EX 10.63.2
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▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ County, Florida 7G Q
State of Florida Intangible Taxes in the amount of
$52,000 and State of Florida Documentary Stamps in the
amount of $9 l,000 applicable to this transaction have
been paid and affixed to that certain mortgage of even
date herewith between the mortgagor and the mortgagee
and recorded in Seminole County, Florida.
MORTGAGE DEED AND SECURITY AGREEMENT
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(This Mortgage Deed and Security Agreement also serves
as a fixture filing)
KNOW ALL MEN BY THESE PRESENTS that EMERITUS
PROPERTIES V, INC., a Washington corporation having an
address at c/o Emeritus Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
hereinafter called "Mortgagor" or "Borrower") for
consideration paid, hereby grants, conveys, transfers,
assigns and sets-over unto FLEET NATIONAL BANK, a
national banking association with an office at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ 02 I 09 hereinafter
called "Lender", the Mortgaged Property (as defined
below) to secure the Obligations (as defined below).
The term Borrower shall include wherever the
context permits its successors and assigns. The term
Lender shall include, wherever the context permits, its
successors and assigns as the holder for the time being
of this Mortgage Deed and Security Agreement and the
Note and other Obligations hereby secured.
This Mortgage Deed and Security Agreement is granted
pursuant to the terms, provisions and conditions of
that certain Term Loan Agreement (the "Loan Agreement")
dated as of even date herewith between Borrower and
Lender. Capitalized terms used herein which are not
otherwise specifically defined shall have the same
meaning herein as in the Loan Agreement.
The term "Mortgaged Property" shall mean and include
all of the following described property:
A. REAL ESTATE. The parcels of land more particularly
described on Exhibit A which is annexed hereto and made
a part hereof ("Land") together with the improvements
and other structures now or hereafter situated thereon
(such improvements being sometimes called the
"Improvements") together with all rights, privileges,
tenements, hereditaments, appurtenances, easements,
including, but not limited to, rights and easements for
access and egress and utility connections, and other
rights now or hereafter appurtenant thereto ("Real
Estate");
B. FIXTURES. All real estate fixtures or items which by
agreement of the parties may be deemed to be such
fixtures, now or hereafter owned by Borrower, or in
which Borrower has or hereafter obtains an interest,
and now or hereafter located in or upon the Real
Estate, or now or hereafter attached to, installed in,
or used in connection with any of the Real Estate,
including, but not limited to, any and all portable or
sectional buildings, bathroom, plumbing, heating,
lighting, refrigerating, ventilating and air-
conditioning apparatus and equipment, garbage
incinerators and receptacles, elevators and elevator
machinery, boilers, furnaces, stoves, tanks, motors,
sprinkler and fire detection and extinguishing systems,
doorbell and alarm systems, window shades, screens,
awnings, screen doors, storm and other detachable
windows and doors, mantels,
partitions, built-in cases, counters and other fixtures
whether or not included in the foregoing enumeration
("Fixtures");
C. ADDITIONAL APPURTENANCES. All bridges, easements,
rights of way, licenses, privileges, hereditaments,
permits and appurtenances hereafter belonging to or
inuring to the benefit of the Real Estate and all
right, title and interest of Borrower in and to the
land lying within any street or roadway adjoining any
of the Real Estate and all right, title and interest of
Borrower in and to any vacated or hereafter vacated
streets or roads adjoining any of the Real Estate and
any and all reversionary or remainder rights
("Additional Appurtenances");
D. AWARDS. All of the right, title and interest of
Borrower in and to any award or awards heretofore made
or hereafter to be made by any municipal, county, state
or federal authorities to the present or any subsequent
owners of any of the Real Estate or the Land, or the
Improvements, or the Fixtures, or the Additional
Appurtenances, or the Leases or the Personal Property,
including, without limitation, any award or awards, or
settlements or payments, or other compensation
hereafter made resulting from (x) condemnation
proceedings or the taking of the Real Estate, or the
Land, or the Improvements, or the Fixtures, or the
Additional Appurtenances, or the Leases or the Personal
Property, or any part thereof, under the power of
eminent domain, or (y) the alteration of grade or the
location or discontinuance of any street adjoining the
Land or any portion thereof, or (z) any other injury to
or decrease in value of the Mortgaged Property
("Awards");
E. LEASES. All leases now or hereafter entered into
of the Real Estate, or any portion thereof, and all
rents, issues, profits, revenues, earnings and
royalties therefrom, and all right, title and interest
of Borrower thereunder, including, without limitation,
cash, letters of credit, or securities deposited
thereunder to secure performance by the tenants or
occupants of their obligations thereunder, whether such
cash, letters of credit, or securities are to be held
until the expiration of the terms of such leases or
occupancy agreements or applied to one or more of the
installments of rent coming due prior to the expiration
of such terms including, without limitation, the right
to receive and collect the rents thereunder ("Leases");
and
F. PERSONAL PROPERTY. All tangible and intangible
personal property now owned or at any time hereafter
acquired by Borrower of every nature and description,
and whether or not used in any way in connection with
the Real Estate, the Fixtures, the Additional
Appurtenances, or any other portion of the Mortgaged
Property, including, without limitation express or
implied upon the generality of the foregoing, all
Equipment, Goods, Inventory, Fixtures, Accounts,
Instruments, Documents and General Intangibles (as each
such capitalized term is defined in the Uniform
Commercial Code in effect in the state where the Real
Estate is situated) and further including, without any
such limitation, the following whether or not included
in the foregoing: materials; supplies; furnishings;
chattel paper; money; bank accounts; security deposits;
utility deposits; any insurance or tax reserves
deposited with Lender; any cash collateral deposited
with Lender; claims to rebates, refunds or abatements
of real estate taxes or any other taxes; contract
rights; plans and specifications; licenses, permits,
approvals and other rights; the rights of Borrower
under contracts with respect to the Real Estate or any
other portion of the Mortgaged Property, or the
Project; signs, brochures, advertising, the name by
which the Mortgaged Property is known and any variation
of the words thereof, and good will; copyrights,
service marks, and all goodwill associates therewith;
and trademarks; all proceeds paid for any damage or
loss to all or any portion of the Real Estate, the
Fixtures, the Additional Appurtenances, any other
Personal Property or any other portion of the Mortgaged
Property ("Insurance Proceeds"); all Awards; all
Leases; all books and records; and all proceeds,
products, additions, accessions, substitutions and
replacements to any one or more of the foregoing
(collectively, the "Personal Property").
