EXHIBIT 10.108
Return recorded instrument to:
Xxxxxxx X. Xxxx
Xxxxxx Xxxxxx Xxxxxx & Xxxxxx, LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxx 00000
MORTGAGE WITH POWER OF SALE, SECURITY AGREEMENT
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AND FINANCING STATEMENT
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A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW
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MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A
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FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS MORTGAGE.
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THIS MORTGAGE WITH POWER OF SALE, SECURITY AGREEMENT AND FINANCING
STATEMENT (this "Mortgage") is made as of the 14th day of March, 2006, by Tulsa
Promenade, LLC, a Delaware limited liability company, ("Mortgagor"), in favor of
Charter One Bank, N.A., a national banking association with an address of 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 ("Mortgagee").
WHEREAS, Mortgagee has agreed to make a loan to Mortgagor in the principal
amount of Fifty Million and No/100 Dollars ($50,000,000.00) (the "Loan") and
Xxxxxxxxx has executed that certain promissory note of even date herewith in the
amount of Fifty Million and No/100 Dollars ($50,000,000.00) (the "Note") having
a final maturity on ___________, 2009, with interest thereon according to the
terms of the Loan Agreement (defined below) and the Note; and
WHEREAS, pursuant to that certain Loan Agreement of even date herewith (the
"Loan Agreement") executed in conjunction with the Note, and certain limitations
set forth in the Loan Agreement regarding the maximum amount available to be
disbursed under the Note, Mortgagee has made or will make an initial
disbursement in the amount of Thirty-Five Million and No/100 Dollars
($35,000,000.00) (the "Initial Disbursement"); and
WHEREAS, Xxxxxxxxx intends to enter into a Hedging Contract (as defined in
the Loan Agreement) with Mortgagee creating additional potential indebtedness of
Mortgagor in the amount of approximately Two Million Seven Hundred Thousand and
No/100 Dollars ($2,700,000.00) (the "Additional Exposure"); and
WHEREAS, Xxxxxxxxx is justly indebted to Mortgagee in the sum of
Thirty-Seven Million Seven Hundred Thousand and No/100 Dollars ($37,700,000.00)
consisting of the Initial Disbursement and the Additional Exposure; and
WHEREAS, pursuant to the terms of the Loan Agreement, Xxxxxxxxx may request
and Mortgagee may make certain additional obligatory advances of the Loan
proceeds ("Additional Advances"); and
WHEREAS, prior to any Additional Advances, Xxxxxxxxx and Mortgagee will
amend this Mortgage to increase the amount of indebtedness secured hereby and
pay any mortgage tax required in conjunction therewith.
NOW, THEREFORE, to secure to Mortgagee the payment of the aforesaid
indebtedness, with interest thereon, the payment of all present and future
indebtedness from Mortgagor to Mortgagee, and the performance of the covenants
and agreements herein contained and contained in the Loan Agreement, or any
other documents related to the Loan, including without limitation, all
obligations and liabilities of Mortgagor under any Hedging Contract, interest
rate swap agreements, interest rate cap agreements and interest rate collar
agreements, and all other agreements or arrangements with the Mortgagee designed
to protect Mortgagor against fluctuations in interest rates or currency exchange
rates, Mortgagor does hereby grant, bargain, sell, convey, mortgage and grant a
security interest unto Mortgagee and to its successors and assigns the real
property located in Tulsa County, Oklahoma, described on attached Exhibit "A",
together with all and singular the tenements, hereditaments and appurtenances
thereof; all buildings and improvements now or hereafter constructed on such
real property; and all fixtures, equipment, machinery, apparatus and articles of
personal property of every kind and character now owned or hereafter acquired by
Mortgagor and now or hereafter located in or on the aforesaid buildings and
improvements or used or useful for the operation, construction, ownership,
management, maintenance, financing or sale of the foregoing real property,
buildings or improvements, and all accounts, instruments, documents, chattel
paper, contract rights, inventory, general intangibles and goods, all of which
property is herein called the "Collateral", which shall include, but not be
limited to: (a) all signs, draperies, screens, awnings, storm windows and doors,
window shades, cabinets, partitions, floor coverings, escalators, elevators and
motors, ranges, refrigerators, boilers, tanks, furnaces, radiators and all
heating, lighting, plumbing, gas, electric, ventilating, refrigerating, air
conditioning, laundry, cleaning, fire prevention, fire extinguishing,
communications, kitchen and incinerating equipment of whatsoever kind and
character; (b) all of the right, title and interest of Mortgagor in and to any
items of personal property which may be subject to a title retention or security
agreement superior in lien to the lien of this Mortgage; and (c) proceeds and
products thereof; provided the Collateral shall not include fixtures and
furnishings owned by bona fide tenants of the improvements. The above described
real estate, appurtenances, improvements and Collateral are hereinafter
collectively called the "Mortgaged Premises" and are hereby declared to be
subject to the lien of this Mortgage as security for the payment of the
indebtedness herein described. All of the terms used in this paragraph which are
defined in the Oklahoma Uniform Commercial Code (the "UCC") shall have the
meanings set forth in the UCC.
