1
Exhibit 10.67
===============================================================================
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT
AND FIXTURE FINANCING STATEMENT
MORTGAGOR: GLIMCHER NORTHTOWN VENTURE, LLC
c/o Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000
MORTGAGEE: NOMURA ASSET CAPITAL CORPORATION
Two World Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
THE MAXIMUM PRINCIPAL
INDEBTEDNESS SECURED BY
THIS INSTRUMENT IS: $40,000,000
DATE: As of June 1, 1998
DRAFTED BY: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
J. Xxxxxx Xxxxx, Esq.
RECORD AND RETURN TO:
Weil, Gotshal and Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
J. Xxxxxx Xxxxx, Esq.
===============================================================================
2
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 June 1st, 1998, between GLIMCHER NORTHTOWN
VENTURE, LLC, a Delaware limited liability company ("MORTGAGOR"), with an
address for the transaction of business at c/o Glimcher Properties Limited
Partnership, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, and NOMURA ASSET
CAPITAL CORPORATION, a Delaware corporation ("MORTGAGEE"), having its principal
place of business at Two World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx
00000.
W I T N E S S E T H:
WHEREAS:
A. Mortgagor is the owner of fee simple title to that certain parcel of
real property located in the County of Anoka, State of Minnesota, and more
particularly described on EXHIBIT A attached hereto and incorporated herein by
this reference (the "PREMISES"), and the buildings, structures, fixtures,
additions, enlargements, extensions, modifications, repairs, replacements and
other improvements now or hereafter located thereon (the "IMPROVEMENTS"); and
B. Pursuant to that certain Loan Agreement dated as of the date hereof
(the "LOAN AGREEMENT"), between Mortgagor and Mortgagee, Mortgagee is making a
loan (the "LOAN") to Grantor in the original principal amount of $40,000,000 and
Mortgagor has executed that certain Note (as defined in the Loan Agreement)
evidencing the Loan (the "NOTE"), which Note is made payable to the order of
Mortgagee in the stated in the principal amount of $40,000,000, together with
interest thereon, with final payment being due on or before August 30, 2001, the
Stated Maturity Date (all capitalized terms not otherwise defined herein shall
have the meaning set forth in the Loan Agreement); and
C. To induce Mortgagee to make the Loan to Mortgagor and to further
secure payment of the Note, together with interest thereon, and all other sums
due hereunder and under the other Loan Documents, the parties desire to enter
into this Mortgage.
D. Mortgagor and Mortgagee intend these recitals to be a material part
of this Mortgage.
NOW, THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00) and
other good and valuable consideration, the receipt and legal sufficiency whereof
are hereby acknowledged, and the mutual covenants herein contained, Mortgagor
and Mortgagee hereby agree as follows:
2
3
THAT, in order to secure the payment of an indebtedness in the
principal sum of FORTY MILLION and No/100 Dollars $40,000,000, and all other
sums which may or shall become due hereunder or under the Note or any of the
other documents evidencing, securing or executed in connection with the Loan
(such other documents, including, without limitation, the Loan Agreement and
that certain Assignment of Leases and Rents dated as of the date hereof given by
Mortgagor to Mortgagee with respect to the Premises (as such assignment may be
amended from time to time, the "ASSIGNMENT"), together with the Note and this
Mortgage (as any of the same may, from time to time, be modified, amended or
supplemented) being hereinafter collectively referred to as the "LOAN
Documents"), and including the costs and expenses of enforcing any provision of
the Note, this Mortgage or any of the other Loan Documents (all such sums being
hereinafter collectively referred to as the "DEBT"), and in order to charge with
such performance and with such payments the Premises, the Improvements and the
other property hereinafter described and the rents, revenues, issues, income and
profits thereof, Mortgagor has executed and delivered this Mortgage and
MORTGAGOR HAS MORTGAGED, GRANTED, BARGAINED, SOLD, CONVEYED, TRANSFERRED AND
ASSIGNED, AND BY THESE PRESENTS DOES HEREBY IRREVOCABLY MORTGAGE, GRANT,
BARGAIN, SELL, CONVEY, TRANSFER AND ASSIGN, TO MORTGAGEE, ITS SUCCESSORS AND
ASSIGNS, the Premises and the Improvements, together with all right, title,
interest and estate of Mortgagor now owned, or hereafter acquired, in and to the
following property, rights, interests and estates (the Premises, the
Improvements and the property, rights, interests and estates hereinafter
described are collectively referred to herein as the "MORTGAGED PROPERTY"):
(a) all easements, rights-of-way, strips and gores of land,
streets, ways, alleys, passages, sewer rights, water, water courses, water
rights and powers, air rights and development rights, all rights to oil, gas,
minerals, coal and other substances of any kind or character, and all estates,
rights, titles, interests, privileges, liberties, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to the Premises and the Improvements and the reversion and
reversions, remainder and remainders, and all land lying in the bed of any
street, road, highway, alley or avenue, opened, vacated or proposed, in front of
or adjoining the Premises, to the center line thereof and all the estates,
rights, titles, interests, dower and rights of dower, curtsey and rights of
curtsey, property, possession, claim and demand whatsoever, both at law and in
equity, of Mortgagor of, in and to the Premises and the Improvements and every
part and parcel thereof, with the appurtenances thereto;
(b) all machinery, furniture, furnishings, equipment, computer
software and hardware, fixtures (including, without limitation, all heating, air
conditioning, plumbing, lighting, communications and elevator fixtures), and
other property of every kind and nature, whether tangible or intangible,
whatsoever owned by Mortgagor, or in which Mortgagor has or shall have an
interest, now or hereafter located upon the Premises and the Improvements, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy
3
4
of the Premises and the Improvements and all building equipment, materials and
supplies of any nature whatsoever owned by Mortgagor, or in which Mortgagor has
or shall have an interest, now or hereafter located upon the Premises and the
Improvements, or appurtenant thereto, or usable in connection with the present
or future operation, enjoyment and occupancy of the Premises and the
Improvements (hereinafter collectively referred to as the "EQUIPMENT"),
including any leases of any of the foregoing, any deposits existing at any time
in connection with any of the foregoing and the proceeds of any sale or transfer
of any of the foregoing, and the right, title and interest of Mortgagor in and
to any of the Equipment that 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 Equipment is located (the "UNIFORM COMMERCIAL CODE"),
superior in lien to the lien of this Mortgage;
(c) all awards or payments, including interest thereon, that
may heretofore and hereafter be made with respect to the Premises and the
Improvements, whether from the exercise of the right of eminent domain or
condemnation (including, without limitation, any transfer made in lieu of or in
anticipation of the exercise of said rights), or for a change of grade, or for
any other injury to or decrease in the value of the Premises and the
Improvements;
(d) all current and future leases, rental agreements,
occupancy agreements and other agreements of whatever form now or hereafter
affecting the use, enjoyment or occupancy of, or the conduct of any activity
upon or in, all or any part of the Premises and the Improvements, including any
guaranties, extensions, renewals, replacements or modifications thereof
(hereinafter collectively referred to as the "LEASES") and all rents, rent
equivalents, moneys payable as damages or in lieu of rent or rent equivalents,
royalties (including, without limitation, all oil and gas or other mineral
royalties and bonuses), income, receivables, receipts, revenues, deposits
(including, without limitation, security, utility and other deposits), accounts,
cash, issues, profits, charges for services rendered, and other consideration of
whatever form or nature received by or paid to or for the account of or benefit
of Mortgagor or its agents or employees from any and all sources arising from or
attributable to the Premises and the Improvements (the "RENTS"), together with
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;
(e) all proceeds of and any unearned premiums on any insurance
policies covering the Premises, the Improvements and the Equipment, 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
Premises, the Improvements or the Equipment;
(f) all accounts, escrows, documents, instruments, chattel
paper, claims, deposits and general intangibles, as the foregoing terms are
defined in the Uniform Commercial Code, and all franchises, trade names,
trademarks, symbols, service marks, books, records, plans, specifications,
designs, drawings, permits, consents, licenses, property management agreements,
contract rights (including, without limitation, any contract with any architect
or engineer or with any other provider of goods or services for or in connection
with any construction, repair or other work upon the Premises, the Improvements
or the Equipment and
4
5
all rights, interest and privileges which Mortgagor has or may have as developer
or declarant under any covenants, restrictions or declarations now or hereafter
relating to the Premises or the Improvements), approvals, actions, refunds of
real estate taxes and assessments (and any other governmental impositions
related to the Premises, the Improvements or the Equipment), and causes of
action that now or hereafter relate to, are derived from or are used in
connection with the Premises, the Improvements or the Equipment, or the use,
operation, maintenance, occupancy or enjoyment thereof or the conduct of any
business or activities thereon (hereinafter collectively referred to as the
"INTANGIBLES");
(g) all options to purchase and rights of first refusal to
purchase and acquire a fee estate, easement interest or other real property
right to land, both vacant and improved, adjoining the Premises now or hereafter
in effect (hereinafter collectively referred to as the "OPTIONS");
(h) the right, in the name and on behalf of Mortgagor, to
appear in and defend any action or proceeding brought with respect to the
Premises, the Improvements, the Equipment, the Leases, the Intangibles or the
Options and to commence any action or proceeding to protect the interest of
Mortgagee in the Premises, the Improvements, the Equipment, the Leases, the
Intangibles or the Options; and
(i) all proceeds, products, offspring, rents and profits from
any of the foregoing, including, without limitation, those from sale, exchange,
transfer, collection, loss, damage, disposition, substitution or replacement of
any of the foregoing.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto Mortgagee, its successors and assigns, forever, for the purposes and uses
herein set forth and Mortgagor hereby binds itself and its heirs, executors,
administrators, personal representatives, successors and assigns to warrant and
forever defend the Mortgaged Property unto Mortgagee, its successors and
assigns, against the claim or claims of all persons claiming or to claim the
same or any part thereof.
AND, for the purpose of further securing the Debt and for the
protection of the security of this Mortgage, for so long as the Debt or any part
thereof remains unpaid, Mortgagor represents and warrants to and covenants and
agrees with Mortgagee as follows:
GENERAL PROVISIONS
1. PAYMENT OF DEBT AND INCORPORATION OF COVENANTS, CONDITIONS AND
AGREEMENTS. Mortgagor shall pay the Debt at the time and in the manner provided
in the Note, the Loan Agreement, this Mortgage and the other Loan Documents. All
the covenants, conditions and agreements contained in the Note, the Loan
Agreement and 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.
5
6
2. WARRANTY OF TITLE. Mortgagor hereby warrants that: (a) Mortgagor has
good, marketable and insurable title to the Mortgaged Property; (b) Mortgagor
has the full power, authority and right to execute, deliver and perform its
obligations under this Mortgage and to encumber, grant, bargain, sell, convey,
assign and mortgage the Mortgaged Property in the manner and form hereby done or
intended; (c) Mortgagor possesses an unencumbered fee simple estate in the
Premises and the Improvements and Mortgagor owns the Mortgaged Property free and
clear of all liens, encumbrances and charges whatsoever except for those
exceptions shown in the title insurance policy insuring the lien of this
Mortgage; and (d) this Mortgage is and will remain a valid and enforceable first
lien on and security interest in the Mortgaged Property, subject only to those
exceptions shown in the title insurance policy insuring the lien of this
Mortgage. Mortgagor shall forever warrant, defend and preserve such title and
the validity and priority of the lien of this Mortgage and shall forever warrant
and defend the same to Mortgagee against the claims of all persons whomsoever.
The foregoing warranty of title shall survive the foreclosure of this Mortgage
and shall inure to the benefit of and be enforceable by Mortgagee in the event
Mortgagee acquires title to the Mortgaged Property pursuant to any foreclosure.
3. INSURANCE.
(a) Mortgagor, at its sole cost and expense, for the mutual
benefit of Mortgagor and Mortgagee, shall obtain and maintain during the entire
term of this Mortgage policies of insurance against loss or damage by fire and
lightning and against loss or damage by all other risks and hazards as required
and in accordance with the terms and provisions of Section 7.1 of the Loan
Agreement.