The term "Obligations" shall mean and include:
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A. The payment of the principal sum, interest at
variable rates, charges and indebtedness evidenced by a
promissory note ("Note") dated as of even date
herewith, including any extensions, renewals,
replacements, modifications and amendments thereof, in
the original amount of TWENTY SIX MILLION DOLLARS
($26,000,000) given by Borrower to the order of Lender.
A portion of the principal outstanding under such Note
is anticipated to be payable as a balloon payment upon
maturity;
B. The payment, performance, discharge and
satisfaction of each covenant, warranty,
representation, undertaking and condition to be paid,
performed, satisfied and complied with by Borrower
under and pursuant to this Mortgage or the Loan
Agreement and also by Borrower under and pursuant to
each of the other Loan Documents referred to in, or
executed in connection with, the Loan Agreement;
C. The payment of all costs, expenses, legal fees
and liabilities incurred by Lender in connection with
the enforcement of any of Lender's rights or remedies
under this Mortgage, the other Loan Documents, or any
other instrument, agreement or document which evidences
or secures any other Obligations or collateral
therefor, whether now in effect or hereafter executed;
and
D. The payment, performance, discharge and
satisfaction of all other liabilities and obligations
of Borrower to Lender, whether now existing or
hereafter arising, direct or indirect, absolute or
contingent, under any one or more of the Loan Documents
and any amendment, extension, modification, replacement
or recasting of any one or more of the instruments,
agreements and documents referred to herein or therein
or executed in connection with the transactions
contemplated hereby or thereby.
This instrument is sometimes referred to as "this
Mortgage".
Borrower hereby grants to Lender a continuing
security interest in all of the Mortgaged Property in
which a security interest may be granted under the
Uniform Commercial Code as such is in effect in the
State of Florida including, without limitation, the
Fixtures and the Personal Property, together with all
proceeds and products, whether now or at any time
hereafter acquired and whether or not used in any way
in connection with the development, construction,
marketing or operation of the Real Estate, or in
connection with the Improvements, to secure all
Obligations.
Borrower covenants, warrants, represents and agrees
with Lender, its successors and assigns, that:
1. TITLE. Borrower has good record and marketable
title to the Mortgaged Property and has good right,
full power and lawful authority to grant and convey the
same in the manner aforesaid; and that the Mortgaged
Property is free and clear of all encumbrances and
exceptions, except for the Permitted Title Exceptions,
if any, as set forth on Exhibit B which is annexed
hereto and made a part hereof. Borrower shall make any
further assurances of title that Lender may reasonably
and in good faith require including, without
limitation, such further instruments as may be
requested by Lender to confirm the assignment to Lender
of all Awards.
2. PERFORMANCE OF OBLIGATIONS. Borrower shall pay
the Note and interest thereon as the same shall become
due and payable or within any applicable cured period,
and pay and perform and observe when due or within any
applicable cure period all of the obligations and
conditions set forth in each of the Note, this Mortgage
Deed and Security Agreement, the Assignment of Leases
and Rents, the Loan Agreement, and each of the other
Loan Documents or
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other agreements, if any, executed by Borrower in
connection with the Loan.
3. PROTECTION AND MAINTENANCE. Borrower shall
protect and maintain, or cause to be maintained, in
good, order, repair and tenantable condition at all
times, the buildings and structures now standing or
hereafter erected on the Mortgaged Property, and any
additions and improvements thereto, and all Personal
Property now or hereafter situated therein, and the
utility services, the parking areas and access roads,
and all building fixtures and equipment and articles of
personal property now or hereafter acquired and used in
connection with the operation of the Mortgaged
Property. Borrower shall, subject to the limitations of
applicable law promptly replace any of the aforesaid
which may become lost, destroyed or unsuitable for use
with other property of similar character.
