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Exhibit 10.79
Target
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, having an office at 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000 ("Borrower"), in consideration of the sum of
Fourteen Million Dollars ($14,000,000.00) does hereby GRANT, BARGAIN, SELL,
MORTGAGE AND CONVEY the fee simple title and the lessor's interest under a
certain ground lease with Xxxxxx Xxxxxx Corporation as tenant dated November 30,
1994, a Short Form of which is of record in Volume 682, Page 860, Recorder's
Office, Licking County, Ohio in and to certain real property more fully
described in Exhibit "A" attached hereto and incorporated herein (the
"Property") unto THE HUNTINGTON NATIONAL BANK, a national banking association,
having an office at 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 ("Huntington").
TOGETHER WITH the following, whether now owned or hereafter acquired
by Borrower: (a) all improvements now or hereafter attached to or placed,
erected, constructed or developed on the Property (collectively the
"Improvements"); (b) all fixtures, furnishings, equipment, inventory, and other
articles of personal property (collectively the "Personal Property") that are
now or hereafter attached to or used in or about the Improvements or that are
necessary or useful for the complete and comfortable use and occupancy of the
Improvements for the purposes for which they were or are to be attached, placed,
erected, constructed or developed or that may be used in or related to the
planning, development, financing or operation of the Improvements, and all
renewals of or replacements or substitutions for any of the foregoing, whether
or not the same are or shall be attached to the Improvements or the Property;
(c) all water and water rights, timber, crops, and mineral interests pertaining
to the Property; (d) all building materials and equipment now or hereafter
delivered to and intended to be installed in or on the Improvements or the
Property; (e) all plans and specifications for the Improvements; (f) all
contracts relating to the Property, the Improvements or the Personal Property;
(g) all deposits (including, without limitation, tenants' security deposits),
bank accounts, funds, documents, contract rights, accounts, commitments,
construction agreements, architectural agreements, general intangibles
(including, without limitation, trademarks, trade names and symbols),
instruments, notes and chattel paper arising from or by virtue of any
transactions related to the Property, the Improvements or the Personal Property;
(h) all permits, licenses, franchises, certificates, and other rights and
privileges obtained in connection with the Property, the Improvements or the
Personal Property; (i) all proceeds arising from or by virtue of the sale, lease
or other disposition of the Property, the Improvements, the Personal Property or
any portion thereof or interest therein; (j) all proceeds (including, without
limitation, premium refunds) of each policy of insurance relating to the
Property, the Improvements or the Personal Property; (k) all proceeds from the
taking of any of the Property, the Improvements, the Personal Property or any
rights appurtenant thereto by right of eminent domain or by private or other
purchase in lieu thereof (including, without limitation, change of grade of
streets, curb cuts or other rights of access), for any public or quasi-public
use under any law; (l) all right, title and interest of Borrower in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Property; (m) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (n) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (o) other interests of every kind and character
that Borrower now has or at any time hereafter acquires in and to the Property,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Borrower with respect thereto (all
of the same, including the Property, collectively the "Mortgaged Property").
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TO HAVE AND TO HOLD the Mortgaged Property, together with the rights,
privileges and appurtenances thereto belonging, unto Huntington and its
successors and assigns forever, and Borrower hereby binds itself and its
successors and assigns to warrant and forever defend the Mortgaged Property unto
Huntington and its successors and assigns, against the claim or claims of all
persons claiming or to claim the same or any part thereof, except rights of
Xxxxxx Xxxxxx Corporation as tenant under the aforementioned ground lease (the
"Ground Lease"), and easements, agreements and restrictions of record and
current real estate taxes and assessments.
THE MORTGAGE IS GIVEN TO SECURE: the full and prompt payment, whether
at stated maturity, accelerated maturity or otherwise, of any and all
indebtedness, whether fixed or contingent (collectively the "Indebtedness") and
the complete, faithful and punctual performance of any and all other obligations
(collectively the "Obligations") of Borrower to Huntington under the terms and
conditions of (a) a Note of even date herewith made by Borrower, Weberstown
Mall, LLC and Glimcher Development Corporation in the amount of Fourteen Million
Dollars ($14,000,000.00), payable not later than ___________, 1999, unless
extended, and any and all renewals, amendments, modifications, reductions and
extensions thereof and substitutions therefor (the "Note"); (b) the Mortgage;
and (c) any other instrument, document, certificate or affidavit heretofore, now
or hereafter given by Borrower evidencing or securing or by any person
guaranteeing (the "Guarantors") all or any part of the foregoing (the same
together with the Note and the Mortgage, collectively the "Loan Documents").
