EXHIBIT 10.3
OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that EM COLUMBUS, LLC, a Delaware
limited liability company, having an office at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇ ("Borrower"), in consideration of the payments to Borrower which THE
HUNTINGTON NATIONAL BANK, a national banking association, having an office at ▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Huntington"), has made
contemporaneously herewith or may hereafter make, does hereby GRANT, BARGAIN,
SELL AND CONVEY unto Huntington, its successors and assigns forever, certain
real property situated in the State of Ohio, County of Franklin and City of
Columbus, being more fully described in Exhibit "A" hereto and by this reference
made a part hereof (the "Property"), together with the following, whether now
owned or hereafter acquired by Borrower: (a) all improvements now or hereafter
attached to or placed, erected, constructed or developed on the Property
(collectively the "Improvements"); (b) all fixtures, furnishings, equipment,
inventory, and other articles of personal property (collectively the "Personal
Property") that are now or hereafter attached to or used in or about the
Improvements or that are necessary or useful for the complete and comfortable
use and occupancy of the Improvements for the purposes for which they were or
are to be attached, placed, erected, constructed or developed or that may be
used in or related to the planning, development, financing or operation of the
Improvements, and all renewals of or replacements or substitutions for any of
the foregoing, whether or not the same are or shall be attached to the
Improvements or the Property; (c) all water and water rights, timber, crops, and
mineral interests pertaining to the Property; (d) all building materials and
equipment now or hereafter delivered to and intended to be installed in or on
the Improvements or the Property; (e) all plans and specifications for the
Improvements; (f) all contracts relating to the Property, the Improvements or
the Personal Property; (g) all deposits (including, without limitation, tenants'
security deposits), bank accounts, funds, documents, contract rights, accounts,
commitments, construction agreements, architectural agreements, general
intangibles (including, without limitation, trademarks, trade names and
symbols), instruments, notes and chattel paper arising from or by virtue of any
transactions related to the Property, the Improvements or the Personal Property;
(h) all permits, licenses, franchises, certificates, and other rights and
privileges obtained in connection with the Property, the Improvements or the
Personal Property; (i) all proceeds arising from or by virtue of the sale, lease
or other disposition of the Property, the Improvements, the Personal Property or
any portion thereof or interest therein; (j) all proceeds (including, without
limitation, premium refunds) of each policy of insurance relating to the
Property, the Improvements or the Personal Property; (k) all proceeds from the
taking of any of the Property, the Improvements, the Personal Property or any
rights appurtenant thereto by right of eminent domain or by private or other
purchase in lieu thereof (including, without limitation, change of grade of
streets, curb cuts or other rights of access), for any public or quasi-public
use under any law; (l) all right, title and interest of Borrower in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Property; (m) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (n) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (o) other interests of every kind and character
that Borrower now has or at any time hereafter acquires in and to the Property,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Borrower with respect thereto (all
of the same, including the Property, collectively the "Mortgaged Property").
TO HAVE AND TO HOLD the Mortgaged Property, together with the rights,
privileges and appurtenances thereto belonging, unto Huntington and its
successors and assigns forever, and Borrower hereby binds itself and its
successors and assigns to warrant and forever defend the Mortgaged Property unto
Huntington and its successors and assigns, against the claim or claims of all
persons claiming or to claim the same or any part thereof, except as to those
matters set forth in the Title Commitment No. NCS-49296-T-CLE of First American
Title Insurance Company (the "Permitted Encumbrances").
This Open-End Mortgage, Assignment of Rents and Security Agreement (the
"Mortgage") is given for the purpose of securing loan advances which Huntington
is obligated to make to Borrower for the purchase and renovation of a
multi-tenant retail development on the Property (the "Project") pursuant to the
terms and conditions of a Loan Commitment Letter and Construction Loan
Agreement, each dated December 22, 2003 by and between Borrower and Huntington
(the "Loan Commitment") and (the "Loan Agreement") respectively, which Loan
Commitment and Loan Agreement are by this reference made a part hereof.
The parties hereto intend that, in addition to any other indebtedness
or obligations secured hereby, the Mortgage shall secure unpaid balances of loan
advances made after the Mortgage is delivered to the Recorder for record. Such
loan advances are and will be evidenced by a note or notes of Borrower. The
maximum amount of unpaid loan indebtedness, which shall consist of unpaid
balances of loan advances made either before or after, or both before and after,
the Mortgage is delivered to the Recorder for record, exclusive of interest
thereon and of advances for taxes, assessments, insurance premiums and costs
incurred for protection of the Mortgaged Property, which may be outstanding at
any time is Thirty Six Million And 00/100 Dollars ($36,000,000.00).
THE MORTGAGE IS GIVEN TO SECURE: the full and prompt payment, whether
at stated maturity, accelerated maturity or otherwise, of any and all
indebtedness, whether fixed or contingent (collectively the "Indebtedness") and
the complete, faithful and punctual performance of any and all other obligations
(collectively the "Obligations") of Borrower to Huntington under the terms and
conditions of (a) the Loan Commitment; (b) the Loan Agreement (c) the Note, of
even date herewith, made by Borrower to Huntington, in the principal amount of
Thirty Six Million And 00/100 Dollars ($36,000,000.00), payable not later than
January 1, 2007, and any and all renewals, amendments, modifications, reductions
and extensions thereof and substitutions therefor (collectively the "Note"); (d)
the Mortgage; and (e) any other instrument, document, certificate or affidavit
heretofore, now or hereafter given by Borrower evidencing or securing or by any
person guaranteeing (the "Guarantors") all or any part of the foregoing (the
same together with the Loan Commitment, Loan Agreement, the Note and the
Mortgage, collectively the "Loan Documents").
Borrower, for itself and its successors and assigns, hereby covenants
with Huntington, its successors and assigns, that:
1. TITLE. Borrower represents that it has good and marketable
title in fee simple to the Mortgaged Property, free and clear from all
conditions, restrictions, easements, liens, encumbrances and adverse claims
whatsoever, except the Permitted Encumbrances. If the interest of Huntington in
the Mortgaged Property or any part thereof shall be endangered or shall be
attacked, directly or indirectly, Borrower hereby authorizes Huntington, at
Borrower's expense, to take all necessary and proper steps for the defense of
such interest, including the employment of counsel, the prosecution or defense
of litigation and the compromise or discharge of claims made against such
interest. Any sums so expended by Huntington shall be charged against Borrower
and collectible in accordance with the terms of Section 12 hereof.
