Exhibit 10.177
REAL ESTATE MORTGAGE, ASSIGNMENT OF RENTS
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SECURITY AGREEMENT AND FIXTURE FILING
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(SECURING VARIABLE RATE MORTGAGE NOTE)
KNOW ALL MEN BY THESE PRESENTS: That Glimcher Properties Limited
Partnership, a Delaware limited partnership, with offices at 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000 ("Mortgagor"), in consideration of the payments to
Mortgagor which BANK ONE, NA, a national banking association, having an office
and place of business at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000-0000
("Mortgagee"), has made contemporaneously herewith or may hereafter make, does
hereby does hereby MORTGAGE AND WARRANT unto Mortgagee, its successors and
assigns forever, certain real property situated in the State of Indiana, County
of Xxxxxx and in the City of Martinsville and being more fully described on
Exhibit "A" attached hereto and made a part hereof ("Land").
TOGETHER WITH the following, whether now owned or hereafter acquired by
Mortgagor: (a) all improvements now or hereafter attached to or placed, erected,
constructed or developed on the Land ("Improvements"); (b) all fixtures now or
hereafter attached to or used in or about the Improvements and all renewals of
or replacements or substitutions thereof; (c) all water and water rights,
timber, crops, and mineral interests pertaining to the Land; (d) all right,
title and interest of Mortgagor in and to all streets, roads, public places,
easements and rights-of-way, existing or proposed, public or private, adjacent
to or used in connection with, belonging or pertaining to the Land; (e) all
rights, hereditaments and appurtenances pertaining to the foregoing; (f) other
interests of every kind and character that Mortgagor now has or at any time
hereafter acquires in and to the Land, Improvements, and other property
described in items (b) through (e) hereinabove, including rights of ingress and
egress and all reversionary rights or interests of Mortgagor with respect to
such property; (g) all equipment, fixtures, furnishings, inventory, and articles
of personal property ("Personal Property") now or hereafter attached to or used
in or about the Improvements or that are owned by Mortgagor and are necessary or
useful for the complete and comfortable use and occupancy of the Improvements
for the purposes for which they were to be attached, placed, erected,
constructed or developed, or which Personal Property is or may be used in or
related to the planning, development, financing or operation of the
Improvements, and all renewals of or replacements or substitutions for any of
the foregoing, whether or not the same are or shall be attached to the Land or
Improvements; (h) all building materials and equipment now or hereafter
delivered to and intended to be installed in or on the Land or the Improvements;
(i) all plans and specifications for the Improvements; (j) all contracts
relating to the Land, the Improvements or the Personal Property; (k) all
deposits (including, without limitation, tenants' security deposits), bank
accounts, funds, documents, contract rights, accounts, accounts receivable,
commitments, construction contracts, architectural agreements, general
intangibles (including, without limitation, trademarks, trade names and
symbols), tax credits, instruments, Note and chattel paper arising from or by
virtue of any transactions related to the Land, the Improvements or the Personal
Property or relating directly or indirectly to the ownership, occupancy, use,
operation, and maintenance of the Land, Personal Property, and Improvements; (l)
all permits, licenses, franchises, certificates, and other rights and privileges
obtained in connection with the Land, the Improvements or the Personal Property;
(m) all proceeds arising from or by virtue of the sale, lease or other
disposition of the Land, the Improvements, the Personal Property or any portion
thereof or interest therein; (n) all proceeds (including, without limitation,
premium refunds) of each policy of insurance relating to the Land, the
Improvements or the Personal Property; (o) all proceeds from the taking of any
of the Land, the Improvements, the Personal Property or any rights appurtenant
thereto by right of eminent domain or by private or other purchase in lieu
thereof (including, without limitation, change of grade of streets, curb cuts or
other rights of access), for any public or quasi public use under any law; (p)
all of the leases, rents, royalties, bonuses, income, receipts, issues, profits,
revenues or other benefits of the Land, the Improvements or the Personal
Property, including, without limitation, cash or securities deposited pursuant
to leases to secure performance by the lessees of their obligations thereunder;
(q) all consumer goods located in, on or about the Land or the Improvements or
used in connection with the use or operation thereof which are owned by
Mortgagor; and (r) other interests of every kind and character that Mortgagor
now has or at any time hereafter acquires in and to the Land, Improvements, and
Personal Property described herein and all property that is used or useful in
connection therewith, including rights of ingress and egress and all
reversionary rights or interests of Mortgagor with respect to such property. The
above described property is collectively referred to herein as the "Mortgaged
Property."
TO HAVE AND TO HOLD the Mortgaged Property, together with the rights,
privileges and appurtenances thereto belonging, unto Mortgagee and its
successors and assigns forever, and Mortgagor hereby binds itself and its
representatives, successors and assigns to warrant and forever defend the
Mortgaged Property unto Mortgagee and its successors and assigns, against the
claim or claims of all persons claiming or to claim the same or any part
thereof, subject to the matters described in Schedule B of Mortgagee's title
insurance policy ("Permitted Matters").
THIS MORTGAGE IS GIVEN TO SECURE: (a) Payment of all unpaid loan
indebtedness ("Indebtedness") heretofore and hereafter created and evidenced by
a certain promissory note, of even date herewith, made and delivered by
Mortgagor to Mortgagee, in the principal amount of Five Million Dollars
($5,000,000.00), payable not later than March 1, 2005, unless extended by its
terms to March 1, 2006, and any and all renewals, amendments, modifications,
increases, reductions and extensions thereof (hereinafter referred to
collectively as the "Note"); and (b) performance of each and every one of the
covenants, conditions and agreements contained in this Mortgage, the Note, and
any other loan agreement, instrument, affidavit, certificate, guaranty or
document heretofore, now or hereafter given in connection with the closing of
the loan evidenced by the Note (hereinafter collectively referred to as the
"Loan Documents").
In addition to any other debt or obligation secured hereby, this
Mortgage shall also secure unpaid balances of advances heretofore and hereafter
made with respect to the Mortgaged Property, for the payment of taxes,
assessments, insurance premiums or costs incurred for the protection of the
Mortgaged Property.
Mortgagor, for itself and its successors and assigns, hereby covenants
with Mortgagee, its successors and assigns, that:
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1. Warranties of Title. Mortgagor holds good and marketable title in fee simple
to the Land and Improvements, and the same are free and clear from all
conditions, restrictions, easements, liens and encumbrances whatsoever except
property taxes not yet due and payable and the Permitted Matters, and Mortgagor
will forever warrant and defend the same with the appurtenances above mentioned,
unto Mortgagee, its successors and assigns, against the lawful claims of all
persons whomsoever, except as noted above. The Mortgaged Property constitutes
the entirety of one or more complete tax parcels. Mortgagor has good and
marketable title to the Personal Property, free and clear of any liens, charges,
encumbrances, security interests and adverse claims whatsoever. If the interest
of Mortgagee in the Mortgaged Property or any part thereof shall be endangered
or shall be attacked, directly or indirectly, Mortgagor hereby authorizes
Mortgagee, at Mortgagor's expense, to take all necessary and proper steps for
the defense of such interest, including the employment of counsel, the
prosecution or defense of litigation, and the compromise or discharge of claims
made against such interest. Any sums so expended by Mortgagee shall be charged
against Mortgagor and collectible in accordance with the terms of Section 14
hereof.
2. Payments. Mortgagor will promptly pay the principal evidenced by the Note and
any other indebtedness that may accrue to Mortgagee under the terms of this
Mortgage, together with the interest and late charges on all of said
indebtedness as the same shall become due and payable. Mortgagee may apply and
allocate partial payments as to principal, interest, late charges and other
charges as Mortgagee, in its sole discretion, may elect.
