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Exhibit 10.81
AFTER RECORDING MAIL TO:
Porter, Wright, Xxxxxx & Xxxxxx
00 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
________________SPACE ABOVE THIS LINE FOR RECORDER'S USE_______________________
LONG-FORM DEED OF TRUST,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS LONG-FORM DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT (herein "Instrument") is made this 13th day of October, 1998, between
the Trustor, WEBERSTOWN MALL, LLC, a Delaware limited liability company, whose
address is 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (herein "Borrower"),
CHICAGO TITLE INSURANCE COMPANY, 0000 XxXxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
(herein "Trustee") and the Beneficiary, THE HUNTINGTON NATIONAL BANK, a national
banking association organized and existing under the laws of The United States,
whose address is 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, (herein "Lender").
WHEREAS, Borrower is indebted to Lender in the principal sum of
Fourteen Million and 00/100 Dollars ($14,000,000.00), which indebtedness is
evidenced by a certain note of even date herewith, executed by Borrower,
Glimcher Properties Limited Partnership and Glimcher Development Corporation.
The $14,000,000.00 indebtedness referenced above together with all sums due or
to become due as above provided are herein referred to collectively as the
"Loan". All notes, guaranties and other documents evidencing, securing or
relating to the Loan, together with all renewals thereof, substitutions
therefor, and extensions and modifications thereto are herein referred to
collectively as the "Note"; and
WHEREAS, all real and personal property collateral securing repayment
of the Loan shall be directed to and held by, in the State of California,
Trustee, for the benefit of Lender.
NOW, THEREFORE, IN ORDER TO SECURE TO LENDER (a) the repayment of the
Loan, with interest thereon, and all renewals, extensions, modifications and
revolving re-advances thereof; (b) the payment of all other sums with interest
thereon advanced and re-advanced in accordance herewith to protect the security
of this Instrument; and (c) the performance of the covenants and agreements of
Borrower herein contained, Borrower does hereby grant, convey and assign to
Trustee in trust with power of sale the following described property:
See Exhibit A attached hereto and
incorporated herein by reference.
TOGETHER WITH the following, whether now owned or hereafter acquired by
Borrower: (a) all improvements now or hereafter attached to or placed, erected,
constructed or developed on the property (collectively the "Improvements"); (b)
all fixtures, furnishings, equipment, inventory, and other articles of personal
property (collectively the "Personal Property") that are now or hereafter
attached to or used in or about the Improvements or that are necessary or useful
for the complete and comfortable use and occupancy of the Improvements for the
purposes for which they were or are to be attached, placed, erected, constructed
or developed or that 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 Improvements or the property; (c) all water and water rights,
timber, crops, and mineral interests pertaining to the property; (d) all
building materials and equipment now or hereafter delivered to and intended to
be installed in or on the Improvements or the property; (e) all plans and
specifications for the Improvements; (f) all contracts relating to the property,
the Improvements or the Personal Property; (g) all deposits (including, without
limitation, tenants' security deposits), bank accounts, funds, documents,
contract rights, accounts, commitments, construction agreements, architectural
agreements,
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general intangibles (including, without limitation, trademarks, trade names and
symbols), instruments, notes and chattel paper arising from or by virtue of any
transactions related to the property, the Improvements or the Personal Property;
(h) all permits, licenses, franchises, certificates, and other rights and
privileges obtained in connection with the property, the Improvements or the
Personal Property; (i) all proceeds arising from or by virtue of the sale, lease
or other disposition of the property, the Improvements, the Personal Property or
any portion thereof or interest therein; (j) all proceeds (including, without
limitation, premium refunds) of each policy of insurance relating to the
property, the Improvements or the Personal Property; (k) all proceeds from the
taking of any of the property, 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; (l) all right, title and interest of Borrower 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 property; (m) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the property, 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; (n) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (o) other interests of every kind and character
that Borrower now has or at any time hereafter acquires in and to the property,
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 Borrower with respect thereto (all
of the same, including the property, collectively the "Property").
Borrower covenants that Borrower is lawfully seized of the estate
hereby conveyed and has the right to mortgage, grant, convey and assign the
Property, that the Property is unencumbered except for the lien of a certain
Deed of Trust dated October 13, 1994 in favor of Aid Association for Lutherans,
as beneficiary, recorded as Instrument No. 94115527 in Official Records of San
Xxxxxxx County, California, as amended by Amendment to Deed of Trust dated
August 6, 1996 and recorded as Instrument No. 96081976 in the Official Records
of San Xxxxxxx County, California (the "First Deed of Trust") the lien of this
Instrument and the lien of real estate taxes and assessments not yet due, and
that Borrower will warrant and defend generally the title the Property against
all claims and demands, except for those items approved by Lender for inclusion
in the title insurance policy to be issued.
Borrower and Lender covenant and agree as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly pay when
due the principal of and interest on the indebtedness evidenced by the Note, any
prepayment and late charges provided in the Note, and all other sums secured by
this Instrument.
2. TAXES AND OTHER IMPOSITIONS. Borrower shall promptly pay before
delinquency all taxes, assessments, charges, fines or impositions, general,
local or special (collectively the "Impositions"), levied upon the Property, or
any part thereof, or upon Lender's interest therein, or upon the Property or the
Indebtedness, by any duly or legally constituted public authority, municipality,
township, county or state or the United States, and upon request, will provide
evidence of the payment thereof to Lender; provided that Borrower, at Borrower'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 Borrower may defer the
payment thereof for such period as such contest shall be actively prosecuted and
shall be pending undetermined; further provided, however, that Borrower 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 Property, or the lien thereon
created by such item, to be sold by federal, state, county or municipal
authority for the nonpayment thereof. Pending any such contest, Borrower shall
maintain adequate book reserves with respect to such Impositions being
contested.
In the event that one or more of the Impositions on Lender's interest
in the Property, the Deed of Trust or the Indebtedness cannot be lawfully paid
by Borrower, then Borrower shall repay the Indebtedness in full without penalty
within sixty (60) days after demand therefor by Lender.
