<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1999
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission file number 001-12482
GLIMCHER REALTY TRUST
(Exact name of registrant as specified in its charter)
MARYLAND 31-1390518
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
20 SOUTH THIRD STREET 43215
COLUMBUS, OHIO (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (614) 621-9000
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on which registered
------------------- -----------------------------------------
<S> <C>
COMMON SHARES OF BENEFICIAL INTEREST, PAR VALUE $0.01 PER SHARE NEW YORK STOCK EXCHANGE
9 1/4% SERIES B CUMULATIVE REDEEMABLE PREFERRED SHARES OF NEW YORK STOCK EXCHANGE
BENEFICIAL INTEREST, PAR VALUE $0.01 PER SHARE
</TABLE>
-------------------------------------
Securities registered pursuant to Section 12(g) of the Act: NONE
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. YES X NO
--- ---
As of August 2, 1999, there were 23,748,041 Common Shares of Beneficial Interest
outstanding, par value $0.01 per share.
1 of 26 pages
<PAGE> 2
GLIMCHER REALTY TRUST
FORM 10-Q
INDEX
-----
<TABLE>
<CAPTION>
PART I: FINANCIAL INFORMATION PAGE
----
<S> <C>
Item 1. Financial Statements
Consolidated Balance Sheets as of June 30, 1999 and December 31, 1998 3
Consolidated Statements of Operations for the three months ended June 30, 1999 and 1998 4
Consolidated Statement of Operations for the six months ended June 30, 1999 and 1998 5
Consolidated Statements of Cash Flows for the six months ended June 30, 1999 and 1998 6
Notes to Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 12
Item 3. Quantitative and Qualitative Disclosures About Market Risk 22
PART II: OTHER INFORMATION
Item 1. Legal Proceedings 23
Item 2. Changes in Securities 23
Item 3. Defaults Upon Senior Securities 23
Item 4. Submission of Matters to a Vote of Security Holders 23
Item 5. Other Information 23
Item 6. Exhibits and Reports on Form 8-K 23
SIGNATURES 26
</TABLE>
2
<PAGE> 3
PART 1
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
GLIMCHER REALTY TRUST
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT SHARE AND PAR VALUE AMOUNTS)
ASSETS
<TABLE>
<CAPTION>
(UNAUDITED)
JUNE 30, 1999 DECEMBER 31, 1998
------------- -----------------
<S> <C> <C>
Investment in real estate:
Land................................................................... $ 171,460 $ 171,266
Buildings, improvements and equipment.................................. 1,251,619 1,240,121
Developments in progress:
Land................................................................ 10,832 6,183
Developments........................................................ 8,538 11,071
--------------- -------------
1,442,449 1,428,641
Less accumulated depreciation.......................................... 152,471 137,229
--------------- ------------
Net investment in real estate....................................... 1,289,978 1,291,412
Cash and cash equivalents................................................ 7,892 8,949
Cash in escrow........................................................... 14,188 11,327
Investment in and advances to unconsolidated entities.................... 207,612 200,205
Tenant accounts receivable, net.......................................... 27,310 29,050
Deferred expenses, net................................................... 11,099 10,742
Prepaid and other assets................................................. 6,064 6,810
------------- -----------
$ 1,564,143 $ 1,558,495
============= ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Mortgage notes payable................................................... $ 861,740 $ 830,795
Notes payable............................................................ 149,800 163,000
Accounts payable and accrued expenses.................................... 33,447 32,143
Distributions payable.................................................... 19,543 18,126
------------- -----------
1,064,530 1,044,064
Commitments and contingencies
Minority interest in partnership......................................... 31,563 33,356
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, 1999 and December 31, 1998, respectively............. 90,000 90,000
Shareholders' equity:
Series B cumulative 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, 23,742,122
and 23,711,098 shares issued and outstanding as of June 30, 1999
and December 31, 1998, respectively................................. 237 237
Additional paid-in capital............................................. 353,505 353,117
Distributions in excess of accumulated earnings........................ (103,642) (90,229)
------------- -----------
$ 1,564,143 $ 1,558,495
============= ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
3
<PAGE> 4
GLIMCHER REALTY TRUST
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE MONTHS ENDED JUNE 30, 1999 AND 1998
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Revenues:
Minimum rents......................................................... $ 37,939 $ 30,254
