Exhibit 10.139
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RIVER VALLEY VENTURE, LLC,
a Delaware limited liability company, as mortgagor
(Borrower)
to
XXXXXX BROTHERS BANK, FSB, as mortgagee
(Lender)
--------------------------
OPEN-END MORTGAGE AND
SECURITY AGREEMENT IN THE MAXIMUM AMOUNT OF
$8,575,000
(exclusive of interest)
--------------------------
Dated: As of April 17, 2001
Location: River Valley Plaza
Lancaster, Ohio
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RECORDING REQUESTED BY AND WHEN RECORDED PLEASE RETURN TO:
Stroock & Stroock & Xxxxx, LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
TABLE OF CONTENTS
PAGE
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Article 1 - GRANTS OF SECURITY
Section 1.1........................................................................PROPERTY MORTGAGED
....................................................................................................2
Section 1.2.......................................................................ASSIGNMENT OF RENTS
....................................................................................................4
Section 1.3........................................................................SECURITY AGREEMENT
....................................................................................................5
Section 1.4............................................................................FIXTURE FILING
....................................................................................................5
Section 1.5....................................................................PLEDGES OF MONIES HELD
....................................................................................................5
Article 2 - DEBT AND OBLIGATIONS SECURED
Section 2.1......................................................................................DEBT
....................................................................................................6
Section 2.2.........................................................................OTHER OBLIGATIONS
....................................................................................................6
Section 2.3................................................................DEBT AND OTHER OBLIGATIONS
....................................................................................................6
Article 3 - BORROWER COVENANTS
Section 3.1...........................................................................PAYMENT OF DEBT
....................................................................................................7
Section 3.2................................................................INCORPORATION BY REFERENCE
....................................................................................................7
Section 3.3.................................................................................INSURANCE
....................................................................................................7
Section 3.4...................................................................MAINTENANCE OF PROPERTY
....................................................................................................7
Section 3.5.....................................................................................WASTE
....................................................................................................7
Section 3.6...........................................................PAYMENT FOR LABOR AND MATERIALS
....................................................................................................7
Section 3.7...........................................................PERFORMANCE OF OTHER AGREEMENTS
....................................................................................................8
Section 3.8.....................................................CHANGE OF NAME, IDENTITY OR STRUCTURE
....................................................................................................8
Article 4 - OBLIGATIONS AND RELIANCES
Section 4.1.......................................................RELATIONSHIP OF BORROWER AND LENDER
....................................................................................................8
Section 4.2.....................................................................NO RELIANCE ON LENDER
....................................................................................................8
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Section 4.3.....................................................................NO LENDER OBLIGATIONS
....................................................................................................8
Section 4.4..................................................................................RELIANCE
....................................................................................................9
Article 5 - FURTHER ASSURANCES
Section 5.1.....................................................RECORDING OF SECURITY INSTRUMENT, ETC
....................................................................................................9
Section 5.2.........................................................................FURTHER ACTS, ETC
....................................................................................................9
Section 5.3...................................CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS
...................................................................................................10
Section 5.4.....................................................................SPLITTING OF MORTGAGE
...................................................................................................10
Section 5.5.....................................................................REPLACEMENT DOCUMENTS
...................................................................................................10
Article 6 - DUE ON SALE/ENCUMBRANCE
Section 6.1...........................................................................LENDER RELIANCE
...................................................................................................11
Section 6.2.......................................................................NO SALE/ENCUMBRANCE
...................................................................................................11
Section 6.3..................................................................SALE/ENCUMBRANCE Defined
...................................................................................................11
Section 6.4...........................................................................LENDER'S RIGHTS
...................................................................................................11
Article 7 - RIGHTS AND REMEDIES UPON DEFAULT
Section 7.1..................................................................................REMEDIES
...................................................................................................14
Section 7.2...................................................................APPLICATION OF PROCEEDS
...................................................................................................17
Section 7.3....................................................................RIGHT TO CURE DEFAULTS
...................................................................................................17
Section 7.4...................................................................ACTIONS AND PROCEEDINGS
...................................................................................................18
Section 7.5......................................................RECOVERY OF SUMS REQUIRED TO BE PAID
...................................................................................................18
Section 7.6..........................................................EXAMINATION OF BOOKS AND RECORDS
...................................................................................................18
Section 7.7.........................................................................OTHER RIGHTS, ETC
...................................................................................................18
TABLE OF CONTENTS
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Section 7.8..............................................RIGHT TO RELEASE ANY PORTION OF THE PROPERTY
...................................................................................................19
Section 7.9.........................................................................VIOLATION OF LAWS
...................................................................................................19
Section 7.10..........................................................RECOURSE AND CHOICE OF REMEDIES
...................................................................................................19
Section 7.11...........................................................................RIGHT OF ENTRY
...................................................................................................20
Article 8 - ENVIRONMENTAL HAZARDS
Section 8.1..............................................ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES
...................................................................................................20
Section 8.2...................................................................ENVIRONMENTAL COVENANTS
...................................................................................................21
Section 8.3...........................................................................LENDER'S RIGHTS
...................................................................................................22
Article 9 - INDEMNIFICATION
Section 9.1...................................................................GENERAL INDEMNIFICATION
...................................................................................................23
Section 9.2............................................................MORTGAGE AND/OR INTANGIBLE TAX
...................................................................................................24
Section 9.3.....................................................................ERISA INDEMNIFICATION
...................................................................................................24
Section 9.4.............................................................ENVIRONMENTAL INDEMNIFICATION
...................................................................................................24
Section 9.5...............................DUTY TO DEFEND; ATTORNEYS' FEES AND OTHER FEES AND EXPENSES
...................................................................................................25
Article 10 - WAIVERS
Section 10.1...................................................................WAIVER OF COUNTERCLAIM
...................................................................................................26
Section 10.2............................................................MARSHALLING AND OTHER MATTERS
...................................................................................................26
Section 10.3.........................................................................WAIVER OF NOTICE
...................................................................................................26
Section 10.4.........................................................WAIVER OF STATUTE OF LIMITATIONS
...................................................................................................26
Section 10.5.................................................................................SURVIVAL
...................................................................................................26
Article 11 - EXCULPATION
Article 12 - NOTICES
Article 13 - APPLICABLE LAW
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Section 13.1............................................................................GOVERNING LAW
...................................................................................................27
Section 13.2...............................................................................USURY LAWS
...................................................................................................29
Section 13.3.....................................................PROVISIONS SUBJECT TO APPLICABLE LAW
...................................................................................................29
Article 14 - DEFINITIONS
Article 15 - MISCELLANEOUS PROVISIONS
Section 15.1...........................................................................NO ORAL CHANGE
...................................................................................................29
Section 15.2...................................................................SUCCESSORS AND ASSIGNS
...................................................................................................29
Section 15.3..................................................................INAPPLICABLE PROVISIONS
...................................................................................................30
Section 15.4............................................................................HEADINGS, ETC
...................................................................................................30
Section 15.5........................................................................NUMBER AND GENDER
...................................................................................................30
Section 15.6..............................................................................SUBROGATION
...................................................................................................30
Section 15.7.........................................................................ENTIRE AGREEMENT
...................................................................................................30
Section 15.8....................................................LIMITATION ON LENDER'S RESPONSIBILITY
...................................................................................................30
Article 16 - INTENTIONALLY DELETED
Article 17 - STATE-SPECIFIC PROVISIONS
Section 17.1...............................................................PRINCIPALS OF CONSTRUCTION
...................................................................................................31
Section 17.2...............................................OPEN-END MORTGAGE MAXIMUM PRINCIPAL AMOUNT
...................................................................................................31
Section 17.3............................................................................OHIO REMEDIES
...................................................................................................31
OPEN-END MORTGAGE AND SECURITY AGREEMENT
THIS OPEN-END MORTGAGE AND SECURITY AGREEMENT IN THE MAXIMUM AMOUNT OF
$8,575,000 (this "SECURITY INSTRUMENT") is made as of this ___ day of April,
2001, by RIVER VALLEY VENTURE, LLC, a Delaware limited liability company, having
its principal place of business at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000,
as grantor ("BORROWER") to XXXXXX BROTHERS BANK, FSB, a federal stock savings
bank, having an address at Three World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as beneficiary ("LENDER").
W I T N E S S E T H:
WHEREAS, this Security Instrument is given to secure a loan (the "LOAN") in the
principal sum of EIGHT MILLION five HUNDRED SEVENTY FIVE THOUSAND AND 00/100
Dollars ($8,575,000) or so much thereof as may be advanced pursuant to that
certain Loan Agreement dated as of the date hereof between Borrower and Lender
(as the same may be amended, restated, replaced, supplemented or otherwise
modified from time to time, the "LOAN AGREEMENT") and evidenced by that certain
Promissory Note dated the date hereof made by Borrower to Lender (such Note,
together with all extensions, renewals, replacements, restatements or
modifications thereof being hereinafter referred to as the "NOTE"); and
WHEREAS, the maturity date of the Note is May 11, 2011; and
WHEREAS, Borrower desires to secure the payment of the Debt (as defined in the
Loan Agreement) and the performance of all of its obligations under the Note,
the Loan Agreement and the other Loan Documents; and
WHEREAS, this Security Instrument is given pursuant to the Loan Agreement, and
payment, fulfillment, and performance by Borrower of its obligations thereunder
and under the other Loan Documents are secured hereby, and each and every term
and provision of the Loan Agreement and the Note, including the rights,
remedies, obligations, covenants, conditions, agreements, indemnities,
representations and warranties of the parties therein, are hereby incorporated
by reference herein as though set forth in full and shall be considered a part
of this Security Instrument (the Loan Agreement, the Note, this Security
Instrument, that certain Assignment of Leases and Rents of even date herewith
made by Borrower in favor of Lender (the "ASSIGNMENT OF LEASES") and all other
documents evidencing or securing the Debt are hereinafter referred to
collectively as the "LOAN DOCUMENTS").
