Indenture of Mortgage, Deed of Trust, Security Agreement, and Assignment of Leases and Rents between Glimcher Properties Limited Partnership and Prudential Securities Credit Corp., LLC (July 30, 2000)
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Summary
This agreement is between Glimcher Properties Limited Partnership (the mortgagor) and Prudential Securities Credit Corp., LLC (the lender/beneficiary), with a trustee acting on behalf of the lender. It secures a $127.5 million line of credit loan by granting the lender a mortgage and security interest in certain real estate properties, as well as an assignment of leases and rents. The mortgagor agrees to various obligations, including maintaining insurance, paying taxes, and complying with covenants. The agreement outlines remedies for default and other key terms to protect the lender’s interests.
EX-10.121 8 l86158aex10-121.txt EXHIBIT 10.121 1 INDENTURE OF MORTGAGE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT, FIXTURE FILING AND ASSIGNMENT OF LEASES AND RENTS from [GLIMCHER PROPERTIES LIMITED PARTNERSHIP/ WHOLLY OWNED SUBSIDIARY], as Debtor, Grantor and Mortgagor to [ ] as Trustee for the benefit of PRUDENTIAL SECURITIES CREDIT CORP., LLC, as Lender/Beneficiary/Mortgagee Dated as of July 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 ----------------------------- 2 TABLE OF CONTENTS
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2 4 EXHIBIT A Land Parcels EXHIBIT B Permitted Exception 3 5 INDENTURE OF MORTGAGE, DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT, FIXTURE FILING AND ASSIGNMENT OF LEASES AND RENTS THIS 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 ___ day of _____, 2000, made by [GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership/wholly-owned subsidiary, a _________] (the "Mortgagor"), having an address at 20 South Third Street, Columbus, Ohio ________, as debtor, grantor, trustor and mortgagor, in favor of ____________________________ ("Trustee") having an address at ________________________________________, as Trustee for the benefit of Prudential Securities Credit Corp., LLC, a Delaware limited liability company, 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"); and 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 1 6 the aggregate principal amount of One Hundred Twenty-Seven Million Five Hundred Thousand Dollars ($127,500,000) (the "Loan Amount"); and WHEREAS, the Mortgagor and the Beneficiary intend these recitals to be a material part of this 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 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 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"). 2 7 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 Section 37 provides 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 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 3 8 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). 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, 4 9 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 property 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 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 5 10 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 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 6 11 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 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, 7 12 and compliance with, the obligations, covenants and conditions of this Mortgage and the other Loan Documents all as herein set forth. 1 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. 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. 8 13 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: a) 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 such amount is due and payable in accordance with the provisions hereof; or b) Cancellation of the insurance required by Section 5 of this Mortgage; or c) 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 d) Any violation of the terms of Section 10 of this Mortgage; or e) An Event of Default (as defined therein) under the Credit Agreement; or f) 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 9 14 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 g) 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 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 10 15 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 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 11 16 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. 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. 12 17 Officers' Certificate: A certificate delivered to the Beneficiary and signed by the President or a Vice President of the Mortgagor. 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); (b) 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); (c) Deposits made in the ordinary course of business to secure liability to insurance carriers; (d) 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; (e) 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; (f) Those matters set forth on Exhibit B hereof; and (g) 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. 13 18 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: 2 Warranty. (a) This Mortgage upon its due execution and proper recordation is and will remain a valid, enforceable and perfected first Lien on and a security interest in the Trust Estate subject to the Permitted Exceptions; 14 19 (b) 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; (c) 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; (d) 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; (e) 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; (f) 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; (g) The Property and the Equipment located thereon constitute all of the real property, equipment and fixtures currently owned by the Mortgagor and used in the operation of the Property; (h) Each Property has adequate access to public streets, roads or highways; 15 20 (i) Each Property constitutes one or more separate tax lots, with a separate tax assessment, independent of any other land or improvements; (j) 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 (k) 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. 3. 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. 4. Negative Covenants. The Mortgagor covenants and agrees that it shall not: (a partition any Property; (b transfer all or any portion of the Trust Estate or any interest of the Mortgagor, except in accordance with the Credit Agreement; (c file a petition for voluntary bankruptcy under the Bankruptcy Code or similar state law; or (d dissolve, terminate, liquidate, merge with or consolidate into another Person, except as expressly permitted pursuant to this Mortgage or the Credit Agreement. 5. Insurance. 