shall be under no obligation either to marshal
any assets of the Tenant or to marshal any portions of the Property.
6.2.4 Lender may xxx Tenant directly to collect any monies then due and may take
any action at law or equity (including bringing an action for a mandatory
injunction, restraining order or specific performance) to enforce performance of
the Secured Obligations.
6.2.5 For any security in which no interest arises under real estate law, Lender
may exercise its rights as a secured party under Article 9 of the Uniform
Commercial Code. Tenant agrees that a commercially reasonable manner of
disposition of the Property subject to security interests under Article 9 shall
include, without limitation and at the option of Lender, the sale of the
Property in whole or in part, concurrently with the foreclosure sale of the
Property in accordance with the provisions of this Mortgage.
6.2.6 Lender may terminate its obligation to disburse loan proceeds.
6.2.7 Lender may, and is hereby authorized by Tenant, at any time or from time
to time, to the fullest extent permitted by law, without advance notice to
Tenant (any such notice being expressly waived by Tenant) to set-off and apply
any and all sums held by Lender, any indebtedness of Lender to Tenant, any and
all claims by Tenant against Lender, against any obligations of Tenant
hereunder, whether or not such obligations or claims of Tenant are matured and
whether or not Lender has exercised any other remedies hereunder.
- 12 -
13
6.2.8 In any action or proceeding to foreclose this Mortgage, or upon actual or
threatened waste to any part of the Property, Lender may apply, without notice
to Tenant, for the appointment of a receiver ("Receiver") of the Property.
Unless prohibited by law, such appointment may be made either before or after
sale, without notice, without regard to the solvency or insolvency of Tenant at
the time of application for such Receiver and without regard to the then value
of the Property, and Lender may be appointed as Receiver. The Receiver shall
have the power to collect the rents, issues and profits of the Property during
the pendency of the foreclosure and, in case of a sale and deficiency during the
full statutory period of redemption, whether there be redemption or not, as well
as during any future times, if any, when Tenant, except for the intervention of
such Receiver, would be entitled to collect such rents, issues and profits, and
all other powers which may be necessary or are usual in such cases for the
protection, possession, control, management and operation of the Property during
the whole of said proceeding. All sums of money received by the Receiver from
such rents and income, after deducting therefrom the reasonable charges and
expenses paid or incurred in connection with the collection and disbursement
thereof, shall be applied to the payment of the Secured Obligations or applied
to remedy any default hereunder as Lender may direct. Tenant, if requested to do
so, will consent to the appointment of any such Receiver as aforesaid.
6.2.9 Lender may take any other action which Lender is entitled to take under
any law, equity, or the Loan Documents.
6.2.10 Lender may, at its option, but without any obligation so to do, and
without waiving or releasing Tenant from any of the agreements and covenants in
the Loan Documents, pay any sum or perform any act or take such action as Lender
may deem necessary or desirable in order to protect the lien of this Mortgage,
the Property or otherwise in the sole discretion of Lender. Tenant hereby grants
to Lender, and agrees that Lender shall have, after the occurrence of one or
more Events of Default, the absolute and immediate right to enter in and upon
the Property or any part thereof to such extent and as often as Lender, in its
sole discretion, deems necessary or desirable for such purpose. Lender may pay
and expend such sums of money as it may, in its sole discretion, deem necessary
for the purposes stated herein. Tenant hereby agrees to pay to Lender, on
demand, all such sums so paid or expended by Lender, together with interest
thereon from the date of each such payment or expenditure at the default rate
specified in the Note.
- 13 -
14
6.3 Sale of Property. Subject to the prior rights of Landlord and with
Landlord's prior written consent, the following provisions apply to any sale of
the Property pursuant to this Article 6 or pursuant to any judicial proceeding.
6.3.1 Receipt Sufficient Discharge for Purchaser. The receipt of the court
officer or other person conducting any such sale for the purchase money paid at
any such sale shall be sufficient discharge thereof to any purchaser of the
Property, or any part thereof, sold as aforesaid. No such purchaser or his
representatives, grantees or assigns, after paying such purchase money and
receiving such receipt, shall be bound to see to the application of such
purchase money upon or for purpose of this Mortgage, or shall be answerable in
any matter whatsoever for any loss, misapplication or non-application of any
such purchase money or any part thereof, nor shall any such purchaser be bound
to inquire as to the necessity or expediency of any such sale.