NOW THEREFORE, in consideration of the making of the Loan by Lender and the
covenants, agreements, representations and warranties set forth in this Security
Instrument:
- GRANTS OF SECURITY
PROPERTY MORTGAGED. Borrower does hereby irrevocably mortgage, grant, bargain,
sell, pledge, assign, warrant, transfer and convey to Lender, the following
property, rights, interests and estates now owned, or hereafter acquired by
Borrower (collectively, the "PROPERTY"):
LAND. The real property described in EXHIBIT A attached hereto and made a part
hereof (the "LAND");
ADDITIONAL LAND. All xxxxxxxxxx xxxxx, xxxxxxx and development rights hereafter
acquired by Borrower for use in connection with the Land and the development of
the Land and all additional lands and estates therein which may, from time to
time, by supplemental mortgage or otherwise be expressly made subject to the
lien of this Security Instrument;
IMPROVEMENTS. The buildings, structures, fixtures, additions, enlargements,
extensions, modifications, repairs, replacements and improvements now or
hereafter erected or located on the Land (collectively, the "IMPROVEMENTS");
EASEMENTS. All easements, rights-of-way or use, rights, strips and gores of
land, streets, ways, alleys, passages, sewer rights, water, water courses, water
rights and powers, air rights and development rights, and all estates, rights,
titles, interests, privileges, liberties, servitudes, tenements, hereditaments
and appurtenances of any nature whatsoever, in any way now or hereafter
belonging, relating or pertaining to the Land and the Improvements and the
reversion and reversions, remainder and remainders, and all land lying in the
bed of any street, road or avenue, opened or proposed, in front of or adjoining
the Land, to the center line thereof and all the estates, rights, titles,
interests, dower and rights of dower, curtesy and rights of curtesy, property,
possession, claim and demand whatsoever, both at law and in equity, of Borrower
of, in and to the Land and the Improvements and every part and parcel thereof,
with the appurtenances thereto;
EQUIPMENT. All "equipment," as such term is defined in Article 9 of the Uniform
Commercial Code, now owned or hereafter acquired by Borrower, which is used at
or in connection with the Improvements or the Land or is located thereon or
therein (including, but not limited to, all machinery, equipment, furnishings,
and electronic data-processing and other office equipment now owned or hereafter
acquired by Borrower and any and all additions, substitutions and replacements
of any of the foregoing), together with all attachments, components, parts,
equipment and accessories installed thereon or affixed thereto (collectively,
the "EQUIPMENT"). Notwithstanding the foregoing, Equipment shall not include any
property belonging to tenants under leases except to the extent that Borrower
shall have any right or interest therein;
FIXTURES. All Equipment now owned, or the ownership of which is hereafter
acquired, by Borrower which is so related to the Land and Improvements forming
part of the Property that it is deemed fixtures or real property under the law
of the particular state in which the Equipment is located, including, without
limitation, all building or construction materials intended for construction,
reconstruction, alteration or repair of or installation on the Property,
construction equipment, appliances, machinery, plant equipment, fittings,
apparatuses, fixtures and other
items now or hereafter attached to, installed in or used in connection with
(temporarily or permanently) any of the Improvements or the Land, including, but
not limited to, engines, devices for the operation of pumps, pipes, plumbing,
cleaning, call and sprinkler systems, fire extinguishing apparatuses and
equipment, heating, ventilating, plumbing, laundry, incinerating, electrical,
air conditioning and air cooling equipment and systems, gas and electric
machinery, appurtenances and equipment, pollution control equipment, security
systems, disposals, dishwashers, refrigerators and ranges, recreational
equipment and facilities of all kinds, and water, gas, electrical, storm and
sanitary sewer facilities, utility lines and equipment (whether owned
individually or jointly with others, and, if owned jointly, to the extent of
Borrower's interest therein) and all other utilities whether or not situated in
easements, all water tanks, water supply, water power sites, fuel stations, fuel
tanks, fuel supply, and all other structures, together with all accessions,
appurtenances, additions, replacements, betterments and substitutions for any of
the foregoing and the proceeds thereof (collectively, the "FIXTURES").
Notwithstanding the foregoing, "Fixtures" shall not include any property which
tenants are entitled to remove pursuant to leases except to the extent that
Borrower shall have any right or interest therein;
PERSONAL PROPERTY. All furniture, furnishings, objects of art, machinery, goods,
tools, supplies, appliances, general intangibles, contract rights, accounts,
accounts receivable, franchises, licenses, certificates and permits, and all
other personal property of any kind or character whatsoever (as defined in and
subject to the provisions of the Uniform Commercial Code as hereinafter
defined), other than Fixtures, which are now or hereafter owned by Borrower and
which are located within or about the Land and the Improvements, together with
all accessories, replacements and substitutions thereto or therefor and the
proceeds thereof (collectively, the "PERSONAL PROPERTY"), and the right, title
and interest of Borrower in and to any of the Personal Property which may be
subject to any security interests, as defined in the Uniform Commercial Code, as
adopted and enacted by the state or states where any of the Property is located
(the "UNIFORM COMMERCIAL CODE"), superior in lien to the lien of this Security
Instrument and all proceeds and products of the above;
LEASES AND RENTS. All leases and other agreements affecting the use, enjoyment
or occupancy of the Land and the Improvements heretofore or hereafter entered
into, whether before or after the filing by or against Borrower of any petition
for relief under 11 U.S.C. section 101 et seq., as the same may be amended from
time to time (the "BANKRUPTCY CODE") (collectively, the "LEASES") and all right,
title and interest of Borrower, its successors and assigns therein and
thereunder, including, without limitation, cash or securities deposited
thereunder to secure the performance by the lessees of their obligations
thereunder and all rents, additional rents, revenues, issues and profits
(including all oil and gas or other mineral royalties and bonuses) from the Land
and the Improvements whether paid or accruing before or after the filing by or
against Borrower of any petition for relief under the Bankruptcy Code
(collectively, the "RENTS") and all proceeds from the sale or other disposition
of the Leases and the right to receive and apply the Rents to the payment of the
Debt;
CONDEMNATION AWARDS. All awards or payments, including interest thereon, which
may heretofore and hereafter be made with respect to the Property, whether from
the exercise of the right of eminent domain (including but not limited to any
transfer made in lieu of or in
anticipation of the exercise of the right), or for a change of grade, or for any
other injury to or decrease in the value of the Property;
INSURANCE PROCEEDS. All proceeds in respect of the Property under any insurance
policies covering the Property, including, without limitation, the right to
receive and apply the proceeds of any insurance, judgments, or settlements made
in lieu thereof, for damage to the Property;
TAX CERTIORARI. All refunds, rebates or credits in connection with reduction in
real estate taxes and assessments charged against the Property as a result of
tax certiorari or any applications or proceedings for reduction;
CONVERSION. All proceeds of the conversion, voluntary or involuntary, of any of
the foregoing including, without limitation, proceeds of insurance and
condemnation awards, into cash or liquidation claims;
RIGHTS. The right, in the name and on behalf of Borrower, to appear in and
defend any action or proceeding brought with respect to the Property and to
commence any action or proceeding to protect the interest of Lender in the
Property;
AGREEMENTS. All agreements, contracts, certificates, instruments, franchises,
permits, licenses, plans, specifications and other documents, now or hereafter
entered into, and all rights therein and thereto, respecting or pertaining to
the use, occupation, construction, management or operation of the Land and any
part thereof and any Improvements or respecting any business or activity
conducted on the Land and any part thereof and all right, title and interest of
Borrower therein and thereunder, including, without limitation, the right, upon
the happening of any default hereunder, to receive and collect any sums payable
to Borrower thereunder;
TRADEMARKS. All tradenames, trademarks, servicemarks, logos, copyrights,
goodwill, books and records and all other general intangibles relating to or
used in connection with the operation of the Property;
OTHER RIGHTS. Any and all other rights of Borrower in and to the items set forth
in Subsections (a) through (o) above.
AND without limiting any of the other provisions of this Security Instrument, to
the extent permitted by applicable law, Borrower expressly grants to Lender, as
secured party, a security interest in the portion of the Property which is or
may be subject to the provisions of the Uniform Commercial Code which are
applicable to secured transactions; it being understood and agreed that the
Improvements and Fixtures are part and parcel of the Land (the Land, the
Improvements and the Fixtures collectively referred to as the "REAL PROPERTY")
appropriated to the use thereof and, whether affixed or annexed to the Real
Property or not, shall for the purposes of this Security Instrument be deemed
conclusively to be real estate and conveyed hereby.
ASSIGNMENT OF RENTS. Borrower hereby absolutely and unconditionally assigns to
Lender all of Borrower's right, title and interest in and to all current and
future Leases and Rents; it being intended by Borrower that this assignment
constitutes a present, absolute assignment and not an
assignment for additional security only. Nevertheless, subject to the terms of
the Assignment of Leases and Section 7.1(h) of this Security Instrument, Lender
grants to Borrower a revocable license to collect, receive, use and enjoy the
Rents. Borrower shall hold the Rents, or a portion thereof sufficient to
discharge all current sums due on the Debt, for use in the payment of such sums.
SECURITY AGREEMENT. This Security Instrument is both a real property deed of
trust and a "security agreement" within the meaning of the Uniform Commercial
Code. The Property includes both real and personal property and all other rights
and interests, whether tangible or intangible in nature, of Borrower in the
Property. By executing and delivering this Security Instrument, Borrower hereby
grants to Lender, as security for the Obligations (hereinafter defined), a
security interest in the Fixtures, the Equipment and the Personal Property to
the full extent that the Fixtures, the Equipment and the Personal Property may
be subject to the Uniform Commercial Code (said portion of the Property so
subject to the Uniform Commercial Code being called the "COLLATERAL"). If an
Event of Default shall occur and be continuing, Lender, in addition to any other
rights and remedies which it may have, shall have and may exercise immediately
and without demand, any and all rights and remedies granted to a secured party
upon default under the Uniform Commercial Code, including, without limiting the
generality of the foregoing, the right to take possession of the Collateral or
any part thereof, and to take such other measures as Lender may deem necessary
for the care, protection and preservation of the Collateral. Upon request or
demand of Lender after the occurrence and during the continuance of an Event of
Default, Borrower shall, at its expense, assemble the Collateral and make it
available to Lender at a convenient place (at the Land if tangible property)
reasonably acceptable to Lender. Borrower shall pay to Lender on demand any and
all expenses, including reasonable legal expenses and attorneys' fees, incurred
or paid by Lender in protecting its interest in the Collateral and in enforcing
its rights hereunder with respect to the Collateral after the occurrence and
during the continuance of an Event of Default. Any notice of sale, disposition
or other intended action by Lender with respect to the Collateral sent to
Borrower in accordance with the provisions hereof at least ten (10) business
days prior to such action, shall, except as otherwise provided by applicable
law, constitute reasonable notice to Borrower. The proceeds of any disposition
of the Collateral, or any part thereof, may, except as otherwise required by
applicable law, be applied by Lender to the payment of the Debt in such priority
and proportions as Lender in its discretion shall deem proper. Borrower's
(Debtor's) principal place of business is as set forth on page one hereof and
the address of Lender (Secured Party) is as set forth on page one hereof.
FIXTURE FILING. Certain of the Property is or will become "fixtures" (as that
term is defined in the Uniform Commercial Code) on the Land, described or
referred to in this Security Instrument, and this Security Instrument, upon
being filed for record in the real estate records of the city or county wherein
such fixtures are situated, shall operate also as a financing statement naming
Borrower as the Debtor and Lender as the Secured Party filed as a fixture filing
in accordance with the applicable provisions of said Uniform Commercial Code
upon such of the Property that is or may become fixtures.
PLEDGES OF MONIES HELD. Borrower hereby pledges to Lender any and all monies now
or hereafter held by Lender or on behalf of Lender, including, without
limitation, any sums
deposited in the Clearing Account, the Reserve Funds and Net Proceeds, as
additional security for the Obligations until expended or applied as provided in
this Security Instrument.
CONDITIONS TO GRANT
TO HAVE AND TO HOLD the above granted and described Property unto and to the use
and benefit of Lender and its successors and assigns, forever;
PROVIDED, HOWEVER, these presents are upon the express condition that, if
Borrower shall well and truly pay to Lender the Debt at the time and in the
manner provided in the Note, the Loan Agreement and this Security Instrument,
shall well and truly perform the Other Obligations as set forth in this Security
Instrument and shall well and truly abide by and comply with each and every
covenant and condition set forth herein and in the Note, the Loan Agreement and
the other Loan Documents, these presents and the estate hereby granted shall
cease, terminate and be void; provided, however, that Borrower's obligation to
indemnify and hold harmless Lender pursuant to the provisions hereof shall
survive any such payment or release.
- DEBT AND OBLIGATIONS SECURED
DEBT. This Security Instrument and the grants, assignments and transfers made in
Article 1 are given for the purpose of securing the Debt which by its definition
(as set forth in Loan Agreement) includes, but is not limited to, the
obligations of Borrower to pay to Lender the principal and interest owing
pursuant to the terms and conditions of the Note.
