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Exhibit 10.137

 

 

TO BE RECORDED IN THE

MORTGAGE RECORDS AND

IN THE FIXTURE FILING RECORDS  OF

BOYD COUNTY, KENTUCKY

 

 

Maximum Principal Amount:  $46,282,500.00

 

COLLATERAL IS OR INCLUDES FIXTURES

 

MORTGAGE, ASSIGNMENT OF RENTS AND LEASES,

COLLATERAL ASSIGNMENT OF PROPERTY AGREEMENTS,

SECURITY AGREEMENT AND FIXTURE FILING

 

This Mortgage, Assignment of Rents and Leases, Collateral Assignment of Property Agreements, Security Agreement and Fixture Filing (as amended from time to time, this " Security Instrument ") is made, and is executed effective as of June 21, 2011, by ATC GLIMCHER, LLC , a Delaware limited liability company (together with its permitted successors and permitted assigns, " Borrower "), whose address for all purposes hereunder is c/o Glimcher Properties Limited Partnership, 180 East Broad Street, 21st Floor, Columbus, Ohio   43215, with an organizational identification number of 496052, for the benefit of GOLDMAN SACHS COMMERCIAL MORTGAGE CAPITAL, L.P. , a Delaware limited partnership (together with all of its successors and assigns, " Lender "), whose address for all purposes hereunder is 6011 Connection Drive, Suite 550, Irving, Dallas County, Texas 75039.  For all state law, statutory and other purposes hereunder, (i) the term "Borrower" as used herein shall be deemed to mean a mortgagor of the Property as described herein the same as if the term "mortgagor" were used in lieu of the term "Borrower" throughout this Security Instrument, and (ii) the term "Lender" as used herein shall be deemed to mean a mortgagee of this Security Instrument with respect to the Property with all of the rights conferred hereby the same as if the term "mortgagee" were used in lieu of the term "Lender" throughout this Security Instrument.

 

 

MORTGAGE, ASSIGNMENT OF RENTS AND LEASES,

COLLATERAL ASSIGNMENT OF PROPERTY AGREEMENTS,

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ARTICLE 1

 

DEFINITIONS

 

Section 1.1              Definitions .  As used herein, the following terms shall have the following meanings:

 

" Indebtedness ":  The sum of all principal, interest and other amounts due from Borrower under, or secured by, the Loan Documents.

 

" Loan Agreement ":  The Loan Agreement, dated as of the date hereof, by and between Lender, as lender, and Borrower, as borrower, as the same may be replaced, amended, supplemented, extended or otherwise modified from time to time.

 

" Loan Documents ":  The (1) Loan Agreement, (2) that certain promissory note, dated as of the date hereof, executed by Borrower pursuant to the Loan Agreement, in the original principal amount of $42,075,000.00 and having a maturity date of July 6, 2021 (as the same may be amended, restated, componentized, supplemented, modified, assigned in whole or in part, replaced and/or divided into multiple notes from time to time, the " Note " or " Notes ", as applicable) , (3) this Security Instrument and the other mortgages and deeds of trust executed by Borrower, or any other person or entity to evidence or secure the payment of the Indebtedness, pursuant to the Loan Agreement, (4) all other documents now or hereafter executed by Borrower, or any other person or entity to evidence or secure the payment of the Indebtedness, and (5) all modifications, restatements, extensions, renewals and replacements of the foregoing.

 

" Obligations ":  All of the agreements, covenants, conditions, warranties, representations and other obligations (other than to repay the Indebtedness) made or undertaken by Borrower (or the other obligors who are defined as Borrower in the Notes) under the Loan Documents.

 

" Property ":  All of the following, or any interest therein (whether now owned or hereafter acquired):

 

(1)           the real property described in Exhibit A attached hereto and made a part hereof, together with any greater estate therein as hereafter may be acquired by Borrower (the " Land "),

 

(2)            all buildings, structures and other improvements, now or at any time situated, placed or constructed upon the Land (the " Improvements "),

 

(3)           all right, title and interest of Borrower in and to all materials, machinery, supplies, equipment, fixtures, apparatus and other items of personal property now owned or hereafter acquired by Borrower and now or hereafter attached to, installed in or used in connection with any of the Improvements or the Land, including any and all partitions, dynamos, window screens and shades, drapes, rugs and other floor coverings, awnings, motors, engines, boilers, furnaces, pipes, plumbing, cleaning, call and sprinkler systems, fire extinguishing apparatus and equipment, water tanks, swimming pools, heating, ventilating, plumbing, lighting, communications and elevator fixtures, laundry, incinerating, air conditioning and air cooling equipment and systems, gas and electric machinery and equipment, disposals, dishwashers, furniture, refrigerators and ranges, securities systems, art work, recreational and pool equipment and facilities of all kinds, water, gas, electrical, storm and sanitary sewer facilities of all kinds, and all other utilities whether or not situated in easements together with all accessions, replacements, betterments and substitutions for any of the foregoing (the " Fixtures "),

