INCREASED, CONSOLIDATED AND RESTATED MORTGAGE AND SECURITY AGREEMENT (NEW YORK) THIS INSTRUMENT IS FOR USE ONLY FOR MULTIFAMILY PROPERTIES CONTAINING MORE THAN 6 RESIDENTIAL UNITS

▇▇▇▇▇▇ ▇▇▇ Multifamily Security Instrument - Form 4033

Page 34

---

IN WITNESS WHEREOF, Borrower and Lender have signed and delivered this Instrument or have caused this Instrument to be signed and delivered by their duly authorized representatives.

 

BORROWER:

MERIWEG-SYRACUSE, LLC,

a Delaware limited liability company

By:           Emeritus Corporation,

a Washington corporation

By:           _/s/ _Eric Mendelsohn________

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Director of Real Estate

Business Legal Affairs

▇▇▇▇▇▇ ▇▇▇ Commitment

Number:  851888

STATE OF _Washington                                  )

 

) ss:

 

COUNTY OF _King                                          )

 

On this 29th day of August, 2007, before me, the undersigned, personally appeared ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the instrument.

 

_/s/ ▇▇▇▇▇ ▇. Chee________

Notary Public

 

My Commission Expires:

 

___05-09-11_____

 

▇▇▇▇▇▇ Mae Multifamily Security Instrument - Form 4033

---

LENDER:

RED MORTGAGE CAPITAL, INC., an Ohio corporation

By:        /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Name:                      ▇. ▇▇▇▇▇ Kallmerten

Title:                      Senior Managing Director

▇▇▇▇▇▇ ▇▇▇ Commitment

Number:  851888

 

STATE OF OHIO                                                 )

 

) ss:

 

COUNTY OF FRANKLIN                                   )

 

On this ___ day of August, 2007, before me, the undersigned, personally appeared ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the instrument.

 

______/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇

Notary Public

 

My Commission Expires:

 

____10-30-10_________

 

 

 

▇▇▇▇▇▇ ▇▇▇ Multifamily Security Instrument - Form 4033

---

KEY PRINCIPAL

 

Key Principal

Name:                                Emeritus Corporation

Address:                      ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇

▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇▇▇▇ ▇▇▇ Multifamily Security Instrument - Form 4033

---

EXHIBIT A

 

[DESCRIPTION OF THE LAND]

 

[See attached]

 

▇▇▇▇▇▇ Mae Multifamily Security Instrument - Form 4033

Page A -1

---

EXHIBIT B-1

 

MODIFICATIONS TO INSTRUMENT

 

 

(Seniors Housing)

 

The following modifications are made to the text of the Instrument that precedes this Exhibit:

 

1.  Section 1 of the Instrument is hereby amended to add the following paragraphs the end thereof:

 

“(aa)

‘Accounts’ means all money, funds, investment property, accounts, general intangibles, deposit accounts, chattel paper, documents, instruments, judgments, claims, settlements of claims, causes of action, refunds, rebates, reimbursements, reserves, deposits, subsidies, proceeds, products, rents and profits, now or hereafter arising, received or receivable, from or on account of the Borrower's management and operation of the Mortgaged Property as a Seniors Housing Facility.”

 

“(bb)

‘Contract(s)’ means any contract or other agreement for the provision of goods or services at or otherwise in connection with the operation, use or management of the Mortgaged Property, including cash deposited to secure performance by parties of their obligations.”

 

“(cc)

‘Inventory’ means all right, title and interest of Borrower in and to inventory of every type and description, now owned and hereafter acquired, including, without limitation, raw materials, work in process, finished goods, goods returned or repossessed or stopped in transit, goods used for demonstration, promotion, marketing or similar purposes, property in, on or with which any of the foregoing may be stored or maintained, all materials and supplies usable or used or consumed at the Mortgaged Property, and all documents and documents of title relating to any of the foregoing, together with all present and future parts, additions, accessories, attachments, accessions, replacements, replacement parts and substitutions therefor or thereto in any form whatsoever.”

 

“(dd)

‘License(s)’ means any operating licenses, certificates of occupancy, health department licenses, food service licenses, certificates of need, business licenses, permits, registrations, certificates, authorizations, approvals, and similar documents required by applicable laws and regulations for the operation of the Mortgaged Property as a Seniors Housing Facility, including replacements and additions thereto.”

 

“(ee)

‘Operating Lease’ means any master lease, operating agreement, operating lease or similar document, preapproved by Lender, under which control of the

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 1

---

occupancy, use, operation, maintenance and administration of the Mortgaged Property as a Seniors Housing Facility has been granted to any individual or entity other than the Borrower.”

 

“(ff)

‘Operator’ means any qualified and licensed (if so required by the applicable laws of the Property Jurisdiction) individual or entity obligated under the terms of an Operating Lease with the Borrower.”

 

“(gg)

‘Seniors Housing Facility’ means a residential housing facility which qualifies as ‘housing for older persons’ under the Fair Housing Amendments Act of 1988 and the Housing for Older Persons Act of 1995 comprised of assisted living units.”

 

“(hh)

‘Third Party Payments’ means all payments and the rights to receive such payments from Medicaid programs, or similar federal, state or local programs, boards, bureaus or agencies, and from residents, private insurers or others.”

 

2.  Section 1(g) of the Instrument is hereby amended to add the following sentence at the end thereof:

 

“The term ‘Hazardous Materials’ shall also include any medical products or devices, including, but not limited to, those materials defined as ‘medical waste’ or ‘biological waste’ under relevant statutes or regulations pertaining to any Hazardous Materials Law.”

 

3.  Section 1(o) of the Instrument is hereby amended to add the following sentence at the end thereof:

 

“The term ‘Leases’ shall also include any residency, occupancy, admission and care agreements pertaining to residents of the Mortgaged Property and any Operating Lease.”

 

4.  Section 1(s) of the Instrument is hereby amended:

 

A.           to revise subsection (14) to read as follows:

 

“(14) all resident and tenant security deposits, entrance fees, application fees, processing fees, community fees and any other amounts or fees deposited by any resident or tenant upon execution of a Lease which have not been forfeited by the resident or tenant; and”

 

and

 

B.           to add the following subsections (16), (17), (18), and (19) at the end thereof:

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 2

---

“(16)                      all payments due, or received, from residents, second party charges added to base rental income, base and/or additional meal sales, commercial operations located on the Mortgaged Property or provided as a service to the residents of the Mortgaged Property, rental from guest suites, seasonal lease charges, furniture leases, and laundry services, and any and all other services provided to residents in connection with the Mortgaged Property, and any and all other personal property on the Mortgaged Property, excluding personal property belonging to residents of the Mortgaged Property (other than Personalty belonging to Borrower);”

 

“(17)                      subject to applicable law and regulations, all Licenses and Contracts relating to the operation and authority to operate the Mortgaged Property as a Seniors Housing Facility;”

 

“(18)                      all Third Party Payments arising from the operation of the Mortgaged Property as a Seniors Housing Facility, utility deposits, unearned premiums, accrued, accruing or to accrue under insurance policies now or hereafter obtained by the Borrower and all proceeds of any conversion of the Mortgaged Property or any part thereof including, without limitation, proceeds of hazard, property, flood and title insurance and all awards and compensation for the taking by eminent domain, condemnation or otherwise, of all or any part of the Mortgaged Property or any easement therein; and, ”

 

“(19)                      all of Borrower’s Accounts and Inventory.”