2. FURTHER ASSURANCES. Borrower shall furnish to Huntington
evidence of the title of Borrower to the Mortgaged Property at the execution and
delivery hereof and from time to time hereafter, but not more than once
annually, and Borrower shall promptly pay the cost of said title evidence when
due and payable.
Borrower, upon the request of Huntington, shall execute, acknowledge,
deliver, file and record such further instruments and do such further acts as
may be necessary, desirable or proper to carry out the purposes of the Loan
Documents and to subject to the liens and security interests created thereby any
property intended by the terms thereof to be covered thereby, including
specifically, but without limitation, any renewals, additions, substitutions,
replacements, improvements or appurtenances to the Mortgaged Property.
3. SUBROGATION FOR FURTHER SECURITY. Huntington shall be
subrogated for its further security to the lien, although released of record, of
any and all encumbrances paid with any advance of Indebtedness; provided,
however, that the terms and provisions hereof shall
govern the rights and remedies of Huntington and shall supersede the terms,
provisions, rights, and remedies under the lien or liens to which Huntington is
subrogated.
4. STATUS QUO. Subject to the provisions contained in the partial
release provision provided for herein in Section 29 and except as expressly
permitted herein or except with the written consent of Huntington, which consent
may be withheld in Huntington's sole discretion, Borrower shall not (a) sell,
assign, mortgage, pledge, ground lease or otherwise convey or further encumber
the Mortgaged Property, or any portion thereof, or legal, equitable or
beneficial interest therein; (b) sell, assign, pledge or otherwise transfer any
beneficial interests in Borrower which individually or in the aggregate would
have the effect of transferring the power to direct the operations of Borrower
or the Mortgaged Property; (c) contract for any of the same; (d) permit the
Mortgaged Property, or any portion thereof, or legal, equitable or beneficial
interest therein, to be subject to any superior or inferior lien or encumbrance;
(e) subdivide, resubdivide or submit to the condominium form of ownership all or
any portion of the Mortgaged Property, or any portion thereof; or (f) initiate
or acquiesce in any change in the zoning classification of the Property or any
portion thereof.
5. PAYMENT OF INDEBTEDNESS. Borrower shall promptly pay the
Indebtedness as the same becomes due and payable.
6. ESTOPPEL CERTIFICATE. Borrower shall furnish to Huntington
within ten (10) days of any written request of Huntington, a written statement,
duly acknowledged by Borrower, setting forth the sums secured by the Mortgage
and any right of set-off, counterclaim or other defense which Borrower alleges
to exist against such sums and obligations secured by the Mortgage.
7. TAXES AND OTHER IMPOSITIONS. Borrower shall promptly pay
before delinquency all taxes, assessments, charges, fines or impositions,
general, local or special (collectively the "Impositions"), levied upon the
Mortgaged Property, or any part thereof, or upon Huntington's interest therein,
or upon the Mortgage or the Indebtedness, by any duly or legally constituted
public authority, municipality, township, county or state or the United States,
and exhibit the evidence of the payment thereof to Huntington within seven (7)
days after request by Huntington; provided that Borrower, at Borrower's own cost
and expense may, if it shall in good faith so desire, contest the validity or
amount of any Impositions, in which event Borrower may defer the payment thereof
for such period as such contest shall be actively prosecuted and shall be
pending undetermined; further provided, however, that Borrower shall not allow
any such Impositions so contested to remain unpaid for such length of time as
shall permit all or any portion of the Mortgaged Property, or the lien thereon
created by such item, to be sold by federal, state, county or municipal
authority for the nonpayment thereof.
In the event that one or more of the Impositions on Huntington's
interest in the Mortgaged Property, the Mortgage or the Indebtedness cannot be
lawfully paid by Borrower, then Borrower shall repay the Indebtedness in full
without penalty within sixty (60) days after demand therefor by Huntington.
8. INSURANCE AND INDEMNIFICATION. Borrower shall provide,
maintain and keep in force at all times the following policies of insurance:
(a) Insurance against loss or damage to the Improvements
and the Personal Property caused by fire and any of the risks covered by
insurance of the type now known as "coverage against all risks of physical
loss", in an amount equal to one hundred percent (100%) of the replacement cost
of the Improvements and the Personal Property and sufficient to prevent Borrower
and Huntington from becoming co-insurers, and otherwise with terms and
conditions acceptable to Huntington;
(b) Comprehensive broad form general liability insurance,
insuring against any and all claims for personal injury, death or property
damage occurring on, in or about the Property, the Improvements and the
adjoining streets, sidewalks and passageways, subject to a combined single limit
of not less than Two Million Dollars ($2,000,000.00) for personal injury, death
or property damage arising out of any one accident and a general aggregate limit
of not less than Five Million Dollars ($5,000,000.00), and otherwise with terms
and conditions acceptable to Huntington;
(c) Worker's compensation insurance (including employer's
liability insurance, if available and requested by Huntington) for all employees
of Borrower engaged on or with respect to the Property and the Improvements in
the limits established by law or, if limits are not so established, in such
amounts as are acceptable to Huntington;
(d) During the course of any development or construction
of the Improvements, builder's completed value risk insurance against "all risks
of physical loss", including collapse and transit coverage, in the amounts set
forth in Subsection 8(a) above, and otherwise with terms and conditions
acceptable to Huntington;
(e) Upon obtaining a certificate of occupancy for the
Improvements or any portion thereof, business interruption insurance and/or loss
of "rental value" insurance in an amount not less than the appraised rentals for
the Mortgaged Property for a minimum of twelve (12) months, and otherwise with
terms and conditions acceptable to Huntington;
(f) If the Improvements are located in a
federally-designated flood hazard area, then flood hazard coverage, in the
maximum amount available and otherwise with terms and conditions acceptable to
Huntington; and
(g) Such other insurance coverage, and in such amount, as
may from time to time be required by Huntington against the same or other
hazards, provided such insurance is available at commercially reasonable prices.
All such policies shall be in a form acceptable to Huntington. Each
policy of casualty insurance shall contain a mortgagee clause, substantially in
the form of the standard New York mortgagee clause or otherwise acceptable to
Huntington, showing Huntington as mortgagee. Each policy of liability insurance
shall show Huntington as an additional insured. Unless the policy so provides,
each policy of insurance required by the terms of the Mortgage shall contain an
endorsement by the insurer, for the benefit of Huntington, (i) that any loss
shall be payable in accordance with the terms of such policy notwithstanding any
act or negligence of Borrower which might otherwise result in forfeiture of said
insurance, (ii) that any rights of set-off, counterclaim or deductions against
Borrower are waived and (iii) that such policy shall not be canceled or changed
except upon not less than thirty (30) days prior written notice delivered to
Huntington.
