EXHIBIT 10.13
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PFP COLUMBUS, LLC
a Delaware limited liability company as mortgagor
(Borrower)
to
UBS WARBURG REAL ESTATE INVESTMENTS INC., as mortgagee
(Lender)
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MORTGAGE, ASSIGNMENT OF
LEASES AND RENTS AND
SECURITY AGREEMENT
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Dated: As of April 1, 2003
Location: Polaris Fashion Place
Columbus, Ohio
County:
PREPARED BY AND UPON
RECORDATION RETURN TO:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
File Matter No. 62840.0039
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
(this "MORTGAGE") is made as of this 1st day of [April], 2003, by PFP COLUMBUS,
LLC, a Delaware limited liability company, having its principal place of
business at c/o Glimcher Realty Trust, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000, as mortgagor ("BORROWER") for the benefit of UBS WARBURG REAL ESTATE
INVESTMENTS INC., having an address at 1285 Avenue of the Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as mortgagee ("LENDER").
W I T N E S S E T H:
A. This Mortgage is given to secure a loan (the "LOAN") in the
principal sum of [ONE HUNDRED FIFTY MILLION AND NO/100 DOLLARS ($150,000,000)]
or so much thereof as may be advanced pursuant to that certain Loan Agreement
dated as of the date hereof between Borrower and Lender (as the same may be
amended, restated, replaced, supplemented or otherwise modified from time to
time, the "LOAN AGREEMENT") and evidenced by that certain Promissory Note dated
the date hereof made by Borrower to Lender (such Note, together with all
extensions, renewals, replacements, restatements or modifications thereof being
hereinafter referred to as the "NOTE"). Capitalized terms used herein without
definition shall have the meanings ascribed to such terms in the Loan Agreement.
B. Borrower desires to secure the payment of the outstanding
principal amount of the Loan together with all interest accrued and unpaid
thereon and all other sums (including the Yield Maintenance Premium) due to
Lender in respect of the Loan and the Loan Documents (the "DEBT") and the
performance of all of its obligations under the Note, the Loan Agreement and the
other Loan Documents.
C. This Mortgage is given pursuant to the Loan Agreement, and
payment, fulfillment, and performance by Borrower of its obligations thereunder
and under the other Loan Documents are secured hereby, and each and every term
and provision of the Loan Agreement and the Note, including the rights,
remedies, obligations, covenants, conditions, agreements, indemnities,
representations and warranties of the parties therein, are hereby incorporated
by reference herein as though set forth in full and shall be considered a part
of this Mortgage.
NOW THEREFORE, in consideration of the making of the Loan by Lender and
the covenants, agreements, representations and warranties set forth in this
Mortgage:
PART I - GENERAL PROVISIONS
Article 1 - GRANTS OF SECURITY
Section 1.1 PROPERTY MORTGAGED. Borrower does hereby irrevocably
mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey to
Lender and its successors and assigns the following property, rights, interests
and estates now owned, or hereafter acquired by Borrower (collectively, the
"PROPERTY"):
(a) Land. The real property described in Exhibit A
attached hereto and made a part hereof (the "LAND");
(b) Additional Land. All xxxxxxxxxx xxxxx, xxxxxxx
and development rights hereafter acquired by Borrower for use
in connection with the Land and the development of the Land
and all additional lands and estates therein which may, from
time to time, by supplemental mortgage or otherwise be
expressly made subject to the lien of this Mortgage;
(c) Improvements. The buildings, structures,
fixtures, additions, enlargements, extensions, modifications,
repairs, replacements and improvements now or hereafter
erected or located on the Land (collectively, the
"IMPROVEMENTS");
(d) Easements. All easements, rights-of-way or use,
rights, strips and gores of land, streets, ways, alleys,
passages, sewer rights, water, water courses, water rights and
powers, air rights and development rights, and all estates,
rights, titles, interests, privileges, liberties, servitudes,
tenements, hereditaments and appurtenances of any nature
whatsoever, in any way now or hereafter belonging, relating or
pertaining to the Land and the Improvements and the reversion
and reversions, remainder and remainders, and all land lying
in the bed of any street, road or avenue, opened or proposed,
in front of or adjoining the Land, to the center line thereof
and all the estates, rights, titles, interests, dower and
rights of dower, curtesy and rights of curtesy, property,
possession, claim and demand whatsoever, both at law and in
equity, of Borrower of, in and to the Land and the
Improvements and every part and parcel thereof, with the
appurtenances thereto;
(e) Equipment. All "equipment," as such term is
defined in Article 9 of the Uniform Commercial Code (as
hereinafter defined), now owned or hereafter acquired by
Borrower, which is used at or in connection with the
Improvements or the Land or is located thereon or therein
(including, but not limited to, all machinery, equipment,
furnishings, and electronic data-processing and other office
equipment now owned or hereafter acquired by Borrower and any
and all additions, substitutions and replacements of any of
the foregoing), together with all attachments, components,
parts, equipment and accessories installed thereon or affixed
thereto (collectively, the "EQUIPMENT"). Notwithstanding the
foregoing, Equipment shall not include any property belonging
to tenants under leases except to the extent that Borrower
shall have any right or interest therein;
(f) Fixtures. All Equipment now owned, or the
ownership of which is hereafter acquired, by Borrower which is
so related to the Land and Improvements forming part of the
Property that it is deemed fixtures or real property under the
law of the particular state in which the Equipment is located,
including, without limitation, all building or construction
materials intended for construction, reconstruction,
alteration or repair of or installation on the Property,
construction equipment, appliances, machinery, plant
equipment, fittings, apparatuses, fixtures and other items now
or hereafter attached to, installed in or
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used in connection with (temporarily or permanently) any of
the Improvements or the Land, including, but not limited to,
engines, devices for the operation of pumps, pipes, plumbing,
cleaning, call and sprinkler systems, fire extinguishing
apparatuses and equipment, heating, ventilating, plumbing,
laundry, incinerating, electrical, air conditioning and air
cooling equipment and systems, gas and electric machinery,
appurtenances and equipment, pollution control equipment,
security systems, disposals, dishwashers, refrigerators and
ranges, recreational equipment and facilities of all kinds,
and water, gas, electrical, storm and sanitary sewer
facilities, utility lines and equipment (whether owned
individually or jointly with others, and, if owned jointly, to
the extent of Borrower's interest therein) and all other
utilities whether or not situated in easements, all water
tanks, water supply, water power sites, fuel stations, fuel
tanks, fuel supply, and all other structures, together with
all accessions, appurtenances, additions, replacements,
betterments and substitutions for any of the foregoing and the
proceeds thereof (collectively, the "FIXTURES").
