WMHF - Draft mortgage, security agreement and financing statement

LAND COURT

REGULAR SYSTEM

AFTER RECORDATION, RETURN BY: MAIL ( X ) PICK-UP ( )

Total No. of Pages:___ Tax Map Key No. (2) 4-4-2-52; CPR 0001

MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT THIS MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT (this "Mortgage") is made as of the __ day of ___________, by WEST MAUI HOSPITAL FOUNDATION, INC., a Hawaii nonprofit corporation, whose address is at 731 Promontory Drive West, Newport Beach, California 92660 (hereinafter called the "Mortgagor"), to THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, whose address is at 400 South Hope Street, Suite 500, Los Angeles, California 90071 (the "Mortgagee"), in its capacity as the Master Trustee pursuant to that certain Master Trust Indenture dated as of ______ (the "MTI") by and between the Public Finance Authority, a unit of government and a body corporate and politic under the laws of the State of Wisconsin (the "WPFA"), and the Mortgagee, as Master Trustee.

To secure the making of: (i) payment and performance of each and every obligation of the Obligated Group Members (as defined in the MTI) under the MTI and any Related Supplement (as defined in the MTI), with respect to all Master Indenture Obligations issued and Outstanding (as defined in the MTI) under the MTI, including, without limitation, the payment of Obligation No. 1 dated as of _______ in the original principal amount of [$_________] and Obligation No. 2 dated as of _______ in the original principal amount of [$_______]; (ii) payment of all Required Payments (as defined in the MTI) which become due and payable as the result of any future advances made pursuant to the MTI, whether such Required Payments are funded through advances which are either obligatory or are to be made at the option of the Mortgagee or otherwise related to or in connection with the MTI, as are made by the Mortgagee to the same extent as if such future advances were made on the date of the execution of this Mortgage and any such future advances up to a maximum amount of [$20,000,000] are intended Mortgage, Security Agreement and Financing Statement CI Draft 04-18-18

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to and shall have priority from the date this Mortgage is recorded; (iii) the observance and performance by the Mortgagor of each and every obligation of the Borrower under that certain Loan Agreement dated __________ by and between Mortgagor, as Borrower, and Mortgagee, as Lender, and that certain Loan Agreement dated ____________ by and between Mortgagor, as Borrower, and Mortgagee, as Lender (together the "Loan Agreements"); (iv) the observance and performance by the Mortgagor of all covenants, agreements, obligations and conditions required to be observed and performed by the Mortgagor under this Mortgage (all indebtedness and other obligations referred to in (i), (ii), and (iii) above are herein collectively called the "Secured Obligations"); THE MORTGAGOR DOES HEREBY mortgage, grant, bargain, sell, assign, and grant a security interest in, and convey unto the Mortgagee, its successors and assigns, all of the right, title and interest of the Mortgagor in and to the following: I The Real Property described in Exhibit A attached hereto and made a part hereof (the "Real Property"), together with any and all other, further or additional title, estates, interests or rights which may at any time be acquired by the Mortgagor and the buildings, structures and other improvements now standing or at any time hereafter constructed or placed upon the Real Property, including but not limited to: (i) all building materials, supplies and equipment now or hereafter located on the Real Property and suitable or intended to be incorporated in any building, structure, or other improvement located or to be erected on the Real Property; (ii) all heating, plumbing and lighting apparatus, motors, engines and machinery, electrical equipment, incinerator apparatus, air conditioning equipment, water and gas apparatus, pipes, faucets, and all other fixtures of every description which are now or may hereafter be placed or used upon the Real Property or in any building or improvement now or hereafter located thereon; (iii) all additions, accessions, increases, parts, fitting, accessories, replacements, substitutions, betterments, repairs and proceeds to and of any and all of the foregoing; and (iv) all hereditaments, easements, appurtenances, estates, and other rights and interests now or hereafter belonging to or in any way pertaining to the Real Property or to any building or improvement now or hereafter located thereon (collectively, the "Facilities").

II All goods, equipment, inventory, machinery and all other tangible personal property now or hereafter located in the Facilities or elsewhere on the Real Property including but not limited to all additions, accessions, increases, parts, fittings, accessories, replacements, substitutions, betterments, repairs and proceeds to and of any and all such personal property, excluding any items released or disposed of in accordance with this Mortgage (collectively, the "Equipment").

III Any and all binders or policies of insurance of any kind covering all or any portion of the Real Property, the Facilities, the Equipment, and any and all riders, amendments, extensions, renewals, supplements, or revisions thereof, and all of the Mortgagor's rights and remedies thereunder, and the benefit of all covenants therein and all proceeds therefrom.

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IV All rents, royalties, profits, revenues, income, fees, accounts and other benefits arising from the use or enjoyment of all or any portion of the Real Property or any contract pertaining to the use or enjoyment thereof, including but not limited to all rents, receivables, receipts, revenues, rights and benefits accruing to the Mortgagor under all present and future leases and subleases of the Mortgaged Property (as defined below) or any part thereof (collectively, the "Revenues and Income"), with the right and authority to receive and apply the same to the Secured Obligations after default in the conditions thereof, anything to the contrary herein notwithstanding.

V Any and all awards or payments, including interest thereon, and the right to receive the same, which may be made with respect to the Real Property and Facilities as a result of: (i) the exercise of the right of eminent domain; (ii) the alteration of the grade of any street; or (iii) any other injury to or decrease in the value of the Real Property and Facilities to the extent of all amounts which may be secured by this Mortgage at the date of receipt of any such award or payment by the Mortgagee, and of the reasonable counsel fees, costs and disbursements incurred by the Mortgagee in connection with the collection of such award or payment, the Mortgagor agreeing to execute and deliver, from time to time, such further instruments as may be required by the Mortgagee to confirm such assignment to the Mortgagee of any such award or payment.