OTHER OBLIGATIONS. This Security Instrument and the grants, assignments and
transfers made in Article 1 are also given for the purpose of securing the
following (the "OTHER OBLIGATIONS"):
the performance of all other obligations of Borrower contained herein;
the performance of each obligation of Borrower contained in the Loan Agreement
and any other Loan Document; and
the performance of each obligation of Borrower contained in any renewal,
extension, amendment, modification, consolidation, change of, or substitution or
replacement for, all or any part of the Note, the Loan Agreement or any other
Loan Document.
A copy of each of the Loan Documents is available for review during
regular business hours at the office of Lender at the address first set forth
above.
DEBT AND OTHER OBLIGATIONS. Borrower's obligations for the payment of the Debt
and the performance of the Other Obligations may sometimes be referred to
collectively herein as the "OBLIGATIONS."
- BORROWER COVENANTS
Borrower covenants and agrees that:
PAYMENT OF DEBT. Borrower will pay the Debt at the time and in the manner
provided in the Loan Agreement, the Note and this Security Instrument.
INCORPORATION BY REFERENCE. All the covenants, conditions and agreements
contained in (a) the Loan Agreement, (b) the Note and (c) all and any of the
other Loan Documents, are hereby made a part of this Security Instrument to the
same extent and with the same force as if fully set forth herein as permitted by
Ohio Revised Code Section 5301.233.
INSURANCE. Borrower shall obtain and maintain, or cause to be maintained, in
full force and effect at all times insurance with respect to Borrower and the
Property as required pursuant to the Loan Agreement.
MAINTENANCE OF PROPERTY. (a) Borrower shall cause the Property to be maintained
in a good and safe condition and repair. The Improvements, the Fixtures, the
Equipment and the Personal Property shall not be removed, demolished or
materially altered (except for normal replacement of the Fixtures, the Equipment
or the Personal Property, tenant finish and refurbishment of the Improvements)
without the consent of Lender. Borrower shall promptly repair, replace or
rebuild any part of the Property which may be destroyed by any casualty, or
become damaged, worn or dilapidated and shall complete and pay for any structure
at any time in the process of construction or repair on the Land.
WASTE. Borrower shall not commit or suffer any waste of the Property or make any
change in the use of the Property which will in any way materially increase the
risk of fire or other hazard arising out of the operation of the Property, or
take any action that might invalidate or allow the cancellation of any Policy,
or do or permit to be done thereon anything that may in any way materially
impair the value of the Property or the security of this Security Instrument.
Borrower will not, without the prior written consent of Lender, permit any
drilling or exploration for or extraction, removal, or production of any
minerals from the surface or the subsurface of the Land, regardless of the depth
thereof or the method of mining or extraction thereof.
PAYMENT FOR LABOR AND MATERIALS. a) Borrower will promptly pay when due all
bills and costs for labor, materials, and specifically fabricated materials
("LABOR AND MATERIAL COSTS") incurred in connection with the Property and never
permit to exist beyond the due date thereof in respect of the Property or any
part thereof any lien or security interest, even though inferior to the liens
and the security interests hereof, and in any event never permit to be created
or exist in respect of the Property or any part thereof any other or additional
lien or security interest other than the liens or security interests hereof
except for the Permitted Encumbrances.
After prior written notice to Lender, Borrower, at its own expense, may contest
by appropriate legal proceeding, promptly initiated and conducted in good faith
and with due diligence, the amount or validity or application in whole or in
part of any of the Labor and Material Costs, provided that (i) no Event of
Default has occurred and is continuing under the Loan Agreement, the Note, this
Security Instrument or any of the other Loan Documents, (ii) Borrower is
permitted to do so under the provisions of any other mortgage, deed of trust or
deed to secure debt affecting the Property, (iii) such proceeding shall suspend
the collection of the Labor and Material Costs from Borrower and from the
Property or Borrower shall have paid all of the
Labor and Material Costs under protest, (iv) such proceeding shall be permitted
under and be conducted in accordance with the provisions of any other instrument
to which Borrower is subject and shall not constitute a default thereunder, (v)
neither the Property nor any part thereof or interest therein will be in danger
of being sold, forfeited, terminated, canceled or lost, and (vi) Borrower shall
have furnished the security as may be required in the proceeding, or as may be
reasonably requested by Lender to insure the payment of any contested Labor and
Material Costs, together with all interest and penalties thereon.
PERFORMANCE OF OTHER AGREEMENTS. Borrower shall observe and perform each and
every term, covenant and provision to be observed or performed by Borrower
pursuant to the Loan Agreement, any other Loan Document and any other agreement
or recorded instrument affecting or pertaining to the Property and any
amendments, modifications or changes thereto.
CHANGE OF NAME, IDENTITY OR STRUCTURE. Borrower shall not change Borrower's
name, identity (including its trade name or names) or, if not an individual,
Borrower's corporate, partnership or other structure without notifying Lender of
such change in writing at least thirty (30) days prior to the effective date of
such change and, in the case of a change in Borrower's structure, without first
obtaining the prior written consent of Lender. Borrower shall execute and
deliver to Lender, prior to or contemporaneously with the effective date of any
such change, any financing statement or financing statement change required by
Lender to establish or maintain the validity, perfection and priority of the
security interest granted herein. At the request of Lender, Borrower shall
execute a certificate in form satisfactory to Lender listing the trade names
under which Borrower intends to operate the Property, and representing and
warranting that Borrower does business under no other trade name with respect to
the Property.
- OBLIGATIONS AND RELIANCES
RELATIONSHIP OF BORROWER AND LENDER. The relationship between Borrower and
Lender is solely that of debtor and creditor, and Lender has no fiduciary or
other special relationship with Borrower, and no term or condition of any of the
Loan Agreement, the Note, this Security Instrument and the other Loan Documents
shall be construed so as to deem the relationship between Borrower and Lender to
be other than that of debtor and creditor.
NO RELIANCE ON LENDER. The general partners, members, principals and (if
Borrower is a trust) beneficial owners of Borrower are experienced in the
ownership and operation of properties similar to the Property, and Borrower and
Lender are relying solely upon such expertise and business plan in connection
with the ownership and operation of the Property. Borrower is not relying on
Lender's expertise, business acumen or advice in connection with the Property.
NO LENDER OBLIGATIONS. b) Notwithstanding the provisions of SUBSECTIONS 1.1(h)
AND (n) or SECTION 1.2, Lender is not undertaking the performance of (i) any
obligations under the Leases; or (ii) any obligations with respect to such
agreements, contracts, certificates, instruments, franchises, permits,
trademarks, licenses and other documents.
By accepting or approving anything required to be observed, performed or
fulfilled or to be given to Lender pursuant to this Security Instrument, the
Loan Agreement, the Note or the other
Loan Documents, including, without limitation, any officer's certificate,
balance sheet, statement of profit and loss or other financial statement,
survey, appraisal, or insurance policy, Lender shall not be deemed to have
warranted, consented to, or affirmed the sufficiency, the legality or
effectiveness of same, and such acceptance or approval thereof shall not
constitute any warranty or affirmation with respect thereto by Lender.
RELIANCE. Borrower recognizes and acknowledges that in accepting the Loan
Agreement, the Note, this Security Instrument and the other Loan Documents,
Lender is expressly and primarily relying on the truth and accuracy of the
warranties and representations set forth in Section 4.1 of the Loan Agreement
without any obligation to investigate the Property and notwithstanding any
investigation of the Property by Lender; that such reliance existed on the part
of Lender prior to the date hereof, that the warranties and representations are
a material inducement to Lender in making the Loan; and that Lender would not be
willing to make the Loan and accept this Security Instrument in the absence of
the warranties and representations as set forth in Section 4.1 of the Loan
Agreement.
- FURTHER ASSURANCES
RECORDING OF SECURITY INSTRUMENT, ETC. Borrower forthwith upon the execution and
delivery of this Security Instrument and thereafter, from time to time, will
cause this Security Instrument and any of the other Loan Documents creating a
lien or security interest or evidencing the lien hereof upon the Property and
each instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice of and fully to protect and perfect the lien or security
interest hereof upon, and the interest of Lender in, the Property. Borrower will
pay all taxes, filing, registration or recording fees, and all expenses incident
to the preparation, execution, acknowledgment and/or recording of the Note, this
Security Instrument, the other Loan Documents, any note, deed of trust or
mortgage supplemental hereto, any security instrument with respect to the
Property and any instrument of further assurance, and any modification or
amendment of the foregoing documents, and all federal, state, county and
municipal taxes, duties, imposts, assessments and charges arising out of or in
connection with the execution and delivery of this Security Instrument, any deed
of trust or mortgage supplemental hereto, any security instrument with respect
to the Property or any instrument of further assurance, and any modification or
amendment of the foregoing documents, except where prohibited by law so to do.
FURTHER ACTS, ETC. Borrower will, at the cost of Borrower, and without expense
to Lender, do, execute, acknowledge and deliver all and every such further acts,
deeds, conveyances, deeds of trust, assignments, notices of assignments,
transfers and assurances as Lender shall, from time to time, reasonably require,
for the better assuring, conveying, assigning, transferring, and confirming unto
Lender the property and rights hereby deeded, granted, bargained, sold,
conveyed, confirmed, pledged, assigned, warranted and transferred or intended
now or hereafter so to be, or which Borrower may be or may hereafter become
bound to convey or assign to Lender, or for carrying out the intention or
facilitating the performance of the terms of this Security Instrument or for
filing, registering or recording this Security Instrument, or for complying with
all Legal Requirements. Borrower, on demand, will execute and deliver, and in
the event it shall fail to so execute and deliver, hereby authorizes Lender to
execute in the name of Borrower or without the signature of Borrower to the
extent Lender may lawfully do so, one or more financing statements to evidence
more effectively the security interest of Lender in the Property. Borrower
grants to Lender an irrevocable power of attorney coupled with an interest for
the purpose of exercising and perfecting any and all rights and remedies
available to Lender at law and in equity, including without limitation such
rights and remedies available to Lender pursuant to this SECTION 5.2. Nothing
contained in this SECTION 5.2 shall be deemed to create an obligation on the
part of Borrower to pay any costs and expenses incurred by Lender in connection
with the Securitization or other sale or transfer of the Loan.
CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS. c) If any law is
enacted or adopted or amended after the date of this Security Instrument which
deducts the Debt from the value of the Property for the purpose of taxation or
which imposes a tax, either directly or indirectly, on the Debt or Lender's
interest in the Property, Borrower will pay the tax, with interest and penalties
thereon, if any. If Lender is advised by counsel chosen by it that the payment
of tax by Borrower would be unlawful or taxable to Lender or unenforceable or
provide the basis for a defense of usury then Lender shall have the option by
written notice of not less than one hundred twenty (120) days to declare the
Debt immediately due and payable.
Borrower will not claim or demand or be entitled to any credit or credits on
account of the Debt for any part of the Taxes or Other Charges assessed against
the Property, or any part thereof, and no deduction shall otherwise be made or
claimed from the assessed value of the Property, or any part thereof, for real
estate tax purposes by reason of this Security Instrument or the Debt. If such
claim, credit or deduction shall be required by law, Lender shall have the
option, by written notice of not less than one hundred twenty (120) days, to
declare the Debt immediately due and payable.
If at any time the United States of America, any State thereof or any
subdivision of any such State shall require revenue or other stamps to be
affixed to the Note, this Security Instrument, or any of the other Loan
Documents or impose any other tax or charge on the same, Borrower will pay for
the same, with interest and penalties thereon, if any.