TO HAVE AND TO HOLD the Mortgaged Premises with all the rights,
improvements and appurtenances thereunto belonging, or in anywise appertaining
unto Mortgagee, its successors and assigns, forever. Mortgagor covenants that,
except for rights-of-way and easements of record and other exceptions as may be
approved by Mortgagee, Mortgagor is seized of an indefeasible estate in fee
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simple in the Mortgaged Premises, that Xxxxxxxxx has good title to the Mortgaged
Premises, a good right to sell, convey and mortgage the same, that the Mortgaged
Premises are free and clear of all general and special taxes, liens, charges and
encumbrances of every kind and character, and that Xxxxxxxxx hereby warrants and
will forever defend the title thereto against the claims of all persons
whomsoever.
1. Payment of Debt. If Mortgagor shall pay the indebtedness herein
described and Mortgagor shall in all things do and perform all other acts and
agreements herein contained to be done, then, in that event only, this Mortgage
shall be and become null and void.
2. Maintenance; Waste. With respect to the Mortgaged Premises, Mortgagor
covenants and agrees to keep the same in good condition and repair; to pay all
general and special taxes and assessments and other charges that may be levied
or assessed upon or against the same as they become due and payable and to
furnish to Mortgagee receipts showing payment of any such taxes and assessments,
if demanded; to pay all debts for repair or improvements now existing or
hereafter arising which may become liens upon or charges against the Mortgaged
Premises; to comply with or cause to be complied with all requirements of any
governmental authority relating to the Mortgaged Premises; to promptly repair,
restore, replace or rebuild any part of the Mortgaged Premises which may be
damaged or destroyed by any casualty whatsoever or which may be affected by any
condemnation proceeding or exercise of eminent domain; and to promptly notify
Mortgagee of any damage to the Mortgaged Premises in excess of One Million
Dollars ($1,000,000.00). Mortgagor further covenants and agrees that Xxxxxxxxx
will not commit or suffer to be committed any waste of the Mortgaged Premises;
initiate, join in or consent to any change in any private restrictive covenant,
zoning ordinance or other public or private restrictions limiting or defining
the uses which may be made of the Mortgaged Premises or any part thereof; permit
any lien or encumbrance of any kind or character to accrue or remain on the
Mortgaged Premises or any part thereof which might take precedence over the lien
of this Mortgage.
3. Taxes and Insurance. Mortgagor will pay or cause to be paid all real
estate taxes and assessments on the Mortgaged Premises and all insurance
premiums for hazard and liability insurance covering the Mortgaged Premises as
the same shall become due as further set forth in the Loan Agreement.
Furthermore, Mortgagor shall submit evidence of payment of the same upon written
request from Mortgagee. In the event of a default in the payment of such taxes
or insurance then Mortgagee shall be permitted to pay the taxes and/or insurance
to protect the Mortgaged Premises and charge the same to the Mortgagor as
additional indebtedness secured by the Mortgage. Notwithstanding the foregoing,
Mortgagee shall reserve the right to require Mortgagor to pay to Mortgagee in
addition to the monthly installments of principal and interest a sum (herein
"Funds") equal to one-twelfth of the yearly taxes and assessments which may
attain priority over this Mortgage plus one-twelfth of yearly premium
installments for hazard insurance, all as reasonably estimated initially and
from time to time by Mortgagee on the basis of assessments and bills and
reasonable estimates thereof. The Funds shall be held by Mortgagee, who shall
apply the Funds to pay said taxes, assessments and insurance premiums. Mortgagee
shall make no charge for so holding and applying the Funds or verifying and
compiling said assessments and bills. Mortgagee shall not be required to pay
Mortgagor any interest on the Funds. Mortgagee shall give to Mortgagor, without
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charge, an annual accounting of the Funds showing credits and debits to the
Funds and the purpose for which each debit to the Funds was made. The Funds are
pledged as additional security for the indebtedness secured by this Mortgage.
Funds paid hereunder may be commingled with other funds of the Mortgagee.
