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CONSOLIDATED, AMENDED AND RESTATED
INDENTURE OF MORTGAGE, DEED OF TRUST,
SECURITY AGREEMENT, FINANCING STATEMENT,
FIXTURE FILING AND ASSIGNMENT OF
LEASES AND RENTS
from
[GLIMCHER PROPERTIES LIMITED PARTNERSHIP/
GLIMCHER YORK ASSOCIATES LIMITED PARTNERSHIP/
GLIMCHER DEVELOPMENT CORPORATION],
as Debtor, Grantor and Mortgagor
to
[ ]
as Trustee
for the benefit of
PRUDENTIAL SECURITIES CREDIT CORP., LLC,
as Lender/Beneficiary/Mortgagee
Dated as of June 30, 2000
--------------------------------------------------------
Prepared and drafted by and after recording, please return to:
Martha Feltenstein, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
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CONSOLIDATED, AMENDED AND RESTATED
INDENTURE OF MORTGAGE, DEED OF TRUST,
SECURITY AGREEMENT, FINANCING STATEMENT,
FIXTURE FILING AND ASSIGNMENT OF
LEASES AND RENTS
THIS CONSOLIDATED, AMENDED AND RESTATED INDENTURE OF MORTGAGE,
DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT, FIXTURE FILING AND
ASSIGNMENT OF LEASES AND RENTS (herein, together with all amendments and
supplements thereto, called this "Mortgage"), dated as of the 30th day of June,
2000, made by GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Mortgagor"), having an address at 20 South Third Street,
Columbus, Ohio 43215, as debtor, grantor, trustor and mortgagor, with respect to
the with respect to the Virginia Property (as hereafter defined), in favor of
Alexander Title Agency, Inc. having an address at 7921 Jones Branch Drive, 6th
Floor, McLean, Virginia 22102, and with respect to the Tennessee Property (as
hereafter defined), in favor of Joseph Pitt, Jr., Esq., having an address at
Chicago Title Insurance Company, 414 Union Street, Nashville, Tennessee 37219,
and with respect to the North Carolina Property (as hereafter defined), in favor
of Chicago Title Insurance Company having an address at 201 South College
Street, Suite 1465, Charlotte, North Carolina 28244, in each case as trustee
("Trustee"), for the benefit of Prudential Securities Credit Corp., LLC, a
Delaware limited liability company, having an address at One New York Plaza,
18th Floor, New York, New York, New York County, 10292 which entity has been
converted from a Delaware corporation to a Delaware limited liability company
pursuant to Section 18-214 of the Delaware Limited Liability Company Act on
March 6, 2000, as Lender pursuant to the Credit Agreement described herein (the
"Beneficiary").
W I T N E S S E T H :
--------------------
WHEREAS, the Mortgagor is the record and beneficial owner of
the fee simple interests in the Properties (as hereinafter defined), described
in Exhibits A-1 and A-12 attached hereto (each, a "Land Parcel" and
collectively, the "Land Parcels");
WHEREAS, Mortgagee is the present owner and holder of the
promissory note described on Schedule 1 attached hereto and made a part hereof
(the "Existing Notes"), which Existing Notes evidence an indebtedness of in the
current outstanding principal amount of $31,500,000;
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WHEREAS, the Existing Notes are secured by the mortgages
described on Schedule 2 attached hereto and made a part hereof (collectively,
the "Existing Mortgages"), which Existing Mortgages constitute a lien on the
Mortgaged Property (as hereinafter defined) currently securing the outstanding
principal sum of $31,500,000;
WHEREAS, the Beneficiary has made a line of credit loan (the
"Loan") available to the Mortgagor, pursuant to the Credit Agreement, dated of
even date herewith, among the Mortgagor and the Beneficiary (as amended,
modified, restated or supplemented from time to time, the "Credit Agreement").
The Loan is evidenced by a consolidated, amended and restated mortgage note or
notes, dated of even date herewith or to be dated subsequent to the date hereof
pursuant to the terms of the Credit Agreement (such note or notes together with
all amendments, modifications or replacements thereof which may hereafter be
executed, collectively, the "Note"), made by the Mortgagor, as maker, in favor
of Beneficiary, as payee.
WHEREAS pursuant to that certain Note, dated as of the date
hereof (together with all extensions, renewals, modifications, consolidations,
substitutions, replacements and restatements thereof, the "Note"), Mortgagee is
making an additional loan advance to Glimcher Properties Limited Partnership on
the date hereof in the principal sum of $96,000,000 (the "Additional Advance")
so that the combined outstanding principal balance of the Note and the Existing
Note on the date hereof is $127,500,000;
WHEREAS, pursuant to the terms and conditions of the Note, the
terms and conditions of the Existing Note are being consolidated, modified,
amended and restated in their entirety and combined with the Additional Advance;
WHEREAS, the Note shall constitute a single indebtedness (the
"Loan") in the maximum principal amount of $127,500,000 (the "Loan Amount")
payable in accordance with the terms of the Note;
WHEREAS, Mortgagor and Mortgagee have agreed in the manner
hereinafter set forth to consolidate, amend, modify and restate in their
entirety the terms and provisions of the Existing Mortgages on the terms and
conditions hereinafter set forth;
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WHEREAS, the maximum amount of the Obligations (as hereafter
defined) and Indebtedness under the Note, which under any contingency is secured
by this Mortgage, is $127,500,000; and
WHEREAS, the Mortgagor and the Beneficiary intend these
recitals to be a material part of this Mortgage.
RESTATEMENT OF MORTGAGE
NOW THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
(1) The Existing Mortgages shall constitute in law
one mortgage, a single first priority lien subject to the Permitted Encumbrances
(as hereinafter defined), covering the Mortgaged Property and securing, together
with the Additional Advance, the maximum principal sum of $127,500,000, together
with interest thereon as provided in the Note, and the terms, covenants,
conditions and provisions of the Existing Mortgages are hereby consolidated,
modified, amended and restated in their entirety so that henceforth the terms,
covenants, conditions and provisions of the Existing Mortgages shall read and be
as set forth in this Mortgage and Mortgagor agrees to comply with and be subject
to all of the terms, covenants and conditions of this Mortgage.
(2) The Mortgagor hereby certifies that this Mortgage
secures the same indebtedness evidenced by the Existing Notes and secured by the
Existing Mortgages, as increased by the Additional Advance, and secures no
further or other indebtedness or obligation. Neither this Mortgage nor anything
contained herein shall be construed as a substitution or novation of Mortgagor's
indebtedness to Mortgagee or of the Existing Mortgages, which shall remain in
full force and effect as hereby confirmed, combined, consolidated, modified,
restated and superseded.
(3) This Mortgage is an extension and continuation of
the existing indebtedness evidenced and secured by the Existing Notes and the
Existing Mortgages, as increased by the Additional Advance.
(4) NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS MORTGAGE, THE MAXIMUM PRINCIPAL AMOUNT OF INDEBTEDNESS SECURED
BY THIS MORTGAGE AT
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EXECUTION OR WHICH UNDER ANY CONTINGENCY MAY BE SECURED HEREBY AT ANY TIME
HEREAFTER IS $127,500,000.
(5) the Existing Mortgages, as combined,
consolidated, modified and restated in their entirety pursuant to this Mortgage,
and the obligations of Mortgagor hereunder, are hereby ratified and confirmed,
and shall remain in full force and effect until the full performance and
satisfaction of all obligations of Mortgagor hereunder.
SECURED INDEBTEDNESS
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Mortgagor hereby agrees as follows:
TO SECURE:
(1) payment and performance of all covenants,
liabilities and obligations contained in, and payment of the
indebtedness guaranteed by, the Note, plus all interest, additional
interest and additional amounts payable thereunder; and
(2) payment and performance of all covenants,
conditions, liabilities and obligations of the Mortgagor to the
Beneficiary contained in this Mortgage and any extensions, renewals or
modifications hereof; and
(3) payment and performance of all covenants,
liabilities and obligations of Mortgagor or any other Consolidated
Subsidiary contained in each of the other Loan Documents (as
hereinafter defined); and
(4) without limiting the generality of the foregoing,
payment of all other indebtedness and liabilities, direct or indirect,
of the Mortgagor to the Beneficiary, due or to become due hereunder, or
under any other Loan Document (including, without limitation, any
protective advances, disbursements, payments and reimbursements made,
and charges, expenses and costs (including, without limitation, any
enforcement and collection costs) incurred pursuant to the Note, this
Mortgage, or such other Loan
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Documents) to protect the security intended to be provided hereby even
if the aggregate amount of indebtedness outstanding at any one time
exceeds the amount of the Note (all of the foregoing indebtedness,
monetary liabilities and obligations set forth in clauses (1)-(4)
above, collectively, the "Indebtedness"; and payment of the
Indebtedness together with the performance of all covenants and
obligations set forth in clauses (1)-(4) above, collectively, the
"Obligations").
GRANTING CLAUSES
----------------
NOW, THEREFORE, THIS MORTGAGE WITNESSETH: that the Mortgagor,
in consideration of the premises, the acceptance by the Beneficiary of the
trusts created hereby, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged (a) has mortgaged, warranted,
granted, transferred, bargained, sold, conveyed, pledged, and assigned and (b)
by these presents does hereby mortgage, warrant, grant a security interest in,
grant, transfer, bargain, sell, convey, pledge, and assign unto the Beneficiary
and its successors and assigns forever, or, if Sections 46, 49 or 51 provide
that this instrument is a deed of trust, to the Trustee for the benefit of the
Beneficiary in the trusts created hereby, WITH POWER OF SALE, all its estate,
right, title and interest now owned or hereafter acquired in, to and under any
and all of the property (herein called the "Trust Estate") described in the
following Granting Clauses:
I. All right, title and interest in and to the Land Parcels.
II. All right, title and interest of the Mortgagor in and to
all buildings, structures and other improvements now standing, or at any time
hereafter constructed or placed, upon the Land Parcels, including all of the
Mortgagor's right, title and interest in and to all equipment and fixtures of
every kind and nature on the Land Parcels or in any such buildings, structures
or other improvements (such buildings, structures, other improvements, equipment
and fixtures being herein collectively called the "Improvements"), (b) all
right, title and interest of the Mortgagor in and to all and singular tenements,
hereditaments, easements, rights of way, rights, privileges and appurtenances in
and to the Land Parcel belonging or in any way appertaining thereto, including
without limitation all right, title and interest of the Mortgagor in, to and
under any streets, ways, alleys, vaults, gores or strips of land adjoining any
Land Parcel and (c) all claims or demands of the Mortgagor, in law or in equity,
in possession or expectancy of, in and to any Land Parcel together with rents,
income, revenues, issues and profits from and in respect of any Land
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Parcel and the Improvements and the present and continuing right to make claim
for, collect, receive and receipt for the same as hereinafter provided. It is
the intention of the parties hereto that, so far as may be permitted by law, all
of the foregoing, whether now owned or hereafter acquired by the Mortgagor,
affixed, attached or annexed to any Land Parcel shall be and remain or become
and constitute a part of the Trust Estate and the security covered by and
subject to the lien of this Mortgage. All such right, title and interest of the
Mortgagor in and to a Land Parcel, the interest of the Mortgagor in and to the
Improvements located thereon and such other property with respect thereto
described in Granting Clauses I and II is herein called a "Property" and each
such Property, collectively, the "Properties."
III. All right, title and interest of the Mortgagor in and to
(i) all extensions, improvements, betterments, renewals, substitutes and
replacements of and on the Properties described in the foregoing Granting
Clauses I and II and (ii) all additions and appurtenances thereto not presently
leased to or owned by the Mortgagor and hereafter leased to, acquired by or
released to the Mortgagor or constructed, assembled or placed upon the
Properties (including, but not limited to, the fee estate in any Land Parcel)
immediately upon such leasing, acquisition, release, construction, assembling or
placement, and without any further grant or other act by the Mortgagor.
IV. All the estate, right, title and interest of the Mortgagor
in and to (i) all judgments, insurance proceeds, awards of damages and
settlements resulting from condemnation proceedings or the taking of the
Properties (or any of them), or any part thereof, under the power of eminent
domain or for any damage (whether caused by such taking or otherwise) to the
Properties (or any of them) or any part thereof, or to any rights appurtenant
thereto, and all proceeds of any sales or other dispositions of the Properties
(or any of them) or any part thereof; and the Beneficiary is hereby authorized
to collect and receive said awards and proceeds and to give proper receipts and
acquittances thereto, subject to the conditions and limitations hereinafter set
forth; and (ii) all contract rights, general intangibles, actions and rights in
action, relating to the Properties (or any of them) including, without
limitation, all rights to insurance proceeds and unearned premiums arising from
or relating to damage to the Properties (or any of them); and (iii) all
proceeds, products, replacements, additions, substitutions, renewals and
accessions of and to the Properties (or any of them).
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V. The Mortgagor does hereby pledge and presently and
absolutely assign to the Beneficiary from and after the date hereof (including
any period of redemption), primarily and on a parity with said real estate, and
not secondarily, all the rents, issues and profits of the Properties and all
rents, issues, profits, revenues, royalties, bonuses, rights, and benefits due,
payable or accruing (including all deposits of money as advance rent, for
security or as earnest money or as down payment for the purchase of all or any
part of the Properties) (the "Rents") under any and all present and future
leases, subleases, underlettings, concession agreements, licenses, contracts or
other agreements relative to the ownership or occupancy of all or any portion of
the Properties and does hereby transfer and assign to the Beneficiary all such
leases and agreements (the "Leases"). The Beneficiary hereby grants to the
Mortgagor the right to collect and use the Rents as they become due and payable
under the Leases, until an Event of Default has occurred and is continuing,
provided that the existence of such right shall not operate to subordinate this
assignment to any subsequent assignment, in whole or in part by the Mortgagor,
and any such subsequent assignment shall be subject to the rights of the
Beneficiary under this Mortgage. The Mortgagor further agrees to execute and
deliver such assignments of leases or assignments of land sale contracts as the
Beneficiary may from time to time request. Upon the occurrence and during the
continuance of an Event of Default (1) the Mortgagor agrees, upon demand, to
deliver to the Beneficiary such additional assignments thereof as the
Beneficiary may request and agrees that the Beneficiary may assume the
management of the Properties (or any of them), and collect the Rents, applying
the same upon the Obligations and (2) the Mortgagor hereby authorizes and
directs all tenants, purchasers or other persons occupying or otherwise
acquiring any interest in any part of the Properties to pay the Rents due under
the Leases to the Beneficiary upon request of the Beneficiary. The Mortgagor
hereby appoints the Beneficiary as its true and lawful attorney in fact to
manage said Properties and collect the Rents, with full power to bring suit for
collection of the Rents and possession of the Properties (or any of them),
giving and granting unto said Beneficiary full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in the protection of the security hereby conveyed; provided, however, that
(i) this power of attorney coupled with an interest and assignment of rents
shall not be construed as an obligation upon the Beneficiary to manage said
property or to make or cause to be made any repairs or to take any other action
that may be needful or necessary and (ii) the Beneficiary agrees that until such
Event of Default has occurred and is continuing as aforesaid, the Beneficiary
shall not exercise its rights pursuant to said power of attorney coupled with an
interest and shall permit the Mortgagor to perform the aforementioned management
responsibilities and collect the Rents. Upon the Beneficiary's receipt of
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the Rents, at the Beneficiary's option, it may pay: (1) reasonable charges for
collection hereunder, costs of necessary repairs and other costs requisite and
necessary in connection with the management of the premises, during the
continuance of this power of attorney coupled with an interest and assignment of
rents including general and special taxes and assessments and insurance premiums
and (2) the Indebtedness secured hereby. This power of attorney coupled with an
interest and assignment of leases and rents shall be irrevocable until this
Mortgage shall have been satisfied and the releasing of this Mortgage shall act
as a revocation of this power of attorney coupled with an interest and
assignment of leases and rents with respect to such portion of the Trust Estate
so released. The Beneficiary shall have and hereby expressly reserves the right
and privilege (but assumes no obligation) to demand, collect, sue for, receive
and recover the Rents, or any part thereof, now existing or hereafter made, and
apply the same in accordance with law, all in accordance herewith.
VI. All of the Mortgagor's right, title and interest in and to
all personal and intangible property and equipment of every nature whatsoever
now or hereafter located in, arising from or on and utilized or to be used in
connection with the Properties (or any of them), including but not limited to
(a) all screens, window shades, blinds, wainscoting, storm doors and windows,
floor coverings, and awnings; (b) all apparatus, machinery, accessions,
equipment and appliances not included as fixtures; (c) all items of furniture,
furnishings, and personal property; (d) all extensions, additions, improvements,
betterments, renewals, substitutions, and replacements to or of any of the
foregoing (a)-(c) (all of said property in (a)-(d) being collectively, the
"Equipment"); (e) all accounts receivable arising from the sale or other
disposition of all or any of the Mortgagor's real property, buildings,
structures and other improvements, fixtures, furniture, furnishings, apparatus,
machinery, appliances or other equipment, and all extensions, renewals,
improvements, substitutions and replacements thereto whether owned or leased,
now or hereafter acquired in connection with the Properties; (f) all accounts,
general intangibles, chattel paper, cash or monies of the Mortgagor, wherever
located, whether in the form of cash or checks, and all cash equivalents
including, without limitation, all deposits and certificates of deposit,
instruments, whether negotiable or non-negotiable, debt notes both certificated
and uncertificated, repurchase obligations for underlying notes of the types
described herein, and commercial paper (i) received in connection with the sale
or other disposition of all or any of the Mortgagor's real property, buildings,
structures and other improvements, fixtures, furniture, furnishings, apparatus,
machinery, appliances or other equipment, and all extensions, renewals,
improvements, substitutions and replacements thereto whether owned or leased,
now or
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hereafter acquired, all in connection with the Properties, (ii) maintained by
the Mortgagor in a segregated account in trust for the benefit of the
Beneficiary or (iii) held by the Beneficiary; and (g) all proceeds (as defined
in the Uniform Commercial Code) of all of the foregoing; it being mutually
agreed, intended and declared, that the Trust Estate and all of the property
rights and fixtures owned by the Mortgagor shall, so far as permitted by law, be
deemed to form a part and parcel of the Land Parcels and for the purpose of this
Mortgage to be real estate and covered by this Mortgage, it being also agreed
that if any of the property herein mortgaged is of a nature so that a security
interest therein can be perfected under the Uniform Commercial Code, this
instrument shall constitute a security agreement, fixture filing and financing
statement, and the Mortgagor agrees to execute, deliver and file or refile any
financing statement, continuation statement, or other instruments the
Beneficiary may reasonably require from time to time to perfect or renew such
security interest under the Uniform Commercial Code. To the extent permitted by
law, (i) all of the fixtures are or are to become fixtures on the Land Parcels;
and (ii) this instrument, upon recording or registration in the real estate
records of the proper office, shall constitute a "fixture-filing" within the
meaning of Sections 9-313 and 9-402 of the Uniform Commercial Code. The remedies
for any violation of the covenants, terms and conditions of the agreements
herein contained shall be as prescribed herein or by general law, or, as to that
part of the security in which a security interest may be perfected under the
Uniform Commercial Code, by the specific statutory consequences now or hereafter
enacted and specified in the Uniform Commercial Code, all at the Beneficiary's
sole election.
VII. All of the Mortgagor's right, title, and interest in, to
and under (i) any reciprocal easement agreements, operating agreements and
similar agreements affecting the ownership, use and operation of the Properties
(or any of them) included in the Permitted Exceptions, as such agreements have
been or may hereafter be amended, modified or supplemented; (ii) all contracts,
including the management agreements, if any, and agreements relating to the
Properties (or any of them), and other documents, books and records related to
the operation of the Properties (or any of them); (iii) all consents, licenses
(including, to the extent permitted by law, any licenses permitting the sale of
liquor at the Properties (or any of them)), warranties, guaranties and building
and other permits required or useful for the construction, completion, occupancy
and operation of the Properties (or any of them); (iv) any contracts for the
sale of any portion of the Properties or the Equipment; and (v) all plans and
specifications, engineering reports, land planning, maps, surveys, and any other
reports, exhibits or plans and specifications used or to be used in connection
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with the construction, operation or maintenance of the Properties (or any of
them), together with all amendments and modifications thereof.
TO HAVE AND TO HOLD THE TRUST ESTATE, whether now owned or
held or hereafter acquired, unto the Trustee, in trust, for the benefit and use
of the Beneficiary and its successors and assigns, forever.
IN TRUST FOREVER, with power of sale (to the extent permitted
by applicable law), upon the terms and trusts herein set forth and to secure the
performance of, and compliance with, the obligations, covenants and conditions
of this Mortgage and the other Loan Documents all as herein set forth.
11 Definitions. All capitalized terms used but not otherwise
defined herein shall have the meanings assigned to them in the Credit Agreement.
The words "herein," "hereof" and "hereunder" and other words of like import
refer to this Mortgage as a whole and not to any particular Section, subsection
or other subdivision. In addition, wherever used in this Mortgage, the following
terms, and the singular and plural thereof, shall have the following meanings:
Affiliate: With respect to any specified Person means any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities or other
beneficial interest, by contract or otherwise; and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
Agreements: Any reciprocal easement agreements, operating
agreements and similar agreements affecting the ownership, use and operation of
the Properties (or any of them) included in the Permitted Exceptions, as such
agreements have been or may hereafter be amended, modified or supplemented.
Alteration: As defined in Section 11(c) hereof.
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Assignment of Leases and Rents: Shall mean the Assignment of
Leases, Rents and Security Deposits, dated as of the date hereof, by the
Mortgagor in favor of the Beneficiary.
Beneficiary: As defined in the recitals hereof.
Casualty Amount: As defined in Section 6(b) hereof.
Credit Agreement: As defined in the recitals hereof.
Default: The occurrence or existence of any event or condition
which with or without the giving of notice or the passage of time, or both,
would constitute an Event of Default hereunder.
Default Rate: The rate of interest at the annual rate equal to
the sum of (i) the Base Rate (as defined in the Credit Agreement) and (ii) five
percent (5%).
Environmental Certificate: As defined in Section 19(b) hereof.
Environmental Event: As defined in Section 19(b) hereof.
Environmental Reports: As defined in Section 19(a) hereof.
Equipment: As defined in Granting Clause VI hereof.
Escrow Account: As defined in Section 8(a) hereof.
Events of Default: The occurrence of any of the following
shall constitute an Event of Default under this Mortgage:
(0) If the Mortgagor fails to pay any amount payable
pursuant to the Note or this Mortgage within fifteen (15) days after notice by
Beneficiary that
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such amount is due and payable in accordance with the provisions hereof; or
(1) Cancellation of the insurance required by Section
5 of this Mortgage; or
(2) Any violation of the terms of Section 7(a) or
Section 7(b) (subject to the terms of Section 7(c)), which violation continues
for a period of five (5) days after notice thereof; or
(3) Any violation of the terms of Section 10 of this
Mortgage; or
(4) An Event of Default (as defined therein) under
the Credit Agreement; or
(5) Any other default in the performance, or breach,
of any material covenant, representation or warranty of the Mortgagor, in this
Mortgage or in any other Loan Document (other than a covenant, representation,
agreement or warranty, a default in whose performance or whose breach is
specifically dealt with elsewhere in this Section) and continuance of such
default or breach for a period of thirty (30) days after notice thereof;
provided, that in the case of any such failure that is susceptible of cure but
that cannot with reasonable diligence be cured within such thirty (30) day
period, if the Mortgagor shall promptly have commenced to cure the same and
shall thereafter prosecute the curing thereof with reasonable diligence, the
period within which such failure may be cured shall be extended for such further
period as shall be reasonably necessary for the curing thereof (and in the event
such cure has not been completed within thirty (30) days after the end of the
initial thirty (30) day period, the Mortgagor shall inform the Beneficiary at
least once each month thereafter as to the status of such cure); or
(6) Any "Event of Default" as defined in any other
Loan Document including any other Mortgage securing the Notes.
Notwithstanding anything to the contrary contained in this
Mortgage or the Loan Documents, no grace period or right to notice granted to
the Mortgagor herein with respect to any Event of Default is intended
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to duplicate any other grace period or right to notice granted to the Mortgagor
herein, in the Credit Agreement or in the other Loan Documents with respect to
such Event of Default and in the event of any inconsistency, the grace period or
right to notice granted in the Credit Agreement shall apply.
Governmental Authority: Any Federal, state or local government
or any other political subdivision thereof exercising executive, legislative,
judicial, regulatory or administrative functions.
Grant: Shall mean grant, grant a security interest in,
bargain, sell, lien, mortgage, convey, pledge, hypothecate, assign, transfer,
warrant and set over.
Impositions: All taxes (including, without limitation, all ad
valorem, sales (including those imposed on lease rentals), use, single business,
gross receipts, value added, intangible transactions, privilege or license or
similar taxes), assessments (including, without limitation, all assessments for
public improvements or benefits, whether or not commenced or completed prior to
the date hereof and whether or not commenced or completed within the term of
this Mortgage), water, sewer or other rents and charges, excises, levies, fees
(including, without limitation, license, permit, inspection, authorization and
similar fees), and all other governmental charges, in each case whether general
or special, ordinary or extraordinary, or foreseen or unforeseen, of every
character in respect of the Trust Estate and/or any Rents (including all
interest and penalties thereon), which at any time prior to, during or in
respect of the term hereof may be assessed or imposed on or in respect of or be
a Lien upon (a) the Mortgagor (including, without limitation, all income,
franchise, single business or other taxes imposed on the Mortgagor for the
privilege of doing business in the jurisdiction in which the Trust Estate is
located) or the Beneficiary arising as a result of or with respect to its
capacity as the Beneficiary hereunder, (b) the Trust Estate or any other
collateral delivered or pledged by Mortgagor to the Beneficiary in connection
with the Loan, or any part thereof, or any Rents therefrom or any estate, right,
title or interest therein, or (c) any occupancy, operation, use or possession
of, or sales from, or
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activity conducted on, or in connection with the Trust Estate or the leasing or
use of all or any part thereof. Nothing contained in this Mortgage shall be
construed to require the Mortgagor to pay any tax, assessment, levy or charge
imposed on the Beneficiary or any Bank in the nature of a franchise, capital
levy, estate, inheritance, succession, income or net revenue tax.
