<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) June 17, 1997 (May 15, 1997)
Commission file number 1-12482
GLIMCHER REALTY TRUST
(Exact name of registrant as specified in its charter)
MARYLAND 31-1390518
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
20 SOUTH THIRD STREET
COLUMBUS, OHIO 43215
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (614) 621-9000
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ITEM 5. OTHER EVENTS.
On May 15, 1997, Glimcher Properties Limited Partnership ("GPLP"), a
Delaware limited partnership and an affiliate of Glimcher Realty Trust ("GRT"),
a Maryland real estate investment trust, amended its existing credit facility
(the "Credit Facility") with The Huntington National Bank, KeyBank National
Association and certain other participant banks by entering into a Second
Amended and Restated Loan Agreement, dated as of May 15, 1997, with: The
Huntington National Bank; KeyBank National Association; Fleet National Bank;
Star Bank, National Association; PNC Bank, Ohio, National Association; The
Provident Bank; National City Bank of Columbus; and Bankers Trust Company. The
amended Credit Facility provides for an increase in the amount that GPLP can
borrow thereunder from $175 million to $190 million, extends the term thereof
from June 30, 1998 to July 31, 1998, and provides an option to extend the term
to July 31, 1999. The amended Credit Facility also provides for a reduction in
the tiered interest rate schedule with borrowings bearing interest at a variable
rate which initially is equal to LIBOR plus 160 basis points per annum. The
Credit Facility previously was unsecured but is now secured by, among other
things, first lien mortgages/deeds of trust, assignment of rents and security
agreements on the following eleven (11) shopping centers: The Mall at Fairfield
Commons, Beavercreek, Ohio; Indian Mound Mall, Heath, Ohio; New Towne Mall, New
Philadelphia, Ohio; Clarksville Plaza, Clarksville, Indiana; East Pointe Plaza,
Marysville, Ohio; Morgantown Plaza, Star City, West Virginia; Ohio River Plaza,
Gallipolis, Ohio; Plaza Vista Mall, Sierra Vista, Arizona; Steamboat Bend,
Hannibal, Missouri; Middletown Plaza, Middletown, Ohio; and Stewart Plaza,
Mansfield, Ohio. Payments due under the amended Credit Facility are guaranteed
by GRT and by Glimcher Properties Corporation ("GPC"), a Delaware corporation
and a wholly owned subsidiary of GRT.
2
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements of Businesses Acquired.
None
(b) Pro Forma Financial Information.
None
(c) Exhibits.
10.1 Second Amended and Restated Loan Agreement dated as
of May 15, 1997 by and among Glimcher Properties
Limited Partnership ("GPLP") as borrower; Glimcher
Realty Trust ("GRT") and Glimcher Properties
Corporation ("GPC") as guarantors; The Huntington
National Bank ("Huntington"), KeyBank National
Association ("KeyBank"), Fleet National Bank
("Fleet"), Star Bank, National Association ("Star"),
PNC Bank, Ohio, National Association ("PNC"), The
Provident Bank ("Provident"), National City Bank of
Columbus ("National City"), and Bankers Trust Company
("Bankers Trust") as lenders; Huntington and KeyBank
as co-agents; and Huntington as administrative agent.
10.2 Form of Revolving Note for each of the eight (8)
individual notes, dated May 15, 1997 and executed by
GPLP to:
a. Huntington in the amount of $32.5 million;
b. KeyBank in the amount of $32.5 million;
c. Fleet in the amount of $20 million;
d. Star in the amount of $20 million;
e. PNC in the amount of $25 million;
f. Provident in the amount of $10 million;
g. National City in the amount of $20 million; and
h. Bankers Trust in the amount of $30 million.
10.3 Form of Guaranty for each of the eight (8) individual
guarantees, dated May 15, 1997 and issued by GRT in
favor of:
a. Huntington to the extent of $32.5 million;
b. KeyBank to the extent of $32.5 million;
c. Fleet to the extent of $20 million;
d. Star to the extent of $20 million;
e. PNC to the extent of $25 million;
f. Provident to the extent of $10 million;
g. National City to the extent of $20 million; and
3
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h. Bankers Trust to the extent of $30 million.
10.4 Form of Guaranty for each of the eight (8) individual
guarantees, dated May 15, 1997 and issued by GPC in
favor of:
a. Huntington to the extent of $32.5 million;
b. KeyBank to the extent of $32.5 million;
c. Fleet to the extent of $20 million;
d. Star to the extent of $20 million;
e. PNC to the extent of $25 million;
f. Provident to the extent of $10 million;
g. National City to the extent of $20 million; and
h. Bankers Trust to the extent of $30 million.
10.5 Security Agreement - Interest Rate Protection
Contract dated May 15, 1997 executed by GPLP in favor
of Huntington as Administrative Agent for the
lenders.
10.6 Form of the Open-End Mortgage, Assignment of Rents
and Security Agreement for each of the three (3)
individual mortgages, dated May 15, 1997 and issued
to Huntington as Administrative Agent for the lenders
on the following shopping center properties:
a. The Mall at Fairfield Commons, Beavercreek, Ohio;
b. Indian Mound Mall, Heath, Ohio;
c. New Towne Mall, New Philadelphia, Ohio;
10.7 Form of the Open-End Mortgage, Assignment of Rents
and Security Agreement for each of the four (4)
individual mortgages, dated May 15, 1997 and issued
to Huntington as Administrative Agent for the lenders
on the following shopping center properties:
a. East Pointe Plaza, Marysville, Ohio;
b. Ohio River Plaza, Gallipolis, Ohio;
c. Middletown Plaza, Middletown, Ohio; and
d. Stewart Plaza, Mansfield, Ohio.
10.8 Mortgage, Assignment of Rents and Security Agreement
on Clarksville Plaza, Clarksville, Indiana, dated as
of May 15, 1997 issued by GPLP to Huntington as
Administrative Agent for the lenders.
10.9 A Credit Line Deed of Trust, Assignment of Rents and
Security Agreement on Morgantown Plaza, Star City,
West Virginia, dated May 15, 1997 between GPLP, John
T. Poffenbarger as Trustee, and Huntington as
Administrative Agent for the lenders.
4
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10.10 Deed of Trust, Security Agreement, Assignment of
Rents and Fixture Filing on Plaza Vista Mall, Sierra
Vista, Arizona, dated May 15, 1997 between GPLP,
Chicago Title Insurance Company as Trustee, and
Huntington as Administrative Agent for the lenders.
10.11 Deed of Trust, Assignment of Rents and Security
Agreement on Steamboat Bend, Hannibal, Missouri,
dated May 15, 1997 between GPLP, William A. Denney as
Trustee and Huntington as Administrative Agent for
the lenders.
5
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SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated as of this 17th day of June, 1997.
GLIMCHER REALTY TRUST
By: /s/ William G. Cornely
---------------------------------
William G. Cornely,
Senior Vice President and
Chief Financial Officer
6
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GLIMCHER REALTY TRUST
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT PAGE
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<S> <C> <C>
10
10.1 Second Amended and Restated Loan Agreement dated
as of May 15, 1997 by and among Glimcher Properties
Limited Partnership ("GPLP") as borrower; Glimcher
Realty Trust ("GRT") and Glimcher Properties
Corporation ("GPC") as guarantors; The Huntington
National Bank ("Huntington"), KeyBank National
Association ("KeyBank"), Fleet National Bank
("Fleet"), Star Bank, National Association ("Star"),
PNC Bank, Ohio, National Association ("PNC"), The
Provident Bank ("Provident"), National City Bank of
Columbus ("National City"), and Bankers Trust
Company ("Bankers Trust") as lenders; Huntington and
KeyBank as co-agents; and Huntington as
administrative agent.
97
10.2 Form of Revolving Note for each of the eight (8)
individual notes, dated May 15, 1997 and executed by
GPLP to:
a. Huntington in the amount of $32.5 million;
b. KeyBank in the amount of $32.5 million;
c. Fleet in the amount of $20 million;
d. Star in the amount of $20 million;
e. PNC in the amount of $25 million;
f. Provident in the amount of $10 million;
g. National City in the amount of $20 million; and
h. Bankers Trust in the amount of $30 million.
100
10.3 Form of Guaranty for each of the eight (8) individual
guarantees, dated May 15, 1997 and issued by GRT in
favor of:
a. Huntington to the extent of $32.5 million;
b. KeyBank to the extent of $32.5 million;
c. Fleet to the extent of $20 million;
d. Star to the extent of $20 million;
e. PNC to the extent of $25 million;
f. Provident to the extent of $10 million;
g. National City to the extent of $20 million; and
h. Bankers Trust to the extent of $30 million.
</TABLE>
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<TABLE>
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PAGE
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<S> <C> <C>
104
10.4 Form of Guaranty for each of the eight (8) individual
guarantees, dated May 15, 1997 and issued by GPC in
favor of:
a. Huntington to the extent of $32.5 million;
b. KeyBank to the extent of $32.5 million;
c. Fleet to the extent of $20 million;
d. Star to the extent of $20 million;
e. PNC to the extent of $25 million;
f. Provident to the extent of $10 million;
g. National City to the extent of $20 million; and
h. Bankers Trust to the extent of $30 million.
108
10.5 Security Agreement - Interest Rate Protection Contract
dated May 15, 1997 executed by GPLP in favor of
Huntington as Administrative Agent for the lenders.
115
10.6 Form of the Open-End Mortgage, Assignment of Rents
and Security Agreement for each of the three (3)
individual mortgages, dated May 15, 1997 and issued to
Huntington as Administrative Agent for the lenders on
the following shopping center properties:
a. The Mall at Fairfield Commons, Beavercreek, Ohio;
b. Indian Mound Mall, Heath, Ohio;
c. New Towne Mall, New Philadelphia, Ohio;
131
10.7 Form of the Open-End Mortgage, Assignment of Rents
and Security Agreement for each of the four (4)
individual mortgages, dated May 15, 1997 and issued to
Huntington as Administrative Agent for the lenders on
the following shopping center properties:
a. East Pointe Plaza, Marysville, Ohio;
b. Ohio River Plaza, Gallipolis, Ohio;
c. Middletown Plaza, Middletown, Ohio; and
d. Stewart Plaza, Madison, Ohio.
147
10.8 Mortgage, Assignment of Rents and Security
Agreement on Clarksville Plaza, Clarksville, Indiana,
dated as of May 15, 1997 issued by GPLP to
Huntington as Administrative Agent for the lenders.
</TABLE>
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<TABLE>
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PAGE
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<S> <C> <C>
163
10.9 A Credit Line Deed of Trust, Assignment of Rents and
Security Agreement on Morgantown Plaza, Star City,
West Virginia, dated May 15, 1997 between GPLP,
John T. Poffenbarger as Trustee, and Huntington as
Administrative Agent for the lenders.
180
10.10 Deed of Trust, Security Agreement, Assignment of
Rents and Fixture Filing on Plaza Vista Mall, Sierra
Vista, Arizona, dated May 15, 1997 between GPLP,
Chicago Title Insurance Company as Trustee, and
Huntington as Administrative Agent for the lenders.
197
10.11 Deed of Trust, Assignment of Rents and Security
Agreement on Steamboat Bend, Hannibal, Missouri,
dated May 15, 1997 between GPLP, William A.
Denney as Trustee and Huntington as Administrative
Agent for the lenders.
</TABLE>
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EXHIBIT 10.1
<PAGE> 2
SECOND AMENDED AND RESTATED
LOAN AGREEMENT
DATED AS OF
MAY 15, 1997
BETWEEN
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
AS BORROWER
GLIMCHER REALTY TRUST
AND
GLIMCHER PROPERTIES CORPORATION
AS GUARANTORS
AND
THE HUNTINGTON NATIONAL BANK
AND
KEYBANK NATIONAL ASSOCIATION
AND
FLEET NATIONAL BANK
AND
STAR BANK, NATIONAL ASSOCIATION
AND
PNC BANK, OHIO, NATIONAL ASSOCIATION
AND
THE PROVIDENT BANK
AND
NATIONAL CITY BANK OF COLUMBUS
AND
BANKERS TRUST COMPANY
AS LENDERS
AND
<PAGE> 3
THE HUNTINGTON NATIONAL BANK
AND
KEYBANK NATIONAL ASSOCIATION
AS CO-AGENTS
AND
THE HUNTINGTON NATIONAL BANK
AS ADMINISTRATIVE AGENT
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215
(614) 227-2000
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE #
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<S> <C> <C>
SECTION 1. AMOUNT OF LOAN................................................................................-1-
1.1 Commitment to Lend............................................................................-1-
------------------
1.2 Realignment of Banks..........................................................................-2-
--------------------
1.3 Additional Banks..............................................................................-2-
----------------
1.4 Advances; Termination Date....................................................................-4-
--------------------------
1.5 Letters of Credit.............................................................................-4-
-----------------
1.6 Interim Reserve...............................................................................-5-
---------------
SECTION 2. INTEREST RATE.................................................................................-5-
2.1 Prime Interest Rate...........................................................................-5-
-------------------
2.2 LIBO Rate.....................................................................................-6-
---------
2.3 Notice of Election............................................................................-7-
------------------
2.4 Interest Calculation and Interest Payment Date................................................-8-
----------------------------------------------
2.5 Additional Costs..............................................................................-9-
----------------
2.6 Limitations on Requests and Elections........................................................-10-
-------------------------------------
2.7 Illegality and Impossibility.................................................................-11-
----------------------------
2.8 Indemnification..............................................................................-12-
---------------
2.9 Survival of Obligations......................................................................-12-
-----------------------
2.10 Commitment, Modification and Quarterly Usage Fees; Cancellation and Reduction
-----------------------------------------------------------------------------
and Increase of Commitment...................................................................-12-
--------------------------
2.11 Interest Rate after Default..................................................................-13-
---------------------------
SECTION 3. EVIDENCE OF THE LOAN AND TERMS OF PAYMENT....................................................-13-
SECTION 4. PREPAYMENT...................................................................................-14-
SECTION 5. USE OF PROCEEDS..............................................................................-14-
SECTION 6. COSTS AND EXPENSES...........................................................................-14-
SECTION 7. COLLATERAL POOL..............................................................................-14-
SECTION 8. WARRANTIES AND REPRESENTATIONS...............................................................-16-
8.1 Subsidiaries and Unconsolidated Affiliates ..................................................-17-
------------------------------------------
8.2 Corporate Organization and Authority.........................................................-18-
------------------------------------
8.3 Financial Statements.........................................................................-18-
--------------------
8.4 Full Disclosure..............................................................................-18-
---------------
8.5 Pending Litigation...........................................................................-19-
------------------
8.6 Borrowing is Legal and Authorized............................................................-19-
---------------------------------
8.7 No Defaults..................................................................................-20-
-----------
8.8 Government Consent...........................................................................-20-
------------------
8.9 Taxes........................................................................................-20-
-----
8.10 Compliance with Law..........................................................................-21-
-------------------
8.11 Restrictions on Company and Guarantor........................................................-21-
-------------------------------------
8.12 Environmental Protection.....................................................................-21-
------------------------
8.13 Regulation U.................................................................................-23-
------------
8.14 Americans with Disabilities Act..............................................................-23-
-------------------------------
8.15 No Restrictions on Cash Flow.................................................................-24-
----------------------------
SECTION 9. CLOSING AND DISBURSEMENT CONDITIONS..........................................................-24-
9.1 Resolutions and Incumbency Certificate.......................................................-24-
--------------------------------------
9.2 Guarantees...................................................................................-24-
----------
9.3 Opinion of Counsel...........................................................................-25-
------------------
</TABLE>
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<TABLE>
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9.4 Compliance with this Agreement...............................................................-25-
------------------------------
9.5 Compliance Certificate.......................................................................-25-
----------------------
9.6 Warranties and Representations...............................................................-25-
------------------------------
9.7 Release by Certain Banks.....................................................................-25-
------------------------
9.8 Title Insurance, Surveys and Other Matters Concerning the Collateral Pool....................-25-
-------------------------------------------------------------------------
9.9 Post-Closing Documents.......................................................................-27-
----------------------
SECTION 10. COMPANY BUSINESS COVENANTS...................................................................-27-
10.1 Payment of Taxes and Claims..................................................................-27-
---------------------------
10.2 Maintenance of Properties and Corporate Existence............................................-28-
-------------------------------------------------
10.3 Sale of Assets or Merger.....................................................................-29-
------------------------
10.4 Liens and Encumbrances.......................................................................-29-
----------------------
10.5 Other Borrowings.............................................................................-30-
----------------
10.6 [Intentionally omitted]......................................................................-30-
10.7 Loans and Advances...........................................................................-31-
------------------
10.8 Acquisition of Capital Stock.................................................................-31-
----------------------------
10.9 [Intentionally omitted]......................................................................-31-
10.10 Tangible Net Worth...........................................................................-31-
------------------
10.11 [Intentionally omitted]......................................................................-31-
10.12 [Intentionally omitted] ....................................................................-31-
10.13 [Intentionally omitted]......................................................................-32-
10.14 Investments in Joint Ventures................................................................-32-
10.15 ERISA........................................................................................-32-
-----
10.16 Qualification of Glimcher Realty Trust as a REIT.............................................-33-
------------------------------------------------
10.17 [Intentionally omitted]......................................................................-33-
10.18 Changes in Ownership Structure...............................................................-33-
------------------------------
10.19 Changes in Lines of Business.................................................................-33-
----------------------------
10.20 Interest Rate Protection Contract............................................................-33-
---------------------------------
10.21 Further Appraisals...........................................................................-34-
------------------
10.22 Sale of Glimcher Shares......................................................................-34-
-----------------------
10.23 [Intentionally omitted]......................................................................-34-
10.24 [Intentionally omitted]......................................................................-34-
10.25 Maximum Dividend Payout......................................................................-34-
-----------------------
10.26 Other Agreements.............................................................................-35-
----------------
10.27 Investment in Retail Properties..............................................................-36-
-------------------------------
10.28 Ratio of Project Costs to Asset Value .......................................................-36-
-------------------------------------
10.29 Total Debt to Total Asset Value..............................................................-36-
-------------------------------
10.30 EBITDA to Total Debt Service of Consolidated and Unconsolidated Affiliates-38-
--------------------------------------------------------------------------
10.31 Notice of Other Defaults.....................................................................-38-
------------------------
SECTION 11. INFORMATION AS TO COMPANY AND GUARANTOR...........................................................-39-
SECTION 12. EVENTS OF DEFAULT.................................................................................-42-
12.1 Nature of Events............................................................................ -42-
12.2 Default Remedies.............................................................................-43-
----------------
SECTION 13. MISCELLANEOUS.....................................................................................-44-
13.1 Notices......................................................................................-44-
-------
13.2 Reproduction of Documents....................................................................-46-
-------------------------
13.3 Survival.....................................................................................-46-
--------
13.4 Successors and Assigns.......................................................................-47-
----------------------
13.5 Duplicate Originals..........................................................................-47-
-------------------
13.6 Governing Law................................................................................-47-
-------------
13.7 Accounting Terms and Computations............................................................-47-
---------------------------------
13.8 Consent to Jurisdiction and Waiver of Objection to Venue.....................................-47-
--------------------------------------------------------
13.9 WAIVER OF JURY TRIAL.........................................................................-48-
--------------------
13.10 Definitions................................................................................. -48-
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13.11 Nonrecourse to Trustees......................................................................-52-
-----------------------
13.12 Agreement as to Confidentiality of Company and Guarantor Information.........................-52-
--------------------------------------------------------------------
SECTION 14 THE CO-AGENTS AND THE ADMINISTRATIVE AGENT...................................................-53-
14.1 Appointment..................................................................................-53-
-----------
14.2 Nature of Duties.............................................................................-54-
----------------
14.3 Lack of Reliance on the Co-Agents or Administrative Agent
---------------------------------------------------------
and Resignation..............................................................................-55-
---------------
14.4 Certain Rights of the Agent..................................................................-56-
---------------------------
14.5 Reliance.....................................................................................-57-
--------
14.6 Notice of Default............................................................................-57-
-----------------
14.7 Indemnification..............................................................................-58-
---------------
14.8 The Co-Agents and the Administrative Agent in Their
---------------------------------------------------
Individual Capacities........................................................................-58-
---------------------
14.9 Amendment and Modifications..................................................................-59-
---------------------------
14.10 Pro Rata Treatment and Payments..............................................................-60-
-------------------------------
14.11 Funding of Advances..........................................................................-60-
-------------------
14.12 Delinquency..................................................................................-61-
-----------
14.13 Equalization.................................................................................-62-
------------
14.14 Assignment of Interests......................................................................-63-
-----------------------
</TABLE>
Exhibits
- --------
Exhibit A - Form of Amendment to Loan Agreement
Exhibit B - Form of Promissory Note
Exhibit C - Form of Guaranty of Glimcher Realty Trust
Exhibit D - Form of Guaranty of Glimcher Properties Corporation
Exhibit E - Description of Company's Counsel Closing Opinion
Exhibit F-1 - Form of Operating Projections
Exhibit F-2 - Form of Operating Budget
iv
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SECOND AMENDED AND RESTATED LOAN AGREEMENT
------------------------------------------
This Second Amended and Restated Loan Agreement (this "Agreement") is
entered into by and among The Huntington National Bank, KeyBank National
Association, Fleet National Bank, Star Bank, National Association, PNC Bank,
Ohio, National Association, The Provident Bank, National City Bank of Columbus,
and Bankers Trust Company and certain other banks that may hereafter become
parties to this Agreement, as provided herein, as lenders (collectively, the
"Banks"); The Huntington National Bank and KeyBank National Association , as
co-agents (the "Co- Agents"), The Huntington National Bank, as administrative
agent (the "Administrative Agent"); Glimcher Properties Limited Partnership, as
borrower (the "Company"); and Glimcher Realty Trust and Glimcher Properties
Corporation, as guarantors (collectively the "Guarantor, "but all the
obligations, warranties, representations and covenants of these two guarantors
under this Agreement shall be joint and several), as of the 15th day of May,
1997, in order to amend and restate a First Amended and Restated Loan Agreement
entered into by and among The Huntington National Bank, Society National Bank, a
bank group, the Company and the Guarantor as of the 30th day of June, 1995, as
thereafter amended (the "First Restated Agreement"). The First Restated
Agreement is hereby amended and restated in its entirety to provide as follows:
SECTION 1. AMOUNT OF LOAN.
1.1 Commitment to Lend.
------------------
The Banks agree to lend to the Company sums and issue letters of credit
in face amounts totalling an aggregate amount of $190,000,000.00 (hereinafter
referred to as the "Loan"), as co- lenders subject to the terms and conditions
of this Agreement. The "Commitment Limit" of each Bank shall be the amount set
forth opposite its signature on this Agreement or agreed to in any subsequent
amendment to this Agreement, as hereinafter provided in this section. Any other
provision of this Agreement notwithstanding, no Bank shall be required to fund
any advance or undertake any obligation with respect to letters of credit issued
hereunder in an aggregate amount that exceeds its Pro Rata Share of all advances
made on the same date or that exceeds the amount of its Commitment Limit. In
addition, no Advances shall be made or letters of credit issued at any time if,
after giving effect thereto, the sum of the outstanding principal amount of the
Loan and the aggregate of the face amounts of outstanding letters of credit (the
"Total Outstandings") would
<PAGE> 8
exceed the lesser of (a) 65% of the fair market value of the properties then in
the Collateral Pool, as determined on the basis of the most recent appraisals
accepted by the Banks, and (b) the Aggregate Borrowing Base, as determined as of
the end of the most recently completed fiscal quarter based upon the financial
information required to be provided by the Company within the time period
permitted for delivery of quarterly statements pursuant to Section 11(a).
"Aggregate Borrowing Base" shall mean, on any date of determination, the sum of
the Borrowing Bases for each property in the Collateral Pool. "Borrowing Base"
shall mean the value ascribed to a property in the Collateral Pool for the
purpose of this Section 1.1, calculated as follows: the Net Operating Income for
such property shall be divided by the product of the Market Constant, 12 and
1.30. "Market Constant" shall mean the factor determined by the Administrative
Agent by reference to a standard level constant payment table for a fully
amortizing loan with a maturity of 25 years' duration based upon an assumed per
annum interest rate equal to the ten-year U.S. Treasury constant maturities
interest rate average, as announced weekly in Federal Reserve Statistical
Release H.15, plus one and three-quarters percentage points (1.75%). In the
event that the Total Outstandings shall at any time exceed the lesser of the
amounts described in (a) and (b) above, the Company agrees to provide within 30
days sufficient additional collateral (subject to all the requirements of
Sections 7 and 9 hereof) such as to cause the Total Outstandings not to exceed
such amount or to make such repayment of the Loan as may be required to reduce
the Total Outstandings to the lesser of such amounts.
1.2 Realignment of Banks.
---------------------
Upon the execution and delivery of this Agreement, The Huntington
National Bank, individually, shall disburse, as part of its commitment
hereunder, such funds as may be necessary to purchase the Pro Rata Shares of The
First National Bank of Chicago and Corestates, National Association (the
"Terminating Banks") of the principal portion of the Advances outstanding on
such date under the First Restated Agreement (the "Existing Advances"). Upon
such date, the Company shall pay to the Terminating Banks their Pro Rata Shares
of the interest accrued on the Existing Advances. The Existing Advances shall
remain outstanding until the end of their respective Interest Periods and shall
be repaid with accrued interest to those banks who are "Banks" under the First
Restated Agreement in accordance with their Pro Rata Shares as provided therein,
except that the
2
<PAGE> 9
Pro Rata Shares of the Terminating Banks shall be paid to The Huntington
National Bank. Bankers Trust Company shall have no share or interest in the
Existing Advances or any interest accrued or to accrue thereon. The pro rata
sharing of funding and receipt of payment contemplated in this Agreement shall
automatically become effective for each Advance made after the date of this
Agreement, but shall be effective with respect to all letters of credit issued
and remaining outstanding on the effective date of this Agreement, whether
issued after such date or issued under the First Restated Agreement. The Company
shall pay to Bankers Trust Company its Pro Rata Share of the standby letter of
credit fees due with respect to those standby letters of credit issued under the
First Restated Agreement and outstanding on the date of this Agreement.
1.3 Additional Banks.
----------------
The Co-Agents may from time to time without the consent of the Company
add other commercial banks as Banks under this Agreement. The Commitment Limits
of The Huntington National Bank and KeyBank National Association shall be
ratably reduced by the amount of the Commitment Limit of each additional Bank.
In each case the addition of a Bank shall be made by (a) execution by such Bank,
the Co-Agents, the Company and the Guarantor of an amendment in the form of
Exhibit A to this Agreement in which the additional Bank agrees to be bound by
all the terms and conditions of this Agreement and agrees to a Commitment Limit;
(b) delivery to the additional Bank by the Company of a promissory note in the
form of Exhibit B to this Agreement and in the amount of such Bank's Commitment
Limit; (c) delivery by the Guarantor of guarantees in favor of such Bank in the
form of Exhibits C and D to this Agreement; (d) receipt by the Administrative
Agent from the additional Bank of its Pro Rata Share of the outstanding
principal amount of the Loan and payment of that amount pro rata to The
Huntington National Bank and KeyBank National Association; and (e) delivery by
the Company to The Huntington National Bank and KeyBank National Association of
promissory notes in the form of Exhibit B in the amount of each such Bank's
revised Commitment Limit, together with the return by The Huntington National
Bank and KeyBank National Association of the promissory notes being replaced
thereby.
1.4 Advances; Termination Date.
--------------------------
The Loan shall take the form of a revolving credit, and the outstanding
principal balance may be increased and decreased an unlimited number of times.
The Company's right to obtain advances
3
<PAGE> 10
pursuant to the Loan shall terminate and the principal balance shall be payable
on July 31, 1998 (the "Termination Date"). The Company shall have the right,
upon written notice given to the Administrative Agent no later than April 30,
1998, and payment of an extension fee in the amount of $475,000.00, to extend
the Termination Date to July 31, 1999. Each request for an advance under this
Agreement or for the issuance of a letter of credit shall be directed to the
Administrative Agent and accompanied by a statement signed by the Company by its
chief executive officer, President or chief financial officer, in such
representative capacity, certifying that there does not then exist any Event of
Default (as hereinafter defined).
1.5 Letters of Credit.
-----------------
As part of the amount of the Loan available to the Company pursuant to
Section 1.1, the Company shall have the right to obtain from the Administrative
Agent standby letters of credit in face amounts aggregating up to $25,000,000.00
at any one time outstanding, provided that no letter of credit shall have an
expiry date later than one year from the date of issuance, nor shall any such
expiry date be later than the Termination Date unless such standby letter of
credit is secured through the deposit with the Administrative Agent for the
benefit of the Banks of cash equal to the face amount of the letter of credit.
Each letter of credit shall be issued by The Huntington National Bank as
Administrative Agent in the name of The Huntington National Bank. Each of the
Banks hereby absolutely and unconditionally purchases from The Huntington
National Bank, and The Huntington National Bank hereby sells to each of the
Banks, an undivided participation interest in each letter of credit issued under
this Agreement and in each letter of credit issued and outstanding under the
First Restated Agreement in an amount equal to each Bank's Pro Rata Share. At
the time of and as a condition to the issuance of each standby letter of credit
under this Agreement, the Company shall pay to the Administrative Agent, for the
benefit of the Banks, an annual issuance fee equal to one percent (1%) of the
face amount of the letter of credit. The Company shall pay to the Administrative
Agent, individually, its customary fees associated with the administration of
standby letters of credit, including but not limited to those fees associated
with the issuance of routine amendments and the processing of drawings. The
Company's obligation to reimburse the Banks for the amount of a drawing under
any standby letter of credit issued as part of the Loan shall be evidenced by a
reimbursement agreement in the form customarily used by The Huntington National
Bank.
4
<PAGE> 11
Upon any failure of the Company promptly to reimburse the
Administrative Agent pursuant to the terms of any reimbursement agreement
executed and delivered in connection with the Loan, following any drawing upon a
letter of credit, such reimbursement amount shall be immediately funded by the
Administrative Agent through the making of an Advance under the Loan. Advances
for the purpose of paying unreimbursed letter of credit drawings shall continue
to be made by the Administrative Agent and funded by the Banks pro rata
notwithstanding the existence of any Event of Default or any other cause;
provided, however, that in no event shall the Banks be obligated to lend more
than $190,000,000.00 in the aggregate, nor shall any individual Bank be
obligated to lend more than the amount of its Commitment Limit.
1.6 Interim Reserve.
---------------
If the Company shall not by the date of closing have satisfied the
appraisal requirement contained in Section 9.8(b) of this Agreement, the Company
shall satisfy such requirement by no later than August 1, 1997. Until this
requirement shall have been fully satisfied, the amount of $15,000,000.00 shall
be reserved by the Banks from the maximum amount of the Loan available to be
drawn upon by the Company through the obtaining of Advances or the issuance of
letters of credit.
SECTION 2. INTEREST RATE.
2.1 Prime Interest Rate.
-------------------
At all times other than when the Company shall have properly elected to
have interest accrue at a rate of interest based upon the LIBO Rate (as
hereinafter defined), the Company agrees to pay to the Banks monthly interest on
the unpaid balance of the Loan at a variable rate of interest (the "Prime
Interest Rate") equal to the Prime Commercial Rate of The Huntington National
Bank, from time to time in effect, with each change in the Prime Commercial Rate
automatically and immediately changing the interest rate on the Loan without
notice to the Company. "Prime Commercial Rate" as used herein shall mean the
rate established by The Huntington National Bank from time to time as its Prime
Commercial Rate based on its consideration of economic, money market, business
and competitive factors, and it is not necessarily the lowest rate charged by
The Huntington National Bank to business borrowers. Interest shall be calculated
on a 360 day year basis and shall be based
5
<PAGE> 12
on the actual number of days which elapse during the interest calculation
period. The Administrative Agent shall use reasonable efforts to advise promptly
the Company of any change in the Prime Commercial Rate, but no failure to
provide such notice shall constitute any default by the Administrative Agent,
the Co-Agents or the Banks under this Agreement.
"Prime Interest Rate Advance" shall mean any amount borrowed as part of
the Loan that bears interest at a rate calculated with reference to the Prime
Interest Rate.
2.2 LIBO Rate.
---------
The Company may from time to time prior to the Termination Date elect
to have interest accrue on all or part of the outstanding principal balance of
the Loan at a rate of interest equal to the LIBO Rate plus the Applicable
Percentage (as hereinafter defined). "LIBO Rate" shall mean, with respect to any
LIBO Rate Advance and the related Interest Period (as hereinafter defined), the
per annum rate that is equal to the quotient of:
(a) the actual or estimated arithmetic mean of the per annum rates of
interest at which deposits in U.S. dollars for the related Interest Period and
in an aggregate amount comparable to the amount of such LIBO Rate Advance are
being offered to U.S. banks by one or more prime banks in the London interbank
market, as determined by the Administrative Agent in its discretion based upon
reference to information appearing in Telerate, a service of Telerate Systems
Incorporated, in the section captioned "British Bankers Assoc. Interest
Settlement Rates," or any comparable index selected by the Administrative Agent,
the obtaining of rate quotations, or any other reasonable procedure, at
approximately 11:00 a.m. London, England, time, on the second LIBO business day
prior to the first day of the related Interest Period; all as determined by the
Administrative Agent, such sum to be rounded up, if necessary, to the nearest
whole multiple of 1/16 of 1%; divided by
(b) a percentage equal to 100% minus the rate (expressed as a
percentage), if any, at which reserve requirements are imposed on any one or
more of the Banks, on the second LIBO business day prior to the first day of the
related Interest Period, with respect to any "Eurocurrency liabilities" under
Regulation D of the Board of Governors of the Federal Reserve System or any
other regulations of any governmental authority having jurisdiction with respect
thereto (including, without limitation, any marginal, emergency, supplemental,
special or other reserves) for a term comparable
6
<PAGE> 13
to such Interest Period. This provision is for the benefit of the Banks and is
not intended to increase the expected yield to the Banks above the rates of
interest provided for in this Agreement.
"LIBO Rate Advance" shall mean any amount borrowed as part of the Loan
that bears interest at a rate calculated with reference to the LIBO Rate. "LIBO
business day" shall mean, with respect to any LIBO Rate Advance, a day which is
both a day on which all the Banks are open for business and a day on which
dealings in U.S. dollar deposits are carried out in the London interbank market.
"Applicable Percentage" shall mean a per annum percentage of interest
equal to 1.40% if the Company's Leverage is less than 0.40 to 1; 1.50% if the
Company's Leverage is less than 0.50 to 1 and greater than or equal to 0.40 to
1; 1.60% if the Company's Leverage is less than 0.55 to 1 and greater than or
equal to 0.50 to 1; and 1.70% if the Company's Leverage is greater than or equal
to 0.55 to 1. The "Company's Leverage" shall mean the ratio of the Company's and
the Guarantor's, together with all Subsidiaries', consolidated total debt to
Total Asset Value, all as calculated pursuant to Section 10.29. Every change in
the Applicable Percentage shall become effective for each Advance obtained
following the forty-fifth (45th) day after the conclusion of the previous fiscal
quarter.
2.3 Notice of Election.
------------------
The Company may initially elect to request an Advance of either type,
continue an Advance of one type as an Advance of the then existing type or
convert an Advance of one type to an Advance of the other type, by giving notice
thereof to the Administrative Agent in writing in such form as the
Administrative Agent may reasonably require not later than 10:00 a.m. Columbus
time, three LIBO business days prior to the date any such continuation of or
conversion to a LIBO Rate Advance is to be effective and not later than 10:00
a.m. Columbus time on the date such continuation or conversion is to be
effective in all other cases, provided, that an outstanding Advance may only be
converted on the last day of the then current Interest Period (if applicable)
with respect to such Advance, and provided, further, that upon the continuation
or conversion of an Advance such notice shall also specify the Interest Period
(if applicable) to be applicable thereto upon such continuation or conversion.
If the Company shall fail to timely deliver such a notice with respect to any
outstanding Advance, the Company shall be deemed to have elected to convert such
Advance to a Prime Interest
7
<PAGE> 14
Rate Advance. The initial LIBO Rate Advance hereunder shall be in the minimum
amount of $5,000,000.00 and in integral multiples of $200,000.00. Each LIBO Rate
Advance thereafter shall be in the amount of $200,000.00 and in integral
multiples thereof. No more than five LIBO Rate Advances may be outstanding at
one time.
2.4 Interest Calculation and Interest Payment Date.
----------------------------------------------
"Interest Period" shall mean:
(a) With respect to any LIBO Rate Advance, an initial period
commencing, as the case may be, on the day such an Advance shall be made by the
Banks, or on the day of conversion of any then outstanding Advance to an Advance
of such type, and ending on the date one (1), two (2), three (3), four (4) or
six (6) months thereafter, all as the Company may elect pursuant to Section 2.2
of this Agreement, provided, that (i) any Interest Period with respect to a LIBO
Rate Advance that shall commence on the last LIBO business day of the calendar
month (or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last LIBO business day
of the appropriate subsequent calendar month; and (ii) each Interest Period with
respect to a LIBO Rate Advance that would otherwise end on a day which is not a
LIBO business day shall end on the next succeeding LIBO business day or, if such
next succeeding LIBO business day falls in the next succeeding calendar month,
on the next preceding LIBO business day.
(b) With respect to a Prime Interest Rate Advance, an initial period
commencing, as the case may be, on the day such an Advance shall be made by the
Banks, or on the day of conversion of any then outstanding Advance to an Advance
of such type, and ending on the day of conversion to an Advance of a different
type.
Notwithstanding the provisions of (a) and (b) above, no Interest Period
shall be permitted which would end after the Termination Date.
Interest shall be calculated on a 360 day year basis and shall be based
on the actual number of days which elapse during the interest calculation
period. Interest shall be due and payable on each Interest Payment Date.
"Interest Payment Date" shall mean (i) the last day of each Interest Period in
the case of a LIBO Rate Advance and, in the case of any Interest Period which is
longer than three (3) months for any such Advance, the ninetieth (90th) day of
such Interest Period; and (ii) in the case of a Prime Interest Rate Advance, the
first business day of each month.
8
<PAGE> 15
The Company shall pay interest at the Prime Interest Rate for one day
with respect to any Advance obtained and repaid on the same day.
2.5 Additional Costs.
-----------------
In the event that any applicable law, treaty, rule or regulation
(whether domestic or foreign) now or hereafter in effect, or any interpretation
or administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any one or more of
the Banks with any request or directive of any such authority (whether or not
having the force of law) (each of the foregoing being referred to as a
"Regulatory Requirement"), shall (a) affect the basis of taxation of payments to
any one or more of the Banks of any amounts payable by the Company for LIBO Rate
Advances under this Agreement (other than taxes imposed on the overall net
income of such Bank or Banks by the jurisdiction, or by any political
subdivision or taxing authority of any such jurisdiction, in which such Bank or
Banks has its principal office), or (b) shall impose, modify or deem applicable
any reserve, special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by any one or more of the Banks,
or (c) shall impose any other condition, requirement or charge with respect to
this Agreement or the Loan (including, without limitation, any capital adequacy
requirement, any requirement which affects the manner in which any one or more
of the Banks allocates capital resources to its commitments or any similar
requirement), and the result of any of the foregoing change in external
conditions is to increase the actual cost to such Bank or Banks of making or
maintaining the Loan or any Advance thereunder, to reduce the actual amount of
any sum receivable by such Bank or Banks thereon, or to reduce the actual rate
of return on the capital of such Bank, then, provided such Regulatory
Requirement is then being applied or directed to all banks or to a class of
banks, and not just to one or more banks as a result of their non-compliance
with existing laws, treaties, rules or regulations, or existing directive of an
authority interpreting or administering the same, the Company shall pay to the
affected Bank or Banks, from time to time, upon request of such Bank or Banks
made through the Administrative Agent, additional amounts sufficient to
compensate the Bank or Banks for such increased cost, reduced sum receivable or
reduced rate of return (collectively, "Reduced Earnings") to the extent such
Bank or Banks are not compensated therefor in the computation of the interest
rates applicable to the Loan and provided such Reduced Earnings are not the
result of a decline in the economic
9
<PAGE> 16
performance of such Bank or Banks not resulting from a Regulatory Requirement. A
detailed statement as to the amount of such increased cost, reduced sum
receivable or reduced rate of return, prepared in good faith and submitted by
any of the Banks so affected to the Company, shall be conclusive and binding for
all purposes relative to such Bank, absent manifest error in determination. Any
Bank claiming additional compensation shall promptly notify the Administrative
Agent and the Company of any event occurring after the date of this Agreement
that entitles such Bank to additional compensation pursuant to this Section 2.5,
but the failure to give such prompt notice shall not limit a Bank's rights under
this Section.
2.6 Limitations on Requests and Elections.
-------------------------------------
Notwithstanding any other provision of this Agreement to the contrary,
if, upon receiving a request for a LIBO Rate Advance or a request for a
continuation of a LIBO Rate Advance or conversion of a Prime Interest Rate
Advance to a LIBO Rate Advance (a) deposits in dollars for periods comparable to
the Interest Period elected by the Company are not available to any one or more
of the Banks in the London interbank market, or (b) the LIBO Rate will not
accurately cover the cost to any one or more of the Banks of making or
maintaining the related LIBO Rate Advance, or (c) by reason of national or
international financial, political or economic conditions or by reason of any
applicable law, treaty, rule or regulation (whether domestic or foreign) now or
hereafter in effect, or the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by one or more of the Banks with any request or directive
of such authority (whether or not having the force of law), including without
limitation exchange controls, it is impracticable, unlawful or impossible for
any one or more of the Banks (i) to make the relevant LIBO Rate Advance or (ii)
to continue such Advance as a LIBO Rate Advance or (iii) to convert an Advance
to a LIBO Rate Advance, then the Company shall not be entitled, so long as such
circumstances continue, to request a LIBO Rate Advance or a continuation of or
conversion to such Advance from the Banks. In the event that such circumstances
no longer exist, the Banks shall again consider requests for LIBO Rate Advances
and requests for continuations of and conversions to such Advances.
10
<PAGE> 17
2.7 Illegality and Impossibility.
----------------------------
In the event that any applicable law, treaty, rule or regulation
(whether domestic or foreign) now or hereafter in effect, or any interpretation
or administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any one or more of
the Banks with any request or directive of such authority (whether or not having
the force of law), including without limitation exchange controls, shall make it
unlawful or impossible for such Bank or Banks to maintain any LIBO Rate Advance
under this Agreement, the Company shall after receipt of notice thereof from the
Administrative Agent, repay in full the then outstanding principal amount of all
LIBO Rate Advances made by the affected Banks together with all accrued interest
thereon to the date of payment and all amounts due to the affected Banks under
Section 2.8, (a) on the last day of the then current Interest Period, if any,
applicable to such LIBO Rate Advance, if the affected Banks may lawfully
continue to maintain such LIBO Rate Advance to such day, or (b) immediately if
the affected Banks may not continue to maintain such LIBO Rate Advance to such
day. If fewer than all the Banks are affected by such illegality or
impossibility, the LIBO Rate Advances made by the affected Banks shall be
converted to Prime Interest Rate Advances rather than repaid, and the Company
shall pay to the affected Banks all accrued interest on the LIBO Rate Advances
to the date of conversion and all amounts due to the affected Banks under
Section 2.8. This provision is for the benefit of the Banks and is not intended
to increase the yield to the Banks above the rates of interest provided for in
this Agreement. This Section 2.7 shall apply only as long as such illegality
exists. The Banks shall use reasonable, lawful efforts to avoid the impact of
such law, treaty, rule or regulation. As an alternative to the repayment
obligation provided in this Section 2.7, the Company may, at its option, and at
the time provided in this Section 2.7, convert any affected Advance or a portion
thereof to a Prime Interest Rate Advance or to any LIBO Rate Advance of a
duration that remains unaffected by the foregoing external conditions, in each
case accompanied by the payment of all accrued interest on the affected Advance
to the date of conversion and all amounts due to the affected Banks under
Section 2.8.
