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Exhibit 10.110
MORTGAGE, SECURITY
AGREEMENT, FIXTURE FILING AND
FINANCING STATEMENT
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See attached
THIS SPACE RESERVED FOR RECORDING DATA
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This Instrument was drafted by and should be
returned to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Esq.
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Parcel I.D. No:________________________
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxx Xxxxxxxx, Esq.
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT
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THIS MORTGAGE is made as of June 28, 1999, between GLIMCHER PROPERTIES
LIMITED PARTNERSHIP a Delaware limited partnership (the "Mortgagor") 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, and XXXXXXX NATIONAL LIFE INSURANCE COMPANY,
a Michigan corporation (the "Mortgagee"), c/o PPM Finance, Inc., 000 Xxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
1. MORTGAGE AND SECURED OBLIGATIONS.
1.1. MORTGAGE. For purposes of securing payment and performance of the
Secured Obligations defined and described in SECTION 1.2, Mortgagor hereby
irrevocably and unconditionally grants, bargains, sells, conveys, mortgages,
warrants, assigns and pledges to Mortgagee, with right of entry and possession,
and with power of sale, all estate, right, title and interest which Mortgagor
now has or may later acquire in and to the following property (all or any part
of such property, or any interest in all or any part of it, as the context may
require, the "Property"):
(a) the real property located in the County of LaCrosse, State of
Wisconsin and more particularly described in EXHIBIT A attached hereto,
together with all existing and future easements and rights affording access
to it (the "Land");
(b) all buildings, structures and improvements now located or later to
be constructed on the Land (the "Improvements");
(c) all existing and future appurtenances, privileges, easements,
franchises and tenements of the Land, including all minerals, oil, gas,
other hydrocarbons and associated substances, sulfur, nitrogen, carbon
dioxide, helium and other commercially valuable substances which may be in,
under or produced from any part of the Land, all development rights and
credits, air rights, water, water rights (whether riparian, appropriative
or otherwise, and whether or not appurtenant) and water stock, and any land
lying in the streets, roads or avenues, open or proposed, in front of or
adjoining the Land and Improvements;
(d) all existing and future leases, subleases, subtenancies, licenses,
occupancy agreements and concessions ("leases", as defined in the
Assignment of Leases and Rents described in SECTION 2 herein, executed and
delivered to Lender contemporaneously
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herewith) relating to the use and enjoyment of all or any part of the Land
and Improvements, and any and all guaranties and other agreements relating
to or made in connection with any of such leases;
(e) all goods, materials, supplies, chattels, furniture, fixtures,
equipment and machinery now or later to be attached to, placed in or on, or
used in connection with the use, enjoyment, occupancy or operation of all
or any part of the Land and Improvements, whether stored on the Land or
elsewhere, including all pumping plants, engines, pipes, ditches and
flumes, and also all gas, electric, cooking, heating, cooling, air
conditioning, lighting, refrigeration and plumbing fixtures and equipment,
all of which shall be considered to the fullest extent of the law to be
real property for purposes of this Mortgage;
(f) all building materials, equipment, work in process or other
personal property of any kind, whether stored on the Land or elsewhere,
which have been or later will be acquired for the purpose of being
delivered to, incorporated into or installed in or about the Land or
Improvements;
(g) all of Mortgagor's interest in and to the Loan funds, whether
disbursed or not, the Escrow Accounts (as defined in SECTION 3.1 of the
Loan Agreement) and any of Mortgagor's funds now or later to be held by or
on behalf of Mortgagee;
(h) all rights to the payment of money, accounts, accounts receivable,
reserves, deferred payments, refunds, cost savings, payments and deposits,
whether now or later to be received from third parties (including all
xxxxxxx money sales deposits) or deposited by Mortgagor with third parties
(including all utility deposits), contract rights, development and use
rights, governmental permits and licenses, applications, architectural and
engineering plans, specifications and drawings, as-built drawings, chattel
paper, instruments, documents, notes, drafts and letters of credit (other
than letters of credit in favor of Mortgagee), which arise from or relate
to construction on the Land or to any business now or later to be conducted
on it, or to the Land and Improvements generally;
(i) all proceeds, including all claims to and demands for them, of the
voluntary or involuntary conversion of any of the Land, Improvements or the
other property described above into cash or liquidated claims, including
proceeds of all present and future fire, hazard or casualty insurance
policies and all condemnation awards or payments now or later to be made by
any public body or decree by any court of competent jurisdiction for any
taking or in connection with any condemnation or eminent domain proceeding,
and all causes of action and their proceeds for any damage or injury to the
Land, Improvements or the other property described above or any part of
them, or breach of warranty in connection with the construction of the
Improvements, including causes of action arising in tort, contract, fraud
or concealment of a material fact;
(j) all books and records pertaining to any and all of the property
described above, including computer-readable memory and software necessary
to access and process such memory ("Books and Records"). Notwithstanding
anything in the foregoing to the contrary, Books and Records shall not be
deemed to include the general
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corporate books and records of the Mortgagor which are maintained by
Mortgagor on a consolidated basis for all of Mortgagor's properties (which
properties include the Property being secured hereunder) except to the
extent that information in such consolidated books and records pertains to
the Property secured hereunder;
(k) (i) all agreements heretofore or hereafter entered into relating
to the construction, ownership, operation, management, leasing or use of
the Land or Improvements; (ii) any and all present and future amendments,
modifications, supplements, and addenda to any of the items described in
(i) above; (iii) any and all guarantees, warranties and other undertakings
(including payment and performance bonds) heretofore or hereafter entered
into or delivered with respect to any of the items described in clauses (i)
and (ii) above; (iv) all trade names, trademarks, logos and other materials
used to identify or advertise, or otherwise relating to the Land or
Improvements; and (v) all building permits, governmental permits, licenses,
variances, conditional or special use permits, and other authorizations
(collectively, the "Permits") now or hereafter issued in connection with
the construction, development, ownership, operation, management, leasing or
use of the Land or Improvements, to the fullest extent that the same or any
interest therein may be legally assigned by Mortgagor; and
(l) all proceeds of, additions and accretions to, substitutions and
replacements for, and changes in any of the property described above.