Borrower, for itself and its successors and assigns, hereby covenants
with Huntington, its successors and assigns, that:
1. TITLE. Borrower represents that it has good and marketable title in
fee simple to the Mortgaged Property, subject to the Ground Lease, and
easements, agreements and restrictions of record and current real estate taxes
and assessments. If the interest of Huntington in the Mortgaged Property or any
part thereof shall be endangered or shall be attacked, directly or indirectly,
Borrower hereby authorizes Huntington, at Borrower's expense, to take all
necessary and proper steps for the defense of such interest, including the
employment of counsel, the prosecution or defense of litigation and the
compromise or discharge of claims made against such interest. Any sums so
expended by Huntington shall be charged against Borrower and collectible in
accordance with the terms of Section 12 hereof.
2. FURTHER ASSURANCES. Borrower shall furnish to Huntington evidence of
the title of Borrower to the Mortgaged Property from time to time hereafter as
may be deemed reasonably necessary by and satisfactory to Huntington, and
Borrower shall promptly pay the cost of said title evidence when due and
payable.
Borrower, upon the request of Huntington, shall execute, acknowledge,
deliver, file and record such further instruments and do such further acts as
may be necessary, desirable or proper to carry out the purposes of the Loan
Documents and to subject to the liens and security interests created thereby any
property intended by the terms thereof to be covered thereby, including
specifically, but without limitation, any renewals, additions, substitutions,
replacements, improvements or appurtenances to the Mortgaged Property.
3. SUBROGATION FOR FURTHER SECURITY. Huntington shall be subrogated for
its further security to the lien, although released of record, of any and all
encumbrances paid with any advance of Indebtedness; provided, however, that the
terms and provisions hereof shall govern the rights and remedies of Huntington
and shall supersede the terms, provisions, rights, and remedies under the lien
or liens to which Huntington is subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Huntington, which consent may be withheld in Huntington's
sole discretion, Borrower shall not (a) sell, assign, mortgage, pledge or
otherwise convey or further encumber the Mortgaged Property, or any portion
thereof, or legal, equitable or beneficial interest therein; (b) sell, assign,
pledge or otherwise transfer any beneficial interests in Borrower which
individually or in the aggregate would have the effect of transferring the power
to direct the operations of Borrower or the Mortgaged Property; (c) contract for
any of the same; (d) permit the Mortgaged Property,
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or any portion thereof, or legal, equitable or beneficial interest therein, to
be subject to any superior or inferior lien or encumbrance; (e) subdivide,
resubdivide or submit to the condominium form of ownership all or any portion of
the Mortgaged Property, or any portion thereof; or (f) initiate or acquiesce in
any change in the zoning classification of the Property or any portion thereof.
5. PAYMENT OF INDEBTEDNESS. Borrower shall promptly pay the
Indebtedness as the same becomes due and payable.
6. ESTOPPEL CERTIFICATE. Borrower shall furnish to Huntington within
ten (10) days of any written request of Huntington, a written statement, duly
acknowledged by Borrower, setting forth the sums secured by the Mortgage and any
right of set-off, counterclaim or other defense which Borrower alleges to exist
against such sums and obligations secured by the Mortgage.
7. TAXES AND OTHER IMPOSITIONS. Borrower shall promptly pay or cause to
be paid before delinquency all taxes, assessments, charges, fines or
impositions, general, local or special (collectively the "Impositions"), levied
upon the Mortgaged Property, or any part thereof, or upon Huntington's interest
therein, or upon the Mortgage or the Indebtedness, by any duly or legally
constituted public authority, municipality, township, county or state or the
United States, and upon request, will provide evidence of the payment thereof to
Huntington; provided that Borrower, at Borrower's own cost and expense may, if
it shall in good faith so desire, contest the validity or amount of any
Impositions, in which event Borrower may defer the payment thereof for such
period as such contest shall be actively prosecuted and shall be pending
undetermined; further provided, however, that Borrower shall not allow any such
Impositions so contested to remain unpaid for such length of time as shall
permit all or any portion of the Mortgaged Property, or the lien thereon created
by such item, to be sold by federal, state, county or municipal authority for
the nonpayment thereof. Pending any such contest, Borrower shall maintain
adequate book reserves with respect to such Impositions being contested.
In the event that one or more of the Impositions on Huntington's
interest in the Mortgaged Property, the Mortgage or the Indebtedness cannot be
lawfully paid by Borrower, then Borrower shall repay the Indebtedness in full
without penalty within sixty (60) days after demand therefor by Huntington.