SUBJECT, HOWEVER, to the encumbrances (the "Encumbrances") described in Exhibit A; TO HAVE AND TO HOLD all of the, Real Property, Facilities, Equipment, insurance binders, policies and proceeds, Revenues and Income, awards, payments and other property, together with all privileges, hereditaments and appurtenances thereunto now or hereafter belonging, or in anywise appertaining, and the proceeds thereof (all of such property being hereinafter referred to as the "Mortgaged Property"), unto the Mortgagee, its successors and assigns forever, as to all property owned or conveyed in fee simple, and as to leasehold interests in real property, for the unexpired term of the lease; AND TOGETHER ALSO WITH all rights and options and voting rights accruing to the Mortgagor under the terms of the Declaration and Bylaws and other documents of the Condominium Property Regime for the project described in Exhibit A, it being agreed and understood that at the option of the Mortgagee on all cases where the Mortgagor has the right to exercise any options or rights as among the apartment owners, the decision in the exercise of such rights and options may be made solely by the Mortgagee, and the Mortgagor, in addition to the foregoing, hereby nominates and appoints the Mortgagee (irrevocably as long as this Mortgage remains in effect) the Mortgagor's proxy to vote, and the Mortgagor's agent to act, pursuant to the Declaration and Bylaws and other documents of the aforedescribed Condominium Property Regime; failure of the Mortgagee to exercise the said rights and options and voting rights in any instance shall not be construed as a waiver of the right to exercise such Mortgage, Security Agreement and Financing Statement CI Draft 04-18-18

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rights, options or voting rights in any subsequent or other instances; PROVIDED, HOWEVER, that until further notice from Mortgagee to the contrary, the Mortgagor shall exercise all such rights, options and votes, excepting construction plans, partition of the project, amendment to the Declaration or Bylaws, or appointment of a managing agent, and any rights, options and votes, which, in the sole discretion of the Mortgagee, would impair the security of this Mortgage or are necessary to be exercised by the Mortgagee to protect and preserve said security.

That Mortgagor shall keep and perform each and every covenant, agreement and provision in the Declaration, the Bylaws, and the House Rules and Regulations (if applicable) and any resolution adopted pursuant to the Declaration or Bylaws, on the part of the apartment owner to be kept or performed. Without limiting the generality of the foregoing provisions of this paragraph, the Mortgagor shall pay and discharge as they become due and payable all sums and charges assessed by the Association for the share of the common expenses, both general and special, against or chargeable to the premises and all other sums assessed to the Mortgagor in accordance with the Declaration, Bylaws, or applicable statutory provisions or any resolution adopted pursuant thereto and shall, upon request of the Mortgagee, exhibit to the Mortgagee receipts for the payment of all sums specified herein within thirty (30) calendar days after the date the same are first due and payable. The Mortgagor shall promptly, upon receipt thereof, deliver to the Mortgagee a true and full copy of each and every notice of default or of non-compliance received by the Mortgagor with respect to any obligation of the Mortgagor under the Declaration, the Bylaws or the House Rules and Regulations (if applicable) or any resolution adopted by the Association pursuant to the Declaration or Bylaws; Provided, nevertheless, that these presents are upon the express condition that if all amounts that are payable pursuant to any and all of the Secured Obligations are fully satisfied, and if the Mortgagor shall observe and perform all of the covenants, agreements, obligations and conditions to be observed and performed by the Mortgagor under this Mortgage, and if the Borrower shall observe and perform all of the covenants, agreements, obligations and conditions to be observed and performed by the Borrower under the MTI and the Loan Agreements, and if the Mortgagor shall pay the costs of release, then this Mortgage, and the estate, right and interest of the Mortgagee in and to the Mortgaged Property, shall cease and be and become void and of no force and effect, and shall be satisfied, otherwise to remain in full force and effect.

The Mortgagor and the Mortgagee further agree as follows: 1.

Definitions. Capitalized terms used in this Mortgage not otherwise defined in this Mortgage, but defined in the MTI shall have the same meaning as in the MTI unless the context clearly indicates a contrary meaning.

2.

Removal of Property. Mortgagor shall have the right, without consent of the Mortgagee, to remove and dispose of, free from the lien of this Mortgage, such Mortgaged Property as from time to time may be permitted under Section 3.09 off the MTI. 3.

Warranty of Title; Encumbrances and Permitted Liens.

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a.

The Mortgagor hereby covenants, represents and warrants that the Mortgagor is the lawful owner of the Real Property hereby mortgaged, the same being valid and in no way void or voidable; that the Mortgagor has good right and lawful authority to mortgage and grant a security interest in the Mortgaged Property as provided in and by this Mortgage; that the Mortgaged Property is free and clear of all liens, pledges, charges and encumbrances, excepting the Encumbrances; and the Mortgagor warrants and will defend the title to the Mortgaged Property against all claims and demands whatsoever not specifically excepted herein or not defined as Permitted Liens in Section 1.01 of the MTI. b.

Other than Permitted Liens or as otherwise permitted in this Mortgage, the Mortgagor shall not create, suffer to be created or permit to remain any mortgage, security interest, lien or charge upon the Mortgaged Property without the consent of the Mortgagee as provided in Section 8 hereof.

4.

Covenants of the Mortgagor. For the purpose of protecting and preserving the security of this Mortgage, the Mortgagor promises and agrees as follows: a.