Improvements: As defined in Granting Clause II hereof.
Indebtedness: As defined in the recitals hereof.
Indemnified Environmental Parties: As defined in Section 19(c)
hereof.
Indemnified Parties: As defined in Section 34 hereof.
Independent Architect: An independent architect selected by
the Mortgagor, and acceptable to the Beneficiary, such acceptance not to be
unreasonably withheld or delayed, licensed to practice in the State in which the
applicable Property is located, having at least five (5) years of experience,
and not affiliated with the Mortgagor.
Individual Trustee: Shall mean such person as is required by
applicable state law to perform the functions of Individual Trustee pursuant to
Section 9 hereof.
Insurance Requirements: Shall mean all terms of any insurance
policy required hereunder or under the Credit Agreement covering or applicable
to any Property or Equipment or any part thereof, all requirements of the issuer
of any such policy, and all orders, rules, regulations and other requirements of
the National Board of Fire Underwriters (or any other body exercising similar
functions) applicable to or affecting any Property or Equipment or any part
thereof or any use of any Property or Equipment or any part thereof.
Jurisdictional Trustee: As defined in Section 9 hereof.
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Land Parcel(s): As defined in the recitals hereof.
Leases: As defined in Granting Clause V hereof.
Legal Requirements: As defined in Section 12 hereof.
Lien: Any mortgage, deed of trust, lien, pledge,
hypothecation, assignment, security interest, or any other encumbrance of, on or
affecting the Trust Estate or any portion thereof or any interest therein,
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, the filing of any financing statement, and mechanic's,
materialmen's and other similar liens and encumbrances.
Loan: As defined in the recitals hereof.
Loan Amount: As defined in the recitals hereof.
Loan Documents: This Mortgage, the Note, the Credit Agreement,
the Assignment of Leases and Rents, the Environmental Indemnity and any and all
other agreements, instruments or documents evidencing, securing or delivered by
the Mortgagor in connection with the Loan and the transactions contemplated by
the Credit Agreement and this Mortgage.
Mortgage: As defined in the recitals hereof.
Mortgage Escrow Amounts: As defined in Section 8(a) hereof.
Mortgagor: As defined in the recitals hereof.
Note: As defined in the recitals hereof.
Obligations: As defined in the recitals hereof.
Officers' Certificate: A certificate delivered to the
Beneficiary and signed by the President or a Vice President of the Mortgagor.
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<PAGE> 17
Permitted Exceptions: (a) Liens for taxes, assessments or
other governmental charges not yet due and payable or which are being contested
in good faith by appropriate proceedings promptly instituted and diligently
conducted in accordance with Section 7(c);
(7) Statutory Liens of carriers, warehousemen,
mechanics, materialmen and other similar liens imposed by law, which are
incurred in the ordinary course of business for sums not more than forty-five
(45) days delinquent or which are being contested in good faith in accordance
with Section 7(c);
(8) Deposits made in the ordinary course of business
to secure liability to insurance carriers;
(9) Easements, rights-of-way, restrictions and other
similar charges or encumbrances against real property not interfering in any
material respect with the use of any Property or the ordinary conduct of the
business of Mortgagor and not diminishing in any material respect the value of
any Property to which it is attached;
(10) Liens and judgments which have been or will be
bonded or released of record within thirty (30) days after the Mortgagor has
received notice of the filing of such Lien or judgment;
(11) Those matters set forth on Exhibit B hereof; and
(12) Liens in favor of the Beneficiary or any Bank
under the other Loan Documents.
Person: Shall mean any individual, corporation, limited
liability company, partnership, joint venture, estate, trust, unincorporated
association, any Federal, state, county or municipal government or any political
subdivision thereof.
Proceeds: As defined in Section 6(b) hereof.
Property: As defined in Granting Clause II hereof.
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Properties: As defined in Granting Clause II hereof.
Rents: As defined in Granting Clause V hereof.
State: The State in which the applicable Property is located.
Taking: Shall mean a temporary or permanent taking by any
Governmental Authority as the result, or in lieu, or in anticipation of the
exercise of the right of condemnation or eminent domain, of all or any part of a
Property, or any interest therein or right accruing thereto, including any right
of access thereto or any change of grade affecting a Land Parcel or any part
thereof.
Tenant: Shall mean any Person leasing any portion of a
Property and obligated to pay rent pursuant to a Lease.
Transfer: As defined in Section 10(a) hereof.
Trustees: Shall mean the Individual Trustee together with the
Jurisdictional Trustee, all separate trustees and co-trustees appointed as
provided in Section 9.
Trust Estate: As defined in the granting clause to this
Mortgage.
Uniform Commercial Code or UCC: Shall mean the Uniform
Commercial Code as adopted in the State.
Work: As defined in Section 6(b) hereof.
REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
The Mortgagor represents and warrants to and covenants and
agrees with the Beneficiary as follows:
12 Warranty.
(0) This Mortgage upon its due execution and proper
recordation is and will remain a valid,
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enforceable and perfected first Lien on and a security interest in the Trust
Estate subject to the Permitted Exceptions;
(1) This Mortgage and each of the Loan Documents
executed by the Mortgagor, is the legal, valid and binding obligation of the
Mortgagor, enforceable against the Mortgagor in accordance with their terms,
subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws affecting creditor's rights generally
in effect from time to time;
(2) The Mortgagor owns good, marketable and insurable
fee simple title to the Trust Estate, subject only to the Permitted Exceptions.
The Mortgagor will preserve such title to its Trust Estate and will forever
warrant and defend same and the validity and priority of the Lien hereof from
and against any and all claims whatsoever;
(3) On the date hereof, to Mortgagor's knowledge, no
portion of the Improvements at any Property has been materially damaged,
destroyed or injured by fire or other casualty which is not now fully restored
or in the process of being restored;
(4) The Mortgagor has and will maintain, in effect at
all times until the Indebtedness and Obligations are satisfied in full, all
necessary material licenses, permits, authorizations, registrations and
approvals to operate its business and own each Property as a commercial or
industrial property, and Mortgagor has full power and authority to carry on its
business at each Property as currently conducted and has not received any
written notice of any violation of any such licenses, permits, authorizations,
registrations or approvals that materially impair the value of any Property for
which such notice was given or which would adversely affect the use or operation
of any Property in any material respect;
(5) As of the date hereof, the Mortgagor has not
received any written notice of any Taking or threatened Taking of any Property
or any portion thereof; (1)
(6) The Property and the Equipment located thereon
constitute all of the real property,
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equipment and fixtures currently owned by the Mortgagor and used in the
operation of the Property;
(7) Each Property has adequate access to public
streets, roads or highways;
(8) Each Property constitutes one or more separate
tax lots, with a separate tax assessment, independent of any other land or
improvements;
(9) All utility services necessary for the operation
of each Property have been connected and, to the Mortgagor's knowledge, are
available in adequate capacities for current operations at each Property
directly from utility lines and without the need for private easements not
presently existing; and
(10) To the actual knowledge of the Mortgagor, the
Mortgagor is not in material default under the terms, conditions or provisions
of any of the Leases or Agreements described in Section 14 hereof.
13 Payment and Performance of Obligations Secured. The
Mortgagor shall perform fully and in a timely manner all Obligations of the
Mortgagor hereunder or under any other Loan Document to which Mortgagor is a
party. All sums payable by the Mortgagor hereunder shall be paid without demand,
counterclaim, offset, deduction or defense all without relief from valuation and
appraisement laws. The Mortgagor waives all rights now or hereafter conferred by
statute or otherwise to any such demand, counterclaim, setoff, deduction or
defense.
14 Negative Covenants. The Mortgagor covenants and agrees
that it shall not:
(0) partition any Property;
(1) transfer all or any portion of the Trust Estate
or any interest of the Mortgagor, except in accordance with the Credit
Agreement;
(2) file a petition for voluntary bankruptcy under
the Bankruptcy Code or similar state law; or
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(3) dissolve, terminate, liquidate, merge with or
consolidate into another Person, except as expressly permitted pursuant to this
Mortgage or the Credit Agreement.
15 Insurance.
(0) Insurance Coverage Requirements. The Mortgagor
shall keep in full force and effect insurance, of the types and minimum limits
as follows during the term of this Mortgage:
(1) Property Insurance. Insurance with
respect to each Property and the Equipment against any peril included
within the classification "All Risks of Physical Loss" with extended
coverage in an amount equal to the full insurable value (subject to
deductibles as permitted below) of such Property and the Equipment
located thereon, the term "full insurable value" to mean the actual
replacement cost of the Improvements and the Equipment at such Property
(without taking into account any depreciation, and exclusive of
excavations, footings and foundations, landscaping and paving);
(2) Liability Insurance. Commercial general
liability insurance, including bodily injury, death and property damage
liability, and umbrella liability insurance against any and all claims,
including all legal liability to the extent insurable imposed upon the
Beneficiary and all court costs and attorneys' fees and expenses,
arising out of or connected with the possession, use, leasing,
operation, maintenance or condition of each Property in such amounts as
are generally required by institutional lenders for properties
comparable to the applicable Property but in no event for limits of
less than $300,000 per occurrence with combined single limit coverage
for bodily injury or property damage and excess (umbrella) liability
coverage of no less than $6,000,000 per occurrence;
(3) Workers' Compensation Insurance.
Statutory workers' compensation insurance (to the extent the risks to
be covered thereby are not already covered by other policies of
insurance
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maintained by the Mortgagor), with respect to any work on or about each
of the Properties;
(4) Business Interruption. Business
interruption and/or loss of "rental value" insurance for each of the
Properties in an amount equal to one (1) year's "rental value"
attributable to each such Property and based on the "rental value" for
the immediately preceding year and otherwise sufficient to avoid any
co-insurance penalty, the term "rental value" to mean the sum of (A)
the total Rents payable under the Leases at the applicable Property and
(B) the total amount of all other amounts to be received by the
Mortgagor or third parties which are the legal obligation of the
Tenants, reduced to the extent such amounts would not be received
because of operating expenses not incurred during a period of
non-occupancy of that portion of such applicable Property then not
being occupied;
(5) Earthquake Insurance. Earthquake
coverage with such limits and deductibles as are generally required by
institutional lenders for properties comparable to the applicable
Property in the county in which each of the Properties is located. Such
coverage shall be placed with one or more reputable insurers and may
insure additional properties on a pooled risk basis;
(6) Flood Insurance. If all or any portion
of any Property is located within a Federally designated flood hazard
zone, flood insurance in such amount as generally required by
institutional lenders for properties comparable to the applicable
Property; and
(7) Other Insurance. Such other insurance
with respect to any Property and the Equipment located therein against
loss or damage as are reasonably requested by the Beneficiary, provided
such insurance is of the kind from time to time customarily insured
against and in such amounts as are generally required by institutional
lenders for properties comparable to the applicable Property.
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(1) Ratings of Insurers. All insurance coverage shall
be provided by one or more domestic primary insurers having an Alfred M. Best
Company, Inc. rating of "A" or better and financial size category of not less
than IX, except to the extent that insurance in force on the date of this
Mortgage does not satisfy such criteria or if otherwise approved by the
Beneficiary. All insurers providing insurance required by this Mortgage shall be
authorized to issue insurance in the state where the applicable Property is
located.
The insurance coverage required under Section 5(a) may be
effected under a blanket policy or policies covering the Trust Estate and other
property and assets not constituting a part of the Trust Estate; provided that
any such blanket policy shall specify, except in the case of public liability
insurance, the portion of the total coverage of such policy that is allocated to
the applicable Property and the Equipment located thereon, and any sublimits in
such blanket policy applicable to the Trust Estate, which amounts shall not be
less than the amounts required pursuant to Section 5(a) and which shall in any
case comply in all other respects with the requirements of this Section 5.
(2) Form of Insurance Policies; Endorsements. All
insurance policies shall be in such form and with such endorsements as are
comparable to the forms of and endorsements to the Mortgagor's insurance
policies in effect on the date hereof or otherwise in accordance with
commercially reasonable standards applied by prudent owners of commercial or
industrial properties of the same quality as each of the Properties. Certified
copies of all of the above-mentioned insurance policies and/or certificates of
insurance have been delivered to and shall be held by the Beneficiary. All
insurance certificates from time to time delivered (or required to be delivered)
hereunder in order to evidence the property insurance required by Section (a)(i)
of this Article 5 shall be "Accord 27" certificates. The policy or policies
required by Section (a)(i)(iv),(v) and (vi) of this Article 5 shall name the
Beneficiary as loss payee/mortgagee, and all other policies required hereunder
shall name the Beneficiary as additional insured. All policies required to be
maintained hereunder shall provide that all Proceeds be payable to the
Beneficiary as set forth in Section 6 hereof, and
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shall contain: (i) a standard "non-contributory mortgagee" endorsement or its
equivalent relating, inter alia, to recovery by the Beneficiary notwithstanding
the negligent or willful acts or omissions of the Mortgagor; (ii) to the extent
available, a waiver of subrogation endorsement as to the Beneficiary providing
that no policy shall be impaired or invalidated by virtue of any act, failure to
act, negligence of, or violation of declarations, warranties or conditions
contained in such policy by the Mortgagor, the Beneficiary or any other named
insured, additional insured or loss payee, except for the willful misconduct of
the Beneficiary knowingly in violation of the conditions of such policy;
provided, however, that if such waiver of subrogation endorsement is not
available, Mortgagor shall obtain a substantially similar waiver with respect to
each individual claim filed by Mortgagor under any such insurance policy; (iii)
an endorsement indicating that neither the Beneficiary nor the Mortgagor shall
be or be deemed to be a co-insurer with respect to any risk insured by such
policies and shall provide for a deductible per loss of an amount not more than
that which is customarily maintained by prudent owners of commercial or
industrial properties of the same quality as the applicable Property, but in no
event in excess of $100,000; (iv) a provision that such policies shall not be
cancelled or amended, including, without limitation, any amendment reducing the
scope or limits of coverage, without at least thirty (30) days prior written
notice to the Beneficiary in each instance; and (v) include effective waivers by
the insurer of all claims for insurance premiums against any loss payees,
additional insureds, mortgagees and named insureds (other than the Mortgagor).
Certificates of insurance (in the form of "Accord 27" certificates with respect
to property insurance) with respect to all renewal and replacement policies
shall be delivered to the Beneficiary not less than thirty (30) days prior to
the expiration date of any of the insurance policies required to be maintained
hereunder, which certificates shall bear notations evidencing payment of
applicable premiums and originals (or certified copies) of such insurance
policies shall be delivered to the Beneficiary promptly after the Mortgagor's
receipt thereof. If the Mortgagor fails to maintain and deliver to the
Beneficiary the original policies (or certified copies) or certificates of
insurance required by this Mortgage, the Beneficiary may, at its option, after
ten (10) days' prior written notice
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to the Mortgagor, procure such insurance, and the Mortgagor shall reimburse the
Beneficiary for the amount of all premiums paid by the Beneficiary thereon
promptly, upon demand by the Beneficiary, with interest thereon at the Default
Rate from the date paid by the Beneficiary to the date of repayment, and such
sum shall be a part of the Indebtedness secured by this Mortgage.
The Beneficiary shall not by the fact of approving,
disapproving, accepting, preventing, obtaining or failing to obtain any
insurance, incur any liability for or with respect to the amount of insurance
carried, the form or legal sufficiency of insurance contracts, solvency of
insurance companies, or payment or defense of lawsuits, and the Mortgagor hereby
expressly assumes full responsibility therefor and all liability, if any, with
respect thereto.
(3) Compliance with Insurance Requirements. The
Mortgagor shall comply with all Insurance Requirements and shall not bring or
keep any article upon any of the Properties or cause or permit any condition to
exist thereon which would be prohibited by or would invalidate insurance
coverage maintained, or required hereunder or under the Credit Agreement to be
maintained, by the Mortgagor on or with respect to any part of the Trust Estate
pursuant to this Section 5.
(b Separate Insurance. The Mortgagor will not take
out separate insurance contributing in the event of loss with that required to
be maintained pursuant to this Section 5, unless such insurance complies with
this Section 5.
(c Blanket Policies. Except in the case of public
liability insurance, upon Beneficiary's request, the Mortgagor shall deliver to
Beneficiary an officer's certificate setting forth (i) the number of properties
covered by such policy, (ii) the location by city (if available, otherwise,
county) and state of the properties, (iii) the average square footage of the
properties (or the aggregate square footage), (iv) a brief description of the
typical construction type included in the blanket policy and (v) such other
information as Beneficiary may reasonably request.
16 Condemnation and Insurance Proceeds.
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(0) The Mortgagor will promptly notify the
Beneficiary in writing upon obtaining knowledge of (i) the institution of any
proceedings relating to any Taking of, or (ii) the occurrence of any casualty,
damage or injury to, the Properties (or any of them) or Equipment located
thereon or any portion thereof, the restoration of which is estimated by the
Mortgagor in good faith to cost more than $1,000,000.
(1) In the event of any Taking of, or casualty or
other damage or injury to, any Property, or Equipment located thereon, the
Mortgagor's right, title and interest in and to all compensation, awards,
proceeds, damages, claims, insurance recoveries, causes and rights of action
(whether accrued prior to or after the date hereof) and payments which the
Mortgagor may receive or to which the Mortgagor may become entitled with respect
to such Property or any part thereof (collectively, "Proceeds"), in connection
with any such Taking, casualty or other damage or injury to any Property, or any
part thereof, or Equipment located thereon are hereby assigned to and shall be
paid to the Beneficiary. Notwithstanding anything to the contrary set forth in
this Mortgage, to the extent such Proceeds are not in excess of $1,000,000 (the
"Casualty Amount"), then the Beneficiary hereby consents to and agrees that such
Proceeds are to be paid directly to the Mortgagor to be applied to restoration
of such Property in accordance with the terms hereof and/or the applicable terms
of the Lease. Subject to the provisions of Sections 6(c) and 6(d) hereof,
promptly after the occurrence of any damage or destruction to all or any portion
of such Property or a Taking of a portion of such Property and receipt of the
Proceeds by Mortgagor, the Mortgagor shall commence and diligently prosecute to
completion the repair, restoration and rebuilding of such Property (in the case
of a Taking, to the extent it is capable of being restored) (such repair,
restoration and rebuilding are sometimes hereinafter collectively referred to as
the "Work") so damaged, destroyed or remaining after such damage or destruction
or such Taking in full compliance with all Legal Requirements and free and clear
of any and all Liens (subject to Section 7(c) hereof), except the Permitted
Exceptions; it being understood, however, that the Mortgagor shall not be
obligated to restore such
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Property to the precise condition of such Property prior to any Taking, casualty
or other damage or injury to such Property (and in fact, so long as the
Mortgagor applies the Proceeds received upon such Taking or casualty to such
Property to restore the damage or injury to such Property and/or to provide
another type of improvement that is reasonably expected to benefit such
Property, no restoration or rebuilding of the damaged or taken structures must
be undertaken), if the Work actually performed, if any, or failed to be
performed, shall have no Material Adverse Effect on the value of such Property
from the value that such Property would have had if the same had been restored
to its condition immediately prior to such Taking or casualty. The Mortgagor
will, in good faith and in a commercially reasonable manner, file and prosecute
the adjustment, compromise or settlement of any claim for insurance or Taking
Proceeds and, subject to the Mortgagor's right to receive the direct payment of
any Proceeds up to the Casualty Amount subject to the provisions below, will
cause the same to be collected and the net Proceeds paid over to the
Beneficiary, to be held and applied in accordance with the provisions of this
Mortgage. The Mortgagor hereby irrevocably authorizes and empowers the
Beneficiary, in the name of the Mortgagor as its true and lawful
attorney-in-fact, to file and prosecute such claim and to collect and to make
receipt for any such payment, and, in the event the Mortgagor fails so to act
for a period of ten (10) days following the Mortgagor's receipt of written
notice from the Beneficiary or if an Event of Default shall have occurred and be
continuing, then in such case the Beneficiary may file such claim and prosecute
it with counsel satisfactory to it at the expense of the Mortgagor. The
Beneficiary shall have the right to approve, such approval not to be
unreasonably withheld or delayed, any settlement which might result in any
Proceeds in excess of the Casualty Amount, and the Mortgagor will deliver to the
Beneficiary all instruments reasonably requested by the Beneficiary to permit
such approval. The Mortgagor will pay all costs, fees and expenses reasonably
and actually incurred by the Beneficiary (including all reasonable attorneys'
fees and expenses actually incurred, the reasonable fees of insurance experts
and adjusters and reasonable costs incurred in any litigation or arbitration) in
connection with the settlement of any claim for insurance or Taking Proceeds and
seeking and obtaining of any payment on
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account thereof in accordance with the foregoing provisions. If any insurance or
Taking Proceeds are received by the Mortgagor, such Proceeds shall be received
in trust for the Beneficiary, shall be used to pay for the cost of both the Work
and any settlement with insurance companies or the condemning authority, in
accordance with the terms hereof, and in the event such Proceeds are in excess
of the Casualty Amount, shall be forthwith paid to the Beneficiary to be held by
the Beneficiary in a segregated account in trust for the Mortgagor, in each case
to be applied or disbursed in accordance with the provisions hereof.
(2) Upon the occurrence and during the continuance of
an Event of Default hereunder, all net Proceeds shall be paid over to the
Beneficiary and shall be applied first toward reimbursement of the Beneficiary's
reasonable costs and expenses actually incurred in connection with recovery of
the Proceeds and disbursement of the Proceeds (as further described below),
including, without limitation, reasonable administrative costs and inspection
fees, and then to the payment or prepayment of the Indebtedness secured hereby
in such order as the Beneficiary shall determine.
(3) If Proceeds are not paid directly to Mortgagor
pursuant to this Section 6 or are not required to be applied towards payment of
the Indebtedness pursuant to Section 6(c) above, then the Beneficiary shall make
the Proceeds which it is holding pursuant to the terms hereof available to the
Mortgagor (after payment of any reasonable expenses actually incurred by the
Beneficiary in connection with the collection thereof), for payment of or
reimbursement of the Mortgagor's expenses incurred with respect to the Work,
upon the following terms and subject to the following conditions:
(1) there shall be no continuing Event of
Default hereunder;
(2) if the estimated cost of the Work (as
estimated by the architect referred to in clause (iii) below) shall
exceed the Proceeds available, the Mortgagor shall at its option either
deposit with or deliver to the Beneficiary an amount equal to such
excess in the form of (A) Cash and
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Cash Equivalents or (B) an unconditional, irrevocable, clean sight
draft letter of credit in commercially reasonable form and issued by an
Approved Bank; and
(3) the Beneficiary shall be furnished with
an estimate of the cost of the Work accompanied by an Independent
Architect's certification as to such costs and appropriate plans and
specifications for the Work. The plans and specifications or
construction documents shall require that the Work be done in a
first-class workmanlike manner at least equivalent to the quality and
character of the original Improvements (provided, however, that in the
case of a Taking the restoration of the applicable Property shall be
done to the extent reasonably practicable after taking into account the
consequences of such Taking), so that upon completion thereof, the
applicable Property shall be at least equal in value and general
utility to such Property immediately prior to the damage or
destruction. The Mortgagor shall restore all Improvements such that
when they are fully restored and/or repaired such Improvements and
their contemplated use fully comply with all applicable Legal
Requirements, including, without limitation, zoning, environmental and
building laws, codes, ordinances and regulations.
(4) Disbursement of the Proceeds to the Mortgagor
shall be made from time to time (but not more frequently than once in any month)
by the Beneficiary as the Work progresses upon receipt by the Beneficiary of (i)
an Officers' Certificate dated not more than thirty (30) days prior to the
application for such payment, requesting such payment or reimbursement and
setting forth the Work performed which is the subject of such request, the
parties which performed such Work and the actual cost thereof, and also
certifying that such Work and materials are free and clear of Liens (subject to
Section 7(c) hereof) other than Permitted Exceptions and (ii) an Independent
Architect's certificate certifying performance of the Work together with an
estimate of the cost to complete the Work. No payment made prior to the final
completion of the Work shall exceed ninety percent (90%) of the value of the
Work performed or materials furnished and incorporated into the Improvements
from
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time to time, and at all times the undisbursed balance of said Proceeds,
together with all amounts deposited, bonded, guaranteed or otherwise funded
pursuant to clause (ii) above, shall be at least sufficient to pay for the cost
of completion of the Work, free and clear of Liens (subject to Section 7(c)
hereof) other than Permitted Exceptions; final payment shall be made upon
receipt by the Beneficiary of a certification by an Independent Architect as to
the completion substantially in accordance with the submitted plans and
specifications, and the filing of a notice of completion and the receipt by the
Beneficiary of final lien waivers (subject to Section 7(c) hereof) from each
contractor or materialman. The Beneficiary may at its option require an
endorsement to its title insurance policy insuring the continued priority of the
Lien of this Mortgage (subject to Permitted Exceptions) as to all sums advanced
hereunder, such endorsement to be paid for by the Mortgagor.
(5) In the event that any condition to application of
Proceeds to the Work contained in Section 6(d) above is not satisfied within a
reasonable period of time, then, upon thirty (30) days prior written notice all
Proceeds with respect to the Taking of or damage or injury to the Trust Estate
in question shall be applied by the Beneficiary to the payment or prepayment of
all or any portion of the Indebtedness secured hereby.
(6) In the event that, after the completion of the
Work and payment of all costs of completion, there are excess Proceeds, then,
upon thirty (30) days prior written notice to Mortgagor such excess Proceeds
with respect to the Taking of or damage or injury to the Trust Estate shall be
applied by the Beneficiary to the payment or prepayment of all or any portion of
the Indebtedness secured hereby.