All such insurance policies and renewals thereof shall be written by
companies with a Best's Insurance Reports policy holders rating of A+ and a
financial size category of Class XV or be expressly approved by Huntington in
writing.
Huntington shall have the right to hold the certificates thereof
acceptable to Huntington with certified copies of the policies, and Borrower
shall promptly furnish to Huntington all renewal notices and all receipts of
paid premiums. At least thirty (30) days prior to the expiration date of any
such policy, Borrower shall deliver to Huntington a renewal policy, or
certificate thereof, in form acceptable to Huntington.
By its acceptance of this Mortgage, Huntington acknowledges that the
certificates of insurance delivered to it as of the date hereof, fulfill the
requirements of this Section 8.
If Huntington is made a party defendant to any litigation concerning
the Loan Documents or the Mortgaged Property or any part thereof or interest
therein or the occupancy thereof by Borrower, then Borrower shall indemnify,
defend and hold Huntington harmless from all liability by reason of said
litigation, including reasonable attorneys' fees and expenses incurred by
Huntington in any such litigation, whether or not any such litigation is
prosecuted to judgment. Borrower waives any and all right to claim or recover
against Huntington, its officers, employees, agents and representatives, for
loss of or damage to Borrower, the Mortgaged Property, other property of
Borrower or the property of others under control of Borrower from any cause
insured against or required to be insured against by the provisions of the
Mortgage.
Borrower shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section unless Huntington has approved the insurance company and the form and
content of the insurance policy, including,
without limitation, the naming thereon of Huntington as a named insured with
loss payable to Huntington under a standard mortgage clause of the character
above described. Borrower shall immediately notify Huntington whenever any such
separate insurance is taken out and shall promptly deliver to Huntington copies
of the policies and certificates evidencing such insurance.
Nothing contained in this Section 8 shall prevent Borrower from keeping
the Improvements and Personal Property insured or causing the same to be insured
against the risks referred to in this Section 8 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Mortgage; provided, however, that any such policy of blanket insurance (i) shall
specify therein the amount of the total insurance allocated to the Improvements
and Personal Property, which amount shall be not less than the amount otherwise
required to be carried under the Mortgage; (ii) shall not contain any clause
which would result in the insured thereunder becoming a co-insurer of any loss
with the insurer under such policy; and (iii) shall in all other respects comply
with the provisions of the Mortgage.
That after the happening of any casualty to the Mortgaged Property or
any part thereof, Borrower shall give prompt written notice thereof to
Huntington and:
(x) In the event of any damage or destruction to the
Improvements, Huntington shall have the option in its sole discretion of
applying all or part of the insurance proceeds: (i) to the Indebtedness and in
such order as Huntington may determine, but without penalty or premium; or (ii)
to the restoration of the Improvements; or (iii) to Borrower. Provided, however,
that such proceeds shall be made available for restoration if, in Lender's
judgment: (i) sufficient funds are available and/or committed, including
insurance proceeds to complete the restoration; and (ii) there is no Event of
Default (as hereinafter defined). If the insurance proceeds are to be applied
toward the restoration of the Improvements, such sums shall be deposited in
escrow with the Huntington as escrow agent for the purpose of repairing,
restoring or reconstructing the Improvements. Such proceeds shall be disbursed
by the Huntington from time to time as work progresses, provided that prior to
any disbursement, Huntington is in receipt of proof reasonably satisfactory to
it that the work has been completed, and further provided that the Huntington is
in receipt of proof reasonably satisfactory to it that there are no outstanding
mechanic's liens or materialmen's liens and that all charges, costs and expenses
incurred with respect to work completed have been paid for in full or will be
paid for in full with such proceeds. Repair, restoration or reconstruction of
the damaged or destroyed Improvements must be substantially equal in size,
quality and value to the Improvements then presently erected on the Mortgaged
Property as existed immediately prior to the loss or reconstruction and must be
approved by Lender. The adjustment of such insurance proceeds with the carrier
thereof must be approved by Lender. Any funds or insurance proceeds remaining
after the completion of such repair, restoration or replacement shall be paid to
Borrower if there is no Event of Default, but if there is an Event of Default
may, at the option of the Lender, be applied by Huntington to the indebtedness
secured hereby without incurring any penalty or premium for prepayment.
(y) In the event of such loss or damage, all proceeds of
insurance shall be payable to Lender, and Borrower hereby authorizes and directs
any affected insurance carrier to make payment of such proceeds directly to
Lender. After an Event of Default, Huntington is hereby authorized and empowered
by Borrower to settle, adjust or compromise any claim for loss, damage or
destruction under any policy or policies of insurance; and
(z) Nothing contained in this Mortgage shall be deemed to
excuse Borrower from repairing or maintaining the Mortgaged Property as provided
in this Mortgage or restoring all damage or destruction to the Mortgaged
Property as herein provided, regardless of whether or not there are insurance
proceeds available or whether any such proceeds are sufficient in amount, and
the application or release by Huntington of any insurance proceeds shall not
cure or waive any Event of Default (hereinafter defined) or notice of an Event
of Default under this Mortgage or invalidate any act done pursuant to such
notice of and Event of Default.
9. ESCROW. Borrower, in order to more fully protect the security
of the Mortgage, does hereby covenant and agree that, if Borrower shall fail to
timely pay taxes, assessments or insurance premiums as provided above, or if
there is an Event Of Default and Huntington does not then elect to exercise its
other remedies, then Borrower shall, upon request of Huntington, pay to
Huntington on the first day of each month, until the Indebtedness is fully paid,
a sum
equal to one-twelfth (1/12) of the known or estimated yearly taxes, assessments,
premiums for such insurance as may be required by the terms hereof and, if
applicable, any replacement reserve amounts payable by Borrower. Huntington
shall hold such monthly payments which may be mingled with its general funds,
without obligation to pay interest thereon, unless otherwise required by
applicable law, to pay such taxes, assessments, and insurance premiums when due.