3. Taxes and Assessments. Mortgagor will promptly pay before delinquency, all
taxes, assessments, charges, fines or impositions, general, local or special
(hereinafter collectively referred to as "Impositions"), levied upon the
Mortgaged Property, or any part thereof, or upon this Mortgage or the
Indebtedness, by any duly or legally constituted public authority, municipality,
township, county, state or the United States, and, upon Mortgagee's request,
exhibit the evidence of the payment thereof to Mortgagee within fifteen (15)
days thereafter; provided that Mortgagor, at Mortgagor's own cost and expense
may, if it shall in good faith so desire, contest the validity or amount of any
Impositions, in which event Mortgagor may defer the payment thereof for such
period as such contest shall be actively prosecuted and shall be pending
undetermined; provided further, however, that Mortgagor shall not allow any such
Impositions so contested to remain unpaid for such length of time as shall
permit all or any portion of the Mortgaged Property, or the lien thereon created
by such item to be contested, to be sold by federal, state, county or municipal
authority for the nonpayment thereof, and that pending any such contest
Mortgagor shall furnish to Mortgagee an indemnity bond secured by a deposit in
cash or other security acceptable to Mortgagee, in the amount of the tax or
assessment being contested by Mortgagor plus a reasonable additional sum to pay
all costs, interest and penalties which may be imposed or incurred in connection
therewith.
4. Repair. Mortgagor will keep all Improvements now or hereafter erected on the
Land in good condition and repair; all Improvements hereafter erected shall have
been erected substantially in accordance with the plans and specifications
therefor, which shall be subject to Mortgagee's prior approval, and Mortgagor
shall comply with the laws, ordinances, regulations
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and requirements of any governmental body applicable to the Mortgaged Property
the failure to comply with which would have a material adverse effect on the
Mortgaged Property both during the construction of any Improvements on the Land
and subsequent to the completion thereof.
5. Waste; Liens; Minerals. Mortgagor will neither commit nor permit any waste on
the Land, nor use nor permit the use thereof or the Improvements for any illegal
purpose, nor cause nor permit the same to become subject to any superior or
inferior lien or encumbrance, except as expressly permitted herein. Without the
prior written consent of Mortgagee, there shall be no drilling or exploring for,
or extraction, removal, or production of minerals from the surface or subsurface
of the Land. The term "minerals" as used herein shall include, without
limitation, oil, gas, casinghead gas, coal, lignite, hydrocarbons, methane,
carbon dioxide, helium, uranium and all other natural elements, compounds and
substances, including sand and gravel.
6. Alterations. Mortgagor shall not remove, demolish or alter any of the
Improvements now existing or hereafter constructed on the Land or any of the
Personal Property in or on the Land or Improvements except when incident to the
replacement of any of the items of Personal Property with items of like kind and
value.
7. Status Quo. Except as otherwise expressly permitted herein, Mortgagor will
not sell (by land contract or otherwise), assign, mortgage, lease or otherwise
convey the Mortgaged Property, or any part thereof or interest therein, legal or
equitable, or subdivide or resubdivide or submit to the condominium form of
ownership the same without the written consent of Mortgagee, which consent may
be withheld in Mortgagee's sole discretion. Unless Mortgagee otherwise agrees in
writing, Mortgagor shall not allow changes in the nature of the occupancy for
which the Land and Improvements were intended at the time this Mortgage was
executed, and Mortgagor shall not initiate nor acquiesce in any change in the
zoning classification of the Land or any part thereof without Mortgagee's prior
written consent, which consent may be withheld in Mortgagee's sole discretion.
8. Taxes on Mortgage. If, at any time, any law exists or shall be enacted
imposing or authorizing the imposition of any tax upon this Mortgage, or upon
any rights, titles, liens, or security interests created hereby, Mortgagor shall
immediately pay all such taxes, or, at Mortgagee's election and request,
reimburse Mortgagee for payment of same.
9. Security Agreement. This Mortgage is intended to be a security agreement
pursuant to the Uniform Commercial Code as enacted in the State of Indiana
("U.C.C.") for any of the property and fixtures described on pages 1 and 2
hereof which may be subject to a security interest pursuant to the U.C.C., and
Mortgagor hereby grants to Mortgagee a security interest in said property and
fixtures, whether said property is now existing or hereafter acquired, together
with replacements, replacement parts, additions, repairs and accessories
incorporated therein or affixed thereto and, if sold or otherwise disposed of,
the proceeds (including insurance proceeds) thereof. Mortgagor hereby authorizes
Mortgagee to prepare and file U.C.C. financing statements covering said property
and fixtures from time to time and in such form as Mortgagee may require to
perfect or maintain the priority of Mortgagee's security interest with respect
to said property and fixtures, and Mortgagor shall bear all costs thereof,
including all U.C.C. searches reasonably
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required by Mortgagee. Mortgagor will not create or suffer to be created any
other security interest in said property and fixtures, including replacements
thereof and additions thereto. Upon the occurrence of any Event of Default as
set forth in Section 18 hereof, Mortgagee shall have the remedies of a secured
party under the U.C.C. and, at Mortgagee's option, may also invoke the remedies
provided in Section 19 hereof with respect to such property. EXCEPT AS PROVIDED
IN SECTION 26(C), THE MAXIMUM AMOUNT OF PRINCIPAL DEBT OR PRINCIPAL OBLIGATION
(NOT INCLUDING PROTECTIVE ADVANCES OR INTEREST) WHICH IS SECURED BY THIS
MORTGAGE AT THE DATE OF EXECUTION HEREOF OR THEREAFTER IS $5,000,000.00.
10. Insurance and Indemnification. Mortgagor shall provide, maintain and keep in
force at all times the following policies of insurance:
(a) Policies of insurance evidencing bodily injury, death or property
damage liability coverages in amounts not less than $2,000,000.00 (combined
single limit), and an excess/umbrella liability coverage in an amount not less
than $5,000,000.00 shall be in effect with respect to Mortgagor. Such policies
must be written on an occurrence basis so as to provide blanket contractual
liability, broad form property damage coverage, and coverage for products and
completed operations;
(b) "Special Cause of Loss" insurance on the Improvements in an amount
not less than the full insurable value on a replacement cost basis of the
insured Improvements and Personal Property related thereto;
(c) Worker's compensation insurance (including employer's liability
insurance, if available and requested by Mortgagee) for all employees of
Mortgagor engaged on or with respect to the Land and the Improvements in such
amounts as are satisfactory to Mortgagee, or, if such limits are established by
law, in such amounts;
(d) Business income and/or business interruption insurance and/or loss
of "rental value" insurance in an amount not less than the appraised rentals for
the Mortgaged Property for a minimum of twelve (12) months;
(e) If the Land, or any part thereof, lies within a "special flood
hazard area" as designated on maps prepared by the Department of Housing and
Urban Development, a National Flood Insurance Association standard flood
insurance policy, plus insurance from a private insurance carrier if necessary,
for the duration of the Loan in the amount of the full insurable value of the
Improvements and Personal Property; and
(f) Such other insurance, including, without limitation, errors and
omissions insurance with respect to the contractors, architects and engineers,
and earthquake insurance, if necessary, and in such amounts, as may from time to
time be required by Mortgagee against the same or other hazards.
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Each policy of insurance required by the terms of this Mortgage shall
contain an endorsement by the insurer that any loss shall be payable in
accordance with the terms of such policy notwithstanding any act or negligence
of Mortgagor which might otherwise result in forfeiture of said insurance and
the further agreement of the insurer waiving all rights of set-off, counterclaim
or deductions against Mortgagor. In addition, each policy shall contain an
agreement by the insurer that such policy shall not be cancelled or changed
except upon not less than thirty (30) days prior written notice delivered to
Mortgagee.
All such insurance policies and renewals thereof shall be written by
companies acceptable to Mortgagee, shall be in a form acceptable to Mortgagee
and shall include a standard mortgage clause in favor of and in form acceptable
to Mortgagee. Mortgagor shall promptly furnish to Mortgagee a certificate of
said insurance on Accord forms 25 and 27, or other forms acceptable to
Mortgagee, together with copies of all renewal notices and all receipts of paid
premiums. At least thirty (30) days prior to the expiration date of any such
policy, Mortgagor shall deliver to Mortgagee a renewal certificate in form
satisfactory to Mortgagee.