Capitalized terms used above and elsewhere in this Mortgage without definition
have the meanings given them in the Loan Agreement referred to in SECTION 1.2
below.
1.2. SECURED OBLIGATIONS. This Mortgage is made for the purpose of securing
the following obligations (the "Secured Obligations") in any order of priority
that Mortgagee may choose:
(a) Payment of all obligations at any time owing under a Promissory
Note (the "Note") of even date herewith, payable by Mortgagor as maker in
the stated principal amount of Ninety Million Dollars ($90,000,000.00) to
the order of Mortgagee, which Note matures and is due and payable in full
not later than____________, ______; and
(b) Payment and performance of all obligations of Mortgagor under a
Loan Agreement of even date herewith between Mortgagor, as borrower, and
Mortgagee, as lender (the "Loan Agreement"); and
(c) Payment and performance of all obligations of Mortgagor under this
Mortgage; and
(d) Payment and performance of any obligations of Mortgagor under any
Loan Documents (as defined in the Loan Agreement) which are executed by
Mortgagor, including without limitation the Environmental Indemnity; and
(e) Payment and performance of all future advances and other
obligations that Mortgagor or any successor in ownership of all or part of
the Property may agree to pay and/or perform (whether as principal, surety
or guarantor) for the benefit of Mortgagee,
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when a writing evidences the parties' agreement that the advance or
obligation be secured by this Mortgage; and
(f) Payment and performance of all modifications, amendments,
extensions and renewals, however evidenced, of any of the Secured
Obligations.
All persons who may have or acquire an interest in all or any part of the
Property will be considered to have notice of, and will be bound by, the terms
of the Secured Obligations and each other agreement or instrument made or
entered into in connection with each of the Secured Obligations. These terms
include any provisions in the Note or the Loan Agreement which provide that the
interest rate on one or more of the Secured Obligations may vary from time to
time.
2. ASSIGNMENT OF RENTS. As an inducement to Mortgagee to make the loan
evidenced by the Note and the Loan Agreement, Mortgagor has contemporaneously
herewith executed and delivered to Mortgagee an Assignment of Leases and Rents
with respect to the Property.
3. GRANT OF SECURITY INTEREST.
3.1. SECURITY AGREEMENT. The parties acknowledge that some of the Property
and some or all of the Rents (as defined in the Assignment of Leases and Rents)
may be determined under applicable law to be personal property or fixtures. To
the extent that any Property or Rents may be personal property, Mortgagor as
debtor hereby grants Mortgagee as secured party a security interest in all such
Property and Rents, to secure payment and performance of the Secured
Obligations. This Mortgage constitutes a security agreement under the Uniform
Commercial Code as in effect in the State in which the Property is located,
covering all such Property and Rents.
3.2. FINANCING STATEMENTS. Mortgagor shall execute one or more financing
statements and such other documents as Mortgagee may from time to time require
to perfect or continue the perfection of Mortgagee's security interest in any
Property or Rents. Mortgagor shall pay all fees and costs that Mortgagee may
incur in filing such documents in public offices and in obtaining such record
searches as Mortgagee may reasonably require. In case Mortgagor fails to execute
any financing statements or other documents for the perfection or continuation
of any security interest, Mortgagor hereby appoints Mortgagee as its true and
lawful attorney-in-fact to execute any such documents on its behalf.
3.3. FIXTURE FILING. This Mortgage constitutes a financing statement filed
as a fixture filing under Section 409.312 and Section 409.402, Wis. Stats. (the
"Code"), as amended or recodified from time to time, covering any of the
Property which now is or later may become fixtures attached to the Land or the
Improvements. The following addresses are the mailing addresses of Mortgagor, as
debtor under the Code, and Mortgagee, as secured party under the Code,
respectively:
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MORTGAGOR: Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
MORTGAGEE: Xxxxxxx National Life Insurance Company
c/o PPM Finance, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
4. REPRESENTATIONS, COVENANTS AND AGREEMENTS.
4.1. GOOD TITLE. Mortgagor covenants that it is lawfully seized of the
Property, that the Property is unencumbered except for the Permitted Exceptions
(as defined in the Loan Agreement), and that it has good right, full power and
lawful authority to convey and mortgage the same, and that it will warrant and
forever defend the Property and the quiet and peaceful possession of the same
against the lawful claims of all persons whomsoever.