8. ESCROW. Borrower, in order to more fully protect the security of the
Mortgage, does hereby covenant and agree that, if Borrower shall fail to timely
pay or cause to be paid taxes or assessments as provided above, or in the event
of any other default and Huntington does not then elect to exercise its other
remedies, then Borrower shall, upon request of Huntington, pay to Huntington on
the first day of each month, until the Indebtedness is fully paid, a sum equal
to one-twelfth (1/12) of the known or estimated yearly taxes, assessments,
premiums for such insurance as may be required by the terms hereof. Huntington
shall hold such monthly payments which may be mingled with its general funds,
without obligation to pay interest thereon, unless otherwise required by
applicable law, to pay such taxes, assessments, and insurance premiums when due.
Borrower agrees that sufficient funds shall be so accumulated for the payment of
said charges one (1) month prior to the due date thereof and that Borrower shall
furnish Huntington with proper statements covering the same fifteen (15) days
prior to the due dates thereof. In the event of foreclosure of the Mortgage, or
if Huntington should take a deed in lieu of foreclosure, the amount so
accumulated shall be credited on account of the unpaid principal or interest. If
the total of the monthly payments as made under this Section 9 shall exceed the
payments actually made by Huntington, such excess shall be credited on
subsequent monthly payments of the same nature, but if the total of such monthly
payments so made under this Section 9 shall be insufficient to pay such taxes,
assessments, and insurance premiums then due, then said Borrower shall pay upon
demand the amount necessary to make up the deficiency, which payments shall be
secured by the Mortgage. To the extent that all the provisions of this Section 9
for such payments of taxes, assessments, and insurance premiums to Huntington,
are complied with, Borrower shall be relieved of compliance with the covenants
contained in Sections 7 and 8 herein as to the amounts paid only, but nothing
contained in this Section 9 shall
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be construed as in any way limiting the rights of Huntington at its option to
pay any and all of said items when due.
9. INSURANCE. In the event Borrower shall acquire title to the
Improvements, it shall furnish Huntington such insurance coverage, and in such
amounts as Huntington may reasonably require.
10. WASTE; REPAIR. Borrower shall neither commit nor permit any waste
on the Property and shall keep all Improvements now or hereafter erected on the
Property in good condition and repair.
11. ADVANCES SECURED BY MORTGAGE. Upon failure of Borrower to comply
with any of these covenants and agreements as to the payment of taxes or
assessment, and other charges, Huntington may, at its option, pay the same, and
any sums so paid by Huntington, together with the reasonable fees of counsel
employed by Huntington in consultation and in connection therewith, shall be
charged against Borrower, shall be immediately due and payable by Borrower,
shall bear interest at the Default Rate of Interest (as defined in the Note) and
shall be a lien upon the Mortgaged Property and be secured by the Mortgage and
may be collected in the same manner as the principal debt hereby secured.
12. USE. Unless Huntington otherwise agrees in writing, Borrower shall
not allow changes in the nature of the occupancy for which the Property and
Improvements were intended at the time the Mortgage was executed. Borrower shall
comply with the laws, ordinances, regulations and requirements of any
governmental body applicable to the Mortgaged Property, both during the
construction of any Improvements on the Property and subsequent to the
completion thereof, and Borrower shall not permit the use thereof for any
illegal purpose.
13. CONDEMNATION. If all or any part of the Property or Improvements is
damaged, taken or acquired, either temporarily or permanently, in any
condemnation proceeding or by exercise of the right of eminent domain or, with
Huntington's consent, by any conveyance in lieu thereof, the amount of any award
or other payment for such taking relating to the Property, or conveyance or
damages made in consideration thereof, to the extent of the full amount of the
then remaining unpaid Indebtedness, is hereby assigned to Huntington, and
Huntington is empowered to collect and receive the same and to give proper
receipts therefor in the name of Borrower, and the same shall be paid forthwith
to Huntington. Any award or payment so received by Huntington may at the option
of Huntington be retained and applied, in whole or in part, to the Indebtedness
(whether or not then due and payable) in such manner as Huntington may determine
or released in whole or in part to Borrower.