If Mortgagee is made a party defendant to any litigation concerning
this Mortgage or the Mortgaged Property or any part thereof or interest therein,
or the occupancy thereof by Mortgagor, then Mortgagor shall indemnify, defend
and hold Mortgagee harmless from all liability by reason of said litigation,
including reasonable attorneys' fees and expenses incurred by Mortgagee in any
such litigation, whether or not any such litigation is prosecuted to judgment.
Mortgagor waives any and all right to claim or recover against Mortgagee, its
officers, employees, agents and representatives, for loss of or damage to
Mortgagor, the Mortgaged Property, other property of Mortgagor or the property
of others under control of Mortgagor from any cause insured against or required
to be insured against by the provisions of this Mortgage.
Mortgagor shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section unless Mortgagee has approved the insurance company and the form and
content of the insurance policy, including, without limitation, the naming
thereon of Mortgagee as a named insured with loss payable to Mortgagee under a
standard mortgage clause of the character above described. Mortgagor shall
immediately notify Mortgagee whenever any such separate insurance is taken out
and shall promptly deliver to Mortgagee copies of the policies or binders
evidencing such insurance.
Nothing contained in this Section shall prevent Mortgagor from keeping
the Mortgaged Property insured or causing the same to be insured against the
risks referred to in this Section under a policy or policies of blanket
insurance which may cover other property not subject to the lien of this
Mortgage; provided, however, that any such policy of blanket insurance (i) shall
specify therein the amount of the total insurance allocated to the Mortgaged
Property, which amount shall be not less than the amount otherwise required to
be carried under this Mortgage; (ii) shall not contain any clause which would
result in the insured thereunder being required to carry insurance with respect
to the property covered thereby in an amount not less than any specific
percentage of the full insurable value of such property in order to prevent the
insured named therein from becoming a co-insurer of any loss with the insurer
under such policy; and (iii) shall in all other respects comply with the
provisions of this Mortgage.
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Notwithstanding anything to the contrary contained in this Section, in
the event that the proceeds (the "Proceeds") payable with respect to any
casualty shall be less than or equal to $250,000.00, then Mortgagor shall have
the right to settle the insurance claim, and the right to retain the Proceeds,
so long as Mortgagor shall restore the Mortgaged Property to its condition prior
to such casualty, in a good and workmanlike manner, in compliance with any
applicable legal requirements and the requirements of any lease, free and clear
of liens, and shall remit to Mortgagee promptly upon completion of such
restoration any remaining balance of such Proceeds not used in the restoration
of the Mortgaged Property for application to the principal of the Indebtedness.
If all of the following apply: (i) the Proceeds have been deposited
with Mortgagee; (ii) in the case of insurance proceeds, the insurance carrier
has not denied liability to a named insured; (iii) Mortgagee shall have been
furnished with an estimate of the cost of restoration accompanied by an
architect's certificate as to such costs and appropriate final plans and
specifications for reconstruction of the Improvements, all of which shall be
approved by Mortgagee; (iv) the Improvements so restored or rebuilt shall be of
at least equal value and substantially the same character as prior to the damage
or destruction and appropriate for the purposes for which they were originally
erected; (v) Mortgagor shall have furnished Mortgagee with evidence satisfactory
to Mortgagee that all Improvements so restored and/or reconstructed and their
use fully comply with all zoning and building laws, ordinances and regulations,
and with all other applicable federal, state, and municipal laws and
requirements; (vi) to the extent that the estimated cost of restoration exceeds
the Proceeds available, Mortgagor shall have furnished a satisfactory bond of
completion or deposited with Mortgagee such sums as may be necessary to pay such
excess costs; (vii) Mortgagee shall have received notice within thirty (30) days
after the fire or other hazard or of the condemnation proceedings specifying the
date of such fire or other hazard or the date the notice of condemnation
proceedings was received and the request to Mortgagee to make said Proceeds
available to Mortgagor; (viii) the aggregate monthly net income under all
Leases, together with the proceeds of any business interruption insurance with
respect thereto, shall be sufficient to pay during the period of reconstruction
the monthly installments required to be paid upon the Indebtedness as well as
all impound payments which may be required for taxes and insurance, and
following reconstruction shall be sufficient to pay the aforesaid sums as well
as all other operating costs and charges of the Mortgaged Property; (ix)
Mortgagor shall not then be in default under the Loan Documents, and (x)
Mortgagee determines in its sole and absolute discretion that such restoration
can be completed at least three (3) months prior to the maturity date of the
Note; then the Proceeds, less the actual costs, fees and expenses, if any,
incurred in connection with adjustment of loss and Mortgagee's administrative
expenses relating to such loss and the disbursement of the Proceeds shall be
applied by Mortgagee to the payment of all the costs of the aforesaid
restoration, repairs, replacement, rebuilding or alterations, including the cost
of temporary repairs or for the protection of property pending the completion of
permanent restoration, repairs, replacements, rebuilding or alterations (all of
which temporary repairs, protection of property and permanent restoration,
repairs, replacement, rebuilding or alterations are hereinafter collective
referred to as the "Restoration"), and shall be paid out from time to time as
such Restoration progresses upon the written request of Mortgagor if the work
for which payment is requested has been done in a good and workmanlike manner
and substantially in
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accordance with the plans and specifications therefor. Each request shall be
accompanied by the following:
(a) A certificate signed by Mortgagor, dated not more than thirty (30)
days prior to such request, setting forth the following:
(i) That the sum then requested either has been paid, or is
justly due to contractors, subcontractors, materialmen, engineers,
architects or other persons who have rendered services or furnished
materials for the restoration therein specified or have paid for the same,
the names and addresses of such persons, a brief description of such
services and materials, the several amounts so paid or due to each of said
persons in respect thereof (together with supporting statements and
invoices for the same), that no part of such expenditures has been or is
being made the basis of any previous or then pending request for the
withdrawal of Proceeds or has been made out of any of the Proceeds received
by Mortgagor, and that the sum then requested does not exceed the value of
the services and materials described in the certificate.
(ii) That, except for the amount, if any, stated pursuant to
the foregoing subclause (a)(i) in such certificate to be due for services
or materials, there is no outstanding indebtedness known to the persons
signing such certificate, after due inquiry, which is then due for labor,
wages, materials, supplies or services in connection with such Restoration.
(iii) That the costs, as estimated by the persons signing such
certificate, of the Restoration required to be done subsequent to the date
of such certificate in order to complete and pay for the same, do not
exceed the Proceeds, plus any amount or security approved by Mortgagee and
deposited by Mortgagor to defray such costs and remaining in the hands of
Mortgagee after payment of the sum requested in such certificate.
(b) A title insurance report or other evidence satisfactory to
Mortgagee to the effect that there has not been filed with respect to the
Mortgaged Property, or any part thereof, any vendor's, contractor's, laborer's,
materialmen's, or other lien which has not been discharged of record or bonded.
(c) A certificate signed by the architect and/or engineer in charge of
the Restoration, who shall be selected by Mortgagor and approved in writing by
Mortgagee, certifying to the facts set forth in subclause (i) above, and that
the Restoration is proceeding in accordance with the plans and specifications
approved by Mortgagee and in accordance with all zoning, subdivision and other
governmental laws, ordinances, rules and regulations. Upon compliance with the
foregoing provisions, Mortgagee shall, out of Proceeds (and the amount of
security approved by Mortgagee, if any, deposited by Mortgagor to defray the
costs of the Restoration), pay or cause to be paid to Mortgagor or the persons
named (pursuant to subclause (a)(i) above) in such certificate the respective
amounts stated therein to have been paid by Mortgagor or to be due to them, as
the case may be.
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If the Proceeds at the time held by Mortgagee, less the actual costs,
fees and expenses, if any, incurred in connection with the adjustment of the
loss and Mortgagee's administrative expenses relating to such loss and the
disbursement of the Proceeds, shall be, in Mortgagee's sole and absolute
judgment, insufficient to pay the entire cost of the Restoration, Mortgagor
shall deposit with Mortgagee any such deficiency prior to disbursement of any
additional portion of the Proceeds.