(b) If the Mortgaged Property shall be damaged or destroyed,
in whole or in part, by fire or other casualty (a "CASUALTY"), Mortgagor shall
give prompt written notice thereof to Mortgagee. Following the occurrence of a
Casualty, Mortgagor, regardless of whether insurance proceeds are available
(unless such insurance proceeds have been used to repay the Debt in full), shall
promptly proceed to restore, repair, replace or rebuild the Mortgaged Property
to be of at least equal value and of substantially the same character as prior
to such damage or destruction, all to be effected in accordance with applicable
law. All amounts to be paid in connection with a Casualty under such policies
shall be governed by the terms and provisions of the Loan Agreement.
4. PAYMENT OF TAXES, ETC. Subject to Section 5.1(b) of the Loan
Agreement, Mortgagor shall pay all taxes, assessments, water rates and sewer
rents now or hereafter levied or assessed or imposed against the Mortgaged
Property or any part thereof (the "TAXES"), and all maintenance charges, ground
rents, impositions other than Taxes and other charges, including, without
limitation, vault charges and license fees for the use of vaults, chutes and
similar areas adjoining the Premises, now or hereafter levied or assessed or
imposed against the Mortgaged Property or any part thereof (the "OTHER
Charges"), before delinquency, provided, however, that Mortgagor's obligation to
directly pay Taxes shall be suspended for so long as Mortgagor complies with the
terms and provisions of Section 7.3 of the Loan Agreement.
6
7
5. CONDEMNATION.
(a) Mortgagor shall promptly give Mortgagee written notice of
the actual or threatened commencement of any condemnation or eminent domain
proceeding against the Premises or the Improvements or any part thereof (a
"CONDEMNATION") and shall deliver to Mortgagee copies of any and all papers
served in connection with such Condemnation. Following the occurrence of a
Condemnation, Mortgagor, regardless of whether an Award (as hereinafter defined)
is available, (unless such Award has been used to repay the Debt in full), shall
promptly proceed to restore, repair, replace or rebuild the Mortgaged Property
to the extent practicable to be of at least equal value and of substantially the
same character as prior to such Condemnation, all to be effected in accordance
with applicable law.
(b) Mortgagee is hereby irrevocably appointed as Mortgagor's
attorney-in-fact, coupled with an interest, with exclusive power to collect,
receive and retain any award or payment ("AWARD") for any taking accomplished
through a Condemnation and to make any compromise or settlement in connection
with such Condemnation, subject to the provisions of this Mortgage and section
7.1.3(b) of the Loan Agreement. Notwithstanding any taking in connection with a
Condemnation by any public or quasi-public authority (including, without
limitation, any transfer made in lieu of or in anticipation of such a
Condemnation), Mortgagor shall continue to pay the Debt at the time and in the
manner provided for in the Note, the Loan Agreement, this Mortgage and the other
Loan Documents and the Debt shall not be reduced unless and until any Award
shall have been actually received and applied by Mortgagee to expenses of
collecting the Award and to discharge of the Debt. Mortgagee shall not be
limited to the interest paid on the Award by the condemning authority but shall
be entitled to receive out of the Award interest at the rate or rates provided
in the Note. All amounts to be paid in connection with a Condemnation shall be
governed by the terms and provisions of the Loan Agreement.
7
8
6. LEASES AND RENTS.
(a) Mortgagor does hereby irrevocably, absolutely and
unconditionally assign to Mortgagee, its successors and assigns, all of
Mortgagor's right, title and interest in and to all current and future Leases
and Rents, it being intended by Mortgagor that this assignment constitutes a
present, absolute and unconditional assignment and not an assignment for
additional security only. Such assignment to Mortgagee shall not be construed to
bind Mortgagee to the performance of any of the covenants, conditions or
provisions contained in any such Lease or otherwise impose any obligation upon
Mortgagee. Mortgagor agrees to execute and deliver to Mortgagee such additional
instruments, in form and substance satisfactory to Mortgagee, as may hereafter
be requested by Mortgagee to further evidence and confirm such assignment.
Nevertheless, subject to the terms of this Paragraph, Mortgagee grants to
Mortgagor a license (revocable upon an Event of Default) to operate and manage
the Mortgaged Property; PROVIDED, however, that all Rents shall be sent to a
financial institution acceptable to Mortgagee for deposit into an account
designated and established by Mortgagee to secure repayment of the Debt, all in
accordance with the terms, covenants and conditions contained in the Loan
Agreement. Any Rents collected by Mortgagor shall be held by Mortgagor in trust
for the benefit of Mortgagee for use in the payment of the Debt. Upon the
occurrence of an Event of Default (as hereinafter defined), the following
provision shall apply:
(i) ASSIGNMENT OF RENTS AND PROFITS. As additional security
for the payment of the Debt and any amounts which Mortgagor is obligated to pay
Mortgagee pursuant to the Loan Agreement, Mortgagor hereby assigns the rents and
profits from the Mortgaged Premises to Mortgagee (the "ASSIGNMENT OF RENTS").
Mortgagee may enforce the Assignment of Rents upon the occurrence of an Event of
Default, as defined in this Mortgage, without regard to waste, adequacy of
security or the solvency of the Mortgagor. To enforce the Assignment of Rents,
Mortgagee may, at is option, either:
(A) Apply to a Minnesota District Court for the Judicial District
in which all or any part of the Mortgaged Premises are located
for the appointment of a receiver pursuant to Minnesota
Statute Section 559.17. The Mortgagee shall be entitled to the
appointment of a receiver upon a showing that an Event of
Default has occurred under the terms of the Mortgage and
without regard to waste, adequacy of security or the solvency
of the Mortgagor. If the Court appoints a receiver, the
receiver shall have the right to manage, operate and lease
(for terms of any duration) the Mortgaged Premises and shall
collect the rents and profits from the Mortgaged Premises from
the date of the appointment to the date of a Court Order
discharging the receiver. The receiver shall apply the rents
and profits collected:
(1) To pay the expenses listed in clauses (1), (2) and
(3) of Minn. Xxxx.xx. 576.01, Subd. 2 in the priority
numbered;
8
9
(2) To pay all expenses for normal maintenance of the
Mortgaged Premises in the manner provided in Section
576.01, subd. 2;
(3) To pay Mortgagee for any amounts which Mortgagor owes
to Mortgagee pursuant to Section 7(i) or 9(a) of this
Mortgage the Loan Agreement;
(4) To pay the holder of any prior mortgage for
installments of principal and interest as they become
due;
(5) To pay the holder or any other prior liens or
encumbrance as payments on such liens or encumbrances
become due;
(6) If application of the rents and profits is made
before the occurrence of a Sheriff's sale foreclosing
this Mortgage, to pay Mortgagee for amounts due under
the Debt;
(7) If application of the rents and profits is made after
the occurrence of a Sheriff's sale foreclosing this
Mortgage and Mortgagee is not entitled to obtain a
deficiency judgment under Minnesota Statutes, Section
582.30, to the holder of the Sheriff's Certificate of
Sale as a credit against the amount required to be
paid to effect a redemption of the Mortgaged Premises
from foreclosure of this Mortgage;
OR
If application of rents and profits is made after the
occurrence of a Sheriff's sale foreclosing this
Mortgage and the Mortgagee is entitled to obtain a
deficiency judgment pursuant to Minnesota Statutes,
Section 582.30, first, to the Mortgagee for the
payment of any deficiency for which the Mortgagee is
entitled to seek a judgment (whether or not Mortgagee
has obtained a judgment) and second, to the holder of
the Sheriff's Certificate of Sale; as a credit
against the amount required to be paid to effect a
redemption of the Mortgaged Premises from the
foreclosure of this Mortgage;
(8) If the application of rents and profits pursuant to
Section (6)(a)(i)(A)(6) and (6)(a)(i)(A)(7) above is
sufficient to pay all amounts due under the Note or
is sufficient to pay all amounts necessary to redeem
the Mortgaged Premises from the foreclosure of this
Mortgage and the Mortgagor or another party with a
right to redeem actually redeems the Mortgaged
Premises from the foreclosure of this Mortgage and
obtains a Certificate of Redemption, to the Mortgagor
or, if applicable, to the holder of a subordinate
assignment of rents and profits.
9
10
(B) File in the Office of the County Recorder, or in the case of
registered property, in the Office of the County Registrar of
Titles, a notice of the occurrence of an Event of Default in
the terms and conditions of this Mortgage and serve the notice
of the occurrence of an Event of Default upon the occupiers of
the Mortgage Premises, and from and after the date of filing
and service through the date Mortgagee files and serves a
notice that Mortgagor has cured all Events of Default, collect
all rents and profits from the occupiers of the Mortgage
Premises, without regard to waste, adequacy of security or
solvency of the Mortgagor, and apply the rents and profits
collected in the manner provided for the application of
amounts which a receiver collects pursuant to Section 6(a)(i)A
above. Mortgagee's exercise of its rights under this paragraph
6(a)(i)(B) shall not cause Mortgagee to be deemed a mortgagee
in possession of the Mortgage Premises.
Any Rents collected after the revocation of the license herein granted may be
applied toward payment of the Debt in such priority and proportions as
Mortgagee, in its sole discretion, shall deem proper. Mortgagee is obligated to
account only for such Rents as are actually collected or received by Mortgagee.
Neither the exercise by Mortgagee of any rights under this Paragraph nor the
application of any Rents to the Debt shall cure or be deemed a waiver of any
Event of Default hereunder. The assignment of Rents hereinabove granted shall
continue in full force and effect during any period of foreclosure and/or
redemption with respect to the Mortgaged Property. Mortgagor has executed the
Assignment covering all of the right, title and interest of Mortgagor, as
landlord, in and to any Leases relating to all or portions of the Mortgaged
Property. All rights and remedies granted to Mortgagee under the Assignment
shall be in addition to and cumulative of all rights and remedies granted to
Mortgagee hereunder.
(b) Mortgagor shall duly and punctually comply with its
obligations under Section 5.1(t) of the Loan Agreement which sets forth certain
covenants of Mortgagor with regard to leasing of the Mortgaged Property.
(c) INTENTIONALLY DELETED
(d) All security deposits of tenants, whether held in cash or
any other form, shall not be commingled with any other funds of Mortgagor and,
if cash, shall be deposited by Mortgagor at such commercial or savings bank or
banks as may be reasonably satisfactory to Mortgagee. Any bond or other
instrument which Mortgagor is permitted to hold in lieu of cash security
deposits under any applicable legal requirements shall be maintained in full
force and effect in the full amount of such deposits unless replaced by cash
deposits as hereinabove described, shall be issued by an institution reasonably
satisfactory to Mortgagee, shall, if permitted pursuant to any legal
requirements, name Mortgagee as payee or mortgagee thereunder (or at Mortgagee's
option, be fully assignable to Mortgagee) and shall, in all respects, comply
with any applicable legal requirements and otherwise be reasonably satisfactory
to Mortgagee. Mortgagor shall, upon request, provide Mortgagee with evidence
reasonably satisfactory to Mortgagee of Mortgagor's compliance with the
foregoing. Following the occurrence and during the continuance of any Event of
Default, Mortgagor shall, upon Mortgagee's request, if
10
11
permitted by any applicable legal requirements, turn over to Mortgagee the
security deposits (and any interest theretofore earned thereon) with respect to
all or any portion of the Mortgaged Property, to be held by Mortgagee subject to
the terms of the Leases.
7. PROPERTY MANAGEMENT AGREEMENT; LICENSES. Mortgagor hereby represents
and warrants to Mortgagee as follows:
(a) The Property Management Agreement dated of even date (the
"PROPERTY MANAGEMENT AGREEMENT"), between Mortgagor and Glimcher Properties
Limited Partnership, as manager, pursuant to which such manager operates the
Mortgaged Property as a shopping center, is in full force and effect and there
is no default, breach or violation existing thereunder by any party thereto and
no event has occurred (other than payments due but not yet delinquent) that,
with the passage of time or the giving of notice, or both, would constitute a
default, breach or violation by any party thereunder.