2.8 Indemnification.
---------------
If, for any reason, the Company makes any payment of principal with
respect to any LIBO Advance on any other date than the last day of an Interest
Period applicable thereto or if the
11
<PAGE> 18
Company fails to borrow any LIBO Rate Advance after notice has been given to the
Banks in accordance with Section 2.3, or fails to make any payment of principal
or interest in respect of a LIBO Advance when due or at the Termination Date,
the Company shall reimburse the Banks on demand for any resulting actual and
direct loss or expense incurred by the Banks, determined in the Banks'
reasonable opinion, including without limitation any loss incurred in obtaining,
liquidating or employing deposits from third parties. A detailed statement as to
the amount of such loss or expense, prepared in good faith and submitted by the
Administrative Agent to the Company shall be conclusive and binding for all
purposes absent manifest error in determination.
2.9 Survival of Obligations.
-----------------------
The provisions of Sections 2.5 and 2.8 shall survive the termination of
this Agreement and the payment in full of all promissory notes outstanding
pursuant hereto.
2.10 Commitment, Modification and Quarterly Usage Fees; Cancellation and
-------------------------------------------------------------------
Reduction and Increase of Commitment.
-------------------------------------
The Company agrees to pay on or before closing to each of the Banks
making a new or increased commitment hereunder, a commitment fee equal to one
quarter of one percent (1/4%) of the amount of such new or increased commitment.
The Company agrees on or before closing to pay a modification fee in
the amount of $87,500.00, to be paid to the respective Banks as follows:
The Huntington National Bank: $37,500.00
KeyBank National Association: $37,500.00
Fleet National Bank $2,500.00
Star Bank, National Association: $2,500.00
PNC Bank, Ohio, National Association: $2,500.00
The Provident Bank $2,500.00
National City Bank of Columbus: $2,500.00
The Company agrees to pay to the Banks (excepting any Bank that may
have ceased to fund its Pro Rata Share of Advances hereunder in violation of the
terms of this Agreement) quarterly in arrears, commencing on June 30, 1997, a
quarterly usage fee equal to the sum of (x) one-quarter of one percent (1/4%)
per annum on the amount by which the actual daily amount of the Loan outstanding
during such quarter is less than $95,000,000.00, and (y) one-eighth of one
percent (1/8%) per annum on the difference between $190,000,000.00 and the
greater of $95,000,000.00 or the actual daily amount of the Loan outstanding
during such quarter. For purposes of calculating the
12
<PAGE> 19
usage fee only, the commitment provided for in this Agreement shall be deemed to
be outstanding to the extent of (a) 100% of the Company's aggregate Prime
Interest Rate Advances and LIBO Rate Advances; and (b) 0% of the aggregate
undrawn face amount of standby letters of credit issued under this Agreement.
The Company shall be entitled, upon written notice to the Administrative Agent,
to cancel or reduce the total commitment provided for herein; provided, however,
that any such cancellation or reduction shall be irrevocable, any reduction
shall be in the minimum amount of $5,000,000.00, and all then outstanding and
unpaid principal (or amount thereof in excess of any remaining commitment),
interest accrued thereon and fees, together with any sum due pursuant to Section
2.8 hereof, shall be paid in full to the Banks.
2.11 Interest Rate after Default.
---------------------------
Upon the occurrence of any Event of Default and the expiration of any
applicable cure period, interest shall thereafter accrue on the outstanding
principal balance of all advances made pursuant to this Agreement at a rate
equal to the Prime Interest Rate, plus two percent (2%) per annum.
SECTION 3. EVIDENCE OF THE LOAN AND TERMS OF PAYMENT.
The Loan shall be evidenced by promissory notes in the form of Exhibit
B to this Agreement delivered and made payable to each Bank in the amount of its
Commitment Limit, or by one or more notes subsequently executed in substitution
therefor. The obligation of the Company to reimburse the Banks for drawings
under standby letters of credit issued pursuant to this Agreement shall be
evidenced by the reimbursement agreements described in Section 1.2 hereof.
Repayment of the Loan shall be made in accordance with the terms of the notes
and reimbursement agreements then outstanding pursuant to this Agreement. The
Company agrees that all payments and prepayments made pursuant to or in
connection with this Agreement will be made to the Administrative Agent by 12:00
noon, Columbus, Ohio, time and that any payment or prepayment made after that
time will be deemed to have been made on the next day.
13
<PAGE> 20
SECTION 4. PREPAYMENT.
The Company, if not then in default hereunder, and subject to the
requirements of Section 2.8, shall have the right without penalty to prepay at
any time and from time to time before maturity any amount or amounts due to the
Banks pursuant to this Agreement or to any note or notes executed pursuant
hereto. Any partial prepayment shall be in the minimum amount of $200,000.00,
except to the extent that more than four (4) partial prepayments are made in any
one thirty (30) day period, in which event each subsequent partial prepayment
during such period shall be in the amount of $1,000,000.00 or any integral
multiple thereof.
SECTION 5. USE OF PROCEEDS.
The proceeds of the Loan shall be used by the Company for the
renovation and expansion of the Company's properties, development of retail
properties, acquisition of retail properties, tenant improvements, repayment of
indebtedness and for working capital and general partnership purposes.
SECTION 6. COSTS AND EXPENSES.
The Company shall pay all costs and expenses incidental to the
extension of credit provided for in this Agreement. Such costs shall include,
but not be limited to: (a) reasonable fees and out-of-pocket expenses of the
Co-Agents' counsel, and (b) all appraisal and appraisal review fees (except for
appraisals obtained by the Banks pursuant to Section 10.21 hereof), title
insurance premiums and costs, recording fees, survey fees, inspection fees,
revenue stamps and note and mortgage taxes.
SECTION 7. COLLATERAL POOL.
As security for the Loan, the Company shall grant to the Administrative
Agent, as collateral agent for the Banks, a first mortgage lien in the following
properties owned by the Company: The Mall at Fairfield Commons in Beavercreek,
Ohio; NewTowne Mall in New Philadelphia, Ohio; Indian Mound Mall in Heath, Ohio;
Clarksville Plaza, Clarksville, Indiana; East Pointe Plaza, Marysville, Ohio;
Middletown Plaza, Middletown, Ohio; Morgantown Plaza, Morgantown, West Virginia;
Ohio River Plaza, Gallipolis, Ohio; Plaza Vista Mall, Sierra Vista, Arizona;
Steamboat
14
<PAGE> 21
Bend, Hannibal, Missouri; Stewart Plaza, Mansfield, Ohio (the foregoing
properties being referred to in the aggregate as the "Collateral Pool"). The
Company, provided there is not then continuing an Event of Default, shall have
the right to substitute in the Collateral Pool properties that are of equivalent
or greater appraised fair market value and free of all liens and encumbrances
other than real estate taxes and assessments not yet due and payable, easements,
covenants, conditions and restrictions of record that do not materially
interfere with the use of the premises as a mall or shopping center and the
rights of parties in possession as tenants only , in each case upon the prior
written approval of the Required Banks and, if not included in the Required
Banks, the Co-Agents. Substitution of any property shall only be considered by
the Banks upon the delivery by the Company to the Banks of (a) Evidence of Value
(as hereinafter defined); (b) a current survey satisfactory in form and
substance to the Co-Agents; (c) a current environmental report satisfactory in
form and substance to the Co-Agents; (d) a current ALTA title insurance
commitment and final mortgagee policy of title insurance for such property and
all appurtenant easements thereto with such reinsurance and endorsements as the
Banks may require, issued by an agent and underwriter acceptable to the Banks
and conforming in all respects with the Administrative Agent's title insurance
requirements; and (e) evidence that the property is insured under policies
providing such coverages and insuring against such risks as is customary with
respect to such commercial properties. "Evidence of Value" shall mean an
independent appraisal satisfactory in form and substance to the Required Banks,
conducted by appraisers selected by the Co-Agents, and in conformity with the
usual appraisal standards of the Administrative Agent and with the requirements
of all statutes, regulations and interpretations thereof to which the Banks, or
any of them, are subject, establishing the substitute property to be of a value
equal to or greater than the value of the property for which substitution is
being made. In the event that the Required Banks shall determine that the loan
to value ratio and Aggregate Borrowing Base requirements of Section 1.1 can be
fulfilled without including in the Collateral Pool all the properties identified
in this Section 7, and provided that there is not then continuing an Event of
Default, the Company shall be permitted to designate the specific properties
described in Section 7 that shall be included in the Collateral Pool, subject to
the Company's ongoing obligation to remain in compliance at all times with
Section 1.1.
15
<PAGE> 22
In the event that (A) any of the properties in the Collateral Pool are at any
time released from inclusion pursuant to the provisions of this section, and (B)
any of such properties are thereafter offered as substitute or additional
properties pursuant to the terms hereof, and (C) neither the Company nor the
Required Banks are then in possession of information suggesting a material
decrease in the fair market value of such properties, and (D) none of the Banks
is required by applicable law or regulation to obtain a new appraisal of such
property, the Banks agree to accept as Evidence of Value the appraisals on such
properties received in connection with the execution of this Agreement.
SECTION 8. WARRANTIES AND REPRESENTATIONS.
The Company and the Guarantor warrant and represent to the Banks:
8.1 Subsidiaries and Unconsolidated Affiliates.
------------------------------------------
Neither the Company nor the Guarantor has any Subsidiaries except the
Company's Subsidiaries, Glimcher Holdings Limited Partnership, Grand Central
Limited Partnership, Glimcher Centers Limited Partnership, Glimcher York
Associates Limited Partnership and Morgantown Mall Associates Limited
Partnership; Glimcher Realty Trust's Subsidiary, Glimcher Properties
Corporation; and Glimcher Properties Corporation's subsidiaries, Glimcher
Holdings, Inc., Glimcher Centers, Inc., Glimcher York, Inc., Glimcher Johnson
City, Inc. and Glimcher Grand Central, Inc. The only non-Subsidiary affiliates
of the Company or the Guarantor as of the date of this Agreement are the
Company's non-qualified REIT subsidiary, Glimcher Development Corporation, and
the following joint venture affiliates: Olathe Mall LLC, Great Plains MetroMall
LLC, Glimcher/Glaizers NJ MetroMall LLC, Elizabeth MetroMall LLC,
Glimcher/Glaizers LA MetroMall LLC, California MetroMall LLC and Johnson City
Venture LLC. Neither the Company nor the Guarantor will create or acquire any
Subsidiaries or unconsolidated affiliates without prompt written notice to the
Banks after such creation or acquisition.
8.2 Corporate Organization and Authority.
------------------------------------
(a) The Company:
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<PAGE> 23
(i) is a limited partnership duly organized, validly
existing and in good standing under the laws of the
State of Delaware, the general partner of which is
Glimcher Properties Corporation, a Delaware
corporation;
(ii) has all requisite partnership power and authority and
all necessary licenses and permits to own and operate
its properties and to carry on its business as now
conducted and as presently proposed to be conducted,
except to the extent that the lack thereof has no
material adverse effect on the properties, operations
or financial condition of the Guarantor, the Company
and their respective Subsidiaries, taken as a whole;
and
(iii) is not doing business or conducting any activity in
any jurisdiction in which it has not duly qualified
and become authorized to do business, except to the
extent that doing so has no material adverse effect
on the properties, operations or financial condition
of the Guarantor, the Company and their respective
Subsidiaries, taken as a whole.
(b) Glimcher Realty Trust:
(i) is a real estate investment trust duly organized and
existing under and by virtue of the laws of the State
of Maryland and in good standing with the Department
of Assessments and Taxation of Maryland;
(ii) has all requisite trust power and authority and all
necessary licenses and permits to own and operate its
properties and to carry on its business as now
conducted and as presently proposed to be conducted,
except to the extent that the lack thereof has no
material adverse effect on the properties, operations
or financial condition of the Guarantor, the Company
and their respective Subsidiaries, taken as a whole;
and
(iii) is not doing business or conducting any activity in
any jurisdiction in which it has not duly qualified
and become authorized to do business, except to the
extent that doing so has no material adverse effect
on the properties, operations or financial condition
of the Guarantor, the Company and their respective
Subsidiaries, taken as a whole.
17
<PAGE> 24
(c) Glimcher Properties Corporation:
(i) is a corporation duly organized, validly existing and
in good standing under the laws of the State of
Delaware;
(ii) has all requisite corporate power and authority and
all necessary licenses and permits to own and operate
its properties and to carry on its business as now
conducted and as presently proposed to be conducted,
except to the extent that the lack thereof has no
material adverse effect on the properties, operations
or financial condition of the Guarantor, the Company
and their respective Subsidiaries, taken as a whole;
and
(iii) is not doing business or conducting any activity in
any jurisdiction in which it has not duly qualified
and become authorized to do business, except to the
extent that doing so has no material adverse effect
on the properties, operations or financial condition
of the Guarantor, the Company and their respective
Subsidiaries taken as a whole.
8.3 Financial Statements.
--------------------
The consolidated financial statements of Glimcher Realty Trust and its
affiliates for the year ended December 31, 1996, provided to the Banks, fairly
represent the Company's, the Guarantor's and their respective Subsidiaries'
financial conditions as of such date. There has been no material adverse change
in the Company's or the Guarantor's financial condition since that date.
8.4 Full Disclosure.
---------------
The financial information referred to in Section 8.3 does not, nor does
this Agreement or any written statement furnished by the Company or the
Guarantor to the Banks in connection with obtaining the Loan, contain any untrue
statement of a material fact or omit a material fact necessary to make the
statements contained therein or herein not misleading. There is no fact
(excepting facts relating to generally prevailing economic conditions ) that the
Company or the Guarantor has not disclosed to the Banks in writing which
materially adversely affects the properties, business, prospects, profits or
condition (financial or otherwise) of the Company, the Guarantor and their
respective Subsidiaries, taken as a whole, or the ability of the Company or the
Guarantor to perform this Agreement.
18
<PAGE> 25
8.5 Pending Litigation.
------------------
Except as set forth in Glimcher Realty Trust's annual report on Form
10-K for the year ended December 31, 1996, there are no proceedings pending, or
to the knowledge of the Company or the Guarantor threatened, against or
affecting the Company or the Guarantor in any court or before any governmental
authority or arbitration board or tribunal which, individually or in the
aggregate, involve the likelihood of materially and adversely affecting the
properties, business, prospects, profits or condition (financial or otherwise)
of the Company, the Guarantor and their respective Subsidiaries, taken as a
whole, or the ability of the Company or the Guarantor to perform this Agreement.
8.6 Borrowing is Legal and Authorized.
---------------------------------
(a) The General Partner of the Company has duly authorized the
execution and delivery of this Agreement and of the notes and documents
contemplated herein, and this Agreement, the note or notes executed in
connection with this Agreement and the other Loan Documents will constitute
valid and binding obligations of the Company enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights generally, to general equitable
principles or to applicable doctrines of commercial reasonableness.
(b) The respective Trustees and Directors of the Guarantor have duly
authorized the execution and delivery of this Agreement and of the Guaranty
contemplated herein, and the Guaranty will constitute a valid and binding
obligation of the Guarantor enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally, to general equitable principles and to
applicable doctrines of commercial reasonableness.
(c) The execution of this Agreement and related notes, the Guarantor's
guarantees and other documents by the Company and the Guarantor respectively and
the compliance by the Company and the Guarantor with all the provisions of this
Agreement and the other Loan Documents are within the respective partnership,
trust or corporate powers of the Company and the Guarantor, and are legal and
will not conflict with, result in any breach in any of the provisions of,
constitute a default under, or result in the creation of any lien or encumbrance
upon any property of the Company or the Guarantor under the provisions of, any
material agreement, charter instrument,
19
<PAGE> 26
bylaw or other instrument to which the Company or the Guarantor is a party or by
which it may be bound.
(d) There are no limitations in any material indenture, mortgage, deed
of trust or other agreement or instrument to which the Company or the Guarantor
is now a party or by which the Company or the Guarantor may be bound with
respect to the payment of principal or interest on any indebtedness of the
Company or the Guarantor, including the note or notes to be executed in
connection with this Agreement.
8.7 No Defaults.
-----------
No event has occurred and no condition exists which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default pursuant
to this Agreement. Neither the Company nor the Guarantor is in violation in any
material respect of any term of any material agreement, charter instrument,
bylaw or other material instrument to which it is a party or by which it may be
bound.
8.8 Government Consent.
------------------
Neither the nature of the Company or the Guarantor or of either of its
business or properties, nor any relationship between the Company or the
Guarantor and any other entity or person, nor any circumstance in connection
with the execution of this Agreement, is such as to require a consent, approval
or authorization of, or filing, registration or qualification with, any
governmental authority on the part of the Company or the Guarantor as a
condition to the execution and delivery of this Agreement and the notes and
documents contemplated herein.
8.9 Taxes.
-----
(a) All tax returns required to be filed by the Company or the
Guarantor in any jurisdiction have in fact been filed prior to their due date or
any extension thereof, and all taxes, assessments, fees and other governmental
charges upon the Company or the Guarantor, or upon any of either of its
respective properties, which are due and payable have been paid or adequate
provision or reserve for the payment thereof has been made. Neither the Company
nor the Guarantor know of any proposed additional tax assessment against it
exceeding in amount $1,000,000.00 as to any one property or $20,000,000.00 in
the aggregate.
20
<PAGE> 27
(b) The Company and the Guarantor possess sufficient cash to pay all
taxes for their respective current fiscal periods.
8.10 Compliance with Law.
-------------------
Neither the Company nor the Guarantor:
(a) is in violation of any laws, ordinances, governmental rules or
regulations to which it is subject; or
(b) has failed to obtain any licenses, permits, franchises or
other governmental authorizations necessary to the ownership
of its properties or to the conduct of its business,
which violation or failure to obtain might materially and adversely affect the
business, prospects, profits, properties or condition (financial or otherwise)
of the Company, the Guarantor and their respective Subsidiaries, taken as a
whole.
8.11 Restrictions on Company and Guarantor.
-------------------------------------
Neither the Company nor the Guarantor is a party to any contract or
agreement, or subject to any charter or other restriction, which materially and
adversely affects the business of the Company or the Guarantor. Neither the
Company nor the Guarantor is a party to any contract or agreement which
restricts the right or ability of the Company or the Guarantor to incur
indebtedness, other than this Agreement. Neither the Company nor the Guarantor
has agreed or consented to cause or permit in the future (upon the happening of
a contingency or otherwise) any of its property included in the Collateral Pool
to be subject to a lien or encumbrance, except as may be otherwise permitted
pursuant hereto.
8.12 Environmental Protection.
------------------------
Each of the Company and the Guarantor (a) has no actual knowledge of
the permanent placement, burial or disposal of any Hazardous Substances (as
hereinafter defined) on any real property owned by the Company that is part of
the Collateral Pool (the "Premises"), of any spills, releases, discharges,
leaks, or disposal of Hazardous Substances that have occurred or are presently
occurring on, under, or onto the Premises, or of any spills, releases,
discharges, leaks or disposal of Hazardous Substances that have occurred or are
occurring off the Premises as a result of the Company's or the Guarantor's
improvement, operation, or use of the Premises which would result
21
<PAGE> 28
in non-compliance with any of the Environmental Laws (as hereinafter defined);
(b) is and has been in compliance with all applicable Environmental Laws; (c)
knows of no pending or threatened environmental civil, criminal or
administrative proceedings against the Company or the Guarantor relating to
Hazardous Substances; (d) knows of no facts or circumstances that would give
rise to any future civil, criminal or administrative proceeding against the
Company or the Guarantor relating to Hazardous Substances; and (e) will not
permit any of its employees, agents, contractors, subcontractors, or any other
person occupying or present on the Premises to generate, manufacture, store,
dispose or release on, about or under the Premises any Hazardous Substances
which would result in the Premises not complying with the Environmental Laws.
As used herein, "Hazardous Substances" shall mean and include all
hazardous and toxic substances, wastes, materials, compounds, pollutants
and contaminants (including, without limitation, asbestos, polychlorinated
biphenyls, and petroleum products) which are included under or regulated by the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. Section 9601, ET SEQ., the Toxic Substances Control Act, 15
U.S.C. Section 2601, ET SEQ., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, ET SEQ., the Water Quality Act of 1987, 33 U.S.C. Section
1251, ET SEQ., and the Clean Air Act, 42 U.S.C. Section 7401, ET SEQ., or any
state or local statute ordinance, law, code, rule, regulation or order
regulating or imposing liability (including strict liability) or standards of
conduct regarding Hazardous Substances (hereinafter the "Environmental Laws"),
but does not include such substances as are permanently incorporated into a
structure or any part thereof in such a way as to preclude their subsequent
release into the environment, or the permanent or temporary storage or disposal
of household hazardous substances by tenants, and which are thereby exempt from
or do not give rise to any violation of the forementioned Environmental Laws.
Further, the Company and the Guarantor hereby indemnify the Banks and
hold the Banks harmless from and against any loss, damage, cost, expense or
liability (including strict liability) directly or indirectly arising out of or
attributable to the generation, storage, release, threatened release, discharge,
disposal or presence (whether prior to or during the term of the Loan) of
Hazardous Substances on, under or about all of the Premises (whether by the
Company or the Guarantor or any employees, agents, contractor or subcontractors
of the Company or any
22
<PAGE> 29
predecessor in title of either or any third persons occupying or present on the
Premises), or the breach of any of the representations and warranties set forth
in this Section 8.12 regarding the Premises, including, without limitation: (a)
those damages or expenses arising under the Environmental Laws; (b) the costs of
any required or necessary repair, cleanup or detoxification of the Premises,
including the soil and ground water thereof, and the preparation and
implementation of any closure, remedial or other required plans; (c) damage to
any natural resources; and (d) all reasonable costs and expenses incurred by the
Banks in connection with clauses (a), (b) and (c) including, but not limited to
reasonable attorneys' fees.
The indemnification provided for herein shall survive the payment in
full of the Loan and termination of the commitments contained in this Agreement,
but shall not apply to any losses, liabilities, damages, injuries, expenses or
costs incurred by any Bank to the extent that they arise from the gross
negligence or willful misconduct of such Bank.
8.13 Regulation U.
------------
Neither the Company nor the Guarantor is engaged in the business of
purchasing or selling margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) or extending credit to others for the
purpose of purchasing or carrying margin stock and no part of the proceeds of
any borrowing hereunder will be used to purchase or carry any margin stock or
for any other purpose which would violate any of the margin regulations of said
Board of Governors.
8.14 Americans with Disabilities Act.
-------------------------------
The Company and the Guarantor are and will remain in all respects in
compliance with the Americans with Disabilities Act, as the same may be amended
from time to time, with respect to all their properties owned now or in the
future, except only to the extent that non-compliance has and will have no
material adverse effect on any of the Collateral Pool properties or on the
properties, operations or financial condition of the Company, the Guarantor and
their respective Subsidiaries taken as a whole.
8.15 No Restrictions on Cash Flow.
----------------------------
Except for any restrictions imposed by governmental authorities, there
do not now and will not in the future exist any restrictions on the payment to
the Company or the Guarantor of the cash flow from any of the respective
properties of the Company or the Guarantor after payment of the debt
23
<PAGE> 30
service and operating expenses and funding of any required maintenance or
capital improvement reserve account associated with such property, nor will
there exist any such restrictions as to that portion of the cash flow from any
Joint Venture that is payable to the Company or the Guarantor by reason of their
respective pro rata ownership interests in such Joint Venture.
SECTION 9. CLOSING AND DISBURSEMENT CONDITIONS.
The obligation of the Banks to enter into this Agreement shall be
subject to the following conditions precedent:
9.1 Resolutions and Incumbency Certificate.
--------------------------------------
The Banks shall have received a certificate signed in his
representative capacity by the chief executive officer of the Company and the
Guarantor and dated as of the date of this Agreement certifying the adoption of
resolutions by the Board of Trustees and the Board of Directors, respectively,
of the Guarantor and the Board of Directors of the general partner of the
Company, in form and substance satisfactory to the Banks, authorizing the
execution of this Agreement and the notes, guarantees and other documents and
instruments provided for herein and the performance of all the acts contemplated
hereby, together with a certificate signed by the chief executive officer of the
Company certifying the names and offices of each of the executive officers of
the Company as of the date of this Agreement, in form and substance satisfactory
to the Banks, and containing the signature of each officer authorized to sign
this Agreement and any documents and instruments to be executed in connection
therewith.
9.2 Guarantees.
----------
Each of the Banks shall have received from Glimcher Realty Trust and
Glimcher Properties Corporation signed written agreements in the form of
Exhibits C and D respectively to this Agreement addressed to each Bank and
guaranteeing the payment of all present and future indebtedness owing from the
Company to such Bank in connection with this Agreement.
9.3 Opinion of Counsel.
------------------
The Co-Agents shall have received from the General Counsel for the
Company and the Guarantor the closing opinion described in Exhibit E to this
Agreement.
24
<PAGE> 31
9.4 Compliance with this Agreement.
------------------------------
The Company and the Guarantor shall have performed and complied in all
material respects with all agreements and conditions contained herein which are
required to be performed or complied with by the Company or the Guarantor before
or at closing.
9.5 Compliance Certificate.
----------------------
The Co-Agents shall have received certificates dated the date upon
which this Agreement is executed and signed by the chief executive officer or
chief financial officer of the Company and of the Guarantor, certifying that the
conditions specified in Section 9.4 have been fulfilled.
9.6 Warranties and Representations.
------------------------------
On the date of each advance pursuant to the Loan, the warranties and
representations set forth in Section 8 hereof shall be true and correct in all
material respects on and as of such date with the same effect as though such
warranties and representations had been made on and as of such date, except to
the extent that such warranties and representations expressly relate to an
earlier date.
9.7 Release by Certain Banks.
------------------------
The First National Bank of Chicago and Corestates, National Association
shall have been paid all sums owing to them under the First Restated Agreement,
shall have returned to the Administrative Agent the promissory note and
guaranties executed and delivered to them by the Company and the Guarantor and
shall have released and relinquished all rights and property interests acquired
under the First Restated Agreement.
9.8 Title Insurance, Appraisals, Surveys and Other Matters Concerning the
---------------------------------------------------------------------
Collateral Pool. The Company shall satisfy the following requirements with
- ---------------
respect to the Collateral Pool:
(a) The Company shall provide current ALTA title insurance
commitments and final mortgagee policies of title insurance
for each property and all appurtenant easements thereto
comprising the Collateral Pool with such reinsurance and
endorsements as the Banks may require, which commitments shall
be issued by an agent and underwriter acceptable to the Banks
and shall conform in all respects with the Administrative
Agent's title insurance requirements.
(b) The Banks shall have been able to procure from an independent
appraiser selected by the Co-Agents appraisals of the
properties in the Collateral Pool, confirmed by the
25
<PAGE> 32
Administrative Agent's review appraiser, establishing that the
maximum amount of the Loan is not more than 65% of the value
of the properties in the Collateral Pool.
(c) The Company shall within 15 days of the date of this Agreement
deliver to the Banks written evidence that the Company has
requested each anchor tenant and each major tenant in each
property in the Collateral Pool (as such tenants are
identified by the Co-Agents) to execute a Subordination,
Attornment and Non-Disturbance Agreement in a form approved by
the Co-Agents. The Company shall thereafter use its best
efforts to obtain the prompt execution of all such agreements.
(d) With respect to the property known as The Mall At Fairfield
Commons in Beavercreek, Ohio, the Company shall furnish a
current as-built survey complying in all respects with the
Administrative Agent's survey requirements, with a survey
certification on a form prescribed by the Administrative
Agent. With respect to each of the other properties comprising
the Collateral Pool, the Company shall execute an affidavit
indicating, among other things, that there have been no
improvements constructed or material alterations made on such
property subsequent to the surveys which were delivered to the
Administrative Agent in November, 1993.
(e) An additional affidavit with respect to all of the properties
comprising the Collateral Pool shall cover such other matters
as the Banks may require, including, without limitation,
matters concerning environmental compliance, mechanics' liens
and tenants-in-possession.
(f) In addition to the first mortgages to be delivered encumbering
each of the properties comprising the Collateral Pool, the
Company shall execute and deliver to the Administrative Agent,
as collateral agent for the Banks, UCC financing statements
encumbering the fixtures and personal property described in
the first mortgages, together with UCC-11 search reports from
each office in which the financing statements are to be filed
showing the Banks' security interest to be the only security
interest in the collateral.
26
<PAGE> 33
9.9 Post-Closing Documents.
----------------------
(a) The Company and the Guarantor shall from time to time at the
request of the Administrative Agent execute and deliver to the Banks such
amendments, substitute promissory notes and guarantees, in the form of Exhibits
A, B, C and D, and such other amendments to this Agreement as may become
necessary or appropriate based upon the addition of one or more commercial banks
as Banks pursuant to this Agreement.
(b) The Company and the Guarantor shall, in connection with every
proposed substitution of property into the Collateral Pool, execute and deliver
all such mortgage deeds, deeds of trust, financing statements and other
documents as may be deemed necessary or appropriate by the Co-Agents in order
to convey to the Administrative Agent for the benefit of the Banks a first
mortgage lien in such property and a first security interest in related personal
property, all in compliance with Section 9.8 hereof.
SECTION 10. COMPANY BUSINESS COVENANTS.
Effective on and after the date of this Agreement, so long as any of
the indebtedness provided for herein remains unpaid or the commitments made
herein shall not have been terminated, the Company and the Guarantor covenant as
follows:
10.1 Payment of Taxes and Claims.
----------------------------
The Company and the Guarantor will each pay before they become
delinquent:
(a) all taxes, assessments and governmental charges or levies
imposed upon it or its property; and
(b) all claims or demands of materialmen, mechanics, carriers,
warehousemen, landlords, bailees and other like persons which,
if unpaid, might result in the creation of a lien or
encumbrance upon its property,
PROVIDED that items of the foregoing description need not be paid while being
contested in good faith and by appropriate proceedings and provided further that
adequate book reserves have been established with respect thereto and provided
further that the Company's and the Guarantor's title to, and each of its right
to use, its property is not materially adversely affected thereby.
10.2 Maintenance of Properties and Corporate Existence.
-------------------------------------------------
The Company and the Guarantor each shall:
27
<PAGE> 34
(a) PROPERTY--maintain its property in good condition and make all
renewals, replacements, additions, betterments and
improvements thereto which are deemed necessary by it, except
where the failure to do so will not materially and adversely
affect any Collateral Pool property or the business,
prospects, profits, properties or condition (financial or
otherwise) of the Company, the Guarantor and their respective
Subsidiaries, taken as a whole;
(b) INSURANCE--maintain, with financially sound and reputable
insurers rated A or higher by A.M. Best Company, Inc. (or any
successor rating company), insurance with respect to its
properties and business against such casualties and
contingencies, of such types (including but not limited to
fire and casualty, public liability, products liability,
larceny, embezzlement or other criminal misappropriation
insurance) and in such amounts as is customary in the case of
corporations of established reputations engaged in the same or
a similar business and similarly situated;
(c) FINANCIAL RECORDS--keep true books of records and accounts in
which full and correct entries will be made of all its
business transactions, and reflect in its financial statements
adequate accruals and appropriations to reserves, all in
accordance with generally accepted accounting principles;
(d) LEGAL EXISTENCE AND RIGHTS--do or cause to be done all things
necessary (i) to preserve and keep in full force and effect
its existence, rights and franchises, and (ii) to maintain its
status as a limited partnership, corporation or real estate
investment trust respectively, duly organized and existing and
in good standing under the laws of the State of its formation;
and
(e) COMPLIANCE WITH LAW--not be in violation of any laws,
ordinances, or governmental rules and regulations to which it
is subject and will not fail to obtain any licenses, permits,
franchises or other governmental authorizations necessary to
the ownership of its properties or to the conduct of its
business, which violation or failure to obtain might
materially and adversely affect the Collateral Pool properties
or the business,
28
<PAGE> 35
prospects, profits, properties or condition (financial or
otherwise) of the Company, the Guarantor and their respective
Subsidiaries, taken as a whole.
10.3 Sale of Assets or Merger.
------------------------
(a) SALE OF ASSETS--Neither the Company nor the Guarantor will
except for a fair and adequate consideration, as determined in
the reasonable judgment of the Company, sell, lease, transfer
or otherwise dispose of, any of its assets having a book value
of more than $10,000,000.00.
(b) MERGER AND CONSOLIDATION--Neither the Company nor the
Guarantor will without the prior written consent of the
Required Banks consolidate with or merge into any other
entity, or permit any other entity to consolidate with or
merge into it, unless the Company and the Guarantor, as
applicable, will (i) be the surviving entity; (ii) immediately
following the consolidation or merger, have a Tangible Net
Worth equal to or exceeding that of the Company or the
Guarantor respectively immediately preceding the consolidation
or merger; and, (iii) after giving effect to the transaction,
will remain in full compliance with the terms of this
Agreement.
10.4 Liens and Encumbrances.
----------------------
(a) COLLATERAL POOL. Neither the Company nor the Guarantor will
without the prior written consent of the Required Banks, (i)
cause or permit or (ii) agree or consent to cause or permit in
the future (upon the happening of a contingency or otherwise),
any of its property that is then part of the Collateral Pool
to be subject to a lien or encumbrance except:
(i) liens securing taxes, assessments or governmental
charges or levies or the claims or demands of
materialmen, mechanics, carriers, warehousemen,
landlords and other like persons provided the Company
and the Guarantor remain in compliance with the
provisions of Section 10..1;
(ii) liens incurred or deposits made in the ordinary
course of business in connection with workmen's
compensation, unemployment insurance, social security
and other like laws;
29
<PAGE> 36
(iii) attachment, judgment and other similar liens arising
in connection with court proceedings, provided the
execution or other enforcement of such liens is
effectively stayed within a reasonable time and the
claims secured thereby are being actively contested
in good faith and by appropriate proceedings;
(iv) reservations, exceptions, encroachments, easements,
rights of way, covenants, conditions, restrictions,
leases and other similar title exceptions or
encumbrances affecting real property, provided they
do not in the aggregate materially detract from the
value of said property or materially interfere with
its use in the ordinary conduct of the owning
company's business;
(v) inchoate liens arising under ERISA to secure the
contingent liability of the Company or the Guarantor;
and
(vi) the liens in favor of the Banks conveyed pursuant to
the terms of this Agreement.
10.5 Other Borrowings.
----------------
Neither the Company nor the Guarantor will create or incur, pursuant to
any other line of credit or working capital loan, any indebtedness for borrowed
money or advances. Neither the Company nor the Guarantor shall incur any other
debt for borrowed money which provides for the creditor to have recourse to the
Company or the Guarantor other than (a) loan indebtedness incurred in the
ordinary course of business for real estate construction, expansion , renovation
and acquisition and (b) indebtedness of any unconsolidated affiliate of Glimcher
Realty Trust or the Company with aggregate exposure equal to less than 15% of
the total liabilities of the Company, the Guarantor and their respective
Subsidiaries.
10.6 [Intentionally omitted]
10.7 Loans and Advances.
------------------
Neither the Company nor the Guarantor will make any loans or advances
to any person, corporation or entity other than the parent or Subsidiaries of
either; provided, however, that the Company and the Guarantor may make loans or
advances to the employees of either in the ordinary course of business to the
extent that the loans or advances to any one employee do not exceed
30
<PAGE> 37
$10,000.00 in the aggregate; and, provided further, that the Company or the
Guarantor may establish management incentive programs approved by the
shareholders of Glimcher Realty Trust that involve loans to officers and
trustees in amounts not exceeding $100,000.00 per annum per officer and trustee.
Neither the Company nor the Guarantor will sell any real or personal property
through the taking of a note or any comparable credit arrangement, with the
exception of out-lot sales or tax-free or like-kind exchange transactions
pursuant to Section 1031 of the Internal Revenue Code, up to an aggregate of
sales prices of all such properties not covered by the exceptions of
$50,000,000.00, and provided that there is not then continuing an Event of
Default.
10.8 Acquisition of Capital Stock.
----------------------------
Neither the Company nor the Guarantor will redeem or acquire any of its
own partnership interests or shares of beneficial interest except that the
Guarantor may (a) exchange Common Shares for Units in the Borrower in accordance
with the terms described in the Guarantor's Prospectus dated January 19, 1994,
and make the other redemptions described therein; (b) redeem securities issued
in the future where such securities are redeemable by the terms of their
issuance; and (c) redeem additional shares from time to time to the extent that
the total payments made in connection with all such redemptions do not exceed
$500,000.00 in the aggregate.
10.9 [Intentionally omitted]
10.10 Tangible Net Worth.
------------------
The Company, the Guarantor and their Subsidiaries shall, on a
consolidated basis as of the end of each fiscal quarter, maintain an Adjusted
Tangible Net Worth in the amount of not less than $355,000,000.00, plus 80% of
the net proceeds of any public or private equity offering by Glimcher Realty
Trust. For the purposes of this Agreement, "Adjusted Tangible Net Worth" shall
mean total assets plus accumulated depreciation less total liabilities and
intangible assets.
10.11 [Intentionally omitted]
10.12 [Intentionally omitted]
10.13 [Intentionally omitted]
10.14 Investments in Joint Ventures.
-----------------------------
Investments in joint ventures by the Company and the Guarantor shall
not exceed $325,000,000.00 plus 40% of the net proceeds of any public or private
equity offering after the date
31
<PAGE> 38
of this Agreement, excluding proceeds received pursuant to the agreement with
Nomura Asset Capital Corporation for the payment of $135,000,000.00 existing on
the date of this Agreement.
10.15 ERISA.
-----
The Company and the Guarantor each shall with respect to any pension
plan or profit-sharing plan in effect now or in the future:
(a) at all times make prompt payment of contributions required to
meet the minimum funding standards set forth in Section 302
through 305 of ERISA with respect to its plan,
(b) promptly, after the filing thereof, furnish to the Co-Agents
copies of each annual report required to be filed pursuant to
Section 103 of ERISA in connection with its plan for the plan
year, including any certified financial statements or
actuarial statements required pursuant to said Section 103,
(c) notify the Co-Agents immediately of any fact, including, but
not limited to, any "Reportable Event," as that term is
defined in Section 4043 of ERISA, arising in connection with
the plan which might constitute grounds for termination
thereof by the Pension Benefit Guaranty Corporation or for the
appointment by the appropriate United States District Court of
a Trustee to administer the plan, and
(d) notify the Co-Agents of any "Prohibited Transaction" as that
term is defined in Section 406 of ERISA.
Neither the Company nor the Guarantor will:
(e) engage in any "Prohibited Transaction," or
(f) terminate any such plan in a manner which could result in the
imposition of a lien on the property of the Company or the
Guarantor pursuant to Section 4068 of ERISA.
10.16 Qualification of Glimcher Realty Trust as a REIT.
------------------------------------------------
Glimcher Realty Trust shall at all times be a real estate investment
trust, fully qualified as such under all applicable state and federal laws,
including without limitation federal income tax laws.
10.17 [Intentionally omitted]
-----------------------
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<PAGE> 39
10.18 Changes in Ownership Structure.
------------------------------
The general partner of the Company shall at all times be Glimcher
Realty Trust or a wholly-owned subsidiary of Glimcher Realty Trust.
10.19 Changes in Lines of Business.
----------------------------
Neither the Company nor the Guarantor shall make any material change in
the lines of business in which either is engaged without the prior written
consent of the Required Banks.
10.20 Interest Rate Protection Contract.
---------------------------------
The Company and the Guarantor shall at all times prior to June 30,
1998 maintain interest rate protection with respect to the Company's interest
obligations relating to the Loan from a company or companies and containing
terms satisfactory to the Co-Agents, including but not limited to protection
providing that the unprotected floating rate debt cannot exceed 15 % of Total
Asset Value (as defined in Section 10.29). The Company shall grant to the
Administrative Agent for the benefit of the Banks a first priority security
interest in every interest rate protection contract to which the Company is or
may become in the future a party with respect to the Company's interest
obligations relating to the Loan.
10.21 Further Appraisals.
------------------
The Company and the Guarantor agree that the Majority Banks shall have
the right at any time at the Banks' expense to obtain further appraisals of any
one or more of the properties comprising the Collateral Pool based upon the
Majority Banks' good faith belief that such appraisal is required by applicable
statute or regulation or by a decline in the value of any one or more of the
properties.
10.22 Sale of Glimcher Shares.
-----------------------
Neither Herbert Glimcher nor David Glimcher shall offer, sell, contract
to sell or otherwise dispose of or pledge or encumber, except to the extent
already hypothecated to the Company, any more than 50% (x) of the common shares
of beneficial interest of Glimcher Realty Trust owned by them on the date of
this Agreement or (y) of any securities or interests owned on such date and
convertible into or exercisable, exchangeable or redeemable for such common
shares of beneficial interest, except in connection with (a) the exercise of
employee stock options, (b) the sale of common shares acquired by either of them
in the open market, or (c) with the approval of the Co-
33
<PAGE> 40
Agents, which shall not be unreasonably withheld (and notice of which approval
shall be given by the Co-Agents to the Banks), the achievement of tax or estate
planning objectives.
10.23 [Intentionally omitted]
10.24 [Intentionally omitted]
10.25 Maximum Dividend Payout.
-----------------------
Maximum dividend payout as to common and preferred shares shall be 100%
of Funds from Operations for the Company, the Guarantor and their respective
Subsidiaries on a consolidated and cumulative basis over the prior four
quarters. "Funds from Operations" shall mean net income less gains from property
sales, plus losses from property sales and debt restructurings, amortization and
depreciation, noncash expense and minority interest expense, less the sum of
scheduled principal payments, excluding balloon payments, and capital
expenditures. For the purposes of this section, capital expenditures will be
assumed to be $.15 per square foot of gross leaseable area in the properties
operated and maintained by the Company, excluding ground leases, in excess of
five years old. Cash flow from properties that secure loans that are in default
and as to which the indebtedness has been accelerated will be excluded from the
calculation of Funds from Operations.