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Upon default in payment of any of the following described items, or
upon the occurrence of any other event of default under this Instrument or under
the Note, Lender shall have the right, at its option, and if Lender does not
elect to accelerate the indebtedness secured hereby and to pursue its other
remedies, to require Borrower to pay to Lender on the day monthly installments
of principal or interest are payable under the Note (or on another day
designated in writing by Lender), until the Note is paid in full, a sum (herein
"Funds") equal to one-twelfth of (a) the yearly water and sewer rates and taxes
and assessments which may be levied on the Property; (b) the yearly ground
rents, if any; (c) the yearly premium installments for fire and other hazard
insurance, rent loss insurance and such other insurance covering the Property as
Lender may require pursuant to paragraph 5 hereof; and (d) such other Funds for
other taxes, charges, premiums, assessments and impositions in connection with
Borrower or the Property which Lender shall reasonably deem necessary to protect
Lender's interests (herein "Other Impositions"); all as reasonably estimated
initially and from time to time by Lender.
The Funds shall be held and applied by Lender to pay said rates, rents,
taxes, assessments, insurance premiums and Other Impositions so long as Borrower
is not in breach of any covenant or agreement of Borrower in this Instrument.
Lender shall make no charge for so holding and applying the Funds, analyzing
said account or for verifying and compiling said assessments and bills, unless
Lender is required under applicable law to pay Borrower interest, earnings or
profits on the Funds and applicable law permits Lender to make such a charge.
Unless applicable law requires interest, earnings or profits to be paid, Lender
shall not be required to pay Borrower any interest, earnings or profits on the
Funds. Lender shall give to Borrower, without charge, an annual accounting of
the Funds in Lender's normal format showing credits and debits to the Funds and
the purpose for which each debit to the Funds was made. The Funds are pledged as
additional security for the sums secured by this Instrument and shall be subject
to the right of set off.
If the amount of the Funds held by Lender at the time of the annual
accounting thereof shall exceed the amount deemed necessary by Lender to provide
for the payment of water and sewer rates, taxes, assessments, insurance
premiums, rents and Other Impositions, as they fall due, such excess shall be
credited to Borrower on the next monthly installment or installments of Funds
due. If at any time the amount of the Funds held by Lender shall be less than
the amount deemed necessary by Lender to pay water and sewer rates, taxes,
assessments, insurance premiums, rents and Other Impositions, as they fall due,
Borrower shall pay to Lender any amount necessary to make up the deficiency
immediately after notice from Lender to Borrower requesting payment thereof.
Upon Borrower's breach of any covenant or agreement of Borrower in this
Instrument, Lender may apply, in any amount and in any order as Lender shall
determine in Lender's sole discretion, any Funds held by Lender at the time of
application (a) to pay rates, rents, taxes, assessments, insurance premiums and
Other Impositions which are now or will hereafter become due, or (b) as a credit
against sums secured by this Instrument. Upon payment in full of all sums
secured by this Instrument, Lender shall promptly refund to Borrower any Funds
held by Lender.
3. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise,
all payments received by Lender from Borrower under the Note or this Instrument
shall be applied by Lender in the order provided in the following order of
priority: (a) amounts payable to Lender by Borrower under paragraph 2 hereof;
(b) interest payable on the Note; (c) principal payable on the Note; (d)
interest payable on advances made pursuant to paragraph 8 hereof; (e) principal
of advances made pursuant to paragraph 8 hereof; and (f) any other sums secured
by this Instrument in such order as Lender, at Lender's option, may determine;
provided, however, that Lender may, at Lender's option, apply any sums payable
pursuant to paragraph 8 hereof prior to interest on and principal of the Note,
but such application shall not otherwise affect the order of priority of
application specified in this paragraph 3.
4. CHARGES; LIENS. Except for the First Deed of Trust, which Borrower
shall pay according to its terms, Borrower shall promptly discharge any lien
which has, or may have, priority over or equality with, the lien of this
Instrument, and Borrower shall pay, when due, the claims of all persons
supplying labor or materials to or in connection with the Property. Without
Lender's prior written permission, Borrower shall not allow any lien,
encumbrance, or other interest in the Property inferior to the lien of this
Instrument to be perfected against the Property.
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5. INSURANCE AND INDEMNIFICATION. Borrower shall provide, maintain and
keep in force at all times the following policies of insurance:
(a) Insurance against loss or damage to the Improvements and
the Personal Property caused by fire and any of the risks covered by insurance
of the type now known as "coverage against all risks of physical loss", in an
amount equal to one hundred percent (100%) of the replacement cost of the
Improvements and the Personal Property and sufficient to prevent Borrower and
Lender from becoming co-insurers, and otherwise with terms and conditions
acceptable to Lender;
(b) Comprehensive broad form general liability insurance,
insuring against any and all claims for personal injury, death or property
damage occurring on, in or about the Property, the Improvements and the
adjoining streets, sidewalks and passageways, subject to a combined single limit
of not less than Two Million Dollars ($2,000,000.00) for personal injury, death
or property damage arising out of any one accident and a general aggregate limit
of not less than Five Million Dollars ($5,000,000.00), and otherwise with terms
and conditions acceptable to Lender;
(c) Worker's compensation insurance (including employer's
liability insurance, if available and requested by Lender) for all employees of
Borrower engaged on or with respect to the Property and the Improvements in the
limits established by law or, if limits are not so established, in such amounts
as are acceptable to Lender;
(d) During the course of any development or construction of
the Improvements, builder's completed value risk insurance against "all risks of
physical loss", including collapse and transit coverage, in the amounts set
forth in Subsection 5(a) above, and otherwise with terms and conditions
acceptable to Lender;
(e) Upon obtaining a certificate of occupancy for the
Improvements or any portion thereof, business interruption insurance and/or loss
of "rental value" insurance in an amount not less than the appraised rentals for
the Property for a minimum of twelve (12) months, and otherwise with terms and
conditions acceptable to Lender;
(f) If the Improvements are located in a federally-designated
flood hazard area, then flood hazard coverage, in the maximum amount available
and otherwise with terms and conditions acceptable to Lender; and
(g) Such other insurance coverage, and in such amount, as may
from time to time be required by Lender against the same or other hazards.
All such policies shall be in a form acceptable to Lender. Each policy
of casualty insurance shall contain a mortgagee clause, substantially in the
form of the standard California BFU-438 loss payable endorsement or otherwise
acceptable to Lender, showing Lender as mortgagee. Each policy of liability
insurance shall show Lender as an additional insured. Unless the policy so
provides, each policy of insurance required by the terms of the Deed of Trust
shall contain an endorsement by the insurer, for the benefit of Lender, (i) that
any loss shall be payable in accordance with the terms of such policy
notwithstanding any act or negligence of Borrower which might otherwise result
in forfeiture of said insurance, (ii) that any rights of set-off, counterclaim
or deductions against Borrower are waived and (iii) that such policy shall not
be canceled or changed except upon not less than thirty (30) days prior written
notice delivered to Lender.
