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Exhibit 10.83
[Kansas]
MORTGAGE
from
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, Mortgagor
to
BANKERS TRUST COMPANY, Mortgagee
DATED AS OF OCTOBER 30, 1998
After recording, please return to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
a partnership which includes
professional corporations
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx Xxxx, Esq.
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[Kansas]
MORTGAGE
THIS MORTGAGE, dated as of October 30, 1998, is made by
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership
("Mortgagor"), whose address is 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, to
BANKERS TRUST COMPANY ("Mortgagee"), whose address is 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000. References to this "Mortgage" shall mean this instrument
and any and all renewals, modifications, amendments, supplements, extensions,
consolidations, substitutions, spreaders and replacements of this instrument.
Background
Mortgagor is the owner of the parcel(s) of real property
described on Schedule A attached (such real property, together with all of the
buildings, improvements, structures and fixtures now or subsequently located
thereon (the "Improvements"), being collectively referred to as the "Real
Estate"). Mortgagor and the general partner of Mortgagor is the maker of a note
(as the same may be amended, supplemented, modified, extended, restated or
replaced from time to time, the "Note"), dated as of September 15, 1998, made
payable to Mortgagee in the amount of $10,000,000. The Note bears interest at
the rate stated in the Note; references in this Mortgage to the "Default Rate"
shall have the meaning given to such term in the Note.
Granting Clauses
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Mortgagor agrees that to secure:
(a) (i) the repayment of the indebtedness evidenced by the
Note, and (ii) all interest and fees payable thereon (the items set
forth in clauses (i) and (ii) being referred to collectively as the
"Indebtedness"); and
(b) the performance of all covenants, agreements, obligations
and liabilities (the "Obligations") of GPLP under or pursuant to the
provisions of the Note, and of Mortgagor under this Mortgage, any other
document securing payment of the Indebtedness (the "Security
Documents") and any amendments, supplements, extensions, renewals,
restatements, replacements or modifications of any of the foregoing
(the Note, the Security Documents and all other documents and
instruments
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from time to time evidencing, securing or guaranteeing the payment of
the Indebtedness or the performance of the Obligations, as any of the
same may be amended, supplemented, extended, renewed, restated,
replaced or modified from time to time, are collectively referred to as
the "Loan Documents");
MORTGAGOR HEREBY GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY INTEREST IN, AND
HEREBY MORTGAGES, GRANTS, ASSIGNS, TRANSFERS AND SETS OVER TO MORTGAGEE:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever
of Mortgagor, in possession or expectancy, in and to the Real Estate or
any part thereof;
(C) all right, title and interest of Mortgagor in, to and
under all easements, rights of way, gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water and
riparian rights, development rights, air rights, mineral rights and all
estates, rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to
the Real Estate, and any reversions, remainders, rents, issues, profits
and revenue thereof and all land lying in the bed of any street, road
or avenue, in front of or adjoining the Real Estate to the center line
thereof;
(D) all of the fixtures, chattels, business machines,
machinery, apparatus, equipment, furnishings, fittings and articles of
personal property of every kind and nature whatsoever, and all
appurtenances and additions thereto and substitutions or replacements
thereof (together with, in each case, attachments, components, parts
and accessories) currently owned or subsequently acquired by Mortgagor
and now or subsequently attached to, or contained in or used or usable
in any way in connection with any operation or letting of the Real
Estate, including but without limiting the generality of the foregoing,
all screens, awnings, shades, blinds, curtains, draperies, artwork,
carpets, rugs, storm doors and windows, furniture and furnishings,
heating, electrical, and mechanical equipment, lighting, switchboards,
plumbing, ventilating, air conditioning and air-cooling apparatus,
refrigerating, and incinerating equipment, escalators, elevators,
loading and unloading equipment and systems, stoves, ranges, laundry
equipment, cleaning systems (including window cleaning apparatus),
telephones, communication systems (including satellite dishes and
antennae), televisions, computers, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, security systems,
motors, engines, machinery, pipes, pumps, tanks, conduits, appliances,
fittings and fixtures of every kind and description (all of the
foregoing in this paragraph (D) being referred to as the "Equipment");
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(E) all right, title and interest of Mortgagor in and to all
substitutes and replacements of, and all additions and improvements to,
the Real Estate and the Equipment, subsequently acquired by or released
to Mortgagor or constructed, assembled or placed by Mortgagor on the
Real Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials whether stored at the Real Estate or offsite, and,
in each such case, without any further mortgage, conveyance, assignment
or other act by Mortgagor;
(F) all right, title and interest of Mortgagor in, to and
under all leases, subleases, underlettings, concession agreements,
management agreements, licenses and other agreements relating to the
use or occupancy of the Real Estate or the Equipment or any part
thereof, now existing or subsequently entered into by Mortgagor and
whether written or oral and all guarantees of any of the foregoing
(collectively, as any of the foregoing may be amended, restated,
extended, renewed or modified from time to time, the "Leases"), and all
rights of Mortgagor in respect of cash and securities deposited
thereunder and the right to receive and collect the revenues, income,
rents, issues and profits thereof, together with all other rents,
royalties, issues, profits, revenue, income and other benefits arising
from the use and enjoyment of the Mortgaged Property (as defined below)
(collectively, the "Rents");
(G) all trade names, trade marks, logos, copyrights, good will
and books and records relating to or used in connection with the
operation of the Real Estate or the Equipment or any part thereof; all
general intangibles related to the operation of the Improvements now
existing or hereafter arising;
(H) all unearned premiums under insurance policies now or
subsequently obtained by Mortgagor relating to the Real Estate or
Equipment and Mortgagor's interest in and to all proceeds of any such
insurance policies (including title insurance policies) including the
right to collect and receive such proceeds, subject to the provisions
relating to insurance generally set forth below; and all awards and
other compensation, including the interest payable thereon and the
right to collect and receive the same, made to the present or any
subsequent owner of the Real Estate or Equipment for the taking by
eminent domain, condemnation or otherwise, of all or any part of the
Real Estate or any easement or other right therein;
(I) all right, title and interest of Mortgagor in and to (i)
all contracts from time to time executed by Mortgagor or any manager or
agent on its behalf relating to the ownership, construction,
maintenance, repair, operation, occupancy, sale or financing of the
Real Estate or Equipment or any part thereof and all agreements
relating to the purchase or lease of any portion of the Real Estate or
any property which is adjacent or
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peripheral to the Real Estate, together with the right to exercise such
options and all leases of Equipment (collectively, the "Contracts"),
(ii) all consents, licenses, building permits, certificates of
occupancy and other governmental approvals relating to construction,
completion, occupancy, use or operation of the Real Estate or any part
thereof (collectively, the "Permits") and (iii) all drawings, plans,
specifications and similar or related items relating to the Real Estate
(collectively, the "Plans");
(J) any and all monies now or subsequently on deposit for the
payment of real estate taxes or special assessments against the Real
Estate or for the payment of premiums on insurance policies covering
the foregoing property or otherwise on deposit with or held by
Mortgagee as provided in this Mortgage; all capital, operating, reserve
or similar accounts held by or on behalf of Mortgagor and related to
the operation of the Mortgaged Property, whether now existing or
hereafter arising and all monies held in any of the foregoing accounts
and any certificates or instruments related to or evidencing such
accounts;
(K) all accounts and revenues arising from the operation of
the Improvements including, without limitation, (i) any right to
payment now existing or hereafter arising for rental of hotel rooms or
other space or for goods sold or leased or for services rendered,
whether or not yet earned by performance, arising from the operation of
the Improvements or any other facility on the Mortgaged Property and
(ii) all rights to payment from any consumer credit-charge card
organization or entity including, without limitation, payments arising
from the use of the American Express Card, the Visa Card, the Xxxxx
Xxxxxxx Card, the Mastercard or any other credit card, including those
now existing or hereafter created, substitutions therefor, proceeds
thereof (whether cash or non-cash, movable or immovable, tangible or
intangible) received upon the sale, exchange, transfer, collection or
other disposition or substitution thereof and any and all of the
foregoing and proceeds therefrom; and
(L) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now
owned or held or subsequently acquired by Mortgagor and described in the
foregoing clauses (A) through (E) are collectively referred to as the
"Premises", and those described in the foregoing clauses (A) through (L) are
collectively referred to as the "Mortgaged Property").
TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby mortgaged unto Mortgagee, its successors and assigns for the
uses and purposes set forth, until the Indebtedness is fully paid and the
Obligations fully performed.
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Terms and Conditions
Mortgagor further represents, warrants, covenants and agrees
with Mortgagee as follows:
1. Warranty of Title. Mortgagor warrants the title to the
Premises, subject only to the matters that are set forth in Schedule B of the
title insurance policy or policies being issued to Mortgagee to insure the lien
of this Mortgage (the "Permitted Exceptions").
2. Intentionally Deleted..
3. Requirements.
(a) Mortgagor shall promptly comply with, or cause to be
complied with, and conform to all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, rules, regulations and requirements, and
irrespective of the nature of the work to be done, of each of the United States
of America, any State and any municipality, local government or other political
subdivision thereof and any agency, department, bureau, board, commission or
other instrumentality of any of them, now existing or subsequently created
(collectively, "Governmental Authority") which has jurisdiction over the
Mortgaged Property and all covenants, restrictions and conditions now or later
of record which may be applicable to any of the Mortgaged Property, or to the
use, manner of use, occupancy, possession, operation, maintenance, alteration,
repair or reconstruction of any of the Mortgaged Property. All present and
future laws, statutes, codes, ordinances, orders, judgments, decrees, rules,
regulations and requirements of every Governmental Authority applicable to
Mortgagor or to any of the Mortgaged Property and all covenants, restrictions,
and conditions which now or later may be applicable to any of the Mortgaged
Property are collectively referred to as the "Legal Requirements".