(7) In the event of a Taking of 100% of any Property,
the Mortgagor shall prepay the Note, without penalty or premium, in an amount
equal to the net Proceeds received by the Mortgagor for such Property.
(8) In the event of a casualty which damages 100% of
any Property, the Mortgagor shall prepay the Note, without penalty or premium,
in an amount equal to the net Proceeds received by the Mortgagor for such
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Property, and such Property shall be released from the lien and security
interests of the Loan Documents.
17 Impositions, Liens and Other Items.
(0) Subject to its right of contest set forth in
Section 7(c), the Mortgagor shall pay all Impositions which are attributable to
or affect each of the Properties or the Mortgagor with respect to each of the
Properties, prior to the date such Impositions shall become delinquent or late
charges may be imposed thereon, directly to the applicable taxing authority with
respect thereto, unless and to the extent the Beneficiary shall pay such
Impositions from any Mortgage Escrow Amounts pursuant to Section 8 hereof. The
Mortgagor shall deliver to Beneficiary, not later than forty five (45) days
after each payment of Impositions, paid receipts evidencing the payment of such
Impositions.
(1) Subject to its right of contest set forth in
Section 7(c), the Mortgagor shall at all times keep the Properties and the
Equipment located thereon free from all Liens (other than the Lien hereof and
Permitted Exceptions) and shall pay when due and payable all claims and demands
of mechanics, materialmen, laborers and others which, if unpaid, might result in
or permit the creation of a Lien on any Property or any portion thereof and the
Equipment located thereon, whether ranked senior, pari passu or junior to the
priority of the Lien created hereby, and shall in any event cause the prompt,
full and unconditional discharge of all Liens imposed on or against any
Property, or any portion thereof, and the Equipment located thereon within
forty-five (45) Domestic Business Days after receiving written notice of the
filing (whether from the Beneficiary, the lienor or any other Person) thereof.
The Mortgagor shall do or cause to be done, at the sole cost of the Mortgagor,
everything necessary to fully preserve the first priority of the Lien of this
Mortgage against the Properties and the Equipment located thereon, subject to
the Permitted Exceptions. Upon the occurrence of an Event of Default with
respect to Mortgagor's Obligations as set forth in this Section 7, the
Beneficiary may (but shall not be obligated to) make such payment or discharge
such Lien, and the Mortgagor shall reimburse the Beneficiary on demand for all
such advances
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pursuant to Section 15 hereof, together with interest thereon at the Default
Rate.
(2) Nothing contained herein shall be deemed to
require the Mortgagor to pay any Imposition, to satisfy any Lien or to comply
with any Legal Requirement or Insurance Requirement so long as the Mortgagor is
in good faith, and by proper legal proceedings, diligently contesting the
validity, amount or application thereof, provided that in each case, at the time
of the commencement of any such action or proceeding, and during the pendency of
such action or proceeding, (i) no Event of Default shall exist and be continuing
hereunder, (ii) adequate reserves with respect thereto are maintained on the
Mortgagor's books in accordance with GAAP, (iii) such contest operates to
suspend collection or enforcement, as the case may be, of the contested
Imposition or Lien and such contest is maintained and prosecuted continuously
and with diligence, (iv) in the case of any Insurance Requirement, the failure
of the Mortgagor to comply therewith shall not impair the validity of any
insurance required to be maintained by the Mortgagor under Section 5 or the
right to full payment of any claims thereunder, and (v) in the case of
Impositions and Liens in excess of $500,000, during such contest, security in
the form required by Section 6(d)(ii), assuring the discharge of the Mortgagor's
obligations being contested and of any additional interest, charge, or penalty
arising from such contest. Notwithstanding the foregoing, any such reserves or
the furnishing of any bond or other security, the Mortgagor promptly shall
comply with any contested Legal Requirement or Insurance Requirement or shall
pay any contested Imposition or Lien, and compliance therewith or payment
thereof shall not be deferred, if, at any time a Property or any portion
thereof, or any Equipment located thereon shall be, in the Beneficiary's
reasonable judgment, in danger of being forfeited or lost or the Beneficiary may
be subject to civil or criminal damages as a result thereof. If such action or
proceeding is terminated or discontinued adversely to the Mortgagor without any
right of appeal exercised by the Mortgagor within the time period legally
permitted therefore, the Mortgagor, upon written demand, shall deliver to the
Beneficiary reasonable evidence of the Mortgagor's compliance with such
contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the
case may be.
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18 Funds for Taxes and Insurance.
(0) From and after the occurrence of any Event of
Default by the Mortgagor hereunder, the Beneficiary may at its sole election,
upon three (3) Business Days' written notice to the Mortgagor, require the
Mortgagor to pay additional amounts sufficient to discharge the obligations of
the Mortgagor under Sections 5 and 7 hereof with respect to insurance premiums
and Impositions, as and when they become due (such amounts, the "Mortgage Escrow
Amounts"). From and after such election, the Mortgagor shall deliver to the
Beneficiary annually, no later than fifteen (15) Business Days after the first
day of each fiscal year of the Mortgagor, and shall update as new information is
received, a schedule describing all Impositions payable or estimated to be
payable during such fiscal year attributable to or affecting the Trust Estate or
the Mortgagor. Upon the Beneficiary's election to require Mortgage Escrow
Amounts in accordance with the foregoing, the Mortgagor shall pay to the
Beneficiary to be held in an account controlled by the Beneficiary (the "Escrow
Account") a sum which bears the same relation to the annual insurance premiums
for all insurance required by the terms hereof and Impositions assessed against
the Properties for the insurance period or tax year then in effect, as the case
may be, as (i) the number of months elapsed as of the date of such election
since the last preceding installment of said premiums or Impositions shall have
become due and payable bears to (ii) twelve (12). For the purpose of this
computation, the month in which such last preceding installment of premiums or
Impositions became due and payable and the month in which the Beneficiary makes
such election shall be included and deemed to have elapsed. During each month
thereafter, until the Beneficiary shall elect that the provisions of this
Section 8 shall no longer be applicable, the Mortgagor shall pay with respect to
the Mortgage Escrow Amounts a sum equal to the one-twelfth of such insurance
premiums and such Impositions for the then-current insurance period and tax
year, so that as each installment of such premiums and Impositions shall become
due and payable, the Beneficiary shall have received a sum sufficient to pay the
same. If the amount of such premiums and Impositions has not been definitely
ascertained at the time when any such monthly deposits
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are to be made, the Mortgagor shall pay Mortgage Escrow Amounts based upon the
amount of such premiums and Impositions for the preceding year, subject to
adjustment as and when the amount of such premiums and Impositions are
ascertained.
(1) The Mortgage Escrow Amounts shall be held by the
Beneficiary and shall be applied by Beneficiary to the payment of the
obligations in respect of which such Mortgage Escrow Amounts were required
except upon the occurrence of an Event of Default and the acceleration of the
Note in which case all or any portion of such Mortgage Escrow Amounts may be so
transferred or otherwise applied to the Indebtedness in such order or priority
as the Beneficiary may elect or the Beneficiary may exercise any of its rights
or remedies with respect to same under any of the Loan Documents, at law or in
equity. Any Mortgage Escrow Amounts paid by the Mortgagor in excess of the
actual obligations for which they were required, shall be held and applied to
the obligations for the ensuing year, otherwise applied in accordance with the
terms of the Loan Documents or returned to Mortgagor. Nothing herein contained
shall be deemed to affect any right or remedy of the Beneficiary under this
Mortgage or otherwise at law or in equity to pay any such amount and to add the
amount so paid to the Indebtedness hereby secured. Any such application of said
amounts or any portion thereof to any Indebtedness secured hereby shall not be
construed to cure or waive any Default or notice of Default hereunder or
invalidate any act done pursuant to any such Default or notice.
(2) If the Beneficiary elects to require Mortgage
Escrow Amounts pursuant to this Section 8, the Mortgagor shall deliver to the
Beneficiary all tax bills, bond and assessment statements, statements of
insurance premiums, and statements for any other obligations referred to above
as soon as the same are received by the Mortgagor, and the Beneficiary shall
cause the same to be paid when due to the extent of Mortgage Escrow Amounts in
the Escrow Account available therefor. It is expressly acknowledged and agreed
that the Beneficiary shall have no obligation whatsoever to advance any amounts
in payment of all or any portion of such obligations to the extent that Mortgage
Escrow Amounts received are insufficient to pay any such obligations as and when
the same become due.
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19 The Beneficiary and Trustees. If any section of this
Mortgage provides that this document shall constitute a deed of trust, the
provisions of this Section 9 shall be applicable.
(0) The Trustees accept the trusts hereby created and
agree to perform the duties herein required of them upon the terms and
conditions hereof.
The duties and obligations of the Trustees in respect of this
Mortgage shall be as set forth in this Section 9.
(1) Except upon the occurrence and during
the continuance of an Event of Default actually known to the
Beneficiary,
(1) the Trustees shall undertake to perform such duties and
obligations and only such duties and obligations as are specifically set forth
in this Mortgage and the Loan Documents or as otherwise directed by a letter of
direction from the Beneficiary, and no implied covenants or obligations shall be
read into this Mortgage or the Loan Documents against the Trustees; and
(2) in the absence of bad faith, the Trustees may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustees and
conforming to the requirements of this Mortgage and the Loan Documents.
(2) In case an Event of Default known to
the Beneficiary has occurred and is continuing, the Trustees shall
exercise the rights and powers vested in the Trustees by this Mortgage
and the Loan Documents, with reasonable care, as directed by
Beneficiary.
(3) No provision of this Mortgage shall be
construed to relieve the Trustees from liability for their own gross
negligence or willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of subsection (b) of this Section 9;
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(2) the Trustees shall not be liable for any error of judgment
made in good faith by an officer of the Trustees, unless it shall be proved that
such Trustees were negligent in ascertaining the pertinent facts; and
(3) the Trustees shall not be liable with respect to any
action taken or omitted to be taken in good faith in accordance with the
direction of the Beneficiary relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustees, or
exercising any trust or power conferred upon the Trustees under this Mortgage or
the other Loan Documents.
(4) Whether or not therein expressly so
provided, every provision of this Mortgage relating to the conduct or
affecting the liability of or affording protection to the Trustees
shall be subject to the provisions of this Section 9(a).
(5) No provision of this Mortgage shall
require the Trustees to expend or risk their own funds or otherwise
incur any personal financial liability in the performance of any of
their duties hereunder, or in the exercise of any of their rights or
powers.
(1) At any time or times for the purpose of meeting the Legal
Requirements of any jurisdiction in which any part of a Trust Estate may at the
time be located, the Beneficiary shall have the power to appoint and, upon the
written request of the Beneficiary, the Mortgagor shall for such purpose join
with the Beneficiary in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint one or more Persons
reasonably approved by the Beneficiary to act as trustee pursuant to this
Mortgage in such jurisdiction for such portion of the Trust Estate located in
such jurisdiction (the "Jurisdictional Trustee") with such powers as are
provided in the instrument of appointment which shall expressly designate the
Properties affected and the capacity of the appointee as a Jurisdictional
Trustee, and to vest in such Person or Persons in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable, subject to the
other provisions of this Section 9. If
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the Mortgagor does not join in such appointment within fifteen (15) days after
the receipt by it of a request so to do, or in case an Event of Default has
occurred and is continuing, the Beneficiary alone shall make such appointment.
Should any written instrument from the Mortgagor be required by any
Jurisdictional Trustee so appointed for more fully confirming to such
Jurisdictional Trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and delivered by the
Mortgagor.
(1) Every Jurisdictional Trustee shall, to
the extent permitted by law, but to such extent only, be appointed
subject to the terms set forth in Section 9(b)(iii) hereof.
(2) As of the date hereof the Trustee named
on page 1 hereof is hereby appointed Jurisdictional Trustee for the
State in which the Properties are located.
(3) To the extent permitted by law, but to
such extent only, the Jurisdictional Trustee is appointed herein
subject to the following terms, namely:
(1) Subject to the terms hereof and to the extent permitted by
law, all rights, powers, duties and obligations under this Mortgage granted to
or imposed upon the Beneficiary and the Jurisdictional Trustee shall be
exercised solely by the Beneficiary.
(2) The rights, powers, duties and obligations hereby
conferred or imposed upon the Beneficiary and the Jurisdictional Trustee in
respect of any Property covered by such appointment shall be exercised or
performed by the Beneficiary separately, or at the election of the Beneficiary
by the Beneficiary and the Jurisdictional Trustee jointly, except to the extent
that (i) under any law of any jurisdiction in which any particular act is to be
performed by the Beneficiary and/or the Jurisdictional Trustee and the
Beneficiary shall be incompetent or unqualified to perform such act or (ii) the
Beneficiary shall deem it inconvenient or undesirable to perform such act, then
in any such event such rights, powers, duties and obligations shall be exercised
and performed by the
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Jurisdictional Trustee at the written direction of the Beneficiary.
(3) The Beneficiary at any time, by an instrument in writing
executed by it, may accept the resignation of or remove any Jurisdictional
Trustee. Upon the written request of the Beneficiary, the Mortgagor shall join
with the Beneficiary in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to the Jurisdictional Trustee so resigned or removed may be
appointed in the manner provided in this Section 9.
(4) Upon the resignation or removal of any Jurisdictional
Trustee, the Beneficiary shall have power to appoint and, upon the written
request of the Beneficiary, the Mortgagor shall, for such purpose, join with the
Beneficiary in the execution, delivery and performance of all instruments and
agreements necessary or proper to appoint one or more Persons reasonably
approved by the Beneficiary to act as successor Jurisdictional Trustee of all or
any part of the Trust Estate so designated, with such power as provided for in
this Section 9, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section 9. If the Mortgagor does not join in such
appointment, within fifteen (15) days after the receipt by it of a request so to
do, or in case an Event of Default has occurred and is continuing, the
Beneficiary acting alone shall make such appointment. Should any written
instrument from the Mortgagor be required by any successor Jurisdictional
Trustee so appointed for more fully confirming to such trustee such property,
title, right or power, any and all such instruments shall, on request, be
executed, acknowledged and delivered by the Mortgagor.
(5) No Jurisdictional Trustee hereunder shall be personally
liable by reason of any act or omission of the Beneficiary or any other trustee
hereunder and the Beneficiary shall not be personally liable by reason of any
act or omission of the Jurisdictional Trustee; neither shall knowledge of the
Beneficiary be imputed to the Jurisdictional Trustee nor shall knowledge of the
Jurisdictional Trustee be imputed to the Beneficiary.
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(6) Any notice delivered to the Beneficiary shall be deemed to
have been sufficiently delivered without any delivery to the Jurisdictional
Trustee.
(7) Any obligation of the Mortgagor to file or give notices,
reports or information to the Beneficiary hereunder shall be satisfied by the
delivery thereof to the Beneficiary.
(8) Any successor to the Jurisdictional Trustee (herein, in
this subsection (H), called the "Successor Jurisdictional Trustee") shall
execute, acknowledge and deliver to his predecessor (herein called the
Predecessor Jurisdictional Trustee), the Beneficiary and the Mortgagor, an
instrument accepting such appointment. Thereupon, the Successor Jurisdictional
Trustee shall, without any further act, deed or conveyance, become vested with
the estates, properties, rights, powers, duties and trusts of the Predecessor
Jurisdictional Trustee in the trusts created by this Mortgage, with the same
effect as if originally named as Jurisdictional Trustee. At the written request
of the Mortgagor, the Beneficiary or the Successor Jurisdictional Trustee, the
Predecessor Jurisdictional Trustee shall execute and deliver an instrument, in
recordable form, transferring to the Successor Jurisdictional Trustee, upon the
trusts herein expressed, the Trust Estate and shall duly assign transfer,
deliver and pay over to the Successor Jurisdictional Trustee, any property and
money subject to the lien hereof held by him. If any written instrument from the
Mortgagor or the Beneficiary be required by the Successor Jurisdictional Trustee
for more fully and certainly vesting in and confirming to the Successor
Jurisdictional Trustee such estates, properties, rights, powers and trusts,
then, at the request of the Successor Jurisdictional Trustee, all such
instruments shall be made, executed, acknowledged and delivered by the Mortgagor
or the Beneficiary to the Successor Jurisdictional Trustee.
(2) The Mortgagor covenants and agrees:
(1) to reimburse the Beneficiary and the
Trustees from time to time for all reasonable, out-of-pocket costs and
expenses incurred by them hereunder;
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(2) to reimburse each of the Beneficiary
and the Trustees upon request for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by it or him in
accordance with any provision of this Mortgage (including reasonable
compensation, expenses and disbursements of agents and counsel), except
any such expense, disbursement or advance as may be attributable to
Beneficiary's or Trustee's negligence or bad faith; and
(3) to indemnify the Beneficiary and the
Trustees for, and to hold each harmless against, any loss, liability or
expense incurred without negligence, willful misconduct or bad faith on
its or his part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the enforcement of
remedies hereunder including the reasonable costs and expenses of
defending against any claim or liability in connection with the
exercise or performance of any of the powers or duties hereunder or
thereunder (except any liability incurred by the Beneficiary, Trustees
or the Jurisdictional Trustee with negligence, willful misconduct or
bad faith on its or their part).
The obligations of the Mortgagor under this Section 9(c) to compensate or
indemnify the Trustees and the Beneficiary and to pay or reimburse the Trustees
and the Beneficiary for reasonable, out-of-pocket expenses, disbursements and
advances shall constitute additional Indebtedness hereunder and shall survive
the satisfaction and discharge of this Mortgage. When the Trustees or the
Beneficiary incur expenses or render services after an occurrence of an Event of
Default hereunder, the expenses and compensation for services are intended to
constitute expenses of administration under any Bankruptcy Law.
(3) If an individual Person is named as Trustee on page 1
hereof, such individual is hereby appointed Individual Trustee for the State in
which the Properties are located. To the extent permitted by law, but to such
extent only, the Individual Trustee is appointed herein by the Beneficiary
subject to the following terms, namely:
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(1) Subject to the terms hereof and to the
extent permitted by law, all the rights, powers, duties and obligations
under this Mortgage granted to or imposed upon the Individual Trustees
shall be exercised solely by the Beneficiary except as herein provided.
(2) The rights, powers, duties and
obligations hereby conferred or imposed upon the Individual Trustee in
respect of any property covered by such appointment shall be exercised
or performed by the Beneficiary separately, or at the election of the
Beneficiary by the Beneficiary and the Individual Trustee jointly,
except to the extent that (i) under any law of any jurisdiction in
which any particular act is to be performed by the Individual Trustees
and/or the Beneficiary shall be incompetent or unqualified to perform
such act or (ii) the Beneficiary shall deem it inconvenient or
undesirable to perform such act, then in any such event such rights,
powers, duties and obligations shall be exercised and performed by the
Individual Trustee at the written direction of the Beneficiary.
(3) The Beneficiary at any time, by an
instrument in writing executed by it, may accept the resignation of or
remove any Individual Trustee. Upon the written request of the
Beneficiary, the Mortgagor shall join with the Beneficiary in the
execution, delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A
successor to the Individual Trustee so resigned or removed may be
appointed in the manner provided in this Section.
(4) Upon the death, resignation or removal
of any Individual Trustee, the Beneficiary shall have power to appoint
and, upon the written request of the Beneficiary, the Mortgagor shall,
for such purpose, join with the Beneficiary in the execution, delivery
and performance of all instruments and agreements necessary or proper
to appoint, one or more persons approved by the Beneficiary to act as
Successor Individual Trustee together with the Beneficiary of all or
any part of the Trust Estate, with such powers as provided for in this
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Section 9, and to vest in such person or persons in the capacity
aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section 9. If the
Mortgagor does not join in such appointment, within fifteen (15) days
after the receipt by it of a request so to do, or in case an Event of
Default has occurred and is continuing, the Beneficiary acting alone
shall make such appointment.
(5) Should any written instrument from the
Mortgagor be required by any successor Individual Trustee so appointed
for more fully confirming to such trustee such property, title, right
or power, any and all such instruments shall, on request, be executed,
acknowledged and delivered by the Mortgagor.
(6) No Individual Trustee hereunder shall
be personally liable by reason of any act or omission of the
Beneficiary or any other trustee hereunder and the Beneficiary shall
not be personally liable by reason of any act or omission of the
Individual Trustee; neither shall knowledge of the Beneficiary be
imputed to the Individual Trustee nor shall knowledge of the Individual
Trustee be imputed to the Beneficiary.
(7) Any notice delivered to the Beneficiary
shall be deemed to have been sufficiently delivered without any
delivery to the Individual Trustee.
(8) Any obligation of the Mortgagor to file
or give notices, reports or information to the Trustees hereunder shall
be satisfied by the delivery thereof to the Beneficiary.
Any successor to the Individual Trustee (herein, in this
subsection (d) called the "Successor Individual Trustee") shall execute,
acknowledge and deliver to his predecessor (herein, in this subsection (h),
called the "Predecessor Individual Trustee"), the Beneficiary and the Mortgagor,
an instrument accepting such appointment. Thereupon, the Successor Individual
Trustee shall, without any further act, deed or conveyance, become vested with
the estates, properties,
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rights, powers, duties and trusts of the Predecessor Individual Trustee in the
trusts created by this Mortgage, with the same effect as if originally named as
Individual Trustee. At the written request of the Mortgagor, the Beneficiary or
the Successor Individual Trustee, the Predecessor Individual Trustee shall
execute and deliver an instrument transferring to the Successor Individual
Trustee, upon the trusts herein expressed, the Trust Estate and shall duly
assign, transfer, deliver and pay over to the Successor Individual Trustee, any
property and money subject to the lien hereof held by him. If any written
instrument from the Mortgagor or the Beneficiary be required by the Successor
Individual Trustee for more fully and certainly vesting in and confirming to the
Successor Individual Trustee such estates, properties, rights, powers and
trusts, then, at the request of the Successor Individual Trustee, all such
instruments shall be made, executed, acknowledged and delivered by the Mortgagor
or the Beneficiary to the Successor Individual Trustee.
(4) At any time or times, (i) for the purpose of meeting the
Legal Requirements of any jurisdiction in which any part of a Trust Estate may
at the time be located or (ii) if the Beneficiary deems it to be necessary or
desirable for the protection of its interests, the Beneficiary shall have the
power to appoint, and upon written request of the Beneficiary, the Mortgagor
shall for such purpose join with the Beneficiary in the execution, delivery and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Beneficiary either to act as co-trustee,
jointly with the Beneficiary, of all or any part of the Trust Estate, or to act
as separate trustee of any such property, in either case with such powers as may
be provided in the instrument of appointment which shall expressly designate the
property affected and the capacity of the appointee as either a co-trustee or
separate trustee, and to vest in such person or persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section 9. If the Mortgagor does not
join in such appointment within 15 days after the receipt by it of a request so
to do, or in case an Event of Default has occurred and is continuing, the
Beneficiary alone shall make such appointment.
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Should any written instrument from the Mortgagor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right or power, any
and all such instruments shall, by request, be executed, acknowledged and
delivered by the Mortgagor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the same
terms as hereinabove set forth for the Individual Trustee.
110 Transfers, Additional Indebtedness and Subordinate Liens.
(0) Except as permitted under the Credit Agreement,
the Mortgagor will not without the Beneficiary's prior written consent, which
consent may be withheld in the Beneficiary's sole discretion, (i) sell, assign,
convey, transfer or otherwise dispose of legal or beneficial interests in all or
any part of the Properties, (ii) incur additional Debt (as such term is defined
in the Credit Agreement), (iii) sell, assign, convey, transfer, or otherwise
dispose of any legal or beneficial interest in the Mortgagor or any entity
constituting the Mortgagor, or permit any owner of a legal or beneficial
interest in the Mortgagor to do the same, or file a declaration of condominium
with respect to any Property, or (iv) mortgage, hypothecate or otherwise
encumber or grant a security interest in the Trust Estate or any interest in the
Mortgagor or entity constituting the Mortgagor (the matters referred to in
clauses (i) through (iv) are collectively referred to as a "Transfer").
(1) Any Transfer made in violation of this Mortgage
or the Credit Agreement shall be an immediate Event of Default hereunder and
shall be void and of no force or effect as against the Beneficiary. Upon any
such Transfer made in violation of Section 10(a), the Beneficiary may, at its
option and without limiting any other right or remedy available to the
Beneficiary hereunder, under any of the other Loan Documents, or otherwise at
law or in equity, accelerate the maturity of the Note and require the payment of
the
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then existing outstanding principal balance, accrued interest and all other
Indebtedness due under the Note and this Mortgage and any and all other amounts
due to the Beneficiary. The Mortgagor shall reimburse the Beneficiary for all
reasonable costs and expenses, including, without limitation, reasonable
attorneys' fees, actually incurred by the Beneficiary in connection with the
review by the Beneficiary of the Mortgagor's request for the Beneficiary's
consent to a Transfer of all or any portion of the Trust Estate or any interest
therein or any interest in the Mortgagor.
111 Maintenance of Trust Estate; Alterations; Inspection;
Utilities.
(0) The Mortgagor shall keep and maintain the Trust
Estate and every part thereof in good condition and repair, subject to ordinary
wear and tear, and shall not permit or commit any impairment, deterioration or
intentional waste of any Property and the Equipment located thereon in any
material respect. The Mortgagor further covenants to do all other acts which
from the character or use of any Property may be reasonably necessary to protect
the security hereof, the specific enumerations herein not excluding the general.
The Mortgagor shall not remove or demolish any Improvement on any Property
except as the same may be necessary in connection with an Alteration or a
restoration in connection with a Taking or casualty, required under the Leases
or in the ordinary course of business in accordance with the terms and
conditions hereof.