 

5.  Section 1(v) of the Instrument is hereby amended to add the following sentence at the end thereof:

 

“The term ‘Personalty’ shall also include all personal property currently owned or acquired by Borrower after the date hereof used in connection with the ownership and operation of the Mortgaged Property as a Seniors Housing Facility, all kitchen or restaurant supplies and facilities, dining room supplies and facilities, medical supplies and facilities, leasehold improvements, or related furniture and equipment, together with all present and future parts, additions, accessories, replacements, attachments, accessions, replacement parts and substitutions thereof, and the proceeds thereof (cash and non-cash including insurance proceeds) and any other equipment, supplies or furniture owned by Borrower and  leased to any third party service provider or any Operator under any Operating Lease, use, occupancy, or lease agreements, as well as all Licenses, to the extent permitted by applicable law and regulations, including replacements and additions thereto.”

 

6.  Section 1(x) of the Instrument is hereby amended to provide as follows:

 

“‘Rents’ means all rents (whether from residential or non-residential space), revenues and other income of the Land or the Improvements, including rent paid under any Operating Lease, subsidy payments received from any sources

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 3

---

(including but not limited to payments under any Housing Assistance Payments Contract), parking fees, laundry and vending machine income and fees and charges for food, healthcare and other services provided at the Mortgaged Property, whether now due, past due, or to become due, security deposits, entrance fees, application fees, processing fees, community fees and any other amounts or fees forfeited by any resident or tenant, together with and including all proceeds from any private insurance for residents to cover rental charges and charges for services at or in connection with the Mortgaged Property, and the right to Third Party Payments due for the rents or services of residents at the Mortgaged Property.  Each of the foregoing shall be considered ‘Rents’ for the purposes of the actions and rights set forth in Section 3 of this Instrument.”

 

7.  Section 3(b) of the Instrument is hereby amended to add the following sentence at the end thereof:

 

“After an Event of Default, Lender is further authorized to give notice to all Third Party Payment payors (other than governmental entities) at Lender’s option, instructing them to pay all Third Party Payments which would be otherwise paid to Borrower to Lender, to the extent permitted by law.  In the case of Third Party Payments from Third Party Payment payors which are governmental entities, including Medicaid, Lender and Borrower have executed a Depositary Agreement of even date herewith which establishes special procedures for the receipt and disposition of the Third Party Payments.”

 

8.  Section 3(c) of the Instrument is hereby amended to add the following sentence at the end thereof:

 

“In order to induce Lender to lend funds hereunder, Borrower (together with any Operator or manager of the Mortgaged Property) hereby agrees, upon the occurrence of an Event of Default and at the option of Lender, that it shall continue to provide all necessary services required under any Operating Lease or applicable licensing or regulatory requirements and shall fully cooperate with Lender and any receiver as may be appointed by a court in performing these services and agrees to arrange for an orderly transition to a replacement operator, manager or provider of the necessary services, and to execute promptly all applications, assignments, consents and documents requested by Lender to facilitate such transition.”

 

9.          The first sentence in Section 4(b) of the Instrument is hereby amended to add the following at the end thereof:

 

“, with the exception of any Operating Lease.”

 

10.           The last sentence in Section 4(e) of the Instrument is hereby amended to state as follows:

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 4

---

“If customary in the applicable market, residential Leases with a month-to-month term or with terms of less than six months shall be permitted with Lender's prior written consent.”

 

11.           The first sentence in Section 4(f) of the Instrument is hereby amended to add the following at the end thereof:

 

“with the exception of any Operating Lease which has previously been approved by Lender.”

 

12.	Section 4 of the Instrument is hereby amended to add the following as Section 4(h):

“Any Operating Lease is and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Instrument and the other Loan Documents, and to all renewals, modifications, consolidations, replacements and extensions thereof, and to all advances heretofore made or which may hereafter be made pursuant to the Instrument (including all sums advanced for the purposes of (x) protecting or further securing the lien of the Instrument, curing defaults by Borrower under the Loan Documents or for any other purposes expressly permitted by the Instrument, or (y) constructing, renovating, repairing, furnishing, fixturing or equipping the Mortgaged Property.”

13.           Section 11 of the Instrument is hereby amended to add the following sentences at the end thereof:

 

“Borrower acknowledges that as of the date of this Instrument, Borrower and the Mortgaged Property are not certified to participate in the Medicaid assisted living waiver program administered by the Property Jurisdiction (“Program”).  Borrower covenants and agrees that it will notify Lender in writing 30 days prior to Borrower’s submission of its request to participate in the Program, and will provide Lender with copies of all correspondence and documentation received from the Property Jurisdiction or any authorizing entity concerning its submission.  In the event the Mortgaged Property or Borrower becomes eligible to participate in the Program, Borrower agrees to execute then-current ▇▇▇▇▇▇ ▇▇▇ forms of Medicaid reserve agreement and depositary agreement as Lender may require.”

 

“Borrower further covenants and agrees that it shall not permit more than 20% of its effective gross income to be derived from units relying on Medicaid payments.  If by reason of applicable law or regulation more than 20% of effective gross income becomes derived from units relying on Medicaid payments, the Borrower shall diligently and expeditiously take all reasonable steps necessary to bring the Mortgaged Property into compliance with the preceding sentence to the extent permissible by applicable law or regulation.  Borrower further covenants and agrees that it shall limit the use and occupancy of the Mortgaged Property to residents that meet the standards for independent living or assisted living, and that it shall not accept residents that require skilled nursing care or permit residents

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 5

---

requiring skilled nursing care to remain at the Mortgaged Property as a routine matter.”

 

14.           Section 12(a) of the Instrument is hereby amended to add the following at the end thereof:

 

“and, (5) payments for any required licensing fees, permits, or other expenses related to the operation of the Mortgaged Property as a Seniors Housing Facility, any fines or penalties that may be assessed against the Mortgaged Property, any costs incurred to bring the Mortgaged Property into full compliance with applicable codes and regulatory requirements, and any fees or costs related to Lender’s employment of any operator or service provider for the Mortgaged Property.”