(b) From and after the date of this Mortgage, Mortgagor shall
not by act or omission permit any building or other improvement on any premises
not subject to the lien of this Mortgage to rely on the Premises or any part
thereof or any interest therein to fulfill any Legal Requirement, and Mortgagor
hereby assigns to Mortgagee any and all rights to give consent for all or any
portion of the Premises or any interest therein to be so used. Mortgagor shall
not by act or omission impair the integrity of any of the Real Estate as a
single zoning lot separate and apart from all other premises. Mortgagor
represents that each parcel of the Real Estate constitutes a legally subdivided
lot, in compliance with all subdivision laws and similar Legal Requirements. Any
act or omission by Mortgagor which would result in a violation of any of the
provisions of this subsection shall be void.
4. Payment of Taxes and Other Impositions. (a) Promptly when
due, Mortgagor shall pay and discharge all taxes of every kind and nature
(including, without limitation, all real and personal property, income,
franchise, withholding, transfer, gains, profits and gross receipts taxes), all
charges for any easement or agreement maintained for the
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benefit of any of the Mortgaged Property, all general and special assessments,
levies, permits, inspection and license fees, all water and sewer rents and
charges, vault taxes, and all other public charges even if unforeseen or
extraordinary, imposed upon or assessed against or which may become a lien on
any of the Mortgaged Property, or arising in respect of the occupancy, use or
possession thereof, together with any penalties or interest on any of the
foregoing (all of the foregoing are collectively referred to as the
"Impositions"). Upon request by Mortgagee, Mortgagor shall deliver to Mortgagee
(i) original or copies of receipted bills and canceled checks evidencing payment
of such Imposition if it is a real estate tax or other public charge and (ii)
evidence acceptable to Mortgagee showing the payment of any other such
Imposition. If by law any Imposition, at Mortgagor's option, may be paid in
installments (whether or not interest shall accrue on the unpaid balance of such
Imposition), Mortgagor may elect to pay such Imposition in such installments and
shall be responsible for the payment of such installments with interest, if any.
(b) Nothing herein shall affect any right or remedy of
Mortgagee under this Mortgage or otherwise, without notice or demand to
Mortgagor, to pay any Imposition after the date such Imposition shall have
become due. Any sums paid by Mortgagee in discharge of any Impositions shall be
payable on demand by Mortgagor to Mortgagee together with interest at the
Default Rate.
(c) Mortgagor shall not claim, demand or be entitled to
receive any credit or credits toward the satisfaction of this Mortgage or on any
interest payable thereon for any taxes assessed against the Mortgaged Property
or any part thereof, and shall not claim any deduction from the taxable value of
the Mortgaged Property by reason of this Mortgage.
(d) Mortgagor shall have the right before any delinquency
occurs to contest or object in good faith to the amount or validity of any
Imposition by appropriate legal proceedings, but such right 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 unless (i) Mortgagor has given prior written notice to Mortgagee of
Mortgagor's intent so to contest or object to an Imposition, (ii) Mortgagor
shall demonstrate to Mortgagee's satisfaction that the legal proceedings shall
operate conclusively to prevent the sale of the Mortgaged Property, or any part
thereof, to satisfy such Imposition prior to final determination of such
proceedings and (iii) Mortgagor shall furnish a good and sufficient bond or
surety as requested by and reasonably satisfactory to Mortgagee in the amount of
the Impositions which are being contested plus any interest and penalty which
may be imposed thereon and which could become a lien against the Real Estate or
any part of the Mortgaged Property.
5. Insurance. (a) Mortgagor shall maintain or cause to be
maintained on all of the Premises
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(i) property insurance against loss or damage by fire,
lightning, windstorm, tornado, water damage, flood, earthquake and by
such other further risks and hazards as now are or subsequently may be
covered by an "all risk" policy or a fire policy covering "special"
causes of loss. The policy shall include building ordinance law
endorsements and the policy limits shall be automatically reinstated
after each loss;
(ii) comprehensive general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language of such endorsement), covering all claims for personal injury,
bodily injury or death, or property damage occurring on, in or about
the Premises in an amount not less than $10,000,000 combined single
limit with respect to injury and property damage relating to any one
occurrence plus such excess limits as Mortgagee shall request from time
to time;
(iii) when and to the extent required by Mortgagee, insurance
against loss or damage by any other risk commonly insured against by
persons occupying or using like properties in the locality or
localities in which the Real Estate is situated;
(iv) insurance against rent loss, extra expense or business
interruption (and/or soft costs, in the case of new construction), if
applicable, in amounts satisfactory to Mortgagee, but not less than one
year's gross rent or gross income;
(v) during the course of any construction or repair of
Improvements, comprehensive general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language of such endorsement), (including coverage for elevators and
escalators, if any). The policy shall include coverage for independent
contractors and completed operations. The completed operations coverage
shall stay in effect for two years after construction of any
Improvements has been completed. The policy shall provide coverage on
an occurrence basis against claims for personal injury, including,
without limitation, bodily injury, death or property damage occurring
on, in or about the Premises and the adjoining streets, sidewalks and
passageways, such insurance to afford immediate minimum protection to a
limit of not less than that required by Mortgagee with respect to
personal injury, bodily injury or death to any one or more persons or
damage to property;
(vi) during the course of any construction or repair of the
Improvements, workers' compensation insurance (including employer's
liability insurance) for all employees of Mortgagor engaged on or with
respect to the Premises in such amounts as are reasonably satisfactory
to Mortgagee, but in no event less than the limits established by law;
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(vii) during the course of any construction, addition,
alteration or repair of the Improvements, builder's risk completed
value form insurance against "all risks of physical loss," including
collapse, water damage, flood and earthquake and transit coverage,
during construction or repairs of the Improvements, with deductible
approved by Mortgagee, in nonreporting form, covering the total value
of work performed and equipment, supplies and materials furnished (with
an appropriate limit for soft costs in the case of construction);
(viii) boiler and machinery property 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 rent, extra expense, business interruption and
soft costs, if applicable, arising from any such breakdown, in such
amounts as are reasonably satisfactory to Mortgagee but not less than
the lesser of $1,000,000 or 10% of the value of the Improvements;
(ix) if any portion of the Premises are located in an area
identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, flood insurance in an
amount satisfactory to Mortgagee, but in no event less than the maximum
limit of coverage available under the National Flood Insurance Act of
1968, as amended; and
(x) such other insurance in such amounts as Mortgagee may
reasonably request from time to time.
Each insurance policy (other than flood insurance written under the National
Flood Insurance Act of 1968, as amended, in which case to the extent available)
shall (i) provide that it shall not be canceled, non-renewed or materially
amended without 30-days' prior written notice to Mortgagee, and (ii) with
respect to all property insurance, provide for deductibles not to exceed
$100,000, contain a "Replacement Cost Endorsement" without any deduction made
for depreciation and with no co-insurance penalty (or attaching an agreed amount
endorsement satisfactory to Mortgagee), with loss payable solely to Mortgagee
(modified, if necessary, to provide that proceeds in the amount of replacement
cost may be retained by Mortgagee without the obligation to rebuild) as its
interest may appear, without contribution, under a "standard" or "New York"
mortgagee clause acceptable to Mortgagee and be written by insurance companies
having an A.M. Best Company, Inc. rating of A or higher and a financial size
category of not less than XII, or otherwise as approved by Mortgagee. Liability
insurance policies shall name Mortgagee as an additional insured and contain a
waiver of subrogation against Mortgagee; all such policies shall indemnify and
hold Mortgagee harmless from all liability claims occurring on, in or about the
Premises and the adjoining streets, sidewalks and passageways. The amounts of
each insurance policy and the form of each such policy shall at all times be
satisfactory to Mortgagee. Each policy shall expressly provide that any proceeds
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which are payable to Mortgagee shall be paid by check payable to the order of
Mortgagee only and requiring the endorsement of Mortgagee only. If any required
insurance shall expire, be withdrawn, become void by breach of any condition
thereof by Mortgagor or by any lessee of any part of the Mortgaged Property or
become void or unsafe by reason of the failure or impairment of the capital of
any insurer, or if for any other reason whatsoever such insurance shall become
unsatisfactory to Mortgagee, Mortgagor shall immediately obtain new or
additional insurance satisfactory to Mortgagee. Mortgagor shall not take out any
separate or additional insurance which is contributing in the event of loss
unless it is properly endorsed and otherwise satisfactory to Mortgagee in all
respects.
(b) Mortgagor shall deliver to Mortgagee an original of each
insurance policy required to be maintained, or a certificate of such insurance
acceptable to Mortgagee, together with a copy of the declaration page for each
such policy. Mortgagor shall (i) pay as they become due all premiums for such
insurance, (ii) not later than 15 days prior to the expiration of each policy to
be furnished pursuant to the provisions of this Section, deliver a renewed
policy or policies, or duplicate original or originals thereof, marked "premium
paid," or accompanied by such other evidence of payment satisfactory to
Mortgagee with standard non-contributory mortgage clauses in favor of and
acceptable to Mortgagee. Upon request of Mortgagee, Mortgagor shall cause its
insurance underwriter or broker to certify to Mortgagee in writing that all the
requirements of this Mortgage governing insurance have been satisfied.
(c) If Mortgagor is in default of its obligations to insure or
deliver any such prepaid policy or policies, then Mortgagee, at its option and
without notice, may effect such insurance from year to year, and pay the premium
or premiums therefor, and Mortgagor shall pay to Mortgagee on demand such
premium or premiums so paid by Mortgagee with interest from the time of payment
at the Default Rate.