(b) Neither the execution and delivery of the Loan Documents,
the Mortgagor's performance thereunder, the recordation of this Mortgage, nor
the exercise of any remedies by Mortgagee, will adversely affect Mortgagor's
rights under the Property Management Agreement.
(c) The Property Management Agreement complies with the
requirements set forth in Section 5.1(v) of the Loan Agreement.
(d) All certifications, permits, licenses and approvals,
including, without limitation, certificates of completion and occupancy permits
required for the legal use, occupancy and operation of the Mortgaged Property as
a retail shopping center, have been obtained and are in full force and effect.
8. MAINTENANCE OF MORTGAGED PROPERTY. Mortgagor shall cause the
Mortgaged Property to be maintained in a good and safe condition and repair. The
Improvements and the Equipment shall not be removed, demolished or materially
altered (except for normal replacement of the Improvements and Equipment)
without the consent of Mortgagee. Mortgagor shall promptly comply with all laws,
orders and ordinances affecting the Mortgaged Property, or the use thereof,
including, without limitation, building and zoning ordinances and codes. Subject
to Section 3(b) and 5(a) hereof, Mortgagor shall promptly repair, replace or
rebuild any part of the Mortgaged Property that is destroyed by any Casualty, or
becomes damaged, worn or dilapidated, or that is affected by any Condemnation
and shall complete and pay for any structure at any time in the process of
construction or repair on the Premises. Mortgagor shall not initiate, join in,
acquiesce in or consent to any change in any private restrictive covenant,
zoning law or other public or private restriction, limiting or defining the uses
which may be made of the Mortgaged Property or any part thereof. If under
applicable zoning provisions the use of all or any portion of the Mortgaged
Property is or shall become a nonconforming use, Mortgagor will not cause or
permit such nonconforming use to be discontinued or abandoned without the
express written consent of Mortgagee. Mortgagor shall not (i) change the use of
the Mortgaged
11
12
Property, (ii) permit or suffer to occur any waste on or to the Mortgaged
Property or to any portion thereof, or (iii) take any steps whatsoever to
convert the Mortgaged Property, or any portion thereof, to a condominium or
cooperative form of management. Mortgagor will not install or permit to be
installed on the Premises any underground storage tank without Mortgagee's prior
written consent.
9. TRANSFER OR ENCUMBRANCE OF THE MORTGAGED PROPERTY.
(a) Mortgagor acknowledges that Mortgagee, in agreeing to make
the Loan, has examined and relied on the creditworthiness and experience of
Mortgagor in owning and operating properties such as the Mortgaged Property, and
that Mortgagee will continue to rely on Mortgagor's ownership and operation of
the Mortgaged Property as a means of maintaining the value of the Mortgaged
Property as security for repayment of the Debt. Mortgagor acknowledges that
Mortgagee has a valid interest in maintaining the value of the Mortgaged
Property so as to ensure that, should Mortgagor default in the repayment of the
Debt, Mortgagee can recover all or a portion of the Debt by a sale of the
Mortgaged Property. Accordingly, except as permitted in the Loan Agreement,
Mortgagor shall not, without the prior written consent of Mortgagee, sell,
convey, alienate, mortgage, encumber, pledge or otherwise transfer the Mortgaged
Property, or any part thereof or permit the Mortgaged Property, or any part
thereof, to be sold, conveyed, alienated, mortgaged, encumbered, pledged or
otherwise transferred.
(b) A sale, conveyance, alienation, mortgage, encumbrance,
pledge or transfer of the Mortgaged Property within the meaning of this
Paragraph 9 shall be deemed to include: (i) an installment sales agreement
wherein Mortgagor agrees to sell the Mortgaged Property or any part thereof or
any interest therein for a price to be paid in installments; (ii) an agreement
by Mortgagor leasing all or a substantial part of the Mortgaged Property for
other than actual occupancy by a space tenant thereunder, or a sale, assignment
or other transfer of, or the grant of a security interest in, Mortgagor's right,
title and interest in and to any Leases or any Rents; (iii) if Mortgagor or any
general partner or managing member of Mortgagor is a corporation, the voluntary
or involuntary sale, conveyance, alienation, mortgage, encumbrance, pledge or
transfer of such corporation's stock (or the stock of any corporation directly
or indirectly controlling such corporation by operation of law or otherwise) or
the creation or issuance of new stock in one or a series of transactions; (iv)
if Mortgagor or any general partner or managing member of Mortgagor is a limited
or general partnership, joint venture or limited liability company, the change,
removal, resignation or addition of a partner, joint venturer or member or the
sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
partnership interest of any partner or the sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the interest of any joint venturer
or member; (v) if Mortgagor is a limited or general partnership, joint venture,
limited liability company, trust, nominee trust, tenancy in common or other
unincorporated form of business association or form of ownership interest, the
voluntary or involuntary sale, conveyance, alienation, mortgage, encumbrance,
pledge or transfer of an interest of any person having a direct legal or
beneficial ownership in Mortgagor, including any legal or beneficial interest in
any constituent partner or member of Mortgagor;
12
13
(vi) any instrument subjecting the Mortgaged Property to a condominium regime or
transferring ownership to a cooperative corporation; and (vii) the dissolution
or termination of Mortgagor or any general partner or managing member of
Mortgagor or the merger or consolidation of Mortgagor or any general partner or
managing member of Mortgagor with any other person.
(c) Mortgagee shall not be required to demonstrate any actual
impairment of its security or any increased risk of default hereunder in order
to declare the Debt immediately due and payable upon Mortgagor's sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property without Mortgagee's consent. This provision shall apply to
every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of
the Mortgaged Property regardless of whether voluntary or not, or whether or not
Mortgagee has consented to any previous sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not be
deemed to be a waiver of Mortgagee's right to require such consent to any future
occurrence of the same. Any sale, conveyance, alienation, mortgage, encumbrance,
pledge or transfer of the Mortgaged Property made in contravention of this
Paragraph shall be null and void and of no force and effect.
10. CHANGES IN LAWS REGARDING TAXATION. If any law is enacted or
adopted or amended after the date of this Mortgage which deducts the Debt from
the value of the Mortgaged Property for the purpose of taxation or which imposes
a tax, either directly or indirectly, on the Debt or Mortgagee's interest in the
Mortgaged Property, Mortgagor will pay such tax, with interest and penalties
thereon, if any. In the event Mortgagee is advised by counsel chosen by it that
the payment of such tax or interest and penalties by Mortgagor would be unlawful
or taxable to Mortgagee or unenforceable or provide the basis for a defense of
usury, then, in any such event, Mortgagee shall have the option, by written
notice to Mortgagor of not less than ninety (90) days, to declare the Debt
immediately due and payable.
11. NO CREDITS ON ACCOUNT OF THE DEBT. Mortgagor 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 Mortgaged Property, or
any part thereof, and no deduction shall otherwise be made or claimed from the
assessed value of the Mortgaged Property, or any part thereof, for real estate
tax purposes by reason of this Mortgage or the Debt. In the event such claim,
credit or deduction shall be required by law, Mortgagee shall have the option,
by written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable.
12. DOCUMENTARY STAMPS. 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 or this Mortgage, or impose any
intangible tax or any other tax or charge on the same, Mortgagor will pay for
the same, with interest and penalties thereon, if any.
13. CONTROLLING AGREEMENT. It is expressly stipulated and agreed to be
the intent of
13
14
Mortgagor and Mortgagee at all times to comply with applicable state law or
applicable United States federal law (to the extent that it permits Mortgagee to
contract for, charge, take, reserve or receive a greater amount of interest than
under state law) and that this Paragraph 13 (with the similar provision
contained in the Note) shall control every other covenant and agreement in this
Mortgage and the other Loan Documents. If the applicable law (state or federal)
is ever judicially interpreted so as to render usurious any amount called for
under the Note or under any of the other Loan Documents or contracted for,
charged, taken, reserved or received with respect to the Debt, or if Mortgagee's
exercise of the option to accelerate the maturity of the Note or any prepayment
by Mortgagor results in Mortgagor having paid any interest in excess of that
permitted by applicable law, then it is Mortgagor's and Mortgagee's express
intent that all excess amounts theretofore collected by Mortgagee shall be
credited on the principal balance of the Note and all other Debt and the
provisions of the Note, this Mortgage and the other Loan Documents immediately
be deemed reformed and the amounts thereafter collectible hereunder and
thereunder reduced, without the necessity of the execution of any new documents,
so as to comply with the applicable law, but so as to permit the recovery of the
fullest amount otherwise called for hereunder or thereunder. All sums paid or
agreed to be paid to Mortgagee for the use, forbearance or detention of the Debt
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full stated term of the Debt until payment
in full so that the rate or amount of interest on account of the Debt does not
exceed the maximum lawful rate from time to time in effect and applicable to the
Debt for so long as the Debt is outstanding.
14. PERFORMANCE OF OTHER AGREEMENTS. Mortgagor shall observe and
perform each and every term to be observed or performed by Mortgagor pursuant to
the terms of any agreement or recorded instrument affecting or pertaining to the
Mortgaged Property.
15. FURTHER ACTS, ETC. Mortgagor will, at the cost of Mortgagor, and
without expense to Mortgagee, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, Uniform Commercial Code financing statements or continuation
statements, transfers and assurances as Mortgagee shall, from time to time,
reasonably require, for the better assuring, conveying, assigning, transferring
and confirming unto Mortgagee the property and rights hereby granted, bargained,
sold, conveyed, assigned, transferred and mortgaged or intended now or hereafter
so to be, or which Mortgagor may be or may hereafter become bound to convey or
assign to Mortgagee, 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 facilitating the sale and transfer of the Loan
and the Loan Documents as described in Section 9.1 of the Loan Agreement.
Mortgagor, on demand, will execute and deliver, and Mortgagor hereby authorizes
Mortgagee to execute in the name of Mortgagor or without the signature of
Mortgagor to the extent Mortgagee may lawfully do so, one or more financing
statements, chattel mortgages or other instruments to evidence more effectively
the security interest of Mortgagee in the Mortgaged Property. Upon foreclosure,
the appointment of a receiver or any other relevant action, Mortgagor will, at
the cost of Mortgagor and without expense to Mortgagee, cooperate fully and
completely to effect the assignment or transfer of any license, permit,
agreement or any other right necessary or
14
15
useful to the operation of the Mortgaged Property. Mortgagor grants to Mortgagee
an irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to Mortgagee
at law and in equity, including, without limitation, such rights and remedies
available to Mortgagee pursuant to this Paragraph.
16. RECORDING OF MORTGAGE, ETC. Mortgagor forthwith upon the execution
and delivery of this Mortgage and thereafter, from time to time, will cause this
Mortgage and any security instrument creating a lien or security interest or
evidencing the lien hereof upon the Mortgaged 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 the lien or security interest hereof upon, and
the interest of Mortgagee in, the Mortgaged Property. Mortgagor will pay all
filing, registration or recording fees, and all expenses incident to the
preparation, execution and acknowledgment, of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property and any instrument of further assurance, 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 mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property or any instrument of further assurance, except where prohibited by law
so to do. Mortgagor shall hold harmless and indemnify Mortgagee, its successors
and assigns, against any liability incurred by reason of the imposition of any
tax on the making and recording of this Mortgage.
17. REPORTING REQUIREMENTS. Mortgagor agrees to give prompt notice to
Mortgagee of the insolvency or bankruptcy filing of Mortgagor or any general
partner or managing member of Mortgagor.