 

15.           Section 14(b) of the Instrument is hereby deleted in its entirety and replaced with the following:

 

“(b)

Subject to federal, state and local laws and regulations applicable to resident and tenant privacy, including but not limited to the Health Insurance Portability and Accountability Act (“HIPAA”) (collectively, the “Privacy Laws”), Borrower shall furnish to Lender all of the following:

 

(1)

within 30 days after the end of each fiscal quarter, a statement of income and expenses for Borrower’s or any Operator’s operation of the Mortgaged Property for that quarter, a statement of changes in financial position of Borrower relating to the Mortgaged Property for that quarter and a balance sheet showing all assets and liabilities of Borrower relating to the Mortgaged Property as of the end of that quarter;

 

(2)

within 90 days after the end of each twelve consecutive month fiscal year, a statement of income and expenses for Borrower’s or any Operator’s operation of the Mortgaged Property for that fiscal year, prepared in accordance with generally accepted accounting principles (“GAAP”), a statement of changes in financial position of Borrower relating to the Mortgaged Property for that fiscal year, and a balance sheet showing all assets and liabilities of Borrower relating to the Mortgaged Property as of the end of that fiscal year;

 

(3)

within 30 days after the end of each quarter of Borrower, and at any other time upon Lender's request, a rent schedule for the Mortgaged Property showing the name of each resident and tenant, and for each resident and tenant, the space occupied, the lease expiration date, the rent payable for the current month, the date through which rent has been paid, any income attributable to additional resident services, and any related information requested by Lender;

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 6

---

(4)

within 120 days after the end of each fiscal year of Borrower, and at any other time upon Lender's request, an accounting of all security deposits held pursuant to all Leases, including the name of the institution (if any) and the names and identification numbers of the accounts (if any) in which such security deposits are held and the name of the person to contact at such financial institution, along with any authority or release necessary for Lender to access information regarding such accounts;

 

(5)

within 120 days after the end of each fiscal year of Borrower, and at any other time upon Lender's request, a statement that identifies all owners of any interest in Borrower and the interest held by each, if Borrower is a corporation, all officers and directors of Borrower, and if Borrower is a limited liability company, all managers who are not members;

(6)

upon Lender's request, a monthly property management report for the Mortgaged Property, showing the number of inquiries made and rental applications received from residents or prospective residents and deposits received from residents and any other information requested by Lender;

(7)

if required by Lender, a statement of income and expense for the Mortgaged Property for the prior month or quarter;

(8)

within 10 days of Borrower’s receipt, copies of all inspection reports, surveys, reviews, and certifications prepared by, for, or on behalf of any licensing or regulatory authority relating to the Mortgaged Property and any legal actions, orders, notices, or reports relating to the Mortgaged Property issued by the applicable regulatory or licensing authorities;

 

(9)

upon the request of Lender, copies of all reports relating to the services and operations of the Mortgaged Property, including, if applicable, Medicaid cost reports and records relating to account balances due to or from Medicaid or any private insurer; and

 

(10)

within 10 days of submission by Borrower, copies of all incident reports submitted to any liability insurance carrier or any elderly affairs, regulatory or licensing authority.”

 

16.           Section 17(a)(5) is hereby amended to state the following:

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 7

---

“shall provide for professional management of the Mortgaged Property as a Seniors Housing Facility either by Borrower, an Operator under an Operating Lease approved by Lender in writing, or a management company engaged either by the Borrower or any Operator under a Contract approved by Lender in writing.”

 

17.           Section 17(a) of the Instrument is hereby amended to add the following sentence at the end thereof:

 

“Borrower further covenants and agrees that it shall maintain and operate the Mortgaged Property as a Seniors Housing Facility at all times in accordance with the standards required by any applicable Licenses and as required by any regulatory authority, that it shall maintain in good standing all Licenses, and that it shall cause to renew and extend all such required Licenses, and shall not fail to take any action necessary to keep all such Licenses in good standing and full force and effect.  Borrower will immediately provide Lender with any notice or order of a violation which may otherwise have an adverse impact on the Mortgaged Property, its operations or its compliance with licensing and regulatory requirements.”

 

18.           Section 17 of the Instrument is hereby amended to add the following as subsection (c):

 

“Borrower has entered into the Contracts previously identified to Lender for the provision of goods or services, at or otherwise in connection with the operation, use or management of the Mortgaged Property.  Borrower may in the future enter into Contracts for the provision of additional goods or services at or otherwise in connection with the operation, use or management of the Mortgaged Property.  Until Lender gives notice to Borrower of Lender's exercise of its rights under this Instrument, Borrower shall have all rights, power and authority granted to Borrower under any Contract (except as otherwise limited by this subsection or any other provision of this Instrument), including the right, power and authority to modify the terms of any Contract, or extend or terminate any Contract, with the exception of any Operating Lease.  Upon the occurrence of an Event of Default and at the option of Lender, the permission given to Borrower pursuant to the preceding sentence to exercise all rights, power and authority under Contracts shall terminate.  Upon Lender's delivery of notice to Borrower of an Event of Default, Lender shall immediately have all rights, powers and authority granted to Borrower under any Contract, including the right, power and authority to modify the terms of, extend or terminate any such Contract.  Borrower hereby represents and warrants and agrees with Lender that:  (1) the Contracts are assignable and no previous assignment of Borrower's interest in the Contracts has been made; (2) the Contracts are in full force and effect in accordance with their respective terms and there are no defaults thereunder; (3) Borrower shall fully perform all of its obligations under the Contracts, and Borrower agrees not to amend, modify, assign, sell, pledge, transfer, mortgage or otherwise encumber its interests in any

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 8

---

of the Contracts so long as this Instrument is in effect, or consent to any transfer, assignment or other disposition thereof without the written approval of Lender; and (4) each Contract entered into by Borrower subsequent to the date hereof, the average annual consideration of which, directly or indirectly, is at least $20,000, shall provide:  (i) that it shall be terminable for cause; and (ii) that it shall be terminable, at Lender's option, upon the occurrence of an Event of Default.”

 

19.           Section 18(b) of the Instrument is hereby amended to add the following sentence at the end thereof:

 

“Prohibited Activities and Conditions also shall not include the safe and lawful use and storage of medical products and devices customarily used in the operation of a Seniors Housing Facility.”

 

20.           Section 19(c) is hereby amended to provide as follows:

 

“Borrower shall maintain or cause any Operator to maintain at all times commercial professional liability and general liability insurance, workers' compensation insurance and such other insurance as Lender may require from time to time.”

21.           Section 21(a) of the Instrument is hereby amended to add the following Sections (8) and (9) at the end thereof:

“(8)           a Transfer or change in the holder of the Licenses authorizing the Mortgaged Property to operate as a Seniors Housing Facility; and

 

(9)           a Transfer of the Borrower’s or any Operator’s respective interest(s) in any Operating Lease.”