(d) Mortgagor shall increase the amount of property insurance
required to equal 100% replacement cost pursuant to the provisions of this
Section at the time of each renewal of each policy (but not later than 12 months
from the date of this Mortgage and each successive 12 month period to occur
thereafter) by using the X.X. Xxxxx Building Index or an equivalent index to
determine whether there shall have been an increase in the replacement value
since the most recent adjustment and, if there shall have been such an increase,
the amount of insurance required shall be adjusted accordingly.
(e) Mortgagor promptly shall comply with and conform to (i)
all provisions of each such insurance policy, and (ii) all requirements of the
insurers applicable to Mortgagor or to any of the Mortgaged Property or to the
use, manner of use, occupancy, possession, operation, maintenance, alteration or
repair of any of the Mortgaged Property. Mortgagor shall not use or permit the
use of the Mortgaged Property in any manner which would permit any insurer to
cancel any insurance policy or void coverage required to be maintained by this
Mortgage.
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(f) If the Mortgaged Property, or any part thereof, shall be
destroyed or damaged by fire or any other casualty, whether insured or
uninsured, or in the event any claim is made against Mortgagor for any personal
injury, bodily injury or property damage incurred on or about the Premises,
Mortgagor shall give immediate notice thereof to Mortgagee. If the Mortgaged
Property is damaged by fire or other casualty and the cost to repair such damage
is less than the lesser of (i) 15% of the replacement cost of the Improvements
at the affected Real Estate site and (ii) $300,000, then provided that no Event
of Default shall have occurred and be continuing, Mortgagor shall have the right
to adjust such loss, and the insurance proceeds relating to such loss may be
paid over to Mortgagor; provided that Mortgagor shall, promptly after any such
damage, repair all such damage regardless of whether any insurance proceeds have
been received or whether such proceeds, if received, are sufficient to pay for
the costs of repair. If the Mortgaged Property is damaged by fire or other
casualty, and the cost to repair such damage exceeds the above limit, or if an
Event of Default shall have occurred and be continuing, then Mortgagor
authorizes and empowers Mortgagee, at Mortgagee's option and in Mortgagee's sole
discretion, as attorney-in-fact for Mortgagor, to make proof of loss, to adjust
and compromise any claim under any insurance policy, to appear in and prosecute
any action arising from any policy, to collect and receive insurance proceeds
and to deduct therefrom Mortgagee's expenses incurred in the collection process.
Each insurance company concerned is hereby authorized and directed to make
payment for such loss directly to Mortgagee. Mortgagee shall have the right to
require Mortgagor to repair or restore the Mortgaged Property, and Mortgagor
hereby designates Mortgagee as its attorney-in-fact for the purpose of making
any election required or permitted under any insurance policy relating to repair
or restoration. The insurance proceeds or any part thereof received by Mortgagee
may be applied by Mortgagee toward reimbursement of all costs and expenses of
Mortgagee in collecting such proceeds, and the balance: (i) providing that no
Event of Default shall have occurred and is continuing, shall be made available
to Mortgagor for purposes of restoration or repair of the property damaged; or
(ii) should an Event of Default have occurred and be continuing, at Mortgagee's
option in its sole and absolute discretion, to the principal (to the
installments in inverse order of maturity, if payable in installments) and
interest due or to become due under the Note, to fulfill any other Obligation of
Mortgagor, to the restoration or repair of the property damaged, or released to
Mortgagor. In the event Mortgagee elects to release such proceeds to Mortgagor,
Mortgagor shall be obligated to use such proceeds to restore or repair the
Mortgaged Property. Application by Mortgagee of any insurance proceeds toward
the last maturing installments of principal and interest due or to become due
under the Note shall not excuse Mortgagor from making any regularly scheduled
payments due thereunder, nor shall such application extend or reduce the amount
of such payments.
(g) In the event of foreclosure of this Mortgage or other
transfer of title to the Mortgaged Property in extinguishment of the
Indebtedness, all right, title and interest of Mortgagor in and to any insurance
policies then in force shall pass to the purchaser or grantee
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and Mortgagor hereby appoints Mortgagee its attorney-in-fact, in Mortgagor's
name, to assign and transfer all such policies and proceeds to such purchaser or
grantee.
(h) Mortgagor may maintain insurance required under this
Mortgage by means of one or more blanket insurance policies maintained by
Mortgagor; provided, however, that (A) any such policy shall specify, or
Mortgagor shall furnish to Mortgagee a written statement from the insurer so
specifying, the maximum amount of the total insurance afforded by such blanket
policy that is allocated to the Premises and the other Mortgaged Property and
any sublimits in such blanket policy applicable to the Premises and the other
Mortgaged Property, (B) each such blanket policy shall include an endorsement
providing that, in the event of a loss resulting from an insured peril,
insurance proceeds shall be allocated to the Mortgaged Property in an amount
equal to the coverages required to be maintained by Mortgagor as provided above
and (C) the protection afforded under any such blanket policy shall be no less
than that which would have been afforded under a separate policy or policies
relating only to the Mortgaged Property.
6. Restrictions on Liens and Encumbrances. Except for the lien
of this Mortgage and the Permitted Exceptions, Mortgagor shall not further
mortgage, nor otherwise encumber the Mortgaged Property nor create or suffer to
exist any lien, charge or encumbrance on the Mortgaged Property, or any part
thereof, whether superior or subordinate to the lien of this Mortgage and
whether recourse or non-recourse.
7. Due on Sale and Other Transfer Restrictions. Mortgagor
shall not sell, transfer, convey or assign all or any portion of, or any
interest in, the Mortgaged Property.
8. Limitation on Fundamental Changes. Mortgagor agrees that:
(i) if Mortgagor is a partnership, Mortgagor shall not
dissolve or terminate or materially amend the terms of its partnership
agreement; and
(ii) Mortgagor shall not enter into any transaction of merger
or consolidation, or liquidate or dissolve itself (or suffer any
liquidation or dissolution), or acquire by purchase or otherwise all or
substantially all the business or assets of, or any stock or other
evidence of beneficial ownership of, any entity.
9. Maintenance; No Alteration; Inspection; Utilities. (a)
Mortgagor shall maintain or cause to be maintained all the Improvements in good
condition and repair and shall not commit or suffer any waste of the
Improvements. Mortgagor shall repair, restore, replace or rebuild promptly any
part of the Premises which may be damaged or destroyed by any casualty
whatsoever. The Improvements shall not be demolished or materially altered, nor
any material additions built, without the prior written consent of Mortgagee.
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(b) Mortgagee and any persons authorized by Mortgagee shall
have the right to enter and inspect the Premises and the right to inspect all
work done, labor performed and materials furnished in and about the Improvements
and the right to inspect and make copies of all books, contracts and records of
Mortgagor relating to the Mortgaged Property.
(c) Mortgagor shall pay or cause to be paid when due all
utility charges which are incurred for gas, electricity, water or sewer services
furnished to the Premises and all other assessments or charges of a similar
nature, whether public or private, affecting the Premises or any portion
thereof, whether or not such assessments or charges are liens thereon.
10. Condemnation/Eminent Domain. Immediately upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Mortgaged Property, or any portion thereof, Mortgagor will notify Mortgagee of
the pendency of such proceedings. Mortgagor authorizes Mortgagee, at Mortgagee's
option and in Mortgagee's sole discretion, as attorney-in-fact for Mortgagor, to
commence, appear in and prosecute, in Mortgagee's or Mortgagor's name, any
action or proceeding relating to any condemnation of the Mortgaged Property, or
any portion thereof, and to settle or compromise any claim in connection with
such condemnation. If Mortgagee elects not to participate in such condemnation
proceeding, then Mortgagor shall, at its expense, diligently prosecute any such
proceeding and shall consult with Mortgagee, its attorneys and experts and
cooperate with them in any defense of any such proceedings. All awards and
proceeds of condemnation shall be assigned to Mortgagee to be applied in the
same manner as insurance proceeds, as provided above, and Mortgagor agrees to
execute any such assignments of all such awards as Mortgagee may request.
11. Restoration. At any time when Mortgagee releases funds to
Mortgagor for restoration of any of the Mortgaged Property, then such
restoration shall be performed only in accordance with the following conditions:
(i) prior to the commencement of any restoration, the plans
and specifications for such restoration, and the budgeted costs, shall
be submitted to and approved by Mortgagee;
(ii) prior to making any advance of restoration funds,
Mortgagee shall be satisfied that the remaining restoration funds are
sufficient to complete the restoration and to pay all related expenses,
including interest on the Indebtedness and real estate taxes on the
Premises, during restoration;
(iii) at the time of any disbursement of the restoration
funds, (A) no Default (as defined below) shall then exist, (B) no
mechanics' or materialmen's liens shall have been filed and remain
undischarged, except those discharged by the disbursement of the
requested restoration funds and (C) a satisfactory bring-down or
continuation of title insurance on the Premises shall be delivered to
Mortgagee;
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(iv) disbursements shall be made from time to time in an
amount not exceeding the cost of the work completed since the last
disbursement, upon receipt of satisfactory evidence of the stage of
completion and of performance of the work in a good and workmanlike
manner and in accordance with the contracts, plans and specifications
acceptable to Mortgagee;
(v) with respect to each advance of restoration funds,
Mortgagee may retain 10% of the amount of such advance as a holdback
until the restoration is fully completed;
(vi) the restoration funds shall bear no interest and may be
commingled with Mortgagee's other funds;
(vii) Mortgagee may impose such other conditions as are
customarily imposed by construction lenders; and
(viii) any restoration funds remaining shall be retained by
Mortgagee and may be applied by Mortgagee, in its sole discretion, to
the Indebtedness in the inverse order of maturity.
