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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)
September 29, 1998 (June 19, 1998)
----------------------------------
GLIMCHER REALTY TRUST
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Maryland 1-12482 31-1390518
- --------------------------------------------------------------------------------
(STATE OR OTHER JURISDICTION OF (COMMISSION (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) FILE NUMBER) IDENTIFICATION NO.)
20 South Third Street, Columbus, Ohio 43215
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code (614) 621-9000
-----------------------------
- --------------------------------------------------------------------------------
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On September 15, 1998, Glimcher Lloyd Venture, LLC, a Delaware
limited liability company of which the managing member is a wholly owned
subsidiary of Glimcher Realty Trust (the "Company") and of which the only other
member is Glimcher Properties Limited Partnership (the "Operating Partnership")
acquired Lloyd Center Mall ("Lloyd") from SI-Lloyd Associates Limited
Partnership and LGM Partners. Lloyd is located in Portland, Oregon and contains
approximately 1.5 million square feet of gross leasable area. The purchase price
for Lloyd was approximately $166.8 million and was paid in cash. The funds to
pay the purchase price were obtained from the proceeds of (i) a loan of $130.0
million made by Archon Financial, L.P., secured by a first mortgage lien on
Lloyd, bearing interest at the rate of LIBOR (approximately 5.59% at September
15, 1998), plus 125 basis points per annum with a maturity in October 2001, (ii)
a bridge loan of $10.0 million, bearing interest at the rate of LIBOR
(approximately 5.59% at September 15, 1998), plus 550 basis points per annum
with a maturity in November 1998 and (iii) the borrowing of approximately $36.8
million under the Operating Partnership's credit facility which currently bears
interest at a rate of LIBOR plus 160 basis points per annum.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Included herewith are the following financial statements of Lloyd
(and the Independent Accountants' Report thereon).
- Statement of Revenues and Certain Expenses for the year ended
December 31, 1997 and the six months ended June 30, 1998.
(b) Pro Forma Financial Information
Included herewith are an unaudited Pro Forma Consolidated Balance
Sheet as of June 30, 1998, and the unaudited Pro Forma
Consolidated Statements of Operations for the six months ended
June 30, 1998 and the year ended December 31, 1997, for Glimcher
Realty Trust.
(c) Exhibits
10.1 Promissory Note dated as of September 15, 1998 issued by
Glimcher Lloyd Venture, LLC, in the amount of one hundred thirty
million dollars ($130,000,000).
10.2 Fee And Leasehold Deed Of Trust, Security Agreement, Assignment Of
Leases And Rents And Fixture Filing by Glimcher Lloyd Venture,
LLC, to Chicago Title Insurance Company of Oregon, as Trustee, and
Archon Financial, L.P., as Beneficiary, dated as of September 15,
1998.
23. Consent of Independent Accountants
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Date: September 29, 1998
GLIMCHER REALTY TRUST
By: /s/ William G. Cornely
---------------------------------------------
William G. Cornely,
Senior Executive Vice President, Chief
Operating Officer and Chief Financial Officer
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REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Trustees
and Shareholders of
Glimcher Realty Trust
We have audited the statement of revenues and certain expenses of Lloyd
Center Mall for the year ended December 31, 1997. This financial statement is
the responsibility of Lloyd Center Mall's management. Our responsibility is to
express an opinion on this financial statement based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and the significant estimates made by
management, as well as evaluating the overall presentation of the financial
statements. We believe that our audit provides a reasonable basis for our
opinion.
The accompanying statement of revenues and certain expenses, as
described in Note 1, was prepared for the purpose of complying with the rules
and regulations of the Securities and Exchange Commission for inclusion in a
Form 8-K of Glimcher Realty Trust. The statement of revenues and certain
expenses is not intended to be a complete presentation of Lloyd Center Mall's
revenues and expenses.
In our opinion, the financial statement referred to above presents
fairly, in all material respects, the revenues and certain expenses as described
in Note 1 of Lloyd Center Mall for the year ended December 31, 1997, in
conformity with generally accepted accounting principles.
COOPERS & LYBRAND L.L.P.
Columbus, Ohio
May 27, 1998
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<TABLE>
LLOYD CENTER MALL
STATEMENT OF REVENUES AND CERTAIN EXPENSES
FOR THE YEAR ENDED DECEMBER 31, 1997 AND THE SIX
MONTHS ENDED JUNE 30, 1998 (UNAUDITED)
(DOLLARS IN THOUSANDS)
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED
DECEMBER 31, JUNE 30,
1997 1998
------------ -----------
(UNAUDITED)
<S> <C> <C>
Revenues:
Minimum rents ..................................... $12,808 $ 6,631
Percentage rents .................................. 1,740 214
Tenant recoveries ................................. 6,820 3,668
Other ............................................. 1,889 767
------- -------
23,257 11,280
------- -------
Certain expenses:
Real estate taxes ................................. 2,262 1,118
Recoverable operating expenses .................... 5,498 2,970
Other operating expenses .......................... 1,308 475
------- -------
9,068 4,563
------- -------
Revenues in excess of certain expenses....... $14,189 $ 6,717
======= =======
</TABLE>
The accompanying notes are an integral part of the financial statement.
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LLOYD CENTER MALL
NOTES TO THE STATEMENT OF REVENUES AND CERTAIN EXPENSES
(DOLLARS IN THOUSANDS)
1. BUSINESS AND BASIS OF PRESENTATION
The accompanying financial statement is not representative of the
actual operations for the periods presented as certain expenses, which may not
be comparable to the expenses expected to be incurred in the proposed future
operations of Lloyd Center Mall, ("Lloyd"), have been excluded. Management of
Lloyd is not aware of any material factors relating to Lloyd that would cause
the reported financial information not to be indicative of future operating
results. Expenses excluded consist of interest, depreciation and amortization,
management fees and other costs not directly related to the future operations of
Lloyd.
The preparation of the financial statement in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions. For example, estimates are used to establish tenant recoveries,
rents, property operating expenses, real estate taxes and provisions for
accounts receivable. Actual results could differ from those estimates.
The accompanying interim unaudited statement of revenues and certain
expenses for the six months ended June 30, 1998, has been prepared pursuant to
the rules and regulations of the Securities and Exchange Commission. Certain
information and footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles have been
omitted pursuant to such rules and regulations, although management believes
that the disclosures are adequate to make the information presented not
misleading. In the opinion of management, all adjustments consisting only of
normal recurring adjustments, necessary to present fairly the statement of
revenues and certain expenses of Lloyd for the six months ended June 30, 1998,
have been included. The results of operations for interim periods are not
necessarily indicative of the results for the full year.
2. OPERATING LEASES
Minimum rents contain straight-line adjustments for rental revenue in
accordance with generally accepted accounting principles. The net rental revenue
increase resulting from straight-line adjustments for the year ended December
31, 1997 was $113. No rental payments from individual tenants represented 10% or
more of the total rents for any period presented.
Lloyd provides for doubtful accounts representing that portion of
accounts receivable which is estimated to be uncollectible and has provided $32
for the year ended December 31, 1997, in other operating expenses.
Lloyd is leased to tenants under operating leases with expiration dates
extending to the year 2017. Future minimum rents do not include amounts which
may be received from certain tenants based upon a percentage of their gross
sales or as a reimbursement of operating expense. Future minimum rents under
non-cancelable leases for the year ending December 31, are approximately as
follows:
1998.................................. $12,632
1999.................................. 12,523
2000.................................. 12,051
2001.................................. 8,589
2002.................................. 5,995
Thereafter.............................. 19,370
-------
$71,160
=======
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<TABLE>
GLIMCHER REALTY TRUST
PRO FORMA CONSOLIDATED BALANCE SHEET
AS OF JUNE 30, 1998
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT SHARE AND PAR VALUE AMOUNTS)
ASSETS
<CAPTION>
GLIMCHER
GLIMCHER REALTY TRUST
REALTY CONSOLIDATED
TRUST ADJUSTMENTS PRO FORMA
----- ----------- ---------
(A)
<S> <C> <C> <C>
Investment in real estate:
Land ...................................................................... $ 105,357 $ 51,918 (B) $ 157,275
Buildings, improvements and equipment ..................................... 1,027,629 116,431 (B) 1,144,060
Developments in progress:
Land ................................................................... 5,608 5,608
Developments ........................................................... 4,710 4,710
---------- -------- ----------
1,143,304 168,349 1,311,653
Less accumulated depreciation ............................................. 119,816 119,816
---------- -------- ----------
Net investment in real estate .......................................... 1,023,488 168,349 1,191,837
Cash and cash equivalents ................................................... 1,624 1,624
Cash in escrow .............................................................. 6,303 2,747 (C) 9,050
Investment in and advances to unconsolidated entities ....................... 209,177 209,177
Tenant accounts receivable, net ............................................. 25,298 25,298
Deferred expenses, net ...................................................... 8,702 1,686 (C) 10,388
Prepaid and other assets .................................................... 17,721 35 (B) 17,756
---------- -------- ----------
$1,292,313 $172,817 $1,465,130
========== ======== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Mortgage notes payable ...................................................... $ 576,354 $130,000 (C) $ 706,354
Notes payable ............................................................... 145,918 41,619 (C) 187,537
Accounts payable and accrued expenses ....................................... 24,414 1,198 (B) 25,612
Distributions payable ....................................................... 17,719 17,719
---------- -------- ----------
764,405 172,817 937,222
Commitments and contingencies
Minority interest in operating partnership .................................. 34,916 34,916
Redeemable preferred shares:
Series A-1 and Series D convertible preferred shares of beneficial
interest, $0.01 par value, 90,000 shares issued and outstanding
as of June 30, 1998 and December 31, 1997, respectively ................ 90,000 90,000
Shareholders' equity:
Series B cumulative redeemable preferred shares of beneficial
interest, $0.01 par value, 5,118,000 shares issued and outstanding...... 127,950 127,950
Common shares of beneficial interest $0.01 par value, 23,695,247 and
23,669,960 shares issued and outstanding as of June 30, 1998 and
December 31, 1997, respectively ........................................ 237 237
Additional paid-in capital ................................................ 353,037 353,037
Distributions in excess of accumulated earnings ........................... (78,232) (78,232)
---------- -------- ----------
$1,292,313 $172,817 $1,465,130
========== ======== ==========
</TABLE>
The accompanying notes are an integral part of these
pro forma consolidated financial statements.
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<TABLE>
GLIMCHER REALTY TRUST
PRO FORMA CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1998
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<CAPTION>
GLIMCHER
GLIMCHER REALTY TRUST
REALTY CONSOLIDATED
TRUST LLOYD ADJUSTMENTS PRO FORMA
----- ------ ----------- ---------
(A) (B)
<S> <C> <C> <C> <C>
Revenues:
Minimum rents..................................... $59,892 $6,631 $66,523
Percentage rents.................................. 1,841 214 2,055
Tenant recoveries................................. 14,802 3,668 18,470
Other............................................. 3,319 767 4,086
------- ------ -------
Total revenues.................................. 79,854 11,280 91,134
------- ------ -------
Operating expenses:
Real estate taxes................................. 7,360 1,118 8,478
Recoverable operating expenses..................... 8,942 2,970 11,912
------- ------ -------
16,302 4,088 20,390
Other operating expenses 1,388 475 1,863
------- ------ -------
Total operating expenses........................ 17,690 4,563 22,253
------- ------ -------
Depreciation and amortization.......................... 16,355 $ 1,736 (C) 18,091
General and administrative............................. 4,508 4,508
Gain on sales of property/outparcels...................
Interest income........................................ 1,234 1,234
Interest expense....................................... 20,197 6,251 (D) 26,448
Equity in income (loss) of unconsolidated entities..... (1,155) (1,155)
Minority interest in operating partnership............. 1,270 (142)(E) 1,128
------- ------ ------- -------
Net income...................................... 19,913 6,717 (7,845) 18,785
Preferred stock dividends.............................. 9,802 9,802
------- ------ ------- -------
Net income available to common shareholders..... $10,111 $6,717 $(7,845) $ 8,983
======= ====== ======= =======
Earnings per share diluted............................. $ 0.43 $ 0.38 (F)
======= =======
Cash distributions declared per common share of
beneficial interest................................ $0.9616 $0.9616
======= =======
</TABLE>
The accompanying notes are an integral part of these
pro forma consolidated financial statements.