 

22.           Section 22 of the Instrument is hereby amended to add the following as Sections (g), (h), (i) and (j):

 

“(g)           any failure by Borrower, Operator or any manager (as applicable) to comply with the use and licensing requirements set forth in Sections 10 and 11;

 

(h)           any loss by Borrower, Operator or any manager (as applicable) of any License or other legal authority necessary to operate the Mortgaged Property as a Seniors Housing Facility, or any failure by Borrower, Operator or any manager (as applicable) to comply strictly with any consent order or decree or to correct, within the time deadlines set by any federal, state or local licensing agency, any deficiency where such failure results, or under applicable laws and regulations is reasonably likely to result, in an action by such agency with respect to the Mortgaged Property that may have a material adverse effect on the income and operations of the Mortgaged Property or Borrower’s interest in the Mortgaged Property, including, without limitation, a termination, revocation or suspension of

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 9

---

any applicable Licenses necessary for the operation of the Mortgaged Property as a Seniors Housing Facility;

 

(i)           if, without the consent of Lender, Borrower, Operator or any manager (as applicable):

 

(i)

ceases to operate the Mortgaged Property as a Seniors Housing Facility;

 

(ii)

ceases to provide such kitchens, separate bathrooms, and areas for eating, sitting and sleeping in each independent living or assisted living unit or at a minimum, central bathing facilities for Alzheimer’s/dementia care, as are provided as of the date of this Instrument;

 

(iii)

ceases to provide other facilities and services normally associated with independent living or assisted living units, including, without limitation, (A) central dining services providing up to three meals per day, (B) periodic housekeeping, (C) laundry services, (D) customary transportation services, and (E) social activities;

 

(iv)

provides or contracts for skilled nursing care for any of the units;

 

(v)

leases or holds available for lease to commercial tenants non-residential space (i.e., space other than the units, dining areas, activity rooms, lobby, parlors, kitchen, mailroom, marketing/management offices) exceeding ten percent (10%) of the net rental area; or,

 

(vi)

takes any action or permits to exist any condition that causes the Mortgaged Property to be no longer classified as housing for older persons pursuant to the Fair Housing Amendments Act of 1988 and the Housing for Older Persons Act of 1995; and

 

(j)           a default under any Operating Lease or under the Subordination, Assignment and Security Agreement executed by Borrower, Operator and Lender in connection with this Loan which continues beyond any applicable cure period, or the termination of any Operating Lease without Lender's prior written approval.”

 

23.           The former Sections 22 (g), (h) and (i) are hereby amended to be Sections 22 (k), (l), and (m), respectively and are amended to read as follows:

 

“(k)           any failure by Borrower to perform any of its obligations under this Instrument (other than those specified in Sections 22(a) through (j)), as and when

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 10

---

required, which continues for a period of 30 days after notice of such failure by Lender to Borrower, but no such notice or grace period shall apply in the case of any such failure which could, in Lender's judgment, absent immediate exercise by Lender of a right or remedy under this Instrument, result in harm to Lender, impairment of the Note or this Instrument or any other security given under any other Loan Document;

 

(l)           any failure by Borrower 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; and

 

(m)           any exercise by the holder of any other 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.”

 

24.             Section 43 of the Instrument is hereby amended to add the following sentences at the end thereof:

 

“In addition to the remedies set forth herein and elsewhere in this Instrument, upon an Event of Default Lender shall be entitled to mandate the use of a lockbox bank account or other depositary account, to be maintained under the control and supervision of Lender,  for all income of the Mortgaged Property, including, but not limited to, Rents, service charges, insurance payments, and Third Party Payments.  Lender may, upon an Event of Default, cause the removal of Borrower, Operator or any manager (as applicable) from any Mortgaged Property operations.  Until such time as Lender has located a replacement Operator, Borrower, the acting Operator or manager shall continue to provide all required services to maintain the Mortgaged Property in full compliance with all licensing and regulatory requirements as a Seniors Housing Facility.  Borrower acknowledges that its failure to perform or to cause the performance of this service shall constitute a form of waste of the Mortgaged Property, causing irreparable harm to Lender and the Mortgaged Property, and shall constitute sufficient cause for the appointment of a receiver.”

 

25.           The following new Section is added to the Instrument after the last numbered Section:

 

“48.           BORROWER’S REPRESENTATIONS AND WARRANTIES.  In addition to any other representations and warranties contained in this Instrument, Borrower hereby represents and warrants to Lender as follows:

 

(a)           The Mortgaged Property is duly licensed as a Private Proprietary Adult Home and is in all respects otherwise legally authorized to operate as a Seniors Housing Facility, under the applicable laws of the Property Jurisdiction;

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 11

---

(b)           Borrower and the Mortgaged Property (and the operation thereof) are in compliance in all material respects with the applicable provisions of all laws, statutes, regulations, ordinances, orders, standards, restrictions and rules of any federal, state or local government or quasi-government body, agency, board or authority having jurisdiction over the operation of the Mortgaged Property, including, without limitation: (i) health care and fire safety codes; (ii) design and construction requirements, (iii) laws regulating the handling and disposal of medical or biological waste; (iv) the applicable provisions of Seniors Housing Facility laws, rules, regulations and published interpretations thereof to which the Borrower or the Mortgaged Property is subject; (v) privacy, security and billing standards such as those set forth in HIPAA; and (vi) all criteria established to classify the Mortgaged Property as housing for older persons under the Fair Housing Amendments Act of 1988 and the Housing for Older Persons Act of 1995;

 

(c)           If required, Borrower has a current provider agreement under any and all applicable federal, state and local laws for reimbursement: (a) to a Seniors Housing Facility; or (b) for other type of care provided at such facility.  There is no decision not to renew any provider agreement related to the Mortgaged Property, nor is there any action pending or threatened to impose alternative, interim or final sanctions with respect to the Mortgaged Property;

 

(d)           Borrower and the Mortgaged Property are not subject to any proceeding, suit or investigation by any federal, state or local government or quasi-government body, agency, board authority or any other administrative or investigative body which may result in the imposition of a fine or an alternative, interim or final sanction, or which would have a material adverse effect on Borrower or the operation of the Mortgaged Property, or which would result in the appointment of a receiver or manager or would result in the revocation, transfer, surrender, suspension or other impairment of the Licenses for the Mortgaged Property to operate as a Seniors Housing Facility;

 

(e)           Upon Lender’s request and subject to Privacy Laws, copies of resident care agreements and resident occupancy agreements shall be provided to Lender.  All resident records at the Mortgaged Property are true and correct in all material respects;

 

(f)           Neither the execution and delivery of the Note, the Instrument or the Loan Documents, Borrower’s performance thereunder, nor the recordation of the Instrument will adversely affect the Licenses necessary for the operation of the Mortgaged Property as a Seniors Housing Facility in the Property Jurisdiction;

 

(g)           Borrower is not a participant in any federal program whereby any federal, state or local governmental or quasi-governmental body, agency, board or other authority may have the right to recover funds by reason of the advance of federal funds.  Borrower has received no notice, and is not aware of any violation of applicable antitrust laws of any federal, state or local, government or quasi-government body, agency, board or other authority; and,

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 12

---

(h)           Except as otherwise specifically disclosed to the Lender in writing, in the event any existing Operating Lease or management agreement is terminated or Lender acquires the Mortgaged Property through foreclosure or otherwise, neither Borrower, Lender, any subsequent Operator or manager, nor any subsequent purchaser (through foreclosure or otherwise) must obtain a certificate of need from any applicable state health care regulatory authority or agency (other than giving such notice required under the applicable state law or regulation) prior to applying for any applicable License necessary for the operation of the Mortgaged Property as a Seniors Housing Facility, provided that no service or unit complement is changed.”