 

 

MORTGAGE, ASSIGNMENT OF RENTS AND LEASES,

COLLATERAL ASSIGNMENT OF PROPERTY AGREEMENTS,

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(4)           all right, title and interest of Borrower in and to all goods, accounts, general intangibles, instruments, documents, accounts receivable, chattel paper, investment property, securities accounts and all other personal property of any kind or character, including such items of personal property as defined in the UCC, now owned or hereafter acquired by Borrower and now or hereafter affixed to, placed upon, used in connection with, arising from or otherwise related to the Land and/or the Improvements or that may be used in or relating to the planning, development, financing or operation of the Land and/or the Improvements, including furniture, furnishings, equipment, machinery, money, insurance proceeds, condemnation awards, accounts, contract rights, trademarks, goodwill, chattel paper, documents, trade names, licenses and/or franchise agreements, rights of Borrower under leases of Fixtures or other personal property or equipment, inventory, all refundable, returnable or reimbursable fees, deposits or other funds or evidences of credit or indebtedness deposited by or on behalf of Borrower with any governmental authorities, boards, corporations, providers of utility services, public or private, including specifically, but without limitation, all refundable, returnable or reimbursable tap fees, utility deposits, commitment fees and development costs and all refunds, rebates or credits in connection with a reduction in real estate taxes and assessments against the Land and/or Improvements as a result of tax certiorari or any applications or proceedings for reduction (the " Personalty "),

 

(5)           all reserves, escrows or impounds required under the Loan Agreement and all deposit accounts (including tenant's security and cleaning deposits and deposits with respect to utility services) maintained by or on behalf of Borrower with respect to the Land and/or Improvements,

 

(6)           all right, title and interest of Borrower in and to all plans, specifications, shop drawings and other technical descriptions prepared for construction, repair or alteration of the Improvements, and all amendments and modifications thereof (together with any and all modifications, renewals, extensions and substitutions of the foregoing,   the " Plans "),

 

(7)           subject to the rights of Borrower hereunder and under the Loan Agreement, all leasehold estates, leases, subleases, sub-subleases, licenses, concessions, occupancy agreements or other agreements (written or oral, now or at any time in effect and every modification, amendment or other agreement relating thereto, including every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto) which grant a possessory interest in, or the right to use or occupy, all or any part of the Land and/or Improvements, together with all related security and other deposits (together with any and all modifications, renewals, extensions and substitutions of the foregoing, the " Leases "),

 

 

MORTGAGE, ASSIGNMENT OF RENTS AND LEASES,

COLLATERAL ASSIGNMENT OF PROPERTY AGREEMENTS,

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(8)           subject to the rights of Grantor hereunder and under the Loan Agreement, all right, title and interest of Borrower in and to all of the rents, revenues, income, proceeds, issues, profits (including all oil or gas or other mineral royalties and bonuses), security and other types of deposits, and other benefits paid or payable and to become due or payable by parties to the Leases other than Borrower for using, leasing, licensing, possessing, occupying, operating from, residing in, selling or otherwise enjoying any portion or portions of the Land and/or Improvements (the " Rents "),

 

(9)           all right, title and interest of Borrower in and to all other contracts and agreements in any way relating to, executed in connection with, or used in, the development, construction, use, occupancy, operation, maintenance, enjoyment, acquisition, management or ownership of the Land and/or Improvements or the sale of goods or services produced in or relating to the Land and/or Improvements (together with any and all modifications, renewals, extensions and substitutions of the foregoing, the " Property Agreements "), including all right, title and interest of Borrower in, to and under (a) all construction contracts, architects' agreements, engineers' contracts, utility contracts, letters of credit, escrow agreements, maintenance agreements, management, leasing and related agreements, parking agreements, equipment leases, service contracts, operating leases, catering and restaurant leases and agreements, agreements for the sale, lease or exchange of goods or other property, agreements for the performance of services, permits, variances, licenses, certificates and entitlements, (b) all material agreements and instruments under which Borrower or any of its affiliates or the seller of the Property have remaining rights or obligations in respect of Borrower's acquisition of the Property or equity interests therein, (c) applicable business licenses, variances, entitlements, certificates, state health department licenses, liquor licenses, food service licenses, licenses to conduct business, certificates of need and all other permits, licenses and rights obtained from any Governmental Authority or private Person, (d) all rights of Borrower to receive monies due and to become due under or pursuant to the Property Agreements, (e) all claims of Borrower for damages arising out of or for breach of or default under the Property Agreements, (f) all rights of Borrower to terminate, amend, supplement, modify or waive performance under the Property Agreements, to compel performance and otherwise to exercise all remedies thereunder, and, with respect to Property Agreements that are letters of credit, to make any draws thereon, and (g) to the extent not included in the foregoing, all cash and non-cash proceeds, products, offspring, rents, revenues, issues, profits, royalties, income, benefits, additions, renewals, extensions, substitutions, replacements and accessions of and to any and all of the foregoing,