4.2. INSURANCE. In the event of any loss or damage to any portion of the
Property due to fire or other casualty, or a taking of any portion of the
Property by condemnation or under the power of eminent domain, the settlement of
all insurance and condemnation claims and awards and the application of
insurance and condemnation proceeds shall be governed by SECTION 5 of the Loan
Agreement.
4.3. STAMP TAX. If, by the laws of the United States of America, or of any
state or political subdivision having jurisdiction over Mortgagor, any tax is
due or becomes due in respect of the issuance of the Note, or recording of this
Mortgage, Mortgagor covenants and agrees to pay such tax in the manner required
by any such law. Mortgagor further covenants to hold harmless and agrees to
indemnify Mortgagee, its successors or assigns, against any liability incurred
by reason of the imposition of any tax on the issuance of the Note or recording
of this Mortgage.
4.4. CHANGES IN TAXATION. Other than a tax that may arise in connection
with a transfer of the Note by Mortgagee or that is imposed on the income of the
Mortgagee, in the event of the enactment after this date of any law of the State
in which the Property is located or any political subdivision thereof deducting
from the value of land for the purpose of taxation any lien thereon, or imposing
upon Mortgagee the payment of the whole or any part of the taxes or assessments
or charges or liens herein required to be paid by Mortgagor, or changing in any
way the laws relating to the taxation of mortgages or debts secured by mortgages
or the Mortgagee's interest in the Property, or the manner of collection of
taxes, so as to affect this Mortgage or the Secured Obligations, then Mortgagor,
upon demand by Mortgagee, shall pay such taxes or assessments, or reimburse
Mortgagee therefor; provided, however, that if in the opinion of counsel for
Mortgagee (i) it might be unlawful to require Mortgagor to make such payment or
(ii) the making of such payment might result in the imposition of interest
beyond the maximum amount permitted by law, then Mortgagee may elect, by notice
in writing given to Mortgagor, to declare all of the Secured Obligations to be
and become due and payable sixty (60) days from the giving of such notice.
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4.5. SUBROGATION. Mortgagee shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole
or in part by Mortgagee in accordance with this Mortgage or with the proceeds of
any loan secured by this Mortgage.
4.6. NOTICE OF CHANGE. Mortgagor shall give Mortgagee prior written notice
of any change in: (a) the location of its place of business or its chief
executive office if it has more than one place of business; (b) the location of
any of the Property, including the Books and Records; and (c) Mortgagor's name
or business structure. Unless otherwise approved by Mortgagee in writing, all
Property that consists of personal property (other than the Books and Records)
will be located on the Land and all Books and Records will be located at
Mortgagor's place of business or chief executive office if Mortgagor has more
than one place of business.
4.7. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY. From time
to time, Mortgagee may perform any of the following acts without incurring any
liability or giving notice to any person: (i) release any person liable for
payment of any Secured Obligation; (ii) extend the time for payment, or
otherwise alter the terms of payment, of any Secured Obligation; (iii) accept
additional real or personal property of any kind as security for any Secured
Obligation, whether evidenced by deeds of trust, mortgages, security agreements
or any other instruments of security; (iv) alter, substitute or release any
property securing the Secured Obligations; (v) consent to the making of any plat
or map of the Property or any part of it; (vi) join in granting any easement or
creating any restriction affecting the Property; or (vii) join in any
subordination or other agreement affecting this Mortgage or the lien of it.
5. DEFAULTS AND REMEDIES.
5.1. EVENTS OF DEFAULT. An "Event of Default," as defined in the Loan
Agreement, shall constitute an Event of Default hereunder.
5.2. REMEDIES At any time after an Event of Default, Mortgagee shall be
entitled to invoke any and all of the rights and remedies described below, in
addition to all other rights and remedies available to Mortgagee at law or in
equity. All of such rights and remedies shall be cumulative, and the exercise of
any one or more of them shall not constitute an election of remedies.
(a) ACCELERATION. Mortgagee may declare any or all of the Secured
Obligations to be due and payable immediately.
(b) RECEIVER. Mortgagee shall, as a matter of right, without notice
and without giving bond to Mortgagor or anyone claiming by, under or
through Mortgagor, and without regard for the solvency or insolvency of
Mortgagor or the then value of the Property, to the extent permitted by
applicable law, be entitled to have a receiver appointed for all or any
part of the Property and the Rents, and the proceeds, issues and profits
thereof, with the rights and powers referenced below and such other rights
and powers as the court making such appointment shall confer, and Mortgagor
hereby consents to the appointment of such receiver and shall not oppose
any such appointment. Such receiver shall have all powers and duties
prescribed by the applicable laws in effect in the state in which the
Property is located, all other powers which are necessary or usual in such
cases for the protection, possession, control, management and operation of
the
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Property, and such rights and powers as Mortgagee would have, upon entering
and taking possession of the Property under subsection (c) below.
