MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND (Illinois) FIXTURE FILING MADE BY GLIMCHER NORTHTOWN VENTURE, LLC and GB NORTHTOWN, LLC, as Mortgagor to KEYBANK NATIONAL ASSOCIATION, not individually but as Administrative Agent for itself and...
Exhibit
10.108
MORTGAGE,
ASSIGNMENT
OF RENTS, SECURITY AGREEMENT AND
(Illinois)
FIXTURE
FILING
MADE
BY
GLIMCHER
NORTHTOWN VENTURE, LLC and GB NORTHTOWN,
LLC,
as
Mortgagor
to
KEYBANK
NATIONAL ASSOCIATION,
not
individually but as Administrative Agent
for
itself and certain other Lenders,
as
Mortgagee
_______________________________
Dated as
of: October 22, 2008
PREPARED BY AND UPON RECORDATION
RETURN TO:
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx, LLP
7800
Sears Tower
000 Xxxxx
Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxx, Esq.
MORTGAGE,
ASSIGNMENT
OF RENTS, SECURITY AGREEMENT AND
(Illinois)
FIXTURE
FILING
Project
Common Known As
“Northtown
Mall”
THIS
MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this
“Mortgage”) is made as of October 22, 2008, by GLIMCHER NORTHTOWN VENTURE, LLC,
a Delaware limited liability company (“Glimcher Mortgagor”) and XX XXXXXXXXX,
LLC, a Delaware limited liability company (“GB Mortgagor” and collectively with
Glimcher Mortgagor, the “Mortgagor” or sometimes referred to as “Borrower”
herein) whose address is 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, and
KEYBANK NATIONAL ASSOCIATION, as administrative agent (together with its
successors and assigns in such capacity, the “Mortgagee”), for
itself and one or more Lenders (as defined in that certain Term Loan Agreement
bearing the date October __, 2008 hereinafter the “Term Loan Agreement”)
by and among Mortgagor, GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership, such Lenders and KEYBANK NATIONAL ASSOCIATION, as
administrative agent, whose address is 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx
00000.
1. Grant and
Secured Obligations.
1.1 Grant. Borrower
has executed and delivered to the Lenders certain promissory notes (such
promissory notes, together with any amendments or allonges thereto, or
restatements, replacements or renewals thereof, are collectively referred to
herein as the “Notes”), in and by which the Borrower promises to pay the
principal of all Loans under such Term Loan Agreement and interest at the rate
and in installments as provided in the Notes, with a final payment of the
outstanding principal balance and accrued and unpaid interest being due on or
before October __, 2011. The initial aggregate principal amount
of the Loans evidenced by the Notes shall be $40,000,000. The
indebtedness secured hereby shall be governed by the terms and conditions of the
Term Loan Agreement. To the extent there may be any inconsistency
between the terms and provisions of this Mortgage and the terms and provisions
of the Term Loan Agreement, the terms and provisions of the Term Loan Agreement
shall govern and control. All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the Term
Loan Agreement.
In
consideration of the debt evidenced by the Notes and to secure the timely
payment of both principal and interest in accordance with the terms and
provisions of the Notes and in accordance with the terms, provisions and
limitations of this Mortgage, to secure the payment of any and all amounts
advanced by the Administrative Agent or the Lenders with respect to the Premises
for the payment of taxes, assessments, insurance premiums or any other costs
incurred in the protection of the Premises, and to secure the performance of the
covenants and agreements contained herein and in the Notes, the Term Loan
Agreement, and any other documents evidencing and securing the loan secured
hereby or delivered to Mortgagee pursuant to the Term Loan Agreement
(collectively, the “Loan Documents”) to be performed by Mortgagor, and to secure
all Rate Management Transactions entered into with the Administrative Agent or
any of the Lenders in connection with the Term Loan Agreement, and for the
purpose of securing payment and performance of the Secured Obligations defined
and described in Section 1.2
below, Mortgagor does by these presents grant, bargain, sell, convey, assign and
grant a security interest in, mortgage and warrant unto Mortgagee and its
successors and assigns forever, 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 Anoka, State of Minnesota, as described
in Exhibit A,
together with all existing and future easements and rights affording access to
it (the “Premises”); together with
(b) All
buildings, structures and improvements now located or later to be constructed on
the Premises (the “Improvements”); together with
(c) All
existing and future appurtenances, privileges, easements, franchises and
tenements of the Premises, including all minerals, oil, gas, other hydrocarbons
and associated substances, sulphur, nitrogen, carbon dioxide, helium and other
commercially valuable substances which may be in, under or produced from any
part of the Premises, all development rights and credits, air rights, water,
water rights (whether riparian, appropriative or otherwise, and whether or not
appurtenant) and water stock, and any Premises lying in the streets, roads or
avenues, open or proposed, in front of or adjoining the Premises and
Improvements; together with
(d) All
existing and future leases, subleases, subtenancies, licenses, occupancy
agreements and concessions (“leases”) relating to the use and enjoyment of all
or any part of the Premises and Improvements, and any and all guaranties and
other agreements relating to or made in connection with any of such leases;
together with
(e) All
real property and improvements on it, and all appurtenances and other property
and interests of any kind or character, whether described in Exhibit A or
not, which may be reasonably necessary or desirable to promote the present and
any reasonable future beneficial use and enjoyment of the Premises and
Improvements; together with
(f) All
goods, materials, supplies, chattels, furniture, fixtures, equipment and
machinery now or later to be attached to, placed in or on, or used in connection
with the use, enjoyment, occupancy or operation of all or any part of the
Premises and Improvements, whether stored on the Premises or elsewhere,
including all pumping plants, engines, pipes, ditches and flumes, and also all
gas, electric, cooking, heating, cooling, air conditioning, lighting,
refrigeration and plumbing fixtures and equipment, all of which shall be
considered to the fullest extent of the law to be real property for purposes of
this Mortgage and any manufacturer’s warranties with respect thereto; together
with
(g) All
building materials, equipment, work in process or other personal property of any
kind, whether stored on the Premises or elsewhere, which have been or later will
be acquired for the purpose of being delivered to, incorporated into or
installed in or about the Premises or Improvements; together with
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(h) All
of Mortgagor’s interest in and to all operating accounts pertaining to the
Property and the Loan funds, whether disbursed or not; together
with
(i) All
rights to the payment of money, accounts, accounts receivable, reserves,
deferred payments, refunds, cost savings, payments and deposits, whether now or
later to be received from third parties (including all xxxxxxx money sales
deposits) or deposited by Mortgagor with third parties (including all utility
deposits), contract rights, development and use rights, governmental permits and
licenses, applications, architectural and engineering plans, specifications and
drawings, as-built drawings, chattel paper, instruments, documents, notes,
drafts and letters of credit (other than letters of credit in favor of
Mortgagee), which arise from or relate to construction on the Premises or to any
business now or later to be conducted on it, or to the Premises and Improvements
generally and any builder’s or manufacturer’s warranties with respect thereto;
together with
(j) All
insurance policies pertaining to the Premises and all proceeds, including all
claims to and demands for them, of the voluntary or involuntary conversion of
any of the Premises, Improvements or the other property described above into
cash or liquidated claims, including proceeds of all present and future fire,
hazard or casualty insurance policies and all condemnation awards or payments
now or later to be made by any public body or decree by any court of competent
jurisdiction for any taking or in connection with any condemnation or eminent
domain proceeding, and all causes of action and their proceeds for any damage or
injury to the Premises, Improvements or the other property described above or
any part of them, or breach of warranty in connection with the construction of
the Improvements, including causes of action arising in tort, contract, fraud or
concealment of a material fact; together with
(k) Intentionally
deleted;
(l) All
of Mortgagor’s rights in and to all Rate Management Transactions entered into
with the Administrative Agent or any of the Lenders in connection with the Term
Loan Agreement;
(m) All
books and records pertaining to any and all of the property described above,
including computer-readable memory and any computer hardware or software
necessary to access and process such memory (“Books and Records”); together
with
(n) All
proceeds of, additions and accretions to, substitutions and replacements for,
and changes in any of the property described above.
Capitalized
terms used above and elsewhere in this Mortgage without definition have the
meanings given them in the Term Loan Agreement.
-3-
1.2 Secured
Obligations.
(a) Mortgagor
makes the grant, conveyance, and mortgage set forth in Section 1.1
above, and grants the security interest set forth in Section 3 below for
the purpose of securing the following obligations (the “Secured Obligations”) in
any order of priority that Mortgagee may choose:
(i) Payment
of all obligations at any time owing under the Notes under the terms of the Term
Loan Agreement; and
(ii) Payment
and performance of all obligations of Mortgagor under this Mortgage;
and
(iii) Payment
and performance of all obligations of Mortgagor under the Term Loan Agreement;
and
(iv) Payment
and performance of any obligations of Mortgagor under any Loan Documents which
are executed by Mortgagor; and
(v) Payment
and performance of all obligations of Mortgagor arising from any Rate Management
Transactions entered into with the Administrative Agent or any of the Lenders in
connection with the Term Loan Agreement. Rate Management Transactions
shall mean an interest rate hedging program through the purchase by Mortgagor
from the Administrative Agent or any of the Lenders in connection with an
interest rate swap, cap or such other interest rate protection product with
respect to the Term Loan Agreement; and
(vi) Payment
and performance of all future advances and other obligations that Mortgagor or
any successor in ownership of all or part of the Property may agree to pay
and/or perform (whether as principal, surety or guarantor) for the benefit of
Mortgagee, when a writing evidences the parties’ agreement that the advance or
obligation be secured by this Mortgage; and
(vii) Payment
and performance of all modifications, amendments, extensions, and renewals,
however evidenced, of any of the Secured Obligations.
(b) All
persons who may have or acquire an interest in all or any part of the Property
will be considered to have notice of, and will be bound by, the terms of the
Secured Obligations and each other agreement or instrument made or entered into
in connection with each of the Secured Obligations. Such terms
include any provisions in the Notes or the Term Loan Agreement which permit
borrowing, repayment and reborrowing, or which provide that the interest rate on
one or more of the Secured Obligations may vary from time to time.
2. Assignment
of Rents.