12. Leases. (a) Mortgagor shall not (i) execute an assignment
or pledge of any Lease relating to all or any portion of the Mortgaged Property
other than in favor of Mortgagee, or (ii) without the prior written consent of
Mortgagee, execute any new Lease for space in excess of 10,000 square feet.
(b) As to any existing or new Lease Mortgagor shall:
(i) promptly perform all of the provisions of the Lease on the
part of the lessor thereunder to be performed;
(ii) promptly enforce all of the provisions of the Lease on
the part of the lessee thereunder to be performed;
(iii) appear in and defend any action or proceeding arising
under or in any manner connected with the Lease or the obligations of
Mortgagor as lessor or of the lessee thereunder;
(iv) exercise, within 5 days after a request by Mortgagee, any
right to request from the lessee a certificate with respect to the
status thereof;
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(v) simultaneously deliver to Mortgagee copies of any notices
of default which Mortgagor may at any time forward to or receive from
the lessee;
(vi) upon request, promptly deliver to Mortgagee a fully
executed counterpart of the Lease; and
(vii) promptly deliver to Mortgagee, upon Mortgagee's request,
an assignment of the Mortgagor's interest under such Lease.
(c) Mortgagor shall deliver to Mortgagee, within 10 days after
a request by Mortgagee, a written statement, certified by Mortgagor as being
true, correct and complete, containing the names of all lessees and other
occupants of the Mortgaged Property, the terms of all Leases and the spaces
occupied and rentals payable thereunder, and a list of all Leases which are then
in default, including the nature and magnitude of the default; such statement
shall be accompanied by credit information with respect to the lessees and such
other information as Mortgagee may reasonably request.
(d) All Leases entered into by Mortgagor after the date
hereof, if any, and all rights of any lessees thereunder shall be subject and
subordinate in all respects to the lien and provisions of this Mortgage unless
Mortgagee shall otherwise elect in writing.
(e) As to any existing or new Lease for space in excess of
10,000 square feet, Mortgagor shall not accept a surrender or terminate, cancel,
rescind, supplement, alter, revise, modify or amend such Lease or permit any
such action to be taken without the prior written consent of Mortgagee. As to
any exiting or new Lease, Mortgagor shall not accept the payment of rent more
than thirty (30) days in advance of its due date.
(f) If any act or omission of Mortgagor would give any lessee
under any Lease the right, immediately or after lapse of a period of time, to
cancel or terminate such Lease, or to xxxxx or offset against the payment of
rent or to claim a partial or total eviction, such lessee shall not exercise
such right until it has given written notice of such act or omission to
Mortgagee and until a reasonable period for remedying such act or omission shall
have elapsed following the giving of such notice without a remedy being
effected.
(g) In the event of the enforcement by Mortgagee of any remedy
under this Mortgage, the lessee under each Lease shall, if requested by
Mortgagee or any other person succeeding to the interest of Mortgagee as a
result of such enforcement, attorn to Mortgagee or to such person and shall
recognize Mortgagee or such successor in interest as lessor under the Lease
without change in the provisions thereof; provided however, that Mortgagee or
such successor in interest shall not be: (i) bound by any payment of an
installment of rent or additional rent which may have been made more than 30
days before the due date of such installment; (ii) bound by any amendment or
modification to the Lease made without the
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consent of Mortgagee or such successor in interest; (iii) liable for any
previous act or omission of Mortgagor (or its predecessors in interest); (iv)
responsible for any monies owing by Mortgagor to the credit of such lessee or
subject to any credits, offsets, claims, counterclaims, demands or defenses
which the lessee may have against Mortgagor (or its predecessors in interest);
(v) bound by any covenant to undertake or complete any construction of the
Premises or any portion thereof; or (vi) obligated to make any payment to such
lessee other than any security deposit actually delivered to Mortgagee or such
successor in interest. Each lessee or other occupant, upon request by Mortgagee
or such successor in interest, shall execute and deliver an instrument or
instruments confirming such attornment. In addition, Mortgagor agrees that each
Lease entered into after the date of this Mortgage shall include language to the
effect of subsections (d)-(g) of this Section; provided that the provisions of
such subsections shall be self-operative and any failure of any Lease to include
such language shall not impair the binding effect of such provisions on any
lessee under such Lease.
13. Further Assurances/Estoppel Certificates. To further
assure Mortgagee's rights under this Mortgage, Mortgagor agrees upon demand of
Mortgagee to do any act or execute any additional documents (including, but not
limited to, security agreements on any personalty included or to be included in
the Mortgaged Property and a separate assignment of each Lease in recordable
form) as may be required by Mortgagee to confirm the lien of this Mortgage and
all other rights or benefits conferred on Mortgagee. Mortgagor, within 5
business days after request, shall deliver, in form and substance satisfactory
to Mortgagee, a written statement, duly acknowledged, setting forth the amount
of the Indebtedness, and whether any offsets, claims, counterclaims or defenses
exist against the Indebtedness and certifying as to such other matters as
Mortgagee shall reasonably request.
14. Mortgagee's Right to Perform. If Mortgagor fails to
perform any of the covenants or agreements of Mortgagor, Mortgagee, without
waiving or releasing Mortgagor from any obligation or default under this
Mortgage, may, at any time (but shall be under no obligation to) pay or perform
the same, and the amount or cost thereof, with interest at the Default Rate,
shall immediately be due from Mortgagor to Mortgagee. To the extent that any
such amounts or costs paid by Mortgagee shall constitute payment of (i)
Impositions; (ii) premiums on insurance policies covering the Premises; (iii)
expenses incurred in upholding or enforcing the lien of this Mortgage,
including, but not limited to the expenses of any litigation to prosecute or
defend the rights and lien created by this Mortgage; (iv) costs of removal of or
otherwise related to Hazardous Materials (as defined below) or asbestos; or (v)
any amount, costs or charge to which Mortgagee becomes subrogated, upon payment,
whether under recognized principles of law or equity, or under express statutory
authority; then, and in each such event, such amounts or costs, together with
interest thereon at the Default Rate, shall be added to the Indebtedness and
shall be secured by this Mortgage and shall be a lien on the Mortgaged Property
prior to any right, title to, interest in, or claim upon the Mortgaged Property
attaching subsequent to the lien of this Mortgage. No payment or advance of
money
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by Mortgagee under this Section shall be deemed or construed to cure Mortgagor's
default or waive any right or remedy of Mortgagee.
15. Mortgagor's Existence, etc. Mortgagor shall do all things
necessary to preserve and keep in full force and effect its existence,
franchises, rights and privileges under the laws of the state in which it was
formed and its right to own property and transact business in each state in
which the Real Estate is located. Mortgagor represents and warrants that
Mortgagor is a duly organized and validly existing corporation or general or
limited partnership, as the case may be, in good standing, and this Mortgage has
been executed by a duly authorized partner or officer thereof, as applicable.
This Mortgage constitutes the legal, valid and binding obligation of Mortgagor,
enforceable against Mortgagor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
16. Financial Statements; Certificates; Other Information. (a)
Mortgagor shall deliver to Mortgagee (i) within 120 days after the end of each
of its fiscal years annual operating statements and a rent roll for the Premises
and a copy of Mortgagor's annual audited report, including a statement of
sources and uses of funds of Mortgagor as at the end of such year, and related
statements of income and retained earnings and changes in financial position for
such year, and (ii) within 90 days after the end of each of its fiscal quarters
(other than the last) quarterly operating statements and a rent roll for the
Premises as at the end of such quarter. The foregoing financial statements shall
be certified by the chief financial officer of or by a partner in Mortgagor, as
the case may be, and with respect to Mortgagor's annual financial statements,
also by a certified public accountant approved by Mortgagee. All financial
statements delivered to Mortgagee shall be true and correct in all respects,
shall be prepared in accordance with generally accepted accounting principles,
consistently applied, and fairly present the financial condition of the subject
as of the dates thereof and each of the operating statements shall be in
reasonable detail and include cash flow and any other information reasonably
requested by Mortgagee. Any materially adverse change that occurs in the
financial condition reflected therein after the date thereof shall be reported
to Mortgagee promptly. None of the financial statements, or any certificate or
statement furnished to Mortgagee by or on behalf of Mortgagor in connection with
the transactions contemplated hereby, shall contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained therein or herein not misleading.
(b) Mortgagor shall furnish to Mortgagee:
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(i) concurrently with the delivery of the financial statements
referred to in subsection (a), a certificate of an executive officer or
of a partner of Mortgagor stating that, to the best of such person's
knowledge, after such examination or investigation as is necessary to
enable such person to make an informed judgment, Mortgagor during such
period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Mortgage
and all other documents evidencing, securing or relating to the
Indebtedness to be observed, performed or satisfied by it, and that
such person has obtained no knowledge of any Event of Default or any
event which with the giving of notice or passage of time, or both,
would constitute an Event of Default ("Default"), except as specified
in such certificate;
(ii) not later than 60 days prior to the end of each 12-month
period, commencing with the 12-month period ending on the date one year
from the date of this Mortgage, a copy of the projections by Mortgagor
of the operating budget and cash flow for the Premises for such
12-month period; and
(iii) promptly, such additional financial and other
information as Mortgagee may from time to time reasonably request.