 

26.           All capitalized terms used in this Exhibit not specifically defined herein shall have the meanings set forth in the text of the Instrument that precedes this Exhibit.

 

[INITIALS APPEAR ON FOLLOWING PAGE]

 

Senior Housing Modifications to Instrument Form 4075

Page B-1 - 13

---

 

 

BORROWER’S INITIALS: __/s/ EM_____

 

LENDER’S INITIALS: ___/s/ BK______

Senior Housing Modifications to Instrument Form 4075

Page ▇-▇ - ▇▇

---

▇▇▇▇▇▇▇ ▇-▇

 

 

MODIFICATIONS TO INSTRUMENT

 

(Cross-Default and Cross-Collateralization)

 

 

The following modifications are made to the text of the Instrument that precedes this Exhibit:

 

1.           The following new Sections are added to the Instrument after the last numbered Section:

 

“49.                      CROSS-DEFAULT AND CROSS COLLATERALIZATION.

 

(a)  The Borrower and the affiliates of Borrower acknowledging and agreeing to the terms of this Exhibit B-2, and identified on Exhibit C to this Instrument (collectively, with the Borrower, the “Borrowers”), each own their respective multifamily property described on Exhibit C to this Instrument.  All of the properties described on Exhibit C, which includes the Mortgaged Property, are referred to herein individually as a “Borrower’s Project” and collectively as the “Borrowers’ Projects.”  Contemporaneous with the closing and funding of the loan to the Borrower evidenced by the Note, the Lender has extended additional loans to the other Borrowers, each loan being secured by a Multifamily Mortgage, Assignment of Rents and Security Instrument (a “Security Instrument”) against each of the Borrowers’ Projects, respectively, each such Security Instrument containing cross-collateralization and cross-default provisions in form and substance identical to this Exhibit B-2.

 

(b)           The Borrowers acknowledge that the Lender is unwilling to extend the loan evidenced by the Note to the Borrower unless the Borrowers agree that all of the Borrowers’ Projects will be treated as a single project through the imposition of cross-collateralization, cross-default and release provisions.

 

(c)           The Borrowers hereby respectively agree and consent that as additional security to the Lender, each of the Borrowers’ Projects shall be subject to the lien of the Lender’s Security Instrument for each of the Borrowers’ Projects, and that each of the respective Borrowers’ Projects shall collateralize the other Borrowers’ Projects as follows: all Mortgaged Property (as defined in the respective Security Instrument) for each of the Borrowers’ Projects shall be considered part of the “Mortgaged Property” under this Instrument, and shall be collateral under this Instrument and the Loan Documents.

 

(d)           The Borrowers hereby agree and consent that if an Event of Default occurs under the Security Instrument securing one of the Borrowers’ Projects, then an Event of Default shall exist under all of the Security Instruments with respect to the other

 

Modifications to Instrument

Cross Default & Cross Collateralization Form 4068

Page B-2 - 1

---

Borrowers’ Projects.  No notice shall be required to be given to the Borrowers in connection with such Event of Default.  In the event of an Event of Default under the Security Instrument with respect to any one of the Borrowers’ Projects, the Lender shall have the right, in its sole and absolute discretion, to exercise and perfect any and all rights in and under the Loan Documents with regard to any or all of the other Borrowers’ Projects, including, but not limited to, an acceleration of one or all of the Notes and the sale of one or all of the Borrowers’ Projects in accordance with the terms of the respective Security Instruments.  No notice, except as may be required by the respective Security Instruments, shall be required to be given to the Borrowers in connection with the Lender’s exercise of any and all of its rights after an Event of Default has occurred.

 

(e)           The Borrowers may request that Lender make a determination whether any of the Borrowers’ Projects may be released from the cross-default and cross-collateral provisions of this Section if (i) one of the Borrowers proposes to pay off its respective loan held by Lender and secured by the Borrowers’ Projects, or (ii) one of the Borrowers proposes to sell its respective Borrower’s Project and have such Borrower’s loan on that project assumed by a buyer acceptable to Lender.  Upon such request from the Borrowers, Lender shall consent to the release of the respective Borrower’s Project from the cross-default and cross-collateral provisions of this Section, provided:

 

(1)           The remaining loans to the Borrowers secured by the remaining Borrowers’ Projects that are not requested to be released have, in the aggregate, a minimum overall 1.45 debt service coverage, based on the remaining respective Borrowers’ Projects’ collective Net Operating Income for the 12 months of operation immediately prior to the Borrowers’ request for such release; and

 

(2)           If one of the Borrowers’ loans is to be assumed by a buyer acceptable to and approved by Lender, the assumed loan must also have a minimum 1.45 debt service coverage, based on that project’s Net Operating Income for the 12 months of operation immediately prior to the Borrowers’ request for such release.

 

For purposes of (1) and (2) of this paragraph (e), “Net Operating Income” is defined as:

 

(i)           the lesser of the actual rents collected for the 12 month period (net of any concession) or 90% of the gross potential rental income for the 12 month period; plus

 

(ii)           the actual laundry income (coin operated machines), cable and alarm fees, application fees, level of care (ancillary services) charges, late fees and forfeited deposits for the 12 month period; less

 

(iii)           the greater of the actual operating expenses for the 12 month period (including the required Replacement Reserves funding

 

Modifications to Instrument

Cross Default & Cross Collateralization Form 4068

Page B-2 - 2

---

for the period) or the operating expenses used by Lender in its final underwriting (including Replacement Reserves), increased at the rate of 3% per annum.

 

(f)           Notwithstanding any provision of this Section to the contrary, the Borrowers shall not be permitted to request a release of any of the Borrowers’ Projects from the cross-default and cross-collateral provisions of this Section if, at the time of such request, a default or Event of Default exists under any of the loans held by Lender on any of the Borrowers’ Projects.  No release of any of the Borrowers’ Projects from the cross-default and cross-collateral provisions of this Section shall be permitted by Lender unless the Borrowers have paid all costs and expenses of Lender incurred in connection with its processing of the requested release, including, without limitation, all title endorsement premiums, recording fees, inspection fees, and attorney fees.