No payment made prior to the final completion of the Restoration shall
exceed ninety percent (90%) of the value of the work performed from time to
time, and at all times the undisbursed balance of said Proceeds remaining in the
hands of Mortgagee shall be at least sufficient to pay for the cost of
completion of the Restoration free and clear of liens.
Final payment shall be made upon delivery of an architect's certificate
and a certification by one of Mortgagee's appraisers as to completion in
accordance with the final plans and specifications and compliance with all
zoning, building, subdivision and other governmental laws, ordinances, rules,
and regulations, and either the presentation of effective lien waivers from all
contractors, subcontractors and materialmen, or the expiration of the period
provided under applicable law for the filing of mechanic's and materialmen's'
liens. Mortgagee may at its option require an endorsement to Mortgagee's policy
of title insurance insuring the continued priority of the lien of this Mortgage
as to all sums advanced hereunder, such endorsement to be in form and substance
satisfactory to Mortgagee and paid for by Mortgagor.
Upon completion of the Restoration in a good and workmanlike manner in
accordance herewith, and provided that Mortgagee has received satisfactory
evidence that the Restoration has been paid for in full and the Mortgaged
Property is free and clear of all liens, any balance of the Proceeds at the time
held by Mortgagee (after reimbursement to Mortgagee of all costs and expenses of
Mortgagee, including administrative expenses, in connection with recover of the
same and disbursement of such Proceeds for the Restoration), if any, shall be
applied as follows: (i) to the extent that such balance of the Proceeds is equal
to or less than the amount, if any, by which the value of the Mortgaged Property
prior to such damage or destruction exceeds the value of the Mortgaged Property
after such Restoration (for these purposes, the value of the Mortgaged Property
shall be determined by Mortgagee in its discretion), then the portion of the
balance of the Proceeds equal to such excess amount shall be applied to the
payment or prepayment (without any prepayment premium) of the principal balance
of the Indebtedness in such order as Mortgagee may determine, and any amounts so
applied shall reduce the Indebtedness pro tanto; and (ii) to the extent that the
balance of the Proceeds exceeds such excess amount, such portion of the balance
of the Proceeds shall be paid to Mortgagor.
Mortgagee shall cause Proceeds held by it pursuant to this Section to
be maintained in one or more interest-bearing accounts in accordance with
Mortgagee's customary practices for the payment of interest on account balances,
including, without limitation, minimum balance requirements.
If the insurance proceeds are applied to the payment of the sums
secured by this Mortgage, any such application of proceeds shall not extend or
postpone the due dates of the
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monthly installments referred to in the Note or change the amounts of such
installments. If Mortgagee acquires title to the Mortgaged Property through
remedial action or transfer in lieu thereof, Mortgagee shall have all of the
right, title and interest of Mortgagor in and to any insurance policies and
unearned premiums thereon and in and to the proceeds resulting from any damage
to the Mortgaged Property prior to such acquisition.
If Mortgagee is made a party defendant to any litigation concerning
this Mortgage or the Mortgaged Property or any part thereof or interest therein,
or the occupancy thereof, then Mortgagor shall indemnify, defend and hold
Mortgagee harmless from all liability by reason of said litigation, including
reasonable attorneys' fees and expenses incurred by Mortgagee in any such
litigation, whether or not any such litigation is prosecuted to judgment.
Mortgagor waives any and all right to claim or recover against Mortgagee, its
officers, employees, agents and representatives, for loss of or damage to
Mortgagor, the Mortgaged Property, other property of Mortgagor or the property
of others under control of Mortgagor from any cause insured against or required
to be insured against by the provisions of this Mortgage.
11. Escrow. Mortgagor, in order more fully to protect the security of this
Mortgage, does hereby covenant and agree that, after the occurrence of an Event
of Default that has not been waived in writing by Mortgagee, together with and
in addition to the payment of taxes, assessments and insurance premiums above
provided, it will, upon written request of Mortgagee pay to Mortgagee on the
first day of each month until the Indebtedness is fully paid, a sum equal to
one-twelfth (1/12) of the known or estimated yearly taxes, assessments and
premiums for such insurance as may be required by the terms hereof. Mortgagee
shall hold such monthly payments which may be mingled with its general funds,
without obligation to pay interest thereon, unless otherwise required by
applicable law, to pay such taxes, assessments and insurance premiums when due.
Mortgagor agrees that sufficient funds will be so accumulated for the payment of
said charges one month prior to the due date thereof and that it will furnish
Mortgagee with proper statements covering the same fifteen (15) days prior to
the due dates thereof. In the event of foreclosure of this Mortgage, or if
Mortgagee should take a deed in lieu of foreclosure, the amount so accumulated
will be credited on account of the unpaid principal or interest. If the total of
the monthly payments as made under this Section shall exceed the payments
actually made by Mortgagee, such excess shall be credited on subsequent monthly
payments of the same nature, but if the total of such monthly payments so made
under this Section shall be insufficient to pay such taxes, assessments and
insurance premiums then due, then said Mortgagor shall pay upon demand the
amount necessary to make up the deficiency, which payments shall be secured by
this Mortgage. To the extent that all the provisions of this Section for such
payments of taxes, assessments and insurance premiums to Mortgagee are complied
with, said Mortgagor shall be relieved of compliance with the covenants
contained in Sections 3 and 10 herein as to the amounts paid only, but nothing
contained in this Section shall be construed as in any way limiting the rights
of Mortgagee at its option to pay any and all of said items when due.
12. Further Assurances. Mortgagor shall furnish to Mortgagee evidence of the
title of Mortgagor to the Mortgaged Property at the execution and delivery
hereof and from time to time hereafter as may be deemed necessary by and
satisfactory to Mortgagee, and Mortgagor shall promptly pay the cost of said
title evidence when due and payable.
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Mortgagor, upon the request of Mortgagee, will execute, acknowledge,
deliver, file and record such further instruments and do such further acts as
may be necessary, desirable or proper to carry out the purposes of the Loan
Documents and to subject to the liens and security interests created thereby any
property intended by the terms thereof to be covered thereby, including
specifically, but without limitation, any renewals, additions, substitutions,
replacements, improvements or appurtenances to the Mortgaged Property.
13. Condemnation. If all or any part of the Land or Improvements are damaged,
taken or acquired, either temporarily or permanently, in any condemnation
proceeding, or by exercise of the right of eminent domain, or, with Mortgagee's
consent, by any conveyance in lieu thereof, the amount of any award or other
payment for such taking, or conveyance or damages made in consideration thereof,
to the extent of the full amount of the then remaining unpaid Indebtedness, is
hereby assigned to Mortgagee who is empowered to collect and receive the same
and to give proper receipts therefor in the name of Mortgagor, and the same
shall be paid forthwith to Mortgagee. The proceeds shall be settled, deposited
and held consistent with the terms and conditions of Section 10. If Mortgagor
receives notice, written or unwritten, of any actual, intended or threatened
condemnation or eminent domain proceeding, Mortgagor shall forthwith furnish a
copy of such notice to Mortgagee if such notice was written, or inform Mortgagee
in writing if such notice was unwritten.
14. Advances Secured by Mortgage. Upon an Event of Default which shall include
Mortgagor's failure to comply with any of these covenants and agreements as to
the payment of taxes, assessments, insurance premiums, repairs, protection of
the Mortgaged Property or Mortgagee's lien thereon, and other charges and the
costs of procurement of title evidence and insurance as aforesaid, Mortgagee
may, at its option, pay the same, and any sums so paid by Mortgagee, together
with the reasonable fees of counsel employed by Mortgagee in consultation and in
connection therewith (collectively "Protective Advances"), shall be charged
against Mortgagor, shall be immediately due and payable by Mortgagor, shall bear
interest at the Default Rate of Interest, as defined in the Note, and shall be a
lien upon the Mortgaged Property, and be secured by this Mortgage, and may be
collected in the same manner as the principal debt hereby secured.