Percentage rents...................................................... 828 666
Tenant recoveries..................................................... 11,772 7,612
Other................................................................. 2,720 1,658
------------ ------------
Total revenues...................................................... 53,259 40,190
------------ ------------
Operating expenses:
Real estate taxes...................................................... 4,859 3,564
Recoverable operating expenses......................................... 7,994 4,790
------------ ------------
12,853 8,354
Other operating expenses............................................... 1,169 513
------------ ------------
Total operating expenses............................................ 14,022 8,867
------------ ------------
Depreciation and amortization.............................................. 10,642 8,304
General and administrative................................................. 2,429 2,370
Interest income............................................................ 255 614
Interest expense........................................................... 15,140 9,992
Equity in income (loss) of unconsolidated entities......................... (1,088) (967)
Minority interest in operating partnership................................. 451 603
------------ ------------
Income before extraordinary item.................................... 9,742 9,701
Extraordinary item:
Charges related to extinguishment of debt.............................. 295
------------ ------------
Net income.......................................................... 9,447 9,701
Preferred stock dividends.................................................. 5,132 4,894
------------ ------------
Net income available to common shareholders......................... $ 4,315 $ 4,807
============ ============
Earnings per share before extraordinary item (basic)....................... $ 0.19 $ 0.20
Extraordinary item......................................................... 0.01
------------ ------------
Earnings per share (basic)................................................. $ 0.18 $ 0.20
============ ============
Earnings per share before extraordinary item (diluted)..................... $ 0.19 $ 0.20
Extraordinary item......................................................... 0.01
------------ ------------
Earnings per share (diluted)............................................... $ 0.18 $ 0.20
============ ============
Cash distributions declared per common share of beneficial interest........ $ 0.4808 $ 0.4808
============ ============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
4
<PAGE> 5
GLIMCHER REALTY TRUST
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1999 AND 1998
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Revenues:
Minimum rents......................................................... $ 75,735 $ 59,892
Percentage rents...................................................... 2,384 1,841
Tenant recoveries..................................................... 23,927 14,802
Other................................................................. 5,299 3,319
------------ -------------
Total revenues...................................................... 107,345 79,854
------------ -------------
Operating expenses:
Real estate taxes...................................................... 9,932 7,360
Recoverable operating expenses......................................... 16,099 8,942
------------ -------------
26,031 16,302
Other operating expenses............................................... 2,396 1,388
------------ -------------
Total operating expenses............................................ 28,427 17,690
------------ -------------
Depreciation and amortization.............................................. 20,992 16,355
General and administrative................................................. 5,116 4,508
Interest income............................................................ 486 1,234
Interest expense........................................................... 30,023 20,197
Equity in income (loss) of unconsolidated entities......................... (1,996) (1,155)
Minority interest in operating partnership................................. 1,078 1,270
------------ -------------
Income before extraordinary item....................................... 20,199 19,913
Extraordinary item:
Charges related to extinguishment of debt.............................. 295
------------ -------------
Net income.......................................................... 19,904 19,913
Preferred stock dividends.................................................. 10,498 9,802
------------ -------------
Net income available to common shareholders......................... $ 9,406 $ 10,111
============ =============
Earnings per share before extraordinary items (basic)...................... $ 0.41 $ 0.43
Extraordinary item......................................................... 0.01
------------ -------------
