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Exhibit 10.108
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxx Xxxxxxxx, Esq.
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT
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THIS MORTGAGE is made as of June 28, 1999, between GLIMCHER PROPERTIES
LIMITED PARTNERSHIP a Delaware limited partnership (the "Mortgagor") 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, and XXXXXXX NATIONAL LIFE INSURANCE COMPANY,
a Michigan corporation (the "Mortgagee"), c/o PPM Finance, Inc., 000 Xxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
1. MORTGAGE AND SECURED OBLIGATIONS.
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1.1. MORTGAGE. For purposes of securing payment and
performance of the Secured Obligations defined and described in SECTION 1.2,
Mortgagor hereby irrevocably and unconditionally grants, bargains, sells,
conveys, mortgages, warrants, assigns and pledges to Mortgagee, with right of
entry and possession, and with power of sale, all estate, right, title and
interest which Mortgagor now has or may later acquire in and to the following
property (all or any part of such property, or any interest in all or any part
of it, as the context may require, the "Property"):
(a) the real property located in the County of Colleton, State
of South Carolina and more particularly described in EXHIBIT A attached
hereto, together with all existing and future easements and rights
affording access to it (the "Land");
(b) all buildings, structures and improvements now located or
later to be constructed on the Land (the "Improvements");
(c) all existing and future appurtenances, privileges,
easements, franchises and tenements of the Land, including all
minerals, oil, gas, other hydrocarbons and associated substances,
sulfur, nitrogen, carbon dioxide, helium and other commercially
valuable substances which may be in, under or produced from any part of
the Land, all development rights and credits, air rights, water, water
rights (whether riparian, appropriative or otherwise, and whether or
not appurtenant) and water stock, and any land lying in the streets,
roads or avenues, open or proposed, in front of or adjoining the Land
and Improvements;
(d) all existing and future leases, subleases, subtenancies,
licenses, occupancy agreements and concessions ("leases", as defined in
the Assignment of Leases and Rents described in SECTION 2 herein,
executed and delivered to Lender contemporaneously
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herewith) relating to the use and enjoyment of all or any part of the
Land and Improvements, and any and all guaranties and other agreements
relating to or made in connection with any of such leases;
(e) all goods, materials, supplies, chattels, furniture,
fixtures, equipment and machinery now or later to be attached to,
placed in or on, or used in connection with the use, enjoyment,
occupancy or operation of all or any part of the Land and Improvements,
whether stored on the Land or elsewhere, including all pumping plants,
engines, pipes, ditches and flumes, and also all gas, electric,
cooking, heating, cooling, air conditioning, lighting, refrigeration
and plumbing fixtures and equipment, all of which shall be considered
to the fullest extent of the law to be real property for purposes of
this Mortgage;
(f) all building materials, equipment, work in process or
other personal property of any kind, whether stored on the Land or
elsewhere, which have been or later will be acquired for the purpose of
being delivered to, incorporated into or installed in or about the Land
or Improvements;
(g) all of Mortgagor's interest in and to the Loan funds,
whether disbursed or not, the Escrow Accounts (as defined in SECTION
3.1 of the Loan Agreement) and any of Mortgagor's funds now or later to
be held by or on behalf of Mortgagee;
(h) all rights to the payment of money, accounts, accounts
receivable, reserves, deferred payments, refunds, cost savings,
payments and deposits, whether now or later to be received from third
parties (including all xxxxxxx money sales deposits) or deposited by
Mortgagor with third parties (including all utility deposits), contract
rights, development and use rights, governmental permits and licenses,
applications, architectural and engineering plans, specifications and
drawings, as-built drawings, chattel paper, instruments, documents,
notes, drafts and letters of credit (other than letters of credit in
favor of Mortgagee), which arise from or relate to construction on the
Land or to any business now or later to be conducted on it, or to the
Land and Improvements generally;
(i) all proceeds, including all claims to and demands for
them, of the voluntary or involuntary conversion of any of the Land,
Improvements or the other property described above into cash or
liquidated claims, including proceeds of all present and future fire,
hazard or casualty insurance policies and all condemnation awards or
payments now or later to be made by any public body or decree by any
court of competent jurisdiction for any taking or in connection with
any condemnation or eminent domain proceeding, and all causes of action
and their proceeds for any damage or injury to the Land, Improvements
or the other property described above or any part of them, or breach of
warranty in connection with the construction of the Improvements,
including causes of action arising in tort, contract, fraud or
concealment of a material fact;
(j) all books and records pertaining to any and all of the
property described above, including computer-readable memory and
software necessary to access and process such memory ("Books and
Records"). Notwithstanding anything in the
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foregoing to the contrary, Books and Records shall not be deemed to
include the general corporate books and records of the Mortgagor which
are maintained by Mortgagor on a consolidated basis for all of
Mortgagor's properties (which properties include the Property being
secured hereunder) except to the extent that information in such
consolidated books and records pertains to the Property secured
hereunder;
(k) (i) all other agreements heretofore or hereafter entered
into relating to the construction, ownership, operation, management,
leasing or use of the Land or Improvements; (ii) any and all present
and future amendments, modifications, supplements, and addenda to any
of the items described in (i) above; (iii) any and all guarantees,
warranties and other undertakings (including payment and performance
bonds) heretofore or hereafter entered into or delivered with respect
to any of the items described in clauses (i) and (ii) above; (iv) all
trade names, trademarks, logos and other materials used to identify or
advertise, or otherwise relating to the Land or Improvements; and (v)
all building permits, governmental permits, licenses, variances,
conditional or special use permits, and other authorizations
(collectively, the "Permits") now or hereafter issued in connection
with the construction, development, ownership, operation, management,
leasing or use of the Land or Improvements, to the fullest extent that
the same or any interest therein may be legally assigned by Mortgagor;
and
(l) all proceeds of, additions and accretions to,
substitutions and replacements for, and changes in any of the property
described above.