6.3.2 Lender's Purchase of Property. Lender or any holder of the Note may bid
for and purchase the Property being sold, and upon compliance with the terms of
sale. Lender or any holder of the Note may hold, retain, possess and dispose of
such Property in its own absolute right without further accountability.
6.3.3 Application of Proceeds of Sale. Unless Lender elects otherwise, the
purchase money or proceeds of any such sale shall be applied first, to all
charges, expenses and fees payable by Tenant under the Loan Documents, including
all attorney's fees, Receiver's fees and other costs and expenses incurred by
Lender, with interest thereon at the default rate specified in the Note; second,
to all unpaid interest accrued on any of the Secured Obligations; third, to the
principal amount outstanding of the Secured Obligations; and the balance, if
any, to Tenant.
6.3.4 No Defense; Waiver. Failure to join or to provide notice to tenants under
any Leases as defendants in any foreclosure action or suit shall not [i]
constitute a defense to such foreclosure; [ii] preclude Lender from obtaining a
deficiency judgment or otherwise reduce or diminish the amount of any such
judgment in any manner whatsoever; or [iii] give rise to any claims by Tenant,
or any person claiming through or under Tenant, against Lender. Upon the request
of Lender and to the extent not prohibited by applicable law, Tenant shall
execute and file with the clerk of the court a legally sufficient waiver of any
statutory waiting period with respect to the execution of a judgment obtained by
Lender in connection with any foreclosure proceedings. The obligations of Tenant
to so execute and file such waiver shall survive the termination of this
Mortgage.
- 14 -
15
ARTICLE 7: MISCELLANEOUS
7.1 Advances by Lender. At any time and from time to time during the term of
this Mortgage, Lender may incur and/or pay and/or advance costs or expenses [i]
incurred or advanced by Lender which Lender is authorized or has the right (but
not necessarily the obligation) to incur or may incur under any term of any Loan
Document or any law; [ii] of whatever nature incurred or advanced by Lender in
exercising any right or remedy provided by any term of any Loan Document or in
taking any action which Lender is authorized to take by any term of any Loan
Document; [iii] required to be paid by Tenant by any term of any Loan Document,
but which Tenant fails to pay upon demand; or [iv] any and all costs and
expenses from which Tenant is required to hold Lender harmless by any term of
any Loan Document, but from which Tenant fails to hold Lender harmless. Any
reasonable costs, expenses, or advances incurred or paid by Lender shall become
part of the Loan and, upon demand, shall be paid to Lender together with
interest thereon at the default rate specified in the Note from the date of
disbursement by Lender. Payment of such costs, expenses, or advances shall be
secured by this Mortgage.
7.2 Attorney's Fees and Expenses. Tenant shall pay all reasonable costs and
expenses incurred by Lender in administering the Secured Obligations and all
collateral for the Secured Obligations, enforcing or preserving Lender's rights
under the Note, Loan Agreement, this Mortgage, and all other Loan Documents, and
in all matters of collection, whether or not an Event of Default has actually
occurred or has been declared and thereafter cured, including, but not limited
to, [i] the reasonable fees, expenses, and costs of any litigation,
receivership, administrative, bankruptcy, insolvency or other similar
proceeding; [ii] reasonable attorney and paralegal fees and disbursements; [iii]
the reasonable expenses of Lender and its employees, agents, attorneys, and
witnesses in preparing for litigation, administrative, bankruptcy, insolvency or
other proceedings and for lodging, travel and attendance at meetings, hearings,
depositions, and trials in connection therewith; [iv] court costs; and [v]
consulting and witness fees and expenses incurred by Lender in connection with
any such proceedings. All such costs, charges and fees as incurred shall be
deemed to be secured by this Mortgage and collectible out of the proceeds of
this Mortgage in any manner permitted by law or by this Mortgage.
- 15 -
16
7.3 Construction of Rights and Remedies and Waiver of Notice and Consent.
7.3.1 The provisions of this Section 7.3 shall apply to all rights and remedies
provided by this Mortgage or any Loan Document or by law or equity provided
Lender obtains Landlord's prior written consent.
7.3.2 WAIVER OF NOTICES AND CONSENT TO REMEDIES. Unless otherwise expressly
provided herein, any right or remedy may be pursued without notice to or further
consent of Tenant, both of which Tenant waives.