If the amount of the Funds held by Mortgagee shall not be sufficient to pay
taxes, assessments and insurance premiums as they fall due, Mortgagor shall pay
to Mortgagee the amount of any such deficiency within thirty days after notice
from Mortgagee to Mortgagor requesting payment thereof.
Upon payment in full of all sums secured by this Mortgage, Mortgagee shall
promptly refund to Mortgagor any Funds held by Mortgagee.
4. Alterations. Except as permitted under the Loan Agreement, no completed
building or other property now or hereafter subject to the lien of this Mortgage
shall be removed, demolished or materially altered, without the prior written
consent of Mortgagee, except that Mortgagor shall have the right, without such
consent, to remove and dispose of, free from the lien of this Mortgage, such
Collateral as from time to time may become worn or obsolete, provided that
either: (a) simultaneously with or prior to such removal, any such Collateral
shall be replaced with other Collateral of a value at least equal to that of the
replaced Collateral and free from any title retention device, security agreement
or other encumbrance, and by such removal or replacement, Mortgagor shall be
deemed to have subjected such Collateral to the lien of this Mortgage; or (b)
any net cash proceeds received from such disposition shall be paid over promptly
to Mortgagee to be applied to the last installments due on the indebtedness
hereby secured, without any charge for prepayment.
5. Default; Remedies. Upon the failure of Mortgagor (after notice to
Mortgagor and expiration of any applicable cure period pursuant to the Loan
Agreement) to pay any of the taxes, assessments, debts, liens or other charges
as the same become due and payable, or to insure the Mortgaged Premises as
required under the Loan Agreement, or to perform any of Mortgagor's covenants
and agreements herein, Mortgagee is hereby authorized, at its option, to insure
the Mortgaged Premises, or any part thereof, and pay the costs of such insurance
and to pay such taxes, assessments, debts, liens or other charges herein
described, or any part thereof, and to remedy Xxxxxxxxx's failure to perform
hereunder and pay the costs associated therewith, and Xxxxxxxxx hereby agrees to
refund on demand all sum or sums so paid, with interest thereon at the default
rate under the Note; and any such sum or sums so paid together with interest
thereon shall become a part of the indebtedness hereby secured; provided,
however, that the retention of a lien hereunder for any sum so paid shall not be
a waiver of subrogation or substitution which Mortgagee might otherwise have. In
the event of the failure of Mortgagor to pay any of the taxes, assessments,
debts, liens or other charges herein described as the same become due and
payable (provided, however, Mortgagor shall have the right to contest any such
charges in good faith by appropriate proceedings and thereby not be in default)
or to keep the Mortgaged Premises insured in the manner and time herein
provided, or the failure to deliver renewal policies in the manner and time
herein provided, or if any installment of principal or interest is not paid at
or within the time required by the terms of the Note, or the failure to do any
of the things herein agreed to be done, or on the breach of any of the terms of
the Note, the Loan Agreement, the Loan documents (as defined in the Loan
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Agreement), this Mortgage or any other instrument securing or evidencing the
indebtedness hereby secured, beyond any applicable grace period contained
therein, including, without limitation, all agreements between Mortgagee and the
Mortgagor which give rise to Hedging Obligations (as defined in the Loan
Agreement), then, in any of such events, whether Mortgagee has paid any of the
taxes, liens or other charges, or procured the insurance, or remedied
Mortgagor's failure to perform, all as above mentioned, or not, Xxxxxxxxx shall
be in default hereunder. In the event of default, after applicable cure period,
Mortgagee may either (1) declare the principal of the Note, all interest accrued
thereon and all other sums hereby secured, without deduction and without notice,
to be immediately due and payable, and Mortgagee will be entitled to foreclose
this Mortgage by judicial proceeding, or (2) after any notice to Mortgagor and
Mortgagor required by the Oklahoma Power of Sale Mortgage Foreclosure Act,
declare the principal of the Note, all interest accrued thereon and all other
sums hereby secured, without deduction, to be immediately due and payable, and
Mortgagee will be entitled to foreclose this Mortgage by power of sale pursuant
to the provisions of the Oklahoma Power of Sale Mortgage Foreclosure Act.
Mortgagor hereby confers upon Mortgagee and grants to Mortgagee the power to
sell the Mortgaged Premises. On default, Mortgagee will be entitled to exercise
all further and additional remedies as might now or hereafter be accorded to
Mortgagee at law or in equity. Whether Mortgagee elects to foreclose this
Mortgage by judicial proceeding or by power of sale, Mortgagee shall,
immediately on default, be entitled to the possession of the Mortgaged Premises
and the rents and profits thereof, and shall be entitled to have a receiver
appointed to take possession of the Mortgaged Premises without notice, which
notice Mortgagor hereby waives, notwithstanding anything contained in this
Mortgage or any law heretofore or hereafter enacted.