Borrower agrees that sufficient funds shall be so accumulated for the payment of
said charges one (1) month prior to the due date thereof and that Borrower shall
furnish Huntington with proper statements covering the same fifteen (15) days
prior to the due dates thereof. In the event of foreclosure of the Mortgage, or
if Huntington should take a deed in lieu of foreclosure, the amount so
accumulated shall be credited on account of the unpaid principal or interest. If
the total of the monthly payments as made under this Section 9 shall exceed the
payments actually made by Huntington, such excess shall be credited on
subsequent monthly payments of the same nature, but if the total of such monthly
payments so made under this Section 9 shall be insufficient to pay such taxes,
assessments, and insurance premiums then due, then said Borrower shall pay upon
demand the amount necessary to make up the deficiency, which payments shall be
secured by the Mortgage. To the extent that all the provisions of this Section 9
for such payments of taxes, assessments, and insurance premiums to Huntington,
are complied with, Borrower shall be relieved of compliance with the covenants
contained in Sections 7 and 8 herein as to the amounts paid only, but nothing
contained in this Section 9 shall be construed as in any way limiting the rights
of Huntington at its option to pay any and all of said items when due.
10. WASTE; REPAIR. Borrower shall neither commit nor permit any
waste on the Property and shall keep all Improvements now or hereafter erected
on the Property in good condition and repair.
11. ALTERATIONS; CONSTRUCTION. Without the prior written consent
of Huntington, or as provided in the Loan Agreement, Borrower shall not remove,
demolish or alter any of the Improvements, now existing or hereafter constructed
on the Property, or any of the Personal Property in or on the Property or
Improvements, except when incident to the replacement of any of the items of
Personal Property with items of like kind and value. All Improvements hereafter
erected shall be erected according to the plans and specifications approved by
Huntington.
12. ADVANCES SECURED BY MORTGAGE. Upon failure of Borrower to
comply with any of these covenants and agreements as to the payment of taxes,
assessments, insurance premiums, repairs, protection of the Mortgaged Property
or Huntington's lien thereon, and other charges and the costs of procurement of
title evidence and insurance as aforesaid, Huntington may, at its option, pay
the same, and any sums so paid by Huntington, together with the reasonable fees
of counsel employed by Huntington in consultation and in connection therewith,
shall be charged against Borrower, shall be immediately due and payable by
Borrower, shall bear interest at the Default Rate of Interest (as defined in the
Note) and shall be a lien upon the Mortgaged Property and be secured by the
Mortgage and may be collected in the same manner as the principal debt hereby
secured.
13. USE. Unless Huntington otherwise agrees in writing, Borrower
shall not allow changes in the nature of the occupancy for which the Property
and Improvements were intended at the time the Mortgage was executed. Borrower
shall comply with the laws, ordinances, regulations and requirements of any
governmental body applicable to the Mortgaged Property, both during the
construction of any Improvements on the Property and subsequent to the
completion thereof, and Borrower shall not permit the use thereof for any
illegal purpose.
14. INSPECTION. Any person authorized by Huntington shall have the
right to enter upon and inspect the Mortgaged Property at all reasonable times
and upon reasonable notice to Borrower. Huntington shall have no duty, however,
to make such inspections. Any inspection of the Mortgaged Property by Huntington
shall be entirely for its benefit, and Borrower shall in no way rely or claim
reliance thereon.
15. MINERALS. Without the prior written consent of Huntington,
there shall be no drilling or exploring for, or extraction, removal, or
production of, minerals from the surface or subsurface of the Property. The term
"minerals" as used herein shall include, without limitation, oil, gas,
casinghead gas, coal, lignite, hydrocarbons, methane, carbon dioxide, helium,
uranium and all other natural elements, compounds and substances, including sand
and gravel.
16. CONDEMNATION. If all or any part of the Property or
Improvements are damaged, taken or acquired, either temporarily or permanently,
in any condemnation proceeding or by exercise of the right of eminent domain or,
with Huntington's consent, by any conveyance in lieu thereof, the amount of any
award or other payment for such taking, or conveyance or damages made in
consideration thereof, to the extent of the full amount of the then remaining
unpaid Indebtedness, is hereby assigned to Huntington, and Huntington is
empowered to collect and receive the same and to give proper receipts therefor
in the name of Borrower, and the same shall be paid forthwith to Huntington. Any
award or payment so received by Huntington may at the option of Huntington be
retained and applied, in whole or in part, to the Indebtedness (whether or not
then due and payable) in such manner as Huntington may determine or released in
whole or in part to Borrower upon terms satisfactory to Huntington for the
purpose of altering, restoring or rebuilding any part of the Mortgaged Property
which may have been altered, damaged or destroyed as a result of such taking,
alteration or proceedings, but Huntington shall not be obligated to see to the
application of any funds so released. Provided, however, that if: (i) in
Lender's judgment, sufficient funds are available or committed to complete the
restoration; and (ii) there is no Event of Default; the condemnation proceeds
shall be made available for rebuilding or restoration of the Improvements upon
the same conditions that are provided in Section 8 hereof with respect to
insurance proceeds.
17. ASSIGNMENT OF RENTS AND LEASES.
(a) Borrower hereby absolutely and unconditionally
assigns, transfers and sets over unto Huntington and Huntington's successors and
assigns all present and future leases covering all or any part of the Mortgaged
Property (the "Leases"), together with any extensions or renewals thereof and
any guaranties of any tenants' obligations thereunder, and all of the rents,
royalties, bonuses, income, receipts, revenues, issues and profits now due or
which may hereafter become due under the Leases or any extensions or renewals
thereof, as well as all moneys due and to become due to Borrower under the
Leases for services, materials or installations supplied whether or not the same
were supplied under the terms of the Leases, all liquidated damages following
default under the Leases and all proceeds payable under any policy of insurance
covering loss of rents resulting from untenantability caused by damage to any
part of the Mortgaged Property (such rents, income, receipts, revenues, issues,
profits and other moneys assigned hereby are hereinafter collectively called
"Rents"), together with any and all rights and remedies which Borrower may have
against any tenant under any of the Leases or others in possession of the
Mortgaged Property or any part thereof for the collection or recovery of Rents
so assigned. Prior to an Event of Default, as hereinafter defined, Borrower
shall have a license to collect and receive all Rents as trustee for the benefit
of Huntington and Borrower.
(b) Borrower hereby represents, warrants and agrees that:
(i) Borrower has good title to the Leases and
Rents hereby assigned and has the right, power and capacity to make this
assignment. No person or entity other than Borrower has or will have any right,
title or interest in or to the Landlord's in the Leases or Rents, except for the
Permitted Encumbrances.
(ii) Borrower shall, at Borrower's sole cost and
expense, perform and discharge all of the obligations and undertakings of the
landlord under the Leases and give prompt notice to Huntington of any failure to
do so. Borrower shall use all reasonable efforts to enforce or secure the
performance of each and every obligation and undertaking of the tenants under
the Leases and shall appear in and prosecute or defend any action or proceeding
arising under, or in any manner connected with, the Leases or the obligations
and undertakings of the tenants thereunder.