7.3.3 Each right or remedy under the Loan Documents is distinct from but
cumulative to each other right or remedy and may be exercised independently of,
concurrently with, or successively to any other rights and remedies.
7.3.4 No extension of time for or modification of amortization of the loan shall
release the liability or bar the availability of any right or remedy against
Tenant or any successor in interest, and Lender shall not be required to
commence proceedings against Tenant or any successor or to extend time for
payment or otherwise to modify amortization of the loan secured by this Mortgage
by reason of any demand by Tenant or any successor.
7.3.5 Lender has the right to proceed at its election against all security or
against any item or items of such security from time to time, and no action
against any item or items of security shall bar subsequent actions against any
item or items of security.
7.3.6 No forbearance in exercising any right or remedy shall operate as a waiver
thereof; no forbearance in exercising any right or remedy on any one or more
occasion shall operate as a waiver thereof on any further occasion; and no
single or partial exercise of any right or remedy shall preclude any other
exercise thereof or the exercise of any other right or remedy.
7.3.7 Failure by Lender to insist upon the strict performance of any of the
covenants and agreements herein set forth or to exercise any rights or remedies
upon default by Tenant hereunder shall not be considered or taken as a waiver or
relinquishment for the future of the right to insist upon and to enforce by
mandamus or other appropriate legal or equitable remedy strict compliance by
Tenant with all of the covenants and conditions hereof, or of the rights to
exercise any such rights or remedies, if such default by Tenant is continued or
repeated, or of the right to recover possession of the Property by reason
thereof. To the
- 16 -
17
extent permitted by law, any two or more of such rights or remedies may be
exercised at the same time.
7.3.8 If any covenant or agreement contained in any Loan Document is breached by
Tenant and thereafter waived by Lender, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
thereunder. No waiver shall be binding unless it is in writing and signed by
Lender. No course of dealing between Lender and Tenant, nor any delay or
omission on the part of Lender in exercising any rights under any of the Loan
Documents, shall operate as a waiver.
7.3.9 Tenant and any other person now or hereafter obligated for the payment or
performance of all or any part of the Note shall not be released from paying and
performing under the Note, and the lien of this Mortgage shall not be affected
by reason of [i] the failure of Lender to comply with any request of Tenant (or
of any other person so obligated) to take action to foreclose this Mortgage or
otherwise enforce any of the provisions of this Mortgage or of any of the
Secured Obligations, or [ii] the release, regardless of consideration, of the
obligations of any person liable for payment or performance of the Note, or any
part thereof, or [iii] any agreement or stipulation extending the time of
payment or modifying the terms of the Note, and, in the event of such agreement
or stipulation, Tenant and all such other persons shall continue to be liable
under such documents, as amended by such agreement or stipulation unless
expressly released and discharged in writing by Lender.
7.3.10 Tenant, for itself and its successors and assigns, hereby irrevocably
waives and releases, to the extent permitted by law, and whether now or
hereafter in force, [i] the benefit of any and all valuation and appraisement
laws, [ii] any right of redemption after the date of any sale of the Property
upon foreclosure, whether statutory or otherwise, in respect of the Property,
[iii] any applicable homestead or dower laws, and [iv] all exemption laws
whatsoever and all moratoriums, extensions or stay laws or rules, or orders of
court in the nature of any one or more of them.
7.3.11 Nothing contained in any of the Loan Documents shall constitute any
consent or request by Lender, express or implied, for the performance of any
labor or services or the furnishing of any materials or other property in
respect of the Property or any part thereof, or be construed to permit the
making of any claim against Lender in respect of labor or services or the
furnishing of any materials or other property or any claim that any lien based
on the performance of such labor or services or the
- 17 -
18
furnishing of any such materials or other property is prior to the lien of
this Mortgage.
7.4 Notices. All notices, demands, requests, and consents (hereinafter
"Notices") given pursuant to the terms of this Mortgage shall be in writing,
shall be addressed to the addresses set forth in the introductory paragraph of
this Mortgage and to Landlord at the address set forth in the Lease and shall be
served by [i] personal delivery; [ii] United States mail, postage prepaid; or
[iii] nationally recognized overnight courier. All Notices shall be deemed to be
given upon the earlier of actual receipt or three days after mailing or one
business day after deposit with the overnight courier. Any Notices meeting the
requirements of this Section shall be effective, regardless of whether or not
actually received. Lender and Tenant may change their notice address at any time
by giving the other party written notice of such change.