Mortgagor promises and agrees:

i. to take all commercially reasonable action necessary to keep the Mortgaged Property free of dry rot, fungus, termites, beetles and all other wood-boring, woodeating, harmful or destructive insects, and in all respects properly to care for and keep all of the Mortgaged Property, including all such buildings, structures and other improvements, in good condition and repair consistent with the requirements of the MTI; ii. not to remove, demolish or substantially alter (except such alterations as may be required by laws, ordinances or regulations or permitted pursuant to the MTI) any completed Facilities; provided, however, that the Mortgagor may make such proper replacements, repairs, renewals, removals and alterations as it shall in good faith reasonably determine are necessary or advisable to maintain or enhance the efficiency and value of the security created hereby; iii. to complete promptly and in good and businesslike manner any building or other improvements which may be constructed on the Real Property, to promptly restore in like manner (to the extent permitted by law) any Facilities which may be damaged or destroyed thereon, and to pay when due and payable all claims for labor performed and materials furnished therefor, provided that the Mortgagor shall not be required to pay any such claim if it shall diligently in good faith contest the validity thereof and, if so contested, shall provide a bond or other security for or method of payment thereof in a manner satisfactory to the Mortgagee in its sole discretion; iv. to comply with all laws, ordinances, regulations, conditions and restrictions now or hereafter affecting the Mortgaged Property or any part thereof or requiring any alterations or improvements to be made thereon;

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v. not to commit, suffer or permit any waste, and not to permit any deterioration, of the Mortgaged Property; and vi. not to commit, suffer or permit any act to be done in or upon the Mortgaged Property in violation of any law or ordinance if such act might have consequences that would materially and adversely affect the financial condition, assets, properties or operation of the Mortgagor; b.

Mortgagor shall provide and maintain such insurance as is required by Section 3.12 of the MTI, and shall deliver duplicate originals or certified copies of the policies of said insurance to the Mortgagee upon its request; it being mutually agreed that the proceeds of any claim under such insurance in excess of the amount described in Section 3.12 of the MTI shall be deposited and applied as provided in the MTI; c.

Mortgagor shall appear in and defend any action or proceeding affecting or purporting to affect the security of this Mortgage, any additional or other security for any of the obligations secured hereby, or the interest, rights, powers, or duties of the Mortgagee hereunder, it being agreed, however, that in the case of an action or proceeding against the Mortgagee, said Mortgagee, at its option, may appear in and defend any such action or proceeding and, in addition, it being agreed that the Mortgagee may commence any action or proceeding deemed necessary by it to perfect, maintain or protect such interest, rights, powers or duties, all in such manner and to such extent as it may determine in its sole discretion to be appropriate, and the Mortgagee is authorized to pay, purchase or compromise on behalf of the Mortgagor any encumbrance or claim which in its judgment appears or purports to affect the security hereof or to be superior hereto; to pay all costs and expenses, including costs of evidence of title and attorney's fees in a reasonable sum, in any above described action or proceedings in which the Mortgagee may appear; d.

Mortgagor promises and agrees:

i. to pay before default or delinquency, and submit to the Mortgagee a receipt or other evidence of payment, or certified copy thereof, evidencing payment of, all taxes and assessments affecting the Mortgaged Property, and any accrued interest, cost or penalty thereon, provided that the Mortgagor shall not be required to pay any such tax or assessment if it shall diligently in good faith contest the validity thereof and, if so contested, shall cause the execution thereof to be stayed or shall provide a bond or other security for or method of payment thereof in a manner satisfactory to the Mortgagee in its sole discretion; and ii. to pay when due and payable all encumbrances (including any debt secured by deed of trust), ground rents, liens or charges, with interest, on the Mortgaged Property or any part thereof which appear to be prior or superior hereto, and to pay immediately and in full all such encumbrances (excluding permitted encumbrances), rents, liens or charges, if any, which may now be due or payable; provided that the Mortgagor shall not be required to pay any such encumbrances, rent, lien or charge if it shall in good faith contest the validity thereof and, if so contested, shall provide a bond or other security for or method of payment thereof in manner satisfactory to the Mortgagee in its sole discretion; Mortgage, Security Agreement and Financing Statement CI Draft 04-18-18

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e.

Mortgagor shall pay immediately and without demand all reasonable sums expended or expenses incurred by the Mortgagee to enforce the terms of this Mortgage and/or the MTI, including reasonable attorneys' fees, under any of the terms of this Mortgage, with interest from date of expenditure at the rate of ten percent (10%) per annum (compounded monthly); f.

Mortgagor shall not, directly or indirectly (through the conveyance of ownership interests in the beneficial owners of the Mortgaged Property at any level), sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, lease or otherwise transfer or dispose of (voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) the Mortgaged Property or any part thereof or any legal or beneficial interest therein other than (i) with respect to Permitted Liens, or (ii) as expressly permitted pursuant to the terms of the MTI; g.

Mortgagor shall promptly, upon the written request of Mortgagee, but not more frequently than once per year, provide to Mortgagee, at Mortgagor's expense, with an environmental site assessment or environmental audit report prepared by an environmental engineering firm acceptable to Mortgagee and in a form acceptable to Mortgagee, assessing the presence or absence of any Hazardous Materials (as hereinafter defined) and the potential costs in connection with the abatement, cleanup or removal of any Hazardous Materials found in, on, under or about the Mortgaged Property. Mortgagor shall cooperate in the conduct of such site assessment or environmental audit; and h.

In the event of the passage after the date of the recordation of this Mortgage of any law of the State of Hawaii reducing the value of the Mortgaged Property or any part hereto for the purpose of taxation, or resulting in any lien on the Mortgaged Property, or changing in any way the laws now in force for the taxation of this Mortgage or the indebtedness secured hereby for state or local purposes (but not including income taxes payable on the receipt of interest due under the MTI) in a manner which is adverse to Mortgagee, or the manner of the operation of any such taxes so as to adversely affect the interest of Mortgagee, then, and in such event, Mortgagor shall bear and pay the full amount of such taxes.

5.

Events of Default; Remedies. If any Event of Default as defined in the MTI shall occur and be continuing, the Mortgagee in accordance with the terms and provisions of the MTI (1) shall have authority to declare the Outstanding Master Indenture Obligations immediately due and payable as provided in the MTI, and/or (2) to pursue one or more of the following remedies and provisions for foreclosure or enforcement of this Mortgage: a.