15. Subrogation. Mortgagee shall be subrogated for its further security to the
lien, although released of record, of any and all encumbrances paid out of the
proceeds of the loan secured by this Mortgage; provided, however, that the terms
and provisions hereof shall govern the rights and remedies of Mortgagee and
shall supersede the terms, provisions, rights, and remedies under the lien or
liens to which Mortgagee is subrogated hereunder.
16. Assignment of Rents and Leases.
(a) Mortgagor hereby absolutely and unconditionally assigns, transfers and sets
over unto Mortgagee and Mortgagee's successors and assigns, all present and
future leases covering all or any part of the Mortgaged Property ("Leases"),
together with any extensions or renewals thereof and any guarantees of any
tenants' obligations thereunder, and all of the rents, royalties,
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bonuses, income, receipts, revenues, issues and profits now due or which may
hereafter become due under the Leases or any extensions or renewals thereof, as
well as all moneys due and to become due to Mortgagor under the Leases for
services, materials or installations supplied whether or not the same were
supplied under the terms of the Leases, all liquidated damages following default
under the Leases and all proceeds payable under any policy of insurance covering
loss of rents resulting from untenantability caused by damage to any part of the
Mortgaged Property (such rents, income, receipts, revenues, issues, profits and
other moneys assigned hereby are hereinafter collectively called "Rents"),
together with any and all rights and remedies which Mortgagor may have against
any tenant under any of the Leases or others in possession of the Mortgaged
Property or any part thereof for the collection or recovery of Rents so
assigned. Mortgagor is hereby expressly permitted to enter into Leases of the
Mortgaged Property subject to the terms and conditions contained herein. Prior
to an Event of Default (as hereinafter defined) Mortgagor shall have a license
to collect and receive all Rents as trustee for the benefit of Mortgagee and
Mortgagor.
(b) Mortgagor hereby represents, warrants and agrees that:
(i) Mortgagor has good title to the Leases and Rents hereby assigned and has the
right, power and capacity to make this assignment and no person or entity other
than Mortgagor has or will have any right, title or interest in or to the Leases
or Rents.
(ii) Mortgagor will, at Mortgagor's sole cost and expense, perform and discharge
all of the obligations and undertakings of the landlord under the Leases and
give prompt notice to Mortgagee of any failure to do so. Mortgagor will use
commercially reasonable efforts to enforce or secure the performance of all
material obligations and undertakings of the tenants under the Leases and will
appear in and prosecute or defend any action or proceeding arising under, or in
any manner connected with, the Leases or the obligations and undertakings of the
tenants thereunder.
(iii) Without Mortgagee's prior consent, Mortgagor will not (1) pledge,
transfer, mortgage or otherwise encumber or assign the Leases or the Rents; (2)
waive, excuse, condone or in any manner release or discharge any tenant under
any of the Leases exceeding 5,000 square feet; (3) disaffirm, cancel, terminate
or consent to any surrender of any of the Leases exceeding 5,000 square feet;
(4) modify, extend or in any way alter the terms of any of the Leases exceeding
5,000 square feet so as to reduce or diminish or postpone the payments of Rents;
(5) permit any assignment of any of the Leases; or (6) collect Rents more than
thirty (30) days prior to accrual.
(iv) Mortgagor will give immediate notice to Mortgagee of any notice Mortgagor
receives from any tenant under the Leases, specifying any claimed material
default by any party under the Leases exceeding 5,000 square feet.
(v) Mortgagor hereby assigns any settlement payment for damages for termination
of any of the Leases with Anchor Tenants (as said term is defined in the Loan
Agreement) under the Federal Bankruptcy Code, or under any other federal, state,
or local statute, to Mortgagee, to be
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applied to the Indebtedness as Mortgagee may elect, and agrees to endorse any
check for such payment to the order of Mortgagee.
(vi) All existing Leases are valid, unmodified and in full force and effect and
Mortgagor has not performed any act or executed any instrument which might
prevent Mortgagee from operating under any of the terms and provisions thereof
or which would limit Mortgagee in such operation.
(vii) Each of the Leases exceeding 5,000 square feet will be in form and content
satisfactory to Mortgagee. Mortgagor shall not enter any Leases at below market
rents without Mortgagee's consent. Mortgagor will deliver to Mortgagee certified
and correct copies of each of the Leases once fully executed. Upon request of
Mortgagee, Mortgagor shall deliver to Mortgagee a subordination and attornment
agreement from each Anchor Tenant and such estoppel certificates from the
tenants under the Leases as Mortgagee shall reasonably request.
(c) Mortgagee shall not be obligated to perform or discharge any obligation or
duty to be performed or discharged by Mortgagor under any of the Leases; and
Mortgagor hereby agrees to indemnify Mortgagee for, and to save Mortgagee
harmless from, any and all liability, damage or expense arising from any of the
Leases or from this assignment, including, without limitation, claims by tenants
for security deposits or for rental payments more than one (1) month in advance
and not delivered to Mortgagee. All amounts indemnified against hereunder,
including reasonable attorneys' fees, if paid by Mortgagee shall bear interest
at the Default Rate of Interest, as defined in the Note, and shall be payable by
Mortgagor immediately without demand and shall be secured hereby. This
assignment shall not place responsibility for the control, care, management, or
repair of the Premises upon Mortgagee, or make Mortgagee responsible or liable
for any negligence in the management, operation, upkeep, repair or control of
same resulting in loss or damage or injury or death to any party.
(d) Upon the occurrence of an Event of Default as hereinafter defined:
(i) All Rents assigned hereunder shall be paid directly to Mortgagee, and
Mortgagee may notify the tenants under the Leases (or any other parties in
possession of the Mortgaged Property) to pay all of the Rents directly to
Mortgagee at the address specified in Section 25 hereof, for which this
assignment shall be sufficient warrant;
(ii) Mortgagee shall have the right to forthwith enter and take possession of
the Mortgaged Property and to manage, operate, lease and develop the same; to
collect as hereunder provided all or any Rents payable under the Leases; to make
repairs as Mortgagee deems appropriate; and to perform such other acts in
connection with the management, operation, development, leasing and construction
of the Mortgaged Property as Mortgagee, in its sole discretion, may deem proper;
and
(iii) Mortgagee shall have the right to forthwith enter into and upon the
Mortgaged Property and take possession thereof, and to appoint an agent, or in
the event of the institution of foreclosure proceedings to have a receiver
appointed for the collection of the Rents.
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In the event that Mortgagee shall pursue its remedies under subsection (ii) or
(iii) above, the net income, after allowing a reasonable fee for the collection
thereof and the management of the Mortgaged Property, may be applied toward the
payment of taxes, assessments, insurance premiums, repairs, protection of the
Mortgaged Property or Mortgagee's lien thereon, and other charges against the
Mortgaged Property and the costs of procurement of such insurance and of
evidence of title to the Mortgaged Property, or any of them, or in the reduction
of the Indebtedness and the payment of interest as Mortgagee may elect. If the
Rents are not sufficient to meet the costs, if any, of taking control of and
managing the Mortgaged Property and collecting the Rents, any funds expended by
Mortgagee for such purposes shall become indebtedness of Mortgagor to Mortgagee
secured by this Mortgage. Unless Mortgagee and Mortgagor agree in writing to
other terms of payment, such amounts shall be payable upon demand from Mortgagee
to Mortgagor and shall bear interest from the date of disbursement at the
Default Rate of Interest stated in the Note.
The exercise or failure to exercise any of the above remedies shall not
in any way preclude or abridge the right of Mortgagee to foreclose this Mortgage
or to take any other legal or equitable action thereon. Mortgagee shall have
such rights or privileges as aforesaid regardless of the value of the Mortgaged
Property given as security hereunder, and regardless of the solvency or
insolvency of any party bound for the payment of the Indebtedness or the other
sums hereby secured.