(c) ENTRY. Mortgagee, in person, by agent or by court-appointed
receiver, may enter, take possession of, manage and operate all or any part
of the Property, and may also do any and all other things in connection
with those actions that Mortgagee may in its sole discretion consider
necessary and appropriate to protect the security of this Mortgage. Such
other things may include: taking and possessing all of Mortgagor's or the
then owner's Books and Records; entering into, enforcing, modifying or
canceling leases on such terms and conditions as Mortgagee may consider
proper; obtaining and evicting tenants; fixing or modifying Rents;
collecting and receiving any payment of money owing to Mortgagor;
completing any unfinished construction; and/or contracting for and making
repairs and alterations. If Mortgagee so requests, Mortgagor shall assemble
all of the Property that has been removed from the Land and make all of it
available to Mortgagee at the site of the Land. Mortgagor hereby
irrevocably constitutes and appoints Mortgagee as Mortgagor's
attorney-in-fact to perform such acts and execute such documents as
Mortgagee in its sole discretion may consider to be appropriate in
connection with taking these measures, including endorsement of Mortgagor's
name on any instruments.
(d) CURE; PROTECTION OF SECURITY. Mortgagee may cure any breach or
default of Mortgagor, and if it chooses to do so in connection with any
such cure, Mortgagee may also enter the Property and/or do any and all
other things which it may in its sole discretion consider necessary and
appropriate to protect the security of this Mortgage. Such other things may
include: appearing in and/or defending any action or proceeding which
purports to affect the security of, or the rights or powers of Mortgagee
under, this Mortgage; paying, purchasing, contesting or compromising any
encumbrance, charge, lien or claim of lien which in Mortgagee's sole
judgment is or may be senior in priority to this Mortgage, such judgment of
Mortgagee to be conclusive as between the parties to this Mortgage;
obtaining insurance and/or paying any premiums or charges for insurance
required to be carried under the Loan Agreement; otherwise caring for and
protecting any and all of the Property; and/or employing counsel,
accountants, contractors and other appropriate persons to assist Mortgagee.
Mortgagee may take any of the actions permitted under this SECTION 5.2(d)
either with or without giving notice to any person. Any amounts expended by
Mortgagee under this SECTION 5.2(d) shall be secured by this Mortgage.
(e) UNIFORM COMMERCIAL CODE REMEDIES. Mortgagee may exercise any or
all of the remedies granted to a secured party under Code.
(f) FORECLOSURE; LAWSUITS. Mortgagee shall have the right, in one or
several concurrent or consecutive proceedings, to foreclose the lien hereof
upon the Property or any part thereof, for the Secured Obligations, or any
part thereof, by any proceedings appropriate under applicable law.
Mortgagee or its nominee may bid and become the purchaser of all or any
part of the Property at any foreclosure or other sale hereunder, and the
amount of Mortgagee's successful bid shall be credited on the Secured
Obligations. Without limiting the foregoing, Mortgagee may proceed by a
suit or suits in law or equity, whether for specific performance of any
covenant or agreement herein contained
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or contained in any of the other Loan Documents (as defined in the Loan
Agreement), or in aid of the execution of any power herein granted, or for
any foreclosure under the judgment or decree of any court of competent
jurisdiction, or for damages, or to collect the indebtedness secured
hereby, or for the enforcement of any other appropriate legal, equitable,
statutory or contractual remedy. Mortgagee may sell the Property at public
auction in one or more parcels, at Mortgagee's option, and convey the same
to the purchaser in fee simple, Mortgagor to remain liable for any
deficiency for which Mortgagor shall be personally liable.
(g) OTHER REMEDIES. Mortgagee may exercise all rights and remedies
contained in any other instrument, document, agreement or other writing
heretofore, concurrently or in the future executed by Mortgagor or any
other person or entity in favor of Mortgagee in connection with the Secured
Obligations or any part thereof, without prejudice to the right of
Mortgagee thereafter to enforce any appropriate remedy against Mortgagor.
Mortgagee shall have the right to pursue all remedies afforded to a
mortgagee under the applicable laws of the state in which the Property is
located, and shall have the benefit of all of the provisions of any such
laws, including all amendments thereto which may become effective from time
to time after the date hereof. In the event any provision of any such laws
may be repealed, Mortgagee shall have the benefit of such provision as most
recently existing prior to such repeal, as though the same were
incorporated herein by express reference.
(h) POWER OF SALE FOR PERSONAL PROPERTY. Under this power of sale,
Mortgagee shall have the discretionary right to cause some or all of the
Property, which constitutes personal property, to be sold or otherwise
disposed of in any combination and in any manner permitted by applicable
law.
(i) For purposes of this power of sale, Mortgagee may elect to
treat as personal property any Property which is intangible or which
can be severed from the Land or Improvements without causing
structural damage. If it chooses to do so, Mortgagee may dispose of
any personal property in any manner permitted by the Code, including
any public or private sale, or in any manner permitted by any other
applicable law.