10.26 Other Agreements.
----------------
Neither the Company nor the Guarantor shall enter into any agreement
with any party that contains (a) a negative pledge, (b) an agreement not to
convey or permit liens or (c) any comparable covenant. Notwithstanding the
provisions of the foregoing sentence to the contrary, the Company and/or the
Guarantor shall be permitted to enter into agreements containing a negative
pledge, an agreement not to convey or permit liens or comparable covenants (in
the aggregate, "Negative Pledge Covenants") under the following circumstances:
(i) Negative Pledge Covenants may be provided in the Collateral Assignment of
Preferred Partnership Interest (the "Security Agreement") in which Guarantor
grants a security interest to Nomura Asset Capital Corporation (or an affiliate
thereof) in preferred partnership interests issued by Borrower to Guarantor, to
the extent any such security interest secures: Guarantor's obligation to repay,
redeem or repurchase, in the event of the sale or refinance of a shopping mall,
monies paid by Nomura Asset Capital Corporation or an affiliate thereof to
purchase preferred stock, the proceeds of which were used by Guarantor, directly
or indirectly, to acquire or construct Glimcher/Glaziers LA MetroMall LLC,
Glimcher/Glaziers NJ
34
<PAGE> 41
MetroMall LLC, California MetroMall LLC, Elizabeth MetroMall LLC, Olathe Mall
LLC and Great Plains MetroMall LLC; Guarantor's obligation to pay dividends on
equity interests issued by Guarantor in return for such contributions; and
obligations of Guarantor relating to its entering into the Security Agreement;
(ii) Negative Pledge Covenants may be given to lenders in documenting any first
mortgage financing obtained in order to acquire, construct, develop, redevelop,
expand or renovate, either directly or indirectly, properties owned or to be
acquired with the proceeds of such mortgage financing by Company or Guarantor,
provided that such Negative Pledge Covenants relate solely to the properties
being financed; and (iii) Negative Pledge Covenants may be given to the extent
the same are customary in any easement agreements, development agreements,
redevelopment agreements, or similar agreements entered into in connection with
financing of the type described in (ii) above; provided, however, that in no
event shall any Negative Pledge Covenants be given with respect to the
Collateral Pool.
10.27 Investment in Retail Properties.
-------------------------------
The net investment of the Company, the Guarantor and their respective
Subsidiaries in enclosed regional malls, community shopping centers and single
tenant retail properties shall at all times equal not less than 90% of
consolidated total assets; provided, that there may be included in the
calculation of such net investment any funds received from the sale of
commercial real estate properties and held in deposit accounts or similar
short-term investments for a period of not longer than one year.
10.28 Ratio of Project Costs to Asset Value.
-------------------------------------
The Company's and the Guarantor's pro-rated share of the aggregate
budgeted project costs of all projects under construction and not yet open to
the general shopping public for a period of six months, excluding any
infrastructure or off-site improvement costs that have been publicly financed,
shall not exceed 30% of Total Asset Value, as defined in Section 10.29 hereof.
The Company's and the Guarantor's pro-rated share of such project costs shall be
deemed to be the higher of the percentage of their liability for indebtedness
incurred in connection with the project or their percentage ownership interest
in such project.
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<PAGE> 42
10.29 Total Debt to Total Asset Value
-------------------------------
The consolidated total debt of the Company, the Guarantor and their
respective Subsidiaries (determined in accordance with generally accepted
accounting principles), plus, as to unconsolidated affiliates, the product of
the outstanding debt of such affiliates and the greater of (i) the percentage of
such affiliates' debt for which creditors of such affiliates have recourse to
the Company for the Guarantor, or (ii) the percentage of the aggregate ownership
of the Company and the Guarantor in such affiliate ("Glimcher Percentage"),
shall not exceed 60% of the Total Asset Value, to be tested as of the end of
each fiscal quarter. "Total Asset Value" shall mean the aggregate of the
Company's, the Guarantor's and their respective Subsidiaries' cash and cash
substitutes, Value of Wholly-Owned Properties and Value of Partially-Owned
Properties. "Value of Wholly-Owned Properties" means the sum of the following:
(1) the Company's and the Guarantor's EBITDA from the preceding
four consecutive quarters, less EBITDA from properties owned
for less than twelve (12) months (but not including any
properties included in category (3) below) less income plus
losses from unconsolidated ventures divided by a
capitalization rate of 9.5%;
(2) the actual purchase price of properties (exclusive of soft
costs paid by the buyer or the seller) that have been owned
less than twelve (12) months (but not including any properties
included in category (3) below);
(3) the market value of each project under development, which
shall be its cost until earlier of (A) 48 months from the
beginning of construction, (B) 30 months from the issuance of
the Certificate of Occupancy for such development property, or
(C) 24 months from the opening of such development property to
the general shopping public; and
(4) for each expansion of a property for the purpose of increasing
that property's gross leaseable area, where such expansion is
undertaken pursuant to a budget containing construction
expenses deemed reasonable and appropriate by the Co-Agents
and in an aggregate amount in excess of $5,000,000.00, the
amounts expended by the Company and the Guarantor pursuant to
that budget.
"Value of Partially-Owned Properties" means the sum of the following:
36
<PAGE> 43
(1) the value of all partially-owned and not consolidated
operating properties owned for at least twelve (12) months
(but not including any properties included in category (3)
below), which shall be the sum of, for each property, the
product of that property's EBITDA and the Glimcher Percentage
of the affiliate that owns such property, divided by a 9.5%
capitalization rate;
(2) the value of partially-owned and not consolidated operating
properties owned for less than twelve (12) months (but not
including any properties included in category (3) below),
which shall be the sum of, for each property, the product of
that property's purchase price (exclusive of soft costs paid
by the buyer or the seller) and the Glimcher Percentage of the
affiliate that owns such property;
(3) the value of partially-owned and not consolidated development
properties, which shall be the sum of, for each such property,
until the earlier of (A) 48 months from the beginning of
construction, (B) 30 months from the issuance of the
Certificate of Occupancy for such development property, or,
(C) 24 months from the opening of such development property to
the general shopping public, the product of that property's
cost and the Glimcher Percentage of the affiliate that owns
such property; and
(4) for each expansion of a partially-owned and not consolidated
property for the purpose of increasing that property's gross
leasable area, where such expansion is undertaken pursuant to
a budget containing construction expenses deemed reasonable
and appropriate by the Co-Agents and in an aggregate amount in
excess of $5,000,000.00, the product of the amounts expended
by the Company and the Guarantor pursuant to that budget and
the Glimcher Percentage of the affiliate that owns such
property.
10.30 EBITDA to Total Debt Service of Consolidated and Unconsolidated
---------------------------------------------------------------
Affiliates.
- -----------
The ratio of the Company's, the Guarantor's and their respective
Subsidiaries' EBITDA, plus, as to unconsolidated affiliates, the product of the
EBITDA of each such affiliate and the greater of (i) the percentage of such
affiliates' debt for which creditors of such affiliates' have recourse to the
Company or the Guarantor, or (ii) the percentage of the aggregate ownership of
the Company and
37
<PAGE> 44
the Guarantor in such affiliate, to "Total Consolidated and Unconsolidated Debt
Service" shall be not less than 1.75, calculated as of the end of each fiscal
quarter for the four calendar quarters preceding such date.
"Total Consolidated and Unconsolidated Debt Service" shall mean the sum
of (a) the Company's, the Guarantor's and their respective Subsidiaries'
interest incurred plus scheduled debt amortization, excluding balloon payments,
and (b) as to unconsolidated affiliates, the product of interest incurred plus
scheduled debt amortization, excluding balloon payments, and such affiliate's
Glimcher Percentage. Interest incurred on construction loans with a sufficient
budgeted interest reserve to carry debt service until the project is operating
or occupied will be excluded from total interest incurred.
10.31 Notice of Other Defaults.
------------------------
The Company and the Guarantor shall give prompt written notice to the
Co-Agents (a) upon the failure of the Guarantor to make any preferred dividend
payment owing to Nomura Asset Capital Corporation or any of its affiliates, or
(b) upon the occurrence of any default by the Company, the Guarantor or any of
their affiliates in the performance of any obligation owing to Nomura Asset
Capital Corporation or any of its affiliates under any instrument, agreement or
other writing.
SECTION 11. INFORMATION AS TO COMPANY AND GUARANTOR.
The Company and the Guarantor shall deliver the following to the
Administrative Agent for distribution to the Banks; provided, however, that a
failure to make such delivery shall constitute an Event of Default only if such
failure persists for five (5) business days:
(a) within 45 days after the end of each quarter, or, if the
Company and the Guarantor are, for financial reporting
purposes, consolidated with or as a reporting company under
Section 12 of the Securities Exchange Act of 1934, as amended,
five (5) business days after such consolidated entity is
required to file such statements with the Securities Exchange
Commission, unaudited financial statements, including a
balance sheet and statements of income and surplus, prepared
on a consolidated basis, certified by the Guarantor's chief
executive officer, president or chief financial
38
<PAGE> 45
officer in their respective representative capacities as
fairly representing its financial condition as of the end of
such period;
(b) within 45 days after the end of each quarter (including the
fourth fiscal quarter), or by such later time as may be
permitted for the delivery of quarterly financial statements
pursuant to Section 11(a), a statement signed by each of the
Guarantor's and the Company's chief executive officer,
president or chief financial officer in their respective
representative capacities certifying the compliance by each
with the terms of this Agreement; providing calculations
demonstrating the Company's compliance with the covenants
contained in Sections 10.5(b), 10.10, 10.20, 10.25, 10.27,
10.29 and 10.30 hereof; and calculating the Company's
Aggregate Borrowing Base as provided in Section 1.1 hereof and
the Company's Leverage and resulting Applicable Percentage as
both are defined in Section 2.2 of this Agreement;
(c) within 45 days after the end of each quarter, or by such later
time as may be permitted for the delivery of quarterly
financial statements pursuant to Section 11(a), a report
signed by the chief executive officer, president or chief
financial officer of the Company in their respective
representative capacities containing the quarterly operating
statements for each property constituting part of the
Collateral Pool; quarterly rent rolls for each such project,
such rent rolls to be certified by the chief financial officer
of the Company in his representative capacity; and, if
prepared by the Company or the Guarantor, updated versions of
the Company's annual cash flow projection, containing a
comparison of budgeted to actual amounts and detailing
projects in construction;
(d) within 120 days of the end of each fiscal year, or, if the
Company and the Guarantor are, for financial reporting
purposes, consolidated with or a reporting company under
Section 12 of the Securities Exchange Act of 1934, as amended,
five (5) business days after such consolidated entity is
required to file such statements with the Securities Exchange
Commission, an audited financial statement prepared with
respect to the Company, the Guarantor and their respective
Subsidiaries on a consolidated basis in accordance with
generally accepted accounting principles
39
<PAGE> 46
consistently applied by the Company's independent public
accountants or other independent public accountants reasonably
satisfactory to the Co-Agents, containing a balance sheet and
statements of income and surplus, along with any management
letters written by such accountants, together with a financial
statement prepared by the Company on a consolidating basis and
certified by the chief executive officer, president or chief
financial officer in his respective representative capacity;
(e) not later than 30 days preceding the beginning of the
Guarantor's fiscal year, a consolidated operating budget in
the form of Exhibit F-1 to this Agreement for that year for
the Company, the Guarantor and their respective Subsidiaries,
together with an operating budget for such year for each
property constituting part of the Collateral Pool in the form
of Exhibit F-2 to this Agreement;
(f) within 120 days of the end of each fiscal year, or by such
later time as may be permitted for the delivery of an audited
financial statement pursuant to Section 11(d), a statement
signed by the Guarantor's independent public accountants
certifying that they have not become aware of any default by
the Company or the Guarantor in the performance of this
Agreement;
(g) within five (5) business days after filing, or by such later
time as may be permitted herein for the delivery of annual and
quarterly financial information, copies of all Forms 10K, 10Q
and 8K and of all other material reports, statements and other
information filed with state or federal securities regulators
or mailed to shareholders;
(h) by the time required for the delivery of quarterly financial
statements pursuant to Section 11(a), copies of the quarterly
internal reviews prepared by the Guarantor to insure the
continuing qualification of the Guarantor as a real estate
investment trust under federal tax laws;
(i) immediately upon becoming aware of the existence of any
condition or event which constitutes an Event of Default, a
written notice specifying the nature and period of existence
thereof and what action the Company and the Guarantor are
taking or propose to take with respect thereto;
40
<PAGE> 47
(j) prior to making or permitting to be made any changes in the
Company's Limited Partnership Agreement, in Glimcher Realty
Trust's Declaration of Trust, Bylaws or Articles
Supplementary, in Glimcher Properties Corporation's
Certificate of Incorporation or Bylaws, or in any of the other
organizational documents of the Company or the Guarantor, a
written notice of the proposed change; and
(k) within thirty (30) days after the request of the Required
Banks, such other information as the Required Banks may from
time to time reasonably require, including without limitation
such information as may be reasonably required by the
Co-Agents in connection with obtaining commitments from
additional Banks, and further including without limitation
reasonable access to the Company's or the Guarantor's
properties and to its books and records relating to its
commercial real estate projects.
SECTION 12. EVENTS OF DEFAULT.
12.1 Nature of Events.
----------------
An "Event of Default" shall exist if any of the following occurs and is
continuing:
(a) the Company fails to make any payment of principal on any note
executed in connection with this Agreement on or before the
date such payment is due;
(b) the Company fails to make any payment of interest on any note
executed in connection with this Agreement on or before five
days after the date such payment is due;
(c) the Company or the Guarantor fails to perform or observe any
covenant contained in Sections 5, 7, 10.2(c), (d) and (e),
10.3, 10.4, 10.5, 10.7, 10.8, 10.10, 10.16, 10.18, 10.19,
10.20, 10.22, 10.25, 10.26, 10.29 through 10.31 or 11(a)
through 11(k) of this Agreement;
(d) the Company or the Guarantor fails to comply with any other
provision of this Agreement, and such failure continues for
more than 30 days after such failure shall first become known
to any executive officer of the Company or the Guarantor;
41
<PAGE> 48
(e) any warranty, representation or other statement by or on
behalf of the Company or the Guarantor contained in this
Agreement or in any instrument furnished in compliance with or
in reference to this Agreement is false or misleading in any
material respect;
(f) the Company or either of the business entities that comprise
the Guarantor becomes insolvent or bankrupt, or makes an
assignment for the benefit of creditors, or consents to the
appointment of a trustee, receiver or liquidator;
(g) bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings are instituted by or against the
Company or either of the business entities that comprise the
Guarantor and, in the case of any such proceedings being
instituted against the Company or either of the business
entities that comprise the Guarantor, remain undismissed for a
period of 60 days;
(h) a final judgment or judgments, from which no further right of
appeal exists, for the payment of money aggregating in excess
of $5,000,000.00 is or are outstanding against the Company or
the Guarantor and any one of such judgments has been
outstanding for more than 30 days from the date of its entry
and has not been discharged in full, stayed or bonded;
(i) the Company or the Guarantor fails to make any payment or to
perform or observe any covenant owing to any of the Banks or
to any third party pursuant to any agreement to repay borrowed
money, and any applicable grace period has expired, to the
extent that such failure as to any indebtedness to any third
party permits such third party to accelerate the maturity of
the indebtedness and the indebtedness exceeds $8,000,000.00,
or there shall exist any Default by Glimcher Realty Trust in
the performance of any of its obligations pursuant to its
Articles Supplementary (as Default is defined therein).
12.2 Default Remedies.
----------------
(a) REMEDIES--If an Event of Default exists, the Co-Agents or, subject
to the terms of Sections 14.12 and 14.13 hereof, any one or more of the Banks,
may immediately exercise any right, power or remedy permitted to the Co-Agents
or any of the Banks by law or any provision of this
42
<PAGE> 49
Agreement, and shall have, in particular, without limiting the generality of the
foregoing, the right to cease the making of Advances and the issuance of standby
letters of credit and the right to declare the entire principal and all interest
accrued on all notes then outstanding pursuant to this Agreement to be forthwith
due and payable, without any presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Company and the Guarantor;
PROVIDED, HOWEVER, that upon the occurrence of an Event of Default pursuant to
Section 12.1(f) or (g), the entire principal and all interest accrued on all
notes then outstanding pursuant to this Agreement shall automatically become due
and payable; and, PROVIDED FURTHER, that the exercise of judicial remedies by
individual Banks pursuant to the notes and guarantees held by those Banks shall
only be permitted if the Majority Banks, the Co-Agents and the Administrative
Agent shall have failed to perform the obligations described in Section 14.12.
(b) NONWAIVER; REMEDIES CUMULATIVE--No course of dealing on the part of
the Banks, nor any delay or failure on the part of the Banks in exercising any
rights, powers or privileges hereunder or under any of the other Loan Documents,
shall operate as a waiver of such rights, powers or privileges or otherwise
prejudice any of the Banks' rights and remedies hereunder or under any of the
other Loan Documents; nor shall any single or partial exercise thereof preclude
any further exercise thereof or the exercise of any other right, power or
privilege by the Banks. No right or remedy conferred upon or reserved to the
Banks under this Agreement is intended to be exclusive of any other right or
remedy, and every right and remedy shall be cumulative and in addition to every
other right or remedy given hereunder or thereunder or now or hereafter existing
under any applicable law. Every right and remedy given by this Agreement or any
of the Loan Documents or by applicable law to the Banks may be exercised from
time to time and as often as may be deemed expedient by the Banks.
(c) RIGHT OF SET-OFF--Upon the occurrence and during the continuance of
any Event of Default hereunder, each of the Banks is hereby authorized at any
time and from time to time, without notice to the Company or the Guarantor (any
such notice being expressly waived by the Company or the Guarantor) and to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by any of the Banks to or for the credit or
the account of the Company or the
43
<PAGE> 50
Guarantor against any and all of the obligations of the Company or the Guarantor
now or hereafter existing under this Agreement, irrespective of whether or not
such Bank shall have made any demand hereunder and although such obligations may
be unmatured. The application and distribution of funds obtained from any set
off shall be subject to the terms of Section 14.13 of this Agreement.
SECTION 13 MISCELLANEOUS.
13.1 Notices.
-------
(a) All communications under this Agreement or under the notes executed
pursuant hereto shall be in writing and shall be mailed by first class mail,
postage prepaid,
(1) if to The Huntington National Bank or KeyBank
National Association, whether in their capacities as
Banks, Co-Agents or, in the case of The Huntington
National Bank, Administrative Agent, at the following
address, or at such other address as may have been
furnished in writing to the Company and the Guarantor
by the Bank:
The Huntington National Bank
41 South High Street
Columbus, Ohio 43215
Attention: Carol G. Smith
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114-1306
Attention: Renee Rush Csuhran
(2) If to the Banks other than The Huntington National
Bank and KeyBank National Association, at the
following addresses, or at such other address as may
have been furnished in writing to the Company and the
Guarantor by the respective Bank:
Fleet National Bank
Mail Stop MA/BO/F11C
75 State Street
Boston, MA 02109
Attention: Thomas T. Hanold
Star Bank, N.A.
501 West Schrock Road
Westerville, Ohio 43081
Attention: Marilyn Miller
PNC Bank, Ohio, National Association
201 East Fifth Street
8th Floor
Cincinnati, Ohio 45202
Attention: Dan Heberle
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<PAGE> 51
The Provident Bank
One East Fourth Street
Cincinnati, Ohio 45202
Attention: Brent Johnson
National City Bank, Columbus
155 East Broad Street
Columbus, Ohio 43215
Attention: Steven A. Smith
Bankers Trust Company
280 Park Avenue
New York, New York 10017
Attention: Jeff Baevsky
(3) if to the Company or the Guarantor, at the following
respective addresses, or at such other address as may
have been furnished in writing to the Banks by the
Company or the Guarantor respectively:
Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
Glimcher Realty Trust
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
Glimcher Properties Corporation
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
(b) Any notice so addressed and mailed by registered or certified mail
shall be deemed to be given when so mailed.
13.2 Reproduction of Documents.
-------------------------
This Agreement and all documents relating hereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, (b) documents received by the Administrative Agent, the Co-Agents or
the Banks at the closing or otherwise, and (c) financial statements,
certificates and other information previously or hereafter furnished to the
Administrative Agent, the Co-Agents or the Banks, may be reproduced by those
parties by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process and those parties may destroy any original
document so reproduced. The Company and the Guarantor agree and stipulate that
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not
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<PAGE> 52
such reproduction was made by the Administrative Agent, the Co-Agents or the
Banks in the regular course of business) and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
13.3 Survival.
--------
All warranties, representations, and covenants made by the Company or
the Guarantor herein or on any certificate or other instrument delivered by it
or on its behalf under this Agreement shall be considered to have been relied
upon by the Banks and shall survive the closing of the Loan regardless of any
investigation made by the Banks, the Co-Agents or the Administrative Agent. All
statements in any such certificate or other instrument shall constitute
warranties and representations by the Company or the Guarantor.
13.4 Successors and Assigns.
----------------------
This Agreement shall inure to the benefit of and be binding upon the
legal representatives, successors and assigns of each of the parties.
13.5 Duplicate Originals.
-------------------
Two or more duplicate originals of this Agreement may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument.
13.6 Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio.
13.7 Accounting Terms and Computations.
---------------------------------
Whenever any accounting term shall be used herein or the character or
amount of any asset or liability or item of income or expense is required to be
determined, or any consolidation or other accounting computation is required to
be made, for the purpose of this Agreement, such accounting term, such
determination or computation shall, to the extent applicable and except as
otherwise specified in this Agreement, be defined or made (as the case may be)
in accordance with generally accepted accounting principles in the United States
applied (in the case of determinations or computations) on a basis consistent
with those applied in the preparation of the financial statements referred to in
Section 8.3 hereof.
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<PAGE> 53
13.8 Consent to Jurisdiction and Waiver of Objection to Venue.
--------------------------------------------------------
The Company and the Guarantor agree that any legal action or proceeding
with respect to this Agreement or the notes or the transactions contemplated
hereby may be brought in the Court of Common Pleas of Franklin County, Ohio, or
in the United States District Court for the Southern District of Ohio, Eastern
Division, and each of the Company and the Guarantor hereby irrevocably submit to
and accept generally and unconditionally the jurisdiction of those courts with
respect to its person, property and revenues and irrevocably consents to service
of process in any such action or proceeding by the mailing thereof by U.S. mail
to the Company at the Company's address set forth in Section 13.1 hereof.
The Company and the Guarantor hereby irrevocably waive any objection to
the laying of venue of any such suit or proceeding in the above described
courts, and unconditionally waive and agree not to plead or claim that any such
suit or proceeding brought in any such court has been brought in an inconvenient
forum, provided, that this provision shall not preclude the Company or the
Guarantor from seeking to consolidate actions brought against it.
Nothing in this paragraph shall affect the right of the Banks, the
Co-Agents or the Administrative Agent to serve process in any other manner
permitted by law or limit the right of the Banks, the Co-Agents or the
Administrative Agent to bring any such action or proceeding against the Company
or the Guarantor or to obtain execution on any judgment in any other
jurisdiction or in any other manner permitted by law.
13.9 WAIVER OF JURY TRIAL.
--------------------
THE PARTIES ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE
BETWEEN THE PARTIES, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS
AGREEMENT ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY.
ACCORDINGLY, EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO THIS
AGREEMENT OR TO ANY OF THE OTHER INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION
HEREWITH.
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13.10 Definitions.
-----------
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the meanings indicated for purposes of this Agreement
(such meanings to be equally applicable to both singular and plural forms of the
terms defined):
"Adjusted Tangible Net Worth" means total assets plus accumulated
depreciation less total liabilities and intangible assets.
"Administrative Agent" means The Huntington National Bank as
administrative agent for the Banks hereunder, and each successor, as provided in
Section 14.3, who shall act as an Administrative Agent.
"Advance" shall mean a sum borrowed as part of the Loan, whether
pursuant to a request made by the Company as provided in Section 2.3 or for the
reimbursement of a drawing under a letter of credit as provided in Section 1.2
"Aggregate Borrowing Base" has the meaning set forth in Section 1.1.
"Agreement" means this Second Amended and Restated Loan Agreement, as
it may be amended, modified or supplemented from time to time.
"Applicable Percentage" has the meaning set forth in Section 2.2.
"Banks" means the lending institutions on the signature pages of this
Second Amended and Restated Loan Agreement, their respective successors and
assigns, and any other banks that may hereafter become parties to the Agreement
as lenders, as provided herein.
"Benefitted Bank" means any Bank that at any time receives any payment
of all or part of its Pro Rata Share of the Loan, or interest thereon, or
receives any property in respect thereof (whether voluntarily or involuntarily
by set-off) in a greater proportion than any such payment to and property
received by any other Bank, in respect of such other Bank's Pro Rata Share of
the Loan, or interest thereon, and such greater proportionate payment or receipt
of property is not expressly permitted in the Agreement.
"Borrowing Base" has the meaning set forth in Section 1.1.
"Co-Agents" means The Huntington National Bank and KeyBank National
Association as co-agents for the Banks hereunder and each successor, as provided
in Section 14.3, who shall act as a Co-Agent.
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<PAGE> 55
"Collateral Pool" has the meaning set forth in Section 7.
"Commitment Limit" has the meaning set forth in Section 1.1.
"Company" means Glimcher Properties Limited Partnership as borrower.
"Company's Leverage" means the ratio of the Company's and the
Guarantor's, together with all the Company's or the Guarantor's Subsidiaries',
consolidated total debt to Total Asset Value, as calculated pursuant to Section
10.29.
"EBITDA" means consolidated earnings before interest, income taxes,
depreciation and amortization and minority interest expense.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Event of Default" has the meaning set forth in Section 12.1.
"Evidence of Value" has the meaning set forth in Section 7.
"Federal Funds Rate" means for any day, the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (for
if such day is not a business day, the next preceding business day) by the
Federal Reserve Bank of New York, or if such rate is not so published for any
day which is a business day, the average of quotations for such day and such
transactions received by the Administrative Agent from three Federal fund
brokers of recognized standing selected by the Administrative Agent.
"First Restated Agreement" means the First Amended and Restated Loan
Agreement entered into by and among The Huntington National Bank, Society
National Bank, a bank group, the Company and the Guarantor as of the 30th day of
June, 1995, as thereafter amended.
"Funds From Operations" has the meaning set forth in Section 10.25.
"Guarantor" means Glimcher Realty Trust and Glimcher Properties
Corporation as guarantors.
"Interest Payment Date" has the meaning set forth in Section 2.4.
"Interest Period" has the meaning set forth in Section 2.4.
"Joint Venture" means any business entity that is an unconsolidated
affiliate of the Company or the Guarantor or of any Subsidiary or Joint Venture
of either, or any business entity in which the
49
<PAGE> 56
Company, the Guarantor and their Subsidiaries and Joint Ventures hold in the
aggregate less than a 100% ownership interest.
"LIBO Rate Advance" means any amount borrowed as part of the Loan that
bears interest at a rate calculated with reference to the LIBO Rate.
"LIBO Business Day" means a day which is both a day on which all the
Banks are open for business and a day on which dealings in U.S. dollar deposits
are carried out in the London interbank market.
"LIBO Rate" has the meaning set forth in Section 2.2.
"Loan Documents" means this Agreement and the related loan documents.
"Loan" means the revolving credit in the maximum amount of
$190,000,000.00 extended to the Company by the Banks pursuant to this Agreement.
"Majority Banks" means Banks holding at least 51% in dollar amount of
the aggregate Advances outstanding under the Loan, including each Bank's Pro
Rata Share of any standby letters of credit issued pursuant to Section 1.2
hereof or, in the event there are no amounts outstanding, 51% of the Commitment
Limits.
"Market Constant" has the meaning set forth in Section 1.1.
"Net Operating Income" means total revenues less operating expenses,
including without limitation real estate taxes, utilities, insurance,
maintenance and repair expense, a reserve for future maintenance of not less
than $0.15 per square foot of total gross leaseable area plus a management fee
equal to 3% of the minimum contractual rent received from the Company's
properties in the Collateral Pool, exclusive of all ground leases, but not
including interest expense, depreciation and amortization expense and minority
interest expense. Net Operating Income shall be determined on a four prior
consecutive quarter basis.
"Premises" means all real property owned by the Company that is part of
the Collateral Pool.
"Prime Interest Rate" means the Prime Commercial Rate.
"Prime Interest Rate Advance" has the meaning set forth in Section 2.1.
"Prime Commercial Rate" means the rate established by The Huntington
National Bank from time to time as its Prime Commercial Rate based on its
consideration of economic, money market,
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<PAGE> 57
business and competitive factors, and it is not necessarily the lowest rate
charged by The Huntington National Bank to business borrowers.
"Pro Rata Share" means, as to any Bank, a percentage, the numerator of
which is the respective Commitment Limit of such Bank and the denominator of
which is the maximum principal amount of the Loan.
"Required Banks" means Banks holding at least 66-2/3% in dollar amount
of the aggregate Advances outstanding under the Loan, including each Bank's Pro
Rata Share of any standby letters of credit issued pursuant to Section 1.2
hereof or, in the event there are no amounts outstanding, 66- 2/3% of the
Commitment Limits.
"Subsidiaries" means all entities that are directly or indirectly owned
or controlled by the Company or the Guarantor, the financial condition of which
is required by generally accepted accounting principles to be consolidated with
the financial condition of the Company and the Guarantor in the presentation of
the Company's and the Guarantor's financial statements.
"Termination Date" has the meaning set forth in Section 1.4.
"Total Asset Value" has the meaning set forth in Section 10.29.
"Total Debt Service" means total interest plus scheduled debt
amortization, excluding balloon payments.
"Total Outstandings" has the meaning set forth in Section 1.1.
13.11 Nonrecourse to Trustees.
-----------------------
This Agreement and all documents, agreements, understandings and
arrangements relating to the transactions contemplated hereby have been or will
be executed or entered into on behalf of Glimcher Realty Trust by one or more
officers or trustees of Glimcher Realty Trust, which has been formed as a
Maryland real estate investment trust pursuant to a Declaration of Trust of
Glimcher Realty Trust dated as of September 1, 1993, in their capacities as
officers or trustees, and not individually, and neither the trustees, officers
or shareholders of Glimcher Realty Trust shall be bound or have any personal
liability hereunder or thereunder. The Banks shall look solely to the assets of
Glimcher Realty Trust for satisfaction of any liability of Glimcher Realty Trust
in respect hereof and in respect of all documents, agreements, understandings
and arrangements relating hereto and will not seek recourse or commence any
action against any of the trustees, officers or
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<PAGE> 58
shareholders of Glimcher Realty Trust or any of their personal assets for the
performance or payment of any obligation of Glimcher Realty Trust hereunder or
thereunder. The foregoing shall also apply to any future documents, agreements,
understandings, arrangements and transactions hereunder between Glimcher Realty
Trust and the Banks.
13.12 Agreement as to Confidentiality of Company and Guarantor Information.
--------------------------------------------------------------------
The Administrative Agent, the Co-Agents and the Banks acknowledge the
confidential nature of certain of the written information that will from time to
time be delivered by the Company and the Guarantor. The Company and the
Guarantor agree to mark all such confidential material (the "Confidential
Information") with the legend, "Confidential." The Administrative Agent, the Co-
Agents and the Banks agree not to disclose the Confidential Information to any
parties other than (a) their respective employees, agents, advisors and
affiliates, (b) the other Banks and their participants, (c) prospective
additional Banks and prospective participants, (d) bank regulatory personnel and
(e) other persons to the extent required by law. The Administrative Agent, the
Co-Agents and the Banks further agree to limit access to the Confidential
Information to those employees, Agents, and Advisors of the Banks and their
respective affiliates having a need to know the contents of the Confidential
Information and having been advised of the scope of this confidentiality
agreement. The Administrative Agent, the Co-Agents and the Banks acknowledge
that they will be in possession of material non-public information regarding the
Company and the Guarantor, and they will not violate federal laws relating to
insider trading. The Administrative Agent, the Co-Agents and the Banks agree
that they will not disclose any Confidential Information to any prospective
additional Bank without first obtaining from such prospective additional Bank
and delivering to the Company and the Guarantor a confidentiality agreement in
favor of the Company and the Guarantor providing acknowledgements and agreements
equivalent to those in this Section 13.12 and reasonably satisfactory to the
Company and the Guarantor. The parties agree that the Company and the Guarantor
shall have the right to injunctive relief upon any violation of this Section
13.12. The Administrative Agent, the Co-Agents and the Banks shall be relieved
of their obligations under this section with respect to any part of the
Confidential Information that has become public information (other than through
disclosure by those banks), or the confidentiality of which has been waived in
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<PAGE> 59
writing by the Company or the Guarantor, or that has been obtained from a third
party that did not obtain such information in violation of a confidentiality
agreement.
SECTION 14 THE CO-AGENTS AND THE ADMINISTRATIVE AGENT.
14.1 Appointment.
-----------
Each Bank hereby designates The Huntington National Bank and KeyBank
National Association to act as Co-Agents for such Bank under this Agreement and
the Loan Documents and further designates The Huntington National Bank to act as
Administrative Agent. Each Bank hereby irrevocably authorizes the Co-Agents and
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and any other instruments and agreements referred to herein
and to exercise such powers and to perform such duties hereunder and thereunder
as are specifically delegated to or required of the Co-Agents or the
Administrative Agent by the terms hereof and thereof and such other powers as
are reasonably incidental thereto, including amendments to this Agreement not
otherwise specifically discussed herein. The Administrative Agent shall hold all
collateral, payments of principal and interest, annual letter of credit and Loan
usage fees, charges and collections, received pursuant to this Agreement, for
the benefit of the Banks as provided herein. The Administrative Agent shall
receive from the Company and the Guarantor and distribute to the Banks all
information required by the terms of this Agreement to be delivered by the
Company and the Guarantor to the Banks. The Co-Agents and the Administrative
Agent may perform any of their duties hereunder by or through their respective
agents or employees. As to any matters not expressly provided for by this
Agreement, neither the Co-Agents nor the Administrative Agent shall be required
to exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Banks; PROVIDED, HOWEVER,
that neither the Co-Agents nor the Administrative Agent shall be required to
take any action that exposes the Co-Agents or the Administrative Agent to
liability or which is contrary to any of the Loan Documents or applicable law
unless the Co-Agents or Administrative Agent respectively is furnished with an
indemnification reasonably satisfactory to the Co-Agents or Administrative Agent
with respect thereto.
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14.2 Nature of Duties.
----------------
Neither the Co-Agents nor the Administrative Agent shall have any
duties or responsibilities except those expressly set forth in this Agreement.
Neither the Co-Agents, the Administrative Agent, nor any of their respective
officers, directors, employees or agents shall be (a) liable for any action
taken or omitted by them as such hereunder or in connection herewith, unless
caused by their willful misconduct or gross negligence, or (b) responsible in
any manner to any Bank for any recitals, statements, representations or
warranties made by the Company or the Guarantor or any officer thereof contained
in this Agreement, or in any of the Loan Documents or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Co-Agents or the Administrative Agent under or in connection with this
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any of the Loan Documents or for any failure
of the Company or the Guarantors to perform its obligations hereunder. Neither
the Co-Agents nor the Administrative Agent shall be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or any of the
Loan Documents, or to inspect the properties, books or records of the Company or
the Guarantor. The duties of the Co-Agents and the Administrative Agent shall be
mechanical and administrative in nature; neither the Co-Agents nor the
Administrative Agent shall have by reason of this Agreement a fiduciary
relationship in respect of any Bank; and nothing in this Agreement, expressed or
implied, is intended to or shall be so construed as to impose upon the Co-Agents
or the Administrative Agent any obligations in respect of this Agreement except
as expressly set forth herein.
14.3 Lack of Reliance on the Co-Agents or Administrative Agent and
-------------------------------------------------------------
Resignation.
------------
Independently and without reliance upon the Co-Agents or the
Administrative Agent, each Bank has made and shall continue to make (a) its own
independent investigation of the financial condition and affairs of the Company
and the Guarantor in connection with the making and the continuance of the Loan
hereunder and the taking or refraining from taking of any action in connection
herewith, and (b) its own credit analysis or appraisal of the creditworthiness
of the Company and the Guarantor. In addition, each Bank has reviewed and
approved the form and substance of each of the Loan Documents. Neither the
Co-Agents nor the Administrative Agent
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<PAGE> 61
shall have any duty or responsibility either initially or on a continuing basis
to provide any Bank with any credit or other information with respect thereto,
whether coming into its possession before the making of the Loan or at any time
or times thereafter. Neither the Co-Agents nor the Administrative Agent has made
any representation or warranty, express or implied, with respect to, and shall
not be responsible to any Bank for (a) any recitals, statements, information,
representations or warranties contained in this Agreement, the Loan Documents,
or in any agreement, document, certificate or a statement delivered in
connection herewith; (b) the execution, effectiveness, genuineness, validity,
collectibility or sufficiency of this Agreement; or of the financial condition
or creditworthiness of the Company or the Guarantor or of the value of any of
the properties in the Collateral Pool; (c) the collectibility of the Loan, or
(d) any other matter having any relation to this Agreement, the Loan or the Loan
Documents. Neither the Co-Agents nor the Administrative Agent shall be required
to make any inquiry concerning either the performance or observance of any of
the terms, provisions or conditions of this Agreement or the Loan Documents, or
the financial condition or creditworthiness of Company or the Guarantor, or the
existence of any Event of Default or any condition, event or act that, with
notice or lapse of time or both, would constitute such an Event of Default.
Both the Co-Agents and the Administrative Agent shall have the right to
resign on thirty days' written notice to the Banks, and upon such resignation,
the Required Banks shall designate a successor agent. The Required Banks, with
the consent of the Company if there is then existing no Event of Default, shall
have the right to remove the Administrative Agent based upon the failure of the
Administrative Agent to perform the duties described in this Agreement and to
appoint a successor Administrative Agent. The consent of the Company shall not
be unreasonably withheld. Any successor agent shall succeed to the rights,
powers and duties of the Co-Agents or the Administrative Agent, as the case may
be, and the terms "Co-Agents" and "Administrative Agent" shall mean such
respective successor agents effective upon their appointment, and the former Co-
Agent's or Administrative Agent's rights, powers and duties as Co-Agents or
Administrative Agent respectively shall be terminated, without any other or
further act or deed on the part of such former Co-Agents or Administrative
Agent. After any Co-Agent's or Administrative Agent's resignation or removal
hereunder, the provisions of this section shall continue to inure to its benefit
as to any
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<PAGE> 62
actions taken or omitted to be taken by it while it was Co-Agent or
Administrative Agent under this Agreement.
14.4 Certain Rights of the Agent.
---------------------------
Subject to the provisions of this Agreement, if the Co-Agents or
Administrative Agent shall request instructions from the Banks with respect to
any act or action (including failure to act) in connection with this Agreement,
the Co-Agents or the Administrative Agent, as the case may be, shall be entitled
to refrain from such act or taking such action unless and until the Co-Agents or
the Administrative Agent shall have received instructions from the Majority
Banks; and neither the Co-Agents nor the Administrative Agent shall incur
liability to any Bank or any other party by reason of so refraining. Without
limiting the foregoing, none of the Banks shall have any right of action
whatsoever against the Co-Agents or the Administrative Agent as a result of its
acting or refraining from acting hereunder in accordance with the instructions
of the Majority Banks. In the event that the Co-Agents or the Administrative
Agent at any time request approval for any proposed course of action relating to
the Loan or this Agreement and any one or more of the Banks fails to respond in
writing within thirty calendar days of the date of such request, each Bank so
failing to respond shall be conclusively deemed to have given its approval to
such proposed action.
14.5 Reliance.
--------
The Co-Agents and the Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, affidavit resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, order or other document or telephone message believed by it to be
genuine and correct and, with respect to all legal matters pertaining to this
Agreement and its duties hereunder, upon advice and statements of legal counsel
(including, without limitation, counsel to the Company or the Guarantor),
independent accountants and other experts selected by the Co-Agents or the
Administrative Agent. The Co-Agents and the Administrative Agent may employ
agents and attorneys-in-fact and shall not be liable for the default or
misconduct of any such agents or attorneys-in-fact selected by the Co-Agents or
the Administrative Agent.
14.6 Notice of Default.
-----------------
Neither the Co-Agents nor the Administrative Agent shall be deemed to
have knowledge or notice of the occurrence of any Event of Default hereunder or
under the Loan Documents, unless the
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<PAGE> 63
Co-Agents or the Administrative Agent has received written notice from a Bank,
the Company or the Guarantor referring to this Agreement, describing such Event
of Default and stating that such notice is a "notice of default." In the event
that the Co-Agents or the Administrative Agent receives such a notice, the
Co-Agents shall promptly give notice thereof to each Bank. The Co-Agents shall
take such action with respect to such Event of Default as shall be reasonably
directed by the Majority Banks; PROVIDED that unless and until the Co-Agents
shall have received such directions, the Co-Agents may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Event of Default as they shall deem advisable in the best interests of
the Banks.
14.7 Indemnification.
---------------
To the extent the Co-Agents and the Administrative Agent are not
reimbursed and indemnified by the Company or the Guarantor, or any of them, each
Bank will reimburse and indemnify the Co-Agents and the Administrative Agent pro
rata in proportion to its Commitment Limit for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which at any
time (including, without limitation, at any time following the payment of the
Loan) may be imposed on, incurred by or asserted against the Co-Agents or the
Administrative Agent in performing its duties hereunder, or in any way relating
to or arising out of this Agreement, the Loan Documents, or any documents
contemplated by or referred to therein or the transactions contemplated thereby
or any action taken or omitted by the Co-Agents or the Administrative Agent in
any such capacity thereunder or in connection therewith; provided that, the
Banks shall not be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Co-Agents' or the Administrative Agent's
willful misconduct or gross negligence. The provisions of this Section 14.7
shall survive the termination of this Agreement and the payment in full of all
notes and reimbursement agreements outstanding pursuant hereto.
14.8 The Co-Agents and the Administrative Agent in Their Individual
--------------------------------------------------------------
Capacities.
-----------
The Co-Agents and the Administrative Agent and their respective
affiliates may accept deposits from, make loans or otherwise extend credit to,
and generally engage in any kind of banking or trust business with, the Company
or the Guarantor or either of their affiliates, and receive payment
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<PAGE> 64
on such loans or extensions of credit or otherwise act with respect thereto
fully and without accountability to the Banks in the same manner as if the
Co-Agents and the Administrative Agent were not performing the duties specified
herein and the transactions described herein were not in effect. Each of the
Banks and their affiliates shall have the right similarly to engage in such
banking or trust business with the Company, the Guarantor and their affiliates.
No Bank shall have an interest in any property taken as collateral or
security for any loans or extensions of credit made by another Bank, one of the
Co-Agents or the Administrative Agent, or any of their respective affiliates or
in any property in any such party's possession or control, or in any deposit
held or other indebtedness owing by any such party or its affiliates, which may
be or become collateral for or otherwise available for payment of the Loan by
reason of the general description of secured obligations contained in any
security agreement or other instrument held by such party or by reason of the
right of set off, counterclaim or otherwise, except that if such property,
deposit or indebtedness or the proceeds thereof shall be applied in reduction of
the Loan, each Bank shall be entitled to its pro rata percentage of such
application. Neither the Co-Agents nor the Administrative Agent shall have any
obligation to make any claim against, or assert any lien upon or right of set
off against, any such property held by the Co-Agents, the Administrative Agent,
or any of the Banks.