2.1 Assignment. Mortgagor
hereby irrevocably, absolutely, presently and unconditionally assigns to
Mortgagee all rents, royalties, issues, profits, revenue, income, accounts,
proceeds and other benefits of the Property, whether now due, past due or to
become due, including all prepaid rents and security deposits (some or all
collectively, as the context may require, “Rents”). This is an
absolute assignment, not an assignment for security only.
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2.2 Grant of
License. Mortgagee hereby confers upon Mortgagor a license
(“License”) to collect and retain the Rents as they become due and payable, so
long as no Event of Default, as defined in Section 6.2 below,
shall exist and be continuing. If an Event of Default has occurred
and is continuing, Mortgagee shall have the right, which it may choose to
exercise in its sole discretion, to terminate this License without notice to or
demand upon Mortgagor, and without regard to the adequacy of Mortgagee’s
security under this Mortgage.
2.3 Collection and Application
of Rents. Subject to the License granted to Mortgagor under
Section 2.2
above, Mortgagee has the right, power and authority to collect any and all
Rents. Mortgagor hereby appoints Mortgagee its attorney-in-fact to
perform any and all of the following acts, if and at the times when Mortgagee in
its sole discretion may so choose:
(a) Demand,
receive and enforce payment of any and all Rents; or
(b) Give
receipts, releases and satisfactions for any and all Rents; or
(c) Xxx
either in the name of Mortgagor or in the name of Mortgagee for any and all
Rents.
Mortgagee
and Mortgagor agree that the mere recordation of the assignment granted herein
entitles Mortgagee immediately to collect and receive rents upon the occurrence
of an Event of Default, as defined in Section 6.2, without
first taking any acts of enforcement under applicable law, such as, but not
limited to, providing notice to Mortgagor, filing foreclosure proceedings, or
seeking and/or obtaining the appointment of a receiver. Further,
Mortgagee’s right to the Rents does not depend on whether or not Mortgagee takes
possession of the Property as permitted under Subsection
6.3(c). In Mortgagee’s sole discretion, Mortgagee may choose
to collect Rents either with or without taking possession of the
Property. Mortgagee shall apply all Rents collected by it in the
manner provided under Section
6.6. If an Event of Default occurs while Mortgagee is in
possession of all or part of the Property and is collecting and applying Rents
as permitted under this Mortgage, Mortgagee and any receiver
shall nevertheless be entitled to exercise and invoke every right and
remedy afforded any of them under this Mortgage and at law or in
equity.
2.4 Mortgagee Not
Responsible. Under no circumstances shall Mortgagee have any
duty to produce Rents from the Property. Regardless of whether or not
Mortgagee, in person or by agent, takes actual possession of the Premises and
Improvements, unless Mortgagee agrees in writing to the contrary, Mortgagee is
not and shall not be deemed to be:
(a) A
“mortgagee in possession” for any purpose; or
(b) Responsible
for performing any of the obligations of the lessor under any lease;
or
(c) Responsible
for any waste committed by lessees or any other parties, any dangerous or
defective condition of the Property, or any negligence in the management,
upkeep, repair or control of the Property, unless caused by the gross
negligence, willful misconduct or bad faith of Mortgagee; or
-5-
(d) Liable
in any manner for the Property or the use, occupancy, enjoyment or operation of
all or any part of it.
2.5 Leasing. Mortgagor
shall not accept any deposit or prepayment of rents under the leases for any
rental period exceeding one (1) month without Mortgagee’s prior written consent.
Mortgagor shall not lease the Property or any part of it except strictly in
accordance with the Term Loan Agreement.
3. Grant of
Security Interest.
3.1 Security
Agreement. The parties intend for this Mortgage to create a
lien on the Property, and an absolute assignment of the Rents, all in favor of
Mortgagee. The parties acknowledge that some of the Property and some
or all of the Rents may be determined under applicable law to be personal
property or fixtures. To the extent that any Property or Rents may be
or be determined to be personal property, Mortgagor as debtor hereby grants
Mortgagee as secured party a security interest in all such Property and Rents,
to secure payment and performance of the Secured Obligations. This
Mortgage constitutes a security agreement under the Uniform Commercial Code of
the State in which the Property is located, covering all such Property and
Rents.
3.2 Financing
Statements. Mortgagor hereby authorizes Mortgagee to file one
or more financing statements. In addition, Mortgagor shall execute
such other documents as Mortgagee may from time to time require to perfect or
continue the perfection of Mortgagee’s security interest in any Property or
Rents. As provided in Section 5.10 below,
Mortgagor shall pay all fees and costs that Mortgagee may incur in filing such
documents in public offices and in obtaining such record searches as Mortgagee
may reasonably require. In case Mortgagor fails to execute any
financing statements or other documents for the perfection or continuation of
any security interest, Mortgagor hereby appoints Mortgagee as its true and
lawful attorney-in-fact to execute any such documents on its
behalf. If any financing statement or other document is filed in the
records normally pertaining to personal property, that filing shall never be
construed as in any way derogating from or impairing this Mortgage or the rights
or obligations of the parties under it.
4. Fixture
Filing.
This
Mortgage constitutes a financing statement filed as a fixture filing under
Article 9 of the Uniform Commercial Code in the State in which the Property is
located, as amended or recodified from time to time, covering any Property which
now is or later may become fixtures attached to the Premises or
Improvements. For this purpose, the respective addresses of
Mortgagor, as debtor, and Mortgagee, as secured party, are as set forth in the
preambles of this Mortgage.
5. Rights
and Duties of the Parties.
5.1 Representations and
Warranties. Mortgagor represents and warrants
that:
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(a) Glimcher
Mortgagor lawfully possesses and holds fee simple title to that portion of the
Premises identified as the “Mall Parcel” on Exhibit A and the
Improvements located thereon. GB Mortgagor lawfully possesses and
holds fee simple title to that part of the Premises identified as the
“Additional Parcel” on Exhibit A and the
Improvements located thereon.;
(b) Each
of Glimcher Mortgagor and GB Mortgagor has or will have good title to its
respective portion of the Property other than the Premises and
Improvements;
(c) Mortgagor
has the full and unlimited power, right and authority to encumber the Property
and assign the Rents;
(d) This
Mortgage creates a first and prior lien on the Property;
(e) The
Property includes all property and rights which may be reasonably necessary or
desirable to promote the present and any reasonable future beneficial
use and enjoyment of the Premises and Improvements;
(f) Except
for certain items of leased office equipment used in the management office at
the Premises, Mortgagor owns any Property which is personal property free and
clear of any security agreements, reservations of title or conditional sales
contracts, and there is no financing statement affecting such personal property
on file in any public office; and
(g) Mortgagor’s
place of business, or its chief executive office if it has more than one place
of business, is located at the address specified below.
5.2 Taxes, and
Assessments. Mortgagor shall, prior to delinquency, pay or
cause to be paid each installment of all taxes and special assessments of every
kind, now or hereafter levied against the Property or any part thereof, without
notice or demand, and shall provide Mortgagee with evidence of the payment of
same. Mortgagor shall pay all taxes and assessments which may be
levied upon Mortgagee’s or the Lenders' interest herein or upon this Mortgage or
the debt secured hereby (excluding any income taxes or similar charges imposed
upon Mortgagee or the Lenders), without regard to any law that may be enacted
imposing payment of the whole or any part thereof upon the Mortgagee or any
Lender. Notwithstanding anything contained in this Section to the
contrary, Mortgagor shall have the right to pay or cause to be paid any such tax
or special assessment under protest or to otherwise contest any such tax or
special assessment but only if (i) such contest has the effect of preventing the
collection of such tax or special assessment so contested and also prevent the
sale or forfeiture of the Property or any part thereof or any interest therein,
(ii) Mortgagor promptly notifies Mortgagee in writing of its intent to contest
such tax or special assessment, and (iii) if so requested in writing by
Mortgagee, Mortgagor has deposited security in form and amount reasonably
satisfactory to Mortgagee, and increases the amount of such security so
deposited promptly after Mortgagee’s request therefor. Mortgagor
shall prosecute or cause the prosecution of all such contest actions in good
faith and with due diligence.
5.3 Performance of Secured
Obligations. Mortgagor shall promptly pay and perform each
Secured Obligation in accordance with its terms.
-7-
5.4 Liens, Charges and
Encumbrances. Mortgagor shall immediately discharge any lien
on the Property which Mortgagee has not consented to in writing.
5.5 Damages, Restoration, and
Insurance Proceeds. As long as no Event of Default has
occurred and is then continuing, all insurance proceeds for losses at the
Property of less than $500,000.00 shall be adjusted with and payable to the
Mortgagor. In case of loss, Mortgagee shall have the right (but not
the obligation) to participate in and reasonably approve the settlement of any
insurance claim in excess of $500,000.00 and all claims thereafter, and
Mortgagee is at all times authorized to collect and receive any insurance money
for those claims which Mortgagee is entitled to approve the settlement of
hereunder.
At the
election of Mortgagee, such insurance proceeds may be applied to reduce the
outstanding balance of the indebtedness under the Term Loan Agreement or to pay
for costs of repair and restoration of the Property; provided, however, that so
long as no Event of Default has occurred and is then continuing, Mortgagee shall
make such insurance proceeds available to pay for such costs of repair and
restoration. If Mortgagee is entitled to and does elect to apply
insurance proceeds in payment or reduction of the indebtedness secured hereby,
then Mortgagee shall reduce the then outstanding balance of the Advances by the
amount of the insurance proceeds received and so applied by
Mortgagee. In the event that Mortgagee does not elect to apply the
insurance proceeds to the indebtedness secured hereby as set forth above, such
insurance proceeds shall be used to reimburse Mortgagor for the cost of
rebuilding or restoring the Premises. The Premises shall be so
restored or rebuilt as to be substantially the same quality and character as the
Premises were prior to such damage or destruction in accordance with the
original plans and specifications or to such other condition as Mortgagee shall
reasonably approve in writing.