(e) Mortgagor hereby authorizes and directs the tenants under the Leases to pay
Rents to Mortgagee upon written demand by Mortgagee, without further consent of
Mortgagor, and the tenants may rely upon any written statement delivered by
Mortgagee to the tenants. Any such payment to Mortgagee shall constitute payment
to Mortgagor under the Leases.
17. No Waiver. The failure of Mortgagee to exercise any option to declare
maturity of the principal debt or any other sums hereby secured under any
provision of any of the Loan Documents, or to forbear from exercising any right
or remedy available to Mortgagee under any provision of any of the Loan
Documents, shall not be taken or deemed a waiver of the right to exercise such
option, right or remedy, or declare such maturity as to such past, continuing or
subsequent violation of any of the covenants and agreements of any of the Loan
Documents. Acceptance by Mortgagee of partial payments shall not constitute a
waiver of any Event of Default, as hereinafter defined. From time to time,
Mortgagee may, at Mortgagee's option, without giving notice to or obtaining the
consent of Mortgagor, Mortgagor's successors or assigns, any junior lienholder
or any guarantor of any portion of the Indebtedness, without liability on
Mortgagee's part and notwithstanding Mortgagor's breach of any covenant or
agreement of Mortgagor in this Mortgage, extend the time for payment of the
Indebtedness, or any part thereof, reduce the payments thereon, release anyone
liable on any of said Indebtedness, accept a renewal note or notes therefor,
modify the terms and time of payment of said Indebtedness, release from the lien
of this Mortgage any part of the Mortgaged Property, take or release other or
additional security, reconvey any part of the Mortgaged Property, consent to any
map or plan of the Mortgaged Property, consent to the granting of any easement,
join in any extension or subordination agreement, agree in writing with
Mortgagor to modify the rate of
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interest or period of amortization of the Note, or change the amount of the
monthly installments payable thereunder. Any actions taken by Mortgagee pursuant
to the terms of this Section shall not affect the obligation of Mortgagor or
Mortgagor's successors or assigns to pay the sums secured by this Mortgage and
to observe the covenants of Mortgagor contained herein, and shall not affect the
lien or priority of lien of this Mortgage on the Mortgaged Property. Mortgagor
shall pay Mortgagee a reasonable service charge, together with such title
insurance premiums and attorney's fees as may be incurred at Mortgagee's option
for any such action if taken at Mortgagor's request.
18. Default. The term "Event of Default" shall have the meaning as defined in
Section 5.1 of the Note.
19. Remedies. In case of an Event of Default, Mortgagee may, at any time
thereafter, at its option and without notice, exercise any or all of the
following remedies:
(a) Acceleration. Declare the entire Indebtedness due and payable, and it shall
thereupon be immediately due and payable;
(b) Foreclosure. Foreclose this Mortgage by instituting a foreclosure suit in
any court having jurisdiction. Mortgagor hereby waives all right to appraisal,
which appraisal may be obtained at the option of Mortgagee;
(c) Offset Rights. Apply in satisfaction of the Indebtedness or any amount at
any time to become due or payable in connection with the ownership, occupancy,
use, restoration or repair of the Mortgaged Property, any deposits or other sums
credited by or due from Mortgagee to Mortgagor;
(d) Cure of Default. Without releasing Mortgagor from any obligation hereunder
or under the Loan Documents, cure any Event of Default. In connection therewith,
Mortgagee may enter upon the Mortgaged Property and do such acts and things as
Mortgagee deems necessary or desirable to protect the Mortgaged Property,
including, without limitation: (i) paying, purchasing, contesting or
compromising any encumbrance, charge, lien, claim or property taxes, (ii) paying
any insurance premiums, and (iii) employing counsel, accountants, contractors
and other appropriate persons to assist Mortgagee in the foregoing. Should
Mortgagee make any such payments, the amount thereof shall be secured hereby and
Mortgagor shall reimburse Mortgagee therefor immediately upon demand, and said
amount shall bear interest at the Default Rate of Interest specified in the Note
until repaid;
(e) Possession of Mortgaged Property. Take physical possession of the Mortgaged
Property and of all books, records, documents and accounts relating thereto and
exercise, without interference from Mortgagor, any and all rights which
Mortgagor has with respect to the Mortgaged Property, including, without
limitation, the right at Mortgagor's expense to rent and lease the same, to hire
a professional property manager for the Mortgaged Property, and to apply any
rents, royalties, income or profits collected to the reduction of the
Indebtedness without in any way curing or waiving any default. If necessary to
obtain possession as provided for above,
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Mortgagee may, without exposure to liability from Mortgagor or other persons,
invoke any and all legal remedies to dispossess Mortgagor, including, without
limitation, one or more actions for forcible entry and detainer, trespass and
restitution. In connection with any action taken by Mortgagee pursuant to this
subparagraph (e), Mortgagee shall not be liable for any loss sustained by
Mortgagor resulting from any failure to let the Mortgaged Property or from any
other act or omission of Mortgagee in managing the Mortgaged Property unless
caused by the willful misconduct or gross negligence of Mortgagee, nor shall
Mortgagee be obligated to perform or discharge any obligation, duty or liability
under any Lease or by reason of any Loan Document. Mortgagor hereby agrees to
indemnify, hold harmless and defend Mortgagee from and against any liability,
loss or damage incurred by Mortgagee under any lease or under the Loan Documents
as a result of Mortgagee's exercise of rights or remedies under any of the Loan
Documents. Should Mortgagee incur any such liability, the amount thereof shall
be secured hereby and Mortgagor shall reimburse Mortgagee therefor immediately
upon demand, and said amount shall bear interest at the Default Rate of Interest
specified in the Note until repaid. Mortgagee shall have full power to make from
time to time all alterations, renovations, repairs and replacements to the
Mortgaged Property as may seem proper to Mortgagee.
(f) Remedies under State Law. Mortgagee shall have the right to exercise all
rights under laws of the Indiana, whether or not herein specified, for the
protection of Mortgagee's interest in the Mortgaged Property.
(g) Receiver. Secure the appointment of a receiver or receivers, as a matter of
right for the Mortgaged Property whether such receivership be incident to a
proposed sale of such Mortgaged Property or otherwise, and without regard to the
value of the Mortgaged Property or the solvency of Mortgagor. Mortgagor hereby
consents to the appointment of such receiver or receivers, waives any and all
defenses to such appointment and agrees not to oppose any application therefor
by Mortgagee.
(h) Uniform Commercial Code Remedies. Exercise any and all rights of a secured
party with respect to any portion of the Mortgaged Property governed under the
UCC and in conjunction with, in addition to or in substitution for those rights
and remedies:
(i) take possession of, assemble and collect such Mortgaged Property or render
it unusable by Mortgagor; and
(ii) require Mortgagor to assemble such Mortgaged Property and make it available
at any place Mortgagee may designate so as to allow Mortgagee to take possession
or dispose of such Mortgaged Property.
