EXHIBIT 10.117
AMENDED AND RESTATED MORTGAGE
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND
FIXTURE FILING
MADE BY
XXXXXXXXXX MALL ASSOCIATES LIMITED PARTNERSHIP
as Mortgagor
to
KEYBANK NATIONAL ASSOCIATION
as Mortgagee
This Mortgage amends and restates in its entirety that certain Mortgage and
Security Agreement dated as of July 15, 1998 made by Mortgagor in favor of
Xxxxxx Brothers Holdings Inc., d/b/a Xxxxxx Capital, A Division of Xxxxxx
Brothers Holdings Inc. ("Original Mortgagee") and recorded August 3, 1998 in
Real Property Book 1889 at Page 560 in the Office of the Judge of Probate of
Xxxxxxxxxx County, Alabama in the amount of $47,600,000 and that certain
Assignment of Rents and Leases of even date therewith made by Mortgagor in favor
of the Original Mortgagee and recorded August 3, 1998 in Real Property Book 1889
at Page 595 in the Office of the Judge of Probate of Xxxxxxxxxx County, Alabama,
as such Mortgage and Security Agreement and Assignment of Rents and Leases have
been previously assigned to LaSalle National Bank, as trustee for the registered
holders of LB Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 1998-C4 ("Prior Assignee") and have been further assigned
to Mortgagee by Prior Assignee pursuant to that certain Assignment of Mortgage
and Security Agreement and that certain Assignment of Assignment of Leases and
Rents, each of even date herewith.
A Mortgage tax has been paid in full on the Mortgage with respect to said
$47,500,000 principal amount and there have been no additional loan proceeds
advanced under this Mortgage in connected with this Amendment and Restatement.
This Mortgage is to be cross-indexed in the Uniform Commercial Code Records
as a fixture filing.
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Dated as of: August 1, 2005
PREPARED BY AND UPON RECORDATION RETURN TO:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
8000 Sears Tower
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
AMENDED AND RESTATED MORTGAGE
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND
FIXTURE FILING
Project Common Known As
"Xxxxxxxxxx Mall"
THIS AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT
AND FIXTURE FILING (this "Mortgage") is made as of August 1, 2005, by Xxxxxxxxxx
Mall Associates Limited Partnership, a Delaware limited partnership
("Mortgagor") whose address is 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000, and
KEYBANK NATIONAL ASSOCIATION, as administrative agent for itself and one or more
Lenders (as defined in that certain Term Loan Agreement bearing the date July
31, 2005 by and among Mortgagor and Glimcher Properties Limited Partnership, a
Delaware limited partnership (collectively, the "Borrower"), such Lenders and
KEYBANK NATIONAL ASSOCIATION, as administrative agent, hereinafter the "Term
Loan Agreement"), (together with its successors and assigns, the "Mortgagee"),
whose address is 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000.
1. Grant and Secured Obligations.
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1.1 Grant. Borrower has executed and delivered to the Lenders certain
promissory notes (such promissory notes, together with any amendments or
allonges thereto, or restatements, replacements or renewals thereof, are
collectively referred to herein as the "Notes"), in and by which the Borrower
promises to pay the principal of all Loans under such Term Loan Agreement and
interest at the rate and in installments as provided in the Notes, with a final
payment of the outstanding principal balance and accrued and unpaid interest
being due on or before August 1, 2028. The maximum aggregate principal amount of
the Loans evidenced by the Notes shall be $44,000,000. The indebtedness secured
hereby shall be governed by the terms and conditions of the Term Loan Agreement.
To the extent there may be any inconsistency between the terms and provisions of
this Mortgage and the terms and provisions of the Term Loan Agreement, the terms
and provisions of the Term Loan Agreement shall govern and control. All
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Term Loan Agreement.
In consideration of the debt evidenced by the Notes and to secure the
timely payment of both principal and interest in accordance with the terms and
provisions of the Notes and in accordance with the terms, provisions and
limitations of this Mortgage, to secure the payment of any and all amounts
advanced by the Administrative Agent or the Lenders with respect to the Premises
for the payment of taxes, assessments, insurance premiums or any other costs
incurred in the protection of the Premises, and to secure the performance of the
covenants and agreements contained herein and in the Notes, the Term Loan
Agreement, and any other documents evidencing and securing the loan secured
hereby or delivered to Mortgagee pursuant to the Term Loan Agreement
(collectively, the "Loan Documents") to be performed by Mortgagor, and to secure
all Rate Management Transactions entered into with the Administrative Agent or
any of the Lenders in connection with the Term Loan Agreement, and for the
purpose of securing payment and performance of the Secured Obligations defined
and described in Section 1.2 below, Mortgagor hereby irrevocably and
unconditionally grants, bargains, sells, conveys, mortgages and warrants to
Mortgagee, with power of sale and with right of entry and possession, all
estate, right, title and interest which Mortgagor now has or may later acquire
in and to the following property (all or any part of such property, or any
interest in all or any part of it, as the context may require, the "Property"):
(a) The real property located in the County of Xxxxxxxxxx, State of
Alabama, as described in Exhibit A, together with all existing and future
easements and rights affording access to it (the "Premises"); together with
(b) All buildings, structures and improvements now located or later to
be constructed on the Premises (the "Improvements"); together with
(c) All existing and future appurtenances, privileges, easements,
franchises and tenements of the Premises, including all minerals, oil, gas,
other hydrocarbons and associated substances, sulphur, nitrogen, carbon
dioxide, helium and other commercially valuable substances which may be in,
under or produced from any part of the Premises, all development rights and
credits, air rights, water, water rights (whether riparian, appropriative
or otherwise, and whether or not appurtenant) and water stock, and any
Premises lying in the streets, roads or avenues, open or proposed, in front
of or adjoining the Premises and Improvements; together with
(d) All existing and future leases, subleases, subtenancies, licenses,
occupancy agreements and concessions ("leases") relating to the use and
enjoyment of all or any part of the Premises and Improvements, and any and
all guaranties and other agreements relating to or made in connection with
any of such leases; together with
(e) All real property and improvements on it, and all appurtenances
and other property and interests of any kind or character, whether
described in Exhibit A or not, which may be reasonably necessary or
desirable to promote the present and any reasonable future beneficial use
and enjoyment of the Premises and Improvements; together with
(f) All goods, materials, supplies, chattels, furniture, fixtures,
equipment and machinery now or later to be attached to, placed in or on, or
used in connection with the use, enjoyment, occupancy or operation of all
or any part of the Premises and Improvements, whether stored on the
Premises or elsewhere, including all pumping plants, engines, pipes,
ditches and flumes, and also all gas, electric, cooking, heating, cooling,
air conditioning, lighting, refrigeration and plumbing fixtures and
equipment, all of which shall be considered to the fullest extent of the
law to be real property for purposes of this Mortgage and any
manufacturer's warranties with respect thereto; together with
(g) All building materials, equipment, work in process or other
personal property of any kind, whether stored on the Premises or elsewhere,
which have been or later will be acquired for the purpose of being
delivered to, incorporated into or installed in or about the Premises or
Improvements; together with
(h) All of Mortgagor's interest in and to all operating accounts
pertaining to the Property and the Loan funds, whether disbursed or not;
together with
(i) All rights to the payment of money, accounts, accounts receivable,
reserves, deferred payments, refunds, cost savings, payments and deposits,
whether now or later to be received from third parties (including all
xxxxxxx money sales deposits) or deposited by Mortgagor with third parties
(including all utility deposits), contract rights, development and use
rights, governmental permits and licenses, applications, architectural and
engineering plans, specifications and drawings, as-built drawings, chattel
paper, instruments, documents, notes, drafts and letters of credit (other
than letters of credit in favor of Mortgagee), which arise from or relate
to construction on the Premises or to any business now or later to be
conducted on it, or
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to the Premises and Improvements generally and any builder's or
manufacturer's warranties with respect thereto; together with
(j) All insurance policies pertaining to the Premises and all
proceeds, including all claims to and demands for them, of the voluntary or
involuntary conversion of any of the Premises, Improvements or the other
property described above into cash or liquidated claims, including proceeds
of all present and future fire, hazard or casualty insurance policies and
all condemnation awards or payments now or later to be made by any public
body or decree by any court of competent jurisdiction for any taking or in
connection with any condemnation or eminent domain proceeding, and all
causes of action and their proceeds for any damage or injury to the
Premises, Improvements or the other property described above or any part of
them, or breach of warranty in connection with the construction of the
Improvements, including causes of action arising in tort, contract, fraud
or concealment of a material fact; together with
(k) All of Mortgagor's rights in and to all Rate Management
Transactions entered into with the Administrative Agent or any of the
Lenders in connection with the Term Loan Agreement;
(l) All books and records pertaining to any and all of the property
described above, including computer-readable memory and any computer
hardware or software necessary to access and process such memory ("Books
and Records"); together with
(m) All proceeds of, additions and accretions to, substitutions and
replacements for, and changes in any of the property described above.