If
Mortgagee elects to make the proceeds available for repair and restoration, any
request by Mortgagor for a disbursement by Mortgagee of fire or casualty
insurance proceeds and funds deposited by Mortgagor with Mortgagee pursuant to
this Section 5.5
shall be treated by Mortgagee as if such request were for an Advance under the
Term Loan Agreement, and the disbursement thereof shall be conditioned upon the
Borrower’s compliance with and satisfaction of the same conditions precedent as
would be applicable under the Term Loan Agreement for such an
Advance. Additionally, such disbursement shall also be conditioned
upon Borrower's providing to Administrative Agent: updated title insurance,
satisfactory evidence, as reasonably determined by Administrative Agent, that
the Premises shall be so restored or rebuilt as to be of at least equal value
and quality and substantially the same character as the Premises were prior to
such damage or destruction in accordance with the original plans and
specifications or to such other condition as Administrative Agent shall
reasonably approve in writing, satisfactory evidence of the estimated cost of
completion thereof and with such architect’s certificates, waivers of lien,
contractors’ sworn statements and other evidence of cost and of payments as
Administrative Agent may reasonably require and approve. The
undisbursed balance of insurance proceeds shall at all times be sufficient to
pay for the cost of completion of the work free and clear of liens and if such
proceeds are insufficient, Mortgagor shall deposit the amount of such deficiency
with Mortgagee prior to the disbursement by Mortgagee of any insurance
proceeds.
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5.6 Condemnation
Proceeds. Mortgagor hereby assigns, transfers and sets over
unto Mortgagee its entire interest in the proceeds (the “Condemnation
Proceeds”) of any award or any claim for damages for any of the Property
taken or damaged under the power of eminent domain or by condemnation or any
transaction in lieu of condemnation (“Condemnation”),
unless, notwithstanding the forgoing, such taking, damage or condemnation does
not cause a material diminution in the value of the Premises in which case all
Condemnation Proceeds for damages to the Property shall be payable to the
Mortgagor. Mortgagee shall make available to Mortgagor the
Condemnation Proceeds for the restoration of the Premises if Mortgagor satisfies
all of the conditions set forth in this Section 5.6 hereof
for disbursement of insurance proceeds. In all other cases Mortgagee
shall have the right, at its option, to apply the Condemnation Proceeds upon or
in reduction of the indebtedness secured hereby, whether due or
not. If Mortgagee is entitled to and does elect to apply Condemnation
Proceeds upon or in reduction of the indebtedness secured hereby, then Mortgagee
shall reduce the then outstanding balance of the Advances under the Term Loan
Agreement by the amount of the Condemnation Proceeds received and so applied by
Mortgagee. If the Condemnation Proceeds are required to be used as
aforesaid to reimburse Mortgagor for the cost of rebuilding or restoring
buildings or improvements on the Property, or if Mortgagee elects that the
Condemnation Proceeds be so used, and the buildings and other improvements shall
be rebuilt or restored, the Condemnation Proceeds shall be paid out in the same
manner as is provided in this Section 5.6
hereof for the payment of insurance proceeds toward the cost of rebuilding or
restoration of such buildings and other improvements. Any surplus
which may remain out of the Condemnation Proceeds after payment of such cost of
rebuilding or restoration shall, at the option of Mortgagee, be applied on
account of the indebtedness secured hereby or be paid to any other party
entitled thereto.
5.7 Maintenance and Preservation
of Property.
(a) Mortgagor
shall insure the Property as required by Section 6.6 of the Term Loan Agreement
and keep the Property in good condition and repair.
(b) Except
as required by the terms of any lease approved by Administrative Agent,
Mortgagor shall not remove or demolish the Property or any material part of it
in any way, or materially alter, restore or add to the Property, or initiate or
allow any material change or variance in any zoning or other Premises use
classification which adversely affects the Property or any material part of it,
except with Mortgagee’s express prior written consent in each instance; the term
“materially” or “material” as used in this Section 5.7(b) shall
mean having a monetary effect in an amount greater than $4,000,000.
(c) Mortgagor
shall not commit or allow any act upon or use of the Property which would
violate: (i) any applicable Laws or order of any Governmental
Authority, whether now existing or later to be enacted and whether foreseen or
unforeseen; or (ii) any public or private covenant, condition, restriction
or equitable servitude affecting the Property. Mortgagor shall not
bring or keep any article on the Property or cause or allow any condition to
exist on it, if that could invalidate or would be prohibited by any insurance
coverage required to be maintained by Mortgagor on the Property or any part of
it under the Term Loan Agreement.
(d) Mortgagor
shall not commit or allow waste of the Property, including those acts or
omissions characterized under the Term Loan Agreement as waste which arises out
of Materials of Environmental Concern.
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(e) Mortgagor
shall perform all other acts which from the character or use of the Property may
be reasonably necessary to maintain and preserve its value.
5.8 Releases, Extensions,
Modifications and Additional Security. From time to time,
Mortgagee may perform any of the following acts without incurring any liability
or giving notice to any person:
(a) Release
any person liable for payment of any Secured Obligation;
(b) Extend
the time for payment, or otherwise alter the terms of payment, of any Secured
Obligation;
(c) Accept
additional real or personal property of any kind as security for any Secured
Obligation, whether evidenced by deeds of trust, mortgages, security agreements
or any other instruments of security;
(d) Alter,
substitute or release any property securing the Secured
Obligations;
(e) Consent
to the making of any plat or map of the Property or any part of it;
(f) Join
in granting any easement or creating any restriction affecting the Property;
or
(g) Join
in any subordination or other agreement affecting this Mortgage or the lien of
it; or
(h)
Release the Property or any part of it.
5.9 Release. If
Mortgagor shall fully pay all principal and interest on the Notes, and all other
indebtedness secured hereby and comply with all of the other terms and
provisions hereof to be performed and complied with by Mortgagor, Mortgagee,
upon written request of Mortgagor, shall release this Mortgage and the lien
thereof by proper instrument upon payment and discharge of the amounts required
under the Term Loan Agreement and payment of any filing fee in connection with
such release. Mortgagor shall pay any costs of preparation and
recordation of such release. In addition, Mortgagee, upon written request of
Mortgagor, shall from time to time execute and deliver partial releases of this
Mortgage with respect to certain unimproved portions of the Premises on the
terms described in Article XI of the Term Loan Agreement upon payment and
discharge of any amounts that may required under such Article of the Term Loan
Agreement with respect to the portion of the Premises being so released and
payment of any filing fee in connection with such partial release.
5.10 Compensation, Exculpation,
Indemnification.
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(a) Mortgagor
agrees to pay fees required by and pursuant to the Term Loan Agreement, for any
services that Mortgagee may render in connection with this Mortgage, including
Mortgagee’s providing a statement of the Secured Obligations or providing the
release pursuant to Section 5.9
above. Mortgagor shall also pay or reimburse all of Mortgagee’s costs
and expenses which may be incurred in rendering any such
services. Mortgagor further agrees to pay or reimburse Mortgagee for
all costs, expenses and other advances which may be incurred or made by
Mortgagee in any efforts to enforce any terms of this Mortgage, including any
rights or remedies afforded to Mortgagee under Section 6.4, whether
any lawsuit is filed or not, or in defending any action or proceeding arising
under or relating to this Mortgage, including attorneys’ fees and other legal
costs, costs of any Foreclosure Sale (as defined in Subsection 6.4(i)
below) and any cost of evidence of title. If Mortgagee chooses to
dispose of Property through more than one Foreclosure Sale, Mortgagor shall pay
all costs, expenses or other advances that may be incurred or made by Mortgagee
in each of such Foreclosure Sales. In any suit to foreclose the lien
hereof or enforce any other remedy of Mortgagee under this Mortgage or the Note,
there shall be allowed and included as additional indebtedness in the decree for
sale or other judgment or decree all expenditures and expenses which may be paid
or incurred by or on behalf of Mortgagee for reasonable attorneys’ costs and
fees (including the costs and fees of paralegals), survey charges, appraiser’s
fees, inspecting engineer’s and/or architect’s fees, fees for environmental
studies and assessments and all additional expenses incurred by Mortgagee with
respect to environmental matters, outlays for documentary and expert evidence,
stenographers’ charges, publication costs, and costs (which may be estimated as
to items to be expended after entry of the decree) of procuring all such
abstracts of title, title searches and examinations, title insurance policies,
and similar data and assurances with respect to title as Mortgagee may deem
reasonably necessary either to prosecute such suit or to evidence to bidders at
any sale which may be had pursuant to such decree the true
condition of the title to, the value of or the environmental
condition of the Property. All expenditures and expenses of the
nature in this Subsection mentioned, and such expenses and fees as may be
incurred in the protection of the Property and maintenance of the lien of this
Mortgage, including the fees of any attorney (including the costs and fees of
paralegals) employed by Mortgagee in any litigation or proceeding affecting this
Mortgage, the Note or the Property, including probate and bankruptcy
proceedings, or in preparation for the commencement or defense of any proceeding
or threatened suit or proceeding, shall be immediately due and payable by
Mortgagor, with interest thereon at the Default Rate and shall be secured by
this Mortgage.
(b) Mortgagee
shall not be directly or indirectly liable to Mortgagor or any other person as a
consequence of any of the following:
(i) Mortgagee’s
exercise of or failure to exercise any rights, remedies or powers granted to
Mortgagee in this Mortgage;
(ii) Mortgagee’s
failure or refusal to perform or discharge any obligation or liability of
Mortgagor under any agreement related to the Property or under this Mortgage;
or
(iii) Any
loss sustained by Mortgagor or any third party resulting from Mortgagee’s
failure to lease the Property, or from any other act or omission of Mortgagee in
managing the Property, after an Event of Default, unless the loss is caused by
the willful misconduct, gross negligence, or bad faith of
Mortgagee.
Mortgagor
hereby expressly waives and releases all liability of the types described above,
and agrees that no such liability shall be asserted against or imposed upon
Mortgagee.
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(c) Mortgagor
agrees to indemnify Mortgagee against and hold it harmless from all losses,
damages, liabilities, claims, causes of action, judgments, court costs,
attorneys’ fees and other legal expenses, cost of evidence of title, cost of
evidence of value, and other costs and expenses which it may suffer or incur,
unless caused by the gross negligence, willful misconduct or bad faith of the
Mortgagee:
(i) In
performing any act required or permitted by this Mortgage or any of the other
Loan Documents or by law;
(ii) Because
of any failure of Mortgagor to perform any of its obligations; or
(iii) Because
of any alleged obligation of or undertaking by Mortgagee to perform or discharge
any of the representations, warranties, conditions, covenants or other
obligations in any document relating to the Property other than the Loan
Documents.