SPLITTING OF MORTGAGE. This Security Instrument and the Note shall, at any time
until the same shall be fully paid and satisfied, at the sole election of
Lender, be split or divided into two or more notes and two or more security
instruments, each of which shall cover all or a portion of the Property to be
more particularly described therein. To that end, Borrower, upon written request
of Lender, shall execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered by the then owner of the Property, to Lender and/or
its designee or designees substitute notes and security instruments in such
principal amounts, aggregating not more than the then unpaid principal amount of
this Security Instrument, and containing terms, provisions and clauses similar
to those contained herein and in the Note, and such other documents and
instruments as may be required by Lender.
REPLACEMENT DOCUMENTS. Upon receipt of an affidavit of an officer of Lender as
to the loss, theft, destruction or mutilation of the Note or any other Loan
Document which is not of public record, and, in the case of any such mutilation,
upon surrender and cancellation of such Note or
other Loan Document, Borrower will issue, in lieu thereof, a replacement Note or
other Loan Document, dated the date of such lost, stolen, destroyed or mutilated
Note or other Loan Document in the same principal amount thereof and otherwise
of like tenor.
- DUE ON SALE/ENCUMBRANCE
LENDER RELIANCE. Borrower acknowledges that Lender has examined and relied on
the experience of Borrower and its general partners, members, principals and (if
Borrower is a trust) beneficial owners in owning and operating properties such
as the Property in agreeing to make the Loan, and will continue to rely on
Borrower's ownership of the Property as a means of maintaining the value of the
Property as security for repayment of the Debt and the performance of the Other
Obligations. Borrower acknowledges that Lender has a valid interest in
maintaining the value of the Property so as to ensure that, should Borrower
default in the repayment of the Debt or the performance of the Other
Obligations, Lender can recover the Debt by a sale of the Property.
NO SALE/ENCUMBRANCE. Borrower agrees that Borrower shall not, without the prior
written consent of Lender, sell, convey, mortgage, grant, bargain, encumber,
pledge, assign, or otherwise transfer the Property or any part thereof or permit
the Property or any part thereof to be sold, conveyed, mortgaged, granted,
bargained, encumbered, pledged, assigned, or otherwise transferred, unless
Lender shall consent thereto in accordance with SECTION 6.4 hereof.
SALE/ENCUMBRANCE DEFINED. A sale, conveyance, mortgage, grant, bargain,
encumbrance, pledge, assignment, or transfer within the meaning of this Article
6 shall be deemed to include, but not be limited to, (a) an installment sales
agreement wherein Borrower agrees to sell the Property or any part thereof for a
price to be paid in installments; (b) an agreement by Borrower leasing all or a
substantial part of the 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, Borrower's right, title and interest in and to any Leases
or any Rents; (c) the voluntary or involuntary sale, conveyance, transfer or
pledge of the stock of the general partner of Borrower (or the stock of any
corporation directly or indirectly controlling such general partner by operation
of law or otherwise) or the creation or issuance of new stock by which an
aggregate of more than ten percent (10%) of such general partner's stock shall
be vested in a party or parties who are not now stockholders; (d) the voluntary
or involuntary sale, conveyance, transfer or pledge of any general or limited
partnership interest in Borrower; (e) if Borrower, any general partner of
Borrower, any guarantor or any indemnitor is a limited liability company, the
change, removal or resignation of a member or managing member or the transfer or
pledge of the interest of any member or managing member or any profits or
proceeds relating to such interest; or (f) any other transfer prohibited by the
terms of the Loan Agreement.
LENDER'S RIGHTS. Lender reserves the right to condition the consent required
hereunder upon (a) a modification of the terms hereof and of the Loan Agreement,
the Note or the other Loan Documents; (b) an assumption of the Loan Agreement,
the Note, this Security Instrument and the other Loan Documents as so modified
by the proposed transferee, subject to the provisions of Section 9.4 of the Loan
Agreement; (c) payment of all of Lender's reasonable expenses incurred in
connection with such transfer; (d) the confirmation in writing by the applicable
Rating
Agencies that the proposed transfer will not, in and of itself, result in a
downgrade, qualification or withdrawal of the initial, or, if higher, then
current ratings assigned in connection with any Securitization; (e) the delivery
of a nonconsolidation opinion reflecting the proposed transfer satisfactory in
form and substance to Lender; (f) the proposed transferee's continued compliance
with the representations and covenants set forth in Section 4.1.30 and 5.2.14 of
the Loan Agreement; (g) the delivery of evidence satisfactory to Lender that the
single purpose nature and bankruptcy remoteness of Borrower, its shareholders,
partners or members, as the case may be, following such transfers are in
accordance with the standards of the Rating Agencies; (h) the proposed
transferee's ability to satisfy Lender's then-current underwriting standards;
(i) payment of a transfer fee to Lender equal to 1% of the outstanding principal
balance of the Loan at the time of such transfer; or (j) such other conditions
as Lender shall determine in its reasonable discretion to be in the interest of
Lender, including, without limitation, the creditworthiness, reputation and
qualifications of the transferee with respect to the Loan and the Property.
Lender 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 Borrower's sale, conveyance, mortgage, grant,
bargain, encumbrance, pledge, assignment, or transfer of the Property without
Lender's consent. This provision shall apply to every sale, conveyance,
mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer of the
Property regardless of whether voluntary or not, or whether or not Lender has
consented to any previous sale, conveyance, mortgage, grant, bargain,
encumbrance, pledge, assignment, or transfer of the Property.
Notwithstanding anything to the contrary contained in this Article 6, and in
addition to the transfers permitted hereunder, following the sale of the Loan in
a securitization, Lender's consent to a sale, assignment, or other transfer of
the Property shall not be withheld provided that Lender receives sixty (60) days
prior written notice of such transfer hereunder and no Event of Default has
occurred and is continuing, and further provided that, the following additional
requirements are satisfied:
Borrower shall pay Lender a transfer fee equal to 1% of the outstanding
principal balance of the Loan at the time of such transfer;
Borrower shall pay any and all out-of-pocket costs incurred in connection with
the transfer of the Property (including, without limitation, Lender's counsel
fees and disbursements and all recording fees, title insurance premiums and
mortgage and intangible taxes and the fees and expenses of the Rating Agencies
pursuant to clause (x) below);
The proposed transferee (the "Transferee") or Transferee's Principals
(hereinafter defined) must have demonstrated expertise in owning and operating
properties similar in location, size and operation to the Property, which
expertise shall be reasonably determined by Lender. The term "Transferee's
Principals" shall include Transferee's (A) managing members, general partners or
principal shareholders and (B) such other members, partners or shareholders
which directly or indirectly shall own a 15% or greater interest in Transferee;
Transferee and Transferee's Principals shall, as of the date of such transfer,
have an aggregate net worth and liquidity reasonably acceptable to Lender;
Transferee, Transferee's Principals and all other entities which may be owned or
controlled directly or indirectly by Transferee's Principals ("Related
Entities") must not have been a party to any bankruptcy proceedings, voluntary
or involuntary, made an assignment for the benefit of creditors or taken
advantage of any insolvency act, or any act for the benefit of debtors within
seven (7) years prior to the date of the proposed transfer of the Property;
Transferee shall assume all of the obligations of Borrower under the Loan
Documents in a manner satisfactory to Lender in all respects, including, without
limitation, by entering into an assumption agreement in form and substance
satisfactory to Lender and one or more Transferee's Principals having an
aggregated net worth and liquidity reasonably acceptable to Lender shall execute
in favor of Lender a Guaranty of Recourse Obligations and Environmental
Indemnity Agreement in form acceptable to Lender;
There shall be no material litigation or regulatory action pending or threatened
against Transferee, Transferee's Principals or Related Entities which is not
reasonably acceptable to Lender;
Transferee, Transferee's Principals and Related Entities shall not have
defaulted under its or their obligations with respect to any other indebtedness
in a manner which is not reasonably acceptable to Lender;
No Event of Default or event which, with the giving of notice, passage of time
or both, shall constitute an Event of Default, shall otherwise occur as a result
of such transfer, and Transferee and Transferee's Principals shall deliver (A)
all organization documentation reasonably requested by Lender, which shall be
reasonably satisfactory to Lender, and (B) all certificates, agreements and
covenants reasonably required by Lender; and
Borrower shall deliver, at its sole cost and expense, an endorsement to the
existing title policy insuring the Security Instrument, as modified by the
assumption agreement, as a valid first lien on the Property and naming the
Transferee as owner of the Property, which endorsement shall insure that, as of
the date of the recording of the assumption agreement, the Property shall not be
subject to any additional exceptions or liens other than those contained in the
title policy issued on the date hereof.
In addition to the foregoing, Lender shall have the right to condition the
consent required hereunder upon the confirmation in writing by the applicable
Rating Agencies that the proposed transfer to, and assumption of the Loan by,
the Transferee will not, in and of itself, result in a downgrade, qualification
or withdrawal of the initial, or, if higher, then current ratings assigned in
connection with any Securitization.
Immediately upon a transfer of the Property to such Transferee and the
satisfaction of all of the above requirements, the named Borrower herein shall
be released from all liability under this Security Instrument, the Note and the
other Loan Documents accruing after such transfer. The foregoing release shall
be effective upon the date of such transfer, but Lender agrees to provide
written evidence thereof reasonably requested by Borrower.
- RIGHTS AND REMEDIES UPON DEFAULT
REMEDIES. Upon the occurrence and during the continuance of any Event of
Default, Borrower agrees that Lender may take such action, without notice or
demand, as it deems advisable to protect and enforce its rights against Borrower
and in and to the Property, including, but not limited to, the following
actions, each of which may be pursued concurrently or otherwise, at such time
and in such order as Lender may determine, in their sole discretion, without
impairing or otherwise affecting the other rights and remedies of Lender:
declare the entire unpaid Debt to be immediately due and payable;
institute proceedings, judicial or otherwise, for the complete foreclosure of
this Security Instrument under any applicable provision of law, in which case
the Property or any interest therein may be sold for cash or upon credit in one
or more parcels or in several interests or portions and in any order or manner;
with or without entry, to the extent permitted and pursuant to the procedures
provided by applicable law, institute proceedings for the partial foreclosure of
this Security Instrument for the portion of the Debt then due and payable,
subject to the continuing lien and security interest of this Security Instrument
for the balance of the Debt not then due, unimpaired and without loss of
priority;
sell for cash or upon credit the Property or any part thereof and all estate,
claim, demand, right, title and interest of Borrower therein and rights of
redemption thereof, pursuant to power of sale or otherwise, at one or more
sales, as an entity or in parcels, at such time and place, upon such terms and
after such notice thereof, all as may be required or permitted by law; and,
without limiting the foregoing: In connection with any sale or sales hereunder,
Lender shall be entitled to elect to treat any of the Property which consists of
a right in action or which is property that can be severed from the Real
Property covered hereby or any improvements without causing structural damage
thereto as if the same were personal property, and dispose of the same in
accordance with applicable law, separate and apart from the sale of Real
Property. Where the Property consists of Real Property, Personal Property,
Equipment or Fixtures, whether or not such Personal Property or Equipment is
located on or within the Real Property, Lender shall be entitled to elect to
exercise its rights and remedies against any or all of the Real Property,
Personal Property, Equipment and Fixtures in such order and manner as is now or
hereafter permitted by applicable law;
Lender shall be entitled to elect to proceed against any or all of the Real
Property, Personal Property, Equipment and Fixtures in any manner permitted
under applicable law; and if Lender so elects pursuant to applicable law, the
power of sale herein granted shall be exercisable with respect to all or any of
the Real Property, Personal Property, Equipment and Fixtures covered hereby, as
designated by Lender, and Lender is hereby authorized and empowered to conduct
any such sale of any Real Property, Personal Property, Equipment and Fixtures in
accordance with the procedures applicable to Real Property;
Should Lender elect to sell any portion of the Property which is Real Property
or which is Personal Property, Equipment or Fixtures that the Lender has elected
under applicable law to sell together with Real Property in accordance with the
laws governing a sale of Real Property, Lender shall give such notice of Event
of Default, if any, and election to sell as may then be required by law.