The Mortgagee may exercise exclusive control over the Gross Revenue Fund as set forth in Section 3.05(a) of the MTI. b.

The Mortgagee may proceed to protect and enforce its rights by a suit or suits in equity or at law, either for the specific performance of any covenant or agreement contained herein or in aid of the execution of any power herein granted, or for the foreclosure of this Mortgage, or for the enforcement of any other appropriate legal or equitable remedy.

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c.

The Mortgagee shall have and may exercise with respect to all personal property and fixtures which are part of the Mortgaged Property all the rights and remedies accorded upon default to the Mortgagee to a secured party under the Uniform Commercial Code, as in effect in the State of Hawaii. If notice to the Mortgagor of intended disposition of such property is required by law in a particular instance, such notice shall be deemed commercially reasonable if given at least ten (10) calendar days prior to the date of intended disposition. d.

The Mortgagee shall be entitled, without notice and without any showing of waste of the Mortgaged Property, inadequacy of the Mortgaged Property as security, or insolvency of the Mortgagor, to the appointment of a receiver of the Mortgaged Property. The Mortgagee or any receiver shall be entitled to receive and dispose of the Revenues and Income of the Mortgaged Property and to sue for and recover any account or other item of Revenues and Income from the Mortgagor or any account debtor or other third person. Subject to any order of a court appointing a receiver or otherwise having jurisdiction of the Mortgaged Property, the Mortgagee in its discretion in accordance with the terms and provisions of the MTI may apply the Gross Revenues: (i) to the payment of the indebtedness secured hereby in accordance with the MTI; (ii) to the expenses of operating the Mortgaged Property and conducting the business thereof as directed by the Mortgagee in the Mortgagee's sole discretion; (iii) to the repairs, maintenance, renewals, replacements, alterations, additions, betterments and improvements of the Mortgaged Property; (iv) to the payments or reserves that may be made or set up in the Mortgagee's discretion for taxes, assessments, insurance and other proper charges upon or in connection with the operation of the Mortgaged Property or any part thereof; and (v) to the just and reasonable compensation of the Mortgagee for its own services and for the services of counsel, agents and employees by it properly engaged and employed. e.

The Mortgagee may, and is hereby authorized and empowered to, foreclose this Mortgage by action or advertisement, pursuant to the statutes of the State of Hawaii, power being expressly granted to sell the Mortgaged Property at public auction and convey the same to the purchaser and to apply the proceeds arising from such sale, first, to all payments required under the MTI and the Loan Agreements secured by this Mortgage including any and all Loan Repayments and Additional Payments due thereunder, and all expenses, liabilities and advances of the Mortgagee and all legal costs and charges of such foreclosure and reasonable attorneys' fees permitted by law, which costs, charges and fees the Mortgagor agrees to pay, and, second, to return any surplus to the Mortgagor or such other person as may be entitled thereto. Such sale shall be made at public auction and at such place or places and at such time or times and upon such notice as the Mortgagee may be advised by counsel to be consistent with the laws applicable thereto, and upon such terms as the Mortgagee or the public officer conducting such sale may fix. The Mortgagor, for itself and all persons and corporations hereafter claiming through or under it, hereby expressly waives and releases all right to have the properties and rights contained in the Mortgaged Property marshaled upon any foreclosure or other enforcement hereof. The Mortgagee or public officer conducting such sale from time to time may, in accordance with applicable law, adjourn any such sale to be made by it and may make such sale at the time to which the same shall be so adjourned.

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f.

Upon any foreclosure sale, the Mortgagee may bid for and purchase whether by cash, credit bid or otherwise, the Mortgaged Property or any part thereof and upon compliance with the terms of sale may hold, retain and possess and dispose of such property in its own absolute right without further accountability. g.

Upon the completion of any sale or sales made under or by virtue of this Mortgage, the Mortgagee shall execute and deliver, or cause to be executed and delivered, to the accepted purchaser or purchasers the property sold with good and sufficient transfers, assigning and transferring all its right, title and interest in and to the properties sold. The Mortgagee and its successor or successors are hereby irrevocably appointed the true and lawful attorney or attorneys of the Mortgagor in its name and stead or in the name of the Mortgagee to make all necessary assignments, transfers and deliveries of the property thus sold, and for that purpose, the Mortgagee and its successors may execute all necessary instruments of assignment and transfer, and may substitute one or more persons with like power, the Mortgagor hereby ratifying and confirming all that said attorney or attorneys or such substitute or substitutes shall lawfully do by virtue hereof. Nevertheless, the Mortgagor, if so requested in writing by the Mortgagee, shall ratify and confirm any such sale or sales by executing and delivering to the Mortgagee or to such purchaser or purchasers all such instruments as may be advisable, in the judgment of the Mortgagee, for the purpose and as may be designated in such request. h.

Upon any sale made under the power of sale hereby granted or under judgment or decree in any judicial proceedings for the foreclosure or otherwise for the enforcement of this Mortgage, the receipt of the Mortgagee or of the officer making such sale shall be a sufficient discharge to the purchaser or purchasers at any sale for his or their purchase money, and such purchaser or purchasers, his or their assigns or personal representatives shall not, after paying such purchase money and receiving such receipt of the Mortgagee or of such officer therefor, be obliged to see to the application of such purchase money, or be in anywise answerable for any loss, misapplication, or nonapplication thereof. i.

In case of any Event of Default as aforesaid, to the extent that such rights may then lawfully be waived, neither the Mortgagor nor anyone claiming through or under it shall or will set up, claim, or seek to take advantage of any appraisement, valuation, stay, extension or redemption laws now or hereafter in force in any locality where any of the Mortgaged Property may be situated, in order to prevent or hinder the enforcement or foreclosure of this Mortgage, or the absolute sale of the Mortgaged Property, or the final and absolute putting into possession thereof, immediately after such sale, of the purchaser or purchasers thereat, but the Mortgagor for itself and all who may claim through or under it, hereby waives, to the extent that it lawfully may do so, the benefit of all such laws and all right of appraisement and redemption to which it may be entitled under the laws of the State of Hawaii. j.