Written notice mailed to Mortgagor, as provided herein, fifteen (15)
days prior to the date of public sale of such Mortgaged Property or prior to the
date after which private sale of such Mortgaged Property will be made, shall be
deemed to have been a public sale conducted in a commercially reasonable manner,
if held contemporaneously with a sale of Mortgaged Property as provided in this
Mortgage. Public sale of such Mortgaged Property by auction conducted in any
county in which such Mortgaged Property was reposed or in which the Land is
located, after
16
advertisement of the time and place of the sale in a newspaper circulated in the
county, city or village in which the sale is to be held, shall be considered to
be a commercially reasonable disposition of such Mortgaged Property. In the
event of a foreclosure sale, whether made by Mortgagee under the terms hereof,
or under judgment of a court, such Mortgaged Property and the other parts of the
Mortgaged Property may, at the option of Mortgagee, be sold in parts or as a
whole. It shall not be necessary that Mortgagee take possession of such
Mortgaged Property prior to the time that any sale pursuant to the provisions of
this subparagraph is conducted and it shall not be necessary that such Mortgaged
Property be present at the location of such sale;
A CARBON, PHOTOGRAPHIC OR OTHER REPRODUCTION OF THIS MORTGAGE OR ANY
FINANCING STATEMENT RELATING TO THIS INDENTURE SHALL BE SUFFICIENT AS A
FINANCING STATEMENT. THIS MORTGAGE IS EFFECTIVE AND SHALL BE EFFECTIVE AS A
FINANCING STATEMENT FILED AS A FIXTURE FILING WITH RESPECT TO ALL GOODS WHICH
ARE OR ARE TO BECOME FIXTURES INCLUDED WITHIN THE PROPERTY AND IS TO BE FILED
FOR RECORD IN THE REAL ESTATE RECORDS OF THE LOCATION IN THE STATE WHERE THE
PROPERTY IS SITUATED. THE MAILING ADDRESS OF MORTGAGEE, WHO IS THE SECURED
PARTY, AND THE ADDRESS OF MORTGAGOR, WHO IS THE DEBTOR, FROM WHICH INFORMATION
CONCERNING THE SECURITY INTEREST MAY BE OBTAINED ARE SET FORTH IN THE FIRST
PARAGRAPH OF THIS MORTGAGE;
(i) Sale. Sell the Mortgaged Property under applicable laws and requirements of
the State of Indiana;
(j) Judicial Actions. Commence and maintain an action or actions in any court of
competent jurisdiction to foreclose this Mortgage pursuant to the laws of
Indiana or to obtain specific enforcement of the covenants of Mortgagor
hereunder. Mortgagor agrees that such covenants shall be specifically
enforceable by injunction or any other appropriate equitable remedy;
(k) Subrogation. Have and exercise all rights and remedies of any person, entity
or body politic to whom Mortgagee renders payment or performance in connection
with the exercise of its rights and remedies under the Loan Documents,
including, without limitation, any rights or remedies under any mechanics' or
vendors' lien or liens, superior titles, mortgages, deeds of trust, liens,
encumbrances, rights, equities and charges of all kinds heretofore or hereafter
existing on the Mortgaged Property to the extent that the same are paid or
discharged from the proceeds of the Note whether or not released of record;
(l) Right to Purchase. At any sale or sales of the Mortgaged Property pursuant
to this Section, Mortgagee shall have the right to purchase the Mortgaged
Property being sold, and in such cases the right to credit against the amount of
the bid made therefor (to the extent necessary to satisfy such bid), the amount
of the Indebtedness then due; and
17
(m) Other. Take such other actions or commence such other proceedings as
Mortgagee deems necessary or advisable to protect its interest in the Mortgaged
Property and its ability to collect the Indebtedness as are available under the
laws of Indiana.
Any sums advanced by Mortgagee under this Section 19 shall bear
interest at the Default Rate of Interest specified in the Note, shall be payable
by Mortgagor on demand and, together with such interest, shall constitute a part
of the Indebtedness.
All sums realized by Mortgagee under this Section 19, less all costs
and expenses incurred by Mortgagee under this Section 19, including, without
limitation, attorneys' fees and disbursements, property management fees, costs
of alterations, renovations, repairs and replacements made or authorized by
Mortgagee and all expenses incident to Mortgagee taking possession of the
Mortgaged Property, and such sums as Mortgagee deems appropriate as a reserve to
meet future expenses of the Mortgaged Property to be incurred within six (6)
months of foreclosure, shall be applied to the Indebtedness in such order as
Mortgagee shall determine. Thereafter, any balance shall be paid to the person
or persons legally entitled thereto.
20. Holding Over. Should Mortgagor, after an Event of Default, continue in
possession of the Mortgaged Property, either lawfully or unlawfully, Mortgagor
shall be a tenant from day to day, terminable at the will of either Mortgagor or
Mortgagee, at a reasonable rental per diem, based upon the value of the
Mortgaged Property occupied computed by Mortgagee in its sole unfettered
discretion, such rental to be due and payable daily to Mortgagee.
21. Inspection. Any person authorized by Mortgagee shall have the right to enter
upon and inspect the Mortgaged Property at all reasonable times. Mortgagee
shall, however, have no duty to make such inspections. Any inspection of the
Mortgaged Property by Mortgagee shall be entirely for its benefit, and Mortgagor
shall in no way rely or claim reliance thereon.
22. Parcels; Waiver of Marshalling. In the event of foreclosure of the lien of
this Mortgage, the Mortgaged Property may be sold in one or more parcels or as
an entirety as Mortgagee may elect.
Notwithstanding the existence of any other security interests in the
Mortgaged Property held by Mortgagee or by any other party, Mortgagee shall have
the right to determine the order in which any or all of the Mortgaged Property
shall be subjected to the remedies provided herein. Mortgagee shall have the
right to determine the order in which any or all portions of the Indebtedness
are satisfied from the proceeds realized upon the exercise of the remedies
provided herein. Mortgagor, any party who becomes liable for Mortgagor's
obligations and covenants under this Mortgage, and any party who now or
hereafter acquires a security interest in the Mortgaged Property, or any portion
thereof, hereby waives any and all right to require the marshalling of assets in
connection with the exercise of any of the remedies permitted by applicable law
or provided herein.
23. Costs of Collection. Mortgagor hereby agrees to pay to Mortgagee all costs
of foreclosing this Mortgage, and all costs of collecting and securing, and of
attempting to collect
18
and to secure, the Note, including, without limitation, reasonable attorneys'
fees, appraisers' fees, court costs, notice charges and title insurance charges,
whether such attempt be made by suit, in bankruptcy, or otherwise; and said
costs and any other sums due Mortgagee by virtue of this Mortgage or the Note
may be included in any judgment or decree rendered.
24. Financial Statements; Rent Roll. Mortgagor shall maintain full and correct
books and records open to Mortgagee's inspection showing in detail the income,
expenses and earnings of Mortgagor and of the Mortgaged Property, and shall
provide Mortgagee the following financial information.
(a) Within ninety (90) days from the end of each fiscal year of Mortgagor, or as
requested from time to time by Mortgagee, an annual financial statement
consisting of a balance sheet, together with a complete itemized statement of
annual income and operating expenses of Mortgagor and of the Mortgaged Property,
certified by the chief financial officer of Mortgagor and on forms prescribed
by, or satisfactory to, Mortgagee. Mortgagee reserves the right to require the
annual financial statements to be both duly audited and certified by an
independent certified public accountant satisfactory to Mortgagee; and
(b) Within thirty (30) days after the end of each calendar quarter, Mortgagor
shall provide to Mortgagee a certificate certified by the chief financial
officer of Mortgagor calculating for that preceding quarter DSCR, as defined in
the Loan Documents;
(c) Within forty-five (45) days from the end of each quarter, monthly operating
statements for the Mortgaged Property, certified by the chief financial officer
of Mortgagor and on forms prescribed by, or satisfactory to, Mortgagee, together
with a rent roll of the Mortgaged Property, certified by the chief financial
officer of Mortgagor. The rent roll shall contain the name of each tenant,
square footage of leased premises, annual rent, lease commencement date and
lease expiration date.
Mortgagor consents to Mortgagee's disclosure of financial statements,
information or other material submitted to Mortgagee to other financial
institutions in connection with the sale of participating interests in the loan
secured hereby and to bank regulators and auditors in connection with review of
the loan secured hereby. Except as set forth hereinabove or pursuant to court
order or federal regulation and except to the extent necessary to enforce the
Loan Documents, Mortgagee agrees to maintain the confidentiality of such
financial statements. To the extent Mortgagee shares such financial information
with other financial institutions in connection with the sale of participating
interests in the loan secured hereby, Mortgagee shall require such other
financial institutions to enter into a confidentiality agreement similar to the
one stated herein.
25. Notice. Except as otherwise expressly provided in any of the Loan Documents,
any notice required or permitted to be given hereunder shall be in writing and
shall be considered properly given if mailed by first class United States mail,
postage prepaid, registered or certified with return receipt requested, or by
delivering such in person to the intended addressee or by prepaid telegram.