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<TABLE>
GLIMCHER REALTY TRUST
PRO FORMA CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1997
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<CAPTION>
GLIMCHER
GLIMCHER REALTY TRUST
REALTY CONSOLIDATED
TRUST LLOYD ADJUSTMENTS PRO FORMA
----- ------- ----------- ---------
(A) (B)
<S> <C> <C> <C> <C>
Revenues:
Minimum rents..................................... $107,895 $12,808 $120,703
Percentage rents.................................. 3,499 1,740 5,239
Tenant recoveries................................. 24,186 6,820 31,006
Other............................................. 4,558 1,889 6,447
-------- ------- --------
Total revenues.................................. 140,138 23,257 163,395
-------- ------- --------
Operating expenses:
Real estate taxes................................. 10,868 2,262 13,130
Recoverable operating expenses..................... 15,515 5,498 21,013
-------- ------- --------
26,383 7,760 34,143
Other operating expenses........................... 3,165 1,308 4,473
-------- ------- --------
Total operating expenses........................ 29,548 9,068 38,616
-------- ------- --------
Depreciation and amortization.......................... 27,869 $ 3,470 (C) 31,339
General and administrative............................. 8,286 8,286
Gain on sale of property............................... 155 155
Interest income........................................ 1,032 1,032
Interest expense....................................... 42,146 12,532 (D) 54,678
Equity in income (loss) of unconsolidated entities..... (661) (661)
Minority interest in operating partnership............. 3,022 (180)(E) 2,842
-------- ------- -------- --------
Net income...................................... 29,793 14,189 (15,822) 28,160
Preferred stock dividends.............................. 4,705 4,705
-------- ------- -------- --------
Net income available to common shareholders..... $ 25,088 $14,189 $(15,822) $ 23,455
======== ======= ======== ========
Earnings per share diluted............................. $ 1.12 $ 1.05 (F)
======== ========
</TABLE>
The accompanying notes are an integral part of these
pro forma consolidated financial statements.
9
<PAGE> 10
NOTES AND MANAGEMENT'S ASSUMPTIONS TO
THE PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
(UNAUDITED)
1. BASIS OF PRESENTATION
The accompanying unaudited pro forma consolidated balance sheet is
presented as if the acquisition of Lloyd occurred as of June 30, 1998.
The accompanying unaudited pro forma consolidated statements of
operations are presented as if the acquisition of Lloyd had been made as of
January 1, 1997.
These pro forma financial statements should be read in conjunction with
the historical financial statements and notes thereto of Glimcher Realty Trust
(the "Company"), and Lloyd. In management's opinion, all adjustments necessary
to reflect the effects of the acquisition of Lloyd have been made.
The unaudited pro forma consolidated financial statements are not
necessarily indicative of what the actual financial position would have been as
of June 30, 1998, or what the actual results of operations of the Company would
have been assuming the acquisition of Lloyd had been completed as of January 1,
1997, nor do they purport to represent the results for future periods.
2. ADJUSTMENTS TO PRO FORMA CONSOLIDATED BALANCE SHEET
(A) Reflects the balance sheet of the Company as of June 30, 1998.
(B) Reflects the allocation of the purchase price of $168,349 to land,
buildings, improvements and equipment and certain accrued expenses.
(C) Reflects the placement of a new mortgage note payable of $130,000, a
bridge loan of $10,000 the net increase in the Company's credit facility and
related financing costs associated with the acquisition of Lloyd.
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NOTES AND MANAGEMENT'S ASSUMPTIONS TO
THE PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
(UNAUDITED)
3. ADJUSTMENTS TO PRO FORMA CONSOLIDATED STATEMENTS OF OPERATIONS
(A) Reflects the operations of the Company for the pro forma
periods indicated.
(B) Reflects revenues and certain expenses of Lloyd for the pro
forma periods.
(C) Reflects depreciation and amortization relative to the
purchase of Lloyd.
(D) Reflects the increase in interest expense based upon the
weighted average interest rates for the periods presented, as follows:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED YEAR ENDED
JUNE 30, 1998 DECEMBER 31, 1997
------------- -----------------
<S> <C> <C>
Interest on mortgage note payable - Lloyd... $4,508 $ 9,015
Interest on bridge loan..................... 562 1,124
Interest on the Company's credit facility... 1,181 2,393
------ -------
$6,251 $12,532
====== =======
</TABLE>
(E) Reflects the adjustment in minority interest in operating
partnership as a result of the pro forma adjustments to net income.
(F) Pro forma earnings per diluted share is based upon 26,741,808
and 24,995,415 shares as of June 30, 1998 and December 31, 1997,
respectively.
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GLIMCHER REALTY TRUST
INDEX TO EXHIBITS
EXHIBITS
- --------
10.1 Promissory note dated as of September 15, 1998 issued by Glimcher Lloyd
Venture, LLC, in the amount of one hundred thirty million dollars
($130,000,000).
10.2 Fee And Leasehold Deed Of Trust, Security Agreement, Assignment Of
Leases And Rents And Fixture Filing by Glimcher Lloyd Venture, LLC, to Chicago
Title Insurance Company of Oregon, as Trustee, and Archon Financial, L.P., as
Beneficiary, dated as of September 15, 1998.
23. Consent of Independent Accountants
12
<PAGE> 1
Promissory Note
---------------
$130,000,000.00 September 15, 1998
New York, New York
FOR VALUE RECEIVED, the undersigned, GLIMCHER LLOYD VENTURE,
LLC, a Delaware limited liability company ("MAKER"), promises to pay to the
order of Archon Financial, L.P., a Delaware limited partnership, its successors
and assigns ("HOLDER"), on or before the Maturity Date at such place as Holder
may from time to time designate in writing, the principal sum of ONE HUNDRED
THIRTY MILLION AND 00/100 DOLLARS ($130,000,000.00) in lawful money of the
United States of America, together with interest thereon, to be computed and
paid as more particularly set forth in the Loan Agreement (as hereinafter
defined).
Except as otherwise defined or limited herein, capitalized
terms used herein shall have the meanings ascribed to them in the Loan Agreement
(the "LOAN AGREEMENT"), dated as of September 15, 1998, by and between Maker and
Holder. This is the Note referred to in the Loan Agreement. The terms of this
Note are hereby supplemented in full by the terms of the Loan Agreement, the
Deed of Trust and the other Loan Documents, including, without limitation, with
respect to Loan repayment and Breakage Costs, Prepayment Premiums, Exit Fees,
Spread Maintenance Premiums, offsets, counterclaims and defenses and expenses of
Lender.
1. PAYMENTS OF PRINCIPAL AND INTEREST
On the date hereof, Maker shall pay an installment of interest
as set forth in Section 2.3.1 of the Loan Agreement.
Commencing with the Payment Date on November 11, 1998, and on
each and every Payment Date thereafter through but excluding the Maturity Date,
Maker shall pay interest at the Applicable Interest Rate on the outstanding
principal balance hereof calculated as more fully set forth in the Loan
Agreement. Interest on the Loan shall be calculated on the basis of the actual
number of days elapsed in the Interest Accrual Period in question in a 360-day
year.
Interest on the principal sum shall begin to accrue on the
date hereof. On the Maturity Date, payment in full of all remaining obligations
of Maker under this Note, the Loan Agreement and the other Loan Documents shall
become due and payable.
Payments made at any time hereon (including payments from the
proceeds of any sale of any Collateral (as hereinafter defined) pursuant to any
of the Loan Documents) shall be applied as provided in the Loan Agreement and
the Deed of Trust. For purposes of this Note, "COLLATERAL" shall mean all
monies, accounts, instruments and other property (including, without limitation,
all rent, revenues, issues, Proceeds, profits, security and other monies payable
or receivable under any Loan Document or with respect thereto and the
after-acquired property clauses thereof) subject or intended to be subject to
the Deed of Trust and the other Loan Documents for the performance by Maker of
its obligations thereunder or hereunder as of any particular time, and the
proceeds of the foregoing.
<PAGE> 2
2. SECURITY FOR THE LOAN.
This Note is issued pursuant to the Loan Agreement, and the
Holder is and shall be entitled to the benefits thereof and remedies provided
therein and the security provided for therein including, without limitation, the
security provided by the Deed of Trust encumbering the Trust Property (as
defined in the Deed of Trust) and the Lien on and security interest in certain
other property described therein, and by other Loan Documents affecting and
granting a Lien on and security interest in other portions of the Collateral,
including but not limited to, the Assignment of Leases and the Assignment of
Agreements.
3. ACCELERATION; PREPAYMENT PREMIUMS.
The Loan Agreement, among other things, contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events, and for the payment of certain prepayment premiums (if the circumstances
require) by Maker upon the terms and conditions therein specified.
4. EVENTS OF DEFAULT.
Upon the occurrence of an Event of Default, the entire
principal sum hereof outstanding, together with accrued interest hereon and all
other fees, premiums, charges, and costs due under the Loan Documents, if any,
shall, at the option of the Holder (unless otherwise specified under the Loan
Agreement), at once become due and payable without notice. Failure to exercise
the aforementioned option shall not constitute a waiver of the right to exercise
the same in the event of any subsequent Event of Default. In addition to
principal and interest, Maker agrees to pay to Holder (i) all costs of
collection incurred by Holder, including reasonable attorneys' fees and
disbursements and (ii) any other payments which may become due under the Loan
Agreement or the other Loan Documents.
5. DEFAULT INTEREST RATE.
Maker does hereby agree that, if an Event of Default shall
have occurred and is continuing, Maker shall pay interest at the Default Rate on
the outstanding amount of the Loan and due but unpaid interest thereon, upon
demand from time to time, to the extent permitted by applicable law.
6. AUTHORITY.
Maker represents that it has full power, authority and legal
right to execute and deliver this Note and to perform its obligations hereunder,
and that this Note constitutes the valid and binding obligation of Maker,
enforceable against Maker in accordance with its terms, except as enforceability
may be limited by (i) applicable bankruptcy, insolvency, reorganization,
2
<PAGE> 3
moratorium, or similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity, regardless of whether
considered in proceedings at law or in equity.
7. NOTICES.
All notices or other communications required or permitted to
be given pursuant hereto shall be given in the manner specified in the Loan
Agreement directed to the parties at their respective addresses as provided
therein.
8. CONSENT TO JURISDICTION; GOVERNING LAW.
(a) THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND
MADE BY MAKER AND ACCEPTED BY HOLDER IN THE STATE OF NEW YORK, AND THE PROCEEDS
DELIVERED PURSUANT HERETO WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE
THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE
UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO NOTES MADE AND PERFORMED IN SUCH STATE AND
ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. IT IS UNDERSTOOD THAT THE
LAW OF THE STATE OF NEW YORK SHALL GOVERN THE VALIDITY AND THE ENFORCEABILITY OF
THIS NOTE AND ALL OF THE INDEBTEDNESS OR OBLIGATIONS ARISING HEREUNDER OR UNDER
ANY OTHER LOAN DOCUMENT (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANOTHER LOAN
DOCUMENT). TO THE FULLEST EXTENT PERMITTED BY LAW, MAKER HEREBY UNCONDITIONALLY
AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER
JURISDICTION GOVERNS THIS NOTE.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST MAKER OR
HOLDER ARISING OUT OF OR RELATING TO THIS NOTE SHALL BE INSTITUTED IN ANY
FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND MAKER WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND MAKER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING. MAKER DOES HEREBY
DESIGNATE AND APPOINT CT CORPORATION SYSTEM WITH OFFICES AT 1633 BROADWAY, NEW
YORK, NEW YORK 10019, OR AT SUCH OTHER OFFICE IN [NEW YORK], NEW YORK, AS ITS
AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL
PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY
FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS
UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR
DELIVERED TO MAKER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED
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<PAGE> 4
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON MAKER, IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. MAKER (I) SHALL GIVE PROMPT
NOTICE TO HOLDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH OFFICE SHALL BE DESIGNATED AS THE
ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A
SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW
YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
9. WAIVER OF JURY TRIAL.
MAKER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY MAKER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
HOLDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING
AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MAKER.