This
agreement by Mortgagor to indemnify Mortgagee shall survive the release and
cancellation of any or all of the Secured Obligations and the full or partial
release of this Mortgage.
(d) Mortgagor
shall pay all obligations to pay money arising under this Section 5.10
immediately upon demand by Mortgagee. Each such obligation shall be
added to, and considered to be part of, the principal of the Note, and shall
bear interest from the date the obligation arises at the Default
Rate.
5.11 Defense and Notice of Claims
and Actions. At Mortgagor’s sole expense, Mortgagor shall
protect, preserve and defend the Property and title to and right of possession
of the Property, and the security of this Mortgage and the rights and powers of
Mortgagee created under it, against all adverse claims. Mortgagor
shall give Mortgagee prompt notice in writing if any claim is asserted which
does or could affect any such matters, or if any action or proceeding is
commenced which alleges or relates to any such claim.
5.12 Subrogation. Mortgagee
shall be subrogated to the liens of all encumbrances, whether released of record
or not, which are discharged in whole or in part by Mortgagee in accordance with
this Mortgage or with the proceeds of any loan secured by this
Mortgage.
5.13 Site Visits, Observation and
Testing. Mortgagee and its agents and representatives shall
have the right at any reasonable time upon not less than 24 hours prior notice
to enter and visit the Property for the purpose of performing appraisals,
observing the Property, and conducting non-invasive tests (unless Mortgagee has
a good faith reason to believe that the taking and removing soil or groundwater
samples is required, and in such case, conducting such tests) on any
part of the Property. Mortgagee has no duty, however, to visit or
observe the Property or to conduct tests, and no site visit, observation or
testing by Mortgagee, its agents or representatives shall impose any liability
on any of Mortgagee, its agents or representatives. In no event shall
any site visit, observation or testing by Mortgagee, its agents or
representatives be a representation that Materials of Environmental Concern are
or are not present in, on or under the Property, or that there has been or shall
be compliance with any law, regulation or ordinance pertaining to Materials of
Environmental Concern or any other applicable governmental
law. Neither Mortgagor nor any other party is entitled to rely on any
site visit, observation or testing by any of Mortgagee, its agents or
representatives. Neither Mortgagee, its agents or representatives owe
any duty of care to protect Mortgagor or any other party against, or to
inform Mortgagor or any other party of, any Materials of
Environmental Concern or any other adverse condition affecting the
Property. Mortgagee shall give Mortgagor reasonable notice before
entering the Property. Mortgagee shall make reasonable efforts to
avoid interfering with Mortgagor’s use of the Property in exercising any rights
provided in this Section
5.13. Notwithstanding the foregoing, all rights granted to
Mortgagee under this Section 5.13 are
subject to all rights of tenants to the Property.
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5.14 Notice of
Change. Mortgagor shall give Mortgagee prior written notice of
any change in: (a) the location of its place of business or its
chief executive office if it has more than one place of business; (b) the
location of any of the Property, including the Books and Records; and
(c) Mortgagor’s name or business structure. Unless otherwise
approved by Mortgagee in writing, all Property that consists of personal
property (other than the Books and Records) will be located on the Premises and
all Books and Records will be located at Mortgagor’s place of business or chief
executive office if Mortgagor has more than one place of business.
6. Transfers,
Default and Remedies.
6.1 Transfers. Mortgagor
acknowledges that Mortgagee is making one or more advances under the Term Loan
Agreement in reliance on the expertise, skill and experience of Mortgagor; thus,
the Secured Obligations include material elements similar in nature to a
personal service contract. In consideration of Mortgagee’s reliance,
Mortgagor agrees that Mortgagor shall not make any transfer of the Property or
transfer of its interests therein, except for leases in the ordinary course (a
“Transfer”), unless the Transfer is preceded by Mortgagee’s express written
consent to the particular transaction and transferee. Mortgagee may
withhold such consent in its sole discretion.
6.2 Events of
Default. Mortgagor will be in default under this Mortgage upon
the occurrence of any one or more of the following events (some or all
collectively, “Events of Default;” any one singly, an “Event of
Default”):
(a) If
a default shall occur with respect to covenants, agreements and obligations of
Mortgagor under this Mortgage involving the payment of money (other than a
default in the payment of principal when due as provided in Section 7.1 of the
Term Loan Agreement) and shall continue for a period of five (5) business days
after the due date thereof; or
(b) If
there is a failure to perform or observe any of the other covenants, agreements
and conditions contained in this Mortgage in accordance with the terms hereof,
and such default continues unremedied for a period of thirty (30) days after
written notice from Mortgagee to defaulting Mortgagor of the occurrence thereof;
or
(c) A
“Default” occurs under the Term Loan Agreement (as such term is defined
therein).
6.3 Remedies. At
any time after an Event of Default, Mortgagee shall be entitled to invoke any
and all of the rights and remedies described below, in addition to all other
rights and remedies available to Mortgagee at law or in equity. All
of such rights and remedies shall be cumulative, and the exercise of any one or
more of them shall not constitute an election of remedies.
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(a) Acceleration. Upon
the occurrence and continuation of any Event of Default the whole of the
principal sum hereby secured shall, at once either automatically or at the
option of Mortgagee as described in Section 8.1 of the
Term Loan Agreement, become immediately due and payable, together with accrued
interest thereon, without any presentment, demand, protest or notice of any kind
to Mortgagor.
(b) Receiver. Mortgagee
shall, as a matter of right, without notice and without giving bond to Mortgagor
or anyone claiming by, under or through Mortgagor, and without regard for the
solvency or insolvency of Mortgagor or the then value of the Property, to the
extent permitted by applicable law, be entitled to have a receiver appointed for
all or any part of the Property and the Rents, and the proceeds, issues and
profits thereof, with the rights and powers referenced below and such other
rights and powers as the court making such appointment shall confer, and
Mortgagor hereby consents to the appointment of such receiver and shall not
oppose any such appointment. Such receiver shall have all powers and
duties prescribed by applicable law, all other powers which are necessary or
usual in such cases for the protection, possession, control, management and
operation of the Property, and such rights and powers as Mortgagee would have,
upon entering and taking possession of the Property under subsection (c)
below.
(c) Entry. Mortgagee,
in person, by agent or by court-appointed receiver, may enter, take possession
of, manage and operate all or any part of the Property, and may also do any and
all other things in connection with those actions that Mortgagee may in its sole
discretion consider necessary and appropriate to protect the security
of this Mortgage. Such other things may
include: taking and possessing all of Mortgagor’s or the then owner’s
Books and Records; entering into, enforcing, modifying or canceling leases on
such terms and conditions as Mortgagee may consider proper; obtaining and
evicting tenants; fixing or modifying Rents; collecting and receiving any
payment of money owing to Mortgagee; completing any unfinished construction;
and/or contracting for and making repairs and alterations. If
Mortgagee so requests, Mortgagor shall assemble all of the Property that has
been removed from the Premises and make all of it available to Mortgagee at the
site of the Premises. Mortgagor hereby irrevocably constitutes and
appoints Mortgagee as Mortgagor’s attorney-in-fact to perform such acts and
execute such documents as Mortgagee in its sole discretion may consider to be
appropriate in connection with taking these measures, including endorsement of
Mortgagor’s name on any instruments.
(d) Cure; Protection of
Security. Mortgagee may cure any breach or default of
Mortgagor, and if it chooses to do so in connection with any such cure,
Mortgagee may also enter the Property and/or do any and all other things which
it may in its sole discretion consider necessary and appropriate to protect the
security of this Mortgage, including, without limitation, completing
construction of the improvements at the Property contemplated by the Term Loan
Agreement. Such other things may include: appearing in and/or
defending any action or proceeding which purports to affect the security of, or
the rights or powers of Mortgagee under, this Mortgage; paying, purchasing,
contesting or compromising any encumbrance, charge, lien or claim of lien which
in Mortgagee’s sole judgment is or may be senior in priority to this Mortgage,
such judgment of Mortgagee or to be conclusive as among the parties to this
Mortgage; obtaining insurance and/or paying any premiums or charges for
insurance required to be carried under the Term Loan Agreement; otherwise caring
for and protecting any and all of the Property; and/or employing counsel,
accountants, contractors and other appropriate persons to assist
Mortgagee. Mortgagee may take any of the actions permitted under this
Subsection
6.3(d) either with or without giving notice to any person. Any
amounts expended by Mortgagee under this Subsection 6.3(d)
shall be secured by this Mortgage.
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(e) Uniform Commercial Code
Remedies. Mortgagee may exercise any or all of the remedies
granted to a secured party under the Uniform Commercial Code in the State in
which the Property is located.
(f) Foreclosure;
Lawsuits. Mortgagee shall have the right, in one or several
concurrent or consecutive proceedings, to foreclose the lien hereof upon the
Property or any part thereof, for the Secured Obligations, or any part thereof,
by any proceedings appropriate under applicable law. Mortgagee or its
nominee may bid and become the purchaser of all or any part of the Property at
any foreclosure or other sale hereunder, and the amount of Mortgagee’s
successful bid shall be credited on the Secured Obligations. Without
limiting the foregoing, Mortgagee may proceed by a suit or suits in law or
equity, whether for specific performance of any covenant or agreement herein
contained or in aid of the execution of any power herein granted, or for any
foreclosure under the judgment or decree of any court of competent
jurisdiction. In addition to the right provided in Subsection 6.3(a),
upon, or at any time after the filing of a complaint to foreclose this Mortgage,
Mortgagee shall be entitled to the appointment of a receiver of the property by
the court in which such complaint is filed, and Mortgagor hereby consents to
such appointment.
(g) Other
Remedies. Mortgagee may exercise all rights and remedies
contained in any other instrument, document, agreement or other writing
heretofore, concurrently or in the future executed by Mortgagor or any other
person or entity in favor of Mortgagee in connection with the Secured
Obligations or any part thereof, without prejudice to the right of Mortgagee
thereafter to enforce any appropriate remedy against
Mortgagor. Mortgagee shall have the right to pursue all remedies
afforded to a mortgagee under applicable law, and shall have the benefit of all
of the provisions of such applicable law, including all amendments thereto which
may become effective from time to time after the date hereof.
(h) Sale of Personal
Property. Mortgagee shall have the discretionary right to
cause some or all of the Property, which constitutes personal property, to be
sold or otherwise disposed of in any combination and in any manner permitted by
applicable law.
