Exhibit 10.156
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OPEN-END MORTGAGE AND SECURITY AGREEMENT
MADE BY
HOCKING VALLEY MALL, LLC,
a Delaware limited liability company
("MORTGAGOR")
TO
GOLDEN AMERICAN LIFE INSURANCE COMPANY,
A DELAWARE CORPORATION ("MORTGAGEE")
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This Mortgage prepared by and
after recording return to:
Xxxxxx X. Xxxxxxx, Esquire
Xxxx Xxxxx LLP
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
TABLE OF CONTENTS
ARTICLE I REPRESENTATIONS AND WARRANTIES..........................................................................5
1.01. Organization and Qualification....................................................................5
1.02. Authority and Authorization of Mortgagor..........................................................5
1.03. Execution and Binding Effect......................................................................5
1.04. Authorizations and Filings........................................................................5
1.05. Absence of Conflicts..............................................................................5
1.06. Financial Condition...............................................................................6
1.07. Defaults..........................................................................................6
1.08. Litigation........................................................................................6
1.09. Subdivision; Separate Assessment; Zoning; Parking.................................................6
1.10. Streets; Access...................................................................................7
1.11. Utility Services..................................................................................7
1.12. Flood Area; Filled Land...........................................................................7
1.13. Title.............................................................................................7
1.14. Hazardous Substances..............................................................................7
1.15. Present Compliance with Laws......................................................................8
ARTICLE II COVENANTS AND AGREEMENTS OF MORTGAGOR..................................................................8
2.01. Payment of Secured Obligations....................................................................9
2.02. Maintenance; Repair; Alterations..................................................................9
2.03. Insurance.........................................................................................9
2.04. Delivery of Policies; Payment of Premiums........................................................11
2.05. Insurance Proceeds...............................................................................12
2.06. Assignment of Policies Upon Foreclosure..........................................................13
2.07. Indemnification; Subrogation; Waiver of Offset...................................................13
2.08. Taxes and Impositions............................................................................14
2.09. Utilities........................................................................................17
2.10. Actions Affecting Mortgaged Property.............................................................17
2.11. Actions by Mortgagee to Preserve Mortgaged Property..............................................17
2.12. Performance; Survival............................................................................17
2.13. Eminent Domain...................................................................................18
2.14. Inspections......................................................................................19
2.15. Liens............................................................................................19
2.16. Mortgagee's Powers...............................................................................19
2.17. Financial Statements; Annual Rent Roll...........................................................20
2.18. Mortgagor's Existence and Authorizations.........................................................20
2.19. Other Liens......................................................................................20
2.20. Change of Title..................................................................................20
2.21. Compliance with Laws; Etc........................................................................22
2.22. Environmental Indemnification....................................................................22
2.23. Prohibition on Dry Cleaning Establishment........................................................24
ARTICLE III ASSIGNMENT OF LEASES.................................................................................24
3.01 Assignment of Leases and Rents....................................................................24
3.02. Covenants as to Leases............................................................................24
ARTICLE IV SECURITY AGREEMENT...................................................................................24
4.01. Creation of Security Interest....................................................................25
4.02. Covenants Regarding Personal Property............................................................25
ARTICLE V EVENTS OF DEFAULT; REMEDIES...........................................................................26
5.01. Events of Default................................................................................26
5.02. Remedies.........................................................................................28
5.03. Application of Proceeds..........................................................................32
5.04. Right to Xxx Without Prejudice...................................................................32
5.05. Power to Modify Documents........................................................................32
5.06. Remedies Cumulative..............................................................................33
5.07. Waiver of Stay, Extension, Moratorium Laws; Equity of Redemption.................................33
ARTICLE VI MISCELLANEOUS........................................................................................33
6.01. Giving of Notice.................................................................................33
6.02. Governing Law....................................................................................35
6.03. Statements by Mortgagor..........................................................................35
6.04. Captions.........................................................................................35
6.05. Changes in Tax Law...............................................................................35
6.06. Further Assurances...............................................................................35
6.07. Amendments, Waivers, Etc.........................................................................36
6.08. No Implied Waiver................................................................................36
6.09. Expenses; Taxes; Attorneys' Fees.................................................................36
6.10. Jurisdiction; Etc................................................................................37
6.11. Interpretation...................................................................................37
6.12. Invalidity of Certain Provisions.................................................................37
6.13. Severability.....................................................................................38
6.14. Time of Essence; Duration; Survival..............................................................38
6.15. Successors and Assigns...........................................................................38
6.16. Subrogation......................................................................................38
6.17. Repayment after Acceleration; Prepayment.........................................................38
6.18. Advances.........................................................................................38
6.19 Limitation of Liability..........................................................................39
EXHIBIT "A" - Legal Description
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OPEN-END MORTGAGE AND SECURITY AGREEMENT
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MAXIMUM PRINCIPAL INDEBTEDNESS
NOT TO EXCEED $4,500,000.00
THIS OPEN-END MORTGAGE AND SECURITY AGREEMENT (this
"MORTGAGE"), dated as of the 17 day of January, 2002 by HOCKING VALLEY MALL,
LLC, a Delaware limited liability company (the "MORTGAGOR") having an address
c/o Glimcher Properties Corporation, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000
in favor of GOLDEN AMERICAN LIFE INSURANCE COMPANY, a Delaware corporation
having an address c/o ING Investment Management, 0000 Xxxxxx Xxxxx Xxxx, X.X.,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000 (the "MORTGAGEE").
W I T N E S S E T H:
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WHEREAS, Mortgagor has executed and delivered to Mortgagee its
$4,500,000.00 Mortgage Note of even date herewith ("the NOTE") wherein Mortgagor
promises to pay to Mortgagee the principal sum of FOUR MILLION FIVE HUNDRED
THOUSAND and No/100 DOLLARS ($4,500,000.00) in lawful money of the United States
of America (or so much thereof as shall have been disbursed by Mortgagee), with
interest thereon at the rate and times, in the manner and according to the terms
and conditions specified in the Note, all of which are incorporated herein by
reference.
NOW, THEREFORE, in consideration of the indebtedness described
above together with interest on such indebtedness, as well as the payment of all
other sums of money secured hereby, as hereinafter provided, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, and in order to secure:
(a) Payment of the indebtedness evidenced by the Note,
and any and all modifications, extensions and
renewals thereof, including indebtedness arising as a
result of advances made in the future, and all
interest provided for in the Note;
(b) Payment and performance of all obligations of
Mortgagor under any agreement made by Mortgagor or
between Mortgagor and Mortgagee related to the use of
the loan proceeds evidenced by the Note, and of each
agreement of Mortgagor incorporated by reference
therein or herein, or contained therein or herein;
(c) Payment and performance of all obligations of
Mortgagor under the Loan Documents (as hereinafter
defined);
(d) Payment of all sums advanced by Mortgagee in
accordance herewith to protect the Mortgaged Property
or Mortgagee's interests therein, with interest
thereon at the highest Default Rate specified in the
Note;
(e) Payment of all other sums, with interest thereon,
which may be now or hereafter loaned to Mortgagor, or
its successors or assigns on behalf of the Mortgaged
Property, by Mortgagee, and also any additional sums
not related to the loan which is evidenced by the
Note (the "LOAN"), when evidenced by a promissory
note or notes executed by Mortgagor reciting that
such sums are or are to be secured by this Mortgage;
and
(f) Payment and performance of all obligations and
agreements of Mortgagor contained herein or
incorporated herein by reference or evidencing or
securing the indebtedness secured hereby;
(all of the foregoing being hereinafter collectively referred to as the "SECURED
OBLIGATIONS"), Mortgagor does hereby grant, bargain, sell, convey, warrant,
assign, transfer, mortgage, pledge, grant a security interest in, set over and
confirm unto Mortgagee, its successors and assigns, all of Mortgagor's estate,
right, title, interest, property, claim and demand, now owned or held or
hereafter acquired or arising, in and to the following property and rights:
ALL that certain real property situate in the City of
Lancaster, County of Fairfield, State of Ohio and more particularly described in
EXHIBIT "A" attached hereto and made a part hereof (the "LAND");
TOGETHER WITH all leasehold estates of Mortgagor as lessor, if
any, and all right, title and interest of Mortgagor in and to all leases, if
any, covering the Land or any portion thereof now or hereafter existing or
entered into (collectively, "LEASES"), and all right, title and interest of
Mortgagor thereunder, including, without limitation, all cash or security
deposits, rentals, additional rentals, percentage rentals, advance rentals, and
deposits, maintenance payments or common area payments or payments of similar
nature (collectively, "LEASE RENTS");
TOGETHER WITH all interests, estate or other claims, both in
law and in equity, which Mortgagor now has or may hereafter acquire in the Land;
TOGETHER WITH any and all tenements, hereditaments and
appurtenances belonging to the Land or any part thereof or in any way
appertaining thereto, and all streets, alleys, passage ways, areas and
sidewalks, water courses, water rights and all leasehold estates, all easements,
rights of way and public places, and all strips and gores of land adjacent
thereto or used in connection therewith, rights of access or similar benefit now
existing or hereafter created for the benefit of the Land or the Mortgagor or
any subsequent owner or tenant of the Land over ground adjoining or adjacent to
the Land and all rights to enforce the maintenance thereof, and all other
rights, liberties and privileges of whatsoever kind or character, and all the
estate, right, title, interest, property, possession, claim and demand
whatsoever, at law or in equity, of Mortgagor in and to the Land or any part
thereof;
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TOGETHER WITH all right, title and interest of Mortgagor in
and to any and all buildings, structures and improvements now or hereafter
erected on the Land, together with all the fixtures, attachments, appliances,
equipment, machinery and other articles attached to said buildings and
improvements (the "IMPROVEMENTS");
TOGETHER WITH all right, title and interest of Mortgagor in
and to all tangible personal property (the "PERSONAL PROPERTY") now or hereafter
owned or leased by Mortgagor, as lessee, and now or at any time hereafter
located on or at the Land and necessary for or used or useful for operating the
Land for its current and intended uses, including, and not limited to: all
building supplies and equipment (including fire sprinklers and alarm systems,
office air conditioning, heating, electronic monitoring, window or structural
cleaning rigs, maintenance equipment for exclusion of vermin or insects, removal
of dust, refuse or garbage and all similar equipment of every kind) and all
floor coverings, window coverings, attached lighting fixtures and all insurance
proceeds related to the foregoing;
TOGETHER WITH all the estate, interest, right, title, other
claim or demand, including claims or demands with respect to the proceeds of
insurance in effect with respect thereto, which Mortgagor now has or may
hereinafter acquire in the Land, and any and all awards made for the taking by
eminent domain or condemnation, or by any proceeding or purchase in lieu
thereof, of the whole or any part of the Land, Improvements and Personal
Property, including, without limitation, any awards resulting from a change of
grade of streets and awards for severance damages; and
TOGETHER WITH all right, title and interest of Mortgagor in
and to all guarantees, and reserve accounts or escrows now or hereafter created
and the funds established thereby pursuant to this Mortgage and the Note;
TOGETHER WITH all the remainder or remainders, reversion or
reversions, rents, revenues, issues, profits, royalties, income and other
benefits derived from any of the foregoing, including the Lease Rents
(collectively, the "RENTS"), all of which are hereby assigned to Mortgagee, who
is hereby authorized to collect and receive the same, to give proper receipts
and acquittances therefor and to apply the same to the payment of the Secured
Obligations, notwithstanding the fact that the same may not then be due and
payable, subject, however, to the right of Mortgagor to receive and use the same
unless and until an Event of Default (as hereinafter defined) shall occur;
TOGETHER WITH all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or liquidated claims, including
all proceeds of the insurance required to be maintained by this Mortgage, all
awards or other compensation heretofore or hereafter made to Mortgagor as the
result of any Condemnation (as defined in Section 2.13), all awards for changes
of the grades of streets and all awards for severance damages, all of which are
hereby assigned to Mortgagee, who is hereby authorized to collect and receive
the proceeds thereof, to give proper receipts and acquittances therefor and,
subject to Sections 2.05 and 2.13,
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to apply the same to the payment of the Secured Obligations, notwithstanding the
fact that the same may not then be due and payable;
TOGETHER WITH any monies deposited with Mortgagee pursuant to
the terms hereof or of any other Loan Document and all proceeds thereof;
TOGETHER WITH all equipment, inventory, accounts, contract
rights, general intangibles, instruments, documents and chattel paper (as those
terms are defined in the Uniform Commercial Code) of Mortgagor; and
TOGETHER WITH all proceeds, both cash and non-cash, of any and
all of the foregoing.
All of the above mentioned Property, Improvements, Personal
Property, Rents, and the balance of the entire estate, property and interest
hereby conveyed to Mortgagee, is sometimes hereafter collectively referred to as
the "MORTGAGED PROPERTY".
This Mortgage, the Note, the Assignment of Leases and Rents
(as defined in Section 3.01), the Environmental Indemnification Agreement (as
defined in Section 2.22), that certain Borrower's Affidavit of even date
herewith given by Mortgagor to Mortgagee, that certain Lease Renewal Escrow
Agreement of even date herewith among Mortgagor, Mortgagee and Xxxxxxxx Xxxxxxxx
Xxxxxx X.X., as escrow agent, and any other instrument given to evidence or
further secure the payment and performance of any obligation secured hereby and
any guaranty thereof are sometimes hereinafter collectively referred to as the
"LOAN DOCUMENTS".
TO HAVE AND TO HOLD the Mortgaged Property hereby conveyed or
mentioned and intended so to be, unto Mortgagee, to its own use forever.
PROVIDED ALWAYS, NEVERTHELESS, and this Mortgage is upon the
express condition that, if Mortgagor pays to Mortgagee the principal sum
advanced pursuant to the Loan Documents, the interest thereon and all other sums
payable by Mortgagor to Mortgagee which constitute Secured Obligations, in
accordance with the provisions of the Loan Documents, at the times and in the
manner specified, without deduction, defalcation, fraud or delay, and Mortgagor
performs and complies with all the agreements, conditions, covenants, provisions
and stipulations contained herein and in the other Loan Documents, then this
Mortgage and the estate hereby granted shall cease and become void. Mortgagor
agrees to pay all costs, expenses and fees associated with the preparation,
execution, delivery and recording of a satisfaction or release of this Mortgage.
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ARTICLE I
REPRESENTATIONS AND WARRANTIES
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Mortgagor represents and warrants to Mortgagee, its successors
and assigns, as follows:
1.01. ORGANIZATION AND QUALIFICATION. (a) Mortgagor is duly
formed and validly existing as a limited liability company under the Laws (as
defined in Section 1.06) of the State of Delaware with a stated term beyond the
term of the Loan, is duly qualified to do business and is in good standing under
the Laws of the State of Ohio, and has full power to conduct its business as
presently conducted.
(b) Glimcher Properties Limited Partnership, the managing
member of Mortgagor, is duly formed and validly existing under the laws of the
State of Delaware with a term beyond the term of the Loan, is duly qualified to
do business and is in good standing under the laws of the State of Ohio and has
full power to conduct its business as presently conducted.