(iii) Borrower shall generally operate and
maintain the Mortgaged Property in a manner to insure maximum Rents.
(iv) Borrower shall not pledge, transfer,
mortgage or otherwise encumber or assign the Leases or the Rents.
(v) With respect to Leases of space of 7,500
square feet or greater Borrower shall not (1) waive, excuse, condone or in any
manner release or discharge any tenant
under any of the Leases; (2) disaffirm, cancel, terminate or consent to any
surrender of any of the Leases; (3) modify, extend or in any way alter the terms
of any of the Leases; (4) renew or extend any of the Leases, except pursuant to
terms in existing Leases; (5) permit any assignment of any of the Leases; or (6)
collect Rents more than thirty (30) days prior to accrual.
(vii) With respect to Leases of space of 7,500
square feet or greater, no settlement for damages for termination of any of the
Leases under the Federal Bankruptcy Code, or under any other federal, state, or
local statute, shall be made without the prior written consent of Huntington,
which consent may be withheld in Huntington's sole discretion, and any check in
payment of such damages shall be made payable to both Borrower and Huntington.
Borrower hereby assigns any such payment to Huntington, to be applied to the
Indebtedness as Huntington may elect, and agrees to endorse any check for such
payment to the order of Huntington.
(viii) To Borrower's knowledge, all existing Leases
are valid, unmodified and in full force and effect, there are no existing
defaults under any of the Leases. Borrower has not performed any act or executed
any instrument which might prevent Huntington from operating under any of the
terms and provisions thereof or which would limit Huntington in such operation.
(ix) All future Leases of space of 7,500 square
feet or greater shall be subject to the approval of Huntington as to form and
content, including the identity and creditworthiness of the tenant. Borrower
shall provide to Huntington, with each prospective lease, financial statements
for the prospective tenant and any guarantor and plans, specifications and costs
for any tenant finish to be provided by Borrower. Borrower shall deliver to
Huntington originals of each of the Leases once fully executed. Unless otherwise
directed by Huntington, all Leases shall specifically provide that such Leases
are subordinate to the Mortgage; that the tenant attorns to Huntington, such
attornment to be effective upon Huntington's acquisition of title to the
Mortgaged Property; that the tenant agrees to execute such further subordination
and attornment agreements and estoppel certificates as Huntington may from time
to time request; that the attornment of the tenant shall not be terminated by
foreclosure; and that Huntington may, at Huntington's option, accept or reject
such attornment.
(c) Huntington shall not be obligated to perform or
discharge any obligation or duty to be performed or discharged by Borrower under
any of the Leases; and except for Huntington's own gross negligence or willful
misconduct Borrower hereby agrees to indemnify Huntington for, and to save
Huntington harmless from, any and all liability, damage or expense arising from
any of the Leases or from this assignment, including, without limitation, claims
by tenants for security deposits or for rental payments more than one (1) month
in advance and not delivered to Huntington. All amounts indemnified against
hereunder, including reasonable attorneys' fees if paid by Huntington, shall
bear interest at the Default Rate of Interest, as defined in the Note, and shall
be payable by Borrower immediately without demand and shall be secured hereby.
This assignment shall not place responsibility for the control, care,
management, or repair of the Mortgaged Property upon Huntington or make
Huntington responsible or liable for any negligence in the management,
operation, upkeep, repair or control of same resulting in loss or damage or
injury or death to any party.
(d) Upon the occurrence of an Event of Default as
hereinafter defined:
(i) All Rents assigned hereunder shall be paid
directly to Huntington, and Huntington may notify the tenants under the Leases
(or any other parties in possession of the Mortgaged Property) to pay all of the
Rents directly to Huntington at the address specified in Section 27 hereof, for
which this assignment shall be sufficient warrant;
(ii) Huntington shall have the right to forthwith
enter and take possession of the Mortgaged Property and to manage, operate,
lease and develop the same; to collect as hereunder provided all or any Rents
payable under the Leases; to make repairs as Huntington deems appropriate; and
to perform such other acts in connection with the management, operation,
development, leasing and construction of the Mortgaged Property as Huntington,
in its sole discretion, may deem proper; and
(iii) Huntington shall have the right to forthwith
enter into and upon the Mortgaged Property and take possession thereof, and to
appoint an agent, or in the event of the
institution of foreclosure proceedings to have a receiver appointed, without
notice to Borrower, for the collection of the Rents.
In the event that Huntington shall pursue its remedies under
Subsections 17(d)(ii) or (iii) above, the net income, after allowing a
reasonable fee for the collection thereof and the management of the Mortgaged
Property, may be applied toward the payment of taxes, assessments, insurance
premiums, repairs, protection of the Mortgaged Property or Huntington's lien
thereon, and other charges against the Mortgaged Property and the costs of
procurement of such insurance and of evidence of title to the Mortgaged
Property, or any of them, or in the reduction of the Indebtedness and the
payment of interest, as Huntington may elect. If the Rents are not sufficient to
meet the costs, if any, of taking control of and managing the Mortgaged Property
and collecting the Rents, any funds expended by Huntington for such purposes
shall become indebtedness of Borrower to Huntington secured by the Mortgage.
Unless Huntington and Borrower agree in writing to other terms of payment, such
amounts shall be payable upon demand from Huntington to Borrower and shall bear
interest from the date of disbursement at the Default Rate of Interest stated in
the Note.
The exercise or failure to exercise any of the above remedies shall not
in any way preclude or abridge the right of Huntington to foreclose the Mortgage
or to take any other legal or equitable action thereon. Huntington shall have
such rights or privileges as aforesaid regardless of the value of the Mortgaged
Property given as security hereunder, and regardless of the solvency or
insolvency of any party bound for the payment of the Indebtedness or the other
sums hereby secured.
(e) Borrower hereby authorizes and directs the tenants
under the Leases to pay Rents to Huntington upon written demand by Huntington,
without further consent of Borrower, and the tenants may rely upon any written
statement delivered by Huntington to the tenants. Any such payment to Huntington
shall constitute payment to Borrower under the Leases.
(f) There shall be no merger of the leasehold estates
created by the Leases with the fee estate of the Property and Improvements
without the prior written consent of Huntington.