16 21 (a 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: (i) 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); (ii) 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 $1,000,000 per occurrence with combined single limit coverage for bodily injury or property damage and excess (umbrella) liability coverage of no less than $10,000,000 per occurrence; (iii) 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 maintained by the Mortgagor), with respect to any work on or about each of the Properties; (iv) 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, 17 22 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; (v) 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; (vi) 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 (vii) 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. (b 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 18 23 to Section 5(a) and which shall in any case comply in all other respects with the requirements of this Section 5. (c 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) 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 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 19 24 "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 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. (d 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. (e 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. (f 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), 20 25 (iv) a brief description of the typical construction type included in the blanket policy and (v) such other information as Beneficiary may reasonably request. 6. Condemnation and Insurance Proceeds. (a 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. (b 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, 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 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 21 26 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 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 the Work 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. (c 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 22 27 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. (d 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: (i) there shall be no continuing Event of Default hereunder; (ii) 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 Cash Equivalents or (B) an unconditional, irrevocable, clean sight draft letter of credit in commercially reasonable form and issued by an Approved Bank; and (iii) 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 23 28 Legal Requirements, including, without limitation, zoning, environmental and building laws, codes, ordinances and regulations. (e 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 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. (f 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. (g 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 24 29 to the payment or prepayment of all or any portion of the Indebtedness secured hereby. (h 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. (i 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 Property, and such Property shall be released from the lien and security interests of the Loan Documents. 7. Impositions, Liens and Other Items. (a 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. 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. (b 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 25 30 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 pursuant to Section 15 hereof, together with interest thereon at the Default Rate. (c 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, 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. 26 31 8. Funds for Taxes and Insurance. (a 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 Day's 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"). 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 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. (b 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 27 32 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 or otherwise applied in accordance with the terms of the Loan Documents. 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. (c 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. 9. 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. (a 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. (i) Except upon the occurrence and during the continuance of an Event of Default actually known to the Beneficiary, (A 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 28 33 obligations shall be read into this Mortgage or the Loan Documents against the Trustees; and (B 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. (ii) 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. (iii) No provision of this Mortgage shall be construed to relieve the Trustees from liability for their own gross negligence or willful misconduct, except that (A this Subsection shall not be construed to limit the effect of subsection (b) of this Section 9; (B 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 (C 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. (iv) 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). 29 34 (v) 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. (b 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 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. (i) 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. (ii) 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. (iii) To the extent permitted by law, but to such extent only, the Jurisdictional Trustee is appointed herein subject to the following terms, namely: (A Subject to the terms hereof and to the extent permitted by law, all rights, powers, duties and obligations under this Mortgage 30 35 granted to or imposed upon the Beneficiary and the Jurisdictional Trustee shall be exercised solely by the Beneficiary. (B 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 Jurisdictional Trustee at the written direction of the Beneficiary. (C 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. (D 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 31 36 such trustee such property, title, right or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Mortgagor. (E 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. (F Any notice delivered to the Beneficiary shall be deemed to have been sufficiently delivered without any delivery to the Jurisdictional Trustee. (G 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. (H 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 32 37 and delivered by the Mortgagor or the Beneficiary to the Successor Jurisdictional Trustee. (c The Mortgagor covenants and agrees: (i) to reimburse the Beneficiary and the Trustees from time to time for all reasonable, out-of-pocket costs and expenses incurred by them hereunder; (ii) 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 (iii) 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 Trustees and 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. (d) If an individual Person is named as Trustee on page 1 hereof, such individual is hereby appointed Individual Trustee for the State in which 33 38 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: (i) 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. (ii) 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 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. (iii) 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. (iv) 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 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 34 39 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. (v) 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. (vi) 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. (vii) Any notice delivered to the Beneficiary shall be deemed to have been sufficiently delivered without any delivery to the Individual Trustee. (viii) 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, 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 35 40 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. (e) 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. 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. 