4. INSURANCE COVERAGES. Borrower shall insure the
Mortgaged Property and the operation thereof with such
coverages and in such amounts as are required by the
provisions of the Loan Agreement and shall at all times
keep such insurance in full force and effect and pay
all premiums therefor as and when due. The original or
certified copies of all such policies of insurance (or
certificates or binders thereof issued by the insurer
in form, content and manner of execution reasonably
satisfactory to Lender) shall be delivered to Lender,
and Borrower shall deliver to the Lender a new policy
or certified copy thereof (or such a certificate) as
replacement for an expiring policy (or such a
certificate) required to be deposited hereunder at
least ten ( 10) days before the date of such
expiration. Borrower hereby irrevocably appoints Lender
its true and lawful attorney-in-fact, with full power
of substitution, to assign any such policy (to the
extent assignable) in the event of the foreclosure of
this Mortgage.
5. INSURANCE PROCEEDS. The proceeds of any hazard
insurance shall be applied to or toward the
indebtedness secured hereby or to the repair or
restoration of the Mortgaged Property in accordance
with the terms of the Loan Agreement. Notwithstanding
anything in this Section 5 to the contrary, however, if
the insurer denies liability to Borrower, Borrower
shall not be relieved of any obligation under Section 3
of this Mortgage. If, pursuant to the provisions hereof
and of the Loan Agreement, Lender applies insurance
proceeds to the Loan and does not release the same to
Borrower, the obligation of Borrower to repair, restore
or rebuild shall be limited to taking all actions
reasonably required to make the Mortgaged Property
under applicable Legal Requirements safe and to restore
the undamaged portion to an economically functional
unit to the extent that it is reasonably possible to do
so.
6. EMINENT DOMAIN. The awards of damages on account
of any condemnation for public use of, or injury to,
the Mortgaged Property shall be paid to Lender; such
Awards shall, be applied to or toward the indebtedness
secured hereby or released to Borrower to be applied to
restoration of that part of the Mortgaged Property in
accordance with the terms of the Loan Agreement.. If
Lender applies such Awards to the Loan and does not
release the same to Borrower, the obligation of
Borrower to repair, restore or rebuild shall be limited
to taking all actions reasonably required to make the
Mortgaged Property, or what remains thereof, safe under
applicable Legal Requirements and to restore the
remaining portion to an economically functional unit to
the extent that it is reasonably possible to do so.
7. NO WASTE: COMPLIANCE WITH LAW. Borrower shall not
commit or suffer any strip or waste of the Mortgaged
Property, or any portion thereof, or any violation of
any law, rule, regulation, ordinance, license or
permit, or the requirements of any licensing authority
affecting the Mortgaged Property or any business
conducted thereon, and shall not commit or suffer any
demolition, removal or material alteration of any of
the Mortgaged Property (except for the replacement of
Fixtures and Personal Property in the ordinary course
of business, so long as items of comparable value and
quality are installed free and clear of liens in favor
of any other party),
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without the express prior written consent of Lender in
each instance which consent shall not be unreasonably
withheld or delayed, and shall not violate nor suffer
the violation of the covenants and agreements, if any,
of record against the Mortgaged Property, and in all
respects Borrower shall do all things necessary to
comply with, and keep in full force and effect all
licenses, permits and other governmental authorizations
for the operation of the Mortgaged Property for its
intended purposes, including, without limitation
express or implied, the licenses, permits and
authorizations referenced in the Loan Agreement.
8. ENVIRONMENTAL AND RELATED MATTERS. Indemnification.
Borrower shall at all times comply with all of the
terms, conditions and provisions imposed on the
Indemnitors under the Environmental Indemnity and both
before and after the repayment of the Loan, at
Borrower's sole cost and expense, indemnify, exonerate
and save harmless Lender and each other Indemnified
Party (as defined in the Environmental Indemnity)
against and from all damages, losses, liabilities,
obligations, penalties, claims, litigation, demands,
defenses, judgments, suits, proceedings, costs,
disbursements or expenses of any kind whatsoever,
including, without limitation, reasonable attorneys'
fees and experts' fees and disbursements which may at
time (including, without limitation, before or after
the discharge or foreclosure of this Mortgage) be
imposed upon, incurred by or asserted or awarded
against Lender or any other Indemnified Party and
arising from or out of any of the matters for which
indemnification is provided by Borrower pursuant to the
Environmental Indemnity or on account of any liability
for damage to person or property arising out of any
act, omission, negligence or conduct at or related to
the Mortgaged Property, or arising or claim to have
arisen, out of any act, omission, negligence or conduct
of Borrower, or any contractor, subcontractor, tenant,
occupant or invitee thereof which is in any way related
to the Mortgaged Property during the Borrower's period
of ownership.
9. PAYMENT OF TAXES AND PREVENTION OF LIENS.
Borrower shall pay before delinquent or before any
penalty for nonpayment attaches thereto, all taxes,
assessments and charges of every nature and to whomever
assessed that may now or hereafter be levied or
assessed upon the Mortgaged Property or any part
thereof, or upon the rents, issues, income or profits
thereof or upon the lien or estate hereby created,
whether any or all of said taxes, assessments or
charges be levied directly or indirectly or as excise
taxes or as income taxes. Borrower may apply for tax
abatements and prosecute diligently and in good faith
claims for refund so long as: Borrower complies with
the provisions of Section 10.1.1 of the Loan Agreement.
Borrower shall pay all sums which, if unpaid, may
result in the imposition of a lien on the Mortgaged
Property before such lien may attach (except that real
estate taxes need not be paid prior to the due date
thereof and except to the extent such lien is being
duly contested in accordance with the terms of the Loan
Agreement) or which may result in conferring upon a
tenant of any part or all of the Mortgaged Property a
right to recover such sums as prepaid rent.