Capitalized terms used above and elsewhere in this Mortgage without
definition have the meanings given them in the Term Loan Agreement referred to
in Subsection 1.2(a)(iii) below.
1.2 Secured Obligations.
(a) Mortgagor makes the grant, conveyance, and mortgage set forth in
Section 1.1 above, and grants the security interest set forth in Section 3
below for the purpose of securing the following obligations (the "Secured
Obligations") in any order of priority that Mortgagee may choose:
(i) Payment of all obligations at any time owing under the Notes
under the terms of the Term Loan Agreement; and
(ii) Payment and performance of all obligations of Mortgagor
under this Mortgage; and
(iii) Payment and performance of all obligations of Mortgagor
under the Term Loan Agreement; and
(iv) Payment and performance of any obligations of Mortgagor
under any Loan Documents which are executed by Mortgagor; and
(v) Payment and performance of all obligations of Mortgagor
arising from any Rate Management Transactions entered into with the
Administrative Agent or any of the Lenders in connection with the Term
Loan Agreement. Rate Management Transactions shall mean an interest
rate hedging program through the purchase by Mortgagor from the
Administrative Agent or any of the Lenders in connection with an
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interest rate swap, cap or such other interest rate protection product
with respect to the Term Loan Agreement; and
(vi) Payment and performance of all future advances and other
obligations that Mortgagor or any successor in ownership of all or
part of the Property may agree to pay and/or perform (whether as
principal, surety or guarantor) for the benefit of Mortgagee, when a
writing evidences the parties' agreement that the advance or
obligation be secured by this Mortgage; and
(vii) Payment and performance of all modifications, amendments,
extensions, and renewals, however evidenced, of any of the Secured
Obligations.
(b) All persons who may have or acquire an interest in all or any part
of the Property will be considered to have notice of, and will be bound by,
the terms of the Secured Obligations and each other agreement or instrument
made or entered into in connection with each of the Secured Obligations.
Such terms include any provisions in the Note or the Term Loan Agreement
which permit borrowing, repayment and reborrowing, or which provide that
the interest rate on one or more of the Secured Obligations may vary from
time to time.
2. Assignment of Rents.
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2.1 Assignment. Mortgagor hereby irrevocably, absolutely, presently and
unconditionally assigns to Mortgagee all rents, royalties, issues, profits,
revenue, income, accounts, proceeds and other benefits of the Property, whether
now due, past due or to become due, including all prepaid rents and security
deposits (some or all collectively, as the context may require, "Rents"). This
is an absolute assignment, not an assignment for security only.
2.2 Grant of License. Mortgagee hereby confers upon Mortgagor a license
("License") to collect and retain the Rents as they become due and payable, so
long as no Event of Default, as defined in Section 6.2 below, shall exist and be
continuing. If an Event of Default has occurred and is continuing, Mortgagee
shall have the right, which it may choose to exercise in its sole discretion, to
terminate this License without notice to or demand upon Mortgagor, and without
regard to the adequacy of Mortgagee's security under this Mortgage.
2.3 Collection and Application of Rents. Subject to the License granted to
Mortgagor under Section 2.2 above, Mortgagee has the right, power and authority
to collect any and all Rents. Mortgagor hereby appoints Mortgagee its
attorney-in-fact to perform any and all of the following acts, if and at the
times when Mortgagee in its sole discretion may so choose:
(a) Demand, receive and enforce payment of any and all Rents; or
(b) Give receipts, releases and satisfactions for any and all Rents;
or
(c) Xxx either in the name of Mortgagor or in the name of Mortgagee
for any and all Rents.
Mortgagee and Mortgagor agree that the mere recordation of the assignment
granted herein entitles Mortgagee immediately to collect and receive rents upon
the occurrence of an Event of Default, as defined in Section 6.2, without first
taking any acts of enforcement under applicable law, such as, but not limited
to, providing notice to Mortgagor, filing foreclosure proceedings, or seeking
and/or obtaining the appointment of a receiver. Further, Mortgagee's right to
the Rents does not depend on whether or not Mortgagee takes possession of the
Property as permitted under Subsection 6.3(c). In
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Mortgagee's sole discretion, Mortgagee may choose to collect Rents either with
or without taking possession of the Property. Mortgagee shall apply all Rents
collected by it in the manner provided under Section 6.6. If an Event of Default
occurs while Mortgagee is in possession of all or part of the Property and is
collecting and applying Rents as permitted under this Mortgage, Mortgagee and
any receiver shall nevertheless be entitled to exercise and invoke every right
and remedy afforded any of them under this Mortgage and at law or in equity.
2.4 Mortgagee Not Responsible. Under no circumstances shall Mortgagee have
any duty to produce Rents from the Property. Regardless of whether or not
Mortgagee, in person or by agent, takes actual possession of the Premises and
Improvements, unless Mortgagee agrees in writing to the contrary, Mortgagee is
not and shall not be deemed to be:
(a) A "mortgagee in possession" for any purpose; or
(b) Responsible for performing any of the obligations of the lessor
under any lease; or
(c) Responsible for any waste committed by lessees or any other
parties, any dangerous or defective condition of the Property, or any
negligence in the management, upkeep, repair or control of the Property,
unless caused by the gross negligence, willful misconduct or bad faith of
Mortgagee; or
(d) Liable in any manner for the Property or the use, occupancy,
enjoyment or operation of all or any part of it.
2.5 Leasing. Mortgagor shall not accept any deposit or prepayment of rents
under the leases for any rental period exceeding one (1) month without
Mortgagee's prior written consent. Mortgagor shall not lease the Property or any
part of it except strictly in accordance with the Term Loan Agreement.
3. Grant of Security Interest.
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3.1 Security Agreement. The parties intend for this Mortgage to create a
lien on the Property, and an absolute assignment of the Rents, all in favor of
Mortgagee. The parties acknowledge that some of the Property and some or all of
the Rents may be determined under applicable law to be personal property or
fixtures. To the extent that any Property or Rents may be or be determined to be
personal property, Mortgagor as debtor hereby grants Mortgagee as secured party
a security interest in all such Property and Rents, to secure payment and
performance of the Secured Obligations. This Mortgage constitutes a security
agreement under the Uniform Commercial Code of the State in which the Property
is located, covering all such Property and Rents.
3.2 Financing Statements. Mortgagor hereby authorizes Mortgagee to file one
or more financing statements. In addition, Mortgagor shall execute such other
documents as Mortgagee may from time to time require to perfect or continue the
perfection of Mortgagee's security interest in any Property or Rents. As
provided in Section 5.10 below, Mortgagor shall pay all fees and costs that
Mortgagee may incur in filing such documents in public offices and in obtaining
such record searches as Mortgagee may reasonably require. In case Mortgagor
fails to execute any financing statements or other documents for the perfection
or continuation of any security interest, Mortgagor hereby appoints Mortgagee as
its true and lawful attorney-in-fact to execute any such documents on its
behalf. If any financing statement or other document is filed in the records
normally pertaining to personal property,
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that filing shall never be construed as in any way derogating from or impairing
this Mortgage or the rights or obligations of the parties under it.