Capitalized terms used above and elsewhere in this Mortgage without definition
have the meanings given them in the Loan Agreement referred to in SECTION 1.2
below.
1.2. SECURED OBLIGATIONS. This Mortgage is made for the
purpose of securing the following obligations (the "Secured Obligations") in any
order of priority that Mortgagee may choose:
(a) Payment of all obligations at any time owing under a
Promissory Note (the "Note") of even date herewith, payable by
Mortgagor as maker in the stated principal amount of Ninety Million
Dollars ($90,000,000.00) to the order of Mortgagee, which Note matures
and is due and payable in full not later than____________, ______; and
(b) Payment and performance of all obligations of Mortgagor
under a Loan Agreement of even date herewith between Mortgagor, as
borrower, and Mortgagee, as lender (the "Loan Agreement"); and
(c) Payment and performance of all obligations of Mortgagor
under this Mortgage; and
(d) Payment and performance of any obligations of Mortgagor
under any Loan Documents (as defined in the Loan Agreement) which are
executed by Mortgagor, including without limitation the Environmental
Indemnity; and
(e) Payment and performance of all future advances and other
obligations that Mortgagor or any successor in ownership of all or part
of the Property may agree to pay
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and/or perform (whether as principal, surety or guarantor) for the
benefit of Mortgagee, when a writing evidences the parties' agreement
that the advance or obligation be secured by this Mortgage; and
(f) Payment and performance of all modifications, amendments,
extensions and renewals, however evidenced, of any of the Secured
Obligations.
All persons who may have or acquire an interest in all or any part of the
Property will be considered to have notice of, and will be bound by, the terms
of the Secured Obligations and each other agreement or instrument made or
entered into in connection with each of the Secured Obligations. These terms
include any provisions in the Note or the Loan Agreement which provide that the
interest rate on one or more of the Secured Obligations may vary from time to
time.
2. ASSIGNMENT OF RENTS. As an inducement to Mortgagee to make the loan evidenced
by the Note and the Loan Agreement, Mortgagor has contemporaneously herewith
executed and delivered to Mortgagee an Assignment of Leases and Rents with
respect to the Property.
3. GRANT OF SECURITY INTEREST.
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3.1. SECURITY AGREEMENT. The parties acknowledge that some of
the Property and some or all of the Rents (as defined in the Assignment of
Leases and Rents) may be determined under applicable law to be personal property
or fixtures. To the extent that any Property or Rents may be personal property,
Mortgagor as debtor hereby grants Mortgagee as secured party a security interest
in all such Property and Rents, to secure payment and performance of the Secured
Obligations. This Mortgage constitutes a security agreement under the Uniform
Commercial Code as in effect in the State in which the Property is located (the
"Code), covering all such Property and Rents.
3.2. FINANCING STATEMENTS. Mortgagor shall execute one or more
financing statements and such other documents as Mortgagee may from time to time
require to perfect or continue the perfection of Mortgagee's security interest
in any Property or Rents. Mortgagor shall pay all fees and costs that Mortgagee
may incur in filing such documents in public offices and in obtaining such
record searches as Mortgagee may reasonably require. In case Mortgagor fails to
execute any financing statements or other documents for the perfection or
continuation of any security interest, Mortgagor hereby appoints Mortgagee as
its true and lawful attorney-in-fact to execute any such documents on its
behalf.
3.3. FIXTURE FILING. This Mortgage constitutes a financing
statement filed as a fixture filing under Sections 9-313 and 9-402 of the Code,
as amended or recodified from time to time, covering any of the Property which
now is or later may become fixtures attached to the Land or the Improvements.
The following addresses are the mailing addresses of Mortgagor, as debtor under
the Code, and Mortgagee, as secured party under the Code, respectively:
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MORTGAGOR: Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
MORTGAGEE: Xxxxxxx National Life Insurance Company
c/o PPM Finance, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
4. REPRESENTATIONS, COVENANTS AND AGREEMENTS.
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4.1. GOOD TITLE. Mortgagor covenants that it is lawfully
seized of the Property, that the Property is unencumbered except for the
Permitted Exceptions (as defined in the Loan Agreement), and that it has good
right, full power and lawful authority to convey and mortgage the same, and that
it will warrant and forever defend the Property and the quiet and peaceful
possession of the same against the lawful claims of all persons whomsoever.
4.2. INSURANCE. In the event of any loss or damage to any
portion of the Property due to fire or other casualty, or a taking of any
portion of the Property by condemnation or under the power of eminent domain,
the settlement of all insurance and condemnation claims and awards and the
application of insurance and condemnation proceeds shall be governed by SECTION
5 of the Loan Agreement.
4.3. STAMP TAX. If, by the laws of the United States of
America, or of any state or political subdivision having jurisdiction over
Mortgagor, any tax is due or becomes due in respect of the issuance of the Note,
or recording of this Mortgage, Mortgagor covenants and agrees to pay such tax in
the manner required by any such law. Mortgagor further covenants to hold
harmless and agrees to indemnify Mortgagee, its successors or assigns, against
any liability incurred by reason of the imposition of any tax on the issuance of
the Note or recording of this Mortgage.