(i) For
purposes of this power of sale, Mortgagee may elect to treat as personal
property any Property which is intangible or which can be severed from the
Premises or Improvements without causing structural damage. If it
chooses to do so, Mortgagee may dispose of any personal property, in any manner
permitted by Article 9 of the Uniform Commercial Code of the State in which the
Property is located, including any public or private sale, or in any manner
permitted by any other applicable law.
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(ii) In
connection with any sale or other disposition of such Property, Mortgagor agrees
that the following procedures constitute a commercially reasonable
sale: Mortgagee shall mail written notice of the sale to Mortgagor
not later than thirty (30) days prior to such sale. Mortgagee will
publish notice of the sale in a local daily newspaper of general
circulation. Upon receipt of any written request, Mortgagee will make
the Property available to any bona fide prospective purchaser for inspection
during reasonable business hours. Notwithstanding, Mortgagee shall be
under no obligation to consummate a sale if, in its judgment, none of the offers
received by it equals the fair value of the Property offered for
sale. The foregoing procedures do not constitute the only procedures
that may be commercially reasonable.
(i) Single or Multiple
Foreclosure Sales. If the Property consists of more than one
lot, parcel or item of property, Mortgagee may:
(i) Designate
the order in which the lots, parcels and/or items shall be sold or disposed of
or offered for sale or disposition; and
(ii) Elect
to dispose of the lots, parcels and/or items through a single consolidated sale
or disposition to be held or made under or in connection with judicial
proceedings, or by virtue of a judgment and decree of foreclosure and sale; or
through two or more such sales or dispositions; or in any other manner Mortgagee
may deem to be in its best interests (any such sale or disposition, a
“Foreclosure Sale;” and any two or more, “Foreclosure Sales”).
If
Mortgagee chooses to have more than one Foreclosure Sale, Mortgagee at its
option may cause the Foreclosure Sales to be held simultaneously or
successively, on the same day, or on such different days and at such different
times and in such order as Mortgagee may deem to be in its best
interests. No Foreclosure Sale shall terminate or affect the liens of
this Mortgage on any part of the Property which has not been sold, until all of
the Secured Obligations have been paid in full.
6.4 Credit
Bids. At any Foreclosure Sale, any person, including Mortgagor
or Mortgagee, may bid for and acquire the Property or any part of it to the
extent permitted by then applicable law. Instead of paying cash for
such property, Mortgagee may settle for the purchase price by crediting the
sales price of the property against the following obligations:
(a) First,
the portion of the Secured Obligations attributable to the expenses of sale,
costs of any action and any other sums for which Mortgagor is obligated to pay
or reimburse Mortgagee under Section 5.10 of
this Mortgage; and
(b) Second,
all other Secured Obligations in any order and proportions as Mortgagee in its
sole discretion may choose.
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6.5 Application of Foreclosure
Sale Proceeds. Mortgagee shall apply the proceeds of any
Foreclosure Sale in the following manner:
(a) First,
to pay the portion of the Secured Obligations attributable to the expenses of
sale, costs of any action and any other sums for which Mortgagor is obligated to
reimburse Mortgagee under Section 5.10 of this
Mortgage;
(b) Second,
to pay the portion of the Secured Obligations attributable to any sums expended
or advanced by Mortgagee under the terms of this Mortgage which then remain
unpaid;
(c) Third,
to pay all other Secured Obligations in any order and proportions as Mortgagee
in its sole discretion may choose consistent with the requirements of the Term
Loan Agreement; and
(d) Fourth,
to remit the remainder, if any, to the person or persons entitled to
it.
6.6 Application of Rents and
Other Sums. Mortgagee shall apply any and all Rents collected
by it, and any and all sums other than proceeds of a Foreclosure Sale which
Mortgagee may receive or collect under Section 6.3
above, in the following manner:
(a) First,
to pay the portion of the Secured Obligations attributable to the costs and
expenses of operation and collection that may be incurred by Mortgagee or any
receiver;
(b) Second,
to pay all other Secured Obligations in any order and proportions as Mortgagee
in its sole discretion may choose consistent with the requirements of the Term
Loan Agreement; and
(c) Third,
to remit the remainder, if any, to the person or persons entitled to
it.
Mortgagee
shall have no liability for any funds which it does not actually
receive.
7. Miscellaneous
Provisions.
7.1 Additional
Provisions. The Loan Documents fully state all of the terms
and conditions of the parties’ agreement regarding the matters mentioned in or
incidental to this Mortgage. The Loan Documents also grant further
rights to Mortgagee and contain further agreements and affirmative and negative
covenants by Mortgagor which apply to this Mortgage and to the
Property.
7.2 No Waiver or
Cure.
(a) Each
waiver by Mortgagee must be in writing, and no waiver shall be construed as a
continuing waiver. No waiver shall be implied from any delay or
failure by Mortgagee to take action on account of any default of
Mortgagor. Consent by Mortgagee to any act or omission by Mortgagor
shall not be construed as a consent to any other or subsequent act or omission
or to waive the requirement for Mortgagee’s consent to be obtained
in any future or other instance.
-17-
(b) If
any of the events described below occurs, that event alone shall
not: cure or waive any breach, Event of Default or notice of default
under this Mortgage or invalidate any act performed pursuant to any such default
or notice; or nullify the effect of any notice of default or sale (unless all
Secured Obligations then due have been paid and performed and all other defaults
under the Loan Documents have been cured); or impair the security of this
Mortgage; or prejudice Mortgagee or any receiver in the exercise of any right or
remedy afforded any of them under this Mortgage; or be construed as an
affirmation by Mortgagee of any tenancy, lease or option, or a subordination of
the lien of this Mortgage.
(i) Mortgagee,
its agent or a receiver takes possession of all or any part of the Property in
the manner provided in Subsection 6.3(c).
(ii) Mortgagee
collects and applies Rents as permitted under Sections 2.3 and
6.6 above,
either with or without taking possession of all or any part of the
Property.
(iii) Mortgagee
receives and applies to any Secured Obligation any proceeds of any Property,
including any proceeds of insurance policies, condemnation awards, or other
claims, property or rights assigned to Mortgagee under Section 5.5 and
Section 5.6
above.
(iv) Mortgagee
makes a site visit, observes the Property and/or conducts tests as permitted
under Section 5.13
above.
(v) Mortgagee
receives any sums under this Mortgage or any proceeds of any collateral held for
any of the Secured Obligations, and applies them to one or more Secured
Obligations.
(vi) Mortgagee
or any receiver invokes any right or remedy provided under this
Mortgage.
7.3 Powers of
Mortgagee.
(a) If
Mortgagee performs any act which it is empowered or authorized to perform under
this Mortgage, including any act permitted by Section 5.8 or
Subsection
6.3(d) of this
Mortgage, that act alone shall not release or change the personal liability of
any person for the payment and performance of the Secured Obligations then
outstanding, or the lien of this Mortgage on all or the remainder of the
Property for full payment and performance of all outstanding Secured
Obligations. The liability of the original Mortgagor shall not be
released or changed if Mortgagee grants any successor in interest to Mortgagor
any extension of time for payment, or modification of the terms of payment, of
any Secured Obligation. Mortgagee shall not be required to comply
with any demand by the original Mortgagor that Mortgagee refuse to grant such an
extension or modification to, or commence proceedings against, any such
successor in interest.
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(b) Mortgagee
may take any of the actions permitted under Subsections 6.3(b)
and/or 6.3(c)
regardless of the adequacy of the security for the Secured Obligations, or
whether any or all of the Secured Obligations have been declared to be
immediately due and payable, or whether notice of default and election to sell
has been given under this Mortgage.
(c) From
time to time, Mortgagee may apply to any court of competent jurisdiction for aid
and direction in executing and enforcing the rights and remedies created under
this Mortgage. Mortgagee may from time to time obtain orders or
decrees directing, confirming or approving acts in executing and enforcing these
rights and remedies.
7.4 Merger. No
merger shall occur as a result of Mortgagee’s acquiring any other estate in or
any other lien on the Property unless Mortgagee consents to a merger in
writing.
7.5 Joint and Several
Liability. If Mortgagor consists of more than one person, each
shall be jointly and severally liable for the faithful performance of all of
Mortgagor’s obligations under this Mortgage.
7.6 Applicable Law. The
creation, perfection and enforcement of the lien of this Mortgage shall be
governed by the law of the State in which the property is
located. Subject to the foregoing, in all other respects, this
Mortgage shall be governed by the substantive laws of the State of
Minnesota.
7.7 Successors in
Interest. The terms, covenants and conditions of this Mortgage
shall be binding upon and inure to the benefit of the heirs, successors and
assigns of the parties. However, this Section 7.7 does
not waive the provisions of Section 6.1
above.
7.8 Interpretation.
(a) Whenever
the context requires, all words used in the singular will be construed to have
been used in the plural, and vice versa, and each gender will include any other
gender. The captions of the sections of this Mortgage are for
convenience only and do not define or limit any terms or
provisions. The word “include(s)” means “include(s), without
limitation,” and the word “including” means “including, but not limited
to.”
(b) The
word “obligations” is used in its broadest and most comprehensive sense, and
includes all primary, secondary, direct, indirect, fixed and
contingent obligations. It further includes all principal, interest,
prepayment charges, late charges, loan fees and any other fees and charges
accruing or assessed at any time, as well as all obligations to perform acts or
satisfy conditions.
(c) No
listing of specific instances, items or matters in any way limits the scope or
generality of any language of this Mortgage. The Exhibits to this
Mortgage are hereby incorporated in this Mortgage.
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7.9 Waiver of Statutory
Rights. To the extent permitted by law, Mortgagor hereby
agrees that it shall not and will not apply for or avail itself of any
appraisement, valuation, stay, extension or exemption laws, or any so-called
“Moratorium Laws,” now existing or hereafter enacted, in order to prevent or
hinder the enforcement or foreclosure of this Mortgage, but hereby waives the
benefit of such laws. Mortgagor for itself and all who may claim
through or under it waives any and all right to have the property and estates
comprising the Property marshalled upon any foreclosure of the lien hereof and
agrees that any court having jurisdiction to foreclose such lien may order the
Property sold as an entirety. Mortgagor hereby waives any and all rights of
redemption from sale under any judgment of foreclosure of this Mortgage on
behalf of Mortgagor and on behalf of each and every person acquiring any
interest in or title to the Property of any nature whatsoever, subsequent to the
date of this Mortgage. The foregoing waiver of right of redemption is
made pursuant to the provisions of applicable law.