14.9 Amendment and Modifications.
---------------------------
The Co-Agents may, subject to the provisions of this Section 14.9, and
to the other provisions of this Agreement requiring the approval of certain
matters by the Banks, the Required Banks or the Majority Banks from time to time
enter into written amendments or supplemental agreements to this Agreement or to
the Loan Documents executed by the Company and the Guarantor (other than the
notes and guarantees delivered by the Company to the Banks), for the purpose of
adding or deleting any provisions of this Agreement or the Loan Documents, or
otherwise changing, varying or waiving in any manner the rights of the Banks,
the Co-Agents, the Administrative Agent, the Company or the Guarantor thereunder
or the conditions, provisions or terms thereof, or waiving any Event of Default
thereunder, but only to the extent specified in such written agreements;
provided, however, that no such amendment or supplemental agreement shall
without the consent of all the Banks: (a) extend the maturity of the Loan, or
waive or extend the time for the payment of principal, interest
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<PAGE> 65
or fees, (b) increase the principal amount of the Loan, (c) decrease the rate or
rates of interest thereon or any fee payable by the Company or the Guarantor or
any of them to the Banks pursuant to this Agreement, (d) alter, amend or modify
Sections 10.10 or 10.17, (e) alter, amend or modify the automatic nature of an
Event of Default pursuant to Sections 12.1(f) or (g), (f) alter, amend or modify
this Section 14.9 or any section providing a right of approval to the Banks, the
Required Banks or the Majority Banks, (g) alter the meaning of the terms
Majority Banks or Required Banks, or (h) change the rights and duties of the
Co-Agents or the Administrative Agent; nor shall any such amendment or
supplemental agreement alter, amend or modify Sections 7, 1.1, or 10.25 without
the consent of the Required Banks. Any such amendment or supplemental agreement
shall be binding upon the Company, the Guarantor, the Banks, the Co-Agents, the
Administrative Agent and any of them, and a copy thereof shall be delivered by
the Administrative Agent to each of the Banks promptly upon execution. No waiver
of a specific Event of Default shall extend to any subsequent Event of Default
(whether or not the subsequent Event of Default is the same as the Event of
Default which was waived), or impair any right consequent thereon.
14.10 Pro Rata Treatment and Payments.
-------------------------------
Each borrowing or extension of credit under the Loan from the Banks,
each payment (including each prepayment) by the Company of principal, interest,
and annual letter of credit and Loan usage fees provided for in the Agreement on
the Loan and all proceeds from any liquidation of collateral shall be made or
applied pro rata pursuant to the respective Commitment Limits of the Banks;
provided that no Loan usage fee shall be payable to any Bank that may have
ceased to fund its Pro Rata Share of Advances hereunder.
14.11 Funding of Advances.
-------------------
On the date of the closing of the Loan or any later date when funds are
to be disbursed to the Company pursuant to the Loan, each Bank shall pay to the
Administrative Agent its Pro Rata Share, of the amount of the disbursement, in
funds available for immediate use, by 1:00 p.m. Columbus, Ohio, time on the same
banking day on which the Advance is made, provided, however, that the
Administrative Agent shall give each Bank notice of a LIBO Rate Advance promptly
after notice is received from the Company pursuant to Section 2.3 and shall use
its best efforts to give each Bank
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<PAGE> 66
notice of the funding of a Prime Interest Rate Advance no later than 4:00 p.m.,
Columbus, Ohio time on the banking day immediately preceding the day of the
advance. In the event any Bank fails or refuses to make payment to the
Administrative Agent as required herein, then the Administrative Agent, without
limitation, shall be entitled to pursue all remedies and rights permitted by
this Agreement, law, or equity and further shall be entitled to, but not be
required to, do all or any of the following: (a) fund such Bank's Pro Rata Share
of the disbursement, (b) accrue interest on any unpaid amount at the Federal
Funds Rate (as defined below), (c) withhold from such Bank all interest,
principal, fees and late charges attributable to such Bank's Pro Rata Share
thereof through the date such Bank funds its Pro Rata Share thereof and pays the
interest due thereon, plus any additional cost or expense, including without
limitation, reasonable attorneys fees, incurred by the Co-Agents or the
Administrative Agent as a result of such Bank's failure to pay, and (d) offset
against such Bank's Pro Rata Share all sums received by the Co-Agents or the
Administrative Agent in connection with the Loan until reimbursed by the Bank
that failed or refused to make such payment. All payments received by the
Administrative Agent in respect of the Loan shall be distributed pro rata to the
Banks promptly after the Administrative Agent shall have collected such payment
in immediately available funds. As used herein, "Federal Funds Rate" shall mean
for any day, the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (for if such day is not a Business Day,
the next preceding Business Day) by the Federal Reserve Bank of New York, of if
such rate is not so published for any day which is a Business Day, the average
of quotations for such day and such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent.
14.12 Delinquency.
-----------
Upon the occurrence and continuance of an Event of Default pursuant to
this Agreement, the Co-Agents shall consult with each Bank regarding the course
of action to be taken with respect to such default. If the Co-Agents do not
receive an agreed course of action to be taken from the Majority Banks, the
Co-Agents thereafter shall take such action or direct the Administrative Agent
to take such action as they shall in good faith deem necessary to protect the
interests of the Banks, including, but not limited to, acceleration of the Loan
or foreclosure upon any collateral. In the event
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that the Co-Agents shall have received no direction from the Majority Banks and
shall be unable to agree on a course of action, the Administrative Agent shall,
as agent for and in the name of the Banks, promptly institute all such civil
actions as may be required to obtain judgments on all promissory notes
evidencing the Loan and to foreclose upon any collateral then held by the
Administrative Agent as agent for the Banks. The failure of the Co-Agents to
agree or of the Co-Agents or of any Bank to discuss any proposed course of
conduct with any other Bank or the Co-Agents shall not be asserted by the
Company or the Guarantor to be a breach of this Agreement by such Bank, nor will
it in any way impair the enforceability of any action taken to declare the Loan
in default and/or accelerate the maturity thereof.
14.13 Equalization.
------------
(a) If any Bank (a "Benefitted Bank") shall at any time receive any
payment of all or part of its Pro Rata Share of the Loan, or interest thereon,
or receive any property in respect thereof (whether voluntarily or involuntarily
by set-off) in a greater proportion than any such payment to and property
received by any other Bank, in respect of such other Bank's Pro Rata Share of
the Loan, or interest thereon, and such greater proportionate payment or receipt
of property is not expressly permitted hereunder, such Benefitted Bank shall
purchase for cash from the other Bank such portion of each such other Bank's Pro
Rata Share of the Loan, or shall provide such other Bank with the benefits of
any such property, or the proceeds thereof, as shall be necessary to cause such
Benefitted Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each Bank; PROVIDED, HOWEVER, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefitted
Bank, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest. The Company and
the Guarantor agree that each Bank so purchasing a portion of another Bank's Pro
Rata Share of the Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Co-Agents, the
Administrative Agent and the Banks provided by law, upon the occurrence of an
Event of Default pursuant to this Agreement, each Bank shall have the right,
without prior notice to the Company or the Guarantor, any such notice being
expressly waived by the Company and the Guarantor, to the extent permitted by
61
<PAGE> 68
applicable law, to set off and apply against any indebtedness, whether owing
from such Bank to the Company or the Guarantor, at, or at any time after, the
occurrence of any of the above-mentioned events. To the extent permitted by
applicable law, the aforesaid right of set off may be exercised by such Bank
against the Company or the Guarantor or against any trustee in bankruptcy,
custodian, debtor-in-possession, assignee for the benefit of creditors, receiver
or execution, judgment or attachment creditor of the Company or the Guarantor,
or against anyone else claiming through or against the Company or the Guarantor
or against any such trustee in bankruptcy, custodian, debtor-in-possession,
assignee for the benefit of creditors, receivers, or execution, judgment or
attachment creditor, notwithstanding the fact that any such right of set off
shall not have been exercised by such Bank prior to the making, filing or
issuance, or service upon such Bank of, notice of, any such petition, assignment
for the benefit of creditors, appointment or application for the appointment of
a receiver, or issuance of execution, subpoena, order or warrant.
14.14 Assignment of Interests.
-----------------------
(a) This Agreement and the Loan Documents shall be binding upon and
inure to the benefit of the Company, the Guarantor, the Banks, the Co-Agents,
the Administrative Agent, all future holders of the promissory notes and
guarantees comprising a portion of the Loan Documents and their respective
successors and assigns, except that neither the Company nor the Guarantor may
assign or transfer any of its rights or obligations under this Agreement or the
Loan Documents without the prior written consent of each Bank.
(b) Each Bank shall have the right at any time, upon the written
approval of the Co-Agents and the Company (which approval of the Company shall
not be required if there has occurred and is continuing an Event of Default)
following notice of its intent to do so, to sell, assign, transfer or negotiate
all or any part of its Pro Rata Share of the Loan to one or more other financial
institutions. The approval of the Co-Agents and the Company shall not be
unreasonably withheld. Every such sale, transfer or assignment, other than the
sale of a participation interest only, shall be in the minimum amount of
$10,000,000.00. Subject to the provisions of Section 14.14(c), any Bank may sell
participation interests without the approval of any other party.
(c) Except to the extent that the Co-Agents may join additional Banks
to this Agreement as provided in Section 1 hereof, thereby ratably reducing the
Commitment Limits of The Huntington
62
<PAGE> 69
National Bank and KeyBank National Association, no Bank shall, as between and
among the Company, the Guarantor, the Co-Agents, the Administrative Agent and
such Bank, be relieved of any of its obligations hereunder as a result of any
sale of a participation interest in all or any part of its interest in the Loan,
and each such selling Bank shall have the obligation to subservice all such
participation interests sold.
(d) Any other provision of this Agreement notwithstanding, neither The
Huntington National Bank nor KeyBank National Association shall sell, assign,
transfer or negotiate any part of its Pro Rata Share of the Loan if the effect
of such sale, assignment, transfer or negotiation would be to reduce the
Commitment Limit of such Co-Agent to less than $25,000,000.00.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation
Its: Sole General Partner
By: /s/ David J. Glimcher
-------------------------------
Its: President
-------------------------------
GLIMCHER REALTY TRUST
By: /s/ David J. Glimcher
-------------------------------
Its: President
-------------------------------
GLIMCHER PROPERTIES CORPORATION
By: /s/ David J. Glimcher
-------------------------------
Its: President
-------------------------------
THE HUNTINGTON NATIONAL BANK, as
Administrative Agent
By: /s/ David A. DeVictor
-------------------------------
Its: Assistant Vice President
-------------------------------
63
<PAGE> 70
THE HUNTINGTON NATIONAL BANK, as
Co-Agent
By: /s/ David A. DeVictor
--------------------------------
Its: Assistant Vice President
--------------------------------
KEYBANK NATIONAL ASSOCIATION , as Co-Agent
By: /s/ Renee Rush Csurhan
--------------------------------
Its: Senior Vice President
--------------------------------
COMMITMENT LIMIT: THE HUNTINGTON NATIONAL BANK
$32,500,000.00
By: /s/ David A. DeVictor
--------------------------------
Its: Assistant Vice President
--------------------------------
COMMITMENT LIMIT: KEYBANK NATIONAL ASSOCIATION
$32,500,000.00
By: /s/ Renee Rush Csurhan
--------------------------------
Its: Senior Vice President
--------------------------------
COMMITMENT LIMIT: FLEET NATIONAL BANK
$20,000,000.00
By: /s/ Thomas T. Hanold
--------------------------------
Its: Vice President
--------------------------------
COMMITMENT LIMIT: STAR BANK, NATIONAL ASSOCIATION
$20,000,000.00
By: /s/ Marilyn K. Miller
--------------------------------
Its: Vice President
--------------------------------
64
<PAGE> 71
COMMITMENT LIMIT: PNC BANK, OHIO, NATIONAL ASSOCIATION
$25,000,000.00
By: /s/ Dan R. Heberle
--------------------------------
Its: Authorized Signatory
--------------------------------
COMMITMENT LIMIT: THE PROVIDENT BANK
$10,000,000.00
By: /s/ Brent E. Johnson
--------------------------------
Its: Vice President
--------------------------------
COMMITMENT LIMIT: NATIONAL CITY BANK OF COLUMBUS
$20,000,000.00
By: /s/ Steven A. Smith
--------------------------------
Its: Vice President
--------------------------------
COMMITMENT LIMIT: BANKERS TRUST COMPANY
$30,000,000.00
By: /s/ Alexander B. Johnson
--------------------------------
Its: Managing Director
--------------------------------
65
<PAGE> 72
EXHIBIT A
______ AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
------------------------------------------
This _____ Amendment to Second Amended and Restated Loan Agreement
(this "Amendment") is entered into at Columbus, Ohio, by and among The
Huntington National Bank, KeyBank National Association, those banks that are
parties to the Second Amended and Restated Loan Agreement hereinafter described,
and ___________________ (the "New Bank"), as lenders (collectively, the
"Banks"); The Huntington National Bank and KeyBank National Association, as
co-agents (the "Co-Agents"); The Huntington National Bank, as administrative
agent (the "Administrative Agent"); Glimcher Properties Limited Partnership, as
borrower (the "Company"); and Glimcher Realty Trust and Glimcher Properties
Corporation, as guarantors (collectively the "Guarantor"), as of the _____ day
of _________, 199___, in order to amend the Second Amended and Restated Loan
Agreement entered into by and among The Huntington National Bank, KeyBank
National Association (in each case in their respective roles as lenders and
agents), the Banks (other than the New Bank), the Company and the Guarantor as
of the 15th day of May, 1997 (the "Loan Agreement").
Whereas, the parties to this Amendment desire for the New Bank to
become a Bank under the terms of the Loan Agreement, the Loan Agreement is
hereby amended as follows:
1. The New Bank shall become a Bank as defined in the Loan Agreement
effective as of the date of this Amendment, entitled to all the benefits and
subject to all the obligations of a Bank under the terms of the Loan Agreement.
The New Bank agrees to be bound by all those provisions of the Loan Agreement
binding upon a Bank.
2. The Commitment Limit (as defined in the Loan Agreement) of the New
Bank shall be $_______________, and the respective Commitment Limits of The
Huntington National Bank and KeyBank National Association shall be ratably
reduced by that amount.
3. All communications directed to the New Bank under the Loan Agreement
or the promissory note executed and delivered to the New Bank in connection
therewith shall be mailed to:
(NAME AND ADDRESS OF NEW BANK)
(SIGNATURE LINES FOR ALL OTHER PARTIES TO AMENDMENT)
<PAGE> 73
EXHIBIT B
Revolving Note
$________________ Columbus, Ohio May 15, 1997
FOR VALUE RECEIVED, the undersigned, hereinafter referred to in the
plural, promise to pay to the order of (NAME OF BANK) (hereinafter called the
"Bank," which term shall include any holder hereof) at such place as the Bank
may designate or, in the absence of such designation, at any of the Bank's
offices, the sum of ___________________________ Dollars ($____________) or so
much thereof as shall have been advanced by the Bank at any time and not
hereafter repaid (hereinafter referred to as "Principal Sum") together with
interest as hereinafter provided and payable at the time(s) and in the manner(s)
hereinafter provided. The proceeds of the loan evidenced hereby may be advanced,
repaid and readvanced in partial amounts during the term of this revolving note
("Note") and prior to maturity as provided in the Loan Agreement hereinafter
described.
This Note is executed and the advances contemplated hereunder are to be
made pursuant to a Second Amended and Restated Loan Agreement (hereinafter
called the "Loan Agreement") dated as of May 15, 1997, and all the covenants,
representations, agreements, terms, and conditions contained therein, including
but not limited to conditions of default, are incorporated herein as if fully
rewritten.
INTEREST
- --------
Interest will accrue on the unpaid balance of the Principal Sum until
paid at the rate or rates of interest set forth in the Loan Agreement.
Upon default, whether by acceleration or otherwise, interest will
accrue on the unpaid balance of the Principal Sum and unpaid interest, if any,
until paid at a variable rate of interest per annum, which shall change in the
manner set forth below, equal to two (2) percentage points in excess of the
Prime Commercial Rate.
All interest shall be calculated on the basis of a 360 day year for the
actual number of days the Principal Sum or any part thereof remains unpaid.
There shall be no penalty for prepayment.
As used herein, Prime Commercial Rate shall mean the rate established
by The Huntington National Bank from time to time as its Prime Commercial Rate
based on its consideration of economic, money market, business and competitive
factors. The Prime Commercial Rate is not necessarily the lowest rate offered to
business borrowers by The Huntington National Bank. Subject to any maximum or
minimum interest rate limitation specified herein or by applicable law, any
variable rate of interest on the obligation evidenced hereby shall change
automatically without notice to the undersigned immediately with each change in
the Prime Commercial Rate.
MANNER OF PAYMENT
- -----------------
The Principal Sum shall be payable on July 31, 1998, and accrued
interest shall be due and payable monthly at the times provided in the Loan
Agreement, and at maturity, whether by demand, acceleration or otherwise.
LATE CHARGE
- -----------
Any installment or other payment not made within 10 days of the date
such payment or installment is due shall be subject to a late charge equal to 5%
of the amount of the installment or payment.
<PAGE> 74
DEFAULT
- -------
Upon the occurrence of any of the Events of Default described in
Section 12 of the Loan Agreement, the Bank may, at its option, without notice or
demand, accelerate the maturity of the obligations evidenced hereby, which
obligations shall become immediately due and payable. In the event the Bank
shall institute any action for the enforcement or collection of the obligations
evidenced hereby, the undersigned agree to pay all costs and expenses of such
action, including reasonable attorneys' fees, to the extent permitted by law.
GENERAL PROVISIONS
- ------------------
All of the parties hereto, including the undersigned, and any indorser,
surety, or guarantor, hereby severally waive presentment, notice of dishonor,
protest, notice of protest, and diligence in bringing suit against any party
hereto, and consent that, without discharging any of them, the time of payment
may be extended an unlimited number of times before or after maturity without
notice. The Bank shall not be required to pursue any party hereto, including any
guarantor, or to exercise any rights against any collateral herefor before
exercising any other such rights.
The obligations evidenced hereby may from time to time be evidenced by
another note or notes given in substitution, renewal or extension hereof. Any
security interest or mortgage which then secures the obligations evidenced
hereby shall remain in full force and effect notwithstanding any such
substitution, renewal, or extension.
The captions used herein are for references only and shall not be
deemed a part of this Note. If any of the terms or provisions of this Note shall
be deemed unenforceable, the enforceability of the remaining terms and
provisions shall not be affected. This Note shall be governed by and construed
in accordance with the law of the State of Ohio.
WAIVER OF RIGHT TO TRIAL BY JURY
- --------------------------------
THE UNDERSIGNED ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY
ARISE BETWEEN THE UNDERSIGNED AND THE BANK, THE COMMERCIAL NATURE OF THE
TRANSACTION OUT OF WHICH THIS NOTE ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE
FOR TRIAL BY JURY. ACCORDINGLY, THE UNDERSIGNED HEREBY WAIVE ANY RIGHT TO TRIAL
BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO THIS NOTE OR TO
ANY OF THE OTHER INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation
Its: Sole General Partner
By:
---------------------------------
Its:
--------------------------------
2
<PAGE> 75
EXHIBIT C
- --------------------------------------------------------------------------------
GUARANTOR: Glimcher Realty Trust DEBTOR: Glimcher Properties
Limited Partnership
ADDRESS: 20 South Third Street ADDRESS: 20 South Third Street
Columbus, Ohio 43215 Columbus, Ohio 43215
- --------------------------------------------------------------------------------
GUARANTY
For the purpose of inducing (NAME OF BANK) (hereinafter referred to as "Bank")
to lend money or advance credit to, or renew, extend or forbear from demanding
immediate payment of the Obligations of Glimcher Properties Limited Partnership
(hereinafter referred to as "Debtor"), the undersigned (hereinafter referred to
as "Guarantors" whether one or more), jointly and severally if more than one
(which joint and several liability shall exist regardless of whether additional
Guarantors have evidenced or may in the future evidence their undertaking by
executing this Guaranty, by co-signing one or more promissory notes or other
instruments of indebtedness, by executing one or more separate agreements of
guaranty of any or all of the Obligations referred to herein or otherwise),
hereby unconditionally guarantee the prompt and full payment to Bank when due,
whether by acceleration or otherwise, of all Obligations of any kind for which
Debtor is now or may hereafter become liable to Bank in any manner.
The word "Obligations" is used in its most comprehensive sense and includes,
without limitation, all indebtedness, debts and liabilities (including
principal, interest, late charges, collection costs, attorneys' fees and the
like) of Debtor to Bank, either created by Debtor alone or together with another
or others, primary or secondary, secured or unsecured, absolute or contingent,
liquidated or unliquidated, direct or indirect, whether evidenced by note,
draft, application for letter of credit, agreements of guaranty or otherwise,
and any and all renewals of, extensions of or substitutes therefor, to the
extent that such Obligations arise from or are connected with indebtedness owed
by Debtor to Bank by reason of credit extended or to be extended to Debtor in
the principal amount of $__________, pursuant to a promissory note dated as of
May 15, 1997, and a Second Amended and Restated Loan Agreement dated as of May
15, 1997.
Guarantors, and each of them, hereby promise that if one or more of the
Obligations are not paid promptly when due, they, and each of them, will, upon
request of Bank, pay the Obligations to Bank, irrespective of any action or lack
of action on Bank's part in connection with the acquisition, perfection,
possession, enforcement or disposition of any or all Obligations or any or all
security therefor or otherwise, and further irrespective of any invalidity in
any or all Obligations, the unenforceability thereof or the insufficiency,
invalidity or unenforceability of any security therefor.
Guarantors waive notice of any and all acceptances of this Guaranty. This
Guaranty is a continuing guaranty, and, in addition to covering all present
Obligations of Debtor to Bank, will extend to all future Obligations of Debtor
to Bank, and this whether such Obligations are reduced or entirely extinguished
and thereafter increased or reincurred. This Guaranty is made and will remain in
effect as to any and all Obligations of Debtor incurred or arising prior to
receipt by the loan officer of Bank who is handling Debtor's Obligations of
written notice of termination of this Guaranty. No such written notice or other
revocation will in any way affect the duties of Guarantors to Bank with respect
<PAGE> 76
to either Obligations incurred by Debtor or instruments executed by Debtor prior
to the receipt of such notice by such loan officer of Bank. In addition, no such
written notice or other revocation will in any way affect the liabilities of
Guarantors to Bank with respect to revolving Obligations of Debtor on which
loans or advances are made, whether such loans or advances are made prior or
subsequent to such notice. Revocation by any one or more of Guarantors will not
affect the duties of the remaining Guarantor or Guarantors.
Bank's rights hereunder shall be reinstated and revived, and this Guaranty shall
be fully enforceable, with respect to any amount at any time paid on account of
the Obligations which thereafter shall be required to be restored or returned by
Bank as a result of the bankruptcy, insolvency or reorganization of Debtor,
Guarantors, or any other person, or as a result of any other fact or
circumstance, all as though such amount had not been paid.
Guarantors waive any claims or other rights which they might now have or
hereafter acquire against Debtor or any other person, guarantor, maker or
endorser primarily or contingently liable on the Obligations that arise from the
existence or performance of Guarantors' obligations under this Guaranty or under
any instrument or agreement with respect to any property constituting collateral
or security herefor, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, or any right to
participate in any claim or remedy of Bank against Debtor or any collateral
security therefor which Bank now has or hereafter acquires; whether such claim,
remedy or right arises in equity, under contract or statute, at common law, or
otherwise.
Guarantors waive presentment, demand, protest, notice of protest and notice of
dishonor or other nonpayment of any and all Obligations and further waive notice
of sale or other disposition of any collateral or security now held or hereafter
acquired by Bank. Guarantors agree that no extension of time, whether one or
more, nor any other indulgence granted by Bank to Debtor, or to Guarantors, or
any of them, and no omission or delay on Bank's part in exercising any right
against, or in taking any action to collect from or pursue Bank's remedies
against Debtor or Guarantors, or any of them, will release, discharge or modify
the duties of Guarantors. Guarantors agree that Bank may, without notice to or
further consent from Guarantors, release or modify any collateral, security or
other guaranties now held or hereafter acquired, or substitute other collateral,
security or other guaranties, and no such action will release, discharge or
modify the duties of Guarantors hereunder. Guarantors further agree that Bank
will not be required to pursue or exhaust any of its rights or remedies against
Debtor or Guarantors, or any of them, with respect to payment of any of the
Obligations, or to pursue, exhaust or preserve any of its rights or remedies
with respect to any collateral, security or other guaranties given to secure the
Obligations, or to take any action of any sort, prior to demanding payment from
or pursuing its remedies against Guarantors.
Guarantors agree that any legal suit, action or proceeding arising out of or
relating to this Guaranty may be instituted in a state or federal court of
appropriate subject matter jurisdiction in the State of Ohio; waive any
objection which they may have now or hereafter to the laying of venue of any
such suit, action or proceeding; and irrevocably submit to the jurisdiction of
any such court in any such suit, action or proceeding.
WAIVER OF RIGHT TO TRIAL BY JURY
- --------------------------------
GUARANTORS ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE BETWEEN
GUARANTORS AND BANK, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS
GUARANTY ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY.
ACCORDINGLY, GUARANTORS HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY AS TO ANY AND
ALL DISPUTES THAT MAY ARISE RELATING TO THIS GUARANTY OR TO ANY OF THE OTHER
INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
If any Obligation of Debtor is assigned by Bank, this Guaranty will inure to the
benefit of Bank's assignee, and to the benefit of any subsequent assignee, to
the extent of the assignment or assignments, provided that no assignment will
operate to relieve Guarantors, or any of them, from any duty to Bank hereunder
with respect to any unassigned Obligation. In the event that any one or more
2
<PAGE> 77
of the provisions contained in this Guaranty or any application thereof shall be
determined to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and any
other applications thereof shall not in any way be affected or impaired thereby.
This Guaranty shall be construed in accordance with the law of the State of
Ohio.
This Guaranty and all documents, agreements, understandings and arrangements
relating to the transactions contemplated hereby have been or will be executed
or entered into on behalf of Glimcher Realty Trust by one or more officers or
trustees of Glimcher Realty Trust, which has been formed as a Maryland real
estate investment trust pursuant to a Declaration of Trust of Glimcher Realty
Trust dated as of September 1, 1993, in their capacities as officers or
trustees, and not individually, and neither the trustees, officers or
shareholders of Glimcher Realty Trust shall be bound or have any personal
liability hereunder or thereunder. Bank shall look solely to the assets of
Glimcher Realty Trust for satisfaction of any liability of Glimcher Realty Trust
in respect hereof and in respect of all documents, agreements, understandings
and arrangements relating hereto and will not seek recourse or commence any
action against any of the trustees, officers or shareholders of Glimcher Realty
Trust or any of their personal assets for the performance or payment of any
obligation of Glimcher Realty Trust hereunder or thereunder. The foregoing shall
also apply to any future documents, agreements, understandings, arrangements and
transactions hereunder between Glimcher Realty Trust and Bank.
Executed and delivered at Columbus, Ohio, this 15th day of May, 1997.
GUARANTOR:
GLIMCHER REALTY TRUST
By:
-----------------------------
Its:
----------------------------
3
<PAGE> 78
EXHIBIT D
- --------------------------------------------------------------------------------
GUARANTOR: Glimcher Properties DEBTOR: Glimcher Properties
Corporation Limited Partnership
ADDRESS: 20 South Third Street ADDRESS: 20 South Third Street
Columbus, Ohio 43215 Columbus, Ohio 43215
- --------------------------------------------------------------------------------
GUARANTY
For the purpose of inducing (NAME OF BANK) (hereinafter referred to as "Bank")
to lend money or advance credit to, or renew, extend or forbear from demanding
immediate payment of the Obligations of Glimcher Properties Limited Partnership
(hereinafter referred to as "Debtor"), the undersigned (hereinafter referred to
as "Guarantors" whether one or more), jointly and severally if more than one
(which joint and several liability shall exist regardless of whether additional
Guarantors have evidenced or may in the future evidence their undertaking by
executing this Guaranty, by co-signing one or more promissory notes or other
instruments of indebtedness, by executing one or more separate agreements of
guaranty of any or all of the Obligations referred to herein or otherwise),
hereby unconditionally guarantee the prompt and full payment to Bank when due,
whether by acceleration or otherwise, of all Obligations of any kind for which
Debtor is now or may hereafter become liable to Bank in any manner.
The word "Obligations" is used in its most comprehensive sense and includes,
without limitation, all indebtedness, debts and liabilities (including
principal, interest, late charges, collection costs, attorneys' fees and the
like) of Debtor to Bank, either created by Debtor alone or together with another
or others, primary or secondary, secured or unsecured, absolute or contingent,
liquidated or unliquidated, direct or indirect, whether evidenced by note,
draft, application for letter of credit, agreements of guaranty or otherwise,
and any and all renewals of, extensions of or substitutes therefor, to the
extent that such Obligations arise from or are connected with indebtedness owed
by Debtor to Bank by reason of credit extended or to be extended to Debtor in
the principal amount of $___________, pursuant to a promissory note and dated as
of or May 15, 1997, and a Second Amended and Restated Loan Agreement dated as of
May 15, 1997.
Guarantors, and each of them, hereby promise that if one or more of the
Obligations are not paid promptly when due, they, and each of them, will, upon
request of Bank, pay the Obligations to Bank, irrespective of any action or lack
of action on Bank's part in connection with the acquisition, perfection,
possession, enforcement or disposition of any or all Obligations or any or all
security therefor or otherwise, and further irrespective of any invalidity in
any or all Obligations, the unenforceability thereof or the insufficiency,
invalidity or unenforceability of any security therefor.
Guarantors waive notice of any and all acceptances of this Guaranty. This
Guaranty is a continuing guaranty, and, in addition to covering all present
Obligations of Debtor to Bank, will extend to all future Obligations of Debtor
to Bank, and this whether such Obligations are reduced or entirely extinguished
and thereafter increased or reincurred. This Guaranty is made and will remain in
effect as to any and all Obligations of Debtor incurred or arising prior to
receipt by the loan officer of Bank who is handling Debtor's Obligations of
written notice of termination of this Guaranty. No such
<PAGE> 79
written notice or other revocation will in any way affect the duties of
Guarantors to Bank with respect to either Obligations incurred by Debtor or
instruments executed by Debtor prior to the receipt of such notice by such loan
officer of Bank. In addition, no such written notice or other revocation will in
any way affect the liabilities of Guarantors to Bank with respect to revolving
Obligations of Debtor on which loans or advances are made, whether such loans or
advances are made prior or subsequent to such notice. Revocation by any one or
more of Guarantors will not affect the duties of the remaining Guarantor or
Guarantors.
Bank's rights hereunder shall be reinstated and revived, and this Guaranty shall
be fully enforceable, with respect to any amount at any time paid on account of
the Obligations which thereafter shall be required to be restored or returned by
Bank as a result of the bankruptcy, insolvency or reorganization of Debtor,
Guarantors, or any other person, or as a result of any other fact or
circumstance, all as though such amount had not been paid.
Guarantors waive any claims or other rights which they might now have or
hereafter acquire against Debtor or any other person, guarantor, maker or
endorser primarily or contingently liable on the Obligations that arise from the
existence or performance of Guarantors' obligations under this Guaranty or under
any instrument or agreement with respect to any property constituting collateral
or security herefor, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, or any right to
participate in any claim or remedy of Bank against Debtor or any collateral
security therefor which Bank now has or hereafter acquires; whether such claim,
remedy or right arises in equity, under contract or statute, at common law, or
otherwise.
Guarantors waive presentment, demand, protest, notice of protest and notice of
dishonor or other nonpayment of any and all Obligations and further waive notice
of sale or other disposition of any collateral or security now held or hereafter
acquired by Bank. Guarantors agree that no extension of time, whether one or
more, nor any other indulgence granted by Bank to Debtor, or to Guarantors, or
any of them, and no omission or delay on Bank's part in exercising any right
against, or in taking any action to collect from or pursue Bank's remedies
against Debtor or Guarantors, or any of them, will release, discharge or modify
the duties of Guarantors. Guarantors agree that Bank may, without notice to or
further consent from Guarantors, release or modify any collateral, security or
other guaranties now held or hereafter acquired, or substitute other collateral,
security or other guaranties, and no such action will release, discharge or
modify the duties of Guarantors hereunder. Guarantors further agree that Bank
will not be required to pursue or exhaust any of its rights or remedies against
Debtor or Guarantors, or any of them, with respect to payment of any of the
Obligations, or to pursue, exhaust or preserve any of its rights or remedies
with respect to any collateral, security or other guaranties given to secure the
Obligations, or to take any action of any sort, prior to demanding payment from
or pursuing its remedies against Guarantors.
Guarantors agree that any legal suit, action or proceeding arising out of or
relating to this Guaranty may be instituted in a state or federal court of
appropriate subject matter jurisdiction in the State of Ohio; waive any
objection which they may have now or hereafter to the laying of venue of any
such suit, action or proceeding; and irrevocably submit to the jurisdiction of
any such court in any such suit, action or proceeding.
WAIVER OF RIGHT TO TRIAL BY JURY
- --------------------------------
GUARANTORS ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE BETWEEN
GUARANTORS AND BANK, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS
GUARANTY ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY.
ACCORDINGLY, GUARANTORS HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY AS TO ANY AND
ALL DISPUTES THAT MAY ARISE RELATING TO THIS GUARANTY OR TO ANY OF THE OTHER
INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
If any Obligation of Debtor is assigned by Bank, this Guaranty will inure to the
benefit of Bank's assignee, and to the benefit of any subsequent assignee, to
the extent of the assignment or assignments, provided that no assignment will
operate to relieve Guarantors, or any of them, from any
2
<PAGE> 80
duty to Bank hereunder with respect to any unassigned Obligation. In the event
that any one or more of the provisions contained in this Guaranty or any
application thereof shall be determined to be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein and any other applications thereof shall not in any
way be affected or impaired thereby. This Guaranty shall be construed in
accordance with the law of the State of Ohio.
Executed and delivered at Columbus, Ohio, this 15th day of May, 1997.
GUARANTOR:
GLIMCHER PROPERTIES CORPORATION
By:
------------------------------
Its:
-----------------------------
3
<PAGE> 81
EXHIBIT E
May 15, 1997
The Huntington National Bank
41 South High Street, 8th Floor
Columbus, Ohio 43215
KeyBank National Association
127 Public Square, 6th Floor
Cleveland, Ohio 44114
Fleet National Bank
75 State Street
MA/BO/F11C
Boston, MA 02109
PNC Bank, Ohio, National Association
201 East Fifth Street
P.O. Box 1198
Cincinnati, OH 45201
National City Bank, Columbus
155 East Broad Street
Columbus, Ohio 43215
Star Bank, N.A.
501 West Schrock Road
Westerville, Ohio 43081
The Provident Bank
One East Fourth Street
Cincinnati, Ohio 45202
Bankers Trust Company
280 Park Avenue
Floor 21 W
New York, New York 10017
RE: Second Amended and Restated Loan Agreement ($190,000,000)
dated as of May 15, 1997
<PAGE> 82
Ladies and Gentlemen:
The undersigned is General Counsel to Glimcher Properties Limited
Partnership, a limited partnership formed under the law of the State of Delaware
(the "Borrower"), Glimcher Realty Trust, a real estate investment trust formed
under the law of the State of Maryland (the "Trustee"), and Glimcher Properties
Corporation, a corporation formed under the law of the State of Delaware (a
wholly owned subsidiary of the Trust and the sole general partner of the
Borrower) (the "General Partner"). This opinion letter is delivered to you in
connection with the preparation of the Second Amended and Restated Loan
Agreement dated as of May 15, 1997, among The Huntington National Bank, KeyBank
National Association and the Banks that are parties to that Agreement (the
"Banks"), The Huntington National Bank and KeyBank National Association, as
Co-Agents (in that capacity, the "Co-Agents") and The Huntington National Bank,
as Administrative Agent (in that capacity, the "Administrative Agent"), the
Borrower, the Trust and the General Partner (the "Loan Agreement"). The Trust
and the General Partner are herein sometimes also referred to as the
"Guarantors."
This opinion letter is provided to you as lenders and as Co-Agents for
the Banks at the request of the Borrower, the Trust and the General Partner
pursuant to Section 9.3 of the Loan Agreement. Except as otherwise indicated
herein, capitalized terms used in this opinion letter are defined as set forth
in the Loan Agreement.
The law covered by the opinions expressed herein is limited to the
federal law of the United States, the law of the State of Ohio, the limited
partnership law and the general corporation law of the State of Delaware, and
the real estate investment trust law of the State of Maryland.
We have reviewed originals or copies certified or otherwise identified
to our satisfaction of the following documents:
1. The Loan Agreement, with exhibits
2. The Revolving Promissory Notes (collectively, the "Note") in
favor of each of the Banks
3. The Guarantees dated as of May 15, 1997, between the Trust and
each of the Banks (the "Trust Guarantees")
4. The Guarantees dated as of May 15, 1997, between the General
Partner and each of the Banks (the "General Partner
Guarantees")
(Items 1 through 4 above are hereinafter sometimes referred to as the
"Transaction Documents.")
5. The Limited Partnership Agreement of the Borrower
2
<PAGE> 83
6. The organizational documents of the Trust
7. The Certificate of Incorporation and Bylaws of the General
Partner
8. The records of the proceedings of the partners of the
Borrower, the trustees and shareholders of the Trust and the
Board of Directors and shareholder of the General Partner.
(Items 5 through 8 above are hereinafter sometimes referred to as the
"Organizational Documents.")
In addition, we have examined, and relied as to matters of fact, upon
originals or copies, certified or otherwise identified to our satisfaction, of
such trust, partnership and corporate records, agreements, documents and other
instruments and such certificates or comparable documents of public officials
and of officers and representatives of the Borrower, the Trust and the General
Partner, and have made such other and further investigations, as we have deemed
relevant and necessary as a basis for the opinions hereinafter set forth,
subject to the assumptions, limitations and qualifications noted below.
In expressing the opinion set forth below, we have assumed, and so far
as is known to us there are not facts inconsistent with, the following:
1. Each of the parties (other than the Borrower, the Trust or the
General Partner) executing any of the Transaction Documents
has duly and validly executed and delivered each of the
Transaction Documents to which such party is a signatory, and
such party's obligations set forth therein are legal, valid
and binding and are enforceable in accordance with all stated
terms except as limited (a) by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other
laws relating to or affecting the enforcement of creditors'
rights, (b) by general equitable principles, whether applied
in law or in equity, or (c) by applicable doctrines of
commercial reasonableness.
2. Each individual executing any of the Transaction Documents on
behalf of a party (other than the Borrower, the Trustee or the
General Partner) is duly authorized to do so.
3. Each individual executing any of the Transaction Documents is
legally competent to do so.
4. All documents submitted to us as originals are authentic. All
documents submitted to us as certified or photostatic copies
conform to the original documents. All signatures on all
documents are genuine. All public records reviewed or relied
upon by us or on
3
<PAGE> 84
our behalf are true and complete. All statements and
information contained in the documents (other than the matters
as to which we are opining) are true and complete.
Based upon and subject to the foregoing, we are of the opinion that:
A. Each of the Transaction Documents is enforceable against the
Borrower, the Trust or the General Partner, as the case may be, which is a party
thereto, subject to (a) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws relating to or affecting the enforcement of
creditors' rights, (b) general equitable principles, whether applied in law or
in equity, or (c) applicable doctrine of commercial reasonableness.
B. Execution and delivery by the Borrower of, and performance of its
agreements in the Loan Agreement and the Note do not (i) violated the
Organizational Documents of the Borrower, (ii) to our knowledge, breach, or
result in a default under, any existing obligation of the Borrower under any
agreement to which the Borrower is a party, or (iii) to our knowledge, breach or
otherwise violate any existing obligation of the Borrower under any court order,
except in each case where such breach, violation or default would not either
singly or in the aggregate have a material adverse effect on the Borrower and
its Subsidiaries, taken together as a whole.
C. Execution and delivery by the Borrower of, and performance by the
Borrower of its agreements in, the Loan Agreement and the Note do not violate
applicable provisions of statutory law or regulation, except where such
violation would not either singly or in the aggregate have a material adverse
effect on the Borrower and the Subsidiaries, taken together as a whole.
D. Execution and delivery by the Trust of, and performance of its
agreements in, the Loan Agreement and Trust Guarantees do not (i) violate the
Organizational Documents of the Trust, (ii) to our knowledge, breach, or result
in a default under, any existing obligation of the Trust under any agreement to
which the Trust is a party, or (iii) to our knowledge, breach or otherwise
violate any existing obligation of the Trust under any court order, except in
each case where such breach, violation or default would not either singly or in
the aggregate have a material adverse effect on the Trust and its Subsidiaries,
take together as a whole.
E. Execution and delivery by the Trust of, and performance by the Trust
of its agreements in, the Loan Agreement and the Trust Guarantees do not violate
applicable provisions of statutory law or regulations or adversely affect its
status as a real estate investment trust under all applicable state and federal
law, except where such violation would not either singly or in the aggregate
have a material adverse effect on the Trust and its Subsidiaries, taken together
as a whole.
F. Execution and delivery by the General Partner of, and performance of
its agreements in, the Loan Agreement and the General Partner Guarantees do not
(i) violate the Organizational Documents of the General Partner, (ii) to our
knowledge, breach, or result in a default under, any existing obligation of the
General Partner under any agreement to which the General Partner is a party, or
(iii) to our knowledge, breach or otherwise violate any existing obligation of
the General Partner
4
<PAGE> 85
under any court order, except in each case where such breach, violation or
default would not either singly or in the aggregate have a material adverse
effect on the General Partner and its Subsidiaries, taken together as a whole.
G. Execution and delivery by the General Partner of, and performance by
the General Partner of its agreements in, the Loan Agreement and the General
Partner Guarantees do not violate applicable provisions of statutory law or
regulations, except where such violation would not either singly or in the
aggregate have a material adverse effect on the General Partner and its
Subsidiaries, taken together as a whole.
The opinions expressed in this letter are based upon the law in effect
on the date hereof, and we assume no obligation to revise or supplement this
opinion should such law be changed by legislative action, judicial decision, or
otherwise.
This opinion is being furnished to you solely for your benefit and the
benefit of the Banks (as defined in the Loan Agreement) and only with respect to
the transaction contemplated by the Loan Agreement. Accordingly, it may not be
relied upon by, quoted in any manner to, or delivered to, any other person or
entity (other than the Banks) without, in each instance, our prior written
consent.