18. SECURITY AGREEMENT. The Mortgage is intended to be a security
agreement pursuant to the Uniform Commercial Code as enacted in the State of
Ohio (the "UCC") for any of the Mortgaged Property comprising personal property
and fixtures which may be subject to a security interest pursuant to the UCC,
and Borrower hereby grants to Huntington a security interest in said personal
property and fixtures, whether said property is now existing or hereafter
acquired, together with replacements, replacement parts, additions, repairs and
accessories incorporated therein or affixed thereto and, if sold or otherwise
disposed of, the proceeds (including insurance proceeds) thereof. Borrower
consents to the filing by Huntington of UCC financing statements covering said
personal property and fixtures from time to time and in such form as Huntington
may require to perfect or maintain the priority of Huntington's security
interest with respect to said personal property and fixtures, and Borrower shall
bear all costs thereof, including all UCC searches reasonably required by
Huntington. Borrower shall not create or suffer to be created any other security
interest in said personal property and fixtures, including replacements thereof
and additions thereto. Upon the occurrence of any Event of Default as set forth
in Section 19 hereof, Huntington shall have the remedies of a secured party
under the UCC and, at Huntington's option, may also invoke the remedies provided
in Section 19 hereof with respect to such property.
19. DEFAULT. The term "Event of Default" shall have the same
meaning as set forth in the Note, which meaning is incorporated by this
reference herein.
Upon the occurrence of any such Event of Default, at the option of
Huntington, without notice or demand, the same being hereby expressly waived,
the entire amount shall become immediately due and payable, and, in addition to
any other right or remedy which Huntington may now or hereafter have at law, in
equity, or under the Loan Documents, Huntington shall have the right and power:
(a) to foreclose upon the Mortgage and the lien hereof; (b) to sell the
Mortgaged Property according to law; (c) to enter upon and take possession of
the Mortgaged Property and/or have a receiver appointed therefor as set forth in
Section 17 hereof; and (d) to
complete the acquisition, development, construction and equipping of the
Improvements and the Mortgaged Property, as provided in the Loan Agreement.
20. NO WAIVER. The failure of Huntington to exercise any option to
declare the maturity of the principal debt or any other sums hereby secured
under any provision of any of the Loan Documents, or to forbear from exercising
any right or remedy available to Huntington under any provision of any of the
other Loan Documents, shall not be deemed a waiver of the right to exercise such
option, right or remedy or declare such maturity as to such past, continuing or
subsequent violation of any of the covenants and agreements of the Loan
Documents. Acceptance by Huntington of partial payments shall not constitute a
waiver of any Event of Default. From time to time, Huntington may, at
Huntington's option, without giving notice to or obtaining the consent of
Borrower, Borrower's successors or assigns, any junior lienholder or any of the
Guarantors, without liability on Huntington's part and notwithstanding
Borrower's breach of any covenant or agreement of Borrower in the Mortgage,
extend the time for payment of the Indebtedness, or any part thereof, reduce the
payments thereon, release anyone liable on any of said Indebtedness, accept a
renewal note or notes therefor, release from the lien of the Mortgage any part
of the Mortgaged Property, take or release other or additional security,
reconvey any part of the Mortgaged Property, consent to any map or plan of the
Mortgaged Property, consent to the granting of any easement, join in any
extension or subordination agreement, or agree in writing with Borrower to
modify the rate of interest or period of amortization of the Note or to change
the amount of the monthly installments payable thereunder. Any actions taken by
Huntington pursuant to the terms of this Section 20 shall not affect the
obligation of Borrower or Borrower's successors or assigns to pay the sums
secured by the Mortgage and to observe the covenants of Borrower contained
herein, shall not affect the guaranty of any of the Guarantors, and shall not
affect the lien or priority of lien of the Mortgage on the Mortgaged Property.
Borrower shall pay Huntington a reasonable service charge, together with such
title insurance premiums and reasonable attorney's fees as may be incurred at
Huntington's option for any such action if taken at Borrower's request.
21. PARCELS; WAIVER OF MARSHALLING. In the event of foreclosure of
the Mortgage, the Mortgaged Property may be sold in one or more parcels or as an
entirety as Huntington may elect.
Notwithstanding the existence of any other security interests in the
Mortgaged Property held by Huntington or by any other party, Huntington shall
have the right to determine the order in which any or all of the Mortgaged
Property shall be subjected to the remedies provided herein. Huntington shall
have the right to determine the order in which any or all portions of the
Indebtedness are satisfied from the proceeds realized upon the exercise of the
remedies provided herein. Borrower, any party who becomes liable for Borrower's
obligations and covenants under the Mortgage, and any party who now or hereafter
acquires a security interest in the Mortgaged Property, or any portion thereof,
hereby waives any and all right to require the marshalling of assets in
connection with the exercise of any of the remedies permitted by applicable law
or provided herein.
22. COSTS OF COLLECTION. Borrower hereby agrees to pay to
Huntington all costs of foreclosing the Mortgage, and all costs of enforcing,
collecting and securing, and of attempting to enforce, collect and secure, the
Note, including, without limitation, reasonable attorneys' fees, appraisers'
fees, court costs, notice charges and title insurance charges, whether such
attempt be made by suit, in bankruptcy, or otherwise, and such costs and any
other sums due Huntington under the Loan Documents may be included in any
judgment or decree rendered.
23. RENT ROLL AND FINANCIAL STATEMENTS. Borrower shall maintain
full and correct books and records open to Huntington's inspection showing in
detail the income, expenses and earnings of Borrower and of the Mortgaged
Property, and shall provide Huntington the following:
(a) a rent roll of the Mortgaged Property, certified by
the chief executive or financial officer of Borrower, within thirty (30) days
after the end of each fiscal year of Borrower subsequent to completion of the
Improvements, or as requested from time to time by Huntington, containing the
name of each tenant, square footage of leased premises, annual rent, rent per
square foot, lease commencement date and lease expiration date;
(b) a financial statement for Borrower consisting of a
balance sheet and a complete itemized statement of annual income and operating
expenses of Borrower, prepared in accordance with generally accepted accounting
principles or otherwise in form acceptable to Huntington and certified by
Borrower's chief executive or financial officer, within ninety (90) days after
the end of each fiscal year of Borrower, or as requested from time to time by
Huntington;
(c) a copy of each executed state or federal tax return,
within thirty (30) days after the last date that the same can be filed without
imposition of a penalty for late filing; and
(d) such other financial information as Huntington may
require, when requested from time to time by Huntington.
Upon request of Huntington, Borrower shall cause any or all of the
financial statements described above to be duly audited and certified by an
independent certified public accountant satisfactory to Huntington, but not more
often than annually.