Notwithstanding the foregoing, "Fixtures" shall not include
any property which tenants are entitled to remove pursuant to
leases except to the extent that Borrower shall have any right
or interest therein;
(g) Personal Property. All furniture, furnishings,
objects of art, machinery, goods, tools, supplies, appliances,
general intangibles, contract rights, accounts, accounts
receivable, franchises, licenses, certificates and permits,
and all other personal property of any kind or character
whatsoever (as defined in and subject to the provisions of the
Uniform Commercial Code as hereinafter defined), other than
Fixtures, which are now or hereafter owned by Borrower and
which are located within or about the Land and the
Improvements, together with all accessories, replacements and
substitutions thereto or therefor and the proceeds thereof
(collectively, the "PERSONAL PROPERTY"), and the right, title
and interest of Borrower in and to any of the Personal
Property which may be subject to any security interests, as
defined in the Uniform Commercial Code, as adopted and enacted
by the state or states where any of the Property is located
(the "UNIFORM COMMERCIAL CODE"), superior in lien to the lien
of this Mortgage and all proceeds and products of the above;
(h) Leases and Rents. All leases and other agreements
affecting the use, enjoyment or occupancy of the Land and the
Improvements heretofore or hereafter entered into, whether
before or after the filing by or against Borrower of any
petition for relief under 11 U.S.C. Section 101 et seq., as
the same may be amended from time to time (the "BANKRUPTCY
CODE") (collectively, the "LEASES") and all right, title and
interest of Borrower, its successors and assigns therein and
thereunder, including, without limitation, cash or securities
deposited thereunder to secure the performance by the lessees
of their obligations thereunder and all rents, additional
rents, revenues, issues and profits (including all oil and gas
or other mineral royalties and bonuses) from the Land and the
Improvements whether paid or accruing before or after the
filing by or against Borrower of any petition for relief under
the Bankruptcy Code (collectively, the "RENTS") and all
proceeds from the sale or other disposition of the Leases and
the right to receive and apply the Rents to the payment of the
Debt;
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(i) Condemnation Awards. All awards or payments,
including interest thereon, which may heretofore and hereafter
be made with respect to the Property, whether from the
exercise of the right of eminent domain (including but not
limited to any transfer made in lieu of or in anticipation of
the exercise of the right), or for a change of grade, or for
any other injury to or decrease in the value of the Property;
(j) Insurance Proceeds. All proceeds in respect of
the Property under any insurance policies covering the
Property, including, without limitation, the right to receive
and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Property;
(k) Tax Certiorari. All refunds, rebates or credits
in connection with reduction in real estate taxes and
assessments charged against the Property as a result of tax
certiorari or any applications or proceedings for reduction;
(l) Rights. The right, in the name and on behalf of
Borrower, to appear in and defend any action or proceeding
brought with respect to the Property and to commence any
action or proceeding to protect the interest of Lender in the
Property;
(m) Agreements. All agreements, contracts,
certificates, instruments, franchises, permits, licenses,
plans, specifications and other documents, now or hereafter
entered into, and all rights therein and thereto, respecting
or pertaining to the use, occupation, construction, management
or operation of the Land and any part thereof and any
Improvements or respecting any business or activity conducted
on the Land and any part thereof and all right, title and
interest of Borrower therein and thereunder, including,
without limitation, the right, upon the happening of any
default hereunder, to receive and collect any sums payable to
Borrower thereunder;
(n) Trademarks. All tradenames, trademarks,
servicemarks, logos, copyrights, goodwill, books and records
and all other general intangibles relating to or used in
connection with the operation of the Property. Lender
acknowledges that Borrower does not own the tradename
"Polaris";
(o) Proceeds. All proceeds of any of the foregoing,
including, without limitation, proceeds of insurance and
condemnation awards, whether cash, liquidation or other claims
or otherwise; and
(p) Other Rights. Any and all other rights of
Borrower in and to the items set forth in Subsections (a)
through (o) above.
AND without limiting any of the other provisions of this Mortgage, to
the extent permitted by applicable law, Borrower expressly grants to Lender, as
secured party, a security interest in the portion of the Property which is or
may be subject to the provisions of the Uniform Commercial Code which are
applicable to secured transactions; it being understood and agreed that the
Improvements and Fixtures are part and parcel of the Land (the Land, the
Improvements
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and the Fixtures collectively referred to as the "REAL PROPERTY") appropriated
to the use thereof and, whether affixed or annexed to the Real Property or not,
shall for the purposes of this Mortgage be deemed conclusively to be real estate
and mortgaged hereby.
Section 1.2 ASSIGNMENT OF RENTS. Borrower hereby absolutely and
unconditionally assigns to Lender all of Borrower's right, title and interest in
and to all current and future Leases and Rents; it being intended by Borrower
that this assignment constitutes a present, absolute assignment and not an
assignment for additional security only. Nevertheless, subject to the terms of
the Assignment of Leases and Section 7.1(h) of this Mortgage, Lender grants to
Borrower a revocable license to collect, receive, use and enjoy the Rents.
Borrower shall collect the Rents as provided in the Loan Agreement.
Section 1.3 SECURITY AGREEMENT. This Mortgage is both a real property
mortgage and a "security agreement" within the meaning of the Uniform Commercial
Code. The Property includes both real and personal property and all other rights
and interests, whether tangible or intangible in nature, of Borrower in the
Property. By executing and delivering this Mortgage, Borrower hereby grants to
Lender, as security for the Obligations (hereinafter defined), a security
interest in the Fixtures, the Equipment, the Personal Property and other
property constituting the Property to the full extent that the Fixtures, the
Equipment, the Personal Property and such other property may be subject to the
Uniform Commercial Code (said portion of the Property so subject to the Uniform
Commercial Code being called the "COLLATERAL"). If an Event of Default shall
occur and be continuing, Lender, in addition to any other rights and remedies
which it may have, shall have and may exercise immediately and without demand,
any and all rights and remedies granted to a secured party upon default under
the Uniform Commercial Code, including, without limiting the generality of the
foregoing, the right to take possession of the Collateral or any part thereof,
and to take such other measures as Lender may deem necessary for the care,
protection and preservation of the Collateral. Upon request or demand of Lender
after the occurrence and during the continuance of an Event of Default, Borrower
shall, at its expense, assemble the Collateral and make it available to Lender
at a convenient place (at the Land if tangible property) reasonably acceptable
to Lender. Borrower shall pay to Lender on demand any and all expenses,
including reasonable legal expenses and attorneys' fees, incurred or paid by
Lender in protecting its interest in the Collateral and in enforcing its rights
hereunder with respect to the Collateral after the occurrence and during the
continuance of an Event of Default. Any notice of sale, disposition or other
intended action by Lender with respect to the Collateral sent to Borrower in
accordance with the provisions hereof at least ten (10) business days prior to
such action, shall, except as otherwise provided by applicable law, constitute
reasonable notice to Borrower. The proceeds of any disposition of the
Collateral, or any part thereof, may, except as otherwise required by applicable
law or the Loan Agreement, be applied by Lender to the payment of the Debt in
such priority and proportions as Lender in its discretion shall deem proper. The
principal place of business of Borrower (Debtor) is as set forth on page one
hereof and the address of Lender (Secured Party) is as set forth on page one
hereof.
Section 1.4 FIXTURE FILING. Certain of the Property is or will become
"fixtures" (as that term is defined in the Uniform Commercial Code) on the Land,
described or referred to in this Mortgage, and this Mortgage, upon being filed
for record in the real estate records of the city or county wherein such
fixtures are situated, shall operate also as a financing statement filed
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as a fixture filing in accordance with the applicable provisions of said Uniform
Commercial Code upon such of the Property that is or may become fixtures.
Section 1.5 PLEDGES OF MONIES HELD. Borrower hereby pledges to Lender
any and all monies now or hereafter held by Lender or on behalf of Lender in
connection with the Loan, including, without limitation, any sums deposited in
the Accounts (as defined in the Cash Management Agreement) and Net Proceeds, as
additional security for the Obligations until expended or applied as provided in
this Mortgage.