18. EVENTS OF DEFAULT. The Debt shall become immediately due and
payable at the option of Mortgagee upon the happening of any one or more of the
following events of default (each, an "EVENT OF DEFAULT"):
(a) any portion of the Debt is not paid when due;
(b) except as expressly permitted by the terms of the Loan
Agreement, any of the Taxes or Other Charges are not paid before delinquency and
payable;
(c) the Policies (as defined in the Loan Agreement) are not
kept in full force and effect, or certified copies of the Policies are not
delivered to Mortgagee within ten (10) days of request;
(d) except as expressly permitted in this Mortgage, Mortgagor
transfers or encumbers any portion of the Mortgaged Property or any interest
therein without Mortgagee's prior written consent;
(e) any representation or warranty made by Mortgagor herein or
in any other
15
16
Loan Document or in any certificate, report, financial statement or
other instrument, agreement or document furnished to Mortgagee shall have been
false or misleading in any material respect when made; provided, however, if
such false or misleading representation or warranty is susceptible of being
cured within thirty (30) days, the same shall be an Event of Default hereunder
only if the same is not cured within a reasonable time not to exceed thirty (30)
days after notice from Mortgagee;
(f) Mortgagor shall make an assignment for the benefit of
creditors;
(g) a receiver, liquidator or trustee shall be appointed for
Mortgagor or Mortgagor shall be adjudicated a bankrupt or insolvent, or any
petition for bankruptcy, reorganization or arrangement pursuant to federal
bankruptcy law, or any similar federal or state law, shall be filed by or
against, consented to or acquiesced in by Mortgagor, or any proceeding for the
dissolution or liquidation of Mortgagor shall be instituted; provided, however,
that if such appointment, adjudication, petition or proceeding was involuntary
and not consented to by Mortgagor, then the same shall be an Event of Default
hereunder only if the same is not discharged, stayed or dismissed within sixty
(60) days after the date of such appointment or adjudication, the date such
petition is first filed or the date such proceeding is instituted, as the case
may be;
(h) Mortgagor shall be in default under any other mortgage or
security agreement covering any part of the Mortgaged Property, whether it be
superior or junior in lien to this Mortgage;
(i) the Mortgaged Property becomes subject to any mechanic's,
materialman's or other lien except a lien for local real estate taxes and
assessments not then due and payable, (subject to Section 5.1(b) of the Loan
Agreement in the case of real estate taxes and assessments), unless a corporate
surety bond in form and with sureties satisfactory to Mortgagee, cash or other
security satisfactory to Mortgagee is posted therefor within sixty (60) days
after the filing of such lien, but in any event prior to the commencement of any
action to foreclose such lien, and such lien is removed (or bonded off) from the
Mortgaged Property within such sixty (60) days;
(j) Mortgagor fails to cure properly any violations of laws or
ordinances affecting or which may be interpreted to affect the Mortgaged
Property within thirty (30) days after Mortgagor first receives notice of any
such violations; provided, however, that if such violation is susceptible of
cure but cannot reasonably be cured within such 30-day period and provided
further that Mortgagor shall have commenced to cure such violation within such
30-day period and thereafter diligently and expeditiously proceeds to cure the
same and provided further that any governmental authority having jurisdiction
over the subject matter of such violation consents to a longer cure period, such
30-day period shall be extended for such time as is reasonably necessary for
Mortgagor in the exercise of due diligence to cure such violation, such
additional period not to exceed ninety (90) days;
16
17
(k) except as expressly permitted in this Mortgage or the Loan
Agreement, the actual or threatened material alteration, improvement, demolition
or removal of any of the Improvements without the prior written consent of
Mortgagee;
(l) without Mortgagee's prior consent, (i) the property
manager for the Mortgaged Property under the Property Management Agreement (or
any successor property management agreement) resigns or is removed, or (ii) the
ownership, management or control of such property manager is transferred to
another person or entity, or (iii) there is any material change in the Property
Management Agreement (or any successor property management agreement);
(m) a default has occurred and continues beyond any applicable
cure period under the Property Management Agreement (or any successor property
management agreement) if such default permits the property manager to terminate
or cancel the Property Management Agreement (or any successor property
management agreement);
(n) Mortgagor ceases to do business as a retail shopping
center on the Mortgaged Property or terminates such business for any reason
whatsoever (other than temporary cessation in connection with any renovations to
the Mortgaged Property);
(o) Mortgagor fails to cure a default under any other term,
covenant or provision of this Mortgage not specified in clauses (a) through (n)
above, within ten (10) days after Mortgagor first receives notice of such
default in the case of any default which can be cured by the payment of a sum of
money or within thirty (30) days after Mortgagor first receives notice of such
default in the case of any other default; provided, however, that if such
non-monetary default is susceptible of cure but cannot reasonably be cured
within such 30-day period and provided further that Mortgagor shall have
commenced to cure such default within such 30-day period and thereafter
diligently and expeditiously proceeds to cure the same, such 30-day period shall
be extended for such time as is reasonably necessary for Mortgagor in the
exercise of due diligence to cure such default, such additional period not to
exceed ninety (90) days; or
(p) Mortgagor shall be in default under any term, covenant or
provision of the Note, the Loan Agreement, the Assignment or any of the other
Loan Documents beyond any applicable cure periods contained in such documents,
whether as to Mortgagor or the Mortgaged Property, or any other such event shall
occur or condition shall exist, if the effect of such event or condition is to
accelerate the maturity of any portion of the Debt or to permit Mortgagee to
accelerate the maturity of all or any portion of the Debt.
19. LATE PAYMENT CHARGE. If any portion of the Debt is not paid on the
date on which it is due, Mortgagor shall pay to Mortgagee upon demand an amount
equal to the lesser of three percent (3%) of such unpaid portion of the Debt or
the maximum amount permitted by applicable law, in order to defray a portion of
the expenses incurred by Mortgagee in handling and processing such delinquent
payment and to compensate Mortgagee for the loss of the use of such delinquent
payment, and such amount shall be secured by this Mortgage.
17
18
20. RIGHT TO CURE DEFAULTS. Upon the occurrence of any Event of Default
or if Mortgagor fails to make any payment or to do any act as herein provided,
Mortgagee may, but without any obligation to do so and without notice to or
demand on Mortgagor and without releasing Mortgagor from any obligation
hereunder, make or do the same in such manner and to such extent as Mortgagee
may deem necessary to protect the security hereof. Mortgagee is authorized to
enter upon the Mortgaged Property for such purposes or appear in, defend or
bring any action or proceeding to protect its interest in the Mortgaged Property
or to foreclose this Mortgage or collect the Debt, and the cost and expense
thereof (including reasonable attorneys' fees and disbursements to the extent
permitted by law), with interest at the Default Rate for the period from the
date such cost or expense was incurred by Mortgagee to the date of payment to
Mortgagee, shall constitute a portion of the Debt, shall be secured by this
Mortgage and the other Loan Documents and shall be due and payable to Mortgagee
upon demand.
21. REMEDIES.
(a) Subject to Section 9.4 of the Loan Agreement and the
requirements of applicable law, upon the occurrence of any Event of Default,
Mortgagee may 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 or any part thereof, including, without limitation, the following
actions, each of which may be pursued concurrently or otherwise, at such time
and in such order as Mortgagee may determine, in its sole discretion, without
impairing or otherwise affecting the other rights and remedies of Mortgagee:
(i) declare the entire Debt to be immediately due and
payable;
(ii) INTENTIONALLY DELETED;
(iii) INTENTIONALLY DELETED;
(iv) INTENTIONALLY DELETED;
(v) institute an action, suit or proceeding in equity for the
specific performance of any covenant, condition or agreement contained
herein or in any of the other Loan Documents;
(vi) INTENTIONALLY DELETED;
(vii) INTENTIONALLY DELETED;
(viii) enforce Mortgagee's interest in the Leases and Rents
and enter into or upon the Premises, either personally or by its
agents, nominees or attorneys and dispossess Mortgagor and its agents
and servants therefrom, and thereupon Mortgagee may (A) use, operate,
manage, control, insure, maintain, repair, restore and otherwise
18
19
deal with all and every part of the Mortgaged Property and conduct the
business thereat, (B) complete any construction on the Mortgaged
Property in such manner and form as Mortgagee deems advisable, (C) make
alterations, additions, renewals, replacements and improvements to or
on the Mortgaged Property, (D) exercise all rights and powers of
Mortgagor with respect to the Mortgaged Property, whether in the name
of Mortgagor 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, and (E) apply the
receipts from the Mortgaged Property to the payment of Debt, after
deducting therefrom all expenses (including reasonable attorneys' fees
and disbursements, any brokers' fees, any Gains Tax (as hereinafter
defined) and any transfer taxes) incurred in connection with the
aforesaid operations and all amounts necessary to pay the Taxes,
insurance and Other Charges in connection with the Mortgaged Property,
as well as just and reasonable compensation for the services of
Mortgagee, its counsel, brokers, agents and employees;
(ix) require Mortgagor to pay monthly in advance to Mortgagee,
or any receiver appointed to collect the Rents, the fair and reasonable
rental value for the use and occupation of any portion of the Mortgaged
Property occupied by Mortgagor and require Mortgagor to vacate and
surrender possession to Mortgagee of the Mortgaged Property or to such
receiver and, in default thereof, evict Mortgagor by summary
proceedings or otherwise; or
(x) pursue such other rights and remedies as may be available
at law or in equity or under the Uniform Commercial Code, including,
without limitation, the right to receive and/or establish a lock box
for all Rents and proceeds from the Intangibles and any other
receivables or rights to payments of Mortgagor relating to the
Mortgaged Property.
(xi) foreclose the lien of this Mortgage by advertisement
pursuant to the procedures set forth in Minnesota Statutes Chapters 580
and 582. Mortgagor hereby grants Mortgagee the statutory power of sale,
as described in Minnesota Statutes Section 507.15, subd. 5 to foreclose
the lien of this mortgage by advertisement and to the extent allowed by
law, commence a District Court action to obtain a judgment for any
deficiency.
(xii) foreclose the lien of this Mortgage by action pursuant
to Minnesota Statutes, Chapters 581 and 582 and obtain a judgment for
any deficiency to the full extent permitted under Minnesota Statutes,
Section 582.30.
(xiii) enforce the assignment of rents and profits set forth
in Section 6 of Mortgage.
MORTGAGOR HEREBY: EXPRESSLY CONSENTS TO THE FORECLOSURE AND SALE OF THE
MORTGAGED PREMISES BY ACTION PURSUANT TO MINNESOTA
19
20
STATUTES CHAPTER 581 OR, AT THE OPTION OF MORTGAGEE, BY ADVERTISEMENT PURSUANT
TO MINNESOTA STATUTES CHAPTER 580, WHICH PROVIDES FOR SALE AFTER SERVICE OF
NOTICE THEREOF UPON THE OCCUPANT OF THE MORTGAGED PREMISES AND PUBLICATION OF
SAID NOTICE FOR SIX WEEKS IN THE COUNTY IN MINNESOTA WHERE THE MORTGAGED
PREMISES IS SITUATED; ACKNOWLEDGES THAT SERVICE NEED NOT BE MADE UPON MORTGAGOR
PERSONALLY (UNLESS MORTGAGOR IS AN OCCUPANT) AND THAT NO HEARING OF ANY TYPE IS
REQUIRED IN CONNECTION WITH THE SALE; AND EXCEPT AS MAY BE PROVIDED IN SAID
STATUTES, EXPRESSLY WAIVES ANY AND ALL RIGHT TO PRIOR NOTICE OF SALE OF THE
MORTGAGED PREMISES AND ANY AND ALL RIGHTS TO A PRIOR HEARING OF ANY TYPE IN
CONNECTION WITH THE SALE OF THE MORTGAGED PREMISES.
(b) The proceeds of any sale made under or by virtue of this
Paragraph 21, together with any other sums which then may be held by Mortgagee
under this Mortgage, whether under the provisions of this Paragraph 21 or
otherwise, shall be applied by Mortgagee to the payment of the Debt in such
priority and proportion as Mortgagee in its sole discretion shall deem proper.
(c) Mortgagee may adjourn from time to time any sale by it to
be made under or by virtue of this Mortgage by announcement at the time and
place appointed for such sale or for such adjourned sale or sales; and, except
as otherwise provided by any applicable provision of law, Mortgagee, without
further notice or publication, may make such sale at the time and place to which
the same shall be so adjourned.