6. Taxes; Expenses. Xxxxxxxxx agrees to pay any and all taxes which may be
levied or assessed directly or indirectly upon the Note, this Mortgage and the
indebtedness hereby secured, and further agrees to pay all expenses incurred in
connection with the creation of the indebtedness hereby secured, including,
without limitation, all broker's fees, real estate commissions, attorneys' fees,
title guaranty fees, survey expenses, appraiser's fees, abstracting expenses,
recording costs and lien indemnification fees, without regard to any law which
may be hereafter enacted imposing payment of the whole or any part thereof upon
Mortgagee; and, upon violation of this agreement, or upon the rendering by any
court of competent jurisdiction of a decision that such an agreement by a
mortgagor is legally inoperative, or if the rate of said taxes and expenses
added to the rate of interest provided for in the Note shall exceed the then
legal rate of interest, then, and in any such event, the indebtedness hereby
secured, without deduction, shall, at the option of Mortgagee become immediately
due and payable, anything contained in this Mortgage or in the Note
notwithstanding. The additional amounts which may become due and payable
hereunder shall be regarded as part of the indebtedness secured by this
Mortgage.
7. Compliance with Laws. Mortgagor shall promptly and faithfully comply
with, conform to and obey all laws, regulations and other governmental
requirements of any agency or group having jurisdiction or similar body
exercising similar functions, that may be applicable to Mortgagor or to the
Mortgaged Premises or to the use or manner of use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction of the Mortgaged
Premises, whether or not such law, regulation or other governmental requirement
or rule or regulation shall necessitate structural changes or improvements or
interfere with the use or enjoyment of the Mortgaged Premises.
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8. Expenses of Collection. It is agreed that if, and as often as, this
Mortgage or the Note is placed in the hands of an attorney for collection, or to
protect the priority or validity of this Mortgage, or to prosecute or defend any
suit affecting the Mortgaged Premises, or to enforce or defend any of
Mortgagee's rights hereunder, Xxxxxxxxx shall pay to Mortgagee its reasonable
attorneys fees, together with all court costs, expenses for title examination,
title insurance or other disbursements relating to the Mortgaged Premises, which
sums shall be secured hereby.
9. Appraisement. Appraisement of the Mortgaged Premises is hereby expressly
waived, or not, at the option of Mortgagee, such option to be exercised at the
time judgment is rendered in any foreclosure hereof, or at any time prior
thereto.
10. Sale in Parcels. In case of any sale under this Mortgage by virtue of
judicial proceedings or otherwise, the Mortgaged Premises may be sold in one
parcel and as an entirety or in such parcels, manner or order as Mortgagee in
its sole discretion may elect, and Mortgagor waives any and all rights which
Mortgagor may have to insist upon the sale of the Mortgaged Premises in one
parcel or in separate parcels.
11. Condemnation Awards. Application of proceeds received from condemnation
shall be applied as set forth in Article VIII of the Loan Agreement.
12. Proceeds of Insurance; Restoration Following Casualty, Application of
Proceeds. Application of proceeds received from insurance shall be applied as
set forth in Article VIII of the Loan Agreement.
13. Certificate. Xxxxxxxxx, upon request made either personally or by mail,
shall certify to Mortgagee or to any proposed assignee of this Mortgage, by a
writing duly acknowledged, the amount of principal and interest then owing on
this Mortgage and whether any offsets or defenses exist against the indebtedness
hereby secured, within ten (10) days after the mailing of such request.
14. Notice. Except for any notice required under applicable law to be given
in another manner, any notice, demand, request or other communication which any
party hereto may be required or may desire to give hereunder shall be in writing
and shall be deemed to have been properly given (i) if hand delivered or if sent
by telecopy, effective upon receipt or (ii) if delivered by overnight courier
service, effective on the day following delivery to such courier service, or
(iii) if mailed by United States registered or certified mail, postage prepaid,
return receipt requested, effective two (2) days after deposit in the United
States mails; addressed in each case as follows:
If to Mortgagor:
Tulsa Promenade, LLC
c/o Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: General Counsel
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If to Mortgagee:
Charter One Bank, N.A.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
or at such other address or to such other addressee as the party to be served
with notice may have furnished in writing to the party seeking or desiring to
serve notice as a place for the service of notice.