Very truly yours,
5
<PAGE> 86
GLIMCHER REALTY TRUST
CONSOLIDATED OPERATING BUDGET
EXHIBIT F.1
Revenue:
Minimum rents xxxxxxx
Percentage rents xxxxxxx
Tenant recoveries xxxxxxx
Other xxxxxxx
-------
Total revenues xxxxxxx
-------
Expenses:
Real estate taxes xxxxxxx
Recoverable operating expenses xxxxxxx
Other operating expenses xxxxxxx
General and administrative xxxxxxx
-------
Total expenses xxxxxxx
-------
Net operating income xxxxxxx
=======
<PAGE> 87
NEGATIVE PLEDGE POOL PROPERTIES
OPERATING BUDGET
EXHIBIT F.2
Revenue:
Minimum rents xxxxxxx
Percentage rents xxxxxxx
Tenant recoveries:
Real estate taxes xxxxxxx
CAM xxxxxxx
Insurance xxxxxxx
Other xxxxxxx
-------
Total revenues xxxxxxx
-------
Expenses:
Real estate taxes xxxxxxx
Recoverable operating expenses:
Real estate taxes xxxxxxx
CAM xxxxxxx
Insurance xxxxxxx
Reserve xxxxxxx
General and administrative xxxxxxx
-------
Total expenses xxxxxxx
-------
Net operating income xxxxxxx
<PAGE> 1
EXHIBIT 10.2
<PAGE> 2
Revolving Note
$________________ Columbus, Ohio May 15, 1997
FOR VALUE RECEIVED, the undersigned, hereinafter referred to in the
plural, promise to pay to the order of (NAME OF BANK) (hereinafter called the
"Bank," which term shall include any holder hereof) at such place as the Bank
may designate or, in the absence of such designation, at any of the Bank's
offices, the sum of ___________________________ Dollars ($____________) or so
much thereof as shall have been advanced by the Bank at any time and not
hereafter repaid (hereinafter referred to as "Principal Sum") together with
interest as hereinafter provided and payable at the time(s) and in the manner(s)
hereinafter provided. The proceeds of the loan evidenced hereby may be advanced,
repaid and readvanced in partial amounts during the term of this revolving note
("Note") and prior to maturity as provided in the Loan Agreement hereinafter
described.
This Note is executed and the advances contemplated hereunder are to be
made pursuant to a Second Amended and Restated Loan Agreement (hereinafter
called the "Loan Agreement") dated as of May 15, 1997, and all the covenants,
representations, agreements, terms, and conditions contained therein, including
but not limited to conditions of default, are incorporated herein as if fully
rewritten.
INTEREST
- --------
Interest will accrue on the unpaid balance of the Principal Sum until
paid at the rate or rates of interest set forth in the Loan Agreement.
Upon default, whether by acceleration or otherwise, interest will
accrue on the unpaid balance of the Principal Sum and unpaid interest, if any,
until paid at a variable rate of interest per annum, which shall change in the
manner set forth below, equal to two (2) percentage points in excess of the
Prime Commercial Rate.
All interest shall be calculated on the basis of a 360 day year for the
actual number of days the Principal Sum or any part thereof remains unpaid.
There shall be no penalty for prepayment.
As used herein, Prime Commercial Rate shall mean the rate established
by The Huntington National Bank from time to time as its Prime Commercial Rate
based on its consideration of economic, money market, business and competitive
factors. The Prime Commercial Rate is not necessarily the lowest rate offered to
business borrowers by The Huntington National Bank. Subject to any maximum or
minimum interest rate limitation specified herein or by applicable law, any
variable rate of interest on the obligation evidenced hereby shall change
automatically without notice to the undersigned immediately with each change in
the Prime Commercial Rate.
MANNER OF PAYMENT
- -----------------
The Principal Sum shall be payable on July 31, 1998, and accrued
interest shall be due and payable monthly at the times provided in the Loan
Agreement, and at maturity, whether by demand, acceleration or otherwise.
LATE CHARGE
- -----------
Any installment or other payment not made within 10 days of the date
such payment or installment is due shall be subject to a late charge equal to 5%
of the amount of the installment or payment.
<PAGE> 3
DEFAULT
- -------
Upon the occurrence of any of the Events of Default described in
Section 12 of the Loan Agreement, the Bank may, at its option, without notice or
demand, accelerate the maturity of the obligations evidenced hereby, which
obligations shall become immediately due and payable. In the event the Bank
shall institute any action for the enforcement or collection of the obligations
evidenced hereby, the undersigned agree to pay all costs and expenses of such
action, including reasonable attorneys' fees, to the extent permitted by law.
GENERAL PROVISIONS
- ------------------
All of the parties hereto, including the undersigned, and any indorser,
surety, or guarantor, hereby severally waive presentment, notice of dishonor,
protest, notice of protest, and diligence in bringing suit against any party
hereto, and consent that, without discharging any of them, the time of payment
may be extended an unlimited number of times before or after maturity without
notice. The Bank shall not be required to pursue any party hereto, including any
guarantor, or to exercise any rights against any collateral herefor before
exercising any other such rights.
The obligations evidenced hereby may from time to time be evidenced by
another note or notes given in substitution, renewal or extension hereof. Any
security interest or mortgage which then secures the obligations evidenced
hereby shall remain in full force and effect notwithstanding any such
substitution, renewal, or extension.
The captions used herein are for references only and shall not be
deemed a part of this Note. If any of the terms or provisions of this Note shall
be deemed unenforceable, the enforceability of the remaining terms and
provisions shall not be affected. This Note shall be governed by and construed
in accordance with the law of the State of Ohio.
WAIVER OF RIGHT TO TRIAL BY JURY
- --------------------------------
THE UNDERSIGNED ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY
ARISE BETWEEN THE UNDERSIGNED AND THE BANK, THE COMMERCIAL NATURE OF THE
TRANSACTION OUT OF WHICH THIS NOTE ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE
FOR TRIAL BY JURY. ACCORDINGLY, THE UNDERSIGNED HEREBY WAIVE ANY RIGHT TO TRIAL
BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO THIS NOTE OR TO
ANY OF THE OTHER INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation
Its: Sole General Partner
By:
------------------------------------
Its:
-----------------------------------
2
<PAGE> 1
EXHIBIT 10.3
<PAGE> 2
- --------------------------------------------------------------------------------
GUARANTOR: Glimcher Realty Trust DEBTOR: Glimcher Properties
Limited Partnership
ADDRESS: 20 South Third Street ADDRESS: 20 South Third Street
Columbus, Ohio 43215 Columbus, Ohio 43215
- --------------------------------------------------------------------------------
GUARANTY
For the purpose of inducing (NAME OF BANK) (hereinafter referred to as "Bank")
to lend money or advance credit to, or renew, extend or forbear from demanding
immediate payment of the Obligations of Glimcher Properties Limited Partnership
(hereinafter referred to as "Debtor"), the undersigned (hereinafter referred to
as "Guarantors" whether one or more), jointly and severally if more than one
(which joint and several liability shall exist regardless of whether additional
Guarantors have evidenced or may in the future evidence their undertaking by
executing this Guaranty, by co-signing one or more promissory notes or other
instruments of indebtedness, by executing one or more separate agreements of
guaranty of any or all of the Obligations referred to herein or otherwise),
hereby unconditionally guarantee the prompt and full payment to Bank when due,
whether by acceleration or otherwise, of all Obligations of any kind for which
Debtor is now or may hereafter become liable to Bank in any manner.
The word "Obligations" is used in its most comprehensive sense and includes,
without limitation, all indebtedness, debts and liabilities (including
principal, interest, late charges, collection costs, attorneys' fees and the
like) of Debtor to Bank, either created by Debtor alone or together with another
or others, primary or secondary, secured or unsecured, absolute or contingent,
liquidated or unliquidated, direct or indirect, whether evidenced by note,
draft, application for letter of credit, agreements of guaranty or otherwise,
and any and all renewals of, extensions of or substitutes therefor, to the
extent that such Obligations arise from or are connected with indebtedness owed
by Debtor to Bank by reason of credit extended or to be extended to Debtor in
the principal amount of $__________, pursuant to a promissory note dated as of
May 15, 1997, and a Second Amended and Restated Loan Agreement dated as of May
15, 1997.
Guarantors, and each of them, hereby promise that if one or more of the
Obligations are not paid promptly when due, they, and each of them, will, upon
request of Bank, pay the Obligations to Bank, irrespective of any action or lack
of action on Bank's part in connection with the acquisition, perfection,
possession, enforcement or disposition of any or all Obligations or any or all
security therefor or otherwise, and further irrespective of any invalidity in
any or all Obligations, the unenforceability thereof or the insufficiency,
invalidity or unenforceability of any security therefor.
Guarantors waive notice of any and all acceptances of this Guaranty. This
Guaranty is a continuing guaranty, and, in addition to covering all present
Obligations of Debtor to Bank, will extend to all future Obligations of Debtor
to Bank, and this whether such Obligations are reduced or entirely extinguished
and thereafter increased or reincurred. This Guaranty is made and will remain in
effect as to any and all Obligations of Debtor incurred or arising prior to
receipt by the loan officer of Bank who is handling Debtor's Obligations of
written notice of termination of this Guaranty. No such written notice or other
revocation will in any way affect the duties of Guarantors to Bank with respect
<PAGE> 3
to either Obligations incurred by Debtor or instruments executed by Debtor prior
to the receipt of such notice by such loan officer of Bank. In addition, no such
written notice or other revocation will in any way affect the liabilities of
Guarantors to Bank with respect to revolving Obligations of Debtor on which
loans or advances are made, whether such loans or advances are made prior or
subsequent to such notice. Revocation by any one or more of Guarantors will not
affect the duties of the remaining Guarantor or Guarantors.
Bank's rights hereunder shall be reinstated and revived, and this Guaranty shall
be fully enforceable, with respect to any amount at any time paid on account of
the Obligations which thereafter shall be required to be restored or returned by
Bank as a result of the bankruptcy, insolvency or reorganization of Debtor,
Guarantors, or any other person, or as a result of any other fact or
circumstance, all as though such amount had not been paid.
Guarantors waive any claims or other rights which they might now have or
hereafter acquire against Debtor or any other person, guarantor, maker or
endorser primarily or contingently liable on the Obligations that arise from the
existence or performance of Guarantors' obligations under this Guaranty or under
any instrument or agreement with respect to any property constituting collateral
or security herefor, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, or any right to
participate in any claim or remedy of Bank against Debtor or any collateral
security therefor which Bank now has or hereafter acquires; whether such claim,
remedy or right arises in equity, under contract or statute, at common law, or
otherwise.
Guarantors waive presentment, demand, protest, notice of protest and notice of
dishonor or other nonpayment of any and all Obligations and further waive notice
of sale or other disposition of any collateral or security now held or hereafter
acquired by Bank. Guarantors agree that no extension of time, whether one or
more, nor any other indulgence granted by Bank to Debtor, or to Guarantors, or
any of them, and no omission or delay on Bank's part in exercising any right
against, or in taking any action to collect from or pursue Bank's remedies
against Debtor or Guarantors, or any of them, will release, discharge or modify
the duties of Guarantors. Guarantors agree that Bank may, without notice to or
further consent from Guarantors, release or modify any collateral, security or
other guaranties now held or hereafter acquired, or substitute other collateral,
security or other guaranties, and no such action will release, discharge or
modify the duties of Guarantors hereunder. Guarantors further agree that Bank
will not be required to pursue or exhaust any of its rights or remedies against
Debtor or Guarantors, or any of them, with respect to payment of any of the
Obligations, or to pursue, exhaust or preserve any of its rights or remedies
with respect to any collateral, security or other guaranties given to secure the
Obligations, or to take any action of any sort, prior to demanding payment from
or pursuing its remedies against Guarantors.
Guarantors agree that any legal suit, action or proceeding arising out of or
relating to this Guaranty may be instituted in a state or federal court of
appropriate subject matter jurisdiction in the State of Ohio; waive any
objection which they may have now or hereafter to the laying of venue of any
such suit, action or proceeding; and irrevocably submit to the jurisdiction of
any such court in any such suit, action or proceeding.
WAIVER OF RIGHT TO TRIAL BY JURY
- --------------------------------
GUARANTORS ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE BETWEEN
GUARANTORS AND BANK, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS
GUARANTY ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY.
ACCORDINGLY, GUARANTORS HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY AS TO ANY AND
ALL DISPUTES THAT MAY ARISE RELATING TO THIS GUARANTY OR TO ANY OF THE OTHER
INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
If any Obligation of Debtor is assigned by Bank, this Guaranty will inure to the
benefit of Bank's assignee, and to the benefit of any subsequent assignee, to
the extent of the assignment or assignments, provided that no assignment will
operate to relieve Guarantors, or any of them, from any duty to Bank hereunder
with respect to any unassigned Obligation. In the event that any one or more
2
<PAGE> 4
of the provisions contained in this Guaranty or any application thereof shall be
determined to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and any
other applications thereof shall not in any way be affected or impaired thereby.
This Guaranty shall be construed in accordance with the law of the State of
Ohio.
This Guaranty and all documents, agreements, understandings and arrangements
relating to the transactions contemplated hereby have been or will be executed
or entered into on behalf of Glimcher Realty Trust by one or more officers or
trustees of Glimcher Realty Trust, which has been formed as a Maryland real
estate investment trust pursuant to a Declaration of Trust of Glimcher Realty
Trust dated as of September 1, 1993, in their capacities as officers or
trustees, and not individually, and neither the trustees, officers or
shareholders of Glimcher Realty Trust shall be bound or have any personal
liability hereunder or thereunder. Bank shall look solely to the assets of
Glimcher Realty Trust for satisfaction of any liability of Glimcher Realty Trust
in respect hereof and in respect of all documents, agreements, understandings
and arrangements relating hereto and will not seek recourse or commence any
action against any of the trustees, officers or shareholders of Glimcher Realty
Trust or any of their personal assets for the performance or payment of any
obligation of Glimcher Realty Trust hereunder or thereunder. The foregoing shall
also apply to any future documents, agreements, understandings, arrangements and
transactions hereunder between Glimcher Realty Trust and Bank.
Executed and delivered at Columbus, Ohio, this 15th day of May, 1997.
GUARANTOR:
GLIMCHER REALTY TRUST
By:
------------------------------
Its:
-----------------------------
3
<PAGE> 1
EXHIBIT 10.4
<PAGE> 2
- --------------------------------------------------------------------------------
GUARANTOR: Glimcher Properties DEBTOR: Glimcher Properties
Corporation Limited Partnership
ADDRESS: 20 South Third Street ADDRESS: 20 South Third Street
Columbus, Ohio 43215 Columbus, Ohio 43215
- --------------------------------------------------------------------------------
GUARANTY
For the purpose of inducing (NAME OF BANK) (hereinafter referred to as "Bank")
to lend money or advance credit to, or renew, extend or forbear from demanding
immediate payment of the Obligations of Glimcher Properties Limited Partnership
(hereinafter referred to as "Debtor"), the undersigned (hereinafter referred to
as "Guarantors" whether one or more), jointly and severally if more than one
(which joint and several liability shall exist regardless of whether additional
Guarantors have evidenced or may in the future evidence their undertaking by
executing this Guaranty, by co-signing one or more promissory notes or other
instruments of indebtedness, by executing one or more separate agreements of
guaranty of any or all of the Obligations referred to herein or otherwise),
hereby unconditionally guarantee the prompt and full payment to Bank when due,
whether by acceleration or otherwise, of all Obligations of any kind for which
Debtor is now or may hereafter become liable to Bank in any manner.
The word "Obligations" is used in its most comprehensive sense and includes,
without limitation, all indebtedness, debts and liabilities (including
principal, interest, late charges, collection costs, attorneys' fees and the
like) of Debtor to Bank, either created by Debtor alone or together with another
or others, primary or secondary, secured or unsecured, absolute or contingent,
liquidated or unliquidated, direct or indirect, whether evidenced by note,
draft, application for letter of credit, agreements of guaranty or otherwise,
and any and all renewals of, extensions of or substitutes therefor, to the
extent that such Obligations arise from or are connected with indebtedness owed
by Debtor to Bank by reason of credit extended or to be extended to Debtor in
the principal amount of $___________, pursuant to a promissory note and dated as
of or May 15, 1997, and a Second Amended and Restated Loan Agreement dated as of
May 15, 1997.
Guarantors, and each of them, hereby promise that if one or more of the
Obligations are not paid promptly when due, they, and each of them, will, upon
request of Bank, pay the Obligations to Bank, irrespective of any action or lack
of action on Bank's part in connection with the acquisition, perfection,
possession, enforcement or disposition of any or all Obligations or any or all
security therefor or otherwise, and further irrespective of any invalidity in
any or all Obligations, the unenforceability thereof or the insufficiency,
invalidity or unenforceability of any security therefor.
Guarantors waive notice of any and all acceptances of this Guaranty. This
Guaranty is a continuing guaranty, and, in addition to covering all present
Obligations of Debtor to Bank, will extend to all future Obligations of Debtor
to Bank, and this whether such Obligations are reduced or entirely extinguished
and thereafter increased or reincurred. This Guaranty is made and will remain in
effect as to any and all Obligations of Debtor incurred or arising prior to
receipt by the loan officer of Bank who is handling Debtor's Obligations of
written notice of termination of this Guaranty. No such
<PAGE> 3
written notice or other revocation will in any way affect the duties of
Guarantors to Bank with respect to either Obligations incurred by Debtor or
instruments executed by Debtor prior to the receipt of such notice by such loan
officer of Bank. In addition, no such written notice or other revocation will in
any way affect the liabilities of Guarantors to Bank with respect to revolving
Obligations of Debtor on which loans or advances are made, whether such loans or
advances are made prior or subsequent to such notice. Revocation by any one or
more of Guarantors will not affect the duties of the remaining Guarantor or
Guarantors.
Bank's rights hereunder shall be reinstated and revived, and this Guaranty shall
be fully enforceable, with respect to any amount at any time paid on account of
the Obligations which thereafter shall be required to be restored or returned by
Bank as a result of the bankruptcy, insolvency or reorganization of Debtor,
Guarantors, or any other person, or as a result of any other fact or
circumstance, all as though such amount had not been paid.
Guarantors waive any claims or other rights which they might now have or
hereafter acquire against Debtor or any other person, guarantor, maker or
endorser primarily or contingently liable on the Obligations that arise from the
existence or performance of Guarantors' obligations under this Guaranty or under
any instrument or agreement with respect to any property constituting collateral
or security herefor, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, or any right to
participate in any claim or remedy of Bank against Debtor or any collateral
security therefor which Bank now has or hereafter acquires; whether such claim,
remedy or right arises in equity, under contract or statute, at common law, or
otherwise.
Guarantors waive presentment, demand, protest, notice of protest and notice of
dishonor or other nonpayment of any and all Obligations and further waive notice
of sale or other disposition of any collateral or security now held or hereafter
acquired by Bank. Guarantors agree that no extension of time, whether one or
more, nor any other indulgence granted by Bank to Debtor, or to Guarantors, or
any of them, and no omission or delay on Bank's part in exercising any right
against, or in taking any action to collect from or pursue Bank's remedies
against Debtor or Guarantors, or any of them, will release, discharge or modify
the duties of Guarantors. Guarantors agree that Bank may, without notice to or
further consent from Guarantors, release or modify any collateral, security or
other guaranties now held or hereafter acquired, or substitute other collateral,
security or other guaranties, and no such action will release, discharge or
modify the duties of Guarantors hereunder. Guarantors further agree that Bank
will not be required to pursue or exhaust any of its rights or remedies against
Debtor or Guarantors, or any of them, with respect to payment of any of the
Obligations, or to pursue, exhaust or preserve any of its rights or remedies
with respect to any collateral, security or other guaranties given to secure the
Obligations, or to take any action of any sort, prior to demanding payment from
or pursuing its remedies against Guarantors.
Guarantors agree that any legal suit, action or proceeding arising out of or
relating to this Guaranty may be instituted in a state or federal court of
appropriate subject matter jurisdiction in the State of Ohio; waive any
objection which they may have now or hereafter to the laying of venue of any
such suit, action or proceeding; and irrevocably submit to the jurisdiction of
any such court in any such suit, action or proceeding.
WAIVER OF RIGHT TO TRIAL BY JURY
- --------------------------------
GUARANTORS ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE BETWEEN
GUARANTORS AND BANK, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS
GUARANTY ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY.
ACCORDINGLY, GUARANTORS HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY AS TO ANY AND
ALL DISPUTES THAT MAY ARISE RELATING TO THIS GUARANTY OR TO ANY OF THE OTHER
INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
If any Obligation of Debtor is assigned by Bank, this Guaranty will inure to the
benefit of Bank's assignee, and to the benefit of any subsequent assignee, to
the extent of the assignment or assignments, provided that no assignment will
operate to relieve Guarantors, or any of them, from any
2
<PAGE> 4
duty to Bank hereunder with respect to any unassigned Obligation. In the event
that any one or more of the provisions contained in this Guaranty or any
application thereof shall be determined to be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein and any other applications thereof shall not in any
way be affected or impaired thereby. This Guaranty shall be construed in
accordance with the law of the State of Ohio.
Executed and delivered at Columbus, Ohio, this 15th day of May, 1997.
GUARANTOR:
GLIMCHER PROPERTIES CORPORATION
By:
---------------------------------
Its:
--------------------------------
3
<PAGE> 1
EXHIBIT 10.5
<PAGE> 2
SECURITY AGREEMENT
------------------
INTEREST RATE PROTECTION CONTRACT
Glimcher Properties Limited Partnership , 20 South Third Street ,
- ------------------------------------------ ------------------------------
Name No. and Street
Columbus , Franklin , Ohio ,
- ----------------------- ---------------------------- -------------------------
City County State
a Delaware limited partnership (hereinafter called "Debtor"), for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby grants, pledges and assigns to The Huntington National Bank, as
Administrative Agent for a bank lending group pursuant to a Second Amended and
Restated Loan Agreement dated as of May 15, 1997 (hereinafter called "Bank"), a
security interest in all of Debtor's accounts, accounts receivable, contract
rights, general intangibles, and other forms of obligations and receivables
arising from or in connection with Debtor's rights under the swap agreement
entered into by and between Debtor and KeyBank National Association pursuant to
a Master Agreement dated as of July 19, 1995, and a Confirmation dated as of
July 12, 1995, or pursuant to any other swap agreement or interest rate
protection contract entered into by Debtor in modification thereof or in
substitution therefor, and all books, records, ledger cards, computer programs
and other documents or property at any time evidencing or relating to the
foregoing receivables (hereinafter sometimes called the "Receivables"), whether
Debtor's interest in the Collateral (defined below) be now owned or existing or
hereafter arising or acquired, and wherever located, together with all
substitutions, replacements and additions therefor or thereto and all cash and
non-cash proceeds thereof including, but not limited to, notes, drafts, checks
and instruments (all of the foregoing hereinafter called the "Collateral").
The security interest hereby granted is to secure the prompt and full
payment and complete performance of all Obligations of Debtor to Bank. The word
"Obligations" is used in its most comprehensive sense and includes, without
limitation, all indebtedness, debts and liabilities (including principal,
interest, late charges, collection costs, attorneys' fees to the extent
permitted by law and the like) of Debtor to Bank, whether now existing or
hereafter arising, either created by Debtor alone or together with another or
others, primary or secondary, secured or unsecured, absolute or contingent,
liquidated or unliquidated, direct or indirect, whether evidenced by note,
draft, application for letter of credit or otherwise, and any and all renewals
of or substitutes therefor, arising out of or by reason of the Second Amended
and Restated Loan Agreement entered into as of May 15, 1997, by and among
Debtor, as borrower, Glimcher Realty Trust and Glimcher Properties Corporation
as guarantors, The Huntington National Bank and KeyBank National Association as
Co-Agents for a bank lending group named therein, and Bank, as Administrative
Agent (the "Loan Agreement").
It is Debtor's express intention that this agreement and the continuing
security interest granted hereby, in addition to covering all present
Obligations of Debtor to Bank, shall extend to all future Obligations of Debtor
to Bank under the Loan Agreement, whether or not such Obligations are reduced or
entirely extinguished and thereafter increased or reincurred, whether or not
such Obligations are related to the indebtedness identified above by class, type
or kind and whether or not such Obligations are specifically contemplated by
Debtor and Bank as of the date hereof. The absence of any reference to this
agreement in any documents, instruments or agreements evidencing or relating to
any Obligation secured hereby shall not limit or be construed to limit the scope
or applicability of this agreement.
<PAGE> 3
1. GENERAL COVENANTS. Debtor represents, warrants and covenants as
follows:
(a) Debtor is, or as to Collateral arising or to be acquired
after the date hereof, shall be, the sole and exclusive owner of the Collateral,
and the Collateral is and shall remain free from any and all liens, security
interests, encumbrances, claims and interests and no security agreement,
financing statement, equivalent security or lien instrument or continuation
statement covering any of the Collateral is on file or of record in any public
office.
(b) Debtor shall not create, permit or suffer to exist, and
shall take such action as is necessary to remove, any claim to or interest in or
lien or encumbrance upon the Collateral, other than the security interest
granted hereby, and shall defend the right, title and interest of Bank in and to
the Collateral against all claims and demands of all persons and entities at any
time claiming the same or any interest therein.
(c) Debtor's principal place of business and chief executive
office is located at the address set forth at the beginning of this agreement;
unless Debtor gives Bank notice in writing of a change in the location of the
Collateral and Debtor's records concerning the Receivables prior to such a
change in location, the Collateral and Debtor's records concerning the
Receivables shall be kept at that address.
(d) At least thirty (30) days prior to the occurrence of any
of the following events, Debtor shall deliver to the loan officer who is
handling Debtor's Obligations on behalf of Bank written notice of such impending
events: (i) a change in Debtor's principal place of business or chief executive
office; or (ii) a change in Debtor's name, identity or corporate structure.
(e) Subject to any limitation stated therein or in connection
therewith, all information furnished by Debtor concerning the Collateral or
otherwise in connection with the Obligations, is or shall be at the time the
same is furnished, accurate, correct and complete in all material respects.
2. COLLECTION OF RECEIVABLES. Debtor shall, unless otherwise directed
by Bank, following the occurrence of an event of default hereunder, collect all
of Debtor's Receivables. With respect to any Receivables collected by the Bank
after the occurrence of an event of default, Debtor authorizes Bank to indorse
the name of Debtor upon any checks or other items received in payment of any
Receivable and to do any and all things necessary in order to reduce the same to
money. All amounts received by Bank representing payment of Receivables may be
applied by Bank to the payment of the Obligations in such order of preference as
Bank may determine, or Bank may, at its option, impound all or any portion of
such amounts and retain said amounts as security for the payment of the
Obligations, with the right on the part of Debtor, upon approval by Bank, to
obtain the release of all or part of such impounded amounts. Bank may, however,
at any time following an event of default, apply all or any part of such
impounded amounts as aforesaid. If so directed by Bank, Debtor shall hold all
payments of any Receivable in trust for Bank and shall forthwith deliver the
same to Bank in the form received by Debtor without commingling with any funds
of Debtor.
Debtor agrees to execute, deliver, file and record all such
notices, affidavits, assignments, financing statements and other instruments as
shall in the judgment of Bank be necessary or desirable to evidence, validate
and perfect the security interest of Bank in the Receivables. Bank shall have
the right following an event of default to notify any persons or entities owing
any Receivables and to demand and receive payment, but Bank shall have no duty
so to do. Upon request of Bank at any time after an event of default, Debtor
shall notify such account debtors that the accounts are payable to Bank.
3. INSPECTION. Debtor shall at all times keep accurate and complete
records of the Receivables and Debtor shall, at all reasonable times and from
time to time, allow Bank, by or through any of its officers, agents, attorneys
or accountants, to examine, inspect and make extracts from Debtor's books and
records and to arrange for verification of the Receivables directly with account
debtors or by other methods and to examine and inspect the Collateral wherever
located.
2
<PAGE> 4
4. FURTHER ASSURANCES. Debtor shall perform, do, make, execute and
deliver all such additional and further acts, things, deeds, assurances and
instruments as Bank may require to more completely vest in and assure to Bank
its rights hereunder and in or to the Collateral.
5. PRESERVATION AND DISPOSITION OF COLLATERAL.
(a) Debtor shall advise Bank promptly, in writing and in
reasonable detail, (i) of any material encumbrance upon or claim asserted
against any of the Collateral; (ii) of any material change in the composition of
the Collateral; and (iii) of the occurrence of any other event that would have a
material effect upon the aggregate value of the Collateral or upon the security
interest of Bank.
(b) Debtor shall not sell or otherwise dispose of the
Collateral.
(c) Debtor shall not use the Collateral in violation of any
statute, ordinance, regulation, rule, decree or order.
(d) Debtor shall pay promptly when due all taxes, assessments,
charges or levies upon the Collateral or in respect to the income or profits
therefrom, except that no such charge need be paid if (i) the validity thereof
is being contested in good faith by appropriate proceedings; (ii) such
proceedings do not involve any danger of sale, forfeiture or loss of any
Collateral or any interest therein; and (iii) such charge is adequately reserved
against in accordance with generally accepted accounting principles.
(e) At its option, Bank may discharge taxes, liens, security
interests or other encumbrances at any time levied or placed on the Collateral.
Debtor agrees to reimburse Bank upon demand for any payment made or any expense
incurred (including reasonable attorneys' fees to the extent permitted by law)
by Bank pursuant to the foregoing authorization. Should Debtor fail to pay said
sum to Bank upon demand, interest shall accrue thereon, from the date of demand
until paid in full, at the highest rate set forth in any document or instrument
evidencing any of the Obligations.
6. EXTENSIONS AND COMPROMISES. With respect to any Collateral held by
Bank as security for the Obligations, Debtor assents to all extensions or
postponements of the time of payment thereof or any other indulgence in
connection therewith, to each substitution, exchange or release of Collateral,
to the addition or release of any party primarily or secondarily liable, to the
acceptance of partial payments thereon and to the settlement, compromise or
adjustment thereof, all in such manner and at such time or times as Bank may
deem advisable. Bank shall have no duty as to the collection or protection of
Collateral or any income therefrom, nor as to the preservation of rights against
prior parties, nor as to the preservation of any right pertaining thereto,
beyond the safe custody of Collateral in the possession of Bank.
7. FINANCING STATEMENTS. At the request of Bank, Debtor shall join
with Bank in executing one or more financing statements in a form satisfactory
to Bank and shall pay the cost of filing the same in all public offices wherever
filing is deemed by Bank to be necessary or desirable. A carbon, photographic or
other reproduction of this agreement or of a financing statement shall be
sufficient as a financing statement.
8. BANK'S APPOINTMENT AS ATTORNEY-IN-FACT. Debtor hereby irrevocably
constitutes and appoints Bank and any officer or agent thereof, with full power
of substitution, as Debtor's true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Debtor and in the name
of Debtor or in Bank's own name, from time to time in Bank's discretion, for the
purpose of carrying out the terms of this agreement, to take any and all
appropriate action and to execute any and all documents and instruments that may
be necessary or desirable to accomplish the purposes of this agreement and,
without limiting the generality of the foregoing, hereby grants to Bank the
power and right, on behalf of Debtor, without notice to or assent by Debtor:
(a) To execute, file and record all such financing statements
and similar documents and instruments as Bank may deem necessary or desirable to
protect, perfect and validate Bank's security interest in the Collateral.
3
<PAGE> 5
(b) Upon the occurrence and continuance of any event of
default under paragraph 9 hereof, (i) to sign and indorse any invoices, drafts
against debtors, assignments, verifications and notices in connection with
accounts and other documents relating to the Collateral; (ii) to commence and
prosecute any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any part thereof and to
enforce any other right in respect of any Collateral; (iii) to defend any suit,
action or proceeding brought against Debtor with respect to any Collateral; (iv)
to settle, compromise or adjust any suit, action or proceeding described above
and, in connection therewith, to give such discharges or releases as Bank may
deem appropriate; and (v) generally, to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral as fully
and completely as though Bank were the absolute owner thereof for all purposes,
and to do, at Bank's option and Debtor's expense, at any time or from time to
time, all acts and things which Bank deems necessary to protect, preserve or
realize upon the Collateral and Bank's security interest therein, in order to
effect the intent of this agreement, all as fully and effectively as Debtor
might do.
Debtor hereby ratifies all that said attorneys shall lawfully
do or cause to be done by virtue hereof. This power of attorney is a power
coupled with an interest and shall be irrevocable.
The powers conferred upon Bank hereunder are solely to protect
its interests in the Collateral and shall not impose any duty upon Bank to
exercise any such powers. Bank shall be accountable only for amounts that Bank
actually receives as a result of the exercise of such powers and neither Bank
nor any of its officers, directors, employees or agents shall be responsible to
Debtor for any act or failure to act, except for Bank's own gross negligence or
willful misconduct.
9. DEFAULT. If any event of default in the payment of any of the
Obligations or in the performance of any of the terms, conditions, or provisions
of any instrument or document evidencing the Obligations secured by this
agreement or in the performance of any covenant contained herein shall occur and
be continuing; or if any warranty, representation or statement made or furnished
to Bank by Debtor proves to have been false in any material respect when made or
furnished:
(a) Bank may, at its option subject to provisions for notice
and rights to cure as contained in the Loan Agreement, declare the unpaid
balance of any or all of the Obligations immediately due and payable and this
agreement and any or all of the Obligations in default.
(b) All payments received by Debtor under or in connection
with any of the Collateral shall be held by Debtor in trust for Bank, shall be
segregated from other funds of Debtor and shall forthwith upon receipt by Debtor
be turned over to Bank in the same form as received by Debtor (duly indorsed by
Debtor to Bank, if required). Any and all such payments so received by Bank
(whether from Debtor or otherwise) may, in the sole discretion of Bank, be held
by Bank as collateral security for, and/or then or at any time thereafter be
applied in whole or in part by Bank against, all or any part of the Obligations
in such order as Bank may elect. Any balance of such payments held by Bank and
remaining after payment in full of all the Obligations shall be paid over to
Debtor or to whomsoever may be lawfully entitled to receive the same. Nothing
set forth in this subparagraph (b) shall authorize or be construed to authorize
Debtor to sell or otherwise dispose of any Collateral.
(c) Bank shall have the rights and remedies of a secured party
under this agreement, under any other instrument or agreement securing,
evidencing or relating to the Obligations and under the law of the State of
Ohio. Without limiting the generality of the foregoing, Bank shall have the
right to take possession of the Collateral and all books and records relating to
the Collateral and for that purpose Bank may enter upon any premises on which
the Collateral or books and records relating to the Collateral or any part
thereof may be situated and remove the same therefrom. Debtor expressly agrees
that Bank, without demand of performance or other demand, advertisement or
notice of any kind (except the notices specified below of time and place of
public sale or disposition or time after which a private sale or disposition is
to occur) to or upon Debtor or any other person or entity (all and each of which
demands, advertisements and/or notices are hereby expressly waived), may
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase or sell or otherwise dispose of and deliver the Collateral (or
contract to do so), or any part thereof, in one or
4
<PAGE> 6
more parcels at public or private sale or sales, at any of Bank's offices or
elsewhere at such prices as Bank may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. Bank shall have the right
upon any such public sale or sales, and, to the extent permitted by law, upon
any such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in Debtor. Bank
shall apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any or all of the Collateral or in any way relating to
the rights of Bank hereunder, including reasonable attorneys' fees to the extent
permitted by law and reasonable legal expenses, to the payment in whole or in
part of the Obligations, in such order as Bank may elect, and only after so
paying over such net proceeds and after the payment by Bank of any other amount
required by any provision of law, including Ohio Revised Code Section
1309.47(A)(3), need Bank account for the surplus, if any, to Debtor. To the
extent permitted by applicable law, Debtor waives all claims, damages and
demands against Bank arising out of the repossession, retention, sale or
disposition of the Collateral. Debtor agrees that Bank need not give more than
seven (7) days' notice (which notification shall be deemed given when mailed,
postage prepaid, addressed to Debtor at Debtor's address set forth at the
beginning of this agreement, or when telecopied or telegraphed to that address
or when telephoned or otherwise communicated orally to Debtor or any agent of
Debtor at that address) of the time and place of any public sale or of the time
after which a private sale may take place and that such notice is reasonable
notification of such matters. Debtor shall remain liable for any deficiency if
the proceeds of any sale or disposition of the Collateral are insufficient to
pay all amounts to which Bank is entitled. Debtor shall also be liable for the
costs of collecting any of the Obligations or otherwise enforcing the terms
thereof or of this agreement including reasonable attorneys' fees to the extent
permitted by law.
10. GENERAL. Any provision of this agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Bank shall not be deemed to have waived any of its rights
hereunder or under any other agreement, instrument or paper signed by Debtor
unless such waiver be in writing and signed by Bank. No delay or omission on the
part of Bank in exercising any right shall operate as a waiver of such right or
any other right. All of Bank's rights and remedies, whether evidenced hereby or
by any other agreement, instrument or paper, shall be cumulative and may be
exercised singularly or concurrently. Any written demand upon or written notice
to Debtor shall be effective when deposited in the mails addressed to Debtor at
the address shown at the beginning of this agreement. This agreement and all
rights and obligations hereunder, including matters of construction, validity
and performance, shall be governed by the law of the State of Ohio. The
provisions hereof shall, as the case may require, bind or inure to the benefit
of, the respective heirs, successors, legal representatives and assigns of
Debtor and Bank.
IN WITNESS WHEREOF, Debtor has signed this agreement this 15th day of
May, 1997.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation
Its: Sole General Partner
By: /s/ David J. Glimcher
---------------------
David J. Glimcher
Its: President
5
<PAGE> 7
KeyBank National Association hereby consents to the grant of a security
interest as provided in the foregoing agreement.
KeyBank National Association
By:
--------------------------------------
Its:
--------------------------------------
Date:
--------------------------------------
6
<PAGE> 1
EXHIBIT 10.6
<PAGE> 2
OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, having an office at 20 South Third
Street, Columbus, Ohio 43215 ("Borrower"), in consideration of the sum of One
Hundred Ninety Million Dollars ($190,000,000.00) does hereby GRANT, BARGAIN,
SELL, MORTGAGE AND CONVEY certain real property more fully described in Exhibit
"A" attached hereto and incorporated herein (the "Property") unto THE HUNTINGTON
NATIONAL BANK, a national banking association, having an office at 41 South High
Street, Columbus, Ohio 43215, as Administrative Agent for KeyBank National
Association, The Huntington National Bank and certain other banks (the "Banks")
who are or may hereafter become signatories to a certain Second Amended and
Restated Loan Agreement, dated May 15, 1997, by and among The Huntington
National Bank, KeyBank National Association, the other banks signatory thereto,
Glimcher Properties Limited Partnership, Glimcher Realty Trust and Glimcher
Properties Corporation (the "Loan Agreement"). The Huntington National Bank in
its capacity as Administrative Agent is hereinafter referred to as "Huntington."
TOGETHER WITH the following, whether now owned or hereafter acquired
by Borrower: (a) all improvements now or hereafter attached to or placed,
erected, constructed or developed on the Property (collectively the
"Improvements"); (b) all fixtures, furnishings, equipment, inventory, and other
articles of personal property (collectively the "Personal Property") that are
now or hereafter attached to or used in or about the Improvements or that are
necessary or useful for the complete and comfortable use and occupancy of the
Improvements for the purposes for which they were or are to be attached, placed,
erected, constructed or developed or that may be used in or related to the
planning, development, financing or operation of the Improvements, and all
renewals of or replacements or substitutions for any of the foregoing, whether
or not the same are or shall be attached to the Improvements or the Property;
(c) all water and water rights, timber, crops, and mineral interests pertaining
to the Property; (d) all building materials and equipment now or hereafter
delivered to and intended to be installed in or on the Improvements or the
Property; (e) all plans and specifications for the Improvements; (f) all
contracts relating to the Property, the Improvements or the Personal Property;
(g) all deposits (including, without limitation, tenants' security deposits),
bank accounts, funds, documents, contract rights, accounts, commitments,
construction agreements, architectural agreements, general intangibles
(including, without limitation, trademarks, trade names and symbols),
instruments, notes and chattel paper arising from or by virtue of any
transactions related to the Property, the Improvements or the Personal Property;
(h) all permits, licenses, franchises, certificates, and other rights and
privileges obtained in connection with the Property, the Improvements or the
Personal Property; (i) all proceeds arising from or by virtue of the sale, lease
or other disposition of the Property, the Improvements, the Personal Property or
any portion thereof or interest therein; (j) all proceeds (including, without
limitation, premium refunds) of each policy of insurance relating to the
Property, the Improvements or the Personal Property; (k) all proceeds from the
taking of any of the Property, the Improvements, the Personal Property or any
rights appurtenant thereto by right of eminent domain or by private or other
purchase in lieu thereof (including, without limitation, change of grade of
streets, curb cuts or other rights of access), for any public or quasi-public
use under any law; (l) all right, title and interest of Borrower in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Property; (m) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (n) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (o) other interests of every kind and character
that Borrower now has or at any time hereafter acquires in and to the Property,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Borrower with respect thereto (all
of the same, including the Property, collectively the "Mortgaged Property").
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
<PAGE> 3
Mortgaged Property unto Huntington and its successors and assigns, against the
claim or claims of all persons claiming or to claim the same or any part
thereof, except rights of tenants in possession under leases, and easements,
agreements and restrictions of record and current real estate taxes and
assessments.
This Open-End Mortgage, Assignment of Rents and Security Agreement (the
"Mortgage") is given for the purpose of securing (i) loan advances which the
Banks are obligated to make to Borrower pursuant to the terms and conditions of
the Loan Agreement, which advances may be advanced, repaid and readvanced (ii)
letters of credit, which Huntington is obligated to issue for the account of
Borrower pursuant to the terms and condition of the Loan Agreement and (iii) any
other indebtedness or obligations of Borrower provided for in the Loan
Agreement.
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 and unreimbursed payments under letters of credit issued both
before and after the Mortgage is delivered to the Recorder for record. Such loan
advances and letter of credit obligations are and will be evidenced by notes of
Borrower payable to the Banks and reimbursement agreements delivered to
Huntington. The maximum amount of unpaid loan indebtedness, which shall consist
of unpaid balances of loan advances made both before and after the Mortgage is
delivered to the Recorder for record and unreimbursed payments under letters of
credit issued 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 One Hundred Ninety
Million Dollars ($190,000,000.00).
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 under the terms and conditions of
(a) the Loan Agreement; (b) the Notes from time to time made by Borrower
pursuant to the Loan Agreement, not to exceed in the aggregate the principal
amount of One Hundred Ninety Million Dollars ($190,000,000.00), payable not
later than July 31, 1998, unless extended, and any and all renewals, amendments,
modifications, reductions and extensions thereof and substitutions therefor
(collectively the "Notes"); (c) the reimbursement agreements delivered to
Huntington from time to time pursuant to the Loan Agreement; (d) the Mortgage;
and (e) any other instrument, document, certificate or affidavit heretofore, now
or hereafter given by Borrower evidencing or securing all or any part of the
foregoing (the same together with the Loan Agreement, the Notes 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, except for rights of tenants in possession
under leases, current real estate taxes and assessments and other matters and
encumbrances approved by Huntington for inclusion in the lender's policy of
title insurance issued by Chicago Title Insurance Company insuring the lien of
the Mortgage (the "Permitted Exceptions"). 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, 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.
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3. SUBROGATION FOR FURTHER SECURITY. Huntington shall be subrogated for
its further security to the lien, although released of record, of any and all
encumbrances paid with any advance of Indebtedness; provided, however, that the
terms and provisions hereof shall govern the rights and remedies of Huntington
and shall supersede the terms, provisions, rights, and remedies under the lien
or liens to which Huntington is subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Huntington, which consent may be withheld in Huntington's
sole discretion, Borrower shall not (a) sell, assign, mortgage, pledge, lease
(except for leases in the ordinary course of Borrower's business) 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
upon request, will provide evidence of the payment thereof to Huntington;
provided that Borrower, at Borrower's own cost and expense may, if it shall in
good faith so desire, contest the validity or amount of any Impositions, in
which event Borrower may defer the payment thereof for such period as such
contest shall be actively prosecuted and shall be pending undetermined; further
provided, however, that Borrower shall not allow any such Impositions so
contested to remain unpaid for such length of time as shall permit all or any
portion of the Mortgaged Property, or the lien thereon created by such item, to
be sold by federal, state, county or municipal authority for the nonpayment
thereof. Pending any such contest, Borrower shall maintain adequate book
reserves with respect to such Impositions being contested.
