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Exhibit 10.65
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
MORTGAGOR: GLIMCHER PROPERTIES LIMITED PARTNERSHIP
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
MORTGAGEE: NOMURA ASSET CAPITAL CORPORATION
Two World Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
MORTGAGE AMOUNT: $50,000,000
DATE: As of June 1, 1998
RECORD AND RETURN TO:
Weil, Gotshal and Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
J. Xxxxxx Xxxxx, Esq.
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY
AGREEMENT (this "MORTGAGE"), is made as of June 1st, 1998, between GLIMCHER
PARTNERS LIMITED PARTNERSHIP, a Delaware limited partnership ("MORTGAGOR"), with
an address for the transaction of business at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx,
Xxxx 00000, and NOMURA ASSET CAPITAL CORPORATION, a Delaware corporation
("MORTGAGEE"), having its principal place of business at Two World Xxxxxxxxx
Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS:
A. Mortgagor is the owner of fee simple title to that certain
parcel of real property located in the State of South Carolina, and more
particularly described on Exhibit A attached hereto and incorporated herein by
this reference (the "PREMISES"), and the buildings, structures, fixtures,
additions, enlargements, extensions, modifications, repairs, replacements and
other improvements now or hereafter located thereon (the "IMPROVEMENTS"); and
B. Pursuant to that certain Loan Agreement dated as of the
date hereof (the "LOAN AGREEMENT"), between Mortgagor and Mortgagee, Mortgagee
is making a loan (the "LOAN") to Mortgagor in the original principal amount of
$50,000,000 and Mortgagor has executed that certain Note (as defined in the Loan
Agreement) evidencing the Loan (the "NOTE"), which Note is made payable to the
order of Mortgagee in the stated in the principal amount of $50,000,000,
together with interest thereon, with final payment being due on or before the
Stated Maturity Date (all capitalized terms not otherwise defined herein shall
have the meaning set forth in the Loan Agreement); and
C. The Loan is secured by certain other (x) deeds of trust,
(y) mortgages and (z) assignments of leases and rents (the "OTHER LOAN
DOCUMENTS") now encumbering other real properties which are now owned by
Mortgagor; and
D. To induce Mortgagee to make the Loan to Mortgagor and to
further secure payment of the Note, together with interest thereon, and all
other sums due hereunder and under the other Loan Documents, the parties desire
to enter into this Mortgage; and
E. Mortgagor and Mortgagee intend these recitals to be a
material part of this Mortgage.
NOW, THEREFORE, in consideration of the sum of TEN DOLLARS
($10.00) and other good and valuable consideration, the receipt and legal
sufficiency whereof are hereby acknowledged, and the mutual covenants herein
contained, Mortgagor and Mortgagee hereby agree as follows:
THAT, in order to secure the payment of an indebtedness in the
principal sum of FIFTY MILLION and No/100 Dollars ($50,000,000), and all other
sums which may or shall become due hereunder or under the Note or any of the
other documents evidencing, securing or executed in connection with the Loan
(such other documents, including, without limitation, the Loan Agreement and
that certain Assignment of Leases and Rents dated as of the date hereof given by
Mortgagor to Mortgagee with respect to the Premises (as such assignment may be
amended from time to time, the "ASSIGNMENT"), together with the Note, this
Mortgage and the
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Other Loan Documents (as any of the same may, from time to time, be modified,
amended or supplemented) being hereinafter collectively referred to as the "LOAN
DOCUMENTS"), and including the costs and expenses of enforcing any provision of
the Note, this Mortgage or any of the other Loan Documents (all such sums being
hereinafter collectively referred to as the "DEBT"), and in order to charge with
such performance and with such payments the Premises, the Improvements and the
other property hereinafter described and the rents, revenues, issues, income and
profits thereof, Mortgagor has executed and delivered this Mortgage and
MORTGAGOR HAS MORTGAGED, GRANTED, BARGAINED, SOLD, CONVEYED, TRANSFERRED AND
ASSIGNED, AND BY THESE PRESENTS DOES HEREBY IRREVOCABLY MORTGAGE, GRANT,
BARGAIN, SELL, CONVEY, TRANSFER AND ASSIGN, TO MORTGAGEE, ITS SUCCESSORS AND
ASSIGNS, the Premises and the Improvements, together with all right, title,
interest and estate of Mortgagor now owned, or hereafter acquired, in and to the
following property, rights, interests and estates (the Premises, the
Improvements and the property, rights, interests and estates hereinafter
described are collectively referred to herein as the "MORTGAGED PROPERTY"):
(a) all easements, rights-of-way, strips and gores of land,
streets, ways, alleys, passages, sewer rights, water, water courses, water
rights and powers, air rights and development rights, all rights to oil, gas,
minerals, coal and other substances of any kind or character, and all estates,
rights, titles, interests, privileges, liberties, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to the Premises and the Improvements and the reversion and
reversions, remainder and remainders, and all land lying in the bed of any
street, road, highway, alley or avenue, opened, vacated or proposed, in front of
or adjoining the Premises, to the center line thereof and all the estates,
rights, titles, interests, dower and rights of dower, curtsey and rights of
curtsey, property, possession, claim and demand whatsoever, both at law and in
equity, of Mortgagor of, in and to the Premises and the Improvements and every
part and parcel thereof, with the appurtenances thereto;
(b) all machinery, furniture, furnishings, equipment, computer
software and hardware, fixtures (including, without limitation, all heating, air
conditioning, plumbing, lighting, communications and elevator fixtures), and
other property of every kind and nature, whether tangible or intangible,
whatsoever owned by Mortgagor, or in which Mortgagor has or shall have an
interest, now or hereafter located upon the Premises and the Improvements, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Premises and the Improvements and all building
equipment, materials and supplies of any nature whatsoever owned by Mortgagor,
or in which Mortgagor has or shall have an interest, now or hereafter located
upon the Premises and the Improvements, or appurtenant thereto, or usable in
connection with the present or future operation, enjoyment and occupancy of the
Premises and the Improvements (hereinafter collectively referred to as the
"EQUIPMENT"), including any leases of any of the foregoing, any deposits
existing at any time in connection with any of the foregoing and the proceeds of
any sale or transfer of any of the foregoing, and the right, title and interest
of Mortgagor in and to any of the Equipment that may be subject to any "security
interests" as defined in the Uniform Commercial Code, as adopted and enacted by
the State or States where any of the Equipment is located (the "UNIFORM
COMMERCIAL CODE"), superior in lien to the lien of this Mortgage;
(c) all awards or payments, including interest thereon, that
may heretofore and hereafter be made with respect to the Premises and the
Improvements, whether from the exercise of the right of eminent domain or
condemnation (including, without limitation, any transfer made in lieu of or in
anticipation of the exercise of said rights), or for a change of grade, or for
any other injury to or decrease in the value of the Premises and the
Improvements;
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(d) all current and future leases, rental agreements,
occupancy agreements and other agreements of whatever form now or hereafter
affecting the use, enjoyment or occupancy of, or the conduct of any activity
upon or in, all or any part of the Premises and the Improvements, including any
guaranties, extensions, renewals, replacements or modifications thereof
(hereinafter collectively referred to as the "LEASES") and all rents, rent
equivalents, moneys payable as damages or in lieu of rent or rent equivalents,
royalties (including, without limitation, all oil and gas or other mineral
royalties and bonuses), income, receivables, receipts, revenues, deposits
(including, without limitation, security, utility and other deposits), accounts,
cash, issues, profits, charges for services rendered, and other consideration of
whatever form or nature received by or paid to or for the account of or benefit
of Mortgagor or its agents or employees from any and all sources arising from or
attributable to the Premises and the Improvements (the "RENTS"), together with
all proceeds from the sale or other disposition of the Leases and the right to
receive and apply the Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any insurance
policies covering the Premises, the Improvements and the Equipment, including,
without limitation, the right to receive and apply the proceeds of any
insurance, judgments or settlements made in lieu thereof for damage to the
Premises, the Improvements or the Equipment;
(f) all accounts, escrows, documents, instruments, chattel
paper, claims, deposits and general intangibles, as the foregoing terms are
defined in the Uniform Commercial Code, and all franchises, trade names,
trademarks, symbols, service marks, books, records, plans, specifications,
designs, drawings, permits, consents, licenses, property management agreements,
contract rights (including, without limitation, any contract with any architect
or engineer or with any other provider of goods or services for or in connection
with any construction, repair or other work upon the Premises, the Improvements
or the Equipment and all rights, interest and privileges which Mortgagor has or
may have as developer or declarant under any covenants, restrictions or
declarations now or hereafter relating to the Premises or the Improvements),
approvals, actions, refunds of real estate taxes and assessments (and any other
governmental impositions related to the Premises, the Improvements or the
Equipment), and causes of action that now or hereafter relate to, are derived
from or are used in connection with the Premises, the Improvements or the
Equipment, or the use, operation, maintenance, occupancy or enjoyment thereof or
the conduct of any business or activities thereon (hereinafter collectively
referred to as the "INTANGIBLES");
(g) all options to purchase and rights of first refusal to
purchase and acquire a fee estate, easement interest or other real property
right to land, both vacant and improved, adjoining the Premises now or hereafter
in effect (hereinafter collectively referred to as the "OPTIONS");
(h) the right, in the name and on behalf of Mortgagor, to
appear in and defend any action or proceeding brought with respect to the
Premises, the Improvements, the Equipment, the Leases, the Intangibles or the
Options and to commence any action or proceeding to protect the interest of
Mortgagee in the Premises, the Improvements, the Equipment, the Leases, the
Intangibles or the Options; and
(i) all proceeds, products, offspring, rents and profits from
any of the foregoing, including, without limitation, those from sale, exchange,
transfer, collection, loss, damage, disposition, substitution or replacement of
any of the foregoing.
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property unto Mortgagee, its successors and assigns, forever, for the purposes
and uses herein set
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forth and Mortgagor hereby binds itself and its heirs, executors,
administrators, personal representatives, successors and assigns to warrant and
forever defend the Mortgaged Property unto Mortgagee, its successors and
assigns, against the claim or claims of all persons claiming or to claim the
same or any part thereof.
AND, for the purpose of further securing the Debt and for the
protection of the security of this Mortgage, for so long as the Debt or any part
thereof remains unpaid, Mortgagor represents and warrants to and covenants and
agrees with Mortgagee as follows:
GENERAL PROVISIONS
1. PAYMENT OF DEBT AND INCORPORATION OF COVENANTS, CONDITIONS
AND AGREEMENTS. Mortgagor shall pay the Debt at the time and in the manner
provided in the Note, the Loan Agreement, this Mortgage and the other Loan
Documents. All the covenants, conditions and agreements contained in the Note,
the Loan Agreement and the other Loan Documents are hereby made a part of this
Mortgage to the same extent and with the same force as if fully set forth
herein.