10. DUE ON SALE; NO OTHER ENCUMBRANCES; NO TRANSFER
OF OWNERSHIP INTERESTS: FAILURE TO COMPLY WITH
PERMITTED EXCEPTIONS. Except as otherwise specifically
provided for in the Loan Agreement with respect to
Permitted Transactions, or in this Mortgage, it shall
be an Event of Default under the Loan Agreement, a
breach of the conditions of this Mortgage and an event
permitting Lender to accelerate all indebtedness
secured hereby, if, without Lender's prior written
consent in each instance, which consent may be granted,
withheld or conditionally granted in Lender's sole
discretion: (a) there is any sale, conveyance, transfer
or encumbrance of, or lien imposed upon, all or any
portion of the Mortgaged Property; or (b) there is any
transfer or assignment of, or grant of any security
interest in, any of the direct or indirect ownership
interests in Borrower other than in connection with the
Mezzanine Loan; or (c) there is a failure to comply
with the provisions of, or there is a default under,
any of the Permitted Title Exceptions unless cured
within any applicable grace period provided for in the
applicable
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Permitted Title Exception.
11. LENDER'S RIGHTS. If Borrower shall neglect or
refuse: (a) to maintain and keep in good repair the
Mortgaged Property or any part thereof as required by
this Mortgage or the Loan Agreement, or (b) to maintain
and pay the premiums for insurance which may be
required by this Mortgage or the Loan Agreement, or (c)
to pay and discharge all taxes of whatsoever nature,
assessments and charges of every nature and to whomever
assessed, as required by this Mortgage or the Loan
Agreement except to the extent being contested in
accordance with the Loan Agreement, or (d) to pay the
sums required to be paid by this Mortgage or the Loan
Agreement when due or within any applicable cure
period, or (e) to satisfy any other terms or conditions
of this Mortgage, or any instrument secured hereby,
Lender may, at its election in each instance, but
without any obligation whatsoever to do so, upon thirty
(30) days prior written notice (except in the case of
(i) an emergency where there is danger to person or
property, or (ii) required insurance coverage would
lapse, or (iii) an Event of Default exists, in each of
which events no further notice shall be required),
cause such repairs or replacements to be made, obtain
such insurance or pay said taxes, assessments, charges,
and sums, incur and pay reasonable amounts in
protecting its rights hereunder and the security hereby
granted, pay any balance due under any conditional
agreement of sale (or lease) of any property included
as a part of the Mortgaged Property, and pay any
amounts as Lender deems reasonably necessary or
appropriate to satisfy any term or condition of this
Mortgage, which Borrower shall have failed to satisfy
when due or within any applicable cure period, or to
remedy any breach of such term or condition which was
not cured within any applicable cure period and any
amounts or expenses so paid or incurred, together with
interest thereon from the date of payment by Lender at
the Default Rate as provided in the Note or Loan
Agreement shall be immediately due and payable by
Borrower to Lender and until paid shall be secured
hereby equally and ratably, and the same may be
collected as part of said principal debt in any suit
hereon or upon the Note. No payment by Lender shall
relieve Borrower from any default hereunder or impair
any right or remedy of Lender consequent thereon.
12. TAX RESERVE AND INSURANCE RESERVE. Upon the
occurrence of an Event of Default, Borrower shall, upon
the request of Lender, from time to time, pay to Lender
on dates upon which installments of interest are
payable under the Note or the Loan Agreement, such
amount as Lender from time to time estimates as
necessary to create and maintain a reserve fund from
which to pay before the same become due: (a) all taxes,
assessments, liens and charges on or against the
Mortgaged Property, and (b) all premiums for insurance
policies which are required by this Mortgage. Such
payments, if so requested, shall be invested in a non-
interest bearing account which shall be held by Lender
as Cash Collateral, and so long as no Event of Default
exists hereunder or under any of other Loan Documents,
shall be paid to or for Borrower's benefit as set forth
below. Payments from such reserve fund for said
purposes may be made by Lender at its discretion. In
the event of any Event of Default under the Loan
Agreement or under the terms of this Mortgage, any part
or all of such reserve fund may be applied, at the
option of Lender, to cure any such Event of Default or
to any part of the indebtedness hereby secured.
13. CERTAIN EXPENSES. If any action or proceeding is
commenced, including, without limitation, an action to
foreclose this Mortgage Deed and Security Agreement or
to collect the debt hereby secured, to which action or
proceeding Lender is made a party by reason of the
execution of this Mortgage Deed and Security Agreement,
or by reason of any obligation which it secures, or by
reason of entry or any other action under this Mortgage
Deed and Security Agreement, or if in Lender's judgment
it becomes necessary in connection with legal
proceedings or otherwise to defend or uphold the
mortgage hereby granted or the lien hereby created or
any act taken to defend or uphold the mortgage hereby
granted or the lien hereby created or any act taken
under this Mortgage Deed and Security Agreement, all
sums reasonably paid or incurred by Lender for the
expense of any litigation or otherwise, in connection
with any rights created by this Mortgage
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Deed and Security Agreement or any other Loan Document,
shall be paid by Borrower, or may at the option of
Lender, if not so paid, be added to the debt secured
hereby and shall be secured hereby equally and ratably
and shall bear interest until paid at the Default Rate
set forth in the Note or the Loan Agreement.