Any sale made under the power of sale granted hereby or under judgment of decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Mortgage shall, if and to the extent then permitted by law, operate to divest all right, title, interest, claims and demand whatsoever, either at law or in equity, of the Mortgagor of, in and to the property so sold, and be a perpetual bar both at law and in equity against the Mortgagor and

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against any and all persons, firms or corporations claiming or who may claim the property sold, or any part thereof, from, through or under the Mortgagor.

6.

Possession of Mortgagor. Unless an Event of Default shall exist under the MTI, the Mortgagor shall be entitled to the possession and disposition of the Mortgaged Property subject only to the rights of the Mortgagee provided for herein.

7.

Further Assurances. The Mortgagor hereby authorizes the Mortgagee to prepare and record at the Mortgagor's expense such supplements to this Mortgage, financing statements or other documents as may be required in the opinion of counsel to the Mortgagee, including, without limitation, any supplement to this Mortgage to particularly describe any improvements which have been or are intended to become subject to the lien hereof, and the Mortgagor shall execute such documents, if required.

8.

Consents; Instruments; Amendments or Releases. Notwithstanding anything herein to the contrary, the Mortgagee is authorized to and shall, without the consent of the Holders of any Master Indenture Obligations then Outstanding (as such terms are defined in the MTI), to execute any consents, instruments, amendments or releases authorized or permitted to be executed without the consent of any such Holders pursuant to the provisions of this Mortgage and the provisions contained in the last paragraph of Section 3.06(e) of the MTI. 9.

MTI and Loan Agreements Control. Any provision in this Mortgage which is inconsistent with the MTI or the Loan Agreements as supplemented from time to time by any supplement referring to any Secured Obligation or any provision thereof shall be interpreted as if such provision were not contained herein and as if the provision of the MTI or the Loan Agreements had been fully incorporated herein. In all cases of inconsistency, and in case of any amendment to or supplement to the MTI or the Loan Agreements, entered into in accordance with the provisions thereof, the provisions of the MTI and the Loan Agreements (as the same may be amended and supplemented from time to time) shall control. Reference is hereby made to copies of the MTI and the Loan Agreements on file at the principal place of business of the Borrower and the principal corporate trust office of the Mortgagee.

10.

Fixture Filing. This instrument constitutes a financing statement with respect to any and all fixtures included within the term "the Mortgaged Property" as used herein, and with respect to any goods or other personal property that may now be or hereafter become such fixtures. The Mortgagor grants to the Mortgagee a security interest in all existing and future goods which are now or in the future become fixtures relating to the Mortgaged Property and the proceeds thereof. The Mortgagor covenants and agrees that the recording of this instrument in the Bureau of Conveyances of the State of Hawaii shall also operate from the latter of the date of such filing and recording as a fixture filing in accordance with Sections 490:9-501(a)(1) and 490:9-502(b) and (c) of the Hawaii Revised Statutes.

11.

Hazardous Materials. The Mortgagor shall keep and maintain the Mortgaged Property, including, without limitation, the groundwater on or under the Mortgaged Property, in compliance with, and shall not cause the Mortgaged Property to be in violation of, any Hazardous Materials Laws (as hereinafter defined). The Mortgagor shall indemnify the Mortgage, Security Agreement and Financing Statement CI Draft 04-18-18

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Mortgagee, its directors, officers, employees, agents, successors and assigns from and against, any loss, damage, cost, expense or liability directly or indirectly arising out of or attributable to the use, generation, manufacture, treatment, handling, refining, production, processing, storage, release, threatened release, discharge, disposal or presence of Hazardous Materials (as hereinafter defined) caused by Mortgagor or its tenants on, under or about the Mortgaged Property, including, without limitation: (i) the costs of any required or necessary repair, clean up or detoxification of the Mortgaged Property, and the preparation and implementation of any closure, remedial or other required plans; and (ii) all reasonable costs and expenses incurred by the Mortgagee in connection with clause (i), including, without limitation, reasonable attorneys' fees, laboratory, diagnostic and consulting fees. The indemnification provisions of this Section shall survive (a) the repayment of the Secured Obligations secured by this Mortgage, (b) any foreclosure of this Mortgage, and (c) any deed or assignment of the Mortgaged Property in lieu of foreclosure.

As used in this Mortgage, "Hazardous Materials" shall mean any flammable explosives, radioactive materials, asbestos, organic compounds known as polychlorinated biphenyls, oil, oil products, petroleum and petroleum products, chemicals known to cause cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic substances or related materials, including, without limitation, any substances defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," or "toxic substances" under any federal, state or local laws, ordinances or regulations, now or hereafter in effect, relating to environmental conditions, industrial hygiene or Hazardous Materials on, under or about the Mortgaged Property, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101, et seq., the Clean Water Act, 33 U.S.C. Section 1251, et seq., the Clean Air Act, 42 U.S.C. Section 7401, et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601 through 2629, the Safe Drinking Water Act, 42 U.S.C. Sections 300f through 300j, and any similar state and local laws and ordinances and the regulations now or hereafter adopted, published and/or promulgated pursuant thereto (collectively, the "Hazardous Materials Laws").

12.