24. HAZARDOUS SUBSTANCES. (a) Borrower hereby covenants and agrees
with Huntington that the following terms shall have the following meanings:
(i) "Environmental Laws" mean all federal, state
and local laws, statutes, ordinances and codes relating to the use, storage,
treatment, generation, transportation, processing, handling, production or
disposal of any Hazardous Substance and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives with respect
thereto.
(ii) "Hazardous Substance" means, without
limitation, any flammable explosives, radioactive materials, asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, petroleum and petroleum
based products, methane, hazardous materials, hazardous wastes, hazardous or
toxic substances or related materials, as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Sections 2601, et seq.), or any
other applicable Environmental Law.
(iii) "Indemnitee" means Huntington, its
participants in the loan evidenced by the Note and all subsequent holders of the
Mortgage, their respective successors and assigns, their respective officers,
directors, employees, agents, representatives, contractors and subcontractors
and any subsequent owner of the Property and Improvements who acquires title
thereto from or through Huntington.
(iv) "Release" has the same meaning as given to
that term in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.) and the
regulations promulgated thereunder.
(b) Except for matters disclosed in the environmental
report heretofore furnished to Huntington, Borrower represents and warrants to
Huntington that, to its knowledge after due investigation: (i) the Property and
Improvements are not being or have not been used for the storage, treatment,
generation, transportation, processing, handling, production or disposal of any
Hazardous Substance in violation of any Environmental Laws; (ii) the Property
and Improvements do not contain any Hazardous Substances in violation of any
Environmental Laws; (iii) there has been no Release of any Hazardous Substance
on, at or from the Property and Improvements or any property adjacent to or
within the immediate vicinity of the Property and Improvements and Borrower has
not received any form of notice or inquiry with regard to such a Release or
threat of such a Release; (iv) no event has occurred with respect to the
Property and Improvements which, with the passage of time or the giving of
notice, or both, would constitute a violation of any applicable Environmental
Law; (v) there are no agreements or orders or directives of any federal, state
or local governmental agency or authority relating to the Property and
Improvements which require any work, repair, construction, containment, clean
up, investigations, studies, removal or other remedial action with respect to
the Property and Improvements; and (vi) there are no actions, suits, claims or
proceedings, pending or threatened,
which seek any remedy, that arise out of the condition, ownership, use,
operation, sale, transfer or conveyance of the Property and Improvements and (1)
a violation or alleged violation of any applicable Environmental Law, (2) the
presence of any Hazardous Substance or a Release of any Hazardous Substance or
the threat of such a Release, or (3) human exposure to any Hazardous Substance.
(c) Borrower covenants and agrees with Huntington as
follows:
(i) Borrower shall keep, and shall cause all
operators, tenants, subtenants, licensees and occupants of the Property and
Improvements to keep, the Property and Improvements free of all Hazardous
Substances, except for Hazardous Substances stored, treated, generated,
transported, processed, handled, produced or disposed of in the normal operation
of the Property and Improvements as a shopping center in accordance with all
Environmental Laws.
(ii) Borrower shall comply with, and shall cause
all operators, tenants, subtenants, licensee and occupants of the Property and
Improvements to comply with, all Environmental Laws.
(iii) Borrower shall promptly provide Huntington
with a copy of all notifications which it gives or receives with respect to any
past or present Release of any Hazardous Substance or the threat of such a
Release on, at or from the Property and Improvements or any property adjacent to
or within the immediate vicinity of the Property and Improvements.
(iv) Borrower shall undertake and complete all
investigations, studies, sampling and testing for Hazardous Substances required
by Huntington and, in accordance with all Environmental Laws, all removal and
other remedial actions necessary to contain, remove and clean up all Hazardous
Substances that are determined to be present at the Property and Improvements in
violation of any Environmental Laws.
(v) Huntington shall have the right, but not the
obligation, to cure any violation by Borrower of the Environmental Laws and
Huntington's cost and expense to so cure shall be secured by the Mortgage.
(d) Except for matters caused by Huntington's own gross
negligence or willful misconduct, Borrower covenants and agrees, at its sole
cost and expense, to indemnify, defend and save harmless Indemnitee from and
against any and all damages, losses, liabilities, obligations, penalties,
claims, litigation, demands, defenses, judgments, suits, actions, proceedings,
costs, disbursements and/or expenses (including, without limitation, reasonable
attorneys' and experts' fees and expenses) of any kind or nature whatsoever
which may at any time be imposed upon, incurred by or asserted or awarded
against Indemnitee arising out of the condition, ownership, use, operation,
sale, transfer or conveyance of the Property and Improvements and (i) the
storage, treatment generation, transportation, processing, handling, production
or disposal of any Hazardous Substance, (ii) the presence of any Hazardous
Substance or a Release of any Hazardous Substance or the threat of such a
Release, (iii) human exposure to any Hazardous Substance, (iv) a violation of
any Environmental Law, or (v) a material misrepresentation or inaccuracy in any
representation or warranty or material breach of or failure to perform any
covenant made by Borrower herein (collectively, the "Indemnified Matters").
The liability of Borrower to Indemnitee hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (i) the repayment of all
sums and the satisfaction of all obligations of Borrower under the Note, the
Mortgage or other Loan Documents, (ii) the foreclosure of the Mortgage or the
acceptance of a deed in lieu thereof, (iii) any amendment or modification of the
Loan Documents by or for the benefit of Borrower or any subsequent owner of the
Property and Improvements, (iv) any extensions of time for payment or
performance required by any of the Loan Documents, (v) the release or discharge
of the Mortgage or of Borrower, any of the Guarantors or any other person from
the performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents whether by Huntington, by
operation of law or otherwise, (vi) the invalidity or unenforceability of any of
the terms or provisions of the Loan Documents, (vii) any exculpatory provision
contained in any of the Loan Documents limiting Huntington recourse to property
encumbered by the Mortgage or to any other security or limiting Huntington
rights to a deficiency judgment against Borrower, (viii) any applicable statute
of limitations, (ix) the sale or assignment of the Note or the Mortgage, (x) the
sale, transfer or conveyance of all or part of the Property and Improvements,
(xi) the dissolution or liquidation of Borrower, (xii) the death or legal
incapacity of Borrower, (xiii) the release or discharge, in whole or in part, of
Borrower in any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding, or (xiv) any other
circumstances which might otherwise constitute a legal or equitable release or
discharge, in whole or in part, of Borrower under the Note or the Mortgage.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Borrower may have to Huntington at common law.