Earnings per share (basic)................................................. $ 0.40 $ 0.43
============ =============
Earnings per share before extraordinary item (diluted)..................... $ 0.40 0.43
Extraordinary item......................................................... 0.01
------------ -------------
Earnings per share (diluted)............................................... $ 0.39 $ 0.43
============ =============
Cash distributions declared per common share of beneficial interest........ $ 0.9616 $ 0.9616
============ =============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
5
<PAGE> 6
GLIMCHER REALTY TRUST
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE SIX MONTHS ENDED JUNE 30, 1999 AND 1998
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net income.............................................................. $ 19,904 $ 19,913
Adjustments to reconcile net income to net cash provided by
operating activities:
Provision for doubtful accounts................................ 1,216 762
Depreciation and amortization.................................. 20,992 16,355
Other non-cash expenses........................................ 295 401
Equity in (income) loss of unconsolidated entities............. 1,996 1,155
Minority interest in operating partnership..................... 1,078 1,270
Net changes in operating assets and liabilities:
Tenant accounts receivable, net................................ 524 (2,184)
Deferred expenses, prepaid and other assets.................... 1,071 (166)
Accounts payable and accrued expenses.......................... (766) 1,629
------------ -----------
Net cash provided by operating activities................... 46,310 39,135
------------ -----------
Cash flows from investing activities:
Additions to investment in real estate.............................. (15,771) (13,780)
Acquisition of properties........................................... (54,961)
Investment in unconsolidated entities, net of distributions......... (9,403) (83,320)
(Payments to) withdrawals from cash in escrow....................... (2,861) 2,242
Additions to deferred expenses, prepaid and other assets............ (2,565) (4,187)
------------ ------------
Net cash used in investing activities....................... (30,600) (154,006)
------------ ----------
Cash flows from financing activities:
(Payments to) proceeds from revolving line of credit, net........... (13,200) 55,600
Proceeds from issuance of mortgage and notes payable................ 144,640 95,418
Principal payments on mortgage and notes payable.................... (113,695) (10,542)
Proceeds from issuance of shares.................................... 242 390
Cash distributions.................................................. (34,754) (31,805)
------------ -----------
Net cash (used in) provided by financing activities......... (16,767) 109,061
------------ ----------
Net change in cash and cash equivalents...................................... (1,057) (5,810)
Cash and cash equivalents, at beginning of period............................ 8,949 7,434
------------ -----------
Cash and cash equivalents, at end of period.................................. $ 7,892 $ 1,624
============ ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
6
<PAGE> 7
GLIMCHER REALTY TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
1. BASIS OF PRESENTATION
The accompanying consolidated financial statements include the accounts
of Glimcher Realty Trust (the "Company" or "GRT"), Glimcher Properties Limited
Partnership (the "Operating Partnership") (88.9% owned by GRT at June 30, 1999
and December 31, 1998), six Delaware limited partnerships (Glimcher Holdings
Limited Partnership, Glimcher Centers Limited Partnership, Grand Central Limited
Partnership, Glimcher York Associates Limited Partnership, Glimcher University
Mall Limited Partnership and Montgomery Mall Associates Limited Partnership),
three Delaware limited liability companies (Glimcher Northtown Venture, LLC,
Weberstown Mall, LLC and Glimcher Lloyd Venture, LLC) and one Ohio limited
partnership (Morgantown Mall Associates Limited Partnership), all of which are
owned directly or indirectly by GRT. The Operating Partnership has an investment
in several joint ventures and one other corporation which are accounted for
under the equity method. All significant inter-entity balances and transactions
have been eliminated.
The consolidated financial statements have been prepared in accordance
with generally accepted accounting principles for interim financial information
and in accordance with instructions to Form 10-Q and Article 10 of Regulation
S-X. Accordingly, they do not include all of the information and footnotes
required by generally accepted accounting principles for complete financial
statements. The information furnished in the accompanying consolidated balance
sheets, statements of operations, and statements of cash flows reflect all
adjustments which are, in the opinion of management, necessary for a fair
presentation of the aforementioned financial statements for the interim periods.