7.10 Severability. If
any provision of this Mortgage should be held unenforceable or void, that
provision shall be deemed severable from the remaining provisions and shall in
no way affect the validity of this Mortgage except that if such provision
relates to the payment of any monetary sum, then Mortgagee may, at its option,
declare all Secured Obligations immediately due and payable.
7.11 Notices. Any notice,
demand, request or other communication which any party hereto may be required or
may desire to give hereunder shall be in writing and shall be deemed to have
been properly given (a) if hand delivered, when delivered; (b) if mailed by
United States Certified Mail (postage prepaid, return receipt requested), three
Business Days after mailing (c) if by Federal Express or other reliable
overnight courier service, on the next Business Day after delivered to such
courier service or (d) if by telecopier on the day of transmission so long as
copy is sent on the same day by overnight courier as set forth
below:
|
Mortgagor:
|
Glimcher
Northtown Venture, LLC
|
GB Northtown, LLC
c/o
Glimcher Properties Limited Partnership
000 Xxxx
Xxxxx Xxxxxx
Xxxxxxxx,
Xxxx 00000
Attention: General
Counsel
Telephone: 000-000-0000
Facsimile: (000)
000-0000
|
Mortgagee:
|
KeyBank
National Association
|
000 Xxxxxx Xxxxxx
Xxxxxxxxx,
Xxxx 00000
Attention: Commercial Real
Estate Department
Phone: 000-000-0000
Facsimile: 000-000-0000
|
With
a copy to:
|
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx LLP
|
0000 Xxxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx,
Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
-20-
or at
such other address as the party to be served with notice may have furnished in
writing to the party seeking or desiring to serve notice as a place for the
service of notice.
Any
notice or demand delivered to the person or entity named above to accept notices
and demands for Mortgagor shall constitute notice or demand duly delivered to
Mortgagor, even if delivery is refused.
7.12 Mortgagee’s Lien for Service
Charge and Expenses. At all times, regardless of whether any
Loan proceeds have been disbursed, this Mortgage secures the payment of any and
all loan commissions, service charges, liquidated damages, expenses and advances
due to or incurred by Mortgagee not to exceed the maximum amount secured
hereby. For purposes hereof, all obligations of Mortgagor to
Mortgagee under all Rate Management Transactions and any indebtedness or
obligation contained therein or evidenced thereby shall be considered an
obligation of Mortgagor secured hereby pursuant to the Term Loan Agreement;
provided however that in no event shall the total amount secured hereby exceed
$40,000,000.
7.13 WAIVER OF TRIAL BY
JURY. MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS MORTGAGE, THE NOTE, OR ANY
OF THE OTHER LOAN DOCUMENTS, THE LOAN OR ANY OTHER STATEMENTS OR ACTIONS OF
MORTGAGOR OR MORTGAGEE. MORTGAGOR ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED IN THE SIGNING OF THIS MORTGAGE AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS
DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. MORTGAGOR FURTHER
ACKNOWLEDGES THAT (I) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS
OF THIS WAIVER, (II) THIS WAIVER IS A MATERIAL INDUCEMENT FOR MORTGAGEE TO MAKE
THE LOAN, ENTER INTO THIS MORTGAGE AND EACH OF THE OTHER LOAN DOCUMENTS, AND
(III) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF SUCH OTHER LOAN DOCUMENTS AS
IF FULLY INCORPORATED THEREIN.
7.14 Incorporation of Term Loan
Agreement and Environmental Indemnity Agreement. The terms and
provisions of the Term Loan Agreement and that certain Environmental Indemnity
Agreement (the “Indemnity”) dated as of even date herewith, are incorporated
herein by express reference. All advances and indebtedness arising
and accruing under the Term Loan Agreement from time to time, whether or not the
resulting indebtedness secured hereby may exceed the face amount of the Notes,
shall be secured hereby to the same extent as though said Term Loan Agreement
were fully incorporated in this Mortgage, and the occurrence of any “Default”
under said Term Loan Agreement shall constitute a Event of Default under this
Mortgage entitling Mortgagee to all of the rights and remedies conferred upon
Mortgagee by the terms of both this Mortgage and the Term Loan
Agreement.
7.15 Inconsistencies. In
the event of any inconsistency between this Mortgage and the Term Loan
Agreement, the terms hereof shall be controlling, to the extent necessary to
create, preserve and/or maintain a valid security interest upon the Property,
and otherwise the provisions of the Term Loan Agreement shall be
controlling.
-21-
7.16 Partial Invalidity; Maximum
Allowable Rate of Interest. Mortgagor and Mortgagee intend and
believe that each provision in this Mortgage and the Notes comports with all
applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion
of any provision or provisions, in this Mortgage or the Notes is found by a
court of law to be in violation of any applicable local, state or federal
ordinance, statute, law, administrative or judicial decision, or public policy,
and if such court should declare such portion, provision or provisions of this
Mortgage and the Notes to be illegal, invalid, unlawful, void or unenforceable
as written, then it is the intent both of Mortgagor and Mortgagee that such
portion, provision or provisions shall be given force to the fullest possible
extent that they are legal, valid and enforceable, that the remainder of this
Mortgage and the Notes shall be construed as if such illegal, invalid, unlawful,
void or unenforceable portion, provision or provisions were not contained
therein, and that the rights, obligations and interest of Mortgagor and
Mortgagee under the remainder of this Mortgage and the Notes shall continue in
full force and effect. All agreements herein and in the Notes are
expressly limited so that in no contingency or event whatsoever, whether by
reason of advancement of the proceeds hereof, acceleration of maturity of the
unpaid principal balance of the Notes, or otherwise, shall the amount paid or
agreed to be paid to the Holders for the use, forbearance or detention of the
money to be advanced hereunder exceed the highest lawful rate permissible under
applicable usury laws. If, from any circumstances whatsoever,
fulfillment of any provision hereof or of the Notes or any other agreement
referred to herein, at the time performance of such provision shall be due,
shall involve transcending the limit of validity prescribed by law which a court
of competent jurisdiction may deem applicable hereto, then, ipso facto, the obligation
to be fulfilled shall be reduced to the limit of such validity and if from any
circumstance the Holders shall ever receive as interest an amount which would
exceed the highest lawful rate, such amount which would be excessive interest
shall be applied to the reduction of the unpaid principal balance due under the
Notes and not to the payment of interest.
7.17 “THIS
WRITTEN AGREEMENT IS THE FINAL EXPRESSION OF THE MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING AMONG THE PARTIES HERETO AS THE SAME
EXISTS TODAY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR OR
CONTEMPORANEOUS ORAL AGREEMENT BETWEEN THE PARTIES HERETO. THE
PARTIES HEREBY AFFIRM THAT NO UNWRITTEN ORAL AGREEMENT BETWEEN THE PARTIES
EXISTS. THE FOLLOWING SPACE (WHICH THE PARTIES HERETO AGREE IS
SUFFICIENT SPACE) IS PROVIDED FOR THE PLACEMENT OF NONSTANDARD TERMS, IF ANY (IF
THERE ARE NO NONSTANDARD TERMS TO BE ADDED, STATE “NONE”):
NONE
7.18 Certain Matters Relating to
Property Located in the State of
Minnesota . Notwithstanding anything contained herein to
the contrary the provisions contained in the Rider attached hereto as
Exhibit B (the "Rider") are incorporated by reference as if fully set forth
herein. If there is any inconsistency between the terms contained in
this Mortgage and the terms contained in the Rider, the terms in the Rider shall
prevail.
[Signature appears on following
page]
-22-
IN
WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date first above
written.
Mortgagor:
GLIMCHER
NORTHTOWN VENTURE, LLC,
a
Delaware limited liability company
By: GLIMCHER
PROPERTIES LIMITED PARTNERSHIP,
a
Delaware limited partnership,its sole member
By: GLIMCHER
PROPERTIES CORPORATION,
a
Delaware corporation, its sole general partner
By:/s/ Xxxx X.
Xxxx
Print Name: Xxxx X. Xxxx
Title: Executive Vice President, Chief
Financial Officer and Treasurer
GB
NORTHTOWN, LLC,
a
Delaware limited liability company
By: GLIMCHER
PROPERTIES LIMITED PARTNERSHIP,
a
Delaware limited partnership, its sole member
By: GLIMCHER
PROPERTIES CORPORATION,
a
Delaware corporation, its sole general partner
By:/s/ Xxxx X.
Xxxx
Print Name: Xxxx X. Xxxx
Title:
Executive Vice President, Chief Financial Officer and Treasurer
-23-
|
STATE
OF ________________
|
)
|
) SS:
|
COUNTY
OF _______________
|
)
|
The
foregoing instrument was acknowledged before me this 22nd day of October, 2008,
by Xxxx X. Xxxx, the Executive Vice President, Chief Financial Officer and
Treasurer of Glimcher Properties Corporation, the sole general partner of
Glimcher Properties Limited Partnership, the sole member of GLIMCHER NORTHTOWN
VENTURE, LLC, organized under the laws of the State of Delaware, who
acknowledged that he did sign the foregoing instrument.
Sign
Name: ________________________________________
Notary
Public
Print
Name:________________________________________
Serial
No. (if any):____________________________________
[NOTARIAL
SEAL]
My
Commission Expires: ___________________
|
STATE
OF ________________
|
)
|
) SS:
|
COUNTY
OF _______________
|
)
|
The
foregoing instrument was acknowledged before me this 22nd day of
October, 2008, by Xxxx X. Xxxx, the Executive Vice President, Chief Financial
Officer and Treasurer of Glimcher Properties Corporation, the sole general
partner of Glimcher Properties Limited Partnership, the sole member of GB
NORTHTOWN, LLC, organized under the laws of the State of Delaware, who
acknowledged that he did sign the foregoing instrument.