15. Future Advancements. This Mortgage shall secure the payment of the
Note, including any and all advancements made by Mortgagee thereunder, and any
and all additional indebtedness of Mortgagor to Mortgagee incurred in connection
with the Mortgaged Premises or any improvements now or hereafter located
thereon, whether or not incurred or becoming payable under the provisions hereof
and whether as future advancements or otherwise, together with any renewals,
modifications, rearrangements, consolidations or extensions of the Note or other
indebtedness.
16. Inspection; Management. Mortgagee and any persons authorized by
Mortgagee shall have the right after reasonable notice to enter and inspect the
Mortgaged Premises at all reasonable times. If, at any time after default by
Xxxxxxxxx in the performance of any of the terms, covenants or provisions of
this Mortgage or the Note, the management or maintenance of the Mortgaged
Premises shall be determined by Mortgagee, Mortgagor shall employ, for the
duration of such default, as managing agent of the Mortgaged Premises, any
person from time to time designated or approved by Mortgagee.
17. Payment by Others. Any payment made in accordance with the terms of
this Mortgage by any person at any time liable for the payment of the whole or
any part of the indebtedness now or hereafter secured by this Mortgage, or by
any subsequent owner of the Mortgaged Premises, or by any other person whose
interest in the Mortgaged Premises might be prejudiced in the event of a failure
to make such payment, or by any stockholder, officer or director of a
corporation or any partner of a partnership or trustee or beneficial owner of a
trust which at any time may be liable for such payment or may own or have such
an interest in the Mortgaged Premises, shall be deemed, as between Mortgagee and
all persons who at any time may be liable as aforesaid or may own the Mortgaged
Premises, to have been made on behalf of Mortgagor.
18. No Waiver. Any failure by Mortgagee to insist upon the strict
performance by Xxxxxxxxx of any of the terms and provisions hereof shall not be
deemed to be a waiver of any of the terms and provisions hereof, and Mortgagee,
notwithstanding any such failure, shall have the right thereafter to insist upon
the strict performance by Xxxxxxxxx of any and all of the terms and provisions
of this Mortgage to be performed by Xxxxxxxxx. Neither Mortgagor nor any other
person now or hereafter obligated for the payment of the whole or any part of
the indebtedness now or hereafter secured by this Mortgage shall be relieved of
such obligation by reason of the failure of Mortgagee to comply with any request
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of Mortgagor or of any other person so obligated to take action to foreclose
this Mortgage or otherwise enforce any of the provisions of this Mortgage or of
any obligations secured by this Mortgage, or by reason of the release,
regardless of consideration, of the whole or any part of the security held for
the indebtedness secured by this Mortgage, or by reason of any agreement or
stipulation between any subsequent owner or owners of the Mortgaged Premises and
Mortgagee extending, from time to time, the time of payment or modifying the
terms of the Note or this Mortgage without first having obtained the consent of
Mortgagor or such other person, and in the latter event, Mortgagor and all such
other persons shall continue liable to make such payments according to the terms
of any such agreement of extension or modification unless expressly released and
discharged in writing by Mortgagee. Regardless of consideration, and without the
necessity for any notice to or consent by the holder of any subordinate lien on
the Mortgaged Premises, Mortgagee may release the obligation of anyone at any
time liable for any of the indebtedness secured by this Mortgage or any part of
the security held for such indebtedness and may from time to time extend the
time of payment or otherwise modify the terms of the Note and/or this Mortgage
without, as to the security for the remainder thereof, in any way impairing or
affecting the lien of this Mortgage or the priority of such lien, as security
for the payment of the indebtedness as it may be so extended or modified, over
any subordinate lien. The holder of any subordinate lien shall have no right to
terminate any lease affecting the Mortgaged Premises whether or not such lease
is subordinate to this Mortgage. Mortgagee may resort for the payment of
indebtedness hereby secured to any other security therefor held by Mortgagee in
such order and manner as Mortgagee may elect.
19. Cumulative Remedies. The rights of Mortgagee arising under the clauses
and covenants contained in this Mortgage shall be separate, distinct and
cumulative and none of these shall be in exclusion of the other. No act of
Mortgagee shall be construed as an election to proceed under any one provision
herein to the exclusion of any other provision, anything herein or otherwise to
the contrary notwithstanding.
20. Financial Reports. With respect to the Mortgaged Premises and
Xxxxxxxxx's operation thereof, Xxxxxxxxx agrees to keep proper books of record
and account in accordance with the requirements set forth in the Loan Agreement.