2. WARRANTY OF TITLE. Mortgagor hereby warrants that: (a)
Mortgagor has good, marketable and insurable title to the Mortgaged Property;
(b) Mortgagor has the full power, authority and right to execute, deliver and
perform its obligations under this Mortgage and to encumber, grant, bargain,
sell, convey, assign and mortgage the Mortgaged Property in the manner and form
hereby done or intended; (c) Mortgagor possesses an unencumbered fee simple
estate in the Premises and the Improvements and Mortgagor owns the Mortgaged
Property free and clear of all liens, encumbrances and charges whatsoever except
for those exceptions shown in the title insurance policy insuring the lien of
this Mortgage; and (d) this Mortgage is and will remain a valid and enforceable
first lien on and security interest in the Mortgaged Property, subject only to
those exceptions shown in the title insurance policy insuring the lien of this
Mortgage. Mortgagor shall forever warrant, defend and preserve such title and
the validity and priority of the lien of this Mortgage and shall forever warrant
and defend the same to Mortgagee against the claims of all persons whomsoever.
The foregoing warranty of title shall survive the foreclosure of this Mortgage
and shall inure to the benefit of and be enforceable by Mortgagee in the event
Mortgagee acquires title to the Mortgaged Property pursuant to any foreclosure.
3. INSURANCE.
(a) Mortgagor, at its sole cost and expense, for the mutual
benefit of Mortgagor and Mortgagee, shall obtain and maintain during the entire
term of this Mortgage policies of insurance against loss or damage by fire and
lightning and against loss or damage by all other risks and hazards as required
and in accordance with the terms and provisions of Section 7.1 of the Loan
Agreement.
(b) If the Mortgaged Property shall be damaged or destroyed,
in whole or in part, by fire or other casualty (a "CASUALTY"), Mortgagor shall
give prompt written notice thereof to Mortgagee. Following the occurrence of a
Casualty, Mortgagor, regardless of whether insurance proceeds are available
(unless such insurance proceeds have been used to repay the Debt in full), shall
promptly proceed to restore, repair, replace or rebuild the Mortgaged Property
to be of at least equal value and of substantially the same character as prior
to such damage or destruction, all to be effected in accordance with applicable
law. All amounts to be paid in connection with a Casualty under such policies
shall be governed by the terms and provisions of the Loan Agreement.
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4. PAYMENT OF TAXES, ETC. Subject to Section 5.1(b) of the
Loan Agreement, Mortgagor shall pay all taxes, assessments, water rates and
sewer rents now or hereafter levied or assessed or imposed against the Mortgaged
Property or any part thereof (the "TAXES"), and all maintenance charges, ground
rents, impositions other than Taxes and other charges, including, without
limitation, vault charges and license fees for the use of vaults, chutes and
similar areas adjoining the Premises, now or hereafter levied or assessed or
imposed against the Mortgaged Property or any part thereof (the "OTHER
Charges"), before delinquency, provided, however, that Mortgagor's obligation to
directly pay Taxes shall be suspended for so long as Mortgagor complies with the
terms and provisions of Section 7.3 of the Loan Agreement.
5. CONDEMNATION.
(a) Mortgagor shall promptly give Mortgagee written notice of
the actual or threatened commencement of any condemnation or eminent domain
proceeding against the Premises or the Improvements or any part thereof (a
"CONDEMNATION") and shall deliver to Mortgagee copies of any and all papers
served in connection with such Condemnation. Following the occurrence of a
Condemnation, Mortgagor, regardless of whether an Award (as hereinafter defined)
is available, (unless such Award has been used to repay the Debt in full), shall
promptly proceed to restore, repair, replace or rebuild the Mortgaged Property
to the extent practicable to be of at least equal value and of substantially the
same character as prior to such Condemnation, all to be effected in accordance
with applicable law.
(b) Mortgagee is hereby irrevocably appointed as Mortgagor's
attorney-in-fact, coupled with an interest, with exclusive power to collect,
receive and retain any award or payment ("AWARD") for any taking accomplished
through a Condemnation and to make any compromise or settlement in connection
with such Condemnation, subject to the provisions of this Mortgage and section
7.1.3(b) of the Loan Agreement. Notwithstanding any taking in connection with a
Condemnation by any public or quasi-public authority (including, without
limitation, any transfer made in lieu of or in anticipation of such a
Condemnation), Mortgagor shall continue to pay the Debt at the time and in the
manner provided for in the Note, the Loan Agreement, this Mortgage and the other
Loan Documents and the Debt shall not be reduced unless and until any Award
shall have been actually received and applied by Mortgagee to expenses of
collecting the Award and to discharge of the Debt. Mortgagee shall not be
limited to the interest paid on the Award by the condemning authority but shall
be entitled to receive out of the Award interest at the rate or rates provided
in the Note. All amounts to be paid in connection with a Condemnation shall be
governed by the terms and provisions of the Loan Agreement.
6. LEASES AND RENTS.
(a) Mortgagor does hereby irrevocably, absolutely and
unconditionally assign to Mortgagee, its successors and assigns, all of
Mortgagor's right, title and interest in and to all current and future Leases
and Rents, it being intended by Mortgagor that this assignment constitutes a
present, absolute and unconditional assignment and not an assignment for
additional security only. Such assignment to Mortgagee shall not be construed to
bind Mortgagee to the performance of any of the covenants, conditions or
provisions contained in any such Lease or otherwise impose any obligation upon
Mortgagee. Mortgagor agrees to execute and deliver to Mortgagee such additional
instruments, in form and substance satisfactory to Mortgagee, as may hereafter
be requested by Mortgagee to further evidence and confirm such assignment.
Nevertheless, subject to the terms of this Paragraph, Mortgagee grants to
Mortgagor a license (revocable upon an Event of Default) to operate and manage
the Mortgaged Property; provided, however, that all Rents shall be sent to a
financial institution acceptable to Mortgagee for deposit into an account
designated and established by Mortgagee to secure repayment of the Debt, all in
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accordance with the terms, covenants and conditions contained in the Loan
Agreement. Any Rents collected by Mortgagor shall be held by Mortgagor in trust
for the benefit of Mortgagee for use in the payment of the Debt. Upon the
occurrence of an Event of Default (as hereinafter defined), without the need for
notice or demand, the license granted to Mortgagor herein shall automatically be
revoked, and Mortgagee shall immediately be entitled to take possession of the
Leases and receive and apply all Rents, whether or not Mortgagee enters upon or
takes control of the Mortgaged Property. Mortgagee is hereby granted and
assigned by Mortgagor the right, at its option, upon revocation of the license
granted herein, to enter upon the Mortgaged Property in person, by agent or by
court-appointed receiver to collect the Rents. Any Rents collected after the
revocation of the license herein granted may be applied toward payment of the
Debt in such priority and proportions as Mortgagee, in its sole discretion,
shall deem proper. Mortgagee is obligated to account only for such Rents as are
actually collected or received by Mortgagee. Neither the exercise by Mortgagee
of any rights under this Paragraph nor the application of any Rents to the Debt
shall cure or be deemed a waiver of any Event of Default hereunder. The
assignment of Rents hereinabove granted shall continue in full force and effect
during any period of foreclosure and/or redemption with respect to the Mortgaged
Property. Mortgagor has executed the Assignment covering all of the right, title
and interest of Mortgagor, as landlord, in and to any Leases relating to all or
portions of the Mortgaged Property. All rights and remedies granted to Mortgagee
under the Assignment shall be in addition to and cumulative of all rights and
remedies granted to Mortgagee hereunder.
(b) Mortgagor shall duly and punctually comply with its
obligations under Section 5.1(t) of the Loan Agreement which sets forth certain
covenants of Mortgagor with regard to leasing of the Mortgaged Property.
(c) INTENTIONALLY DELETED
(d) All security deposits of tenants, whether held in cash or
any other form, shall not be commingled with any other funds of Mortgagor and,
if cash, shall be deposited by Mortgagor at such commercial or savings bank or
banks as may be reasonably satisfactory to Mortgagee. Any bond or other
instrument which Mortgagor is permitted to hold in lieu of cash security
deposits under any applicable legal requirements shall be maintained in full
force and effect in the full amount of such deposits unless replaced by cash
deposits as hereinabove described, shall be issued by an institution reasonably
satisfactory to Mortgagee, shall, if permitted pursuant to any legal
requirements, name Mortgagee as payee or mortgagee thereunder (or at Mortgagee's
option, be fully assignable to Mortgagee) and shall, in all respects, comply
with any applicable legal requirements and otherwise be reasonably satisfactory
to Mortgagee. Mortgagor shall, upon request, provide Mortgagee with evidence
reasonably satisfactory to Mortgagee of Mortgagor's compliance with the
foregoing. Following the occurrence and during the continuance of any Event of
Default, Mortgagor shall, upon Mortgagee's request, if permitted by any
applicable legal requirements, turn over to Mortgagee the security deposits (and
any interest theretofore earned thereon) with respect to all or any portion of
the Mortgaged Property, to be held by Mortgagee subject to the terms of the
Leases.
7. PROPERTY MANAGEMENT AGREEMENT; LICENSES. Mortgagor hereby
represents and warrants to Mortgagee as follows:
(a) INTENTIONALLY DELETED
(b) Neither the execution and delivery of the Loan Documents,
the Mortgagor's performance thereunder, the recordation of this Mortgage, nor
the exercise of any
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remedies by Mortgagee, will adversely affect Mortgagor's rights under the
Property Management Agreement.
(c) The Property Management Agreement complies with the
requirements set forth in Section 5.1(v) of the Loan Agreement.
(d) All certifications, permits, licenses and approvals,
including, without limitation, certificates of completion and occupancy permits
required for the legal use, occupancy and operation of the Mortgaged Property as
a retail shopping center, have been obtained and are in full force and effect.
8. MAINTENANCE OF MORTGAGED PROPERTY. Mortgagor shall cause
the Mortgaged Property to be maintained in a good and safe condition and repair.
The Improvements and the Equipment shall not be removed, demolished or
materially altered (except for normal replacement of the Improvements and
Equipment) without the consent of Mortgagee. Mortgagor shall promptly comply
with all laws, orders and ordinances affecting the Mortgaged Property, or the
use thereof, including, without limitation, building and zoning ordinances and
codes. Subject to Section 3(b) and 5(a) hereof, Mortgagor shall promptly repair,
replace or rebuild any part of the Mortgaged Property that is destroyed by any
Casualty, or becomes damaged, worn or dilapidated, or that is affected by any
Condemnation and shall complete and pay for any structure at any time in the
process of construction or repair on the Premises. Mortgagor shall not initiate,
join in, acquiesce in or consent to any change in any private restrictive
covenant, zoning law or other public or private restriction, limiting or
defining the uses which may be made of the Mortgaged Property or any part
thereof. If under applicable zoning provisions the use of all or any portion of
the Mortgaged Property is or shall become a nonconforming use, Mortgagor will
not cause or permit such nonconforming use to be discontinued or abandoned
without the express written consent of Mortgagee. Mortgagor shall not (i) change
the use of the Mortgaged Property, (ii) permit or suffer to occur any waste on
or to the Mortgaged Property or to any portion thereof, or (iii) take any steps
whatsoever to convert the Mortgaged Property, or any portion thereof, to a
condominium or cooperative form of management. Mortgagor will not install or
permit to be installed on the Premises any underground storage tank without
Mortgagee's prior written consent.