14. ASSIGNMENT OF GROUND LEASE.
(a) Borrower hereby absolutely and unconditionally assigns,
transfers and sets over unto Huntington and Huntington's successors and assigns
all of its right, title and interest as lessor under the Ground Lease and all
future leases covering the Mortgaged Property, together with any extensions or
renewals thereof and any guaranties of any tenants' obligations thereunder, and
all of the rents, royalties, bonuses, income, receipts, revenues, issues and
profits now due or which may hereafter become due under the Ground Lease or any
extensions or renewals thereof, all liquidated damages following default under
the Ground Lease and all proceeds payable under any policy of insurance covering
loss of rents resulting from untenantability caused by damage to any part of the
Mortgaged Property (such rents, income, receipts, revenues, issues, profits and
other moneys assigned hereby are hereinafter collectively called "Rents"),
together with any and all rights and remedies which Borrower may have against
the tenant under the Ground Lease or others in possession of the Mortgaged
Property or any part thereof for the collection or recovery of Rents so
assigned. Prior to an Event of Default, as hereinafter defined, Borrower shall
have a license to collect and receive all Rents as trustee for the benefit of
Huntington and Borrower.
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(b) Borrower hereby represents, warrants and agrees that:
(i) Borrower has good title to lessor's interest in
the Ground Lease and Rents hereby assigned and has the right, power and capacity
to make this assignment. No person or entity other than Borrower has or will
have any right, title or interest in or to the Ground Lease or Rents.
(ii) Borrower shall, at Borrower's sole cost and
expense, perform and discharge all of the obligations and undertakings of the
landlord under the Ground Lease and give prompt notice to Huntington of any
failure to do so. Borrower shall use all reasonable efforts to enforce or secure
the performance of each and every obligation and undertaking the tenant under
the Ground Lease and shall appear in and prosecute or defend any action or
proceeding arising under, or in any manner connected with, the Ground Lease or
the obligations and undertakings of the tenant thereunder.
(iii) Borrower shall not further pledge, transfer,
mortgage or otherwise encumber the Ground Lease or the Rents.
(c) Huntington shall not be obligated to perform or discharge
any obligation or duty to be performed or discharged by Borrower under the
Ground Lease; and Borrower hereby agrees to indemnify Huntington for, and to
save Huntington harmless from, any and all liability, damage or expense arising
from the Ground Lease or from this assignment. All amounts indemnified against
hereunder, including reasonable attorneys' fees if paid by Huntington, shall
bear interest at the Default Rate of Interest, as defined in the Note, and shall
be payable by Borrower immediately without demand and shall be secured hereby.
This assignment shall not place responsibility for the control, care,
management, or repair of the Mortgaged Property upon Huntington or make
Huntington responsible or liable for any negligence in the management,
operation, upkeep, repair or control of same resulting in loss or damage or
injury or death to any party.
(d) Upon the occurrence of an Event of Default as hereinafter
defined:
(i) All Rents assigned hereunder shall be paid
directly to Huntington, and Huntington may notify the tenant under the Ground
Lease to pay all of the Rents directly to Huntington, for which this assignment
shall be sufficient warrant;
(ii) Huntington shall have the right in the event of
the institution of foreclosure proceedings to have a receiver appointed for the
collection of the Rents.
In the event that Huntington shall pursue its remedies under
Subsections (i) or (ii) above, the net income, after allowing a reasonable fee
for the collection thereof of the Mortgaged Property, may be applied toward the
payment of taxes and assessments and protection of the Mortgaged Property or
Huntington's lien thereon, and other charges against the Mortgaged Property, or
in the reduction of the Indebtedness and the payment of interest, as Huntington
may elect. If the Rents are not sufficient to meet the costs of collecting the
Rents, any funds expended by Huntington for such purposes shall become
indebtedness of Borrower to Huntington secured by the Mortgage. Unless
Huntington and Borrower agree in writing to other terms of payment, such amounts
shall be payable upon demand from Huntington to Borrower and shall bear interest
from the date of disbursement at the Default Rate of Interest stated in the
Note.
The exercise or failure to exercise any of the above remedies shall not
in any way preclude or abridge the right of Huntington to foreclose the Mortgage
or to take any other legal or equitable action thereon. Huntington shall have
such rights or privileges as aforesaid regardless of the value of the Mortgaged
Property given as security hereunder, and regardless of the solvency or
insolvency of any party bound for the payment of the Indebtedness or the other
sums hereby secured.
(e) Borrower hereby authorizes and directs the tenant under
the Ground Lease to pay Rents to Huntington upon written demand by Huntington,
without further consent of Borrower the tenant under the Ground Lease may rely
upon any written statement delivered by
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Huntington to it. Any such payment to Huntington shall constitute payment to
Borrower under the Ground Lease.
(f) There shall be no merger of the estates created by the
Ground Lease with the fee estate of the Property and Improvements without the
prior written consent of Huntington.