In the event that one or more of the Impositions on Huntington's
interest in the Mortgaged Property, the Mortgage or the Indebtedness cannot be
lawfully paid by Borrower, then the Mortgaged Property shall be withdrawn from
the Collateral Pool (as such team is defined in the Loan Agreement). In the
event the withdrawal of the Mortgaged Property from the Collateral Pool causes
Borrower not to be in compliance with the required loan to value ratio under the
Loan Agreement, Borrower may either furnish substitute property, as provided in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
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;
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(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 reasonably required by Huntington against the same
or other hazards.
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 loss payee. 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, (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 policies, or 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.
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
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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.
In the event the damage or destruction to the Improvements is in an
amount of $5,000,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Borrower, and used
by Borrower to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Borrower should elect option (ii) above, if a material decrease in the
fair market value of the Mortgaged Property is indicated, Huntington shall be
entitled, at its option, to cause the Mortgaged Property to be reappraised at
Borrower's expense to satisfy itself of continued compliance by Borrower with
the loan to value ratio required by the Loan Agreement. In the event the results
of such reappraisal causes Borrower not to be in compliance with the required
loan to value ratio, Borrower may either furnish substitute property, as
provided for in Section 7 of the Loan Agreement, or pay down the Indebtedness in
an amount which will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $5,000,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Huntington as escrow agent for the purpose of repairing, restoring or
reconstructing the Improvements. Such proceeds shall be disbursed by Huntington
as work progresses, provided that prior to any disbursement, Huntington is in
receipt of proof reasonably satisfactory to it that: (i) the work has been
completed, (ii) there are no outstanding mechanics liens or materialmen's liens,
and (iii) that all charges, costs and expenses incurred with respect to work
completed have been paid in full or will be paid in full with such proceeds.
Prior to the release of any proceeds, Huntington must be satisfied that repair,
restoration or reconstruction of the damaged or destroyed Improvements will 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 and the plans and specifications therefor must be approved by Huntington.
In the event Huntington believes it is necessary in order to establish value,
Huntington may, at its option, cause the Mortgaged Property to be reappraised at
Borrower's expense. All insurance proceeds shall be payable to Huntington. The
adjustment of such insurance proceeds with the carrier must be approved by
Huntington.
Anything in this Section 8 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Huntington, be applied by Huntington to the
Indebtedness in such order as Huntington may determine.
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 in the event
of any other default and Huntington does not
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then elect to exercise its other remedies, then Borrower shall, upon request of
Huntington, pay to Huntington on the first day of each month, until the
Indebtedness is fully paid, a sum equal to one-twelfth (1/12) of the known or
estimated yearly taxes, assessments, premiums for such insurance as may be
required by the terms hereof. Huntington shall hold such monthly payments which
may be mingled with its general funds, without obligation to pay interest
thereon, unless otherwise required by applicable law, to pay such taxes,
assessments, and insurance premiums when due. Borrower agrees that sufficient
funds shall be so accumulated for the payment of said charges one (1) month
prior to the due date thereof and that Borrower shall furnish Huntington with
proper statements covering the same fifteen (15) days prior to the due dates
thereof. In the event of foreclosure of the Mortgage, or if Huntington should
take a deed in lieu of foreclosure, the amount so accumulated shall be credited
on account of the unpaid principal or interest. If the total of the monthly
payments as made under this Section 9 shall exceed the payments actually made by
Huntington, such excess shall be credited on subsequent monthly payments of the
same nature, but if the total of such monthly payments so made under this
Section 9 shall be insufficient to pay such taxes, assessments, and insurance
premiums then due, then said Borrower shall pay upon demand the amount necessary
to make up the deficiency, which payments shall be secured by the Mortgage. To
the extent that all the provisions of this Section 9 for such payments of taxes,
assessments, and insurance premiums to Huntington, are complied with, Borrower
shall be relieved of compliance with the covenants contained in Sections 7 and 8
herein as to the amounts paid only, but nothing contained in this Section 9
shall 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. Borrower shall have the right to 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, to the extent that the value of same is not diminished. If
Huntington believes that there has been a material decrease in value following
any such removal, demolition, or alteration, it may, at its option, cause the
Mortgaged Property to be reappraised at Borrower's expense.
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
Notes) 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 after reasonable notice
to Borrower and during normal business hours. 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,
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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 the Mortgaged Property and Improvements are
taken or acquired 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. Such award or payment so received by Huntington shall be applied
to the Indebtedness (whether or not then due and payable).
In the event a portion of the Property Improvements are acquired in any
condemnation proceeding or by the exercise of the right of eminent domain, to
the extent that the damage to the Property or improvements is in the amount of
$5,000,000.00 or less, and provided there is no Event of Default, as hereinafter
defined, the proceeds of any such condemnation or eminent domain award shall be
paid to Borrower, who shall use such proceeds as provided for in paragraph 8
hereof with respect to the disbursement of insurance proceeds where the damage
or destruction is in an amount of $5,000,000.00 or less. The provisions of
paragraph 8 with respect to reappraisal and substitute property where there is
damage or destruction in an amount of $5,000,000.00 or less shall apply as if
fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $5,000,000.00, and provided there is no Event of Default, as
hereinafter defined, the proceeds of such eminent domain or condemnation award
shall be deposited in escrow with Huntington as escrow agent for the purpose of
repairing, restoring, or reconstructing the Improvements and/or Property, and
shall be disbursed by Huntington in accordance with the provisions of paragraph
8 hereof with respect to the disbursement of insurance proceeds, where the
damage or destruction is in an amount of $5,000,000.00 or greater. The
conditions to disbursement, including the requirement that Huntington be
satisfied that the repaired or restored Improvements would be equal in size,
quality and value to those which existed previously, and the right to cause the
Mortgaged Property to be reappraised, as provided for where there is damage or
destruction of $5,000,000.00 or greater, shall be applicable as if fully
rewritten.
Anything in this Section 16 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Huntington, be
applied by Huntington to the Indebtedness in such order as Huntington may
determine.
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.
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(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 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) Borrower shall not collect Rents more than sixty
(60) days prior to accrual.
(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 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 Notes, 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 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
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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 Notes.
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
agrees to execute and deliver to Huntington UCC financing statements covering
said personal property and fixtures from time to time and in such form as
Huntington may require to perfect or maintain the priority of Huntington's
security interest with respect to said personal property and fixtures. 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 Loan Agreement, which meaning is incorporated by this reference
herein.
Upon the occurrence of any such Event of Default beyond any applicable
cure period, at the option of Huntington, without notice or demand, the same
being hereby expressly waived, the entire amount shall become immediately due
and payable, and, in addition to any other right or remedy which Huntington may
now or hereafter have at law, in equity, or under the Loan Documents, Huntington
shall have the right and power: (a) to foreclose upon the Mortgage and the lien
hereof; (b) to sell the Mortgaged Property according to law; and (c) to enter
upon and take possession of the Mortgaged Property and/or have a receiver
appointed therefor as set forth in Section 17 hereof.
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
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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 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 Notes,
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, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
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, the Banks, their
participants in the loan evidenced by the Notes and all subsequent holders of
the Mortgage, their respective successors
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<PAGE> 12
and assigns, their respective officers, directors, employees, agents,
representatives, contractors and subcontractors and any subsequent owner of the
Property and Improvements who acquires title thereto from or through Huntington.
(iv) "Release" has the same meaning as given to that
term in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, et seq.) and the regulations
promulgated thereunder.
(b) Borrower represents and warrants to Huntington that, to its
knowledge after due investigation: (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
reasonably required by Huntington and, in accordance with all Environmental
Laws, all removal and other remedial actions necessary to contain, remove and
clean up all Hazardous Substances that are determined to be present at the
Property and Improvements in violation of any Environmental Laws.
(v) Huntington shall have the right, but not the
obligation, to cure any violation by Borrower of the Environmental Laws and
Huntington's cost and expense to so cure shall be secured by the Mortgage.
(d) Borrower covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees
11
<PAGE> 13
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 Notes, 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 Notes 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 Notes 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;
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<PAGE> 14
(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 Notes.
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: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
If to Huntington: The Huntington National Bank
Commercial Real Estate Group
41 South High Street
Columbus, Ohio 43215
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.
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.
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<PAGE> 15
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
this 15th day of May, 1997.
Signed and acknowledged Borrower:
in the presence of: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
- --------------------------- By: Glimcher Properties Corporation,
Witness a Delaware corporation,
-------------------- its sole General Partner
(printed)
By:
- --------------------------- ------------------------------------
Witness David J. Glimcher, President
--------------------
(printed)
STATE OF OHIO
COUNTY OF FRANKLIN, SS:
On this ____ day of ________, 1997, before me, a Notary Public in and
for said County and State, personally appeared David J. Glimcher, who
acknowledged himself to be the President of GLIMCHER PROPERTIES CORPORATION, a
Delaware corporation, the sole general partner of GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, the Delaware limited partnership which executed the foregoing
instrument, and who acknowledged that he, as such __________ of said
corporation, being duly authorized by the board of directors of said
corporation, did execute the foregoing instrument for and on behalf of said
limited partnership and that such signing is the free act and deed of said
limited partnership for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
------------------------------------
Notary Public
Commission Expiration:
--------------
This instrument prepared by:
Robert C. Kiger, Attorney at Law
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street
Columbus, Ohio 43215
The Huntington National Bank
Commercial Real Estate Group
January 3, 1994 Revision
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<PAGE> 16
EXHIBIT "A"
LEGAL DESCRIPTION
<PAGE> 1
EXHIBIT 10.7
<PAGE> 2
OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, having an office at 20 South Third
Street, Columbus, Ohio 43215 ("Borrower"), in consideration of the sum of One
Hundred Ninety Million Dollars ($190,000,000.00) does hereby GRANT, BARGAIN,
SELL, MORTGAGE AND CONVEY certain real property more fully described in Exhibit
"A" attached hereto and incorporated herein (the "Property") unto THE HUNTINGTON
NATIONAL BANK, a national banking association, having an office at 41 South High
Street, Columbus, Ohio 43215, as Administrative Agent for KeyBank National
Association, The Huntington National Bank and certain other banks (the "Banks")
who are or may hereafter become signatories to a certain Second Amended and
Restated Loan Agreement, dated May 15, 1997, by and among The Huntington
National Bank, KeyBank National Association, the other banks signatory thereto,
Glimcher Properties Limited Partnership, Glimcher Realty Trust and Glimcher
Properties Corporation (the "Loan Agreement"). The Huntington National Bank in
its capacity as Administrative Agent is hereinafter referred to as "Huntington."
TOGETHER WITH the following, whether now owned or hereafter acquired
by Borrower: (a) all improvements now or hereafter attached to or placed,
erected, constructed or developed on the Property (collectively the
"Improvements"); (b) all fixtures, furnishings, equipment, inventory, and other
articles of personal property (collectively the "Personal Property") that are
now or hereafter attached to or used in or about the Improvements or that are
necessary or useful for the complete and comfortable use and occupancy of the
Improvements for the purposes for which they were or are to be attached, placed,
erected, constructed or developed or that may be used in or related to the
planning, development, financing or operation of the Improvements, and all
renewals of or replacements or substitutions for any of the foregoing, whether
or not the same are or shall be attached to the Improvements or the Property;
(c) all water and water rights, timber, crops, and mineral interests pertaining
to the Property; (d) all building materials and equipment now or hereafter
delivered to and intended to be installed in or on the Improvements or the
Property; (e) all plans and specifications for the Improvements; (f) all
contracts relating to the Property, the Improvements or the Personal Property;
(g) all deposits (including, without limitation, tenants' security deposits),
bank accounts, funds, documents, contract rights, accounts, commitments,
construction agreements, architectural agreements, general intangibles
(including, without limitation, trademarks, trade names and symbols),
instruments, notes and chattel paper arising from or by virtue of any
transactions related to the Property, the Improvements or the Personal Property;
(h) all permits, licenses, franchises, certificates, and other rights and
privileges obtained in connection with the Property, the Improvements or the
Personal Property; (i) all proceeds arising from or by virtue of the sale, lease
or other disposition of the Property, the Improvements, the Personal Property or
any portion thereof or interest therein; (j) all proceeds (including, without
limitation, premium refunds) of each policy of insurance relating to the
Property, the Improvements or the Personal Property; (k) all proceeds from the
taking of any of the Property, the Improvements, the Personal Property or any
rights appurtenant thereto by right of eminent domain or by private or other
purchase in lieu thereof (including, without limitation, change of grade of
streets, curb cuts or other rights of access), for any public or quasi-public
use under any law; (l) all right, title and interest of Borrower in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Property; (m) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (n) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (o) other interests of every kind and character
that Borrower now has or at any time hereafter acquires in and to the Property,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Borrower with respect thereto (all
of the same, including the Property, collectively the "Mortgaged Property").
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
<PAGE> 3
Mortgaged Property unto Huntington and its successors and assigns, against the
claim or claims of all persons claiming or to claim the same or any part
thereof, except rights of tenants in possession under leases, and easements,
agreements and restrictions of record and current real estate taxes and
assessments.
This Open-End Mortgage, Assignment of Rents and Security Agreement (the
"Mortgage") is given for the purpose of securing (i) loan advances which the
Banks are obligated to make to Borrower pursuant to the terms and conditions of
the Loan Agreement, which advances may be advanced, repaid and readvanced (ii)
letters of credit, which Huntington is obligated to issue for the account of
Borrower pursuant to the terms and condition of the Loan Agreement and (iii) any
other indebtedness or obligations of Borrower provided for in the Loan
Agreement.
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 and unreimbursed payments under letters of credit issued both
before and after the Mortgage is delivered to the Recorder for record. Such loan
advances and letter of credit obligations are and will be evidenced by notes of
Borrower payable to the Banks and reimbursement agreements delivered to
Huntington. The maximum amount of unpaid loan indebtedness, which shall consist
of unpaid balances of loan advances made both before and after the Mortgage is
delivered to the Recorder for record and unreimbursed payments under letters of
credit issued 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 One Hundred Ninety
Million Dollars ($190,000,000.00).
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 under the terms and conditions of
(a) the Loan Agreement; (b) the Notes from time to time made by Borrower
pursuant to the Loan Agreement, not to exceed in the aggregate the principal
amount of One Hundred Ninety Million Dollars ($190,000,000.00), payable not
later than July 31, 1998, unless extended, and any and all renewals, amendments,
modifications, reductions and extensions thereof and substitutions therefor
(collectively the "Notes"); (c) the reimbursement agreements delivered to
Huntington from time to time pursuant to the Loan Agreement; (d) the Mortgage;
and (e) any other instrument, document, certificate or affidavit heretofore, now
or hereafter given by Borrower evidencing or securing all or any part of the
foregoing (the same together with the Loan Agreement, the Notes 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, except for rights of tenants in possession
under leases, current real estate taxes and assessments and other matters and
encumbrances approved by Huntington for inclusion in the lender's policy of
title insurance issued by Chicago Title Insurance Company insuring the lien of
the Mortgage (the "Permitted Exceptions"). 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, 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.
2
<PAGE> 4
3. SUBROGATION FOR FURTHER SECURITY. Huntington shall be subrogated for
its further security to the lien, although released of record, of any and all
encumbrances paid with any advance of Indebtedness; provided, however, that the
terms and provisions hereof shall govern the rights and remedies of Huntington
and shall supersede the terms, provisions, rights, and remedies under the lien
or liens to which Huntington is subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Huntington, which consent may be withheld in Huntington's
sole discretion, Borrower shall not (a) sell, assign, mortgage, pledge, lease
(except for leases in the ordinary course of Borrower's business) 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
upon request, will provide evidence of the payment thereof to Huntington;
provided that Borrower, at Borrower's own cost and expense may, if it shall in
good faith so desire, contest the validity or amount of any Impositions, in
which event Borrower may defer the payment thereof for such period as such
contest shall be actively prosecuted and shall be pending undetermined; further
provided, however, that Borrower shall not allow any such Impositions so
contested to remain unpaid for such length of time as shall permit all or any
portion of the Mortgaged Property, or the lien thereon created by such item, to
be sold by federal, state, county or municipal authority for the nonpayment
thereof. Pending any such contest, Borrower shall maintain adequate book
reserves with respect to such Impositions being contested.
In the event that one or more of the Impositions on Huntington's
interest in the Mortgaged Property, the Mortgage or the Indebtedness cannot be
lawfully paid by Borrower, then the Mortgaged Property shall be withdrawn from
the Collateral Pool (as such team is defined in the Loan Agreement). In the
event the withdrawal of the Mortgaged Property from the Collateral Pool causes
Borrower not to be in compliance with the required loan to value ratio under the
Loan Agreement, Borrower may either furnish substitute property, as provided in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
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;
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(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 reasonably required by Huntington against the same or other
hazards.
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 loss payee. 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, (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 policies, or 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.
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.
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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.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Borrower, and used
by Borrower to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Borrower should elect option (ii) above, if a material decrease in the
fair market value of the Mortgaged Property is indicated, Huntington shall be
entitled, at its option, to cause the Mortgaged Property to be reappraised at
Borrower's expense to satisfy itself of continued compliance by Borrower with
the loan to value ratio required by the Loan Agreement. In the event the results
of such reappraisal causes Borrower not to be in compliance with the required
loan to value ratio, Borrower may either furnish substitute property, as
provided for in Section 7 of the Loan Agreement, or pay down the Indebtedness in
an amount which will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Huntington as escrow agent for the purpose of repairing, restoring or
reconstructing the Improvements. Such proceeds shall be disbursed by Huntington
as work progresses, provided that prior to any disbursement, Huntington is in
receipt of proof reasonably satisfactory to it that: (i) the work has been
completed, (ii) there are no outstanding mechanics liens or materialmen's liens,
and (iii) that all charges, costs and expenses incurred with respect to work
completed have been paid in full or will be paid in full with such proceeds.
Prior to the release of any proceeds, Huntington must be satisfied that repair,
restoration or reconstruction of the damaged or destroyed Improvements will 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 and the plans and specifications therefor must be approved by Huntington.
In the event Huntington believes it is necessary in order to establish value,
Huntington may, at its option, cause the Mortgaged Property to be reappraised at
Borrower's expense. All insurance proceeds shall be payable to Huntington. The
adjustment of such insurance proceeds with the carrier must be approved by
Huntington.
Anything in this Section 8 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Huntington, be applied by Huntington to the
Indebtedness in such order as Huntington may determine.
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 in the event
of any other default and Huntington does not then elect to exercise its other
remedies, then Borrower shall, upon request of Huntington, pay to Huntington on
the first day of each month, until the Indebtedness is fully paid, a sum equal
to one-twelfth (1/12) of the known or estimated yearly taxes, assessments,
premiums for such insurance as may be
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required by the terms hereof. Huntington shall hold such monthly payments which
may be mingled with its general funds, without obligation to pay interest
thereon, unless otherwise required by applicable law, to pay such taxes,
assessments, and insurance premiums when due. Borrower agrees that sufficient
funds shall be so accumulated for the payment of said charges one (1) month
prior to the due date thereof and that Borrower shall furnish Huntington with
proper statements covering the same fifteen (15) days prior to the due dates
thereof. In the event of foreclosure of the Mortgage, or if Huntington should
take a deed in lieu of foreclosure, the amount so accumulated shall be credited
on account of the unpaid principal or interest. If the total of the monthly
payments as made under this Section 9 shall exceed the payments actually made by
Huntington, such excess shall be credited on subsequent monthly payments of the
same nature, but if the total of such monthly payments so made under this
Section 9 shall be insufficient to pay such taxes, assessments, and insurance
premiums then due, then said Borrower shall pay upon demand the amount necessary
to make up the deficiency, which payments shall be secured by the Mortgage. To
the extent that all the provisions of this Section 9 for such payments of taxes,
assessments, and insurance premiums to Huntington, are complied with, Borrower
shall be relieved of compliance with the covenants contained in Sections 7 and 8
herein as to the amounts paid only, but nothing contained in this Section 9
shall 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. Borrower shall have the right to 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, to the extent that the value of same is not diminished. If
Huntington believes that there has been a material decrease in value following
any such removal, demolition, or alteration, it may, at its option, cause the
Mortgaged Property to be reappraised at Borrower's expense.
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
Notes) 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 after reasonable notice
to Borrower and during normal business hours. 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.
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16. CONDEMNATION. If all the Mortgaged Property and Improvements are
taken or acquired 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. Such award or payment so received by Huntington shall be applied
to the Indebtedness (whether or not then due and payable).
In the event a portion of the Property Improvements are acquired in any
condemnation proceeding or by the exercise of the right of eminent domain, to
the extent that the damage to the Property or improvements is in the amount of
$500,000.00 or less, and provided there is no Event of Default, as hereinafter
defined, the proceeds of any such condemnation or eminent domain award shall be
paid to Borrower, who shall use such proceeds as provided for in paragraph 8
hereof with respect to the disbursement of insurance proceeds where the damage
or destruction is in an amount of $500,000.00 or less. The provisions of
paragraph 8 with respect to reappraisal and substitute property where there is
damage or destruction in an amount of $500,000.00 or less shall apply as if
fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with Huntington as escrow agent for the purpose of
repairing, restoring, or reconstructing the Improvements and/or Property, and
shall be disbursed by Huntington in accordance with the provisions of paragraph
8 hereof with respect to the disbursement of insurance proceeds, where the
damage or destruction is in an amount of $500,000.00 or greater. The conditions
to disbursement, including the requirement that Huntington be satisfied that the
repaired or restored Improvements would be equal in size, quality and value to
those which existed previously, and the right to cause the Mortgaged Property to
be reappraised, as provided for where there is damage or destruction of
$500,000.00 or greater, shall be applicable as if fully rewritten.
Anything in this Section 16 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Huntington, be
applied by Huntington to the Indebtedness in such order as Huntington may
determine.
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:
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(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 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) Borrower shall not collect Rents more than sixty
(60) days prior to accrual.
(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 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 Notes, 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 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
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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
Notes.
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
agrees to execute and deliver to Huntington UCC financing statements covering
said personal property and fixtures from time to time and in such form as
Huntington may require to perfect or maintain the priority of Huntington's
security interest with respect to said personal property and fixtures. 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 Loan Agreement, which meaning is incorporated by this reference
herein.
Upon the occurrence of any such Event of Default beyond any applicable
cure period, at the option of Huntington, without notice or demand, the same
being hereby expressly waived, the entire amount shall become immediately due
and payable, and, in addition to any other right or remedy which Huntington may
now or hereafter have at law, in equity, or under the Loan Documents, Huntington
shall have the right and power: (a) to foreclose upon the Mortgage and the lien
hereof; (b) to sell the Mortgaged Property according to law; and (c) to enter
upon and take possession of the Mortgaged Property and/or have a receiver
appointed therefor as set forth in Section 17 hereof.
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
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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 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 Notes,
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, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
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, the Banks, their
participants in the loan evidenced by the Notes and all subsequent holders of
the Mortgage, their respective successors and assigns, their respective
officers, directors, employees, agents, representatives, contractors and
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subcontractors and any subsequent owner of the Property and Improvements who
acquires title thereto from or through Huntington.
(iv) "Release" has the same meaning as given to that
term in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, ET SEQ.) and the regulations
promulgated thereunder.
(b) Borrower represents and warrants to Huntington that, to its
knowledge after due investigation: (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
reasonably required by Huntington and, in accordance with all Environmental
Laws, all removal and other remedial actions necessary to contain, remove and
clean up all Hazardous Substances that are determined to be present at the
Property and Improvements in violation of any Environmental Laws.
(v) Huntington shall have the right, but not the
obligation, to cure any violation by Borrower of the Environmental Laws and
Huntington's cost and expense to so cure shall be secured by the Mortgage.
(d) Borrower covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred
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<PAGE> 13
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 Notes, 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 Notes 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 Notes 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
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<PAGE> 14
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 Notes.
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: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
If to Huntington: The Huntington National Bank
Commercial Real Estate Group
41 South High Street
Columbus, Ohio 43215
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.
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.
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<PAGE> 15
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
this 15th day of May, 1997.
Signed and acknowledged Borrower:
in the presence of: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
- --------------------------- By: Glimcher Properties Corporation,
Witness a Delaware corporation,
-------------------- its sole General Partner
(printed)
By:
- --------------------------- ------------------------------------
Witness David J. Glimcher, President
--------------------
(printed)
STATE OF OHIO
COUNTY OF FRANKLIN, SS:
On this ____ day of __________, 1997, before me, a Notary Public in and
for said County and State, personally appeared David J. Glimcher, who
acknowledged himself to be the President of GLIMCHER PROPERTIES CORPORATION, a
Delaware corporation, the sole general partner of GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, the Delaware limited partnership which executed the foregoing
instrument, and who acknowledged that he, as such _________________ of said
corporation, being duly authorized by the board of directors of said
corporation, did execute the foregoing instrument for and on behalf of said
limited partnership and that such signing is the free act and deed of said
limited partnership for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
---------------------------------------
Notary Public
Commission Expiration:
-----------------
This instrument prepared by:
Robert C. Kiger, Attorney at Law
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street
Columbus, Ohio 43215
The Huntington National Bank
Commercial Real Estate Group
January 3, 1994 Revision
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<PAGE> 16
EXHIBIT "A"
LEGAL DESCRIPTION
<PAGE> 1
EXHIBIT 10.8
<PAGE> 2
INDIANA
- -------
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, having an office at 20 South Third
Street, Columbus, Ohio 43215 ("Borrower"), in consideration of the sum of One
Hundred Ninety Million Dollars ($190,000,000.00) does hereby MORTGAGE AND
WARRANT certain real property more fully described in Exhibit "A" attached
hereto and incorporated herein (the "Property") unto THE HUNTINGTON NATIONAL
BANK, a national banking association, having an office at 41 South High Street,
Columbus, Ohio 43215, as Administrative Agent for KeyBank National Association
Bank, The Huntington National Bank and certain other banks who are or may
hereafter become signatories to a certain Second Amended and Restated Loan
Agreement, dated May 15, 1997, by and among The Huntington National Bank,
KeyBank National Association, the other banks signatory thereto, Glimcher
Properties Limited Partnership, Glimcher Realty Trust and Glimcher Properties
Corporation (the "Loan Agreement"). The Huntington National Bank in its capacity
as Administrative Agent is hereinafter referred to as "Huntington".
TOGETHER WITH the following, whether now owned or hereafter acquired
by Borrower: (a) all improvements now or hereafter attached to or placed,
erected, constructed or developed on the Property (collectively the
"Improvements"); (b) all fixtures, furnishings, equipment, inventory, and other
articles of personal property (collectively the "Personal Property") that are
now or hereafter attached to or used in or about the Improvements or that are
necessary or useful for the complete and comfortable use and occupancy of the
Improvements for the purposes for which they were or are to be attached, placed,
erected, constructed or developed or that may be used in or related to the
planning, development, financing or operation of the Improvements, and all
renewals of or replacements or substitutions for any of the foregoing, whether
or not the same are or shall be attached to the Improvements or the Property;
(c) all water and water rights, timber, crops, and mineral interests pertaining
to the Property; (d) all building materials and equipment now or hereafter
delivered to and intended to be installed in or on the Improvements or the
Property; (e) all plans and specifications for the Improvements; (f) all
contracts relating to the Property, the Improvements or the Personal Property;
(g) all deposits (including, without limitation, tenants' security deposits),
bank accounts, funds, documents, contract rights, accounts, commitments,
construction agreements, architectural agreements, general intangibles
(including, without limitation, trademarks, trade names and symbols),
instruments, notes and chattel paper arising from or by virtue of any
transactions related to the Property, the Improvements or the Personal Property;
(h) all permits, licenses, franchises, certificates, and other rights and
privileges obtained in connection with the Property, the Improvements or the
Personal Property; (i) all proceeds arising from or by virtue of the sale, lease
or other disposition of the Property, the Improvements, the Personal Property or
any portion thereof or interest therein; (j) all proceeds (including, without
limitation, premium refunds) of each policy of insurance relating to the
Property, the Improvements or the Personal Property; (k) all proceeds from the
taking of any of the Property, the Improvements, the Personal Property or any
rights appurtenant thereto by right of eminent domain or by private or other
purchase in lieu thereof (including, without limitation, change of grade of
streets, curb cuts or other rights of access), for any public or quasi-public
use under any law; (l) all right, title and interest of Borrower in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Property; (m) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (n) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (o) other interests of every kind and character
that Borrower now has or at any time hereafter acquires in and to the Property,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Borrower with respect thereto (all
of the same, including the Property, collectively the "Mortgaged Property").
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
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<PAGE> 3
Borrower hereby binds itself and its successors and assigns to warrant and
forever defend the Mortgaged Property unto Huntington and its successors and
assigns, against the claim or claims of all persons claiming or to claim the
same or any part thereof, except rights of tenants in possession under leases,
and easements, agreements and restrictions of record and current real estate
taxes and assessments.
This Open-End Mortgage, Assignment of Rents and Security Agreement (the
"Mortgage") is given for the purpose of securing (i) loan advances which the
Banks are obligated to make to Borrower pursuant to the terms and conditions of
the Loan Agreement, which advances may be advanced, repaid and readvanced and
(ii) any other indebtedness or obligations of Borrower provided for in the Loan
Agreement.
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 under the terms and conditions of
(a) the Loan Agreement; (b) the Notes from time to time made by Borrower
pursuant to the Loan Agreement, not to exceed in the aggregate the principal
amount of One Hundred Ninety Million Dollars ($190,000,000.00), payable not
later than July 31, 1998, unless extended, and any and all renewals, amendments,
modifications, reductions and extensions thereof and substitutions therefor
(collectively the "Notes"); (c) the reimbursement agreements delivered to
Huntington from time to time pursuant to the Loan Agreement in connection with
letters of credit issued thereunder; (d) the Mortgage; and (e) any other
instrument, document, certificate or affidavit heretofore, now or hereafter
given by Borrower evidencing or securing all or any part of the foregoing (the
same together with the Loan Agreement, the Notes 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, except for rights of tenants in possession
under leases, current real estate taxes and assessments and other matters and
encumbrances approved by Huntington for inclusion in the lender's policy of
title insurance issued by Chicago Title Insurance Company insuring the lien of
the Mortgage (the "Permitted Exceptions"). 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, upon the request of Huntington, shall
execute, acknowledge, deliver, file and record such further instruments and do
such further acts as may be necessary, desirable or proper to carry out the
purposes of the Loan Documents and to subject to the liens and security
interests created thereby any property intended by the terms thereof to be
covered thereby, including specifically, but without limitation, any renewals,
additions, substitutions, replacements, improvements or appurtenances to the
Mortgaged Property.
3. SUBROGATION FOR FURTHER SECURITY. Huntington shall be subrogated for
its further security to the lien, although released of record, of any and all
encumbrances paid with any advance of Indebtedness; provided, however, that the
terms and provisions hereof shall govern the rights and remedies of Huntington
and shall supersede the terms, provisions, rights, and remedies under the lien
or liens to which Huntington is subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Huntington, which consent may be withheld in Huntington's
sole discretion, Borrower shall not (a) sell, assign, mortgage, pledge, lease
(except for leases in the ordinary course of Borrower's business) 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
2
<PAGE> 4
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
upon request, will provide evidence of the payment thereof to Huntington;
provided that Borrower, at Borrower's own cost and expense may, if it shall in
good faith so desire, contest the validity or amount of any Impositions, in
which event Borrower may defer the payment thereof for such period as such
contest shall be actively prosecuted and shall be pending undetermined; further
provided, however, that Borrower shall not allow any such Impositions so
contested to remain unpaid for such length of time as shall permit all or any
portion of the Mortgaged Property, or the lien thereon created by such item, to
be sold by federal, state, county or municipal authority for the nonpayment
thereof. Pending any such contest, Borrower shall maintain adequate book
reserves with respect to such Impositions being contested.
In the event that one or more of the Impositions on Huntington's
interest in the Mortgaged Property, the Mortgage or the Indebtedness cannot be
lawfully paid by Borrower, then the Mortgaged Property shall be withdrawn from
the Collateral Pool (as such team is defined in the Loan Agreement). In the
event the withdrawal of the Mortgaged Property from the Collateral Pool causes
Borrower not to be in compliance with the required loan to value ratio under the
Loan Agreement, Borrower may either furnish substitute property, as provided in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
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
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<PAGE> 5
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 reasonably required by Huntington against the same or other
hazards.
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 loss payee. 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, (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 policies, or 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.
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.
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<PAGE> 6
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.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Borrower, and used
by Borrower to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Borrower should elect option (ii) above, if a material decrease in the
fair market value of the Mortgaged Property is indicated, Huntington shall be
entitled, at its option, to cause the Mortgaged Property to be reappraised at
Borrower's expense to satisfy itself of continued compliance by Borrower with
the loan to value ratio required by the Loan Agreement. In the event the results
of such reappraisal causes Borrower not to be in compliance with the required
loan to value ratio, Borrower may either furnish substitute property, as
provided for in Section 7 of the Loan Agreement, or pay down the Indebtedness in
an amount which will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Huntington as escrow agent for the purpose of repairing, restoring or
reconstructing the Improvements. Such proceeds shall be disbursed by Huntington
as work progresses, provided that prior to any disbursement, Huntington is in
receipt of proof reasonably satisfactory to it that: (i) the work has been
completed, (ii) there are no outstanding mechanics liens or materialmen's liens,
and (iii) that all charges, costs and expenses incurred with respect to work
completed have been paid in full or will be paid in full with such proceeds.
Prior to the release of any proceeds, Huntington must be satisfied that repair,
restoration or reconstruction of the damaged or destroyed Improvements will 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 and the plans and specifications therefor must be approved by Huntington.
In the event Huntington believes it is necessary in order to establish value,
Huntington may, at its option, cause the Mortgaged Property to be reappraised at
Borrower's expense. All insurance proceeds shall be payable to Huntington. The
adjustment of such insurance proceeds with the carrier must be approved by
Huntington.
Anything in this Section 8 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Huntington, be applied by Huntington to the
Indebtedness in such order as Huntington may determine.
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 in the event
of any other default and Huntington does not then elect to exercise its other
remedies, then Borrower shall, upon request of Huntington, pay to Huntington on
the first day of each month, until the Indebtedness is fully paid, a sum equal
to one-twelfth (1/12) of the known or estimated yearly taxes, assessments,
premiums for such insurance as may be required by the terms hereof. Huntington
shall hold such monthly payments which may be mingled with its general funds,
without obligation to pay interest thereon, unless otherwise required by
applicable law, to pay such taxes, assessments, and insurance premiums when due.
Borrower agrees that sufficient funds shall be so accumulated for the payment of
said charges one (1) month prior to the due date thereof and that Borrower shall
furnish Huntington with proper statements covering the same fifteen (15) days
prior to the due dates thereof. In the event of foreclosure of the Mortgage, or
if Huntington should take a deed in lieu of foreclosure, the amount so
accumulated shall be credited on account of the unpaid principal or interest. If
the total of the monthly payments as made
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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. Borrower shall have the right to 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, to the extent that the value of same is not diminished. If
Huntington believes that there has been a material decrease in value following
any such removal, demolition, or alteration, it may, at its option, cause the
Mortgaged Property to be reappraised at Borrower's expense.
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
Notes) 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 after reasonable notice
to Borrower and during normal business hours. 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 the Mortgaged Property and Improvements are
taken or acquired 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. Such award or payment so received by Huntington shall be applied
to the Indebtedness (whether or not then due and payable).
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In the event a portion of the Property Improvements are acquired in any
condemnation proceeding or by the exercise of the right of eminent domain, to
the extent that the damage to the Property or improvements is in the amount of
$500,000.00 or less, and provided there is no Event of Default, as hereinafter
defined, the proceeds of any such condemnation or eminent domain award shall be
paid to Borrower, who shall use such proceeds as provided for in paragraph 8
hereof with respect to the disbursement of insurance proceeds where the damage
or destruction is in an amount of $500,000.00 or less. The provisions of
paragraph 8 with respect to reappraisal and substitute property where there is
damage or destruction in an amount of $500,000.00 or less shall apply as if
fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with Huntington as escrow agent for the purpose of
repairing, restoring, or reconstructing the Improvements and/or Property, and
shall be disbursed by Huntington in accordance with the provisions of paragraph
8 hereof with respect to the disbursement of insurance proceeds, where the
damage or destruction is in an amount of $500,000.00 or greater. The conditions
to disbursement, including the requirement that Huntington be satisfied that the
repaired or restored Improvements would be equal in size, quality and value to
those which existed previously, and the right to cause the Mortgaged Property to
be reappraised, as provided for where there is damage or destruction of
$500,000.00 or greater, shall be applicable as if fully rewritten.
Anything in this Section 16 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Huntington, be
applied by Huntington to the Indebtedness in such order as Huntington may
determine.
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 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
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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) Borrower shall not collect Rents more than sixty
(60) days prior to accrual.
(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 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 Notes, 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 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 Notes.
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
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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
Indiana (the "UCC") for any of the Mortgaged Property comprising personal
property and fixtures which may be subject to a security interest pursuant to
the UCC, and Borrower hereby grants to Huntington a security interest in said
personal property and fixtures, whether said property is now existing or
hereafter acquired, together with replacements, replacement parts, additions,
repairs and accessories incorporated therein or affixed thereto and, if sold or
otherwise disposed of, the proceeds (including insurance proceeds) thereof.
Borrower agrees to execute and deliver to Huntington UCC financing statements
covering said personal property and fixtures from time to time and in such form
as Huntington may require to perfect or maintain the priority of Huntington's
security interest with respect to said personal property and fixtures. 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 Loan Agreement, which meaning is incorporated by this reference
herein.
Upon the occurrence of any such Event of Default beyond any applicable
cure period, at the option of Huntington, without notice or demand, the same
being hereby expressly waived, the entire amount shall become immediately due
and payable, and, in addition to any other right or remedy which Huntington may
now or hereafter have at law, in equity, or under the Loan Documents, Huntington
shall have the right and power: (a) to foreclose upon the Mortgage and the lien
hereof; (b) to sell the Mortgaged Property according to law; and (c) to enter
upon and take possession of the Mortgaged Property and/or have a receiver
appointed therefor as set forth in Section 17 hereof.
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
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the Mortgaged Property. Borrower shall pay Huntington a reasonable service
charge, together with such title insurance premiums and 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 Notes,
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, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
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, the Banks, their
participants in the loan evidenced by the Notes and all subsequent holders of
the Mortgage, their respective successors and assigns, their respective
officers, directors, employees, agents, representatives, contractors and
subcontractors and any subsequent owner of the Property and Improvements who
acquires title thereto from or through Huntington.
(iv) "Release" has the same meaning as given to that
term in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, ET SEQ.) and the regulations
promulgated thereunder.
(b) Borrower represents and warrants to Huntington that, to its
knowledge after due investigation: (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
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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
reasonably required by Huntington and, in accordance with all Environmental
Laws, all removal and other remedial actions necessary to contain, remove and
clean up all Hazardous Substances that are determined to be present at the
Property and Improvements in violation of any Environmental Laws.
(v) Huntington shall have the right, but not the
obligation, to cure any violation by Borrower of the Environmental Laws and
Huntington's cost and expense to so cure shall be secured by the Mortgage.
(d) Borrower covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Indemnitee
arising out of the condition, ownership, use, operation, sale, transfer or
conveyance of the Property and Improvements and (i) the storage, treatment
generation, transportation, processing, handling, production or disposal of any
Hazardous Substance, (ii) the presence of any Hazardous Substance or a Release
of any Hazardous Substance or the threat of such a Release, (iii) human exposure
to any Hazardous Substance, (iv) a violation of any Environmental Law, or (v) a
material misrepresentation or inaccuracy in any representation or warranty or
material breach of or failure to perform any covenant made by Borrower herein
(collectively, the "Indemnified Matters").
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The liability of Borrower to Indemnitee hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (i) the repayment of all
sums and the satisfaction of all obligations of Borrower under the Notes, 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 Notes 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 Notes 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
12
<PAGE> 14
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 Notes.
26. FUTURE ADVANCES. Notwithstanding anything contained in this
Instrument, the Loan Agreement or the Notes to the contrary, this Instrument
shall secure: (i) 200% of the face amount of the Notes, exclusive of any items
described in (ii) below, including any additional advances made from time to
time after the date hereof pursuant to the Loan Agreement and other loan
documents whether made as part of the debt secured hereby, made at the option of
Lenders, made after a reduction to a zero (0) or other balance, or made
otherwise, (ii) all other amounts payable by Borrower, or advanced by Lenders
for the account, or on behalf, of the Borrower, pursuant to the Loan Agreement
and other loan documents, including, without limitation, reimbursement
agreements in connection with letters of credit and any amounts advanced with
respect to the Property for the payment of taxes, assessments, insurance
premiums and other costs and impositions incurred for the protection of the
Property to the same extent as if the future obligations and advances were made
on the date of execution of this Instrument; and (iii) future modifications,
extensions, and renewals of any debt secured by this Instrument. Pursuant to IC
32-8-11-9, the lien of this Instrument with respect to any future advances,
modifications, extensions, and renewals referred to herein and made from time to
time shall have the same priority to which this Instrument otherwise would be
entitled as of the date this Instrument is executed and recorded without regard
to the fact that any such future advance, modification, extension, or renewal
may occur after the Instrument is executed.
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: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
If to Huntington: The Huntington National Bank
Commercial Real Estate Group
41 South High Street
Columbus, Ohio 43215
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.
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
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<PAGE> 15
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.
IN WITNESS WHEREOF, Borrower has caused the Mortgage to be executed
this 15th day of May, 1997.