17. Notice of Certain Occurrences. Mortgagor shall give notice
to Mortgagee promptly upon the occurrence of:
(a) any Default or Event of Default;
(b) any (i) default or event of default under any provision of
any security issued by or any agreement, instrument or undertaking of Mortgagor
or which binds Mortgagor or any property thereof (collectively, "Contractual
Obligations") or (ii) litigation, investigation or proceeding which may exist at
any time between Mortgagor and any Governmental Authority, which, with respect
to both clauses (i) and (ii), could have a material adverse effect on the
business, operations, property or financial or other condition of Mortgagor;
(c) any litigation or proceeding affecting Mortgagor or the
Mortgaged Property or any part thereof in which the amount involved is $250,000
or more and not fully covered by insurance or in which injunctive or similar
relief is sought; and
(d) a material adverse change in the business, operations,
property or financial or other condition of Mortgagor or the Mortgaged Property
or any part thereof.
18 Hazardous Material. (a) Neither Mortgagor nor, to the best
knowledge of Mortgagor, any other person has ever caused or permitted, in
violation of any Legal Requirement, any Hazardous Material (as defined below) to
be placed, held, located or
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disposed of on, under or at the Premises, or any part thereof, and the Premises
have never been used (whether by Mortgagor or, to the best knowledge of
Mortgagor, by any other person, including any tenant) as a dump site or storage
(whether permanent or temporary) site for any Hazardous Material, in violation
of any Legal Requirement.
(b) Mortgagor represents that (i) to the best of Mortgagor's
knowledge, the Premises are free of all Hazardous Material that are in violation
of any Legal Requirement and (ii) neither the Premises nor any site within the
vicinity of the Premises is or has been adversely affected by any Hazardous
Material or is in violation of any applicable Legal Requirement of any
Governmental Authority regulating, relating to, or imposing liability or
standards of conduct concerning Hazardous Material.
(c) Mortgagor shall comply with any and all applicable Legal
Requirements governing the discharge and removal of Hazardous Material, shall
pay immediately when due the costs of removal of any Hazardous Material, and
shall keep the Premises free of any lien imposed pursuant to such Legal
Requirements. In the event Mortgagor fails to do so, after notice to Mortgagor
and the expiration of the earlier of (i) applicable cure periods hereunder, or
(ii) the cure period permitted under the applicable Legal Requirement, Mortgagee
may declare such failure an Event of Default or cause the Premises to be freed
from the Hazardous Material and the cost of the removal with interest at the
Default Rate shall immediately be due from Mortgagor to Mortgagee. Mortgagor
further agrees not to release or dispose of any Hazardous Material at the
Premises without the express approval of Mortgagee and any such release or
disposal shall comply with all applicable Legal Requirements and any conditions
established by Mortgagee. In addition, Mortgagor agrees not to allow the
manufacture, storage, transmission, presence or disposal of any Hazardous
Material over or upon the Premises. Mortgagee shall have the right at any time
to conduct an environmental audit of the Premises and Mortgagor shall cooperate
in the conduct of such environmental audit. Mortgagor shall give Mortgagee and
its agents and employees access to the Premises to remove Hazardous Material.
Mortgagor agrees to defend, indemnify and hold Mortgagee free and harmless from
and against all loss, costs, damage and expense (including attorneys' fees and
costs and consequential damages) Mortgagee may sustain by reason of (i) the
imposition or recording of a lien by any Governmental Authority pursuant to any
Legal Requirement relating to hazardous or toxic wastes or substances or the
removal thereof ("Hazardous Material Laws"); (ii) claims of any private parties
regarding violations of Hazardous Material Laws; (iii) costs and expenses
(including, without limitation, attorneys' fees and fees incidental to the
securing of repayment of such costs and expenses) incurred by Mortgagor or
Mortgagee in connection with the removal of any such lien or in connection with
Mortgagor's or Mortgagee's compliance with any Hazardous Material Laws; and (iv)
the assertion against Mortgagee by any party of any claim in connection with
Hazardous Material.
(d) For the purposes of this Mortgage, "Hazardous Material"
means and includes any hazardous, nuclear, toxic or dangerous waste, substance
or material defined as
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such in (or for purposes of) the Comprehensive Environmental Response,
Compensation, and Liability Act, any so-called "Superfund" or "Superlien" law,
or any other Legal Requirement regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous, nuclear, toxic or dangerous
waste, substance or material, as now or at any time in effect.
(e) The foregoing indemnification shall survive repayment of
the Note, notwithstanding the delivery of any satisfaction, release or release
deed, discharge or deed of reconveyance, or the assignment of this Mortgage by
Mortgagee.
19 Asbestos. Mortgagor shall not install or permit to be
installed in the Premises friable asbestos or any substance containing asbestos
and deemed hazardous by any Legal Requirement respecting such material, or any
other building material deemed to be harmful, hazardous or injurious by relevant
Legal Requirements and with respect to any such material currently present in
the Premises shall promptly either (a) remove any material which such Legal
Requirements deem harmful, hazardous or injurious and require to be removed or
(b) otherwise comply with such Legal Requirements, at Mortgagor's expense. If
Mortgagor shall fail to so remove or otherwise comply, Mortgagee may declare an
Event of Default and/or do whatever is necessary to eliminate such substances
from the Premises or otherwise comply with the applicable Legal Requirement, and
the costs thereof, with interest at the Default Rate, shall be immediately due
from Mortgagor to Mortgagee. Mortgagor shall give Mortgagee and its agents and
employees access to the Premises to remove such asbestos or substances.
Mortgagor shall defend, indemnify, and save Mortgagee harmless from all loss,
costs, damages and expense (including attorneys' fees and costs and
consequential damages) asserted or proven against Mortgagee by any party, as a
result of the presence of such substances or any removal or compliance with such
Legal Requirements. The foregoing indemnification shall survive repayment of the
Note, notwithstanding the delivery of any satisfaction, release or release deed,
discharge or deed of reconveyance, or the assignment of this Mortgage by
Mortgagee.
20 Events of Default. The occurrence of any one or more of the
following events shall constitute an Event of Default:
(a) an Event of Default shall occur under the Note;
(b) a failure to make payment of any other sums required to be
paid hereunder (including, without limitation, any Imposition) within
the period required by specific provision of this Mortgage or, if no
such period is so provided, by no later than three days after written
notice; or
(c) a failure (i) to keep in force the insurance required by
this Mortgage, or (ii) to comply with and conform to all provisions and
requirements of the insurance
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policies and the insurers thereunder which would affect Mortgagor's
ability to keep in force the insurance required by this Mortgage or to
collect any proceeds therefrom, or (iii) to comply with any other
material provisions of this Mortgage regarding insurance; or
(d) upon default, five business days after request, in
furnishing a statement of the outstanding amount secured by this
Mortgage and whether any offset or defense exists against the
Indebtedness; or
(e) upon the actual waste, removal or demolition of, or
material alteration to, any part of the Premises (other than necessary
replacements of worn or obsolete Equipment), or construction of any new
Improvements; or
(f) upon failure to comply promptly with any Legal Requirement
or order or notice of violation of law or ordinance issued by any
Governmental Authority having jurisdiction over the Premises, which
failure could materially adverse affect the Mortgaged Property; or
(g) if any representation or warranty made by Mortgagor in
this Mortgage shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(h) if any Obligor (as defined below) shall (i) default in any
payment of principal of or interest on any (A) indebtedness for
borrowed money in respect of which an Obligor is liable, contingently
or otherwise, as obligor, guarantor or otherwise, or in respect of
which such Obligor otherwise assures a creditor against loss or (B)
obligations under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as
capital leases for which obligations such Obligor is liable,
contingently or otherwise, as obligor, guarantor or otherwise, or for
which obligations such Obligor assures a creditor against loss
(collectively referred to as "Debt") (other than the Note) beyond the
period of grace (not to exceed 30 days), if any, provided in the
instrument or agreement under which such Debt was created; or (ii)
default in the observance or performance of any other agreement or
condition relating to any such Debt or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of
such Debt (or a trustee or agent on behalf of such holder or holders)
to cause, with the giving of notice if required, such Debt to become
due prior to its stated maturity; or
(i) if (i) Mortgagor or any Partner or any guarantor of
payment of all or any portion of the Indebtedness or performance of any
of the Obligations (a "Guarantor";
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Mortgagor, each Partner and each Guarantor being collectively referred
to as an "Obligor") shall commence any case, proceeding or other action
(A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief
of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part of its
assets, or any Obligor shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against any Obligor
any case, proceeding or other action of a nature referred to in clause
(i) above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days (the events specified
in clauses (i) and (ii) of this subsection being referred to as
"Automatic Acceleration Defaults"); or (iii) there shall be commenced
against any Obligor any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets, which
results in the entry of an order for any such relief which shall not
have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) any Obligor shall take
any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clauses (i), (ii)
or (iii) above; or (v) any Obligor shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(j) if one or more judgments or decrees shall be entered
against any Obligor involving in the aggregate a liability (not paid or
fully covered by insurance) of $250,000 or more and all such judgments
or decrees shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or
(k) if any of the Mortgaged Property is damaged or destroyed
by an uninsured casualty and Mortgagor does not immediately provide
funds for the restoration of the damage caused by such casualty; or
(l) if Mortgagor shall further mortgage, pledge or otherwise
encumber the Mortgaged Property or any part thereof or any interest
therein or create or suffer to exist any lien, charge or other
encumbrance on the Mortgaged Property or any part thereof, whether
superior or subordinate to the lien of this Mortgage, whether recourse
or non-recourse; or
(m) if, except as permitted herein, Mortgagor shall (A) sell,
transfer, convey or assign the Mortgaged Property or any part thereof
or any interest therein (by
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operation of law or otherwise), or (B) lease any of the Mortgaged
Property without the prior written consent of Mortgagee;
(n) this Mortgage shall cease for any reason to be in full
force and effect or Mortgagor shall so assert in writing; or
(o) a failure of Mortgagor to duly perform and observe, or a
violation or breach of, any other terms, covenants, provisions or
conditions of this Mortgage and the continuation thereof for a 30-day
period after notice shall have been given to Mortgagor by Mortgagee
specifying such default and requiring such default be remedied; which
period may be extended to the extent required (but not longer than 180
days) if such default is not susceptible of cure within 30 days so long
as Mortgagor has commenced to cure such default within such 30-day
period and is thereafter diligently prosecuting such cure to completion
and so long as such delay is not likely to have a material adverse
effect on either the Mortgaged Property or Mortgagee's rights under
this Mortgage; provided, however, any such default that can be cured by
the payment of money shall be promptly cured after notice by Mortgagee.