(1) Except as may be necessary in connection with an
Alteration permitted by Section 11(c) below, the Mortgagor shall not make any
changes or allow any changes to be made in the use of a Property as a commercial
or industrial property and related uses or initiate or acquiesce in any change
in any zoning or other land use classification affecting all or any portion of a
Property now or hereafter in effect and affecting all or any portion of a
Property, in each case in a manner which could result in a Material Adverse
Effect.
(2) The Mortgagor shall have the right, without the
Beneficiary's consent, to undertake any alteration, improvement, demolition or
removal (any such
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alteration, improvement, demolition or removal, an "Alteration") of a Property
or any portion thereof so long as any such Alteration (i) is required or
permitted pursuant to or in connection with any Lease or (ii) provided that no
Event of Default shall have occurred and be continuing hereunder, does not in
the aggregate cost more than $1,000,000. The Beneficiary shall not unreasonably
withhold its consent to any Alteration in excess of $1,000,000 which is not
otherwise permitted under the terms of the applicable Lease. Any Alteration
which involves an estimated cost of more than $1,000,000 in the aggregate for
any Property shall be conducted under the supervision of an Independent
Architect, and no such Alteration shall be undertaken until five (5) Domestic
Business Days after there shall have been filed with the Beneficiary, for
information purposes only and not for approval by the Beneficiary, detailed
plans and specifications and cost estimates therefor, prepared and approved in
writing by such Independent Architect. Such plans and specifications may be
revised at any time and from time to time, provided that material revisions of
such plans and specifications are filed with the Beneficiary, for information
purposes only, together with the written approval thereof by such Independent
Architect. All work done in connection with any Alteration shall be performed
with due diligence in a good and workmanlike manner, all materials used in
connection with any Alteration shall not be less than the standard of quality of
the materials currently used at such Property and all work performed and all
materials used shall be in accordance with all applicable Legal Requirements and
the insurance requirements of the insurance policies required hereby.
(3) The Beneficiary and any Persons authorized by
them may at all reasonable times, upon reasonable notice and in compliance with
the Leases enter and examine any Property and may inspect all work done, labor
performed and materials furnished in and about any Property
112 Legal Compliance. The Mortgagor and the Properties and
the Equipment thereon and the use thereof comply in all material respects with
all Legal Requirements (hereinafter defined). Subject to the Mortgagor's right
of contest pursuant to Section 7(c), the Mortgagor shall comply with and conform
in all
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material respects to all present and future laws, statutes, codes, ordinances,
orders, judgments, decrees, injunctions, rules, regulations and requirements,
and irrespective of the nature of the work to be done, of every Governmental
Authority including, without limitation, Environmental Laws, consumer protection
laws and all covenants, restrictions and conditions now or hereafter of record
which may be applicable to Mortgagor or to any Property and the Equipment
thereon, or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration, repair or reconstruction of any Property and the
Equipment thereon, including, without limitation, building and zoning codes and
ordinances (collectively, the "Legal Requirements"), the failure to comply with
would, in the aggregate, have a Material Adverse Effect on the value of any
Property or Properties comprising a single shopping center, taken as a whole.
113 Books and Records, Financial Statements, Reports and
Other Information.
(0) Books and Records. The Mortgagor will keep and
maintain on a fiscal year basis proper books and client records, in which
accurate and complete entries shall be made of all dealings or transactions of
or in relation to the Note and the Trust Estate and the business and affairs of
the Mortgagor relating to the Trust Estate, in accordance with GAAP and the
Credit Agreement. The Beneficiary and its authorized representatives shall have
the right at reasonable times and upon reasonable notice to examine the books
and records of the Mortgagor relating to the operation of the Trust Estate and
to make such copies or extracts thereof as the Beneficiary may reasonably
require.
(1) Other Information. The Mortgagor will, within a
reasonable time after written request by the Beneficiary, furnish to the
Beneficiary, in such manner and in such detail as may be reasonably requested by
the Beneficiary, such reasonable additional information which has been prepared
by the Mortgagor in the ordinary course of business, as may be reasonably
requested by the Beneficiary with respect to the Trust Estate.
114 Compliance with Leases and Agreements.
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(0) The Mortgagor has heretofore delivered to the
Beneficiary true and complete copies of all Leases, and all Agreements and any
and all amendments or modifications thereof. The Leases and Agreements are in
full force and effect and the Mortgagor has neither given to (except for notices
of late payment sent in the ordinary course of business or as otherwise
disclosed to Beneficiary), nor received any written notice of default from, any
Tenants under any Leases or any party to any of the Agreements, and, to the
Mortgagor's knowledge, no events or circumstances exist except as otherwise
disclosed to Beneficiary, which with or without the giving of notice, the
passage of time or both, may constitute a default by Mortgagor, or to
Mortgagor's actual knowledge of the other parties thereto, under any of the
Leases or Agreements. The Mortgagor will promptly notify the Beneficiary upon
the occurrence of any of the foregoing events.
(1) The Mortgagor may, at all times, lease to any
Person space within any Property in a manner consistent with other retail
properties comparable to the applicable Property and then current market
conditions existing in the applicable market area in which such Property is
located, and otherwise in accordance with this Mortgage. Each Lease entered into
after the date hereof (including the renewal or extension on or after the date
hereof of any Lease entered into prior to the date hereof if the rent payable
during such renewal or extension, or a formula or other method to compute such
rent, is not provided for in such Lease (such a renewal or extension a "Renewal
Lease")) shall either (i) (A) provide for payment of rent and all other material
amounts payable thereunder at rates at least equal to the fair market rental
value (taking into account the type and creditworthiness of the tenant, the
length of tenancy and the location and size of the unit so rented), as of the
date such Lease is executed by the Mortgagor, of the space covered by such Lease
or Renewal Lease for the term thereof, including any renewal options, (B) not
contain any provision whereby the rent payable thereunder would be based, in
whole or in part, upon the net income or profits derived by any Person from the
applicable Property (provided, however, that it may contain a provision in which
a portion of rent may be payable based on a percentage of gross income, subject
to customary deductions and exclusions), (C) not entitle any Tenant to
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receive and retain Proceeds of a Taking except those that may be specifically
awarded to it in condemnation proceedings because of the Taking of its trade
fixtures and its leasehold improvements which have not become part of the realty
and such business loss and relocation expenses as tenant may specifically and
separately establish and (D) not have a Material Adverse Effect on the value of
the Property in which it is to be located or (ii) be consented to by the
Beneficiary. Each such Lease (other than Renewal Leases) that is the lesser of
(x) 20,000 square feet of any Property or (y) 15% of the rentable area of any
Property (a "Material Lease") shall be subject to the prior consent of
Beneficiary, which consent shall not be unreasonably withheld. Any such Renewal
Lease shall also be subject to the prior consent of Beneficiary, which consent
shall not be unreasonably withheld, in the case of any Renewal Lease which
either provides for (x) any material adverse change to any financial provision
of the Lease being renewed or extended, or (y) any other material and adverse
modification or amendment. Beneficiary shall grant or deny its consent within
five (5) Domestic Business Days after receipt of request therefor (together with
a copy of the proposed Material or Renewal Lease). If the Beneficiary shall fail
to respond within such five (5) Domestic Business Day period, the Beneficiary
shall be deemed to have granted its consent to the proposed Material or Renewal
Lease. Without the prior consent of Beneficiary, which consent shall not be
unreasonably withheld, the Mortgagor may not amend, modify or waive the
provisions of any Material Lease or terminate, reduce rents under or shorten the
term of any such Material Lease, except in the course of enforcement after
default by the tenant.
(2) The Mortgagor shall (i) promptly perform and
observe all of the material terms, covenants and conditions required to be
performed and observed by the Mortgagor under the Leases and Agreements such
that there will be no material and adverse impairment of the value of the
Property to which the Lease or Agreement relates or the Beneficiary's interest
under this Mortgage; and (ii) collect the Rents under the Leases at such times
as are customary in the ordinary course of the Mortgagor's business and may
collect such security deposits as are permitted by Legal Requirements and are
commercially reasonable in the prevailing market and
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collect escalations, percentage rent and other charges in accordance with the
terms of each Lease.
(3) Mortgagor shall use commercially reasonable
efforts to ensure that all Leases entered into by the Mortgagor after the date
hereof shall be subject and subordinate to this Mortgage (through either
subordination provisions in the Leases or separate nondisturbance agreements),
and shall provide that the Tenant thereunder shall attorn to the Beneficiary, or
any other Person succeeding to the interest of the Beneficiary, on the terms set
forth in Section 14(e); provided that the Tenant's rights under the Lease shall
not be impaired or otherwise affected by such subordination or the foreclosure
of this Mortgage, unless such Tenant has defaulted under the Lease and all
applicable grace or cure periods thereunder have expired. The Beneficiary, at
the request of the Mortgagor, shall enter into a subordination, attornment and
nondisturbance agreement, in form and substance reasonably acceptable to the
Beneficiary with any existing Tenant or any Tenant entering into a Lease after
the date hereof (other than a Lease to an Affiliate of the Mortgagor) provided,
in any event, that such Tenant leases at least 15% of the rentable square feet
of any Property or 20,000 square feet of any Property. All actual, out-of-pocket
costs and expenses of the Beneficiary in connection with the negotiation,
preparation, execution and delivery of any nondisturbance agreement, including,
without limitation, reasonable attorneys' fees and disbursements, shall be paid
by the Mortgagor.
(4) Each Lease entered into from and after the date
hereof shall provide that: in the event of the enforcement by the Beneficiary of
any remedy under this Mortgage, the Tenant under such Lease shall, at the option
of the Beneficiary or of any other Person succeeding to the interest of the
Beneficiary as a result of such enforcement, subject to the Beneficiary's and
such Tenant's delivery of any nondisturbance agreement required hereunder
(except with respect to any Lease to an Affiliate of Tenant), attorn to the
Beneficiary or to such Person and shall recognize the Beneficiary or such
successor in interest as lessor under such Lease without change in the
provisions thereof; provided, however, the Beneficiary or such successor in
interest shall not be liable for or bound by (i) any payment of an installment
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of rent or additional rent which may have been made more than thirty (30) days
before the due date of such installment, (ii) any amendment or modification to
or termination of any such Lease not in conformity with Section 14(b), (iii) any
act or omission of or default by the Mortgagor under any such Lease, or (iv) any
credits, claims, setoffs or defenses which any Tenant may have against the
Mortgagor. Each such Tenant, upon reasonable request by the Beneficiary or such
successor in interest, shall execute and deliver an instrument or instruments
confirming such attornment, subject to the Beneficiary's delivery of a
nondisturbance agreement to such Tenant (except with respect to any Lease to an
Affiliate of Tenant).
115 The Beneficiary's Right to Perform. Upon the occurrence
and continuance of an Event of Default with respect to the performance of any of
the Obligations contained herein, the Beneficiary, without waiving or releasing
the Mortgagor from any Obligation or Default under this Mortgage, after delivery
of notice thereof to Mortgagor, may (but shall not be obligated to), at any time
perform the same, and the cost thereof, with interest at the Default Rate from
the date of payment by the Beneficiary to the date such amount is paid by the
Mortgagor, shall immediately be due from the Mortgagor to the Beneficiary, and
the same shall be secured by this Mortgage and shall be a Lien on the Trust
Estate prior to any right, title to, interest in or claim upon the Trust Estate
attaching subsequent to the Lien of this Mortgage. No payment or advance of
money by the Beneficiary under this Section 15 shall be deemed or construed to
cure the Mortgagor's Default or waive any right or remedy of the Beneficiary
hereunder.
116 The Mortgagor's Existence; Organization and Authority;
Litigation. The Mortgagor shall do all things necessary to preserve and keep in
full force and effect its existence, franchises, rights and privileges as a
limited partnership and its right to own property or transact business in the
state in which each of the Properties is located.
117 Protection of Security; Costs and Expenses. The Mortgagor
shall appear in and defend any action or proceeding purporting to affect the
security hereof or the rights or powers of the Beneficiary or the
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Trustees hereunder and shall pay all reasonable costs and expenses, including,
without limitation, cost of evidence of title and reasonable attorneys' fees and
disbursements, in any such action or proceeding in which the Beneficiary may
appear, and in any suit brought by the Beneficiary to foreclose this Mortgage or
to enforce or establish any other rights or remedies of the Beneficiary
hereunder. If an Event of Default occurs and is continuing under this Mortgage,
or if any action or proceeding is commenced in which it becomes necessary to
defend or uphold the Lien or priority of this Mortgage or which adversely
affects the Beneficiary's interest in the Trust Estate, or Property or any part
thereof, including, but not limited to, eminent domain, enforcement of, or
proceedings of any nature whatsoever under any Legal Requirement affecting the
Trust Estate or involving the Mortgagor's bankruptcy, insolvency, arrangement,
reorganization or other form of debtor relief, then the Beneficiary, upon
reasonable notice to the Mortgagor, may, but without obligation to do so and
without releasing the Mortgagor from any obligation hereunder, may make such
appearances, disburse such sums and take such action as the Beneficiary deems
necessary or appropriate to protect the Beneficiary's interest in the Trust
Estate, including, but not limited to, disbursement of reasonable attorneys'
fees, entry upon any Property to make repairs or take other action to protect
the security hereof, and payment, purchase, contest or compromise of any
encumbrance, charge or lien which in the judgment of the Beneficiary appears to
be prior or superior hereto. All of the costs, expenses and amounts set forth in
this Section 17 shall be payable by the Mortgagor on demand, together with
interest thereon at the rate then in effect with respect to the Note (except
during the continuance of an Event of Default in which case interest shall
accrue at the Default Rate), from the date of notice to Mortgagor of any such
payment by the Beneficiary (or the Trustees) until the date of repayment by the
Mortgagor, shall be deemed to be Indebtedness hereunder and shall be secured
hereby. Nothing contained in this Section 17 shall be construed to require the
Beneficiary to incur any expense, make any appearance, or take any other action.
118 Management of the Properties.
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(0) The Mortgagor covenants and agrees with the
Beneficiary that the Properties will be managed at all times in a manner
consistent with past practice by Mortgagor or by another manager acceptable to
the Beneficiary. Upon the appointment of any manager (other than the Mortgagor
or an affiliate), the Beneficiary shall have the right to approve (which
approval shall not be unreasonably withheld or delayed) any management agreement
with such manager and any such management agreement shall provide that it is
subject and subordinate to the terms and provisions of this Mortgage.
(1) It is acknowledged and agreed that any management
agreement may be terminated at the direction of the Beneficiary at any time
following the occurrence and continuance of an Event of Default hereunder,
provided that if the Manager is not an affiliate of Mortgagor or Buyer, such
termination shall be on not less than 30 days' notice to such Manager and, if
any such management agreement is so terminated, a substitute manager shall be
appointed by the Beneficiary.
119 Environmental Matters.
(0) The Mortgagor hereby represents and warrants that
with respect to the Properties, except as set forth in the Phase I environmental
report(s) delivered to and accepted by the Beneficiary with respect to each of
the Mortgaged Properties (as supplemented or amended, the "Environmental
Reports"), (i) there are in effect all Environmental Approvals which are
required to be obtained by Mortgagor under all Environmental Laws with respect
to each Mortgaged Property, except for such Environmental Approvals the absence
of which would not have a Material Adverse Effect, (ii) the Mortgagor is in
compliance in all material respects with the terms and conditions of all such
Environmental Approvals, and is also in compliance in all material respects with
all other Environmental Laws or any plan, order, decree, judgment, injunction,
notice or demand letter issued, entered or approved thereunder, except to the
extent failure to comply would not have a Material Adverse Effect.
Except as set forth in the Environmental Reports or otherwise
disclosed to the Beneficiary as of the Closing Date, to Mortgagor's actual
knowledge:
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(1) There are no Environmental Claims or
investigations pending or threatened by any Governmental Authority with
respect to any alleged failure by the Mortgagor to have any
Environmental Approval required in connection with the conduct of the
business of the Mortgagor on any of the Mortgaged Properties, or with
respect to any generation, treatment, storage, recycling,
transportation, Release or disposal of any Material of Environmental
Concern generated by the Mortgagor or any lessee on any of the
Mortgaged Properties;
(2) No Material of Environmental Concern
has been Released at any of the Mortgaged Properties to an extent that
it may reasonably be expected to have a Material Adverse Effect;
(3) No polychlorinated biphenyls ("PCB's")
(in amounts or concentrations which exceed those set by applicable
Environmental Laws) are present at any of the Mortgaged Properties;
(4) No friable asbestos is present at any
of the Mortgaged Properties;
(5) There are no underground storage tanks
for Material of Environmental Concern, active or abandoned, at any of
the Mortgaged Properties;
(6) No Environmental Claims have been filed
with a Governmental Authority with respect to any of the Mortgaged
Properties, and none of the Mortgaged Properties is listed or proposed
for listing on the National Priority List promulgated pursuant to
CERCLA, on CERCLIS or on any similar state list of sites requiring
investigation or clean-up; and
(7) There are no Liens arising under or
pursuant to any Environmental Laws on any of the Mortgaged Properties,
and no government actions have been taken or are in process which could
subject any of the Mortgaged Properties to such Liens.
(1) The Mortgagor covenants and agrees with the
Beneficiary that it shall comply with all Environmental Laws, except for such
instances of non-
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compliance which, singly, or in the aggregate, are not reasonably likely to have
a Material Adverse Effect. If at any time during the continuance of the Lien of
this Mortgage, Material of Environmental Concern are discovered in, around, on,
or under any Property, in such concentrations as a Governmental Authority having
jurisdiction over the Trust Estate would require remedial action to correct (an
"Environmental Event"), the Mortgagor shall deliver notice of the occurrence of
such Environmental Event to the Beneficiary promptly after Mortgagor becomes
aware of such Environmental Event. Within (30) thirty days after Mortgagor
becomes aware of the occurrence of an Environmental Event, the Mortgagor shall
deliver to the Beneficiary an Officers' Certificate (an "Environmental
Certificate") explaining the Environmental Event in reasonable detail, setting
forth to the Beneficiary the estimated cost (as determined at such time) of
remedying such Environmental Event and the proposed method of remediation and
time to complete such remedy. The Mortgagor shall complete, or cause the
appropriate third party to complete, such remedy as promptly as possible in the
ordinary course of business. If an Environmental Event occurs, the Mortgagor
shall diligently remedy or diligently cause the appropriate third party to
remedy all conditions giving rise to such Environmental Event in accordance with
all Environmental Laws.
(2) Notwithstanding anything to the contrary provided
in this Mortgage or in any other Loan Document, the indemnification provided in
the Environmental Indemnity Agreement shall be fully recourse to the Mortgagor
and shall be independent of, and shall survive, the discharge of the
Indebtedness, the release of the Lien created under this Mortgage, and/or the
conveyance of title to any Property to the Beneficiary or any purchaser or
designee in connection with a foreclosure of this Mortgage or conveyance in lieu
of foreclosure. Notwithstanding the foregoing, in no event shall the indemnity
contained in the Environmental Indemnity Agreement be assignable by the
Beneficiary to, or be deemed to be for the benefit of, any such purchaser at or
subsequent to a foreclosure sale.
120 Assignment of Rents. Beneficiary and the Mortgagor hereby
confirm that Beneficiary has granted to the Mortgagor a license to collect and
use the Rents as
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they become due and payable under the Leases in accordance with the provisions
of the Assignment of Leases and Rents, until an Event of Default has occurred
and is continuing; provided that the existence of such right shall not operate
to subordinate the Assignment of Leases and Rents to any subsequent assignment,
in whole or in part by the Mortgagor, and any such subsequent assignment shall
be subject to Beneficiary's rights under this Mortgage. The Mortgagor further
agrees to execute and deliver such assignments of leases as Beneficiary may from
time to time reasonably request in order to better assure, transfer and confirm
to Beneficiary the rights intended to be granted to Beneficiary with respect
thereto. In accordance with the provisions of the Assignment of Leases and
Rents, upon the occurrence and during the continuance of an Event of Default (1)
the Mortgagor agrees that Beneficiary may, but shall not be obligated to, assume
the management of the Properties, and collect the Rents, applying the same upon
the Obligations and (2) the Mortgagor hereby authorizes and directs all tenants,
purchasers or other persons occupying or otherwise acquiring any interest in any
part of the real property to pay the Rents due under the Leases to Beneficiary
upon Beneficiary's request. Beneficiary shall have and hereby expressly reserves
the right and privilege (but assumes no obligation) to demand, collect, sue for,
receive and recover the Rents, or any part thereof, now existing or hereafter
made, and apply the same in accordance with this Mortgage, the Assignment of
Leases and Rents, and applicable law.
121 Remedies. Upon the occurrence and continuance of an Event
of Default, the Beneficiary may take such actions against the Mortgagor and/or
against the Trust Estate or any portion thereof as the Beneficiary determines is
necessary to protect and enforce its rights hereunder, without notice or demand
except as set forth below. Any such actions taken by the Beneficiary shall be
cumulative and concurrent and may be pursued independently, singly,
successively, together or otherwise, at such time and in such order as the
Beneficiary may determine in its sole discretion, to the fullest extent
permitted by law, without impairing or otherwise affecting the other rights and
remedies of the Beneficiary permitted by law, equity or contract or as set forth
herein or in the other Loan Documents. Such actions may include the following:
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(0) Acceleration. Subject to any applicable
provisions of the Note and the other Loan Documents, the Beneficiary may declare
all or any portion of the unpaid principal balance under the Note, together with
all accrued and unpaid interest thereon, and all other unpaid Indebtedness, to
be immediately due and payable.
(1) Entry. The Beneficiary, personally, or by its
agents or attorneys, or the Jurisdictional Trustee, or by the appointment of a
receiver, at the Beneficiary's election, may enter into and upon all or any part
of the Trust Estate (including any Property and any part thereof), and may
exclude the Mortgagor, its agents and servants, including the manager therefrom;
and, the Beneficiary, having and holding the same, may use, operate, manage and
control the Trust Estate or any part thereof and conduct the business thereof,
either personally or by its superintendents, managers, agents, servants,
attorneys or receiver. Upon every such entry, the Beneficiary may, at the
expense of the Trust Estate or the Mortgagor, from time to time, either by
purchase, repair or construction, maintain and restore the Trust Estate or any
part thereof, and may insure and reinsure the same in such amount and in such
manner as may seem to them to be advisable. Similarly, from time to time, the
Beneficiary may, at the expense of the Trust Estate or the Mortgagor make all
necessary or proper repairs, renewals, replacements, alterations, additions,
betterments and improvements to and on the Trust Estate or any part thereof as
it may seem advisable. The Beneficiary shall also have the right to manage and
operate the Trust Estate or any part thereof and to carry on the business
thereof and exercise all rights and powers of the Mortgagor with respect
thereto, either in the name of the Mortgagor or otherwise, as may seem to them
to be advisable. In confirmation of GRANTING CLAUSE V, in the case of the
occurrence and continuation of an Event of Default, the Beneficiary shall be
entitled to collect and receive all Rents, or any part thereof, to be applied to
the Obligations in the order of priorities and amounts as the Beneficiary shall
elect in its sole discretion. In the event the Beneficiary elects, in its sole
discretion, to apply the Rents to the Obligations in any order of priority
elected by Beneficiary, the Beneficiary shall not have cause to claim that the
Rents
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so applied to the Obligations by the Beneficiary were misappropriated by the
Mortgagor. All actions which may be taken by the Beneficiary pursuant to this
subparagraph (b) may be taken by the Jurisdictional Trustee, upon the direction
of the Beneficiary. The Beneficiary or the Jurisdictional Trustee, as
applicable, shall be liable to account only for rents, issues and profits and
other proceeds actually received by the Beneficiary or the Jurisdictional
Trustee.
(2) Foreclosure.
(1) The Beneficiary, with or without entry,
personally or by its agents or attorneys, insofar as applicable, may
(i) sell or instruct the Jurisdictional Trustee, if applicable, to
sell, to the extent permitted by law and pursuant to the power of sale
granted herein, all and singular the Trust Estate, and all estate,
right, title and interest, claim and demand therein, and right of
redemption thereof, at one or more sales, as an entirety or in parcels,
and at such times and places as required or permitted by law and as are
customary in any county, city or parish in which a Property is located
and upon such terms as the Beneficiary may fix and specify in the
notice of sale to be given to the Mortgagor (and on such other notice
published or otherwise given as provided by law), or as may be required
by law; (ii) institute (or instruct the Jurisdictional Trustee to
institute) proceedings for the complete or partial foreclosure of this
Mortgage under the provisions of the laws of the jurisdiction or
jurisdictions in which the Trust Estate or any part thereof is located,
or under any other applicable provision of law; or (iii) take all steps
to protect and enforce the rights of the Beneficiary, whether by
action, suit or proceeding in equity or at law (for the specific
performance of any covenant, condition or agreement contained in this
Mortgage, or in aid of the execution of any power herein granted, or
for any foreclosure hereunder, or for the enforcement or any other
appropriate legal or equitable remedy), or otherwise, as the
Beneficiary, being advised by counsel and its financial advisor, shall
deem most advisable to protect and enforce any of their rights or
duties hereunder.
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(2) The Beneficiary (or the Jurisdictional
Trustee, as applicable), may conduct any number of sales from time to
time. The power of sale shall not be exhausted by any one or more such
sales as to any part of the Trust Estate remaining unsold, but shall
continue unimpaired until the entire Trust Estate shall have been sold.
(3) With respect to any Property, this
Mortgage is made upon any statutory conditions of the state in which
such Property is located, and, for any breach thereof or any breach of
the terms of this Mortgage, the Beneficiary shall have the statutory
power of sale, if any, provided for by the laws of such State.
(3) Specific Performance. The Beneficiary, in its sole and
absolute discretion, or the Jurisdictional Trustee, at the Beneficiary's
election, may institute an action, suit or proceeding at law or in equity for
the specific performance of any covenant, condition or agreement contained
herein or in the Note or any other Loan Document, or in aid of the execution of
any power granted hereunder or for the enforcement of any other appropriate
legal or equitable remedy.