4.4. CHANGES IN TAXATION. Other than a tax that may arise in
connection with a transfer of the Note by Mortgagee or that is imposed on the
income of the Mortgagee, in the event of the enactment after this date of any
law of the State in which the Property is located or any political subdivision
thereof deducting from the value of land for the purpose of taxation any lien
thereon, or imposing upon Mortgagee the payment of the whole or any part of the
taxes or assessments or charges or liens herein required to be paid by
Mortgagor, or changing in any way the laws relating to the taxation of mortgages
or debts secured by mortgages or the Mortgagee's interest in the Property, or
the manner of collection of taxes, so as to affect this Mortgage or the Secured
Obligations, then Mortgagor, upon demand by Mortgagee, shall pay such taxes or
assessments, or reimburse Mortgagee therefor; provided, however, that if in the
opinion of counsel for Mortgagee (i) it might be unlawful to require Mortgagor
to make such payment or (ii) the making of such payment might result in the
imposition of interest beyond the maximum amount permitted by law, then
Mortgagee may elect, by notice in writing given to Mortgagor, to declare
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all of the Secured Obligations to be and become due and payable sixty (60) days
from the giving of such notice.
4.5. SUBROGATION. Mortgagee shall be subrogated to the liens
of all encumbrances, whether released of record or not, which are discharged in
whole or in part by Mortgagee in accordance with this Mortgage or with the
proceeds of any loan secured by this Mortgage.
4.6. NOTICE OF CHANGE. Mortgagor shall give Mortgagee prior
written notice of any change in: (a) the location of its place of business or
its chief executive office if it has more than one place of business; (b) the
location of any of the Property, including the Books and Records; and (c)
Mortgagor's name or business structure. Unless otherwise approved by Mortgagee
in writing, all Property that consists of personal property (other than the
Books and Records) will be located on the Land and all Books and Records will be
located at Mortgagor's place of business or chief executive office if Mortgagor
has more than one place of business.
4.7. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL
SECURITY. From time to time, Mortgagee may perform any of the following acts
without incurring any liability or giving notice to any person: (i) release any
person liable for payment of any Secured Obligation; (ii) extend the time for
payment, or otherwise alter the terms of payment, of any Secured Obligation;
(iii) accept additional real or personal property of any kind as security for
any Secured Obligation, whether evidenced by deeds of trust, mortgages, security
agreements or any other instruments of security; (iv) alter, substitute or
release any property securing the Secured Obligations; (v) consent to the making
of any plat or map of the Property or any part of it; (vi) join in granting any
easement or creating any restriction affecting the Property; or (vii) join in
any subordination or other agreement affecting this Mortgage or the lien of it.
5. DEFAULTS AND REMEDIES.
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5.1. EVENTS OF DEFAULT. An "Event of Default," as defined in
the Loan Agreement, shall constitute an Event of Default hereunder.
5.2. REMEDIES At any time after an Event of Default, Mortgagee
shall be entitled to invoke any and all of the rights and remedies described
below, in addition to all other rights and remedies available to Mortgagee at
law or in equity. All of such rights and remedies shall be cumulative, and the
exercise of any one or more of them shall not constitute an election of
remedies.
(a) ACCELERATION. Mortgagee may declare any or all of the
Secured Obligations to be due and payable immediately.
(b) RECEIVER. To the extent state law where the property is
situated may permit, Mortgagee shall, as a matter of right, without
notice and without giving bond to Mortgagor or anyone claiming by,
under or through Mortgagor, and without regard for the solvency or
insolvency of Mortgagor or the then value of the Property, to the
extent permitted by applicable law, be entitled to have a receiver
appointed for all or any part of the Property and the Rents, and the
proceeds, issues and profits thereof, with the rights and powers
referenced below and such other rights and powers as the court making
such appointment shall confer, and Mortgagor hereby consents to the
appointment of such
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receiver and shall not oppose any such appointment. Such receiver shall
have all powers and duties prescribed by the applicable laws in effect in the
state in which the Property is located, all other powers which are necessary or
usual in such cases for the protection, possession, control, management and
operation of the Property, and such rights and powers as Mortgagee would have,
upon entering and taking possession of the Property under subsection (c) below.
(c) ENTRY. Mortgagee, in person, by agent or by
court-appointed receiver, may enter, take possession of, manage and
operate all or any part of the Property, and may also do any and all
other things in connection with those actions that Mortgagee may in its
sole discretion consider necessary and appropriate to protect the
security of this Mortgage. Such other things may include: taking and
possessing all of Mortgagor's or the then owner's Books and Records;
entering into, enforcing, modifying or canceling leases on such terms
and conditions as Mortgagee may consider proper; obtaining and evicting
tenants; fixing or modifying Rents; collecting and receiving any
payment of money owing to Mortgagor; completing any unfinished
construction; and/or contracting for and making repairs and
alterations. If Mortgagee so requests, Mortgagor shall assemble all of
the Property that has been removed from the Land and make all of it
available to Mortgagee at the site of the Land. Mortgagor hereby
irrevocably constitutes and appoints Mortgagee as Mortgagor's
attorney-in-fact to perform such acts and execute such documents as
Mortgagee in its sole discretion may consider to be appropriate in
connection with taking these measures, including endorsement of
Mortgagor's name on any instruments.