CONDITIONS TO GRANT
TO HAVE AND TO HOLD the above granted and described Property unto and
to the use and benefit of Lender and its successors and assigns, forever;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Borrower shall well and truly pay to Lender the Debt at the time and in the
manner provided in the Note, the Loan Agreement and this Mortgage, shall well
and truly perform the Other Obligations as set forth in this Mortgage and shall
well and truly abide by and comply with each and every covenant and condition
set forth herein and in the Note, the Loan Agreement and the other Loan
Documents, these presents and the estate hereby granted shall cease, terminate
and be void; provided, however, that Borrower's obligation to indemnify and hold
harmless Lender pursuant to the provisions hereof shall survive any such payment
or release.
Article 2 - DEBT AND OBLIGATIONS SECURED
Section 2.1 DEBT. This Mortgage and the grants, assignments and
transfers made in Article 1 are given for the purpose of securing the Debt.
Section 2.2 OTHER OBLIGATIONS. This Mortgage and the grants,
assignments and transfers made in Article 1 are also given for the purpose of
securing the following (the "OTHER OBLIGATIONS"):
(a) the performance of all other obligations of
Borrower contained herein;
(b) the performance of each obligation of Borrower
contained in the Loan Agreement and any other Loan Document;
and
(c) the performance of each obligation of Borrower
contained in any renewal, extension, amendment, modification,
consolidation, change of, or substitution or replacement for,
all or any part of the Note, the Loan Agreement or any other
Loan Document.
Section 2.3 DEBT AND OTHER OBLIGATIONS. Borrower's obligations for the
payment of the Debt and the performance of the Other Obligations may sometimes
be referred to collectively herein as the "OBLIGATIONS."
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Article 3 - BORROWER COVENANTS
Borrower covenants and agrees that:
Section 3.1 PAYMENT OF DEBT. Borrower will pay the Debt at the time and
in the manner provided in the Loan Agreement, the Note and this Mortgage.
Section 3.2 INCORPORATION BY REFERENCE. All the covenants, conditions
and agreements contained in (a) the Loan Agreement , (b) the Note and (c) all
and any of the other Loan Documents, are hereby made a part of this Mortgage to
the same extent and with the same force as if fully set forth herein.
Section 3.3 INSURANCE. Borrower shall obtain and maintain, or cause to
be maintained, in full force and effect at all times insurance with respect to
Borrower and the Property as required pursuant to the Loan Agreement.
Section 3.4 MAINTENANCE OF PROPERTY. Borrower shall cause the Property
to be maintained in a good and safe condition and repair. Except as provided in
the Loan Agreement, the Improvements, the Fixtures, the Equipment and the
Personal Property shall not be removed, demolished or materially altered (except
for normal replacement of the Fixtures, the Equipment or the Personal Property,
tenant finish and refurbishment of the Improvements) without the consent of
Lender. So long as Lender makes all Net Proceeds in the event of a Casualty or
all Awards in the event of a Condemnation available to Borrower as required in
accordance with the Loan Agreement, then Borrower shall promptly repair, replace
or rebuild any part of the Property which may be destroyed by any Casualty or
become damaged, worn or dilapidated or which may be affected by any Condemnation
and shall complete and pay for any structure at any time in the process of
construction or repair on the Land.
Section 3.5 WASTE. Borrower shall not commit or suffer any waste of the
Property or make any change in the use of the Property which will in any way
materially increase the risk of fire or other hazard arising out of the
operation of the Property, or take any action that might invalidate or allow the
cancellation of any Policy, or do or permit to be done thereon anything that may
in any way materially impair the value of the Property or the security of this
Mortgage. Borrower will not, without the prior written consent of Lender, permit
any drilling or exploration for or extraction, removal, or production of any
minerals from the surface or the subsurface of the Land, regardless of the depth
thereof or the method of mining or extraction thereof.
Section 3.6 PAYMENT FOR LABOR AND MATERIALS. (a) Borrower will promptly
pay when due all bills and costs for labor, materials, and specifically
fabricated materials ("LABOR AND MATERIAL COSTS") incurred in connection with
the Property and never permit to exist beyond the due date thereof in respect of
the Property or any part thereof any lien or security interest, even though
inferior to the liens and the security interests hereof, and in any event never
permit to be created or exist in respect of the Property or any part thereof any
other or additional lien or security interest other than the liens or security
interests hereof except for the Permitted Encumbrances.
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(b) Borrower, at its own expense, may contest by
appropriate legal proceeding, promptly initiated and conducted
in good faith and with due diligence, the amount or validity
or application in whole or in part of any of the Labor and
Material Costs in accordance with and subject to the terms and
conditions of the Loan Agreement.
Section 3.7 PERFORMANCE OF OTHER AGREEMENTS. Borrower shall observe and
perform each and every term, covenant and provision to be observed or performed
by Borrower pursuant to the Loan Agreement, any other Loan Document and any
other agreement or recorded instrument affecting or pertaining to the Property
and any amendments, modifications or changes thereto.
Article 4 - OBLIGATIONS AND RELIANCES
Section 4.1 RELATIONSHIP OF BORROWER AND LENDER. The relationship
between Borrower and Lender is solely that of debtor and creditor, and Lender
has no fiduciary or other special relationship with Borrower, and no term or
condition of any of the Loan Agreement, the Note, this Mortgage and the other
Loan Documents shall be construed so as to deem the relationship between
Borrower and Lender to be other than that of debtor and creditor.
Section 4.2 NO RELIANCE ON LENDER. The general partners, members,
principals and (if Borrower is a trust) beneficial owners of Borrower are
experienced in the ownership and operation of properties similar to the
Property, and Borrower and Lender are relying solely upon such expertise and
business plan in connection with the ownership and operation of the Property.
Borrower is not relying on Lender's expertise, business acumen or advice in
connection with the Property.
Section 4.3 NO LENDER OBLIGATIONS. (a) Notwithstanding the provisions
of Subsections 1.1(h) and (m) or Section 1.2, Lender is not undertaking the
performance of (i) any obligations under the Leases; or (ii) any obligations
with respect to such agreements, contracts, certificates, instruments,
franchises, permits, trademarks, licenses and other documents.
(b) By accepting or approving anything required to be
observed, performed or fulfilled or to be given to Lender
pursuant to this Mortgage, the Loan Agreement, the Note or the
other Loan Documents, including, without limitation, any
officer's certificate, balance sheet, statement of profit and
loss or other financial statement, survey, appraisal, or
insurance policy, Lender shall not be deemed to have
warranted, consented to, or affirmed the sufficiency, the
legality or effectiveness of same, and such acceptance or
approval thereof shall not constitute any warranty or
affirmation with respect thereto by Lender.
Section 4.4 RELIANCE. Borrower recognizes and acknowledges that in
accepting the Loan Agreement, the Note, this Mortgage and the other Loan
Documents, Lender is expressly and primarily relying on the truth and accuracy
of the warranties and representations set forth in Article III of the Loan
Agreement without any obligation to investigate the Property and notwithstanding
any investigation of the Property by Lender; that such reliance existed on the
part of Lender prior to the date hereof, that the warranties and representations
are a material
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inducement to Lender in making the Loan; and that Lender would not be willing to
make the Loan and accept this Mortgage in the absence of the warranties and
representations as set forth in Article III of the Loan Agreement.