10. Transfers, Additional Indebtedness and Subordinate Liens. (a) 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 36 41 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"). (b) 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 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. 11. Maintenance of Trust Estate; Alterations; Inspection; Utilities. (a) 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. 37 42 (b) 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 a manner which could result in a Material Adverse Effect. (c) The Mortgagor shall have the right, without the Beneficiary's consent, to undertake any alteration, improvement, demolition or removal (any such alteration, improvement, demolition or removal, an "Alteration") of a Property or any portion thereof so long as any such Alteration is (i) 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. (d) 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 38 43 12. 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 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 taken as a whole. 13. Books and Records, Financial Statements, Reports and Other Information. (a) 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. (b) 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. 14. Compliance with Leases and Agreements. 39 44 (a) 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, 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 which with or without the giving of notice, the passage of time or both, may constitute a default under any of the Leases or Agreements. The Mortgagor will promptly notify the Beneficiary upon the occurrence of any of the foregoing events. (b) The Mortgagor may, at all times, lease to any Person space within any Property in a manner consistent with other industrial 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), (C) not entitle any Tenant to 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) in excess of ____% 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 40 45 (x) any change to any financial provision of the Lease being renewed or extended, or (y) any other material 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 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 Renewal Lease. In addition, the Mortgagor shall give the Beneficiary not less than one (1) Domestic Business Day's prior written notice (together with a copy of the proposed Renewal Lease) of any other proposed Renewal Lease prior to the execution thereof. 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 Lease. (c) 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 collect escalations, percentage rent and other charges in accordance with the terms of each Lease. (d) 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 ___% of the rentable square feet of the Improvements. All actual, out-of-pocket costs and expenses of the Beneficiary in connection with the negotiation, preparation, 41 46 execution and delivery of any nondisturbance agreement, including, without limitation, reasonable attorneys' fees and disbursements, shall be paid by the Mortgagor. (e) 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 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). 15. 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. 16. The Mortgagor's Existence; Organization and Authority; Litigation. The Mortgagor shall do all things necessary to preserve and keep in full force 42 47 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. 17. 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 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. 18. Management of the Properties. (a) The Mortgagor covenants and agrees with the Beneficiary that the Properties will be managed at all times in a manner consistent with past 43 48 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. (b) 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 and, if any such management agreement is so terminated, a substitute manager shall be appointed by the Beneficiary. 19. Environmental Matters. (a) The Mortgagor hereby represents and warrants that with respect to the Properties, except as set forth in the environmental reports delivered to the Beneficiary prior to the Closing Date or otherwise disclosed in writing to Beneficiary prior to the Closing Date (collectively, the "Environmental Reports") (i) the Mortgagor and the Properties (x) are in compliance in all material respects with all applicable Environmental Laws, (y) to Mortgagor's knowledge, has all material permits, licenses, approvals, rulings, variances, exemptions or other authorizations required under applicable Environmental Laws to operate the Trust Estate as presently conducted or as reasonably anticipated to be conducted, (z) has received no written communication, from a Governmental Authority or any other Person, alleging that the Mortgagor is not in full compliance with all Environmental Laws, and there are no events or circumstances, to the Mortgagor's knowledge, that may prevent or interfere with such full compliance in the future, (ii) there is no Environmental Claim pending or, to Mortgagor's knowledge, threatened against the Mortgagor, (iii) to the Mortgagor's knowledge, there are no past or present actions, activities, circumstances, conditions, events or incidents including, without limitation, the release, emission, discharge or disposal of any Material of Environmental Concern, that could reasonably be expected to form the basis of any Environmental Claim against the Mortgagor, (iv) without in any way limiting the generality of the foregoing and except as disclosed in the Environmental Reports (A) there are no sites on any Property in which the Mortgagor has stored (except in full compliance with Environmental Laws), disposed of or arranged for the disposal of Material of Environmental Concern, (B) to Mortgagor's knowledge, there are no underground storage tanks located on any Property (C) to Mortgagor's knowledge, there is no 44 49 asbestos contained in or forming a part of any Improvement on any Property in violation of any Environmental Laws, and (D) to Mortgagor's knowledge, no polychlorinated biphenyls (PCBs) are used or stored on any Property, except in compliance with Environmental Laws. (b) The Mortgagor covenants and agrees with the Beneficiary that it shall comply with all Environmental Laws, except for such instances of non-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. (c) 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 any such purchaser at or subsequent to a foreclosure sale. 20. Assignment of Rents. Beneficiary and the Mortgagor hereby confirm that Beneficiary has granted to the Mortgagor a license to collect and use the 45 50 Rents as 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. 21. 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: (a) 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. 46 51 (b) 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 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. (c) Foreclosure. (i) 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 47 52 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 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. (ii) 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. (iii) 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. (d) 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. (e) 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 48 53 proceedings for the foreclosure (or partial foreclosure) or enforcement of this Mortgage, to the fullest extent permitted by law. (f) Sale of Trust Estate; Application of Proceeds. (i) 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. (ii) 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. 