15. SECURITY AGREEMENT. The Mortgage is intended to be a security
agreement pursuant to the Uniform Commercial Code as enacted in the State of
Ohio (the "UCC") for any of the Mortgaged Property comprising personal property
and fixtures which may be subject to a security interest pursuant to the UCC,
and Borrower hereby grants to Huntington a security interest in said personal
property and fixtures, whether said property is now existing or hereafter
acquired, together with replacements, replacement parts, additions, repairs and
accessories incorporated therein or affixed thereto and, if sold or otherwise
disposed of, the proceeds (including insurance proceeds) thereof. Borrower
agrees to execute and deliver to Huntington UCC financing statements covering
said personal property and fixtures from time to time and in such form as
Huntington may require to perfect or maintain the priority of Huntington's
security interest with respect to said personal property and fixtures, and
Borrower shall bear all costs thereof. Borrower shall not create or suffer to be
created any other security interest in said personal property and fixtures,
including replacements thereof and additions thereto. Upon the occurrence of any
Event of Default as set forth herein, Huntington shall have the remedies of a
secured party under the UCC and, at Huntington's option, may also invoke the
remedies provided herein with respect to such property.
16. DEFAULT. The term "Event of Default" shall have the same meaning as
set forth in the Note, which meaning is incorporated by this reference herein.
Upon the occurrence of any such Event of Default beyond any applicable
cure period, at the option of Huntington, without notice or demand, the same
being hereby expressly waived, the entire amount shall become immediately due
and payable, and, in addition to any other right or remedy which Huntington may
now or hereafter have at law, in equity, or under the Loan Documents, Huntington
shall have the right and power: (a) to foreclose upon the Mortgage and the lien
hereof; (b) to sell the Mortgaged Property according to law; and (c) to enter
upon and take possession of the Mortgaged Property subject to the rights of the
tenant under the Ground Lease and/or have a receiver appointed therefor as set
forth herein.
17. NO WAIVER. The failure of Huntington to exercise any option to
declare the maturity of the principal debt or any other sums hereby secured
under any provision of any of the Loan Documents, or to forbear from exercising
any right or remedy available to Huntington under any provision of any of the
other Loan Documents, shall not be deemed a waiver of the right to exercise such
option, right or remedy or declare such maturity as to such past, continuing or
subsequent violation of any of the covenants and agreements of the Loan
Documents. Acceptance by Huntington of partial payments shall not constitute a
waiver of any Event of Default. From time to time, Huntington may, at
Huntington's option, without giving notice to or obtaining the consent of
Borrower, Borrower's successors or assigns, any junior lienholder or any of the
Guarantors, without liability on Huntington's part and notwithstanding
Borrower's breach of any covenant or agreement of Borrower in the Mortgage,
extend the time for payment of the Indebtedness, or any part thereof, reduce the
payments thereon, release anyone liable on any of said Indebtedness, accept a
renewal note or notes therefor, release from the lien of the Mortgage any part
of the Mortgaged Property, take or release other or additional security,
reconvey any part of the Mortgaged Property, consent to any map or plan of the
Mortgaged Property, consent to the granting of any easement, join in any
extension or subordination agreement, or agree in writing with Borrower to
modify the rate of interest or period of amortization of the Note or to change
the amount of the monthly installments payable thereunder. Any actions taken by
Huntington pursuant to the terms of this Section 16 shall not affect the
obligation of Borrower or Borrower's successors or assigns to pay the sums
secured by the Mortgage and to observe the covenants of Borrower contained
herein, shall not affect the guaranty of any of the Guarantors, and shall not
affect the lien or priority of lien of the Mortgage on the Mortgaged Property.
Borrower shall pay Huntington a reasonable service charge, together with such
title insurance
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premiums and attorney's fees as may be incurred at Huntington's option for any
such action if taken at Borrower's request.
18. PARCELS; WAIVER OF MARSHALLING. In the event of foreclosure of the
Mortgage, the Mortgaged Property may be sold in one or more parcels or as an
entirety as Huntington may elect.
Notwithstanding the existence of any other security interests in the
Mortgaged Property held by Huntington or by any other party, Huntington shall
have the right to determine the order in which any or all of the Mortgaged
Property shall be subjected to the remedies provided herein. Huntington shall
have the right to determine the order in which any or all portions of the
Indebtedness are satisfied from the proceeds realized upon the exercise of the
remedies provided herein. Borrower, any party who becomes liable for Borrower's
obligations and covenants under the Mortgage, and any party who now or hereafter
acquires a security interest in the Mortgaged Property, or any portion thereof,
hereby waives any and all right to require the marshalling of assets in
connection with the exercise of any of the remedies permitted by applicable law
or provided herein.