 

50.           EXHIBIT C.  Exhibit C is attached to this Instrument.”

 

[INITIALS APPEAR ON FOLLOWING PAGE]

 

Modifications to Instrument

Cross Default & Cross Collateralization Form 4068

Page B-2 - 3

---

 

 

BORROWER’S INITIALS: __/s/ EM_____

 

LENDER’S INITIALS: ____/s/ BK______

Modifications to Instrument

Cross Default & Cross Collateralization Form 4068

Page B-2 - 4

---

ACKNOWLEDGED AND AGREED:

BORROWERS:

 

MERIWEG-FAIRPORT, LLC, a Delaware limited liability company

By:          Emeritus Corporation,

a Washington corporation

By:__/s/ ▇▇▇▇ Mendelsohn________

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Director of Real Estate

Business Legal Affairs

MERIWEG-FAYETTEVILLE, LLC, a Delaware limited liability company

By:          Emeritus Corporation,

a Washington corporation

By:__s/ ▇▇▇▇ Mendelsohn________

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Director of Real Estate

Business Legal Affairs

MERIWEG-▇▇▇▇▇▇, LLC, a Delaware limited liability company

By:          Emeritus Corporation,

a Washington corporation

By:____s/ ▇▇▇▇ Mendelsohn______

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Director of Real Estate

Business Legal Affairs

Modifications to Instrument

Cross Default & Cross Collateralization Form 4068

Page B-2 - 5

---

MERIWEG-LIVERPOOL, LLC, a Delaware limited liability company

By:          Emeritus Corporation,

a Washington corporation

By:___s/ ▇▇▇▇ Mendelsohn______

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Director of Real Estate

Business Legal Affairs

MERIWEG-ROCHESTER, LLC, a Delaware limited liability company

By:          Emeritus Corporation,

a Washington corporation

By:__s/ ▇▇▇▇ Mendelsohn____

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Director of Real Estate

Business Legal Affairs

MERIWEG-SYRACUSE, LLC, a Delaware limited liability company

By:          Emeritus Corporation,

a Washington corporation

By:___s/ ▇▇▇▇ Mendelsohn_______

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Director of Real Estate

Business Legal Affairs

Modifications to Instrument

Cross Default & Cross Collateralization Form 4068

Page ▇-▇ - ▇

---

▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, LLC, a Delaware limited liability company

By:          Emeritus Corporation,

a Washington corporation

By:__s/ ▇▇▇▇ Mendelsohn_____

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Director of Real Estate

Business Legal Affairs

MERIWEG-WILLIAMSVILLE BPM, LLC, a Delaware limited liability company

By:          Emeritus Corporation,

a Washington corporation

By:___s/ ▇▇▇▇ Mendelsohn____

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Director of Real Estate

Business Legal Affairs

MERIWEG-▇▇▇▇▇▇, LLC, a Delaware limited liability company

By:          Emeritus Corporation,

a Washington corporation

By:___s/ ▇▇▇▇ Mendelsohn___

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

Director of Real Estate

Business Legal Affairs

 

Modifications to Instrument

Cross Default & Cross Collateralization Form 4068

Page ▇-▇ - ▇

---

▇▇▇▇▇▇▇ ▇-▇

 

 

MODIFICATIONS TO INSTRUMENT

 

(Borrower Requested Modifications)

 

The following modifications are made to the text of the Instrument that precedes this Exhibit:

1.           Section 1(v), as amended pursuant to Exhibit B-1, is hereby further amended by adding the following sentence to the end thereof:

“Personalty shall not include any computer software or hardware owned by the Operator that is not specifically and exclusively used for the operation of the Improvements.”

2.           The first sentence of Section 4(f) is amended by adding the clause “other than for use as a hair salon or physical therapy office” following the words “non-residential use”.

3.           Section 7 is amended to add the following paragraph as Section 7(f):

 

“(f)           Notwithstanding the foregoing, Borrower may, in lieu of making Imposition Deposits on a monthly basis as provided above, deposit with Lender on the day that the initial monthly installment of principal or interest, or both, is due under the Note (the “Initial Note Payment Date”) an amount equal to the estimated amount of Imposition Deposits due in the twelve month period following the Initial Note Payment Date.  If Borrower so elects, then Borrower shall pay the Impositions directly to the appropriate public office or insurance company, as applicable, and shall provide to Lender, at least fifteen (15) days prior to the last date on which such payment may be made without any penalty or interest charge being added, evidence of such payment.  Lender shall continue to hold the Imposition Deposits.  Not fewer than ninety (90) days prior to each anniversary of the Initial Note Payment Date during the term of the Note, Lender shall notify Borrower of any additional amounts Borrower must deposit so that the amount held by Lender as Imposition Deposits will cover the reasonably estimated cost of the Impositions due in the next twelve month period following the Initial Note Payment Date anniversary.  During the last twelve month period of the term, Borrower may withdraw funds each month to pay the Impositions.  Should any Imposition Deposits remain held by Lender at the end of the term of the Note, Lender shall immediately release such funds to Borrower.  Provided, however, the foregoing option of Borrower to make annual

Modifications to Instrument

Borrower Requested Modifications

Page B-3 - 1

---

Imposition Deposits rather than making Imposition Deposits on a monthly basis may be revoked by Lender, in Lender’s sole but reasonable discretion, at any time upon notice to Borrower.”

4.           In Sub-Sections 14(b)(1) and 14(b)(3), the words, “30 days”, shall be replaced with the words, “45 days”.

5.           The second sentence of Section 18(d) is amended by inserting the word “reasonable” prior to the words “out-of-pocket costs”.

6.           The first sentence of Section 18(g) is amended by inserting the word “reasonable” prior to the word “costs”.

7.           The second sentence of Section 18(h) is amended by inserting the word “reasonable” prior to the word “cost”.

8.           The third sentence of Section 18(g) is amended by deleting “have no obligation to” and adding the word “promptly”.  The fourth sentence of Section 18(g) is amended by adding the following provisions to the end thereof:

“;provided, however, so long as no Event of Default exists under the Loan Documents, Lender's right to make such information available to any party other than third party consultants or professionals engaged by Lender, shall be subject to Borrower’s prior written approval, which approval may be withheld by Borrower in its sole discretion.”

9.           Section 18(m) is amended by inserting the words “or members” following the words “general partners”.

10.           Section 18(n)(2) is amended by inserting the word “reasonable” prior to the word “expenses”.

11.           The first clause of Section 18(n)(3) is amended by inserting the word “reasonable” prior to the word “expenses”.

12.           The final sentence of Section 18(o) is amended by inserting the word “reasonable” prior to the word “costs” in each instance that it appears and inserting the word “reasonable” prior to the word “fees”.

13.           The first sentence of Section 20(b) is amended by inserting the word “reasonable” prior to the word “expenses”.

14.           Section 10 of Exhibit B-1, which amends Section 4(e) of the Instrument, is hereby

Modifications to Instrument

Borrower Requested Modifications

Page B-3 - 2

---

deleted.  Section 4(e) is amended by adding the following sentence to the end thereof:

“Notwithstanding the foregoing, Leases also may be on a month-to-month basis.”

All capitalized terms used in this Exhibit not specifically defined herein shall have the meanings set forth in the text of the Instrument that precedes this Exhibit.