 

 

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COLLATERAL ASSIGNMENT OF PROPERTY AGREEMENTS,

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(10)           all right, title and interest of Borrower in and to all rights, privileges, titles, interests, liberties, tenements, hereditaments, rights-of-way, easements, sewer rights, water, water courses, water rights and powers, air rights and development rights, licenses, permits and construction and equipment warranties, appendages and appurtenances appertaining to the foregoing, and all right, title and interest, if any, of Borrower in and to any streets, ways, alleys, underground vaults, passages, strips or gores of land adjoining the Land or any part thereof,

 

(11)           all accessions, replacements, renewals, additions and substitutions for any of the foregoing and all proceeds thereof,

 

(12)           subject to the rights of Borrower hereunder or under the Loan Agreement, all insurance policies, unearned premiums therefor and proceeds from such policies, including the right to receive and apply the proceeds of any insurance, judgments or settlements made in lieu thereof, covering any of the above property now or hereafter acquired by Borrower,

 

(13)           all right, title and interest of Borrower in and to all mineral, riparian, littoral, water, oil and gas rights now or hereafter acquired and relating to all or any part of the Land and/or Improvements,

 

(14)           all of Borrower's right, title and interest in and to any awards, remunerations, reimbursements, settlements or compensation heretofore made or hereafter to be made by any Governmental Authority pertaining to the Land, Improvements, Fixtures or Personalty, and

 

(15)           all after acquired title to or remainder or reversion in any of the property (or any portion thereof) described herein.

 

" UCC ":  The Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.

 

Capitalized terms used herein but not otherwise defined shall have the respective meanings ascribed to such terms in the Loan Agreement.

 

ARTICLE 2

 

HABENDUM

 

Section 2.1            Grant .  To secure in part the full and timely payment of the Indebtedness and the full and timely performance of the Obligations, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower HAS MORTGAGED, GIVEN, WARRANTED, PLEDGED AND ASSIGNED, and does hereby MORTGAGE, GIVE, WARRANT, PLEDGE AND ASSIGN to Lender, with power of trust, its heirs, successors and assigns, the Property, TO HAVE AND TO HOLD all of the Property unto and, for the use and benefit of Lender, its heirs, successors and assigns in fee simple forever, and Borrower does hereby bind itself, its heirs, successors and assigns to WARRANT AND FOREVER DEFEND (i) the title to the Property unto Lender and its heirs, successors and assigns, subject only to Permitted Encumbrances and (ii) the validity and priority of the Liens of this Security Instrument, subject only to Permitted Encumbrances, in each case against the claims of all Persons whomsoever.

 

 

MORTGAGE, ASSIGNMENT OF RENTS AND LEASES,

COLLATERAL ASSIGNMENT OF PROPERTY AGREEMENTS,

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ARTICLE 3

 

DEFAULT AND FORECLOSURE

 

Section 3.1            Remedies .  If an Event of Default is continuing, Lender may, at Lender's election, take such action permitted at law or in equity, without notice or demand (except as explicitly provided in the Loan Agreement), as it deems advisable to protect and enforce its rights against Borrower and to the Property, including but not limited to, any or all of the following rights, remedies and recourses each of which may be pursued concurrently or otherwise, at such time and in such order as Lender may determine, in its sole discretion, without impairing or otherwise affecting the other rights and remedies of Lender:

 

(a)            Acceleration .  Declare the Indebtedness to be immediately due and payable, without further notice, presentment, protest, notice of intent to accelerate, notice of acceleration, demand or action of any nature whatsoever (each of which hereby is expressly waived by Borrower (except as provided in the Loan Agreement)), whereupon the same shall become immediately due and payable.