14. REGARDING LEASES. Except as otherwise provided
in the Loan Agreement, Borrower shall not enter into
any leases or occupancy agreements with respect to the
Mortgaged Property and shall not modify or amend any
such leases or occupancy agreements without Lender's
prior written consent in each instance. As to each
permitted lease or occupancy agreement, Borrower will
perform every material obligation of the lessor and, to
the extent commercially reasonable, will enforce every
material obligation of the lessee in the leases in
effect with respect to all or any part or all of the
Mortgaged Property and, except as otherwise provided in
the Loan Agreement, Borrower will not: (i) cancel any
such lease, nor terminate or accept a surrender
thereof, or reduce the rent payable thereunder or
modify or amend any such lease; (ii) accept any
prepayment of rent thereunder (except any rent which
may be required to be prepaid by the terms of any such
lease); or (iii) enter into any new leases, without
first obtaining on each occasion the prior written
consent of Lender. If any portion of the Mortgaged
Property are leased or rented for residential purposes,
Borrower shall comply with all legal requirements
pertaining to security deposits, last month's rent, and
interest thereon, and Borrower shall defend, indemnify
and save harmless Lender with respect to all claims
relating thereto. As to all leases and occupancy
agreements, Lender, at its option from time to time,
may require that all security deposits and similar
funds or security provided by a lessee or occupant be
deposited with Lender, or with an escrow agent
satisfactory to Lender, subject to the rights of the
lessee or occupant, but otherwise subject to a security
interest in favor of Lender.
15. DECLARATION OF SUBORDINATION. At the option of
Lender, which may be exercised at any time or from time
to time, by written notice to Borrower and to any
applicable tenant, this Mortgage shall become subject
and subordinate, in whole or in part (but not with
respect to priority of entitlement to insurance
proceeds or condemnation proceeds), to any and all
leases of all or any part of the Mortgaged Property
upon the execution by Lender and recording or filing
thereof, at any time hereafter in the appropriate
official records of the county wherein the Mortgaged
Property is situated of a unilateral declaration to
that effect.
16. FURTHER ASSIGNMENT BY BORROWER. Borrower hereby
further. assigns to Lender as security for the
Obligations the lessor's interests in any or all
leases, now or hereafter outstanding, and to the extent
it may lawfully do so Borrower's interests in all
agreements, contracts, licenses and permits, now or
hereafter outstanding, affecting all or any portion of
the Mortgaged Property. Borrower shall execute,
acknowledge and deliver such further or confirmatory
assignments thereof, by instruments in form reasonably
satisfactory to the Lender, as Lender may reasonably
require. Borrower hereby authorizes Lender in the event
of foreclosure, to sell and assign said interests to
the purchaser at foreclosure, but neither such
assignment nor any such future assignment shall be
construed as binding Lender to any lease, agreement,
contract, license or permit so assigned, or to impose
upon Lender any obligations with respect thereto.
Borrower hereby irrevocably appoints Lender, or any
agent designated by Lender, the true and lawful
attorney-in-fact of Borrower, with full power of
substitution, to execute, acknowledge and deliver any
such assignment on behalf of Borrower which Borrower
fails or refuses to do.
17. UCC FILING. Borrower upon Lender's written
request shall promptly cause this Mortgage Deed and
Security Agreement and any required financing
statements to be recorded
and re-recorded, registered and re-registered, filed
and re-filed at such times and places as may be
required by law or reasonably deemed advisable by
Lender to create, preserve or protect the priority
hereof and of any lien created hereby upon the
Mortgaged Property or any part thereof;
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and Borrower shall from time to time do and cause to be
done all such things as may be reasonably required by
Lender, or required by law, including all things which
may from time to time be necessary under the Uniform
Commercial Code of Florida fully to create, preserve
and protect the priority hereof and of any lien created
hereby upon said property. Borrower hereby irrevocably
appoints Lender, or any agent designated by Lender, the
true and lawful attorney-in- fact of Borrower, with
full power of substitution, to execute, acknowledge and
deliver any such
18. RIGHT TO DEAL WITH SUCCESSOR. Lender may,
without notice to any person, deal with any successor
in interest of Borrower herein regarding this Mortgage
and the debt hereby secured in all respects as it might
deal with Borrower herein, without in any way affecting
the liability hereunder or upon the debt hereby secured
of any predecessor in interest of the person so dealt
with; and no sale of the premises hereby mortgaged, nor
any forbearance on the part of Lender, nor any
extension by Lender of the time for payment of the debt
hereby secured, shall operate to release, discharge,
modify, change or affect the original liability of any
predecessor in interest of the equity owner at the time
of such sale, forbearance or extension.
19. PERSONAL PROPERTY KEPT ON PROPERTY. The Personal
Property will be kept on or at the Property and
Borrower will not remove the Personal Property from the
Property without the prior written consent of Lender,
except such portions or items of Personal Property
which are consumed or worn out in ordinary usage, all
of which shall be promptly replaced by Borrower.
20. BUSINESS IN STATE. Borrower's only place of
business in the state is at the Mortgaged Property.
Borrower will immediately notify Lender in writing of
any change in its principal place of business as set
forth in the beginning of this Mortgage.
21. FINANCING STATEMENTS. At the request of Lender,
Borrower will join Lender in executing one or more
financing statements and renewals and amendments
thereof pursuant to the Uniform Commercial Code of
Florida in form reasonably satisfactory to Lender, and
will pay the cost of filing the same in all public
offices wherever filing is deemed by Lender to be
necessary or desirable.