All such insurance policies and renewals thereof shall be written by
companies with a Best's Insurance Reports policy holders rating of A+ and a
financial size category of Class XV or be expressly approved by Lender in
writing.
Lender shall have the right to hold the policies, or certificates
thereof acceptable to Lender with certified copies of the policies, and Borrower
shall promptly furnish to Lender all renewal notices and all receipts of paid
premiums. At least thirty (30) days prior to the expiration date of any such
policy, Borrower shall deliver to Lender a renewal policy, or certificate
thereof, in form acceptable to Lender.
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If Lender is made a party defendant to any litigation concerning the
Loan Documents or the Property or any part thereof or interest therein or the
occupancy thereof by Borrower, then Borrower shall indemnify, defend and hold
Lender harmless from all liability by reason of said litigation, including
reasonable attorneys' fees and expenses incurred by Lender in any such
litigation, whether or not any such litigation is prosecuted to judgment.
Borrower waives any and all right to claim or recover against Lender, its
officers, employees, agents and representatives, for loss of or damage to
Borrower, the Property, other property of Borrower or the property of others
under control of Borrower from any cause insured against or required to be
insured against by the provisions of the Deed of Trust.
Borrower 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 Lender has approved the insurance company and the form and
content of the insurance policy, including, without limitation, the naming
thereon of Lender as a named insured with loss payable to Lender under a
standard mortgage clause of the character above described. Borrower shall
immediately notify Lender whenever any such separate insurance is taken out and
shall promptly deliver to Lender copies of the policies and certificates
evidencing such insurance.
Nothing contained in this Section 5 shall prevent Borrower from keeping
the Improvements and Personal Property insured or causing the same to be insured
against the risks referred to in this Section 5 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Deed of Trust; provided, however, that any such policy of blanket insurance (i)
shall specify therein the amount of the total insurance allocated to the
Improvements and Personal Property, which amount shall be not less than the
amount otherwise required to be carried under the Deed of Trust; (ii) shall not
contain any clause which would result in the insured thereunder 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 the Deed of Trust.
Subject to the rights of the holder of the First Deed of Trust, in the
event the damage or destruction to the Improvements is in an amount of
$500,000.00 or less, and provided there is no Event of Default, as hereinafter
defined, the insurance proceeds shall be paid to Borrower, and used by Borrower
to (i) repair or restore the Improvements to the same condition in which they
were prior to the Casualty, or (ii) for its own purposes, after first making
such repairs to the remaining Improvements so that the same may continue as a
first class shopping center, both architecturally and aesthetically. Borrower
may elect option (ii) above only if it first provides to Lender evidence
satisfactory to Lender that there will be no material decrease in the fair
market value of the Property.
Subject to the rights of the holder of the First Deed of Trust, in the
event the damage or destruction to the Improvements is in an amount in excess of
$500,000.00, and provided there is no Event of Default, as hereinafter defined,
the insurance proceeds are to be applied toward the restoration of the
Improvements. Such sums shall be deposited in escrow with Lender as escrow agent
for the purpose of repairing, restoring or reconstructing the Improvements. Such
proceeds shall be disbursed by Lender as work progresses, provided that prior to
any disbursement, Lender is in receipt of proof reasonably satisfactory to it
that: (i) the work has been completed, (ii) there are no outstanding mechanics
liens or materialmen's liens, and (iii) that all charges, costs and expenses
incurred with respect to work completed have been paid in full or will be paid
in full with such proceeds. Prior to the release of any proceeds, Lender must be
satisfied that repair, restoration or reconstruction of the damaged or destroyed
Improvements will be substantially equal in size, quality and value to the
Improvements then presently erected on the Property as existed immediately prior
to the loss and the plans and specifications therefor must be approved by
Lender. In the event Lender believes it is necessary in order to establish
value, Lender may, at its option, cause the Property to be reappraised at
Borrower's expense. All insurance proceeds shall be payable to Lender. The
adjustment of such insurance proceeds with the carrier must be approved by
Lender.
Subject to the rights of the holder of the First Deed of Trust,
anything in this Section 5 to the contrary notwithstanding, if there shall be an
Event of Default, as hereinafter defined, the insurance proceeds shall, at the
sole option of Lender, be applied by Lender to the Indebtedness in such order as
Lender may determine.
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6. PRESERVATION AND MAINTENANCE OF PROPERTY; LEASEHOLDS. Borrower (a)
shall not commit waste or permit impairment or deterioration of the Property,
(b) shall not abandon the Property, (c) shall restore or repair promptly and in
a good and workmanlike manner all or any part of the Property to the equivalent
of its original condition, or such other condition as Lender may approve in
writing, in the event of any damage, injury or loss thereto, whether or not
insurance proceeds are sufficient to cover in whole or in part the costs of such
restoration or repair, (d) shall keep the Property, including improvements,
fixtures, equipment, machinery and appliances thereon in good repair and shall
replace fixtures, equipment, machinery and appliances on the Property when
necessary to keep such items in good repair, (e) shall comply with all laws,
ordinances, regulations and requirements of any governmental body applicable to
the Property, (f) shall operate the Property as a shopping center, and (g) shall
give notice in writing to Lender of and, unless otherwise directed in writing by
Lender, appear in and defend any action or proceeding purporting to affect the
Property, the security of this Instrument or the rights or powers of Lender or
Trustee. Neither Borrower nor any tenant or other person shall remove, demolish
or alter any improvement now existing or hereafter erected on the Property or
any fixture, equipment, machinery or appliance in or on the Property except when
incident to the replacement of fixtures, equipment, machinery and appliances
with items of like kind.
Borrower shall keep and perform all of the terms and provisions of the
First Deed of Trust; shall promptly pay all sums secured thereby when due and
shall make no further borrowings on the security thereof without the prior
written consent of Lender, which consent Lender may withhold in its sole
discretion. In the event Borrower shall receive a notice that it is in default
under the First Deed of Trust, it will promptly communicate such fact to Lender.
7. USE OF PROPERTY. Unless required by applicable law or unless Lender
has otherwise agreed in writing, Borrower shall not allow changes in the use for
which all or any part of the Property was intended at the time this Instrument
was executed. Borrower shall not initiate or acquiesce in a change in the zoning
classification of the Property without Lender's prior written consent.