4. Fixture Filing.
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This Mortgage constitutes a financing statement filed as a fixture filing
under Article 9 of the Uniform Commercial Code in the State in which the
Property is located, as amended or recodified from time to time, covering any
Property which now is or later may become fixtures attached to the Premises or
Improvements. For this purpose, the respective addresses of Mortgagor, as
debtor, and Mortgagee, as secured party, are as set forth in the preambles of
this Mortgage.
5. Rights and Duties of the Parties.
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5.1 Representations and Warranties. Mortgagor represents and warrants that:
(a) Mortgagor lawfully possesses and holds fee simple title to all of
the Premises and Improvements;
(b) Mortgagor has or will have good title to all Property other than
the Premises and Improvements;
(c) Mortgagor has the full and unlimited power, right and authority to
encumber the Property and assign the Rents;
(d) This Mortgage creates a first and prior lien on the Property;
(e) The Property includes all property and rights which may be
reasonably necessary or desirable to promote the present and any reasonable
future beneficial use and enjoyment of the Premises and Improvements;
(f) Except for certain items of leased office equipment used in the
management office at the Premises, Mortgagor owns any Property which is
personal property free and clear of any security agreements, reservations
of title or conditional sales contracts, and there is no financing
statement affecting such personal property on file in any public office;
and
(g) Mortgagor's place of business, or its chief executive office if it
has more than one place of business, is located at the address specified
below.
5.2 Taxes, and Assessments. Mortgagor shall, prior to delinquency, pay or
cause to be paid each installment of all taxes and special assessments of every
kind, now or hereafter levied against the Property or any part thereof, without
notice or demand, and shall provide Mortgagee with evidence of the payment of
same. Mortgagor shall pay all taxes and assessments which may be levied upon
Mortgagee's or the Lenders' interest herein or upon this Mortgage or the debt
secured hereby (excluding any income taxes or similar charges imposed upon
Mortgagee or the Lenders), without regard to any law that may be enacted
imposing payment of the whole or any part thereof upon the Mortgagee or any
Lender. Notwithstanding anything contained in this Section to the contrary,
Mortgagor shall have the right to pay or cause to be paid any such tax or
special assessment under protest or to otherwise contest any such tax or special
assessment but only if (i) such contest has the effect of preventing the
collection of such tax or special assessment so contested and also prevent the
sale or forfeiture of the Property or any part thereof or any interest therein,
(ii) Mortgagor promptly notifies Mortgagee in writing of its intent to contest
such tax or special assessment, and (iii) if so requested in writing by
Mortgagee, Mortgagor has deposited security in form and amount reasonably
satisfactory to Mortgagee, and
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increases the amount of such security so deposited promptly after Mortgagee's
request therefor. Mortgagor shall prosecute or cause the prosecution of all such
contest actions in good faith and with due diligence.
5.3 Performance of Secured Obligations. Mortgagor shall promptly pay and
perform each Secured Obligation in accordance with its terms.
5.4 Liens, Charges and Encumbrances. Mortgagor shall immediately discharge
any lien on the Property which Mortgagee has not consented to in writing.
5.5 Damages, Restoration, and Insurance Proceeds. As long as no Event of
Default has occurred and is then continuing, all insurance proceeds for losses
at the Property of less than $500,000.00 shall be adjusted with and payable to
the Mortgagor. In case of loss, Mortgagee shall have the right (but not the
obligation) to participate in and reasonably approve the settlement of any
insurance claim in excess of $500,000.00 and all claims thereafter, and
Mortgagee is at all times authorized to collect and receive any insurance money
for those claims which Mortgagee is entitled to approve the settlement of
hereunder.
At the election of Mortgagee, such insurance proceeds may be applied to
reduce the outstanding balance of the indebtedness under the Term Loan Agreement
or to pay for costs of repair and restoration of the Property; provided,
however, that so long as no Event of Default has occurred and is then
continuing, Mortgagee shall make such insurance proceeds available to pay for
such costs of repair and restoration. If Mortgagee is entitled to and does elect
to apply insurance proceeds in payment or reduction of the indebtedness secured
hereby, then Mortgagee shall reduce the then outstanding balance of the Advances
by the amount of the insurance proceeds received and so applied by Mortgagee. In
the event that Mortgagee does not elect to apply the insurance proceeds to the
indebtedness secured hereby as set forth above, such insurance proceeds shall be
used to reimburse Mortgagor for the cost of rebuilding or restoring the
Premises. The Premises shall be so restored or rebuilt as to be substantially
the same quality and character as the Premises were prior to such damage or
destruction in accordance with the original plans and specifications or to such
other condition as Mortgagee shall reasonably approve in writing.
If Mortgagee elects to make the proceeds available for repair and
restoration, any request by Mortgagor for a disbursement by Mortgagee of fire or
casualty insurance proceeds and funds deposited by Mortgagor with Mortgagee
pursuant to this Section 5.5 shall be treated by Mortgagee as if such request
were for an Advance under the Term Loan Agreement, and the disbursement thereof
shall be conditioned upon the Borrower's compliance with and satisfaction of the
same conditions precedent as would be applicable under the Term Loan Agreement
for such an Advance. Additionally, such disbursement shall also be conditioned
upon Borrower's providing to Administrative Agent: updated title insurance,
satisfactory evidence, as reasonably determined by Administrative Agent, that
the Premises shall be so restored or rebuilt as to be of at least equal value
and quality and substantially the same character as the Premises were prior to
such damage or destruction in accordance with the original plans and
specifications or to such other condition as Administrative Agent shall
reasonably approve in writing, satisfactory evidence of the estimated cost of
completion thereof and with such architect's certificates, waivers of lien,
contractors' sworn statements and other evidence of cost and of payments as
Administrative Agent may reasonably require and approve. The undisbursed balance
of insurance proceeds shall at all times be sufficient to pay for the cost of
completion of the work free and clear of liens and if such proceeds are
insufficient, Mortgagor shall deposit the amount of such deficiency with
Mortgagee prior to the disbursement by Mortgagee of any insurance proceeds.
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5.6 Condemnation Proceeds. Mortgagor hereby assigns, transfers and sets
over unto Mortgagee its entire interest in the proceeds (the "Condemnation
Proceeds") of any award or any claim for damages for any of the Property taken
or damaged under the power of eminent domain or by condemnation or any
transaction in lieu of condemnation ("Condemnation"), unless, notwithstanding
the forgoing, such taking, damage or condemnation does not cause a material
diminution in the value of the Premises in which case all Condemnation Proceeds
for damages to the Property shall be payable to the Mortgagor. Mortgagee shall
make available to Mortgagor the Condemnation Proceeds for the restoration of the
Premises if Mortgagor satisfies all of the conditions set forth in this Section
5.6 hereof for disbursement of insurance proceeds. In all other cases Mortgagee
shall have the right, at its option, to apply the Condemnation Proceeds upon or
in reduction of the indebtedness secured hereby, whether due or not. If
Mortgagee is entitled to and does elect to apply Condemnation Proceeds upon or
in reduction of the indebtedness secured hereby, then Mortgagee shall reduce the
then outstanding balance of the Advances under the Term Loan Agreement by the
amount of the Condemnation Proceeds received and so applied by Mortgagee. If the
Condemnation Proceeds are required to be used as aforesaid to reimburse
Mortgagor for the cost of rebuilding or restoring buildings or improvements on
the Property, or if Mortgagee elects that the Condemnation Proceeds be so used,
and the buildings and other improvements shall be rebuilt or restored, the
Condemnation Proceeds shall be paid out in the same manner as is provided in
this Section 5.6 hereof for the payment of insurance proceeds toward the cost of
rebuilding or restoration of such buildings and other improvements. Any surplus
which may remain out of the Condemnation Proceeds after payment of such cost of
rebuilding or restoration shall, at the option of Mortgagee, be applied on
account of the indebtedness secured hereby or be paid to any other party
entitled thereto.
5.7 Maintenance and Preservation of Property.
(a) Mortgagor shall insure the Property as required by Schedule 7 of
the Term Loan Agreement and keep the Property in good condition and repair.