9. TRANSFER OR ENCUMBRANCE OF THE MORTGAGED PROPERTY.
(a) Mortgagor acknowledges that Mortgagee, in agreeing to make
the Loan, has examined and relied on the creditworthiness and experience of
Mortgagor in owning and operating properties such as the Mortgaged Property, and
that Mortgagee will continue to rely on Mortgagor's ownership and operation of
the Mortgaged Property as a means of maintaining the value of the Mortgaged
Property as security for repayment of the Debt. Mortgagor acknowledges that
Mortgagee has a valid interest in maintaining the value of the Mortgaged
Property so as to ensure that, should Mortgagor default in the repayment of the
Debt, Mortgagee can recover all or a portion of the Debt by a sale of the
Mortgaged Property. Accordingly, except as permitted in the Loan Agreement,
Mortgagor shall not, without the prior written consent of Mortgagee, sell,
convey, alienate, mortgage, encumber, pledge or otherwise transfer the Mortgaged
Property, or any part thereof or permit the Mortgaged Property, or any part
thereof, to be sold, conveyed, alienated, mortgaged, encumbered, pledged or
otherwise transferred.
(b) A sale, conveyance, alienation, mortgage, encumbrance,
pledge or transfer of the Mortgaged Property within the meaning of this
Paragraph 9 shall be deemed to include: (i) an installment sales agreement
wherein Mortgagor agrees to sell the Mortgaged Property or any
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part thereof or any interest therein for a price to be paid in installments;
(ii) an agreement by Mortgagor leasing all or a substantial part of the
Mortgaged Property for other than actual occupancy by a space tenant thereunder,
or a sale, assignment or other transfer of, or the grant of a security interest
in, Mortgagor's right, title and interest in and to any Leases or any Rents;
(iii) if Mortgagor or any general partner or managing member of Mortgagor is a
corporation, the voluntary or involuntary sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of such corporation's stock (or the
stock of any corporation directly or indirectly controlling such corporation by
operation of law or otherwise) or the creation or issuance of new stock in one
or a series of transactions; (iv) if Mortgagor or any general partner or
managing member of Mortgagor is a limited or general partnership, joint venture
or limited liability company, the change, removal, resignation or addition of a
partner, joint venturer or member or the sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the partnership interest of any partner or
the sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of
the interest of any joint venturer or member; (v) if Mortgagor is a limited or
general partnership, joint venture, limited liability company, trust, nominee
trust, tenancy in common or other unincorporated form of business association or
form of ownership interest, the voluntary or involuntary sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of an interest of any
person having a direct legal or beneficial ownership in Mortgagor, including any
legal or beneficial interest in any constituent partner or member of Mortgagor;
(vi) any instrument subjecting the Mortgaged Property to a condominium regime or
transferring ownership to a cooperative corporation; and (vii) the dissolution
or termination of Mortgagor or any general partner or managing member of
Mortgagor or the merger or consolidation of Mortgagor or any general partner or
managing member of Mortgagor with any other person.
(c) Mortgagee shall not be required to demonstrate any actual
impairment of its security or any increased risk of default hereunder in order
to declare the Debt immediately due and payable upon Mortgagor's sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property without Mortgagee's consent. This provision shall apply to
every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of
the Mortgaged Property regardless of whether voluntary or not, or whether or not
Mortgagee has consented to any previous sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be
deemed to be a waiver of Mortgagee's right to require such consent to any future
occurrence of the same. Any sale, conveyance, alienation, mortgage, encumbrance,
pledge or transfer of the Mortgaged Property made in contravention of this
Paragraph shall be null and void and of no force and effect.
10. CHANGES IN LAWS REGARDING TAXATION. If any law is enacted
or adopted or amended after the date of this Mortgage which deducts the Debt
from the value of the Mortgaged Property for the purpose of taxation or which
imposes a tax, either directly or indirectly, on the Debt or Mortgagee's
interest in the Mortgaged Property, Mortgagor will pay such tax, with interest
and penalties thereon, if any. In the event Mortgagee is advised by counsel
chosen by it that the payment of such tax or interest and penalties by Mortgagor
would be unlawful or taxable to Mortgagee or unenforceable or provide the basis
for a defense of usury, then, in any such event, Mortgagee shall have the
option, by written notice to Mortgagor of not less than ninety (90) days, to
declare the Debt immediately due and payable.
11. NO CREDITS ON ACCOUNT OF THE DEBT. Mortgagor will not
claim or demand or be entitled to any credit or credits on account of the Debt
for any part of the Taxes or Other Charges assessed against the Mortgaged
Property, or any part thereof, and no deduction
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shall otherwise be made or claimed from the assessed value of the Mortgaged
Property, or any part thereof, for real estate tax purposes by reason of this
Mortgage or the Debt. In the event such claim, credit or deduction shall be
required by law, Mortgagee shall have the option, by written notice of not less
than ninety (90) days, to declare the Debt immediately due and payable.
12. DOCUMENTARY STAMPS. If at any time the United States of
America, any State thereof or any subdivision of any such State shall require
revenue or other stamps to be affixed to the Note or this Mortgage, or impose
any intangible tax or any other tax or charge on the same, Mortgagor will pay
for the same, with interest and penalties thereon, if any.
13. CONTROLLING AGREEMENT. It is expressly stipulated and
agreed to be the intent of Mortgagor and Mortgagee at all times to comply with
applicable state law or applicable United States federal law (to the extent that
it permits Mortgagee to contract for, charge, take, reserve or receive a greater
amount of interest than under state law) and that this Paragraph 13 (with the
similar provision contained in the Note) shall control every other covenant and
agreement in this Mortgage and the other Loan Documents. If the applicable law
(state or federal) is ever judicially interpreted so as to render usurious any
amount called for under the Note or under any of the other Loan Documents or
contracted for, charged, taken, reserved or received with respect to the Debt,
or if Mortgagee's exercise of the option to accelerate the maturity of the Note
or any prepayment by Mortgagor results in Mortgagor having paid any interest in
excess of that permitted by applicable law, then it is Mortgagor's and
Mortgagee's express intent that all excess amounts theretofore collected by
Mortgagee shall be credited on the principal balance of the Note and all other
Debt and the provisions of the Note, this Mortgage and the other Loan Documents
immediately be deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of any new
documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder. All
sums paid or agreed to be paid to Mortgagee for the use, forbearance or
detention of the Debt shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full stated term of the
Debt until payment in full so that the rate or amount of interest on account of
the Debt does not exceed the maximum lawful rate from time to time in effect and
applicable to the Debt for so long as the Debt is outstanding.
14. PERFORMANCE OF OTHER AGREEMENTS. Mortgagor shall observe
and perform each and every term to be observed or performed by Mortgagor
pursuant to the terms of any agreement or recorded instrument affecting or
pertaining to the Mortgaged Property.
15. FURTHER ACTS, ETC. Mortgagor will, at the cost of
Mortgagor, and without expense to Mortgagee, do, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, Uniform Commercial Code financing statements
or continuation statements, transfers and assurances as Mortgagee shall, from
time to time, reasonably require, for the better assuring, conveying, assigning,
transferring and confirming unto Mortgagee the property and rights hereby
granted, bargained, sold, conveyed, assigned, transferred and mortgaged or
intended now or hereafter so to be, or which Mortgagor may be or may hereafter
become bound to convey or assign to Mortgagee, or for carrying out the intention
or facilitating the performance of the terms of this Mortgage or for filing,
registering or recording this Mortgage or for facilitating the sale and transfer
of the Loan and the Loan Documents as described in Section 9.1 of the Loan
Agreement. Mortgagor, on demand, will execute and deliver, and Mortgagor hereby
authorizes Mortgagee to execute in the name of Mortgagor or without the
signature of Mortgagor to the extent Mortgagee may lawfully do so, one or more
financing statements, chattel mortgages or other instruments to evidence more
effectively the security interest of Mortgagee in the Mortgaged Property. Upon
foreclosure, the
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appointment of a receiver or any other relevant action, Mortgagor will, at the
cost of Mortgagor and without expense to Mortgagee, cooperate fully and
completely to effect the assignment or transfer of any license, permit,
agreement or any other right necessary or useful to the operation of the
Mortgaged Property. Mortgagor grants to Mortgagee an irrevocable power of
attorney coupled with an interest for the purpose of exercising and perfecting
any and all rights and remedies available to Mortgagee at law and in equity,
including, without limitation, such rights and remedies available to Mortgagee
pursuant to this Paragraph.
16. RECORDING OF MORTGAGE, ETC. Mortgagor forthwith upon the
execution and delivery of this Mortgage and thereafter, from time to time, will
cause this Mortgage and any security instrument creating a lien or security
interest or evidencing the lien hereof upon the Mortgaged Property and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice of and fully to protect the lien or security interest
hereof upon, and the interest of Mortgagee in, the Mortgaged Property. Mortgagor
will pay all filing, registration or recording fees, and all expenses incident
to the preparation, execution and acknowledgment, of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property and any instrument of further assurance, and all federal, state, county
and municipal taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property or any instrument of further assurance, except where prohibited by law
so to do. Mortgagor shall hold harmless and indemnify Mortgagee, its successors
and assigns, against any liability incurred by reason of the imposition of any
tax on the making and recording of this Mortgage.
17. REPORTING REQUIREMENTS. Mortgagor agrees to give prompt
notice to Mortgagee of the insolvency or bankruptcy filing of Mortgagor or any
general partner or managing member of Mortgagor.