Thereafter, upon the expiration of such time and the giving of such notice of
sale as may then be required by law, and without the necessity of any demand on
Borrower, Lender at the time and place specified in the notice of sale, shall
sell such Real Property or part thereof at public auction to the highest bidder
for cash in lawful money of the United States. Lender may from time to time
postpone any sale hereunder by public announcement thereof at the time and place
noticed therefor;
If the Property consists of several lots, parcels or items of property, Lender
shall, subject to applicable law, (A) designate the order in which such lots,
parcels or items shall be offered for sale or sold, or (B) elect to sell such
lots, parcels or items through a single sale, or through two or more successive
sales, or in any other manner Lender designates. Any Person, including Borrower
or Lender, may purchase at any sale hereunder. Should Lender desire that more
than one sale or other disposition of the Property be conducted, Lender shall,
subject to applicable law, cause such sales or dispositions to be conducted
simultaneously, or successively, on the same day, or at such different days or
times and in such order as Lender may designate, and no such sale shall
terminate or otherwise affect the lien of this Security Instrument on any part
of the Property not sold until all the Debt has been paid in full. In the event
Lender elects to dispose of the Property through more than one sale, except as
otherwise provided by applicable law, Borrower agrees to pay the costs and
expenses of each such sale and of any judicial proceedings wherein such sale may
be made;
institute an action, suit or proceeding in equity for the specific performance
of any covenant, condition or agreement contained herein, in the Note, the Loan
Agreement or in the other Loan Documents;
recover judgment on the Note either before, during or after any proceedings for
the enforcement of this Security Instrument or the other Loan Documents;
apply for the appointment of a receiver, trustee, liquidator or conservator of
the Property, without notice and without regard for the adequacy of the security
for the Debt and without regard for the solvency of Borrower, any guarantor,
indemnitor with respect to the Loan or of any Person, liable for the payment of
the Debt;
the license granted to Borrower under SECTION 1.2 hereof shall automatically be
revoked and Lender may enter into or upon the Property, either personally or by
its agents, nominees or attorneys and dispossess Borrower and its agents and
servants therefrom, without liability for trespass, damages or otherwise and
exclude Borrower and its agents or servants wholly therefrom, and take
possession of all books, records and accounts relating thereto and Borrower
agrees to surrender possession of the Property and of such books, records and
accounts to Lender upon demand, and thereupon Lender may (i) use, operate,
manage, control, insure, maintain, repair, restore and otherwise deal with all
and every part of the Property and conduct the business thereat; (ii) complete
any construction on the Property in such manner and form as
Lender deems advisable; (iii) make alterations, additions, renewals,
replacements and improvements to or on the Property; (iv) exercise all rights
and powers of Borrower with respect to the Property, whether in the name of
Borrower or otherwise, including, without limitation, the right to make, cancel,
enforce or modify Leases, obtain and evict tenants, and demand, xxx for, collect
and receive all Rents of the Property and every part thereof; (v) require
Borrower to pay monthly in advance to Lender, or any receiver appointed to
collect the Rents, the fair and reasonable rental value for the use and
occupation of such part of the Property as may be occupied by Borrower; (vi)
require Borrower to vacate and surrender possession of the Property to Lender or
to such receiver and, in default thereof, Borrower may be evicted by summary
proceedings or otherwise; and (vii) apply the receipts from the Property to the
payment of the Debt, in such order, priority and proportions as Lender shall
deem appropriate in its sole discretion after deducting therefrom all expenses
(including reasonable attorneys' fees) incurred in connection with the aforesaid
operations and all amounts necessary to pay the Taxes, Other Charges, insurance
and other expenses in connection with the Property, as well as just and
reasonable compensation for the services of Lender, its counsel, agents and
employees;
exercise 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: (i) the right to take possession of the Fixtures, the Equipment,
the Personal Property or any part thereof, and to take such other measures as
Lender may deem necessary for the care, protection and preservation of the
Fixtures, the Equipment, the Personal Property, and (ii) request Borrower at its
expense to assemble the Fixtures, the Equipment, the Personal Property and make
it available to Lender at a convenient place acceptable to Lender. Any notice of
sale, disposition or other intended action by Lender with respect to the
Fixtures, the Equipment, the Personal Property sent to Borrower in accordance
with the provisions hereof at least ten (10) days prior to such action, shall
constitute commercially reasonable notice to Borrower;
apply any sums then deposited or held in escrow or otherwise by or on behalf of
Lender in accordance with the terms of the Loan Agreement, this Security
Instrument or any other Loan Document to the payment of the following items in
any order in its uncontrolled discretion:
Taxes and Other Charges;
Insurance Premiums;
Interest on the unpaid principal balance of the Note;
Amortization of the unpaid principal balance of the Note;
All other sums payable pursuant to the Note, the Loan Agreement, this Security
Instrument and the other Loan Documents, including without limitation advances
made by Lender pursuant to the terms of this Security Instrument;
pursue such other remedies as Lender may have under applicable law; or
apply the undisbursed balance of any Net Proceeds Deficiency deposit, together
with interest thereon, to the payment of the Debt in such order, priority and
proportions as Lender shall deem to be appropriate in its discretion.
In the event of a sale, by foreclosure, power of sale or otherwise, of
less than all of Property, this Security Instrument shall continue as a lien and
security interest on the remaining portion of the Property unimpaired and
without loss of priority.
Lender reserves the right at any time to subordinate the lien of this
Security Instrument to any one or more of the leases now or in the future
pertaining to any part of the Property upon the unilateral execution and
recording by Lender of said subordination agreement prior to the filing of any
action by Lender to foreclose upon the Property, such subordination agreement to
be effective as of the date of execution of this Security Instrument as to those
leases identified by Lender in such subordination agreement. Notwithstanding the
foregoing, Lender acknowledges that, upon recording, this Security Instrument
shall be subject and subordinate to that certain ground lease between Glimcher
Holdings Limited Partnership, as lessor, and Target Corporation, successor in
interest to Xxxxxx Xxxxxx Corporation, as lessee, dated October 4, 1994, as
memorialized by that certain Short Form of Lease, dated October 4, 1994 and
recorded on November 30, 1994 in Lease Record 85, Page 63 in the Recorder's
Office of Fairfield County, Ohio, as supplemented by that certain Common Area
Agreement, dated October 4, 1994, and as further supplemented by that certain
Acknowledgement, Subordination, Non-Disturbance and Attornment Agreement, dated
October 4, 1994, and recorded on November 30, 1994 in Misc. Volume 85, page 76,
in the Recorder's Office of Fairfield County, Ohio(the "Ground Lease").
APPLICATION OF PROCEEDS. The purchase money, proceeds and avails of any
disposition of the Property, and or any part thereof, or any other sums
collected by Lender pursuant to the Note, this Security Instrument or the other
Loan Documents, may be applied by Lender to the payment of the Debt in such
priority and proportions as Lender in its discretion shall deem proper, to the
extent consistent with law.
RIGHT TO CURE DEFAULTS. Upon the occurrence and during the continuance of any
Event of Default, Lender may remedy such Event of Default in such manner and to
such extent as Lender may deem necessary to protect the security hereof, but
without any obligation to do so and without notice to or demand on Borrower, and
without releasing Borrower from any obligation hereunder. Lender is authorized
to enter upon action or proceeding to the Property for such purposes, or appear
in, defend, or bring any action or proceeding to protect its interest in the
Property or to foreclose this Security Instrument or collect the Debt, and the
cost and expense thereof (including reasonable attorneys' fees to the extent
permitted by law), with interest as provided in this SECTION 7.3, shall
constitute a portion of the Debt and shall be due and payable to Lender upon
demand. All such costs and expenses incurred by Lender in remedying such Event
of Default or such failed payment or act or in appearing in, defending, or
bringing any such action or proceeding shall bear interest at the Default Rate,
for the period after notice from Lender that such cost or expense was incurred
to the date of payment to Lender. All such costs and expenses incurred by Lender
together with interest thereon calculated at the Default Rate shall be deemed to
constitute a portion of the Debt and be secured by this Security Instrument
and the other Loan Documents and shall be immediately due and payable upon
demand by Lender therefor.
ACTIONS AND PROCEEDINGS. Lender has the right to appear in and defend any action
or proceeding brought with respect to the Property and to bring any action or
proceeding, in the name and on behalf of Borrower, which Lender, in its
discretion, decides should be brought to protect its interest in the Property.
RECOVERY OF SUMS REQUIRED TO BE PAID. Lender shall have the right from time to
time to take action to recover any sum or sums which constitute a part of the
Debt as the same become due, without regard to whether or not the balance of the
Debt shall be due, and without prejudice to the right of Lender thereafter to
bring an action of foreclosure, or any other action, for a default or defaults
by Borrower existing at the time such earlier action was commenced.
EXAMINATION OF BOOKS AND RECORDS. At reasonable times and upon reasonable
notice, Lender, its agents, accountants and attorneys shall have the right to
examine the records, books, management and other papers of Borrower which
reflect upon their financial condition, at the Property or at any office
regularly maintained by Borrower where the books and records are located. Lender
and its agents shall have the right to make copies and extracts from the
foregoing records and other papers. In addition, at reasonable times and upon
reasonable notice, Lender, its agents, accountants and attorneys shall have the
right to examine and audit the books and records of Borrower pertaining to the
income, expenses and operation of the Property during reasonable business hours
at any office of Borrower where the books and records are located. This SECTION
7.6 shall apply throughout the term of the Note and without regard to whether an
Event of Default has occurred or is continuing.
OTHER RIGHTS, ETC. d) The failure of Lender to insist upon strict performance of
any term hereof shall not be deemed to be a waiver of any term of this Security
Instrument. Borrower shall not be relieved of Borrower's obligations hereunder
by reason of (i) the failure of Lender to comply with any request of Borrower or
any guarantor or indemnitor with respect to the Loan to take any action to
foreclose this Security Instrument or otherwise enforce any of the provisions
hereof or of the Note or the other Loan Documents, (ii) the release, regardless
of consideration, of the whole or any part of the Property, or of any person
liable for the Debt or any portion thereof, or (iii) any agreement or
stipulation by Lender extending the time of payment or otherwise modifying or
supplementing the terms of the Note, this Security Instrument or the other Loan
Documents.
It is agreed that the risk of loss or damage to the Property is on Borrower, and
Lender shall have no liability whatsoever for decline in value of the Property,
for failure to maintain the Policies, or for failure to determine whether
insurance in force is adequate as to the amount of risks insured. Possession by
Lender shall not be deemed an election of judicial relief, if any such
possession is requested or obtained, with respect to any Property or collateral
not in Lender's possession.
Lender may resort for the payment of the Debt to any other security held by
Lender in such order and manner as Lender, in its discretion, may elect. Lender
may take action to recover the Debt, or any portion thereof, or to enforce any
covenant hereof without prejudice to the right of Lender
thereafter to foreclose this Security Instrument. The rights of Lender under
this Security Instrument shall be separate, distinct and cumulative and none
shall be given effect to the exclusion of the others. No act of Lender shall be
construed as an election to proceed under any one provision herein to the
exclusion of any other provision. Lender shall not be limited exclusively to the
rights and remedies herein stated but shall be entitled to every right and
remedy now or hereafter afforded at law or in equity.