10. SAVINGS CLAUSE.
It is expressly stipulated and agreed to be the intent of
Maker and Holder at all times to comply with applicable state law or applicable
United States federal law (to the extent that it permits Holder to contract for,
charge, take, reserve, or receive a greater amount of interest than under state
law) and that this paragraph shall control every other covenant and agreement in
this Note and the other Loan Documents. If the applicable law (state or federal)
is ever judicially interpreted so as to render usurious any amount called for
under this Note or under any of the other Loan Documents, or contracted for,
charged, taken, reserved, or received with respect to the Debt, or if Holder's
exercise of the option to accelerate the Maturity Date, or if any prepayment
results in Maker having paid any interest in excess of that permitted by
applicable law, then it is Holder's express intent that all excess amounts
theretofore collected by Holder shall be credited on the principal balance of
this Note and all other Debt and the provisions of this Note and the other Loan
Documents immediately be deemed reformed and the amounts thereafter collectible
hereunder and thereunder reduced, without the necessity of the execution of any
new documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder. All
sums paid or agreed to be paid to Holder for the use, forbearance, or detention
of the Debt shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full stated term of the Debt
until payment in full so that the rate or amount of interest on account of the
Debt does not exceed the maximum lawful rate from time to time in effect and
applicable to the Debt for so
4
<PAGE> 5
long as the Debt is outstanding. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, it is not the intention
of Holder to accelerate the maturity of any interest that has not accrued at the
time of such acceleration or to collect unearned interest at the time of such
acceleration.
11. MISCELLANEOUS.
(a) No release of any security for the Debt evidenced hereby
or any Person liable for payment of the Debt evidenced hereby, no extension of
time for payment of the Debt evidenced hereby or any installment hereof, and no
alteration, amendment or waiver of any provision of the Loan Documents made by
agreement between Holder and any other Person or party shall release, modify,
amend, waive, extend, change, discharge, terminate or affect the liability of
Maker or any other Person or party who might be or become liable for the payment
of all or any part of the Debt evidenced hereby, under the Loan Documents,
except as explicitly provided in a writing satisfying the requirements of
paragraph 11(c) hereof.
(b) Maker and all others who may become liable for the payment
of all or any part of the Debt evidenced hereby do hereby severally waive
presentment and demand for payment, notice of dishonor, protest, notice of
protest, notice of non-payment, and notice of intent to accelerate the maturity
hereof and (except as may be expressly provided for in the Loan Documents) of
actual acceleration.
(c) This Note may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the
part of Maker or Holder, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
(d) Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Holder" and "Maker" shall
include their respective successors, assigns, heirs, executors and
administrators as permitted under the Loan Documents.
(e) The provisions of Section 12.24 of the Loan Agreement,
relating to the exculpation of Maker, are hereby incorporated by reference, as
if set forth in full herein.
[signature on next page.]
5
<PAGE> 6
IN WITNESS WHEREOF, Maker has duly executed or has caused its
respective duly authorized officers to execute this Note on its behalf, as of
the day and year first above written.
MAKER: GLIMCHER LLOYD VENTURE, LLC,
a Delaware limited liability company
By: Glimcher Portland, Inc.,
its managing member
By: /s/ George A. Schmidt
-----------------------
George A. Schmidt
Senior Vice President
<PAGE> 7
COUNTY OF NEW YORK )
ss:
STATE OF NEW YORK )
On the 15th day of September, 1998 before me, the undersigned, a notary public
in and for said State, personally appeared George A. Schmidt, personally known
to me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her capacity, and that by his/her signature on
the instrument, the individual, or the person upon behalf of which the
individual acted, executed the instrument.
/s/ Debra Paoli
- ----------------------
Notary Public
<PAGE> 1
After recording please return to:
Schulte Roth & Zabel LLP
900 Third Avenue
New York, New York 10022
Attn: Susan Nemery
FEE AND LEASEHOLD
DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS
AND FIXTURE FILING
Dated as of September 15, 1998
Made by
GLIMCHER LLOYD VENTURE, LLC
as Trustor,
to
CHICAGO TITLE INSURANCE COMPANY OF OREGON
as Trustee,
and
ARCHON FINANCIAL, L.P.,
as Beneficiary.
STATUTORY NOTICE:
A. The address of the entity holding a lien or other interest by
this instrument is:
ARCHON FINANCIAL, L.P.
600 E. Las Colinas Blvd.
Ste. 800, Dallas, Texas 75039
B. The Tax Account Number(s) of the Property subject to the lien
or in which the interest is created are:
R-39620-6590 R-39621-1610
R-39621-3980 R-39621-0170
R-39621-5790 R-39621-1710
R-39621-5960 R-39621-1690
R-39621-1760 R-39621-1500
R-39621-1770
<PAGE> 2
THIS FEE AND LEASEHOLD DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING ("Deed of Trust") is dated as
of September 15, 1998 and is made by GLIMCHER LLOYD VENTURE, LLC, a Delaware
limited liability company, having an address for notices of 20 South Third
Street, Columbus, Ohio 43215, Attention: George A. Schmidt, Senior Vice
President ("Trustor"), in consideration of the premises and covenants
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, to CHICAGO TITLE INSURANCE COMPANY
OF OREGON, the trustee hereunder, having an address at Pioneer Tower, 888 S.W.
Fifth Avenue, Suite 930, Portland, Oregon 97204("Trustee"), for the benefit of
ARCHON FINANCIAL, L.P., a Delaware limited partnership, having an address for
notices of Archon Financial, L.P., 600 E. Las Colinas Blvd., Ste. 800, Dallas,
Texas 75039, Attention: General Counsel ("Beneficiary").
PRELIMINARY STATEMENT
Trustor is concurrently executing and delivering herewith in
favor of Beneficiary a promissory note (the "Note") in the principal amount of
$130,000,000.00 and a Loan Agreement (the "Loan Agreement"), between Beneficiary
and Trustor, each dated as of the date hereof.
Trustor is the owner of the Trust Property (as hereinafter
defined).
Trustor is granting this Deed of Trust in order to secure the
payment of the Debt and to secure the performance by Trustor of the covenants
and agreements contained in this Deed of Trust and the other Loan Documents.
Trustor has duly authorized the execution and delivery of this
Deed of Trust and has taken all actions required by law and all other actions of
Trustor required therefor.
Any capitalized term used but not otherwise defined herein
shall have the meaning given such term in Article 1 hereof and if not defined in
said Article 1 shall have the meaning given such term in the Loan Agreement.
NOW, THEREFORE, in order to secure: (i) payment by Trustor of
the Debt; and (ii) the performance by Trustor of all the covenants and
agreements contained in the Note, this Deed of Trust and the other Loan
Documents as the same may be amended, modified or supplemented to be performed
or observed by or on the part of Trustor (items (i) and (ii) being referred to
herein as the "Secured Obligations"), Trustor and Beneficiary by these presents
do hereby agree as follows:
TRUSTOR HEREBY IRREVOCABLY DEEDS, GRANTS, BARGAINS, SELLS,
PLEDGES, CONVEYS, TRANSFERS, MORTGAGES AND ASSIGNS unto Beneficiary, its
successors and assigns forever, and grants a security interest to Beneficiary
in, all of the following property (such property is hereinafter referred to
collectively as the "Trust Property"):
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<PAGE> 3
A. ALL estate, right, title and interest of Trustor, now owned
or hereafter acquired, in and to (i) those certain tracts or parcels of land as
described in Exhibit A hereto, together with all rights of way or use,
sidewalks, alleys, strips, gores, rights (including rights in streets (including
those vacated or to be vacated), privileges, air rights and development rights,
sewer rights, waters, water courses, water rights and powers, servitudes,
estates, licenses, easements, tenements, hereditaments and appurtenances
incident, belonging or pertaining to such land, including any mineral, mining,
oil and gas rights and rights to produce or share in the production of anything
related thereto and similar or comparable rights of any nature whatsoever now or
hereafter appurtenant) (collectively, the "Land"), (ii) the leasehold estate in
those certain tracts or parcels of land created by those certain ground leases
described in Exhibit B hereto, and all extensions, amendments and modifications
thereto heretofore or hereafter entered into (collectively, the "Leasehold
Estate") and (iii) the buildings, structures, fixtures and improvements now or
hereafter located or placed on or in the Land or the Leasehold Estate (which
buildings and improvements, together with any additions thereto or alterations
or replacements thereof, are referred to as the "Improvements");
B. all machinery, apparatus, equipment, materials, fittings,
fixtures, chattels, articles of personal property and all other property (real,
personal or mixed), and all appurtenances and additions thereto and betterments,
renewals, substitutions and replacements thereof, now or hereafter owned by
Trustor or in which Trustor has or shall acquire an interest (to the extent of
such interest), and now or hereafter located on, attached to or contained in or
used in connection with the Land, the Leasehold Estate or the Improvements, or
placed on any part thereof though not attached thereto, including all indoor and
outdoor furniture, landscaping, indoor plants, tools, screens, awnings, shades,
blinds, curtains, draperies, partitions, carpets, rugs, furniture and
furnishings, heating, lighting, plumbing, water heating, cooking, monitoring,
ventilating, air conditioning, refrigerating, sanitation, waste removal,
incinerating or compacting plants, systems, fixtures and equipment, elevators,
escalators, stoves, ranges, vacuum systems, window washing and other cleaning
systems, call systems, sprinkler systems and other fire prevention and
extinguishing apparatus and materials, alarms, telecommunications,
entertainment, recreational or security systems and equipment, motors,
machinery, pipes, ducts, conduits, dynamos, engines, compressors, generators,
boilers, stokers, furnaces, pumps, tanks, and appliances (collectively,
"Equipment");
C. all personal property now or hereafter located at or used
in connection with the Premises and owned by Trustor;
D. all real estate tax refunds and credits and all awards or
payments, including interest on any of them, and the right to receive the same
which Trustor may have, which may be made with respect to any of the Premises
whether from a Condemnation thereof or for any other injury to, decrease in the
value of, or other occurrence affecting any of the Premises, subject, in each
case, to the rights of Tenants under Leases or parties under Operating
Agreements to the extent such Leases or Operating Agreements are not subordinate
to the terms of this Deed of Trust;
-3-
<PAGE> 4
E. all Leases, all Operating Agreements and all other
agreements for, affecting or related to the use and occupancy of the Premises,
now or hereafter entered into (including any use or occupancy arrangements
created pursuant to Section 365(d) of Title 11 of the United States Code (the
"Bankruptcy Code") or otherwise in connection with the commencement or
continuance of any bankruptcy, reorganization, arrangement, insolvency,
dissolution, receivership or similar proceedings, or any assignment for the
benefit of creditors, in respect of any Tenant or occupant of any portion of the
Trust Property and all extensions, amendments and modifications thereto
heretofore or hereafter entered into), and all rents, incomes, issues,
royalties, revenues and profits derived by Trustor from the Premises and the
right to apply such rents, incomes, issues, royalties, revenues and profits to
the payment of the Note and the other obligations secured by this Deed of Trust,
together with the security deposits or other payments or instruments delivered
as security under such Leases, Operating Agreements and agreements (the grant of
such security deposits and other security being subject to application in
accordance with the express requirements of such Leases, Operating Agreements
and any other agreements applicable thereto);
F. all monies, accounts, instruments and other property
(including all Credit Facilities, Eligible Collateral, additional collateral and
other pledges of money provided to Beneficiary pursuant to the terms of this
Deed of Trust or any other Loan Documents) constituting a part of the security
for the Loan or the performance by Trustor of its obligations under this Deed of
Trust or the other Loan Documents as of any particular time, including all
collateral subject to the lien evidenced by any of the Loan Documents or
assigned to Trustor after the date hereof, and any proceeds of the foregoing;
G. all proceeds of, and any unearned premiums or refunds of
premiums on, any insurance policies covering all or any part of the Premises or
other portion of the Trust Property, including the right to receive and apply
the proceeds of any insurance, judgments or settlements made in lieu thereof for
damage to or the diminution of the Premises, but subject, in each case, to the
rights of Tenants under Leases or parties under Operating Agreements to the
extent such Leases and Operating Agreements are not subordinate to the terms of
this Deed of Trust;
H. all general intangibles relating to design, development,
operation, management and use of the Premises, all certificates of occupancy,
zoning variances, building, use or other permits, approvals, authorizations,
licenses and consents obtained from any Governmental Authority in connection
with the development, use, operation or management of the Premises, all
construction, service, engineering, consulting, management, leasing,
architectural and other similar contracts concerning the design, construction,
management, operation, occupancy and/or use of the Premises, all architectural
drawings, plans, specifications, soil tests, appraisals, engineering reports and
similar materials relating to all or any portion of the Premises and all payment
and performance bonds or warranties or guarantees relating to the Premises, all
to the extent assignable;
I. all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, service marks,
logos, other source and business
-4-
<PAGE> 5
identifiers, trademark registrations and applications for registration used
exclusively at or relating exclusively to the Premises or any portion thereof;
all renewals, extensions and continuations-in-part of the items referred to
above; any written agreement granting to Trustor any right to use any trademark
or trademark registration at or in connection with any of the Premises; and the
right of Trustor to sue for past, present and future infringements of the
foregoing;
J. the right in the name and on behalf of Trustor to appear in
and defend any action or proceeding brought with respect to any of the Premises
or any other component of the Trust Property, and to commence any action or
proceeding to protect the interest of Beneficiary therein;
K. any of the foregoing to the extent acquired from and after
the date hereof; and
L. all of Trustor's interest in and to all proceeds, including
interest receivable thereon, of the voluntary or involuntary conversion of any
of the foregoing, including proceeds of insurance and condemnation awards, into
cash or liquidated claims;
TO HAVE AND TO HOLD the above granted and described property,
subject in all respects only to the Permitted Encumbrances, unto and to the
proper use and benefit of Trustee and its successors and assigns, for the
benefit of Beneficiary, its successors and assigns, forever, upon the terms and
conditions set forth herein.