Mortgagee shall have the right to examine the books of record and account of
Xxxxxxxxx and to discuss the affairs, finances and accounts of Xxxxxxxxx and to
be informed as to the same by Xxxxxxxxx, all at such reasonable times and
intervals as Mortgagee may request. Xxxxxxxxx agrees to furnish to Mortgagee
such financial statements and other financial information regarding the
Mortgaged Premises as required under the Loan Agreement. On request, Mortgagor
will furnish convenient facilities for the audit and verification of such
statements by Mortgagee.
21. Security Interest. This Mortgage shall also be considered to be and
shall be construed as a security agreement under the UCC with respect to any
property described herein which is not a part of the real property described
herein.
21.1 Assembly of Collateral. Upon default hereunder and acceleration
of the indebtedness pursuant to the provisions hereof, Mortgagee may at its
discretion require Mortgagor to assemble the Collateral and make it
available to Mortgagee at a place reasonably convenient to both parties to
be designated by Mortgagee.
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21.2. Notice of Sale. Mortgagee shall give Mortgagor written notice of
the time and place of any public sale of any of the Collateral or of the
time after which any private sale or other intended disposition thereof is
to be made by sending notice to Mortgagor at least five (5) days before the
time of the sale or other disposition, which provisions for notice
Xxxxxxxxx agrees are reasonable.
21.3 Additional Documents. Mortgagee is authorized to file any
financing statement, renewal affidavit, certificate, continuation
statement, inventory or other documents that it deems necessary in order to
protect, preserve, continue, extend or maintain the security interest under
and the priority of this Mortgage. Mortgagor will, upon demand, pay any
expenses incurred by Mortgagee in the preparation and filing of any such
documents in the event such documents are necessary as a result of any
request or other action of Mortgagor.
22. Intentionally deleted.
23. Bankruptcy. The entire indebtedness secured by this Mortgage shall
become and immediately be due at the option of Mortgagee if by order of a court
of competent jurisdiction a receiver or liquidator or trustee of Mortgagor or of
all or any part of the Mortgaged Premises, shall be appointed and shall not have
been discharged within sixty (60) days; or, if by decree of such court,
Mortgagor shall be adjudicated bankrupt or insolvent or the Mortgaged Premises
shall have been sequestered and such decree shall have continued undischarged
and unstayed for sixty (60) days after the entry thereof; or if Mortgagor shall
file a petition in voluntary bankruptcy or seeking relief under any provision of
any bankruptcy or insolvency law or shall consent to the filing of any
bankruptcy petition against Mortgagor under any such law; or if Mortgagor shall
file a petition or answer seeking reorganization or an arrangement with
creditors; or if (without limitation of the generality of the foregoing)
Mortgagor shall make an assignment for the benefit of creditors, or shall admit
in writing an inability to pay debts generally as they become due, or shall
consent to the appointment of a receiver, or trustee or liquidator of Mortgagor,
or of all or any part of the Mortgaged Premises.
24. Mineral Interests. Mortgagor agrees that the making of any oil, gas or
mineral lease or the sale or conveyance of any mineral interest or right to
explore for minerals under, through or upon the Mortgaged Premises would impair
the value of the Mortgaged Premises as security for payment of the indebtedness
and that Mortgagor shall have no right, power or authority to lease the
Mortgaged Premises, or any part thereof, for oil, gas or other mineral purposes,
or to grant, assign or convey any mineral interest of any nature, or the right
to explore for oil, gas and other minerals, without first obtaining from
Mortgagee express written permission, which permission shall not be valid until
recorded. Xxxxxxxxx further agrees that if Xxxxxxxxx shall make any such lease
or attempt to grant any such mineral rights without such prior written
permission, then Mortgagee shall have the option, without notice, to declare the
same to be a default hereunder and to declare the indebtedness hereby secured
immediately due and payable. Whether or not Mortgagee shall consent to such
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lease or grant of mineral rights, Mortgagee shall receive the entire
consideration to be paid for such lease or grant of mineral rights, with the
same to be applied upon the indebtedness hereby secured; provided, however, that
the acceptance of such consideration shall in no way impair the lien of this
Mortgage on the entire Mortgaged Premises and all rights therein, including all
mineral rights.