[INITIALS APPEAR ON FOLLOWING PAGE]

Modifications to Instrument

Borrower Requested Modifications

Page B-3 - 3

---

BORROWER’S INITIALS: __/s/ EM__

 

LENDER’S INITIALS: ____/s/ BK___

Modifications to Instrument

Borrower Requested Modifications

Page B-3 - 4

---

 

EXHIBIT C

BORROWERS’ PROJECTS

Property                                                                           Owner

1.	Colonie Manor                                                           Meriweg-Latham, LLC

Latham, New York

2.	West Side Manor - Rochester                               Meriweg-Rochester, LLC

Rochester, New York

3.	Bellevue Manor                                                        Meriweg-Syracuse, LLC

Syracuse, New York

4.	▇▇▇▇▇▇▇ Park Manor                                                 Meriweg-Williamsville BPM, LLC

Buffalo, New York

5.	Woodland Manor                                                    Meriweg-Vestal, LLC

Vestal, New York

6.	East Side Manor                                                       Meriweg-Fayetteville, LLC

Fayetteville, New York

7.	West Side Manor - Liverpool                                 Meriweg-Liverpool, LLC

Liverpool, New York

8.	Perinton Park Manor                                                Meriweg-Fairport, LLC

Fairport, New York

9.	▇▇▇▇▇▇▇ Manor                                                         Meriweg-Williamsville BM, LLC

Buffalo, New York

▇▇▇▇▇▇ ▇▇▇ Multifamily Security Instrument - Form 4006

Page C -1

---

SCHEDULE A-1

 

Schedule of Mortgages

 

1.	Mortgage made by ▇.▇. ▇▇▇▇▇▇ and Sons Development Corp. to Columbia Banking Federal Savings and Loan Association securing the principal sum of $2,000,000.00 dated January 18, 1983 and recorded January 19, 1983 in Erie County Clerk's Office in Liber 8598 of Mortgages at page 375.

2.	Mortgage made by ▇.▇. ▇▇▇▇▇▇ and Sons Development Corp. to Columbia Banking Federal Savings and Loan Association securing the principal sum of $150,000.00 dated October 20, 1983 and recorded October 27, 1983 in Erie County Clerk's Office in Liber 8744 of Mortgages at page 358.

Mortgages at 1 and 2 above being consolidated to constitute a single lien of $2,150,000.00 and interest by instrument dated October 20, 1983 and recorded October 27, 1983 in Erie County Clerk's Office in Liber 9275 of Mortgages at page 262.

3.	Mortgage made by ▇▇▇▇▇▇▇ Manor Home for Adults to Columbia Banking Federal Savings and Loan Association securing the principal sum of $380,366.24 dated April 25, 1988 and recorded April 26, 1988 in Erie County Clerk's Office in Liber 9989 of Mortgages at page 644.

The above mortgages at 1, 2 and 3 being consolidated to form a single lien securing the principal sum of $2,440,000.00 by instrument dated April 25, 1988 and recorded April 26, 1988 in Erie County Clerk's Office in Liber 9853 of Deeds at page 265.

The above mortgages being assigned to National Home Life Assurance Company, People's Security Life Insurance Company and Commonwealth Life Insurance Company by assignment of mortgage dated January 9, 1990 and recorded January 22, 1990 in Erie County Clerk's Office in Liber 10601 of Mortgages at page 276.

4.	Mortgage made by ▇▇▇▇▇▇▇ Manor Home for Adults to Columbia Banking Federal Savings and Loan Association securing the principal sum of $250,000.00 dated August 3, 1989 and recorded August 10, 1989 in Erie County Clerk's Office in Liber 10430 of Mortgages at page 639.

The above mortgage at 4 being assigned to National Home Life Assurance Company, People's Security Life Insurance Company and Commonwealth Life Insurance Company by assignment of mortgage dated January 9, 1990 recorded January 22, 1990 in Erie County Clerk's Office in Liber 10601 of Mortgages at page 278.

5.	Mortgage made by ▇▇▇▇▇▇ Manor Inc. to Syracuse Savings Bank securing the principal sum of $950,000.00 dated September 18, 1973 and recorded September 19, 1973 in Onondaga County Clerk's Office in Liber 2508 of Mortgages at page 599, which

▇▇▇▇▇▇ ▇▇▇ Multifamily Security Instrument - Form 4006

Page A - 1

---

mortgage was assigned to Norstar Bank by assignment recorded November 12, 1986 in Onondaga County Clerk's Office in Liber 4230 of Mortgages at page 158.

6.	Mortgage made by ▇▇▇▇▇▇ Manor Inc. to Norstar Bank securing the principal sum of $248,288.58 dated November 6, 1986 and recorded November 12, 1986 in Onondaga County Clerk's Office in Liber 4230 of Mortgages at page 159.

The above mortgages at 5 and 6 being consolidated to form a single lien securing the principal sum of $950,000.00 by instrument recorded November 12, 1986 in Onondaga County Clerk's Office in Liber 4230 of Mortgages at page 159.

The above mortgages at 5 and 6 being assigned to National Home Life Assurance Company, People's Security Life Insurance Company and Commonwealth Life Insurance Company by assignment of mortgage recorded January 22, 1990 in Onondaga County Clerk's Office in Liber 5419 of Assignment of Mortgages at page 96.

7.

Mortgage made by ▇.▇. ▇▇▇▇▇▇ and Sons Development Corp. to Lincoln First Bank of Rochester securing the principal sum of $1,100,000.00 dated October 12, 1976 and recorded October 13, 1976 in Onondaga County Clerk's Office in Liber 2591 of Mortgages at page 539, which mortgage was assigned to Columbia Banking Federal Savings and Loan Association by assignment recorded March 31, 1977 in Onondaga County Clerk's Office in Liber 2604 of Mortgages at page 781, and which mortgage was further assigned to National Home Life Assurance Company, People's Security Life Insurance Company and Commonwealth Life Insurance Company by assignment of mortgage recorded January 22, 1990 in Onondaga County Clerk's Office in Liber 5419 of Mortgages at page 90.

8.	Mortgage made by Manor Care Inc. to Columbia Banking Federal Savings and Loan Association securing the principal sum of $2,500,000.00 dated December 12, 1984 and recorded December 13, 1984 in Onondaga County Clerk's Office in Liber 3643 of Mortgages at page 172.

9.	Mortgage made by Manor Care Inc. to Columbia Banking Federal Savings and Loan Association securing the principal sum of $50,000.00 dated September 12, 1985 and recorded September 16, 1985 in Onondaga County Clerk's Office in Liber 3835 of Mortgages at page 150.

The above mortgages at 8 and 9 being consolidated to form a single lien securing $2,550,000.00 by instrument recorded September 16, 1985 in Onondaga County Clerk's Office in Liber 3835 of Mortgages at page 166.

The above mortgages at 8 and 9 being assigned to National Home Life Assurance Company, People's Security Life Insurance Company and Commonwealth Life Insurance Company by assignment of mortgage recorded January 22, 1990 in Onondaga County Clerk's Office in Liber 5419 of Assignment of Mortgages at page 93.