Assignment of Revenues and Income. The assignment in Part IV above shall terminate and become null and void upon release of this Mortgage. Immediately upon the Mortgagee's delivering to the Mortgagor, or serving upon the Mortgagor, written notice of any alleged Event of Default, the Mortgagee may at any time, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness secured hereby, sue for or otherwise collect such Revenues and Income, including those past due and unpaid, and apply the same (less costs and expenses of operation and collection, including brokers' fees and attorneys' fees) upon any indebtedness secured hereby, and in such order as the Mortgagee may determine. Upon the delivery or service of such notice of Event of Default, the Mortgagee shall have the absolute right to receive and collect all such Revenues and Income whether or not it takes physical possession; and the act of delivery or service of such notice of Event of Default shall be deemed to constitute the taking of possession by the Mortgagee; PROVIDED, that such possession by the Mortgagee shall not impose upon the Mortgagee any duties or obligations as lessor or sublessor under such leases and subleases or Mortgage, Security Agreement and Financing Statement CI Draft 04-18-18

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otherwise impose upon the Mortgagee any duties or obligations associated with the possession of property. The collection of such Revenues and Income, and the application thereof as aforesaid shall not cure or waive any Event of Default or notice of Event of Default hereunder or invalidate any act done pursuant to such notice, and shall be without prejudice to any other rights of the Mortgagee herein contained. So long as no Event of Default shall have occurred, the Mortgagor shall have the privilege, under a license hereby granted by the Mortgagee to the Mortgagor, to collect when due, all Revenues and Income from the Mortgaged Property and to retain, use and enjoy the same. Upon request of the Mortgagee, the Mortgagor will duly execute, acknowledge and deliver to the Mortgagee any instrument or instruments, in form satisfactory to the Mortgagee, confirming the assignment to the Mortgagee of any specific leases or subleases.

13.

Notices. It shall be sufficient service or giving of any notice, request, certificate, demand or other communication if the same shall be sent by registered or certified mail, return receipt requested, or by private courier service which provides evidence of delivery, postage or other charges prepaid, or sent by telecopy or other electronic means which produces evidence of transmission, confirmed by first class mail, and in each case shall be deemed to have been given on the date evidenced by the postal or courier receipt or other written evidence of delivery or electronic transmission. Unless a different address is given by Mortgagor or Mortgagee as provided in this Section, all such communications shall be addressed as follows: To the Mortgagor: West Maui Hospital Foundation, Inc. 731 Promontory Drive West Newport Beach, California 92660 Attention: Chief Financial Officer Email: ______________________ Facsimile: ___________________ Phone: ______________________ To the Mortgagee: The Bank of New York Mellon Trust Company ____________________________ ____________________________ Attention: ___________________ Email: ______________________ Facsimile: ___________________ Phone: ______________________

Each party may, by notice given to each other party as specified in this Section, designate any different addresses to which subsequent notices, certificates, requests, demands or other communications shall be sent.

14.

Mortgage to Secure Parity Debt. This Mortgage shall also secure, on a pari passu basis, any additional Master Indenture Obligations issued pursuant to Section 3.06(d)(i)(C) Mortgage, Security Agreement and Financing Statement CI Draft 04-18-18

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of the MTI. The Mortgagor and Mortgagee shall execute an amendment of this Mortgage or any other instrument required to secure such special purpose revenue bonds on said pari passu basis.

15.

Purpose of Mortgage. The purpose of this Mortgage is to secure moneys advanced for the purpose of paying for the improvement in whole or in part of the Mortgaged Property. The proceeds of the loans evidenced by the Loan Agreements referred to herein are to be advanced by the Mortgagee to the Mortgagor pursuant to the terms and conditions of the MTI; and the maximum amount of the future advances to be made to the Mortgagor pursuant to the same is [$20,000,000.00].

16.

Counterparts. This instrument may be executed in several counterparts. In addition, this instrument may contain more than one counterpart of the signature page and this instrument may be executed by the affixing of the signatures of each of the parties to one of such counterpart signature pages and the assembly of such signature pages with this instrument as one document; and all of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page.

For all purposes, including, without limitation, recordation, filing and delivery of this instrument, duplicate unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as one document.

--The remainder of this page is intentionally left blank; the following page is the signature page--

Mortgage, Security Agreement and Financing Statement CI Draft 04-18-18

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IN WITNESS WHEREOF, the Mortgagor and the Mortgagee have caused this Mortgage, Security Agreement and Financing Statement to be duly executed as of the day and year first above written.

WEST MAUI HOSPITAL FOUNDATION, INC., a Hawaii nonprofit corporation

By_________________________________ Name: Brian H. Hoyle Title: President & Chief Executive Officer "Mortgagor"

THE BANK OF NEW YORK MELLON TRUST COMPANY, a national banking association, as Trustee as aforesaid

By_________________________________ Name: Title:

"Mortgagee"

Mortgage, Security Agreement and Financing Statement CI Draft 04-18-18

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STATE OF HAWAII

) ) ss.: )

CITY AND COUNTY OF HONOLULU

On this ______ day of _______________, 20___, before me personally appeared ____________________________, to me personally known, who, being by me duly sworn or affirmed, did say that such person(s) executed the foregoing instrument as the free act and deed of such person(s), and if applicable, in the capacity(ies) shown, having been duly authorized to execute such instrument in such capacity(ies). _______________________________ (Print or Type Name of Notary) _______________________________ (Signature of Notary) Notary Public, State of Hawaii My Commission Expires:

NOTARY CERTIFICATION STATEMENT Document Identification or Description: Mortgage, Security Agreement and Financing Statement Doc. Date: No. of Pages: ____________

Signature of Notary

or

 Undated at time of notarization.

Jurisdiction: First Circuit (in which notarial act is performed)

Date of Notarization and Certification Statement (Official Stamp or Seal)

Printed Name of Notary

Mortgage, Security Agreement and Financing Statement CI Draft 04-18-18

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STATE OF ________________

) ) ss.: )

COUNTY OF ________________

On this ______ day of _______________, 20___, before me personally appeared ____________________________, to me personally known, who, being by me duly sworn or affirmed, did say that such person(s) executed the foregoing instrument as the free act and deed of such person(s), and if applicable, in the capacity(ies) shown, having been duly authorized to execute such instrument in such capacity(ies). _______________________________ (Print or Type Name of Notary) _______________________________ (Signature of Notary) Notary Public, State of ____________ My Commission Expires:

NOTARY CERTIFICATION STATEMENT Document Identification or Description: Mortgage, Security Agreement and Financing Statement Doc. Date: No. of Pages: ____________

Signature of Notary

or

 Undated at time of notarization.