Article 5 - FURTHER ASSURANCES
Section 5.1 RECORDING OF MORTGAGE, ETC. Borrower forthwith upon the
execution and delivery of this Mortgage and thereafter, from time to time, will
cause this Mortgage and any of the other Loan Documents creating a lien or
security interest or evidencing the lien hereof upon the Property and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice of and fully to protect and perfect the lien or security
interest hereof upon, and the interest of Lender in, the Property. Borrower will
pay all taxes, filing, registration or recording fees, and all expenses incident
to the preparation, execution, acknowledgment and/or recording of the Note, this
Mortgage, the other Loan Documents, any note, deed of trust or mortgage
supplemental hereto, any Mortgage with respect to the Property and any
instrument of further assurance, and any modification or amendment of the
foregoing documents, and all federal, state, county and municipal taxes, duties,
imposts, assessments and charges arising out of or in connection with the
execution and delivery of this Mortgage, any deed of trust or mortgage
supplemental hereto, any Mortgage with respect to the Property or any instrument
of further assurance, and any modification or amendment of the foregoing
documents, except where prohibited by law so to do.
Section 5.2 FURTHER ACTS, ETC. Borrower will, at the cost of Borrower,
and without expense to Lender, do, execute, acknowledge and deliver all and
every such further acts, deeds, conveyances, deeds of trust, mortgages,
assignments, notices of assignments, transfers and assurances as Lender shall,
from time to time, reasonably require, for the better assuring, conveying,
assigning, transferring, and confirming unto Lender the property and rights
hereby mortgaged, deeded, granted, bargained, sold, conveyed, confirmed,
pledged, assigned, warranted and transferred or intended now or hereafter so to
be, or which Borrower may be or may hereafter become bound to convey or assign
to Lender, or for carrying out the intention or facilitating the performance of
the terms of this Mortgage or for filing, registering or recording this
Mortgage, or for complying with all Legal Requirements. Borrower, on demand,
will execute and deliver, and in the event it shall fail to so execute and
deliver, hereby authorizes Lender to execute in the name of Borrower or without
the signature of Borrower to the extent Lender may lawfully do so, one or more
financing statements to evidence more effectively the security interest of
Lender in the Property. Borrower grants to Lender an irrevocable power of
attorney coupled with an interest for the purpose of exercising and perfecting
any and all rights and remedies available to Lender at law and in equity,
including without limitation such rights and remedies available to Lender
pursuant to this Section 5.2, which power of attorney Lender agrees it shall not
exercise unless and until Borrower fails to take the action reasonably requested
by Lender, and such failure continues for five (5) days.
Section 5.3 CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS.
(a) If any law is enacted or adopted or amended after the date of this Mortgage
which deducts the Debt from the value of the Property for the purpose of
taxation or which imposes a tax, either directly or indirectly, on the Debt or
Lender's interest in the Property, Borrower will pay the tax,
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with interest and penalties thereon, if any. If Lender is advised by counsel
chosen by it that the payment of tax by Borrower would be unlawful or taxable to
Lender or unenforceable or provide the basis for a defense of usury then Lender
shall have the option by written notice of not less than one hundred twenty
(120) days to declare the Debt immediately due and payable.
(b) Borrower will not claim or demand or be entitled
to any credit or credits on account of the Debt for any part
of the Taxes or Other Charges assessed against the Property,
or any part thereof, and no deduction shall otherwise be made
or claimed from the assessed value of the Property, or any
part thereof, for real estate tax purposes by reason of this
Mortgage or the Debt. If such claim, credit or deduction shall
be required by law, Lender shall have the option, by written
notice of not less than one hundred twenty (120) days, to
declare the Debt immediately due and payable.
(c) If at any time the United States of America, any
State thereof or any subdivision of any such State shall
require revenue or other stamps to be affixed to the Note,
this Mortgage, or any of the other Loan Documents or impose
any other tax or charge on the same, Borrower will pay for the
same, with interest and penalties thereon, if any.
Section 5.4 SPLITTING OF MORTGAGE. This Mortgage and the Note shall, at
any time until the same shall be fully paid and satisfied, at the sole election
of Lender and, except during the continuance of an Event of Default, at Lender's
expense as provided in Section. 9.4 of the Loan Agreement, be split or divided
into two or more notes and two or more Mortgages, each of which shall cover all
or a portion of the Property to be more particularly described therein. To that
end, Borrower, upon written request of Lender, shall execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered by the then owner
of the Property, to Lender and/or its designee or designees substitute notes and
Mortgages in such principal amounts, aggregating not more than the then unpaid
principal amount of the Note, and containing terms, provisions and clauses
similar to those contained herein and in the Note, and such other documents and
instruments as may be required by Lender.
Section 5.5 REPLACEMENT DOCUMENTS. Upon receipt of an affidavit of an
officer of Lender as to the loss, theft, destruction or mutilation of the Note
or any other Loan Document which is not of public record, and, in the case of
any such mutilation, upon surrender and cancellation of such Note or other Loan
Document, Borrower will issue, in lieu thereof, a replacement Note or other Loan
Document, dated the date of such lost, stolen, destroyed or mutilated Note or
other Loan Document in the same principal amount thereof and otherwise of like
tenor.
Article 6 - DUE ON SALE/ENCUMBRANCE
Section 6.1 LENDER RELIANCE. Borrower acknowledges that Lender has
examined and relied on the experience of Borrower and its general partners,
members, principals and (if Borrower is a trust) beneficial owners in owning and
operating properties such as the Property in agreeing to make the Loan, and will
continue to rely on Borrower's ownership of the Property as a means of
maintaining the value of the Property as security for repayment of the
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Debt and the performance of the Other Obligations. Borrower acknowledges that
Lender has a valid interest in maintaining the value of the Property so as to
ensure that, should Borrower default in the repayment of the Debt or the
performance of the Other Obligations, Lender can recover the Debt by a sale of
the Property.
Section 6.2 NO TRANSFER. Borrower shall not permit or suffer any
Transfer, other than a Permitted Transfer, to occur.