(d) Any sale made by Mortgagee under or by virtue of this
Mortgage may be subject to such existing tenancies as Mortgagee, in its sole
discretion, may elect.
(e) Upon the completion of any sale or sales pursuant hereto,
Mortgagee, or an officer of any court empowered to do so, shall execute and
deliver to the accepted purchaser or purchasers a good and sufficient
instrument, or good and sufficient instruments, conveying, assigning and
transferring all estate, right, title and interest in and to the property and
rights sold. Mortgagee is hereby irrevocably appointed the true and lawful
attorney of Mortgagor, in its name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the Mortgaged Property and rights so
sold and for that purpose Mortgagee may execute all necessary instruments of
conveyance, assignment and transfer, and may substitute one or more persons with
like power, Mortgagor hereby ratifying and confirming all that its said attorney
or such substitute or substitutes shall lawfully do by virtue hereof. Any sale
or sales made under or by virtue of this Paragraph 21, whether made under the
power of sale granted under this Mortgage or under or by virtue of judicial
proceedings or of a judgment or decree of foreclosure and sale, shall operate to
divest all the estate, right, title, interest, claim and demand whatsoever,
whether at law or in equity, of Mortgagor in and to the properties and rights so
sold, and shall be a perpetual bar both at law and in equity against Mortgagor
and against any and all persons
20
21
claiming or who may claim the same, or any part thereof, from, through or under
Mortgagor.
(f) Upon any sale made under or by virtue of this Paragraph
21, whether made under a power of sale or under or by virtue of judicial
proceedings or of a judgment or decree of foreclosure and sale, Mortgagee may
bid for and acquire the Mortgaged Property or any part thereof and in lieu of
paying cash therefor may make settlement for the purchase price by crediting
upon the Debt the net sales price after deducting therefrom the expenses of the
sale and costs of the action and any other sums which Mortgagee is authorized to
deduct under this Mortgage.
(g) 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 in any manner or to any extent the lien of
this Mortgage upon the Mortgaged Property or any part thereof, or any liens,
rights, powers or remedies of Mortgagee hereunder, but such liens, rights,
powers and remedies of Mortgagee shall continue unimpaired as before.
(h) Mortgagee may terminate or rescind any proceeding or other
action brought in connection with its exercise of the remedies provided in this
Paragraph 21 at any time before the conclusion thereof, as determined in
Mortgagee's sole discretion and without prejudice to Mortgagee.
(i) Mortgagee may resort to any remedies and the security
given by the Note, this Mortgage or any of the other Loan Documents in whole or
in part, and in such portions and in such order as determined in Mortgagee's
sole discretion. No such action shall in any way be considered a waiver of any
rights, benefits or remedies evidenced or provided by the Note, this Mortgage or
any of the other Loan Documents. The failure of Mortgagee to exercise any right,
remedy or option provided in the Note, this Mortgage or any of the other Loan
Documents shall not be deemed a waiver of such right, remedy or option or of any
covenant or obligation secured by the Note, this Mortgage or any of the other
Loan Documents unless otherwise explicitly agreed by Mortgagee in writing. No
acceptance by Mortgagee of any payment after the occurrence of an Event of
Default and no payment by Mortgagee of any obligation for which Mortgagor is
liable hereunder shall be deemed to waive or cure any Event of Default with
respect to Mortgagor, or Mortgagor's liability to pay such obligation. No sale
of all or any portion of the Mortgaged Property, no forbearance on the part of
Mortgagee, and no extension of time for the payment of the whole or any portion
of the Debt or any other indulgence given by Mortgagee to Mortgagor, shall
operate to release or in any manner affect the interest of Mortgagee in the
remaining Mortgaged Property or the liability of Mortgagor to pay the Debt. No
waiver by Mortgagee shall be effective unless it is in writing and then only to
the extent specifically stated. All costs and expenses of Mortgagee in
exercising its rights and remedies under this Paragraph 21 (including reasonable
attorneys' fees and disbursements to the extent permitted by law), shall be paid
by Mortgagor immediately upon notice from Mortgagee, with interest at the
Default Rate for the period from the date paid or incurred by Mortgagee until
repaid by Mortgagor, and such costs and expenses shall constitute a portion of
the Debt and shall be secured by this Mortgage.
21
22
(j) The interests and rights of Mortgagee under the Note, this
Mortgage or any of the other Loan Documents shall not be impaired by any
indulgence, including (i) any renewal, extension or modification which Mortgagee
may grant with respect to any of the Debt, (ii) any surrender, compromise,
release, renewal, extension, exchange or substitution which Mortgagee may grant
with respect to the Mortgaged Property or any portion thereof; or (iii) any
release or indulgence granted to any maker, endorser, guarantor or surety of any
of the Debt.
22. RIGHT OF ENTRY. In addition to any other rights or remedies granted
under this Mortgage, Mortgagee and its agents shall have the right to enter and
inspect the Mortgaged Property at any reasonable time upon reasonable notice
under the circumstances until the Debt is paid in full. The cost of such
inspections shall be borne by Mortgagor should Mortgagee determine that an Event
of Default exists, including the cost of all follow up or additional
investigations or inquiries deemed reasonably necessary by Mortgagee. The cost
of such inspections, if not paid for by Mortgagor following demand, may be added
to the principal balance of the sums due under the Note and this Mortgage and
shall bear interest thereafter until paid at the Default Rate.
22
23
23. SECURITY AGREEMENT.
(a) This Mortgage is both a real property mortgage and a
"security agreement" within the meaning of the Uniform Commercial Code. The
Mortgaged Property includes both real and personal property and all other rights
and interests, whether tangible or intangible in nature, of Mortgagor in the
Mortgaged Property. Mortgagor by executing and delivering this Mortgage has
granted and hereby grants to Mortgagee, as security for the Debt, a security
interest in the Mortgaged Property to the full extent that the Mortgaged
Property may be subject to the Uniform Commercial Code (said portion of the
Mortgaged Property so subject to the Uniform Commercial Code being referred to
in this Paragraph 23 as the "COLLATERAL"). Mortgagor hereby agrees with
Mortgagee to execute and deliver to Mortgagee, in form and substance
satisfactory to Mortgagee, such financing statements and such further assurances
as Mortgagee may from time to time reasonably consider necessary to create,
perfect and preserve Mortgagee's security interest herein granted. This Mortgage
shall also constitute a "fixture filing" for the purposes of the Uniform
Commercial Code. As such, this Mortgage covers all items of the Collateral that
are or are to become fixtures. Information concerning the security interest
herein granted may be obtained from the parties at the addresses of the parties
set forth in the first paragraph of this Mortgage. If an Event of Default shall
occur, Mortgagee, 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 Mortgagee may deem necessary for the care, protection and
preservation of the Collateral. Upon request or demand of Mortgagee, Mortgagor
shall at its expense assemble the Collateral and make it available to Mortgagee
at a convenient place acceptable to Mortgagee. Mortgagor shall pay to Mortgagee
on demand any and all expenses, including attorneys' fees and disbursements,
incurred or paid by Mortgagee in protecting its interest in the Collateral and
in enforcing its rights hereunder with respect to the Collateral. The proceeds
of any disposition of the Collateral, or any part thereof, may be applied by
Mortgagee to the payment of the Debt in such priority and proportions as
Mortgagee in its sole discretion shall deem proper. In the event of any change
in name, identity or structure of any Mortgagor, such Mortgagor shall notify
Mortgagee thereof and promptly after request shall execute, file and record such
Uniform Commercial Code forms as are necessary to maintain the priority of
Mortgagee's lien upon and security interest in the Collateral, and shall pay all
expenses and fees in connection with the filing and recording thereof. If
Mortgagee shall require the filing or recording of additional Uniform Commercial
Code forms or continuation statements, Mortgagor shall, promptly after request,
execute, file and record such Uniform Commercial Code forms or continuation
statements as Mortgagee shall deem necessary, and shall pay all expenses and
fees in connection with the filing and recording thereof. Mortgagor hereby
irrevocably appoints Mortgagee as its attorney-in-fact, coupled with an
interest, to file with the appropriate public office on its behalf any financing
or other statements signed only by Mortgagee, as secured party, in connection
with the Collateral covered by this Mortgage.
23
24
(b) Upon an Event of Default, Mortgagee shall have the right,
at Mortgagee's opinion:
(i) To proceed as to both the real and personal
property covered by this Mortgage in accordance with Mortgagee's rights
and remedies in respect of said real property, in which event (A) the
provisions of the Uniform Commercial Code otherwise applicable to sale
of the Collateral shall not apply, and (B) the sale of the Collateral
in conjunction with and as one parcel with said real property (or any
portion thereof) shall be deemed to be a commercially reasonable manner
of sale; or
(ii) To proceed as to the Collateral separately from
the Premises and the Improvements, in which event the requirement of
reasonable notice shall be met by mailing notice of the sale, postage
prepaid, to Mortgagor or any other person entitled thereto at least ten
(10) days before the time of the sale or other disposition of any of
the Collateral.
23A. FIXTURE FILING. The filing of this Mortgage shall constitute a
filing of a financing statement in the office wherein it is filed and a carbon,
photographic or other reproduction of this document may also be filed as a
financing statement.
Name and Address: Glimcher Northtown Venture, LLC
of Debtor: c/o Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Name and Address of Nomura Asset Capital Corporation
Secured Party: Two World Financial Center, Building B
Xxx Xxxx, XX 00000
Description of the types
(or items of property)
covered by this
financing statement: All building materials, equipment, fixtures,
furniture and furnishings, (including, but
not limited to all engines, boilers,
elevators, machinery, heating apparatus,
electrical equipment, air conditioning
equipment, water and gas fixtures, plumbing,
communication devices, stoves,
refrigerators, carpeting, shades, awnings,
screens, storm sashes, and blinds) now or
hereafter located or intended to be located
on the Mortgaged Property of whatsoever type
or nature whether now owned or hereafter
acquired by Mortgagor, including all
replacements, repairs and substitutions
thereto and proceeds thereof.
24
25
Description of real
estate to which all or
part of the collateral
is attached or upon
which it is located: See Exhibit "A" attached hereto
24. ACTIONS AND PROCEEDINGS. After and Event of Default, Mortgagee has
the right to appear in and defend any action or proceeding brought with respect
to the Mortgaged Property and to bring any action or proceeding, in the name and
on behalf of Mortgagor, which Mortgagee, in its sole discretion, decides should
be brought to protect their interest in the Mortgaged Property. Mortgagee shall,
at its option, be subrogated to the lien of any mortgage or other security
instrument discharged in whole or in part by the Debt, and any such subrogation
rights shall constitute additional security for the payment of the Debt.
25. WAIVER OF SETOFF AND COUNTERCLAIM. All amounts due under this
Mortgage, the Note and the other Loan Documents shall be payable without setoff,
counterclaim (except for compulsory counterclaims) or any deduction whatsoever.
Mortgagor hereby waives the right to assert a setoff, counterclaim (except for
compulsory counterclaims) or deduction in any action or proceeding in which
Mortgagee is a participant, or arising out of or in any way connected with this
Mortgage, the Note, any of the other Loan Documents, or the Debt.
26. RECOVERY OF SUMS REQUIRED TO BE PAID. Mortgagee 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 Mortgagee thereafter to bring an action of foreclosure, or any other action,
for a default or defaults by Mortgagor existing at the time such earlier action
was commenced.
25
26
27. MARSHALLING AND OTHER MATTERS.
(a) Mortgagor hereby waives, to the extent permitted by law,
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 Mortgaged Property or any part thereof or any
interest therein. Further, Mortgagor hereby expressly waives any and all rights
of redemption from sale under any order or decree of foreclosure of this
Mortgage on behalf of Mortgagor and on behalf of each and every person acquiring
any interest in or title to the Mortgaged Property subsequent to the date of
this Mortgage and on behalf of all persons to the extent permitted by applicable
law. To the extent permitted by law, Mortgagor shall not have or assert any
right under any statute or rule of law pertaining to the exemption of homestead
or other exemption under any federal, state or local law now or hereafter in
effect, the administration of estates of decedents or other matters whatever to
defeat, reduce or affect the right of Mortgagee under the terms of this Mortgage
to a sale of the Mortgaged Property, for the collection of the Debt without any
prior or different resort for collection, or the right of Mortgagee under the
terms of this Mortgage to the payment of the Debt out of the proceeds of sale of
the Mortgaged Property in preference to every other claimant whatever. Further,
Mortgagor hereby knowingly, intentionally and voluntarily waives, releases,
relinquishes and forever forgoes all present and future statutes of limitations
as a defense to any action to enforce the provisions of this Mortgage or to
collect any of the Debt secured hereby to the fullest extent permitted by law.