(4) Enforcement of Note. The Beneficiary or the Jurisdictional
Trustee, at the Beneficiary's election, may recover judgement on the Note (or
any portion of the Indebtedness evidenced thereby), either before, during or
after any proceedings for the foreclosure (or partial foreclosure) or
enforcement of this Mortgage, to the fullest extent permitted by law.
(5) Sale of Trust Estate; Application of Proceeds.
(1) The Beneficiary (or the Jurisdictional
Trustee, if applicable), may postpone any sale of all or any part of
the Trust Estate to be made under or by virtue of this Section 21 by
public announcement at the time and place of such sale, or by
publication, if required by law, and, from time to time, thereafter,
may further postpone such sale by public announcement made at the time
of sale fixed by the preceding postponement.
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(2) Upon the completion of any sale made by
the Beneficiary or the Jurisdictional Trustee under or by virtue of
this Section 21, the Beneficiary shall execute and deliver to the
accepted purchaser or purchasers a good and sufficient deed or deeds or
other appropriate instruments, conveying, assigning and transferring
all its estate, right, title and interest in and to the property and
rights so sold. The Beneficiary or the Jurisdictional Trustee, as
applicable, is hereby appointed the true and lawful irrevocable
attorney-in-fact of the Mortgagor in its name and stead or in the name
of the Beneficiary to make all necessary conveyances, assignments,
transfers and deliveries of the property and rights so sold under this
Section 21, and, for that purpose, the Beneficiary or the
Jurisdictional Trustee, as applicable, may execute all necessary deeds
and other instruments of assignment and transfer, and may substitute
one or more persons with like power, the Mortgagor hereby ratifying and
confirming all that such attorney or attorneys or such substitute or
substitutes shall lawfully do by virtue hereof. The Mortgagor shall,
nevertheless, if so requested in writing by the Beneficiary, ratify and
confirm any such sale or sales by executing and delivering to the
Beneficiary or to such purchaser or purchasers all such instruments as
may be advisable, in the reasonable judgment of the Beneficiary, for
such purposes and as may be designated in such request. Any such sale
or sales made under or by virtue of this Section 21 shall operate to
divest all the estate, right, title, interest, claim and demand,
whether at law or in equity, of the Mortgagor in and to the property
and rights so sold, and shall be a perpetual bar against the Mortgagor,
its successors and assigns and any Person claiming through or under the
Mortgagor and their successors and assigns.
(3) The receipt of the Beneficiary or the
Jurisdictional Trustee, as applicable, for the purchase money paid as a
result of any such sale shall be a sufficient discharge therefor to any
purchaser of the property or rights, or any part thereof, so sold. No
such purchaser, after paying such purchase money and receiving such
receipt,
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shall be bound to see to the application of such purchase money upon or
for any trust or purpose of this Mortgage, or shall be answerable, in
any manner, for any loss, misapplication or non-application of any such
purchase money or any part thereof, nor shall any such purchaser be
bound to inquire as to the authorization, necessity, expediency or
regularity of such sale.
(4) Upon any sale made under or by virtue
of this Section 21, the Beneficiary may bid for and acquire the Trust
Estate or any part thereof and, in lieu of paying cash therefor, may
make settlement for the purchase price by crediting upon the Note
secured by this Mortgage the net proceeds of sale, after deducting
therefrom the expense of the sale and the costs of the action and any
other sums which the Beneficiary is authorized to deduct under this
Mortgage. The person making such sale shall accept such settlement
without requiring the production of the Note or this Mortgage, and
without such production there shall be deemed credited to the
Indebtedness and Obligations under this Mortgage the net proceeds of
such sale. The Beneficiary, upon acquiring the Trust Estate or any part
thereof shall be entitled to own, hold, lease, rent, operate, manage or
sell the same in any manner permitted by applicable laws.
(6) Voluntary Appearance; Receivers. After the happening, and
during the continuance of, any Event of Default, and immediately upon
commencement of (i) any action, suit or other legal proceeding by the
Beneficiary to obtain judgment for the principal and interest on the Note and
any other sums required to be paid pursuant to this Mortgage, or (ii) any
action, suit or other legal proceeding by the Beneficiary of any other nature in
aid of the enforcement of the Loan Documents or any of them, the Mortgagor will
(a) enter its voluntary appearance in such action, suit or proceeding, and (b)
if required by the Beneficiary, consent to the appointment of one or more
receivers of the Trust Estate and of the earnings, revenues, rents, issues,
profits and income thereof. After the happening, and during the continuance, of
any Event of Default, or upon the filing of a bill in equity to foreclose this
Mortgage or to enforce the specific performance hereof or in aid
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thereof, or upon the commencement of any other judicial proceeding to enforce
any right of the Beneficiary, the Beneficiary shall be entitled, as a matter of
right, if it shall so elect, without notice to any other party and without
regard to the adequacy of the security of the Trust Estate, forthwith, either
before or after declaring the principal and interest on the Note to be due and
payable, to the appointment of such a receiver or receivers. Any receiver or
receivers so appointed shall have such powers as a court or courts shall confer,
which may include, without limitation, any or all of the powers which the
Beneficiary is authorized to exercise by the provisions of this Section 21, and
shall have the right to incur such obligations and to issue such certificates
therefor as the court shall authorize.
(7) Retention of Possession. Notwithstanding the appointment
of any receiver, liquidator or trustee of the Mortgagor, or any of its property,
or of the Trust Estate or any part thereof, the Beneficiary or the
Jurisdictional Trustee, as applicable, to the extent permitted by law, shall be
entitled to retain possession and control of all property now or hereafter
granted to or held by the Beneficiary or the Jurisdictional Trustee, as
applicable, under this Mortgage.
(8) Suits by the Beneficiary. All rights of action under this
Mortgage may be enforced by the Beneficiary without the possession of the Note
and without the production thereof or this Mortgage at any trial or other
proceeding relative thereto. Any such suit or proceeding instituted by the
Beneficiary shall be brought in the name of the Beneficiary and any recovery of
judgment shall be subject to the rights of the Beneficiary.
(9) Remedies Cumulative. No remedy herein conferred upon or
reserved to the Beneficiary is intended to be exclusive of any other remedy, and
each such remedy shall be cumulative and in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity. No delay or omission
of the Beneficiary to exercise any right or power accruing upon any Event of
Default shall impair any such right or power, or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein. Every power
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and remedy given by this Mortgage to the Jurisdictional Trustee and/or the
Beneficiary may be exercised from time to time and as often as may be deemed
expedient by the Jurisdictional Trustee (at the Beneficiary's discretion) and
the Beneficiary and each of them. Nothing contained in this Mortgage shall
affect the obligations of the Mortgagor to pay the principal of, and interest
on, the Note in the manner and at the time and place expressed in the Note.
(10) Waiver of Rights. The Mortgagor agrees that to the
fullest extent permitted by law it will not, at any time, (a) insist upon, plead
or claim or take any benefit or advantage of any stay, extension or moratorium
law, wherever enacted, now or at any time hereafter in force, which may affect
the covenants and terms of performance of this Mortgage, (b) claim, take or
insist upon any benefit or advantage of any law, now or at any time hereafter in
force, providing for valuation or appraisal of the Trust Estate, or any part
thereof, prior to any sale or sales thereof which may be made pursuant to any
provision herein contained, or pursuant to the decree, judgment or order of any
court of competent jurisdiction, or (c) after any such sale or sales, claim or
exercise any right, under any statute heretofore or hereafter enacted by the
United States of America, any State thereof or otherwise, to redeem the property
and rights sold pursuant to such sale or sales or any part hereof. The Mortgagor
hereby expressly waives all benefits and advantages of such laws, and covenants,
to the fullest extent permitted by law, not to hinder, delay or impede the
execution of any power herein granted or delegated to the Beneficiary or
Trustees, but will suffer and permit the execution of every power as though no
such laws had been made or enacted. The Mortgagor for itself, and all who may
claim through or under it, waive, to the extent that they lawfully may do so,
any and all homestead rights, any and all rights to reinstatement, and any and
all right to have the property comprising the Trust Estate marshaled upon any
foreclosure of the lien hereof.
122 Application of Proceeds. The proceeds of any sale or
foreclosure of the Trust Estate shall be applied to the following in such
priority as the Beneficiary shall elect in its sole discretion: (a) to the
payment of the costs and expenses of the foreclosure
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proceedings (including, without limitation, reasonable counsel fees and
disbursements actually incurred and advertising costs and expenses), liabilities
and advances made or incurred under this Mortgage, and reasonable receivers' and
trustees' fees and commissions, together with interest at the Default Rate, (b)
to the payment of any other sums advanced by the Beneficiary in accordance with
the terms hereof and not repaid to it by the Mortgagor, together with interest
at the Default Rate from and after the occurrence of an Event of Default, (c) to
the payment of all sums due under the Note in such order as the Beneficiary may
elect, (d) to the payment of all sums due under any other Loan Document, in such
order as the Beneficiary shall elect, and (e) to the payment to the Mortgagor or
other party legally entitled thereto of any surplus.
123 WAIVER OF TRIAL BY JURY. THE MORTGAGOR HEREBY WAIVES AND
SHALL WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BROUGHT BY, OR COUNTERCLAIM ASSERTED BY THE BENEFICIARY WHICH ACTION,
PROCEEDING OR COUNTERCLAIM ARISES OUT OF OR IS CONNECTED WITH THIS MORTGAGE, THE
NOTE OR ANY OTHER LOAN DOCUMENTS.
124 Taxes. (d) In the event of the passage after the date
hereof of any law of the United States or of any state in which a Property is
located either (i) deducting from the value thereof, or changing in any way the
laws for the taxation of mortgages or debts secured thereby for federal, state
or local purposes, or the manner of collection of any such taxes, or (ii)
imposing a tax, either directly or indirectly, on mortgages or debts secured
thereby, the Mortgagor shall assume as an obligation hereunder the payment of
any tax so imposed, until full payment of the Note, provided such assumption
shall be permitted by law within thirty (30) days after written demand therefor
from the Beneficiary.
(0) All payments by Mortgagor of principal of, and
interest on, the Loan and all other amounts payable hereunder shall be made free
and clear of and without deduction for any present or future income, excise, or
stamp taxes and other taxes, fees, duties, withholdings or other charges of any
nature whatsoever imposed by any taxing authority with respect to such
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payments ("Taxes"), in accordance with Section 7.4 of the Credit Agreement.
(1) If the Mortgagor fails to pay any Taxes when due
to the appropriate taxing authority or fails to remit to the Beneficiary the
required receipts or other required documentary evidence, the Mortgagor shall
indemnify the Beneficiary for any incremental Taxes, interest or penalties that
may become payable by the Beneficiary as a result of any such failure.
125 Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party at
the address, telex number or facsimile number set forth below or at such other
address, telex number or facsimile number as such party may hereafter specify
for the purpose by notice to the other party. Each such notice, request or other
communication shall be effective (i) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, (iii) if given by a nationally
recognized overnight carrier, 24 hours after such communication is deposited
with such carrier with postage prepaid or (iv) if given by any other means, when
delivered at the address specified in this Section. Notices shall be addressed
as follows:
To Mortgagor:
Glimcher Properties Limited Partnership
20 South Third Street
Columbus, OH 43215
Attn: George A. Schmidt
Tel: (614) 621-9000
Fax: (614) 621-8863
With a copy to:
Squire, Sanders & Dempsey
1300 Huntington Center
41 South High Street
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Columbus, OH 43215-6150
Attn: Kim A. Rieck
Tel: (614) 365-2804
Fax: (614) 365-2499
To Beneficiary:
Prudential Securities Credit Corp., LLC
One New York Plaza, 18th Floor
New York, New York
Attn: Mr. Thomas Lynch, Ms. Helaine Kaye &
Mr. Michael Pierro
Tel: (212) 778-1818
Fax: (212) 778-3194
Prudential Securities Incorporated,
One Seaport Plaza, 30th Floor
199 Water Street
New York, New York 10292
Attention: Mr. Fred Robustelli &
Mr. Robert Troiano
Tel: (212) 214-6813
Fax: (212) 214-7938
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Attn: Martha Feltenstein, Esq.
Tel: (212) 735-3000
Fax: (212) 735-2000
126 No Oral Modification. This Mortgage may not be altered,
amended, modified, changed or terminated orally, but only by a written agreement
signed by the party against whom enforcement is sought. This Mortgage is
delivered pursuant to, and upon and subject to, the terms of the Credit
Agreement. If there are any inconsistencies between this Mortgage and the Credit
Agreement, the terms of the Credit Agreement shall prevail.
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127 Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included hereunder.
128 Successors and Assigns. All covenants of the Mortgagor
contained in this Mortgage are imposed solely and exclusively for the benefit of
the Beneficiary and its successors and assigns, and no other Person shall have
standing to require compliance with such covenants or be deemed, under any
circumstances, to be the beneficiary of such covenants, any or all of which may
be freely waived in whole or in part by the Beneficiary at any time if in its
sole discretion it deems it advisable to do so. All such covenants of the
Mortgagor shall run with the land and bind the Mortgagor, the successors and
assigns of the Mortgagor (and each of them) and all subsequent owners,
encumbrancers and Tenants of the Trust Estate, and shall inure to the benefit of
the Beneficiary, its successors and assigns. The word "the Beneficiary" shall be
construed to mean the Beneficiary named herein.
129 Governing Law. This Mortgage and the obligations arising
hereunder shall be governed by and construed in accordance with, the laws of the
State where the Properties are located. Whenever possible, each provision of
this Mortgage shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Mortgage shall be prohibited
by, or invalid under, applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity without invalidating the remaining
provisions of this Mortgage. Nothing contained in this Mortgage or in any Loan
Document shall require either the Mortgagor to pay or the Beneficiary to accept
any sum in any amount which would, under applicable law, subject the Beneficiary
or any Trustee to penalty or adversely affect the enforceability of this
Mortgage. In the event that the payment of any sum due hereunder or under any
Loan Document would have such result under applicable law, then, ipso facto, the
obligation of the Mortgagor to make
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such payments shall be reduced to the highest sum then permitted under
applicable law and appropriate adjustment shall be made by the Mortgagor and the
Beneficiary.
1d Recording Fees, Taxes, Etc. The Mortgagor hereby agrees to
take all such further reasonable actions, and to pay all taxes, recording fees,
charges, costs and other reasonable expenses, including, without limitation,
reasonable attorneys' and reasonable professional fees and disbursements which
are currently or in the future shall be imposed, and which may be required or
necessary to establish, preserve, protect or enforce the Lien of this Mortgage.
130 No Waiver. No failure by the Beneficiary to insist upon
the strict performance of any term hereof or to exercise any right, power or
remedy consequent upon a breach thereof shall constitute a waiver of any such
term or right, power or remedy or of any such breach. No waiver of any breach
shall affect or alter this Mortgage, which shall continue in full force and
effect, or shall affect or alter the rights of the Beneficiary with respect to
any other then existing or subsequent breach.
131 Further Assurances.
(0) The Mortgagor, at its own expense, will execute,
acknowledge and deliver all such reasonable further documents or instruments
including, without limitation, security agreements on any personalty included or
to be included in the Trust Estate and a separate assignment of each Lease and
take all such actions as the Beneficiary from time to time may reasonably
request to better assure, transfer and confirm unto the Beneficiary the rights
now or hereafter intended to be granted to the Beneficiary under this Mortgage
or the other Loan Documents.
(1) The Mortgagor covenants to give notice to the
Beneficiary no less than thirty (30) days prior to a change of Mortgagor's
principal place of business.
132 Additional Security. Without notice to or consent of the
Mortgagor and without impairment of the Lien and rights created by this
Mortgage, the Beneficiary may accept (but the Mortgagor shall not be obligated
to
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furnish) from the Mortgagor additional security for the Note. Neither the giving
of this Mortgage nor the acceptance of any such additional security shall
prevent the Beneficiary from resorting, first, to such additional security, and,
second, to the security created by this Mortgage without affecting the
Beneficiary's Lien and rights under this Mortgage.
133 Indemnification by the Mortgagor. The Mortgagor will
protect, indemnify and save harmless the Beneficiary and every Trustee and all
officers, directors, stockholders, partners, employees, successors and assigns
of any of the foregoing (collectively, the "Indemnified Parties") from and
against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including all reasonable attorneys' fees and
expenses actually incurred) imposed upon or incurred by or asserted against the
Indemnified Parties or the Trust Estate or any part of its interest therein, by
reason of the occurrence or existence of any of the following (to the extent the
insurance Proceeds payable on account of the following shall be inadequate)
prior to (i) the payment in full of the Note, (ii) the acceptance by the
Beneficiary of a deed-in-lieu of foreclosure with respect to the applicable
Property, or (iii) the Beneficiary's taking possession or control of the
applicable Property, except to the extent caused by the actual willful
misconduct or gross negligence of the Beneficiary or any other Indemnified Party
(other than such willful misconduct or gross negligence imputed to the
Beneficiary solely because of its interest in the Trust Estate): (a) ownership
of the Mortgagor's interest in the Trust Estate, or any interest therein, or
receipt of any Rents or other sum therefrom, (b) any accident, injury to or
death of any persons or loss of or damage to property occurring on or about the
Trust Estate or any appurtenances thereto, (c) any design, construction,
operation, repair, maintenance, use, non-use or condition of the Trust Estate or
appurtenances thereto, including claims or penalties arising from violation of
any Legal Requirement or Insurance Requirement, as well as any claim based on
any patent or latent defect, whether or not discoverable by the Beneficiary, any
claim the insurance as to which is inadequate, and any Environmental Claim, (d)
any failure on the part of the Mortgagor to perform or comply with any of the
material
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terms of any Lease within the applicable notice or grace periods, (e) any
performance of any labor or services or the furnishing of any materials or other
property in respect of the Trust Estate or any part thereof, (f) any negligence
or tortious act or omission on the part of the Mortgagor or any of its agents,
contractors, servants, employees, sublessees, licenses or invitees, (g) any
contest referred to in Section 7 hereof, or (h) any obligation or undertaking
relating to the performance or discharge of any of the terms, covenants and
conditions of the landlord contained in the Leases. Any amounts payable to the
Indemnified Parties under this Section 34 which are not paid within ten (10)
Domestic Business Days after written demand therefor by the Beneficiary; setting
forth in reasonable detail the amount of such demand and the basis therefor,
shall bear interest from the date of demand at the Default Rate, and shall be
part of the Indebtedness and secured by this Mortgage. In case any action, suit
or proceeding is brought against the Indemnified Parties by reason of any such
occurrence, the Mortgagor shall at the Mortgagor's expense resist and defend
such action, suit or proceeding or will cause the same to be resisted and
defended by counsel for the insurer of the liability or by counsel designated by
the Mortgagor (unless reasonably disapproved by the Beneficiary promptly after
the Beneficiary has been notified of such counsel); provided, however, that
nothing herein shall compromise the right of the Beneficiary to appoint its own
counsel for its defense with respect to any action which in its reasonable
opinion presents a conflict or potential conflict between the Beneficiary and
the Mortgagor that would make such separate representation advisable. So long as
the Mortgagor is resisting and defending such action, suit or proceeding as
provided above in a prudent and commercially reasonable manner, the Beneficiary
shall not be entitled to settle such action, suit or proceeding and claim the
benefit of this Section 34 with respect to such action, suit or proceeding and
the Beneficiary agrees that it will not settle any such action, suit or
proceeding without the consent of the Mortgagor; provided, however, that if the
Mortgagor is not diligently defending such action, suit or proceeding in a
prudent and commercially reasonable manner as provided above, the Beneficiary
may settle such action, suit or proceeding subject only to the consent of the
Mortgagor, which consent shall not be unreasonably withheld or
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delayed, and claim the benefit of this Section 34 with respect to settlement of
such action, suit or proceeding. The Beneficiary will give the Mortgagor prompt
notice after it obtains actual knowledge of any potential claim by it for
indemnification hereunder; however, the failure of the Beneficiary to give such
notice to Mortgagor shall not affect Mortgagor's obligations hereunder.
134 Release. (e) If the Mortgagor shall pay or cause to be
paid the principal of and interest on the Note in full at maturity or earlier as
permitted in accordance with the terms thereof or the terms of the Credit
Agreement and all other Indebtedness payable to the Beneficiary hereunder by the
Mortgagor or secured hereby or by the other Loan Documents and all of the
Obligations shall have been performed, then this Mortgage and all Loan Documents
pertaining hereto shall be discharged and satisfied or assigned to the Mortgagor
or to any other Person at the Mortgagor's direction and without recourse to the
Beneficiary or any Trustee, at the Mortgagor's option, without warranty (except
as to prior assignments and as otherwise provided herein with respect to
indemnities) at the expense of the Mortgagor upon its written request.
Concurrently with such release and satisfaction or assignment of this Mortgage
and all the other Loan Documents, the Beneficiary shall return to the Mortgagor
or the Mortgagor all insurance policies relating solely to the Trust Estate
which may be held by the Beneficiary, and, on the written request and at the
expense of the Mortgagor, Beneficiary shall execute and deliver such proper
instruments of release (including appropriate UCC-3 termination statements) as
may reasonably be requested by the Mortgagor to evidence such release and
satisfaction or assignment, and any such instrument, when duly executed by the
Beneficiary and duly recorded in the places where this Mortgage and each other
Loan Document is recorded, shall conclusively evidence the release and
satisfaction or assignment of this Mortgage and the other Loan Documents.
(0) Beneficiary shall release, or cause the Trustee
to release, the Lien of the Mortgage from the applicable Property, upon payment
by Mortgagor of the amount required under Section 2.9(b) of the Credit Agreement
and compliance with all other applicable provisions of the Credit Agreement.
Concurrently with such release of this Mortgage and all other Loan
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Documents relating solely to the Trust Estate, the Beneficiary shall return to
the Mortgagor all insurance policies relating solely to the Trust Estate which
may be held by the Beneficiary, and, on the written request and at the expense
of the Mortgagor, Beneficiary shall execute and deliver such proper instruments
of release (including appropriate UCC-3 termination statements) as may
reasonably be requested by the Mortgagor to evidence such release, and any such
instrument, when duly executed by the Beneficiary and duly recorded in the
places where this Mortgage and each other Loan Document is recorded, shall
conclusively evidence the release of this Mortgage and the other Loan Documents
relating solely to the Trust Estate.
135 Security Agreement.
(0) Security Intended. Notwithstanding any provision
of this Mortgage to the contrary, the parties intend that this document
constitutes security for the payment and performance of the Obligations and
shall be a "mortgage" or "deed of trust" under applicable law as set forth in
Section 46, 49 or 51. If Section 46, 49 or 51 provides that this document is
intended to be a deed of trust and, despite that intention, a court of competent
jurisdiction determines that this document does not qualify as a "trust deed" or
"deed of trust" under applicable law, then ab initio, this instrument shall be
deemed a realty mortgage under applicable law and shall be enforceable as a
realty mortgage, and, in such event, or in the event that Section 46, 49 or 51
provides that this document is intended to be a mortgage, the Mortgagor shall be
deemed a "mortgagor," Beneficiary shall be deemed a "mortgagee," and Trustee
shall have no capacity (but shall be disregarded and all references to "Trustee"
shall be deemed to refer to the "mortgagee" to the extent not inconsistent with
interpreting this instrument as though it were a realty mortgage). As a realty
mortgage, the Mortgagor, as mortgagor, shall be deemed to have conveyed the
Properties ab initio to Beneficiary as mortgagee, such conveyance as a security
to be void upon condition that the Mortgagor pay and perform all its
Obligations. The remedies for any violation of the covenants, terms and
conditions of the agreements herein contained shall be as prescribed herein or
by general law, or, as to that part of the security in which a security interest
may be perfected under the UCC, by the
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specific statutory consequences now or hereafter enacted and specified in the
UCC, all at Beneficiary's sole election.
(1) Fixture Filing; Personal Property. This Mortgage
constitutes a financing statement and, to the extent required under UCC Section
9-402(f) because portions of the Properties may constitute fixtures, this
Mortgage is to be filed in the office where a mortgage for the Land Parcels
would be recorded. Beneficiary also shall be entitled to proceed against all or
portions of the Trust Estate in accordance with the rights and remedies
available under UCC Section 9-501(d). The Mortgagor is, for the purposes of this
Mortgage, deemed to be the Debtor, and Beneficiary is deemed to be the Secured
Party, as those terms are defined and used in the UCC. The Mortgagor agrees that
the Indebtedness and Obligations secured by this Mortgage are further secured by
security interests in all of the Mortgagor's right, title and interest in and to
fixtures, Equipment, and other property covered by the UCC, if any, including
all personal property comprising part of the Trust Estate, which are used upon,
in, or about the Trust Estate (or any part) or which are used by the Mortgagor
or any other person in connection with the Trust Estate. The Mortgagor grants to
Beneficiary a valid and effective security interest in all of the Mortgagor's
right, title and interest in and to such personal property (but only to the
extent permitted in the case of leased personal property), together with all
replacements, additions, and proceeds. Except for Permitted Encumbrances, the
Mortgagor agrees that, without the written consent of Beneficiary, no other
security interest will be created under the provisions of the UCC and no lease
will be entered into with respect to any goods, fixtures, equipment, appliances,
or articles of personal property owned or leased by Mortgagor now attached to or
used or to be attached to or used in connection with the Trust Estate, except as
otherwise permitted hereunder. The Mortgagor agrees that all property of every
nature and description covered by the lien and charge of this Mortgage together
with all such property and interests covered by this security interest are
encumbered as a unit, and upon and during the continuance of an Event of Default
by Mortgagor, all of the Trust Estate, at Beneficiary's option, may be
foreclosed upon or sold in the same or different proceedings or at the same or
different time,
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subject to the provisions of applicable law. The filing of any financing
statement relating to any such property or rights or interests shall not be
construed to diminish or alter any of Beneficiary's rights of priorities under
this Mortgage.