1.02. AUTHORITY AND AUTHORIZATION OF MORTGAGOR. Mortgagor has
full power and authority to own the Mortgaged Property, to execute and deliver
the Note, this Mortgage and the other Loan Documents and to perform its
obligations hereunder and under the Note and the other Loan Documents, and all
such action has been duly and validly authorized by all necessary partnership
action on its part.
1.03. EXECUTION AND BINDING EFFECT. This Mortgage, the Note
and the other Loan Documents to which Mortgagor is a party have been duly and
validly executed and delivered by Mortgagor and constitute legal, valid and
binding obligations of Mortgagor, enforceable in accordance with the terms
hereof and thereof.
1.04. AUTHORIZATIONS AND FILINGS. No authorization, consent,
approval, license, exemption or other action by, and no registration,
qualification, designation, declaration or filing with, any Governmental
Authority is or will be necessary or advisable in connection with the execution
and delivery of this Mortgage, the Note or the other Loan Documents,
consummation of the transactions herein or therein contemplated or performance
of or compliance with the terms and conditions hereof or thereof. As used herein
the term "GOVERNMENTAL AUTHORITY" means any government or political subdivision
or any agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
1.05. ABSENCE OF CONFLICTS. Neither the execution and delivery
of this Mortgage, the Note or the other Loan Documents nor consummation of the
transactions herein or therein contemplated nor performance of or compliance
with the terms and conditions hereof or thereof will (a) violate any Law, (b)
conflict with or result in a breach of or a default under the operating
agreement or the certificate of formation of Mortgagor, or any agreement or
instrument to which Mortgagor is a party or by which it or any of its properties
(now owned or hereafter acquired) may be subject or bound or (c) result in the
creation or imposition of any lien, charge, security
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interest or encumbrance upon any property (now owned or hereafter acquired) of
Mortgagor. As used herein, the term "LAW" means any law (including common law),
constitution, statute, treaty, regulation, rule, ordinance, order, injunction,
writ, decree or award of, or permit, approval or license granted by, any
Governmental Authority, including without limitation those relating to zoning,
subdivision, building, safety, fire protection, accessibility to, usability by
or discrimination against disabled individuals, or environmental matters.
1.06. FINANCIAL CONDITION. The financial statements of
Mortgagor heretofore furnished to Mortgagee were prepared in accordance with
generally accepted accounting principles consistently applied in the United
States and present fairly the financial condition at the respective dates
indicated therein and the results of operations and cash flows for the
respective periods indicated therein of Mortgagor. Since the dates of the most
recent of such financial statements for Mortgagor, there has been no material
adverse change in the business, operations, condition (financial or otherwise)
or prospects of Mortgagor from that reflected in such financial statements.
1.07. DEFAULTS. No Event of Default, nor any circumstance,
event or occurrence which, except for the passage of time or the giving of
notice or both would constitute an Event of Default (a "POTENTIAL DEFAULT"), has
occurred and is continuing or exists.
1.08. LITIGATION. There is no pending or (to Mortgagor's
knowledge after due inquiry) threatened proceeding by or before any Governmental
Authority against or affecting Mortgagor or the Mortgaged Property which if
adversely decided would have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of Mortgagor or on
the ability of Mortgagor to perform its obligations under the Loan Documents or
on the ownership or operation of the Improvements.
1.09. SUBDIVISION; SEPARATE ASSESSMENT; ZONING; PARKING. The
Land is comprised of two (2) entire tax parcels under applicable Laws regulating
subdivision and land development and may be leased, transferred or mortgaged
without the approval of any Governmental Authority having jurisdiction to
regulate or control subdivision or land development. The two entire tax parcels
comprising the Land are assessed separately from all other lands for purposes of
ad valorem taxation. All requirements of every Governmental Authority pertaining
to the Land and the Improvements, including without limitation zoning, have been
complied with. The Land is presently zoned "CH Zoning District", which
classification permits the present and intended use of the Land. No variances,
reliance on adjacent property or special exception is required for the
Improvements. If all or any part of the Improvements are damaged or destroyed,
the Improvements can, under presently applicable Laws, be legally reconstructed
to their condition prior to such damage or destruction, and thereafter exist
without violating any zoning or other ordinances presently applicable thereto
and without the necessity of obtaining any variances or other relief from local
Laws. Neither the zoning classification or any other right to construct, use or
operate any Improvements or the Land is in any way dependent upon or related to
any real estate other than the Land. The Land contains such parking spaces as
are required by applicable Law and by all Leases or subleases of the Land.
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1.10. STREETS; ACCESS. All streets necessary for the full
utilization of the Land for its intended purpose have been completed or the
necessary rights-of-way therefor acquired by or dedicated to the appropriate
Governmental Authority. The Land abuts upon a physically open, publicly
dedicated right of way known as Memorial Boulevard, Route 33, and Mortgagor, its
tenants and business visitors have direct, lawful, unobstructed, adequate and
unimpaired vehicular and pedestrian access to and from said right of way.
1.11. UTILITY SERVICES. All utility services necessary for the
ownership of the Improvements and the operation thereof for their intended
purpose are available at the boundaries of the Land, including water supply and
sanitary and storm sewer facilities and gas, electric and telephone facilities.
1.12. FLOOD AREA; FILLED LAND. Portions of the Land are
located within an area designated as Flood Zone AE and X, shown on U.S.
Department of H.U.D. Flood Insurance Boundary Map No. 390161 0003 D or special
flood hazard map published by the Federal Emergency Management Administration,
as shown on the ALTA/ACSM Land Title Survey dated January 3, 2002, prepared by
Xxxxx-XxXxxxxxx Surveying, Inc. No portion of the Land or the Improvements are
located on filled in land.
1.13. TITLE. Mortgagor (a) has good and marketable fee simple
title to the Land and the Improvements and has good title to all Personal
Property and other property and rights comprising the Mortgaged Property,
subject to no mortgage, lien, pledge, charge, security interest or other
encumbrance or adverse claim of any nature except Permitted Encumbrances (as
defined in this Section 1.13), and (b) has full power and lawful authority to
grant, bargain, sell, convey, warrant, assign, transfer, mortgage, pledge, grant
a security interest in, set over and confirm unto Mortgagee, and its successors
and assigns, the Mortgaged Property as herein provided. Mortgagor will forever
warrant and defend the title to the Mortgaged Property and the validity and
first priority of the lien or estate, and the security interest, created hereby
against the claims and demands of all persons whomsoever. As used herein the
term "PERMITTED ENCUMBRANCES" means the easements, rights of way and other
exceptions set forth in Schedule B of the title policy insuring the lien of this
Mortgage.
1.14. HAZARDOUS SUBSTANCES. To the best of Mortgagor's
knowledge after reasonable inquiry, and except as disclosed in the Phase I
Environmental Site Assessment dated January 4, 2002 prepared by Professional
Services Industries, Inc. and delivered to Mortgagee, the Mortgaged Property
does not contain any Hazardous Substances which, for purposes of this Section
1.14, shall mean and include: (i) those substances included within the
definition of "hazardous substances", "hazardous materials", "hazardous waste",
"pollutants", "toxic substances", or "solid waste" in any Environmental Law (as
hereinafter defined); (ii) those substances listed in the U.S. Department of
Transportation Table or amendments thereto (49 CFR 172.101) or by the U.S.
Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and any amendments thereto); (iii) those other
substances, materials and wastes which are or become regulated under any
applicable Environmental Law, or which are or become classified as hazardous or
toxic by any such
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Environmental Law; and (iv) any material waste or substance which is any of the
following: (1) asbestos; (2) poly-chlorinated biphenyl; (3) designated or listed
as a "hazardous substance" pursuant to Section 311 or Section 307 of the Clean
Water Act (33 U.S.C. Section 1251 ET SEQ.); (4) explosive; (5) radioactive; (6)
a petroleum product; or (7) infectious waste. Notwithstanding anything to the
contrary herein, the term "Hazardous Substance" shall not include commercially
sold products otherwise within the definition of the term "Hazardous Substance",
but (A) which are used or disposed of by Mortgagor or used or sold by tenants of
the Mortgaged Property in the ordinary course of their respective business, (B)
the presence of which product is not prohibited by applicable Environmental Law,
and (C) the use and disposal of which are in all respects in accordance with
applicable Environmental Law.
For purposes of this Section 1.14, the term "Environmental Law" shall mean and
include any federal, state or local law, statute, regulation or ordinance
pertaining to health, industrial hygiene or the environmental or ecological
conditions on, under or about the Premises, including without limitation each of
the following and their respective successor amendments or provisions: the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601 ET SEQ. ("CERCLA"); the Resource Conservation
and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901 ET SEQ. ("RCRA");
the Federal Hazardous Materials Transportation Act, as amended, 49 U.S.C.
Section 1801 ET SEQ.; the Toxic Substance Control Act, as amended, 15 U.S.C.
Section 2601 ET SEQ.; the Clean Air Act, as amended, 42 U.S.C. Section 1857 ET
SEQ.; the Federal Water Pollution Control Act, as amended, 42 U.S.C. Section
1251 ET SEQ.; and the rules, regulations and ordinances of the United States
Environmental Protection Agency and of all other federal, state, county and
municipal agencies, boards, commissions and other governmental bodies and
officers having jurisdiction over the Mortgaged Property or the use of operation
of the Mortgaged Property. Mortgagor has not received, handled, used, stored,
treated, shipped or disposed of any Hazardous Substances. No release or
threatened release of Hazardous Substances has occurred on or in the Mortgaged
Property. There is no civil, criminal or administrative action, suit, demand,
claim, hearing, lien, notice or demand letter, notice of violation,
investigation or proceeding pending or threatened with respect to the condition,
use or occupancy of the Mortgaged Property which relates to Hazardous Substances
or any Environmental Law referred to in this Section 1.14.
1.15. PRESENT COMPLIANCE WITH LAWS. To the best of Mortgagor's
knowledge, the Mortgaged Property and Mortgagor's operations at the Mortgaged
Property are in compliance with all applicable Laws and private covenants.
Neither Mortgagor nor any agent of Mortgagor has received any notification from
any Governmental Authority claiming that there has been any violation of any Law
applicable to the Mortgaged Property or Mortgagor's operations at the Mortgaged
Property or requiring compliance with any such Law.
ARTICLE II
COVENANTS AND AGREEMENTS OF MORTGAGOR
-------------------------------------
Mortgagor hereby covenants and agrees, for itself and its
successors and assigns:
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2.01. PAYMENT OF SECURED OBLIGATIONS. To pay when due the
principal of, and the interest on, the indebtedness evidenced by the Note, and
the charges, fees and all other sums as provided in the Loan Documents, and all
principal of and interest on any future advance secured hereby, and all other
amounts constituting Secured Obligations.
2.02. MAINTENANCE; REPAIR; ALTERATIONS. To keep or cause to be
kept the Mortgaged Property in good condition and in a rentable and tenantable
state of repair; to make or cause to be made, as and when necessary, all
repairs, renewals and replacements, structural and non-structural, exterior and
interior, ordinary and extraordinary, foreseen and unforeseen; to not remove,
demolish or substantially alter (except such alterations as may be required by
Laws or as otherwise expressly permitted hereby) any of the Improvements; to
promptly restore or complete, in good and workmanlike manner and in compliance
with all Laws, private covenants and insurance requirements, any Improvements
and or Personal Property which may be damaged or destroyed by casualty (whether
or not insured against or insurable) or by any Condemnation, with Improvements
or Personal Property of equivalent value and utility, whether or not the
proceeds of insurance required hereunder or the award payable in respect of such
Condemnation are sufficient for the purpose or are available to Mortgagor
pursuant to Sections 2.05 or 2.13 for such purpose, and to promptly pay when due
all claims for labor performed and materials furnished therefor; to comply with
all Laws, covenants, conditions and restrictions now or hereafter affecting the
Mortgaged Property or any part thereof or requiring any alterations or
improvements, whether foreseen or unforeseen, including but not limited to those
relating to environmental Laws and Laws relating to accessibility to, usability
by and discrimination against disabled individuals; not to commit or permit any
waste or deterioration of the Mortgaged Property (ordinary wear and tear
excepted); to keep and maintain abutting grounds, sidewalks, roads, parking and
landscape areas in good and neat order and repair; to comply with the provisions
of any Lease; not to commit, suffer or permit any act to be done in or upon the
Mortgaged Property in violation of any Law; and not to permit the Mortgaged
Property to become abandoned or unguarded.
2.03. INSURANCE. To at all times provide, maintain and keep in
force the following insurance coverage with respect to the Mortgaged Property:
(a) Insurance against loss or damage to the
Improvements by fire, lightning, windstorm, explosion, riot, riot attending a
strike, civil commotion, aircraft and vehicles, smoke and such other hazards as
are covered by insurance of the type now known as "fire and extended coverage",
vandalism, malicious mischief and such other hazards as are covered by so-called
"all risk to physical loss" insurance, and such other insurable hazards as,
under good insurance practices, from time to time are insured against for
improvements and personal property having similar functions and uses in the area
where the Improvements and Personal Property are located, in an amount not less
than (i) the full replacement cost of the Improvements and Personal Property
without deduction for physical depreciation, including the cost of debris
removal (exclusive of the cost of excavations, foundations and footings below
the lowest basement floor), or (ii) the amount necessary to avoid Mortgagor
being or becoming a co-insurer with Mortgagee under the terms of the applicable
policies or by applicable Law, but in any event not less than $4,500,000.00 and
with not more than $5,000 deductible from the loss
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payable for any casualty. All insurable buildings and personal property or
easily removable real estate items or fixtures encumbered by this Mortgage must
be adequately insured pursuant to this Section 2.03(a). The policies of
insurance carried in accordance with this subparagraph (a) shall provide for an
annual review to ascertain, among other things, the then pertaining "replacement
cost endorsement";
(b) Comprehensive general liability insurance
(including coverage for elevators and escalators, if any, on the Mortgaged
Property and, if any completion or construction of new Improvements occurs after
execution of this Mortgage, completed operations coverage for two years after
construction of all Improvements has been completed) on an "occurrence basis"
against claims for "personal injury", including without limitation bodily
injury, death or property damage occurring on, in or about the Land and the
adjoining streets, sidewalks and passageways, such insurance to be in a minimum
amount of $3,000,000 per person and $3,000,000 per occurrence, together with
excess or umbrella liability in the minimum amount of $3,000,000 naming
Mortgagee as additional insured and with not more than $5,000 deductible from
the loss payable for any such occurrence;
(c) Worker's compensation insurance (including
employer's liability insurance, if requested by Mortgagee) for all employees of
Mortgagor engaged on or with respect to the Mortgaged Property in such amount as
is reasonably satisfactory to Mortgagee, or, if such limits are established by
law, in such amounts;
(d) During the course of any repair of Improvements on
the Land at a cost in excess of $100,000, builder's completed value risk
insurance against "all risks of physical loss", including work in place,
collapse and transit coverage, during construction of such Improvements, with
deductibles not to exceed $5,000, in non-reporting form, covering the total
value of work performed and equipment, supplies and materials furnished. Said
policy of insurance shall contain the "permission to occupy upon completion of
work or occupancy" endorsement;
(e) To the extent applicable, as determined by
Mortgagee, boiler and machinery insurance covering pressure vessels, air tanks,
boilers, machinery, pressure piping, heating, air conditioning and elevator
equipment and escalator equipment, provided the Improvements contain equipment
of such nature, and insurance against loss of occupancy or use arising from any
such breakdown, in such amounts as are from time to time satisfactory to
Mortgagee;
(f) If the Land is in an area designated as a special
flood hazard area by the Federal Emergency Management Agency, such flood
insurance as is available and reasonably acceptable to Mortgagee;
(g) Insurance against loss of "rental value" sufficient
to cover actual loss sustained in an amount not less than twelve (12) months of
rent payments for the Mortgaged Property; and
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(h) Such other insurance, and in such amounts, as may
from time to time be reasonably required by Mortgagee against the same or other
hazards which may now or hereafter arise.