25. Occupancy Leases. With respect to all subsisting and future leases (the
"Occupancy Leases") affecting the Mortgaged Premises, Xxxxxxxxx agrees (a) to
faithfully perform Mortgagor's covenants as lessor under the Occupancy Leases
and neither do, nor neglect to do, nor permit to be done, anything (other than
pursuing the enforcement of the terms of such leases in the exercise of the
lessor's remedies hereunder following default on the party of any lessee) which
might cause the modification or termination of any of the Occupancy Leases, or
of the obligations of any lessee or any person claiming through such lessee, or
which might diminish or impair the value of any of the Occupancy Leases or the
rents provided for therein, or the interest of Mortgagor or Mortgagee therein or
thereunder; (b) not to anticipate for more than one (1) month any rents that may
become collectible under any of the Occupancy Leases; (c) not to execute a
mortgage or create or permit a lien affecting the Mortgaged Premises which might
be or become superior to any of the Occupancy Leases; (d) to execute and deliver
to Mortgagee, within ten (10) days after request therefor, such collateral
assignments, estoppel certificates, subordination agreements, attornment
agreements and other instruments as might be required by Mortgagee with respect
to any Occupancy Leases now or hereafter affecting the Mortgaged Premises; and
(e) all representations made by Mortgagor to Mortgagee in connection with the
Occupancy Leases are and will be true and correct.
26. Prohibited Acts. Mortgagor will not sell, convey, contract to sell,
mortgage or otherwise transfer or encumber all or any part of the Mortgaged
Premises; or sell, convey, pledge or encumber or permit the sale, conveyance,
pledge or encumbrance of any of the interests in the entity owning the Mortgaged
Premises, or change or dissolve such owning entity, except as expressly
permitted pursuant to Section 9.2 of the Loan Agreement. The occurrence of any
of the aforesaid events without Mortgagee's prior written approval, at
Mortgagee's option, shall constitute an event of default hereunder, and
Mortgagee may declare the indebtedness hereby secured immediately due and
payable and exercise any or all of Mortgagee's rights herein provided. This
provision shall apply to each and every sale, conveyance, contract to sell or
transfer, regardless of whether or not Mortgagee has consented to or waived its
rights hereunder, whether by action or inaction, in connection with any previous
sale, conveyance, contract to sell or transfer, whether one or more.
27. Indemnity. Xxxxxxxxx agrees to indemnify and hold Mortgagee harmless
from and against and to reimburse Mortgagee with respect to, any and all claims,
demands, causes of action, loss, damage, liabilities, costs and expenses
(including attorneys' fees and court costs) of any and every kind or character,
known or unknown, fixed or contingent, asserted against or incurred by Mortgagee
at any time and from time to time by reason of or arising out of: (a) the breach
of any representation or warranty of Mortgagor set forth in this Mortgage; (b)
the failure of Mortgagor to perform any obligation herein required to be
performed by Xxxxxxxxx; and (c) the ownership, construction, occupancy,
operation, use and maintenance of the Mortgaged Premises prior to the date (the
"Release Date") on which (i) the indebtedness secured by this Mortgage has been
paid and performed in full and this Mortgage has been released, and (ii) if
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Mortgagee becomes the owner of the Mortgaged Premises by way of foreclosure of
the lien hereof, deed in lieu of such foreclosure or otherwise, the Mortgaged
Premises have been sold by Mortgagee; provided, however, this indemnity shall
not apply with respect to matters caused by or arising out of the actions of
Mortgagee. All of the foregoing covenants, representations, warranties and
indemnities made by Xxxxxxxxx shall be continuing and shall be true and correct
for the period from the date hereof through and as of the Release Date with the
same force and effect as if made each day throughout such period, and all of
such covenants, representations, warranties, and indemnities shall survive the
Release Date.
28. Fixture Filing. Certain of the Collateral is or will become fixtures on
the real estate described herein and this Mortgage, as being recorded in the
real estate records of in which the Mortgaged Premises are located, shall be
effective as a financing statement on such Mortgaged Premises which is or may
become fixtures.
29. Cross-Default. A default by Mortgagor under this Mortgage, the Loan
Agreement, the Note or any of the other Loan Documents executed in connection
with the Loan Agreement, shall constitute a default under all such agreements,
instruments and obligations.
30. Cross-Collateralization. This Mortgage shall specifically secure,
without limitation, the indebtedness of Mortgagor to Mortgagee pursuant to the
Note and Loan Agreement, together with all extensions, renewals, amendments,
future advances and increases of the Note and Loan Agreement as well as all
other indebtedness of the Mortgagor to Mortgagee.
31. No Homestead. Mortgagor hereby represents, warrants, covenants and
agrees that the Mortgaged Premises do not constitute, and will not become during
the term of this Mortgage, homestead property of Mortgagor as such is defined
under applicable law.
32. Subrogation. To the extent funds are advanced under the Note hereby
secured for the purpose of paying the indebtedness secured by any mortgage lien
having priority over the lien of this Mortgage, Mortgagee shall be subrogated to
any and all rights, superior titles, liens and equities owned or claimed by the
holder of such prior mortgage. Except with respect to the priority of any
mortgage to which Mortgagee is subrogated pursuant to the provisions hereof, the
terms and provisions of this Mortgage shall govern the rights and remedies of
Mortgagee and shall supersede the rights and remedies provided under any
mortgage to which Mortgagee is subrogated.