Operating results for the six months ended June 30, 1999, are not necessarily
indicative of the results that may be expected for the year ending December 31,
1999.
The consolidated financial statements should be read in conjunction
with the notes to the consolidated financial statements, Management's Discussion
and Analysis of Financial Condition and Results of Operations included in GRT's
Form 10-K for the year ended December 31, 1998.
During the second quarter of 1998 the Financial Accounting Standards
Board Emerging Issues Task Force issued EITF 98-9 relating to the recognition of
contingent rental income in interim periods. Under EITF 98-9 the Company is
required to recognize percentage rents in interim periods after the contingent
sales level is exceeded rather than estimating and accruing percentage rents as
if earned ratably over the lease year. The Company adopted EITF 98-9 on a
prospective basis beginning second quarter 1998 and did not restate the first
quarter of 1998. Comparative pro forma results if the standard had been adopted
at the beginning of 1998 would have reduced net income available to common
shareholders by approximately $300,000 ($0.01 per share) for the six months
ended June 30, 1998.
Supplemental disclosure of non-cash financing and investing activities:
The Company accrued accounts payable of $1,451 and $2,814 for real
estate improvements as of June 30, 1999 and 1998, respectively.
Reclassifications
Certain reclassifications of prior period amounts have been made in the
financial statements to conform to the 1999 presentation.
7
<PAGE> 8
GLIMCHER REALTY TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
2. INVESTMENT IN UNCONSOLIDATED ENTITIES
Investment in unconsolidated entities consists of preferred stock and
non-voting common stock of Glimcher Development Corporation, a 45.00% interest
in Great Plains Metro Mall, LLC, a 33.33% interest in Johnson City Venture, LLC,
a 40.00% interest in Dayton Mall Venture, LLC, a 40.00% interest in Colonial
Park Mall Limited Partnership, a 30.00% interest in Elizabeth Metro Mall, LLC, a
34.85% interest in Glimcher SuperMall Venture, LLC, a 20.00% interest in San
Mall, LLC, a 50.00% interest in Polaris Center, LLC and a 20.00% interest in
Eastland Mall, LLC.
The net income (loss) for each unconsolidated entity is allocated in
accordance with the provisions of the applicable operating agreements. The
allocation provisions in these agreements may differ from the ownership interest
held by each member under the terms of these agreements.
The summary financial information of the Company's unconsolidated
entities, accounted for using the equity method, and a summary of the Operating
Partnership's investment in and share of net income (loss) from such
unconsolidated entities are presented below:
BALANCE SHEETS
<TABLE>
<CAPTION>
JUNE 30, 1999 DECEMBER 31, 1998
------------- -----------------
<S> <C> <C>
Assets:
Investment properties at cost, net............................ $ 699,662 $ 675,993
Other assets.................................................. 41,941 41,701
---------- -----------
$ 741,603 $ 717,694
========== ===========
Liabilities and Members' Equity:
Mortgage notes payable........................................ $ 434,052 $ 401,927
Accounts payable and accrued expenses......................... 105,983 113,837
---------- -----------
540,035 515,764
Members' equity............................................... 201,568 201,930
---------- -----------
$ 741,603 $ 717,694
========== ===========
Operating Partnership's share of:
Members' equity............................................... $ 134,343 $ 136,645
========== ===========
RECONCILIATION OF MEMBERS' EQUITY TO COMPANY
INVESTMENT IN UNCONSOLIDATED ENTITIES:
Members' equity................................................... $ 134,343 $ 136,645