IN TRUST, WITH POWER OF SALE, to secure the payment to
Beneficiary of the Debt at the time and in the manner provided for its payment
in the Note and in this Deed of Trust. The maturity date of the Note evidencing
the Debt is October 11, 2001.
The following actions of Beneficiary shall not affect the
liability of Trustor for payment and performance of the Secured Obligations, and
shall not affect the lien hereof upon any portion of the Trust Property not
expressly released herefrom: if Beneficiary shall, with or without notice (a)
retain or obtain a security interest in any property to secure all or any
portion of the Secured Obligations, (b) retain or obtain the primary or
secondary liability of any party or parties with respect to all or any portion
of the Secured Obligations, (c) alter, exchange, extend, renew, modify, release
or cancel for any period (whether or not longer than their original maturity)
any terms, conditions, provisions or covenants contained in any or all of the
Loan Documents, (d) release or compromise any liability of any party or parties
primarily or secondarily liable on all or any portion of the Secured
Obligations, (e) release its security interest, if any, in all or any portion of
the Trust Property and/or permit any substitution or exchange for any such
portion of the Trust Property, (f) resort to the Trust Property conveyed by this
Deed of Trust, or any portion thereof, for payment of the Secured Obligations,
or any portion thereof, whether or not Beneficiary shall have resorted to any
other property otherwise securing the Secured Obligations, or to the extent
permitted by law shall have proceeded against any other party primarily or
secondarily liable on the Secured Obligations, and (g) apply all or any portion
of the Trust Property or direct the order or manner of sale thereof as
Beneficiary in its sole discretion chooses in accordance with the terms of this
Deed of Trust.
-5-
<PAGE> 6
AND, to protect the security of this Deed of Trust, Trustor
covenants and agrees with and represents and warrants to Beneficiary, subject in
all respects to the Permitted Encumbrances, as follows:
1. CERTAIN DEFINITIONS.
1.1. Capitalized terms, not otherwise defined in this Deed of
Trust, shall have the respective meanings assigned thereto in the Loan
Agreement.
1.2. For all purposes of this Deed of Trust, except as
otherwise expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article shall have the meanings
assigned to them in this Article and shall include the plural as well as the
singular.
(b) All accounting terms not otherwise defined herein shall
have the meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America, and, except as otherwise
herein expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
as of the date of such computation.
(c) The word "including" shall be construed to be followed by
the words "without limitation".
(d) Captions are for the convenience of the reader and shall
not be considered in interpreting this Deed of Trust or the intent of the
parties hereto.
(e) The words "herein", "hereof" and "hereunder" and other
words of similar import shall refer to this Deed of Trust as a whole and not to
any particular Article, Section or other subdivision.
(f) The term "Trust Property" shall be deemed to mean "Trust
Property or any portion thereof".
1.3. As used in this Deed of Trust the following terms have
the following respective meanings:
Deed of Trust shall mean this Deed of Trust, Security
Agreement, Assignment of Leases and Rents and Fixture Filing, as modified,
amended or supplemented from time to time pursuant to the provisions hereof.
Equipment shall have the meaning stated in the Preliminary
Statement hereof.
Excusable Delay shall mean a delay due to any act of God,
governmental restriction, enemy action, civil commotion, fire, casualty, strike,
shortage of supplies or labor,
-6-
<PAGE> 7
work stoppage or other cause beyond the reasonable control of Trustor, but lack
of funds shall not be deemed a cause beyond the reasonable control of Trustor.
Improvements shall have the meaning stated in the Preliminary
Statement hereof.
Land shall have the meaning stated in the Preliminary
Statement hereof.
Leasehold Estate shall have the meaning stated in the
Preliminary Statement hereof.
Personal Property shall have the meaning stated in Section
21.1.
Premises shall mean the Land, Leasehold Estate, Improvements
and Equipment and all accessions and additions thereto and increases therein
which constitute a part of the Land, Leasehold Estate, Improvements and/or
Equipment.
Secured Obligations shall have the meaning stated in the
Preliminary Statement hereof.
Trustor shall mean Glimcher Lloyd Venture, LLC, for the period
during which the same shall own the Trust Property, and following any conveyance
of the Trust Property which is permitted by the terms of this Deed of Trust,
shall mean the transferee for the period during which each transferee shall own
the Trust Property.
Trustor's Contest Right shall mean Trustor's right to contest
certain matters pursuant to Section 5.1(b)(ii) of the Loan Agreement, subject to
all of the terms and conditions set forth in said Section.
Trust Property shall have the meaning stated in the
Preliminary Statement hereof.
2. PAYMENT OF THE NOTE, ALL OTHER DEBT AMOUNTS. Trustor will
duly pay the amounts owed under the Note and the other portions of the Debt,
including all amounts due under this Deed of Trust and any other Loan Document,
at the places, at the respective times and in the manner provided therein and
herein (as applicable).
3. PERFORMANCE AND OBSERVANCE OF LOAN AGREEMENT COVENANTS.
Trustor will duly perform, observe and comply with all of the affirmative and
negative covenants, agreements and obligations to be performed, observed and
complied with by Trustor, and all of the other terms and conditions applicable
to Trustor, under the terms of the Loan Agreement and any other Loan Document,
as if each such covenant, agreement, obligation, term and condition were
expressly set forth herein in full. Without limiting the generality of the
foregoing, Trustor will maintain the Premises, pay Taxes and Other Charges,
obtain and maintain insurance, keep the Trust Property free of Liens (other than
Permitted Encumbrances), pay the utility charges for the Premises properly
payable by Trustor, perform alterations and repairs in respect of the Premises,
cause the Premises to comply with all Legal Requirements, transfer the Premises,
fund the Tax and Insurance Escrow Account, restore the Premises upon any
Casualty
-7-
<PAGE> 8
or Condemnation, and lease the Premises, all in accordance with and subject to
all of the applicable terms and conditions of the Loan Agreement and the other
Loan Documents.
4. MAINTENANCE OF VALIDITY AND RECORDING.
4.1. Trustor covenants that it will forthwith after the
execution and delivery of this Deed of Trust and thereafter as necessary from
time to time cause this Deed of Trust and the other Loan Documents and any
continuation statement or similar instrument relating to any property subject
thereto or to any property intended to be granted, conveyed, transferred and
assigned by this Deed of Trust to be filed, registered and recorded in such
manner and in such places as may be required by law in order to publish notice
of and fully to protect the validity thereof or the grant thereby of the
property subject thereto and the interest and rights of Beneficiary therein.
Trustor covenants that it has paid or will pay or cause to be paid all taxes and
fees incident to such filing, registration and recording, and all expenses
incident to the preparation, execution and acknowledgment thereof, and of any
instrument of further assurance, and all federal or state stamp taxes or other
charges arising out of or in connection with the execution and delivery of such
instruments.
4.2. Trustor covenants that at all times it will itself, or
will use its best efforts to cause third parties to, preserve, warrant and
defend Beneficiary's title and right in and to the Trust Property, subject to
the Permitted Encumbrances and items then being contested in accordance with
Trustor's Contest Right, against the claims of all Persons and will maintain and
preserve such title and right so long as the Debt is outstanding.
4.3. Trustor shall maintain the validity, perfection, priority
and effectiveness of this Deed of Trust and the other Loan Documents. Unless
otherwise permitted in this Deed of Trust and the other Loan Documents, Trustor
will not take any action, will not permit action to be taken by others and will
not omit to take any action, nor will Trustor give any notice, approval or
consent or exercise, waive or modify any rights under or in respect of the
Permitted Encumbrances, which action, omission, notice, approval, consent or
exercise, waiver or modification of rights would release Trustor from, or reduce
any of Trustor's obligations or liabilities under, or would result in the
termination, surrender or assignment of, or the amendment or modification of,
any of the Loan Documents, or would impair the validity of this Deed of Trust or
any of the other Loan Documents, or would affect the Trust Property in any
material adverse respect, without Beneficiary's consent, and any attempt to do
any of the foregoing without such consent shall be of no force and effect.
4.4. Trustor, at its expense, will execute, acknowledge and
deliver all such instruments and take all such actions as Beneficiary from time
to time reasonably may request or as may be reasonably necessary or proper for
the better assuring to Beneficiary of the properties and rights now or hereafter
subject to the Lien hereof or intended so to be.
5. ENFORCEMENT. Trustor acknowledges that the Debt is secured
by this Deed of Trust, the Assignment of Leases, the Assignment of Agreements
and various other documents or instruments securing or evidencing the Loan. Upon
the occurrence of an Event of Default, Beneficiary shall have the right to
institute a proceeding or proceedings for the total or
-8-
<PAGE> 9
partial foreclosure of this Deed of Trust, and any or all of the other Loan
Documents securing repayment of the Debt, whether by court action, power of sale
or otherwise, under any applicable provisions of law, for all or any portion of
the Debt, and the liens and the security interests created by the Loan Documents
shall continue in full force and effect as to the portion of the Trust Property
not foreclosed, without loss of priority securing that portion of the Debt then
due and payable and still outstanding. Any and all sums received by Beneficiary
under the Note, this Deed of Trust, the Loan Agreement or any other Loan
Document shall be applied toward the repayment of the Debt in such order and
priority as Beneficiary shall determine, consistent with any applicable
requirements of the Loan Documents.
6. NO CLAIMS AGAINST BENEFICIARY. Nothing contained in this
Deed of Trust or in any other Loan Document shall constitute any consent or
request by Beneficiary, express or implied, for the performance of any labor or
services or the furnishing of any materials or other property in respect of the
Premises or any part thereof, nor as giving Trustor any right, power or
authority to contract for or permit the performance of any labor or services or
the furnishing of any materials or other property in such fashion as would
permit the making of any claim against Beneficiary in respect thereof or any
claim that any Lien based on the performance of such labor or services or the
furnishing of any such materials or other property is prior to the interest of
Beneficiary under this Deed of Trust.
7. INDEMNIFICATION. Trustor will protect, indemnify and save
harmless Beneficiary from and against: all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses (including all
reasonable attorneys' fees and disbursements) imposed upon or incurred by or
asserted against Beneficiary (without bad faith, negligence or willful
misconduct of Beneficiary) by reason of the occurrence or existence of any of
the following (to the extent the insurance proceeds payable on account of the
following and received by Beneficiary shall be inadequate) prior to the payment
in full of the Debt and the satisfaction of all conditions for the satisfaction
and release or Defeasance of this Deed of Trust: (a) ownership or possession of
Trustor's interest in the Trust Property, or any interest therein, or receipt of
any rent or other sum therefrom, (b) any accident, injury to or death of any
persons or loss of or damage to property occurring on or about the Premises or
any part thereof or the adjoining parking areas, sidewalks, curbs, vaults and
vault space, if any, streets or ways, (c) any use, non-use or condition of the
Premises or any part thereof or the adjoining parking areas, sidewalks, curbs,
streets or ways, including claims or penalties arising from violation of any
Legal Requirement or Insurance Requirement, as well as any claim based on any
patent or latent defect, whether or not discoverable by Beneficiary, any claim
the insurance as to which is inadequate, and any claim in respect of any adverse
environmental impact or effect, (d) any failure on the part of Trustor to
perform or comply with any of the terms of this Deed of Trust, any Lease,
Operating Agreement or any other Loan Document to which it is a party and any
breach of any representation made by Trustor herein or in any other Loan
Document, (e) any performance of any labor or services or the furnishing of any
materials or other property in respect of the Trust Property or any part
thereof, (f) any bad faith, negligence or tortious act or omission on the part
of Trustor or any of its agents, contractors, servants, employees, sublessees,
licensees or invitees, (g) any contest undertaken by Trustor (even if the same
is permitted by the terms of the Loan Documents), or (h) the presence at, on, or
under the Premises or the migration from or release at, on, or from the
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<PAGE> 10
Premises of any pollutant or Hazardous Substance (as defined in the
Environmental Indemnity), in violation of any Legal Requirement. Beneficiary
shall give notice to Trustor of any claims, liabilities, obligations, damages,
penalties, costs or causes of action for which Beneficiary believes it is
entitled to indemnification hereunder promptly upon its discovery of the action
or event giving rise to such claim, but the failure of Beneficiary to provide
such notice shall neither cause the forfeiture of the right to receive indemnity
hereunder nor limit such right except to the extent, if any, that Trustor is
prejudiced by the failure of the Indemnified Party to promptly give such notice.