21 Remedies.
(a) Upon the occurrence of any Event of Default, in addition
to any other rights and remedies Mortgagee may have pursuant to the
Loan Documents, or as provided by law, and without limitation, (a) if
such event is an Automatic Acceleration Default, automatically the
Indebtedness and all other amounts owing under the Note, this Mortgage
and the other Security Documents immediately shall become due and
payable, and (b) if such event is any other Event of Default, by notice
to Mortgagor, Mortgagee may declare the Indebtedness (together with
accrued interest thereon) and all other amounts payable under the Note,
this Mortgage and the other Security Documents to be immediately due
and payable. Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are
hereby expressly waived. In addition, upon the occurrence of any Event
of Default, Mortgagee may immediately take such action, without notice
or demand, as it deems advisable to protect and enforce its rights
against Mortgagor and in and to the Mortgaged Property, including, but
not limited to, the following actions, each of which may be pursued
concurrently or otherwise, at such time and in such manner as Mortgagee
may determine, in its sole discretion, without impairing or otherwise
affecting the other rights and remedies of Mortgagee:
(i) Mortgagee may, to the extent permitted by
applicable law, (A) institute and maintain an action of
mortgage foreclosure against all or any part of the Mortgaged
Property, (B) institute and maintain an action on the Note,
(C) sell all or part of the Mortgaged Property (Mortgagor
expressly granting to
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Mortgagee the power of sale), or (D) take such other action at
law or in equity for the enforcement of this Mortgage or any
of the Loan Documents as the law may allow. Mortgagee may
proceed in any such action to final judgment and execution
thereon for all sums due hereunder, together with interest
thereon at the Default Rate and all costs of suit, including,
without limitation, reasonable attorneys' fees and
disbursements. Interest at the Default Rate shall be due on
any judgment obtained by Mortgagee from the date of judgment
until actual payment is made of the full amount of the
judgment.
(ii) Mortgagee may personally, or by its agents,
attorneys and employees and without regard to the adequacy or
inadequacy of the Mortgaged Property or any other collateral
as security for the Indebtedness and Obligations enter into
and upon the Mortgaged Property and each and every part
thereof and exclude Mortgagor and its agents and employees
therefrom without liability for trespass, damage or otherwise
(Mortgagor hereby agreeing to surrender possession of the
Mortgaged Property to Mortgagee upon demand at any such time)
and use, operate, manage, maintain and control the Mortgaged
Property and every part thereof. Following such entry and
taking of possession, Mortgagee shall be entitled, without
limitation, (x) to lease all or any part or parts of the
Mortgaged Property for such periods of time and upon such
conditions as Mortgagee may, in its discretion, deem proper,
(y) to enforce, cancel or modify any Lease and (z) generally
to execute, do and perform any other act, deed, matter or
thing concerning the Mortgaged Property as Mortgagee shall
deem appropriate as fully as Mortgagor might do.
(b) The holder of this Mortgage, in any action to foreclose
it, shall be entitled to the appointment of a receiver. In case of a
foreclosure sale, the Real Estate may be sold, at Mortgagee's election,
in one parcel or in more than one parcel and Mortgagee is specifically
empowered, (without being required to do so, and in its sole and
absolute discretion) to cause successive sales of portions of the
Mortgaged Property to be held.
(c) In the event of any breach of any of the covenants,
agreements, terms or conditions contained in this Mortgage, and
notwithstanding to the contrary any exculpatory or non-recourse
language which may be contained herein, Mortgagee shall be entitled to
enjoin such breach and obtain specific performance of any covenant,
agreement, term or condition and Mortgagee shall have the right to
invoke any equitable right or remedy as though other remedies were not
provided for in this Mortgage.
22 Right of Mortgagee to Credit Sale. Upon the occurrence of
any sale made under this Mortgage, whether made under the power of sale or by
virtue of judicial
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proceedings or of a judgment or decree of foreclosure and sale, Mortgagee may
bid for and acquire the Mortgaged Property or any part thereof. In lieu of
paying cash therefor, Mortgagee may make settlement for the purchase price by
crediting upon the Indebtedness or other sums secured by this Mortgage the net
sales price after deducting therefrom the expenses of sale and the cost of the
action and any other sums which Mortgagee is authorized to deduct under this
Mortgage. In such event, this Mortgage, the Note and documents evidencing
expenditures secured hereby may be presented to the person or persons conducting
the sale in order that the amount so used or applied may be credited upon the
Indebtedness as having been paid.
23 Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Mortgagee as a matter of right and without notice to
Mortgagor, unless otherwise required by applicable law, and without regard to
the adequacy or inadequacy of the Mortgaged Property or any other collateral as
security for the Indebtedness and Obligations or the interest of Mortgagor
therein, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers or other manager of the Mortgaged Property, and
Mortgagor hereby irrevocably consents to such appointment and waives notice of
any application therefor (except as may be required by law). Any such receiver
or receivers shall have all the usual powers and duties of receivers in like or
similar cases and all the powers and duties of Mortgagee in case of entry as
provided in this Mortgage, including, without limitation and to the extent
permitted by law, the right to enter into leases of all or any part of the
Mortgaged Property, and shall continue as such and exercise all such powers
until the date of confirmation of sale of the Mortgaged Property unless such
receivership is sooner terminated.
24 Extension, Release, etc. (a) 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 the Indebtedness,
Mortgagee may, from time to time and without notice, agree to (i) release any
person liable for the Indebtedness, (ii) extend the maturity or alter any of the
terms of the Indebtedness or any guaranty thereof, (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) take or release any other or additional security for any
obligation herein mentioned, or (vi) make compositions or other arrangements
with debtors in relation thereto. If at any time this Mortgage shall secure less
than all of the principal amount of the Indebtedness, it is expressly agreed
that any repayments of the principal amount of the Indebtedness shall not reduce
the amount of the lien of this Mortgage until the lien amount shall equal the
principal amount of the Indebtedness outstanding.
(b) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect the lien of this Mortgage or any liens,
rights, powers or remedies of Mortgagee hereunder, and such liens, rights,
powers and remedies shall continue unimpaired.
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(c) If Mortgagee shall have the right to foreclose this
Mortgage, Mortgagor authorizes Mortgagee at its option to foreclose the lien of
this Mortgage subject to the rights of any tenants of the Mortgaged Property.
The failure to make any such tenants parties defendant to any such foreclosure
proceeding and to foreclose their rights will not be asserted by Mortgagor as a
defense to any proceeding instituted by Mortgagee to collect the Indebtedness or
to foreclose the lien of this Mortgage.
(d) Unless expressly provided otherwise, in the event that
ownership of this Mortgage and title to the Mortgaged Property or any estate
therein shall become vested in the same person or entity, this Mortgage shall
not merge in such title but shall continue as a valid lien on the Mortgaged
Property for the amount secured hereby.
25 Security Agreement under Uniform Commercial Code. (a) It is
the intention of the parties hereto that this Mortgage shall constitute a
Security Agreement within the meaning of the Uniform Commercial Code (the
"Code") of the State of Kansas. If an Event of Default shall occur under this
Mortgage, then in addition to having any other right or remedy available at law
or in equity, Mortgagee shall have the option of either (i) proceeding under the
Code and exercising such rights and remedies as may be provided to a secured
party by the Code with respect to all or any portion of the Mortgaged Property
which is personal property (including, without limitation, taking possession of
and selling such property) or (ii) treating such property as real property and
proceeding with respect to both the real and personal property constituting the
Mortgaged Property in accordance with Mortgagee's rights, powers and remedies
with respect to the real property (in which event the default provisions of the
Code shall not apply). If Mortgagee shall elect to proceed under the Code, then
five days' notice of sale of the personal property shall be deemed reasonable
notice and the reasonable expenses of retaking, holding, preparing for sale,
selling and the like incurred by Mortgagee shall include, but not be limited to,
attorneys' fees and legal expenses. At Mortgagee's request, Mortgagor shall
assemble the personal property and make it available to Mortgagee at a place
designated by Mortgagee which is reasonably convenient to both parties.
(b) Mortgagor and Mortgagee agree, to the extent permitted by
law, that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this Mortgage
upon recording or registration in the real estate records of the proper office
shall constitute a financing statement filed as a "fixture filing" within the
meaning of Sections 9-313 and 9-402 of the Code; (iii) Mortgagor is the record
owner of the Real Estate; and (iv) the addresses of Mortgagor and Mortgagee are
as set forth on the first page of this Mortgage.