22. COVENANTS APPLY TO PERSONAL PROPERTY. All
covenants and obligations of Borrower contained herein
relating to the Mortgaged Property shall be deemed to
apply to the Personal Property whether or not expressly
referred to herein.
23. SECURITY AGREEMENT. This Mortgage constitutes a
security agreement as that term is used in the Uniform
Commercial Code of Florida.
24. ACCELERATION OF DEBT. If there is an Event of
Default under the Note or the Loan Agreement or if an
event occurs which pursuant to the Note or the Loan
Agreement entitles Lender to accelerate the Loan, then,
at the option of Lender, the entire indebtedness hereby
secured shall become immediately due and payable
without further notice.
25. ADDITIONAL RIGHTS OF LENDER.
25.1 ENTER AND PERFORM. Borrower authorizes Lender,
in addition to all other rights granted by law or by
this Mortgage, or by any of the other Loan Documents,
whenever and as long as any Event of Default hereunder
or under the Loan Agreement shall exist to enter and
take possession of all or any part of the Mortgaged
Property and to use, lease, operate, manage and control
the same and conduct the business thereof, and perform
Borrower's obligations as lessor under any lease or
Borrower's obligations under any other agreement
affecting all or any part of
8
the Mortgaged Property, and collect the rents, profits
and all receipts of every nature therefrom as Lender
shall deem best.
25.2 REPAIRS AND IMPROVEMENTS. Upon every such
entry, Lender may from time to time at the expense of
Borrower make all such repairs, replacements,
alterations, additions and improvements to the
Mortgaged Property as Lender may deem proper, but in no
event shall Lender be obligated to do so, and may, but
shall not be obligated to, exercise all rights and
powers of Borrower, either in the name of Borrower, or
otherwise as Lender shall determine. Without limitation
express or implied upon the generality of the
foregoing, Lender shall have the right to do all things
necessary or desirable in order to keep in full force
and effect all applicable licenses, permits and
authorizations and any amendments thereto.
25.3 PAY COSTS AND EXPENSES. Upon such entry, Lender
may, at its option, but without any obligation to do
so, do any one or more of the following: pay and incur
all expenses necessary or deemed by it appropriate for
the holding and operating of the Mortgaged Property,
the conduct of any business thereon, the maintenance,
repair, replacement, alteration, addition and
improvement of the Mortgaged Property, including
without limitation payments of taxes, assessments,
insurance, wages of employees connected with the
Mortgaged Property or any business conducted thereon,
charges and reasonable compensation for services of
Lender, its attorneys and accountants and all other
persons engaged or employed in connection with the
Mortgaged Property or of any business conducted thereon
and, in addition, Lender, at its option, may, but shall
not be obligated to, make payments or incur liability
with respect to obligations arising prior to the date
it takes possession.
25.4 ADD TO SECURED INDEBTEDNESS. All obligations so
paid or incurred by Lender shall be reimbursed or paid
for by Borrower upon demand and prior to the repayment
thereof shall be added to the debt secured hereby and
shall bear interest at the Default Rate provided for in
the Note or the Loan Agreement, and shall be secured
hereby equally and ratably. Lender may also reimburse
itself therefor from the income or receipts of the
Mortgaged Property or any business conducted thereon,
or from the sale of all or any portion of the Mortgaged
Property. Lender may also apply toward any of the
Obligations any tax or insurance reserve account,
deposit or any sum credited or due from Lender to
Borrower without first enforcing any other rights of
Lender against Borrower or the against any endorser or
guarantor of any of the Obligations or against the
Mortgaged Property.
25.5 ATTORNEY-IN-FACT. Borrower hereby irrevocably
constitutes and appoints Lender, or any agent
designated by Lender, for so long as this Mortgage
remains undischarged of record, as attorney-in-fact of
Borrower to execute, acknowledge, seal and deliver all
instruments, agreements, deeds, certificates and other
documents of every nature and description in order to
carry out or implement the exercise of Lender's rights
hereunder and under the other Loan Documents from and
after the occurrence of an Event of Default.
26. CONTEST OF LAWS. Borrower shall have the right
to contest by appropriate legal proceedings, but
without cost or expense to Lender, the validity of any
Legal Requirements affecting the Mortgaged Property
subject to the provisions of the Loan Agreement and the
Environmental Indemnity dealing with the right to
contest.
27. NOTICES. Any demand, notice or request by either
party to the other shall be given in the manner
provided therefor in the Loan Agreement.
28. LENDER NOT OBLIGATED; CUMULATIVE RIGHTS. Nothing
in this instrument
9
shall be construed as obligating Lender to take any
action or incur any liability with respect to the
Mortgaged Property or any business conducted thereon,
and all options given to Lender are for its benefit and
shall and may be exercised in such order and in such
combination as Lender in its sole discretion may from
time to time decide.
29. SEVERABILITY. In case any one or more of the
provisions of this Mortgage Deed and Security
Agreement, the Note, the Assignment of Leases and
Rents, the Loan Agreement, any of the other Loan
Documents, or any other agreement now or hereafter
executed in connection with any one or more of the
foregoing are held to be invalid, illegal or
unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any
other provision hereof. Each of the provisions of every
such agreement, document or instrument shall be
enforceable by Lender to the fullest extent now or
hereafter not prohibited by applicable law.