(b) Mortgagor acknowledges and agrees that the lien of this
Mortgage shall be absolute and unconditional and shall not in any manner be
affected or impaired by any acts or omissions whatsoever of Mortgagee and,
without limiting the generality of the foregoing, the lien hereof shall not be
impaired by any acceptance by Mortgagee of any other security for any portion of
the Debt, or by any failure, neglect or omission on the part of Mortgagee to
realize upon or protect any portion of the Debt or any collateral security
therefor. The lien of this Mortgage shall not in any manner be impaired or
affected by any release (except as to the property released), sale, pledge,
surrender, compromise, settlement, renewal, extension, indulgence, alteration,
changing, modification or disposition of any portion of the Debt or of any of
the collateral security therefor, and Mortgagee may foreclose, or exercise any
other remedy available to Mortgagee, without first exercising or enforcing any
of its other remedies under this Mortgage and any exercise of the rights and
remedies of Mortgagee hereunder shall not in any manner impair the Debt or any
of Mortgagee's rights and remedies hereunder.
28. HAZARDOUS SUBSTANCES. Mortgagor hereby represents and warrants to
Mortgagee that except as set forth in the environmental report delivered to
Mortgagee on the Closing Date in connection with the closing of the Loan: (a)
except where the failure to comply is not reasonably likely to cause a Material
Adverse Change the Mortgaged Property is in full compliance with all local,
state, federal and other governmental authority statutes, ordinances, codes,
orders, decrees, laws, rules and regulations pertaining to or imposing liability
or standards of conduct concerning environmental regulation, contamination or
clean-up, including,
26
27
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Resource Conservation and Recovery Act of
1976, as amended, the Emergency Planning and Community Right-to-Know Act of
1986, as amended, the Hazardous Substances Transportation Act, as amended, the
Solid Waste Disposal Act, as amended, the Clean Water Act, as amended, the Clean
Air Act, as amended, the Toxic Substance Control Act, as amended, the Safe
Drinking Water Act, as amended, the Occupational Safety and Health Act, as
amended, any state super-lien and environmental clean-up statutes and all
regulations, orders and guidelines adopted in respect of the foregoing laws,
whether presently in force or coming into being and/or effectiveness hereafter
(collectively, "ENVIRONMENTAL LAWS"); (b) the Mortgaged Property is not subject
to any private or governmental lien or judicial or administrative notice or
action or inquiry, investigation or claim relating to hazardous and/or toxic,
dangerous and/or regulated, substances, wastes, materials, raw materials which
include hazardous constituents, pollutants or contaminants, including, without
limitation, asbestos or any substance or material containing asbestos,
petroleum, tremolite, anthlophylie, actinolite or polychlorinated biphenyls and
any other substances or materials which are included under or regulated by
Environmental Laws or which are considered by scientific opinion to be otherwise
dangerous in terms of the health, safety or welfare of humans (collectively,
"HAZARDOUS SUBSTANCES"); (c) to the best knowledge of Mortgagor no Hazardous
Substances are or have been (including, the period prior to Mortgagor's
acquisition of the Mortgaged Property) released, discharged, generated, treated,
disposed of or stored on, incorporated in, or removed or transported from the
Mortgaged Property other than in compliance with all Environmental Laws; (d) to
the best knowledge of Mortgagor no Hazardous Substances are present in, on or
under any nearby real property which could migrate to or otherwise affect the
Mortgaged Property; and (e) to the best knowledge of Mortgagor no underground
storage tanks exist on the Mortgaged Property. So long as Mortgagor owns or is
in possession of the Mortgaged Property, Mortgagor: (i) shall keep or cause the
Mortgaged Property to be kept free from Hazardous Substances; (ii) shall keep or
cause the Mortgaged Property to be kept in compliance with all Environmental
Laws; (iii) shall promptly notify Mortgagee in writing if Mortgagor shall become
aware of any Hazardous Substances on or near the Mortgaged Property and/or if
Mortgagor shall become aware that the Mortgaged Property is in direct or
indirect violation of any Environmental Laws and/or if Mortgagor shall become
aware of any condition on or near the Mortgaged Property which could pose a
threat to the health, safety or welfare of humans; and (iv) shall remove such
Hazardous Substances and/or cure such violations and/or remove such threats, as
applicable, as required by law (or as shall be required by Mortgagee in the case
of removal which is not required by law, but in response to the opinion of a
licensed hydrogeologist, licensed environmental engineer or other qualified
consultant engaged by Mortgagee), promptly after Mortgagor becomes aware of the
same, at Mortgagor's sole expense. The obligations and liabilities of Mortgagor
under this Paragraph 28 shall survive any termination, satisfaction or
assignment of this Mortgage and the exercise by Mortgagee of any of its rights
or remedies hereunder, including, without limitation, the acquisition of the
Mortgaged Property by foreclosure or a conveyance in lieu of foreclosure.
29. ENVIRONMENTAL MONITORING; REMEDIAL WORK. Mortgagor shall give
prompt written notice to Mortgagee of: (a) any proceeding or inquiry by any
party with respect to the
27
28
presence of any Hazardous Substance on, under, from or about the Mortgaged
Property; (b) all claims made or threatened by any third party against Mortgagor
or the Mortgaged Property relating to any loss or injury resulting from any
Hazardous Substance; and (c) Mortgagor's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Mortgaged
Property that could cause the Mortgaged Property to be subject to any
investigation or clean-up pursuant to any Environmental Law. Mortgagor shall
permit Mortgagee to join and participate in, as a party if it so elects, any
legal proceedings or actions initiated with respect to the Mortgaged Property in
connection with any Environmental Law or Hazardous Substance, and Mortgagor
shall pay all attorneys' fees and disbursements incurred by Mortgagee in
connection therewith. Upon Mortgagee's request, at any time and from time to
time while this Mortgage is in effect, Mortgagor shall provide, at Mortgagor's
sole expense, an inspection or audit of the Mortgaged Property prepared by a
licensed hydrogeologist, a licensed environmental engineer or other qualified
consultant approved by Mortgagee indicating the presence or absence of Hazardous
Substances and/or the violation or threatened violation of any Environmental
Laws at, on, in, under or near the Mortgaged Property; PROVIDED, however, that
Mortgagee may not require Mortgagor to provide such inspection or audit unless:
(i) Mortgagee is required by law to obtain such inspection or audit, (ii) such
inspection or audit is requested by Mortgagee in conjunction with a foreclosure
or other enforcement proceeding under the Loan Documents, or (iii) Mortgagee has
determined (in the exercise of its good faith judgment) that reasonable cause
exists for the performance of an environmental inspection or audit of the
Mortgaged Property. If Mortgagor fails to provide any such inspection or audit
within sixty (60) days after such request, Mortgagee may order same, and
Mortgagor hereby grants to Mortgagee and its employees and agents access to the
Mortgaged Property and a license to undertake such inspection or audit. The cost
of such inspection or audit shall be added to the Debt and shall bear interest
thereafter until paid at the Default Rate. In the event that any environmental
site assessment report prepared in connection with such inspection or audit
recommends that an operations and maintenance plan be implemented for any
Hazardous Substance, Mortgagor shall cause such operations and maintenance plan
to be prepared and implemented at Mortgagor's expense upon request of Mortgagee.
In the event that any investigation, testing, assessment, audit, site
monitoring, containment, clean-up, removal, restoration or other work of any
kind is reasonably necessary or desirable under an applicable Environmental Law
or otherwise required under this Mortgage in connection with any Hazardous
Substance (the "REMEDIAL WORK"), Mortgagor shall commence and thereafter
diligently prosecute to completion all such Remedial Work within thirty (30)
days after written demand by Mortgagee for performance thereof (or such shorter
period of time as may be required under applicable law). All Remedial Work shall
be performed by contractors approved in advance by Mortgagee and under the
supervision of a consulting engineer approved by Mortgagee. All costs and
expenses of such Remedial Work shall be paid by Mortgagor, including, without
limitation, Mortgagee's reasonable attorneys' fees and disbursements incurred in
connection with monitoring or review of such Remedial Work. In the event
Mortgagor shall fail to timely commence, or cause to be commenced, or fail to
diligently prosecute to completion, such Remedial Work, Mortgagee may, but shall
not be required to, cause such Remedial Work to be performed, and all costs and
expenses thereof, or incurred in connection therewith, shall be added to the
Debt and shall bear interest thereafter until paid at the Default Rate.
28
29
30. HANDICAPPED ACCESS.
(a) Mortgagor agrees that the Mortgaged Property shall at all
times strictly comply to the extent applicable with the requirements of the
Americans with Disabilities Act of 1990, the Fair Housing Amendments Act of
1988, all state and local laws and ordinances related to handicapped access and
all rules, regulations and orders issued pursuant thereto, including, without
limitation, the Americans with Disabilities Act Accessibility Guidelines for
Buildings and Facilities (collectively, "ACCESS LAWS").
(b) Notwithstanding any provisions set forth herein or in any
other document regarding Mortgagee's approval of alterations of the Mortgaged
Property, Mortgagor shall not alter the Mortgaged Property in any manner which
would increase Mortgagor's responsibilities for compliance with the applicable
Access Laws without the prior written approval of Mortgagee. The foregoing shall
apply to tenant improvements constructed by Mortgagor or by any of its tenants.
Mortgagee may condition any such approval upon receipt of a certificate of
Access Law compliance from an architect, engineer or other person acceptable to
Mortgagee.
(c) Mortgagor agrees to give prompt written notice to
Mortgagee of the receipt by Mortgagor of any complaints related to violation of
any Access Laws and of the commencement of any proceedings or investigations
which relate to compliance with applicable Access Laws.