(b) Except as required by the terms of any lease approved by
Administrative Agent, Mortgagor shall not remove or demolish the Property
or any material part of it in any way, or materially alter, restore or add
to the Property, or initiate or allow any material change or variance in
any zoning or other Premises use classification which adversely affects the
Property or any material part of it, except with Mortgagee's express prior
written consent in each instance; the term "materially" or "material" as
used in this Section 5.7(b) shall mean having a monetary effect in an
amount greater than $5,000,000.
(c) Mortgagor shall not commit or allow any act upon or use of the
Property which would violate: (i) any applicable Laws or order of any
Governmental Authority, whether now existing or later to be enacted and
whether foreseen or unforeseen; or (ii) any public or private covenant,
condition, restriction or equitable servitude affecting the Property.
Mortgagor shall not bring or keep any article on the Property or cause or
allow any condition to exist on it, if that could invalidate or would be
prohibited by any insurance coverage required to be maintained by Mortgagor
on the Property or any part of it under the Term Loan Agreement.
(d) Mortgagor shall not commit or allow waste of the Property,
including those acts or omissions characterized under the Term Loan
Agreement as waste which arises out of Materials of Environmental Concern.
(e) Mortgagor shall perform all other acts which from the character or
use of the Property may be reasonably necessary to maintain and preserve
its value.
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5.8 Releases, Extensions, Modifications and Additional Security. From time
to time, Mortgagee may perform any of the following acts without incurring any
liability or giving notice to any person:
(a) Release any person liable for payment of any Secured Obligation;
(b) Extend the time for payment, or otherwise alter the terms of
payment, of any Secured Obligation;
(c) Accept additional real or personal property of any kind as
security for any Secured Obligation, whether evidenced by deeds of trust,
mortgages, security agreements or any other instruments of security;
(d) Alter, substitute or release any property securing the Secured
Obligations;
(e) Consent to the making of any plat or map of the Property or any
part of it;
(f) Join in granting any easement or creating any restriction
affecting the Property; or
(g) Join in any subordination or other agreement affecting this
Mortgage or the lien of it; or
(h) Release the Property or any part of it.
5.9 Release. If Mortgagor shall fully pay all principal and interest on the
Notes, and all other indebtedness secured hereby and comply with all of the
other terms and provisions hereof to be performed and complied with by
Mortgagor, Mortgagee, upon written request of Mortgagor, shall release this
Mortgage and the lien thereof by proper instrument upon payment and discharge of
the amounts required under the Term Loan Agreement and payment of any filing fee
in connection with such release. Mortgagor shall pay any costs of preparation
and recordation of such release.
5.10 Compensation, Exculpation, Indemnification.
(a) Mortgagor agrees to pay fees required by and pursuant to the Term
Loan Agreement, for any services that Mortgagee may render in connection
with this Mortgage, including Mortgagee's providing a statement of the
Secured Obligations or providing the release pursuant to Section 5.9 above.
Mortgagor shall also pay or reimburse all of Mortgagee's costs and expenses
which may be incurred in rendering any such services. Mortgagor further
agrees to pay or reimburse Mortgagee for all costs, expenses and other
advances which may be incurred or made by Mortgagee in any efforts to
enforce any terms of this Mortgage, including any rights or remedies
afforded to Mortgagee under Section 6.4, whether any lawsuit is filed or
not, or in defending any action or proceeding arising under or relating to
this Mortgage, including attorneys' fees and other legal costs, costs of
any Foreclosure Sale (as defined in Subsection 6.4(i) below) and any cost
of evidence of title. If Mortgagee chooses to dispose of Property through
more than one Foreclosure Sale, Mortgagor shall pay all costs, expenses or
other advances that may be incurred or made by Mortgagee in each of such
Foreclosure Sales. In any suit to foreclose the lien hereof or enforce any
other remedy of Mortgagee under this Mortgage or the Note, there shall be
allowed and included as additional indebtedness in the decree for sale or
other judgment or decree all expenditures and expenses which may be paid or
incurred by or on behalf of Mortgagee for reasonable attorneys' costs and
fees (including the costs and fees of paralegals), survey charges,
appraiser's fees, inspecting engineer's and/or architect's fees, fees
-9-
for environmental studies and assessments and all additional expenses
incurred by Mortgagee with respect to environmental matters, outlays for
documentary and expert evidence, stenographers' charges, publication costs,
and costs (which may be estimated as to items to be expended after entry of
the decree) of procuring all such abstracts of title, title searches and
examinations, title insurance policies, and similar data and assurances
with respect to title as Mortgagee may deem reasonably necessary either to
prosecute such suit or to evidence to bidders at any sale which may be had
pursuant to such decree the true condition of the title to, the value of or
the environmental condition of the Property. All expenditures and expenses
of the nature in this Subsection mentioned, and such expenses and fees as
may be incurred in the protection of the Property and maintenance of the
lien of this Mortgage, including the fees of any attorney (including the
costs and fees of paralegals) employed by Mortgagee in any litigation or
proceeding affecting this Mortgage, the Note or the Property, including
probate and bankruptcy proceedings, or in preparation for the commencement
or defense of any proceeding or threatened suit or proceeding, shall be
immediately due and payable by Mortgagor, with interest thereon at the
Default Rate and shall be secured by this Mortgage.
(b) Mortgagee shall not be directly or indirectly liable to Mortgagor
or any other person as a consequence of any of the following:
(i) Mortgagee's exercise of or failure to exercise any rights,
remedies or powers granted to Mortgagee in this Mortgage;
(ii) Mortgagee's failure or refusal to perform or discharge any
obligation or liability of Mortgagor under any agreement related to
the Property or under this Mortgage; or
(iii) Any loss sustained by Mortgagor or any third party
resulting from Mortgagee's failure to lease the Property, or from any
other act or omission of Mortgagee in managing the Property, after an
Event of Default, unless the loss is caused by the willful misconduct,
gross negligence, or bad faith of Mortgagee.
Mortgagor hereby expressly waives and releases all liability of the types
described above, and agrees that no such liability shall be asserted
against or imposed upon Mortgagee.
(c) Mortgagor agrees to indemnify Mortgagee against and hold it
harmless from all losses, damages, liabilities, claims, causes of action,
judgments, court costs, attorneys' fees and other legal expenses, cost of
evidence of title, cost of evidence of value, and other costs and expenses
which it may suffer or incur, unless caused by the gross negligence,
willful misconduct or bad faith of the Mortgagee:
(i) In performing any act required or permitted by this Mortgage
or any of the other Loan Documents or by law;
(ii) Because of any failure of Mortgagor to perform any of its
obligations; or
(iii) Because of any alleged obligation of or undertaking by
Mortgagee to perform or discharge any of the representations,
warranties, conditions, covenants or other obligations in any document
relating to the Property other than the Loan Documents.
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This agreement by Mortgagor to indemnify Mortgagee shall survive the
release and cancellation of any or all of the Secured Obligations and the
full or partial release of this Mortgage.
(d) Mortgagor shall pay all obligations to pay money arising under
this Section 5.9 immediately upon demand by Mortgagee. Each such obligation
shall be added to, and considered to be part of, the principal of the Note,
and shall bear interest from the date the obligation arises at the Default
Rate.
5.11 Defense and Notice of Claims and Actions. At Mortgagor's sole expense,
Mortgagor shall protect, preserve and defend the Property and title to and right
of possession of the Property, and the security of this Mortgage and the rights
and powers of Mortgagee created under it, against all adverse claims. Mortgagor
shall give Mortgagee prompt notice in writing if any claim is asserted which
does or could affect any such matters, or if any action or proceeding is
commenced which alleges or relates to any such claim.
5.12 Subrogation. Mortgagee shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole
or in part by Mortgagee in accordance with this Mortgage or with the proceeds of
any loan secured by this Mortgage.