(c) Mortgagor, upon request by Mortgagee from time to time,
shall execute, acknowledge and deliver to Mortgagee one or more separate
security agreements, in form satisfactory to Mortgagee, covering all or any part
of the Mortgaged Property and will further execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, any
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financing statement, affidavit, continuation statement or certificate or other
document as Mortgagee may request in order to perfect, preserve, maintain,
continue or extend the security interest under and the priority of this Mortgage
and such security instrument. Mortgagor further agrees to pay to Mortgagee on
demand all costs and expenses incurred by Mortgagee in connection with the
preparation, execution, recording, filing and re-filing of any such document and
all reasonable costs and expenses of any record searches for financing
statements Mortgagee shall reasonably require. Mortgagor shall from time to
time, on request of Mortgagee, deliver to Mortgagee an inventory in reasonable
detail of any of the Mortgaged Property which constitutes personal property. If
Mortgagor shall fail to furnish any financing or continuation statement within
10 days after request by Mortgagee, then pursuant to the provisions of the Code,
Mortgagor hereby authorizes Mortgagee, without the signature of Mortgagor, to
execute and file any such financing and continuation statements. The filing of
any financing or continuation statements in the records relating to personal
property or chattels shall not be construed as in any way impairing the right of
Mortgagee to proceed against any personal property encumbered by this Mortgage
as real property, as set forth above.
26 Assignment of Rents. Mortgagor hereby assigns to Mortgagee
the Rents as further security for the payment of the Indebtedness and
performance of the Obligations, and Mortgagor grants to Mortgagee the right to
enter the Mortgaged Property for the purpose of collecting the same and to let
the Mortgaged Property or any part thereof, and to apply the Rents on account of
the Indebtedness. The foregoing assignment and grant is present and absolute and
shall continue in effect until the Indebtedness is paid in full, but Mortgagee
hereby waives the right to enter the Mortgaged Property for the purpose of
collecting the Rents and Mortgagor shall be entitled to collect, receive, use
and retain the Rents until the occurrence of an Event of Default under this
Mortgage; such right of Mortgagor to collect, receive, use and retain the Rents
may be revoked by Mortgagee upon the occurrence of any Event of Default under
this Mortgage by giving not less than five days' written notice of such
revocation to Mortgagor; in the event such notice is given, Mortgagor shall pay
over to Mortgagee, or to any receiver appointed to collect the Rents, any lease
security deposits, and shall pay monthly in advance to Mortgagee, or to any such
receiver, the fair and reasonable rental value as determined by Mortgagee for
the use and occupancy of the Mortgaged Property or of such part thereof as may
be in the possession of Mortgagor or any affiliate of Mortgagor, and upon
default in any such payment Mortgagor and any such affiliate will vacate and
surrender the possession of the Mortgaged Property to Mortgagee or to such
receiver, and in default thereof may be evicted by summary proceedings or
otherwise. Mortgagor shall not accept prepayments of installments of Rent to
become due for a period of more than one month in advance (except for security
deposits and estimated payments of percentage rent, if any).
27 Trust Funds. (a) All lease security deposits of the Real
Estate in excess of $50,000 shall be treated as trust funds not to be commingled
with any other funds of Mortgagor. Within 10 days after request by Mortgagee,
Mortgagor shall furnish Mortgagee satisfactory evidence of compliance with this
subsection, together with a statement of all lease
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security deposits by lessees and copies of all Leases not previously delivered
to Mortgagee, which statement shall be certified by Mortgagor.
28 Additional Rights. The holder of any subordinate lien on
the Mortgaged Property shall have no right to terminate any Lease whether or not
such Lease is subordinate to this Mortgage nor shall any holder of any
subordinate lien join any tenant under any Lease in any action to foreclose the
lien or modify, interfere with, disturb or terminate the rights of any tenant
under any Lease. By recordation of this Mortgage all subordinate lienholders are
subject to and notified of this provision, and any action taken by any such
lienholder contrary to this provision shall be null and void. Upon the
occurrence of any Event of Default, Mortgagee may, in its sole discretion and
without regard to the adequacy of its security under this Mortgage, apply all or
any part of any amounts on deposit with Mortgagee under this Mortgage against
all or any part of the Indebtedness. Any such application shall not be construed
to cure or waive any Default or Event of Default or invalidate any act taken by
Mortgagee on account of such Default or Event of Default.
29 Changes in Method of Taxation. In the event of the passage
after the date hereof of any law of any Governmental Authority deducting from
the value of the Premises for the purposes of taxation any lien thereon, or
changing in any way the laws for the taxation of mortgages or debts secured
thereby for federal, state or local purposes, or the manner of collection of any
such taxes, and imposing a tax, either directly or indirectly, on mortgages or
debts secured thereby, the holder of this Mortgage shall have the right to
declare the Indebtedness due on a date to be specified by not less than 30 days'
written notice to be given to Mortgagor unless within such 30-day period
Mortgagor shall assume as an Obligation hereunder the payment of any tax so
imposed until full payment of the Indebtedness and such assumption shall be
permitted by law.
30 Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been sufficiently given or
served when presented personally, when delivered to an overnight courier service
with guaranteed next business day delivery or when deposited in the mail by
certified or registered mail, postage prepaid, addressed to Mortgagor at the
address given on the first page of this Mortgage Attention: General Counsel, and
to Mortgagee at the address given on the first page of this Mortgage, and shall
be deemed to have been received upon the earlier of actual receipt thereof or
the third calendar day after such mailing. Either party may change its address
by notice to the other party. If any party other than Mortgagor shall be
entitled to receive copies of notices, demands or approvals, failure of
Mortgagee to send such copies shall not impair the effectiveness of any notice
sent to Mortgagor.
31 No Oral Modification. This Mortgage may not be changed or
terminated orally. Any agreement made by Mortgagor and Mortgagee after the date
of this Mortgage
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relating to this Mortgage shall be superior to the rights of the holder of any
intervening or subordinate lien or encumbrance.
32 Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary anything contained in this Mortgage or
in any provisions of the Indebtedness or Loan Documents, the obligations of
Mortgagor and of any other obligor under the Indebtedness or Loan Documents
shall be subject to the limitation that Mortgagee shall not charge, take or
receive, nor shall Mortgagor or any other obligor be obligated to pay to
Mortgagee, any amounts constituting interest in excess of the maximum rate
permitted by law to be charged by Mortgagee.
33 Mortgagor's Waiver of Rights. To the fullest extent
permitted by law, Mortgagor waives the benefit of all laws now existing or that
may subsequently be enacted providing for (i) any appraisement before sale of
any portion of the Mortgaged Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Mortgaged Property from attachment, levy or sale under
execution or exemption from civil process. To the full extent Mortgagor may do
so, Mortgagor agrees that Mortgagor will not at any time insist upon, plead,
claim or take the benefit or advantage of any law now or hereafter in force
providing for any appraisement, valuation, stay, exemption, extension or
redemption, or requiring foreclosure of this Mortgage before exercising any
other remedy granted hereunder and Mortgagor, for Mortgagor and its successors
and assigns, and for any and all persons ever claiming any interest in the
Mortgaged Property, to the extent permitted by law, hereby waives and releases
all rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of the secured indebtedness and
marshaling in the event of foreclosure of the liens hereby created.
34 Remedies Not Exclusive. Mortgagee shall be entitled to
enforce payment of the Indebtedness and performance of the Obligations and to
exercise all rights and powers under this Mortgage or under any of the other
Loan Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Indebtedness and Obligations may now or
hereafter be otherwise secured, whether by mortgage, security agreement, pledge,
lien, assignment or otherwise. Neither the acceptance of this Mortgage nor its
enforcement, shall prejudice or in any manner affect Mortgagee's right to
realize upon or enforce any other security now or hereafter held by Mortgagee,
it being agreed that Mortgagee shall be entitled to enforce this Mortgage and
any other security now or hereafter held by Mortgagee in such order and manner
as Mortgagee may determine in its absolute discretion. No remedy herein
conferred upon or reserved to Mortgagee is intended to be exclusive of any other
remedy herein or by law provided or permitted, but each shall be cumulative and
shall be
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in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute. Every power or remedy given by any of the
Loan Documents to Mortgagee or to which it may otherwise be entitled, may be
exercised, concurrently or independently, from time to time and as often as may
be deemed expedient by Mortgagee. In no event shall Mortgagee, in the exercise
of the remedies provided in this Mortgage (including, without limitation, in
connection with the assignment of Rents to Mortgagee, or the appointment of a
receiver and the entry of such receiver on to all or any part of the Mortgaged
Property), be deemed a "mortgagee in possession," and Mortgagee shall not in any
way be made liable for any act, either of commission or omission, in connection
with the exercise of such remedies.