19. COSTS OF COLLECTION. Borrower hereby agrees to pay to Huntington
all costs of foreclosing the Mortgage, and all costs of enforcing, collecting
and securing, and of attempting to enforce, collect and secure, the Note,
including, without limitation, reasonable attorneys' fees, appraisers' fees,
court costs, notice charges and title insurance charges, whether such attempt be
made by suit, in bankruptcy, or otherwise, and such costs and any other sums due
Huntington under the Loan Documents may be included in any judgment or decree
rendered.
20. HAZARDOUS SUBSTANCES. (a) Borrower hereby covenants and agrees with
Huntington that the following terms shall have the following meanings:
(i) "Environmental Laws" mean all federal, state and
local laws, statutes, ordinances and codes relating to the use, storage,
treatment, generation, transportation, processing, handling, production or
disposal of any Hazardous Substance and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives with respect
thereto.
(ii) "Hazardous Substance" means, without limitation,
any flammable explosives, radioactive materials, asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, petroleum and
petroleum based products, methane, hazardous materials, hazardous
wastes, hazardous or toxic substances or related materials, as defined
in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections
1801, et seq.), the Resource Conservation and Recovery Act, as amended
(42 U.S.C. Sections 6901, et seq.), the Toxic Substances Control Act,
as amended (15 U.S.C. Sections 2601, et seq.), or any other applicable
Environmental Law.
(iii) "Indemnitee" means Huntington, its participants
in the loan evidenced by the Note and all subsequent holders of the Mortgage,
their respective successors and assigns, their respective officers, directors,
employees, agents, representatives, contractors and subcontractors and any
subsequent owner of the Property and Improvements who acquires title thereto
from or through Huntington.
(iv) "Release" has the same meaning as given to that
term in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, et seq.) and the regulations
promulgated thereunder.
(b) Borrower represents and warrants to Huntington that, to its
knowledge after due investigation except as may be set forth in the
environmental report for the Property delivered to Huntington in connection
herewith: (i) the Property and Improvements are not being or have not been used
for the storage, treatment, generation, transportation, processing, handling,
production or disposal of any Hazardous Substance in violation of any
Environmental Laws; (ii) the Property and Improvements do not contain any
Hazardous Substances in violation of any
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Environmental Laws; (iii) there has been no Release of any Hazardous Substance
on, at or from the Property and Improvements or any property adjacent to or
within the immediate vicinity of the Property and Improvements and Borrower has
not received any form of notice or inquiry with regard to such a Release or
threat of such a Release; (iv) no event has occurred with respect to the
Property and Improvements which, with the passage of time or the giving of
notice, or both, would constitute a violation of any applicable Environmental
Law; (v) there are no agreements or orders or directives of any federal, state
or local governmental agency or authority relating to the Property and
Improvements which require any work, repair, construction, containment, clean
up, investigations, studies, removal or other remedial action with respect to
the Property and Improvements; and (vi) there are no actions, suits, claims or
proceedings, pending or threatened, which seek any remedy, that arise out of the
condition, ownership, use, operation, sale, transfer or conveyance of the
Property and Improvements and (1) a violation or alleged violation of any
applicable Environmental Law, (2) the presence of any Hazardous Substance or a
Release of any Hazardous Substance or the threat of such a Release, or (3) human
exposure to any Hazardous Substance.
(c) Borrower covenants and agrees with Huntington as follows:
(i) Borrower shall keep, and shall cause the tenant
under the Ground Lease and all subtenants, licensees and occupants of the
Property and Improvements to keep, the Property and Improvements free of all
Hazardous Substances, except for Hazardous Substances stored, treated,
generated, transported, processed, handled, produced or disposed of in the
normal operation of the Property and Improvements as a shopping center in
accordance with all Environmental Laws.
(ii) Borrower shall comply with, and shall cause the
tenant under the Ground Lease, all operators, subtenants, licensee and occupants
of the Property and Improvements to comply with, all Environmental Laws.
(iii) Borrower shall promptly provide Huntington with
a copy of all notifications which it gives or receives with respect to any past
or present Release of any Hazardous Substance or the threat of such a Release
on, at or from the Property and Improvements or any property adjacent to or
within the immediate vicinity of the Property and Improvements.