Sign
Name: ________________________________________
Notary
Public
Print
Name:________________________________________
Serial
No. (if any):____________________________________
[NOTARIAL
SEAL]
My
Commission Expires: ___________________
-24-
EXHIBIT
A
DESCRIPTION
OF PREMISES
PARCEL 1, TRACT A - Fee Simple:
Xxxx 0
xxx 0, Xxxxx 0, Xxxxxxxx Xxxxxxxxx Xxxx Addition, Anoka County,
Minnesota.
PARCEL 1, TRACT B - Fee Simple:
Xxx 0,
Xxxxx 0, Xxxxxxxx Xxxxxxxxx Xxxx Addition, Anoka County, Minnesota.
PARCEL 2 - Fee Simple:
Lots
2,4,5,6 and 0, Xxxxx 0, Xxxx'x Xxxxxxxxx Addition, exception therefrom that part
of Lot 4
described as follows:
Beginning
at the intersection of the East line of said Lot 4 and a line parallel with and
distant 570.00 feet North of the South line of said Lot 4; thence on an assumed
bearing of North 89 degrees 17 minutes 30 seconds West, along said parallel
line, 535.00 feet; thence Southwesterly along a tangential curve to the left,
316.16 feet; said curve has a central angle of 90 degrees 00 minutes 00 seconds
and a radius of 200.00 feet; thence South 00 degrees 42 minutes 30 seconds West,
tangent to last described curve, 58.00 feet; thence Southerly along a tangential
curve to the right 92.36 feet, said curve has a central angle of 35 degrees 16
minutes 44 seconds and a radius of 150.00 feet; thence South 54 degrees 00
minutes 46 seconds East, not tangent to last described curve, 56.32 feet; thence
Southerly along a non-tangential curve concave to the East 141.52 feet; said
curve has a central angle of 35 degrees 16 minutes 44 seconds, radius
of 230.00 feet and a chord bearing of South 18 degrees 20 minutes 52
seconds West; thence South 00 degrees 42 minutes 30 seconds West, tangent to
last described curve, 60.00 feet to its intersection with the South line of said
Lot 4; thence Easterly and Northerly along the Southerly and
Easterly line of said Lot 4 to the point of beginning.
PARCEL 3 - Fee Simple:
That part
of vacated University Avenue N.E. accruing thereto pursuant to City of Xxxxxx
Ordinance No. 95-1566, recorded March 1, 1996, as Document No. 1206692,
described as follows:
That
portion of University Avenue N.E. over, under, through and across the
right-of-way of University Avenue N.E. as dedicated by Xxxx'x Northtown
Addition, according to the plat thereof on file and of record in the Office of
the Country Recorder of Anoka County, Minnesota, which lies Southeasterly of the
following described line and its extensions:
Beginning
at a point on the Southwesterly line of said Xxxx'x Northtown Addition distant
108.97 feet Southeasterly from the most Southerly corner of Xxx 0, Xxxxx 0, xxxx
Xxxx'x Xxxxxxxxx Addition as measured along said Southwesterly line; thence
Northeasterly to a point on the Westerly line of Block 2, said Xxxx'x Northtown
Addition distant 701.72 feet Southerly from the most Northerly corner of said
Block 2, as measured along said Westerly line, and there
terminating.
PARCEL 4 - Easements:
Together
with those rights and easements constituting rights in real property created,
defined and limited by that certain Construction, Operation and Reciprocal
Easement Agreement dated October 19, 1970, filed as Document No. 344241, by and
between Northtown Shopping Center, a limited partnership, Xxxxxx Property
Corporation and Adcor Realty Corporation, as amended by First Amendment dated
June 21, 1971, filed as Document No. 353464, amended by Second Amendment dated
July 29, 1971, filed as Document No. 353465, amended by Third Amendment dated
December 22, 1971, filed as Document No. 364068, amended by Fourth Amendment
dated June 8, 1973, filed as Document No. 397408, amended by Fifth Amendment
dated April 22, 1983, filed May 9,1983, filed May 9,1983 as Document No. 613057,
and further amended by Amendment, Assignment, Assumption, Estoppel Consent and
Release Agreement, dated July 5, 1985 and recorded November 26, 1985 as Document
No. 693439, amended by Sixth Amendment, dated July 23, 1996 and recorded July
31, 1996 as Document No. 1233121, as affected by that certain Amended and
Restated Construction, Operation and Reciprocal Easement Agreement, by and among
Glimcher Northtown Venture, LLC, a Delaware limited liability company, XX
XxxxxXxxx, LLC, a Delaware limited liability company and Home Depot U.S.A.,
Inc., a Delaware corporation, dated March 21, 2006, and recorded August 23, 2006
as Document No. 1987024.008, all in the Office of the Recorder in and for Anoka
County, Minnesota.
PARCEL 5 - Easements:
Together
with easements for access and public right of way, utility purposes and parking
purposes as more fully described in Warranty Deeds dated April 28,1983, filed
May 9,1983 as Document No. 613059, as amended by Quit Claim Deed filed as
Document No. 1001739, in the Office of the Recorder in and for Anoka County,
Minnesota.
-2-
EXHIBIT
B
SPECIFIC
STATE PROVISIONS RIDER
With
respect to the Property which is located in the State of Minnesota,
notwithstanding anything contained herein to the contrary:
1. Drafting
Information. This instrument was drafted by:
Xxxxxxx
X. Xxxxx, Esq.
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx LLP
0000
Xxxxx Xxxxx
Xxxxxxx,
XX 00000-0000
2. Secured
Obligations. Subject to the limitation in Section 8 of
this Rider, notwithstanding anything in this Mortgage to the contrary, this
Mortgage shall secure the following obligations:
(a) the
debt evidenced by the Notes in the principal amount of Forty Million Dollars
($40,000,000);
(b) any
and all other charges and amounts payable under the Notes, this Mortgage or the
Loan Documents, as are exempt from Minnesota mortgage registry tax (the
“Registry Tax”) under Minn. Stat. § 287.05, Subd. 4;
(c) any
and all charges, amounts and non-monetary obligations under the Notes, this
Mortgage or the Loan Documents, which are not otherwise subject to Registry
Tax;
(d) any
and all charges and amounts payable under the Notes, this Mortgage or the Loan
Documents, not referred to in clauses (a), (b) or (c) on which the Registry Tax
has been paid; and
(e) interest
from time to time payable on any or all of the foregoing.
3. Minnesota
Remedies. If an Event of
Default exists, Mortgagee may, at Mortgagee’s election, exercise any of the
following rights, remedies and recourses:
(a) Foreclosure and
Sale. Foreclose this Mortgage by judicial proceedings or by
advertisement with full authority to sell the Property at public auction and
convey the same to the purchaser in fee simple pursuant to a singular power of
sale, either in one parcel or separate lots and parcels, all in accordance with
and in the manner prescribed by law, and out of the proceeds arising from sale
and foreclosure to retain the principal, prepayment fees, and interest due on
the Notes, together with all sums of money as Mortgagee shall have expended or
advanced pursuant to this Mortgage or pursuant to statute, together with
interest thereon as herein provided, and all costs and expenses of such
foreclosure, including lawful attorneys’ fees with the balance, if any, due to
be paid to the person entitled thereto by law.
(b) Receiver. As
a matter of right, without notice and without regard to the solvency or
insolvency of Mortgagor, or the existence of waste of the Property or adequacy
of the security of the Property, and without giving bond, apply for the
appointment of a receiver in accordance with the statutes and law made and
provided for who shall have all the rights, powers and remedies as provided by
such statute or law, including without limitation the rights of receiver
pursuant to Minn. Stat. Section 576.01, as amended, and who shall from the date
of its appointment through any period of redemption existing at law collect the
Rents, manage the Property so as to prevent waste, execute leases within or
beyond the period of receivership, pay all expenses for normal maintenance of
the Property, and perform the terms of this Mortgage and apply the Rents to the
payment of the expenses enumerated in Minn. Stat. Section 576.01, Subd. 2 in the
priority mentioned therein and to all expenses for maintenance of the Property
and to the costs and expenses of the receivership, including attorneys’ fees, to
the repayment of the Notes and as further provided in the Assignment of Rents
executed by Mortgagor to Mortgagee whether contained in this Mortgage or in a
separate instrument. Mortgagor does hereby irrevocably consent to
such appointment.
(c) UCC. Exercise
all rights, remedies and recourse available to a secured party under the UCC (in
addition to the rights available to a Mortgagee of real property), including the
right to proceed under the provisions of the UCC governing default as to any
collateral which may be included on the Property or which may be deemed
non-realty in a foreclosure of this Mortgage or to proceed as to such collateral
in accordance with the procedures and remedies available pursuant to a
foreclosure of real estate.
4. Acknowledgment
of Waiver of Hearing Before Sale. Mortgagor
understands and agrees that if an Event of Default shall occur, Mortgagee has
the right, inter alia, to foreclose this Mortgage by advertisement pursuant to
Minn. Stat. Chapter 580, as hereafter amended, or pursuant to any similar or
replacement statute hereafter enacted; that if Mortgagee elects to foreclose by
advertisement, it may cause the Property or any part thereof to be sold at
public auction; that notice of such sale must be published for six (6)
successive weeks at least once a week in a newspaper of general circulation, and
that no personal notice is required to be served upon
Mortgagor. Mortgagor further understands that upon the occurrence of
an Event of Default, Mortgagee may also elect its rights under the UCC and take
possession of the non-real estate items of the Property and dispose of the same
by sale or otherwise in one or more parcels, provided that at least ten (10)
days’ prior notice of such disposition must be given, all as provided for by the
UCC, as hereinafter amended or by any similar or replacement statute hereafter
enacted. Mortgagor further understands that under the Constitution of
the United States and the Constitution of the State of Minnesota it may have the
right to notice and hearing before the Property may be sold and that the
procedure for foreclosure by advertisement described above does not insure that
notice will be given to Mortgagor and neither said procedure for foreclosure by
advertisement nor the UCC requires any hearing or other judicial
proceeding. MORTGAGOR HEREBY EXPRESSLY CONSENTS AND AGREES THAT THE
PROPERTY MAY BE FORECLOSED BY ADVERTISEMENT AND THAT THE PERSONAL PROPERTY MAY
BE DISPOSED OF PURSUANT TO THE UCC, ALL AS DESCRIBED ABOVE. MORTGAGOR
ACKNOWLEDGES THAT IT IS REPRESENTED BY LEGAL COUNSEL; THAT BEFORE SIGNING THIS
DOCUMENT THIS SECTION AND MORTGAGOR’S CONSTITUTIONAL RIGHTS WERE FULLY EXPLAINED
BY SUCH COUNSEL AND THAT MORTGAGOR UNDERSTANDS THE NATURE AND EXTENT OF THE
RIGHTS WAIVED HEREBY AND THE EFFECT OF SUCH WAIVER.