(ii) In connection with any sale or other disposition of such
Property, Mortgagor agrees that the following procedures constitute a
commercially reasonable sale: Mortgagee shall mail written notice of
the sale to Mortgagor not later than ten (10) days prior to such sale.
Upon receipt of any written request, Mortgagor will make the Property
available to any bona fide prospective purchaser for inspection during
reasonable business hours. Notwithstanding, Mortgagee shall be under
no obligation to consummate a sale if, in its judgment, none of the
offers received by it equals the fair value of the Property offered
for sale. The foregoing procedures do not constitute the only
procedures that may be commercially reasonable.
(i) SINGLE OR MULTIPLE FORECLOSURE SALES. If the Property consists of
more than one lot, parcel or item of property, Mortgagee may:
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(i) designate the order in which the lots, parcels and/or items
shall be sold or disposed of or offered for sale or disposition; and
(ii) elect to dispose of the lots, parcels and/or items through a
single consolidated sale or disposition to be held or made under or in
connection with judicial proceedings, or by virtue of a judgment and
decree of foreclosure and sale, or pursuant to the power of sale
contained herein; or through two or more such sales or dispositions;
or in any other manner Mortgagee may deem to be in its best interests
(any foreclosure sale or disposition as permitted by the terms hereof
is sometimes referred to herein as a "Foreclosure Sale;" and any two
or more such sales, "Foreclosure Sales").
If it chooses to have more than one Foreclosure Sale, Mortgagee at its option
may cause the Foreclosure Sales to be held simultaneously or successively, on
the same day, or on such different days and at such different times and in such
order as it may deem to be in its best interests. No Foreclosure Sale shall
terminate or affect the liens of this Mortgage on any part of the Property which
has not been sold, until all of the Secured Obligations have been paid in full.
5.3. APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of any
Foreclosure Sale shall be applied in the following manner:
(a) First, to pay the portion of the Secured Obligations attributable
to the expenses of sale, costs of any action and any other sums for which
Mortgagor is obligated to reimburse Mortgagee hereunder or under the other
Loan Documents;
(b) Second, to pay the portion of the Secured Obligations attributable
to any sums expended or advanced by Mortgagee under the terms of this
Mortgage which then remain unpaid;
(c) Third, to pay all other Secured Obligations in any order and
proportions as Mortgagee in its sole discretion may choose; and
(d) Fourth, to remit the remainder, if any, to the person or persons
entitled to it.
6. RELEASE OF LIEN. If Mortgagor shall fully pay and perform all of the
Secured Obligations and comply with all of the other terms and provisions hereof
and the other Loan Documents to be performed and complied with by Mortgagor,
then Mortgagee shall release this Mortgage and the lien thereof by proper
instrument upon payment, performance and discharge of all of the Secured
Obligations and payment by Mortgagor of any filing fee in connection with such
release.
7. MISCELLANEOUS PROVISIONS.
7.1. ADDITIONAL PROVISIONS. The Loan Documents fully state all of the terms
and conditions of the parties' agreement regarding the matters mentioned in or
incidental to this Mortgage. The Loan Documents also grant further rights to
Mortgagee and contain further agreements and affirmative and negative covenants
by Mortgagor which apply to this Mortgage and the Property.
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7.2. GIVING OF NOTICE. Any notice, demand, request or other communication
which any party hereto may be required or may desire to give hereunder shall be
given as provided in SECTION 9.3 of the Loan Agreement.
7.3. REMEDIES NOT EXCLUSIVE. No action for the enforcement of the lien or
any provision hereof shall be subject to any defense which would not be good and
available to the party interposing same in an action at law upon the Note.
Mortgagee shall be entitled to enforce payment and performance of any of the
Secured Obligations and to exercise all rights and powers under this Mortgage or
other agreement or any laws now or hereafter in force, notwithstanding some or
all of the Secured Obligations may now or hereafter be otherwise secured,
whether by mortgage, deed of trust, pledge, lien, assignment or otherwise.
Neither the acceptance of this Mortgage nor its enforcement, whether by court
action or other powers herein contained, shall prejudice or in any manner affect
Mortgagee's right to realize upon or enforce any other security now or hereafter
held by Mortgagee, it being agreed that Mortgagee shall be entitled to enforce
this Mortgage and any other remedy herein or by law provided or permitted, but
each shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. No
waiver of any default of the Mortgagor hereunder shall be implied from any
omission by Mortgagee to take any action on account of such default if such
default persists or is repeated, and no express waiver shall affect any default
other than the default specified in the express waiver and that only for the
time and to the extent therein stated. No acceptance of any payment of any one
or more delinquent installments which does not include interest at the Default
Rate from the date of delinquency, together with any required late charge, shall
constitute a waiver of the right of Mortgagee at any time thereafter to demand
and collect payment of interest at such Default Rate or of late charges, if any.