2.04. DELIVERY OF POLICIES; PAYMENT OF PREMIUMS. That all
policies of insurance required hereby shall be issued by companies and in
amounts in each company satisfactory to Mortgagee:
(a) All policies of insurance required by the terms of
this Mortgage shall contain an endorsement or agreement by the insurer that any
loss shall be payable in accordance with the terms of such policy
notwithstanding any act or negligence of Mortgagor which might otherwise result
in forfeiture of said insurance and the further agreement of the insurer waiving
all rights of set off, counterclaim or deductions against Mortgagor. All
policies of insurance shall be subject to the approval of Mortgagee as to
insurance companies, amounts, expiration dates, form and content and shall name
Mortgagee as an additional insured. In furtherance and not in limitation of the
foregoing, all such policies must have no less than an A.M. Best Company's Key
Rating Guide Class A-VII category designation, and are to be obtained by
Mortgagor and held by Mortgagee's correspondent, Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.,
or such other person as may be from time to time designated by Mortgagee. All
policies of insurance maintained by Mortgagor pursuant to clauses (a) and (d) of
Section 2.03 shall contain the "replacement cost endorsement". All policies of
insurance covering risks of physical loss shall provide the losses thereunder
shall be payable to Mortgagee pursuant to a standard first mortgagee
endorsement, without contribution, substantially equivalent to the New York
Standard Mortgage Endorsement. At least thirty (30) days prior to the expiration
of any policy of insurance, Mortgagor shall furnish Mortgagee with evidence
satisfactory to Mortgagee of the payment of the premium for, and the reissuance
of a policy continuing, such insurance is required by this Mortgage. All
policies of insurance shall contain a waiver by the insurer of all rights of
subrogation to any rights of Mortgagee and all rights of set-off, counterclaim
or deduction against the insureds. All policies of insurance shall also contain
a provision to the effect that any cancellation of or amendment to such
insurance, including any reduction in the scope or limits of coverage, shall not
be effective as to Mortgagee without at least thirty (30) days' prior written
notice to Mortgagee. Mortgagor shall not take out separate insurance with
respect to the Mortgaged Property concurrent in form or contributing in the
event of loss with that required by this Mortgage unless the same shall contain
a standard non-contributory lender's loss payable endorsement in favor of and in
scope and form satisfactory to Mortgagee. The policy shall not carry a
co-insurance clause or other clause limiting the amount of coverage under any
conditions.
(b) In the event Mortgagor fails to provide, maintain,
keep in force or deliver and furnish to Mortgagee the policies of insurance
required by Section 2.03 and by this Section 2.04, Mortgagee may procure such
insurance or single-interest insurance for such risks covering Mortgagee's
interest, and Mortgagor will pay all premiums thereon promptly upon demand by
Mortgagee, and until such payment is made by Mortgagor the amount of all such
premiums together with interest thereon at the Default Rate set forth in the
Note shall be evidenced by the Note, shall be immediately due and payable and
shall be secured by this Mortgage.
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(c) Mortgagor shall pay to Mortgagee on the day monthly
installments of principal and interest are due under the Note, until the Note is
paid in full, an amount equal to one-twelfth (1/12th) of the estimated aggregate
annual insurance premiums on all policies of insurance required by this
Mortgage. Such sums shall be held in escrow by Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.,
or such other person as may be from time to time designated by Mortgagee.
Mortgagor further agrees, upon Mortgagee's request, to cause all bills,
statements or other documents relating to the foregoing insurance premiums to be
sent or mailed directly to Mortgagee at least thirty (30) days prior to the
expiration or termination date thereof. Upon receipt of such bills, statements
or other documents, and provided Mortgagor has deposited sufficient funds with
Mortgagee pursuant to this Section 2.04, Mortgagee shall pay such amounts as may
be due thereunder out of the funds so deposited with Mortgagee. If at any time
and for any reason the funds deposited with Mortgagee are or will be
insufficient to pay such amounts as may then or subsequently be due, Mortgagee
shall notify Mortgagor and Mortgagor shall immediately deposit an amount equal
to such deficiency with Mortgagee. Funds deposited with Mortgagee pursuant to
this Section 2.04 in an account or accounts designated for such deposits may be
commingled by Mortgagee with similar deposits by other mortgagors and, to the
extent permitted by applicable Law, shall not bear interest.
2.05. INSURANCE PROCEEDS. That after the happening of any
casualty to the Mortgaged Property or any part thereof, Mortgagor shall give
prompt written notice thereof to Mortgagee.
(a) In the event of fire or other casualty during the
term of the Note, then the proceeds of any insurance policies carried by
Mortgagor shall be paid over to Mortgagee, and may be used at the sole, absolute
and exclusive option of Mortgagee toward repayment of the Loan or to restore or
repair the damaged Mortgaged Property. In the event Mortgagee elects to make
such funds available for repair or restoration of the Mortgaged Property, then
such funds shall be disbursed under disbursement procedures determined by
Mortgagee and in accordance with Mortgagee's customary construction loan
practices, including, without limitation, Mortgagee's holding of all funds in a
construction account for disbursement upon appropriate certification and
Mortgagee's right of prior approval of plans, contracts and costs; provided,
however, that if such casualty results in the payment of proceeds in an amount
not exceeding $200,000 and so long as no Event of Default or Potential Default
has occurred and is continuing, such proceeds shall be made available to
Mortgagor upon the complete restoration of the Mortgaged Property. Prior to the
release of such funds, Mortgagor shall: (i) complete all work necessary to
restore the Mortgaged Property substantially to its condition immediately prior
to the casualty; (ii) provide evidence satisfactory to Mortgagee of adequate
insurance coverage for such restoration and repair work; (iii) furnish Mortgagee
with executed lien waivers; (iv) obtain an endorsement to the mortgagee policy
of title insurance in form and substance acceptable to Mortgagee; and (v)
furnish Mortgagee with executed estoppels from major tenants of the Mortgaged
Property evidencing no default or right of offset resulting from the casualty,
affirming that the subject lease is in full force and effect and addressing such
other matters as Mortgagee may specify. If no restoration or repair is required,
and under all circumstances to the extent not used for restoration or repair,
the proceeds of such insurance shall, at the sole option of
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Mortgagee, be applied by Mortgagee in reduction of the principal balance of the
Note, without penalty, and not toward any restoration or repair.
(b) Nothing herein contained shall be deemed to excuse
Mortgagor from repairing or maintaining the Mortgaged Property as provided in
Section 2.02 hereof or restoring all damage or destruction of the Mortgaged
Property, regardless of whether or not there are insurance proceeds available or
whether any such proceeds are sufficient in amount, and the application or
release by Mortgagee of any insurance proceeds shall not cure or waive any
default or notice of default under this Mortgage or invalidate any act done
pursuant to such notice.
2.06. ASSIGNMENT OF POLICIES UPON FORECLOSURE. That in the
event of foreclosure of this Mortgage or other transfer of title or assignment
of the Mortgaged Property in extinguishment, in whole or in part, of the debt
secured hereby, all right, title and interest of Mortgagor in and to all
policies of insurance required by this Mortgage shall and must inure to the
benefit of and pass to the successor in interest to Mortgagor or the purchaser
or grantee of the Mortgaged Property.
2.07. INDEMNIFICATION; SUBROGATION; WAIVER OF OFFSET.
(a) That in the event Mortgagee is made a party
defendant to any litigation concerning this Mortgage or the Mortgaged Property
or any part thereof or therein, or in the occupancy thereof by Mortgagor or
persons claiming through the Mortgagor, then Mortgagor shall indemnify, defend
and hold Mortgagee harmless from all liability by reason of said litigation,
including reasonable attorneys' fees and expenses incurred by Mortgagee in any
such litigation, whether or not any such litigation is prosecuted to judgment.
If Mortgagee commences an action against Mortgagor to enforce any of the terms
hereof or because of the breach by Mortgagor of any of the terms hereof, or for
the recovery of any sum secured hereby, Mortgagor shall pay to Mortgagee
reasonable attorneys' fees and expenses, and the right to such reasonable
attorneys' fees and expenses shall be deemed to have accrued on the commencement
of such action, and shall be enforceable whether or not such action is
prosecuted to judgment. If Mortgagor breaches any term of this Mortgage,
Mortgagee may employ an attorney or attorneys to protect its rights hereunder,
and in the event of such employment following any breach by Mortgagor, Mortgagor
shall pay Mortgagee attorneys' fees and all other expenses incurred by
Mortgagee, whether or not an action is actually commenced against Mortgagor by
reason of breach.
(b) To waive any and all right to claim or recover
against Mortgagee, its officers, employees, agents and representatives, for loss
of or damage to Mortgagor, the Mortgaged Property, Mortgagor's property or the
property of others under Mortgagor's control from any cause whatsoever.
(c) That all sums payable by Mortgagor hereunder shall
be paid without notice, demand, counterclaim, setoff, deduction or defense and
without abatement, suspension, deferment, diminution or reduction, and the
obligations and liabilities of Mortgagor hereunder shall in no way be released,
discharged or otherwise affected by reason of: (i) any damage to or
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destruction of or any condemnation or similar taking of the Mortgaged Property
or any part thereof; (ii) any restriction or prevention of or interference with
any use of the Mortgaged Property or any part thereof; (iii) any title defect or
encumbrance or any eviction from the Land or the Improvements or any part
thereof by title paramount or otherwise; (iv) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to Mortgagor, or any action taken with respect to this
Mortgage by any trustee or receiver of Mortgagor, or by any court, in any such
proceeding; (v) any claim which Mortgagor has or might have against Mortgagee;
(vi) any default or failure on the part of Mortgagee to perform or comply with
any of the terms hereof or of any other agreement with Mortgagor; or (vii) any
other occurrence whatsoever, whether similar or dissimilar to the foregoing;
whether or not Mortgagor shall have notice or knowledge of any of the foregoing.
Mortgagor waives all rights now or hereafter conferred by statute or otherwise
to any abatement, suspension, deferment, diminution or reduction of any sum
secured hereby and payable by Mortgagor.
2.08. TAXES AND IMPOSITIONS.
(a) Subject to the provisions of clause (d) of this
Section 2.08, to pay all real property taxes and assessments, general and
special, and all other taxes and assessments or payments in lieu of taxes of any
kind or nature whatsoever, including without limitation non-governmental levies
or assessments such as maintenance charges, owner association dues or charges or
fees, levies or charges resulting from covenants, together with any other charge
or similar payment which create, may create or appear to create or could create
a lien upon the Mortgaged Property or the Improvements, or any part thereof, or
upon any Personal Property, equipment or other facilities used in the operation
or maintenance thereof (all of which taxes, assessments and other governmental
and non-governmental charges of like nature are hereinafter referred to as
"IMPOSITIONS"); provided, however, that so long as no Event of Default or
Potential Default has occurred and is continuing, if, by law, any such
Imposition is payable, or at the option of the taxpayer may be legally paid, in
installments without delinquency, interest or penalty, Mortgagor may pay the
same together with any accrued interest on the unpaid balance of such Imposition
in installments as the same become due and before any fine, penalty, interest or
cost may be added thereto for the nonpayment of any such installment and
interest.
(b) Subject to the provisions of clause (d) of this
Section 2.08, that if at any time after the date hereof there shall be assessed
or imposed by any Law now or hereafter enacted (i) a tax or assessment on the
Mortgaged Property in lieu of or in addition to the Impositions payable by
Mortgagor pursuant to clause (a) of this Section 2.08, or (ii) a license fee,
mercantile, business privilege or any other tax or assessment on Mortgagee and
measured by or based in whole or in part upon the amount of the outstanding
obligations secured hereby, (all such taxes, assessments or fees shall be deemed
to be included within the term "IMPOSITIONS" as defined in clause (a) of this
Section 2.08), and Mortgagor shall fail to pay and discharge the same as herein
provided with respect to the payment of Impositions then, at the option of
Mortgagee, and with or without notice to Mortgagor, Mortgagee may pay same, and
all such obligations shall be secured hereby and, together with all accrued
interest thereon, shall immediately become due and payable. Anything to the
contrary herein notwithstanding, Mortgagor shall have no
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obligation to pay any income, excess profits or similar tax based on and
measured by net profits or gross profits levied on Mortgagee or on the
obligations secured hereby.
(c) Subject to the provisions of clause (d) of this
Section 2.08, to furnish Mortgagee at least 15 days prior to the date upon which
any penalty or interest may be payable by Mortgagor, official receipts of the
appropriate taxing authority, or other proof satisfactory to Mortgagee,
evidencing the payments thereof.
(d) That, so long as no Event of Default or Potential
Default has occurred and is continuing, Mortgagor shall have the right before
any delinquency occurs to contest or object to the amount or validity of any
such Imposition by appropriate legal proceedings, but this shall not be deemed
or construed in any way as relieving, modifying or extending Mortgagor's
covenant to pay any such Imposition at the time and in the manner provided in
this Section 2.08, unless, at Mortgagee's sole option, Mortgagor: (i) shall
immediately demonstrate to Mortgagee's satisfaction that the legal proceedings
shall operate conclusively to prevent the sale of the Mortgaged Property, or any
part thereof, and to satisfy such Imposition prior to final determination of
such proceedings; or (ii) shall furnish a good and sufficient bond or surety as
requested by and satisfactory to Mortgagee, or another good and sufficient
undertaking acceptable to Mortgagee as may be required or permitted by law to
accomplish a stay of such proceedings. Mortgagee shall, in its sole discretion,
determine whether Mortgagor has satisfied the conditions of this Section.