Signed and acknowledged Borrower:
in the presence of: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
/s/ Dennis J. Kovach By: Glimcher Properties Corporation,
- ----------------------------- a Delaware corporation,
Witness Dennis J. Kovach its sole General Partner
----------------------
(printed)
/s/ Robert C. Kiger By: /s/ David J. Glimcher
- ----------------------------- ----------------------------------
Witness Robert C. Kiger David J. Glimcher, President
----------------------
(printed)
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
On this 15th day of May, 1997, before me, a Notary Public in and for
said County and State, personally appeared David J. Glimcher as an officer of
Glimcher Properties Corporation, a Delaware corporation, and the sole general
partner of Glimcher Properties Limited Partnership, a Delaware Limited
Partnership, who acknowledged the execution of the foregoing Mortgage,
Assignment of Rents and Security Agreement and who, having been duly sworn,
stated that any representations therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Robert C. Kiger
--------------------------------
Commission Expires: Notary Public
Printed Name: Robert C. Kiger
- --------------------
My County of Residence:
Franklin County, Ohio
- ----------------------
This instrument prepared by:
Robert C. Kiger, Attorney at Law
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street, Suite 3100
Columbus, Ohio 43215
The Huntington National Bank
Commercial Real Estate Group
January 3, 1994 Revision
14
<PAGE> 16
EXHIBIT A
LEGAL DESCRIPTION
Part of Survey 19 of the Illinois Grant in the Town of Clarksville of Clark
County, Indiana, being the same 10.00 Acre Parcel conveyed to Herbert Glimcher
at Deed Drawer 17, Instrument 1310 and bounded as follows:
Commencing at a Drill Hole in the center of State Road 131, the centerline of
which is the line dividing Surveys 31 and 32 from Survey 19 and which drill hole
marks the west corner of Survey 19, thence the following courses:
North 54(degree) 45' 48" East, 1054.00 feet with said dividing line; South
35(degree) 34' 36" East, 75.00 feet to an iron pipe in the Southeast
right-of-way line of State Road 131 which marks the North corner of the above
referenced Glimcher Parcel and the West corner of a tract of land conveyed to
the Rehabilitation Center and Goodwill Industries of Southeastern Indiana, Inc.
at Deed Drawer 21, Instrument 13_2, the true point of beginning of this
description. Thence the following courses of the boundary:
South 35(degree) 34' 36" East, 869.72 feet with said line to an iron pipe at
Glimcher's East corner; South 54(degree) 25' 24" West, 500.00 feet to an iron
pipe at Glimcher's South corner; North 35(degree) 34' 36" West, 872.68 feet with
Glimcher's Southwest line to a point in the Southeast right-of-way line of State
Road 131; North 54(degree) 45' 48" East, 500.00 feet with said Right-of-Way line
to the place of beginning and containing 10.00 acres of land, more or less.
<PAGE> 1
EXHIBIT 10.9
<PAGE> 2
WEST VIRGINIA
- -------------
A CREDIT LINE DEED OF TRUST, ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (herein
"Deed of Trust") is made this 15th day of May, 1997, between GLIMCHER PROPERTIES
LIMITED PARTNERSHIP, a Delaware Limited Partnership, whose address is 20 South
Third Street, Columbus, Ohio 43215 (herein "Trustor/Grantor"), John T.
Poffenbarger, whose address is 515 Bank One Center, Charleston, Kanawha County,
West Virginia (herein "Trustee"), and THE HUNTINGTON NATIONAL BANK, a national
banking association, having an office at 41 South High Street, Columbus, Ohio
43215, as Administrative Agent for KeyBank National Association, The Huntington
National Bank and certain other banks who are or may hereafter become
signatories to a certain Second Amended and Restated Loan Agreement, dated May
15, 1997, by and among The Huntington National Bank, KeyBank National
Association, the other banks signatory thereto, Glimcher Properties Limited
Partnership, Glimcher Realty Trust and Glimcher Properties Corporation (the
"Loan Agreement"). The Huntington National Bank in its capacity as
Administrative Agent is hereinafter referred to as "Huntington".
TRUSTOR, in consideration of the sum of One Hundred Ninety Million and
No/100 Dollars ($190,000,000.00) and the trust herein created, irrevocably
grants, conveys and assigns to Trustee and Trustee's successors and assigns, in
trust, with power of sale, the real estate described in Exhibit "A" attached
hereto and incorporated herein by this reference, (the "Property").
TO HAVE AND TO HOLD unto Trustee and Trustee's successors and assigns,
forever, together with the following, whether now owned or hereafter acquired by
Trustor: (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 Trustor 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 Trustor now has
<PAGE> 3
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 Trustor with respect thereto (all of the
same, including the Property, collectively the "Trust Property").
TO HAVE AND TO HOLD the Trust Property, together with the rights,
privileges and appurtenances thereto belonging, unto Huntington and its
successors and assigns forever, and Trustor hereby binds itself and its
successors and assigns to warrant and forever defend the Trust Property unto
Huntington and its successors and assigns, against the claim or claims of all
persons claiming or to claim the same or any part thereof, except rights of
tenants in possession under leases, and easements, agreements and restrictions
of record and current real estate taxes and assessments.
FOR THE PURPOSE OF SECURING: 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 Trustor under the terms and conditions of (a) the Loan
Agreement; (b) the Notes from time to time made by Trustor pursuant to the Loan
Agreement, not to exceed in the aggregate the principal amount of One Hundred
Ninety Million Dollars ($190,000,000.00), payable not later than July 31, 1998,
unless extended, and any and all renewals, amendments, modifications, reductions
and extensions thereof and substitutions therefor (collectively the "Notes");
(c) the reimbursement agreements delivered to Huntington from time to time
pursuant to the Loan Agreement in connection with letters of credit issued
thereunder; (d) the Deed of Trust; and (e) any other instrument, document,
certificate or affidavit heretofore, now or hereafter given by Trustor
evidencing or securing all or any part of the foregoing (the same together with
the Loan Agreement, the Notes and the Deed of Trust, collectively the "Loan
Documents").
Trustor, for itself and its successors and assigns, hereby covenants
with Huntington, its successors and assigns, that:
1. TITLE. Trustor covenants that it is lawfully seized of the Trust
Property and has the right to mortgage, grant, convey and assign the Trust
Property and that the same is unencumbered except for rights of tenants in
possession under leases, current real estate taxes and assessments and other
matters and encumbrances approved by Huntington for inclusion in the lender's
policy of title insurance issued by Chicago Title Insurance Company insuring the
lien of the Deed of Trust (the "Permitted Exceptions") and that except as
aforesaid it will warrant and defend generally the title to the Trust Property.
If the interest of Huntington or Trustee in the Trust Property or any part
thereof shall be endangered or shall be attacked, directly or indirectly,
Trustor hereby authorizes Huntington, at Trustor'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 Trustor and collectible in
accordance with the terms of Section 10 hereof.
2. FURTHER ASSURANCES. Trustor, 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
Trust Property.
3. SUBROGATION FOR FURTHER SECURITY. Huntington shall be subrogated for
its further security to the lien, although released of record, of any and all
encumbrances paid with any advance of Indebtedness; provided, however, that the
terms and provisions hereof shall govern the rights and remedies of Huntington
and shall supersede the terms, provisions, rights, and remedies under the lien
or liens to which Huntington is subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Huntington, which consent may be withheld in Huntington's
sole discretion, Trustor shall not (a) sell, assign, mortgage, pledge, lease
(except for leases of storerooms in the ordinary course of
2
<PAGE> 4
business) or otherwise convey or further encumber the Trust Property, or any
portion thereof, or legal, equitable or beneficial interest therein; (b) sell,
assign, pledge or otherwise transfer any beneficial interests in Trustor which
individually or in the aggregate would have the effect of transferring the power
to direct the operations of Trustor or the Trust Property; (c) contract for any
of the same; (d) permit the Trust Property, or any portion thereof, or legal,
equitable or beneficial interest therein, to be subject to any superior or
inferior lien or encumbrance except as provided in the Permitted Encumbrances;
(e) subdivide, resubdivided or submit to the condominium form of ownership all
or any portion of the Trust 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. TAXES AND OTHER IMPOSITIONS. Trustor shall promptly pay before
delinquency all taxes, assessments, charges, fines or impositions, general,
local or special (collectively the "Impositions"), levied upon the Trust
Property, or any part thereof, or upon Huntington's interest therein, or upon
the Deed of Trust or the Indebtedness, by any duly or legally constituted public
authority, municipality, township, county or state or the United States, and
upon request, will provide evidence of the payment thereof to Huntington;
provided that Trustor, at Trustor'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 Trustor may defer the payment thereof for such period as such
contest shall be actively prosecuted and shall be pending undetermined; further
provided, however, that Trustor 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 Trust Property, or the lien thereon created by such item, to be
sold by federal, state, county or municipal authority for the nonpayment
thereof. Pending any such contest, Trustor shall maintain adequate book reserves
with respect to such Impositions being contested.
In the event that one or more of the Impositions on Huntington's
interest in the Trust Property, the Deed of Trust or the Indebtedness cannot be
lawfully paid by Trustor, then the Trust Property shall be withdrawn from the
Collateral Pool (as such team is defined in the Loan Agreement). In the event
the withdrawal of the Trust Property from the Collateral Pool causes Trustor not
to be in compliance with the required loan to value ratio under the Loan
Agreement, Trustor may either furnish substitute property, as provided in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
6. INSURANCE AND INDEMNIFICATION. Trustor 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 Trustor 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 Trustor 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;
3
<PAGE> 5
(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 Trust 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.
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 loss payee. 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 Deed of Trust 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 Trustor which might otherwise result in
forfeiture of said insurance, (ii) that any rights of set-off, counterclaim or
deductions against Trustor 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 policies, or certificates
thereof acceptable to Huntington with certified copies of the policies, and
Trustor 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, Trustor shall deliver to Huntington a renewal policy,
or certificate thereof, in form acceptable to Huntington.
If Huntington is made a party defendant to any litigation concerning
the Loan Documents or the Trust Property or any part thereof or interest therein
or the occupancy thereof by Trustor, then Trustor 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.
Trustor waives any and all right to claim or recover against Huntington, its
officers, employees, agents and representatives, for loss of or damage to
Trustor, the Trust Property, other property of Trustor or the property of others
under control of Trustor from any cause insured against or required to be
insured against by the provisions of the Deed of Trust.
Trustor 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. Trustor 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 6 shall prevent Trustor from keeping
the Improvements and Personal Property insured or causing the same to be insured
against the risks referred to in this Section 6 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Deed of Trust; 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 Deed of Trust; (ii) shall not
contain any clause which would result in the insured thereunder
4
<PAGE> 6
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 Deed of Trust.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Trustor, and used
by Trustor to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Trustor should elect option (ii) above, if a material decrease in the fair
market value of the Trust Property is indicated, Huntington shall be entitled,
at its option, to cause the Trust Property to be reappraised at Trustor's
expense to satisfy itself of continued compliance by Trustor with the loan to
value ratio required by the Loan Agreement. In the event the results of such
reappraisal causes Trustor not to be in compliance with the required loan to
value ratio, Trustor may either furnish substitute property, as provided for in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Huntington as escrow agent for the purpose of repairing, restoring or
reconstructing the Improvements. Such proceeds shall be disbursed by Huntington
as work progresses, provided that prior to any disbursement, Huntington is in
receipt of proof reasonably satisfactory to it that: (i) the work has been
completed, (ii) there are no outstanding mechanics liens or materialmen's liens,
and (iii) that all charges, costs and expenses incurred with respect to work
completed have been paid in full or will be paid in full with such proceeds.
Prior to the release of any proceeds, Huntington must be satisfied that repair,
restoration or reconstruction of the damaged or destroyed Improvements will be
substantially equal in size, quality and value to the Improvements then
presently erected on the Trust Property as existed immediately prior to the loss
and the plans and specifications therefor must be approved by Huntington. In the
event Huntington believes it is necessary in order to establish value,
Huntington may, at its option, cause the Trust Property to be reappraised at
Trustor's expense. All insurance proceeds shall be payable to Huntington. The
adjustment of such insurance proceeds with the carrier must be approved by
Huntington.
Anything in this Section 6 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Huntington, be applied by Huntington to the
Indebtedness in such order as Huntington may determine.
7. ESCROW. Trustor, in order to more fully protect the security of the
Deed of Trust, does hereby covenant and agree that, if Trustor shall fail to
timely pay taxes, assessments or insurance premiums as provided above, or in the
event of any other default and Huntington does not then elect to exercise its
other remedies, then Trustor shall, upon request of Huntington, pay to
Huntington on the first day of each month, until the Indebtedness is fully paid,
a sum equal to one-twelfth (1/12) of the known or estimated yearly taxes,
assessments, premiums for such insurance as may be required by the terms hereof.
Huntington shall hold such monthly payments which may be mingled with its
general funds, without obligation to pay interest thereon, unless otherwise
required by applicable law, to pay such taxes, assessments, and insurance
premiums when due. Trustor 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 Trustor shall furnish Huntington with proper statements covering the same
fifteen (15) days prior to the due dates thereof. In the event the Trust
Property is sold pursuant to the power of sale contained herein, or if
Huntington should take a deed in lieu thereof, 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 7 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 7 shall be insufficient to pay such taxes, assessments, and insurance
premiums then due, then said Trustor shall pay upon demand the amount necessary
to make up the deficiency, which payments shall be secured by the Deed of Trust.
To the extent that all the provisions of this Section 7 for such payments of
taxes, assessments, and insurance premiums to Huntington, are complied with,
Trustor shall be relieved of compliance
5
<PAGE> 7
with the covenants contained in Sections 5 and 6 herein as to the amounts paid
only, but nothing contained in this Section 7 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.
8. WASTE; REPAIR. Trustor shall neither commit nor permit any waste on
the Trust Property and shall keep all Improvements now or hereafter erected on
the Property in good condition and repair.
9. ALTERATIONS; CONSTRUCTION. Trustor shall have the right to 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, to the extent that the value of same is not diminished. If
Huntington believes that there has been a material decrease in value following
any such removal, demolition, or alteration, it may, at its option, cause the
Trust Property to be reappraised at Trustor's expense.
10. ADVANCES SECURED BY DEED OF TRUST. Upon failure of Trustor to
comply with any of these covenants and agreements as to the payment of taxes,
assessments, insurance premiums, repairs, protection of the Trust 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 Trustor, shall be immediately due and payable by
Trustor shall bear interest at the Default Rate of Interest (as defined in the
Notes) and shall be a lien upon the Trust Property and be secured by the Deed of
Trust and may be collected in the same manner as the principal debt hereby
secured.
11. USE. Unless Huntington otherwise agrees in writing, Trustor shall
not allow changes in the nature of the occupancy for which the Property and
Improvements were intended at the time the Deed of Trust was executed. Trustor
shall comply with the laws, ordinances, regulations and requirements of any
governmental body applicable to the Trust Property, both during the construction
of any Improvements on the Property and subsequent to the completion thereof,
and Trustor shall not permit the use thereof for any illegal purpose.
12. INSPECTION. Any person authorized by Huntington shall have the
right to enter upon and inspect the Trust Property after reasonable notice to
Trustor and during normal business hours. Huntington shall have no duty,
however, to make such inspections. Any inspection of the Trust Property by
Huntington shall be entirely for its benefit, and Trustor shall in no way rely
or claim reliance thereon.
13. 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 Trust 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.
14. CONDEMNATION. If all the Trust Property and Improvements are taken
or acquired 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. Such award or payment so received by Huntington shall be applied
to the Indebtedness (whether or not then due and payable).
In the event a portion of the Improvements or Property are acquired in
any condemnation proceeding or by the exercise of the right of eminent domain,
to the extent that the damage to the Property or improvements is in the amount
of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the proceeds of any such condemnation or eminent domain
award shall be paid to Trustor, who shall use such proceeds as provided for in
paragraph 6 hereof with respect to the disbursement of insurance proceeds where
the damage or destruction is in an amount
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of $500,000.00 or less. The provisions of paragraph 6 with respect to
reappraisal and substitute property where there is damage or destruction in an
amount of $500,000.00 or less shall apply as if fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with Huntington as escrow agent for the purpose of
repairing, restoring, or reconstructing the Improvements and/or Property, and
shall be disbursed by Huntington in accordance with the provisions of paragraph
6 hereof with respect to the disbursement of insurance proceeds, where the
damage or destruction is in an amount of $500,000.00 or greater. The conditions
to disbursement, including the requirement that Huntington be satisfied that the
repaired or restored Improvements would be equal in size, quality and value to
those which existed previously, and the right to cause the Trust Property to be
reappraised, as provided for where there is damage or destruction of $500,000.00
or greater, shall be applicable as if fully rewritten.
Anything in this Section 14 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Huntington, be
applied by Huntington to the Indebtedness in such order as Huntington may
determine.
15. ASSIGNMENT OF RENTS AND LEASES.
(a) Trustor 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 Trust 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 Trustor 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
Trust 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 Trustor may have against any
tenant under any of the Leases or others in possession of the Trust Property or
any part thereof for the collection or recovery of Rents so assigned. Prior to
an Event of Default, as hereinafter defined, Trustor shall have a license to
collect and receive all Rents as trustee for the benefit of Huntington and
Trustor.
(b) Trustor hereby represents, warrants and agrees that:
(i) Trustor 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 Trustor has or will have any right, title or
interest in or to the Leases or Rents.
(ii) Trustor shall, at Trustor'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. Trustor 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) Trustor shall generally operate and maintain
the Trust Property in a manner to insure maximum Rents.
(iv) Trustor shall not pledge, transfer, mortgage or
otherwise encumber or assign the Leases or the Rents.
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(v) Trustor shall not collect Rents more than sixty
(60) days prior to accrual.
(c) Huntington shall not be obligated to perform or discharge
any obligation or duty to be performed or discharged by Trustor under any of the
Leases; and Trustor 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 Notes, and
shall be payable by Trustor immediately without demand and shall be secured
hereby. This assignment shall not place responsibility for the control, care,
management, or repair of the Trust 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 Trust Property) to pay all of the
Rents directly to Huntington at the address specified in Section 29 hereof, for
which this assignment shall be sufficient warrant;
(ii) Huntington shall have the right to forthwith
enter and take possession of the Trust 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 Trust Property as Huntington, in
its sole discretion, may deem proper; and
(iii) Huntington shall have the right to forthwith
enter into and upon the Trust 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 for the collection of the Rents.
In the event that Huntington shall pursue its remedies under
Subsections 15(d)(ii) or (iii) above, the net income, after allowing a
reasonable fee for the collection thereof and the management of the Trust
Property, may be applied toward the payment of taxes, assessments, insurance
premiums, repairs, protection of the Trust Property or Huntington's lien
thereon, and other charges against the Trust Property and the costs of
procurement of such insurance and of evidence of title to the Trust 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 Trust Property and
collecting the Rents, any funds expended by Huntington for such purposes shall
become indebtedness of Trustor to Huntington secured by the Deed of Trust.
Unless Huntington and Trustor agree in writing to other terms of payment, such
amounts shall be payable upon demand from Huntington to Trustor and shall bear
interest from the date of disbursement at the Default Rate of Interest stated in
the Notes.
The exercise or failure to exercise any of the above remedies shall not
in any way preclude or abridge the right of Huntington to exercise the power of
sale contained herein 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 Trust 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) Trustor hereby authorizes and directs the tenants under
the Leases to pay Rents to Huntington upon written demand by Huntington, without
further consent of Trustor, and the tenants may rely upon any written statement
delivered by Huntington to the tenants. Any such payment to Huntington shall
constitute payment to Trustor under the Leases.
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(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.
16. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. The Deed of Trust is
intended to be a security agreement pursuant to the Uniform Commercial Code as
enacted in the State of West Virginia (the "UCC") for any of the Property
comprising personal property and fixtures which may be subject to a security
interest pursuant to the UCC, and Trustor 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. Trustor agrees to execute and deliver to Huntington UCC financing
statements covering said personal property and fixtures from time to time and in
such form as Huntington may require to perfect or maintain the priority of
Huntington's security interest with respect to said personal property and
fixtures. Trustor 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 17 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 17 hereof with respect to such property.
17. EVENT OF DEFAULT. The term "Event of Default" shall have the same
meaning as set forth in the Loan Agreement, 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:
to invoke the power of sale and any other remedies permitted by applicable law
or provided for herein. Trustor acknowledges that the power of sale herein
granted may be exercised by Huntington without prior judicial hearing.
Huntington shall be entitled to collect all costs and expenses incurred in
pursuing such remedies, including, but not limited to, attorney's fees and costs
of documentary evidence, abstracts and title reports, all of which shall be
additional sums secured by this Deed of Trust.
18. 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
Trustor or its successors or assigns, any junior lienholder, without liability
on Huntington's part and notwithstanding Trustor's breach of any covenant or
agreement of Trustor in the Deed of Trust, 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 Deed of Trust any part of the Trust Property, take
or release other or additional security, reconvey any part of the Trust
Property, consent to any map or plan of the Trust Property, consent to the
granting of any easement, join in any extension or subordination agreement, or
agree in writing with Trustor to modify the rate of interest or period of
amortization of the Notes or to change the amount of the monthly installments
payable thereunder. Any actions taken by Huntington pursuant to the terms of
this Section 18 shall not affect the obligation of Trustor or Trustor's
successors or assigns to pay the sums secured by the Deed of Trust and to
observe the covenants of contained herein, and shall not affect the lien or
priority of lien of the Deed of Trust on the Trust Property. Trustor shall pay
Huntington a reasonable service charge, together with such title insurance
premiums and attorney's fees as may be incurred at Huntington's option for any
such action if taken at Trustor's request.
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19. PARCELS; WAIVER OF MARSHALLING. In the event of a sale pursuant to
the power of sale contained herein, the Trust 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
Trust 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 Trust 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. Trustor, any party who becomes liable for Trustor's obligations and
covenants under the Deed of Trust, and any party who now or hereafter acquires a
security interest in the Trust 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.
20. COSTS OF COLLECTION. Trustor hereby agrees to pay to Huntington all
costs of enforcing, collecting and securing, and of attempting to enforce,
collect and secure, the Notes, including, without limitation, reasonable
attorneys' fees and court costs, 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.
21. SALE PURSUANT TO POWER OF SALE. Prior to any sale pursuant to the
power of sale contained herein, Huntington shall provide Trustor with the notice
required by the laws of the State of West Virginia by mailing to Trustor at 20
South Third Street, Columbus, Ohio 43215 in the manner provided in paragraph 30
hereof or such other manner as may be required pursuant to the laws of the State
of West Virginia, notice of such sale. Trustee may sell the Trust Property at
the time and place and under the terms designated in the notice of sale in one
or more parcels and in such order as Trustee may determine at public auction to
the highest bidder for cash. Trustee may postpone sale of all or any parcel of
the Trust Property by public announcement at the time and place of any
previously scheduled sale. Huntington or Huntington's designee may purchase the
Trust Property at any sale.
Trustee shall deliver to the purchaser a Trustee's deed conveying the
Trust Property so sold with special warranty of title. The recitals in the
Trustee's deed shall be prima facie evidence of the truth of the statements made
therein. Trustee shall apply the proceeds of the sale in the following order:
(a) to all costs and expenses of the sale, including, but not limited to
attorney's fees and costs of title evidence; (b) to the discharge of all taxes,
levies and assessments on the Trust Property, if any, as provided by applicable
law; (c) to all sums secured by this Instrument in such order as Huntington, in
Huntington's sole discretion, directs; and (d) the excess, if any, to the person
or persons legally entitled thereto, including, if any, holders of liens
inferior to this Instrument in order of priority, provided that Trustee has
actual notice of such liens. Trustee shall not be required to take possession of
the Trust Property prior to the sale thereof or to deliver possession of the
Trust Property to the purchaser at such sale.
22. RENT ROLL AND FINANCIAL STATEMENTS. Trustor shall maintain full and
correct books and records open to Huntington's inspection, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
23. HAZARDOUS SUBSTANCES. (a) Trustor 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
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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 Notes and all subsequent holders of the Deed of
Trust, 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) Trustor represents and warrants to Huntington that, to its
knowledge after due investigation: (i) the Trust Property is 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 Trust Property does 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 Project or any property
adjacent to or within the immediate vicinity of the Trust Property and Trustor
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 Trust
Property 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 Trust Property which require any work,
repair, construction, containment, clean up, investigations, studies, removal or
other remedial action with respect to the Trust Property 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 Trust Property 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) Trustor covenants and agrees with Huntington as follows:
(i) Trustor shall keep, and shall cause all operators,
tenants, subtenants, licensees and occupants of the Project to keep, the Project
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 Trust Property as a shopping center in accordance
with all Environmental Laws.
(ii) Trustor shall comply with, and shall cause all operators,
tenants, subtenants, licensee and occupants of the Trust Property to comply
with, all Environmental Laws.
(iii) Trustor 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 Trust Property or any property adjacent to or within the immediate
vicinity of the Trust Property.
(iv) Trustor shall undertake and complete all investigations,
studies, sampling and testing for Hazardous Substances reasonably required by
Huntington and, in accordance with all Environmental Laws, all removal and other
remedial actions necessary to contain, remove and clean up all Hazardous
Substances that are determined to be present at the Project in violation of any
Environmental Laws.
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(v) Huntington shall have the right, but not the obligation,
to cure any violation by Trustor of the Environmental Laws and Huntington's cost
and expense to so cure shall be secured by the Deed of Trust.
(d) Trustor 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 Project 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 Trustor herein
(collectively, the "Indemnified Matters").
The liability of Trustor 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 under the Notes, the Deed of Trust
or other Loan Documents, (ii) the sale of the Trust Property pursuant to the
power of sale contained herein or the acceptance of a deed in lieu thereof,
(iii) any amendment or modification of the Loan Documents by or for the benefit
of Trustor or any subsequent owner of the Trust Property, (iv) any extensions of
time for payment or performance required by any of the Loan Documents, (v) the
release or discharge of the Deed of Trust or of Trustor, 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 Deed of Trust or to any other security or limiting Huntington
rights to a deficiency judgment against Trustor, (viii) any applicable statute
of limitations, (ix) the sale or assignment of the Notes or the Deed of Trust,
(x) the sale, transfer or conveyance of all or part of the Trust Property , (xi)
the dissolution or liquidation of Trustor, (xii) the release or discharge, in
whole or in part, of Trustor 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 Trustor under the Notes
or the Deed of Trust.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Trustor may have to Huntington at common law.
24. SUBORDINATE DEEDS OF TRUST. Trustor 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 Trust
Property (each a "Subordinate Deed of Trust"). If Huntington consents to a
Subordinate Deed of Trust or if the foregoing prohibition is determined by a
court of competent jurisdiction to be unenforceable, any such Subordinate Deed
of Trust shall contain express covenants to the effect that:
(a) the lien of the Subordinate Deed of Trust and all
instruments incorporated therein by reference is and always shall be
unconditionally subordinate to the lien of the Deed of Trust and to all advances
made pursuant to, and sums secured by, the Deed of Trust, and the Deed of Trust
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 holder of the Subordinate Deed of
Trust holder;
(b) if any action shall be instituted to sell the Trust
Property or otherwise enforce the Subordinate Deed of Trust, 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;
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(c) in the event of any conflict between the covenants and
agreements of the Deed of Trust and the Subordinate Deed of Trust, the covenants
and agreements of the Deed of Trust shall prevail;
(d) Rents, if collected by or for the holder of the
Subordinate Deed of Trust, shall be applied first to the payment of the
Indebtedness and expenses incurred in the ownership, operation and maintenance
of the Trust Property in such order as Huntington may determine, prior to being
applied to any indebtedness secured by the Subordinate Deed of Trust;
(e) a copy of any notice of default under the Subordinate Deed
of Trust and written notice and opportunity to cure of not less than thirty (30)
days prior to the commencement of any action to sell pursuant to a power of sale
contained therein or otherwise enforce the Subordinate Deed of Trust shall be
given to Huntington; and
(f) the holder of the Subordinate Deed of Trust shall
acknowledge the existence of the Indebtedness secured hereby and further
acknowledge that the lien of the Deed of Trust shall at all times be and remain
superior and prior to the lien of the Subordinate Deed of Trust to the extent of
the entire Indebtedness secured hereby, notwithstanding any change in the
variable rate of interest being charged under the Notes.
25. CREDIT LINE DEED OF TRUST. THIS IS A CREDIT LINE DEED OF TRUST FOR
THE PURPOSES OF WEST VIRGINIA CODE Section 38-1-14, AND SECURES THE MAXIMUM
AMOUNT NOT TO EXCEED $190,000,000.00, AND THIS DEED OF TRUST IS ALSO
SECURITY FOR THE PAYMENT OF INTEREST ON SUCH PRINCIPAL SUMS AND FOR TAXES,
INSURANCE PREMIUMS AND OTHER OBLIGATIONS, INCLUDING INTEREST THEREON,
UNDERTAKEN BY BENEFICIARY OR TRUSTEE PURSUANT TO THE PROVISIONS OF THIS DEED OF
TRUST. THIS DEED OF TRUST SECURES FUTURE ADVANCES, WHICH BENEFICIARY HAS AGREED
TO MAKE TO TRUSTOR IN ACCORDANCE WITH AND SUBJECT TO THE TERMS AND PROVISIONS
OF THE LOAN DOCUMENTS. SUCH FUTURE ADVANCES ARE INTENDED TO BE OBLIGATORY
WITHIN THE MEANING OF WEST VIRGINIA CODE Section 38-1-14.
26. RELEASE. Upon payment of all sums secured by this Instrument,
Huntington shall release this Deed of Trust. Trustor shall pay Huntington's
reasonable costs incurred in releasing this Deed of Trust. If Trustee is
requested to release this Instrument, all Notes evidencing indebtedness secured
by this Instrument shall be surrendered to Trustee.
27. SUBSTITUTE TRUSTEE. If Trustee or any successor trustee to Trustee
should die, resign or become incapacitated or neglect, refuse or become
disqualified to act hereunder, Huntington at Huntington's option without notice
to Trustor may remove Trustee and appoint a successor trustee to any Trustee
appointed hereunder by an instrument recorded in the county in which this Deed
of Trust is recorded. Without conveyance of the Trust Property, the successor
trustee shall succeed to all the title, power and duties conferred upon the
Trustee herein and by applicable law.
28. BENEFICIARY'S ADDRESS. The beneficial owners and holders of the
Notes at the time of execution and delivery hereof are The Huntington National
Bank, whose address is stated in the first paragraph of the first page of this
Instrument; KeyBank National Association, whose address is 127 Public Square,
6th Floor, Cleveland, Ohio 44114-1306; Fleet National Bank, Mail Stop RI/MO/215,
111 Westminster Street, Suite 800, Providence, RI 02903-2305; Star Bank, N.A.,
501 West Schrock Road, Westerville, Ohio 43081; PNC Bank, Ohio, National
Association, 201 East Fifth Street, 8th Floor, Cincinnati, Ohio 45202; The
Provident Bank, One East Fourth Street, Cincinnati, Ohio 45202; National City
Bank, Columbus, 155 East Broad Street, Columbus, Ohio 43215; and Bankers Trust
Company, 280 Park Avenue, New York, New York 10017.
29. NOTICE. Any notice required or permitted to be given hereunder
shall be in writing. If mailed by first class United States mail, postage
prepaid, 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 Trustor, Trustee and Huntington shall be as set forth below;
provided however, that either party shall
13
<PAGE> 15
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 Trustor: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attn: General Counsel
If to Huntington: The Huntington National Bank
Commercial Real Estate Group
41 South High Street
Columbus, Ohio 43215
ATTN: Carol G. Smith
It to Trustee: John T. Poffenbarger
515 Bank One Center
Charleston, West Virginia
30. 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 Deed of Trust 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 Deed of
Trust shall not be affected thereby, but shall be construed as if it does not
contain such provision. Each right and remedy provided in the Deed of Trust is
distinct and cumulative to all other rights or remedies under the Deed of Trust
or afforded by law or equity, and may be exercised concurrently, independently
or successively, in any order whatsoever.
HUNTINGTON, BY ACCEPTANCE OF THIS DEED OF TRUST, AND TRUSTOR 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 TRUSTOR TO ENTER INTO THIS TRANSACTION. IT SHALL
NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY HUNTINGTON'S ABILITY TO
PURSUE ITS REMEDIES.
14
<PAGE> 16
IN WITNESS WHEREOF, Trustor has caused the Deed of Trust to be executed
this 15th day of May, 1997.
Signed and acknowledged Trustor:
in the presence of:
Glimcher Properties Limited Partnership
/s/ Dennis J. Kovach By: Glimcher Properties Corporation,
- ------------------------------- General Partner
Witness Dennis J. Kovach
-----------------------
(printed)
/s/ Robert C. Kiger By: /s/ David J. Glimcher
- ------------------------------- --------------------------------------
Witness Robert C. Kiger David J. Glimcher, President
-----------------------
(printed)
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this 15th day of
May, 1997, by David J. Glimcher, President of Glimcher Properties Corporation,
the general partner of Glimcher Properties Limited Partnership, on behalf of the
limited partnership.
/s/ Robert C. Kiger
-----------------------------------
Notary Public
Commission
Expiration:
This instrument prepared by:
Robert C. Kiger
Attorney at Law
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street, #3100
Columbus, Ohio 43215
The Huntington National Bank
Commercial Real Estate Group
15
<PAGE> 17
EXHIBIT A
LEGAL DESCRIPTION
A tract of land located in file Corporation of Star City, Monongalia County,
West Virginia and being more particularly bounded and described as follows:
Beginning at an iron (Pt. #28) in the Southern Right of Way line or US Rt. 10 &
West Virginia Rt. 7 commonly known as Monongahela Boulevard and in the Eastern
Right of Way line of the Baltimore & Ohio Railroad, thence with the road Right
of Way
South 71(degree) 13' 30" East 166.32 to an iron pin (Pt. #29), thence
South 66(degree) 41' 49" East 217.30 to Rial Road Spike (Pt. #24), thence
South 58(degree) 45' 14" East 186.63 to an iron pin (Pt. #1), thence
South 50(degree) 08' 39" East 205.27 to an iron pin (Pt. #33), thence
South 40(degree) 06' 30" West 22.63 to an iron pin (Pt. #34), thence leaving
said Road Right of Way
North 85(degree) 57' 00" West 184.98 to an iron pin (Pt.
#35), thence
South 17(degree) 00' 00" West 296.30 to an iron pin (Pt. #2) corner
to Tract #2 and in the Western Right of Way line to Normandy Street, thence with
same
South 17(degree) 00' 00" 150.00 to an iron pin (Pt. #26) corner to Tract #3
thence,
South 17(degree) 00' 00" West 150.00 to an iron pin (Pt. #5), thence
South 17(degree) 00' 00" West 30.00 to an iron pin (Pt. #6), corner to Tract #4,
thence
South 17(degree) 00' 00" West 100.00 to an iron pin (Pt. #9), thence
South 17(degree) 00' 00" West 530.57 to an iron pin (Pt. #10), thence
South 46(degree) 05' 00" East 98.25 to an iron pin (Pt. #11), corner to Canton
Street and West Virginia Utility property, thence with the West Virginia Utility
Property
South 39(degree) 25' 00" West 311.24 to an iron pin (Pt. #12) in the
Eastern Right of Way line of the Baltimore and Ohio Railroad, thence with the
same
North 16(degree) 36' 00" West 203.55 to an iron pin (Pt. #13), thence
North 09(degree) 49' 00" West 189.06 to an iron pin (Pt. #14), thence
North 04(degree) 12' 00" West 477.63 to an iron pin (Pt. #15), thence
North 13(degree) 59' 00" East 98.28 to an iron pin (Pt. #16), thence
North 09(degree) 30' 00" East 300.00 to an iron pin (Pt. #17), thence
North 03(degree) 08' 30" East 100.73 to an iron pin (Pt. #18), thence
North 15(degree) 22' 00" West 54.95 to an iron pin (Pt. #19), thence
North 09(degree) 30' 00" East 50.00 to an iron pin (Pt. #20), thence
North 28(degree) 04' 30" East 147.68 to an iron pin (Pt. #21), thence
North 11(degree) 33' 00" West 130.88 to an iron pin (Pt. #22), thence
North 09(degree) 30' 00" East 66.93 to an iron pin (Pt. #23), corner to Tract
#5, thence
North 09(degree) 30' 00" East 107.74 to the beginning and containing
15.67 acres more or less and being a combination of Tracts #1 through #7 as
recorded in Deed Book 802, Page 415 and as shown on a plat attached hereto and
made part of this description (See Map Cabinet No. 434-A).
<PAGE> 1
EXHIBIT 10.10
<PAGE> 2
ARIZONA
- -------
STATE OF ARIZONA
I hereby certify that the within Fee No.
instrument was filed and recorded
COUNTY OF
IN DOCKET ____________ page _________ and indexed at the request of
__________________ Witness my hand and official seal. Compared
Photostated
When recorded mail to: County Recorder Fee
By
Deputy Recorder
- --------------------------------------------------------------------------------
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND FIXTURE FILING
DATED: MAY 15, 1997
TRUSTOR:
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware Limited
Partnership, 20 South Third Street, Columbus, Ohio 43215
BENEFICIARY:
THE HUNTINGTON NATIONAL BANK, a National banking association
having an office at 41 South High Street, Columbus, Ohio 43215
as Administrative Agent for KeyBank National Association, The
Huntington National Bank and certain other banks who are or
may hereafter become signatories to a certain Second Amended
and Restated Loan Agreement, dated May 15, 1997, by and among
The Huntington National Bank, KeyBank National Association,
the other banks signatory thereto, Glimcher Properties Limited
Partnership, Glimcher Realty Trust and Glimcher Realty Trust
and Glimcher Properties Corporation (the "Loan Agreement").
The Huntington National Bank in its capacity as Administrative
Agent is hereinafter referred to as "Huntington".
TRUSTEE:
CHICAGO TITLE INSURANCE COMPANY,
a Missouri Corporation
2020 North Central Avenue
Suite 300
Phoenix, Arizona, 85004
PROPERTY in Cochise County, State of Arizona, described as:
The Property is described on Exhibit "A" attached hereto and
incorporated by reference herein.
Together with the following, whether now owned or hereafter acquired by
Trustor: (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
1
<PAGE> 3
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 Trustor 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 Trustor 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 Trustor with respect thereto (all of the same, including the
Property, collectively the "Trust Property").
THIS DEED OF TRUST ("Deed of Trust"), made on the above date between
the Trustor, Trustee, and Beneficiary above named,
WITNESSETH: That Trustor irrevocably grants and conveys to Trustee in
Trust, with Power of Sale, the above described Property, together with leases,
rents, issues, profits, or income thereof (all of which are hereinafter called
"Property Income"); SUBJECT, HOWEVER, to the right, power, and authority
hereinafter given to and conferred upon Beneficiary to collect and apply such
Property Income; AND SUBJECT TO existing taxes, assessments, liens,
encumbrances, covenants, conditions, restrictions, right of way, and easements
of record.
FOR THE PURPOSE OF SECURING: 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 Trustor under the terms and conditions of (a) the Loan
Agreement; (b) the Notes from time to time made by Trustor pursuant to the Loan
Agreement, not to exceed in the aggregate the principal amount of One Hundred
Ninety Million Dollars ($190,000,000.00), payable not later than July 31, 1998,
unless extended, and any and all renewals, amendments, modifications, reductions
and extensions thereof and substitutions therefor (collectively the "Notes");
(c) the reimbursement agreements (collectively the "Reimbursement Agreements")
delivered to Huntington from time to time pursuant to the Loan Agreement in
connection with letters of credit (collectively the "Letters of Credit")issued
thereunder; (d) the Deed of Trust; and (e) any other instrument, document,
certificate or affidavit heretofore, now or hereafter given by Trustor
evidencing or securing all or any part of the foregoing (the same together with
the Loan Agreement, the Notes, the Letters of Credit, the Reimbursement
Agreements and the Deed of Trust, collectively the "Loan Documents").
2
<PAGE> 4
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES:
1. TITLE. Trustor covenants that it is lawfully seized of the Trust
Property and has the right to mortgage, grant, convey and assign the Trust
Property and that the same is unencumbered except for rights of tenants in
possession under leases, current real estate taxes and assessments and other
matters and encumbrances approved by Huntington for inclusion in the lender's
policy of title insurance issued by Chicago Title Insurance Company insuring the
lien of the Deed of Trust (the "Permitted Exceptions") and that except as
aforesaid it will warrant and defend generally the title to the Trust Property.
If the interest of Huntington or Trustee in the Trust Property or any part
thereof shall be endangered or shall be attacked, directly or indirectly,
Trustor hereby authorizes Huntington, at Trustor'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 Trustor and collectible in
accordance with the terms of Section 10 hereof.
2. FURTHER ASSURANCES. Trustor, 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
Trust Property.
3. SUBROGATION FOR FURTHER SECURITY. Huntington shall be subrogated for
its further security to the lien, although released of record, of any and all
encumbrances paid with any advance of Indebtedness; provided, however, that the
terms and provisions hereof shall govern the rights and remedies of Huntington
and shall supersede the terms, provisions, rights, and remedies under the lien
or liens to which Huntington is subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Huntington, which consent may be withheld in Huntington's
sole discretion, Trustor shall not (a) sell, assign, mortgage, pledge, lease
(except for leases of storerooms in the ordinary course of business) or
otherwise convey or further encumber the Trust Property, or any portion thereof,
or legal, equitable or beneficial interest therein; (b) sell, assign, pledge or
otherwise transfer any beneficial interests in Trustor which individually or in
the aggregate would have the effect of transferring the power to direct the
operations of Trustor or the Trust Property; (c) contract for any of the same;
(d) permit the Trust Property, or any portion thereof, or legal, equitable or
beneficial interest therein, to be subject to any superior or inferior lien or
encumbrance except as provided in the Permitted Encumbrances; (e) subdivide,
resubdivided or submit to the condominium form of ownership all or any portion
of the Trust 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. TAXES AND OTHER IMPOSITIONS. Trustor shall promptly pay before
delinquency all taxes, assessments, charges, fines or impositions, general,
local or special (collectively the "Impositions"), levied upon the Trust
Property, or any part thereof, or upon Huntington's interest therein, or upon
the Deed of Trust or the Indebtedness, by any duly or legally constituted public
authority, municipality, township, county or state or the United States, and
upon request, will provide evidence of the payment thereof to Huntington;
provided that Trustor, at Trustor'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 Trustor may defer the payment thereof for such period as such
contest shall be actively prosecuted and shall be pending undetermined; further
provided, however, that Trustor 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 Trust Property, or the lien thereon created by such item, to be
sold by federal, state, county or municipal authority for the nonpayment
thereof. Pending any such contest, Trustor shall maintain adequate book reserves
with respect to such Impositions being contested.
In the event that one or more of the Impositions on Huntington's
interest in the Trust Property, the Deed of Trust or the Indebtedness cannot be
lawfully paid by Trustor, then the Trust Property shall be withdrawn from the
Collateral Pool (as such team is defined in the Loan
3
<PAGE> 5
Agreement). In the event the withdrawal of the Trust Property from the
Collateral Pool causes Trustor not to be in compliance with the required loan to
value ratio under the Loan Agreement, Trustor may either furnish substitute
property, as provided in Section 7 of the Loan Agreement, or pay down the
Indebtedness in an amount which will bring the loan to value ratio into
compliance.
6. INSURANCE AND INDEMNIFICATION. Trustor 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 Trustor 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 Trustor 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 Trust 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.
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 loss payee. 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 Deed of Trust 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 Trustor which might otherwise result in
forfeiture of said insurance, (ii) that any rights of set-off, counterclaim or
deductions against Trustor 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.
4
<PAGE> 6
Huntington shall have the right to hold the policies, or certificates
thereof acceptable to Huntington with certified copies of the policies, and
Trustor 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, Trustor shall deliver to Huntington a renewal policy,
or certificate thereof, in form acceptable to Huntington.
If Huntington is made a party defendant to any litigation concerning
the Loan Documents or the Trust Property or any part thereof or interest therein
or the occupancy thereof by Trustor, then Trustor 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.
Trustor waives any and all right to claim or recover against Huntington, its
officers, employees, agents and representatives, for loss of or damage to
Trustor, the Trust Property, other property of Trustor or the property of others
under control of Trustor from any cause insured against or required to be
insured against by the provisions of the Deed of Trust.