18. EVENTS OF DEFAULT. The Debt shall become immediately due
and payable at the option of Mortgagee upon the happening of any one or more of
the following events of default (each, an "EVENT OF DEFAULT"):
(a) any portion of the Debt is not paid when due;
(b) except as expressly permitted by the terms of the Loan
Agreement, any of the Taxes or Other Charges are not paid before delinquency and
payable;
(c) the Policies (as defined in the Loan Agreement) are not
kept in full force and effect, or certified copies of the Policies are not
delivered to Mortgagee within ten (10) days of request;
(d) except as expressly permitted in this Mortgage, Mortgagor
transfers or encumbers any portion of the Mortgaged Property or any interest
therein without Mortgagee's prior written consent;
(e) any representation or warranty made by Mortgagor herein or
in any other Loan Document or in any certificate, report, financial statement or
other instrument, agreement or document furnished to Mortgagee shall have been
false or misleading in any material respect when made; provided, however, if
such false or misleading representation or warranty is susceptible of being
cured within thirty (30) days, the same shall be an Event of Default hereunder
only if the same is not cured within a reasonable time not to exceed thirty (30)
days after notice from Mortgagee;
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(f) Mortgagor shall make an assignment for the benefit of
creditors;
(g) a receiver, liquidator or trustee shall be appointed for
Mortgagor or Mortgagor shall be adjudicated a bankrupt or insolvent, or any
petition for bankruptcy, reorganization or arrangement pursuant to federal
bankruptcy law, or any similar federal or state law, shall be filed by or
against, consented to or acquiesced in by Mortgagor, or any proceeding for the
dissolution or liquidation of Mortgagor shall be instituted; provided, however,
that if such appointment, adjudication, petition or proceeding was involuntary
and not consented to by Mortgagor, then the same shall be an Event of Default
hereunder only if the same is not discharged, stayed or dismissed within sixty
(60) days after the date of such appointment or adjudication, the date such
petition is first filed or the date such proceeding is instituted, as the case
may be;
(h) Mortgagor shall be in default under any other mortgage or
security agreement covering any part of the Mortgaged Property, whether it be
superior or junior in lien to this Mortgage;
(i) the Mortgaged Property becomes subject to any mechanic's,
materialman's or other lien except a lien for local real estate taxes and
assessments not then due and payable, (subject to Section 5.1(b) of the Loan
Agreement in the case of real estate taxes and assessments), unless a corporate
surety bond in form and with sureties satisfactory to Mortgagee, cash or other
security satisfactory to Mortgagee is posted therefor within sixty (60) days
after the filing of such lien, but in any event prior to the commencement of any
action to foreclose such lien, and such lien is removed (or bonded off) from the
Mortgaged Property within such sixty (60) days;
(j) Mortgagor fails to cure properly any violations of laws or
ordinances affecting or which may be interpreted to affect the Mortgaged
Property within thirty (30) days after Mortgagor first receives notice of any
such violations; PROVIDED, however, that if such violation is susceptible of
cure but cannot reasonably be cured within such 30-day period and provided
further that Mortgagor shall have commenced to cure such violation within such
30-day period and thereafter diligently and expeditiously proceeds to cure the
same and PROVIDED further that any governmental authority having jurisdiction
over the subject matter of such violation consents to a longer cure period, such
30-day period shall be extended for such time as is reasonably necessary for
Mortgagor in the exercise of due diligence to cure such violation, such
additional period not to exceed ninety (90) days;
(k) except as expressly permitted in this Mortgage or the Loan
Agreement, the actual or threatened material alteration, improvement, demolition
or removal of any of the Improvements without the prior written consent of
Mortgagee;
(l) without Mortgagee's prior consent, (i) the property
manager for the Mortgaged Property under the Property Management Agreement (or
any successor property management agreement) resigns or is removed, or (ii) the
ownership, management or control of such property manager is transferred to
another person or entity, or (iii) there is any material change in the Property
Management Agreement (or any successor property management agreement);
(m) a default has occurred and continues beyond any applicable
cure period under the Property Management Agreement (or any successor property
management agreement) if such default permits the property manager to terminate
or cancel the Property Management Agreement (or any successor property
management agreement);
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(n) Mortgagor ceases to do business as a retail shopping
center on the Mortgaged Property or terminates such business for any reason
whatsoever (other than temporary cessation in connection with any renovations to
the Mortgaged Property);
(o) Mortgagor fails to cure a default under any other term,
covenant or provision of this Mortgage not specified in clauses (a) through (n)
above, within ten (10) days after Mortgagor first receives notice of such
default in the case of any default which can be cured by the payment of a sum of
money or within thirty (30) days after Mortgagor first receives notice of such
default in the case of any other default; PROVIDED, however, that if such
non-monetary default is susceptible of cure but cannot reasonably be cured
within such 30-day period and provided further that Mortgagor shall have
commenced to cure such default within such 30-day period and thereafter
diligently and expeditiously proceeds to cure the same, such 30-day period shall
be extended for such time as is reasonably necessary for Mortgagor in the
exercise of due diligence to cure such default, such additional period not to
exceed ninety (90) days; or
(p) Mortgagor shall be in default under any term, covenant or
provision of the Note, the Loan Agreement, the Assignment or any of the other
Loan Documents beyond any applicable cure periods contained in such documents,
whether as to Mortgagor or the Mortgaged Property, or any other such event shall
occur or condition shall exist, if the effect of such event or condition is to
accelerate the maturity of any portion of the Debt or to permit Mortgagee to
accelerate the maturity of all or any portion of the Debt.
19. LATE PAYMENT CHARGE. If any portion of the Debt is not
paid on the date on which it is due, Mortgagor shall pay to Mortgagee upon
demand an amount equal to the lesser of three percent (3%) of such unpaid
portion of the Debt or the maximum amount permitted by applicable law, in order
to defray a portion of the expenses incurred by Mortgagee in handling and
processing such delinquent payment and to compensate Mortgagee for the loss of
the use of such delinquent payment, and such amount shall be secured by this
Mortgage.
20. RIGHT TO CURE DEFAULTS. Upon the occurrence of any Event
of Default or if Mortgagor fails to make any payment or to do any act as herein
provided, Mortgagee may, but without any obligation to do so and without notice
to or demand on Mortgagor and without releasing Mortgagor from any obligation
hereunder, make or do the same in such manner and to such extent as Mortgagee
may deem necessary to protect the security hereof. Mortgagee is authorized to
enter upon the Mortgaged Property for such purposes or appear in, defend or
bring any action or proceeding to protect its interest in the Mortgaged Property
or to foreclose this Mortgage or collect the Debt, and the cost and expense
thereof (including reasonable attorneys' fees and disbursements to the extent
permitted by law), with interest at the Default Rate for the period from the
date such cost or expense was incurred by Mortgagee to the date of payment to
Mortgagee, shall constitute a portion of the Debt, shall be secured by this
Mortgage and the other Loan Documents and shall be due and payable to Mortgagee
upon demand.
21. REMEDIES.
(a) Subject to the requirements of applicable law, upon the
occurrence of any Event of Default, Mortgagee may take such action, without
notice or demand, as it deems advisable to protect and enforce its rights
against Mortgagor and in and to the Mortgaged Property or any part thereof,
including, without limitation, the following actions, each of which may be
pursued concurrently or otherwise, at such time and in such order as Mortgagee
may determine, in its sole discretion, without impairing or otherwise affecting
the other rights and remedies of Mortgagee:
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(i) declare the entire Debt to be immediately due and
payable;
(ii) institute a proceeding or proceedings, judicial
or nonjudicial, by advertisement or otherwise, for the
complete foreclosure of this Mortgage, in which case the
Mortgaged Property or any interest therein may be sold for
cash or upon credit in one or more parcels or in several
interests or portions and in any order or manner;
(iii) with or without entry, to the extent permitted
and pursuant to the procedures provided by applicable law,
institute proceedings for the partial foreclosure of this
Mortgage for the portion of the Debt then due and payable,
subject to the continuing lien of this Mortgage for the
balance of the Debt not then due;
(iv) sell for cash or upon credit the Mortgaged
Property or any part thereof and all estate, claim, demand,
right, title and interest of Mortgagor therein and rights of
redemption thereof, pursuant to power of sale or otherwise, at
one or more sales, as an entirety or in parcels, at such time
and place, upon such terms and after such notice thereof as
may be required or permitted by law;
(v) institute an action, suit or proceeding in equity
for the specific performance of any covenant, condition or
agreement contained herein or in any of the other Loan
Documents;
(vi) recover judgment on the Note either before,
during or after any proceedings for the enforcement of this
Mortgage; (vii) apply for the appointment of a trustee,
receiver, liquidator or conservator of the Mortgaged Property,
without notice and without regard for the adequacy of the
security for the Debt and without regard for the solvency of
the Mortgagor, or of any person, firm or other entity liable
for the payment of the Debt;
(viii) enforce Mortgagee's interest in the Leases and
Rents and enter into or upon the Premises, either personally
or by its agents, nominees or attorneys and dispossess
Mortgagor and its agents and servants therefrom, and thereupon
Mortgagee may (A) use, operate, manage, control, insure,
maintain, repair, restore and otherwise deal with all and
every part of the Mortgaged Property and conduct the business
thereat, (B) complete any construction on the Mortgaged
Property in such manner and form as Mortgagee deems advisable,
(C) make alterations, additions, renewals, replacements and
improvements to or on the Mortgaged Property, (D) exercise all
rights and powers of Mortgagor with respect to the Mortgaged
Property, whether in the name of Mortgagor or otherwise,
including, without limitation, the right to make, cancel,
enforce or modify Leases, obtain and evict tenants, and
demand, xxx for, collect and receive all Rents, and (E) apply
the receipts from the Mortgaged Property to the payment of
Debt, after deducting therefrom all expenses (including
reasonable attorneys' fees and disbursements, any brokers'
fees, any Gains Tax (as hereinafter defined) and any transfer
taxes) incurred in connection with the aforesaid operations
and all amounts necessary to pay the Taxes, insurance and
Other Charges in connection with the Mortgaged Property, as
well as just and reasonable compensation for the services of
Mortgagee, its counsel, brokers, agents and employees;
(ix) require Mortgagor to pay monthly in advance to
Mortgagee, or any receiver appointed to collect the Rents, the
fair and reasonable rental value for the use and occupation of
any portion of the Mortgaged Property occupied by Mortgagor
and require Mortgagor to vacate and surrender possession to
Mortgagee of the Mortgaged Property or to such receiver and,
in default thereof, evict Mortgagor by summary proceedings or
otherwise; or
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(x) pursue such other rights and remedies as may be
available at law or in equity or under the Uniform Commercial
Code, including, without limitation, the right to receive
and/or establish a lock box for all Rents and proceeds from
the Intangibles and any other receivables or rights to
payments of Mortgagor relating to the Mortgaged Property. In
the event of a sale, by foreclosure or otherwise, of less than
all of the Mortgaged Property, this Mortgage shall continue as
a lien on the remaining portion of the Mortgaged Property.
(b) The proceeds of any sale made under or by virtue of this
Paragraph 21, together with any other sums which then may be held by Mortgagee
under this Mortgage, whether under the provisions of this Paragraph 21 or
otherwise, shall be applied by Mortgagee to the payment of the Debt in such
priority and proportion as Mortgagee in its sole discretion shall deem proper.
(c) Mortgagee may adjourn from time to time any sale by it to
be made under or by virtue of this Mortgage by announcement at the time and
place appointed for such sale or for such adjourned sale or sales; and, except
as otherwise provided by any applicable provision of law, Mortgagee, without
further notice or publication, may make such sale at the time and place to which
the same shall be so adjourned.
(d) Any sale made by Mortgagee under or by virtue of this
Mortgage may be subject to such existing tenancies as Mortgagee, in its sole
discretion, may elect.