Jurisdiction: ____________Circuit (in which notarial act is performed)

Date of Notarization and Certification Statement (Official Stamp or Seal)

Printed Name of Notary

Mortgage, Security Agreement and Financing Statement CI Draft 04-18-18

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EXHIBIT A Property Description FIRST: Unit 1 (the "Unit") in the condominium project known as "WEST MAUI HOSPITAL AND MEDICAL CENTER CONDOMINIUM" (the "Project") as described in and established by the Declaration of Condominium Property Regime of West Maui Hospital and Medical Center Condominium dated October 17, 2016, recorded in the Bureau of Conveyances of the State of Hawaii (the "Bureau") as Document No. A-61801054 (the "Declaration") and the Bylaws of the Association of Unit Owners of West Maui Hospital and Medical Center Condominium dated October 17, 2016, recorded in said Bureau as Document No. A-61801055 (the "Bylaws"), and as shown on the plans thereof filed in said Land Court as Condominium Map No. 5601 (the "Condominium Map"), as the same may have been amended from time to time; TOGETHER WITH easements appurtenant to the Unit, as described in and established by the Declaration, including nonexclusive easements in the Interior Project Roads and other Common Elements for ingress, to, egress from, utility services for, and support of such Unit, and in the other Common Elements for use according to their respective purposes, subject always to the exclusive use of the Limited Common Elements as provided in the Declaration, and together with easements for surface water flowage over adjoining Units and the Common Elements, provided that such flow and discharge shall be managed through the Project's integrated drainage system and shall not be diverted or directed so as to damage buildings or other improvements.

SUBJECT, HOWEVER, to easements and reservations as described in the Declaration, including easements for encroachments, for access to Common Elements located in the Unit, for access through the Unit to Common Elements for emergency purposes, and for surface water flowage.

SECOND: An undivided 0.33914 interest in and to all Common Elements of the Project, including the land described below, as established for the Unit by the Declaration, or such other undivided percentage interest in the common elements as may hereafter be established for the Unit by amendment of the Declaration from time to time, as tenant in common with the other owners thereof, subject to all easements appurtenant to any Units of the Project.

SUBJECT, HOWEVER, AS TO BOTH ITEMS FIRST AND SECOND, to the following encumbrances: 1.

Mineral and water rights of any nature.

2.

A Lease of right-of-way in favor of Maui Electric Company, Limited, and Hawaiian Telephone Company dated October 13, 1967, recorded in Liber 5893 at Page 226; leasing and

demising a power line easement twenty-five (25) feet wide over, across and under the premises described herein, besides other land, for a term of thirty-five (35) years from the date hereof, and thereafter from year to year until terminated.

3.

The terms and provisions contained in the following: INSTRUMENT:

AGREEMENT

DATED: RECORDED: PARTIES:

August 15, 1990 Document No. 90-132756 PIONEER MILL COMPANY, LIMITED, a Hawaii corporation, "Applicant", and the DEPARTMENT OF WATER SUPPLY of the County of Maui, "Department" acknowledgment that the department's public water system is incapable of providing adequate fire protection

RE:

4.

The terms and provisions contained in that certain Unrecorded CONSERVATION EASEMENT dated on or about April 17, 1992, by and between PIONEER MILL COMPANY, LIMITED, a Hawaii corporation, ("Grantor"), and THE NATURE CONSERVANCY, a District of Columbia non-profit corporation, (the "Conservancy"), granting a nonexclusive easement for ingress and egress.

MEMORANDUM OF CONSERVATION EASEMENT dated April 17, 1992, filed as Land Court Document No. 1906350, recorded as Document No. 92-063064.

5.

6.

The terms and provisions contained in the following: INSTRUMENT:

SUBDIVISION AGREEMENT (AGRICULTURAL USE)

DATED: RECORDED: PARTIES:

July 5, 1994 Document No. 94-116216 AMFAC PROPERTY INVESTMENT CORP., a Hawaii corporation, and PIONEER MILL COMPANY, LIMITED, a Hawaii corporation, "Owner" and the COUNTY OF MAUI, through its Department of Public Works and Waste Management, a body politic and corporate, and a political subdivision of the State of Hawaii, "Department"

The terms and provisions contained in the following: INSTRUMENT:

SUBDIVISION AGREEMENT (LARGE LOTS)

DATED: RECORDED: PARTIES:

July 5, 1994 Document No. 94-116217 AMFAC PROPERTY INVESTMENT CORP., a Hawaii corporation and PIONEER MILL COMPANY, LIMITED, a

Hawaii corporation, "Owner" and the COUNTY OF MAUI, a body politic and corporate and a political subdivision of the State of Hawaii, "County" 7.

8.

The terms and provisions contained in the following: INSTRUMENT:

HOLD-HARMLESS AGREEMENT

DATED: RECORDED: PARTIES:

July 29, 1994 Document No. 94-156768 AMFAC PROPERTY INVESTMENT CORP., a Hawaii corporation, PIONEER MILL COMPANY, LIMITED, a Hawaii corporation, "Applicant" and the COUNTY OF MAUI, "County"

The terms and provisions contained in the following: INSTRUMENT:

AGREEMENT FOR THE DEFERRAL OF SUBDIVISION WATER SYSTEM IMPROVEMENTS

DATED: RECORDED: PARTIES:

September 28, 1994 Document No. 94-174243 AMFAC PROPERTY INVESTMENT CORP., a Hawaii corporation and PIONEER MILL COMPANY, LIMITED, a Hawaii corporation, "Subdividers" and the BOARD OF WATER SUPPLY of the County of Maui, "Board"

9.