35 Multiple Security. If (a) the Premises shall consist of one
or more parcels, whether or not contiguous and whether or not located in the
same county, or (b) in addition to this Mortgage, Mortgagee shall now or
hereafter hold one or more additional mortgages, liens, deeds of trust or other
security (directly or indirectly) for the Indebtedness upon other property in
the State in which the Premises are located (whether or not such property is
owned by Mortgagor or by others) or (c) both the circumstances described in
clauses (a) and (b) shall be true, then to the fullest extent permitted by law,
Mortgagee may, at its election, commence or consolidate in a single foreclosure
action all foreclosure proceedings against all such collateral securing the
Indebtedness (including the Mortgaged Property), which action may be brought or
consolidated in the courts of any county in which any of such collateral is
located. Mortgagor acknowledges that the right to maintain a consolidated
foreclosure action is a specific inducement to Mortgagee to extend the
Indebtedness, and Mortgagor expressly and irrevocably waives any objections to
the commencement or consolidation of the foreclosure proceedings in a single
action and any objections to the laying of venue or based on the grounds of
forum non conveniens which it may now or hereafter have. Mortgagor further
agrees that if Mortgagee shall be prosecuting one or more foreclosure or other
proceedings against a portion of the Mortgaged Property or against any
collateral other than the Mortgaged Property, which collateral directly or
indirectly secures the Indebtedness, or if Mortgagee shall have obtained a
judgment of foreclosure and sale or similar judgment against such collateral,
then, whether or not such proceedings are being maintained or judgments were
obtained in or outside the State in which the Premises are located, Mortgagee
may commence or continue foreclosure proceedings and exercise its other remedies
granted in this Mortgage against all or any part of the Mortgaged Property and
Mortgagor waives any objections to the commencement or continuation of a
foreclosure of this Mortgage or exercise of any other remedies hereunder based
on such other proceedings or judgments, and waives any right to seek to dismiss,
stay, remove, transfer or consolidate either any action under this Mortgage or
such other proceedings on such basis. Neither the commencement nor continuation
of proceedings to foreclose this Mortgage nor the exercise of any other rights
hereunder nor the recovery of any judgment by Mortgagee in any such proceedings
shall prejudice, limit or preclude Mortgagee's right to commence or continue one
or more foreclosure or other proceedings or obtain a judgment against any other
collateral (either in or
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outside the State in which the Premises are located) which directly or
indirectly secures the Indebtedness, and Mortgagor expressly waives any
objections to the commencement of, continuation of, or entry of a judgment in
such other proceedings or exercise of any remedies in such proceedings based
upon any action or judgment connected to this Mortgage, and Mortgagor also
waives any right to seek to dismiss, stay, remove, transfer or consolidate
either such other proceedings or any action under this Mortgage on such basis.
It is expressly understood and agreed that to the fullest extent permitted by
law, Mortgagee may, at its election, cause the sale of all collateral which is
the subject of a single foreclosure action at either a single sale or at
multiple sales conducted simultaneously and take such other measures as are
appropriate in order to effect the agreement of the parties to dispose of and
administer all collateral securing the Indebtedness (directly or indirectly) in
the most economical and least time-consuming manner.
36 Expenses; Indemnification. (a) Mortgagor shall pay or
reimburse Mortgagee for all expenses incurred by Mortgagee before and after the
date of this Mortgage with respect to any and all transactions contemplated by
this Mortgage including without limitation, the preparation of any document
reasonably required hereunder or any amendment, modification, restatement or
supplement to this Mortgage, the delivery of any consent, non-disturbance
agreement or similar document in connection with this Mortgage or the
enforcement of any of Mortgagee's rights. Such expenses shall include, without
limitation, all title and conveyancing charges, recording and filing fees and
taxes, mortgage taxes, intangible personal property taxes, escrow fees, revenue
and tax stamp expenses, insurance premiums (including title insurance premiums),
title search and title rundown charges, brokerage commissions, finders' fees,
placement fees, court costs, surveyors', photographers', appraisers',
architects', engineers', consulting professional's, accountants' and attorneys'
fees and disbursements. Mortgagor acknowledges that from time to time Mortgagor
may receive statements for such expenses, including without limitation
attorneys' fees and disbursements. Mortgagor shall pay such statements promptly
upon receipt.
(b) If (i) any action or proceeding shall be commenced by
Mortgagee (including but not limited to any action to foreclose this Mortgage or
to collect the Indebtedness), or any action or proceeding is commenced to which
Mortgagee is made a party, or in which it becomes necessary to defend or uphold
the lien of this Mortgage (including, without limitation, any proceeding or
other action relating to the bankruptcy, insolvency or reorganization of any
Obligor), or in which Mortgagee is served with any legal process, discovery
notice or subpoena and (ii) in each of the foregoing instances such action or
proceeding in any manner relates to or arises out of this Mortgage or
Mortgagee's lending to Mortgagor or acceptance of a guaranty from a Guarantor of
the Indebtedness or of any of the Obligations or any of the transactions
contemplated by this Mortgage, then Mortgagor will immediately reimburse or pay
to Mortgagee all of the expenses which have been or may be incurred by Mortgagee
with respect to the foregoing (including reasonable counsel fees and
disbursements), together with interest thereon at the Default Rate, and
following the occurance
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of a Default any such sum and the interest thereon shall be a lien on the
Mortgaged Property, prior to any right, or title to, interest in or claim upon
the Mortgaged Property attaching or accruing subsequent to the lien of this
Mortgage, and shall be deemed to be secured by this Mortgage. In any action or
proceeding to foreclose this Mortgage, or to recover or collect the
Indebtedness, the provisions of law respecting the recovering of costs,
disbursements and allowances shall prevail unaffected by this covenant.
(c) Mortgagor shall indemnify and hold harmless Mortgagee and
Mortgagee's affiliates, and the respective directors, officers, agents and
employees of Mortgagee and its affiliates from and against all claims, damages,
losses and liabilities (including, without limitation, reasonable attorneys'
fees and expenses) arising out of or based upon any matter related to this
Mortgage, the Mortgaged Property or the occupancy, ownership, maintenance or
management of the Mortgaged Property by Mortgagor, including, without
limitation, any claims based on the alleged acts or omissions of any employee or
agent of Mortgagor. This indemnification shall be in addition to any other
liability which Mortgagor may otherwise have to Mortgagee.
37 Successors and Assigns. All covenants of Mortgagor
contained in this Mortgage are imposed solely and exclusively for the benefit of
Mortgagee and its successors and assigns, and no other person or entity shall
have standing to require compliance with such covenants or be deemed, under any
circumstances, to be a beneficiary of such covenants, any or all of which may be
freely waived in whole or in part by Mortgagee at any time if in its sole
discretion it deems such waiver advisable. All such covenants of Mortgagor shall
run with the land and bind Mortgagor, the successors and assigns of Mortgagor
(and each of them) and all subsequent owners, encumbrancers and tenants of the
Mortgaged Property, and shall inure to the benefit of Mortgagee, its successors
and assigns. The word "Mortgagor" shall be construed as if it read "Mortgagors"
whenever the sense of this Mortgage so requires and if there shall be more than
one Mortgagor, the obligations of the Mortgagors shall be joint and several.
38 No Waivers, etc. Any failure by Mortgagee to insist upon
the strict performance by Mortgagor of any of the terms and provisions of this
Mortgage shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Mortgagor of any and all of
the terms and provisions of this Mortgage to be performed by Mortgagor.
Mortgagee may release, regardless of consideration and without the necessity for
any notice to or consent by the holder of any subordinate lien on the Mortgaged
Property, any part of the security held for the obligations secured by this
Mortgage without, as to the remainder of the security, in anywise impairing or
affecting the lien of this Mortgage or the priority of such lien over any
subordinate lien.
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39 Governing Law, etc. This Mortgage shall be governed by and
construed and interpreted in accordance with the laws of the State of Kansas.
Mortgagor hereby irrevocably agrees that any legal action, suit, or proceeding
against it with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Mortgage or the other Loan
Documents or for recognition or enforcement of any judgment rendered in any such
action, suit or proceeding may be brought in any of the courts of the State of
Kansas, as Mortgagee may elect, and, by execution and delivery of this Mortgage,
Mortgagor hereby irrevocably accepts and submits to the non-exclusive
jurisdiction of each of the aforesaid courts in persona, generally and
unconditionally with respect to any such action, suit or proceeding for itself
and in respect of its property. Mortgagor further agrees that final judgment
against it in any action, suit, or proceeding referred to herein shall be
conclusive and may be enforced in any other jurisdiction, by suit on the
judgment, a certified or exemplified copy of which shall be conclusive evidence
of the fact and of the amount of its indebtedness.
40 Waiver of Trial by Jury. Mortgagor and Mortgagee each
hereby irrevocably and unconditionally waive trial by jury in any action, claim,
suit or proceeding relating to this Mortgage and for any counterclaim brought
therein. Mortgagor hereby waives all rights to interpose any counterclaim in any
suit brought by Mortgagee hereunder and all rights to have any such suit
consolidated with any separate suit, action or proceeding.
41 Certain Definitions. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Mortgage shall be used interchangeably in singular or plural form and the
word "Mortgagor" shall mean "each Mortgagor or any subsequent owner or owners of
the Mortgaged Property or any part thereof or interest therein," the word
"Mortgagee" shall mean "Mortgagee or any subsequent holder of the Note," the
word "Note" shall mean "the Note or any other evidence of indebtedness secured
by this Mortgage," the word "person" shall include any individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, or other entity, and the words "Mortgaged Property" shall include any
portion of the Mortgaged Property or interest therein. Whenever the context may
require, any pronouns used herein shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural and vice versa. The captions in this Mortgage are for
convenience or reference only and in no way limit or amplify the provisions
hereof.
42 Maximum Amount Secured. With respect to this Mortgage on
properties located in Kansas, the maximum amount secured hereby is $1,000,000.
Property located in Kansas may be released from this Mortgage upon payment of
the above amount secured in Kansas
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This Mortgage has been duly executed by Mortgagor on the date
first above written.
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
By: Glimcher Properties Corporation, general
partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Senior Executive Vice President, Chief
Financial Officer and Chief Operating
Officer
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STATE OF OHIO )
) ss.:
COUNTY OF FRANKLIN )
On this 4th day of November, 1998, before me personally came
Xxxxxxx X. Xxxxxxx, to me known, who, being by me duly sworn, did depose and say
the he resides at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx; that he is the Senior
Executive Vice President, CFO/COO of Glimcher Properties Corporation, the
corporation described in and which executed the foregoing instrument as a
general partner of Glimcher Properties Limited Partnership; and that he signed
his name thereto by the authority of the board of directors of said corporation.
/s/ Xxxxxx X. Xxxxxx
-------------------------------
Notary Public
[Notarial Stamp]
36
Schedule A
Description of the Premises
[Attach Legal Description of all parcels]