RIGHT TO RELEASE ANY PORTION OF THE PROPERTY. Lender may release any portion of
the Property for such consideration as Lender may require without, as to the
remainder of the Property, in any way impairing or affecting the lien or
priority of this Security Instrument, or improving the position of any
subordinate lienholder with respect thereto, except to the extent that the
obligations hereunder shall have been reduced by the actual monetary
consideration, if any, received by Lender for such release, and may accept by
assignment, pledge or otherwise any other property in place thereof as Lender
may require without being accountable for so doing to any other lienholder. This
Security Instrument shall continue as a lien and security interest in the
remaining portion of the Property.
VIOLATION OF LAWS. If the Property is not in material compliance with Legal
Requirements, Lender may impose additional requirements upon Borrower in
connection herewith including, without limitation, monetary reserves or
financial equivalents.
RECOURSE AND CHOICE OF REMEDIES. Notwithstanding any other provision of this
Security Instrument or the Loan Agreement, including, without limitation,
Section 9.4 of the Loan Agreement, Lender and other Indemnified Parties (as
hereinafter defined) are entitled to enforce the obligations of Borrower, any
guarantor and indemnitor contained in Sections 9.2, 9.3 and 9.4 herein and
Section 9.2 of the Loan Agreement without first resorting to or exhausting any
security or collateral and without first having recourse to the Note or any of
the Property, through foreclosure, exercise of a power of sale or acceptance of
a deed in lieu of foreclosure or otherwise, and in the event Lender commences a
foreclosure action against the Property, or exercises the power of sale pursuant
to this Security Instrument, Lender is entitled to pursue a deficiency judgment
with respect to such obligations against Borrower and any guarantor or
indemnitor with respect to the Loan. The provisions of Sections 9.2, 9.3 and 9.4
herein and Section 9.2 of the Loan Agreement are exceptions to any non-recourse
or exculpation provisions in the Loan Agreement, the Note, this Security
Instrument or the other Loan Documents, and Borrower and any guarantor or
indemnitor with respect to the Loan are fully and personally liable for the
obligations pursuant to Sections 9.2, 9.3 and 9.4 herein and Section 9.2 of the
Loan Agreement. The liability of Borrower and any guarantor or indemnitor with
respect to the Loan pursuant to Sections 9.2, 9.3 and 9.4 herein and Section 9.2
of the Loan Agreement is not limited to the original principal amount of the
Note. Notwithstanding the foregoing, nothing herein shall inhibit or prevent
Lender from foreclosing or exercising a power of sale pursuant to this Security
Instrument or exercising any other rights and remedies pursuant to the Loan
Agreement, the Note, this Security Instrument and the other Loan Documents,
whether simultaneously with foreclosure proceedings or in any other sequence. A
separate action or actions may be brought and prosecuted against Borrower
pursuant to Sections 9.2, 9.3 and 9.4 herein and Section 9.2 of the Loan
Agreement, whether or not action is brought against any other Person or whether
or not any other Person is joined in the action or actions. In addition, Lender
shall have the right but
not the obligation to join and participate in, as a party if it so elects, any
administrative or judicial proceedings or actions initiated in connection with
any matter addressed in Article 8 or Section 9.4 herein.
RIGHT OF ENTRY. Upon reasonable notice to Borrower, Lender and its agents shall
have the right to enter and inspect the Property at all reasonable times.
- ENVIRONMENTAL HAZARDS
ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES. Based upon an environmental
assessment of the Property and information that Borrower knows after due inquiry
of the Manager, and except as otherwise disclosed by that certain Environmental
Site Assessment of the Property delivered to Lender (such report is referred to
below as the "ENVIRONMENTAL REPORT"), (a) there are no Hazardous Substances
(defined below) or underground storage tanks in, on, or under the Property,
except those that are both (i) in compliance with Environmental Laws (defined
below) and with permits issued pursuant thereto and (ii) fully disclosed to
Lender in writing pursuant the Environmental Report; (b) there are no past,
present or threatened Releases (defined below) of Hazardous Substances in, on,
under or from the Property which has not been fully remediated in accordance
with Environmental Law; (c) there is no threat of any Release of Hazardous
Substances migrating to the Property; (d) there is no past or present
non-compliance with Environmental Laws, or with permits issued pursuant thereto,
in connection with the Property which has not been fully remediated in
accordance with Environmental Law; (e) Borrower does not know of, and has not
received, any written or oral notice or other communication from any Person
(including but not limited to a governmental entity) relating to Hazardous
Substances or Remediation (defined below) thereof, of possible liability of any
Person pursuant to any Environmental Law, other environmental conditions in
connection with the Property, or any actual or potential administrative or
judicial proceedings in connection with any of the foregoing; and (f) Borrower
has truthfully and fully provided to Lender, in writing, any and all information
relating to conditions in, on, under or from the Property that is known to
Borrower and that is contained in Borrower's files and records, including but
not limited to any reports relating to Hazardous Substances in, on, under or
from the Property and/or to the environmental condition of the Property.
"ENVIRONMENTAL LAW" means any present and future federal, state and local laws,
statutes, ordinances, rules, regulations and the like, as well as common law,
relating to protection of human health or the environment, relating to Hazardous
Substances, relating to liability for or costs of Remediation or prevention of
Releases of Hazardous Substances or relating to liability for or costs of other
actual or threatened danger to human health or the environment. Environmental
Law includes, but is not limited to, the following statutes, as amended, any
successor thereto, and any regulations promulgated pursuant thereto, and any
state or local statutes, ordinances, rules, regulations and the like addressing
similar issues: the Comprehensive Environmental Response, Compensation and
Liability Act; the Emergency Planning and Community Right-to-Know Act; the
Hazardous Substances Transportation Act; the Resource Conservation and Recovery
Act (including but not limited to Subtitle I relating to underground storage
tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act;
the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational
Safety and Health Act;
the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and
Rodenticide Act; the Endangered Species Act; the National Environmental Policy
Act; and the River and Harbors Appropriation Act. Environmental Law also
includes, but is not limited to, any present and future federal, state and local
laws, statutes, ordinances, rules, regulations and the like, as well as common
law: conditioning transfer of property upon a negative declaration or other
approval of a governmental authority of the environmental condition of the
Property; requiring notification or disclosure of Releases of Hazardous
Substances or other environmental condition of the Property to any governmental
authority or other Person, whether or not in connection with transfer of title
to or interest in property; imposing conditions or requirements in connection
with permits or other authorization for lawful activity; relating to nuisance,
trespass or other causes of action related to the Property; and relating to
wrongful death, personal injury, or property or other damage in connection with
any physical condition or use of the Property.
"HAZARDOUS SUBSTANCES" include but are not limited to any and all substances
(whether solid, liquid or gas) defined, listed, or otherwise classified as
pollutants, hazardous wastes, hazardous substances, hazardous materials,
extremely hazardous wastes, or words of similar meaning or regulatory effect
under any present or future Environmental Laws or that may have a negative
impact on human health or the environment, including but not limited to
petroleum and petroleum products, asbestos and asbestos-containing materials,
polychlorinated biphenyls, lead, radon, radioactive materials, flammables and
explosives, but excluding substances of kinds and in amounts ordinarily and
customarily used or stored in similar properties for the purpose of cleaning or
other maintenance or operations and otherwise in compliance with all
Environmental Laws.
"RELEASE" of any Hazardous Substance includes but is not limited to any release,
deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting,
pumping, pouring, emptying, escaping, dumping, disposing or other movement of
Hazardous Substances.
"REMEDIATION" includes but is not limited to any response, remedial, removal, or
corrective action, any activity to cleanup, detoxify, decontaminate, contain or
otherwise remediate any Hazardous Substance, any actions to prevent, cure or
mitigate any Release of any Hazardous Substance, any action to comply with any
Environmental Laws or with any permits issued pursuant thereto, any inspection,
investigation, study, monitoring, assessment, audit, sampling and testing,
laboratory or other analysis, or evaluation relating to any Hazardous Substances
or to anything referred to in Article 8.
ENVIRONMENTAL COVENANTS. Borrower covenants and agrees that: (a) all uses and
operations on or of the Property, whether by Borrower or any other Person, shall
be in compliance with all Environmental Laws and permits issued pursuant
thereto; (b) there shall be no Releases of Hazardous Substances in, on, under or
from the Property; (c) there shall be no Hazardous Substances in, on, or under
the Property, except those that are both (i) in compliance with all
Environmental Laws and with permits issued pursuant thereto and (ii) fully
disclosed to Lender in writing; (d) Borrower shall keep the Property free and
clear of all liens and other encumbrances imposed pursuant to any Environmental
Law, whether due to any act or omission of Borrower or any other Person (the
"ENVIRONMENTAL LIENS"); (e) Borrower shall, at its sole cost and expense, fully
and expeditiously cooperate in all activities pursuant to SECTION 8.3
below, including but not limited to providing all relevant information and
making knowledgeable persons available for interviews; (f) Borrower shall, at
its sole cost and expense, perform any environmental site assessment or other
investigation of environmental conditions in connection with the Property,
pursuant to any reasonable written request of Lender made in the event that
Lender has reason to believe that an environmental hazard exists on the Property
(including but not limited to sampling, testing and analysis of soil, water,
air, building materials and other materials and substances whether solid, liquid
or gas), and share with Lender the reports and other results thereof, and Lender
and other Indemnified Parties shall be entitled to rely on such reports and
other results thereof; (g) Borrower shall, at its sole cost and expense, comply
with all reasonable written requests of Lender made in the event that Lender has
reason to believe that an environmental hazard exists on the Property (i)
reasonably effectuate Remediation of any condition (including but not limited to
a Release of a Hazardous Substance) in, on, under or from the Property; (ii)
comply with any Environmental Law; (iii) comply with any directive from any
governmental authority; and (iv) take any other reasonable action necessary or
appropriate for protection of human health or the environment; (h) Borrower
shall not do or allow any tenant or other user of the Property to do any act
that materially increases the dangers to human health or the environment, poses
an unreasonable risk of harm to any Person (whether on or off the Property),
impairs or may impair the value of the Property, is contrary to any requirement
of any insurer, constitutes a public or private nuisance, constitutes waste, or
violates any covenant, condition, agreement or easement applicable to the
Property; and (i) Borrower shall immediately notify Lender in writing of (A) any
presence or Releases or threatened Releases of Hazardous Substances in, on,
under, from or migrating towards the Property; (B) any non-compliance with any
Environmental Laws related in any way to the Property; (C) any actual or
potential Environmental Lien; (D) any required or proposed Remediation of
environmental conditions relating to the Property; and (E) any written or oral
notice or other communication of which Borrower becomes aware from any source
whatsoever (including but not limited to a governmental entity) relating in any
way to Hazardous Substances or Remediation thereof, possible liability of any
Person pursuant to any Environmental Law, other environmental conditions in
connection with the Property, or any actual or potential administrative or
judicial proceedings in connection with anything referred to in this Article 8.