5.13 Site Visits, Observation and Testing. Mortgagee and its agents and
representatives shall have the right at any reasonable time to enter and visit
the Property for the purpose of performing appraisals, observing the Property,
and conducting non-invasive tests (unless Mortgagee has a good faith reason to
believe that the taking and removing soil or groundwater samples is required,
and in such case, conducting such tests) on any part of the Property. Mortgagee
has no duty, however, to visit or observe the Property or to conduct tests, and
no site visit, observation or testing by Mortgagee, its agents or
representatives shall impose any liability on any of Mortgagee, its agents or
representatives. In no event shall any site visit, observation or testing by
Mortgagee, its agents or representatives be a representation that Materials of
Environmental Concern are or are not present in, on or under the Property, or
that there has been or shall be compliance with any law, regulation or ordinance
pertaining to Materials of Environmental Concern or any other applicable
governmental law. Neither Mortgagor nor any other party is entitled to rely on
any site visit, observation or testing by any of Mortgagee, its agents or
representatives. Neither Mortgagee, its agents or representatives owe any duty
of care to protect Mortgagor or any other party against, or to inform Mortgagor
or any other party of, any Materials of Environmental Concern or any other
adverse condition affecting the Property. Mortgagee shall give Mortgagor
reasonable notice before entering the Property. Mortgagee shall make reasonable
efforts to avoid interfering with Mortgagor's use of the Property in exercising
any rights provided in this Section 5.13. Notwithstanding the foregoing, all
rights granted to Mortgagee under this Section 5.13 are subject to all rights of
tenants to the Property.
5.14 Notice of Change. Mortgagor shall give Mortgagee prior written notice
of any change in: (a) the location of its place of business or its chief
executive office if it has more than one place of business; (b) the location of
any of the Property, including the Books and Records; and (c) Mortgagor's name
or business structure. Unless otherwise approved by Mortgagee in writing, all
Property that consists of personal property (other than the Books and Records)
will be located on the Premises and all Books and Records will be located at
Mortgagor's place of business or chief executive office if Mortgagor has more
than one place of business.
6. Transfers, Default and Remedies.
--------------------------------
6.1 Transfers. Mortgagor acknowledges that Mortgagee is making one or more
advances under the Term Loan Agreement in reliance on the expertise, skill and
experience of Mortgagor; thus,
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the Secured Obligations include material elements similar in nature to a
personal service contract. In consideration of Mortgagee's reliance, Mortgagor
agrees that Mortgagor shall not make any transfer of the Property or transfer of
its interests therein, except for leases in the ordinary course (a "Transfer"),
unless the Transfer is preceded by Mortgagee's express written consent to the
particular transaction and transferee. Mortgagee may withhold such consent in
its sole discretion.
6.2 Events of Default. Mortgagor will be in default under this Mortgage
upon the occurrence of any one or more of the following events (some or all
collectively, "Events of Default;" any one singly, an "Event of Default"):
(a) If a default shall occur with respect to covenants, agreements and
obligations of Mortgagor under this Mortgage involving the payment of money
(other than a default in the payment of principal when due as provided in
Section 7.1 of the Term Loan Agreement) and shall continue for a period of
five (5) business days after the due date thereof; or
(b) If there is a failure to perform or observe any of the other
covenants, agreements and conditions contained in this Mortgage in
accordance with the terms hereof, and such default continues unremedied for
a period of thirty (30) days after written notice from Mortgagee to
defaulting Mortgagor of the occurrence thereof; or
(c) An "Event of Default" occurs under the Term Loan Agreement or any
other Loan Document.
6.3 Remedies. At any time after an Event of Default, Mortgagee shall be
entitled to invoke any and all of the rights and remedies described below, in
addition to all other rights and remedies available to Mortgagee at law or in
equity. All of such rights and remedies shall be cumulative, and the exercise of
any one or more of them shall not constitute an election of remedies.
(a) Acceleration. Upon the occurrence and continuation of any Event of
Default the whole of the principal sum hereby secured shall, at once either
automatically or at the option of Mortgagee as described in Section 8.1 of
the Term Loan Agreement, become immediately due and payable, together with
accrued interest thereon, without any presentment, demand, protest or
notice of any kind to Mortgagor.
(b) Receiver. Mortgagee shall, as a matter of right, without notice
and without giving bond to Mortgagor or anyone claiming by, under or
through Mortgagor, and without regard for the solvency or insolvency of
Mortgagor or the then value of the Property, to the extent permitted by
applicable law, be entitled to have a receiver appointed for all or any
part of the Property and the Rents, and the proceeds, issues and profits
thereof, with the rights and powers referenced below and such other rights
and powers as the court making such appointment shall confer, and Mortgagor
hereby consents to the appointment of such receiver and shall not oppose
any such appointment. Such receiver shall have all powers and duties
prescribed by applicable law, all other powers which are necessary or usual
in such cases for the protection, possession, control, management and
operation of the Property, and such rights and powers as Mortgagee would
have, upon entering and taking possession of the Property under subsection
(c) below.
(c) Entry. Mortgagee, in person, by agent or by court-appointed
receiver, may enter, take possession of, manage and operate all or any part
of the Property, and may also do any and all other things in connection
with those actions that Mortgagee may in its sole discretion consider
necessary and appropriate to protect the security of this Mortgage. Such
other things
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may include: taking and possessing all of Mortgagor's or the then owner's
Books and Records; entering into, enforcing, modifying or canceling leases
on such terms and conditions as Mortgagee may consider proper; obtaining
and evicting tenants; fixing or modifying Rents; collecting and receiving
any payment of money owing to Mortgagee; completing any unfinished
construction; and/or contracting for and making repairs and alterations. If
Mortgagee so requests, Mortgagor shall assemble all of the Property that
has been removed from the Premises and make all of it available to
Mortgagee at the site of the Premises. Mortgagor hereby irrevocably
constitutes and appoints Mortgagee as Mortgagor's attorney-in-fact to
perform such acts and execute such documents as Mortgagee in its sole
discretion may consider to be appropriate in connection with taking these
measures, including endorsement of Mortgagor's name on any instruments.
(d) Cure; Protection of Security. Mortgagee may cure any breach or
default of Mortgagor, and if it chooses to do so in connection with any
such cure, Mortgagee may also enter the Property and/or do any and all
other things which it may in its sole discretion consider necessary and
appropriate to protect the security of this Mortgage, including, without
limitation, completing construction of the improvements at the Property
contemplated by the Term Loan Agreement. Such other things may include:
appearing in and/or defending any action or proceeding which purports to
affect the security of, or the rights or powers of Mortgagee under, this
Mortgage; paying, purchasing, contesting or compromising any encumbrance,
charge, lien or claim of lien which in Mortgagee's sole judgment is or may
be senior in priority to this Mortgage, such judgment of Mortgagee or to be
conclusive as among the parties to this Mortgage; obtaining insurance
and/or paying any premiums or charges for insurance required to be carried
under the Term Loan Agreement; otherwise caring for and protecting any and
all of the Property; and/or employing counsel, accountants, contractors and
other appropriate persons to assist Mortgagee. Mortgagee may take any of
the actions permitted under this Subsection 6.3(d) either with or without
giving notice to any person. Any amounts expended by Mortgagee under this
Subsection 6.3(d) shall be secured by this Mortgage.
(e) Uniform Commercial Code Remedies. Mortgagee may exercise any or
all of the remedies granted to a secured party under the Uniform Commercial
Code in the State in which the Property is located.
(f) Foreclosure; Lawsuits. Mortgagee shall have the right, in one or
several concurrent or consecutive proceedings, to foreclose the lien hereof
upon the Property or any part thereof, for the Secured Obligations, or any
part thereof, by any proceedings appropriate under applicable law.
Mortgagee or its nominee may bid and become the purchaser of all or any
part of the Property at any foreclosure or other sale hereunder, and the
amount of Mortgagee's successful bid shall be credited on the Secured
Obligations. Without limiting the foregoing, Mortgagee may proceed by a
suit or suits in law or equity, whether for specific performance of any
covenant or agreement herein contained or in aid of the execution of any
power herein granted, or for any foreclosure under the judgment or decree
of any court of competent jurisdiction. In addition to the right provided
in Subsection 6.3(a), upon, or at any time after the filing of a complaint
to foreclose this Mortgage, Mortgagee shall be entitled to the appointment
of a receiver of the property by the court in which such complaint is
filed, and Mortgagor hereby consents to such appointment.