(d) CURE; PROTECTION OF SECURITY. Mortgagee may cure any
breach or default of Mortgagor, and if it chooses to do so in
connection with any such cure, Mortgagee may also enter the Property
and/or do any and all other things which it may in its sole discretion
consider necessary and appropriate to protect the security of this
Mortgage. Such other things may include: appearing in and/or defending
any action or proceeding which purports to affect the security of, or
the rights or powers of Mortgagee under, this Mortgage; paying,
purchasing, contesting or compromising any encumbrance, charge, lien or
claim of lien which in Mortgagee's sole judgment is or may be senior in
priority to this Mortgage, such judgment of Mortgagee to be conclusive
as between the parties to this Mortgage; obtaining insurance and/or
paying any premiums or charges for insurance required to be carried
under the Loan Agreement; otherwise caring for and protecting any and
all of the Property; and/or employing counsel, accountants, contractors
and other appropriate persons to assist Mortgagee. Mortgagee may take
any of the actions permitted under this SECTION 5.2(d) either with or
without giving notice to any person. Any amounts expended by
Mortgagee under this SECTION 5.2(d) shall be secured by
this Mortgage.
(e) UNIFORM COMMERCIAL CODE REMEDIES. Mortgagee may exercise
any or all of the remedies granted to a secured party under Code.
(f) FORECLOSURE; LAWSUITS. Mortgagee shall have the right, in
one or several concurrent or consecutive proceedings, to foreclose the
lien hereof upon the Property or any part thereof, for the Secured
Obligations, or any part thereof, by any proceedings
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appropriate under applicable law. Mortgagee or its nominee may bid and
become the purchaser of all or any part of the Property at any
foreclosure or other sale hereunder, and the amount of Mortgagee's
successful bid shall be credited on the Secured Obligations. Without
limiting the foregoing, Mortgagee may proceed by a suit or suits in law
or equity, whether for specific performance of any covenant or
agreement herein contained or contained in any of the other Loan
Documents (as defined in the Loan Agreement), or in aid of the
execution of any power herein granted, or for any foreclosure under the
judgment or decree of any court of competent jurisdiction, or for
damages, or to collect the indebtedness secured hereby, or for the
enforcement of any other appropriate legal, equitable, statutory or
contractual remedy. Mortgagee may sell the Property at public auction
in one or more parcels, at Mortgagee's option, and convey the same to
the purchaser in fee simple, Mortgagor to remain liable for any
deficiency for which Mortgagor shall be personally liable.
(g) OTHER REMEDIES. Mortgagee may exercise all rights and
remedies contained in any other instrument, document, agreement or
other writing heretofore, concurrently or in the future executed by
Mortgagor or any other person or entity in favor of Mortgagee in
connection with the Secured Obligations or any part thereof, without
prejudice to the right of Mortgagee thereafter to enforce any
appropriate remedy against Mortgagor. Mortgagee shall have the right to
pursue all remedies afforded to a mortgagee under the applicable laws
of the state in which the Property is located, and shall have the
benefit of all of the provisions of any such laws, including all
amendments thereto which may become effective from time to time after
the date hereof. In the event any provision of any such laws may be
repealed, Mortgagee shall have the benefit of such provision as most
recently existing prior to such repeal, as though the same were
incorporated herein by express reference.
(h) POWER OF SALE FOR PERSONAL PROPERTY. Under this power of
sale, Mortgagee shall have the discretionary right to cause some or all
of the Property, which constitutes personal property, to be sold or
otherwise disposed of in any combination and in any manner permitted by
applicable law.
(i) For purposes of this power of sale, Mortgagee may
elect to treat as personal property any Property which is
intangible or which can be severed from the Land or
Improvements without causing structural damage. If it chooses
to do so, Mortgagee may dispose of any personal property in
any manner permitted by Article 9 of the Code, including any
public or private sale, or in any manner permitted by any
other applicable law.
(ii) In connection with any sale or other disposition
of such Property, Mortgagor agrees that the following
procedures constitute a commercially reasonable sale:
Mortgagee shall mail written notice of the sale to Mortgagor
not later than ten (10) days prior to such sale. Upon receipt
of any written request, Mortgagor will make the Property
available to any bona fide prospective purchaser for
inspection during reasonable business hours. Notwithstanding,
Mortgagee shall be under no obligation to consummate a sale
if, in its judgment, none of the offers received by it equals
the fair value of the Property offered for
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sale. The foregoing procedures do not constitute the only
procedures that may be commercially reasonable.
(i) SINGLE OR MULTIPLE FORECLOSURE SALES. If the Property
consists of more than one lot, parcel or item of property, Mortgagee
may:
(i) designate the order in which the lots, parcels
and/or items shall be sold or disposed of or offered for sale
or disposition; and
(ii) elect to dispose of the lots, parcels and/or
items through a single consolidated sale or disposition to be
held or made under or in connection with judicial proceedings,
or by virtue of a judgment and decree of foreclosure and sale,
or pursuant to the power of sale contained herein; or through
two or more such sales or dispositions; or in any other manner
Mortgagee may deem to be in its best interests (any
foreclosure sale or disposition as permitted by the terms
hereof is sometimes referred to herein as a "Foreclosure
Sale;" and any two or more such sales, "Foreclosure Sales").
If it chooses to have more than one Foreclosure Sale, Mortgagee at its option
may cause the Foreclosure Sales to be held simultaneously or successively, on
the same day, or on such different days and at such different times and in such
order as it may deem to be in its best interests. No Foreclosure Sale shall
terminate or affect the liens of this Mortgage on any part of the Property which
has not been sold, until all of the Secured Obligations have been paid in full.