(e) Mortgagor shall pay to Mortgagee on the day that
monthly installments of principal and interest are payable under the Note, until
the Secured Obligations are paid in full, an amount equal to one-twelfth
(1/12th) of the annual Impositions reasonably estimated by Mortgagee to pay the
installment of taxes and assessments next due on the Mortgaged Property as
provided for in the Note. Such sums shall be held in escrow by Xxxxxxxx Xxxxxxxx
Xxxxxx, X.X., or such other person as may be from time to time designated by
Mortgagee. Mortgagor further agrees in such event to cause all bills, statements
or other documents relating to Impositions to be sent or mailed directly to
Mortgagee unless Mortgagee notifies Mortgagor in writing to the contrary. Upon
receipt of such bills, statements or other documents, and providing Mortgagor
has deposited sufficient funds with Mortgagee pursuant to this Section 2.08,
Mortgagee shall pay such amounts as may be due thereunder out of the funds so
deposited with Mortgagee. If at any time and for any reason the funds deposited
with Mortgagee are or will be insufficient to pay such amounts as may then or
subsequently be due, Mortgagee shall notify Mortgagor and Mortgagor shall
immediately deposit an amount equal to such deficiency with Mortgagee. Should
Mortgagor at any time fail to deposit with Mortgagee (exclusive of that portion
of said payments which has been applied by Mortgagee on account of the principal
of or interest on the indebtedness secured by the Loan Documents) sums which
together with sums to be deposited herewith monthly will be sufficient to fully
pay such Impositions at least thirty (30) days before delinquency thereof,
Mortgagee may, at Mortgagee's election, but without any obligation so to do,
advance any amounts required to make up the deficiency, which advances, if any,
shall be secured hereby and shall be repayable to Mortgagee as herein elsewhere
provided. Should any default occur or exist on the part of Mortgagor in the
payment or performance of any of Mortgagor's obligations under the terms of the
Loan
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Documents, Mortgagee may, at any time and at Mortgagee's option, apply any sums
or amounts held by Mortgagee, including any interest earned thereon, to the
payment of any indebtedness or obligation of the Mortgagor secured hereby in
such manner and order as Mortgagee may elect. The receipt, use or application of
any such sums paid by Mortgagor to Mortgagee hereunder shall not be construed to
affect the maturity of any of the Secured Obligations or any of the rights or
powers of Mortgagee under the terms of the Loan Documents or any of the
obligations of Mortgagor under any Loan Document. Funds deposited with Mortgagee
pursuant to this Section 2.08 in an account or accounts designated for such
deposits may be commingled by Mortgagee with similar deposits by other
mortgagors, and, to the extent permitted by applicable law, shall not bear
interest.
(f) Mortgagor covenants and agrees, to the extent
permitted by law, not to suffer, permit or initiate the joint assessment of the
real and personal property, or any other procedure whereby the lien of real
property taxes and the lien of personal property taxes shall be assessed, levied
or charged to the Mortgaged Property as a single lien, nor shall the real
property be assessed with any other real property which is not subject to the
lien of this Mortgage.
(g) That if Mortgagor or any assign, successor or
grantee of Mortgagor is or shall be or become a corporation or a limited or
general partnership, it shall keep in effect its existence and rights as such
corporation or partnership under the Laws of the state of its incorporation or
formation and its right to own property and transact business in the state in
which the Mortgaged Property is situated during the entire time that it has any
ownership or other interest in the Mortgaged Property. For all periods during
which the title to the Mortgaged Property or any part thereof shall be held by a
corporation or other entity subject to corporate taxes or taxes similar to
corporate taxes, Mortgagor shall file or cause to be filed returns for such
taxes with the proper authorities, bureaus or department and shall cause to be
paid, when due and before interest or penalties are due thereon, all taxes
payable by such corporation or other entity to the United States, to such state
of incorporation or formation and to the state in which the Mortgaged Property
is situated and any political subdivision thereof, and shall produce to
Mortgagee receipts showing payment of any and all such taxes, charges or
assessments prior to the last dates upon which such taxes, charges or
assessments are payable without interest or penalty charges; provided, however,
that Mortgagor shall have the right before any delinquency occurs to contest or
object to the amount or validity of any such taxes, charges or assessment in
good faith and by appropriate legal proceedings, but this shall not be deemed or
construed in any way as relieving, modifying or extending Mortgagor's obligation
to pay any such taxes, charges or assessments at the time such contest,
objection and legal proceedings have been terminated or discontinued adversely
to Mortgagor. Within ten (10) days of receipt thereof, Mortgagor shall produce
to Mortgagee all settlements, notices of deficiency or overassessment and any
other notices pertaining to Mortgagor's tax liability, which may be issued by
the United States, the state in which the Mortgaged Property is situated and any
political subdivision thereof. If at any time the United States or any
department or bureau thereof shall require Internal Revenue stamps on the Note
secured hereby, Mortgagor on demand shall pay for them with any interest or
penalties payable thereon.
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2.09. UTILITIES. To pay when due all utility charges which are
incurred by Mortgagor for the benefit of the Mortgaged Property or which may
become a charge or lien against the Mortgaged Property for gas, telephone,
electricity, electronic equipment, water or sewer services furnished to the
Mortgaged Property and all other assessments or charges of a similar nature,
whether public or private, the Mortgaged Property or any portion thereof,
whether or not such taxes, assessments or charges are liens thereon.
2.10. ACTIONS AFFECTING MORTGAGED PROPERTY. To appear in and
contest any action or proceeding purporting to affect the security hereof or the
rights or powers of Mortgagee and to pay all costs and expenses, including cost
of evidence of title and attorneys' fees, in any such action or proceeding in
which Mortgagee may appear.
2.11. ACTIONS BY MORTGAGEE TO PRESERVE MORTGAGED PROPERTY.
That should Mortgagor fail to make any payment or to do any act as and in the
manner provided in any of the Loan Documents, Mortgagee, in its own discretion,
without obligation so to do and immediately upon giving notice to Mortgagor but
without demand upon Mortgagor and without releasing Mortgagor from any
obligation, may make or do the same in such manner and to such extent as
Mortgagee may deem necessary to protect the security hereof. In connection
therewith (without limiting its general powers), Mortgagee shall have and is
hereby given the right, but not the obligation: (i) to enter upon and take
possession of the Mortgaged Property; (ii) to make additions, alterations,
repairs and improvements to the Mortgaged Property which it may consider
necessary or proper to keep the Mortgaged Property in good condition and repair;
(iii) to appear and participate in any action or proceeding affecting or which
may affect the security hereof or the rights or powers of Mortgagee; (iv) to
pay, purchase, contest or compromise any encumbrance, claim, charge, lien,
Imposition or debt which in the sound judgment of Mortgagee may adversely affect
or appears to affect the security of this Mortgage or be prior or superior
hereto in lien, payment or priority; and (v) in exercising such powers, to pay
necessary expenses, including fees and charges of counsel or other necessary or
desirable consultants. Immediately upon demand therefor by Mortgagee, Mortgagor
shall pay all costs and expenses incurred by Mortgagee in connection with the
exercise by Mortgagee of the foregoing rights, with interest at the Default Rate
including without limitation costs of evidence of title, court costs,
appraisals, surveys and reasonable attorneys' fees.
2.12. PERFORMANCE; SURVIVAL. To fully and faithfully satisfy
and perform the obligations of Mortgagor contained in the Loan Documents, and
each agreement of Mortgagor incorporated by reference therein or herein, and any
modification or amendment thereof. All representations, warranties and covenants
of Mortgagor contained therein or incorporated by reference shall survive the
closing and funding of the Loan and shall remain continuing obligations,
warranties and representations of Mortgagor during any time when any portion of
the Secured Obligations remain outstanding.
2.13. EMINENT DOMAIN. Should the Mortgaged Property, or any
material part thereof or interest therein, be taken or damaged by reason of any
public improvement or other eminent domain proceeding, or in any other manner
("CONDEMNATION") and the Mortgaged Property cannot be used thereafter for its
intended purposes, or should Mortgagor receive any
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notice or other information regarding such proceeding, Mortgagor shall give
prompt written notice thereof to Mortgagee and the following provisions shall
apply:
(a) Mortgagee shall be entitled to all compensation for
property taken or for damage to property not taken, awards and other payments or
relief therefor whether as a result of such proceedings or in lieu thereof made
to Mortgagor, to the extent of the outstanding principal sum under the Note,
together with interest due to the date of payment and all other amounts
constituting Secured Obligations, and shall be entitled at its option to
commence, appear in and prosecute in its own name any action or proceedings.
Mortgagee also shall be entitled to make any compromise or settlement in
connection with such condemnation or damage. All such compensation, awards,
damages, rights of action and proceeds awarded to Mortgagor (the "PROCEEDS") are
hereby assigned by Mortgagor to Mortgagee and the same shall be received and
collected by Mortgagee, and Mortgagor agrees to execute such further assignments
of the Proceeds and other instruments as Mortgagee may require. Such assignment
shall not relieve Mortgagor of its obligations to continue to pay and perform
the Secured Obligations or such portion thereof as remains unpaid after any
application by Mortgagee pursuant to this Section 2.13 of the Proceeds to the
Secured Obligations.
(b) In the event any lesser portion of the Mortgaged
Property is so taken or damaged and there shall be no existing Event of Default
or Potential Default, after deducting therefrom all costs and expenses
(regardless of the particular nature thereof and whether incurred with or
without suit), including attorneys' fees, incurred by it in connection with such
Proceeds, Mortgagee may, at the option of Mortgagee, apply such Proceeds, after
such deductions, to either the restoration of the Mortgaged Property not taken
or condemned or to the Secured Obligations in such order as Mortgagee shall in
its sole discretion determine. In either event, the Mortgaged Property must then
be restored by Mortgagor to the use existing immediately prior to such taking or
condemnation, and the utility, value, condition and character of the Mortgaged
Property, as restored, must be at least equal to the value and utility and
substantially similar to the condition and character as existed immediately
prior to such taking or condemnation. Should Mortgagee elect to make the
Proceeds available to Mortgagor for such restoration, the application of such
Proceeds shall be subject to the same conditions as set forth in Section 2.05
hereof. To the extent such Proceeds are insufficient for such restoration, any
deficiency must be deposited by Mortgagor with Mortgagee and expended prior to
the Proceeds. Such application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to such notice.
(c) In the event Mortgagee elects to rebuild as
permitted by Section 2.05 and this Section 2.13, Mortgagor shall promptly obtain
all required municipal approvals. If such approvals are not obtained within six
(6) months following receipt of the insurance or condemnation proceeds, as the
case may be, by reason of failure to satisfy zoning, subdivision or
environmental Laws, such failure shall constitute an Event of Default hereunder.
2.14. INSPECTIONS. That Mortgagee, or its agents,
representatives or workers, are authorized to enter at any reasonable time or at
any time in the event of an emergency upon or in
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any part of the Mortgaged Property for the purpose of inspecting the same and
for the purpose of performing any of the acts it is authorized to perform under
the terms of the Loan Documents.
2.15. LIENS. That prior to the commencement of any
construction or other improvements or similar work on the Mortgaged Property, to
file or cause to be filed waivers of mechanics' liens in form and substance
satisfactory to Mortgagee and to pay and promptly discharge, at Mortgagor's cost
and expense, all liens, encumbrances and charges upon the Mortgaged Property, or
any part thereof or interest therein. So long as there exists no Event of
Default or Potential Default, and so long as neither Mortgagor or its successors
or assigns, nor Mortgagee, or any of its officers, directors, employees or
agents could thereby be subject to any civil or criminal liability, Mortgagor
shall have the right to contest in good faith the validity of any such lien,
encumbrance or charge, provided Mortgagor shall first deposit with Mortgagee a
bond or other security satisfactory to Mortgagee in such amounts as Mortgagee
shall require, plus costs, expenses, including attorneys' fees and interest, and
provided further that Mortgagor shall thereafter diligently proceed to cause
such lien, encumbrance or charge to be removed and discharged. If Mortgagor
shall fail to discharge any such lien, encumbrance or charge, or provide such
security, then, in addition to any other right or remedy of Mortgagee, Mortgagee
may, but shall not be obligated to, discharge the same, either by paying the
amount claimed to be due, or by procuring the discharge of such lien by
depositing in court a bond for the amount claimed or otherwise giving security
for such claim, or in such manner as is or may be prescribed by law and all
funds advanced by Mortgagee to pay such obligations, liabilities, costs and
expenses shall be reimbursed by Mortgagor upon demand by Mortgagee together with
interest thereon until reimbursement at the Default Rate set forth in the Note;
and all such advances with interest thereon as aforesaid shall be secured by
this Mortgage and the other Loan Documents.
Mortgagee shall be and is hereby authorized and empowered to
do, as mortgagee, all things provided in the Mechanics' Lien Laws of the State
of Ohio, including without limitation Section 1311.14 of the Ohio Revised Code
and all amendments or supplements thereto.
2.16. MORTGAGEE'S POWERS. That without affecting the liability
of any other person liable for the payment or performance of any obligation
herein mentioned, and without affecting the lien or charge of this Mortgage upon
any portion of the Mortgaged Property not then or theretofore released as
security for the full amount of all unpaid Secured Obligations, Mortgagee may,
from time to time and without notice (i) release any person so liable, (ii)
extend the maturity or alter any of the terms of the Secured Obligations, (iii)
grant other indulgences, (iv) release or reconvey, or cause to be released or
reconveyed at any time at Mortgagee's option, any parcel, portion or all of the
Mortgaged Property, (v) accept or release any other or additional security for
the Secured Obligations, (vi) make compositions or other arrangements with
debtors in relation thereto, or (vii) advance additional funds to protect the
security hereof and pay or discharge the obligations of Mortgagor hereunder or
under the Loan Documents, and all amounts so advanced, with interest thereon at
the Default Rate set forth in the Note, shall be secured hereby.
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2.17. FINANCIAL STATEMENTS; ANNUAL RENT ROLL. That Mortgagor
will cause to be delivered to Mortgagee as soon as practicable, but in any event
within ninety (90) days following the last day of each fiscal year of Mortgagor
during the term of the Loan, unaudited annual financial reports prepared on a
cash basis, including balance sheets, income statements and cash flow statements
covering the operation of the Mortgaged Property and Mortgagor for the previous
fiscal year, certified to be complete, correct and accurate by an authorized
officer of Mortgagor or the party whom the report concerns. A certified, current
rent roll shall be delivered to Mortgagee by Mortgagor at such time. Mortgagor
agrees to make the books and accounts relating to the Mortgaged Property
available for inspection by Mortgagee or its representatives upon request at any
reasonable time during normal business hours.
2.18. MORTGAGOR'S EXISTENCE AND AUTHORIZATIONS. That Mortgagor
and any subsequent owner of any of the Land shall do all things necessary to
preserve and keep in full force and effect its and their existence, franchises,
rights and privileges as a corporation, partnership or trust, as the case may
be, under the Laws of the state of its formation and its right to own property
and transact business in the state in which the Land is situate, and shall not
amend, modify, transfer, assign or cancel the partnership agreement or
certificate of limited partnership of Mortgagor, or the partnership agreement,
certificate of partnership or articles of incorporation or trust agreement, as
applicable, of any subsequent owner as may be permitted by Mortgagee, without
the prior written consent of Mortgagee.
2.19. OTHER LIENS. That without the prior written consent of
Mortgagee, which may be granted or withheld in Mortgagee's sole discretion,
Mortgagor shall not now or hereafter cause or permit to exist any other lien on
the Land whether junior or senior to the lien of this Mortgage, excepting only
the Permitted Exceptions and subject to the right of Mortgagor to contest
mechanic's liens as set forth in, and in accordance with the terms of, Section
2.15 above.