NOTICE OF CHANGE OF AGRICULTURAL USE TO DEDICATION (PETITION NUMBER : M2AA) DATE: RECORDED : RE :

10.

April 3, 2000 Document No. 2000-046041 dedication a portion of the land described herein to Diversified Agriculture use for a period of ten (20) years. Initial effective July 1, 1974. Change of use effective date July 1, 2000. Dedicated area 62.994 acres. Non-Dedicated area 162.351 acres.

The terms and provisions contained in the following: INSTRUMENT :

UNILATERAL DECLARATION OF RESTRICTIONS; JOINDER AGREEMENT

DATED : FILED : RECORDED : PARTIES :

February 15, 2001 Land Court Document No. 2683897 Document No. 2001-022448 KAANAPALI DEVELOPMENT CORP., a Hawaii corporation, AMFAC/JMB HAWAII, LLC., a Hawaii limited liability

company, and PIONEER MILL COMPANY, LIMITED, a Hawaii corporation, "Declarants" Joinder by SVO PACIFIC, INC., a Florida corporation.

11.

12.

13.

14.

15.

16.

The terms and provisions contained in the following: INSTRUMENT :

SUBDIVISION AGREEMENT (AGRICULTURAL USE)

DATED : RECORDED :

October 16, 2012 Document No. A-46870852

The terms and provisions contained in the following: INSTRUMENT :

AGREEMENT FOR ALLOCATION OF FUTURE SUBDIVISION POTENTIAL

DATED : RECORDED :

October 16, 2012 Document No. A-46870853

The terms and provisions contained in the following: INSTRUMENT :

DECLARATION OF DEVELOPMENT COVENANTS, CONDITIONS AND RESTRICTIONS

DATED : RECORDED :

September 22, 2014 Document No. A-53780183

The terms and provisions contained in the following: INSTRUMENT :

LIMITED WARRANTY DEED AND RESERVATION OF RIGHTS

DATED : RECORDED :

September 22, 2014 Document No. A-53780184

The terms and provisions contained in the following: INSTRUMENT :

UNILATERAL AGREEMENT AND DECLARATION FOR CONDITIONAL ZONING

DATED : RECORDED :

April 8, 2015 Document No. A-56090594

The terms and provisions contained in the following:

17.

18.

INSTRUMENT :

DECLARATION OF CONDOMINIUM PROPERTY REGIME FOR "WEST MAUI HOSPITAL AND MEDICAL CENTER CONDOMINIUM" CONDOMINIUM PROJECT

DATED : RECORDED : MAP :

October 17, 2016 Document No. A-61801054 5601 and any amendments thereto

The terms and provisions contained in the following: INSTRUMENT :

BY-LAWS OF THE ASSOCIATION OF UNIT OWNERS

DATED : RECORDED :

October 17, 2016 Document No. A-61801055

Any unrecorded leases and matters arising from or affecting the same.

19.

Discrepancies, conflicts in boundary lines, shortage in area, encroachments or any other matters which a correct survey or archaeological study would disclose.

20.

Any lien (or claim of lien) for services, labor or material arising from an improvement or work related to the land described below:

The land upon which said Project is located is described as follows: All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Royal Patent 2567, Land Commission Award 7715, Apana 3, Part 1 to Lota Kamehameha) situate, lying and being at Hanakaoo, Kaanapali, Lahaina, Island and County of Maui, State of Hawaii, being LOT 17 of the "KAANAPALI 2020 SUBDIVISION" and thus bounded and described: Beginning at the southeast corner of this parcel of land, being also the southwest corner of Lot 16, and on the north side of Kaka'alaneo Drive (Lot 49) of Kaanapali 2020 Subdivision, the coordinates of said point of beginning referred to Government Survey Triangulation Station "MANINI" being 3,170.70 feet north and 11,862.14 feet west, and running by azimuth measured clockwise from true South: 1. Along Kaka'alaneo Drive (Lot 49) of Kaanapali 2020 Subdivision, along the remainder of R.P. 2567, L.C. Aw. 7715, Ap. 3, Pt. 1 to Lota Kamehameha, on a curve to the left with a radius of 648.00 feet, the chord azimuth and distance being:

100° 14' 03" 230.63 2.

89° 59' 00" 190.92

feet;

feet along same;

3.

Thence along same, on a curve to the right with a radius with of 702.00 feet, the chord azimuth and distance being;

4.

Thence along Lot 15 of Kaanapali 2020 Subdivision, along the remainder of R.P. 2567, L.C. Aw. 7715, Ap. 3, Pt. 1 to Lota Kamehameha, on a curve to the left with a radius of 30.00 feet, the chord azimuth and distance being; 169° 05' 23"

43.36

feet;

5. 215° 22' 00" 961.13

feet along same;

6. 302° 01' 30" 685.24

feet along same;

7.

feet along Lot 16 of Kaanapali 2020 Subdivision, along the remainder of R.P. 2567, L.C. Aw. 7715, Ap. , Pt. 1 to Lota Kamehameha;

26° 00' 00" 668.62

8. Thence along same, on a curve to the right with a radius of 30.00 feet, the chord azimuth and distance being: 68° 14' 33"

40.34 feet to the point of beginning and containing an area of 14.994 acres, more or less.

BEING THE PREMISES ACQUIRED BY LIMITED WARRANTY DEED AND RESERVATION OF RIGHTS GRANTOR

:

KAANAPALI LAND MANAGEMENT CORP., a Hawaii corporation

GRANTEE

:

NEWPORT HOSPITAL CORPORATION, a California corporation

DATED : RECORDED :

September 22, 2014 Document No. A-53780184

Together with a non-exclusive irrevocable easement for access purposes over, across and under Lot 49, being more particularly described in GRANT OF EASEMENT (access) dated September 22, 2014, recorded as Document No. A-53780185, subject to the terms and provisions contained therein.