5.3. APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of
any Foreclosure Sale shall be applied in the following manner:
(a) First, to pay the portion of the Secured
Obligations attributable to the expenses of sale, costs of any
action and any other sums for which Mortgagor is obligated to
reimburse Mortgagee hereunder or under the other Loan
Documents;
(b) Second, to pay the portion of the Secured
Obligations attributable to any sums expended or advanced by
Mortgagee under the terms of this Mortgage which then remain
unpaid;
(c) Third, to pay all other Secured Obligations in
any order and proportions as Mortgagee in its sole discretion
may choose; and
(d) Fourth, to remit the remainder, if any, to the
person or persons entitled to it.
6. RELEASE OF LIEN. If Mortgagor shall fully pay and perform
all of the Secured Obligations and comply with all of the other terms and
provisions hereof and the other Loan Documents to be performed and complied with
by Mortgagor, then Mortgagee shall release this Mortgage and the lien thereof by
proper instrument upon payment, performance and discharge of all of the Secured
Obligations and payment by Mortgagor of any filing fee in connection with such
release.
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7. MISCELLANEOUS PROVISIONS.
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7.1. ADDITIONAL PROVISIONS. The Loan Documents fully state all of the terms and
conditions of the parties' agreement regarding the matters mentioned in or
incidental to this Mortgage. The Loan Documents also grant further rights to
Mortgagee and contain further agreements and affirmative and negative covenants
by Mortgagor which apply to this Mortgage and the Property.
7.2. GIVING OF NOTICE. Any notice, demand, request or other
communication which any party hereto may be required or may desire to give
hereunder shall be given as provided in SECTION 9.3 of the Loan Agreement.
7.3. REMEDIES NOT EXCLUSIVE. No action for the enforcement of
the lien or any provision hereof shall be subject to any defense which would not
be good and available to the party interposing same in an action at law upon the
Note. Mortgagee shall be entitled to enforce payment and performance of any of
the Secured Obligations and to exercise all rights and powers under this
Mortgage or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Secured Obligations may now or hereafter be
otherwise secured, whether by mortgage, deed of trust, pledge, lien, assignment
or otherwise. Neither the acceptance of this Mortgage nor its enforcement,
whether by court action or other powers herein contained, shall prejudice or in
any manner affect Mortgagee's right to realize upon or enforce any other
security now or hereafter held by Mortgagee, it being agreed that Mortgagee
shall be entitled to enforce this Mortgage and any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. No waiver of any default of the Mortgagor hereunder shall
be implied from any omission by Mortgagee to take any action on account of such
default if such default persists or is repeated, and no express waiver shall
affect any default other than the default specified in the express waiver and
that only for the time and to the extent therein stated. No acceptance of any
payment of any one or more delinquent installments which does not include
interest at the Default Rate from the date of delinquency, together with any
required late charge, shall constitute a waiver of the right of Mortgagee at any
time thereafter to demand and collect payment of interest at such Default Rate
or of late charges, if any.
7.4. WAIVER OF STATUTORY RIGHTS. To the extent permitted by
law, Mortgagor hereby agrees that it shall not and will not apply for or avail
itself of any appraisement, valuation, stay, extension or exemption laws, or any
so-called "Moratorium Laws," now existing or hereafter enacted, in order to
prevent or hinder the enforcement or foreclosure of this Mortgage, but hereby
waives the benefit of such laws. Mortgagor for itself and all who may claim
through or under it waives any and all right to have the property and estates
comprising the Property marshaled upon any foreclosure of the lien hereof and
agrees that any court having jurisdiction to foreclose such lien may order the
Property sold as an entirety. Mortgagor hereby waives any and all rights of
redemption from sale under the power of sale contained herein or any order or
decree of foreclosure of this Mortgage on its behalf and on behalf of each and
every person, except decree or judgment creditors of Mortgagor, acquiring any
interest in or title to the Property subsequent to the date of this Mortgage.
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7.5. ESTOPPEL AFFIDAVITS. Mortgagor, within fifteen (15) days after written
request from Mortgagee, shall furnish a written statement, duly acknowledged,
setting forth the unpaid principal of, and interest on, the Secured Obligations
and stating whether or not any offset or defense exists against such Secured
Obligations, and covering such other matters as Mortgagee may reasonably
require.
7.6. MERGER. No merger shall occur as a result of Mortgagee's
acquiring any other estate in or any other lien on the Property unless Mortgagee
consents to a merger in writing.
7.7. BINDING ON SUCCESSORS AND ASSIGNS. This Mortgage and all
provisions hereof shall be binding upon Mortgagor and all persons claiming under
or through Mortgagor, and shall inure to the benefit of Mortgagee and its
successors and assigns.
7.8. CAPTIONS. The captions and headings of various paragraphs
of this Mortgage are for convenience only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
7.9. SEVERABILITY. If all or any portion of any provision of
this Mortgage shall be held to be invalid, illegal or unenforceable in any
respect, then such invalidity, illegality or unenforceability shall not affect
any other provision hereof or thereof, and such provision shall be limited and
construed as if such invalid, illegal or unenforceable provision or portion
thereof was not contained herein.