(iv) Borrower shall undertake and complete all
investigations, studies, sampling and testing for Hazardous Substances
reasonably required by Huntington and, in accordance with all Environmental
Laws, all removal and other remedial actions necessary to contain, remove and
clean up all Hazardous Substances that are determined to be present at the
Property and Improvements in violation of any Environmental Laws.
(v) Huntington shall have the right, but not the
obligation, to cure any violation by Borrower of the Environmental Laws and
Huntington's cost and expense to so cure shall be secured by the Mortgage.
(d) Borrower covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Indemnitee
arising out of the condition, ownership, use, operation, sale, transfer or
conveyance of the Property and Improvements and (i) the storage, treatment
generation, transportation, processing, handling, production or disposal of any
Hazardous Substance, (ii) the presence of any Hazardous Substance or a Release
of any Hazardous Substance or the threat of such a Release, (iii) human exposure
to any Hazardous Substance, (iv) a violation of any Environmental Law, or (v) a
material misrepresentation or inaccuracy in any representation or warranty or
material breach of or failure to perform any covenant made by Borrower herein
(collectively, the "Indemnified Matters").
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The liability of Borrower to Indemnitee hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (i) the repayment of all
sums and the satisfaction of all obligations of Borrower under the Note, the
Mortgage or other Loan Documents, (ii) the foreclosure of the Mortgage or the
acceptance of a deed in lieu thereof, (iii) any amendment or modification of the
Loan Documents by or for the benefit of Borrower or any subsequent owner of the
Property and Improvements, (iv) any extensions of time for payment or
performance required by any of the Loan Documents, (v) the release or discharge
of the Mortgage or of Borrower, any of the Guarantors or any other person from
the performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents whether by Huntington, by
operation of law or otherwise, (vi) the invalidity or unenforceability of any of
the terms or provisions of the Loan Documents, (vii) any exculpatory provision
contained in any of the Loan Documents limiting Huntington recourse to property
encumbered by the Mortgage or to any other security or limiting Huntington
rights to a deficiency judgment against Borrower, (viii) any applicable statute
of limitations, (ix) the sale or assignment of the Note or the Mortgage, (x) the
sale, transfer or conveyance of all or part of the Property and Improvements,
(xi) the dissolution or liquidation of Borrower, (xii) the death or legal
incapacity of Borrower, (xiii) the release or discharge, in whole or in part, of
Borrower in any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding, or (xiv) any other
circumstances which might otherwise constitute a legal or equitable release or
discharge, in whole or in part, of Borrower under the Note or the Mortgage.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Borrower may have to Huntington at common law.
21. SUBORDINATE MORTGAGES. Borrower shall not, without the prior
written consent of Huntington, which consent may be withheld in Huntington's
sole discretion, grant or permit to be created any lien, security interest or
other encumbrance, other than Permitted Encumbrances, covering any of the
Mortgaged Property (each a "Subordinate Mortgage"). If Huntington consents to a
Subordinate Mortgage or if the foregoing prohibition is determined by a court of
competent jurisdiction to be unenforceable, any such Subordinate Mortgage shall
contain express covenants to the effect that:
(a) the lien of the Subordinate Mortgage and all instruments
incorporated therein by reference is and always shall be unconditionally
subordinate to the lien of the Mortgage and to all advances made pursuant to,
and sums secured by, the Mortgage, and the Mortgage and all instruments
incorporated herein by reference may be renewed, extended, restructured,
modified, increased or reinstated at any time without giving notice to or
obtaining the consent of the Subordinate Mortgage holder;
(b) if any action shall be instituted to foreclose or
otherwise enforce the Subordinate Mortgage, no tenant of any of the Leases shall
be named as a party defendant and no action shall be taken which would terminate
any occupancy or tenancy without the prior written consent of Huntington;
(c) in the event of any conflict between the covenants and
agreements of the Mortgage and the Subordinate Mortgage, the covenants and
agreements of the Mortgage shall prevail;
(d) Rents, if collected by or for the holder of the
Subordinate Mortgage, shall be applied first to the payment of the Indebtedness
and expenses incurred in the ownership, operation and maintenance of the
Mortgaged Property in such order as Huntington may determine, prior to being
applied to any indebtedness secured by the Subordinate Mortgage;
(e) a copy of any notice of default under the Subordinate
Mortgage and written notice and opportunity to cure of not less than thirty (30)
days prior to the commencement of any action to foreclose or otherwise enforce
the Subordinate Mortgage shall be given to Huntington; and
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(f) the holder of the Subordinate Mortgage shall acknowledge
the existence of the Indebtedness secured hereby and further acknowledge that
the lien of the Mortgage shall at all times be and remain superior and prior to
the lien of the Subordinate Mortgage to the extent of the entire Indebtedness
secured hereby, notwithstanding any change in the variable rate of interest
being charged under the Note.