(g) Other Remedies. Mortgagee may exercise all rights and remedies
contained in any other instrument, document, agreement or other writing
heretofore, concurrently or in the future executed by Mortgagor or any
other person or entity in favor of Mortgagee in connection with the Secured
Obligations or any part thereof, without prejudice to the right of
Mortgagee
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thereafter to enforce any appropriate remedy against Mortgagor. Mortgagee
shall have the right to pursue all remedies afforded to a mortgagee under
applicable law, and shall have the benefit of all of the provisions of such
applicable law, including all amendments thereto which may become effective
from time to time after the date hereof.
(h) Sale of Personal Property. Mortgagee shall have the discretionary
right to cause some or all of the Property, which constitutes personal
property, to be sold or otherwise disposed of in any combination and in any
manner permitted by applicable law.
(i) For purposes of this power of sale, Mortgagee may elect to
treat as personal property any Property which is intangible or which
can be severed from the Premises or Improvements without causing
structural damage. If it chooses to do so, Mortgagee may dispose of
any personal property, in any manner permitted by Article 9 of the
Uniform Commercial Code of the State in which the Property is located,
including any public or private sale, or in any manner permitted by
any other applicable law.
(ii) In connection with any sale or other disposition of such
Property, Mortgagor agrees that the following procedures constitute a
commercially reasonable sale: Mortgagee shall mail written notice of
the sale to Mortgagor not later than thirty (30) days prior to such
sale. Mortgagee will publish notice of the sale in a local daily
newspaper of general circulation. Upon receipt of any written request,
Mortgagee will make the Property available to any bona fide
prospective purchaser for inspection during reasonable business hours.
Notwithstanding, Mortgagee shall be under no obligation to consummate
a sale if, in its judgment, none of the offers received by it equals
the fair value of the Property offered for sale. The foregoing
procedures do not constitute the only procedures that may be
commercially reasonable.
(i) Single or Multiple Foreclosure Sales. If the Property consists of
more than one lot, parcel or item of property, Mortgagee may:
(i) Designate the order in which the lots, parcels and/or items
shall be sold or disposed of or offered for sale or disposition; and
(ii) Elect to dispose of the lots, parcels and/or items through a
single consolidated sale or disposition to be held or made under or in
connection with judicial proceedings, or by virtue of a judgment and
decree of foreclosure and sale; or through two or more such sales or
dispositions; or in any other manner Mortgagee may deem to be in its
best interests (any such sale or disposition, a "Foreclosure Sale;"
and any two or more, "Foreclosure Sales").
If Mortgagee chooses to have more than one Foreclosure Sale, Mortgagee
at its option may cause the Foreclosure Sales to be held
simultaneously or successively, on the same day, or on such different
days and at such different times and in such order as Mortgagee may
deem to be in its best interests. No Foreclosure Sale shall terminate
or affect the liens of this Mortgage on any part of the Property which
has not been sold, until all of the Secured Obligations have been paid
in full.
6.4 Credit Bids. At any Foreclosure Sale, any person, including Mortgagor
or Mortgagee, may bid for and acquire the Property or any part of it to the
extent permitted by then applicable law. Instead of paying cash for such
property, Mortgagee may settle for the purchase price by crediting the sales
price of the property against the following obligations:
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(a) First, the portion of the Secured Obligations attributable to the
expenses of sale, costs of any action and any other sums for which
Mortgagor is obligated to pay or reimburse Mortgagee under Section 5.10 of
this Mortgage; and
(b) Second, all other Secured Obligations in any order and proportions
as Mortgagee in its sole discretion may choose.
6.5 Application of Foreclosure Sale Proceeds. Mortgagee shall apply the
proceeds of any Foreclosure Sale in the following manner:
(a) First, to pay the portion of the Secured Obligations attributable
to the expenses of sale, costs of any action and any other sums for which
Mortgagor is obligated to reimburse Mortgagee under Section 5.10 of this
Mortgage;
(b) Second, to pay the portion of the Secured Obligations attributable
to any sums expended or advanced by Mortgagee under the terms of this
Mortgage which then remain unpaid;
(c) Third, to pay all other Secured Obligations in any order and
proportions as Mortgagee in its sole discretion may choose; and
(d) Fourth, to remit the remainder, if any, to the person or persons
entitled to it.
6.6 Application of Rents and Other Sums. Mortgagee shall apply any and all
Rents collected by it, and any and all sums other than proceeds of a Foreclosure
Sale which Mortgagee may receive or collect under Section 6.3 above, in the
following manner:
(a) First, to pay the portion of the Secured Obligations attributable
to the costs and expenses of operation and collection that may be incurred
by Mortgagee or any receiver;
(b) Second, to pay all other Secured Obligations in any order and
proportions as Mortgagee in its sole discretion may choose; and
(c) Third, to remit the remainder, if any, to the person or persons
entitled to it.
Mortgagee shall have no liability for any funds which it does not actually
receive.
7. Miscellaneous Provisions.
-------------------------
7.1 Additional Provisions. The Loan Documents fully state all of the terms
and conditions of the parties' agreement regarding the matters mentioned in or
incidental to this Mortgage. The Loan Documents also grant further rights to
Mortgagee and contain further agreements and affirmative and negative covenants
by Mortgagor which apply to this Mortgage and to the Property.
7.2 No Waiver or Cure.
(a) Each waiver by Mortgagee must be in writing, and no waiver shall
be construed as a continuing waiver. No waiver shall be implied from any
delay or failure by Mortgagee to take action on account of any default of
Mortgagor. Consent by Mortgagee to any act or omission by Mortgagor shall
not be construed as a consent to any other or subsequent act or omission or
to waive the requirement for Mortgagee's consent to be obtained in any
future or other instance.
-15-
(b) If any of the events described below occurs, that event alone
shall not: cure or waive any breach, Event of Default or notice of default
under this Mortgage or invalidate any act performed pursuant to any such
default or notice; or nullify the effect of any notice of default or sale
(unless all Secured Obligations then due have been paid and performed and
all other defaults under the Loan Documents have been cured); or impair the
security of this Mortgage; or prejudice Mortgagee or any receiver in the
exercise of any right or remedy afforded any of them under this Mortgage;
or be construed as an affirmation by Mortgagee of any tenancy, lease or
option, or a subordination of the lien of this Mortgage.
(i) Mortgagee, its agent or a receiver takes possession of all or
any part of the Property in the manner provided in Subsection 6.3(c).
(ii) Mortgagee collects and applies Rents as permitted under
Sections 2.3 and 6.6 above, either with or without taking possession
of all or any part of the Property.
(iii) Mortgagee receives and applies to any Secured Obligation
any proceeds of any Property, including any proceeds of insurance
policies, condemnation awards, or other claims, property or rights
assigned to Mortgagee under Section 5.5 and Section 5.6 above.
(iv) Mortgagee makes a site visit, observes the Property and/or
conducts tests as permitted under Section 5.13 above.
(v) Mortgagee receives any sums under this Mortgage or any
proceeds of any collateral held for any of the Secured Obligations,
and applies them to one or more Secured Obligations.
(vi) Mortgagee or any receiver invokes any right or remedy
provided under this Mortgage.
7.3 Powers of Mortgagee.
(a) If Mortgagee performs any act which it is empowered or authorized
to perform under this Mortgage, including any act permitted by Section 5.8
or Subsection 6.3(d) of this Mortgage, that act alone shall not release or
change the personal liability of any person for the payment and performance
of the Secured Obligations then outstanding, or the lien of this Mortgage
on all or the remainder of the Property for full payment and performance of
all outstanding Secured Obligations. The liability of the original
Mortgagor shall not be released or changed if Mortgagee grants any
successor in interest to Mortgagor any extension of time for payment, or
modification of the terms of payment, of any Secured Obligation. Mortgagee
shall not be required to comply with any demand by the original Mortgagor
that Mortgagee refuse to grant such an extension or modification to, or
commence proceedings against, any such successor in interest.