31. INDEMNIFICATION. In addition to any other indemnifications provided
herein or in the other Loan Documents, Mortgagor shall protect, defend,
indemnify and hold harmless Mortgagee from and against all liabilities,
obligations, claims, demands, damages, penalties, causes of action, losses,
fines, costs and expenses (including, without limitation, reasonable attorneys'
fees and disbursements), imposed upon or incurred by or asserted against
Mortgagee (other than as a direct result of Mortgagee's fraud or wilful
misconduct)by reason of: (a) ownership of this Mortgage, the Mortgaged Property
or any interest therein or receipt of any Rents; (b) any accident, injury to or
death of persons or loss of or damage to property occurring in, on or about the
Mortgaged Property or any part thereof or on the adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways; (c) any use,
nonuse or condition in, on or about the Mortgaged Property or any part thereof
or on adjoining sidewalks, curbs, adjacent property or adjacent parking areas,
streets or ways; (d) any failure on the part of Mortgagor to perform or comply
with any of the terms of this Mortgage; (e) performance of any labor or services
or the furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof; (f) the presence, disposal, escape, seepage,
leakage, spillage, discharge, emission, release or threatened release of any
Hazardous Substance at, on, in, under, from or affecting the Mortgaged
29
30
Property, any personal injury (including wrongful death) or property damage
(real or personal) arising out of or related to such Hazardous Substance, and
any lawsuit brought or threatened, settlement reached, or government order
relating to such Hazardous Substance; (g) any violation of Environmental Laws
which is based upon or in any way related to any Hazardous Substance at, on, in,
under, from or affecting the Mortgaged Property, including, without limitation,
the costs and expenses of any Remedial Work, attorney and consultant fees and
disbursements, investigation and laboratory fees, court costs and litigation
expenses; (h) any failure of the Mortgaged Property to comply with any Access
Laws; (i) any representation or warranty made in the Note, this Mortgage or any
of the other Loan Documents being false or misleading in any material respect as
of the date such representation or warranty was made; (j) any claim by brokers,
finders or similar persons claiming to be entitled to a commission in connection
with any Lease or other transaction involving the Mortgaged Property or any part
thereof or any liability asserted against Mortgagee with respect thereto; and
(k) the claims of any tenant of any portion of the Mortgaged Property or any
person acting through or under any tenant or otherwise arising under or as a
consequence of any Lease. The indemnifications set forth in the preceding
clauses (f) and (g) shall include, without limitation, the costs of removal of
the Hazardous Substances before or after foreclosure or other taking of title to
the Mortgaged Property by Mortgagee, additional costs required to take necessary
precautions to protect against the release of Hazardous Substances into the air,
any body of water or any other public domain or onto or under any other
property, costs incurred to comply with all applicable Environmental Laws, and
any diminution in the value of the security afforded by the Mortgaged Property
or any future reduction in the sale price of the Mortgaged Property by reason of
any matter set forth above in said clauses (f) or (g) of this Paragraph 31 to
the extent that such diminution in value or such future reduction in sale price
results in Mortgagee receiving less than the full amount of all principal,
interest and other sums payable by Mortgagor under the Loan, but shall
specifically not include any such costs relating to Hazardous Substances which
are initially placed on, in or under the Mortgaged Property after foreclosure or
other taking of title to the Mortgaged Property by Mortgagee. Any amounts
payable to Mortgagee by reason of the application of this Paragraph shall be
secured by this Mortgage and shall become immediately due and payable and shall
bear interest at the Default Rate from the date loss or damage is sustained by
Mortgagee until paid. The obligations and liabilities of Mortgagor under this
Paragraph 31 shall survive any termination, satisfaction or assignment of this
Mortgage and the exercise by Mortgagee of any of its rights or remedies
hereunder, including, but not limited to, the acquisition of the Mortgaged
Property by foreclosure or a conveyance in lieu of foreclosure but only to the
extent based on facts existing at the time Grantor owned the Mortgaged Property.
32. NOTICES. Any notice, demand, statement, request or consent
made hereunder shall be sent and shall be effective in the manner set forth in
the Loan Agreement.
33. AUTHORITY. Mortgagor (and the undersigned representative of
Mortgagor, if any) represent and warrant that it (or they, as the case may be)
has full power, authority and right to execute, deliver and perform its
obligations pursuant to this Mortgage and to grant, bargain, sell, convey,
assign, transfer and mortgage the Mortgaged Property pursuant to the terms
hereof and to keep and observe all of the terms of this Mortgage on Mortgagor's
part to be performed; and Mortgagor represents and warrants that Mortgagor is
not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal
Revenue Code of 1986, as amended, and the related Treasury Department
regulations, including temporary regulations.
30
31
34. WAIVER OF NOTICE. Mortgagor shall not be entitled to any notices of
any nature whatsoever from Mortgagee except with respect to matters for which
the Loan Documents specifically and expressly provide for the giving of notice
by Mortgagee to Mortgagor and except with respect to matters for which Mortgagee
is required by applicable law to give notice. To the extent permitted by
applicable law, Mortgagor hereby expressly waives the right to receive any
notice from Mortgagee with respect to any matter for which this Mortgage does
not specifically and expressly provide for the giving of notice by Mortgagee to
Mortgagor.
35. REMEDIES OF MORTGAGOR. In the event that a claim or adjudication is
made that Mortgagee has acted unreasonably or unreasonably delayed acting in any
case where by law or under the Note, this Mortgage or the other Loan Documents
it has an obligation to act reasonably or promptly, Mortgagee shall not be
liable for any monetary damages, and Mortgagor's remedies shall be limited to
injunctive relief or declaratory judgment.
36. SOLE DISCRETION OF MORTGAGEE. Wherever pursuant to this Mortgage,
Mortgagee exercises any right given to it to consent or not consent or approve
or disapprove, or any arrangement or term is to be satisfactory to Mortgagee,
the decision of Mortgagee to consent or not consent, to approve or disapprove or
to decide that arrangements or terms are satisfactory or not satisfactory shall
be in the sole discretion of Mortgagee and shall be final and conclusive, except
as may be otherwise expressly and specifically provided herein.
37. NON-WAIVER. The failure of Mortgagee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations
hereunder by reason of: (a) the failure of Mortgagee to comply with any request
of Mortgagor or to take any action to foreclose this Mortgage or otherwise
enforce any of the provisions hereof or of the Note, the Loan Agreement or any
of the other Loan Documents; (b) the release, regardless of consideration, of
the whole or any part of the Mortgaged Property, or of any person liable for the
Debt or any portion thereof; or (c) any agreement or stipulation by Mortgagee
extending the time of payment or otherwise modifying or supplementing the terms
of the Note, the Loan Agreement, this Mortgage or any of the other Loan
Documents. Mortgagee may resort for the payment of the Debt to any other
security held by Mortgagee in such order and manner as Mortgagee, in its sole
discretion, may elect. Mortgagee may take action to recover the Debt, or any
portion thereof, or to enforce any covenant hereof without prejudice to the
right of Mortgagee thereafter to foreclosure this Mortgage. The rights and
remedies of Mortgagee under this Mortgage shall be separate, distinct and
cumulative and none shall be given effect to the exclusion of the others. No act
of Mortgagee shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision. Mortgagee 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.
38. 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 Mortgagor or Mortgagee, but only
by an agreement in writing signed
31
32
by the party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
39. LIABILITY. If more than one person signs this Mortgage as
Mortgagee, the obligations and liabilities of each such person hereunder shall
be joint and several. Subject to the provisions hereof requiring Mortgagee's
consent to any transfer of the Mortgaged Property, this Mortgage shall be
binding upon and inure to the benefit of Mortgagor and Mortgagee and their
respective successors and assigns.
40. INAPPLICABLE PROVISIONS. If any term, covenant or condition of the
Note or this Mortgage is held to be invalid, illegal or unenforceable in any
respect, the Note and this Mortgage shall be construed without such provision.
41. HEADINGS, ETC. The headings and captions of various paragraphs 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.
42. DUPLICATE ORIGINALS. This Mortgage may be executed in any number of
duplicate originals and each such duplicate original shall be deemed to be an
original.
43. 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 (a) the word
"MORTGAGOR" shall mean "each Mortgagor and any subsequent owner or owners of the
Mortgaged Property or any part thereof or any interest therein," (b) the word
"MORTGAGEE" shall mean "Mortgagee and any subsequent holder of this Mortgage,"
(c) the word "NOTE" shall mean "the Note and any other evidence of indebtedness
secured by this Mortgage," (d) the word "PERSON" shall include an individual,
corporation, partnership, trust, limited liability company, unincorporated
association, government, governmental authority and any other entity, (e) the
words "MORTGAGED PROPERTY" shall include any portion of the Mortgaged Property
and any interest therein, and (f) the words "ATTORNEYS' FEES" shall include any
and all attorneys' fees, paralegal and law clerk fees, including, without
limitation, fees at the pre-trial, trial and appellate levels, incurred or paid
by Mortgagee in protecting its interest in the Mortgaged Property and the
Collateral and enforcing its rights hereunder. 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.
44. ASSIGNMENTS. Mortgagee shall have the right to assign or transfer
its rights under this Mortgage without limitation. Any assignee or transferee
shall be entitled to all the benefits afforded Mortgagee under this Mortgage.
45. WAIVER OF JURY TRIAL. MORTGAGOR HEREBY AGREES NOT TO ELECT A TRIAL
BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES
32
33
ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THE NOTE, THIS MORTGAGE OR THE OTHER LOAN
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY MORTGAGOR, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE
ACCRUE. MORTGAGEE IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MORTGAGOR.
46. MISCELLANEOUS.
(a) Any consent or approval by Mortgagee in any single
instance shall not be deemed or construed to be Mortgagee's consent or approval
in any like matter arising at a subsequent date, and the failure of Mortgagee to
promptly exercise any right, power, remedy, consent or approval provided herein
or at law or in equity shall not constitute or be construed as a waiver of the
same nor shall Mortgagee be estopped from exercising such right, power, remedy,
consent or approval at a later date. Any consent or approval requested of and
granted by Mortgagee pursuant hereto shall be narrowly construed to be
applicable only to Mortgagor and the matter identified in such consent or
approval and no third party shall claim any benefit by reason thereof, and any
such consent or approval shall not be deemed to constitute Mortgagee a venturer
or partner with Mortgagor nor shall privity of contract be presumed to have been
established with any such third party. If Mortgagee deems it to be in its best
interest to retain assistance of persons, firms or corporations (including,
without limitation, attorneys, title insurance companies, appraisers, engineers
and surveyors) with respect to a request for consent or approval, Mortgagor
shall reimburse Mortgagee for all out of pocket costs (except after an Event of
Default, Mortgagor shall reimburse Mortgagee for all costs and expenses)
reasonably incurred in connection with the employment of such persons, firms or
corporations.
(b) Mortgagor covenants and agrees that during the term of
this Mortgage, unless Mortgagee shall have previously consented in writing: (i)
Mortgagor will take no action that would cause it to become an "employee benefit
plan" as defined in Section 3(3) of ERISA (as defined in the Loan Agreement) or
cause the assets of Mortgagor to constitute "plan assets" of one or more such
plans within the meaning of 29 C.F.R. Section 2510.3-101; and (ii) Mortgagor
will take no action that would cause it to be a "governmental plan" within the
meaning of Section 3(32) of ERISA and shall not engage in any transaction which
would subject Mortgagor to state statutes regulating investments of, and
fiduciary obligations with respect to, governmental plans. Mortgagor will not
sell, assign or transfer the Mortgaged Property, or any portion thereof or
interest therein, to any transferee that does not execute and deliver to
Mortgagee its written assumption of the obligations of the foregoing covenants.
Mortgagor further covenants and agrees to protect, defend, indemnify and hold
Mortgagee harmless from and against all loss, cost, damage and expense
(including, without limitation, all attorneys' fees and the cost of correcting
any prohibited transaction or obtaining an appropriate exemption) that
33
34
Mortgagee may incur as a result of Mortgagor's breach of the foregoing
covenants. These covenants and indemnity shall survive the extinguishment of the
lien of this Mortgage by foreclosure or action in lieu thereof provided such
indemnity relates to facts in existence prior to the extinguishment of the lien
of this Mortgage. In addition, the foregoing indemnity shall be a recourse
obligation of Mortgagor but not against its members and shall supersede any
limitations on Mortgagor's liability under any of the Loan Documents.
(c) The Loan Documents contain the entire agreement between
Mortgagor and Mortgagee relating to or connected with the Loan. Any other
agreements relating to or connected with the Loan not expressly set forth in the
Loan Documents are null and void and superseded in their entirety by the
provisions of the Loan Documents.
(d) Time is of the essence with respect to all provisions of
this Mortgage.
(e) Mortgagor represents and warrants to Mortgagee that there
has not been committed by Mortgagor or to Mortgagor's knowledge any other person
in occupancy of or involved with the operation or use of the Mortgaged Property
any act or omission affording the federal government or any state or local
government the right of forfeiture as against the Mortgaged Property or any part
thereof or any monies paid in performance of Mortgagor's obligations under the
Note or under any of the other Loan Documents. Mortgagor hereby covenants and
agrees not to commit, permit or suffer to exist any act, omission or
circumstance affording such right of forfeiture. In furtherance thereof,
Mortgagor hereby indemnifies Mortgagee and agrees to defend and hold Mortgagee
harmless from and against any loss, damage or injury by reason of the breach of
the covenants and agreements or the representations and warranties set forth in
this Paragraph. Without limiting the generality of the foregoing, the filing of
formal charges or the commencement of proceedings against Mortgagor or against
all or any part of the Mortgaged Property under any federal or state law for
which forfeiture of the Mortgaged Property or any part thereof or of any monies
paid in performance of Mortgagor's obligations under the Loan Documents is a
potential result, shall, at the election of Mortgagee, constitute an Event of
Default hereunder without notice or opportunity to cure.