Article 7 - RIGHTS AND REMEDIES UPON DEFAULT
Section 7.1 REMEDIES. Upon the occurrence and during the continuance of
any Event of Default, Borrower agrees that Lender may take such action, without
notice or demand, as it deems advisable to protect and enforce its rights
against Borrower and in and to the Property, including, but not limited to, the
following actions, each of which may be pursued concurrently or otherwise, at
such time and in such order as Lender may determine, in its sole discretion,
without impairing or otherwise affecting the other rights and remedies of
Lender:
(a) declare the entire unpaid Debt to be immediately
due and payable;
(b) institute proceedings, judicial or otherwise, for
the complete foreclosure of this Mortgage under any applicable
provision of law, in which case the Property and all interests
therein may be sold for cash or upon credit in one or more
parcels or in several interests or portions and in any order
or manner;
(c) with or without entry, to the extent permitted
and pursuant to the procedures provided by applicable law,
institute proceedings for the partial foreclosure of this
Mortgage for the portion of the Debt then due and payable,
subject to the continuing lien and security interest of this
Mortgage for the balance of the Debt not then due, unimpaired
and without loss of priority;
(d) sell for cash or upon credit the Property or any
part thereof and all estate, claim, demand, right, title and
interest of Borrower therein and rights of redemption thereof,
pursuant to power of sale or otherwise, at one or more sales,
as an entirety or in parcels, at such time and place, upon
such terms and after such notice thereof as may be required or
permitted by law;
(e) institute an action, suit or proceeding in equity
for the specific performance of any covenant, condition or
agreement contained herein, in the Note, the Loan Agreement or
in the other Loan Documents;
(f) recover judgment on the Note either before,
during or after any proceedings for the enforcement of this
Mortgage or the other Loan Documents;
(g) apply for the appointment of a receiver, trustee,
liquidator or conservator of the Property, without notice and
without regard for the adequacy of the security for the Debt
and without regard for the solvency of Borrower, any
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guarantor, indemnitor with respect to the Loan or of any
Person liable for the payment of the Debt;
(h) the license granted to Borrower under Section 1.2
hereof shall automatically be revoked and Lender may enter
into or upon the Property, either personally or by its agents,
nominees or attorneys and dispossess Borrower and its agents
and servants therefrom, without liability for trespass,
damages or otherwise and exclude Borrower and its agents or
servants wholly therefrom, and take possession of all books,
records and accounts relating thereto and Borrower agrees to
surrender possession of the Property and of such books,
records and accounts to Lender upon demand, and thereupon
Lender may (i) use, operate, manage, control, insure,
maintain, repair, restore and otherwise deal with all and
every part of the Property and conduct the business thereat;
(ii) complete any construction on the Property in such manner
and form as Lender deems advisable; (iii) make alterations,
additions, renewals, replacements and improvements to or on
the Property; (iv) exercise all rights and powers of Borrower
with respect to the Property, whether in the name of Borrower
or otherwise, including, without limitation, the right to
make, cancel, enforce or modify Leases, obtain and evict
tenants, and demand, xxx for, collect and receive all Rents of
the Property and every part thereof; (v) require Borrower to
pay monthly in advance to Lender, or any receiver appointed to
collect the Rents, the fair and reasonable rental value for
the use and occupation of such part of the Property as may be
occupied by Borrower; (vi) require Borrower to vacate and
surrender possession of the Property to Lender or to such
receiver and, in default thereof, Borrower may be evicted by
summary proceedings or otherwise; and (vii) apply the receipts
from the Property to the payment of the Debt, subject to the
terms and conditions of the Loan Agreement, in such order,
priority and proportions as Lender shall deem appropriate in
its sole discretion after deducting therefrom all expenses
(including reasonable attorneys' fees) incurred in connection
with the aforesaid operations and all amounts necessary to pay
the Taxes, Other Charges, insurance and other expenses in
connection with the Property, as well as just and reasonable
compensation for the services of Lender, its counsel, agents
and employees;
(i) exercise any and all rights and remedies granted
to a secured party upon default to the extent permitted under
the Uniform Commercial Code, including, without limiting the
generality of the foregoing: (i) the right to take possession
of the Fixtures, the Equipment and the Personal Property, or
any part thereof, and to take such other measures as Lender
may deem necessary for the care, protection and preservation
of the Fixtures, the Equipment and the Personal Property, and
(ii) request Borrower at its expense to assemble the Fixtures,
the Equipment and the Personal Property and make it available
to Lender at a convenient place acceptable to Lender. Any
notice of sale, disposition or other intended action by Lender
with respect to the Fixtures, the Equipment and/or the
Personal Property sent to Borrower in accordance with the
provisions hereof at least five (5) days prior to such action,
shall constitute commercially reasonable notice to Borrower;
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(j) apply any sums then deposited or held in escrow
or otherwise by or on behalf of Lender in accordance with the
terms of the Loan Agreement, this Mortgage or any other Loan
Document to the payment of the following items, in any order
in its uncontrolled discretion, except as provided in the Loan
Agreement:
(i) Taxes and Other Charges;
(ii) Insurance Premiums;
(iii) Interest on the unpaid principal balance of the Note;
(iv) Amortization of the unpaid principal balance of the
Note;
(v) All other sums payable pursuant to the Note, the Loan
Agreement, this Mortgage and the other Loan Documents, including
without limitation advances made by Lender pursuant to the terms of
this Mortgage;
(k) pursue such other remedies as Lender may have
under applicable law; or
(l) apply the undisbursed balance of any Net Proceeds
Deficiency deposit, together with interest thereon, to the
payment of the Debt in such order, priority and proportions as
Lender shall deem to be appropriate in its discretion.
In the event of a sale, by foreclosure, power of sale or otherwise, of less than
all of Property, this Mortgage shall continue as a lien and security interest on
the remaining portion of the Property unimpaired and without loss of priority.
Section 7.2 APPLICATION OF PROCEEDS. The purchase money, proceeds and
avails of any disposition of the Property, and or any part thereof, or any other
sums collected by Lender pursuant to the Note, this Mortgage or the other Loan
Documents, may be applied by Lender to the payment of the Debt in such priority
and proportions as Lender in its discretion shall deem proper, except as
otherwise provided in the Loan Agreement.
Section 7.3 RIGHT TO CURE DEFAULTS. Upon the occurrence and during the
continuance of any Event of Default or if Borrower fails to make any payment or
to do any act as herein provided, Lender may, but without any obligation to do
so and without notice to or demand on Borrower and without releasing Borrower
from any obligation hereunder, make or do the same in such manner and to such
extent as Lender may deem necessary to protect the security hereof. Under the
circumstances described in the preceding sentence, Lender is authorized to enter
upon the Property for such purposes, or appear in, defend, or bring any action
or proceeding to protect its interest in the Property or to foreclose this
Mortgage or collect the Debt, and the cost and expense thereof (including
reasonable attorneys' fees to the extent permitted by law), with interest as
provided in this Section 7.3, shall constitute a portion of the Debt and shall
be due and payable to Lender upon demand. All such costs and expenses incurred
by Lender in remedying such Event of Default or such failed payment or act or in
appearing in, defending, or bringing any such action or proceeding shall bear
interest at the Default Rate, for
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the period after notice from Lender that such cost or expense was incurred to
the date of payment to Lender. All such costs and expenses incurred by Lender
together with interest thereon calculated at the Default Rate shall be deemed to
constitute a portion of the Debt and be secured by this Mortgage and the other
Loan Documents and shall be immediately due and payable upon demand by Lender
therefor.
Section 7.4 ACTIONS AND PROCEEDINGS. Lender has the right to appear in
and defend any action or proceeding brought with respect to the Property and to
bring any action or proceeding, in the name and on behalf of Borrower, which
Lender, in its reasonable discretion, decides should be brought to protect its
interest in the Property.
Section 7.5 RECOVERY OF SUMS REQUIRED TO BE PAID. Lender shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Lender thereafter to bring an action of foreclosure, or any other action, for
an Event of Default by Borrower existing at the time such earlier action was
commenced.
Section 7.6 EXAMINATION OF BOOKS AND RECORDS. At reasonable times and
upon reasonable notice, Lender, its agents, accountants and attorneys shall have
the right to examine the records, books, management and other papers of Borrower
which reflect upon its financial condition, at the Property or at any office
regularly maintained by Borrower where the books and records are located. Lender
and its agents shall have the right to make copies and extracts from the
foregoing records and other papers. In addition, at reasonable times and upon
reasonable notice, Lender, its agents, accountants and attorneys shall have the
right to examine and audit the books and records of Borrower pertaining to the
income, expenses and operation of the Property during reasonable business hours
at any office of Borrower where the books and records are located. This Section
7.6 shall apply throughout the term of the Note and without regard to whether an
Event of Default has occurred or is continuing, and Lender shall pay the full
cost of its expenses incurred in exercising its rights under Section 7.6 so long
as no Event of Default has occurred and is continuing.