2.20. CHANGE OF TITLE.
(a) That, if title to the Mortgaged Property or any part
thereof or any interest therein or any change in the ownership interests of
Mortgagor or any legal entity comprising Mortgagor is terminated, dissolved,
sold, assigned, transferred, conveyed, mortgaged, encumbered or otherwise
changed (including any such changes as security for additional financing),
whether voluntarily or involuntarily or by operation of law, or any lease which
gives the tenant any option to purchase the Mortgaged Property or any part
thereof is entered into, in any case without the prior written consent of
Mortgagee, then in any such event, Mortgagee, at its sole option, may accelerate
the Loan and declare the Note secured hereby and all other obligations hereunder
to be forthwith due and payable and shall have all other rights and remedies set
forth herein. Any consent by Mortgagee to a change in ownership or to a change
in the composition of Mortgagor may be conditioned upon payment of a transfer
fee equal to one percent (1%) of the then outstanding Indebtedness for
processing such request for consent, upon an increase in the rate of interest on
the then unpaid principal balance of the Loan to a then-current market rate,
and/or other terms and conditions as Mortgagee may impose in its sole
discretion. For purposes hereof and particularly Sections 4.02(b) and 5.01(k),
the terms "sell, assign, transfer or convey" shall include, in addition to the
common and ordinary meanings of
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those terms and without limiting their generality, transfers made to a
subsidiary or affiliated entity(ies), transfers to a reconstituted limited
partnership or limited liability company, transfers made by any partnership or
limited liability company to the individual partners or members, as applicable,
or vice-versa, transfers made by a partner or member to other partners or
members, as applicable, or to third parties, transfers by any corporation to its
stockholders or vice-versa, any corporate merger or consolidation and transfers
made by any individual(s) to any other individual(s) or any entity, or
vice-versa.
(b) Notwithstanding anything to the contrary contained in
Section 2.20(a), and provided there is no outstanding uncured Event of Default
or Potential Default, Mortgagee shall permit a one time transfer of the
Mortgaged Property in its entirety, provided (i) the transferee has a financial
and credit standing and management expertise acceptable to Mortgagee as equal to
or greater than that of Mortgagor at the time of the original Loan approval;
(ii) assumption documents in form and substance satisfactory to Mortgagee are
executed by the transferee; (iii) Mortgagee is paid a transfer fee equal to one
percent (1%) of the then outstanding principal balance of the Loan; (iv)
Mortgagor reimburses Mortgagee at closing for all reasonable fees and expenses
incurred with respect to such transfer, including legal fees; (v) Mortgagee
receives an endorsement to the Mortgagee's title policy, in form and substance
acceptable to Mortgagee; and (vi) at Mortgagee's option, Mortgagee receives
opinions of counsel and Mortgagor and transferee authorization documents in form
and substance acceptable to Mortgagee. In addition, Mortgagee, in its sole
judgment and discretion, may require individuals specifically named by Mortgagee
to deliver to Mortgagee an environmental indemnification agreement on
Mortgagee's standard form. The rights granted to Mortgagor in this Section 2.20
are personal to Mortgagor, shall be extinguished after the exercise thereof, and
shall not inure to the benefit of any subsequent transferee. Such transfer and
assumption will not, however, release the Mortgagor from any liability to
Mortgagee without the prior written consent of Mortgagee, which consent may be
given or withheld in Mortgagee's sole discretion, but if given, may be
conditioned upon, without limitation, the execution of new guaranties from
principals of the transferee as Mortgagee deems necessary, execution by the
principals of the transferee of Mortgagee's standard environmental
indemnification agreement and such other requirements as Mortgagee may deem
appropriate in its discretion. Mortgagor shall not be liable for any actions of
the transferee taken from and after the closing and effective date of the
transfer.
(c) Notwithstanding the foregoing, and provided there is no
uncured Event of Default, Mortgagee will permit the transfer of title to the
Mortgaged Property by Mortgagor to Glimcher Properties Limited Partnership, a
Delaware limited partnership ("GPLP"), the sole member of Mortgagor, or to a
wholly owned subsidiary of GPLP. Such transfer shall be without payment of any
transfer fee, provided Mortgagee is promptly notified of such proposed transfer
and provided with documentation evidencing the transfer and such transferee
assumes all obligations and liabilities of Mortgagor under this Mortgage and the
other Loan Documents.
2.21. COMPLIANCE WITH LAWS; ETC. That Mortgagor shall comply
with all Laws and all private covenants which at any time are applicable to the
Mortgaged Property or Mortgagor, and shall comply with the requirements of all
policies of insurance required by this Mortgage and of the insurers under such
policies. Mortgagor shall make any replacements,
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alterations or improvements to the Mortgaged Property as may be required by such
Laws or such requirements even if unforeseen and/or extraordinary. So long as no
Event of Default or Potential Default has occurred and is continuing, Mortgagor
shall have the right, after prior written notice to Mortgagee, to contest by
appropriate legal proceedings diligently conducted in good faith, without cost
or expense to Mortgagee, the validity or application of any Law which does not
subject Mortgagee to any criminal or civil liability, and Mortgagor may delay
compliance with such Law until final determination of such proceeding if
compliance with such Law may legally be delayed until, and such proceedings
shall conclusively operate to prevent the enforcement of such Law prior to, such
final determination; provided, however, that, if in the judgment of Mortgagee
any lien or charge against the Mortgaged Property would or might be incurred by
reason of such delay, Mortgagor shall furnish to and maintain with Mortgagee
security, at all times satisfactory to Mortgagee, to assure the discharge of
such lien or charge. Mortgagor shall keep, or cause to be kept, in full force
and effect all licenses, permits and governmental authorizations and agreements
necessary or desirable for the ownership, construction, occupancy, operation,
management or use of the Mortgaged Property. Mortgagor shall preserve and
maintain unimpaired any and all easements, rights of way, appurtenances and
other interests and rights constituting any portion of the Mortgaged Property.
At all times prior to the repayment in full of the Secured Obligations, there
shall sufficient parking spaces on the Land so as to comply with all applicable
Laws and all Leases or subleases of all or any portion of the Land.
2.22. ENVIRONMENTAL INDEMNIFICATION. (A) That Mortgagor, its
successors and assigns (collectively referred to in this Section 2.22 as
"Mortgagor") agrees to defend, indemnify and hold harmless Mortgagee, its
directors, officers, employees, agents, contractors, sub-contractors, licensees,
invitees, participants, successors and assigns (for purposes of this Section
2.22, collectively referred to in this Section 2.22 as "Mortgagee") from and
against any and all claims, demands, judgments, settlements, damages, actions,
causes of action, injuries, administrative orders, consent agreements and
orders, liabilities, penalties, costs, including but not limited to any cleanup
costs, remediation costs, response costs and all expenses of any kind
whatsoever, including claims arising out of loss of life, injury to persons,
property or business or damage to natural resources in connection with the
activities of Mortgagor, its predecessors in interest, third parties who have
trespassed on the Mortgaged Property or parties in a contractual relationship
with Mortgagor, or any of them, whether or not occasioned wholly or in part by
any condition, accident or event caused by any act or omission of Mortgagee,
which:
1. Arises out of the actual, alleged or threatened migration,
spill, xxxxx, pour, empty, inject, discharge, dispersal, release, storage,
treatment, generation, disposal or escape of any Hazardous Substances ; or
2. Actually or allegedly arises out of the use, specification
or inclusion of any product, material or process containing Hazardous
Substances, the failure to detect the existence or proportion of Hazardous
Substances in the soil, air, surface water or ground water, or the performance
or failure to perform the abatement of any Hazardous Substances source or the
replacement or removal of any soil, water, surface water, or ground water
containing Hazardous Substances; or
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3. Arises out of the breach of any covenant, warranty or
representation of Mortgagor regarding those matters set forth on Exhibit "B" to
the Environmental Indemnification Agreement (as hereinafter defined); or
4. Arises out of a judicial or administrative action brought
pursuant to any other Environmental Laws or any similar state environmental law
that relates to the Mortgaged Property.
B. Mortgagor covenants and agrees that it will not use,
handle, generate, treat, store or dispose of, or permit the use, handling,
generation, treatment, storage or disposal of any Hazardous Substances in, on,
under, around or above the Mortgaged Property now or at any future time, except
for those materials (provided same are properly handled, stored and managed)
normally used in the maintenance or care of the Land and the majority of other
similar properties, or materials used in the normal course of any tenant's
business; provided such use is in accordance with applicable Environmental Laws,
and Mortgagor will indemnify and save Mortgagee harmless from any and all
actions, proceedings, claims and losses of any kind, including but not limited
to those arising from injury to any person, including death, damage to or loss
of use or value of real or personal property, and costs of investigation and
cleanup or other environmental remedial work, which may arise in connection with
Hazardous Substances from any source as they relate to the Mortgaged Property.
The indemnification of Mortgagee by Mortgagor as set forth hereinabove shall
survive the payment of the Loan secured hereby and satisfaction of this
Mortgage.
C. If at any time it is determined that there are any
Hazardous Substances located in, on, under, around or above the Mortgaged
Property which are subject to any federal, state or local environmental Law or
private agreement ("ENVIRONMENTAL REQUIREMENTS"), including Environmental
Requirements requiring special handling of Hazardous Substances in their use,
handling, collection, storage, treatment or disposal, Mortgagor shall
immediately notify Mortgagee of such determination and Mortgagor shall commence
with diligence within thirty (30) days after receipt of notice of the presence
of the Hazardous Substances and shall continue to diligently take all
appropriate action, at Mortgagor's sole expense, to comply with all such
Environmental Requirements. The failure of Mortgagor to comply with all
Environmental Requirements shall constitute an Event of Default hereunder.
D. This Section 2.22 is in addition to and not in limitation
of that certain Environmental Indemnification Agreement of even date herewith
(the "ENVIRONMENTAL INDEMNIFICATION AGREEMENT") given by Mortgagor to Mortgagee.
2.23. PROHIBITION ON DRY CLEANING ESTABLISHMENT OR OPERATIONS.
Mortgagor shall not during the term of the Loan conduct or permit any tenant to
conduct any on-site dry cleaning operations at the Mortgaged Property.
ARTICLE III
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ASSIGNMENT OF LEASES
3.01 ASSIGNMENT OF LEASES AND RENTS. Mortgagor hereby and also
by a certain Assignment of Leases and Rents of even date herewith given by
Mortgagor to Mortgagee ("ASSIGNMENT OF LEASES AND RENTS"), which Assignment of
Leases and Rents is incorporated herein by reference as fully and with the same
effect as if set forth herein at length, assigns and transfers to Mortgagee all
existing and future Leases, and the Rents of the Mortgaged Property, and hereby
gives to and confers upon Mortgagee the right, power and authority to collect
such Rents of the Mortgaged Property. This Assignment is and is intended to be
an absolute assignment from Mortgagor to Mortgagee and not merely the passing of
a security interest or a conditional assignment, contingent only upon the
privilege, which may be revoked by Mortgagee upon the occurrence of an Event of
Default, of the Mortgagor to collect Rents in accordance with the Assignment of
Leases and Rents.
3.02. COVENANTS AS TO LEASES. Mortgagor may execute as
landlord, Leases or subleases of the Improvements or Mortgaged Property or any
part thereof, only in compliance with the Assignment of Leases and Rents, and
the following provisions:
(a) COPIES OF LEASES. Mortgagor shall promptly deliver to
Mortgagee a copy of any executed Lease for any part of the Mortgaged Property
and upon request shall supply to Mortgagee such information and documentation
regarding the tenant thereunder;
(b) SUBORDINATION. All Leases and subleases for any of the
Mortgaged Property or Improvements now or hereafter executed shall, at
Mortgagee's option, be subordinate to this Mortgage; provided, however, that
Mortgagee shall have the right at any time to require that any Lease or sublease
now or hereafter executed be made superior to the lien of this Mortgage, at
Mortgagor's expense. Mortgagee shall have the right at any time and from time to
time and to the extent permitted under the tenant Leases, to request that any
tenant or subtenant under any Lease or sublease execute a subordination,
attornment and non-disturbance agreement in form and substance satisfactory to
Mortgagee; and
(c) BONA FIDE TRANSACTIONS. All Leases and subleases of any
part of the Mortgaged Property shall be for bona fide actual occupancy, shall be
an arm's length transaction, and shall be subject to all other applicable
provisions of the Loan Documents.
ARTICLE IV
SECURITY AGREEMENT
------------------
4.01. CREATION OF SECURITY INTEREST. As security for the
Secured Obligations, Mortgagor hereby grants to Mortgagee a security interest in
all of Mortgagor's right, title and interest in the Personal Property now or
hereafter located on or at the Land together with any and all replacements
thereof or substitutions therefor located on or at the Mortgaged Property.
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4.02. COVENANTS REGARDING PERSONAL PROPERTY; REPRESENTATIONS..
Mortgagor does hereby covenant and represent as follows:
(a) NO OTHER LIENS. Except for the security interest
granted hereby and the Permitted Encumbrances (to the extent, if any,
applicable), the Personal Property shall remain free from any lien, security
interest, encumbrance or claims thereon of any kind whatsoever. Mortgagor will
notify Mortgagee of, and will defend the Personal Property against, all claims
and demands of all persons at any time claiming the same or any interest
therein;
(b) ENCUMBRANCES. Mortgagor will not assign, pledge,
encumber, hypothecate, lease, sell, convey or in any manner transfer the
Personal Property without the prior written consent of Mortgagee, except in the
ordinary course of business for the purpose of replacement;
(c) BUSINESS PURPOSES. The Personal Property is not and
shall not be used, and was not and shall not be purchased, for personal, family
or household purposes;
(d) LOCATION. The Personal Property will be kept on or
at the Mortgaged Property and Mortgagor will not remove the Personal Property or
any part thereof from the Mortgaged Property without the prior written consent
of Mortgagee, except such portions or items of Personal Property which are
consumed or worn out in ordinary usage, all of which shall be promptly replaced
by Mortgagor with new items of equal or greater quality, utility and value;
(e) FINANCING STATEMENTS. At the request of Mortgagee,
Mortgagor will, with or without joinder of Mortgagee, execute one or more
financing statements and renewals and amendments thereof pursuant to the Ohio
and/or Delaware Uniform Commercial Codes, as the case may be, (the "UCC") in
form satisfactory to Mortgagee, and will pay the cost of filing the same in all
public offices wherever filing is deemed by Mortgagee to be necessary or
desirable. Without limiting the foregoing, Mortgagor hereby irrevocably appoints
Mortgagee attorney-in-fact for Mortgagor to execute, deliver and file such
instruments for and on behalf of Mortgagor in such jurisdictions as Mortgagee
may deem necessary or desirable in order to perfect the security interest
granted by Mortgagor hereunder, and Mortgagor will pay the costs of any such
filing;
(f) COVENANTS AND OBLIGATIONS. All covenants and
obligations of Mortgagor contained herein relating to the Mortgaged Property
shall be deemed to apply to the Personal Property whether or not expressly
referred to herein;
(g) SECURITY AGREEMENT. This Mortgage constitutes both a
"mortgage" and a "security agreement" as those terms are used in the UCC and
Mortgagee shall be entitled to the rights and benefits of a "secured party", as
that term is defined in the UCC or any successor legislation thereto. The
Mortgaged Property includes both real and personal property and all other rights
and interests, whether tangible or intangible in nature, of Mortgagor in the
Mortgaged Property. Mortgagor by granting and delivering this Mortgage has
granted to
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Mortgagee, as security for the Secured Obligations, a security interest in and
to those portions of the Mortgaged Property in which a security interest can be
granted under the UCC. Portions of the Mortgaged Property are or are to become
fixtures as defined in the UCC. This Mortgage constitutes and is effective as a
fixture filing as provided in Section 1309.502(C) of the Ohio Revised Code; and
(h) CHANGE OF NAME. Mortgagor shall not change its name
unless it has given Mortgagee at least thirty (30) days prior written notice
thereof and has executed and authorized, at the request of Mortgagee, such
additional financing statements to be filed in such jurisdictions as Mortgagee
may deem necessary or desirable in its sole discretion.