7.10. EFFECT OF EXTENSIONS OF TIME AND AMENDMENTS. If the
payment of the Secured Obligations or any part thereof be extended or varied or
if any part of the security be released, all persons now or at any time
hereafter liable therefor, or interested in the Property, shall be held to
assent to such extension, variation or release, and their liability and the lien
and all provisions hereof shall continue in full force, the right of recourse,
if any, against all such persons being expressly reserved by Mortgagee,
notwithstanding such extension, variation or release. Nothing in this SECTION
7.10 shall be construed as waiving any provision contained herein or in the Loan
Documents which provides, among other things, that it shall constitute an Event
of Default if the Property be sold, conveyed, or encumbered.
7.11. MORTGAGEE'S LIEN FOR SECURED OBLIGATIONS. At all times,
regardless of whether any proceeds of the loan secured hereby have been
disbursed, this Mortgage secures (in addition to the amounts secured hereby) the
payment of any and all commissions, service charges, liquidated damages,
expenses and advances due to or incurred by Mortgagee in connection with such
loan; provided, however, that in no event shall the total amount secured hereby
exceed two hundred percent (200%) of the face amount of the Note.
7.12. APPLICABLE LAW. This Mortgage shall be governed by and
construed under the internal laws of the State in which the Property is located.
7.13. LIMITATION OF LIABILITY. The personal liability of
Mortgagor and its general partner hereunder is limited to the extent set forth
in SECTION 9.18 of the Loan Agreement.
7.14. DUE ON SALE CLAUSE. As more fully set forth in SECTION
6.4 of the Loan Agreement, the transfer or encumbrance of the Property, or any
interest therein, or the transfer of
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an interest in Mortgagor, except for the permitted transfers set forth in
SECTION 6.5 of the Loan Agreement, without prior written consent of Mortgagee,
shall constitute an Event of Default.
7.15. TIME IS OF THE ESSENCE. Time is of the essence with
respect to each and every covenant, agreement and obligation of Mortgagor under
this Mortgage, the Note and the other Loan Documents.
7.16. RECORDATION. 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 evidencing the lien
hereof upon the Property, or any portion thereof, 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 hereof upon, and the interest of Mortgagee in, the
Property.
Mortgagor will pay all filing, registration or recording fees
and taxes, and all expenses incident to the preparation, execution and
acknowledgment of this Mortgage, any mortgage supplemental hereto, any security
instrument with respect to the Property and any instrument of further assurance,
and all federal, state, county and municipal stamp taxes, duties, impositions,
assessments and charges arising out of or in connection with the execution and
delivery of the Note, this Mortgage, any mortgage supplemental hereto, any
security instrument, any other Loan Documents or any instrument of further
assurance.
7.17. MODIFICATIONS. This Mortgage may not be changed or
terminated except in writing signed by both parties. The provisions of this
Mortgage shall extend and be applicable to all renewals, amendments, extensions,
consolidations, and modifications of the other Loan Documents, and any and all
references herein to the Loan Documents shall be deemed to include any such
renewals, amendments, extensions, consolidations or modifications thereof.
7.18. INDEPENDENCE OF SECURITY. Except as may exist pursuant
to easements and agreements existing as of the date hereof which have been
disclosed to Mortgagee, Mortgagor shall not by act or omission permit any
building or other improvement on any premises not subject to the lien of this
Mortgage to rely on the Property or any part thereof or any interest therein to
fulfill any municipal or governmental requirement, and Mortgagor hereby assigns
to Mortgagee any and all rights to give consent for all or any portion of the
Property to rely on any premises not subject to the lien of this Mortgage or any
interest therein to fulfill any municipal or governmental requirement. Mortgagor
shall not by act or omission impair the integrity of the Property as a single
zoning lot, and as one or more complete tax parcels, separate and apart from all
other premises. Any act or omission by Mortgagor which would result in a
violation of any of the provisions of this SECTION 7.18 shall be void.
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7.19. WAIVER OF APPRAISAL RIGHT. The laws of South Carolina
provide that in any real estate foreclosure proceeding, a defendant against whom
a personal judgment is taken or asked may within thirty (30) days after the sale
of the Mortgaged Property apply to the court for an order of appraisal. The
statutory appraisal value as approved by the court would be substituted for the
high bid and may decrease the amount of an deficiency owing in connection with
the transaction. THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY
APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL
BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE MORTGAGED
PROPERTY.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage, under seal, as of the
date first above written.
Signed, sealed and delivered GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
(Seal)
/s/ Xxxxxx Xxxxxx By: Glimcher Properties Corporation,
------------------------------ a Delaware corporation, its sole
/s/ Zuchel X. Xxxxx General Partner
-----------------------------
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Its: Executive Vice President/coo/cfo
--------------------------------
ACKNOWLEDGEMENT
STATE OF ILLINOIS)
)
COUNTY OF XXXX )
On June 25, 1999, before me, the undersigned, a Notary Public in and
for the county and state aforesaid, personally appeared Xxxxxxx X. Xxxxxxx, the
Executive Vice President/COO & CFO (title) of Glimcher Properties Corporation, a
Delaware corporation to me (or proved to me on the basis of satisfactory
evidence) to be the same of the general partner of GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, the partnership therein named, and
acknowledged the execution thereof to be the free and voluntary act and deed of
said partnership for the uses and purposes therein mentioned and on oath stated
that they were authorized to execute the said instrument on behalf of said
partnership.
WITNESS my hand and official seal.