(2) As of the Closing Date, the principal office,
chief executive office and principal place of business of the Mortgagor is 20
South Third Street, Columbus, Ohio, 43215.
136 As to Property in Alabama. Notwithstanding anything to
the contrary elsewhere in this Mortgage as to any Property, with respect to any
of the Trust Estate now or hereafter located in the State of Alabama
(collectively, the "Alabama Property") the following provisions shall be
applicable:
This instrument is not a "deed of trust" under Alabama law.
This document constitutes a mortgage on real estate and a security agreement
covering personal property under the laws of the State of Alabama, and the
Grantor shall be deemed to be the mortgagor, and Beneficiary shall be deemed to
be the mortgagee. Trustee shall have no capacity.
Section 21(c) of this Mortgage is hereby amended by inserting
the following subsection 21(c)(iv) immediately following existing subsection
21(c)(iii):
this Mortgage shall be subject to foreclosure and may
be foreclosed as now provided by law in the case of past due mortgages, and
(anything in this Section 21 to the contrary notwithstanding) the Beneficiary
shall be authorized, at its option, whether or not in possession of the Trust
Estate, after giving notice by publication once a week for three (3) consecutive
weeks of the time, place and terms of each such sale by publication in a
newspaper published in the county or counties wherein the Property or any part
thereof is located, to sell the Trust Estate (or such part or parts thereof as
the Beneficiary may from time to time elect to sell) in front of such county's
courthouse door, at public outcry, all as otherwise provided in this Section 21.
The Beneficiary may proceed to sell or dispose of both the real and personal
property comprising the Trust Estate in
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accordance with the rights and remedies granted under this Mortgage with respect
to the real property covered hereby.
All references in this Mortgage to numbered sections of the
"Uniform Commercial Code" or the "UCC" shall be deemed to refer to the
corresponding section of Title 7 of the Code of Alabama, 1975. References to UCC
"Section 9-402(f)" and UCC "Section 9-501(d)" shall be deemed to be references
to UCC Section 9-402(5) and UCC Section 9-501(4), respectively.
Section 35(a) hereof is amended by deleting therefrom the
first word "If" and inserting in lieu thereof the words "Provided however that
this Mortgage is on the condition that if".
All references to "Jurisdictional Trustee", "Individual
Trustee", "Successor Trustee", "Co-Trustee" and "Separate Trustee" in this
Mortgage shall be deemed to be references to Beneficiary. It is the intention of
the parties that this Mortgage shall be a mortgage and not a deed of trust with
respect to the Alabama Property and that the Beneficiary shall have all of the
rights and remedies respectively granted herein to the above-identified trustee.
137 As to Properties in Florida. Notwithstanding anything to
the contrary elsewhere in this Mortgage, as to any property of the Trust Estate
as is located in the State of Florida (the "Florida Property").
(0) The reference, in Section VI of the Granting
Clauses, to Sections 9-313 and 9-402 of the Uniform Commercial Code shall be
deemed to refer to Florida Statutes Section 679.313 and Section 679.402, as
amended, respectively. This Mortgage is intended to be a Financing Statement
within the purview of Florida Statute Section 679.402 with respect to the
personal property described herein. The addresses of the Mortgagor (Debtor) and
the Beneficiary (Secured Party) are herein set forth. This Mortgage is to be
filed of record with the Clerk of the circuit Court of the County or Counties
where the mortgaged property is located. The Nominees are the record owners of
the mortgaged property.
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(1) This Mortgage shall constitute a Security
Agreement within the meaning of the Florida Uniform Commercial Code with respect
to (i) any and all sums at any time on deposit for the benefit of the
Beneficiary or held by the Beneficiary (whether deposited by or on behalf of the
Mortgagor or anyone else) pursuant to any of the provisions of the Mortgage and
(ii) with respect to any personal property included in the Granting Clauses of
this Mortgage, and all replacements of such personal property, and the proceeds
thereof. Upon default, without limitation of any other remedies, the Beneficiary
shall have the remedies of a Secured Party under the Florida Uniform Commercial
Code. The Debtor/Mortgagor hereby authorizes the Secured Party/Beneficiary to
execute, deliver, file or refile as Secured Party without joinder of the
Borrower, any Financing Statement, Continuation Statement or other instruments
the Beneficiary may reasonably require from time to time to perfect or renew
such security interest under the Uniform Commercial Code. (1)
(2) This Mortgage shall be deemed to be and shall be
construed as a Mortgage as well as a Security Agreement and Collateral
Assignment of leases, Rents and Revenues. Each of the remedies set forth herein,
including without limitation the remedies involving a power of sale or power of
attorney with respect to the Florida Property and the right of Beneficiary to
exercise self-help in connection with the enforcement of the terms of this
Mortgage shall be exercisable if and to the extent permitted by the laws of the
State of Florida in force at the time of the exercise of such remedies without
regard to the enforceability of such remedies at the time of the execution and
delivery of this Mortgage.
(3) Sections 9(b), 9(d) and 9(e) are deleted in their
entirety as to the Florida Property, and all reference to "Jurisdictional
Trustee", "Individual Trustee", "Successor Trustee", "Co-Trustee" and "Separate
Trustee" in this Mortgage are deleted in their entirety as to the Florida
Property. It is the intention of the parties that this mortgage shall be a
mortgage and not a deed of trust with respect to the Florida Property and that
the Beneficiary shall have all of the rights and remedies respectively granted
herein to the above-identified trustee.
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(4) In any suit to foreclose the lien of this
Mortgage there shall be allowed and included as additional indebtedness hereby
secured in the final judgment decree all expenditures and expenses which may be
paid or incurred by or on behalf of the Beneficiary for attorneys' and
paralegals' fees, appraisers' fees, outlays for documentary and expert evidence,
stenographer charges, publication costs, costs (which may be estimated as to
items to be expended after entry of the decree) of procuring all title searches
and examinations and policies, and similar date and assurance with respect to
title as Beneficiary may deem reasonably necessary either to prosecute such suit
or to evidence to bidders at sales which may be had pursuant to such decree the
true condition of the title to or the value of the mortgaged property.
(5) The definition of Environmental Laws in this
Mortgage shall, with respect to the Florida Property, be deemed to include the
Florida Pollutant Spill prevention and Control Act, Chapter 376. Florida
Statutes, and the Florida Air and Water Pollution Control Act, Chapter 403, part
I of the Florida Statutes, together with any and all other environmental laws in
effect from time to time in the State of Florida, as the same may be hereafter
amended or modified.
(6) The indebtedness secured by this Mortgage matures
on June 30, 2001.
138 As to Properties in Illinois. If at any time any Property
with respect to the Trust Estate now or hereafter located in the State of
Illinois becomes subject to the Illinois Responsible Property Transfer Act, 765
ILCS 720/1 et. seq., and the disclosure requirements thereunder, the Mortgagor
shall promptly comply with such requirements.
139 As to Properties in Indiana. With respect to such of the
Trust Estate as is located in the State of Indiana:
(0) Individual Property: The references in Granting
Clause VI hereof to Sections 9-313 and 9-402 of the Uniform Commercial Code
shall be deemed to be references to I.C. 26-1-9-313 and I.C. 26-1-9-402.
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(1) This instrument shall constitute a security
agreement and continuously perfected fixture filing and financing statement. The
Mortgagor hereby authorized Beneficiary, after ten (10) days notice to the
Mortgagor and the Mortgagor's failure to execute such financing statements, to
execute, deliver, file or refile as Secured Party, without joinder of the
Mortgagor, as Debtor, any financing statement, continuation statement, or other
instruments Beneficiary may reasonably require from time to time to perfect or
renew such security interest under the Uniform Commercial Code. The Mortgagor
is, for the purposes of this agreement, deemed to be the Debtor, and the
Beneficiary is deemed to be the Secured Party, as those terms are used in the
Uniform Commercial Code. The addresses of secured party and debtor from which
information concerning the security agreement may be obtained are set forth in
the initial paragraph of this Mortgage.
(2) Each of the remedies set forth herein, including
without limitation the remedies involving a power of sale on the part of
Beneficiary and the right of Beneficiary to exercise self-help in connection
with the enforcement of the terms of this Mortgage, shall be exercisable if, and
to the extent, permitted by the laws of the State of Indiana in force at the
time of the exercise of such remedies without regard to the enforceability of
such remedies at the time of the execution and delivery of this Mortgage.
(3) To the Mortgagor's knowledge, without inquiry and
investigation, no Property located in Indiana is within the definitions of the
term "property" as contained in Section 6 (IC 13-7-22.5-6) of the Indiana
Responsible Property Transfer law ("IRPTL") (IC 13-7-22.5) and the transaction
evidenced by this Mortgage is not subject to the provisions of said act. The
Mortgagor shall not allow any Property located within Indiana to become subject
to or constitute "property" subject to IRPTL. The Mortgagor represents and
warrants that no person is required as a result of the execution and delivery of
this Mortgage to furnish disclosure described and provided for in IRPTL. The
indebtedness secured by this Mortgage matures on June 30, 2001.
140 As to Property in Kansas. Notwithstanding anything to the
contrary elsewhere in this Mortgage, as
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to any property of the Trust Estate located in the State of Kansas (the "Kansas
Property"):
(0) The Mortgagor shall only be obligated to pay
attorneys' and other counsel fees to the extent not prohibited by applicable
law.
(1) The reference, in Section VI of the Granting
Clauses, to Section 9-313 and 9-402 of the Uniform Commercial Code shall be
deemed to be a reference to Kansas Statutes Annotated 84-9-313 and 84-9-402, as
amended respectively.
(2) This Mortgage, in addition to being a first lien
on real estate, is a security agreement pursuant to the Kansas Uniform
Commercial Code between the Mortgagor, as debtor, and Beneficiary, as secured
party, upon (a) any and all items of personal property specified above as part
of the Kansas Property and which, under applicable law, may be subject to a
security interest pursuant to the Kansas Uniform Commercial Code and which are
not herein effectively made part of the real property, and (b) any and all items
of property specified above as part of the Kansas Property and which, under
applicable law, constitute fixtures and may be subject to a security interest
under Kansas Statutes Annotated 84-9-313; and the Mortgagor hereby grants
Beneficiary a prior security interest in, and a first lien on, said property,
and in all additional thereto, substitutions therefor and proceeds thereof, for
the purpose of securing all indebtedness and other obligations of the Mortgagor
now or hereafter secured by this Mortgage, which shall be a paramount and
superior lien on all such property at all times. The Mortgagor agrees to execute
and deliver financing and continuation statements covering said property from
time to time and in such form as Beneficiary may require to perfect and continue
the perfection of Beneficiary's lien or security interests with respect to said
property. The Mortgagor shall pay all costs of filing such statements and
renewals and releases thereof and shall pay all reasonable costs and expenses of
any record searches for financing statements Beneficiary may reasonably require.
upon the occurrence of any default of the Mortgagor hereunder, Beneficiary shall
have the rights and remedies available at law or in equity, and, at
Beneficiary's option, Beneficiary may also invoke the remedies provided in this
Mortgage as to such property.
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(3) This Mortgage constitutes a financing statement
filed as a fixture filing in the Official Records of the Register of Deeds of
each county in which any portion of the Kansas Property is located with respect
to any and all fixtures included within the terms "Trust Estate" or "Kansas
Property" as used herein and with respect to any goods or other personal
property that may not now be but with hereafter become such fixtures. For the
purposes of this filing, the following information is set forth:
I. Name and Addresses of Debtor:
A. Glimcher Properties Limited Partnership
20 South Third Street
Columbus, OH 43215
II. Name and Address of Secured Party:
Prudential Securities Credit Corp., LLC
One New York Plaza
18th Floor
New York, NY 10292
III. This document covers goods which are or are to become
fixtures.
IV. Name of Record Owner of Real Estate:
Glimcher Properties Limited Partnership
(4) In addition to all other sums which the Mortgagor
is required to pay hereunder, the Mortgagor shall pay any mortgage registration
tax which may be due and payable pursuant to Kansas Statutes Annotated 79-3102
at the time of recording this Mortgage in the offices of such Kansas Registers
of Deeds as Beneficiary may designate.
(5) Each of the remedies set forth herein, including,
without limitation, the remedies involving a power of sale of any portions of
the Kansas Property, and the right to exercise self-help in enforcing certain
terms of this Mortgage, shall be exercisable if, and to the extent, not
prohibited by the laws of the State of
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Kansas in force at the time of the exercise of such remedies without regard to
the enforceability of such remedies at the time of the execution and delivery of
this Mortgage. Without limiting the generality of the foregoing, in addition to
all other remedies provided for herein, those persons granted a mortgage on, a
security interest in, or another lien of any type on any portion of the Kansas
Property, and their respective successors and assigns, shall have the right to
enforce and foreclose the same by any method, whether judicial or otherwise,
then not prohibited by Kansas law.
141 As to Properties in Kentucky. Notwithstanding anything to
the contrary elsewhere in this Mortgage, as to any property of the Trust Estate
located in the State of Kentucky (the "Kentucky Property"):
(a) The Maturity Date of the Note, as stated in the
Credit Agreement, shall be June 30, 2001, unless extended pursuant to the
provisions herein.
(b) The last recital shall be deleted in its entirety
and replaced as follows:
WHEREAS, the Beneficiary has made a line of
credit loan (the "Loan") available to [Borrower/Mortgagor],
pursuant to the Credit Agreement, dated of even date herewith,
among the [Borrower/Mortgagor] and the Beneficiary (as amended,
modified, restated or supplemented from time to time, the
"Credit Agreement"). The Loan is evidenced by a promissory note
or notes, dated of even date herewith or to be dated subsequent
to the date hereof pursuant to the terms of the Credit
Agreement (such note or notes together with all amendments,
modifications or replacements thereof which may hereafter be
executed, collectively, the "Note"), made by the
[Mortgagor/Borrower], as maker, in favor of Beneficiary, as
payee, in the aggregate principal amount of One Hundred
Twenty-Seven Million Five Hundred Thousand
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Dollars ($127,500,000) (the "Loan Amount");
(c) Lender may recover any cost relating to the
enforcement of the Loan Documents, including attorneys' fees and court costs.
(d) The reference, in Section VI of the Granting
Clauses, to Section 9-313 and 9-402 of the Uniform Commercial Code shall be
deemed to be a reference to KRS 355-9.501, 355-9.402 and 355-9.313, as amended
respectively.
142 As to Property in Missouri.
Notwithstanding anything to the contrary elsewhere in this
Mortgage, as to any portion of the Trust Estate located in the State of Missouri
(the "Missouri Property"):
(1) Deed of Trust. This instrument shall constitute and be a
deed of trust (notwithstanding any references to this instrument as the
"Mortgage.") In confirmation thereof and of the grant of the Missouri Property
set forth above, and to secure all the Obligations, the Grantor does hereby
further grant, bargain and sell, convey and confirm unto the Trustee the
Missouri Property, together with a power of sale, To Have and To Hold the same
unto the Trustee and the successors of Trustee in this trust forever, In Trust,
for the benefit of Beneficiary and the successors and assigns of Beneficiary,
all upon and in accordance with the terms of this Mortgage. Notwithstanding
anything contained in this Mortgage, the Trustee (including any successors of
the Trustee) shall have the power of sale under this Mortgage in lieu of
Beneficiary, and all references in the Mortgage to the Beneficiary having a
power of sale shall refer instead to the power of sale in Trustee. The Trustee
named on Schedule 5 of this Mortgage is an individual citizen of the State of
Missouri and is qualified to act as a deed of trust Trustee pursuant to Section
443.350, Revised Statutes of Missouri. The Trustee shall constitute the
Jurisdictional Trustee and shall have all of the rights, powers and duties
thereof as set forth above in this Mortgage, except as otherwise provided in
this section. The parties further confirm the provisions of
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this Mortgage granting a security interest by Grantor, as debtor, in favor of
Beneficiary, as secured party, and confirm that the address set forth on page 1
of this Mortgage for Beneficiary contains an address of the Beneficiary from
which information concerning the security interest may be obtained. The
construction of this instrument as a deed of trust and the grant to the Trustee
as set forth above shall not limit the rights and authorities separately granted
to Beneficiary under this Mortgage except as expressly provided in this Exhibit
D and shall not limit the assignment of rents and leases to Beneficiary
contained in Granting Clause F or as separately provided in the Assignment of
Leases and Rents.
(2) Additional Provisions Regarding Power of Sale. With
respect to the non-judicial sale remedy referenced in Section 21(c), the
Beneficiary shall have the right to request the Trustee to foreclose upon and
sell all or any part of the Missouri Property pursuant to a non-judicial sale
(i.e., a trustee's sale), and the Trustee shall thereafter proceed to sell the
Missouri Property, as an entirety or in parcels or any part thereof, at public
vendue, to the highest bidder for Cash at the door of the Courthouse then
customarily employed for that purpose in the county or city in which the
Missouri Property is located, first giving notice of the time, terms and place
of sale and a description of the Missouri Property to be sold by advertisement
published as is provided by the laws of the State of Missouri then in effect and
giving such other notice as is then required by the laws of the State of
Missouri and any other applicable law. To the extent permitted by applicable
law, the Trustee may postpone the sale of all or any portion of the Missouri
Property by public announcement at such time and place of sale (or by any other
means permitted by law) and from time to time thereafter may postpone such sale
by public announcement at the time and place fixed by the preceding public
announcement (or by any other means permitted by law). The Beneficiary shall
have the right to bid at and acquire all or any part of the Missouri Property as
provided in Section 21(f)(iv) above. Upon any trustee's sale, the Trustee shall
execute and deliver a deed or other instruments of conveyance of the Missouri
Property sold to the purchasers thereof, and any statement or recital of
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fact in such deed or instrument shall be prima facie evidence of the truth of
such statement or recital, and the Trustee shall receive the proceeds of such
sale, out of which the Trustee shall pay the costs and expenses in connection
with such sale, including, without limitation, advertising, title and abstract
costs and other expenses actually incurred, reasonable Trustee's fees and
reasonable compensation to any attorneys employed by the Trustee or the
Beneficiary for their services and expenses, and the balance shall be paid to
the Beneficiary for application in accordance with Section 21 above, to the
maximum extent permitted by applicable law. The Trustee may sell and convey the
Missouri Property under the power aforesaid, although the Trustee has been, may
now or may hereafter be the attorney, agent or employee of the Beneficiary in
respect to any of the Obligations or in respect to any matter or business
whatsoever. To the extent consistent herewith and permitted by applicable law,
the provisions set forth in Section 21 relating to a non-judicial sale shall be
supplemental hereto, but Beneficiary shall have no power of sale and shall not
conduct or have the authority to conduct any such sale.
(3) Creation of Tenancy Relationship. The Trustee hereby lets
the Missouri Property to the Grantor until this Mortgage be released and
satisfied or, if earlier, until an Event of Default shall occur and be
continuing, upon the following terms, to-wit: Grantor, and its successors and
assigns in interest, shall pay rent therefor during said term at One Cent (1
cent) per month payable upon demand, and shall surrender immediate peaceable
possession of the Missouri Property in any and every part thereof, to Trustee
immediately upon such Event of Default and upon request therefor, and Trustee or
Beneficiary may thereupon rent and operate the same for the account of
Beneficiary, until foreclosure is had and during any proceeding to redeem and
then deliver possession to the purchaser at any foreclosure sale. If Grantor
does not forthwith surrender possession of the Missouri Property to Trustee or
Beneficiary upon request or to the purchaser or purchasers at any such
foreclosure sale, Grantor shall be deemed a tenant holding over and may be
summarily dispossessed according to provisions of the
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law of the State of Missouri applicable to tenants holding over.
(4) Successor Trustee. This subsection provides a method
additional to that set forth in Section 9 for removal of Trustee and appointment
of a successor trustee. The Trustee, or any successor trustee, may be removed at
any time, with or without cause, at the option of Beneficiary, by written
declaration of such removal signed by the Beneficiary, without any notice to,
demand upon or consent of the Trustee, or any successor trustee, the Grantor or
any other Person. If at any time the Trustee or any successor trustee shall be
so removed, or should become absent from Missouri, die or refuse, fail or be
unable to act as Trustee or successor trustee, the Beneficiary may appoint any
Person (provided such Person shall be qualified to act as a deed of trust
trustee in Missouri) as successor trustee hereunder, without any formality other
than a written declaration of such appointment executed by the Beneficiary; and
immediately upon such appointment, the successor trustee so appointed shall
automatically become vested with all the estate and title in the Missouri
Property, and with all of the rights, powers, privileges, authority, options and
discretions, and charged with all of the duties, vested in or imposed upon the
Trustee by this Mortgage, and any conveyance executed by such successor trustee,
including the recitals therein contained, shall have the same effect and
validity as if executed by the original Trustee. The declaration of removal and
declaration of appointment must be recorded in the same recording office as this
Mortgage is recorded. Upon an appointment of a successor trustee to the Trustee
or a successor trustee, all references in this Mortgage to Trustee shall refer
to the successor trustee so appointed.
(5) Future Advances. This Mortgage secures future advances and
future obligations within the meaning of Section 443.055 of the Revised Statutes
of Missouri, as amended through the date hereof, and this Mortgage shall be
governed by said Section 443.055. The "Face Amount" (as defined in Section
443.055) is $127,500,000. The total amount of indebtedness that may be secured
by this Mortgage may decrease or increase from time to time, but the total
principal
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amount of the obligations secured at any given time by this Mortgage shall not
exceed the Face Amount as stated above, except as to advances made pursuant to
subsection 3 of Section 443.055 (dealing with future advances and/or future
obligations made or incurred for the reasonable protection of the Beneficiary's
lien and security interest under this Mortgage). Future advances or future
obligations described in said subsection 3 of Section 443.055 are secured by
this Mortgage, even if such advances or obligations cause the total indebtedness
to exceed the Face Amount. Pursuant to Section 443.055, the priority of any lien
hereunder securing future advances and future obligations shall date from the
time this Mortgage is recorded in the applicable real property records. Grantor,
for itself and its successors and assigns as owner of the Missouri Property, to
the maximum extent permissible under Missouri law, hereby waives any rights it
may otherwise have under Section 443.055 to, and hereby agrees not to, terminate
or give notice to terminate the operation of this Mortgage as security for
future advances or future obligations made or incurred after the date of such
termination or notice. Any such termination or notice of termination shall, at
the election of Beneficiary, constitute a default and subject to the notice and
cure provisions of this Mortgage, constitute an Event of Default.
(6) Closing Date. The term "Closing Date" as used in this
Mortgage shall mean the date of this Mortgage as set forth on page 1 hereof.
143 As to Property in Nevada. Notwithstanding anything to the
contrary elsewhere in this Mortgage, as to any property of the Trust Estate
located in the State of Nevada (the "Nevada Property"):
(0) This Mortgage shall be deemed to be and shall be
construed as a Deed of Trust, enforceable in accordance with Chapter 107 of the
Nevada Revised Statutes and other applicable laws of the State of Nevada, as
well as the Security Agreement, Financing Statement and Assignment of Leases and
Rents, and reference throughout this instrument to "this Mortgage" shall mean,
as appropriate, this Deed of Trust, Security Agreement, Financing Statement and
Assignment of Leases and Rents and references herein to this "Deed
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of Trust" shall mean this Mortgage in its capacity as a deed of trust under the
laws of the State of Nevada. Nothing herein set forth shall limit the right of
the Jurisdictional Trustee to foreclose this Mortgage as a mortgage under Nevada
law, at the option of Beneficiary. To the extent that the provisions of Section
21(c) of this Mortgage are contrary to the provisions of Chapters 107 and 21 of
the Nevada Revised Statutes ("NRS") applicable to foreclosures of deeds of
trust, then such provisions of NRS Chapters 107 and 21 shall govern and
supersede the contrary provisions of Section 21(c).
(1) The Jurisdictional Trustee for the Nevada
Property shall be [__________________________], a ____________________, subject
to substitution by the Beneficiary as provided in NRS 107.030(9).
(2) The Nevada Property shall be deemed to be and
hereby is, conveyed and transferred in trust, with power of sale, only to the
Jurisdictional Trustee, reference to whom throughout this Mortgage shall mean
the Jurisdictional Trustee for Nevada with regard to the Nevada Property; and
the reference to "Beneficiary" in the Granting Clause of this Mortgage shall,
with regard to the Nevada Property, be deemed a reference to the Jurisdictional
Trustee only, in trust, with power of sale, for the benefit of the Beneficiary.
(3) Other references to the "Beneficiary" in this
Deed of Trust shall be interpreted to be references to Beneficiary, the Trustees
or both as the context may require in light of the intent of the parties that
this Mortgage be construed as a Nevada Deed of Trust. The following covenants,
Nos. 5, 6, 7 (counsel fees - a reasonable percentage), 8 and 9 of Nevada Revised
Statutes 107.030, are hereby adopted and made a part of this Mortgage.
(4) In addition to its other functions, this Mortgage
shall constitute a security agreement and financing statement. For such
purposes, the Mortgagor is deemed to be the debtor and Beneficiary is deemed to
be the secured party, as those terms are used in the Nevada Uniform Commercial
Code; and their respective addresses are set forth on the first page of this
Mortgage.
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All references in this Mortgage to UCC Section 9-402(f) and to UCC Section
9-501(d) shall be deemed to refer to UCC Section 9-402(5) and to UCC Section
9-501(4), respectively.
(5) The creation and enforcement of security
interests granted by this Mortgage in collateral located in Nevada which is
classified as a "deposit account" (as defined in NRS 104.9105(1)(e)), shall be
governed by, and construed in accordance with, the laws of the State of New York
applicable to contracts.
144 As to Properties in New York. This instrument shall be
deemed a mortgage and not a deed of trust. Beneficiary shall be entitled to all
rights and remedies that a mortgagee would have under the law or in equity in
addition to all rights and remedies it may have hereunder.