22. PRIORITY OF MORTGAGE LIEN. Huntington, at Huntington's option, is
authorized and empowered to do all things provided to be done by a mortgagee
under Section 1311.14 of the Ohio Revised Code, and any present or future
amendments or supplements thereto, for the protection of Huntington's interest
in the Mortgaged Property.
23. NOTICE. Any notice required or permitted to be given hereunder
shall be in writing. If mailed by first class United States mail, postage
prepaid, registered or certified with return receipt requested, then such shall
be effective upon its deposit in the mails. Notice given in any other manner
shall be effective only if and when received by the addressee. For purposes of
notice, the addresses of Borrower and Huntington shall be as set forth below;
provided however, that either party shall have the right to change such party's
address for notice hereunder to any other location within the continental United
States by the giving of thirty (30) days' notice to the other party.
If to Borrower: Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
If to Huntington: The Huntington National Bank
Commercial Real Estate Group
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
24. MISCELLANEOUS. The covenants herein contained shall bind, and the
benefits and advantages shall inure to, the respective successors and assigns of
the parties hereto. Whenever used, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all genders. If
any provision of the Mortgage is illegal, or hereafter rendered illegal, or is
for any other reason void, voidable or otherwise unenforceable, or hereafter
rendered void, voidable or otherwise unenforceable, the remainder of the
Mortgage shall not be affected thereby, but shall be construed as if it does not
contain such provision. Each right and remedy provided in the Mortgage is
distinct and cumulative to all other rights or remedies under the Mortgage or
afforded by law or equity, and may be exercised concurrently, independently or
successively, in any order whatsoever. The Mortgage shall be governed by and
construed under the laws of the State of Ohio.
HUNTINGTON, BY ACCEPTANCE OF THIS MORTGAGE, AND BORROWER HEREBY
MUTUALLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE FOR THE BENEFIT OF
THE OTHER ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE LOAN DOCUMENTS, THE TRANSACTIONS RELATED
THERETO OR THE RELATIONSHIP ESTABLISHED THEREBY. THIS PROVISION IS A MATERIAL
INDUCEMENT TO HUNTINGTON AND BORROWER TO ENTER INTO THIS TRANSACTION. IT SHALL
NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY HUNTINGTON'S ABILITY TO
PURSUE ITS REMEDIES.
PROVIDED, HOWEVER, that these presents are upon the condition that if
Borrower shall fully and promptly pay when due the Indebtedness and shall
completely, faithfully and punctually perform all of the Obligations under the
terms and conditions of the Loan Documents, then the Mortgage shall be void;
otherwise it shall remain in full force and effect in law and equity forever.
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IN WITNESS WHEREOF, Borrower has caused the Mortgage to be executed as
of the 13th day of October, 1998.
Signed and acknowledged Borrower:
in the presence of: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
/s/ Xxxxxx X. Xxxxx By: Glimcher Properties Corporation,
-------------------------------- a Delaware corporation,
Witness Xxxxxx X. Xxxxx its sole General Partner
------------------------
(printed)
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------- -------------------------------
Witness Xxxxxx X. Xxxxxxx
------------------------
(printed) Its: Senior Vice President
-------------------------------
STATE OF OHIO
--------------------
COUNTY OF FRANKLIN, SS:
--------------------
On this 13th day of October, 1998, before me, a Notary Public in and
for said County and State, personally appeared Xxxxxx X. Xxxxxxx, who
acknowledged himself to be the Senior Vice President, of GLIMCHER PROPERTIES
CORPORATION, a Delaware corporation, the sole general partner of GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, the Delaware limited partnership which executed
the foregoing instrument, and who acknowledged that he, as such Senior Vice
President of said corporation, being duly authorized by the board of directors
of said corporation, did execute the foregoing instrument for and on behalf of
said limited partnership and that such signing is the free act and deed of said
limited partnership for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxx X. Xxxxx
--------------------------------
Notary Public
Commission
Expiration:_________________
This instrument prepared by:
Xxxxxx X. Xxxxx, Attorney at Law
Porter, Wright, Xxxxxx & Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
The Huntington National Bank
Commercial Real Estate Group
January 3, 1994 Revision
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EXHIBIT "A"
LEGAL DESCRIPTION