Section 7.7 OTHER RIGHTS, ETC. (a) The failure of Lender to insist upon
strict performance of any term hereof shall not be deemed to be a waiver of any
term of this Mortgage. Borrower shall not be relieved of Borrower's obligations
hereunder by reason of (i) the failure of Lender to comply with any request of
Borrower or any guarantor or indemnitor with respect to the Loan to take any
action to foreclose this Mortgage or otherwise enforce any of the provisions
hereof or of the Note or the other Loan Documents, (ii) the release, regardless
of consideration, of the whole or any part of the Property, or of any person
liable for the Debt or any portion thereof, or (iii) any agreement or
stipulation by Lender extending the time of payment or otherwise modifying or
supplementing the terms of the Note, this Mortgage or the other Loan Documents.
(b) It is agreed that the risk of loss or damage to
the Property is on Borrower, and Lender shall have no
liability whatsoever for decline in value of the Property, for
failure to maintain the Policies, or for failure to determine
whether insurance in force is adequate as to the amount of
risks insured.
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Possession by Lender shall not be deemed an election of
judicial relief, if any such possession is requested or
obtained, with respect to any Property or collateral not in
Lender's possession.
(c) Lender may resort for the payment of the Debt to
any other security held by Lender in such order and manner as
Lender, in its discretion, may elect, except as otherwise
provided in the Loan Agreement, and under such circumstances,
Lender may take action to recover the Debt, or any portion
thereof, or to enforce any covenant hereof without prejudice
to the right of Lender thereafter to foreclose this Mortgage.
The rights of Lender under this Mortgage shall be separate,
distinct and cumulative and none shall be given effect to the
exclusion of the others. No act of Lender shall be construed
as an election to proceed under any one provision herein to
the exclusion of any other provision. Lender shall not be
limited exclusively to the rights and remedies herein stated
but shall be entitled to every right and remedy now or
hereafter afforded at law or in equity.
Section 7.8 RIGHT TO RELEASE ANY PORTION OF THE PROPERTY. Lender may
release any portion of the Property for such consideration as Lender may require
without, as to the remainder of the Property, in any way impairing or affecting
the lien or priority of this Mortgage, or improving the position of any
subordinate lienholder with respect thereto, except to the extent that the
obligations hereunder shall have been reduced by the actual monetary
consideration, if any, received by Lender for such release, and may accept by
assignment, pledge or otherwise any other property in place thereof as Lender
may require without being accountable for so doing to any other lienholder. This
Mortgage shall continue as a lien and security interest in the remaining portion
of the Property.
Section 7.9 VIOLATION OF LAWS. If the Property is not in full
compliance with Legal Requirements, Lender may impose additional requirements
upon Borrower in connection herewith including, without limitation, monetary
reserves or financial equivalents.
Section 7.10 RECOURSE AND CHOICE OF REMEDIES. Notwithstanding any other
provision of this Mortgage or the Loan Agreement, including, without limitation,
Section 11.22 of the Loan Agreement, Lender and other Indemnified Parties (as
hereinafter defined) are entitled to enforce (i) the obligations of Borrower
contained in Sections 8.2 and 8.3 herein, and (ii) the obligations of Borrower,
any guarantor and indemnitor contained in Section 9.2 of the Loan Agreement,
without, in either case, first resorting to or exhausting any security or
collateral and without, in either case, first having recourse to the Note or any
of the Property, through foreclosure, exercise of a power of sale or acceptance
of a deed in lieu of foreclosure or otherwise, and in the event Lender commences
a foreclosure action against the Property, or exercises the power of sale
pursuant to this Mortgage, Lender is entitled to pursue a deficiency judgment
with respect to such obligations against Borrower and any guarantor or
indemnitor with respect to the Loan. The provisions of Sections 8.2 and 8.3
herein and Section 9.2 of the Loan Agreement are exceptions to any non-recourse
or exculpation provisions in the Loan Agreement, the Note, this Mortgage or the
other Loan Documents, and (i) Borrower is fully and personally liable for the
obligations pursuant to Sections 8.2 and 8.3 herein, (ii) Borrower and any
guarantor or indemnitor with respect to the Loan are fully and personally liable
for the
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obligations pursuant to Section 9.2 of the Loan Agreement. The liability of (i)
Borrower with respect to the Loan pursuant to Sections 8.2 and 8.3 herein, or
(ii) Borrower, any guarantor or indemnitor with respect to the Loan pursuant to
Section 9.2 of the Loan Agreement, is not limited to the original principal
amount of the Note. Notwithstanding the foregoing, nothing herein shall inhibit
or prevent Lender from foreclosing or exercising a power of sale pursuant to
this Mortgage or exercising any other rights and remedies pursuant to the Loan
Agreement, the Note, this Mortgage and the other Loan Documents, whether
simultaneously with foreclosure proceedings or in any other sequence. A separate
action or actions may be brought and prosecuted against Borrower pursuant to
Sections 8.2 and 8.3 herein and Section 9.2 of the Loan Agreement, whether or
not action is brought against any other Person or whether or not any other
Person is joined in the action or actions. In addition, Lender shall have the
right but not the obligation to join and participate in, as a party if it so
elects, any administrative or judicial proceedings or actions initiated in
connection with any matter addressed in the Environmental Indemnity.
Section 7.11 RIGHT OF ENTRY. Upon reasonable notice to Borrower, Lender
and its agents shall have the right to enter and inspect the Property at all
reasonable times.