30. APPOINTMENT OF RECEIVER. Upon, or at any time
after the filing of a complaint to foreclose this
Mortgage, the court in which such complaint is filed
may appoint a receiver of the Mortgaged Property. Such
appointment may be made either before or after sale,
without notice, without regard to the solvency or
insolvency of Borrower at the time of application for
such receiver and without regard to the then value of
the Mortgaged Property or whether the same shall be
then occupied as a homestead or not and Lender
hereunder or any holders may be appointed as such
receiver. Such receiver shall have power: (a) to
collect the rents, issues and profits of the Mortgaged
Property during the pendency of such foreclosure suit
and, in case of a sale and a deficiency, during the
full statutory period of redemption, whether there be
redemption or not, as well as during any further times
when Borrower, except for the intervention of such
receiver, would be entitled to collect such rents,
issues and profits; (b) to extend or modify any then
existing leases and to make new leases, which
extensions, modifications and new leases may provide
for terms to expire, or for options to lessees to
extend or renew terms to expire, beyond the maturity
date of the indebtedness hereunder and beyond the date
of the issuance of a deed or deeds to a purchaser or
purchasers at a foreclosure sale, it being understood
and agreed that any such leases, and the options or
other such provisions to be contained therein, shall be
binding upon Borrower and all persons whose interests
in the premises are subject to the lien hereof and upon
the purchaser or purchasers at any foreclosure sale,
notwithstanding any redemption from sale, discharge of
the mortgage indebtedness, satisfaction of any
foreclosure decree, or issuance of any certificate of
sale or deed to any purchaser; and (c) all other powers
which may be necessary or are usual in such cases for
the protection, possession, control, management; and
operation of the premises during the whole of said
period. The court from time to time may authorize the
receiver to apply the net income in his hands in
payment in whole or, in part of (a) the indebtedness
secured hereby, or by any decree foreclosing this
mortgage, or any tax, special assessment or other lien
which may be or become superior to the lien hereof or
of such decree, provided such application is made prior
to foreclosure sale; (b) the deficiency in case of a
sale and deficiency.
31. STAMP TAX, ETC. If at any time any governmental
body shall impose a stamp, documentary or other similar
tax on the Note, this Mortgage, the debt secured hereby
or the income generated therefrom, or any modification,
amendment, extension or consolidation of either
thereof, Borrower will pay the same within ten (10)
days after demand by the Lender.
32. RECOVERY OF SUMS. Lender shall have the right
from time to time to take action to recover any sums,
whether interest, principal or any installment of
either, or any other sums required to be paid under the
terms of this Mortgage which is not paid, as the same
become due or within any applicable cure period and
without prejudice to the right of Lender thereafter to
bring an action of foreclosure, or any other action,
for a default or defaults by Borrower existing at the
time such earlier action was commenced.
10
33. GOVERNING LAW. This Mortgage and the rights and
obligations of the parties hereto shall be governed by
and construed and enforced in accordance with the laws
of the Commonwealth of Massachusetts, except to the
extent that the laws of the State of Florida may govern
matters of title, enforcement, remedies, and similar
matters.
34. CONSENT TO JURISDICTION. Borrower, to the extent
that it may lawfully do so, hereby submits to the
jurisdiction of the courts of the Commonwealth of
Massachusetts and the State of Florida and the United
States District Courts for the Districts of
Commonwealth of Massachusetts and Florida, as well as
to the jurisdiction of all courts from which an appeal
may be taken from the aforesaid courts, for the purpose
of any suit, action or other proceeding arising out of
the breach by Borrower of any of obligations under or
with respect to the Note or this Mortgage, and
expressly waives any and all objections it may have as
to venue in any of such courts.
3 5. LIMITATION OF INTEREST. It is the intent of
Borrower and Lender in the execution of this Mortgage
and the Note and all other instruments securing the
Note to contract in strict compliance with the usury
laws of the Commonwealth of Massachusetts governing the
loan evidenced by the Note. In furtherance thereof,
Lender and Borrower stipulate and agree that none of
the terms and provisions contained in the Loan
Documents shall ever be construed to create a contract
for the use, forbearance or detention of money
requiring payment of interest at a rate in excess of
the maximum interest rate permitted to be charged by
the laws of the Commonwealth of Massachusetts governing
the loan evidenced by the Note. Borrower or any
guarantor, endorser or other party now or hereafter
becoming liable for the payment of the Note shall never
be liable for unearned interest on the Note and shall
never be required to pay interest on the Note at a rate
in excess of the maximum interest that may be lawfully
charged under the laws of the Commonwealth of
Massachusetts and the provisions of this Section shall
control over all other provisions of the Note and any
other instrument executed in connection herewith which
may be in apparent conflict herewith. In the event any
holder of the Note shall collect monies which are
deemed to constitute interest in excess of the maximum
rate permitted by the laws of the Commonwealth of
Massachusetts, all such sums deemed to constitute
interest in excess of the legal rate shall be
immediately returned to Borrower upon such
determination.
36. LENDER'S RIGHTS. Borrower acknowledges its
understanding that Lender may have rights against
Borrower, now or in the future, in its capacity as
secured party, creditor, or in any other capacities.