/s/ Xxxxx X. Polka
--------------------------------
Notary Public in and for the State
Of ILLINOIS
(SEAL)
My commission expires: 7-2-2000
----------
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XXXXXXXXXX XXXXX/XXXXXXXX, XXXXX XXXXXXX
EXHIBIT A
---------
LEGAL DESCRIPTION
DESCRIPTION OF 13.088 ACRE TRACT
All that certain piece, parcel or tract of land lying in the City of
Walterboro County Colleton, State of South Carolina, consisting of 13.088 acres
known and described as Xxxxx "X"xxx Xxxxx "X-0" (Walmart Tax Lot) combined, more
particularly described as follows:
Beginning at an iron rod on the Southwestern right-of-way (37.5 feet from the
center line) of S.C. Route 64, said iron rod being 397.50 feet Southeast of the
intersection of such edge of the right-of-way with the center line of Xxxxxx
Drive (Road S-15-3521); thence running South 38 degrees 53' 55" East for a
distance of 93.54 feet along the Southwestern right-of-way (37.5 feet from the
center line) of S.C. Route 64 to an iron rod; thence turning and running North
82 degrees 05' 52" West for a distance of 29.16 feet along Out Parcel "A" to an
ironrod; thence turning and running South 54 degrees 42' 10" West for a distance
of 146.33 feet along Out Parcel "B" to an iron rod; thence turning and running
South 38 degrees 53' 55" East for a distance of 145.00 feet along Out Parcel "B"
to an iron rod; thence turning in and running North 51 degrees 06'05" East for a
distance of 154.00 feet along Out Parcel "B" to an iron rod; thence turning and
running South 38 degrees 53' 55" East for a distance of 195.91 feet along the
Southwestern right-of-way (49.5 feet from the center line) of S.C. Route 64 to
an "X" xxxx on sidewalk; thence turning and running South 51 degrees 06' 05"
West for a distance of 242.98 feet along Tract "A-1" to a nail in asphalt;
thence turning and running South 38 degrees 53' 55" East for a distance of
149.63 feet along Tract "A-1" to a nail in asphalt; thence turning and running
South 71 degrees 06' 05" West for a distance of 30.86 feet along Tract "A-1" to
a nail in asphalt; thence turning and running South 38 degrees 53' 55" East, for
a distance of 85.59 feet along Tract "A-1" to an iron rod; thence turning and
running South 51 degrees 06' 05" West for a distance of 113.59 feet along Tract
"A-1" to a nail in asphalt; thence turning and running South 38 degrees 53' 55"
East for a distance of 411.75 feet along Tract "A-1" to an iron rod; thence
turning and running South 50 degrees 52' 37" West for a distance of 197.44 feet
along the lands of Xxxxx X. Xxxxx, et al to an iron rod; thence turning and
running North 45 degrees 46' 35" West for a distance of 62.65 feet along said
Xxx 00 xx xxx Xxxxxx Xxxx Subdivision to an iron rod; thence turning and running
North 70 degrees 45' 00" West for a distance of
Continued...
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EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
DESCRIPTION OF 13.088 ACRE TRACT, CONTINUED...
91.50 feet along said Lot 87 and said Lot 86 of said subdivision to an
iron rod; thence turning and running South 51 degrees 01' 00" West for a
distance of 17.33 feet along said Lot 86 of said subdivision to an iron rod;
thence turning and running North 83 degrees 19' 30" West for a distance of 16.92
feet along said Lot 86 of said subdivision to an iron rod; thence turning and
running North 54 degrees 19' 30" West for a distance of 33.00 feet along said
Lot 86 of said subdivision to an iron rod; thence turning and running North 67
degrees 19' 30" West for a; distance of 102.43 feet along said Lot 85 of said
subdivision to an iron rod; thence turning and running North 45 degrees 05' 16
West for a distance of 15.02 feet along said Lot 84 of said subdivision to an
iron rod; thence turning and running North 46 degrees 17'25" West for a distance
of 67.00 feet along said Lot 84 of said subdivision to an iron rod; thence
turning and running South 83 degrees 42' 35" West for a distance of 142.00 feet
along said Lot 84 and Lot 83 of said subdivision to an iron rod; thence turning
and running North 57 degrees 25' 03" West for a distance of 44.59 feet along
said Lot 83 and said Lot 82 of said subdivision to an iron rod; thence turning
and running North 31 degrees 38' 25" East for a distance of 37.97 feet along the
lands of Xxxxxxxx X. Xxxxx to an iron rod; thence turning and running North 38
degrees 53' 55" West for a distance of 75.69 feet along the lands of Xxxxxxxx X.
Xxxxx to an iron rod; thence running North 38 degrees 53' 55" West for a
distance of 478.79 feet along the lands of Xxxxxxxx X. Xxxxx to an iron rod;
thence turning and running North 51 degrees 06' 05" East for a distance of
845.73 feet along the lands of Xxxxxxxx X. Xxxxx to an iron rod; said iron rod
being the point of beginning, which tract of land contains 13.088 acres (370,093
sq. ft.). This being the same property shown and described on a plat prepared by
Edisto Surveyors, Inc., Orangeburg, South Carolina, and signed by Xxxxxxx X.
Xxxxxxx, S.C.A.L.S. entitled "Walterboro Shopping Center: dated November 4,
1994, which plat is recorded in the Office of the Clerk of Court for Colleton
County, Walterboro, South Carolina recorded in the Plat Books, for a more
accurate pictorial description of the within property, referenced may be had to
said plat of record.
Continued...