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
---------------------------
5.01. EVENTS OF DEFAULT. The occurrence of any one or more of
the following events shall constitute a default (an "EVENT OF DEFAULT") by
Mortgagor hereunder:
(a) Mortgagor shall fail or refuse to pay within ten (10) days
of the date when due any installment of interest, principal, principal and
interest, or any other amount due hereunder or under the Note or any other Loan
Document or to make any payment of Impositions or insurance premiums when due;
or
(b) Any representation or warranty made by Mortgagor under
this Mortgage or any other Loan Document or any statement made by Mortgagor in
any financial statement, certificate, report, exhibit or document furnished by
Mortgagor to Mortgagee pursuant to or in connection with this Mortgage or any
other Loan Document shall prove to have been false or misleading in any material
respect as of the time when made (including by omission of material information
necessary to make such representation, warranty or statement not misleading); or
(c) Mortgagor shall default in the performance or observance
of any covenant contained in Sections 2.03, 2.04, 2.15, 2.18, 2.19, 2.20, 2.22
or 2.23; or
(d) Mortgagor shall default in the performance or observance
of any other covenant, agreement or duty under this Mortgage, other than those
set forth above, and such default shall have continued for a period of thirty
(30) days after written notice thereof to Mortgagor; provided, that in the case
of any such default which does not create the risk of criminal or other
liability to Mortgagor, Mortgagee, or any officer, director, employee or agent
thereof, and which is capable of being cured within sixty (60) days after the
receipt of such written notice, such default shall not constitute an Event of
Default until sixty (60) days after such notice, so long as Mortgagor shall be
diligently proceeding in good faith during such sixty (60) day period to correct
such failure. At the expiration of such sixty day period, such default, if not
cured, shall constitute an Event of Default; or
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(e) Mortgagor shall default in the performance or observance
of any covenant, agreement or duty under the Note or any other Loan Document
beyond any period of grace with respect thereto; or
(f) An Event of Default set forth in the Note or any other
Loan Document shall occur; or
(g) Mortgagor (i) shall default in any payment of any
obligation (or set of related obligations) in respect of indebtedness of any
nature in excess of $25,000 in aggregate amount beyond any period of grace with
respect thereto or, if such obligation or obligations is or are payable or
repayable on demand, shall fail to pay or repay such obligation or obligations
when demanded or (ii) shall default in the observance of any covenant, term or
condition contained in any agreement or instrument by which such obligation or
obligations is or are created, secured or evidenced if the effect of such
default is to cause, or to permit the holder or holders of such obligation or
obligations (or a trustee or agent on behalf of such holder or holders) to
cause, all or part of such obligation or obligations to become due before its or
their otherwise stated maturity; or
(h) One or more judgments for the payment of money shall have
been entered against Mortgagor, which judgment or judgments exceed $25,000 in
the aggregate, and such judgment or judgments shall have remained undischarged
and unstayed for a period of thirty consecutive days, unless such judgment or
judgments are covered by insurance, insurance coverage is confirmed in writing
by the applicable insurer prior to the expiration of said thirty (30) day
period; or
(i) A writ or warrant of attachment, garnishment, execution,
distraint or similar process shall have been issued against Mortgagor or any of
its properties which shall have remained undischarged and unstayed for a period
of thirty (30) consecutive days; or
(j) A material adverse change in the business, operations,
condition (financial or otherwise) or prospects of Mortgagor shall have
occurred; or
(k) Mortgagor shall sell or otherwise convey or transfer the
Mortgaged Property or any part thereof, except as permitted by Section 2.20; or
(l) A proceeding shall have been instituted in respect of
Mortgagor:
(i) seeking to have an order for relief entered in
respect of Mortgagor, or seeking a declaration or entailing a
finding that Mortgagor is insolvent or a similar declaration
or finding, or seeking dissolution, winding-up, charter
revocation or forfeiture, liquidation, reorganization,
arrangement, adjustment, composition or other similar relief
with respect to Mortgagor, its assets or its debts under any
Law relating to bankruptcy, insolvency, relief of debtors or
protection of creditors, termination of legal entities or any
other similar Law now or hereafter in effect; or
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(ii) seeking appointment of a receiver, trustee,
custodian, liquidator, assignee, sequestrator or other
similar official for Mortgagor or for all or any substantial
part of its property;
and such proceeding shall result in the entry, making or grant of any such order
for relief, declaration, finding, relief or appointment, or such proceeding
shall remain undismissed and unstayed for a period of thirty (30) consecutive
days; or
(m) Mortgagor shall become insolvent, shall become generally
unable to pay its debts as they become due, shall voluntarily suspend
transaction of its business, shall make a general assignment for the benefit of
creditors, shall institute a proceeding described in Section 5.01(l)(i) or shall
consent to any such order for relief, declaration, finding or relief described
therein, shall institute a proceeding described in Section 5.01(l)(ii) or shall
consent to any such appointment or to the taking of possession by any such
official of all or any substantial part of its property whether or not any such
proceeding is instituted, shall dissolve, wind-up or liquidate itself or any
substantial part of its property, or shall take any action in furtherance of any
of the foregoing; or
(n) The filing of any amendment to or termination of a
financing statement naming Mortgagor as debtor and Mortgagee as secured party,
or any correction statement with respect thereto, in any jurisdiction by any
party other than Mortgagee, or the failure of any representation concerning the
legal name of Mortgagor, the state of organization of Mortgagor or the
identification of Mortgagor's principal place of business to be true and
accurate, or the failure of Mortgagor to obtain the written consent of Mortgagee
prior to merging or consolidating into or with any other person or entity, or
the failure of Mortgagor to obtain the written consent of Mortgagee prior to
transferring any of the Mortgaged Property to any other person or entity except
as otherwise permitted herein.
5.02. REMEDIES.
(a) PRIMARY REMEDIES. If an Event of Default shall occur,
Mortgagee may (x) declare the Secured Obligations immediately due and payable
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived; and/or (y) exercise any other right, power or remedy
available to it at law or in equity, hereunder or under any other Loan Document
without demand, protest or notice of any kind, all of which are hereby expressly
waived, except such as is expressly required hereby or by such other Loan
Document. Without limiting the generality of the foregoing, Mortgagee may:
(i) enter and take possession of the Mortgaged
Property or any part thereof, exclude Mortgagor and all persons
claiming under Mortgagor wholly or partly therefrom, and operate, use,
manage and control the same, or cause the same to be operated by a
person selected by Mortgagee, either in the name of Mortgagor or
otherwise, and upon such entry, from time to time, at the expense of
Mortgagor and of the Mortgaged Property, make all such repairs,
replacements, alterations, additions or
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improvements thereto as Mortgagee may deem proper, and collect and
receive the rents, revenues, issues, profits, royalties, income and
benefits thereof and apply the same to the payment of all expenses
which Mortgagee may be authorized to incur under the provisions of this
Mortgage and applicable Laws, the remainder to be applied to the
payment, performance and discharge of the Secured Obligations in such
order as Mortgagee may determine until the same have been paid in full;
(ii) institute an action for the foreclosure of this
Mortgage and the sale of the Mortgaged Property pursuant to the
judgment or decree of a court of competent jurisdiction;
(iii) to the extent permitted by applicable law, sell the
Mortgaged Property to the highest bidder or bidders at public auction
at a sale or sales held at such place or places and time or times and
upon such notice and otherwise in such manner as may be required by
law, or in the absence of any such requirement, as Mortgagee may deem
appropriate, and from time to time adjourn such sale by announcement at
the time and place specified for such sale or for such adjourned sale
or sales without further notice except such as may be required by law;
(iv) take all steps to protect and enforce the rights of
Mortgagee under this Mortgage by suit for specific performance of any
covenant herein contained, or in aid of the execution of any power
herein granted or for the enforcement of any other rights;
(v) exercise any or all of the rights and remedies
available to a secured party under the UCC, including the right to (A)
enter the Mortgaged Property and take possession of the Personal
Property without demand or notice and without prior judicial hearing or
legal proceedings, which Mortgagor hereby expressly waives, (B) require
Mortgagor to assemble the Personal Property, or any portion thereof,
and make it available to Mortgagee at a place or places designated by
Mortgagee and reasonably convenient to both parties and (C) sell all or
any portion of the Personal Property at public or private sale, without
prior notice to Mortgagor except as otherwise required by law (and if
notice is required by law, after ten days' prior written notice), at
such place or places and at such time or times and in such manner and
upon such terms, whether for cash or on credit, as Mortgagee in its
sole discretion may determine. As to any property subject to Article 9
of the UCC included in the Mortgaged Property, Mortgagee may proceed
under the UCC or proceed as to both real and personal property in
accordance with the provisions of this Mortgage and the rights and
remedies that Mortgagee may have at law or in equity, in respect of
real property, and treat both the real and personal property included
in the Mortgaged Property as one parcel or package of security.
Mortgagor shall have the burden of proving that any sale pursuant to
this Section 5.02(a) or pursuant to the UCC was conducted in a
commercially unreasonable manner; and/or
(vi) terminate any management agreements, contracts or
agents/managers responsible for the property management of the
Mortgaged Property, if
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in the sole discretion of Mortgagee, such property management is
unsatisfactory in any respect.
(b) RECEIVER. If an Event of Default shall occur, Mortgagee
shall be entitled as a matter of right to the appointment of a receiver of the
Mortgaged Property and the rents, revenues, issues, profits, royalties, income
and benefits thereof, without notice or demand, and without regard to the
adequacy of the security for the Secured Obligations or the solvency of
Mortgagor.
(c) ENVIRONMENTAL SITE ASSESSMENTS. If an Event of Default
shall occur, Mortgagor shall permit such persons as Mortgagee may designate
("SITE REVIEWERS") to visit the Mortgaged Property and perform environmental
site investigations and assessments ("SITE ASSESSMENTS") on the Mortgaged
Property for the purpose of determining whether there exists on the Mortgaged
Property any environmental condition which could result in any liability, cost
or expense to the owner or occupier of the Mortgaged Property. Such Site
Assessments may include both above and below the ground testing for
environmental damage or the presence of Hazardous Substances on the Mortgaged
Property and such other tests on the Mortgaged Property as may be necessary to
conduct the Site Assessments in the opinion of the Site Reviewers. Mortgagor
will supply to the Site Reviewers such historical and operational information
regarding the Mortgaged Property as may be reasonably requested by the Site
Reviewers to facilitate the Site Assessments and will make available for
meetings with the Site Reviewers appropriate personnel having knowledge of such
matters. The cost of performing all Site Assessments shall be paid by Mortgagor
within five days after demand by Mortgagee with interest at the Default Rate
from the 5th day after demand until paid.
(d) RIGHT OF SET-OFF. If an Event of Default shall occur,
Mortgagee and the holder of any participation in the Note shall have the right,
in addition to all other rights and remedies available to it, to set-off against
and to appropriate and apply to the unpaid balance of the Note and all other
obligations of Mortgagor hereunder or under any other Loan Document any debt
owing to, and any other funds held in any manner for the account of, Mortgagor
by Mortgagee or such holder, including all funds in all deposit accounts
(general or special) now or hereafter maintained by Mortgagor with Mortgagee or
such holder. Such right shall exist whether or not Mortgagee or any such holder
shall have made any demand under the Note or any such participation or any other
Loan Document and whether or not the Note or such participation or such other
obligations are matured or unmatured. Mortgagor hereby confirms the foregoing
arrangements and each such holder's and the Mortgagee's right of lien and
set-off and nothing in this Mortgage or any other Loan Document shall be deemed
any waiver or prohibition of any such holder's or of the Mortgagee's right of
lien or set-off.
(e) SALES BY PARCELS. In any sale made under or by virtue of
this Mortgage or pursuant to any judgment or decree of court, the Mortgaged
Property may be sold in one or more parts or parcels or as an entirety and in
such order as Mortgagee may elect, without regard to the right of Mortgagor, or
any person claiming under it, to the marshaling of assets.
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(f) EFFECT OF SALE. The purchaser at any sale made under or by
virtue of this Mortgage or pursuant to any judgment or decree of court shall
take title to the Mortgaged Property or the part thereof so sold free and
discharged of the estate of Mortgagor therein, the purchaser being hereby
discharged from all liability to see to the application of the purchase money.
Any person, including Mortgagee, may purchase at any such sale. Mortgagee is
hereby irrevocably appointed the attorney-in-fact of Mortgagor in its name and
stead to make all appropriate transfers and deliveries of the Mortgaged Property
or any portions thereof so sold and, for this purpose, Mortgagee may execute all
appropriate instruments of transfer, and may substitute one or more persons with
like power, Mortgagor hereby ratifying and confirming all that its said
attorneys or such substitute or substitutes shall lawfully do by virtue hereof.
Nevertheless, Mortgagor shall ratify and confirm, or cause to be ratified and
confirmed, any such sale or sales by executing and delivering, or by causing to
be executed and delivered, to Mortgagee or to such purchaser or purchasers all
such instruments as may be advisable, in the judgment of Mortgagee, for the
purpose, and as may be designated, in such request. Any sale or sales made under
or by virtue of this Mortgage, to the extent not prohibited by law, shall
operate to divest all the estate, right, title, interest, property, claim and
demand whatsoever, whether at law or in equity, of Mortgagor in, to and under
the Mortgaged Property, or any portions thereof so sold, and shall be a
perpetual bar both at law and in equity against Mortgagor, its successors and
assigns, and against any and all persons claiming or who may claim the same, or
any part thereof, by, through or under Mortgagor, or its successors or assigns.
The powers and agency herein granted are coupled with an interest and are
irrevocable.
(g) EVICTION OF MORTGAGOR AFTER SALE. If Mortgagor fails or
refuses to surrender possession of the Mortgaged Property after any sale
thereof, Mortgagor shall be deemed a tenant at sufferance, subject to eviction
by means of ejectment proceedings, provided that this remedy is not exclusive or
in derogation of any other right or remedy available to Mortgagee or any
purchaser of the Mortgaged Property under any provision of this Mortgage or
pursuant to any judgment or decree of court.