8. PROTECTION OF LENDER'S OR TRUSTEE'S SECURITY. If Borrower fails to
perform the covenants and agreements contained in this Instrument, or if any
action or proceeding is commenced which affects the Property or title thereto or
the interest of Lender or Trustee therein, including, but not limited to,
eminent domain, insolvency, code enforcement, or arrangements or proceedings
involving a bankrupt or decedent, then Trustee or Lender at Trustee's or
Lender's respective option may make such appearances, disburse such sums and
take such action as Trustee or Lender deems necessary, in its sole discretion,
to protect Trustee's or Lender's interest, including, but not limited to, (a)
disbursement of attorney's fees, (b) entry upon the Property to make repairs,
(c) procurement of satisfactory insurance as provided in paragraph 5 hereof, and
(d) if this Instrument encumbers a leasehold, exercise of any option to renew or
extend the ground lease on behalf of Borrower and the curing of any default of
Borrower in the terms and conditions of the ground lease.
Any amounts disbursed by Trustee or Lender pursuant to this paragraph,
with interest thereon, shall become additional indebtedness of Borrower secured
by this Instrument. Unless Borrower and Trustee or Lender agree to other terms
of payment, such amounts shall be immediately due and payable and shall bear
interest from the date of disbursement at the rate stated in the Note unless
collection from Borrower of interest at such rate would be contrary to
applicable law, in which event such amounts shall bear interest at the highest
rate which may be collected from Borrower under applicable law. Borrower hereby
covenants and agrees that Lender shall be subrogated to the lien of any mortgage
or other lien discharged, in whole or in part, by the indebtedness secured
hereby. Nothing contained in this paragraph shall require Trustee or Lender to
incur any expense or take any action hereunder.
9. INSPECTION. Any person authorized by Lender shall have the right to
enter upon and inspect the Property after reasonable notice to Borrowers and
during normal business hours. Lender shall have no duty, however, to make such
inspections. Any inspection of the Property by Lender shall be entirely for its
benefit, and Borrower shall in no way rely or claim reliance thereon.
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10. RENT ROLL AND FINANCIAL STATEMENTS. Borrower shall maintain full
and correct books and records open to Lender's inspection showing in detail the
income, expenses and earnings of Borrower and of the Property, and shall provide
Lender the following:
(a) a financial statement for the Property consisting of a
complete itemized statement of income and operating expenses, prepared in
accordance with general accounting principles or otherwise in form acceptable to
Lender and certified by Borrower's chief executive or financial officer, within
ninety (90) days after the end of each fiscal year of Borrower, or as requested
from time to time by Lender, but not more often than quarterly;
(b) a rent roll of the Property, certified by the chief
executive or financial officer of Borrower, within thirty (30) days after the
end of each fiscal year of Borrower, or as requested from time to time by
Lender, but not more often than quarterly, containing the name and address of
each tenant, square footage of leased premises, annual rent, rent per square
foot, lease commencement date, lease expiration date, date through which rent is
paid, and the nature and extent of any defaults by each tenant;
(c) a financial statement for Borrower consisting of a balance
sheet and a complete itemized statement of annual income and operating expenses
of Borrower, prepared in accordance with generally accepted accounting
principles or otherwise in form acceptable to Lender and certified by Borrower's
chief executive or financial officer, within ninety (90) days after the end of
each fiscal year of Borrower, or as requested from time to time by Lender;
(d) such other financial information as Lender may reasonably
require, when requested from time to time by Lender.
11. CONDEMNATION. If all the Property and Improvements are taken or
acquired in any condemnation proceeding or by exercise of the right of eminent
domain or, with Lender'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, subject to the rights of the holder of the First Deed
of Trust, hereby assigned to Lender, and Lender is empowered to collect and
receive the same and to give proper receipts therefor in the name of Borrower,
and the same shall be paid forthwith to Lender. Such award or payment so
received by Lender shall be applied to the Indebtedness (whether or not then due
and payable).
Subject to the rights of the holder of the First Deed of Trust, in the
event a portion of the Property Improvements are acquired in any condemnation
proceeding or by the exercise of the right of eminent domain, to the extent that
the damage to the Property or improvements is in the amount of $500,000.00 or
less, and provided there is no Event of Default, as hereinafter defined, the
proceeds of any such condemnation or eminent domain award shall be paid to
Borrower, who shall use such proceeds as provided for in paragraph 5 hereof with
respect to the disbursement of insurance proceeds where the damage or
destruction is in an amount of $500,000.00 or less. The provisions of paragraph
5 where there is damage or destruction in an amount of $500,000.00 or less shall
apply as if fully rewritten.
Subject to the rights of the holder of the First Deed of Trust, in the
event the damage to the Improvements or Property by virtue of such condemnation
proceeding or eminent domain proceeding is in an amount in excess of
$500,000.00, and provided there is no Event of Default, as hereinafter defined,
the proceeds of such eminent domain or condemnation award shall be deposited in
escrow with Lender as escrow agent for the purpose of repairing, restoring, or
reconstructing the Improvements and/or Property, and shall be disbursed by
Lender in accordance with the provisions of paragraph 5 hereof with respect to
the disbursement of insurance proceeds, where the damage or destruction is in an
amount of $500,000.00 or greater. The conditions to disbursement, including the
requirement that Lender be satisfied that the repaired or restored Improvements
would be equal in size, quality and value to those which existed previously, and
the right to cause the Property to be reappraised, as provided for where there
is damage or destruction of $500,000.00 or greater, shall be applicable as if
fully rewritten.
Anything in this Section 11 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award
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shall, at the sole option of Lender, be applied by Lender to the Indebtedness in
such order as Lender may determine.
12. BORROWER AND LIEN NOT RELEASED. From time to time, Trustee at
Lender's direction and Lender may, at Lender's option, without giving notice to
or obtaining the consent of Borrower, Borrower's successors or assigns or of any
junior lienholder or guarantors, without liability on Trustee's or Lender's part
and notwithstanding Borrower's breach of any covenant or agreement of Borrower
in this Instrument, extend the time for payment of said indebtedness or any part
thereof, reduce the payments thereon, release anyone liable on any of said
indebtedness, accept a renewal note or notes therefor, release from the lien of
this Instrument any part of the Property, take or release other or additional
security, reconvey any part of the Property, consent to any map or plan of the
Property, consent to the granting of any easement, join in any extension or
subordination agreement, agree in writing with Borrower to modify the rate of
interest or period of amortization of the Note, or change the amount of the
monthly installments payable thereunder. Any actions taken by Trustee or Lender
pursuant to the terms of this paragraph shall not affect the obligation of
Borrower or Borrower's successors or assigns to pay the sums secured by this
Instrument and to observe the covenants of Borrower contained herein, shall not
affect the guaranty of any person, corporation, partnership or other entity for
payment of the indebtedness secured hereby, and shall not affect the lien or
priority of lien hereof on the Property. Borrower shall pay Trustee and Lender a
reasonable service charge, together with such title insurance premiums and
attorney's fees as may be incurred at Lender's option for any such action if
taken at Borrower's request.
13. FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by Lender in
exercising or directing any right or remedy hereunder, or otherwise afforded by
applicable law, shall not be a waiver of or preclude the exercise of any right
or remedy. The acceptance by Lender of payment of any sum secured by this
Instrument after the due date of such payment shall not be a waiver of Lender's
right to either-require prompt payment when due of all other sums so secured or
to declare a default for failure to make prompt payment. The procurement of
insurance or the payment of taxes or other liens or charges by Lender shall not
be a waiver of Lender's right to accelerate the maturity of the indebtedness
secured by this Instrument. Lender's receipt of any awards, proceeds or damages
under paragraphs 5 and 11 hereof shall not operate to cure or waive Borrower's
default in payment of sums secured by this Instrument.
14. ESTOPPEL CERTIFICATE. Borrower shall, within ten days of a written
request from Lender, furnish Lender with a written statement, duly acknowledged,
setting forth the sums secured by this Instrument and any right of set-off,
counterclaim or other defense which exists against such sums and the obligations
of this Instrument.
15. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. In addition to being a
Long-Form Deed of Trust and Assignment of Rents, this Instrument is intended to
be a security agreement pursuant to the Uniform Commercial Code for any of the
items specified above as part of the Property which under applicable law, may be
subject to a security interest pursuant to the Uniform Commercial Code, and
Borrower hereby grants Lender a security interest in said items. Borrower agrees
that Lender may file this Instrument, or a reproduction thereof, in the real
estate records or other appropriate index, as a financing statement for any of
the items specified above as part of the Property. Any reproduction of this
Instrument or of any other security agreement or financing statement shall be
sufficient as a financing statement. In addition, Borrower agrees to execute and
deliver to Lender, upon Lender's request, any financing statements, as well as
extensions, renewals and amendments thereof, and reproductions of this
Instrument in such form as Lender may require to perfect a security interest
with respect to said items. Borrower shall pay all costs of filing such
financing statements and any extensions, renewals, amendments and releases
thereof. Without the prior written consent of Lender, Borrower shall not create
or suffer to be created pursuant to the Uniform Commercial Code any other
security interest in said items, including replacements and additions thereto.
Upon Borrower's breach of any covenant or agreement of Borrower contained in
this Instrument, including the covenants to pay when due all sums secured by
this Instrument, Lender shall have the remedies of a secured party under the
Uniform Commercial Code and, at Lender's option, may also invoke the remedies
provided in paragraph 25 of this Instrument as to such items. In exercising any
of said remedies, Lender may proceed against the items of real property and any
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items of personal property specified above as part of the Property separately or
together and in any order whatsoever, without in any way affecting the
availability of Lender's remedies under the Uniform Commercial Code or of the
remedies provided in paragraph 25 of this Instrument.
16. LEASES OF THE PROPERTY. Borrower shall comply with and observe
Borrower's obligations as landlord under all leases of the Property or any part
thereof. Borrower shall furnish Lender with executed copies of all leases now
existing or hereafter made of all or any part of the Property.
Borrower shall, at Borrower'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 Huntington of any failure to do so. Borrower
shall use all reasonable efforts to enforce or secure the performance of each
and every obligation and undertaking of the tenants under the Leases and shall
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.
Borrower does hereby assign to Lender, as additional security, all
leases now existing or hereafter made of all or any part of the Property and, to
the extent permitted by applicable law, all security deposits made by tenants in
connection with such leases of the Property. Upon Borrower's default, Lender, at
Lender's option, shall have all of the rights and powers possessed by Borrower
prior to such assignment.
17. REMEDIES CUMULATIVE. Each remedy provided in this Instrument is
distinct and cumulative to all other rights or remedies under this Instrument or
afforded by law or equity, and may be exercised concurrently, independently, or
successively, in any order whatsoever.
18. ACCELERATION IN CASE OF BORROWER'S INSOLVENCY. If Borrower shall
voluntarily file a petition under the Federal Bankruptcy Code, as such Code may
from time to time be amended, or under any similar or successor Federal Statute
relating to bankruptcy, insolvency, arrangements or reorganizations, or under
any state bankruptcy or insolvency act, or file an answer in an involuntary
proceeding admitting insolvency or failure to pay debts as they come due, or if
Borrower shall fail within 60 days to obtain a vacation, stay or dismissal of
involuntary proceedings brought for the reorganization, dissolution or
liquidation of Borrower, or if an order for relief under the Federal Bankruptcy
Code shall be entered against the Borrower, or if a trustee, receiver or
custodian shall be appointed for Borrower or Borrower's property, or if the
Property shall become subject to the jurisdiction of a Federal bankruptcy court
or similar state court, or if Borrower shall make an assignment for the benefit
of Borrower's creditors, or if there is an attachment, execution or other
judicial seizure of any portion of Borrower's assets and such seizure is not
discharged within 60 days, then Lender may, at Lender's option, declare all of
the sums secured by this Instrument to be immediately due and payable without
prior notice to Borrower, and Lender may invoke any remedies permitted by
paragraph 25 of this Instrument. Any attorney's fees and other expenses incurred
by Lender in connection with Borrower's bankruptcy or any of the other aforesaid
events shall be additional indebtedness of Borrower secured by this Instrument
pursuant to paragraph 8 hereof.
19. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER. On
sale, encumbrance. or transfer of (a) all or any part of the Property, or any
interest therein, or (b) beneficial interests in Borrower, Lender may, at
Lender's option, declare all of the sums secured by this Instrument to be
immediately due and payable, and Lender may invoke any remedies permitted by
paragraph 25 of this Instrument. This option shall not apply in case of:
(i) transfers by devise or descent or by operation of law upon
the death of a tenant in common or a partner;
(ii) the grant of a leasehold interest in a part of the
Property of three years or less (or such longer lease term as Lender may permit
by prior written approval) not containing an option to purchase (except any
interest in the ground lease, if this Instrument encumbers a leasehold); and
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(iii) sales or transfers of fixtures or any personal property
pursuant to paragraph 6 hereof.