Advances and additional costs..................................... 73,269 63,560
---------- -----------
Investment in unconsolidated entities............................. $ 207,612 $ 200,205
========== ===========
</TABLE>
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
-------------------------- -----------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Total revenues....................................... $ 22,914 $ 22,456 $ 46,219 $ 38,518
Operating expenses................................... (11,169) (12,590) (22,921) (19,642)
------------ ------------- ----------- ---------
Net operating income................................. 11,745 9,866 23,298 18,876
Depreciation and amortization........................ (4,371) (3,628) (8,607) (6,760)
Interest expense..................................... (7,235) (6,193) (14,250) (11,509)
------------ ------------- ----------- ---------
Net income (loss).................................... $ 139 $ 45 $ 441 $ 607
============ ============= =========== =========
Operating Partnership's share of net income (loss)... $ (1,088) $ (967) $ (1,996) $ (1,155)
============ ============= =========== =========
</TABLE>
8
<PAGE> 9
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
3. MORTGAGE NOTES PAYABLE AS OF JUNE 30, 1999 AND DECEMBER 31, 1998
CONSIST OF THE FOLLOWING:
<TABLE>
<CAPTION>
CARRYING AMOUNT OF PAYMENT PAYMENT AT MATURITY
DESCRIPTION MORTGAGE NOTES PAYABLE INTEREST RATE TERMS MATURITY DATE
- ------------------------------------------------------------------------------------------------------------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Glimcher Holdings L.P............ $ 25,000 $ 25,000 6.935% 6.935% (a) $25,000 Oct. 1, 2000
Glimcher Holdings L.P. - Loan A.. 40,000 6.995%
Glimcher Holdings L.P. - Loan B.. 40,000 40,000 7.505% 7.505% (a) 40,000 Feb. 1, 2003
Glimcher Centers L.P............. 76,000 76,000 7.625% 7.625% (a) 76,000 Aug. 1, 2000
Grand Central L.P................ 52,332 7.180% (b) 46,065 Feb. 1, 2009
Morgantown Mall Associates L.P... 57,934 58,214 6.890% 6.890% (b) (c) (c)
University Mall L.P.............. 70,303 70,695 7.090% 7.090% (b) (d) (d)
Northtown Mall, LLC.............. 40,000 40,000 6.912% 6.912% (a) 40,000 Aug. 30, 2001
Montgomery Mall Associates, L.P.. 47,367 47,602 6.740% 6.740% (b) (e) (e)
Weberstown Mall, LLC ............ 20,489 11,520 7.430% 8.800% (b) 19,151 May 1, 2000
Glimcher Lloyd Venture, LLC...... 130,000 130,000 (f) (f) (a) 130,000 Oct. 11, 2001
Glimcher Properties L.P. Mortgage
Notes Payable:
Glimcher Properties L.P...... 50,000 50,000 7.470% 7.470% (a) 50,000 Oct. 26, 2002
Glimcher Properties L.P.(o).. 21,520 (g) (b) 18,645 July 1, 2009
Other Mortgage Notes......... 79,622 101,709 (h) (h) (b) 70,304 (i)
Other Bridge Facilities...... 94,000 89,000 (j) (j) (a) 94,000 (k)
Tax Exempt Bonds............. 19,000 19,000 6.000% 6.000% (l) Nov. 1, 2028
Construction Loans........... 38,173 32,055 (m) (m) (a) (n)
-------- ---------
Total Mortgage Notes Payable..... $861,740 $ 830,795
========= =========
</TABLE>
(a) The loan requires monthly payments of interest only.
(b) The loan requires monthly payments of principal and interest.
(c) The loan matures in September 2028, with an optional prepayment date in
2008.
(d) The loan matures in January 2028, with an optional prepayment date in 2013.
(e) The loan matures in August 2028, with an optional prepayment date in 2005.
(f) Interest rate of LIBOR (capped at 7.750% until maturity) plus 125 basis
points (6.240% at June 30, 1999 and 6.790% at December 31, 1998).
(g) Interest rate of LIBOR plus 210 basis points (7.360% at June 30, 1999);
converts to fixed rate of 10 year treasury plus 210 basis points prior to
April 2000.
(h) Interest rates ranging from 7.875% to 9.125%.