 

(b)            Entry on Property .  Enter the Property and take exclusive possession thereof and of all books, records and accounts relating thereto.  If Borrower remains in possession of the Property after the occurrence and during the continuation of an Event of Default and without Lender's prior written consent, Lender may invoke any legal remedies to dispossess Borrower.

 

(c)            Operation of Property .  Whether or not a receiver has been appointed pursuant to Section 3.1(e) hereof, hold, lease, develop, manage, operate, control and otherwise use the Property upon such terms and conditions as Lender may deem reasonable under the circumstances (making such repairs, alterations, additions and improvements and taking other actions, from time to time, as Lender deems reasonably necessary or desirable), exercise all rights and powers of Borrower with respect to the Property, whether in the name of Borrower or otherwise, including the right to make, cancel, enforce or modify leases, obtain and evict tenants, and demand, sue for, collect and receive all Rents, and apply all Rents and other amounts collected by Lender in connection therewith in accordance with the provisions of Section 3.7 hereof.  Without limiting the foregoing, Borrower covenants and agrees with Lender that Lender may, at its option, do all things provided to be done by a mortgagee under the Kentucky Revised Statute and any amendments or supplements thereto for the protection of Lender's interest in the Property.

 

 

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COLLATERAL ASSIGNMENT OF PROPERTY AGREEMENTS,

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(d)            Foreclosure and Sale .

 

(i)           Institute proceedings for the complete foreclosure of this Security Instrument, either by judicial action or by exercise of the STATUTORY POWER OF SALE or otherwise, in which case the Property may be sold for cash or credit in one or more parcels or in several interests or portions and in any order or manner.

 

(ii)          With respect to any notices required or permitted under the UCC, Borrower agrees that ten (10) Business Days' prior written notice shall be deemed commercially reasonable.  At any such sale by virtue of any judicial proceedings or any other legal right, remedy or recourse including power of sale, the title to and right of possession of any such property shall pass to the purchaser thereof, and to the fullest extent permitted by law, Borrower shall be completely and irrevocably divested of all of its right, title, interest, claim and demand whatsoever, either at law or in equity, in and to the property sold and such sale shall be a perpetual bar both at law and in equity against Borrower, and against all other persons claiming or to claim the property sold or any part thereof, by, through or under Borrower.  Lender may be a purchaser at such sale and if Lender is the highest bidder, may credit the portion of the purchase price that would be distributed to Lender against the Indebtedness in lieu of paying cash.

 

(e)            Receiver .  Prior to, concurrently with, or subsequent to the institution of foreclosure proceedings, make application to a court of competent jurisdiction for, and (to the extent permitted by applicable law) obtain from such court as a matter of strict right and without notice to Borrower or anyone claiming under Borrower or regard to the value of the Property or the solvency or insolvency of Borrower or the adequacy of any collateral for the repayment of the Indebtedness or the interest of Borrower therein, the appointment of a receiver or receivers of the Property, and Borrower irrevocably consents to such appointment.  Any such receiver or receivers shall have all the usual powers and duties of receivers in similar cases, including the full power to rent, maintain and otherwise operate the Property upon such terms as may be approved by the court, and shall apply such Rents in accordance with the provisions of Section 3.7 hereof.

 

(f)            Other .  Exercise all other rights, remedies and recourses granted under the Loan Documents or otherwise available at law or in equity (including an action for specific performance of any covenant contained in the Loan Documents, or a judgment on the Notes either before, during or after any proceeding to enforce this Security Instrument).

 

Section 3.2            Separate Sales .  The Property may be sold in one or more parcels and in such manner and order as Lender in its sole discretion, may elect, subject to applicable law; the right of sale arising out of any Event of Default shall not be exhausted by any one or more sales.

 

Section 3.3            Remedies Cumulative, Concurrent and Nonexclusive .  Lender shall have all rights, remedies and recourses granted in the Loan Documents and available at law or equity (including the UCC), which rights (a) shall be cumulative and concurrent and shall be in addition to every other remedy so provided or permitted, (b) may be pursued separately, successively or concurrently against Borrower, or against the Property, or against any one or more of them, at the sole discretion of Lender, (c) may be exercised as often as occasion therefor shall arise, and the exercise or failure to exercise any of them shall not be construed as a waiver or release thereof or of any other right, remedy or recourse, and (d) are intended to be, and shall be, nonexclusive.  No action by Lender in the enforcement of any rights, remedies or recourses under the Loan Documents or otherwise at law or equity shall be deemed to cure any Event of Default.

 

 

MORTGAGE, A


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