(e) Upon the completion of any sale or sales pursuant hereto,
Mortgagee, or an officer of any court empowered to do so, shall execute and
deliver to the accepted purchaser or purchasers a good and sufficient
instrument, or good and sufficient instruments, conveying, assigning and
transferring all estate, right, title and interest in and to the property and
rights sold. Mortgagee is hereby irrevocably appointed the true and lawful
attorney of Mortgagor, in its name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the Mortgaged Property and rights so
sold and for that purpose Mortgagee may execute all necessary instruments of
conveyance, assignment and transfer, and may substitute one or more persons with
like power, Mortgagor hereby ratifying and confirming all that its said attorney
or such substitute or substitutes shall lawfully do by virtue hereof. Any sale
or sales made under or by virtue of this Paragraph 21, whether made under the
power of sale granted under this Mortgage or under or by virtue of judicial
proceedings or of a judgment or decree of foreclosure and sale, shall operate to
divest all the estate, right, title, interest, claim and demand whatsoever,
whether at law or in equity, of Mortgagor in and to the properties and rights so
sold, and shall be a perpetual bar both at law and in equity against Mortgagor
and against any and all persons claiming or who may claim the same, or any part
thereof, from, through or under Mortgagor.
(f) Upon any sale made under or by virtue of this Paragraph
21, whether made under a power of sale or under or by virtue of judicial
proceedings or of a judgment or decree of foreclosure and sale, Mortgagee may
bid for and acquire the Mortgaged Property or any part thereof and in lieu of
paying cash therefor may make settlement for the purchase price by crediting
upon the Debt the net sales price after deducting therefrom the expenses of the
sale and costs of the action and any other sums which Mortgagee is authorized to
deduct under this Mortgage.
(g) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect in any manner or to any extent the lien of
this Mortgage upon the Mortgaged Property or
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any part thereof, or any liens, rights, powers or remedies of Mortgagee
hereunder, but such liens, rights, powers and remedies of Mortgagee shall
continue unimpaired as before.
(h) Mortgagee may terminate or rescind any proceeding or other
action brought in connection with its exercise of the remedies provided in this
Paragraph 21 at any time before the conclusion thereof, as determined in
Mortgagee's sole discretion and without prejudice to Mortgagee.
(i) Mortgagee may resort to any remedies and the security
given by the Note, this Mortgage or any of the other Loan Documents in whole or
in part, and in such portions and in such order as determined in Mortgagee's
sole discretion. No such action shall in any way be considered a waiver of any
rights, benefits or remedies evidenced or provided by the Note, this Mortgage or
any of the other Loan Documents. The failure of Mortgagee to exercise any right,
remedy or option provided in the Note, this Mortgage or any of the other Loan
Documents shall not be deemed a waiver of such right, remedy or option or of any
covenant or obligation secured by the Note, this Mortgage or any of the other
Loan Documents unless otherwise explicitly agreed by Mortgagee in writing. No
acceptance by Mortgagee of any payment after the occurrence of an Event of
Default and no payment by Mortgagee of any obligation for which Mortgagor is
liable hereunder shall be deemed to waive or cure any Event of Default with
respect to Mortgagor, or Mortgagor's liability to pay such obligation. No sale
of all or any portion of the Mortgaged Property, no forbearance on the part of
Mortgagee, and no extension of time for the payment of the whole or any portion
of the Debt or any other indulgence given by Mortgagee to Mortgagor, shall
operate to release or in any manner affect the interest of Mortgagee in the
remaining Mortgaged Property or the liability of Mortgagor to pay the Debt. No
waiver by Mortgagee shall be effective unless it is in writing and then only to
the extent specifically stated. All costs and expenses of Mortgagee in
exercising its rights and remedies under this Paragraph 21 (including reasonable
attorneys' fees and disbursements to the extent permitted by law), shall be paid
by Mortgagor immediately upon notice from Mortgagee, with interest at the
Default Rate for the period from the date paid or incurred by Mortgagee until
repaid by Mortgagor, and such costs and expenses shall constitute a portion of
the Debt and shall be secured by this Mortgage.
(j) The interests and rights of Mortgagee under the Note, this
Mortgage or any of the other Loan Documents shall not be impaired by any
indulgence, including (i) any renewal, extension or modification which Mortgagee
may grant with respect to any of the Debt, (ii) any surrender, compromise,
release, renewal, extension, exchange or substitution which Mortgagee may grant
with respect to the Mortgaged Property or any portion thereof; or (iii) any
release or indulgence granted to any maker, endorser, guarantor or surety of any
of the Debt.
22. RIGHT OF ENTRY. In addition to any other rights or
remedies granted under this Mortgage, Mortgagee and its agents shall have the
right to enter and inspect the Mortgaged Property at any reasonable time upon
reasonable notice under the circumstances until the Debt is paid in full. The
cost of such inspections shall be borne by Mortgagor should Mortgagee determine
that an Event of Default exists, including the cost of all follow up or
additional investigations or inquiries deemed reasonably necessary by Mortgagee.
The cost of such inspections, if not paid for by Mortgagor following demand, may
be added to the principal balance of the sums due under the Note and this
Mortgage and shall bear interest thereafter until paid at the Default Rate.
23. SECURITY AGREEMENT.
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(a) This Mortgage is both a real property mortgage and a
"security agreement" within the meaning of the Uniform Commercial Code. The
Mortgaged Property includes both real and personal property and all other rights
and interests, whether tangible or intangible in nature, of Mortgagor in the
Mortgaged Property. Mortgagor by executing and delivering this Mortgage has
granted and hereby grants to Mortgagee, as security for the Debt, a security
interest in the Mortgaged Property to the full extent that the Mortgaged
Property may be subject to the Uniform Commercial Code (said portion of the
Mortgaged Property so subject to the Uniform Commercial Code being referred to
in this Paragraph 23 as the "COLLATERAL"). Mortgagor hereby agrees with
Mortgagee to execute and deliver to Mortgagee, in form and substance
satisfactory to Mortgagee, such financing statements and such further assurances
as Mortgagee may from time to time reasonably consider necessary to create,
perfect and preserve Mortgagee's security interest herein granted. This Mortgage
shall also constitute a "fixture filing" for the purposes of the Uniform
Commercial Code. As such, this Mortgage covers all items of the Collateral that
are or are to become fixtures. Information concerning the security interest
herein granted may be obtained from the parties at the addresses of the parties
set forth in the first paragraph of this Mortgage. If an Event of Default shall
occur, Mortgagee, in addition to any other rights and remedies which it may
have, shall have and may exercise, immediately and without demand, any and all
rights and remedies granted to a secured party upon default under the Uniform
Commercial Code, including, without limiting the generality of the foregoing,
the right to take possession of the Collateral or any part thereof and to take
such other measures as Mortgagee may deem necessary for the care, protection and
preservation of the Collateral. Upon request or demand of Mortgagee, Mortgagor
shall at its expense assemble the Collateral and make it available to Mortgagee
at a convenient place acceptable to Mortgagee. Mortgagor shall pay to Mortgagee
on demand any and all expenses, including attorneys' fees and disbursements,
incurred or paid by Mortgagee in protecting its interest in the Collateral and
in enforcing its rights hereunder with respect to the Collateral. The proceeds
of any disposition of the Collateral, or any part thereof, may be applied by
Mortgagee to the payment of the Debt in such priority and proportions as
Mortgagee in its sole discretion shall deem proper. In the event of any change
in name, identity or structure of any Mortgagor, such Mortgagor shall notify
Mortgagee thereof and promptly after request shall execute, file and record such
Uniform Commercial Code forms as are necessary to maintain the priority of
Mortgagee's lien upon and security interest in the Collateral, and shall pay all
expenses and fees in connection with the filing and recording thereof. If
Mortgagee shall require the filing or recording of additional Uniform Commercial
Code forms or continuation statements, Mortgagor shall, promptly after request,
execute, file and record such Uniform Commercial Code forms or continuation
statements as Mortgagee shall deem necessary, and shall pay all expenses and
fees in connection with the filing and recording thereof. Mortgagor hereby
irrevocably appoints Mortgagee as its attorney-in-fact, coupled with an
interest, to file with the appropriate public office on its behalf any financing
or other statements signed only by Mortgagee, as secured party, in connection
with the Collateral covered by this Mortgage.
(b) Upon an Event of Default, Mortgagee shall have the right,
at Mortgagee's opinion:
(i) To proceed as to both the real and personal
property covered by this Mortgage in accordance with
Mortgagee's rights and remedies in respect of said real
property, in which event (A) the provisions of the Uniform
Commercial Code otherwise applicable to sale of the Collateral
shall not apply, and (B) the sale of the Collateral in
conjunction with and as one parcel with said real property (or
any portion thereof) shall be deemed to be a commercially
reasonable manner of sale; or
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(ii) To proceed as to the Collateral separately from
the Premises and the Improvements, in which event the
requirement of reasonable notice shall be met by mailing
notice of the sale, postage prepaid, to Mortgagor or any other
person entitled thereto at least ten (10) days before the time
of the sale or other disposition of any of the Collateral.
24. ACTIONS AND PROCEEDINGS. After and Event of Default,
Mortgagee has the right to appear in and defend any action or proceeding brought
with respect to the Mortgaged Property and to bring any action or proceeding, in
the name and on behalf of Mortgagor, which Mortgagee, in its sole discretion,
decides should be brought to protect their interest in the Mortgaged Property.
Mortgagee shall, at its option, be subrogated to the lien of any mortgage or
other security instrument discharged in whole or in part by the Debt, and any
such subrogation rights shall constitute additional security for the payment of
the Debt.
25. WAIVER OF SETOFF AND COUNTERCLAIM. All amounts due under
this Mortgage, the Note and the other Loan Documents shall be payable without
setoff, counterclaim (except for compulsory counterclaims) or any deduction
whatsoever. Mortgagor hereby waives the right to assert a setoff, counterclaim
(except for compulsory counterclaims) or deduction in any action or proceeding
in which Mortgagee is a participant, or arising out of or in any way connected
with this Mortgage, the Note, any of the other Loan Documents, or the Debt.
26. RECOVERY OF SUMS REQUIRED TO BE PAID. Mortgagee shall have
the right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Mortgagee thereafter to bring an action of foreclosure, or any other action,
for a default or defaults by Mortgagor existing at the time such earlier action
was commenced.