Article 8 - INDEMNIFICATION
Section 8.1 GENERAL INDEMNIFICATION. Borrower shall, at its sole cost
and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties from and against any and all claims, suits, liabilities
(including, without limitation, strict liabilities), actions, proceedings,
obligations, debts, damages, losses, costs, expenses, diminutions in value,
fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in
settlement, punitive damages, foreseeable and unforeseeable consequential
damages, of whatever kind or nature (including but not limited to reasonable
attorneys' fees and other costs of defense) (collectively, the "LOSSES") imposed
upon or incurred by or asserted against any Indemnified Parties and directly or
indirectly arising out of or in any way relating to any one or more of the
following: (a) ownership of this Mortgage, the Property or any interest therein
or receipt of any Rents; (b) any amendment to, or restructuring of, the Debt,
and the Note, the Loan Agreement, this Mortgage, or any other Loan Documents;
(c) any and all lawful action that may be taken by Lender in connection with the
enforcement of the provisions of this Mortgage or the Loan Agreement or the Note
or any of the other Loan Documents, whether or not suit is filed in connection
with same, or in connection with Borrower, any guarantor or indemnitor and/or
any partner, joint venturer or shareholder thereof becoming a party to a
voluntary or involuntary federal or state bankruptcy, insolvency or similar
proceeding; (d) any accident, injury to or death of persons or loss of or damage
to property occurring in, on or about the Property or any part thereof or on the
adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets
or ways; (e) any use, nonuse or condition in, on or about the Property or any
part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, streets or ways; (f) any failure on the part of Borrower to
perform or be in compliance with any of the terms of this Mortgage; (g)
performance of any labor or services or the furnishing of any materials or other
property in respect of the Property or any part thereof; (h) the failure of any
person to file timely with the Internal Revenue Service an accurate Form 0000-X,
Xxxxxxxxx for Recipients of Proceeds from Real Estate, Broker and Barter
Exchange Transactions, which may be required in connection
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with this Mortgage, or to supply a copy thereof in a timely fashion to the
recipient of the proceeds of the transaction in connection with which this
Mortgage is made; (i) any failure of the Property to be in compliance with any
Legal Requirements; (j) the enforcement by any Indemnified Party of the
provisions of this Article 8; (k) any and all claims and demands whatsoever
which may be asserted against Lender by reason of any alleged obligations or
undertakings on its part to perform or discharge any of the terms, covenants, or
agreements contained in any Lease; (1) the payment of any commission, charge or
brokerage fee to anyone claiming through Borrower which may be payable in
connection with the funding of the Loan; or (m) any misrepresentation made by
Borrower in this Mortgage or any other Loan Document. Any amounts payable to
Lender by reason of the application of this Section 8.1 shall become immediately
due and payable and shall bear interest at the Default Rate from the date loss
or damage is sustained by Lender until paid. For purposes of this Article 8, the
term "INDEMNIFIED PARTIES" means Lender and any Person who is or will have been
involved in the origination of the Loan, any Person who is or will have been
involved in the servicing of the Loan secured hereby, any Person in whose name
the encumbrance created by this Mortgage is or will have been recorded, persons
and entities who may hold or acquire or will have held a full or partial
interest in the Loan secured hereby (including, but not limited to, investors or
prospective investors in the Securities, as well as custodians, trustees and
other fiduciaries who hold or have held a full or partial interest in the Loan
secured hereby for the benefit of third parties) as well as the respective
directors, officers, shareholders, partners, employees, agents, servants,
representatives, contractors, subcontractors, affiliates, subsidiaries,
participants, successors and assigns of any and all of the foregoing (including
but not limited to any other Person who holds or acquires or will have held a
participation or other full or partial interest in the Loan, whether during the
term of the Loan or as a part of or following a foreclosure of the Loan and
including, but not limited to, any successors by merger, consolidation or
acquisition of all or a substantial portion of Lender's assets and business).
Section 8.2 MORTGAGE AND/OR INTANGIBLE TAX. Borrower shall, at its sole
cost and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties from and against any and all Losses imposed upon or incurred
by or asserted against any Indemnified Parties and directly or indirectly
arising out of or in any way relating to any tax on the making and/or recording
of this Mortgage, the Note or any of the other Loan Documents, but excluding any
income, franchise or other similar taxes.
Section 8.3 ERISA INDEMNIFICATION. Borrower shall, at its sole cost and
expense, protect, defend, indemnify, release and hold harmless the Indemnified
Parties from and against any and all Losses (including, without limitation,
reasonable attorneys' fees and costs incurred in the investigation, defense, and
settlement of Losses incurred in correcting any prohibited transaction or in the
sale of a prohibited loan, and in obtaining any individual prohibited
transaction exemption under ERISA that may be required, in Lender's sole
discretion) that Lender may incur, directly or indirectly, as a result of a
default under Sections 4.2.13 of the Loan Agreement.
Section 8.4 DUTY TO DEFEND; ATTORNEYS' FEES AND OTHER FEES AND
EXPENSES. Upon written request by any Indemnified Party, Borrower shall defend
such Indemnified Party (if requested by any Indemnified Party, in the name of
the Indemnified Party) by attorneys and other professionals approved by the
Indemnified Parties. Notwithstanding the foregoing, if
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the defendants in any such claim or proceeding include both Borrower and any
Indemnified Party and Borrower and such Indemnified Party shall have reasonably
concluded that there are any legal defenses available to it and/or other
Indemnified Parties that are different from or additional to those available to
Borrower, such Indemnified Party shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such Indemnified Party, provided that no compromise or
settlement shall be entered without Borrower's consent, which consent shall not
be unreasonably withheld. Upon demand, Borrower shall pay or, in the sole and
absolute discretion of the Indemnified Parties, reimburse, the Indemnified
Parties for the payment of reasonable fees and disbursements of attorneys,
engineers, environmental consultants, laboratories and other professionals in
connection therewith.
Article 9 - WAIVERS
Section 9.1 WAIVER OF COUNTERCLAIM. To the extent permitted by
applicable law, Borrower hereby waives the right to assert a counterclaim, other
than a mandatory or compulsory counterclaim, in any action or proceeding brought
against it by Lender arising out of or in any way connected with this Mortgage,
the Loan Agreement, the Note, any of the other Loan Documents, or the
Obligations.
Section 9.2 MARSHALLING AND OTHER MATTERS. To the extent permitted by
applicable law, Borrower hereby waives the benefit of all appraisement,
valuation, stay, extension, reinstatement and redemption laws now or hereafter
in force and all rights of marshalling in the event of any sale hereunder of the
Property or any part thereof or any interest therein. Further, Borrower hereby
expressly waives any and all rights of redemption from sale under any order or
decree of foreclosure of this Mortgage on behalf of Borrower, and on behalf of
each and every person acquiring any interest in or title to the Property
subsequent to the date of this Mortgage and on behalf of all persons to the
extent permitted by applicable law.
Section 9.3 WAIVER OF NOTICE. To the extent permitted by applicable
law, Borrower shall not be entitled to any notices of any nature whatsoever from
Lender except with respect to matters for which this Mortgage or the Loan
Documents specifically and expressly provide for the giving of notice by Lender
to Borrower and except with respect to matters for which Lender is required by
applicable law to give notice, and Borrower hereby expressly waives the right to
receive any notice from Lender with respect to any matter for which this
Mortgage does not specifically and expressly provide for the giving of notice by
Lender to Borrower. SECTION 9.4 WAIVER OF STATUTE OF LIMITATIONS. To the extent
permitted by applicable law, Borrower hereby expressly waives and releases to
the fullest extent permitted by law, the pleading of any statute of limitations
as a defense to payment of the Debt or performance of its Other Obligations.
Section 9.5 SURVIVAL. The indemnifications made pursuant to Section 8.3
herein shall continue indefinitely in full force and effect and shall survive
and shall in no way be impaired by: any satisfaction or other termination of
this Mortgage, any assignment or other transfer of all or any portion of this
Mortgage or Lender's interest in the Property (but, in such
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case, shall benefit both Indemnified Parties and any assignee or transferee),
any exercise of Lender's rights and remedies pursuant hereto including but not
limited to foreclosure or acceptance of a deed in lieu of foreclosure, any
exercise of any rights and remedies pursuant to the Loan Agreement, the Note or
any of the other Loan Documents, any transfer of all or any portion of the
Property (whether by Borrower or by Lender following foreclosure or acceptance
of a deed in lieu of foreclosure or at any other time), any amendment to this
Mortgage, the Loan Agreement, the Note or the other Loan Documents, and any act
or omission that might otherwise be construed as a release or discharge of
Borrower from the obligations pursuant hereto.
Article 10 - EXCULPATION
The provisions of Section 11.22 of the Loan Agreement are hereby
incorporated by reference into this Mortgage to the same extent and with the
same force as if fully set forth herein.
Article 11 - NOTICES
All notices or other written communications hereunder shall be
delivered in accordance with Section 11.6 of the Loan Agreement.