7.4. WAIVER OF STATUTORY RIGHTS. To the extent permitted by law, Mortgagor
hereby agrees that it shall not and will not apply for or avail itself of any
appraisement, valuation, stay, extension or exemption laws, or any so-called
"Moratorium Laws," now existing or hereafter enacted, in order to prevent or
hinder the enforcement or foreclosure of this Mortgage, but hereby waives the
benefit of such laws. Mortgagor for itself and all who may claim through or
under it waives any and all right to have the property and estates comprising
the Property marshaled upon any foreclosure of the lien hereof and agrees that
any court having jurisdiction to foreclose such lien may order the Property sold
as an entirety. Mortgagor hereby waives any and all rights of redemption from
sale under the power of sale contained herein or any order or decree of
foreclosure of this Mortgage on its behalf and on behalf of each and every
person, except decree or judgment creditors of Mortgagor, acquiring any interest
in or title to the Property subsequent to the date of this Mortgage.
7.5. ESTOPPEL AFFIDAVITS. Mortgagor, within fifteen (15) days after written
request from Mortgagee, shall furnish a written statement, duly acknowledged,
setting forth the unpaid principal of, and interest on, the Secured Obligations
and stating whether or not any offset or defense exists against such Secured
Obligations, and covering such other matters as Mortgagee may reasonably
require.
7.6. MERGER. No merger shall occur as a result of Mortgagee's acquiring any
other estate in or any other lien on the Property unless Mortgagee consents to a
merger in writing.
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7.7. BINDING ON SUCCESSORS AND ASSIGNS. This Mortgage and all provisions
hereof shall be binding upon Mortgagor and all persons claiming under or through
Mortgagor, and shall inure to the benefit of Mortgagee and its successors and
assigns.
7.8. CAPTIONS. The captions and headings of various paragraphs of this
Mortgage are for convenience only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof.
7.9. SEVERABILITY. If all or any portion of any provision of this Mortgage
shall be held to be invalid, illegal or unenforceable in any respect, then such
invalidity, illegality or unenforceability shall not affect any other provision
hereof or thereof, and such provision shall be limited and construed as if such
invalid, illegal or unenforceable provision or portion thereof was not contained
herein.
7.10. EFFECT OF EXTENSIONS OF TIME AND AMENDMENTS. If the payment of the
Secured Obligations or any part thereof be extended or varied or if any part of
the security be released, all persons now or at any time hereafter liable
therefor, or interested in the Property, shall be held to assent to such
extension, variation or release, and their liability and the lien and all
provisions hereof shall continue in full force, the right of recourse, if any,
against all such persons being expressly reserved by Mortgagee, notwithstanding
such extension, variation or release. Nothing in this SECTION 7.10 shall be
construed as waiving any provision contained herein or in the Loan Documents
which provides, among other things, that it shall constitute an Event of Default
if the Property be sold, conveyed, or encumbered.
7.11. MORTGAGEE'S LIEN FOR SERVICE CHARGE AND EXPENSES. At all times,
regardless of whether any proceeds of the loan secured hereby have been
disbursed, this Mortgage secures (in addition to the amounts secured hereby) the
payment of any and all commissions, service charges, liquidated damages,
expenses and advances due to or incurred by Mortgagee in connection with such
loan; provided, however, that in no event shall the total amount secured hereby
exceed two hundred percent (200%) of the face amount of the Note.
7.12. APPLICABLE LAW. This Mortgage shall be governed by and construed
under the internal laws of the State in which the Property is located.
7.13. LIMITATION OF LIABILITY. The personal liability of Mortgagor and its
general partner hereunder is limited to the extent set forth in SECTION 9.18 of
the Loan Agreement.
7.14. DUE ON SALE CLAUSE. As more fully set forth in SECTION 6.4 of the
Loan Agreement, the transfer or encumbrance of the Property, or any interest
therein, or the transfer of an interest in Mortgagor, except for the permitted
transfers set forth in SECTION 6.5 of the Loan Agreement, without prior written
consent of Mortgagee, shall constitute an Event of Default.
7.15. TIME IS OF THE ESSENCE. Time is of the essence with respect to each
and every covenant, agreement and obligation of Mortgagor under this Mortgage,
the Note and the other Loan Documents.
7.16. RECORDATION. 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 evidencing the lien hereof upon the
Property, or any portion thereof,
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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 hereof upon, and the
interest of Mortgagee in, the Property.
Mortgagor will pay all filing, registration or recording fees and taxes,
and all expenses incident to the preparation, execution and acknowledgment of
this Mortgage, any mortgage supplemental hereto, any security instrument with
respect to the Property and any instrument of further assurance, and all
federal, state, county and municipal stamp taxes, duties, impositions,
assessments and charges arising out of or in connection with the execution and
delivery of the Note, this Mortgage, any mortgage supplemental hereto, any
security instrument, any other Loan Documents or any instrument of further
assurance.
7.17. MODIFICATIONS. This Mortgage may not be changed or terminated except
in writing signed by both parties. The provisions of this Mortgage shall extend
and be applicable to all renewals, amendments, extensions, consolidations, and
modifications of the other Loan Documents, and any and all references herein to
the Loan Documents shall be deemed to include any such renewals, amendments,
extensions, consolidations or modifications thereof.