Such rights may include the right to deprive Borrower
of or affect the use of or possession or enjoyment of
Borrower's Mortgaged Property; and in the event Lender
deems it necessary to exercise any of such rights prior
to the rendition of a final judgment against Borrower,
or otherwise, Borrower may be entitled to notice and/or
hearing under the Constitution of the United States
and/or Commonwealth of Massachusetts, and/or
Commonwealth of Massachusetts statutes (to determine
whether or not Lender has a probable cause to sustain
the validity of Lender's claim), or the right to notice
and/or hearing under other applicable state or federal
laws pertaining to prejudgment remedies, prior to the
exercise by Lender of any such rights. Borrower
expressly waives any such right to prejudgment remedy
notice or hearing to which Borrower may be entitled;
provided, however, that this waiver shall not include a
waiver of such rights as Borrower shall have to prior
notice of the proposed disposition of Mortgaged
Property by Lender. Specifically and without limiting,
the generality of the foregoing, Borrower recognizes
that Lender has and shall continue to have an absolute
right to effect collection of any of the Mortgaged
Property with respect to which Lender holds a security
interest without the necessity of according to Borrower
any prior notice or hearing. This shall be a continuing
waiver and remain in full force and effect so long as
Borrower is obligated to Lender.
37. REINSTATEMENT OF LIEN. Lender's rights hereunder
shall be reinstated and
11
reviewed, and the enforceability of this Mortgage shall
continue with respect to any amount at any time paid on
account of the Obligations which Borrower is thereafter
required to restore or return in connection with a
bankruptcy, insolvency, reorganization or similar
proceedings with respect to the Borrower.
38. RELEASE. Upon payment in full of the
indebtedness secured hereby, subject to Section 38
above, this instrument shall become null and void and
shall be released by the Lender at Borrower's expense.
39. NO WAIVER. No consent or waiver, express or
implied, by Lender to or of any Default by Borrower
shall be construed as a consent or waiver to or of any
other Default at the same time or upon any future
occasion.
40. WAIVERS BY BORROWER. Borrower, to the fullest
extent that Borrower may do so, hereby: (a) agrees that
Borrower will not at any time insist upon, plead, claim
or take the benefit or advantage of any law now or
hereafter in force providing for any appraisement,
valuation, stay or extension, or any redemption after
foreclosure sale, and waives and releases all rights of
redemption after foreclosure sale, valuation,
appraisement, stay of execution, notice of election to
mature or declare due the debt secured hereby; and (b)
waives all rights to a marshalling of the assets of
Borrower, including the Mortgaged Property, or to a
sale in inverse order of alienation in the event of a
sale hereunder of the Mortgaged Property, and agrees
not to assert any right under any statute or rule of
law pertaining to the marshalling of assets, sale in
inverse order of alienation, or other matters whatever
to defeat, reduce or affect the right of Lender under
the terms of this Mortgage Deed and Security Agreement
or the Note to a sale of the Mortgaged Property for the
collection of the indebtedness evidenced by the Note
without any prior or different resort for collection,
or the right of Lender to the payment of such
indebtedness out of the proceeds of sale of the
Mortgaged Property in preference to every other
claimant whatever.
41. BUSINESS LOAN: NOT PERSONAL RESIDENCE. Borrower
covenants, warrants and represents that all of the
proceeds of the Loan secured hereby shall be used for
business or commercial purposes, none of the proceeds
of the Loan secured hereby shall be used for personal,
family or household purposes, and that no individual
liable for the Loan resides or intends to reside in any
portion of the Mortgaged Property.
42. CERTIFICATION. The undersigned hereby certifies
that Borrower is a duly organized, validly existing
corporation organized and in good standing under the
laws of the State of Washington and duly qualified to
do business in the State of Florida and that the
execution and delivery hereof and of all of the other
Loan Documents by Borrower has been duly authorized by
a resolution of the board of directors of the general
partner of the Borrower which is in full force and
effect.
43. HEADINGS. Headings and captions in this Mortgage
are for convenience and reference only and the words
and phrases contained therein shall in no way be held
to explain, modify, amplify or aid in the
interpretation, construction or meaning of any of the
provisions hereof.
44. TIME OF ESSENCE. Time shall be of the essence of
each and every provision of the Loan Agreement, the
Note, this Mortgage and each of the other Loan
Documents subject to any cure period provided for
therein.
NEXT PAGE IS SIGNATURE PAGE
12
IN WITNESS WHEREOF, the Borrower has caused this
Mortgage to be duly executed and delivered as a sealed
instrument as of the 30th day of April, 1997
WITNESSES: BORROWER:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
Its: President
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
* This document has been executed on the 30th day of
April, 1997, but is to be effective as of May 1, 1997
upon the filing with the Secretary of State,
Corporations Division, in the State of Washington and
with the Department of State of the State of Florida of
the Articles Merger with NPR Retirement Center, Inc.,
Stanford Centre, Inc. and Englewood Retirement Center,
Inc. merged into Emeritus Properties V, Inc., a
Washington corporation.
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇ the 30th day of April, 1997, before me personally
appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, the President f
Emeritus Properties V, Inc., to me known and known by
me to be the party executing the foregoing instrument
on behalf of said partnership and acknowledged said
instrument so executed to be his free act and deed in
said capacity and the free act and deed
of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
----------
Notary Public
Print Name ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
My commission expires 3-30-99
This instrument prepared by:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ [SEAL]
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
14