▇▇▇▇▇▇ Mae Multifamily Security Instrument - Form 4006

Page A - 2

---

10.	Mortgage made by ▇▇▇▇▇▇ Manor Inc. to Syracuse Savings Bank securing the principal sum of $750,000.00 dated November 4, 1971 and recorded November 8, 1971 in Monroe County Clerk's Office in Liber 3405 of Mortgages at page 140.

11.	Mortgage made by ▇▇▇▇▇▇ Manor Inc. to Syracuse Savings Bank securing the principal sum of $50,000.00 dated June 1, 1972 and recorded June 5, 1972 in Monroe County Clerk's Office in Liber 3484 of Mortgages at page 113.

The above mortgage at 10 and 11 being consolidated and modified so as to constitute a single lien securing $800,000.00 by instrument recorded June 5, 1972 in Monroe County Clerk's Office in Liber 3484 of Mortgages at page 117.

The above mortgages at 10 and 11 being assigned to Norstar Bank by assignment of mortgage recorded November 13, 1986 in Monroe County Clerk's Office in Liber 583 of Assignment of Mortgages at page 115.

12.	Mortgage made by ▇▇▇▇▇▇ Manor Inc. to Norstar Bank securing the principal sum of $543,114.68 dated November 6, 1986 and recorded November 13, 1986 in Monroe County Clerk's Office in Liber 7793 of Mortgages at page 226.

The above mortgages at 10, 11, and 12 being consolidated and modified to constitute a single lien securing $950,000.00 by instrument recorded November 13, 1986 in Monroe County Clerk's Office in Liber 7793 of Mortgages at page 226.

The above mortgages at 10, 11 and 12 being assigned to National Home Life Assurance Company, People's Security Life Insurance Company and Commonwealth Life Insurance Company by assignment of mortgage recorded January 19, 1990 in Monroe County Clerk's Office in Liber 787 of Assignment of Mortgages at page 328.

13.

Mortgage made by Woodland Village on the Green, Ltd. to Delaware County Federal Savings and Loan Association securing the principal sum of $1,900,000.00 dated April 20, 1972 and recorded April 20, 1972 in ▇▇▇▇▇▇ County Clerk's Office in Liber 871 of Mortgages at page 486, which mortgage was assigned to Security Norstar Bank by assignment of mortgage recorded December 31, 1985 in ▇▇▇▇▇▇ County Clerk's Office in Liber 1386 of Mortgages at page 295.

14.	Mortgage made by Manor Care Inc. to Security Norstar Bank securing the principal sum of $601,078.96 dated September 30, 1985 and recorded December 31, 1985 in ▇▇▇▇▇▇ County Clerk's Office in Liber 1386 of Mortgages at page 13.

The above mortgages at 13 and 14 being consolidated as to form a single lien securing the principal sum of $2,000,000.00 by instrument recorded December 31, 1985 in ▇▇▇▇▇▇ County Clerk's Office in Liber 1386 of Mortgages at page 13 and further modified by a mortgage spreader agreement recorded December 31, 1985 in ▇▇▇▇▇▇ County Clerk's Office in Liber 1386 of Mortgages at page 20.

▇▇▇▇▇▇ Mae Multifamily Security Instrument - Form 4006

Page A - 3

---

The above mortgages at 13 and 14 being assigned to National Home Life Assurance Company, People's Security Life Insurance Company and Commonwealth Life Insurance Company by assignment recorded January 21, 1990 in ▇▇▇▇▇▇ County Clerk's Office in Liber 2070 of Mortgages at page 135.

15.

Mortgage made by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to National Home Life Assurance Company, People's Security Life Insurance Company and Commonwealth Life Insurance Company securing the principal sum of $4,612,645 dated January 18, 1990 and recorded January 22, 1990 in Erie County Clerk's Office in Liber 10131 of Deeds at page 301, on January 22, 1990 and re-recorded in the Erie County Clerk’s Office on November 20, 1996 in Liber 12727 of Mortgages at page 4431, recorded in the Onondaga County Clerk’s Office on January 22, 1990 in Liber 5419 of Mortgages, at page 99, in the Monroe County Clerk’s Office on January 19, 1990 in Liber 9939 of Mortgages, at page 1 and in the ▇▇▇▇▇▇ County Clerk’s Office on January 22, 1990 in Liber 2070 of Mortgages, at page 26, which mortgage by its terms consolidated the lien of the above referenced mortgages at numbers 1 through 15 so as to constitute a single lien securing the principal sum of $14,275,000.00.

The above mortgages at 1 through 15, as consolidated and modified were assigned to GMAC Commercial Mortgage Corporation by Assignment of Mortgage dated November 6, 1996 and recorded in the Erie County Clerk’s Office on November 20, 1996 in Liber 12727 of Mortgages at page 4844, recorded in the Onondaga County Clerk’s Office on November 19, 1996 in Liber 8788 of Mortgages, at pages 235, 237 and 239, in the ▇▇▇▇▇▇ County Clerk’s Office on November 21, 1996 in Liber 2429 of Mortgages, at page 1058, in the Monroe County Clerk’s Office on November 18, 1996 in Liber 1151 of Assignment of Mortgages at page 327.

The above mortgages at 1 through 15, as consolidated and modified were spread, split and modified by Mortgage Modification, Spreader and Splitting Agreement between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and GMAC Commercial Mortgage Corporation dated November 14, 1996 and recorded in the Onondaga County Clerk’s Office on November 19, 1996 in Liber 8788 of Mortgages, at page 248 to constitute a single lien of $5,000,000.00 on premises located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ of Salina; ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ of Manlius and ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ all in County of Onondaga, New York.

16.

Increased, Consolidated and Restated Mortgage and Security Agreement dated November 14, 1996 by and between Wegman/Manors Number Two, LLC and GMAC Commercial Mortgage Corporation securing the principal sum of $5,470,000.00 and recorded in the Onondaga County Clerk’s Office on November 19, 1996 in Liber 8789 of Mortgages, page 1, which mortgage by its terms is consolidated with the lien of the mortgages at Numbers 1 through 15 so as to constitute a single lien securing the principal sum of $10,470,000.00 and is a lien on premises located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ of Salina; ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ of Manlius and ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ all in County of Onondaga, State of New York.

▇▇▇▇▇▇ ▇▇▇ Multifamily Security Instrument - Form 4006

Page A - 4

---

The above mortgages were assigned by GMAC Commercial Mortgage Corporation to Red Mountain Funding, LLC by Assignment of Mortgage and Secured Indebtedness recorded in the Onondaga County Clerk’s Office on August 10, 1997 in Liber 9109 of Mortgages at Page 225.

The above mortgages were further assigned to LaSalle National Bank, as Trustee for RMF Commercial Mortgage Pass-Through Certificates, Series 1997-1, by Assignment of Mortgage and Secured Indebtedness recorded in the Onondaga County Clerk’s Office on August 18, 1997 in Liber 9124 of Mortgages at page 67.

 

▇▇▇▇▇▇ Mae Multifamily Security Instrument - Form 4006

Page A - 5

---