(h) INTENTIONALLY OMITTED.
(i) INSURANCE POLICIES. In the event of a foreclosure sale
pursuant to this Mortgage or other transfer of title or assignment of the
Mortgaged Property in extinguishment, in whole or in part, of the Secured
Obligations, all right, title and interest of Mortgagor in and to all policies
of insurance required under the provisions of Section 2.03 shall inure to the
benefit of and pass to the successor in interest of Mortgagor or the purchaser
or grantee of the Mortgaged Property or any part thereof so transferred.
5.03. APPLICATION OF PROCEEDS. The proceeds of any sale made
either under the power of sale hereby given or under a judgment, order or decree
made in any action to foreclose or to enforce this Mortgage, shall be applied:
(a) first to the payment of (i) all costs and expenses of such
sale, including attorneys' fees, appraisers' fees and costs of procuring title
searches, title insurance policies and similar items and (ii) all charges,
expenses and advances incurred or made by Mortgagee in order
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to protect the lien or estate created by this Mortgage or the security afforded
hereby including any expenses of entering, taking possession of and operating
the Mortgaged Property;
(b) then to the payment of any other Secured Obligations in
such order as Mortgagee may determine until the same have been paid in full; and
(c) any balance thereof shall be paid to Mortgagor, or to
whosoever shall be legally entitled thereto, or as a court of competent
jurisdiction may direct.
5.04. RIGHT TO XXX WITHOUT PREJUDICE. If an Event of Default
shall occur, Mortgagee shall have the right from time to time to cause a sale of
the Mortgaged Property under the provisions of this Mortgage or to xxx for any
sums required to be paid by Mortgagor under the terms of this Mortgage as the
same respectively become due, without regard to whether or not the Secured
Obligations shall be due and without prejudice to the right of Mortgagee
thereafter to cause any such sale or to bring any action or proceeding of
foreclosure or otherwise, or to take other action, in respect of any Event of
Default existing at the time such earlier action or proceeding was commenced.
5.05. POWER TO MODIFY DOCUMENTS. Mortgagee may at any time or
from time to time renew or extend this Mortgage or any other Loan Document or
amend or modify the same in any way, or waive any of the terms, covenants or
conditions hereof or thereof in whole or in part, and may release any portion of
the Mortgaged Property or any other security, and grant such extensions and
indulgences in relation to the Secured Obligations as Mortgagee may determine,
without the consent of any junior lienor or encumbrancer and without any
obligation to give notice of any kind to any person and without in any manner
affecting the priority of the lien or security interest of this Mortgage on or
in any part of the Mortgaged Property. Mortgagee may at any time or from time to
time subordinate the lien or security interest of this Mortgage to any Lease or
any other agreement with respect to the occupancy or use of any part of the
Mortgaged Property, or to any easement, restrictive covenant or other
encumbrance on any part of the Mortgaged Property, or to any other lien on or
security interest in any part of the Mortgaged Property, or to any other
interest of any person in or to any part of the Mortgaged Property, in each case
without the agreement or consent of Mortgagor or of the tenant or other party
holding the interest to which the lien or security interest hereof is being
subordinated or of any other person having a right or interest in any of the
Mortgaged Property, without any obligation to give notice of any kind to any
person, and without in any manner affecting (except to the extent specifically
provided in the instrument effecting such subordination) the priority of the
lien or security interest of this Mortgage on or in any part of the Mortgaged
Property.
5.06. REMEDIES CUMULATIVE.
(a) GENERALLY. No right or remedy herein conferred upon or
reserved to Mortgagee is intended to be exclusive of any other right or remedy,
and each and every such right and remedy shall be cumulative and in addition to
any other right or remedy of Mortgagee under the Loan Documents or this
Mortgage, or at law or in equity. The failure of Mortgagee to insist at any time
upon the strict observance or performance of any of the provisions of this
Mortgage,
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or to exercise any right or remedy provided for herein or in the Loan Documents,
shall not impair any such right or remedy nor be construed as a waiver or
relinquishment thereof. Every right and remedy given by this Mortgage or the
Loan Documents to Mortgagee, or to which Mortgagee may otherwise be entitled,
may be exercised from time to time and as often as may be deemed expedient by
Mortgagee, and no warrant shall be exhausted by the exercise thereof. Mortgagee
may pursue inconsistent remedies.
(b) OTHER SECURITY. Mortgagee shall be entitled to enforce
payment and performance of any Secured Obligations and to exercise all rights
and powers under the Loan Documents or this Mortgage, or at law or in equity,
notwithstanding that such Secured Obligations may now or hereafter be otherwise
secured. Neither the acceptance of this Mortgage nor its enforcement, whether by
court action or pursuant to the power of sale or other powers herein contained,
shall prejudice or in any manner affect Mortgagee's right to realize upon or
enforce any other security now or hereafter held by Mortgagee in such order and
manner as Mortgagee in its sole discretion may determine.
5.07. WAIVER OF STAY, EXTENSION, MORATORIUM LAWS; EQUITY OF
REDEMPTION. Mortgagor shall not at any time (a) insist upon, plead or in any
manner whatever claim or take any benefit or advantage of any applicable present
or future stay, extension or moratorium Law or (b) claim, take or insist upon
any benefit or advantage of any present or future Law providing for the
valuation or appraisal of the Mortgaged Property prior to any sale or sales
thereof which may be made under or by virtue of the provisions of Section 5.02;
and Mortgagor hereby waives all benefit or advantage of any such Law or Laws.
Mortgagor, for itself and all who may claim under it, hereby waives any and all
rights and equities of redemption from sale under the power of sale created
hereunder or from sale under any order or decree of foreclosure of this Mortgage
and all notice or notices of seizure, and all right to have the Mortgaged
Property marshaled upon any foreclosure hereof. Mortgagee shall not be obligated
to pursue or exhaust its rights or remedies as against any part of the Mortgaged
Property before proceeding against any other part thereof and Mortgagor hereby
waives any right or claim of right to have Mortgagee proceed in any particular
order. Mortgagor hereby waives and releases all errors, defects and
imperfections in any proceedings instituted by Mortgagee under this Mortgage.
ARTICLE VI
MISCELLANEOUS
-------------
6.01. GIVING OF NOTICE.
(a) DELIVERY. Whenever notice is given or required to be given
pursuant to this Mortgage, it shall be sent postage prepaid by registered or
certified mail, return receipt requested, or by prepaid nationally recognized
overnight delivery service or by hand delivery addressed and delivered to the
parties at their respective addresses set forth below, or at such other address
as a party, by similar written notice to the other parties hereto, may designate
from time to time:
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MORTGAGOR:
---------
Hocking Valley Mall, LLC
c/o Glimcher Properties Corporation
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxx Xxxxxxx & Xxxxxxx
0000 Xxxxxxxxxx Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxx X. Xxxxx, Esq.
MORTGAGEE:
---------
Golden American Life Insurance Company
c/o ING Investment Management LLC
0000 Xxxxxx Xxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Vice President
with a copy to:
Golden American Life Insurance Company
c/o ING Investment Management LLC
Legal Department
0000 Xxxxxx Xxxxx Xxxx, X.X. Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
and to:
Xxxx Xxxxx LLP
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
and to:
Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
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Attention: Xxxxxxx X. Xxxxx
(b) RECEIPT. Notice shall be deemed to have been received (i)
when deposited in the United States mail, registered or certified, return
receipt requested or (ii) one (1) business day after the notice is sent by
overnight delivery service or (iii) the date of delivery if notice is delivered
by hand.
6.02. GOVERNING LAW. This Mortgage shall be governed by and
construed in accordance with the laws of the State of Ohio.
6.03. STATEMENTS BY MORTGAGOR. Mortgagor, within ten (10) days
after being given notice by mail, will furnish to Mortgagee a written statement
stating the unpaid principal of and interest on the Note and any other amounts
secured by this Mortgage and stating whether any offset or defense exists
against such principal and interest.
6.04. CAPTIONS. The captions or headings at the beginning of
each Section hereof are solely for the convenience of the parties and are not a
part of this Mortgage, nor do such captions affect the scope or meaning of any
provisions hereof.
6.05. CHANGES IN TAX LAW. In the event of the passage after
the date of this Mortgage of any Law deducting from the value of the Mortgaged
Property, for the purpose of taxation, any lien thereon, or changing in any way
the Laws now in force for the taxation of mortgages, or debts secured thereby,
for state or local purposes, or the manner of the operation of any such taxes so
as to affect the interest of Mortgagee, then and in such event, Mortgagor shall
bear and pay the full amount of such taxes, provided that if for any reason
payment by Mortgagor of any such new or additional taxes would be unlawful
(including under Laws governing usury) Mortgagee may either declare the Secured
Obligations, with interest thereon, to be immediately due and payable, or pay
that amount or portion of such taxes as would be unlawful to require Mortgagor
to pay, in which event Mortgagor shall concurrently therewith pay the balance of
said taxes.
6.06. FURTHER ASSURANCES.
(a) GENERALLY. From time to time upon the request of
Mortgagee, Mortgagor shall promptly and duly execute, acknowledge and deliver
any and all such further instruments and documents as Mortgagee may deem
necessary or desirable to confirm this Mortgage, to carry out the purpose and
intent hereof, or to enable Mortgagee to enforce any of its rights hereunder.
(b) FILINGS. Mortgagor immediately upon the execution and
delivery of this Mortgage, and thereafter from time to time, shall cause this
Mortgage, any supplements hereto, any financing statements and each instrument
of further assurance to be filed, registered or recorded and refiled,
reregistered or rerecorded in such manner and in such places as may be required
by any present or future Law in order to publish notice of and perfect the lien
and security interest or estate created by this Mortgage on or in the Mortgaged
Property, and shall pay all fees and costs in connection therewith.
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6.07. AMENDMENTS, WAIVERS, ETC. This Mortgage cannot be
amended, modified, waived, changed, discharged or terminated except by an
instrument in writing signed by the party against whom enforcement of such
amendment, modification, waiver, change, discharge or termination is sought.
6.08. NO IMPLIED WAIVER. No course of dealing and no delay or
failure of Mortgagee in exercising any right, power or privilege under this
Mortgage, the Note or any other Loan Document shall affect any other or future
exercise thereof or exercise of any other right, power or privilege; nor shall
any single or partial exercise of any such right, power or privilege or any
abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power or
privilege.
6.09. EXPENSES; TAXES; ATTORNEYS' FEES. Mortgagor agrees to
pay or cause to be paid and to save Mortgagee harmless against liability for the
payment of all out-of-pocket expenses incurred by Mortgagee from time to time:
(a) arising in connection with the preparation, execution, delivery and
performance of this Mortgage, the Note and the other Loan Documents, including
reasonable fees and expenses of counsel for Mortgagee; (b) relating to any
requested amendments, waivers or consents to this Mortgage, the Note or any
other Loan Document, including reasonable fees and expenses of counsel for
Mortgagee; and (c) arising in connection with Mortgagee's enforcement or
preservation of rights under this Mortgage, the Note or any other Loan Document,
including such expenses as may be incurred by Mortgagee in the collection of the
Note or the realization of security given for the Note. Mortgagor agrees to pay
all stamp, document, transfer, recording or filing taxes or fees and similar
impositions now or hereafter determined by Mortgagee to be payable in connection
with this Mortgage, the Note or any other Loan Documents, and Mortgagor agrees
to save Mortgagee harmless from and against any and all present or future
claims, liabilities or losses with respect to or resulting from any omission to
pay or delay in paying any such taxes, fees or impositions. Mortgagor agrees to
pay and to save Mortgagee harmless against liability for the payment of all
out-of-pocket expenses incurred by Mortgagee in connection with its review of
any repair, replacement, alteration, improvement or restoration to the Mortgaged
Property in connection with the requirements of Sections 2.02, 2.05 and 2.13,
including the fees and expenses of counsel for Mortgagee and of any architect
engaged by Mortgagee to review plans and specifications, inspect work or provide
advice with respect to determinations to be made by Mortgagee in connection
therewith. In the event of termination adversely to Mortgagor of any action at
law or suit in equity in relation to this Mortgage, the Note or any other Loan
Document, Mortgagor will pay, in addition to all other sums which Mortgagor may
be required to pay, all attorneys' fees incurred by Mortgagee in connection with
such action or suit. All amounts payable by Mortgagor under this Section 6.09
shall be paid within five days after demand by Mortgagee with interest at the
Default Rate specified in the Note until paid.
6.10. JURISDICTION; ETC. Mortgagor irrevocably (a) agrees that
Mortgagee, may bring suit, action or other legal proceedings arising out of this
Mortgage (other than those brought for the foreclosure or other realization on
the real property security granted hereby), the Note or any other Loan Document,
or the transactions contemplated hereby or thereby, in the
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courts of the State of Ohio in Fairfield County, Ohio or the federal court
having jurisdiction where the Mortgaged Property is located; (b) consents to the
jurisdiction of each such court in any such suit, action or proceeding; (c)
waives any objection which Mortgagor, may have to the laying of the venue of any
such suit, action or proceeding in any of such courts; and (d) waives any right
it may have to a jury trial in connection with any suit, action or proceeding
arising out of this Mortgage, the Note or any other Loan Document or the
transactions contemplated hereby or thereby.
6.11. INTERPRETATION. Unless the context otherwise requires:
(a) the term "PERSON" means an individual, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, government
(including political subdivisions), governmental authority or agency, or any
other entity; (b) any reference to an Article or Section shall refer to the
specified Article or Section of this Mortgage; (c) words importing the singular
number include the plural number, and vice versa; (d) the terms "HEREOF",
"HEREBY", "HERETO", "HEREUNDER" and similar terms refer to this entire Mortgage;
(e) the term "INCLUDING" shall mean "INCLUDING WITHOUT LIMITATION"; (f) any
reference to the Mortgaged Property shall refer to the Mortgaged Property or any
part thereof or any estate or interest therein; (g) any "CONSENT", "APPROVAL" or
"OPTION" by Mortgagee shall be in its sole and absolute discretion, unless
expressly stated herein to the contrary; (h) the word "MORTGAGOR" shall mean the
person or persons named in this Mortgage and who execute the same and their
successors and assigns, and any subsequent owner of the Mortgaged Property; (i)
the word "MORTGAGEE" shall mean the person who is the owner and holder of the
Note, whether or not specifically named herein as "MORTGAGEE", or any subsequent
owner and holder of the Note and this Mortgage; (j) the use of any gender shall
include all genders; and (k) in the event Mortgagor hereafter consists of more
than one person, all agreements, conditions, covenants, provisions,
stipulations, warrants of attorney, authorizations, waivers, releases, options,
undertakings, rights and benefits made or given by Mortgagor shall be joint and
several, and shall bind and affect all persons who are defined as "MORTGAGOR" as
fully as though all of them were specifically named herein wherever the word
"MORTGAGOR" is used.