25. SUBORDINATE MORTGAGES. Borrower shall not, without the prior
written consent of Huntington, which consent may be withheld in Huntington's
sole discretion, grant or permit to be created any lien, security interest or
other encumbrance, other than Permitted Encumbrances, covering any of the
Mortgaged Property (each a "Subordinate Mortgage"). If Huntington consents to a
Subordinate Mortgage or if the foregoing prohibition is determined by a court of
competent jurisdiction to be unenforceable, any such Subordinate Mortgage shall
contain express covenants to the effect that:
(a) the lien of the Subordinate Mortgage and all
instruments incorporated therein by reference is and always shall be
unconditionally subordinate to the lien of the Mortgage and to all advances made
pursuant to, and sums secured by, the Mortgage, and the Mortgage and all
instruments incorporated herein by reference may be renewed, extended,
restructured, modified, increased or reinstated at any time without giving
notice to or obtaining the consent of the Subordinate Mortgage holder;
(b) if any action shall be instituted to foreclose or
otherwise enforce the Subordinate Mortgage, no tenant of any of the Leases shall
be named as a party defendant and no action shall be taken which would terminate
any occupancy or tenancy without the prior written consent of Huntington;
(c) in the event of any conflict between the covenants
and agreements of the Mortgage and the Subordinate Mortgage, the covenants and
agreements of the Mortgage shall prevail;
(d) Rents, if collected by or for the holder of the
Subordinate Mortgage, shall be applied first to the payment of the Indebtedness
and expenses incurred in the ownership, operation and maintenance of the
Mortgaged Property in such order as Huntington may determine, prior to being
applied to any indebtedness secured by the Subordinate Mortgage;
(e) a copy of any notice of default under the Subordinate
Mortgage and written notice and opportunity to cure of not less than thirty (30)
days prior to the commencement of any action to foreclose or otherwise enforce
the Subordinate Mortgage shall be given to Huntington; and
(f) the holder of the Subordinate Mortgage shall
acknowledge the existence of the Indebtedness secured hereby and further
acknowledge that the lien of the Mortgage shall at all times be and remain
superior and prior to the lien of the Subordinate Mortgage to the extent of the
entire Indebtedness secured hereby, notwithstanding any change in the variable
rate of interest being charged under the Note.
26. PRIORITY OF MORTGAGE LIEN. Huntington, at Huntington's option,
is authorized and empowered to do all things provided to be done by a mortgagee
under Section 1311.14 of the Ohio Revised Code, and any present or future
amendments or supplements thereto, for the protection of Huntington's interest
in the Mortgaged Property.
27. NOTICE. Any notice required or permitted to be given hereunder
shall be in writing. If mailed by first class United States mail, postage
prepaid, registered or certified with return receipt requested, then such shall
be effective upon its deposit in the mails. Notice given in any other manner
shall be effective only if and when received by the addressee. For purposes
of notice, the addresses of Borrower and Huntington shall be as set forth below;
provided however, that either party shall have the right to change such party's
address for notice hereunder to any other location within the continental United
States by the giving of thirty (30) days' notice to the other party.
If to Borrower: EM COLUMBUS, LLC
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Executive Vice President
If to Huntington: The Huntington National Bank
Commercial Real Estate Group
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
28. MISCELLANEOUS. The covenants herein contained shall bind, and
the benefits and advantages shall inure to, the respective successors and
assigns of the parties hereto. Whenever used, the singular number shall include
the plural, the plural the singular, and the use of any gender shall include all
genders. If any provision of the Mortgage is illegal, or hereafter rendered
illegal, or is for any other reason void, voidable or otherwise unenforceable,
or hereafter rendered void, voidable or otherwise unenforceable, the remainder
of the Mortgage shall not be affected thereby, but shall be construed as if it
does not contain such provision. Each right and remedy provided in the Mortgage
is distinct and cumulative to all other rights or remedies under the Mortgage or
afforded by law or equity, and may be exercised concurrently, independently or
successively, in any order whatsoever. The Mortgage shall be governed by and
construed under the laws of the State of Ohio.
29. PARTIAL RELEASES. If there is no Event of Default, Huntington
shall release a tract to be conveyed to the May Department Stores Company
(▇▇▇▇▇▇▇▇'▇) from the operation of its Loan Documents without the payment of any
release price, provided that the following conditions are satisfied to
Huntington's satisfaction at no cost or expense to Huntington: (a) Huntington
has received evidence that a validly created and approved lot split has been
obtained of the tract to be released from the mall Property; (b) the size and
location of the tract to be released is satisfactory in all respects to
Huntington; (c) a satisfactory survey and legal description for the tract to be
released have been furnished to Huntington; and (d) reciprocal easement rights
(the "Easement Rights") between the tract to be released and the mall property
have been created to the satisfaction of Huntington.
HUNTINGTON, BY ACCEPTANCE OF THIS MORTGAGE, AND BORROWER HEREBY
MUTUALLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE FOR THE BENEFIT OF
THE OTHER ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE LOAN DOCUMENTS, THE TRANSACTIONS RELATED
THERETO OR THE RELATIONSHIP ESTABLISHED THEREBY. THIS PROVISION IS A MATERIAL
INDUCEMENT TO HUNTINGTON AND BORROWER TO ENTER INTO THIS TRANSACTION. IT SHALL
NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY HUNTINGTON'S ABILITY TO
PURSUE ITS REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR
COGNOVIT PROVISION CONTAINED IN THE LOAN DOCUMENTS.
PROVIDED, HOWEVER, that these presents are upon the condition that if
Borrower shall fully and promptly pay when due the Indebtedness and shall
completely, faithfully and punctually perform all of the Obligations under the
terms and conditions of the Loan Documents, then the Mortgage shall be void;
otherwise it shall remain in full force and effect in law and equity forever.
IN WITNESS WHEREOF, Borrower has caused the Mortgage to be executed as
of the _________ day of ________________, 2003.
Borrower:
EM Columbus, LLC,
a Delaware limited liability company
By: Glimcher Properties Limited Partnership,
a Delaware limited partnership, its member
By: Glimcher Properties Corporation,
a Delaware corporation,
its General Partner
By:____________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice
President
STATE OF OHIO
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this ____________
day of ____________________, 2003, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice
President of Glimcher Properties Corporation, a Delaware corporation, and
General Partner of Glimcher Properties Limited Partnership, a Delaware limited
partnership and Member of EM Columbus, LLC, a Delaware limited liability
company, on behalf of the limited liability company
_______________________________________________
Notary Public
Commission Expiration:_________________________
This Instrument Prepared By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Attorney at Law
Porter, Wright, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
The Huntington National Bank
Commercial Real Estate Group
January 3, 1994 Revision