Any amounts payable under this Section to Beneficiary that are not paid within
ten (10) Business Days after written demand therefor by Beneficiary, setting
forth in reasonable detail the amount of such demand and the basis therefor,
shall bear interest from the date of demand until paid at the Default Rate and
shall be secured by this Deed of Trust. In case any action, suit or proceeding
is brought against Beneficiary by reason of any such occurrence, Trustor, upon
the request of Beneficiary, will (or at the option of Trustor, Trustor may) at
Trustor's expense resist and defend such action, suit or proceeding or cause the
same to be resisted and defended by counsel for the insurer of the liability or
by counsel selected by Trustor (unless disapproved by Beneficiary). So long as
Trustor is resisting and defending such action, suit or proceeding as provided
above in a prudent and commercially reasonable manner, Beneficiary shall not be
entitled to settle such action, suit or proceeding or claim the benefit of this
Article with respect to such action, suit or proceeding (including the right to
reimbursement of Beneficiary's counsel fees and disbursements), and Beneficiary
agrees that it will not settle any such action, suit or proceeding without the
written consent of Trustor which consent shall not be unreasonably withheld or
delayed; provided if Trustor is not diligently defending such action, suit or
proceeding in a prudent and commercially reasonable manner as provided above,
Beneficiary may settle such action, suit or proceeding subject only to the
written consent of Trustor, which consent shall not be unreasonably withheld or
delayed, and claim the benefit of this Article with respect to settlement of
such action, suit or proceeding. As used in this Article, the term "Beneficiary"
shall be deemed to include both or either of the Beneficiary and any Servicer,
as applicable.
8. NO ENDORSEMENT. Beneficiary shall not become or be
considered to be an endorser, co-maker or co-obligor on the Note or on any
obligation of Trustor secured by this Deed of Trust.
9. BRUNDAGE; NO CREDIT FOR PAYMENT OF TAXES OR OTHER CHARGES.
9.1. Trustor shall pay any taxes imposed by any law of the
United States or of the state or municipality where the Trust Property is
located, adopted after the date hereof, (i) changing in any way the laws for the
taxation of deeds of trust or debts secured thereby for federal, state or local
purposes, or the manner of collection of any such taxes, and (ii) imposing a
tax, either directly or indirectly, on deeds of trust or debts secured thereby
(other than a tax that may arise in connection with ownership or transfer of the
Note or that is imposed upon the income of Beneficiary).
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9.2. Trustor shall not be entitled to any credit against the
principal, interest or other amounts, if any, payable on the Note or under any
other Loan Document, and Trustor shall not be entitled to any credit against any
other amounts which may become payable under the terms thereof or hereof, by
reason of the payment of any Taxes or Other Charges on the Trust Property or any
part thereof or by reason of payment of any other amount required to be paid
hereunder. No deduction shall be made or claimed from the taxable value of the
Trust Property or any part thereof by reason of this Deed of Trust.
10. COMPROMISE OF ACTIONS BY BENEFICIARY. Any action, suit or
proceeding brought by Beneficiary pursuant to this Deed of Trust or otherwise
and any claim made by Beneficiary under this Deed of Trust or otherwise may be
compromised, withdrawn or otherwise dealt with by Beneficiary without notice to
or the approval of Trustor.
11. FORECLOSURE.
11.1. Foreclosure. If any Event of Default shall have
occurred, Beneficiary may at any time proceed, at law or in equity or otherwise,
to enforce the payment of the Note in accordance with the terms thereof and, if
the Note has been declared due and payable:
(a) to institute an action to foreclose its interest
under the Lien of this Deed of Trust against the Trust Property by
judicial foreclosure sale or strict foreclosure in one proceeding or
against portions of the Trust Property in a series of separate
proceedings, and to have the same sold under the judgment or decree of
a court of competent jurisdiction or proceed to take any of such
actions;
(b) to take such other action at law or in equity or
otherwise for the enforcement of this Deed of Trust and the
realization, upon obtaining a judgment for foreclosure, on the security
or any other security herein or elsewhere provided for, in such manner
and at such times as the law may allow, and may proceed therein to the
extent permitted, and subject to the limitations imposed, by law to
final judgment and execution for the entire unpaid balance of the Debt,
together with all other sums payable by Trustor in accordance with the
provisions of the Note, this Deed of Trust and the other Loan
Documents, and all sums which may have been advanced by Beneficiary for
Taxes and Other Charges, water or sewer rents, charges or claims,
payment on prior liens, insurance or repairs to the Trust Property, all
costs of suit, together with interest thereon at such interest rate as
may be awarded in any judgment obtained by Beneficiary, as the case may
be, from and after the date of any foreclosure sale until actual
payment is made to Beneficiary of the full amount due Beneficiary, and
attorneys' fees through and including all appellate levels; and/or
(c) to sell, assign, transfer and deliver the whole
or, from time to time, any part of the Trust Property, or any interest
in any part thereof, at any private sale or at public auction permitted
by law, with such demand, advertisement or notice as required by law,
and on such other terms as required or permitted by law.
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Before taking title to or possession of all or any portion of
the Trust Property, Beneficiary may order the performance of environmental
assessments of the Trust Property by qualified professionals, the cost of which
shall borne by Trustor and secured hereby.
11.2. Trustor's Waivers. It shall not be necessary for
Beneficiary to have actual or constructive possession of any part of the Trust
Property in order to pass the title to and the right of possession of the Trust
Property, and the title to and the right of possession of the Trust Property
shall pass to the purchaser or purchasers thereof at any sale hereunder as fully
as if the same actually had been present and delivered. To the fullest extent
allowed by applicable law, upon foreclosure of this Deed of Trust, whether by
power of sale or any other nonjudicial or judicial foreclosure process, Trustor
or any person claiming any part of the Trust Property by, through or under
Trustor shall not be entitled to direct the order of sale or to a marshaling of
assets or a sale in inverse order of alienation. The recitals and statements of
fact contained in any notice or in any conveyance to the purchaser or purchasers
at any sale hereunder shall be prima facie evidence of the truth of such facts,
and all prerequisites and requirements necessary to the validity of any such
sale shall be presumed to have been performed. In the event of a foreclosure
sale, to the extent that Trustor is in possession of the Premises, Trustor shall
be deemed a tenant at will of the purchaser at such judicial foreclosure sale
and shall be liable for a reasonable rental for the use of the Premises; and if
Trustor refuses to surrender possession of the Premises upon demand, the
purchaser shall be entitled to institute and maintain the statutory action of
forcible entry and detainer and procure a writ of possession thereunder, and
Trustor expressly waives all damages sustained by reason thereof and Trustor
agrees to pay to the purchaser the costs and expenses (including all reasonable
attorneys' fees and expenses) of such action and writ.
11.3. Recovery of Advances. To the extent permitted by law,
Beneficiary shall have the right, from time to time, to bring an appropriate
action to recover any sums required to be paid by Trustor under the terms of
this Deed of Trust and/or the Note as they become due, without regard to whether
the principal indebtedness evidenced by the Note or any other sums secured by
this Deed of Trust shall be due, and, subject to the limitations imposed by law,
without prejudice to the right of Beneficiary thereafter to bring an action of
foreclosure, or any other action, for any default by Trustor existing at the
time the earlier action was commenced.
11.4. Sale. Upon the completion of any sale or sales of all or
any portion of the Trust Property by virtue of this Article, Beneficiary or any
officer of any court empowered to do so, shall execute and deliver to the
accepted purchaser or purchasers, good and sufficient instrument or instruments
conveying, assigning and transferring all estate, right, title and interest in
and to the property and rights sold. In such event, Beneficiary is hereby
irrevocably appointed the true and lawful attorney of Trustor, in its name and
stead, to make all the necessary conveyances, assignments, transfers and
deliveries of any part of the Trust Property and rights so sold, and for that
purpose Beneficiary may execute all necessary instruments of conveyance,
assignment and transfer and may substitute one or more Persons with like power,
Trustor hereby ratifying and confirming all that Trustor's said attorney or such
substitute or substitutes shall lawfully do by virtue hereof. Nevertheless,
Trustor shall, if so requested by Beneficiary, ratify and confirm any such sale
or sales by executing and delivering to Beneficiary or to such purchaser or
purchasers all such instruments as may be advisable, in the judgment of
Beneficiary,
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for the purpose and as may be designated in such request. To the extent
permitted by law, any such sale or sales shall operate to divest all the estate,
right, title, interest, claim and demand whatsoever, whether at law or in
equity, of Trustor in and to the properties, interests and rights so sold, and
shall be a perpetual bar both at law and in equity against Trustor and against
any and all Persons claiming or who may claim the same, or any part thereof
from, through or under Trustor.
11.5. Several Parcels. To the extent permitted by law, if any
Event of Default shall have occurred and the Note shall have been declared due
and payable, Beneficiary shall have the right to sell all or any portion of the
Trust Property in such order as it may determine, and the right of sale
hereunder shall not be exhausted by one or more sales, but to the extent
permitted by law successive sales may be had until all of the Trust Property
have been legally sold. To the extent permitted by law, in the event any sale
hereunder is not completed or is defective in the opinion of Beneficiary, such
sale shall not exhaust the power of sale hereunder, and Beneficiary shall have
the right to cause a subsequent sale or sales.
11.6. Beneficiary Authorized to Execute Instruments. Trustor
irrevocably appoints (which appointment is coupled with an interest) Beneficiary
the true and lawful attorney-in-fact of Trustor, in its name and stead and on
its behalf, for the purpose of effectuating any sale, assignment, transfer or
delivery for the enforcement of this Deed of Trust after the occurrence and
during the continuance of an Event of Default hereunder, to execute and deliver
all such deeds, assignments, bills of sale and other instruments (without
recourse, warranty or representation of any kind) as Beneficiary may consider
necessary or appropriate, with full power of substitution, Trustor hereby
ratifying and confirming all that such attorney or any substitutes thereof shall
lawfully do by virtue hereof. Nevertheless, if so requested by Beneficiary or
any purchaser, Trustor shall ratify and confirm any such sale, assignment,
transfer or delivery by executing and delivering to Beneficiary or such
purchaser all deeds, assignments, bills of sale, releases and other proper
instruments (which in each case shall be without recourse to or representation
or warranty by Trustor) to effect such ratification and confirmation as may be
designated in any such request.
11.7. Purchase of Trust Property by Beneficiary. Beneficiary
or any nominee of Beneficiary may be a purchaser of the Trust Property or of any
interest therein at any sale thereof, and may apply to the purchase price all or
any part of the Debt secured hereby in lieu of payment in cash of the amount of
such Debt applied. Any such purchaser shall, upon any such purchase, acquire
good title to the property so purchased, free of the Lien of this Deed of Trust
and free of all rights of redemption in Trustor.
11.8. Receipt a Sufficient Discharge to Purchaser. Upon any
sale of the Trust Property after the Note becomes due and payable, whether at
maturity, by declaration of acceleration or by automatic acceleration after an
Event of Default or otherwise, the receipt of Beneficiary or the receipt of the
officer making the sale under judicial proceedings shall, to the full extent
legally permitted, be sufficient discharge to the purchaser for the purchase
money, and such purchaser shall not be obligated to see to the application
thereof.
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11.9. Waiver of Marshaling, Appraisement, Valuation. Trustor
hereby waives all rights, legal and equitable, it may now or hereafter have to
require marshaling of assets or to require upon foreclosure sales of assets in a
particular order. Each successor and assign of Trustor, including a holder of a
Lien subordinate to the Lien created hereby (without implying that Trustor has,
except as expressly provided herein, a right to grant an interest in, or a
subordinate Lien on, the Trust Property or any part thereof), by acceptance of
its interest or Lien agrees that it shall be bound by the above waiver, as if it
gave the waiver itself. Trustor also hereby waives, to the full extent it may
lawfully do so, the benefit of all laws providing for rights of appraisement,
valuation, stay or extension or of redemption after foreclosure now or hereafter
in force.