20. NOTICE. Any notice required or permitted to be given hereunder
shall be in writing. If mailed by first class United States mail, postage
prepaid, registered or certified with return receipt requested, then such shall
be effective upon its deposit in the mails. Notice given in any other manner
shall be effective only if and when received by the addressee. For purposes of
notice, the addresses of Borrower and Lender 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.
If to Borrower: Weberstown Mall, LLC
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
If to Lender: The Huntington National Bank
Commercial Real Estate Group
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
21. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
CAPTIONS. The covenants and agreements herein contained shall bind, and the
rights hereunder shall inure to, the respective successors and assigns of
Trustee, Lender and Borrower, subject to the provisions of paragraph 19 hereof.
Lender or any successor in ownership of any indebtedness secured hereby, may
from time to time, by instrument in writing, substitute a successor or
successors to any Trustee named herein or acting hereunder, which instrument,
executed by the Lender and duly acknowledged and recorded in the office of the
recorder of the county or counties where said property is situated, shall be
conclusive proof of proper substitution of such successor Trustee or Trustees,
who shall, without conveyance from the Trustee predecessor, succeed to all its
title, estate, rights, powers and duties. Said instrument must contain the name
of the original Borrower, Trustee and Lender hereunder, the book and page where
this Deed is recorded and the name and address- of the new Trustee. All
covenants and agreements of Borrower shall be joint and several. In exercising
any rights hereunder or taking any actions provided for herein, Lender may act
through its employees, agents or independent contractors as authorized by
Lender. The captions and headings of the paragraphs of this Instrument are for
convenience only and are not to be used to interpret or define the provisions
hereof.
22. GOVERNING LAW; SEVERABILITY. This Instrument shall be governed by
the law of the jurisdiction in which the Property is located. In the event that
any provision of this Instrument or the Note conflicts with applicable law, such
conflict shall not affect other provisions of this Instrument or the Note which
can be given effect without the conflicting provisions, and to this end the
provisions of this Instrument and the Note are declared to be severable. In the
event that any applicable law limiting the amount of interest or other charge
permitted to be collected from Borrower is interpreted so that any charge
provided for in this Instrument or in the Note, whether considered separately or
together with other charges levied in connection with this Instrument and the
Note, violates such law, and Borrower is entitled to the benefit of such law,
such charge is hereby reduced to the extent necessary to eliminate such
violation. The amounts, if any, previously paid to Lender in excess of the
amounts payable to Lender pursuant to such charges as reduced shall be applied
by Lender to reduce the principal of the indebtedness evidenced by the Note. For
the purpose of determining whether any applicable law limiting the amount of
interest or other charges permitted to be collected from Borrower has been
violated, all indebtedness which is secured by this Instrument or evidenced by
the Note and which constitutes interest, as well as all other charges levied in
connection with such indebtedness which constitute interest, shall be deemed to
be uniformly allocated and spread over the stated term of the Note.
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23. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives the right
to assert any statute of limitations as a bar to the enforcement of the lien of
this Instrument or to any action brought to enforce the Note or any other
obligation secured by this Instrument.
24. WAIVER OF MARSHALLING. Notwithstanding the existence of any other
security interests in the Property held by Trustee or Lender or by any other
party, Lender shall have the right to determine the order in which any or all of
the Property shall be subjected 'to the remedies provided herein. Lender shall
have the right to determine the order in which any or all portions of the
indebtedness secured hereby are satisfied from the proceeds realized upon the
exercise of the remedies provided herein. Borrower, any party who consents to
this Instrument, and any party who now or hereafter acquires a security interest
in the Property and who has actual or constructive notice hereof 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.
25. ACCELERATION; REMEDIES. Upon default by Borrower in payment of any
indebtedness secured hereby or in performance of any agreement hereunder, Lender
may declare all sums secured hereby, immediately due and payable by delivery to
Trustee of written declaration of default and demand for sale and of written
notice of default and of election to cause to be sold said property, which
notice Trustee shall cause to be filed for record. Lender also shall deposit
with Trustee this Deed, the Note and all documents evidencing expenditures
secured hereby.
After the lapse of such time as may then be required by law following
the recordation of said notice of default, and notice of sale having been given
as then required by law, Trustee, without demand on Borrower, shall sell said
property at the time and place fixed by it in said notice of sale, either as a
whole or in separate parcels, and in such order as it may determine, at public
auction to the highest bidder for cash in lawful money of the United States,
payable at time of sale. Trustee may postpone sale of all or any portion of said
property by public announcement at such time and place of sale, and from time to
time thereafter may postpone such sale by public announcement at the time fixed
by the preceding postponement. Trustee shall deliver to such purchaser its deed
conveying the property so sold, but without any covenant or warranty, express or
implied. The recitals in such deed of any matters or facts shall be conclusive
proof of the truthfulness thereof. Any person, including Borrower, Trustee, or
Lender may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this
Trust, including cost of evidence of title in connection with sale, Trustee
shall apply the proceeds of sale to payment of: all sums expended under the
terms hereof, not then repaid, with accrued interest at the amount allowed by
law in effect at the date hereof; all other sums then secured hereby; and the
remainder, if any, to the person or persons legally entitled thereto.
26. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN POSSESSION.
As part of the consideration for the indebtedness evidenced by the Note, subject
to the rights of the holder of the First Deed of Trust, Borrower hereby
absolutely and unconditionally assigns and transfers to Lender all the rents and
revenues of the Property, including those now due, past due, or to become due by
virtue of any lease, license or other agreement for the occupancy or use of all
or any part of the Property, regardless of to whom the rents and revenues of the
Property are payable. Subject to the rights of the holder of the First Deed of
Trust, Borrower hereby authorizes Lender or Lender's agents to collect the
aforesaid rents and revenues and hereby directs each tenant of the Property to
pay such rents to Lender or Lender's agents; provided, however, that prior to
written notice given by Lender to Borrower of the breach by Borrower of any
covenant or agreement of Borrower in this Instrument, Borrower shall collect and
receive all rents and revenues of the Property as trustee for the benefit of
Lender and Borrower, to apply the rents and revenues so collected to the sums
secured by this Instrument in the order provided in paragraph 3 hereof with the
balance, so long as no such breach has occurred, to the account of Borrower, it
being intended by Borrower and Lender that this assignment of rents constitutes
an absolute assignment and not an assignment for additional security only. Upon
delivery of written notice by Lender to Borrower of the breach by Borrower of
any covenant or agreement of Borrower in this Instrument, and without the
necessity of Lender entering upon and taking and maintaining full control of the
Property in person, by agent
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or by a court-appointed receiver, Lender shall, subject to the rights of the
holder of the First Deed of Trust, immediately be entitled to possession of all
rents and revenues of the Property as specified in this paragraph as the same
become due and payable, including but not limited to rents then due and unpaid,
and all such rents shall immediately upon delivery of such notice be held by
Borrower as trustee for the benefit of Lender only; provided, however, that the
written notice by Lender to Borrower of the breach by Borrower shall contain a
statement that Lender exercises its rights to such rents. Borrower agrees that
commencing upon delivery of such written notice of Borrower's breach by Lender
to Borrower, each tenant of the Property shall, subject to the rights of the
holder of the First Deed of Trust, make such rents payable to and pay such rents
to Lender or Lender's agents on Lender's written demand to each tenant therefor,
delivered to each tenant personally, by mail or delivering such demand to each
rental unit, without any liability on the part of said tenant to inquire further
as to the existence of a default by Borrower.