(i) Final maturity dates ranging from November 1999 to April 2016.
(j) Interest rates ranging from LIBOR plus 160-275 basis points (6.550% -7.939%
at June 30, 1999 and 7.147%-11.375% at December 31,1998).
(k) Final maturity dates ranging from July 1999 to June 2000; a bridge facility
of $50,000 was refinanced in July 1999. (see note (o) ).
(l) The loan requires semi-annual payments of interest.
(m) Interest rates ranging from 6.843% to 6.943% at June 30, 1999 and 7.626% at
December 31, 1998.
(n) Final maturity dates ranging from October 1999 to February 2001.
(o) Permanent financing commitment of $90,000 of which $21,520 was used to
refinance current maturities in June 1999, $50,000 was drawn in July 1999 to
refinance a maturing bridge facility and $18,500 is available to refinance a
$18,434 mortgage note payable that matures November 1, 1999.
All mortgage notes payable are collateralized by certain properties
owned by the respective partnerships. Certain of the loans contain financial
covenants regarding minimum net operating income and coverage ratios.
4. NOTES PAYABLE
On June 17, 1999, the Company, through the Operating Partnership,
amended its existing revolving line of credit (the "Credit Facility"). The
amended Credit Facility provides for a decrease in the amount the Company can
borrow to $170,000, extends the term through January 31, 2001, is collateralized
by three properties and currently bears interest at a rate equal to LIBOR plus
190 basis points per annum (7.1875% at June 30, 1999). Payments due under the
Credit Facility are guaranteed by GRT.
9
<PAGE> 10
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
5. EARNINGS PER SHARE
Presentation of basic EPS and diluted EPS is summarized in the table
below:
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED JUNE 30,
----------------------------------------------------------------
1999 1998
----------------------------- -------------------------------
PER PER
INCOME SHARES SHARE INCOME SHARES SHARE
------ ------ ----- ------ ------ -----
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS
Income available to common shareholders....... $ 4,315 23,736 $ 0.18 $4,807 23,691 $ 0.20
EFFECT OF DILUTIVE SECURITIES
Operating Partnership units................... 451 2,965 603 2,978
Options....................................... 92 76
--------- ------ ------- -------- -------- --------
DILUTED EPS
Income available plus assumed conversions..... $ 4,766 26,793 $ 0.18 $ 5,410 26,745 $ 0.20
========= ======= ======= ======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
FOR THE SIX MONTHS ENDED JUNE 30,
----------------------------------------------------------------
1999 1998
----------------------------- -------------------------------
PER PER
INCOME SHARES SHARE INCOME SHARES SHARE
------ ------ ----- ------ ------ -----
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS
Income available to common shareholders....... $ 9,406 23,727 $ 0.40 $10,111 23,683 $ 0.43
EFFECT OF DILUTIVE SECURITIES
Operating Partnership units................... 1,078 2,968 (0.01) 1,270 2,961
Options....................................... 31 97
--------- ------ ------- -------- -------- --------
DILUTED EPS
Income available plus assumed conversions..... $ 10,484 26,726 $ 0.39 $11,381 26,741 $ 0.43
========= ======= ======== ======= ======= ======
</TABLE>
The Series A-1 and Series D convertible preferred shares of beneficial
interest include certain conversion features that could potentially dilute EPS
in the future, but were not included in the computation of diluted EPS because
to do so would have been antidilutive (based on period end share prices) for the
periods presented.
6. SHAREHOLDERS' EQUITY
The Company's Declaration of Trust authorizes the Company to issue up
to an aggregate of 100,000,000 shares of beneficial interest, consisting of
common shares or one or more series of preferred shares of beneficial interest.