(0) Lien Law. 1. This Mortgage is made subject to
Section 13 of the New York Lien Law and, in compliance with Section 13 of the
New York Lien Law, the Mortgagor will receive the loan secured by this Mortgage
and the right to receive such advances as a trust fund to be applied first for
the purpose of paying any unpaid costs of the Improvements; and the Mortgagor
has applied and will apply the same first to the payment of any unpaid costs of
the Improvements before using any part of the total of the same for any other
purpose.
2. The Mortgagor will indemnify and hold Beneficiary
harmless against any loss, liability, cost or expense, including any judgments,
attorneys' fees, costs of appeal bonds or printing costs, arising out of or
relating to any proceedings instituted by any claimant alleging a violation by
the Mortgagor of Article 3-A of the New York Lien Law.
(1) Real Property Law. 1. Sections 5 and 6 hereof
shall be construed according to subdivision 4 of Section 254 of the New York
Real Property Law as amended by Chapter 886 of the Laws of 1945 but not as
amended by Chapter 830 of the Laws of 1965 or as otherwise thereafter amended.
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2. For purposes of Section 291-f of the New York Real
Property Law, Tenant and every tenant or subtenant who after the recording of
this Mortgage, enters into a Lease upon the premises of any of the Property or
who acquires by instrument of assignment or by operation of law a leasehold
estate upon the premises located in the State of New York in existence on the
date of recording of this Mortgage is hereby notified that the Mortgagor shall
not, without obtaining Beneficiary's prior consent in each instance, cancel,
abridge or otherwise modify any Leases upon the premises located in the State of
New York or accept prepayments for more than thirty (30) days of installments of
rent to become due with respect to any Lease thereof having an unexpired term on
the date of this Mortgage of five years or more, except as expressly permitted
under this Mortgage or the Assignment of Leases, and that any such cancellation,
abridgement, modification or prepayment made by any such tenant or subtenant
without either being expressly permitted under this Mortgage or receiving
Beneficiary's prior consent shall be voidable by Beneficiary at its option.
(2) RPAPL. If an Event of Default shall occur and be
continuing, Beneficiary may elect to sell (and, in the case of any default of
any purchaser, resell) any Property or any part of any Property by exercise of
the power of foreclosure or of sale granted to Beneficiary by Articles 13 or 14
of the New York Real Property Actions and Proceedings Law (the "RPAPL"). In such
case, Beneficiary may commence a civil action to foreclose this Mortgage
pursuant to Article 13 of the RPAPL, or it may proceed and sell the Property
pursuant to Article 14 of the RPAPL to satisfy all amounts secured hereby.
(3) Maximum Principal Indebtedness. The amount of
principal indebtedness this Mortgage secures against the Property located in the
State of New York and, for purposes of Sections 253, 256 and 260 of the Tax Law
of the State of New York (relating to the taxation of mortgages), the maximum
amount of the principal indebtedness secured by this Mortgage, or which by any
contingency may be secured by this Mortgage, and for which this Mortgage may be
foreclosed or otherwise enforced against, the Property located in
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the State of New York, is the $8,680,000 principal amount of this Mortgage.
(4) No Residential Units. This Mortgage does not
encumber real property principally improved or to be improved by one or more
structures containing in the aggregate six or fewer residential dwelling units
having their own separate cooking facilities.
(5) Beneficiary as Grantee. Confirming the effect of
the language in the preamble of this Mortgage, the New York Property shall be,
and hereby is, conveyed and transferred only to the Beneficiary. References to
the "Trustee", "Jurisdictional Trustee" (in the case of the New York Property)
and "Individual Trustee" (collectively, the "Trustee Interests") throughout this
Mortgage shall be interpreted to be references to Beneficiary to the extent the
context may permit or require in light of the intent of the parties that
Beneficiary's rights and obligations under this Mortgage include those rights,
obligations, remedies, representations, warranties and other covenants made to
or running in favor of any Trustee Interest, all of which are hereby expressly
intended to run in favor of Beneficiary in the case of the New York Property.
(6) No Trust Intended. Notwithstanding any grant
herein "IN TRUST" and the use of the term "Trust Estate", it is not intended
that the Beneficiary be a trustee or have any trustee or other fiduciary
responsibilities, risks, obligations or liabilities, but rather that it accept
the grant and the covenants to or for its benefit within and under this Mortgage
as a "mortgagee" under applicable law. Accordingly, without limiting the
generality of the foregoing, the term "Trust Estate" where used herein shall
mean the "Properties" together with the "Leases", "Rents", and "Intangibles" as
defined in this Mortgage in the case of the New York Property and Beneficiary
shall have no trustee or other fiduciary responsibilities, risks, obligations or
liabilities with respect to the New York Property or otherwise under this
Indenture.
145 As to Properties in North Carolina.
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Notwithstanding anything to the contrary set forth elsewhere
in this Mortgage, as to any property of the Trust Estate located in the State of
North Carolina (the "North Carolina Property"):
(1) Additional Provisions Regarding Power of Sale. (1) In
exercising the power of sale herein conferred, after having been instructed by
the Beneficiary to do so, the Trustee shall comply with all applicable laws in
effect with respect to the exercise of powers of sale contained in deeds of
trust as of the date of the commencement of the proceeding. The Grantor agrees
that in the event of a sale under the power of sale hereunder, the Beneficiary
shall have the right to bid thereat. The Trustee may require that the successful
bidder at any sale deposit immediately with the Trustee cash or certified check
in an amount not to exceed ten percent (10%) of the bid, provided notice of such
requirement is contained in the advertisement of sale. The bid may be rejected
if the deposit is not immediately made, and thereupon the next highest bidder
may be declared to be the purchaser. Such deposit shall be refunded in case a
resale is had; otherwise, it shall be applied to the purchase price. If personal
property is sold hereunder, it need not be at the place of sale; the published
notice, however, shall state the time and place where such personal property may
be inspected prior to sale.
(2) Notwithstanding the provisions of Section 21 of this
Mortgage, the proceeds of any sale of the North Carolina Property pursuant to
the power of sale contained herein shall be applied first to the costs and
expenses of foreclosure, including, but not limited to a Trustee's commission
and to all costs, expenses and reasonable attorney's fees incurred by the
Beneficiary in connection with such sale, with the remaining proceeds to be
applied as provided in Section 21 of this Deed of Trust.
(3) N.C. Gen. Stat. Section 45-45.1. The provisions of N.C.
Gen. Stat. Section 45-45.1 and any similar statute enacted in replacement or
substitution thereof shall be inapplicable to this Deed of Trust.
(4) The references to in Section 36(b) of the Mortgage to UCC
Section 9-402(f) and UCC Section 9-501(d) are
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hereby deemed to be references to North Carolina General Statutes Section
25-9-402(6) and North Carolina General Statutes Section 25-9-501(4),
respectively.
(E) Future Advances. This Mortgage is given in whole or in
part to secure all present and future obligations of Mortgagor to Beneficiary.
The period in which future obligations may be incurred and secured by this
Mortgage is the period between the date hereof and that date which is the
earlier of (i) the stated maturity date of the Note or (ii) fifteen (15) years
from the date hereof. The amount of present obligations secured by this Mortgage
is One Hundred and Twenty-Seven Million and Five Hundred Thousand Dollars
($127,500,000), and the maximum principal amount, including present and future
obligations, which may be secured by this Mortgage at any one time is One
Hundred Twenty-Seven Million, Five Hundred Thousand and NO/100 Dollars
($127,500,000.00). Any additional amounts advanced by Beneficiary pursuant to
the provisions of this Mortgage shall be deemed necessary expenditures for the
protection of the security. As contemplated by the Credit Agreement, Mortgagor
will sign additional Notes to be secured by this Mortgage. Otherwise, Mortgagor
need not sign any instrument or notation evidencing or stipulating that future
advances are secured by this Mortgage.
2e As to Properties in Ohio. Notwithstanding anything to the
contrary set forth elsewhere in this Mortgage, as to any property of the Trust
Estate located in the State of Ohio (the "Ohio Property"):
(5) Beneficiary as Grantee. Confirming the effect of the
language in the preamble of this Mortgage, the Ohio Property shall be, and
hereby is, conveyed and transferred only to the Beneficiary. References to the
"Trustee", "Jurisdictional Trustee" (in the case of the Ohio Property) and
"Individual Trustee" (collectively, the "Trustee Interests") throughout this
Mortgage shall be interpreted to be references to Beneficiary to the extent the
context may permit or require in light of the intent of the parties that
Beneficiary's rights and obligations under this Mortgage include those rights,
obligations, remedies, representations, warranties and other covenants made to
or running in favor of any Trustee Interest, all of which are hereby expressly
intended to run in favor of Beneficiary in the case of the Ohio Property.
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(6) No Trust Intended. Notwithstanding any grant herein "IN
TRUST" and the use of the term "Trust Estate", it is not intended that the
Beneficiary be a trustee or have any trustee or other fiduciary
responsibilities, risks, obligations or liabilities, but rather that it accept
the grant and the covenants to or for its benefit within and under this Mortgage
as a "mortgagee" under applicable law. Accordingly, without limiting the
generality of the foregoing, the term "Trust Estate" where used herein shall
mean the "Properties" together with the "Leases", "Rents", and "Intangibles" as
defined in this Mortgage in the case of the Ohio Property and Beneficiary shall
have no trustee or other fiduciary responsibilities, risks, obligations or
liabilities with respect to the Ohio Property or otherwise under this Indenture.
(7) Security Agreement and Fixture Filing. This instrument
shall constitute a security agreement and continuously perfected fixture filing
and financing statement. The Grantor hereby authorizes the Beneficiary to
execute, deliver, file or refile, as Secured Party, without joinder of the
Debtor, any financing statement, continuation statement, or other instruments
the Beneficiary may reasonably require from time to time to perfect, continue
and renew such security interest under the Uniform Commercial Code. The Grantor
is, for the purposes of this agreement, deemed to be the Debtor, and the
Beneficiary is deemed to be the Secured Party, as those terms are used in the
Uniform Commercial Code. The addresses of Secured Party and Debtor from which
information concerning the Mortgage may be obtained are set forth on the first
page of this Mortgage. The record owner of the real estate included in the
Properties is the Grantor/Debtor.
(8) Maximum Indebtedness. The parties hereto intend that this
Mortgage shall secure all future advanced of funds under the Credit Agreement
and that the maximum amount of loan indebtedness, exclusive of interest thereon,
which may be outstanding at any time and secured hereby shall be the Loan
Amount.
146 As to Properties in Pennsylvania. Notwithstanding
anything to the contrary elsewhere in
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this Mortgage, as to any property of the Trust Estate located in the
Commonwealth of Pennsylvania:
(0) This instrument is intended to be a realty
mortgage and shall be enforceable as such. The Mortgagor shall be deemed a
"mortgagor," Beneficiary shall be deemed a "mortgagee" and Trustee shall have no
capacity (but shall be disregarded and all references to "Trustee" shall be
deemed to refer to the "mortgagee" to the extent not inconsistent with
interpreting this instrument as a realty mortgage). As a realty mortgage, the
Mortgagor, as mortgagor, shall convey all Pennsylvania Property ab initio to
Beneficiary, as mortgagee.
(1) Each of the remedies set forth herein, including
without limitation the remedies involving a power of sale of the Pennsylvania
Property in connection with the enforcement of the terms of this Mortgage, shall
be exercisable if, and to the extent, permitted by the laws of the Commonwealth
of Pennsylvania in force at the time of the exercise of such remedies without
regard to the enforceability of such remedies at the time of the execution and
delivery of this Mortgage.
(2) Upon the occurrence and during the continuation
of an Event of Default, Beneficiary may institute any one or more actions of
mortgage foreclosure against all or any part of the Pennsylvania Property, or
take such other action at law or in equity for the enforcement of this Mortgage
and realization on the security herein or elsewhere provided for, as law may
allow, and may proceed therein to final judgment and execution for the entire
amount of the outstanding Indebtedness. Beneficiary shall have the option to
proceed with foreclosure of the lien and security interests evidenced by this
Mortgage in satisfaction of the Loan through the courts, all without declaring
the Indebtedness due, and provided that if a sale of the Pennsylvania Property
is because of default in the payment of part of the Indebtedness, such sale may
be made subject to the unmatured part of the Indebtedness; and such sale, if so
made, shall not in any manner affect the unmatured part of the Indebtedness, but
as to such unmatured part of the Indebtedness, this
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Mortgage shall remain in full force and effect just as though no sale had been
made.
(3) For the purpose of procuring possession of the
Pennsylvania Property, upon the occurrence and continuance of an Event of
Default, the Mortgagor hereby authorizes and empowers any attorney of any court
of record in the Commonwealth of Pennsylvania, designated by Beneficiary, as
attorney for the Mortgagor and all persons claiming under or through the
Mortgagor, to sign an agreement for entering in any Court of competent
jurisdiction a precipe for writ of summons or a complaint providing for
confession of judgment in ejectment for possession of said Property and to
appear for and confess judgment against the Mortgagor, and against all persons
claiming under or through the Mortgagor, for the recovery by Beneficiary of
possession of said property, without any stay of execution, for which this
Mortgage, or a copy hereof verified by affidavit, shall be a sufficient warrant;
and thereupon a writ of possession may be issued forthwith, without any prior
writ or proceeding whatsoever. If for any reason after such action has been
commenced the same shall be discontinued or possession of said Property shall
remain in or be restored to the Mortgagor, Beneficiary shall have the right for
the same Event of Default or any subsequent Event of Default to bring one or
more further actions as above provided to recover possession of said Property.
Beneficiary may bring such action in ejectment before or after the institution
of foreclosure proceedings upon the Mortgage, or after judgment thereon or after
sale of said Property by the Sheriff.
(4) The Mortgagor hereby irrevocably authorizes and
empowers any attorney or attorneys or the Prothonotary or Clerk of any Court in
the Commonwealth of Pennsylvania, or elsewhere, at any time following an Event
of Default hereunder to appear for and confess judgment against the Mortgagor
for the amount for which the Mortgagor may be or become liable to Beneficiary,
not to exceed $ , under this Mortgage or the Credit Agreement, and payment of
which is secured by the Pennsylvania Property, as evidenced by an affidavit
signed by an officer of Beneficiary, setting forth the amount then due, plus
attorneys' fees and costs of suit, with release of errors and without
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right of appeal and for so doing this Mortgage or a copy hereof verified by
affidavit shall be sufficient warrant, it being agreed that the foregoing
authorization is a power coupled with an interest. The Mortgagor waives the
right to any stay of execution and the benefit of all exemption laws now or
hereafter in effect. No single exercise of the foregoing warrant and power to
confess judgment shall be deemed to exhaust the power, whether or not any such
exercise shall be held to be invalid, voidable or void, but the power shall
continue undiminished and may be exercised from time to time as often as the
agent or such bank shall elect until all obligations of the Mortgagor to
Beneficiary have been paid in full.
(5) The Mortgagor acknowledges that it has had the
assistance of counsel in the review and execution of this Mortgage and further
acknowledges that the meaning and effect of the foregoing confession of judgment
have been fully explained to Grantor by such counsel.
(6) If, as provided in Section 35(a) hereof, the
Mortgagor shall pay or cause to be paid, the principal of and interest of the
Loan Amount in full at maturity or as permitted in accordance with the terms
thereof and all other Indebtedness payable to Beneficiary hereunder by the
Mortgagor or secured hereby or by the other Loan Documents and all of the
payment Obligations shall have been performed, then in addition to the
provisions of Section 35(a), the estate hereby granted, transferred and assigned
shall cease, terminate and become void.
(7) The references to the UCC in the Granting Clauses
of this Mortgage shall be deemed to be references to the Pennsylvania Uniform
Commercial Code in 13 Pa. C.S.A. Section 1101 et seq.
(8) This instrument shall constitute a security
agreement and continuously perfected fixture filing and financing statement. The
Mortgagor hereby authorizes Beneficiary, after ten (10) days' notice to the
Mortgagor and the Mortgagor's failure to execute such financing statements, to
execute, deliver, file or refile as Secured Party, without joinder of the
Mortgagor, as Debtor, any financing statement,
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continuation statement, or other instruments Beneficiary may reasonably require
from time to time to perfect or renew such security interest under the UCC. The
Mortgagor is, for the purposes of this agreement, deemed to be the Debtor, and
Beneficiary is deemed to be the Secured Party, as those terms are used in the
UCC. The addresses of secured party and debtor from which information concerning
the security agreement may be obtained are set forth in the initial paragraph of
this Mortgage.
(9) Subject to any Nondisturbance Agreements then in
effect, if Beneficiary exercises its right of entry under Section 21(b) hereof
and the tenant fails to surrender possession of the Pennsylvania Property,
Beneficiary shall be entitled to institute and maintain an action of ejectment
with respect to the Pennsylvania Property in the county or counties in which
such property, or any part thereof, is situated.
(10) This Mortgage is intended to be an "Open-End
Mortgage" that secures future advances pursuant to the provisions of 42
Pa.C.S.A. Section 8143. It is the intent of the parties that the lien of such
future advances relates back to the date of this Mortgage subject to compliance
with the provisions of such section.
147 As to Properties in Tennessee. Notwithstanding anything
to the contrary elsewhere in this Mortgage, as to any property of the Trust
Estate located in the State of Tennessee (the "Tennessee Property"):
(0) This Mortgage shall be deemed to be and shall be
construed as a deed of trust, enforceable in accordance with the applicable laws
of the State of Tennessee, as well as an Indenture of Mortgage, Security
Agreement, Financing Statement, Fixture Filing and Assignment of Leases and
Rents and reference throughout this instrument to "this Mortgage" shall mean, as
appropriate, this "Deed of Trust, Indenture of Mortgage, Security Agreement,
Financing Statement, Fixture Filing and Assignment of Leases and Rents" and this
"Deed of Trust" in its capacity as a Tennessee deed of trust. Nothing herein set
forth shall limit
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the right of the Trustee to foreclose this Deed of Trust as a deed of trust
under Tennessee law, at the option of Beneficiary.
(1) The Tennessee Property shall be deemed to be, and
hereby is, conveyed and transferred in trust only to the Jurisdictional Trustee.
(2) The Jurisdictional Trustee for the Tennessee
Property shall be Joseph Pitt, Jr., Esq., having an address at Chicago Title
Insurance Company, 414 Union Street, Nashville, Tennessee 37219.
(3) Other references to the "Beneficiary" in this
Deed of Trust shall be interpreted to be references to Beneficiary, the
Jurisdictional Trustee, or both, as the context may require in light of the
intent of the parties that this Deed of Trust, at Beneficiary's option, be
construed as a Tennessee deed of trust. However, nothing herein is intended to
limit the rights or powers of Beneficiary as set forth in this Deed of Trust,
except only to the extent necessary to accomplish the purpose stated above.
(4) The Jurisdictional Trustee may be removed and a
successor trustee appointed by Beneficiary in accordance with Tennessee law.
(5) Upon the occurrence of an Event of Default, the
Jurisdictional Trustee, at the request of Beneficiary, shall sell the Tennessee
Property or any part thereof at one or more public sales before the main door of
the courthouse in the county in which the Land is located, to the highest bidder
for cash, and in bar of the equity of redemption, the statutory right of
redemption at any time codified in T.C.A. Section 66-8-101 et seq., or
elsewhere, homestead, dower, and all other statutory rights of redemption and
any and all other rights and exemptions of every kind, all of which are hereby
waived, in order to pay the Indebtedness, and all expenses of sale and of all
proceedings in connection therewith, including reasonable attorneys' fees, after
advertising the time, place, and terms of sale at least three (3) different
times in some newspaper published in the county in which the Land is located,
the first of which publications shall be at
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least twenty (20) days previous to said sale. At any such public sale, the
Jurisdictional Trustee may execute and deliver to the purchaser a conveyance of
the Tennessee Property or any part thereof in fee simple. In the event of any
sale under this Deed of Trust by virtue of the exercise of the powers herein
granted, or pursuant to any order in any judicial proceeding or otherwise, the
Tennessee Property may be sold in its entirety or in separate parcels and in
such manner or order as Beneficiary in its sole discretion may elect, and if
Beneficiary so elects, Trustee may sell the personal property covered by this
Deed of Trust at one or more separate sales in any manner permitted by the
Uniform Commercial Code of the State of Tennessee, and one or more exercises of
the powers herein granted shall not extinguish or exhaust such powers, until the
entire Tennessee Property is sold or the Indebtedness is paid in full. If the
Indebtedness is now or hereafter further secured by any chattel mortgages,
pledges, contracts of guaranty, assignments of lease, or other security
instruments, Beneficiary at its option may exhaust the remedies granted under
any of said security instruments either concurrently or independently, and in
such order as Beneficiary may determine.
Said sale may be adjourned by the Jurisdictional Trustee, or
his/her agent or successors, and reset at a later date without additional
publication, provided that an announcement to that effect be made at the
scheduled place of sale at the time and on the date the sale is originally set.
(6) Waiver of Statutory Right of Redemption. In case
of a sale by the Jurisdictional Trustee enforcing the provisions hereof, the
Mortgagor waives and surrenders all right and equity of redemption, statutory
right of redemption, or repurchase of said land and premises and all other
related exemptions. THIS WAIVER IS GIVEN AS AN EXPRESS WAIVER OF THE RIGHTS
AFFORDED BY TCA Section 66-8-101(3), AS AMENDED, AND ANY OTHER STATUTORY RIGHTS
OF REDEMPTION AND IS INTENDED TO WAIVE ALL RIGHTS OF THE MORTGAGOR EXPRESSED
THEREIN.
(7) In addition to its other functions, this Deed of
Trust shall constitute a security
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agreement and financing statement. For such purpose, the Mortgagor is deemed to
be the debtor and Beneficiary is deemed to be the secured party, as those terms
are used in the Tennessee Uniform Commercial Code; and their respective
addresses are set forth herein.
148 As to Properties in Texas. Anything to the contrary
notwithstanding, it is the intent of the Mortgagor and the Beneficiary that the
exercise of any non-judicial foreclosure remedy against any of the Property
situated in the State of Texas (the "Texas Property") shall be governed by the
following provision:
The Individual Trustee, at the request of the
Beneficiary, at any time during the continuance of any Event of
Default, may sell any of the Texas Property, at public auction, to the
highest bidder, or bidders, for cash, at the door of the County
Courthouse of the County in Texas in which such Property is situated
(however, if such Property is situated in more than one County, the
sale of such Property may take place at any one County Courthouse where
any of such Property is situated, as the Beneficiary may elect), as
herein described, between the hours of 10:00 a.m. and 4:00 p.m. on the
first Tuesday of the month, after giving notice of the time, place and
terms of such sale and the Property to be sold, as follows:
Notice of such proposed sale shall be given by
posting written notice thereof at least twenty-one (21) days preceding
the date of the sale at the Courthouse door at the County in which the
sale is to be made and by filing at least twenty-one (21) days
preceding the date of such sale written or printed notice thereof with
the office of the County Clerk of such County. In the event the
Property to be sold is situated in more than one County, one notice
shall be posted at the Courthouse door of each County in which the
Property to be sold is situated and one notice shall be filed with the
office of
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the County Clerk of each such County. In addition, the Beneficiary
shall, at least twenty-one (21) days preceding the date of such sale,
serve written notice on the proposed sale by certified mail on each
debtor obligated to pay the debt secured hereby according to the
records of the Beneficiary. Service of such notice shall be completed
upon deposit of the notice, enclosed in a postpaid wrapper, properly
addressed to such debtor at the most recent address as shown by the
records of the Beneficiary, in a post office or official depository
under the care and custody of the United States Postal Service. The
affidavit of any person having knowledge of the facts to the effect
that such service was completed shall be prima facie evidence of the
fact of service. The sale of any such Property situated in the State of
Texas by the Individual Trustee shall take place in the area at the
Courthouse in the County designated for such purpose by the
Commissioner's Court of said County, and, in the event that no area has
been designated by such Commissioner's Court, then the notice of sale
described above shall designate an area at the County Courthouse where
the sale shall take place and, in such event, the sale shall be
conducted by the Jurisdictional Trustee at the area designated in the
notice of sale. The notice of sale shall contain a statement of the
earliest time at which such sale will occur, and the sale shall begin
at the time stated in the notice of sale or not later than three (3)
hours after such time.
Any notice that is required or permitted to be given
to the Mortgagor may be addressed to Mortgagor at the Mortgagor's
address as stated herein. Any notice that is to be given by certified
mail to any other debtor may, if no address for such other debtor is
shown by the records of the Beneficiary, be addressed to such other
debtor at the address of the Mortgagor as is shown by the records of
the Beneficiary.
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Notwithstanding the foregoing provisions of this section, notice of
such sale given in accordance with the requirements of the applicable
law of the State of Texas in effect at the time of such sale shall
constitute sufficient notice of such sale. The Mortgagor hereby
authorizes and empowers the Beneficiary and the Individual Trustee to
sell any of the Texas Property, together or in lots or parcels, as the
Beneficiary or the Jurisdictional Trustee may deem expedient, and to
execute and deliver to the purchaser or purchasers of such Property,
good and sufficient deed(s) of conveyance of fee simple title with
covenants of general warranty made on behalf of the Mortgagor. In no
event shall the Individual Trustee be required to exhibit, present or
display at any such sale, any of the personalty described herein to be
sold at such sale.
Notwithstanding anything to the contrary elsewhere in this Deed of Trust, the
Texas Property shall be, and is conveyed and transferred only to the Individual
Trustee. References to "the Beneficiary" throughout this Deed of Trust shall be
interpreted to be references to the Beneficiary, the Individual Trustee, or both
as the context may require in light of the intent of the parties that the
Beneficiary's rights and obligations under this Deed of Trust be limited to
those rights and obligations that a corporate trustee organized under the laws
of a state or commonwealth other than Texas without being subject to Texas
requirements for qualification and regulation of corporate trustees.