11.10. Sale Shall be a Bar Against Trustor. The sale of all or
any portion of the Trust Property in connection with the exercise of remedies
under this Deed of Trust after the Note becomes due and payable, whether at
maturity, by declaration of acceleration or by automatic acceleration after an
Event of Default or otherwise, shall, to the full extent legally permitted,
forever be a perpetual bar against Trustor's asserting any claim to title to
such portion of the Trust Property so sold.
12. APPOINTMENT OF RECEIVER. If an Event of Default shall have
occurred and be continuing, Beneficiary shall, to the fullest extent permitted
by law, as a matter of right, be entitled to the appointment of a receiver for
all or any part of the Trust Property, whether such receivership be incidental
to a proposed sale of the Trust Property or otherwise, and Trustor hereby
consents to the appointment of such a receiver and will not oppose any such
appointment.
13. POSSESSION, MANAGEMENT AND INCOME UPON DEFAULT.
13.1. If an Event of Default shall have occurred and be
continuing, Beneficiary, with such notice, if any, to Trustor as required by law
or as Beneficiary considers appropriate in the circumstances, and subject to the
rights of Tenants and the other parties to any Operating Agreements and the
provisions of applicable law, may immediately enter upon and take possession of
the Premises by self-help, summary proceedings, ejectment or otherwise, and may
remove Trustor and all other Persons and any and all property therefrom, and may
hold, operate and manage the same and receive all earnings, income, rents,
issues and proceeds accruing with respect thereto. Beneficiary shall be under no
liability for or by reason of any such taking of possession, entry, removal or
holding, operation or management, except (i) for its gross negligence or willful
misconduct or (ii) to the extent required by applicable law, and except that any
amounts so received by Beneficiary shall be applied as set forth in the Note.
13.2. If an Event of Default shall have occurred and be
continuing, at the request of Beneficiary, Trustor shall promptly execute and
deliver to Beneficiary such deeds, instruments of assignment and other documents
as Beneficiary may deem necessary or advisable to enable Beneficiary or any
agent or representative designated by Beneficiary, at such time or times and
place or places as Beneficiary may reasonably specify, to obtain possession of
all or any portion or portions of the Trust Property to which Beneficiary shall
at the time be entitled hereunder,
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<PAGE> 15
subject to the rights of Tenants and the other parties to any Operating
Agreements. If Trustor shall fail for any reason to execute and deliver such
instrument or document after such request by Beneficiary, Beneficiary, to the
fullest extent permitted by law, may (i) obtain a judgment conferring on
Beneficiary the right to immediate possession and requiring Trustor to execute
and deliver such instruments and documents to Beneficiary, which entry of
judgment Trustor, to the extent it may lawfully do so, hereby specifically
consents and (ii) pursue the Trust Property wherever it may be found and to the
extent lawfully permitted, take possession of and remove the same, subject to
the rights of Tenants.
13.3. Upon every taking of possession pursuant to this
Article, Beneficiary may (but shall have no obligation to), from time to time,
at the expense of Trustor and such expenses to constitute additional
indebtedness secured by the affected Trust Property, make all such expenditures
for maintenance, insurance, repairs, replacements, alterations, additions and
improvements to and of the Premises, as it may reasonably deem proper. In such
case, Beneficiary, to the fullest extent permitted by law, shall have the right
to manage, control, use, operate, store, lease or otherwise deal with the Trust
Property and to carry on the business and exercise all the rights and powers of
Trustor relating thereto, as Beneficiary shall deem best, including the right to
enter into any and all such agreements with respect to the management, cleaning,
control, use, operation, storage, leasing of or otherwise dealing with the Trust
Property, or any part thereof, as Beneficiary may determine; and, to the fullest
extent permitted by law, Beneficiary shall be entitled to collect and receive
all tolls, rents, revenues, issues, income, products and profits of the Trust
Property and every part thereof. Such tolls, rents, revenues, issues, income,
products and profits may be applied to pay the expenses of the management,
control, use, operation, storage, leasing of or otherwise dealing with the
Premises and of conducting the business thereof, and of all maintenance,
repairs, replacements, alterations, additions and improvements, and to make all
payments which Beneficiary may be required or may elect to make, if any, for
Taxes, Other Charges, assessments, insurance or other proper charges upon the
Trust Property or any part thereof (including the employment of engineers and
accountants to examine, inspect and make reports), and all other payments which
Beneficiary may be required or authorized to make under any provision of this
Deed of Trust.
14. RIGHT OF BENEFICIARY TO PERFORM TRUSTOR'S COVENANTS. If
Trustor shall fail to make any payment or perform any act required to be made or
performed hereunder or under any other Loan Document, Beneficiary, upon notice
to Trustor and upon the expiration of any applicable grace or cure period, if
any (except in cases of emergency that threatens bodily injury or material
damage to property, in which case Beneficiary will allow such notice and grace
or cure period, if any, as is reasonable under the circumstances) and subject to
Trustor's Contest Right, but without waiving or releasing any obligation,
Default or Event of Default, may (but shall be under no obligation to) at any
time thereafter make such payment or perform such act for the account and at the
expense of Trustor, and, to the extent permitted by applicable law, may enter
upon the Premises for such purpose and take all such action thereon as, in the
judgment of Beneficiary, may be reasonably necessary or appropriate therefor,
subject to the rights of Tenants and other parties under Operating Agreements.
All sums so paid by Beneficiary and all costs and expenses (including all
attorneys' fees and expenses) so incurred, together with interest thereon at the
Default Rate from the date of payment by Beneficiary until
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<PAGE> 16
paid, shall constitute additional indebtedness secured by this Deed of Trust and
shall be paid by Trustor to Beneficiary upon demand therefor.
15. REMEDIES CUMULATIVE. To the extent permitted under
applicable law, each right, power and remedy of Beneficiary provided for in this
Deed of Trust or any other Loan Document or now or hereafter existing at law or
in equity or by statute or otherwise shall be cumulative and concurrent and
shall be in addition to every other right, power or remedy provided for in this
Deed of Trust or any other Loan Document or now or hereafter existing at law or
in equity or by statute (including the Uniform Commercial Code as enacted in the
State where the Trust Property is located) or otherwise, and the exercise or
beginning of the exercise by Beneficiary of any one or more of the rights,
powers or remedies provided for in this Deed of Trust or any other Loan Document
or now or hereafter existing at law or in equity or by statute or otherwise
shall not preclude the simultaneous or later exercise by Beneficiary, to the
extent permitted by law, of any or all of such other rights, powers or remedies.
16. APPLICABLE LAW. The creation, perfection and enforcement
of the lien of this Deed of Trust shall be governed by the law of the State in
which the Premises are located. Subject to the foregoing, in all other respects,
this Deed of Trust shall be governed by the substantive laws of the State of New
York.
17. NO WAIVER. No failure by Beneficiary to insist upon the
strict performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof shall constitute a waiver of any such term or
of any such breach. No waiver of any breach shall affect or alter this Deed of
Trust, which shall continue in full force and effect, or shall affect or alter
the rights of Beneficiary with respect to any other then-existing or subsequent
breach. Neither Trustor nor any other Person now or hereafter obligated for
payment of all or any part of the sums now or hereafter secured by this Deed of
Trust shall be relieved of such obligation by reason of the failure of
Beneficiary to comply with any request of Trustor or of any other Person so
obligated, to take action to foreclose on this Deed of Trust or otherwise to
enforce any provisions of this Deed of Trust or the Note or by reason of the
release, regardless of consideration, of all or any part of the security held
for the Debt secured by this Deed of Trust, or by reason of any agreement or
stipulation between any subsequent owner of any of the Trust Property and
Beneficiary extending the time of payment or modifying the terms of this Deed of
Trust or the Note without first having obtained the consent of Trustor or such
other persons; and in the latter event Trustor and all such other persons shall
continue to be liable to make payments according to the terms of any such
extension or modification agreement, unless expressly released and discharged in
writing by Beneficiary.
18. EXCULPATION. NOTWITHSTANDING ANYTHING HEREIN THAT MAY BE
CONSTRUED TO THE CONTRARY, THE TERMS OF SECTION 12.24 OF THE LOAN AGREEMENT
RELATING TO THE EXCULPATION OF TRUSTOR ARE INCORPORATED HEREIN BY REFERENCE AS
IF FULLY SET FORTH HEREIN. NO NEGATIVE INFERENCE REGARDING THE APPLICATION OF
SAID SECTION 12.24 TO ALL OF THE TERMS OF THIS DEED OF TRUST IS TO BE DRAWN BY
THE REFERENCE TO SAID SECTION 12.24 IN ONLY CERTAIN PROVISIONS.
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19. ADDITIONAL SECURITY. Without notice to or consent of
Trustor and without impairment of the Lien and rights created by this Deed of
Trust, Beneficiary may accept (but Trustor shall not be obligated to furnish
unless otherwise required under the Loan Documents) from Trustor or from any
other Person or Persons, additional security for the Note.
20. RELEASE. The provisions of Section 2.5 of the Loan
Agreement shall apply with respect to the discharge and satisfaction of this
Deed of Trust.
21. SECURITY AGREEMENT, ETC.
21.1. Grant of Security. This Deed of Trust is a security
agreement within the meaning of the Uniform Commercial Code of the state where
the Premises is located with respect to all personal property now or hereafter
located at the Premises and owned by Trustor as to which the creation and
perfection of a security interest are subject to such Uniform Commercial Code
(the "Personal Property"), and is also a deed of trust as to those portions of
the Trust Property that are classified as real property. Trustor hereby grants
to Beneficiary a security interest in and to the Personal Property to secure the
payment of the Note. Any completely executed counterpart of this instrument may
be filed as a deed of trust on real property or fixtures, as a security
agreement or financing statement on personal property or as both. The address of
Trustor, as debtor, and the address of Beneficiary, as secured party, are shown
on page 1 of this Deed of Trust.
21.2. Financing Statements. Trustor shall cause all financing
and continuation statements and other instruments with respect to the Personal
Property at all times to be kept recorded, filed or registered in such manner
and in such places as may be required by law fully to evidence, perfect and
secure the interests of Beneficiary in the Personal Property, and shall pay all
filing fees in connection therewith. Trustor hereby appoints Beneficiary as its
attorney-in-fact to perform the obligations of Trustor under this Section, at
the expense of Trustor, in the event it fails to do so.
21.3. Multiple Remedies. If an Event of Default shall have
occurred and be continuing, Beneficiary shall have the option of proceeding, to
the extent permitted under applicable law, as to both real and personal property
in accordance with its rights and remedies in respect of the real property as an
alternative to proceeding in accordance with the provisions of the Uniform
Commercial Code; and Beneficiary may exercise any and all of the other rights of
a secured party under such Uniform Commercial Code.
21.4. Waiver of Rights. To the extent permitted under
applicable law, Trustor waives all rights of redemption after foreclosure and
all other rights and remedies of a debtor thereunder and all formalities
prescribed by law relative to the sale or disposition of the Personal Property
after the occurrence and during the continuance of an Event of Default hereunder
and all other rights and remedies of Trustor with respect thereto. In exercising
its right to take possession of the Personal Property upon the occurrence and
during the continuance of an Event of Default hereunder, Beneficiary, personally
or by its agents or attorneys, and subject to the rights of any Tenant or other
party to an Operating Agreement, may, to the extent permitted by law, enter upon
any part of the Premises without being guilty of trespass or any wrongdoing, and
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without liability for damages thereby occasioned, except damages arising from
Beneficiary's negligence or willful misconduct. To the extent any notice of sale
or other disposition of the Personal Property is required and cannot be waived,
in the event Beneficiary elects to proceed with respect to the Personal Property
separately from the real property, Beneficiary shall give at least ten (10)
Business Days' notice of the sale of the Personal Property, which shall for all
purposes be deemed to be commercially reasonable. All recitals in any instrument
of assignment or any other instrument executed by Beneficiary incident to any
sale, transfer, assignment, lease or other disposition or utilization of the
Personal Property or any part thereof after the occurrence of an Event of
Default shall be full proof of the matter stated therein and no other proof
shall be required to establish full legal propriety of the sale or other action
taken by Beneficiary or of any fact or condition incident thereto, all of which
shall be deemed conclusively to have been performed or to have occurred.