49 54 (iii) 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, 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. (iv) 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. (g) 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 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 50 55 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. (h) 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. (i) 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. (j) 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 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. (k) 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 51 56 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. 22. 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 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. 23. 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 52 57 OUT OF OR IS CONNECTED WITH THIS MORTGAGE, THE NOTE OR ANY OTHER LOAN DOCUMENTS. 24. Taxes. (a) 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. (b) 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, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges of any nature whatsoever imposed by any taxing authority ("Taxes"), but excluding (i) United States Federal income taxes, (ii) New York State income taxes, and (iii) income taxes imposed by any other state. In the event that any withholding or deduction from any payment to be made by the Mortgagor hereunder is required in respect of any Taxes pursuant to any applicable law, rule or regulation, then the Mortgagor will: (i) pay directly to the relevant authority the full amount required to be so withheld or deducted; (ii) promptly forward to the Beneficiary an official receipt or other documentation satisfactory to the Beneficiary evidencing such payment to such authority; and (iii) pay to the Beneficiary such additional amount or amounts as is necessary to ensure that the net amount actually received by the Beneficiary will equal the full amount the Beneficiary would have received had no such withholding or deduction been required. Moreover, if any Taxes (except taxes discussed in subsections (i) through (iii) of this paragraph 24 (b)) are directly asserted against the Beneficiary with respect to any payment received by the Beneficiary under the Note, or hereunder, the Beneficiary may pay such Taxes and the Mortgagor will within five (5) Domestic Business Days pay such additional amounts (including any penalties, interest or expenses) as are necessary in order that the net amount received by such person after the payment of such Taxes (including any Taxes on such additional amount) shall equal the amount such person would have received had no such Taxes been asserted. (c) 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 53 58 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. 25. 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 telex or facsimile transmission, when such telex or facsimile is transmitted to the telex number or facsimile number specified in this Section and the appropriate answerback or facsimile confirmation is received, (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: _______________ Tel: ________________ Fax: ________________ With a copy to: Squire, Sanders & Dempsey 1300 Huntington Center 41 South High Street Columbus, OH ###-###-#### Attn: _______________ Tel: ________________ Fax: ________________ 54 59 To Beneficiary: Prudential Securities Credit Corp., LLC One New York Plaza 18th Floor New York, New York Attn: ______________ Tel: (212 ###-###-#### Fax: (212) 778-3194 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 26. 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. 27. 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. 28. 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 55 60 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. 29. 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 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. 30. 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. 31. 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. 32. Further Assurances. (a) 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 56 61 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. (b) 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. 33. 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 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. 34. 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 57 62 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 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 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 58 63 Beneficiary to give such notice to Mortgagor shall not affect Mortgagor's obligations hereunder. 35. Release. (a) 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 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 Borrower 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. (b) 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 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. 59 64 36. Security Agreement. (a) 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 37. If Section 37 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 37 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 specific statutory consequences now or hereafter enacted and specified in the UCC, all at Beneficiary's sole election. (b) Fixture Filing; Personal Property. This Mortgage constitutes a financing statement and, to the extent required under UCC "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 "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 60 65 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, 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. (c) 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, ______________ 37. As to Property in [ ] (1). [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] - ------------------ (1) This Section will be conformed to local law of any other jurisdiction in which any of the properties are located. 61 66 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 liability company - --------------------------------- Name: By: /s/ George A. Schmidt --------------------------------- Name: George A. Schmidt Title: Executive Vice President, General Counsel, Secretary and Trustee WITNESS: PRUDENTIAL SECURITIES CREDIT CORP., LLC, a Delaware limited liability company - --------------------------------- Name: By: /s/ George A. Schmidt --------------------------------- Name: George A. Schmidt Title: Executive Vice President, General Counsel, Secretary and Trustee 67 STATE OF ____________ ) ) : ss.: COUNTY OF __________ ) On the ___ day of ________ in the year 2000 before me, the undersigned, personally appeared _________________________________, 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 , State of . ------------------------------------ Notary Public (SEAL) My Commission Expires: _____________ STATE OF ____________ ) ) : ss.: COUNTY OF __________ ) On the ___ day of ________ in the year 2000 before me, the undersigned, personally appeared _________________________________, 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 , State of . ------------------------------------- Notary Public (SEAL) My Commission Expires: _____________ 68 EXHIBITS A1-A12 LAND PARCELS Exhibit A-1 69 EXHIBIT B PERMITTED EXCEPTIONS Exhibit B - 1