Trustor 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. Trustor 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 6 shall prevent Trustor from keeping
the Improvements and Personal Property insured or causing the same to be insured
against the risks referred to in this Section 6 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Deed of Trust; 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 Deed of Trust; (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 Deed of Trust.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Trustor, and used
by Trustor to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Trustor should elect option (ii) above, if a material decrease in the fair
market value of the Trust Property is indicated, Huntington shall be entitled,
at its option, to cause the Trust Property to be reappraised at Trustor's
expense to satisfy itself of continued compliance by Trustor with the loan to
value ratio required by the Loan Agreement. In the event the results of such
reappraisal causes Trustor not to be in compliance with the required loan to
value ratio, Trustor may either furnish substitute property, as provided for in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Huntington as escrow agent for the purpose of repairing, restoring or
reconstructing the Improvements. Such proceeds shall be disbursed by Huntington
as work progresses, provided that prior to any disbursement, Huntington is in
receipt of proof reasonably satisfactory to it that: (i) the work has been
completed, (ii) there are no outstanding mechanics liens or materialmen's liens,
and (iii) that all charges, costs and expenses incurred with respect to work
completed have been paid in full or will be paid in full with such proceeds.
Prior to the release of any proceeds, Huntington must be satisfied that repair,
restoration or reconstruction of the damaged or destroyed Improvements will be
substantially equal in size, quality and value to the Improvements then
presently erected on
5
<PAGE> 7
the Trust Property as existed immediately prior to the loss and the plans and
specifications therefor must be approved by Huntington. In the event Huntington
believes it is necessary in order to establish value, Huntington may, at its
option, cause the Trust Property to be reappraised at Trustor's expense. All
insurance proceeds shall be payable to Huntington. The adjustment of such
insurance proceeds with the carrier must be approved by Huntington.
Anything in this Section 6 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Huntington, be applied by Huntington to the
Indebtedness in such order as Huntington may determine.
7. ESCROW. Trustor, in order to more fully protect the security of the
Deed of Trust, does hereby covenant and agree that, if Trustor shall fail to
timely pay taxes, assessments or insurance premiums as provided above, or in the
event of any other default and Huntington does not then elect to exercise its
other remedies, then Trustor shall, upon request of Huntington, pay to
Huntington on the first day of each month, until the Indebtedness is fully paid,
a sum equal to one-twelfth (1/12) of the known or estimated yearly taxes,
assessments, premiums for such insurance as may be required by the terms hereof.
Huntington shall hold such monthly payments which may be mingled with its
general funds, without obligation to pay interest thereon, unless otherwise
required by applicable law, to pay such taxes, assessments, and insurance
premiums when due. Trustor 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 Trustor shall furnish Huntington with proper statements covering the same
fifteen (15) days prior to the due dates thereof. In the event the Trust
Property is sold pursuant to the power of sale contained herein, or if
Huntington should take a deed in lieu thereof, 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 7 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 7 shall be insufficient to pay such taxes, assessments, and insurance
premiums then due, then said Trustor shall pay upon demand the amount necessary
to make up the deficiency, which payments shall be secured by the Deed of Trust.
To the extent that all the provisions of this Section 7 for such payments of
taxes, assessments, and insurance premiums to Huntington, are complied with,
Trustor shall be relieved of compliance with the covenants contained in Sections
5 and 6 herein as to the amounts paid only, but nothing contained in this
Section 7 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.
8. WASTE; REPAIR. Trustor shall neither commit nor permit any waste on
the Trust Property and shall keep all Improvements now or hereafter erected on
the Property in good condition and repair.
9. ALTERATIONS; CONSTRUCTION. Trustor shall have the right to 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, to the extent that the value of same is not diminished. If
Huntington believes that there has been a material decrease in value following
any such removal, demolition, or alteration, it may, at its option, cause the
Trust Property to be reappraised at Trustor's expense.
10. ADVANCES SECURED BY DEED OF TRUST. Upon failure of Trustor to
comply with any of these covenants and agreements as to the payment of taxes,
assessments, insurance premiums, repairs, protection of the Trust 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 Trustor, shall be immediately due and payable by
Trustor shall bear interest at the Default Rate of Interest (as defined in the
Notes) and shall be a lien upon the Trust Property and be secured by the Deed of
Trust and may be collected in the same manner as the principal debt hereby
secured.
11. USE. Unless Huntington otherwise agrees in writing, Trustor shall
not allow changes in the nature of the occupancy for which the Property and
Improvements were intended at the time the Deed of Trust was executed. Trustor
shall comply with the laws, ordinances, regulations and
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requirements of any governmental body applicable to the Trust Property, both
during the construction of any Improvements on the Property and subsequent to
the completion thereof, and Trustor shall not permit the use thereof for any
illegal purpose.
12. INSPECTION. Any person authorized by Huntington shall have the
right to enter upon and inspect the Trust Property after reasonable notice to
Trustor and during normal business hours. Huntington shall have no duty,
however, to make such inspections. Any inspection of the Trust Property by
Huntington shall be entirely for its benefit, and Trustor shall in no way rely
or claim reliance thereon.
13. 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 Trust 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.
14. CONDEMNATION. If all the Trust Property and Improvements are taken
or acquired 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 Trustor, and the same shall be paid forthwith
to Huntington. Such award or payment so received by Huntington shall be applied
to the Indebtedness (whether or not then due and payable).
In the event a portion of the Improvements or Property are acquired in
any condemnation proceeding or by the exercise of the right of eminent domain,
to the extent that the damage to the Property or improvements is in the amount
of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the proceeds of any such condemnation or eminent domain
award shall be paid to Trustor, who shall use such proceeds as provided for in
paragraph 6 hereof with respect to the disbursement of insurance proceeds where
the damage or destruction is in an amount of $500,000.00 or less. The provisions
of paragraph 6 with respect to reappraisal and substitute property where there
is damage or destruction in an amount of $500,000.00 or less shall apply as if
fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with Huntington as escrow agent for the purpose of
repairing, restoring, or reconstructing the Improvements and/or Property, and
shall be disbursed by Huntington in accordance with the provisions of paragraph
6 hereof with respect to the disbursement of insurance proceeds, where the
damage or destruction is in an amount of $500,000.00 or greater. The conditions
to disbursement, including the requirement that Huntington be satisfied that the
repaired or restored Improvements would be equal in size, quality and value to
those which existed previously, and the right to cause the Trust Property to be
reappraised, as provided for where there is damage or destruction of $500,000.00
or greater, shall be applicable as if fully rewritten.
Anything in this Section 14 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Huntington, be
applied by Huntington to the Indebtedness in such order as Huntington may
determine.
15. ASSIGNMENT OF RENTS AND LEASES. That as additional security,
Trustor hereby gives to and confers upon Beneficiary the right, power, and
authority, during the continuance of this Trust, to collect the Property Income,
reserving to Trustor the right, prior to any default by Trustor in payment of
any indebtedness secured hereby or in performance of any agreement hereunder, to
collect and retain such Property Income as it becomes due and payable but in no
event more than one month in advance. Upon an Event of Default as hereinafter
defined, Beneficiary may at any time, without notice, either in person, by
agent, or by a receiver to be appointed by a court, and without
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<PAGE> 9
regard to the adequacy of any security for the indebtedness hereby secured,
enter upon and take possession of said Property or any part thereof, rent said
Property, in his own name sue for or otherwise collect such Property Income,
including that past due and unpaid, and apply the same, less costs and expenses
of operation and collection, including reasonable attorney's fees, upon any
indebtedness secured hereby, and in such order as Beneficiary may determine. The
entering upon and taking possession of said Property, the collection of such
Property Income, and the application thereof as aforesaid, shall not cure or
waive any default or notice of Trustee's sale hereunder or invalidate any act
done pursuant to such notice.
(b) Trustor hereby represents, warrants and agrees that:
(i) Trustor 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 Trustor has or will have any right, title or
interest in or to the Leases or Rents.
(ii) Trustor shall, at Trustor'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. Trustor 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) Trustor shall generally operate and maintain
the Trust Property in a manner to insure maximum Rents.
(iv) Trustor shall not pledge, transfer, mortgage or
otherwise encumber or assign the Leases or the Rents.
(v) Trustor shall not collect Rents more than sixty
(60) days prior to accrual.
(c) Huntington shall not be obligated to perform or discharge
any obligation or duty to be performed or discharged by Trustor under any of the
Leases; and Trustor 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 Notes, and
shall be payable by Trustor immediately without demand and shall be secured
hereby. This assignment shall not place responsibility for the control, care,
management, or repair of the Trust 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 Trust 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 Trust 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 Trust Property as Huntington, in
its sole discretion, may deem proper; and
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(iii) Huntington shall have the right to forthwith
enter into and upon the Trust 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 for the collection of the Rents.
In the event that Huntington shall pursue its remedies under
Subsections 15(d)(ii) or (iii) above, the net income, after allowing a
reasonable fee for the collection thereof and the management of the Trust
Property, may be applied toward the payment of taxes, assessments, insurance
premiums, repairs, protection of the Trust Property or Huntington's lien
thereon, and other charges against the Trust Property and the costs of
procurement of such insurance and of evidence of title to the Trust 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 Trust Property and
collecting the Rents, any funds expended by Huntington for such purposes shall
become indebtedness of Trustor to Huntington secured by the Deed of Trust.
Unless Huntington and Trustor agree in writing to other terms of payment, such
amounts shall be payable upon demand from Huntington to Trustor and shall bear
interest from the date of disbursement at the Default Rate of Interest stated in
the Notes.
The exercise or failure to exercise any of the above remedies shall not
in any way preclude or abridge the right of Huntington to exercise the power of
sale contained herein 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 Trust 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) Trustor hereby authorizes and directs the tenants under
the Leases to pay Rents to Huntington upon written demand by Huntington, without
further consent of Trustor, and the tenants may rely upon any written statement
delivered by Huntington to the tenants. Any such payment to Huntington shall
constitute payment to Trustor 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.
16. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. The Deed of Trust is
intended to be a security agreement pursuant to the Uniform Commercial Code as
enacted in the State of Arizona (the "UCC") for any of the Trust Property
comprising personal property and fixtures which may be subject to a security
interest pursuant to the UCC, and Trustor 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. Trustor agrees to execute and deliver to Huntington UCC financing
statements covering said personal property and fixtures from time to time and in
such form as Huntington may require to perfect or maintain the priority of
Huntington's security interest with respect to said personal property and
fixtures. Trustor 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 17 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 17 hereof with respect to such property.
17. EVENT OF DEFAULT. The term "Event of Default" shall have the same
meaning as set forth in the Loan Agreement, 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:
to invoke the power of sale and any other remedies permitted by applicable law
or provided for herein. Trustor acknowledges that the power of sale herein
granted may be exercised by Huntington without prior judicial hearing.
Huntington shall be entitled to collect all costs and expenses incurred in
pursuing such remedies, including, but not limited to, attorney's fees and costs
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of documentary evidence, abstracts and title reports, all of which shall be
additional sums secured by this Deed of Trust.
18. 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
Trustor or its successors or assigns, any junior lienholder, without liability
on Huntington's part and notwithstanding Trustor's breach of any covenant or
agreement of Trustor in the Deed of Trust, 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 Deed of Trust any part of the Trust Property, take
or release other or additional security, reconvey any part of the Trust
Property, consent to any map or plan of the Trust Property, consent to the
granting of any easement, join in any extension or subordination agreement, or
agree in writing with Trustor to modify the rate of interest or period of
amortization of the Notes or to change the amount of the monthly installments
payable thereunder. Any actions taken by Huntington pursuant to the terms of
this Section 18 shall not affect the obligation of Trustor or Trustor's
successors or assigns to pay the sums secured by the Deed of Trust and to
observe the covenants of contained herein, and shall not affect the lien or
priority of lien of the Deed of Trust on the Trust Property. Trustor shall pay
Huntington a reasonable service charge, together with such title insurance
premiums and attorney's fees as may be incurred at Huntington's option for any
such action if taken at Trustor's request.
19. PARCELS. That upon default by Trustor in the payment of any
indebtedness secured hereby or in performance of any agreement hereunder,
Beneficiary may declare all sums secured hereby immediately due and payable by
delivery to Trustee of written notice thereof, setting forth the nature thereof,
and of election to cause to be sold the Trust Property under this Deed of Trust.
Trustee may cause said Property to be sold in one parcel or in separate parcels
of such dimensions as Trustee may determine; a sale of part of said Property
shall not invalidate the lien hereof on the portions remaining unsold. The
remedies granted to Trustee hereunder may be enforced concurrently or
successively and are in addition to all other rights and remedies available to
Trustee and Beneficiary at law or in equity. Beneficiary also shall deposit with
Trustee this Deed of Trust, the Notes, and all documents evidencing expenditures
secured hereby.
20. COSTS OF COLLECTION. Trustor hereby agrees to pay to Huntington all
costs of enforcing, collecting and securing, and of attempting to enforce,
collect and secure, the Notes, including, without limitation, reasonable
attorneys' fees and court costs, 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.
21. SALE PURSUANT TO POWER OF SALE. Trustee shall record and give
notice of Trustee's sale in the manner required by law, and after the lapse of
such time as may then be required by law, Trustee shall sell, in the manner
required by law, said Property at public auction at the time and place fixed by
it in said notice of Trustee's sale to the highest bidder for cash in lawful
money of the United States, payable at time of sale. Trustee may postpone or
continue the sale by giving notice of postponement or continuance by public
declaration at the time and place last appointed for the sale. Trustee shall
deliver to such purchaser its Deed conveying the Property so sold, but without
any covenant or warranty, expressed or implied. Any person, including Trustor,
Trustee, or Beneficiary, may purchase at such sale.
After deducting all costs, fees, and expenses of Trustee and
of this Trust, including cost of evidence of title in connection with sale and
reasonable attorney's fees, Trustee shall apply the proceeds of sale to payment
of: All sums then secured hereby and all other sums due under the terms hereof,
with accrued interest, and the remainder, if any, to the person or persons
legally entitled thereto, or as provided in A.R.S. Sec. 33-812. To the extent
permitted by law, an action may be
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maintained by Beneficiary to recover a deficiency judgment for any balance due
hereunder. Beneficiary may foreclose this Deed of Trust as a realty Deed of
Trust, Security Agreement, Assignment of Rents and Fixture Filing.
22. RENT ROLL AND FINANCIAL STATEMENTS. Trustor shall maintain full and
correct books and records open to Huntington's inspection, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
23. HAZARDOUS SUBSTANCES. (a) Trustor 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 Notes and all subsequent holders of the Deed of
Trust, 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) Trustor represents and warrants to Huntington that, to its
knowledge after due investigation: (i) the Trust Property is 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 Trust Property does 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 Project or any property
adjacent to or within the immediate vicinity of the Trust Property and Trustor
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 Trust
Property 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 Trust Property which require any work,
repair, construction, containment, clean up, investigations, studies, removal or
other remedial action with respect to the Trust Property 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 Trust Property 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) Trustor covenants and agrees with Huntington as follows:
(i) Trustor shall keep, and shall cause all operators,
tenants, subtenants, licensees and occupants of the Project to keep, the Project
free of all Hazardous Substances, except for
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Hazardous Substances stored, treated, generated, transported, processed,
handled, produced or disposed of in the normal operation of the Trust Property
as a shopping center in accordance with all Environmental Laws.
(ii) Trustor shall comply with, and shall cause all operators,
tenants, subtenants, licensee and occupants of the Trust Property to comply
with, all Environmental Laws.
(iii) Trustor 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 Trust Property or any property adjacent to or within the immediate
vicinity of the Trust Property.
(iv) Trustor shall undertake and complete all investigations,
studies, sampling and testing for Hazardous Substances reasonably required by
Huntington and, in accordance with all Environmental Laws, all removal and other
remedial actions necessary to contain, remove and clean up all Hazardous
Substances that are determined to be present at the Project in violation of any
Environmental Laws.
(v) Huntington shall have the right, but not the obligation,
to cure any violation by Trustor of the Environmental Laws and Huntington's cost
and expense to so cure shall be secured by the Deed of Trust.
(d) Trustor 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 Project 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 Trustor herein
(collectively, the "Indemnified Matters").
The liability of Trustor 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 under the Notes, the Deed of Trust
or other Loan Documents, (ii) the sale of the Trust Property pursuant to the
power of sale contained herein or the acceptance of a deed in lieu thereof,
(iii) any amendment or modification of the Loan Documents by or for the benefit
of Trustor or any subsequent owner of the Trust Property, (iv) any extensions of
time for payment or performance required by any of the Loan Documents, (v) the
release or discharge of the Deed of Trust or of Trustor, 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 Deed of Trust or to any other security or limiting Huntington
rights to a deficiency judgment against Trustor, (viii) any applicable statute
of limitations, (ix) the sale or assignment of the Notes or the Deed of Trust,
(x) the sale, transfer or conveyance of all or part of the Trust Property , (xi)
the dissolution or liquidation of Trustor, (xii) the release or discharge, in
whole or in part, of Trustor 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 Trustor under the Notes
or the Deed of Trust.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Trustor may have to Huntington at common law.
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24. SUBORDINATE DEEDS OF TRUST. Trustor 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 Trust
Property (each a "Subordinate Deed of Trust"). If Huntington consents to a
Subordinate Deed of Trust or if the foregoing prohibition is determined by a
court of competent jurisdiction to be unenforceable, any such Subordinate Deed
of Trust shall contain express covenants to the effect that:
(a) the lien of the Subordinate Deed of Trust and all
instruments incorporated therein by reference is and always shall be
unconditionally subordinate to the lien of the Deed of Trust and to all advances
made pursuant to, and sums secured by, the Deed of Trust, and the Deed of Trust
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 holder of the Subordinate Deed of
Trust holder;
(b) if any action shall be instituted to sell the Trust
Property or otherwise enforce the Subordinate Deed of Trust, 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 Deed of Trust and the Subordinate Deed of Trust, the covenants
and agreements of the Deed of Trust shall prevail;
(d) Rents, if collected by or for the holder of the
Subordinate Deed of Trust, shall be applied first to the payment of the
Indebtedness and expenses incurred in the ownership, operation and maintenance
of the Trust Property in such order as Huntington may determine, prior to being
applied to any indebtedness secured by the Subordinate Deed of Trust;
(e) a copy of any notice of default under the Subordinate Deed
of Trust and written notice and opportunity to cure of not less than thirty (30)
days prior to the commencement of any action to sell pursuant to a power of sale
contained therein or otherwise enforce the Subordinate Deed of Trust shall be
given to Huntington; and
(f) the holder of the Subordinate Deed of Trust shall
acknowledge the existence of the Indebtedness secured hereby and further
acknowledge that the lien of the Deed of Trust shall at all times be and remain
superior and prior to the lien of the Subordinate Deed of Trust to the extent of
the entire Indebtedness secured hereby, notwithstanding any change in the
variable rate of interest being charged under the Notes.
25. RELEASE. Upon payment of all sums secured by this Instrument,
Huntington shall release this Deed of Trust. Trustor shall pay Huntington's
reasonable costs incurred in releasing this Deed of Trust. If Trustee is
requested to release this Instrument, all Notes evidencing indebtedness secured
by this Instrument shall be surrendered to Trustee.
26. SUBSTITUTE TRUSTEE. If Trustee or any successor trustee to Trustee
should die, resign or become incapacitated or neglect, refuse or become
disqualified to act hereunder, Huntington at Huntington's option without notice
to Trustor may remove Trustee and appoint a successor trustee to any Trustee
appointed hereunder by an instrument recorded in the county in which this Deed
of Trust is recorded. Without conveyance of the Trust Property, the successor
trustee shall succeed to all the title, power and duties conferred upon the
Trustee herein and by applicable law.
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, 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 Trustor, Trustee 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.
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If to Trustor: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
If to Huntington: The Huntington National Bank
Commercial Real Estate Group
41 South High Street
Columbus, Ohio 43215
ATTN: Carol G. Smith
If to Trustee: Chicago Title Insurance Company
2020 North Central Avenue
Suite 300
Phoenix, Arizona 85004
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 Deed of Trust 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 Deed of
Trust shall not be affected thereby, but shall be construed as if it does not
contain such provision. Each right and remedy provided in the Deed of Trust is
distinct and cumulative to all other rights or remedies under the Deed of Trust
or afforded by law or equity, and may be exercised concurrently, independently
or successively, in any order whatsoever.
HUNTINGTON, BY ACCEPTANCE OF THIS DEED OF TRUST, AND TRUSTOR 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 TRUSTOR TO ENTER INTO THIS TRANSACTION. IT SHALL
NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY HUNTINGTON'S ABILITY TO
PURSUE ITS REMEDIES.
14
<PAGE> 16
IN WITNESS WHEREOF, Trustor has caused the Deed of Trust to be executed
this 15th day of May, 1997.
Signed and acknowledged Trustor:
in the presence of:
Glimcher Properties Limited Partnership
/s/ Dennis J. Kovach By: Glimcher Properties Corporation,
- ---------------------------------- General Partner
Witness Dennis J. Kovach
(printed)
/s/ Robert C. Kiger By: /s/ David J. Glimcher
- ---------------------------------- -------------------------------------
Witness Robert C. Kiger David J. Glimcher, President
--------------------------
(printed)
STATE OF OHIO
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this 15th day of
May, 1997, by David J. Glimcher, President of Glimcher Properties Corporation,
the general partner of Glimcher Properties Limited Partnership, on behalf of the
limited partnership.
/s/ Robert C. Kiger
---------------------------------
Notary Public
Commission
Expiration:
This instrument prepared by:
Robert C. Kiger, Attorney at Law
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street, Suite 3100
Columbus, Ohio 43215
The Huntington National Bank
Commercial Real Estate Group
1995 Revision
15
<PAGE> 17
EXHIBIT A
LEGAL DESCRIPTION
PARCEL I:
Lot 1, PLAZA VISTA MALL, according to Book 12 of Maps, Page 84, records of
Cochise County, Arizona.
PARCEL II:
Lot 5, PLAZA VISTA MALL. according to Book 12 of Maps, Page 84, records of
Cochise County, Arizona.
PARCEL III:
That portion of Lot 6, PLAZA VISTA MALL, according to Book 12 of Maps, Page 84,
records of Cochise County, Arizona, more particularly described as follows:
BEGINNING at the Northeast corner of said Lot 6;
Thence South 00(degree) 15' 31" West, coincident with the Easterly line of said
Lot 6, a distance of 23.63 feet;
thence South 44(degree) 44' 29" East, coincident with the Easterly line of said
Lot 6, a distance of 19.58 feet;
thence South 89(degree) 55' 53" West, a distance of 296.55 feet;
thence North 00(degree) 04' 07" West, a distance of 20.25 feet to a point on the
Northerly line of said Lot 6;
thence South 89(degree) 44' 29" East, coincident with the Northerly line of said
Lot 6, a distance of 43.00 feet;
thence North 00(degree) 04' 07" West, coincident with the line of said Lot 6, a
distance of 17.55 feet;
thence North 89(degree) 55' 53" East, coincident with the Northerly line of said
Lot 6, a distance of 239.92 feet to the POINT OF BEGINNING.
continued...
<PAGE> 18
LEGAL DESCRIPTION, CONTINUED...
PARCEL IV:
TOGETHER WITH drainage easement as created in Document No. 8803-04595, 45.00
feet wide, lying 22.50 feet on each side of the following described centerline,
being a portion of Section 31, Township 21 South, Range 21 East of the Gila and
Salt River Base and Meridian, Cochise County, Arizona, described as follows:
COMMENCING at the West quarter corner of the said Section 31;
thence North 89(degree) 55' 53" East, along the East-West mid-section line, a
distance of 113.07 feet to a point on the East right-of-way line of Arizona
State Highway 90;
thence South 00(degree) 15' 31" West along the said right-of-way line, a
distance of 1,158.95 feet to the Northerly right-of-way line of Charleston Road;
thence along said right-of-way the following courses and distances:
South 89(degree) 45' 33" East, 900.00 feet;
North 00(degree) 14' 27" East, 50.00 feet;
South 89(degree) 45' 33" East, 100.00 feet;
South 00(degree) 14' 27" West, 50.00 feet;
South 89(degree) 45' 33" East, 322.50 feet be the POINT OF BEGINNING;
thence North 00(degree) 15' 31" East, 280.00 feet, the terminus of the said
centerline.
<PAGE> 1
EXHIBIT 10.11
<PAGE> 2
MISSOURI
- --------
DEED OF TRUST, ASSIGNMENT OF RENTS
----------------------------------
AND SECURITY AGREEMENT
----------------------
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (herein
"Instrument") is made this 15th day of May, 1997, between the Mortgagor,
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware Limited Partnership whose
mailing address is 20 South Third Street, Columbus, Ohio 43215-3602 (herein
"Borrower"), the Trustee, William A. Denney, whose mailing address is 2600 Grand
Avenue, Kansas City, Missouri 64108 (herein "Trustee") and the Mortgagee, THE
HUNTINGTON NATIONAL BANK, a national banking association, having an office at 41
South High Street, Columbus, Ohio 43215 , as Administrative Agent for KeyBank
National Association, The Huntington National Bank and certain other banks who
are or may hereafter become signatories to a certain Second Amended and Restated
Loan Agreement, dated May 15, 1997, by and among The Huntington National Bank,
KeyBank National Association, the other banks signatory thereto, Glimcher
Properties Limited Partnership, Glimcher Realty Trust and Glimcher Properties
Corporation (the "Loan Agreement"). The Huntington National Bank in its capacity
as Administrative Agent is hereinafter referred to as "Huntington".
WHEREAS, pursuant to the Loan Agreement, the provisions of which are
made a part hereof, Borrower has agreed to borrow, on a revolving credit basis,
up to a maximum principal indebtedness of One Hundred Ninety Million and No/100
Dollars ($190,000,000.00), which indebtedness will be advanced from time to time
after the date hereof, partially repaid and readvanced prior to the maturity
date; and
WHEREAS, the indebtedness is or will be evidenced by Borrower's
promissory notes and letter of credit reimbursement agreements executed from
time to time (herein "Notes") in the aggregate principal amount of One Hundred
Ninety Million and No/100 Dollars ($190,000,000.00), with the balance of the
indebtedness, if not sooner paid, due and payable on July 31, 1998; and
IN CONSIDERATION OF SUCH INDEBTEDNESS AND THE TRUST HEREIN CREATED AND
TO SECURE TO LENDER (a) the repayment of the indebtedness evidenced by the
Notes, with interest thereon, and all renewals, extensions and modifications
thereof; (b) the repayment of the indebtedness evidenced by other notes issued
from time to time pursuant to the Loan Agreement; (c) the performance of the
covenants and agreements of Borrower contained in the Loan Agreement; (d) the
payment of all other sums with interest thereon advanced in accordance herewith
to protect the security of this Instrument; and (e) the performance of the
covenants and agreements of Borrower contained herein, Borrower does hereby
irrevocably grant, bargain and sell, convey, grant a security interest in and
confirm to Trustee, in trust, with power of sale, the following described
property:
The property is described on Exhibit "A" attached hereto and
incorporated herein by reference.
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,
<PAGE> 3
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 Property IN TRUST for the benefit of
Huntington, its successors and assigns, forever, for the purposes and uses
herein set forth.
Borrower covenants that Borrower is lawfully seized of the estate
hereby conveyed and has the right to mortgage, grant, convey and assign the
Mortgaged Property, that the Mortgaged Property is unencumbered except for the
lien of this Instrument; the lien of real estate taxes and assessments not yet
due; the rights of tenants in possession under leases and other matters and
encumbrances approved by Huntington for inclusion in the lender's policy of
title insurance issued by Chicago Title Insurance Company insuring the lien of
this Instrument (the "Permitted Exceptions"), and that Borrower will warrant and
defend generally the title to the Property against all claims and demands,
whatsoever, except for those items set forth above.
THIS INSTRUMENT SECURES FUTURE ADVANCES AND OTHER FUTURE
OBLIGATIONS INCLUDING, WITHOUT LIMITATION, THE STATED PRINCIPAL
INDEBTEDNESS OF $190,000,000.00. THIS INSTRUMENT IS TO BE GOVERNED BY MO.
REV. STAT. SECTION 443.055.
The Notes, the Loan Agreement, this Instrument, the other notes issued
from time to time pursuant to the Loan Agreement, the Reimbursement Agreements,
and any other document evidencing or securing or guaranteeing the indebtedness
secured hereby are hereinafter collectively referred to as ("Loan Documents").
Borrower and Huntington covenant and agree as follows:
1. TITLE. Borrower represents that it has good and marketable
title in fee simple to the Mortgaged Property, except for rights of tenants in
possession under leases, current real estate taxes and assessments and other
matters and encumbrances approved by Huntington for inclusion in the lender's
policy of title insurance issued by Chicago Title Insurance Company insuring the
lien of the Mortgage (the "Permitted Exceptions"). 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
<PAGE> 4
2. FURTHER ASSURANCES. Borrower, upon the request of Huntington, shall
execute, acknowledge, deliver, file and record such further instruments and do
such further acts as may be necessary, desirable or proper to carry out the
purposes of the Loan Documents and to subject to the liens and security
interests created thereby any property intended by the terms thereof to be
covered thereby, including specifically, but without limitation, any renewals,
additions, substitutions, replacements, improvements or appurtenances to the
Mortgaged Property.
3. SUBROGATION FOR FURTHER SECURITY. Huntington shall be subrogated for
its further security to the lien, although released of record, of any and all
encumbrances paid with any advance of Indebtedness; provided, however, that the
terms and provisions hereof shall govern the rights and remedies of Huntington
and shall supersede the terms, provisions, rights, and remedies under the lien
or liens to which Huntington is subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Huntington, which consent may be withheld in Huntington's
sole discretion, Borrower shall not (a) sell, assign, mortgage, pledge, 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
upon request, will provide evidence of the payment thereof to Huntington;
provided that Borrower, at Borrower's own cost and expense may, if it shall in
good faith so desire, contest the validity or amount of any Impositions, in
which event Borrower may defer the payment thereof for such period as such
contest shall be actively prosecuted and shall be pending undetermined; further
provided, however, that Borrower shall not allow any such Impositions so
contested to remain unpaid for such length of time as shall permit all or any
portion of the Mortgaged Property, or the lien thereon created by such item, to
be sold by federal, state, county or municipal authority for the nonpayment
thereof. Pending any such contest, Borrower shall maintain adequate book
reserves with respect to such Impositions being contested.
In the event that one or more of the Impositions on Huntington's
interest in the Mortgaged Property, the Mortgage or the Indebtedness cannot be
lawfully paid by Borrower, then the Mortgaged Property shall be withdrawn from
the Collateral Pool (as such team is defined in the Loan Agreement). In the
event the withdrawal of the Mortgaged Property from the Collateral Pool causes
Borrower not to be in compliance with the required loan to value ratio under the
Loan Agreement, Borrower may either furnish substitute property, as provided in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
8. INSURANCE AND INDEMNIFICATION. Borrower shall provide, maintain and
keep in force at all times the following policies of insurance:
3
<PAGE> 5
(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.
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 loss payee. 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 policies, or 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.
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,
4
<PAGE> 6
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.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Borrower, and used
by Borrower to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Borrower should elect option (ii) above, if a material decrease in the
fair market value of the Mortgaged Property is indicated, Huntington shall be
entitled, at its option, to cause the Mortgaged Property to be reappraised at
Borrower's expense to satisfy itself of continued compliance by Borrower with
the loan to value ratio required by the Loan Agreement. In the event the results
of such reappraisal causes Borrower not to be in compliance with the required
loan to value ratio, Borrower may either furnish substitute property, as
provided for in Section 7 of the Loan Agreement, or pay down the Indebtedness in
an amount which will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Huntington as escrow agent for the purpose of repairing, restoring or
reconstructing the Improvements. Such proceeds shall be disbursed by Huntington
as work progresses, provided that prior to any disbursement, Huntington is in
receipt of proof reasonably satisfactory to it that: (i) the work has been
completed, (ii) there are no outstanding mechanics liens or materialmen's liens,
and (iii) that all charges, costs and expenses incurred with respect to work
completed have been paid in full or will be paid in full with such proceeds.
Prior to the release of any proceeds, Huntington must be satisfied that repair,
restoration or reconstruction of the damaged or destroyed Improvements will 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 and the plans and specifications therefor must be approved by Huntington.
In the event Huntington believes it is necessary in order to establish value,
Huntington may, at its option, cause the Mortgaged Property to be reappraised at
Borrower's expense. All insurance proceeds shall be payable to Huntington. The
adjustment of such insurance proceeds with the carrier must be approved by
Huntington.
5
<PAGE> 7
Anything in this Section 8 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Huntington, be applied by Huntington to the
Indebtedness in such order as Huntington may determine.
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 in the event
of any other default and Huntington does not then elect to exercise its other
remedies, then Borrower shall, upon request of Huntington, pay to Huntington on
the first day of each month, until the Indebtedness is fully paid, a sum equal
to one-twelfth (1/12) of the known or estimated yearly taxes, assessments,
premiums for such insurance as may be required by the terms hereof 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. Borrower shall have the right to 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, to the extent that the value of same is not diminished. If
Huntington believes that there has been a material decrease in value following
any such removal, demolition, or alteration, it may, at its option, cause the
Mortgaged Property to be reappraised at Borrower's expense.
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
Notes) 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.
6
<PAGE> 8
14. INSPECTION. Any person authorized by Huntington shall have the
right to enter upon and inspect the Mortgaged Property after reasonable notice
to Borrower and during normal business hours. 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 the Mortgaged Property and Improvements are
taken or acquired 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. Such award or payment so received by Huntington shall be applied
to the Indebtedness (whether or not then due and payable).
In the event a portion of the Property Improvements are acquired in any
condemnation proceeding or by the exercise of the right of eminent domain, to
the extent that the damage to the Property or improvements is in the amount of
$500,000.00 or less, and provided there is no Event of Default, as hereinafter
defined, the proceeds of any such condemnation or eminent domain award shall be
paid to Borrower, who shall use such proceeds as provided for in paragraph 8
hereof with respect to the disbursement of insurance proceeds where the damage
or destruction is in an amount of $500,000.00 or less. The provisions of
paragraph 8 with respect to reappraisal and substitute property where there is
damage or destruction in an amount of $500,000.00 or less shall apply as if
fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with Huntington as escrow agent for the purpose of
repairing, restoring, or reconstructing the Improvements and/or Property, and
shall be disbursed by Huntington in accordance with the provisions of paragraph
8 hereof with respect to the disbursement of insurance proceeds, where the
damage or destruction is in an amount of $500,000.00 or greater. The conditions
to disbursement, including the requirement that Huntington be satisfied that the
repaired or restored Improvements would be equal in size, quality and value to
those which existed previously, and the right to cause the Mortgaged Property to
be reappraised, as provided for where there is damage or destruction of
$500,000.00 or greater, shall be applicable as if fully rewritten.
Anything in this Section 16 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Huntington, be
applied by Huntington to the Indebtedness in such order as Huntington may
determine.
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
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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 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) Borrower shall not collect Rents more than sixty
(60) days prior to accrual.
(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 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 Notes, 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
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(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 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 Notes.
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
Missouri (the "UCC") for any of the Mortgaged Property comprising personal
property and fixtures which may be subject to a security interest pursuant to
the UCC, and Borrower hereby grants to Huntington a security interest in said
personal property and fixtures, whether said property is now existing or
hereafter acquired, together with replacements, replacement parts, additions,
repairs and accessories incorporated therein or affixed thereto and, if sold or
otherwise disposed of, the proceeds (including insurance proceeds) thereof.
Borrower agrees to execute and deliver to Huntington UCC financing statements
covering said personal property and fixtures from time to time and in such form
as Huntington may require to perfect or maintain the priority of Huntington's
security interest with respect to said personal property and fixtures. 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 Loan Agreement, which meaning is incorporated by this reference
herein.
Upon the occurrence of any such Event of Default beyond any applicable
cure period, at the option of Huntington, without notice or demand, the same
being hereby expressly waived, the entire amount shall become immediately due
and payable, and, in addition to any other right or remedy which Huntington may
now or hereafter have at law, in equity, or under the Loan Documents, Huntington
shall have the right and power: (a) to foreclose upon the Mortgage and the lien
hereof; (b) to sell the Mortgaged Property according to law; and (c) to enter
upon and take possession of the Mortgaged Property and/or have a receiver
appointed therefor as set forth in Section 17 hereof.
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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 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 Notes,
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, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
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
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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 Notes and all subsequent holders of the Mortgage,
their respective successors and assigns, their respective officers, directors,
employees, agents, representatives, contractors and subcontractors and any
subsequent owner of the Property and Improvements who acquires title thereto
from or through Huntington.
(iv) "Release" has the same meaning as given to that
term in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, ET SEQ.) and the regulations
promulgated thereunder.
(b) Borrower represents and warrants to Huntington that, to its
knowledge after due investigation: (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
reasonably required by Huntington and, in accordance with all Environmental
Laws, all removal and other remedial actions necessary to
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contain, remove and clean up all Hazardous Substances that are determined to be
present at the Property and Improvements in violation of any Environmental Laws.
(v) Huntington shall have the right, but not the
obligation, to cure any violation by Borrower of the Environmental Laws and
Huntington's cost and expense to so cure shall be secured by the Mortgage.
(d) Borrower covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Indemnitee
arising out of the condition, ownership, use, operation, sale, transfer or
conveyance of the Property and Improvements and (i) the storage, treatment
generation, transportation, processing, handling, production or disposal of any
Hazardous Substance, (ii) the presence of any Hazardous Substance or a Release
of any Hazardous Substance or the threat of such a Release, (iii) human exposure
to any Hazardous Substance, (iv) a violation of any Environmental Law, or (v) a
material misrepresentation or inaccuracy in any representation or warranty or
material breach of or failure to perform any covenant made by Borrower herein
(collectively, the "Indemnified Matters").
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 Notes, 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 Notes 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 Notes 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;
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(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 Notes.
26. BUSINESS PURPOSE. Borrower covenants that the proceeds of the loan
and secured by this Instrument will be used for business purposes as specified
in Section 408.015(2) of the Revised Statutes of Missouri, as amended, and that
the principal obligation secured hereby constitutes a business loan which comes
within the purview of said Section.
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: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
If to Huntington: The Huntington National Bank
Commercial Real Estate Group
41 South High Street
Columbus, Ohio 43215
Attention: Carol G. Smith, Vice President
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.
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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.
29. LOAN ADVANCES. This Instrument shall secure unpaid balances of loan
advances which Lender is obligated to make, either before or after or both
before and after, this Instrument is delivered to the Recorder for record
pursuant to the provisions of the Loan Agreement and unreimbursed payments under
letters of credit which Lender is obligated to issue both before after this
Instrument is delivered to the Recorder for record. The maximum amount of the
unpaid principal balance of said obligatory loan advances and unreimbursed
payments under letters of credit, in the aggregate and exclusive of interest
accrued thereon, which may be outstanding at any time is $190,000,000.00.
30. SUBSTITUTE TRUSTEE. Huntington's option, may from time to time
remove Trustee and appoint a successor trustee to any Trustee appointed
hereunder by an instrument recorded in the county in which this Deed of Trust is
recorded. Without conveyance of the Property, the successor trustee shall
succeed to all the title, power and duties conferred upon the Trustee herein and
by applicable law.
IN WITNESS WHEREOF, Borrower has caused the Mortgage to be executed
this 15th day of May, 1997.
Signed and acknowledged Borrower:
in the presence of: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
/s/ Dennis J. Kovach By: Glimcher Properties Corporation,
- --------------------------------- a Delaware corporation,
Witness Dennis J. Kovach its sole General Partner
-------------------------
(printed)
/s/ Robert C. Kiger By: /s/ David J. Glimcher
- --------------------------------- -----------------------------
Witness Robert C. Kiger David J. Glimcher, President
-------------------------
(printed)
THE CORPORATION HAS NO SEAL
STATE OF OHIO,
):ss
COUNTY OF FRANKLIN,
On this 15th day of May, 1997, before me, appeared David J. Glimcher to
me personally known, who being by me duly sworn, did say that he is the
President of Glimcher Properties Corporation, a Delaware corporation, the
General Partner of GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership, and that said instrument was signed and sealed on behalf of said
corporation by authority of its Board of Directors as the General Partner of
said limited partnership, and said David J. Glimcher acknowledged said
instrument to be the free act and deed of said corporation as the General
Partner of said limited partnership and to be the free act and deed of said
limited partnership. The corporation has no seal.
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in Columbus, Ohio, the day and year first above written.
/s/ Robert C. Kiger
---------------------------------
Notary Public
This instrument prepared by:
Robert C. Kiger, Attorney at Law
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street, #3100
Columbus, Ohio 43215
The Huntington National Bank
Commercial Real Estate Group
COLUMBUS/140710.02
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EXHIBIT A
LEGAL DESCRIPTION
A tract of land lying in the West One-Half (W 1/2) of the Northwest Quarter (NW
1/4), and part of Lot One (1), in Hubbard's Subdivision in the East Half (E 1/2)
of the Northwest Quarter (NW 1/4), Section Thirty (30), Township Fifty-Seven
(57) North, Range Four (4) West, in the City of Hannibal Marion County,
Missouri, and being more fully described as follows: From a point marking the
Northeast corner of the West One-Half (W 1/2) of the Northwest Quarter (NW 1/4)
of Section Thirty (30); thence run South along the East line of the West
One-Half (W 1/2) of the Northwest Quarter (NW 1/4), 541.2 feet to an iron pipe
on the South right of way line of West Ely Road; thence North 85(degree) and 39'
West along said South line of West Ely Road; 31.34 feet to an iron pipe on the
South line of said West Ely Road, and said iron pipe marking the true point of
beginning; thence South 02(degree) and 47' East along the West side of West Ely
Creek, 51.9 feet to an iron pipe; thence South 18(degree) and 37' East along the
West side of said West Ely Creek, 90.2 feet to an iron pipe; thence South
12(degree) and 17' East along the West side of said West Ely Creek, 215.20 feet
to an iron pipe, thence South 57(degree) and 13' East along the West side of
said West Ely Creek, 63.35 feet to a right of way marker on the Westerly right
of way line of U.S. Route 61; thence South 34(degree) and 03' East along the
Westerly right of way line of said U.S. Route 61 a distance of 75.52 feet to an
iron pipe; thence South 33(degree) and 57' East along the Westerly right of way
line of said U.S. Route 61, a distance of 16.70 feet to a right of way marker;
thence South 03(degree) and 51' East along the Westerly right of way line of
said U.S. Route 61, a distance of 273.20 feet to an iron pipe; thence South
89(degree) and 44' West, 169.16 feet to an iron pipe; thence South 00(degree)
and 00' West, 150.00 feet to a point in the center of Minnow Branch; thence
North 54(degree) and 00' West along the centerline of said Minnow Branch, 190.00
feet to a point; thence North 58(degree) and 00' West along the centerline of
said Minnow Branch, 258.00 feet to a point on the West property line; thence
North 00(degree) and 00' East, 659.30 feet to an iron pipe on the South line of
West Ely Road; thence South 85(degree) and 39' East along the South line of West
Ely Road, 342.88 feet to the point of beginning. With the above described
subject to an easement heretofore conveyed to the City of Hannibal for utility
purposes.
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