6.12. INVALIDITY OF CERTAIN PROVISIONS. If the security
interest, lien or estate created by this Mortgage is invalid or unenforceable as
to any part of the Secured Obligations, or as to any part of the Mortgaged
Property, the unsecured or partially secured portion of the Secured Obligations
shall be completely paid prior to the payment of the remaining and secured or
partially secured portion of the Secured Obligations, and all payments made
thereon, whether voluntary or pursuant to foreclosure sale or other enforcement
action or procedure, shall be considered to have been first paid on and applied
to the full payment of that portion of the Secured Obligations which is not
secured or fully secured by this Mortgage.
6.13. SEVERABILITY. If any term or provision of this Mortgage
or the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Mortgage, or the application of
such term or provision to persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Mortgage shall be valid and enforceable to the fullest extent
permitted by law.
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6.14. TIME OF ESSENCE; DURATION; SURVIVAL. Time is of the
essence with respect to all of Mortgagor's obligations under this Mortgage and
the other Loan Documents. All representations and warranties of Mortgagor
contained herein or in any other Loan Document or made in connection herewith or
therewith shall survive the making of and shall not be waived by the execution
and delivery of this Mortgage or the other Loan Documents, or any investigation
by Mortgagee. All covenants and agreements of Mortgagor contained herein or in
any other Loan Document shall continue in full force and effect from and after
the date hereof and until payment in full of the Secured Obligations. Without
limitation, it is understood that all obligations of Mortgagor to make payments
to or indemnify Mortgagee shall survive the payment in full of the principal of
and interest on the Note, and all other amounts constituting Secured
Obligations.
6.15. SUCCESSORS AND ASSIGNS. This Mortgage applies to, inures
to the benefit of and binds all parties hereto, their respective successors and
assigns.
6.16. SUBROGATION. To the extent that proceeds of the Note or
advances under this Mortgage are used to pay any outstanding lien, charge or
prior encumbrance against the Mortgaged Property, such proceeds have been or
will be advanced by Mortgagee at Mortgagor's request and Mortgagee shall be
subrogated to any and all rights and liens held by any owner or holder of such
outstanding liens, charges and prior encumbrances, irrespective of whether said
liens, charges or encumbrances are released.
6.17. REPAYMENT AFTER ACCELERATION; PREPAYMENT. If after the
acceleration of the maturity of the Secured Obligations as herein provided, a
tender of payment of the amount necessary to satisfy the entire Secured
Obligations is made at any time prior to foreclosure sale by Mortgagor, its
successors or assigns, or by anyone on behalf of Mortgagor, its successors or
assigns, such tender shall, to the full extent permitted by law, constitute an
evasion of the prepayment terms of the Note and be deemed to be a voluntary
prepayment thereunder, and Mortgagee shall not be obligated to accept any such
tender of payment unless such tender of payment also includes the Prepayment
Premium set forth in the Note.
6.18. ADVANCES. (a) Mortgagee and Mortgagor intend that this
Mortgagee shall secure the unpaid balance of any advances made by the holder
hereof after this Mortgage is delivered to the Fairfield County Recorder for
record to the fullest extent and with the highest priority contemplated by
Section 5301.232 of the Ohio Revised Code. The maximum amount of all loan
advances, in the aggregate and exclusive of interest accrued thereon and
protective advanced made as contemplated in subsection (b) below and in Section
5301.233 of the Ohio Revised Code, which may be outstanding at any time is Four
Million Five Hundred Thousand Dollars ($4,500,000.00). If and to the extent
applicable, Mortgagor hereby waives any right it may have under Section
5301.232(c) of the Ohio Revised Code.
(b) In addition to the loan advances referred to in subsection
(a) above, Mortgagee shall have the right, but not the obligation, to make
protective advances with respect to the Mortgaged Property for the payment of
Impositions, insurance premiums, repairs, maintenance and other costs incurred
in the protection of the Mortgaged Property as contemplated by Section 5301.233
of the Ohio Revised Code, and such protective advances,
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together with interest thereon at the Default Rate set forth in the Note from
the date of each such advance until it is repaid in full, shall be secured by
this Mortgage to the fullest extent and with the highest priority contemplated
by said Section 5301.233.
6.19 LIMITATION OF LIABILITY. Subject to the terms of the next
succeeding paragraph and notwithstanding anything to the contrary otherwise
contained in this Mortgage, but without in any way releasing, impairing or
otherwise affecting the Note, this Mortgage or any of the other Loan Documents
(including without limitation any guaranties or indemnification agreements) or
the validity hereof or thereof, or the lien of this Mortgage, it is agreed that
Mortgagee's source of satisfaction of the Secured Obligations and of Mortgagor's
other obligations hereunder and under the Loan Documents is limited to (a) the
Mortgaged Property and proceeds thereof, (b) the Rents arising out of the
Mortgaged Property received by Mortgagor; and (c) any separate guaranty or
indemnification agreements guaranteeing or indemnifying Mortgagee with respect
to the payment of any amounts due hereunder and under the Loan Documents and/or
Mortgagor's performance hereunder and under the Loan Documents; provided,
however, that nothing herein contained shall be deemed to be a release or
impairment of the Secured Obligations or the security therefor intended by this
Mortgage, or be deemed to preclude Mortgagee from foreclosing this Mortgage or
from enforcing any of Mortgagee's rights or remedies in law or in equity
thereunder, or in any way or manner affecting Mortgagee's rights and privileges
under any of the Loan Documents or any separate guaranty or indemnification
agreements guaranteeing Mortgagor's payment and/or performance hereunder and/or
under the Loan Documents.
Notwithstanding the foregoing limitation of liability
provision, it is expressly understood and agreed that the Mortgagor shall be
personally liable for the payment to Mortgagee of:
(i) the application of Rents derived from the Mortgaged
Property after the occurrence of an Event of Default
to anything other than (a) normal and necessary
operating expenses of the Mortgaged Property, or (b)
the Secured Obligations. It is understood that any
Rents collected more than one month in advance as of
the time of the Event of Default shall be considered
to have been collected after the Event of Default;
(ii) any loss, cost or damages incurred by Mortgagee
arising out of or in connection with fraud or
material misrepresentations to Mortgagee by Mortgagor
(or any of Mortgagor's general partners, officers,
shareholders, members, or their agents, if
applicable);
(iii) any loss, cost or damages incurred by Mortgagee
arising out of or in connection with Mortgagor's use
or misapplication of: (a) any proceeds paid under any
insurance policies by reason of damage, loss or
destruction to any portion of the Mortgaged Property;
or (b) proceeds or awards resulting from the
condemnation or other taking in lieu of condemnation
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of any portion of the Property, for purposes other
than those set forth in the Mortgage;
(iv) any loss, cost or damages arising out of or in
connection with any waste of the Mortgaged Property
or any portion thereof, and all reasonable costs
incurred by Mortgagee in order to protect the
Mortgaged Property;
(v) any taxes, assessments and insurance premiums for
which Mortgagor is liable under the Note, this
Mortgage or any of the other Loan Documents and which
are paid by Mortgagee (but not the proportionate
amount of any such taxes, assessments and insurance
premiums which accrue following the date of
foreclosure [plus any applicable redemption period]
or acceptance of a deed in lieu of foreclosure);
(vi) any loss, costs or damages arising out of or in
connection with the covenants, obligations and
liabilities under the Environmental Indemnification
Agreement;
(vii) any loss, cost or damages to Mortgagee arising out of
or in connection with any construction lien,
mechanic's lien, materialmen's lien or similar lien
against the Mortgaged Property arising out of acts or
omissions of Mortgagor;
(viii) any and all loss, costs or damages incurred by
Mortgagee arising out of or incurred in order to
cause the Improvements to comply with the
accessibility provisions of The Americans with
Disabilities Act and each of the regulations
promulgated thereunder, as the same may be amended
from time to time which are required by an
governmental authority;
(ix) the total indebtedness evidenced by the Note and the
Loan Documents in the event that (a) Mortgagee is
prevented from acquiring title to the Property after
an Event of Default because of failure of Mortgagor's
title under federal, state or local laws less any
recovery Mortgagee is successful in collecting on any
title insurance policy it holds in connection with
the Mortgaged Property, (b) Mortgagor voluntarily
files a petition in bankruptcy or commences a case or
insolvency proceeding under any provision or chapter
of the Federal Bankruptcy Code;
(x) any loss, costs or damages incurred by Mortgagee
resulting from any act of Mortgagor or its general
partners, members, shareholders, officers, directors,
beneficiaries and/or trustees to obstruct, delay or
impede Mortgagee from exercising any of its rights or
remedies under the Loan Documents;
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(xi) the total indebtedness evidenced by the Note and the
Loan Documents in the event that (a) Mortgagor makes
an unpermitted transfer of an interest in Mortgagor
or the Mortgaged Property not approved by Mortgagee
in writing; or (b) Mortgagor makes an unpermitted
encumbrance on the Mortgaged Property or an interest
in Mortgagor not approved by Mortgagee in writing;
and
(xii) all costs and fees including without limitation
reasonable attorney fees incurred by Mortgagee in the
enforcement of subparagraphs (i) through (xi)
hereinabove.
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IN WITNESS WHEREOF, this Mortgage has been duly executed as of
the day and year first above written.
Signed and Acknowledged
in the presence of HOCKING VALLEY MALL, LLC,
a Delaware limited liability company
By: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership, Its sole Managing Member
By: Glimcher Properties Corporation,
its General Partner
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------------- ----------------------------------
Print Name: Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx,
----------------- Executive Vice President
/s/ Xxxxx X. Xxxxx
---------------------------
Print Name: Xxxxx X. Xxxxx
---------------
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ACKNOWLEDGMENT
--------------
STATE OF OHIO )
) ss:
COUNTY OF )
-------------------------------------------
Before me, a notary public, in and for said county, personally appeared
Xxxxxx X. Xxxxxxx, known to me to be the person who as Executive Vice President
of GLIMCHER PROPERTIES CORPORATION, a Delaware corporation and the General
Partner of GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership, in its capacity as the sole managing member of HOCKING VALLEY MALL,
LLC, a Delaware limited liability company, which executed the foregoing
instrument, signed the same and acknowledged to me that he did sign said
instrument in the name and upon behalf of said corporation as such officer in
the capacity therein stated, that the same is his free act and deed as such
officer, and the free act and deed of said corporation, and that he was duly
authorized thereunder.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed my official seal at Columbus, Ohio this day of January, 2002.
NOT REQUIRED
--------------------------------------
Notary Public
SEAL
My commission expires:
Prepared by or under the supervision of,
and after recording, return to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxx Xxxxx LLP
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
EXHIBIT "A"
PARCEL I:
All that certain parcel of ground situated in the County of Fairfield, State of
Ohio, Township of Greenfield, and in the City of Lancaster, and being part of
Section 36, Township 15, Range 19 and bounded and described as follows:
Beginning at a point in the north line of Xxxxxx Addition tot he City of
Lancaster S. 83 degrees 26' East, 388.01 feet distant from the point of
intersection of the centerline of Xxxxxx Avenue and the north line of Xxxxxx
Addition; thence N. 6 degrees 34' E., 308.00 feet to a point; thence S. 83
degrees 26' E., 38.00 feet to a point; thence N. 6 degrees 34' E., 441.19 feet
to a point in the southern right-of-way line of Canal; thence with the said
right-of-way line S. 84 degrees 11' E., 21.67 feet to an iron pin; thence N. 87
degrees 29' E., 145.98 feet to a point; thence S. 6 degrees 29' W., 120.00 feet
to a point; thence S. 83 degrees 31' E., 79.24 feet to a point; thence with a
curve to the left with a radius of 40.00 feet, the long chord bears N. 58
degrees 55' 30" E., 48.76 feet to a point; thence N. 21 degrees 22' E., 117.70
feet to an iron pin on the southern right-of-way line of Memorial Drive; thence
with said right-of-way line S. 65 degrees 27' E., 100.30 feet to an iron pin on
the southern right-of-way line of Canal; thence S 47 degrees 20' E., 44.46 feet
to an iron pin; thence S. 35 degrees 16' E., 166.01 feet to an iron pin; thence
S. 57 degrees 34' E., 116.11 feet to an iron pin; thence S 2 degrees 44' E.,
204.14 feet to an iron pin; thence S. 64 degrees 39' E., 160.00 feet to an iron
pin; thence S. 25 degrees 21' W., 364.40 feet to a manhole; thence S. 32 degrees
55' W., 105.00 feet to an iron pin; thence n. 24 degrees 41' W., 96.00 feet to
an iron pin; thence N. 44 degrees 11' W., 33.00 feet to an iron pin; thence N.
59 degrees 41' W., 33.00 feet to an iron pin; thence N. 71 degrees 56' W., 56.00
feet to an iron pin; thence N. 83 degrees 26' W., 558.60 feet to the place of
beginning.
Containing 12.29 acres more or less.
PARCEL II:
All that certain parcel of ground situate in the City of Lancaster, Township of
Greenfield, County of Fairfield, and State of Ohio, being part of Section 36,
Township 15, Range 19 and bounded and described as follows:
Beginning at an iron pin on the north line of Xxxxxx Addition to the City of
Lancaster S. 83 degrees 26' E., 53.01 feet distant from the point of
intersection of the Centerline of Xxxxxx Avenue, and the north line of Xxxxxx
Addition; thence with the eastern right-of-way line of Xxxxxx Avenue N. 5
degrees 19' E., 523.25 feet to an iron pin; thence S. 79 degrees 41' E., 150.00
feet to an iron pin; thence N 3 degrees 59' E., 268.54 feet to an iron pin on
the southern right-of-way line of Canal; thence with said right-of-way line S.
67 degrees 23' E., 123.22 feet to an iron pin; thence S 84 degrees 11' E.,
128.44 feet to a point in said Canal Line; thence leaving the
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Canal, S. 6 degrees 34' W., 441.19 feet to a point; thence N. 83 degrees 26' W.,
38.00 feet to a point; thence S 6 degrees 34' W., 308.00 feet to a point in the
north line of the Xxxxxx Addition; thence N 83 degrees 26' W., 335.00 feet to
the place of beginning.
Containing 5.55 acres more or less.
Parcel Nos. 000-00000-00 and 00-00000-00
PARCEL III - EASEMENT:
Together with those rights and easements constituting rights in real property
created, defined and limited by that certain Common Area Easement by and between
Commercial Development Corp., an Ohio corporation, Commercial Development, and
Hocking Valley National Bank of Lancaster, dated January 11, 1977 and recorded
February 17, 1977 in Deed Volume 467, Page 208 in the Clerk's Office of
Fairfield County, Ohio.
PARCEL IV - EASEMENT:
Together with those rights and easements constituting rights in real property
created, defined and limited by that certain Common Area, Ingress Easement and
Utility Easement by and between Commercial Development Corp., an Ohio
corporation, Commercial Development and Hocking Associates, an Ohio general
partnership dated March 9, 1977 and recorded March 10, 1977 in Deed Volume 467,
Page 644 in the Clerk's Office of Fairfield County, Ohio.
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