-2-
5. Leases
and Rents. (a) Mortgagee’s
rights under this subsection are governed by Minn. Stat. § 559. Upon
the occurrence of any Event of Default, Mortgagor’s revocable license to collect
the Rents set forth in Section 2.2 shall immediately cease and
terminate. Upon or at any time during the continuance of an Event of
Default, including but not limited to failure of the Mortgagor to pay any of the
items set forth in subparagraphs 5(c)(i)-(v) below, or if any material
representation or warranty herein proves to be untrue, then the Mortgagee,
without regard to waste, adequacy of the security or solvency of the Mortgagor,
may declare all obligations immediately due and payable and may, at its option,
without notice:
(i) Apply
for appointment of a receiver in accordance with the statutes and law made and
provided for, which receivership Mortgagor hereby consents to, who shall collect
the Rents; enforce the payment thereof and exercise all of the rights of the
Mortgagor under the Leases and all of the rights of the Mortgagee hereunder; and
may enter upon, take possession of, manage and operate the Property so to
prevent waste; execute Leases within or beyond the period of receivership, or
any part thereof; may cancel, enforce or modify the leases, and fix or modify
Rents, and do any acts which the Mortgagee deems proper to protect the security
hereof; perform the terms of this Mortgage and apply the Rents as hereinafter
provided.
(b) The
exercise of any of the foregoing rights or remedies and the application of the
Rents pursuant to this Rider, shall not cure or waive any Event of Default (or
notice of default) or invalidate any act done pursuant to such notice nor in any
way operate to prevent the Mortgagee from pursuing any remedy which now or
hereafter it may have under the terms and conditions of the Mortgage or the
Notes secured thereby or any other instruments securing the same. The
rights and powers of the Mortgagee hereunder shall remain in full force and
effect both prior to and after any foreclosure of the Mortgage and any sale
pursuant thereto and until expiration of the period of redemption from said
sale, regardless of whether a deficiency remains from said sale. The
purchaser at any foreclosure sale, including the Mortgagee, shall have the
right, at any time and without limitation as provided in Minn. Stat. Section
582.03, to advance money to any receiver appointed hereunder to pay any part or
all of the items which the receiver would otherwise be authorized to pay if cash
were available from the Property and the sum so advanced, with interest at the
rate then in effect under the terms of the Notes, shall be a part of the sum
required to be paid to redeem from any foreclosure sale. The rights
under this Paragraph 5(b) shall in no way be dependent upon and shall apply
without regard to whether the Property is in danger of being lost, materially
injured or damaged or whether the Property is adequate to discharge the
Notes.
(c) Notwithstanding
anything in this Mortgage or the other Loan Documents to the contrary, and
specifically replacing contrary provisions in this Mortgage, all Rents collected
by Mortgagee or the receiver each month following the occurrence and continuance
of an Event of Default shall be applied as follows:
(i) to
payment of all reasonable fees of the receiver approved by the
court;
(ii) to
payment of all tenant security deposits then owing to tenants under any of the
Leases pursuant to the provisions of Minn. Stat. § 504B.178;
-3-
(iii) to
payment of all prior or current real estate taxes and special assessments with
respect to the Property, or if this Mortgage or any other instrument relating to
the obligations requires periodic escrow payments for such taxes and
assessments, to the escrow payments then due;
(iv) to
payment of all premiums then due for the insurance required with respect to the
Property, or if this Mortgage or any other instrument relating to the
obligations requires periodic escrow payments for such premiums, to the escrow
payments then due;
(v) to
payment of expenses incurred for normal maintenance of the
Property;
(vi) if
received prior to any foreclosure sale of the Property pursuant to this
Mortgage, to Mortgagee for payment of the indebtedness secured hereby, but no
such payment made after acceleration of the indebtedness secured hereby shall
affect such acceleration; and
(vii) if
the Property shall be foreclosed and sold pursuant to a foreclosure sale,
then:
(A) If
the Mortgagee is the purchaser at the foreclosure sale, the Rents shall be paid
to the Mortgagee to be applied to the extent of any deficiency remaining after
the sale, the balance to be retained by the Mortgagee, and if the Property be
redeemed by the Mortgagor or any other party entitled to redeem, to be applied
as a credit against the redemption price with any remaining excess Rents to be
paid to the Mortgagor, provided, if the Property not be redeemed, any remaining
excess Rents to belong to the Mortgagee, whether or not a deficiency exists;
and
(B) If
the Mortgagee is not the purchaser at the foreclosure sale, the Rents shall be
paid to the Mortgagee to be applied first, to the extent of any deficiency
remaining after the sale, the balance to be retained by the purchaser, and if
the Property be redeemed by the Mortgagor or any other party entitled to redeem,
to be applied as a credit against the redemption price with any remaining excess
Rents to be paid to the Mortgagor, provided, if the Property not be redeemed any
remaining excess Rents shall be paid first, to the purchaser at the foreclosure
sale in an amount equal to the interest accrued upon the sale price pursuant to
Minn. Stat. Section 580.23 or Section 581.10, then to the Mortgagee to the
extent of any deficiency remaining unpaid and the remainder to the
purchaser.
The
rights and powers of Mortgagee and receivers under this Mortgage and the
application of Rents under this Rider shall continue until expiration of the
redemption period from any foreclosure sale, whether or not any deficiency
remains after a foreclosure sale.
6. Non-Agricultural
Use. Mortgagor
represents and warrants that as of the date of this Mortgage the Property is not
in agricultural use as defined in Minn. Stat. § 40A.02, Subd. 3 and is not used
for agricultural purposes.
-4-
7. Maturity
Date. The latest
obligation secured by this Mortgage matures on October 22, 2011, subject to
extension at Mortgagor’s election for one year to October 22, 2012 (the
“Maturity Date”).
8. Future
Advances. To the extent
that this Mortgage is deemed to secure future advances including, but not
limited to, interest accrued at the Default Rate (as defined in the Term Loan
Agreement), the amount of such advances is not currently known. The
delivery and acceptance of this Mortgage by Mortgagor and Mortgagee, however,
constitutes an acknowledgment that Mortgagor and Mortgagee are aware of the
provisions of Minn. Stat. § 287.05, Subd. 5, and intend to comply with the
requirements contained therein. The maximum principal amount of
indebtedness secured by this Mortgage at any one time, excluding any amounts
constituting an “indeterminate amount” under Minn. Stat. § 287.05, Subd. 5, and
excluding advances made by the Mortgagee in protection of the Property or the
lien of this Mortgage, shall be $44,500,000, of which $40,000,000 secures the
indebtedness of the Notes, and of which $4,500,000 secures the obligations of
Mortgagor to Mortgagee under all Rate Management Transactions. The
representations contained in this Rider are made solely for the benefit of
county recording authorities in determining the mortgage registry tax payable as
a prerequisite to the recording of this Mortgage. Mortgagor
acknowledges that such representations do not constitute or imply an agreement
by Mortgagee to make any future advances to Mortgagor.
9. Mortgage
Registry Tax. Mortgagor
covenants and agrees to pay any mortgage registry tax or additional mortgage
registry tax payable for this Mortgage pursuant to Minn. Stat. Ch.
287.05.
-5-
10. Fixture
Financing Statement. This Mortgage
shall be deemed to be a fixture financing statement within the meaning of the
Minnesota Uniform Commercial Code and for such purpose, the following
information is given:
(a) Glimcher
Mortgagor:
|
a.
|
Name
and address of Debtor:
|
Glimcher
Northtown Venture, LLC
c/o
Glimcher Properties Limited Partnership
000
Xxxx Xxxxx Xxxxxx
Xxxxxxxx,
Xxxx 00000
Attention:
General Counsel
|
|
b.
|
Type
of organization:
|
Limited
Liability Company
|
|
c.
|
Jurisdiction
of organization:
|
Delaware
|
|
d.
|
Organization
ID No.:
|
_______________________
|
|
e.
|
Name
and address of Secured Party:
|
KeyBank
National Association
000
Xxxxxx Xxxxxx
Xxxxxxxxx,
Xxxx 00000
Attention:
Commercial Real Estate Department
|
|
f.
|
Description
of the types (or items) of property covered by this Financing
Statement:
|
See Granting Clauses on pages 2 - 4
above
|
|
g.
|
Description
of real estate to which the collateral is attached or upon which it is or
will be located:
|
See Exhibit A hereto
|
|
h.
|
Record
owner of real estate to which the collateral is attached or upon which it
is or will be located:
|
Mortgagor
|
Some of
the above-described collateral is or is to become fixtures upon the
above-described real estate and this Financing Statement is to be filed for
record in the public real estate records.
-6-
(b) GB Mortgagor:
|
a.
|
Name
and address of Debtor:
|
GB
Northtown, LLC
c/o
Glimcher Properties Limited Partnership
000
Xxxx Xxxxx Xxxxxx
Xxxxxxxx,
Xxxx 00000
Attention:
General Counsel
|
|
b.
|
Type
of organization:
|
Limited
Liability Company
|
|
c.
|
Jurisdiction
of organization:
|
Delaware
|
|
d.
|
Organization
ID No.:
|
__________________________
|
|
e.
|
Name
and address of Secured Party:
|
KeyBank
National Association
000
Xxxxxx Xxxxxx
Xxxxxxxxx,
Xxxx 00000
Attention:
Commercial Real Estate Department
|
|
f.
|
Description
of the types (or items) of property covered by this Financing
Statement:
|
See Granting Clauses on pages 2 - 4
above
|
|
g.
|
Description
of real estate to which the collateral is attached or upon which it is or
will be located:
|
See Exhibit A hereto
|
|
h.
|
Record
owner of real estate to which the collateral is attached or upon which it
is or will be located:
|
Mortgagor
|
Some of
the above-described collateral is or is to become fixtures upon the
above-described real estate and this Financing Statement is to be filed for
record in the public real estate records.
-7-