(b) Mortgagee may take any of the actions permitted under Subsections
6.3(b) and/or 6.3(c) regardless of the adequacy of the security for the
Secured Obligations, or whether any or all of the Secured Obligations have
been declared to be immediately due and payable, or whether notice of
default and election to sell has been given under this Mortgage.
(c) From time to time, Mortgagee may apply to any court of competent
jurisdiction for aid and direction in executing and enforcing the rights
and remedies created under this
-16-
Mortgage. Mortgagee may from time to time obtain orders or decrees
directing, confirming or approving acts in executing and enforcing these
rights and remedies.
7.4 Merger. No merger shall occur as a result of Mortgagee's acquiring any
other estate in or any other lien on the Property unless Mortgagee consents to a
merger in writing.
7.5 Joint and Several Liability. If Mortgagor consists of more than one
person, each shall be jointly and severally liable for the faithful performance
of all of Mortgagor's obligations under this Mortgage.
7.6 Applicable Law. The creation, perfection and enforcement of the lien of
this Mortgage shall be governed by the law of the State in which the property is
located. Subject to the foregoing, in all other respects, this Mortgage shall be
governed by the substantive laws of the State of Alabama.
7.7 Successors in Interest. The terms, covenants and conditions of this
Mortgage shall be binding upon and inure to the benefit of the heirs, successors
and assigns of the parties. However, this Section 7.7 does not waive the
provisions of Section 6.1 above.
7.8 Interpretation.
(a) Whenever the context requires, all words used in the singular will
be construed to have been used in the plural, and vice versa, and each
gender will include any other gender. The captions of the sections of this
Mortgage are for convenience only and do not define or limit any terms or
provisions. The word "include(s)" means "include(s), without limitation,"
and the word "including" means "including, but not limited to."
(b) The word "obligations" is used in its broadest and most
comprehensive sense, and includes all primary, secondary, direct, indirect,
fixed and contingent obligations. It further includes all principal,
interest, prepayment charges, late charges, loan fees and any other fees
and charges accruing or assessed at any time, as well as all obligations to
perform acts or satisfy conditions.
(c) No listing of specific instances, items or matters in any way
limits the scope or generality of any language of this Mortgage. The
Exhibits to this Mortgage are hereby incorporated in this Mortgage.
7.9 In-House Counsel Fees. Whenever Mortgagor is obligated to pay or
reimburse Mortgagee for any attorneys' fees, those fees shall include the
reasonable and customary allocated costs for services of in-house counsel.
7.10 Waiver of Statutory Rights. To the extent permitted by law, Mortgagor
hereby agrees that it shall not and will not apply for or avail itself of any
appraisement, valuation, stay, extension or exemption laws, or any so-called
"Moratorium Laws," now existing or hereafter enacted, in order to prevent or
hinder the enforcement or foreclosure of this Mortgage, but hereby waives the
benefit of such laws. Mortgagor for itself and all who may claim through or
under it waives any and all right to have the property and estates comprising
the Property marshalled upon any foreclosure of the lien hereof and agrees that
any court having jurisdiction to foreclose such lien may order the Property sold
as an entirety. Mortgagor hereby waives any and all rights of redemption from
sale under any judgment of foreclosure of this Mortgage on behalf of Mortgagor
and on behalf of each and every person acquiring any interest in or title to the
Property of any nature whatsoever, subsequent to the date of this Mortgage. The
foregoing waiver of right of redemption is made pursuant to the provisions of
applicable law.
-17-
7.11 Severability. If any provision of this Mortgage should be held
unenforceable or void, that provision shall be deemed severable from the
remaining provisions and shall in no way affect the validity of this Mortgage
except that if such provision relates to the payment of any monetary sum, then
Mortgagee may, at its option, declare all Secured Obligations immediately due
and payable.
7.12 Notices. Any notice, demand, request or other communication which any
party hereto may be required or may desire to give hereunder shall be in writing
and shall be deemed to have been properly given (a) if hand delivered, when
delivered; (b) if mailed by United States Certified Mail (postage prepaid,
return receipt requested), three Business Days after mailing (c) if by Federal
Express or other reliable overnight courier service, on the next Business Day
after delivered to such courier service or (d) if by telecopier on the day of
transmission so long as copy is sent on the same day by overnight courier as set
forth below:
Mortgagor: Xxxxxxxxxx Mall Associates Limited Partnership
c/o Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Mortgagee: KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Commercial Real Estate Department
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
8000 Sears Tower
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone 000-000-0000
Facsimile 000-000-0000
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
Any notice or demand delivered to the person or entity named above to
accept notices and demands for Mortgagor shall constitute notice or demand duly
delivered to Mortgagor, even if delivery is refused.
7.13 Mortgagee's Lien for Service Charge and Expenses. At all times,
regardless of whether any Loan proceeds have been disbursed, this Mortgage
secures the payment of any and all loan commissions, service charges, liquidated
damages, expenses and advances due to or incurred by Mortgagee not to exceed the
maximum amount secured hereby. For purposes hereof, all obligations of Mortgagor
to Mortgagee under all Rate Management Transactions and any indebtedness or
obligation
-18-
contained therein or evidenced thereby shall be considered an obligation of
Mortgagor secured hereby pursuant to the Term Loan Agreement; provided however
that in no event shall the total amount secured hereby exceed $44,000,000.
7.14 WAIVER OF TRIAL BY JURY. MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS MORTGAGE, THE NOTE, OR ANY
OF THE OTHER LOAN DOCUMENTS, THE LOAN OR ANY OTHER STATEMENTS OR ACTIONS OF
MORTGAGOR OR MORTGAGEE. MORTGAGOR ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN
THE SIGNING OF THIS MORTGAGE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT
LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS
WAIVER WITH SUCH LEGAL COUNSEL. MORTGAGOR FURTHER ACKNOWLEDGES THAT (I) IT HAS
READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (II) THIS
WAIVER IS A MATERIAL INDUCEMENT FOR MORTGAGEE TO MAKE THE LOAN, ENTER INTO THIS
MORTGAGE AND EACH OF THE OTHER LOAN DOCUMENTS, AND (III) THIS WAIVER SHALL BE
EFFECTIVE AS TO EACH OF SUCH OTHER LOAN DOCUMENTS AS IF FULLY INCORPORATED
THEREIN.
7.15 Incorporation of Term Loan Agreement and Environmental Indemnity
Agreement. The terms and provisions of the Term Loan Agreement and that certain
Environmental Indemnity Agreement (the "Indemnity") dated as of even date
herewith, are incorporated herein by express reference. All advances and
indebtedness arising and accruing under the Term Loan Agreement from time to
time, whether or not the resulting indebtedness secured hereby may exceed the
face amount of the Notes, shall be secured hereby to the same extent as though
said Term Loan Agreement were fully incorporated in this Mortgage, and the
occurrence of any Event of Default under said Term Loan Agreement shall
constitute a Event of Default under this Mortgage entitling Mortgagee to all of
the rights and remedies conferred upon Mortgagee by the terms of both this
Mortgage and the Term Loan Agreement. Mortgagor hereby agrees to comply with all
covenants and fulfill all obligations set forth in the Term Loan Agreement and
Indemnity which pertain to the Premises as if Mortgagor were a party to such
documents.
7.16 Inconsistencies. In the event of any inconsistency between this
Mortgage and the Term Loan Agreement, the terms hereof shall be controlling as
necessary to create, preserve and/or maintain a valid security interest upon the
Property, otherwise the provisions of the Term Loan Agreement shall be
controlling.