The following table summarizes the change in distributions in excess of
accumulated earnings since January 1, 1999:
<TABLE>
<S> <C>
Balance, January 1, 1999............................ $ (90,229)
Distributions declared, $0.9616 per share...... (22,819)
Preferred stock dividends...................... (10,498)
Net income..................................... 19,904
----------
Balance, June 30, 1999.............................. $ (103,642)
==========
</TABLE>
10
<PAGE> 11
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
7. SEGMENT REPORTING
Statement of Financial Accounting Standards No. 131 establishes
standards for publicly-held business enterprises to report information about
operating segments in annual financial statements and requires that these
enterprises report selected information about operating segments in interim
financial reports issued to shareholders, as summarized in the table below:
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED JUNE 30, 1999
-------------------------------------------------------
COMMUNITY
MALLS CENTERS CORPORATE TOTAL
---------- --------- -------- ----------
<S> <C> <C> <C>
Total revenues.................... $ 33,546 $ 19,713 $ $ 53,259
Total operating expenses.......... 10,730 3,292 14,022
---------- --------- ------- ----------
Property net operating income..... $ 22,816 $ 16,421 $ $ 39,237
========== ========= ======= ==========
Net investment in real estate..... $ 748,657 537,159 $ 4,162 $1,289,978
========== ========= ======= ==========
</TABLE>
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED JUNE 30, 1998
-------------------------------------------------------
COMMUNITY
MALLS CENTERS CORPORATE TOTAL
---------- --------- -------- ----------
<S> <C> <C> <C>
Total revenues.................... $ 20,962 $ 19,228 $ $ 40,190
Total operating expenses.......... 5,711 3,156 8,867
---------- --------- ------- -----------
Property net operating income..... $ 15,251 $ 16,072 $ $ 31,323
========== ========= ======= ===========
Net investment in real estate..... $ 474,998 $545,249 $ 3,241 $ 1,023,488
========== ======== ======= ===========
</TABLE>
<TABLE>
<CAPTION>
FOR THE SIX MONTHS ENDED JUNE 30, 1999
-------------------------------------------------------
COMMUNITY
MALLS CENTERS CORPORATE TOTAL
---------- --------- -------- ----------
<S> <C> <C> <C>
Total revenues.................... $ 67,242 $ 40,103 $ $ 107,345
Total operating expenses.......... 21,346 7,081 28,427
---------- --------- -------- ----------
Property net operating income..... $ 45,896 $ 33,022 $ $ 78,918
========== ========= ======== ==========
Net investment in real estate..... $ 748,657 $ 537,159 $ 4,162 $1,289,978
========== ========= ======== ==========
</TABLE>
<TABLE>
<CAPTION>
FOR THE SIX MONTHS ENDED JUNE 30, 1998
-------------------------------------------------------
COMMUNITY
MALLS CENTERS CORPORATE TOTAL
---------- --------- -------- ----------
<S> <C> <C> <C>
Total revenues.................... $ 40,978 $ 38,876 $ $ 79,854
Total operating expenses.......... 10,987 6,703 17,690
---------- --------- -------- ----------
Property net operating income..... $ 29,991 $ 32,173 $ $ 62,164
========== ========= ======== ==========
Net investment in real estate..... $ 474,998 $ 545,249 $ 3,241 $1,023,488
========== ========= ======== ==========
</TABLE>
11
<PAGE> 12
PART I
FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
The following should be read in conjunction with the unaudited
consolidated financial statements of Glimcher Realty Trust (the "Company" or
"GRT") including the respective notes thereto, all of which are included in this
Form 10-Q.
This Form 10-Q, together with other statements and information publicly
disseminated by GRT, contains certain statements which may be deemed to be
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934,
as amended. Such statements are based on assumptions and expectations which may
not be realized and are inherently subject to risks and uncertainties, many of
which cannot be predicted with accuracy and some of which might not even be
anticipated. Future events and actual results, financial and otherwise, may
differ from the results discussed in the forward-looking statements. Risks and
other factors that might cause differences, some of which could be material,
include, but are not limited to: the effect of economic and market conditions;
failure to consummate financing and joint venture arrangements; development
risks, including lack of satisfactory financing, construction and lease-up
delays and cost overruns; the level and volatility of interest rates; the
financial stability of tenants within the retail industry; the rate of revenue
increases versus expense increases; as well as other risks listed from time to
time in this Form 10-Q and in GRT's other reports filed with the Securities and
Exchange Commission.