7.18. INDEPENDENCE OF SECURITY. Except as may exist pursuant to easements
and agreements existing as of the date hereof which have been disclosed to
Mortgagee, Mortgagor shall not by act or omission permit any building or other
improvement on any premises not subject to the lien of this Mortgage to rely on
the Property or any part thereof or any interest therein to fulfill any
municipal or governmental requirement, and Mortgagor hereby assigns to Mortgagee
any and all rights to give consent for all or any portion of the Property to
rely on any premises not subject to the lien of this Mortgage or any interest
therein to fulfill any municipal or governmental requirement. Mortgagor shall
not by act or omission impair the integrity of the Property as a single zoning
lot, and as one or more complete tax parcels, separate and apart from all other
premises. Any act or omission by Mortgagor which would result in a violation of
any of the provisions of this SECTION 7.18 shall be void.
8. STATE SPECIFIC PROVISIONS. The provisions of the Addendum to Mortgage
attached hereto as ANNEX I (the "ADDENDUM") are hereby incorporated herein by
this reference. Defined terms in the Addendum for which no definition is
provided in the Addendum will have the meanings given to such terms in the
Mortgage. In the event of any conflict or inconsistency between the provisions
of the Mortgage and the provisions of the Addendum, the provisions of the
Addendum will prevail.
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IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date
first written above.
MORTGAGOR
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, a
Delaware corporation, its sole general
partner
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Its: Executive Vice President/COO/CFO
--------------------------------
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00
XXXXX XX XXXXXXXX )
COUNTY OF XXXX )
This instrument was acknowledged before me on June 28, 1999 by Xxxxxxx
X. Xxxxxxx the Executive Vice President of Glimcher Properties Corporation, the
sole general partner of Glimcher Properties Limited Partnership.
/s/ XXXXX X. POLKA
----------------------------------
Notary Public
Xxxx County, Illinois
My Commission Expires: 0-0-00
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XXXXXXXX XXXXXXX/XXXXXXXX, XXXXXXXXX
------------------------------------
EXHIBIT A
Legal Description
PARCEL I
Lot 1 of Certified Survey Map recorded November 19, 1992 in Volume 5 of
Certified Survey Maps, Pages 101, 101-A, 101-B, 101-C, 101-D, 101-E, and 101-F,
as Document Number 1081681. Lots 2 and 3 of Certified Survey Map recorded
November 25, 1991 in Volume 5 of Certified Survey Maps, Pages 37 and 37-A, as
Document Number 1059955.
(Said Certified Survey Maps are located over Xxxx 0, 0, xxx 0 xx Xxxxxxxxx
Xxxxxx Xxx recorded in Volume 5 of Certified Survey Maps, Page 37, on Lot 3 of
Certified Survey Map recorded in Volume 5 of Certified Survey Maps, Page 57, on
Lot 5 of Certified Survey Map recorded in Volume 5 of Certified Survey Maps,
Page 75, on part of vacated Crossing Xxxxxxx Drive, on Lots 3 and 4 of Certified
Survey Map recorded in Volume 4 of Certified Survey Maps, Page 107, and on the
SE 1/4 of Section 9, and on the NE 1/4 of Section 16, both in Township 16 North
of Range 7 West, City of Onalaska, La Crosse County, Wisconsin.)
The above lands are also described as follows:
A tract of land being all of Lot 1 of Certified Survey Map as recorded in Volume
5 of Certified Survey Maps, Pages 101-101F as Document No. 1081681, recorded on
November 19, 1992 and all of Lots 2 and 3 of Certified Survey Map as recorded in
Volume 5 of Certified Survey Maps, Pages 37 and 37A, Document No. 1059955, dated
November 25, 1991; and all being part of the Southeast Quarter of Section 9, and
part of the Northeast Quarter of Section 16, Township 16 North, Range 7 West of
the 4th P.M. in the City of Onalaska, LaCrosse County, Wisconsin, to wit:
Beginning at a found chiseled "x" at the southwest corner of said Lot 1, said
point also being on the north line of Xxxxxx'x Addition - Block 2, said point
also being in the east right-of-way line of 00xx Xxxxxx Xxxxx; thence along said
east right-of-way line and the west line of said Xxx 0, Xxxxx 00? 25' 22" West,
56.33 feet, to a found chiseled "x", thence along a curve deflecting to the left
having a radius of 885.06
Continued...
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EXHIBIT A
LEGAL DESCRIPTION
(CONTINUED)
PARCEL I, CONTINUED...