7.17 Partial Invalidity; Maximum Allowable Rate of Interest. Mortgagor and
Mortgagee intend and believe that each provision in this Mortgage and the Notes
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Mortgage or the Notes is found by a court of
law to be in violation of any applicable local, state or federal ordinance,
statute, law, administrative or judicial decision, or public policy, and if such
court should declare such portion, provision or provisions of this Mortgage and
the Notes to be illegal, invalid, unlawful, void or unenforceable as written,
then it is the intent both of Mortgagor and Mortgagee that such portion,
provision or provisions shall be given force to the fullest possible extent that
they are legal, valid and enforceable, that the remainder of this Mortgage and
the Notes shall be construed as if such illegal, invalid, unlawful, void or
unenforceable portion, provision or provisions were not contained therein, and
that the rights, obligations and interest of Mortgagor and Mortgagee under the
remainder of this Mortgage and the Notes shall continue in full force and
effect. All agreements herein and in the Notes are expressly limited so that in
no contingency or event whatsoever, whether by reason of advancement of the
proceeds hereof, acceleration of maturity of the unpaid principal balance of the
Notes, or otherwise, shall the amount paid or agreed to be paid to the Holders
for the use, forbearance or detention of the money to be advanced hereunder
exceed the highest lawful rate permissible under applicable usury laws. If, from
any circumstances whatsoever, fulfillment
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of any provision hereof or of the Notes or any other agreement referred to
herein, at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law which a court of competent
jurisdiction may deem applicable hereto, then, ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity and if from any
circumstance the Holders shall ever receive as interest an amount which would
exceed the highest lawful rate, such amount which would be excessive interest
shall be applied to the reduction of the unpaid principal balance due under the
Notes and not to the payment of interest.
7.18 UCC Financing Statements. Mortgagor hereby authorizes Mortgagee to
file UCC financing statements to perfect Mortgagee's security interest in any
part of the Property. In addition, Mortgagor agrees to sign any and all other
documents that Mortgagee deems necessary in its sole discretion to perfect,
protect, and continue Mortgagee's lien and security interest on the Property.
7.19 Additional Remedies - Power of Sale. In addition to the remedies set
forth in Section 6.3, upon the occurrence and during the continuance of any
Event of Default, Lender may sell the Property at public outcry to the highest
bidder for cash in front of the courthouse door in the county where said
Property is located, either in person or by auctioneer or other personal
representative, after having given notice of the time, place and terms of the
sale by publication once a week for three (3) consecutive weeks prior to said
sale in some newspaper published in said county, and upon payment of the
purchase money, Lender, its agent or any person conducting the sale for Lender,
is authorized to execute to the purchaser at said sale a deed to the Property so
purchased. Lender, is successor and assigns, may bid at said sale and purchase
said Property, or any part thereof, if the highest bidder therefor. Proceeds of
the sale shall be applied as provided in the Mortgage. The purchaser at any such
sale shall be under no obligation to see to the proper application of the
purchase money.
7.20 Maturity Date. The Note presently matures on August 1, 2028, subject
to Lender's right to require repayment on various earlier dates as provided in
the Term Loan Agreement.
[Signatures to Follow in Separate Page]
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IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date
first above written.
XXXXXXXXXX MALL ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Xxxxxxxxxx, Inc., a Delaware
corporation, its sole general partner
By:
---------------------------------------
Print Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
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ACKNOWLEDGEMENT
STATE OF ____________ )
) SS:
COUNTY OF __________ )
I, ___________________________________, a Notary Public in and for said
county in said state, hereby certify that Xxxxxx X. Xxxxxxx, whose name as
Executive Vice President of Glimcher Xxxxxxxxxx, Inc., a Delaware corporation,
acting in its capacity as the sole general partner of Xxxxxxxxxx Mall Associates
Limited Partnership, a Delaware limited partnership, is signed to the foregoing
instrument and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer of said
corporation, acting in its capacity as the general partner of said limited
partnership, and with full authority, executed the same voluntarily for and as
the act of said corporation acting in its capacity as such general partners of
said limited partnership.
Given under my hand this ___ day of _________________, 2005.
______________________________________
Notary Public
My Commission Expires: ____________________
-22-
EXHIBIT A
Description of Premises
PARCEL I - Fee Simple:
----------------------
Lot C according to the plat of Montgomery Mall Plat No. 2 as said plat appears
of record in the Office of the Judge of Probate of Xxxxxxxxxx County, Alabama,
in Plat Book 36 at Page 221, being more particularly described as follows:
Commence at an iron pin located at the Southwest Corner of the SW 1/4 of the XX
0/0 xx Xxxxxxx 00, X00X, X00X, Xxxxxxxxxx Xxxxxx, Xxxxxxx; thence South
00(degree)04' 07" East 347.48 feet to an iron pin and point of beginning for the
herein described parcel of land; thence North 88(degree) 51' 07" West 9.07 feet
to an iron pin located in a curve on the East Rights-of-Way (60.0 feet) of
Governor's Drive; thence Northwesterly along said curve (Chord bearing North
23(degree) 12' 02" West, Chord distance 149.75 feet, radius 236.84 feet) to an
iron pin and end of curve; thence continue along said East Rights-of-Way North
41(degree) 37' 45" West 189.79 feet to an iron pin and beginning of a curve;
thence Northwesterly along said curve (Chord bearing North 20(degree) 30' 52"
West, Chord distance of 74.75 feet radius 104.04 feet) to an iron pin and end of
curve; thence continue along said Rights-of -Way North 00(degree) 35' 45" East
239.37 feet to an iron pin; thence leaving said Rights-of-Way South 88(degree)
18' 51" East 156.32 feet to an iron pin; thence South 41(degree) 29' 19" East
393.95 feet to a nail in concrete; thence North 48(degree) 28' 10" East 315.00
feet to a cotton spindle; thence North 41(degree) 29' 19" West 277.19 feet to a
cotton spindle; thence South 48(degree) 30' 41" West 8.00 feet to a cotton
spindle; thence North 41(degree) 29' 19" West 193.54 feet to an iron pin; thence
North 00(degree) 20' 00" East 209.37 feet to an iron pin; thence North
89(degree) 42' 25" West 3.00 feet to an iron pin; thence North 00(degree) 20'
00" East 160.00 feet to an iron pin; thence North 29(degree) 08' 15" East 102.40
feet to a cotton spindle located on the West Rights-of-Way of XxXxxxx Road;
thence along said West Rights-of-Way South 42(degree) 40' 36" East 2135.97 feet
to a xxxx on a concrete curb; thence leaving said Rights-of-Way South 47(degree)
26' 13" West 97.00 feet to a concrete monument; thence South 42(degree) 44' 32"
East 142.15 feet to an iron pin; thence South 41(degree) 17' 28" West 448.06
feet to an iron pin located on the North Rights-of-Way of the South Boulevard;
thence along said North Rights-of-Way North 89(degree) 03' 02" West 768.80 feet
to a railroad spike; thence continue along said North Rights-of-Way South
86(degree) 03' 58" West 575.31 feet to an iron pin; thence leaving said North
Rights-of-Way North 00(degree) 04' 07" West 799.39 feet to the point of
beginning. Containing 47.29 acres, more or less and lying in and being a part of
the Southwest 1/4 of the Southeast 1/4 and the Southeast 1/4 of the Southwest
1/4, all in Section 27 and the North 1/2 of the Northeast 1/4 and the Northeast
1/4 of the Northwest 1/4 Section 34, all in T16N, R18E, Xxxxxxxxxx County,
Alabama.
PARCEL II - Easements:
----------------------
TOGETHER WITH those rights and easements constituting rights in real property
created, defined and limited by that certain Construction, Operating and
Reciprocal Easement Agreement (XXXXX) for Montgomery Mall by and between
Parisians, Inc., an Alabama corporation and Central Alabama Mall Associates,
Ltd., an Alabama limited partnership, dated October 15, 1988 and recorded
October 5, 1988 in Real Property Book 982, Page 440, in the Office of the Judge
of Probate of Xxxxxxxxxx County, Alabama.
PARCEL III - Easements:
-----------------------
TOGETHER WITH those rights and easements constituting rights in real property
created, defined and limited by that certain Easement Agreement by and between
Montgomery Outlot, LLC, a Delaware limited liability company, and Xxxxxxxxxx
Mall Associates Limited Partnership, a Delaware limited partnership, dated July
16, 1998 and recorded August 3, 1998 in Real Property Book 1889 at Page 542, in
the Office of the Judge of Probate of Xxxxxxxxxx County, Alabama.