LENDER'S RIGHTS. In the event that Lender has reason to believe that an
environmental hazard exists on the Property, upon reasonable notice from Lender,
Borrower shall, at Borrower's expense, promptly cause an engineer or consultant
satisfactory to Lender to conduct any environmental assessment or audit (the
scope of which shall be determined in Lender's sole and absolute discretion) and
take any samples of soil, groundwater or other water, air, or building materials
or any other invasive testing requested by Lender and promptly deliver the
results of any such assessment, audit, sampling or other testing; provided,
however, if such results are not delivered to Lender within a reasonable period,
upon reasonable notice to Borrower, Lender and any other Person designated by
Lender, including but not limited to any receiver, any representative of a
governmental entity, and any environmental consultant, shall have the right, but
not the obligation, to enter upon the Property at all reasonable times to assess
any and all aspects of the environmental condition of the Property and its use,
including but not limited to conducting any environmental assessment or audit
(the scope of which shall be determined in Lender's sole and absolute
discretion) and taking samples of soil, groundwater or other water,
air, or building materials, and reasonably conducting other invasive testing.
Borrower shall cooperate with and provide access to Lender and any such Person
designated by Lender.
- INDEMNIFICATION
GENERAL INDEMNIFICATION. Borrower shall, at its sole cost and expense, protect,
defend, indemnify, release and hold harmless the Indemnified Parties from and
against any and all claims, suits, liabilities (including, without limitation,
strict liabilities), actions, proceedings, obligations, debts, damages, losses,
costs, expenses, diminutions in value, fines, penalties, charges, fees,
expenses, judgments, awards, amounts paid in settlement, punitive damages,
foreseeable and unforeseeable consequential damages, of whatever kind or nature
(including but not limited to reasonable attorneys' fees and other costs of
defense) (collectively, the "LOSSES") imposed upon or incurred by or asserted
against any Indemnified Parties and directly or indirectly arising out of or in
any way relating to any one or more of the following: (a) ownership of this
Security Instrument, the Property or any interest therein or receipt of any
Rents; (b) any amendment to, or restructuring of, the Debt, and the Note, the
Loan Agreement, this Security Instrument, or any other Loan Documents; (c) any
and all lawful action that may be taken by Lender in connection with the
enforcement of the provisions of this Security Instrument or the Loan Agreement
or the Note or any of the other Loan Documents, whether or not suit is filed in
connection with same, or in connection with Borrower, any guarantor or
indemnitor and/or any partner, joint venturer or shareholder thereof becoming a
party to a voluntary or involuntary federal or state bankruptcy, insolvency or
similar proceeding; (d) any accident, injury to or death of persons or loss of
or damage to property occurring in, on or about the Property or any part thereof
or on the adjoining sidewalks, curbs, adjacent property or adjacent parking
areas, streets or ways; (e) any use, nonuse or condition in, on or about the
Property or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways; (f) any failure on the part
of Borrower to perform or be in compliance with any of the terms of this
Security Instrument; (g) performance of any labor or services or the furnishing
of any materials or other property in respect of the Property or any part
thereof; (h) the failure of any person to file timely with the Internal Revenue
Service an accurate Form 0000-X, Xxxxxxxxx for Recipients of Proceeds from Real
Estate, Broker and Barter Exchange Transactions, which may be required in
connection with this Security Instrument, or to supply a copy thereof in a
timely fashion to the recipient of the proceeds of the transaction in connection
with which this Security Instrument is made; (i) any failure of the Property to
be in compliance with any Legal Requirements; (j) the enforcement by any
Indemnified Party of the provisions of this Article 9; (k) any and all claims
and demands whatsoever which may be asserted against Lender by reason of any
alleged obligations or undertakings on its part to perform or discharge any of
the terms, covenants, or agreements contained in any Lease; (1) the payment of
any commission, charge or brokerage fee to anyone claiming through Borrower
which may be payable in connection with the funding of the Loan; or (m) any
misrepresentation made by Borrower in this Security Instrument or any other Loan
Document. Notwithstanding the foregoing, Borrower shall not be liable to the
Indemnified Parties under this SECTION 9.1 for any Losses to which the
Indemnified Parties may become subject to the extent such Losses arise by reason
of the gross negligence, illegal acts, fraud or willful misconduct of the
Indemnified Parties. Any amounts payable to Lender by reason of the application
of this SECTION 9.1 shall
become immediately due and payable and shall bear interest at the Default Rate
from the date loss or damage is sustained by Lender until paid. For purposes of
this Article 9, the term "INDEMNIFIED PARTIES" means Lender and any Person who
is or will have been involved in the origination of the Loan, any Person who is
or will have been involved in the servicing of the Loan secured hereby, any
Person in whose name the encumbrance created by this Security Instrument is or
will have been recorded, persons and entities who may hold or acquire or will
have held a full or partial interest in the Loan secured hereby (including, but
not limited to, investors or prospective investors in the Securities, as well as
custodians, trustees and other fiduciaries who hold or have held a full or
partial interest in the Loan secured hereby for the benefit of third parties) as
well as the respective directors, officers, shareholders, partners, employees,
agents, servants, representatives, contractors, subcontractors, affiliates,
subsidiaries, participants, successors and assigns of any and all of the
foregoing (including but not limited to any other Person who holds or acquires
or will have held a participation or other full or partial interest in the Loan,
whether during the term of the Loan or as a part of or following a foreclosure
of the Loan and including, but not limited to, any successors by merger,
consolidation or acquisition of all or a substantial portion of Lender's assets
and business).
MORTGAGE AND/OR INTANGIBLE TAX. Borrower shall, at its sole cost and expense,
protect, defend, indemnify, release and hold harmless the Indemnified Parties
from and against any and all Losses imposed upon or incurred by or asserted
against any Indemnified Parties and directly or indirectly arising out of or in
any way relating to any tax on the making and/or recording of this Security
Instrument, the Note or any of the other Loan Documents, but excluding any
income, franchise or other similar taxes.
ERISA INDEMNIFICATION. Borrower shall, at its sole cost and expense, protect,
defend, indemnify, release and hold harmless the Indemnified Parties from and
against any and all Losses (including, without limitation, reasonable attorneys'
fees and costs incurred in the investigation, defense, and settlement of Losses
incurred in correcting any prohibited transaction or in the sale of a prohibited
loan, and in obtaining any individual prohibited transaction exemption under
ERISA that may be required, in Lender's sole discretion) that Lender may incur,
directly or indirectly, as a result of a default under Sections 4.1.9 or 5.2.12
of the Loan Agreement.
ENVIRONMENTAL INDEMNIFICATION. Borrower shall, at its sole cost and expense,
protect, defend, indemnify, release and hold harmless the Indemnified Parties
from and against any and all Losses and costs of Remediation (whether or not
performed voluntarily), engineers' fees, environmental consultants' fees, and
costs of investigation (including but not limited to sampling, testing, and
analysis of soil, water, air, building materials and other materials and
substances whether solid, liquid or gas) imposed upon or incurred by or asserted
against any Indemnified Parties, and directly or indirectly arising out of or in
any way relating to any one or more of the following: (a) any presence of any
Hazardous Substances in, on, above, or under the Property; (b) any past, present
or threatened Release of Hazardous Substances in, on, above, under or from the
Property; (c) any activity by Borrower, any Person affiliated with Borrower or
any tenant or other user of the Property in connection with any actual, proposed
or threatened use, treatment, storage, holding, existence, disposition or other
Release, generation, production, manufacturing, processing, refining, control,
management, abatement, removal, handling,
transfer or transportation to or from the Property of any Hazardous Substances
at any tine located in, under, on or above the Property; (d) any activity by
Borrower, any Person affiliated with Borrower or any tenant or other user of the
Property in connection with any actual or proposed Remediation of any Hazardous
Substances at any time located in, under, on or above the Property, whether or
not such Remediation is voluntary or pursuant to court or administrative order,
including but not limited to any removal, remedial or corrective action; (e) any
past or present non-compliance or violations of any Environmental Laws (or
permits issued pursuant to any Environmental Law) in connection with the
Property or operations thereon, including but not limited to any failure by
Borrower, any Affiliate of Borrower or any tenant or other user of the Property
to comply with any order of any Governmental Authority in connection with any
Environmental Laws; (f) the imposition, recording or filing of any Environmental
Lien encumbering the Property; (g) any administrative processes or proceedings
or judicial proceedings in any way connected with any matter addressed in
Article 8 and this SECTION 9.4; (h) any past, present or threatened injury to,
destruction of or loss of natural resources in any way connected with the
Property, including but not limited to costs to investigate and assess such
injury, destruction or loss; (i) any acts of Borrower or other users of the
Property in arranging for disposal or treatment, or arranging with a transporter
for transport for disposal or treatment, of Hazardous Substances owned or
possessed by such Borrower or other users, at any facility or incineration
vessel owned or operated by another Person and containing such or any similar
Hazardous Substance; (j) any acts of Borrower or other users of the Property, in
accepting any Hazardous Substances for transport to disposal or treatment
facilities, incineration vessels or sites selected by Borrower or such other
users, from which there is a Release, or a threatened Release of any Hazardous
Substance which causes the incurrence of costs for Remediation; (k) any personal
injury, wrongful death, or property damage arising under any statutory or common
law or tort law theory, including but not limited to damages assessed for the
maintenance of a private or public nuisance or for the conducting of an
abnormally dangerous activity on or near the Property; and (1) any
misrepresentation or inaccuracy in any representation or warranty or material
breach or failure to perform any covenants or other obligations pursuant to
Article 8. Notwithstanding the foregoing, Borrower shall not be liable under
this SECTION 9.4 for any Losses or costs of Remediation to which the Indemnified
Parties may become subject to the extent such Losses or costs of Remediation
arise by reason of the gross negligence, illegal acts, fraud of willful
misconduct of the Indemnified Parties. This indemnity shall survive any
termination, satisfaction or foreclosure of this Security Instrument, subject to
the provisions of SECTION 10.5.
DUTY TO DEFEND; ATTORNEYS' FEES AND OTHER FEES AND EXPENSES. Upon written
request by any Indemnified Party, Borrower shall defend such Indemnified Party
(if requested by any Indemnified Party, in the name of the Indemnified Party) by
attorneys and other professionals approved by the Indemnified Parties.
Notwithstanding the foregoing, if the defendants in any such claim or proceeding
include both Borrower and any Indemnified Party and Borrower and such
Indemnified Party shall have reasonably concluded that there are any legal
defenses available to it and/or other Indemnified Parties that are different
from or additional to those available to Borrower, such Indemnified Party shall
have the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party, provided that no compromise or settlement shall be entered
without Borrower's consent, which consent shall not be unreasonably withheld.
Upon demand,
Borrower shall pay or, in the sole and absolute discretion of the Indemnified
Parties, reimburse, the Indemnified Parties for the payment of reasonable fees
and disbursements of attorneys, engineers, environmental consultants,
laboratories and other professionals in connection therewith.
- WAIVERS
WAIVER OF COUNTERCLAIM. To the extent permitted by applicable law, Borrower
hereby waives the right to assert a counterclaim, other than a mandatory or
compulsory counterclaim, in any action or proceeding brought against it by
Lender arising out of or in any way connected with this Security Instrument, the
Loan Agreement, the Note, any of the other Loan Documents, or the Obligations.
MARSHALLING AND OTHER MATTERS. To the extent permitted by applicable law,
Borrower 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 Property or any part thereof or any interest therein. Further,
Borrower hereby expressly waives any and all rights of redemption from sale
under any order or decree of foreclosure of this Security Instrument on behalf
of Borrower, and on behalf of each and every person acquiring any interest in or
title to the Property subsequent to the date of this Security Instrument and on
behalf of all persons to the extent permitted by applicable law.