Except for an assignment in favor of the holder of the First Deed of
Trust, Borrower hereby covenants that Borrower has not executed any prior
assignment of said rents, that Borrower has not performed, and will not perform,
any acts or has not executed, and will not execute, any instrument which would
prevent Lender from exercising its rights under this paragraph, and that at the
time of execution of this Instrument there has been no anticipation or
prepayment of any of the rents of the Property for more than one month prior to
the due dates of such rents. Borrower covenants that Borrower will not hereafter
collect or accept payment of any rents of the Property more than one month prior
to the due dates of such rents. Borrower further covenants that Borrower will
execute and deliver to Lender such further assignments of rents and revenues of
the Property as Lender may from time to time request.
Upon Borrower's breach of any covenant or agreement of Borrower in this
Instrument, Lender may, subject to the rights of the holder of the First Deed of
Trust, in person, by agent or by a court-appointed receiver, regardless of the
adequacy of Lender's security, enter upon and take and maintain full control of
the Property in order to perform all acts necessary and appropriate for the
operation and maintenance thereof including, but not limited to, the execution,
cancellation or modification of leases, the collection of all rents and revenues
of the Property, the making of repairs to the Property and the execution or
termination of contracts providing for the management or maintenance of the
Property, all on such terms as are deemed best to protect the security of this
Instrument. In the event Lender elects to seek the appointment of a receiver for
the Property upon Borrower's breach of any covenant or agreement of Borrower in
this Instrument, Borrower hereby expressly consents to the appointment of such
receiver. Lender or the receiver shall be entitled to receive a reasonable fee
for so managing the Property.
Subject to the rights of the holder of the First Deed of Trust, all
rents and revenues collected subsequent to delivery of written notice by Lender
to Borrower of the breach by Borrower of any covenant or agreement of Borrower
in this Instrument shall be applied first to the costs, if any, of taking
control of and managing the Property and collecting the rents, including, but
not limited to, attorney's fees, receiver's fees, premiums on receiver's bonds,
costs of repairs to the Property, premiums on insurance policies, taxes,
assessments and other charges on the Property, and the costs of discharging any
obligation or liability of Borrower as lessor or landlord of the Property and
then to the sums secured by this Instrument. Lender or the receiver shall have
access to the books and records used in the operation and maintenance of the
Property and shall be liable to account only for those rents actually received.
Lender shall not be liable to Borrower, anyone claiming under or through
Borrower or anyone having an interest in the Property by reason of anything done
or left undone by Lender under this paragraph.
If the rents of the Property are not sufficient to meet the costs, if
any, of taking control of and managing the Property and collecting the rents,
any funds expended by Lender for such purposes shall become indebtedness of
Borrower to Lender secured by this Instrument pursuant to paragraph 8 hereof.
Unless Lender and Borrower agree in writing to other terms of payment, such
amounts shall be payable upon notice from Lender to Borrower requesting payment
thereof and shall bear interest from the date of disbursement at the rate stated
in the Note.
Any entering upon and taking and maintaining of control of the Property
by Lender or the receiver and any application of rents as provided herein shall
not cure or waive any default hereunder or invalidate any other right or remedy
of Lender under applicable law or as provided
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herein. This assignment of rents shall terminate at such time as this Instrument
ceases to secure indebtedness held by Lender.
27. HAZARDOUS SUBSTANCES.
(a) Borrower hereby covenants and agrees with Lender that the
following terms shall have the following meanings:
(i) "Environmental Laws" means all federal, state and
local laws, statutes, ordinances, and codes relating to the use, storage,
treatment, generation, transportation, processing, handling, production or
disposal of any Hazardous Substance and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives with respect
thereto.
(ii) "Hazardous Substance" means, without limitation,
any flammable explosives, radioactive materials, asbestos, urea formaldehyde
foam insulation, polychlorinated biphenyls, petroleum and petroleum based
products, methane, hazardous materials, hazardous wastes, hazardous or toxic
Substances or related materials, as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601, et seq.), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. Sections 6901, et seq.), the Toxic Substances Control Act, as
amended (15 U.S.C. Sections 2601, et seq.), or any other applicable
Environmental Law.
(iii) "Indemnitee" means Lender, its participants in
the loan, and all subsequent holders of this Instrument, their respective
successors and assigns, their respective officers, directors, employees, agents,
representatives, contractors and subcontractors and any subsequent owner of the
Property who acquires title thereto from or through Lender.
(iv) "Release" has the same meaning as given to that
term in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, et seq.), and the regulations
promulgated thereunder.
(b) Borrower represents and warrants to Lender that, to its
knowledge after due investigation except as may be set forth in the
environmental report for the Property delivered to Lender in connection
herewith: (i) the Property is not being and has not been used for the storage,
treatment, generation, transportation, processing, handling, production or
disposal of any Hazardous Substance in violation of any Environmental Laws; (ii)
the Property does not contain any Hazardous Substance in violation of any
Environmental Laws; (iii) there has been no Release of any Hazardous Substance
on, at or from the Property or any property adjacent to or within the immediate
vicinity of the Property, and Borrower has not received any form of notice or
inquiry with regard to such a Release or the threat of such a Release; (iv) no
event has occurred with respect to the Property which, with the passage of time
or the giving of notice, or both, would constitute a violation of any applicable
Environmental Law; (v) there are no agreements or orders or directives of any
federal, state or local governmental agency or authority relating to the
Property which require any work, repair, construction, containment, clean up,
investigations, studies, removal or other remedial action with respect to the
Property and (vi) there are no actions, suits, claims or proceedings, pending or
threatened, which seek any remedy that arise out of the condition, ownership,
use, operation, sale, transfer or conveyance of the Property and (a) a violation
or alleged violation of any applicable Environmental Law, (b) the presence of
any Hazardous Substance or a Release of any Hazardous Substance or the threat of
such a Release, or (c) human exposure to any Hazardous Substance.