27. MARSHALLING AND OTHER MATTERS.
(a) Mortgagor hereby waives, to the extent permitted by law,
the benefit of all appraisement, valuation, stay, extension, reinstatement and
redemption laws now or hereafter in force and all rights of marshalling in the
event of any sale hereunder of the Mortgaged Property or any part thereof or any
interest therein. Further, Mortgagor hereby expressly waives any and all rights
of redemption from sale under any order or decree of foreclosure of this
Mortgage on behalf of Mortgagor and on behalf of each and every person acquiring
any interest in or title to the Mortgaged Property subsequent to the date of
this Mortgage and on behalf of all persons to the extent permitted by applicable
law. To the extent permitted by law, Mortgagor shall not have or assert any
right under any statute or rule of law pertaining to the exemption of homestead
or other exemption under any federal, state or local law now or hereafter in
effect, the administration of estates of decedents or other matters whatever to
defeat, reduce or affect the right of Mortgagee under the terms of this Mortgage
to a sale of the Mortgaged Property, for the collection of the Debt without any
prior or different resort for collection, or the right of Mortgagee under the
terms of this Mortgage to the payment of the Debt out of the proceeds of sale of
the Mortgaged Property in preference to every other claimant whatever. Further,
Mortgagor hereby knowingly, intentionally and voluntarily waives, releases,
relinquishes and forever forgoes all present and future statutes of limitations
as a defense to any action to enforce the provisions of this Mortgage or to
collect any of the Debt secured hereby to the fullest extent permitted by law.
(b) Mortgagor acknowledges and agrees that the lien of this
Mortgage shall be absolute and unconditional and shall not in any manner be
affected or impaired by any acts or omissions whatsoever of Mortgagee and,
without limiting the generality of the foregoing, the
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lien hereof shall not be impaired by any acceptance by Mortgagee of any other
security for any portion of the Debt, or by any failure, neglect or omission on
the part of Mortgagee to realize upon or protect any portion of the Debt or any
collateral security therefor. The lien of this Mortgage shall not in any manner
be impaired or affected by any release (except as to the property released),
sale, pledge, surrender, compromise, settlement, renewal, extension, indulgence,
alteration, changing, modification or disposition of any portion of the Debt or
of any of the collateral security therefor, and Mortgagee may foreclose, or
exercise any other remedy available to Mortgagee, without first exercising or
enforcing any of its other remedies under this Mortgage and any exercise of the
rights and remedies of Mortgagee hereunder shall not in any manner impair the
Debt or any of Mortgagee's rights and remedies hereunder.
28. HAZARDOUS SUBSTANCES. Mortgagor hereby represents and
warrants to Mortgagee that except as set forth in the environmental report
delivered to Mortgagee on the Closing Date in connection with the closing of the
Loan: (a) except where the failure to comply is not reasonably likely to cause a
Material Adverse Change the Mortgaged Property is in full compliance with all
local, state, federal and other governmental authority statutes, ordinances,
codes, orders, decrees, laws, rules and regulations pertaining to or imposing
liability or standards of conduct concerning environmental regulation,
contamination or clean-up, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, the
Resource Conservation and Recovery Act of 1976, as amended, the Emergency
Planning and Community Right-to-Know Act of 1986, as amended, the Hazardous
Substances Transportation Act, as amended, the Solid Waste Disposal Act, as
amended, the Clean Water Act, as amended, the Clean Air Act, as amended, the
Toxic Substance Control Act, as amended, the Safe Drinking Water Act, as
amended, the Occupational Safety and Health Act, as amended, any state
super-lien and environmental clean-up statutes and all regulations, orders and
guidelines adopted in respect of the foregoing laws, whether presently in force
or coming into being and/or effectiveness hereafter (collectively,
"ENVIRONMENTAL LAWS"); (b) the Mortgaged Property is not subject to any private
or governmental lien or judicial or administrative notice or action or inquiry,
investigation or claim relating to hazardous and/or toxic, dangerous and/or
regulated, substances, wastes, materials, raw materials which include hazardous
constituents, pollutants or contaminants, including, without limitation,
asbestos or any substance or material containing asbestos, petroleum, tremolite,
anthlophylie, actinolite or polychlorinated biphenyls and any other substances
or materials which are included under or regulated by Environmental Laws or
which are considered by scientific opinion to be otherwise dangerous in terms of
the health, safety or welfare of humans (collectively, "HAZARDOUS SUBSTANCES");
(c) to the best knowledge of Mortgagor no Hazardous Substances are or have been
(including, the period prior to Mortgagor's acquisition of the Mortgaged
Property) released, discharged, generated, treated, disposed of or stored on,
incorporated in, or removed or transported from the Mortgaged Property other
than in compliance with all Environmental Laws; (d) to the best knowledge of
Mortgagor no Hazardous Substances are present in, on or under any nearby real
property which could migrate to or otherwise affect the Mortgaged Property; and
(e) to the best knowledge of Mortgagor no underground storage tanks exist on the
Mortgaged Property. So long as Mortgagor owns or is in possession of the
Mortgaged Property, Mortgagor: (i) shall keep or cause the Mortgaged Property to
be kept free from Hazardous Substances; (ii) shall keep or cause the Mortgaged
Property to be kept in compliance with all Environmental Laws; (iii) shall
promptly notify Mortgagee in writing if Mortgagor shall become aware of any
Hazardous Substances on or near the Mortgaged Property and/or if Mortgagor shall
become aware that the Mortgaged Property is in direct or indirect violation of
any Environmental Laws and/or if Mortgagor shall become aware of any condition
on or near the Mortgaged Property which could pose a threat to the health,
safety or welfare of humans; and (iv) shall remove such Hazardous Substances
and/or cure such violations and/or remove such threats, as applicable, as
required by law (or as shall be required by Mortgagee in the case of removal
which is not
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required by law, but in response to the opinion of a licensed hydrogeologist,
licensed environmental engineer or other qualified consultant engaged by
Mortgagee), promptly after Mortgagor becomes aware of the same, at Mortgagor's
sole expense. The obligations and liabilities of Mortgagor under this Paragraph
28 shall survive any termination, satisfaction or assignment of this Mortgage
and the exercise by Mortgagee of any of its rights or remedies hereunder,
including, without limitation, the acquisition of the Mortgaged Property by
foreclosure or a conveyance in lieu of foreclosure.
29. ENVIRONMENTAL MONITORING; REMEDIAL WORK. Mortgagor shall
give prompt written notice to Mortgagee of: (a) any proceeding or inquiry by any
party with respect to the presence of any Hazardous Substance on, under, from or
about the Mortgaged Property; (b) all claims made or threatened by any third
party against Mortgagor or the Mortgaged Property relating to any loss or injury
resulting from any Hazardous Substance; and (c) Mortgagor's discovery of any
occurrence or condition on any real property adjoining or in the vicinity of the
Mortgaged Property that could cause the Mortgaged Property to be subject to any
investigation or clean-up pursuant to any Environmental Law. Mortgagor shall
permit Mortgagee to join and participate in, as a party if it so elects, any
legal proceedings or actions initiated with respect to the Mortgaged Property in
connection with any Environmental Law or Hazardous Substance, and Mortgagor
shall pay all attorneys' fees and disbursements incurred by Mortgagee in
connection therewith. Upon Mortgagee's request, at any time and from time to
time while this Mortgage is in effect, Mortgagor shall provide, at Mortgagor's
sole expense, an inspection or audit of the Mortgaged Property prepared by a
licensed hydrogeologist, a licensed environmental engineer or other qualified
consultant approved by Mortgagee indicating the presence or absence of Hazardous
Substances and/or the violation or threatened violation of any Environmental
Laws at, on, in, under or near the Mortgaged Property; provided, however, that
Mortgagee may not require Mortgagor to provide such inspection or audit unless:
(i) Mortgagee is required by law to obtain such inspection or audit, (ii) such
inspection or audit is requested by Mortgagee in conjunction with a foreclosure
or other enforcement proceeding under the Loan Documents, or (iii) Mortgagee has
determined (in the exercise of its good faith judgment) that reasonable cause
exists for the performance of an environmental inspection or audit of the
Mortgaged Property. If Mortgagor fails to provide any such inspection or audit
within sixty (60) days after such request, Mortgagee may order same, and
Mortgagor hereby grants to Mortgagee and its employees and agents access to the
Mortgaged Property and a license to undertake such inspection or audit. The cost
of such inspection or audit shall be added to the Debt and shall bear interest
thereafter until paid at the Default Rate. In the event that any environmental
site assessment report prepared in connection with such inspection or audit
recommends that an operations and maintenance plan be implemented for any
Hazardous Substance, Mortgagor shall cause such operations and maintenance plan
to be prepared and implemented at Mortgagor's expense upon request of Mortgagee.
In the event that any investigation, testing, assessment, audit, site
monitoring, containment, clean-up, removal, restoration or other work of any
kind is reasonably necessary or desirable under an applicable Environmental Law
or otherwise required under this Mortgage in connection with any Hazardous
Substance (the "REMEDIAL WORK"), Mortgagor shall commence and thereafter
diligently prosecute to completion all such Remedial Work within thirty (30)
days after written demand by Mortgagee for performance thereof (or such shorter
period of time as may be required under applicable law). All Remedial Work shall
be performed by contractors approved in advance by Mortgagee and under the
supervision of a consulting engineer approved by Mortgagee. All costs and
expenses of such Remedial Work shall be paid by Mortgagor, including, without
limitation, Mortgagee's reasonable attorneys' fees and disbursements incurred in
connection with monitoring or review of such Remedial Work. In the event
Mortgagor shall fail to timely commence, or cause to be commenced, or fail to
diligently prosecute to completion, such Remedial Work, Mortgagee may, but shall
not be required to, cause such Remedial Work to be performed, and all costs and
expenses thereof, or
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incurred in connection therewith, shall be added to the Debt and shall bear
interest thereafter until paid at the Default Rate.
30. HANDICAPPED ACCESS.
(a) Mortgagor agrees that the Mortgaged Property shall at all
times strictly comply to the extent applicable with the requirements of the
Americans with Disabilities Act of 1990, the Fair Housing Amendments Act of
1988, all state and local laws and ordinances related to handicapped access and
all rules, regulations and orders issued pursuant thereto, including, without
limitation, the Americans with Disabilities Act Accessibility Guidelines for
Buildings and Facilities (collectively, "ACCESS LAWS").
(b) Notwithstanding any provisions set forth herein or in any
other document regarding Mortgagee's approval of alterations of the Mortgaged
Property, Mortgagor shall not alter the Mortgaged Property in any manner which
would increase Mortgagor's responsibilities for compliance with the applicable
Access Laws without the prior written approval of Mortgagee. The foregoing shall
apply to tenant improvements constructed by Mortgagor or by any of its tenants.
Mortgagee may condition any such approval upon receipt of a certificate of
Access Law compliance from an architect, engineer or other person acceptable to
Mortgagee.
(c) Mortgagor agrees to give prompt written notice to
Mortgagee of the receipt by Mortgagor of any complaints related to violation of
any Access Laws and of the commencement of any proceedings or investigations
which relate to compliance with applicable Access Laws.