(f) The relationship between Mortgagor and Mortgagee is that
of a borrower and a lender only and neither of those parties is, nor shall it
hold itself out to be, the agent, employee, joint venturer or partner of the
other party.
(g) An Event of Default hereunder shall be a default under
each of the other Loan Documents.
(h) In the event the Mortgaged Property or any part thereof
shall be sold upon foreclosure as provided hereunder, to the extent permitted by
law, the sum for which the same shall have been sold shall, for purposes of
redemption (pursuant to the laws of the state where the Mortgaged Property is
located), bear interest at the Default Rate.
(i) This document may be construed as a mortgage, deed of
trust, chattel
34
35
mortgage, conveyance, assignment, security agreement, pledge, financing
statement, hypothecation or contract, or any one or more of the foregoing, in
order to fully effectuate the liens and security interests created hereby and
the purposes and agreements herein set forth.
(j) In the case of any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition or other proceedings
affecting Mortgagor or the general partners, members or principals in Mortgagor,
or their respective creditors or property, Mortgagee, to the extent permitted by
law, shall be entitled to file such proofs of claim and other documents as may
be necessary or advisable in order to have the claims of Mortgagee allowed in
such proceedings for the entire secured Debt at the date of the institution of
such proceedings and for any additional amount which may become due and payable
by Mortgagor hereunder after such date.
47. INTENTIONALLY DELETED
48. MATURITY DATE. The maturity date of the Debt secured hereby is the
State Maturity Date.
49. FUTURE ADVANCES. This Mortgage secures such future or additional
advances as may be made by Mortgagee or the holder hereof, at its exclusive
option, to Mortgagor or its successors or assigns in title for any purpose. All
such future advances shall be secured to the same extent as if made on the date
of the execution of this Mortgage and this Mortgage shall secure the payment of
the Note and any additional advances made from time to time pursuant hereto, all
of said Debt being equally secured hereby and having the same priority as any
amounts advanced as of the date of this Mortgage. It is agreed that any
additional sum or sums advanced by Mortgagee shall be equally secured with and
have the same priority as the original Debt and shall be subject to all of the
terms, provisions and conditions of this Mortgage, whether or not such
additional loans or advances are evidenced by other promissory notes or other
guaranties of Mortgagor and whether or not identified by a recital that it or
they are secured by this Mortgage. It is further agreed that any additional
promissory note or guaranty or promissory notes or guaranties executed and
delivered pursuant to this Paragraph shall automatically be deemed to be
included in the term "NOTE" wherever it appears in the context of this Mortgage.
50. AFTER-ACQUIRED PROPERTY. All property acquired by Mortgagor after
the date of this Mortgage which by the terms of this Mortgage shall be subject
to the lien and/or the security interest created hereby, shall immediately upon
the acquisition thereof by Mortgagor and without any further mortgage,
conveyance or assignment become subject to the lien and security interest
created by this Mortgage. Nevertheless, Mortgagor shall execute, acknowledge,
deliver and record or file, as appropriate, all and every such further
mortgages, security agreements, financing statements, assignments and assurances
as Mortgagee shall require for accomplishing the purposes of this Mortgage.
35
36
51. CERTAIN RETAIL COVENANTS. Mortgagor further covenants and agrees
with Mortgagee as follows:
(a) Mortgagor shall:
(i) promptly perform and/or observe all of the covenants and
agreements required to be performed and observed by it under the
Property Management Agreement and do all things necessary to preserve
and to keep unimpaired its material rights thereunder;
(ii) promptly notify Mortgagee in writing of any default under
the Property Management Agreement of which it is aware;
(iii) promptly deliver to Mortgagee a copy of each financial
statement, business plan, capital expenditures plan, notice, report and
estimate prepared by Grantor or Manager under the Property Management
Agreement; and
(iv) promptly enforce the performance and observance of all of
the covenants and agreements required to be performed and/or observed
by the property manager under the Property Management Agreement.
(b) Mortgagor shall not, without Mortgagee's prior written
consent:
(i) surrender, terminate or cancel the Property Management
Agreement or otherwise replace the property manager under the Property
Management Agreement or enter into any other management agreements with
respect to the Mortgaged Property, PROVIDED, however, that Mortgagor
may terminate or cancel the Property Management Agreement in accordance
with the terms thereof so long as, prior to such termination or
cancellation, Mortgagor has selected a replacement property manager and
such replacement property manager has been approved by Mortgagee;
(ii) reduce or consent to the reduction of the term of the
Property Management Agreement;
(iii) increase or consent to the increase of the amount of any
charges under the Property Management Agreement; or
(iv) otherwise modify, change, supplement, alter or amend, or
waive or release any of its rights and remedies under, the Property
Management Agreement in any material respect which adversely effects
Mortgagor's rights thereunder or Mortgagee's interest in the Mortgaged
Property.
(c) Mortgagor shall not, without Mortgagee's prior written
consent, enter into transactions with any affiliate, including, without
limitation, any arrangement providing for
36
37
the managing of the Mortgaged Property, the rendering or receipt of services or
the purchase or sale of inventory, except any such transaction in the ordinary
course of business of Mortgagor if the monetary or business consideration
arising therefrom would be substantially as advantageous to Mortgagor as the
monetary or business consideration that Mortgagor would obtain in a comparable
transaction with a person not an affiliate of Mortgagor.
(d) Mortgagor will enter into and cause the property manager
to enter into an assignment and subordination of the Property Management
Agreement in form satisfactory to Mortgagee, assigning to Mortgagee all of
Mortgagor's rights and interest under the Property Management Agreement and
subordinating the property manager's interest in the Mortgaged Property and all
fees and other rights of the property manager pursuant to the Property
Management Agreement to this Mortgage and the other Loan Documents and the
rights of Mortgagee hereunder and thereunder. If a monetary default or an Event
of Default shall occur, Mortgagor, at Mortgagee's request made at any time while
such monetary default or such Event of Default is continuing, shall terminate
the Property Management Agreement and replace the property manager with a
property manager approved by Mortgagee on terms and conditions satisfactory to
Mortgagee.
52. LOCAL LAW. INTENTIONALLY DELETED
53. CHOICE OF LAW. THIS MORTGAGE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE WHERE THE MORTGAGED PROPERTY IS LOCATED
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT THAT THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS) SHALL
GOVERN THE RESOLUTION OF ISSUES ARISING UNDER THE LOAN AGREEMENT AND NOTE TO THE
EXTENT THAT SUCH RESOLUTION IS NECESSARY TO THE INTERPRETATION OF THIS MORTGAGE.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
37
38
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage,
Assignment of Leases and Rents and Security Agreement as of the day and year
first above written.
GLIMCHER NORTHTOWN VENTURE, LLC, a Delaware
limited liability company
By: XXXXXXXX XXXXXX, INC., a Delaware
corporation, its managing member
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
[CORPORATE SEAL]
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
I certify that I know or have satisfactory evidence that
Xxxxxx X. Xxxxxxx is the person who appeared before me, and said person
acknowledged that he/she signed this instrument, on oath stated that he/she was
authorized to execute the instrument and acknowledged it as the Senior Vice
President of Xxxxxxxx Xxxxxx, Inc., to be the free and voluntary act of such
party for the uses and purposes mentioned in the instrument.
Dated: May 29, 1998
/s/ Xxxxxx Xxxxxxxx
-------------------------------------
Notary Public
Print Name Xxxxxx Xxxxxxxx
--------------------------
My commission expires 12/26/99
39
EXHIBIT A
LEGAL DESCRIPTION
That part of Lots 2,3,4,5,6 and 7 of Block 2, XXXX'X NORTHTOWN ADDITION
according to the plat on file and of record in the office of the County
Recorder, Anoka County, Minnesota and that part of vacated University Avenue
Northeast described as follows:
Beginning at the most Northerly corner of said Lot 2; thence South 60(Degree)
39' 03" East assumed bearing along the Northeasterly line of said Lot 2 and its
Southeasterly extension a distance of 592.06 feet; thence South 57(Degree) 29'
46" East a distance of 1009.34 feet to the East line of said Lot 4; thence South
00(Degree) 28' 56" East along said East line a distance of 420.93 feet; thence
South 89(Degree) 38' 14" West a distance of 535.00 feet; thence Southerly along
a tangential curve concave to the Southeast having a radius of 200.00 feet, a
central angle of 90(Degree) 00' 00" and an arc length of 314.16 feet; thence
tangent to said curve South 00(Degree) 21' 46" East a distance of 58.00 feet;
thence Southerly along a tangential curve concave to the West having a radius of
150.00 feet, a central angle of 35(Degree) 16' 49" and an arc length of 92.36
feet; thence nontangential to said curve South 55(Degree) 05' 02" East a
distance of 56.32 feet; thence Southerly along a nontangential curve concave to
the East having a radius of 230.00 feet a central angle of 35(Degree) 16' 49",
an arc length of 141.62 feet, a chord bearing of South 17(Degree) 16' 38" West
and a chord distance of 139.40 feet; thence tangent to said curve South
00(Degree) 21' 46" East a distance of 60.00 feet to the South line of said Lot
4; thence South 89(Degree) 38' 14" West along said South line a distance of
849.34 feet; thence Northwesterly along a tangential curve concave to the
Northeast having a radius of 210.83 feet, a central angle of 77(Degree) 28' 16"
and an arc length of 285.07 feet; thence tangent to said curve North 12(Degree)
53' 30" West a distance of 165.85 feet; thence 32(Degree) 59' 20" West a
distance of 108.06 feet; thence North 68(Degree) 45' 03" West a distance of
72.38 feet; thence North 19(Degree) 29' 46" West a distance of 303.39 feet;
thence South 00(Degree) 21' 46" East a distance of 228.82 feet to the centerline
of vacated University Avenue Northeast; thence North 19(Degree) 29' 46" West
along said centerline a distance of 380.35 feet; thence Northwesterly along a
tangential curve concave to the Southwest having a radius of 545.67 feet, a
central angle of 40(Degree) 00' 00" and an arc length of 380.95 feet; thence
Northwesterly along a reverse curve concave to the Northeast having a radius of
545.67 feet, a Central angle of 13(Degree) 01' 26" and an arc length of 124.04
feet; thence South 43(Degree) 31' 40" West a distance of 75.00 feet; thence
North 34(Degree) 31' 26" West a distance of 148.02 feet; thence North 07(Degree)
29' 02" East a distance of 209.36 feet; thence Northerly along a nontangential
curve concave to the East having a radius of 470.67 feet a central angle of
30(Degree) 05' 34", an arc length of 247.20 feet, a chord bearing of North
13(Degree) 04' 08" East and a chord distance of 244.37 feet; thence South
57(Degree) 29' 46" East a distance of 310.20 feet; thence South 32(Degree) 30'
14" West a distance of 168.00 feet; thence Southeasterly along a tangential
curve concave to the Northeast having a radius of 190.00 feet, a central angle
of 90(Degree) 00' 00" and an arc length of 298.45 feet; thence South 57(Degree)
29' 46" East tangent to said curve a distance of 456.16; thence Southeasterly
along a tangential curve concave to the Southwest having a radius of 190.00
feet, a central angle of 38(Degree) 00' 00" and an arc length of 126.01 feet;
thence South 19(Degree) 29' 46" East tangent to said curve a distance of 84.67
feet; thence North 32(Degree) 30' 14" East a distance of 257.40 feet; thence
40
North 57(Degree) 29' 46" West a distance of 150.00 feet; thence North 32(Degree)
30' 14" East a distance of 460.00 feet; thence South 57(Degree) 29' 46" East a
distance of 85.00 feet; thence North 32(Degree) 30' 14" East a distance of
230.00 feet; thence North 57(Degree) 29' 46" West a distance of 55.50 feet;
thence North 32(Degree) 30' 14" East a distance of 147.42 feet to the point of
beginning and there terminating.