Notice so mailed shall be effective upon its deposit. Notice given in any other
19
manner shall be effective only if and when received by addressee. For purposes
of notice, the addresses of Mortgagor and Mortgagee shall be as set forth below;
provided however that either party shall have the right to change such party's
address for notice hereunder to any other location within the continental United
States by the giving of thirty (30) days' notice to the other party in the
manner set forth hereinabove:
If to Mortgagor: Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
If to Mortgagee: Bank One, NA
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Xxxxx X. XxXxxxxx,
Vice President
26. Special Indiana Provisions.
(a) Inconsistencies. In the event of any inconsistencies between this
Section 26 and the other Sections contained in this Mortgage, the terms
and conditions of this Section 26 shall control and be binding.
(b) Indiana Responsible Property Tax Law. Mortgagor represents and
warrants that (a) either (1) none of the Mortgaged Property is within
the definition of the term "property" as defined in Ind. Code
ss.13-11-2-174 and no person is required as a result of the execution
and delivery of this Mortgage to furnish to any other person the
disclosure documents described in and provided for in the Indiana
Responsible Property Transfer Law (Ind. Code ss.13-25-3 et seq.) or (2)
all required disclosure documents have been timely delivered to all
persons specified in the Indiana Responsible Property Transfer Law.
(c) Future Advances. Notwithstanding anything contained in this
Mortgage or the other Loan Documents to the contrary, this Mortgage
shall secure: (i) two hundred percent (200%) of the face amount of the
Note, exclusive of any items described in (ii) below, including any
additional advances made from time to time after the date hereof
pursuant to the Note and other Loan Documents whether made as part of
the Indebtedness secured hereby, made at the option of Mortgagee, made
after a reduction to a zero (0) or other balance, or made otherwise,
(ii) all other amounts payable by Mortgagor, or advanced by Mortgagee
for the account, or on behalf, of Mortgagor or the Mortgaged Property,
pursuant to the Loan Documents, including amounts advanced with respect
to the Mortgaged Property for the payment of taxes, assessments,
insurance premiums and other costs and impositions incurred for the
protection of the Mortgaged Property to the same extent as if the
future obligations, and advances were made on the date of execution
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of this Mortgage; and (iii) future modifications, extensions, and
renewals of any Indebtedness secured by this Mortgage. Pursuant to IND.
CODE 32-29-1-10, the lien of the Mortgage with respect to any future
advances, modifications, extensions, and renewals referred to herein
and made from time to time shall have the same priority to which this
Mortgage otherwise would be entitled as of the date this Mortgage is
executed and recorded without regard to the fact that any such future
advance, modification, extension, or renewal may occur after this
Mortgage is executed.
(d) Maturity Date. The maturity date of the Note is March 1, 2005,
unless extended by its terms to March 1, 2006.
(e) No Limitation on Remedies. Each of the remedies set forth herein,
including, without limitation, the remedies involving the right of
Mortgagee to exercise self-help in connection with the enforcement of
the terms of this Mortgage, shall be exercisable if, and to the extent,
permitted by the laws of the State of Indiana in force at the time of
the exercise of such remedies without regard to the enforceability of
such remedies at the time of the execution and delivery of this
Mortgage.
(f) Valuation and Appraisement. All payments due under the Loan
Documents shall be made without relief from valuation and appraisement
laws.
(g) No Deficiency Waiver. Nothing herein is intended to constitute a
waiver of Mortgagor's or Mortgagee's rights under Indiana Code Section
32-29-7-5, it being agreed that the parties may mutually consent to such
waiver as discussed therein in a separate written instrument.
27. Changes in Rate of Interest. The Note contains provisions allowing for
changes in the interest rate and the monthly payment. This Mortgage shall
continue to secure the Indebtedness, with the same priority of lien,
notwithstanding any change in the rate of interest on the Note. None of the
Indebtedness can be modified, altered, amended or waived orally.
28. NOTICE TO JUNIOR LIEN CLAIMANTS. ALL ACTUAL AND POTENTIAL JUNIOR LIEN
CLAIMANTS ARE HEREBY PLACED ON NOTICE THAT THE INDEBTEDNESS SECURED BY THIS
MORTGAGE IS SUBJECT TO CHANGE(S) AS SET FORTH IN SECTION 27. BY TAKING OR
ACCEPTING ITS INTEREST IN THE MORTGAGED PROPERTY SUBJECT TO THIS MORTGAGE, EVERY
JUNIOR LIEN CLAIMANT UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE PRIORITY AND
VALIDITY OF THE LIEN OF THIS MORTGAGE SHALL NOT BE IMPAIRED OR LIMITED IN ANY
WAY BY ANY CHANGE. NOTWITHSTANDING THE MAGNITUDE OR NATURE OF ANY OF THE
FOREGOING, THE SAME SHALL UNDER NO CIRCUMSTANCES BY DEEMED TO CONSTITUTE A
"NOVATION" WITH RESPECT TO ANY OBLIGATION SECURED BY THIS MORTGAGE, OR OTHERWISE
IMPAIR OR REDUCE THE PRIORITY OF THE LIEN OF THIS MORTGAGE.
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29. Miscellaneous. The covenants herein contained shall bind, and the benefits
and advantages shall inure to, the respective successors and assigns of the
parties hereto. Whenever used, the singular number shall include the plural, the
plural the singular, and the use of any gender shall include all genders. If any
provision of this Mortgage is illegal, or hereafter rendered illegal, or is for
any other reason void, voidable or otherwise unenforceable, or hereafter
rendered void, voidable or otherwise unenforceable, the remainder of this
Mortgage shall not be affected thereby but shall be construed as if it does not
contain such provision. Each right and remedy provided in this Mortgage is
distinct and cumulative to all other rights or remedies under this Mortgage or
afforded by law or equity, and may be exercised concurrently, independently or
successively, in any order whatsoever. This Mortgage shall be governed by and
construed in accordance with, the internal laws of the State of Ohio applicable
to contracts made and performed in such state and any applicable laws of the
United States of America, except that with respect to the validity, priority and
enforceability of the lien of this Mortgage and the provisions hereof which
relate to realizing upon the Mortgaged Property, the applicable provisions of
this Mortgage shall be governed by, and interpreted in accordance with, the laws
of the State of Indiana (except for the right of recourse against Borrower to
the extent provided herein which shall be governed by Ohio law), it being
understood that, to the fullest extent permitted by the law of such state, the
law of the State of Ohio shall govern the validity and enforceability of the
obligations arising under this Mortgage, the Note, the Loan Documents, and the
Indebtedness.
PROVIDED, HOWEVER, that these presents are upon the condition that if
Mortgagor shall well and truly pay to Mortgagee, its successors and assigns, the
indebtedness secured hereby (including, without limitation, all advances
heretofore and hereafter made pursuant to the Note, this Mortgage or the Loan
Documents), and shall fully keep and perform all of the conditions and
agreements to be by Mortgagor kept, done and performed, then this Mortgage shall
be void; otherwise it shall remain in full force and effect in law and equity
forever.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be executed
by its duly authorized member as of the 21st day of February, 2003.
MORTGAGOR:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Xxxxxx X. Xxxxxxx, Executive
Vice President
00
XXXXX XX XXXX,
XXXXXX XX XXXXXXXX, XX:
The foregoing instrument was acknowledged before me this 21st day of
February, 2003, by Xxxxxx X. Xxxxxxx, the Executive Vice President of Glimcher
Properties Corporation, the General Partner of Glimcher Properties Limited
Partnership, a Delaware limited partnership, on behalf of the corporation and
limited partnership.
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Notary Public
Printed Name: Xxxxxxx X. Xxxxxxx
------------------
Commission Expires: 7/2/05
--------------------------
County of Residence: Franklin
------------------------
This instrument prepared by: Xxxxxxx X. XxXxxxxx III, Xxxxxxx & Xxxxxx
LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000-0000.
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EXHIBIT "A"
Tax Parcel ID # _______________________