31. INDEMNIFICATION. In addition to any other indemnifications
provided herein or in the other Loan Documents, Mortgagor shall protect, defend,
indemnify and hold harmless Mortgagee from and against all liabilities,
obligations, claims, demands, damages, penalties, causes of action, losses,
fines, costs and expenses (including, without limitation, reasonable attorneys'
fees and disbursements), imposed upon or incurred by or asserted against
Mortgagee (other than as a direct result of Mortgagee's fraud or wilful
misconduct)by reason of: (a) ownership of this Mortgage, the Mortgaged Property
or any interest therein or receipt of any Rents; (b) any accident, injury to or
death of persons or loss of or damage to property occurring in, on or about the
Mortgaged Property or any part thereof or on the adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways; (c) any use,
nonuse or condition in, on or about the Mortgaged Property or any part thereof
or on adjoining sidewalks, curbs, adjacent property or adjacent parking areas,
streets or ways; (d) any failure on the part of Mortgagor to perform or comply
with any of the terms of this Mortgage; (e) performance of any labor or services
or the furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof; (f) the presence, disposal, escape, seepage,
leakage, spillage, discharge, emission, release or threatened release of any
Hazardous Substance at, on, in, under, from or affecting the Mortgaged Property,
any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to such Hazardous Substance, and any lawsuit
brought or threatened, settlement reached, or government order relating to such
Hazardous Substance; (g) any violation of Environmental Laws which is based upon
or in any way related to any Hazardous Substance at, on, in, under, from or
affecting the Mortgaged Property, including, without limitation, the costs and
expenses of any Remedial Work, attorney and consultant fees and disbursements,
investigation and laboratory fees, court costs and litigation expenses; (h) any
failure of the Mortgaged Property to comply with any Access Laws; (i) any
representation or warranty made in the Note, this Mortgage or any of the other
Loan Documents being false or misleading in any material respect as of the date
such representation or warranty was made; (j) any claim by brokers, finders or
similar persons claiming to be entitled to
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a commission in connection with any Lease or other transaction involving the
Mortgaged Property or any part thereof or any liability asserted against
Mortgagee with respect thereto; and (k) the claims of any tenant of any portion
of the Mortgaged Property or any person acting through or under any tenant or
otherwise arising under or as a consequence of any Lease. The indemnifications
set forth in the preceding clauses (f) and (g) shall include, without
limitation, the costs of removal of the Hazardous Substances before or after
foreclosure or other taking of title to the Mortgaged Property by Mortgagee,
additional costs required to take necessary precautions to protect against the
release of Hazardous Substances into the air, any body of water or any other
public domain or onto or under any other property, costs incurred to comply with
all applicable Environmental Laws, and any diminution in the value of the
security afforded by the Mortgaged Property or any future reduction in the sale
price of the Mortgaged Property by reason of any matter set forth above in said
clauses (f) or (g) of this Paragraph 31 to the extent that such diminution in
value or such future reduction in sale price results in Mortgagee receiving less
than the full amount of all principal, interest and other sums payable by
Mortgagor under the Loan, but shall specifically not include any such costs
relating to Hazardous Substances which are initially placed on, in or under the
Mortgaged Property after foreclosure or other taking of title to the Mortgaged
Property by Mortgagee. Any amounts payable to Mortgagee by reason of the
application of this Paragraph shall be secured by this Mortgage and shall become
immediately due and payable and shall bear interest at the Default Rate from the
date loss or damage is sustained by Mortgagee until paid. The obligations and
liabilities of Mortgagor under this Paragraph 31 shall survive any termination,
satisfaction or assignment of this Mortgage and the exercise by Mortgagee of any
of its rights or remedies hereunder, including, but not limited to, the
acquisition of the Mortgaged Property by foreclosure or a conveyance in lieu of
foreclosure but only to the extent based on facts existing at the time Mortgagor
owned the Mortgaged Property.
32. NOTICES. Any notice, demand, statement, request
or consent made hereunder shall be sent and shall be effective in the manner set
forth in the Loan Agreement.
33. AUTHORITY. Mortgagor (and the undersigned representative
of Mortgagor, if any) represent and warrant that it (or they, as the case may
be) has full power, authority and right to execute, deliver and perform its
obligations pursuant to this Mortgage and to grant, bargain, sell, convey,
assign, transfer and mortgage the Mortgaged Property pursuant to the terms
hereof and to keep and observe all of the terms of this Mortgage on Mortgagor's
part to be performed; and Mortgagor represents and warrants that Mortgagor is
not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal
Revenue Code of 1986, as amended, and the related Treasury Department
regulations, including temporary regulations.
34. WAIVER OF NOTICE. Mortgagor shall not be entitled to any
notices of any nature whatsoever from Mortgagee except with respect to matters
for which the Loan Documents specifically and expressly provide for the giving
of notice by Mortgagee to Mortgagor and except with respect to matters for which
Mortgagee is required by applicable law to give notice. To the extent permitted
by applicable law, Mortgagor hereby expressly waives the right to receive any
notice from Mortgagee with respect to any matter for which this Mortgage does
not specifically and expressly provide for the giving of notice by Mortgagee to
Mortgagor.
35. REMEDIES OF MORTGAGOR. In the event that a claim or
adjudication is made that Mortgagee has acted unreasonably or unreasonably
delayed acting in any case where by law or under the Note, this Mortgage or the
other Loan Documents it has an obligation to act reasonably or promptly,
Mortgagee shall not be liable for any monetary damages, and Mortgagor's remedies
shall be limited to injunctive relief or declaratory judgment.
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36. SOLE DISCRETION OF MORTGAGEE. Wherever pursuant to this
Mortgage, Mortgagee exercises any right given to it to consent or not consent or
approve or disapprove, or any arrangement or term is to be satisfactory to
Mortgagee, the decision of Mortgagee to consent or not consent, to approve or
disapprove or to decide that arrangements or terms are satisfactory or not
satisfactory shall be in the sole discretion of Mortgagee and shall be final and
conclusive, except as may be otherwise expressly and specifically provided
herein.
37. NON-WAIVER. The failure of Mortgagee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations
hereunder by reason of: (a) the failure of Mortgagee to comply with any request
of Mortgagor or to take any action to foreclose this Mortgage or otherwise
enforce any of the provisions hereof or of the Note, the Loan Agreement or any
of the other Loan Documents; (b) the release, regardless of consideration, of
the whole or any part of the Mortgaged Property, or of any person liable for the
Debt or any portion thereof; or (c) any agreement or stipulation by Mortgagee
extending the time of payment or otherwise modifying or supplementing the terms
of the Note, the Loan Agreement, this Mortgage or any of the other Loan
Documents. Mortgagee may resort for the payment of the Debt to any other
security held by Mortgagee in such order and manner as Mortgagee, in its sole
discretion, may elect. Mortgagee may take action to recover the Debt, or any
portion thereof, or to enforce any covenant hereof without prejudice to the
right of Mortgagee thereafter to foreclosure this Mortgage. The rights and
remedies of Mortgagee under this Mortgage shall be separate, distinct and
cumulative and none shall be given effect to the exclusion of the others. No act
of Mortgagee shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision. Mortgagee shall not be
limited exclusively to the rights and remedies herein stated but shall be
entitled to every right and remedy now or hereafter afforded at law or in
equity.
38. NO ORAL CHANGE. This Mortgage, and any provisions hereof,
may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Mortgagor or
Mortgagee, but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
39. LIABILITY. If more than one person signs this Mortgage as
Mortgagee, the obligations and liabilities of each such person hereunder shall
be joint and several. Subject to the provisions hereof requiring Mortgagee's
consent to any transfer of the Mortgaged Property, this Mortgage shall be
binding upon and inure to the benefit of Mortgagor and Mortgagee and their
respective successors and assigns.
40. INAPPLICABLE PROVISIONS. If any term, covenant or
condition of the Note or this Mortgage is held to be invalid, illegal or
unenforceable in any respect, the Note and this Mortgage shall be construed
without such provision.
41. HEADINGS, ETC. The headings and captions of various
paragraphs of this Mortgage are for convenience of reference only and are not to
be construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
42. DUPLICATE ORIGINALS. This Mortgage may be executed in
any number of duplicate originals and each such duplicate original shall be
deemed to be an original.
43. DEFINITIONS. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Mortgage may be used
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interchangeably in singular or plural form and (a) the word "MORTGAGOR" shall
mean "each Mortgagor and any subsequent owner or owners of the Mortgaged
Property or any part thereof or any interest therein," (b) the word "MORTGAGEE"
shall mean "Mortgagee and any subsequent holder of this Mortgage," (c) the word
"NOTE" shall mean "the Note and any other evidence of indebtedness secured by
this Mortgage," (d) the word "PERSON" shall include an individual, corporation,
partnership, trust, limited liability company, unincorporated association,
government, governmental authority and any other entity, (e) the words
"MORTGAGED PROPERTY" shall include any portion of the Mortgaged Property and any
interest therein, and (f) the words "ATTORNEYS' FEES" shall include any and all
attorneys' fees, paralegal and law clerk fees, including, without limitation,
fees at the pre-trial, trial and appellate levels, incurred or paid by Mortgagee
in protecting its interest in the Mortgaged Property and the Collateral and
enforcing its rights hereunder. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and vice
versa.
44. ASSIGNMENTS. Mortgagee shall have the right to assign or
transfer its rights under this Mortgage without limitation. Any assignee or
transferee shall be entitled to all the benefits afforded Mortgagee under this
Mortgage.
45. WAIVER OF JURY TRIAL. MORTGAGOR HEREBY AGREES NOT TO ELECT
A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THE NOTE, THIS MORTGAGE OR THE OTHER LOAN DOCUMENTS, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER
OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY MORTGAGOR, AND
IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH
THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. MORTGAGEE IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY MORTGAGOR.
46. MISCELLANEOUS.
(a) Any consent or approval by Mortgagee in any single
instance shall not be deemed or construed to be Mortgagee's consent or approval
in any like matter arising at a subsequent date, and the failure of Mortgagee to
promptly exercise any right, power, remedy, consent or approval provided herein
or at law or in equity shall not constitute or be construed as a waiver of the
same nor shall Mortgagee be estopped from exercising such right, power, remedy,
consent or approval at a later date. Any consent or approval requested of and
granted by Mortgagee pursuant hereto shall be narrowly construed to be
applicable only to Mortgagor and the matter identified in such consent or
approval and no third party shall claim any benefit by reason thereof, and any
such consent or approval shall not be deemed to constitute Mortgagee a venturer
or partner with Mortgagor nor shall privity of contract be presumed to have been
established with any such third party. If Mortgagee deems it to be in its best
interest to retain assistance of persons, firms or corporations (including,
without limitation, attorneys, title insurance companies, appraisers, engineers
and surveyors) with respect to a request for consent or approval, Mortgagor
shall reimburse Mortgagee for all out of pocket costs (except after an Event of
Default, Mortgagor shall reimburse Mortgagee for all costs and expenses)
reasonably incurred in connection with the employment of such persons, firms or
corporations.