21.5. Expenses of Disposition of Personal Property. Trustor
shall reimburse Beneficiary, within ten (10) days after demand, for all expenses
of retaking, holding, preparing for sale, lease or other use or disposition,
selling, leasing or otherwise using or disposing of the Personal Property which
are incurred, including all reasonable attorneys' fees and expenses, and all
such expenses shall be added to Trustor's obligations to Beneficiary and shall
be secured hereby.
22. FINANCING STATEMENT. This Deed of Trust shall be deemed to
be and may be enforced from time to time as a deed of trust, chattel deed of
trust, assignment, contract, security agreement, financing statement, or Lien on
machinery or other Equipment situated on the Premises, and from time to time as
any one or more thereof, and shall constitute a "fixture filing" for the
purposes of Article 9 of the Uniform Commercial Code as enacted in the State
where the Premises is located.
23. EXPENSES OF BENEFICIARY.
23.1. If any action, suit or other proceeding affecting the
Trust Property or any part thereof shall be commenced in which action, suit or
proceeding Beneficiary is made a party or participates or in which the right to
use the Trust Property or any part thereof is threatened, or in which it becomes
necessary in the reasonable judgment of Beneficiary to defend or uphold the
interest of Beneficiary under this Deed of Trust (including any action, suit or
proceeding to establish or uphold the compliance of the Improvements with any
Legal Requirement), then all out-of-pocket amounts paid or incurred by
Beneficiary for the expense of any such action, suit or other proceeding or to
protect its rights therein (whether or not Beneficiary is made or becomes a
party thereto) or otherwise to enforce or defend the rights and lien created by
this Deed of Trust (including all reasonable attorneys' fees and expenses),
shall be paid by Trustor upon demand and, if not paid within ten (10) days of
the giving of such demand, shall bear interest at the Default Rate from the date
of the payment or incurring thereof, and any such amount and the interest
thereon shall be a Lien on the Trust Property, prior to any right, or right to,
interest in, or claim upon the Trust Property attaching or accruing subsequent
to or otherwise subordinate to the Lien of this Deed of Trust, and the same
shall be deemed to be indebtedness secured hereby.
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23.2. In the event this Deed of Trust or the Note is placed in
the hands of counsel for collection of any amount payable hereunder or
thereunder or for the enforcement of any of the provisions hereof or thereof and
if an Event of Default shall have occurred and shall then be continuing, Trustor
agrees to pay all reasonable costs associated therewith incurred by Beneficiary,
either with or without the institution of an action, suit or other proceeding,
in addition to all costs, disbursements and allowances provided by law, all such
costs to be paid upon demand, together with interest thereon at the Default Rate
from the date of notice or incurring thereof, and the same shall be deemed to be
part of the indebtedness secured hereby.
24. MISCELLANEOUS. This Deed of Trust may be discharged or
terminated only by an instrument in writing signed by the party against which
enforcement of such discharge or termination is sought. This Deed of Trust shall
be binding upon each of Trustor and Beneficiary and their respective successors
and permitted assigns and all Persons claiming under or through Trustor and
Beneficiary or any such successors or permitted assigns, and shall inure to the
benefit of and be enforceable by Trustor and Beneficiary and their respective
successors and permitted assigns. This Deed of Trust may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one and the same instrument.
25. NON-MERGER. It is the intention and agreement of Trustor
and Beneficiary there shall be no merger of this Deed of Trust and any estate in
the Premises, by reason of the fact that the same Person may own or hold the
Premises, and/or this Deed of Trust.
26. ASSIGNMENT OF RENTS AND TRUSTOR'S INTEREST IN LEASES.
26.1. During the term hereof, Trustor hereby pledges, grants,
sells, assigns, conveys, delivers, transfers and sets over to Beneficiary, to
the extent permitted by law and subject to the terms and conditions hereof, all
of Trustor's right, title and interest, now or hereafter acquired, in and to any
and all existing Leases and Operating Agreements and any Leases and Operating
Agreements that may hereafter be entered into by Trustor, and any modifications,
renewals, extensions or replacements thereof, and any guaranties of the Tenant's
obligations under any Lease (each such guaranty, a "Guaranty") and all right,
title and interest of Trustor thereunder, including all claim, right and demand
to receive, collect and retain all rents and all other amounts due thereunder
and under any modifications, renewals or extensions thereof, including:
(a) the immediate and continuing right to receive and collect
all amounts payable by all Tenants, subtenants or other parties pursuant to the
Leases, Operating Agreements and Guaranties, including (A) all rents (including
all amounts payable to Trustor on account of maintenance, repairs, taxes,
insurance and common area charges or similar charges), income, revenues, issues,
profits, insurance proceeds, condemnation awards and other payments, tenders and
security payable to or receivable by Trustor under the Leases and the Operating
Agreements, (B) all damages or other amounts payable in the event of any
disposition, expiration or termination of any Lease or Operating Agreement
pursuant to the terms thereof, by operation of law or otherwise, (C) any
indemnification against, or reimbursement for, sums paid and costs and expenses
incurred by Trustor under any Lease or Operating Agreement or otherwise, (D) any
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award in the event of the bankruptcy of any Tenant or guarantor of a Lease or
Operating Agreement and (E) any security deposits, other security instruments,
other deposits or prepayments with respect to any such Lease or Operating
Agreement;
(b) all claims, rights, powers, privileges and remedies of
Trustor, whether provided for in any Lease, Operating Agreement or Guaranty or
arising by statute or at law or in equity or otherwise, consequent to any
failure on the part of any Tenant to perform or comply with any term of any
Lease or any other party to comply with any Operating Agreement or any Guaranty;
(c) all right to take all action upon the happening of a
default under any Lease, Operating Agreement or Guaranty as shall be permitted
by any such Lease, Operating Agreement, Guaranty, or by law, including the
commencement, conduct and consummation of proceedings at law or in equity; and
(d) the full power and authority, in the name of Trustor or
otherwise, to enforce, collect, receive and make receipt for any and all of the
foregoing and to do any and all other acts and things whatsoever that Trustor is
or may be entitled to do under any Lease, Operating Agreement or Guaranty.
26.2. Except as otherwise required by applicable law or as
provided for in the Loan Documents, any funds received by Beneficiary under this
Article may be applied by Beneficiary to the Debt in such order as Beneficiary
may in its sole discretion determine to be appropriate, including the payment of
costs and expenses in connection with the maintenance, operation, improvement,
insurance, taxes and upkeep of the Trust Property and payment of amounts then
due and payable under the Loan Agreement or the other Loan Documents.
Beneficiary shall be accountable to Trustor only for monies actually received by
Beneficiary pursuant hereto. Neither the collection of said funds and the
application thereof as aforesaid, nor any act done or omitted pursuant to the
power and rights granted to Beneficiary hereunder, shall cure or waive any
Default or Event of Default or waive, modify or affect any notice of Default or
Event of Default or invalidate any act done pursuant to such notice, nor shall
the same be a waiver of any of Beneficiary's rights and remedies under the Note,
this Deed of Trust, the Loan Agreement or the other Loan Documents.
26.3. (a) This Article 26 constitutes a present, absolute,
effective, irrevocable and completed assignment by Trustor to Beneficiary of the
Leases and the right to collect all sums payable to Trustor thereunder and apply
the same, which is not conditioned upon Beneficiary being in possession of the
Premises. However, so long as no Event of Default shall have occurred and be
continuing, Trustor shall have a license to enforce the obligations of Tenants
under the Leases and of parties under the Operating Agreements, and to exercise
all the rights and remedies of the landlord under the Leases and the Operating
Agreements (including, without limitation, the right to receive all rents and
other amounts described above), subject, however, to compliance with the
provisions of this Deed of Trust and the other Loan Documents.
(b) If any Event of Default shall have occurred and be
continuing, the license granted in Section 26.3(a) shall immediately cease and
terminate, without waiver of such
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<PAGE> 21
Event of Default, with or without notice, any action or proceeding or the
intervention of a receiver appointed by a court, and Beneficiary or an agent or
receiver appointed by Beneficiary may, without regard for the adequacy of the
security for the indebtedness secured hereby, the commission of waste or the
solvency of Trustor, and subject to applicable statutory requirements, if any,
do any or all of the following:
(i) exercise any of Trustor's rights under
the Leases, Operating Agreements and Guaranties;
(ii) enforce the Leases, Operating
Agreements and Guaranties;
(iii) demand, collect, sue for, attach,
levy, recover, receive, compromise and adjust, and make,
execute and deliver receipts and releases for all rents or
other payments that may then be or may thereafter become due,
owing or payable with respect to the Leases, Operating
Agreements and Guaranties;
(iv) demand that any sums held by Trustor
with respect to any Lease, Operating Agreement or Guaranties
(including any security deposits, other deposits or
prepayments) be immediately remitted to Beneficiary; and
(v) generally, do, execute and perform any
other act, deed, matter or thing whatsoever that ought to be
done, executed and performed in and about or with respect to
the Leases, Operating Agreements and Guaranties.
26.4. Trustor hereby irrevocably authorizes and directs each
Tenant under a Lease and each other party under an Operating Agreement or
Guaranty, at the request of Beneficiary, to pay by direct deposit to the Deposit
Account (or such other account as the Beneficiary may time to time designate)
all rents, issues and profits accruing or due under such Tenant's Lease or such
other party's Operating Agreement or Guaranty.
26.5. Trustor at its expense will prudently enforce in all
material respects each of the Leases, Operating Agreements and Guaranties in
accordance with their terms. Neither the execution and delivery of the Deed of
Trust or any other Loan Document nor any action or inaction on the part of
Beneficiary shall release (i) any Tenant from its Lease, (ii) any party from its
Operating Agreement, (iii) any guarantor from any Guaranty or (iv) Trustor from
any of its obligations under the Leases or the Operating Agreements, or
constitute an assumption of any such obligation on the part of Beneficiary. No
action or failure to act on the part of Trustor shall adversely affect or limit
the rights of Beneficiary under this Deed of Trust or the Assignment of Leases
or, through this Deed of Trust or the Assignment of Leases, under the Leases,
the Operating Agreements or the Guaranties.
26.6. During the term hereof, all rights, powers and
privileges of Beneficiary herein set forth are coupled with an interest and are
irrevocable, subject to the terms and conditions hereof, and Trustor will not
take any action under the Leases, the Operating Agreements or otherwise which is
inconsistent with the terms hereof or of the Assignment of Leases, and any such
action inconsistent herewith or therewith, as well as any further assignment
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<PAGE> 22
of any rents, issue or profits from the Premises, shall be void. To the extent
permitted by law, Trustor hereby waives any requirement that Beneficiary
commence any foreclosure proceeding with respect to any or all of the Trust
Property prior to enforcement of any remedies pursuant to this Article,
including the right to commence and prosecute an action to appoint a receiver
for rents and all other amounts due under any Leases, Operating Agreements or
Guaranties. Trustor will, from time to time, upon request of Beneficiary, at
Trustor's sole cost and expense, execute (subject to Section 12.24 of the Loan
Agreement) all instruments and further assurances and all supplemental
instruments and take all such action as Beneficiary from time to time may
reasonably request in order to perfect, preserve and protect the interests
intended to be assigned to Beneficiary hereby.
26.7. Trustor hereby agrees that, except as permitted in the
Loan Agreement, it will not, unilaterally or by agreement, subordinate, amend,
modify, extend, discharge, terminate, surrender, waive or otherwise change any
term of any of the Leases, Operating Agreements or Guaranties in any manner that
would violate this Deed of Trust or any other Loan Document. If any of the
Leases, Operating Agreements or Guaranties shall be amended as permitted
thereby, they shall continue to be subject to the provisions hereof without the
necessity of any further act by any of the parties hereto.
26.8. Upon the payment, or the provision, in accordance with
the applicable provisions of this Deed of Trust and the other provisions of the
Loan Documents, for payment in full, of the Debt on the Maturity Date, the
assignment made in this Article and all rights hereunder assigned to Beneficiary
shall cease and terminate and shall revert to Trustor. Further, upon the partial
repayment of the Note and all other sums in an amount sufficient to cause the
release of the Trust Property from the Lien of this Deed of Trust pursuant to
the terms of Section 2.4 of the Loan Agreement, the assignment made in this
Article and all rights hereunder assigned to Beneficiary in respect thereof
shall cease and terminate and revert to Trustor.