Article 12 - APPLICABLE LAW
Section 12.1 GOVERNING LAW. (A) THIS MORTGAGE WAS NEGOTIATED IN THE
STATE OF NEW YORK, AND MADE BY BORROWER AND ACCEPTED BY LENDER IN THE STATE OF
NEW YORK, AND THE PROCEEDS OF THE NOTE SECURED HEREBY WERE DISBURSED FROM THE
STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP
TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL
RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS MORTGAGE AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH
STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF
THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE
CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS
CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS WITH RESPECT TO
THE PROPERTY SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE
STATE IN WHICH THE PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST
EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK
SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS
AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST
EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND
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IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION
GOVERNS THIS MORTGAGE OR THE OTHER LOAN DOCUMENTS, AND THIS MORTGAGE AND THE
OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER
OR BORROWER ARISING OUT OF OR RELATING TO THIS MORTGAGE MAY AT LENDER'S OPTION
BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX, XXXXXX XX
XXX XXXX, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON
VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUIT, ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT
CORPORATION SERVICE COMPANY
0000 XXXXXX XX XXX XXXXXXXX
00XX XXXXX
XXX XXXX, XXX XXXX 00000
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
Section 12.2 USURY LAWS. Notwithstanding anything to the contrary, (a)
all agreements and communications between Borrower and Lender are hereby and
shall automatically be limited so that, after taking into account all amounts
deemed interest, the interest contracted for, charged or received by Lender
shall never exceed the maximum lawful rate or amount, (b) in calculating whether
any interest exceeds the lawful maximum, all such interest shall be amortized,
prorated, allocated and spread over the full amount and term of all
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principal indebtedness of Borrower to Lender, and (c) if through any contingency
or event, Lender receives or is deemed to receive interest in excess of the
lawful maximum, any such excess shall be deemed to have been applied toward
payment of the principal of any and all then outstanding indebtedness of
Borrower to Lender, or if there is no such indebtedness, shall immediately be
returned to Borrower.
Section 12.3 PROVISIONS SUBJECT TO APPLICABLE LAW. All rights, powers
and remedies provided in this Mortgage may be exercised only to the extent that
the exercise thereof does not violate any applicable provisions of law and are
intended to be limited to the extent necessary so that they will not render this
Mortgage invalid, unenforceable or not entitled to be recorded, registered or
filed under the provisions of any applicable law. If any term of this Mortgage
or any application thereof shall be invalid or unenforceable, the remainder of
this Mortgage and any other application of the term shall not be affected
thereby.
Article 13 - DEFINITIONS
Unless the context clearly indicates a contrary intent or unless
otherwise specifically provided herein, words used in this Mortgage may be used
interchangeably in singular or plural form and the word "BORROWER" shall mean
"each Borrower and any subsequent owner or owners of the Property or any part
thereof or any interest therein," the word "LENDER" shall mean "Lender and any
subsequent holder of the Note," the word "NOTE" shall mean "the Note and any
other evidence of indebtedness secured by this Mortgage," the word "PROPERTY"
shall include any portion of the Property and any interest therein, and the
phrases "ATTORNEYS' FEES", "LEGAL FEES" and "COUNSEL FEES" shall include any and
all attorneys', paralegal and law clerk fees and disbursements, including, but
not limited to, fees and disbursements at the pre-trial, trial and appellate
levels incurred or paid by Lender in protecting its interest in the Property,
the Leases and the Rents and enforcing its rights hereunder.
Article 14 - MISCELLANEOUS PROVISIONS
Section 14.1 NO ORAL CHANGE. This Mortgage, and any provisions hereof,
may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Borrower or
Lender, but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
Section 14.2 SUCCESSORS AND ASSIGNS. This Mortgage shall be binding
upon and inure to the benefit of Borrower and Lender and their respective
successors and assigns forever.
Section 14.3 INAPPLICABLE PROVISIONS. If any term, covenant or
condition of the Loan Agreement, the Note or this Mortgage is held to be
invalid, illegal or unenforceable in any respect, the Loan Agreement, the Note
and this Mortgage shall be construed without such provision.
Section 14.4 HEADINGS, ETC. The headings and captions of various
Sections of this Mortgage are for convenience of reference only and are not to
be construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
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Section 14.5 NUMBER AND GENDER. 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.
Section 14.6 SUBROGATION. If any or all of the proceeds of the Note
have been used to extinguish, extend or renew any indebtedness heretofore
existing against the Property, then, to the extent of the funds so used, Lender
shall be subrogated to all of the rights, claims, liens, titles, and interests
existing against the Property heretofore held by, or in favor of, the holder of
such indebtedness and such former rights, claims, liens, titles, and interests,
if any, are not waived but rather are continued in full force and effect in
favor of Lender and are merged with the lien and security interest created
herein as cumulative security for the repayment of the Debt, the performance and
discharge of Borrower's obligations hereunder, under the Loan Agreement, the
Note and the other Loan Documents and the performance and discharge of the Other
Obligations.
Section 14.7 ENTIRE AGREEMENT. The Note, the Loan Agreement, this
Mortgage and the other Loan Documents constitute the entire understanding and
agreement between Borrower and Lender with respect to the transactions arising
in connection with the Debt and supersede all prior written or oral
understandings and agreements between Borrower and Lender with respect thereto.
Borrower hereby acknowledges that, except as incorporated in writing in the
Note, the Loan Agreement, this Mortgage and the other Loan Documents, there are
not, and were not, and no persons are or were authorized by Lender to make, any
representations, understandings, stipulations, agreements or promises, oral or
written, with respect to the transaction which is the subject of the Note, the
Loan Agreement, this Mortgage and the other Loan Documents.
Section 14.8 LIMITATION ON LENDER'S RESPONSIBILITY. No provision of
this Mortgage shall operate to place any obligation or liability for the
control, care, management or repair of the Property upon Lender, nor shall it
operate to make Lender responsible or liable for any waste committed on the
Property by the tenants or any other Person, or for any dangerous or defective
condition of the Property, or for any negligence in the management, upkeep,
repair or control of the Property resulting in loss or injury or death to any
tenant, licensee, employee or stranger. Nothing herein contained shall be
construed as constituting Lender a "mortgagee in possession."
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IN WITNESS WHEREOF, THIS MORTGAGE has been executed by Borrower as of
the day and year first above written.
PFP COLUMBUS, LLC, a Delaware limited
liability company
By: Polaris Mall, LLC, a Delaware limited
liability company, its Manager
By: Glimcher Properties Limited
Partnership, a Delaware limited
partnership, its Manager
By: Glimcher Properties
Corporation, a Delaware
corporation, its Sole General
Partner
By: __________________________
Xxxxxx X. Xxxxxxx,
Executive Vice President
ACKNOWLEDGMENT
STATE OF ________________
COUNTY OF _______________
The foregoing instrument was acknowledged before me this ___ day of
________, 2003, by Xxxxxx X. Xxxxxxx, Executive Vice President of Glimcher
Properties Corporation, a Delaware corporation, the Sole General Partner of
Glimcher Properties Limited Partnership, a Delaware limited partnership, the
Manager of Polaris Mall, LLC a Delaware limited liability company, the manager
of PFP Columbus, LLC a Delaware limited liability company, on behalf of the
company.
______________________________________
Name:
My commission expires:
EXHIBIT A
LEGAL DESCRIPTION
(Attached hereto)