149 As to Property in Virginia. Notwithstanding anything to
the contrary elsewhere in this Mortgage, as to any portion of the Trust Estate
located in the Commonwealth of Virginia (the "Virginia Property"):
(1) With respect to the portions of the Virginia Property
constituting real property, this instrument shall be deemed to be and shall be
construed as a Deed of Trust, enforceable in accordance with the applicable laws
of the Commonwealth of Virginia. As to
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the remainder of the Virginia Property, this instrument shall be deemed to be
and shall be construed as a Security Agreement, Financing Statement and/or
Assignment of Rents, as appropriate, and reference throughout this instrument to
"this Mortgage" shall mean, as appropriate, this Deed of Trust, Security
Agreement, Financing Statement and/or Assignment of Rents and references herein
to "this Deed of Trust" shall mean this Mortgage in its capacity as a Virginia
deed of trust.
(2) The Virginia Property shall be deemed to be, and hereby is
conveyed and transferred in trust only to Alexander Title Agency, located at
7921 Jones Branch Drive, 6th Floor, McLean, Virginia, as Individual Trustee (the
"Virginia Jurisdictional Trustee"), as trustee for the benefit of Beneficiary,
and not to the Beneficiary. The Virginia Jurisdictional Trustee may be removed
and a successor trustee appointed by Beneficiary in accordance with Virginia
law. Reference to the Jurisdictional Trustee throughout this Mortgage shall mean
the Virginia Jurisdictional Trustee with respect to the Virginia Property. Upon
full payment of the Indebtedness and all other monies advanced or expended by
the Beneficiary and/or the Jurisdictional Trustee as provided in the Mortgage
Loan Documents, and of all other cost attorney's fees, charges, commissions and
expenses, and performance of the Obligations, at any time before the sale herein
provided, at the direction of the Beneficiary, the Jurisdictional Trustee shall
release and reconvey the Virginia Property to the Grantor entitled thereto, or
the parties then claiming under such Grantor.
(3) This Deed of Trust, except as expressly otherwise stated
herein, is made under the provisions of Section 55-59 through 55-60 of the Code
of Virginia of 1950, as amended, and shall be construed to impose and confer
upon the parties hereto and the Beneficiary hereunder, all of the rights, duties
and obligations described in Section 55-59 et seq. and those short-form phrases,
as defined in Section 55-60, as follows: "Exemptions waived; subject to call
upon default; renewal or extension permitted; insurance required for full
replacement value; substitution of trustees permitted; any Trustee may act; this
is a credit line deed of trust."
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(4) Sections 21(f)(i) and 21(f)(ii) of this Mortgage are
hereby deleted in their entirety with respect to the Virginia Property, and the
following is substituted therefor:
(f) Sale of Trust Estate; Application of Proceeds.
(2) The Beneficiary may elect to cause each
Property or any part thereof to be sold under the power of sale herein
granted in any manner permitted by applicable law. Should Beneficiary
elect to sell the Virginia Property, or any part thereof, the
Beneficiary or Jurisdictional Trustee shall give such notice of default
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
any Grantor, the Jurisdictional Trustee, at the time and place
specified in the notice of sale, shall sell the Virginia Property or
any part thereof at public auction to the highest bidder for cash in
lawful money of the United States payable at time of sale. The
Jurisdictional Trustee may, and upon request of the Beneficiary shall,
from time to time, postpone any sale hereunder by public announcement
thereof at the time and place noticed therefor or by giving notice of
the time and place of the postponed sale in the manner required by law.
If the Virginia Property consists of several lots, parcels or items of
property, the Beneficiary may designate the order in which such lots,
parcels or items shall be offered for sale or sold. Any person,
including any Grantor, the Jurisdictional Trustee or the Beneficiary,
may purchase at any sale hereunder, and the Beneficiary shall have the
right to purchase at any sale hereunder by crediting upon the bid price
the amount of all or any part of the indebtedness hereby secured plus
interest, late charges, prepayment fees, and reasonable attorneys' fees
and trustees' fees, as herein provided. Should the Beneficiary desire
that more than one sale or other disposition of the Virginia Property
be conducted, the
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Beneficiary may, at its option, cause the same to be conducted
simultaneously, or successively, on the same day, or at such different
times and in such order as the Beneficiary may deem to be in its best
interests, and no such sale shall terminate or otherwise affect the
lien of this Mortgage on any part of the Virginia Property not sold
until all indebtedness secured hereby has been fully paid. In the event
of default of any purchaser, the Jurisdictional Trustee shall have the
right to resell the Virginia Property as set forth above. Upon any sale
hereunder, the Jurisdictional Trustee shall execute and deliver to the
purchaser or purchasers a deed or deeds conveying the property so sold,
but without any covenant or warranty whatsoever, express or implied,
whereupon such purchaser or purchasers shall be let in to immediate
possession; and the recitals of facts in any such deed or deeds such as
default, the giving of notice of default and notice of sale, and other
facts affecting the regularity or validity of such sale or disposition,
shall be conclusive proof of the truth of such facts and any such deed
or deeds shall be conclusive against all persons as to such facts
recited therein. Any such sale or sale made under or by virtue of this
Section 20 shall operate to divest all the estate, right title,
interest, claim and demand, whether at law or in equity, of the Grantor
in and to the property and rights sold, and shall be a perpetual bar,
at law and in equity, against the Grantor, their respective successors
and assigns and any person claiming through or under the Grantor and
its successors and assigns.
(3) The Beneficiary, from time to time
before the Jurisdictional Trustee's sale, pubic sale or deed in lieu of
foreclosure, may rescind any such notice of breach or default and of
election to cause the Virginia Property to be sold by executing and
delivering to the Jurisdictional Trustee a written notice of such
recision, which notice, when delivered, shall also constitute a
cancellation of any prior declaration of default and demand for sale or
such documents as may be required by the laws of the Commonwealth of
Virginia to effect such rescission. The
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exercise by the Beneficiary of such right of rescission shall not
constitute a waiver of any breach or default then existing or
subsequently occurring, or impair the right of the Beneficiary to
execute and deliver to the Jurisdictional Trustee, as above provided,
other declarations of default and demand for sale, and notices of
breach or default, and of election to cause the Virginia Property to be
sold to satisfy the obligations hereof, nor otherwise affect any
provision, agreement, covenant or condition or the Credit Agreement
and/or of this Mortgage or any of the rights, obligations or remedies
of the parties hereunder."
(E) Section 21(f)(iii) of this Mortgage is hereby amended to
add the following sentence with respect to the Virginia Property: "The
Jurisdictional Trustee shall receive and receipt for the proceeds of any sale of
the Virginia Properties under or by virtue of this Section 21(f)." Section
21(f)(iii) is further amended to substitute the term "Jurisdictional Trustee"
for "Beneficiary" with respect to the Virginia Property.
(F) Section 21(f)(iv) of this Mortgage is hereby deleted in
its entirety with respect to the Virginia Property and the following is
substituted therefor:
"(iv) Upon any sale made under or by virtue
of this Section 21, the Beneficiary may bid for and acquire the
Virginia Property or any part thereof and, in lieu of paying cash
therefor, may make settlement for the purchase price by crediting under
the Credit Agreement secured by this Mortgage the net proceeds of sale
after deducting therefrom the items set forth clauses (a) and (b) in
Section 22 (as hereinafter amended). The Jurisdictional Trustee shall
accept such settlement, if in accordance with applicable law, and shall
credit to the Indebtedness and Obligations said net proceeds of such
sale. The Beneficiary, upon acquiring the Virginia Property or any
apart thereof, shall be entitled to own, hold, lease, rent, operate,
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manage or sell the same in any manner permitted by applicable laws."
(G) Section 22 of this Mortgage is hereby deleted in its
entirety with respect to the Virginia Property and the following is substituted
therefor:
"22. Application of Proceeds. The proceeds of any
sale made under or by virtue of Section 22, together with all other sums which
then may be held by the Jurisdictional Trustee or the Beneficiary under this
Mortgage, whether under the provisions of Section 22 or otherwise, shall be
applied as follows:
(a) FIRST: To discharge the expenses of
executing this Mortgage, including a reasonable commission to the
Jurisdictional Trustee not to exceed five percent (5%) of the gross
amount of the sale, and all proper costs, charges, and expenses of the
sale and reasonable attorneys' fees in connection with the sale.
(b) SECOND: To discharge all taxes, levies,
and assessments with costs and interest thereon from the date of
advance to the date of sale at an interest rate equal to the Default
Rate, including all monies previously advanced for taxes, levies,
assessments and the due pro rata portion thereof for the current year.
(c) THIRD: To discharge in the order of
their priority, if any, the remaining debts and obligations secured by
this Mortgage and any Liens of record inferior thereto, with lawful
interest.
(d) FOURTH: The residue of the proceeds
shall be paid to the Grantor or their assigns, less the expense, if any
of obtaining possession upon the delivery and surrender to the
purchaser of possession of the Virginia Property; provided, however,
that the Jurisdictional Trustee as to such residue shall not be bound
by any inheritance, device, conveyance, assignment
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or lien upon the Grantor's equity, without actual notice prior to
distribution.
(H) The following provisions are hereby added to Section 9(b)
with respect to the Virginia Property:
(iv) The Jurisdictional Trustee or any person(s)
acting in his or her stead shall have, in his or her discretion,
authority to employ all proper agents and attorneys in the execution of
this Mortgage, and pay for such services rendered out of the proceeds
of the foreclosure sale of the Virginia Property, should any be
realized; and in the event of an Event of Default hereunder, if no sale
be made, then the Grantor hereby undertakes and agrees to pay the
reasonable cost of such services rendered to the Jurisdictional
Trustee.
(v) The trust created hereby is irrevocable by the
Grantor and the Jurisdictional Trustee accepts such trust when this
Mortgage, duly executed and acknowledged is made a public record as
provided by law. The necessity of the Jurisdictional Trustee's making
oath, filing inventory or giving bond as security for the execution of
this Mortgage, as may now be or hereafter required by the laws of the
Commonwealth of Virginia, is hereby expressly waived.
(vi) The Jurisdictional Trustee, upon presentation to
him or her of an affidavit signed by or on behalf of the Beneficiary,
setting forth any fact or facts showing an Event of Default by the
Grantor under any of the terms or conditions of this Mortgage, are
authorized to accept as true and conclusive all facts and statements in
such affidavit and to act hereunder in complete reliance thereon. The
Jurisdictional Trustee shall be protected in acting upon any notice,
request, consent, demand, statement, note or other paper or document
believed by them to be genuine and
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to have been signed by the party or parties purporting to sign the
same. The Jurisdictional Trustee shall not be liable for any error or
judgment, nor for any act done or step taken or omitted, nor for any
mistake of law of fact, nor for anything which he or she may do or
refrain from doing in good faith, nor generally shall any of the
Jurisdictional Trustee have any accountability hereunder except for
his, her or its own individual willful default. The Jurisdictional
Trustee shall be under no obligation to notify any party hereof of any
action or proceeding of any kind in which the Grantor, the Beneficiary
and/or the Jurisdictional Trustee shall be a party, unless brought by
Jurisdictional Trustee, or of any pending sale under any other deed of
trust.
(vi) The irrevocable power to appoint a Substitute
Jurisdictional Trustee or Trustees hereunder is expressly granted to
the Beneficiary, to be exercised at any time hereafter, without notice
and without specifying any reason therefore, by filing for record in
the office where this Mortgage is recorded, a Deed of Appointment, and
said power of appointment of a successor Jurisdictional Trustee or
Trustees may be exercised as often as, and whenever, the Beneficiary,
in its sole discretion, deems it advisable. The exercise of said power
of appointment, no matter how often, shall not be an exhaustion
thereof, and upon the recordation of such deed or deeds of appointment,
the Jurisdictional Trustee or Trustees so appointed shall thereupon,
without any further act or deed of conveyance, succeed to and become
fully vested with identically the same title and estate in and to the
Virginia Property hereby conveyed, and with all the rights, powers,
trusts and duties of their, his, her or its predecessor in the trust
hereunder, with like effect as if originally named as
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Jurisdictional Trustee or as one of the Jurisdictional Trustees
hereunder.
(I) This Mortgage is intended to serve as a fixture filing
pursuant to the terms of the Virginia Uniform Commercial Code, any refences to
UCC 9-402(f) and 9-501(d) shall be replaced by UCC 8.9-402(6) and 8.9-501(4)
respectively.
150 As to Property in Washington. Notwithstanding anything to
the contrary elsewhere in this Mortgage, as to any property of the Trust Estate
located in the State of Washington (collectively, the "Washington Property"):
(0) The references in GRANTING CLAUSES, Paragraph VI,
to Sections 9-313 and 9-402 of the Uniform Commercial Code shall be deemed to
refer to R.C.W. 62A.9-313 and R.C.W. 62A.9-402, respectively.
(1) The Mortgagor warrants and covenants that the
Washington Property is not used principally for agricultural or farming
purposes.
(2) Notwithstanding any terms of paragraph 21(f)(ii)
of this Mortgage seemingly to the contrary, the Trustee shall deliver to the
purchaser of the Washington Property at the Trustee's Sale its Trustee's Deed,
without warranty, which shall convey to the purchaser the interest in the
Property which Mortgagor had or had the power to convey at the time of
Mortgagor's execution of this Mortgagor, and such as Mortgagor may have acquired
thereafter, the Trustee's Deed shall recite the facts showing that the Trustee's
Sale was conducted in compliance with all of the requirements of law and of this
Mortgage, which recital shall be prima facie evidence of such compliance and
conclusive evidence thereof in favor of bona fide purchasers and encumbrances
for value. As used herein, "Trustee's Sale" shall mean the sale of the
Washington Property, conducted by the Trustee, at the conclusion of any
non-judicial deed of trust foreclosure process and "Trustee's Deed" shall mean
the deed issued by Trustee pursuant to R.C.W. 61.24.040(7).
(3) Nothing contained in paragraph 22 of this
Mortgage shall be construed to be contrary to
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R.C.W. 61.24.080, and in particular the statutory requirement that surplus
proceeds be deposited with the clerk of the superior court of the county in
which any Trustee's Sale takes place.
151 As to Properties in West Virginia. Notwithstanding
anything to the contrary elsewhere in this Mortgage, the following special
provisions shall apply as to any property of the Trust Estate located in the
State of West Virginia:
(0) The reference, in Section VI of the Granting
clauses to Sections 9.313 and 9/402 of the Uniform Commercial Code shall be
deemed to be references to Sections 47-9-402 of the Code of West Virginia, as
named, respectively.
(1) The beneficial owner and holder of the
indebtedness secured hereby at the time of the execution and delivery hereof is
the following entity:
Prudential Securities Credit Corp., LLC
One New York Plaza
18th Floor
New York, New York
(2) Notwithstanding any other provisions herein to
the contrary, for all purposes relative to the creation, administration,
enforcement and foreclosure of the beneficial interest in favor of the
Beneficiary created by this Mortgage against the property situate in the State
of West Virginia, the Trustee shall collectively be and both having an address
at , West Virginia , each a resident of County, (hereinafter referred to
collectively as the "West Virginia Jurisdictional Trustee"). The Trustees as
identified in the first paragraph of the Mortgage shall not serve as Trustee of
this Mortgage with respect to property of the Trust Estate located within the
State of West Virginia, which rights and obligations shall be exclusively
granted to and exercised by the West Virginia Jurisdictional Trustee. The
Trustees shall, however, serve as Trustees for all other purposes of this
Mortgage. All references to the Trustees as provided in this Mortgage which
pertain to,
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or are necessary to establish, enforce and foreclose upon the beneficial
interest in the property of the Trust Estate situate in the State of West
Virginia created under this Mortgage, or which otherwise pertain to acts to be
performed in, or which involve portions of the Trust Estate located in the State
of West Virginia, shall refer to the West Virginia Jurisdictional Trustee. The
Trustees as identified in the first paragraph of this Mortgage (hereinafter
referred to as the "Institutional Trustees") shall have no power or authority
relative to the security aspects of the Mortgage with respect to those portions
of the Trust Estate situate in the State of West Virginia or any other act to be
performed in the State of West Virginia. At the request of the West Virginia
Jurisdictional Trustee, the Institutional Trustees shall assign and convey to
the West Virginia Jurisdictional Trustee such additional security or beneficial
interests in the Trust Estate located in the State of West Virginia as may be
required for the West Virginia Jurisdictional Trustee to establish, enforce,
foreclose or release, all of any portion of the Trust Estate located in West
Virginia in accordance with the direction of the Institutional Trustees on
behalf of the Beneficiary. Wherever this Mortgage contains a provision that
requires the Institutional Trustees to act at the direction of the Beneficiary,
such provisions shall be taken to mean that the West Virginia Jurisdictional
Trustee will act at the direction of the Institutional Trustees, who will act at
the direction of the Beneficiary.
(3) The Mortgagor hereby grants, conveys, warrants,
assigns, pledges, transfers and sets over to the West Virginia Jurisdictional
Trustee, in trust, with power of sale, all of owner's right, title and interest
in, to and under all of the property of the Trust Estate located in the State of
West Virginia and further described in the Granting Clauses, subject only to the
Permitted Exceptions.
(4) It shall be the duty of the West Virginia
Jurisdictional Trustee, when requested in writing to do so by the Institutional
Trustee acting at the direction of and on behalf of the Beneficiary, or the then
holder and owner of the indebtedness secured by this Mortgage, to enter upon and
take possession of
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any or all real property of the Trust Estate in the State of West Virginia and
sell the same at public auction at the front door of the courthouse of the
county wherein said property is situate, to the highest and best bidder for cash
in hand on day of sale. The West Virginia Jurisdictional Trustee shall first
give notice of the time, place and terms of sale by publication thereof once a
week for three (3) successive weeks in a qualified newspaper published in the
publication area wherein the property to be sold is situate. The West Virginia
Jurisdictional Trustee shall have all powers of sale granted to trustees of
trust deeds by the provisions of Chapter 38, Article 1 of the Code of West
Virginia, as amended. The Mortgagor hereby waives all personal service of the
notice of sale and all other notices, other than the notice by publication
required by law, upon the Mortgagor, its successors, and assigns. To the extent
not prohibited by applicable law, the Mortgagor waives all right, pursuant to
Sections 38-1-10 and 38-1-11 of the Code of West Virginia, as amended, to
required the West Virginia Jurisdictional Trustee to post a bond before making
any sale or receiving any of the proceeds of a sale under this Mortgage. Any
sale of property of the Trust Estate by the West Virginia Jurisdictional Trustee
may be adjourned from time to time without notice, other than oral proclamation
at the time and place appointed for sale from which the adjournment is made. It
is further expressly understood and agreed that in the event that any of the
property of the Trust Estate situate in the State of West Virginia is sold as
hereinabove provided, then out of the proceeds of sale shall first be paid the
costs and expenses intended upon the execution of this Trustee, including a
commission of five percent (5%) to said West Virginia Jurisdictional Trustee and
out of the balance of said proceeds, there shall next be paid to said
Beneficiary, or the then holder and owner of the indebtedness secured by this
Mortgage, such amount as may then be owing and unpaid hereon, together with any
additional sums which may have been advanced by Beneficiary as hereinabove
provided, and the balance of said fund, if any, shall be paid over to the
Mortgagor by said West Virginia Jurisdictional Trustee, its successors or
assigns, as their interests may appear. In the event foreclosure proceedings are
instituted under the provisions of this Deed of Trust, but are terminated for
any
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reason, the Trustee shall be entitled to charge and collect such fee and costs
as are permitted by law, which shall be paid by the Mortgagor.
(5) The West Virginia Jurisdictional Trustee need
only hold the following qualifications: (i) the West Virginia Jurisdictional
Trustee shall be an individual or entity qualified to be a trustee under a deed
of trust pursuant to West Virginia law; and (ii) shall be selected as a suitable
individual or entity in the sole discretion of the institutional Trustees acting
at the direction of and on behalf of the Beneficiary. Any successor to the West
virginia Jurisdictional Trustee shall be required to satisfy the eligibility
requirements under West Virginia law applicable to the West Virginia
Jurisdictional Trustee. the Institutional Trustees or their successors, may, at
the direction of, and on behalf of, the Beneficiary, or the then holder or owner
of the indebtedness secured by this Mortgage, substitute another West Virginia
Jurisdictional Trustee or West virginia Jurisdictional Trustees, in the place
and stead of the West Virginia Jurisdictional Trustee herein named to execute
the trust herein created. Upon such appointment, the new and substituted West
Virginia Jurisdictional Trustee or West Virginia Jurisdictional Trustees in each
instance shall be vested with all the rights, titles, interests and powers which
are vested in and conferred upon the West Virginia Jurisdictional Trustee herein
named, and such new and substituted West Virginia Jurisdictional Trustee or West
Virginia Jurisdictional Trustees shall be considered the successor(s) and
assign(s) of the West Virginia Jurisdictional Trustee named herein, and be
substituted in his place and stead. Each such appointment and substitution shall
be evidenced by an instrument in writing which shall recite the parties to, and
the book and page of record of, this Mortgage, which instruments, executed and
acknowledged by the Institutional Trustees and recorded in the office of the
clerk of the county commissions of the appropriate counties in the State of West
Virginia, shall be conclusive proof of the proper substitution and appointment
of such successor West Virginia Jurisdictional Trustee or West Virginia
Jurisdictional Trustee, and notice of such proper substitution and appointment
to all parties in interest.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Mortgage has been duly executed by
the Mortgagor on the date first hereinabove written.
WITNESS: Mortgagor:
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
/s/ Kristen Simat
-------------------------------
Name: Kristen Simat By: GLIMCHER PROPERTIES CORPORATION, a
Delaware corporation, its sole
general partner
By: /s/ George A. Schmidt
-------------------------------
Name: George A. Schmidt
Title: Executive Vice President
WITNESS: Beneficiary:
PRUDENTIAL SECURITIES CREDIT CORP., LLC,
a Delaware limited liability company
-------------------------------
Name: By: /s/ Helaine M. Kaye
-----------------------------------
Name: Helaine M. Kaye
Title: Vice President
<PAGE> 117
STATE OF NEW YORK )
) : ss.:
COUNTY OF New York )
On the 29th day of June in the year 2000 before me, the
undersigned, personally appeared George A. Schmidt, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument, and that
such individual made such appearance before the under-signed in the city of New
York, State of New York.
Elliot Adler
-------------------------------
Notary Public
(SEAL)
My Commission Expires: Nov. 15, 2001
STATE OF NEW YORK )
) : ss.:
COUNTY OF NEW YORK )
On the 28th day of June in the year 2000 before me, the
undersigned, personally appeared Helaine Kaye, personally known to me or proved
to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument, and that
such individual made such appearance before the under-signed in the city of New
York, State of New York.
/s/ Elliot Adler
-------------------------------
Notary Public
(SEAL)
My Commission Expires: Nov. 15, 2001
<PAGE> 118
EXHIBITS A1-A11
LAND PARCELS
Exhibit A - 1
<PAGE> 119
EXHIBIT B
PERMITTED EXCEPTIONS
Exhibit B - 2
<PAGE> 120
SCHEDULE 1
EXISTING NOTE
Schedule 1- 1
<PAGE> 121
SCHEDULE 2
EXISTING MORTGAGES
Schedule 2 - 1
<PAGE> 122
TABLE OF CONTENTS
RESTATEMENT OF MORTGAGE........................................................3
GRANTING CLAUSES...............................................................5
1. Definitions.....................................................10
REPRESENTATIONS, WARRANTIES AND COVENANTS.....................................16
2. Warranty........................................................17
3. Payment and Performance of Obligations Secured..................18
4. Negative Covenants..............................................18
5. Insurance.......................................................19
6. Condemnation and Insurance Proceeds.............................23
7. Impositions, Liens and Other Items..............................27
8. Funds for Taxes and Insurance...................................29
9. The Beneficiary and Trustees....................................30
10. Transfers, Additional Indebtedness and Subordinate Liens........38
11. Maintenance of Trust Estate; Alterations; Inspection;
Utilities.......................................................39
12. Legal Compliance................................................41
13. Books and Records, Financial Statements, Reports and Other
Information.....................................................41
14. Compliance with Leases and Agreements...........................41
15. The Beneficiary's Right to Perform..............................44
16. The Mortgagor's Existence; Organization and Authority;
Litigation......................................................45
17. Protection of Security; Costs and Expenses......................45
18. Management of the Properties....................................46
19. Environmental Matters...........................................46
20. Assignment of Rents.............................................48
21. Remedies........................................................49
22. Application of Proceeds.........................................55
23. WAIVER OF TRIAL BY JURY.........................................55
24. Taxes...........................................................55
25. Notices.........................................................56
26. No Oral Modification............................................58
27. Partial Invalidity..............................................58
28. Successors and Assigns..........................................58
29. Governing Law...................................................58
30. Recording Fees, Taxes, Etc......................................59
31. No Waiver.......................................................59
32. Further Assurances..............................................59
33. Additional Security.............................................59
34. Indemnification by the Mortgagor................................60
<PAGE> 123
35. Release.........................................................61
36. Security Agreement..............................................62
37. As to Property in Alabama.......................................64
38. As to Properties in Florida.....................................65
39. As to Properties in Illinois....................................67
40. As to Properties in Indiana.....................................67
41. ................................................................68
42. ................................................................70
43. As to Property in Missouri......................................71
44. As to Property in Nevada........................................74
45. As to Properties in New York....................................76
46. As to Properties in North Carolina. ............................78
47. As to Properties in Ohio........................................79
48. As to Properties in Pennsylvania................................80
49. As to Properties in Tennessee...................................83
50. As to Properties in Texas.......................................85
51. As to Property in Virginia......................................87
52. As to Property in Washington....................................94
53. As to Properties in West Virginia...............................94
<PAGE> 124
EXHIBIT A1-A12 Land Parcels
EXHIBIT B Permitted Exception
SCHEDULE 1 Existing Note
SCHEDULE 2 Existing Mortgage