WAIVER OF NOTICE. To the extent permitted by applicable law, Borrower shall not
be entitled to any notices of any nature whatsoever from Lender except with
respect to matters for which this Security Instrument or the Loan Documents
specifically and expressly provide for the giving of notice by Lender to
Borrower and except with respect to matters for which Lender is required by
applicable law to give notice, and Borrower hereby expressly waives the right to
receive any notice from Lender with respect to any matter for which this
Security Instrument does not specifically and expressly provide for the giving
of notice by Lender to Borrower.
WAIVER OF STATUTE OF LIMITATIONS. To the extent permitted by applicable law,
Borrower hereby expressly waives and releases to the fullest extent permitted by
law, the pleading of any statute of limitations as a defense to payment of the
Debt or performance of its Other Obligations.
SURVIVAL. The indemnifications made pursuant to SECTIONS 9.3 AND 9.4 herein and
the representations and warranties, covenants, and other obligations arising
under Article 8, shall continue indefinitely in full force and effect and shall
survive and shall in no way be impaired by: any satisfaction, release or other
termination of this Security Instrument, any assignment or other transfer of all
or any portion of this Security Instrument or Lender's interest in the Property
(but, in such case, shall benefit both Indemnified Parties and any assignee or
transferee), any exercise of Lender's rights and remedies pursuant hereto
including but not limited to foreclosure or acceptance of a deed in lieu of
foreclosure, any exercise of any rights and remedies pursuant to the Loan
Agreement, the Note or any of the other Loan Documents, any transfer of all or
any portion of the Property (whether by Borrower or by Lender following
foreclosure or acceptance
of a deed in lieu of foreclosure or at any other time), any amendment to this
Security Instrument, the Loan Agreement, the Note or the other Loan Documents,
and any act or omission that might otherwise be construed as a release or
discharge of Borrower from the obligations pursuant hereto. Notwithstanding
anything to the contrary contained in this Security Instrument or the other Loan
Documents, Borrower shall not have any obligations or liabilities under the
indemnification under SECTION 9.4 herein or other indemnifications with respect
to Hazardous Substances contained in the other Loan Documents with respect to
those obligations and liabilities that Borrower can prove arose solely from
Hazardous Substances that (i) were not present on or a threat to the Property
prior to the date that Lender or its nominee acquired title to the Property,
whether by foreclosure, exercise by power of sale, acceptance of a deed-in-lieu
of foreclosure or otherwise and (ii) were not the result of any act or
negligence of Borrower or any of Borrower's affiliates, agents or contractors.
- EXCULPATION
The provisions of Section 9.4 of the Loan Agreement are hereby incorporated by
reference into this Security Instrument to the same extent and with the same
force as if fully set forth herein.
- NOTICES
All notices or other written communications hereunder shall be delivered in
accordance with Section 10.6 of the Loan Agreement.
- APPLICABLE LAW
GOVERNING LAW. (A) THIS SECURITY INSTRUMENT WAS NEGOTIATED IN THE STATE OF NEW
YORK, AND MADE BY BORROWER AND ACCEPTED BY LENDER IN THE STATE OF NEW YORK, AND
THE PROCEEDS OF THE NOTE SECURED HEREBY WERE DISBURSED FROM THE STATE OF NEW
YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE
PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS SECURITY INSTRUMENT AND THE
OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY
APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE
PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND
SECURITY INTERESTS CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN
DOCUMENTS WITH RESPECT TO THE PROPERTY SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAW OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IT BEING
UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE
LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND
ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS
ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW,
BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT
THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS SECURITY INSTRUMENT AND THE OR
THE OTHER LOAN DOCUMENTS, AND THIS SECURITY INSTRUMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT
OF OR RELATING TO THIS SECURITY INSTRUMENT MAY AT LENDER'S OPTION BE INSTITUTED
IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX, XXXXXX XX XXX XXXX,
PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND BORROWER
WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR
FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR
PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT
CT CORPORATION SYSTEM, INC.
0000 XXXXXXXX, 00XX XXXXX
XXX XXXX, XXX XXXX 00000
ATTENTION: SERVICE OF PROCESS DEPARTMENT
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE
OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT
SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID
SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE
DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH
SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE
PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT
HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE
AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT
AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF
PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED
AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT
LEAVING A SUCCESSOR.
USURY LAWS. Notwithstanding anything to the contrary, (a) all agreements and
communications between Borrower and Lender are hereby and shall automatically be
limited so that, after taking into account all amounts deemed interest, the
interest contracted for, charged or received by Lender shall never exceed the
maximum lawful rate or amount, (b) in calculating whether any interest exceeds
the lawful maximum, all such interest shall be amortized, prorated, allocated
and spread over the full amount and term of all principal indebtedness of
Borrower to Lender, and (c) if through any contingency or event, Lender receives
or is deemed to receive interest in excess of the lawful maximum, any such
excess shall be deemed to have been applied toward payment of the principal of
any and all then outstanding indebtedness of Borrower to Lender, or if there is
no such indebtedness, shall immediately be returned to Borrower.
PROVISIONS SUBJECT TO APPLICABLE LAW. All rights, powers and remedies provided
in this Security Instrument may be exercised only to the extent that the
exercise thereof does not violate any applicable provisions of law and are
intended to be limited to the extent necessary so that they will not render this
Security Instrument invalid, unenforceable or not entitled to be recorded,
registered or filed under the provisions of any applicable law. If any term of
this Security Instrument or any application thereof shall be invalid or
unenforceable, the remainder of this Security Instrument and any other
application of the term shall not be affected thereby.
- DEFINITIONS
All capitalized terms not defined herein shall have the respective meanings set
forth in the Loan Agreement. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Security Instrument may be used interchangeably in singular or plural form and
the word "BORROWER" shall mean "each Borrower and any subsequent owner or owners
of the Property or any part thereof or any interest therein," the word "LENDER"
shall mean "Lender and any subsequent holder of the Note," the word "NOTE" shall
mean "the Note and any other evidence of indebtedness secured by this Security
Instrument," the word "PROPERTY" shall include any portion of the Property and
any interest therein, and the phrases "ATTORNEYS' FEES", "LEGAL FEES" and
"COUNSEL FEES" shall include any and all attorneys', paralegal and law clerk
fees and disbursements, including, but not limited to, fees and disbursements at
the pre-trial, trial and appellate levels incurred or paid by Lender in
protecting its interest in the Property, the Leases and the Rents and enforcing
its rights hereunder.
- MISCELLANEOUS PROVISIONS
NO ORAL CHANGE. This Security Instrument, and any provisions hereof, may not be
modified, amended, waived, extended, changed, discharged or terminated orally or
by any act or failure to act on the part of Borrower or Lender, but only by an
agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
SUCCESSORS AND ASSIGNS. This Security Instrument shall be binding upon and inure
to the benefit of Borrower and Lender and their respective successors and
assigns forever.
INAPPLICABLE PROVISIONS. If any term, covenant or condition of the Loan
Agreement, the Note or this Security Instrument is held to be invalid, illegal
or unenforceable in any respect, the Loan Agreement, the Note and this Security
Instrument shall be construed without such provision.
HEADINGS, ETC. The headings and captions of various Sections of this Security
Instrument 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.
NUMBER AND GENDER. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.
SUBROGATION. If any or all of the proceeds of the Note have been used to
extinguish, extend or renew any indebtedness heretofore existing against the
Property, then, to the extent of the funds so used, Lender shall be subrogated
to all of the rights, claims, liens, titles, and interests existing against the
Property heretofore held by, or in favor of, the holder of such indebtedness and
such former rights, claims, liens, titles, and interests, if any, are not waived
but rather are continued in full force and effect in favor of Lender and are
merged with the lien and security interest created herein as cumulative security
for the repayment of the Debt, the performance and discharge of Borrower's
obligations hereunder, under the Loan Agreement, the Note and the other Loan
Documents and the performance and discharge of the Other Obligations.
ENTIRE AGREEMENT. The Note, the Loan Agreement, this Security Instrument and the
other Loan Documents constitute the entire understanding and agreement between
Borrower and Lender with respect to the transactions arising in connection with
the Debt and supersede all prior written or oral understandings and agreements
between Borrower and Lender with respect thereto. Borrower hereby acknowledges
that, except as incorporated in writing in the Note, the Loan Agreement, this
Security Instrument and the other Loan Documents, there are not, and were not,
and no persons are or were authorized by Lender to make, any representations,
understandings, stipulations, agreements or promises, oral or written, with
respect to the transaction which is the subject of the Note, the Loan Agreement,
this Security Instrument and the other Loan Documents.
LIMITATION ON LENDER'S RESPONSIBILITY. No provision of this Security Instrument
shall operate to place any obligation or liability for the control, care,
management or repair of the Property upon Lender, nor shall it operate to make
Lender responsible or liable for any waste committed on the Property by the
tenants or any other Person, or for any dangerous or defective condition of the
Property, or for any negligence in the management, upkeep, repair or control of
the Property resulting in loss or injury or death to any tenant, licensee,
employee or stranger. Nothing herein contained shall be construed as
constituting Lender a "mortgagee in possession."
- INTENTIONALLY DELETED
- STATE-SPECIFIC PROVISIONS
PRINCIPALS OF CONSTRUCTION. In the event of any inconsistencies between the
terms and provisions of this Security Instrument and Article 17 of this Security
Instrument, the terms and provisions of Article 17 shall govern and control.
OPEN-END MORTGAGE MAXIMUM PRINCIPAL AMOUNT. This Security Instrument is an
open-end mortgage made pursuant to Section 5301.232 of the Ohio Revised Code,
and shall secure the payment of all loan advances included within the term
"Debt," regardless of the time such advances are made. The maximum amount of
unpaid loan indebtedness, exclusive of interest thereon, which may be
outstanding at any time and secured hereby shall be the maximum principal amount
stated on the cover page of this Security Instrument. As permitted and provided
in Section 5301.233 of the Ohio Revised Code, this Security Instrument shall
also secure unpaid balances of advances made with respect to the Property for
the payment of taxes, assessments, insurance premiums, or costs incurred for the
protection of the Property and other costs which Lender is authorized by this
Security Instrument to pay on Borrower's behalf, plus interest thereon,
regardless of the time when such advances are made.
OHIO REMEDIES. Without limitation to the other terms and provisions of this
Security Instrument, Lender may, at its option, do all things provided or
permitted to be done by a mortgagee under Section 1311.14 of the Ohio Revised
Code and any amendment thereto, for the protection of Lender's interest in the
Property.
[NO FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, THIS SECURITY INSTRUMENT has been executed by Borrower as of
the day and year first above written.
RIVER VALLEY VENTURE, LLC,
Delaware limited liability company
By: Glimcher River Valley, Inc.,
its managing member
SIGNED IN THE PRESENCE OF: By: /s/ Xxxxxx X. Xxxxxxx
--------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
SEALED AND DELIVERED
IN THE PRESENCE OF:
/s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Prepared by: Xxxxxxx Xxxxxxx, Esq.
and upon recordation return to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
ACKNOWLEDGMENT
State of Ohio )
) ss.
County of ________ )
The foregoing instrument was acknowledged before me this 13th
day of April, 2001, by Xxxxxx X. Xxxxxxx, the Executive Vice President of
Glimcher River Valley, Inc., a Delaware corporation, the managing member of
River Valley Venture, LLC, a Delaware limited liability company, on behalf of
the company.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Xxxxx X. Xxxxxx
--------------------
Notary Public
Commission
Expiration: 3/22/05
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EXHIBIT A
LEGAL DESCRIPTION
[To Be Attached]