7.5 Amendment. This Mortgage may be amended only by a writing signed by Lender
and Tenant and consented to by Landlord. All references to this Mortgage,
whether in this Mortgage or in any other document or instrument, shall be deemed
to incorporate all amendments, modifications and renewals of this Mortgage made
after the Effective Date.
ARTICLE 8: INTERPRETATION
8.1 Captions. The captions and headings contained in this Mortgage are for
convenient reference only and are not to be used to interpret or define the
provisions hereof.
8.2 Severability. If any provision of this Mortgage or the application thereof
to any party or circumstance shall, to any extent, be adjudged to be invalid or
unenforceable, the remainder of this Mortgage and the application of any such
provision to other parties or circumstances shall not be affected thereby, and
each provision of this Mortgage shall be valid and enforceable to the fullest
extent permitted by law.
8.3 Governing Law. This Mortgage and the rights and obligations of the parties
hereunder shall be governed by and construed and interpreted in accordance with
the laws of the Commonwealth of Pennsylvania, except that the creation and
perfection of liens and security interests in the Property, and the procedures
for foreclosure and execution of the liens and security interests shall be
governed by, construed and interpreted in accordance with the laws of the state
where the Real Property at issue is located, in each case without regard to the
conflict of law rules of such state.
- 18 -
19
8.4 Survival. All agreements, representations, and warranties contained in this
Mortgage shall survive the execution and delivery of this Mortgage, and shall be
deemed to be effective continuously throughout the term of this Mortgage.
8.5 Conflict in Provisions. In the event of any conflict in the provisions of
this Mortgage and the Lease, the terms and provisions of the Lease shall govern.
ARTICLE 9: CONSTRUCTION
9.1 No Liability for Lender. Tenant hereby acknowledges and agrees that the
undertaking of Lender under this Mortgage is limited as follows:
(a) Lender is not and will not be in any way the agent for or trustee
of Tenant. Lender does not intend to act in any way for or on behalf of Tenant
in disbursing the proceeds under the Loan Agreement. Lender's purpose in making
the requirements set forth herein and in the Loan Agreement is to protect the
validity and priority of this Mortgage and the value of its security.
(b) This Mortgage is not to be construed by Tenant or anyone furnishing
labor, materials, or any other work or product for improving the Property as an
agreement by Lender to assure that anyone will be paid for furnishing such
labor, materials, or any other work or product. Tenant is and shall be solely
responsible for such payments.
(c) Lender is not responsible for construction of any improvements to
the Property. Notwithstanding Lender's inspection of the Property and the
improvements, Lender assumes no responsibility for the quality of construction
or workmanship, or for the architectural or structural soundness of any
improvements to the Property, or for the adherence to or approval of any plans
and specifications for any improvements to the Property.
NOW, THEREFORE, if Tenant shall pay the Secured Obligations in
full and shall fully comply with this Mortgage, then this Mortgage and the
estate hereby granted shall cease, and Lender shall thereupon release this
Mortgage at the cost and expense of Tenant (all claims for statutory penalties,
in case of Lender's failure to release, being hereby waived); otherwise, this
Mortgage shall remain in full force and effect.
- 19 -
20
IN WITNESS WHEREOF, this Mortgage has been duly executed as of
(but not necessarily on) the Effective Date.
Signed and acknowledged in the FINANCIAL CARE INVESTORS OF
presence of: [ ], LLC
Signature/s/Xxxxx X. Xxxxxx By:
Print Name Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Vice President and Secretary
Signature/s/Xxxxxxx Xxxxxxx
Print Name Xxxxxxx Xxxxxxx Tax I.D. No.: [ ]
STATE OF PENNSYLVANIA )
) SS:
COUNTY OF CUMBERLAND )
The foregoing instrument was acknowledged before me this 28th
day of November, 2000 by Xxxxx X. Xxxxxx, the Vice President and Secretary of
Financial Care Investors of [ ], LLC, a Delaware limited liability company, on
behalf of the limited liability company.
/s/Xxxx X. Xxxxx
Notary Public
My Commission Expires: Aug. 20, 2002 [SEAL]
THIS INSTRUMENT PREPARED BY
AFTER RECORDING RETURN TO:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx, Loop & Xxxxxxxx, LLP
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