feet , an arc length of 431.01 feet, a chord bearing of North 14? 22' 23" West,
a chord distance of 426.77 feet, to a cut cross, thence North 28? 19' 32" West
16.10 feet, to a cut cross at the intersection of said east right-of-way line
and the south right-of-way line of Crossing Meadow Drive; thence along said
south right-of-way line North 61? 28' 04" East 360.08 feet to a cut cross,
thence along a curve deflecting to the right having a radius of 158.00 feet, an
arc length of 141.53 feet, a chord bearing of North 87? 07' 45" East, a chord
distance of 136.84 feet, to a set P/K Nail, thence along a curve deflecting to
the left having a radius of 202.00 feet, an arc length of 180.94 feet, a chord
bearing of North 87? 07' 45" East, a chord distance of 174.95 feet, to a cut
cross, thence North 61? 28' 04" East 503.71 feet to a set iron rod, thence along
a curve deflecting to the right having a radius of 138.00 feet, an arc length of
73.10 feet, a chord bearing of North 76? 38' 32" East, a chord distance of 72.24
feet to a cut cross, thence South 01? 49' 00" West 11.00 feet to set P/K Nail,
thence South 88? 11' 00" East 129.74 feet to a cut cross, thence along a curve
deflecting to the right having a radius of 268.78 feet, an arc length of 5.35
feet, a chord bearing of South 87? 36' 50" East, a chord distance of 5.35 feet
to a cut cross at the northeast corner of said Lot 1; thence leaving said south
right-of-way line along the east line of said Xxx 0 Xxxxx 00? 28' 00" East
283.73 feet to a found iron pipe in the north line of said Lot 3; thence leaving
said east line along said north line North 89? 37' 10" East 307.00 feet to a
found drill hole at the northeast corner of said Lot 3, also being in the west
right-of-way line of said Crossing Meadow Drive; thence along said west
right-of-way line, also being the east line of said Lot 3 along a curve
deflecting to the right having a radius of 224.00 feet, an arc length of 32.98
feet, a chord bearing of South 03?13' 48 East, a chord distance of 32.95 feet to
a cut cross, thence South 00? 58' 00" West 414.84 feet to a cut cross, thence
South 01? 34' 00" East 170.50 feet to a found chiseled "x" at the southeast
corner of said Lot 3, also being in the north line of said Xxxxxx'x Addition
Block 1; thence leaving said right-of-way line along said north line, also being
the south line of said Xxxx 0, 0, xxx 0 Xxxxx 00? 28' 00" West 1,470.14 feet, to
the point of beginning.
PARCEL II
Together with a storm sewer easement which constitutes rights in real property
created, defined and limited by that certain Warranty Deed from Crossing
Xxxxxxx, Inc., to Cheetah, Inc., recorded in Volume 949 of Records, Page 432, as
Document Number 1076153, which was corrected by re-recording in Volume 952 of
Records, Page 500, as Document Number 1077282.
PARCEL III
Together with a perpetual drainage easement which constitutes rights in real
property created, defined and limited by that certain Grant of Easement and
Agreement by and between Xxxxxxx X. Xxxx and Xxxxxx X. Xxxx to PaineWebber
Retail Property Investments, Ltd., recorded in Volume 951 of Records, Page 769,
as Document Number 1077001.
Continued...
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EXHIBIT A
LEGAL DESCRIPTION
(CONTINUED)
PARCEL IV
Together with a sign easement which constitutes rights in real property created,
defined and limited by that certain Grant of Easement from TCI
Designers/Builders/Developers, Inc., to PaineWebber Retail Property Investments,
Ltd., recorded in Volume 951 of Records, Page 774, as Document Number 1077002.
PARCEL V
Together with a sign easement which constitutes rights in real property created,
defined and limited by that certain Assignment of Easement, from TCI
Designers/Builders/Developers, Inc., to PaineWebber Retail Property Investments,
Ltd., recorded in Volume 951 of Records, Page 779, as Document Number 1077003,
assigning easement reserved in Volume 872 of Records, Page 649, Document Number
1039358.
PARCEL VI
Together with those rights and easements which constitutes rights in real
property created, defined and limited by that certain Declaration of Restrictive
Covenants Running with the Land by Crossing Xxxxxxx Inc., a Wisconsin
Corporation, dated May 1, 1992, recorded May 6, 1992, in Volume 933 of Records,
Page 405, Document Number 1068731, affected by Consent of Declarant from
Crossing Xxxxxxx, Inc., to The Public, dated May 1, 1992, recorded May 6, 1992,
in Volume 933 of Records, Page 409, Document Number 1068732, amended by
Assignment of Rights Relating to Restrictive Covenants Running with the Land,
from Crossing Xxxxxxx Inc., a Wisconsin Corporation to PaineWebber Retail
Property Investments, Ltd., a Texas limited partnership, dated August 31, 1992,
recorded September 11, 1992, in Volume 951 of Records, Page 791, Document Number
1077005, all in the Register of Deeds, La Crosse County, Wisconsin. (LT Ex. 21)
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ANNEX I
ADDENDUM TO MORTGAGE
This Addendum to Mortgage is attached to and made a part of that
certain Mortgage, Security Agreement, Fixture Filing and Financing Statement
dated as of the 28TH day of June, 1999 executed by Glimcher Properties Limited
Partnership, as Mortgagor, in favor of Xxxxxxx National Life Insurance Company,
as Mortgagee.
8.1. FORECLOSURE WITHOUT DEFICIENCY JUDGMENT. If the Property is other than
a one-to-four family residence that is owner-occupied at the commencement of a
foreclosure, a farm, a church or a tax exempt charitable organization, Mortgagor
agrees to the provisions of Section 846.103, Wis. Stats., and as the same may be
amended or renumbered from time to time, permitting Mortgagee, upon waiving the
right to judgment for deficiency, to hold the foreclosure sale of real estate
three months after a foreclosure judgment is entered.
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