26.9. This Article shall not be construed to bind Beneficiary
to the performance of any of the covenants, conditions or provisions contained
in any Lease, Operating Agreement or Guaranty or otherwise impose any obligation
upon Beneficiary. Beneficiary shall not be liable for any loss sustained by
Trustor resulting from Beneficiary's failure to let the Premises or from any
other act or omission of Beneficiary in managing the Premises after an Event of
Default, unless such loss is caused by the negligence, willful misconduct or bad
faith of Beneficiary. This Article shall not operate to place any obligation or
liability for the control, care, management or repair of the Premises upon
Beneficiary, nor for the carrying out of any of the terms and conditions of the
Leases or any Guaranty; nor shall it operate to make Beneficiary responsible or
liable for any waste committed on the Premises, including the presence of any
Hazardous Substances (as defined in the Environmental Indemnity), or for any
negligence by any person other than Beneficiary in the management, upkeep,
repair or control of the Premises resulting in loss or injury or death to any
tenant, licensee, employee or stranger. Nothing in this Article shall be
construed as constituting Beneficiary a "mortgagee in possession" in the absence
of the taking of actual possession of the Premises by Beneficiary.
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<PAGE> 23
26.10. (a) If an Event of Default shall have occurred and be
continuing, Beneficiary shall have the right to proceed in its own name or in
the name of Trustor in respect of any claim, suit, action or proceeding relating
to the rejection of any Lease, Operating Agreement or Guaranty by or on behalf
of any lessee or other party thereunder, including the right to file and
prosecute, to the exclusion of Trustor, any proofs of claim, complaints,
motions, applications, notices and other documents, in any case in respect of
the lessee under such Lease or any other party under any Operating Agreement or
Guaranty under the Bankruptcy Code.
(b) If there shall be filed by or against Trustor a
petition under the Bankruptcy Code, and Trustor, as lessor under any Lease or
Operating Agreement, shall determine to reject such Lease or Operating Agreement
pursuant to Section 365(a) of the Bankruptcy Code, then Trustor shall give
Beneficiary not less than ten (10) days' prior notice of the date on which
Trustor shall apply to the bankruptcy court for authority to reject such Lease
or Operating Agreement. Beneficiary shall have the right, but not the
obligation, to serve upon Trustor within such ten-day period a notice stating
that (A) Beneficiary demands that Trustor assume and assign such Lease or
Operating Agreement to Beneficiary pursuant to Section 365 of the Bankruptcy
Code and (B) Beneficiary covenants to cure or provide adequate assurance of
future performance under such Lease or Operating Agreement. If Beneficiary
serves upon Trustor the notice described in the preceding sentence, Trustor
shall not seek to reject such Lease or Operating Agreement and shall comply with
the demand provided for in clause (A) of the preceding sentence within thirty
(30) days after the notice shall have been given, subject to the performance by
Beneficiary of the covenant provided for in clause (B) of the preceding
sentence.
27. INTENTIONALLY OMITTED.
28. INTENTIONALLY OMITTED.
29. MAXIMUM AMOUNT. Notwithstanding anything contained herein
to the contrary, the maximum amount of principal indebtedness secured by this
Deed of Trust at execution or which under any contingency may become secured
hereby at any time hereafter is $130,000,000.00 plus all accrued and unpaid
interest thereon, plus amounts expended by Beneficiary after a default hereunder
to maintain the Lien of this Deed of Trust or to protect the Trust Property,
including, without limitation, amounts in respect of insurance premiums, real
estate taxes and litigation expenses to prosecute or defend the rights, remedies
and Lien of this Deed of Trust or title to the Trust Property.
30. NON RESIDENTIAL PROPERTY. This Deed of Trust does not
cover real property principally improved by one or more structures containing in
the aggregate six (6) or less residential dwelling units having their own
separate cooking facilities.
31. NOTICES. All notices, consents, approvals and requests
required or permitted hereunder shall be given in writing and shall be effective
for all purposes if hand delivered or sent by (a) certified or registered United
States mail, postage prepaid, or (b) expedited prepaid delivery service, either
commercial or United States Postal Service, with proof of attempted delivery,
addressed as follows (or at such other address and person as shall be
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<PAGE> 24
designated from time to time by any party hereto, as the case may be, in a
written notice to the other parties hereto in the manner provided for in this
Article):
If to Beneficiary:
Archon Financial, L.P.
600 E. Las Colinas Boulevard
Suite 800
Irving, Texas 75039
Attention: General Counsel
with a copy to:
Archon Group, L.P.
600 E. Las Colinas Boulevard
Suite 400
Irving, Texas 75039
Attention: Michael W. Forbes
and
Goldman Sachs Mortgage Company
85 Broad Street
New York, NY 10004
Attention: Mark J. Kogan
and
Schulte Roth & Zabel LLP
900 Third Avenue
New York, NY 10022
Attention: Jeffrey A. Lenobel, Esq.
If to Trustor:
Glimcher Lloyd Venture, LLC
20 South Third Street
Columbus, OH 43215
Attention: George A. Schmidt
Senior Vice President
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<PAGE> 25
with a copy to:
Frost & Jacobs LLP
One Columbus-Suite 1000
10 West Broad Street
Columbus, OH 43215-3467
Attention: John I. Cadwallader, Esq.
A notice shall be deemed to have been given: in the case of hand delivery, at
the time of delivery; in the case of registered or certified mail, when
delivered or the first attempted delivery on a Business Day; or in the case of
expedited prepaid delivery, upon the first attempted delivery on a Business Day.
32. WAIVER OF TRIAL BY JURY; WAIVER OF CLAIMS.
32.1. To the extent permitted under applicable law, Trustor
hereby waives and shall waive trial by jury in any action or proceeding brought
by, or any counterclaim asserted by Beneficiary which action, proceeding or
counterclaim in any way arises out of or is connected with this Deed of Trust.
32.2. Trustor hereby waives any and all right to assert any
setoff or counterclaim of any nature whatsoever with respect to the Secured
Obligations in any action or proceeding by Beneficiary to collect the same, or
any portion thereof, or to enforce and realize upon the Lien and security
interest created by this Deed of Trust or any other Loan Documents, provided,
however, that Trustor expressly reserves the right to assert any such claim in a
separate proceeding and provided further that Trustor expressly reserves the
right to assert any claim in the same action commenced by Beneficiary if such
claim is of a mandatory or compulsory nature or would be barred or materially
impaired if not asserted in the action commenced by Beneficiary.
33. SEVERABILITY. In case any one or more of the provisions
contained in this Deed of Trust shall be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
34. TRUSTEE'S FEES; SUBSTITUTE TRUSTEE. (a) Trustor shall pay
all costs, fees and expenses incurred by Trustee and Trustee's agents and
counsel in connection with the performance by Trustee of Trustee's duties
hereunder and all such costs, fees and expenses shall be secured by this Deed of
Trust.
(b) Trustee shall be under no duty to take any action
hereunder except as expressly required hereunder or by law, or to perform any
act which would involve Trustee in any expense or liability or to institute or
defend any suit in respect hereof, unless properly indemnified to Trustee's
reasonable satisfaction. Trustee, by acceptance of this Deed of Trust, covenants
to perform and fulfill the trusts herein created, being liable, however, only
for willful negligence or misconduct, and hereby waives any statutory fee and
agrees to accept reasonable compensation, in
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<PAGE> 26
lieu thereof, for any services rendered by Trustee in accordance with the terms
hereof. Trustee may resign at any time upon giving thirty (30) days' notice to
Trustor and to Beneficiary. Beneficiary may remove Trustee at any time or from
time to time and select a successor trustee. In the event of the death, removal,
resignation, refusal to act, or inability to act of Trustee, or in its sole
discretion for any reason whatsoever, Beneficiary may, without notice and
without specifying any reason therefor and without applying to any court, select
and appoint a successor trustee, by an instrument recorded wherever this Deed of
Trust is recorded and all powers, rights, duties and authority of Trustee, as
aforesaid, shall thereupon become vested in such successor. Such substitute
trustee shall not be required to give bond for the faithful performance of the
duties of Trustee hereunder unless required by Beneficiary. The procedure
provided for in this paragraph for substitution of Trustee shall be in addition
to and not in exclusion of any other provisions for substitution, by law or
otherwise.
35. POWER OF SALE. (a) Upon the occurrence of an Event of
Default, Trustee, or the agent or successor of Trustee, at the request of
Beneficiary, shall sell or offer for sale the Trust Property in such portions,
order and parcels as Beneficiary may determine with or without having first
taken possession of same, to the highest bidder for cash at one or more public
auctions in accordance with the terms and provisions of the law of the State in
which the Trust Property is located. Such sale shall be made at the area within
the courthouse of the county in which the Trust Property (or any portion thereof
to be sold) is situated (whether the parts or parcels thereof, if any, in
different counties are contiguous or not, and without the necessity of having
any personal property hereby secured present at such sale) which is designated
by the applicable court of such County as the area in which public sales are to
take place, or, if no such area is designated, at the area at the courthouse
designated in the notice of sale as the area in which the sale will take place,
on such day and at such times as permitted under applicable law of the State
where the Trust Property is located, after advertising the time, place and terms
of sale and that portion of the Trust Property in accordance with such law, and
after having served written or printed notice of the proposed sale by certified
mail on each Trustor obligated to pay the Note and other secured indebtedness
secured by this Deed of Trust according to the records of Beneficiary in
accordance with applicable law. The affidavit of any person having knowledge of
the facts to the effect that such service was completed shall be prima facie
evidence of the fact of service.
36. NONRESIDENTIAL TRUST DEED. Trustor warrants that this Deed
of Trust is not and will not at any time constitute a "Residential Deed of
Trust" or "Residential Line of Credit Instrument" as those terms are defined in
ORS86.705(3) and 86.155(1)(c).
37. INSURANCE. WARNING: Unless Trustor provides Beneficiary
with evidence of the insurance coverage as required by the Loan Agreement,
Beneficiary may purchase insurance at Trustor's expense to protect Beneficiary's
interest. This insurance may, but need not, also protect Trustor's interest. If
the collateral becomes damaged, the coverage Beneficiary purchases may not pay
any claim Trustor makes or any claim made against Trustor. Trustor may later
cancel this coverage by providing evidence that Trustor has obtained property
coverage elsewhere.
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<PAGE> 27
Trustor is responsible for the cost of any insurance purchased
by Beneficiary as provided in the immediately preceding paragraph. The cost of
this insurance may be added to Trustor's loan balance. If the cost is added to
Trustor's loan balance, the interest rate on the underlying loan will apply to
this added amount. The effective date of coverage may be the date Trustor's
prior coverage lapsed or the date Trustor failed to provide proof of coverage.
The coverage Beneficiary purchases may be considerably more
expensive than insurance Trustor can obtain on Trustor's own and may not satisfy
any need for property damage coverage or any mandatory liability insurance
requirements imposed by applicable law.
Trustor hereby acknowledges receipt, without charge, of a true
copy of this Deed of Trust.
38. ORAL AGREEMENTS. Under Oregon law, most agreements,
promises and commitments made by a lender after October 3, 1989, concerning
loans and other credit extensions which are not for personal, family or
household purposes or secured solely by the borrower's residence must be in
writing, express consideration and be signed by the lender to enforceable.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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<PAGE> 28
IN WITNESS WHEREOF, Trustor has caused this Deed of Trust to
be duly executed and delivered as of the date first above written.
Signed and acknowledged in
the presence of:
GLIMCHER LLOYD VENTURE, LLC,
a Delaware limited liability company
/s/ Peggy Gamblin
- ---------------------
Name: By: Glimcher Portland, Inc., its managing member
By: /s/ George A. Schmidt
/s/ Elena Vulovic George A. Schmidt
- --------------------- Senior Vice President
Name:
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<PAGE> 29
COUNTY OF )
ss:
STATE OF )
On the ___ day of September, 1998 before me, the undersigned, a notary public in
and for said State, personally appeared George A. Schmidt, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her capacity, and that by his/her signature on
the instrument, the individual, or the person upon behalf of which the
individual acted, executed the instrument.
/s/ Debra Paoli
- -------------------------------
Notary Public
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<PAGE> 30
EXHIBIT A
---------
DESCRIPTION OF LAND
30
<PAGE> 31
EXHIBIT B
DESCRIPTION OF LEASEHOLD ESTATE
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<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Glimcher Realty Trust on Forms S-3 (File Nos. 33-90730, 33-91084, 333-43317,
333-43319 and 333-61339) and on Forms S-8 (File Nos. 33-94542 and 333-10221) of
our report dated May 27, 1998, relating to the Statements of Revenues and
Certain Expenses of Lloyd Center Mall for the year ended December 31, 1997,
which report appears in this Form 8-K of Glimcher Realty Trust.
PRICEWATERHOUSECOOPERS LLP
Columbus, Ohio
September 29, 1998