33. Governmental Regulation of Mortgagee. Mortgagee is subject to various
governmental authorities and the laws, rules and regulations enacted, adopted
and promulgated by them. To the extent that Mortgagee's authority to perform its
obligations (if any) under this Mortgage, now or hereafter, may be limited or
regulated by such governmental authorities, Mortgagee is hereby excused from
such performance.
34. Mortgagee's Failure to Perform. If Mortgagee fails to perform its
obligations (if any) under this Mortgage (except to the extent excused therefrom
as provided in paragraph 33 above), Mortgagor shall notify Mortgagee in writing
(the "Notice") within thirty (30) days after Xxxxxxxxx's obtaining knowledge of
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such failure. Each such Notice shall describe in detail the act or event
constituting the non-performance by Mortgagee. Mortgagee shall have thirty (30)
days after its receipt of the Notice to cure any such failure to perform, unless
such cure cannot be accomplished using reasonable efforts within said thirty
(30) day period, in which case Mortgagee shall have such additional time as may
be necessary, using reasonable efforts, to cure such non-performance (the
"Mortgagee Cure Period").
35. Mortgagor's Rights and Remedies. The giving of the Notice and the
expiration of the Mortgagee Cure Period shall be conditions precedent to any
right of the Mortgagor to bring an action against Mortgagee. Mortgagor hereby
expressly agrees that its sole remedy against Mortgagee in any such action shall
be that of specific performance.
36. Governing Law. The parties hereto agree that this Mortgage shall be
construed according to the laws of the State of Oklahoma.
37. Construction. Wherever used in this Mortgage, unless the context
clearly indicates a contrary intent or unless otherwise specifically provided
herein, the word "Mortgagor" shall mean "Mortgagor and/or any subsequent owner
or owners of the Mortgaged Premises", the word "Mortgagee" shall mean "Mortgagee
or any subsequent holder or holders of this Mortgage", the word "Note" shall
mean "the note secured by this Mortgage" and the word "person" shall mean "an
individual, corporation, partnership or unincorporated association". The
paragraph headings contained herein are included as a matter of convenience and
are not intended to define, limit or modify the terms of this Mortgage. This
Mortgage shall be binding on Mortgagor and all heirs, personal representatives,
successors and assigns of Xxxxxxxxx and inure to the benefit of Mortgagee and
all heirs, personal representatives, successors and assigns of Mortgagee.
38. Amendment. This Mortgage cannot be changed except by an agreement in
writing signed by the party against whom enforcement of the change is sought.
39. Special Provision - Revolving Note. Pursuant to the terms of Section
7.28.1 of the Loan Agreement, Xxxxxxxxx is entitled to borrow, pay, re-borrow
and re-pay sums advanced under the Note. Therefore, the outstanding balance of
the Note is subject to fluctuations up or down due to such advances and
re-advances of loan proceeds and/or future repayments of such loan proceeds from
time to time over the term of the Note, all of which amounts are contemplated by
Xxxxxxxxx and Mortgagee at the time this Mortgage is executed. In addition, the
outstanding principal balance of the Note may, from time to time, be reduced to
a zero balance without such repayment operating to extinguish and release the
lien and security interest created by this Mortgage. This Mortgage shall remain
in full force and effect as to any subsequent future advances made after any
zero balance it attained without loss of priority until the Note and other
secured indebtedness is paid in full and fully performed and satisfied and all
commitment of Mortgagee to make advances under the Note shall have been
terminated in whole. Mortgagor waives the operation of any applicable statute,
law or regulation having a contrary effect.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK -
SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, Xxxxxxxxx has duly executed this instrument as of the
date first above written.
TULSA PROMENADE, LLC, a Delaware limited liability
company
By: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership, its sole member
By: GLIMCHER PROPERTIES CORPORATION,
a Delaware corporation, its general partner
By:__________________________________
Xxxxxx X. Xxxxxxx
Executive Vice President
STATE OF OHIO )
)
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this _____ day of
March, 2006, by Xxxxxx X. Xxxxxxx, as Executive Vice President of Glimcher
Properties Corporation, as the sole general partner of Glimcher Properties
Limited Partnership, as the sole member of Tulsa Promenade, LLC, a Delaware
limited liability company, on behalf of the limited liability company.
_______________________________
Notary Public
My Commission Expires:_____________
(Notarial Seal)
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Exhibit "A"
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Legal Description