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(b) Mortgagor covenants and agrees that during the term of
this Mortgage, unless Mortgagee shall have previously consented in writing: (i)
Mortgagor will take no action that would cause it to become an "employee benefit
plan" as defined in Section 3(3) of ERISA (as defined in the Loan Agreement) or
cause the assets of Mortgagor to constitute "plan assets" of one or more such
plans within the meaning of 29 C.F.R. Section 2510.3-101; and (ii) Mortgagor
will take no action that would cause it to be a "governmental plan" within the
meaning of Section 3(32) of ERISA and shall not engage in any transaction which
would subject Mortgagor to state statutes regulating investments of, and
fiduciary obligations with respect to, governmental plans. Mortgagor will not
sell, assign or transfer the Mortgaged Property, or any portion thereof or
interest therein, to any transferee that does not execute and deliver to
Mortgagee its written assumption of the obligations of the foregoing covenants.
Mortgagor further covenants and agrees to protect, defend, indemnify and hold
Mortgagee harmless from and against all loss, cost, damage and expense
(including, without limitation, all attorneys' fees and the cost of correcting
any prohibited transaction or obtaining an appropriate exemption) that Mortgagee
may incur as a result of Mortgagor's breach of the foregoing covenants. These
covenants and indemnity shall survive the extinguishment of the lien of this
Mortgage by foreclosure or action in lieu thereof provided such indemnity
relates to facts in existence prior to the extinguishment of the lien of this
Mortgage. In addition, the foregoing indemnity shall be a recourse obligation of
Mortgagor but not against its members and shall supersede any limitations on
Mortgagor's liability under any of the Loan Documents.
(c) The Loan Documents contain the entire agreement between
Mortgagor and Mortgagee relating to or connected with the Loan. Any other
agreements relating to or connected with the Loan not expressly set forth in the
Loan Documents are null and void and superseded in their entirety by the
provisions of the Loan Documents.
(d) Time is of the essence with respect to all provisions of
this Mortgage.
(e) Mortgagor represents and warrants to Mortgagee that there
has not been committed by Mortgagor or to Mortgagor's knowledge any other person
in occupancy of or involved with the operation or use of the Mortgaged Property
any act or omission affording the federal government or any state or local
government the right of forfeiture as against the Mortgaged Property or any part
thereof or any monies paid in performance of Mortgagor's obligations under the
Note or under any of the other Loan Documents. Mortgagor hereby covenants and
agrees not to commit, permit or suffer to exist any act, omission or
circumstance affording such right of forfeiture. In furtherance thereof,
Mortgagor hereby indemnifies Mortgagee and agrees to defend and hold Mortgagee
harmless from and against any loss, damage or injury by reason of the breach of
the covenants and agreements or the representations and warranties set forth in
this Paragraph. Without limiting the generality of the foregoing, the filing of
formal charges or the commencement of proceedings against Mortgagor or against
all or any part of the Mortgaged Property under any federal or state law for
which forfeiture of the Mortgaged Property or any part thereof or of any monies
paid in performance of Mortgagor's obligations under the Loan Documents is a
potential result, shall, at the election of Mortgagee, constitute an Event of
Default hereunder without notice or opportunity to cure.
(f) The relationship between Mortgagor and Mortgagee is that
of a borrower and a lender only and neither of those parties is, nor shall it
hold itself out to be, the agent, employee, joint venturer or partner of the
other party.
(g) An Event of Default hereunder shall be a default under
each of the other Loan Documents.
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(h) In the event the Mortgaged Property or any part thereof
shall be sold upon foreclosure as provided hereunder, to the extent permitted by
law, the sum for which the same shall have been sold shall, for purposes of
redemption (pursuant to the laws of the state where the Mortgaged Property is
located), bear interest at the Default Rate.
(i) This document may be construed as a mortgage, deed of
trust, chattel mortgage, conveyance, assignment, security agreement, pledge,
financing statement, hypothecation or contract, or any one or more of the
foregoing, in order to fully effectuate the liens and security interests created
hereby and the purposes and agreements herein set forth.
(j) In the case of any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition or other proceedings
affecting Mortgagor or the general partners, members or principals in Mortgagor,
or their respective creditors or property, Mortgagee, to the extent permitted by
law, shall be entitled to file such proofs of claim and other documents as may
be necessary or advisable in order to have the claims of Mortgagee allowed in
such proceedings for the entire secured Debt at the date of the institution of
such proceedings and for any additional amount which may become due and payable
by Mortgagor hereunder after such date.
47. INTENTIONALLY DELETED
48. MATURITY DATE. The maturity date of the Debt secured
hereby is July 30, 1999 (the Stated Maturity Date).
49. FUTURE ADVANCES. This Mortgage secures such future or
additional advances as may be made by Mortgagee or the holder hereof, at its
exclusive option, to Mortgagor or its successors or assigns in title for any
purpose. All such future advances shall be secured to the same extent as if made
on the date of the execution of this Mortgage and this Mortgage shall secure the
payment of the Note and any additional advances made from time to time pursuant
hereto, all of said Debt being equally secured hereby and having the same
priority as any amounts advanced as of the date of this Mortgage. It is agreed
that any additional sum or sums advanced by Mortgagee shall be equally secured
with and have the same priority as the original Debt and shall be subject to all
of the terms, provisions and conditions of this Mortgage, whether or not such
additional loans or advances are evidenced by other promissory notes or other
guaranties of Mortgagor and whether or not identified by a recital that it or
they are secured by this Mortgage. It is further agreed that any additional
promissory note or guaranty or promissory notes or guaranties executed and
delivered pursuant to this Paragraph shall automatically be deemed to be
included in the term "NOTE" wherever it appears in the context of this Mortgage.
50. AFTER-ACQUIRED PROPERTY. All property acquired by
Mortgagor after the date of this Mortgage which by the terms of this Mortgage
shall be subject to the lien and/or the security interest created hereby, shall
immediately upon the acquisition thereof by Mortgagor and without any further
mortgage, conveyance or assignment become subject to the lien and security
interest created by this Mortgage. Nevertheless, Mortgagor shall execute,
acknowledge, deliver and record or file, as appropriate, all and every such
further mortgages, security agreements, financing statements, assignments and
assurances as Mortgagee shall require for accomplishing the purposes of this
Mortgage.
51. CERTAIN RETAIL COVENANTS. Mortgagor further covenants and
agrees with Mortgagee as follows:
(a) Mortgagor shall:
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(i) promptly perform and/or observe all of the
covenants and agreements required to be performed and observed
by it under the Property Management Agreement and do all
things necessary to preserve and to keep unimpaired its
material rights thereunder;
(ii) promptly notify Mortgagee in writing of any
default under the Property Management Agreement of which it is
aware;
(iii) promptly deliver to Mortgagee a copy of each
financial statement, business plan, capital expenditures plan,
notice, report and estimate prepared by Mortgagor or Manager
under the Property Management Agreement; and
(iv) promptly enforce the performance and observance
of all of the covenants and agreements required to be
performed and/or observed by the property manager under the
Property Management Agreement.
(b) Mortgagor shall not, without Mortgagee's prior written
consent:
(i) surrender, terminate or cancel the Property
Management Agreement or otherwise replace the property manager
under the Property Management Agreement or enter into any
other management agreements with respect to the Mortgaged
Property, provided, however, that Mortgagor may terminate or
cancel the Property Management Agreement in accordance with
the terms thereof so long as, prior to such termination or
cancellation, Mortgagor has selected a replacement property
manager and such replacement property manager has been
approved by Mortgagee;
(ii) reduce or consent to the reduction of the term
of the Property Management Agreement;
(iii) increase or consent to the increase of the
amount of any charges under the Property Management Agreement;
or
(iv) otherwise modify, change, supplement, alter or
amend, or waive or release any of its rights and remedies
under, the Property Management Agreement in any material
respect which adversely effects Mortgagor's rights thereunder
or Mortgagee's interest in the Mortgaged Property.
(c) Mortgagor shall not, without Mortgagee's prior written
consent, enter into transactions with any affiliate, including, without
limitation, any arrangement providing for the managing of the Mortgaged
Property, the rendering or receipt of services or the purchase or sale of
inventory, except any such transaction in the ordinary course of business of
Mortgagor if the monetary or business consideration arising therefrom would be
substantially as advantageous to Mortgagor as the monetary or business
consideration that Mortgagor would obtain in a comparable transaction with a
person not an affiliate of Mortgagor.
(d) Mortgagor will enter into and cause the property manager
to enter into an assignment and subordination of the Property Management
Agreement in form satisfactory to Mortgagee, assigning to Mortgagee all of
Mortgagor's rights and interest under the Property Management Agreement and
subordinating the property manager's interest in the Mortgaged Property and all
fees and other rights of the property manager pursuant to the Property
Management Agreement to this Mortgage and the other Loan Documents and the
rights of Mortgagee hereunder and thereunder. If a monetary default or an Event
of Default shall occur, Mortgagor, at Mortgagee's request made at any time while
such monetary default or such Event of Default is continuing, shall terminate
the Property Management Agreement and replace the property manager with a
property manager approved by Mortgagee on terms and conditions satisfactory to
Mortgagee.
52. LOCAL LAW. Annexed hereto as Exhibit B are additional
provisions which shall be deemed incorporated herein by reference. In the event
of any inconsistencies between
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the provisions of this Mortgage and the provisions of Exhibit B, the provisions
of Exhibit B shall control and be binding.
53. CHOICE OF LAW. THIS MORTGAGE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE WHERE THE MORTGAGED PROPERTY
IS LOCATED WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT THAT THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS) SHALL GOVERN THE RESOLUTION OF ISSUES ARISING UNDER THE LOAN AGREEMENT AND
NOTE TO THE EXTENT THAT SUCH RESOLUTION IS NECESSARY TO THE INTERPRETATION OF
THIS MORTGAGE.
54. WAIVER OF APPRAISAL RIGHTS. The laws of South Carolina
provide that in any real estate foreclosure proceeding a defendant against whom
a personal judgment is taken or asked may within thirty (30) days after the sale
of the mortgaged property apply to the court for an order of appraisal. The
statutory appraisal value as approved by the court would be substituted for the
high bid and may decrease the amount of any deficiency owing in connection with
the transaction. THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY
APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL
BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE MORTGAGED
PROPERTY.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage,
Assignment of Leases and Rents and Security Agreement as of the day and year
first above written.
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: GLIMCHER PROPERTIES CORPORATION,
a Delaware corporation, its
general partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
[CORPORATE SEAL]
WITNESSES:
Name:
-------------------------
Name:
-------------------------
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STATE OF ______________ )
) ss.
COUNTY OF _____________ )
On this _____ day of ___________, before me, a notary public
in and for said State, personally came , to me known, who, being by me duly
sworn, did depose and say that he resides at
_________________________________________________; that he is a
__________________ of ____________________________________, a ____________
corporation and the ________ of _______________________________, the
_____________ named in the foregoing instrument; and that he executed such
instrument as the act and deed of, and on behalf of, said limited liability
company.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxxxx
---------------------------------
Notary Public
[NOTORIAL SEAL]
My commission expires: December 26, 1999
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT B
LOCAL LAW
None.
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