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EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
DESCRIPTION OF 3.838 ACRE TRACT (TRACT "A-1")
All that certain piece, parcel or tract of land lying the City of
Walterboro, County of Colleton, State of South Carolina, consisting of 3.838
acres known and described as Tract "A-1" more particularly described as follows:
Beginning at an "X" xxxx on sidewalk on the Southwestern right-of-way
(49.5 feet from the center line) of S.C. Route 64 said point being 801.50 feet
Southeast of the intersection of such edge of the right-of-way with the center
line of Xxxxxx Drive (Road 5-15-352); thence running South 38 degrees 53' 55"
East for a distance of 84.09 feet along the Southwestern right-of-way (49.5 feet
from the center line of S.C. Route 64 to an iron rod; thence turning and running
North 51 degrees 06' 05" East for a distance of 12.00 feet along the
right-of-way of S.C. Route 64 to an iron spindle in asphalt drive; thence
turning and running South 38 degrees 53' 55" East for a distance of 159.05 feet
along the Southwestern right-of-way (37.5 feet from the center line) of S.C.
Route 64 to an iron rod; thence turning and running South 51 degrees 06' 05"
West for a distance of 104.72 feet along Out Parcel "A" to an iron rod; thence
turning and running South 38 degrees 53' 55" East for a distance of 181.86 feet
along Out Parcel "A" to an iron rod; thence turning and running North 51 degrees
06' 05" East for a distance of 84.72 feet along Out Parcel "A" to an iron rod;
thence turning, and running North 06 degrees 06' 05" East for a distance of
28.28 feet along Out Parcel "A" to an iron rod on the Southwestern right-of-way
(37.5 feet from the center line) of S.C. Route 64; thence turning and running
South 38 degrees 53' 55" East for a distance of 86.00 feet along the
Southwestern right-of-way (37.5 feet from the center line) of S.C. Route 64 to
an iron rod; thence turning and running South 51 degrees 15' 05" West for a
distance of 200.69 feet along the lands of June X. Xxxxxx and Xxxxx X. Xxxxxxx
to an iron rod; thence turning and running South 38 degrees 51' 03" East for a
distance of 5.40 feet along the lands of Xxxxx X. Xxxxxxx to an iron rod; thence
turning and running South 51 degrees 09' 10" West for a distance of 49.86 feet
along the lands of Xxxxx X. Xxxxxxx to an iron rod; thence turning and running
South 39 degrees 01'00" East for a distance of 140.00 feet along the lands of
Xxxxx X. Xxxxxxx and the Southwestern terminus of Road S-15-631 to an iron rod
on the Southeastern right-of-way (20.00 feet from the center line of road
S-15-631); thence turning and running South 50 degrees 52' 37"
Continued...
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EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
DESCRIPTION OF 3.838 ACRE TRACT (TRACT "A-1"), CONTINUED...
West for a distance of 147.31 feet along the lands of Xxxxx X. Xxxxx, et al to
an iron rod; thence turning and running North 38 degrees 53' 55" West for a
distance of 411.75 feet along Tract "A" to a nail in asphalt; thence turning and
running North 51 degrees 06' 05" East for a distance of 113.59 feet along Tract
"A" to an iron rod; thence turning and running North 38 degrees 53' 55" West for
a distance of 85.59 feet along Tract "A" to a nail in asphalt; thence turning
and running North 71 degrees 06' 05" East for a distance of 30.86 feet along
Tract "A" to a nail in asphalt; thence turning and running North 38 degrees 53'
55" West for a distance of 149.63 feet along Tract "A" to a nail in asphalt;
thence turning and running North 51 degrees 06' 05" East for a distance of
242.98 feet along Tract "A-2" (Wal-Mart Tax lot) to an "X" xxxx on sidewalk;
said "X" xxxx on sidewalk being the point of beginning. This being the same
property shown and described on a plat prepared by Edisto Surveyors, Inc.,
Orangeburg, South Carolina, and signed by Xxxxxxx X. Xxxxxxx, S.C.R.L.S.,
entitled "Walterboro Shopping Center", dated November 4,1994, which said plat is
recorded in the office of the Clerk of Court for Colleton County, Walterboro,
South Carolina in Plat Books. For a more accurate pictorial description of the
within property, referenced may be had to said plat of record.
Together with:
Easement Parcels:
Together with easements for vehicular and pedestrian ingress and egress to and
from Tract "A-1", and easements for drainage and utilities, over and across
Outparcel "A" and Outparcel "B" on plat recorded in Plat Book 581, Page 4; said
easements being described in instrument entitled "Agreement Regarding
Outparcels", recorded in Book 509, Page 145; as modified by First Modification
recorded at Book 444, Page 253; and further modified by Second Modification
recorded at Book 471, Page 301, all in Colleton County, South Carolina.
Continued...
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EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
EASEMENT PARCELS, CONTINUED...
Also together with easements for parking and vehicular and pedestrian ingress
and egress to and from Tract "A-1", and easements for drainage and utilities,
over and across Tract "A" and Tract "A-2" on Plat recorded in Plat Book 581,
Page 4; said easements being described in instrument entitled "Agreement
Regarding Store Pad", recorded in Book 509, Page 186; as modified by First
Modification recorded at Book 444, Page 253; and further modified by Second
Modification recorded at Book 471, Page 301 all in Colleton County, South
Carolina.
DERIVATION: Being the same property conveyed to Glimcher Properties Limited
Partnership, by deed of _________________, a(n)_____________ dated __________,
recorded on _________________, in Deed Book ________________, page __________,
in the Office of the Colleton County.
TMS #:
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