(c) Borrower covenants and agrees with Lender as follows:
(i) Borrower shall keep, and shall use reasonable
efforts to cause all operators, tenants, sub-tenants, licensees, and occupants
of the Property to keep, the Property free of all Hazardous Substances, except
for Hazardous Substances stored, treated, generated, transported, processed,
handled, produced or disposed of in the normal operation of the Property as a
shopping center in accordance with all Environmental Laws.
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(ii) Borrower shall comply with, and shall use
reasonable efforts to cause all operators, tenants, sub-tenants, licensees, and
occupants of the Property to comply with, all Environmental Laws.
(iii) Borrower shall promptly provide Lender with a
copy of all notifications which it gives or receives with respect to any past or
present Release of any Hazardous Substance or the threat of such a Release on,
at or from the Property or any property adjacent to or within the immediate
vicinity of the Property.
(iv) Borrower shall undertake and complete all
investigations, studies, sampling and testing for Hazardous Substances
reasonably required by Lender and, in accordance with all Environmental Laws,
all removal and other remedial actions necessary to contain, remove, and clean
up all Hazardous Substances that are determined to be present at the Property in
violation of any Environmental Law.
(v) Lender shall have the right, but not the
obligation, to cure any violation by Borrower of the Environmental Laws and
Lender's cost and expense to so cure shall be secured by this Instrument.
(d) Borrower covenants and agrees, at its sole cost and expense,
to indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Indemnitee
arising out of the condition, ownership, use, operation, sale, transfer or
conveyance of the Property and (i) the storage, treatment, generation,
transportation, processing, handling, production or disposal of any Hazardous
Substance, (ii) the presence of any Hazardous Substance or a Release of any
Hazardous Substance or the threat of such a Release, (iii) human exposure to any
Hazardous Substance, (iv) a violation of any Environmental Law, or (v) a
material misrepresentation or inaccuracy in any representation or warranty or
material breach of or failure to perform any covenant made by Borrower herein
(collectively the "Indemnified Matters").
The liability of Borrower to Indemnitee hereunder shall in no way
be limited, abridged, impaired or otherwise affected by (a) the repayment of all
sums and the satisfaction of all obligations of Borrower under the Note, this
Instrument, or any other instrument evidencing or securing the Note (herein
collectively the "Loan Documents"), (b) the foreclosure of this Instrument or
the acceptance of a deed in lieu thereof, (c) any amendment or modification of
the Loan Documents by or for the benefit of Borrower or any subsequent owner of
the Property, (d) any extensions of time for payment or performance required by
any of the Loan Documents, (e) the release or discharge of this Instrument or of
Borrower, any guarantor of the loan, or any other person from the performance or
observance of any of the agreements, covenants, terms or conditions contained in
any of the Loan Documents whether by Lender, by operation of law, or otherwise,
(f) the invalidity or unenforceability of any of the terms or provisions of the
Loan Documents, (g) any applicable statute of limitations, (h) the sale or
assignment of the Note or this Instrument, (i) the sale, transfer, or conveyance
of all or part of the Property, (j) the dissolution or liquidation of Borrower,
(k) the release or discharge, in whole or in part, of Borrower in any
bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or similar proceeding, or (l) any other circumstances which might
otherwise constitute a legal or equitable release or discharge, in whole or in
part, of Borrower under the Note or this Instrument.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Borrower may have to Lender at common law.
28. RELEASE. Upon payment of all sums secured by this Instrument,
Lender shall discharge this Instrument. Borrower shall pay Lender's reasonable
costs incurred in discharging this Instrument.
29. TRUSTEE. Trustee accepts this Trust when this Deed, duly executed
and acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any
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party hereto of pending sale under any other Deed of Trust or of any action or
proceeding in which Borrower, Lender or Trustee shall be a party unless brought
by Trustee.
30. 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 the Deed of Trust 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 the Deed of
Trust shall not be affected thereby, but shall be construed as if it does not
contain such provision. Each right and remedy provided in the Deed of Trust is
distinct and cumulative to all other rights or remedies under the Deed of Trust
or afforded by law or equity, and may be exercised concurrently, independently
or successively, in any order whatsoever. The Deed of Trust shall be governed by
and construed under the laws of the State of California.
LENDER, BY ACCEPTANCE OF THIS DEED OF TRUST, AND BORROWER HEREBY
MUTUALLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE FOR THE BENEFIT OF
THE OTHER ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE LOAN, THE TRANSACTIONS RELATED THERETO OR THE
RELATIONSHIP ESTABLISHED THEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT TO
LENDER AND BORROWER TO ENTER INTO THIS TRANSACTION. IT SHALL NOT IN ANY WAY
AFFECT, WAIVE, LIMIT, AMEND OR MODIFY LENDER'S ABILITY TO PURSUE ITS REMEDIES.
IN WITNESS WHEREOF, Borrower, by its duly authorized officer, has
executed this Instrument.
Signed and acknowledged WEBERSTOWN MALL, LLC, a Delaware Limited
in the presence of liability company
Glimcher Weberstown, Inc., a Delaware
corporation Managing Member
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------- ------------------------------------
/s/ Xxxxxx X. Xxxxxxx Its: Senior Vice President
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STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
On this 13th day of October, 1998, before me, a Notary Public in and
for said County and State, personally appeared Xxxxxx X. Xxxxxxx known to me to
be the person who as Senior Vice President of Glimcher Weberstown, Inc., the
corporation which executed the foregoing instrument, as managing member of
Weberstown Mall, LLC, signed the same, and acknowledged to me that they did so
sign said instrument in the name and upon behalf of said corporation as such
officer and by authority of a resolution of its board directors; and that the
same is his free act and deed as such officer, and the free and corporate act
and deed of said corporation as managing member as aforesaid and the free act
and deed of Weberstown Mall, LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxx X. Xxxxx
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Notary Public
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This instrument prepared by:
Xxxxxx X. Xxxxx, Attorney-at-Law
PORTER, WRIGHT, XXXXXX & XXXXXX
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
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