RESULTS OF OPERATIONS
THREE MONTHS ENDED JUNE 30, 1999 COMPARED TO THREE MONTHS ENDED JUNE 30, 1998
REVENUES
Total revenues increased 32.5%, or $13.1 million, for the three months
ended June 30, 1999. Of the $13.1 million increase, $12.4 million was the result
of increased revenues at the malls, $500,000 was the result of increased
revenues at the community centers and $200,000 was related to other revenue
increases.
Minimum rents
Minimum rents increased 25.4%, or $7.7 million, for the three months
ended June 30, 1999.
<TABLE>
<CAPTION>
INCREASE (DOLLARS IN MILLIONS)
--------------------------------------------------------------
COMMUNITY PERCENT
MALLS CENTERS TOTAL TOTAL
----- ------- ----- -----
<S> <C> <C> <C> <C>
Same center.................. $ 0.6 $ 0.4 $ 1.0 3.3%
Acquisitions/Developments.... 6.7 0.0 6.7 22.1
----- ----- ------ ----
$ 7.3 $ 0.4 $ 7.7 25.4%
===== ===== ====== ====
</TABLE>
Percentage rents
Percentage rents increased $160,000 for the three months ended June 30,
1999. This increase was primarily earned at the malls.
12
<PAGE> 13
Tenant recoveries
Tenant recoveries reflect a net increase of 54.7%, or $4.2 million, for
the three months ended June 30, 1999.
<TABLE>
<CAPTION>
INCREASE (DOLLARS IN MILLIONS)
--------------------------------------------------------------
COMMUNITY PERCENT
MALLS CENTERS TOTAL TOTAL
----- ------- ----- -----
<S> <C> <C> <C> <C>
Same center.................. $ 0.2 $ 0.2 $ 0.4 5.2%
Acquisitions/Developments.... 3.8 0.0 3.8 49.5
------- ----- ----- ----
$ 4.0 $ 0.2 $ 4.2 54.7%
======= ===== ===== ====
</TABLE>
Other revenues
The $1.1 million increase in other revenues is primarily the result of
increases in temporary tenant income at the malls of $840,000 and a net increase
of $100,000 in management fee revenues from the joint ventures.
OPERATING EXPENSES
Total operating expenses increased 58.1%, or $5.2 million, for the
three months ended June 30, 1999. Recoverable operating expenses increased $4.5
million, the provision for credit losses increased $400,000 and other operating
expenses increased $300,000.
Recoverable expenses
Recoverable operating expenses increased 53.9%, or $4.5 million, for
the three months ended June 30, 1999.
<TABLE>
<CAPTION>
INCREASE (DOLLARS IN MILLIONS)
--------------------------------------------------------------
COMMUNITY PERCENT
MALLS CENTERS TOTAL TOTAL
----- ------- ----- -----
<S> <C> <C> <C> <C>
Same center.................. $ 0.3 $ 0.1 $ 0.4 4.8%
Acquisitions/Developments.... 4.1 0.0 4.1 49.1
----- ------ ----- ----
$ 4.4 $ 0.1 $ 4.5 53.9%
===== ====== ===== ====
</TABLE>
Provision for credit losses
The provision for credit losses was approximately $600,000 and
represented 1.2% of tenant revenues for the three months ended June 30, 1999,
compared to 0.6% of tenant revenues for the three months ended June 30, 1998.
Depreciation and amortization
The $2.3 million increase in depreciation and amortization consists
primarily of an increase of $1.8 million from mall acquisitions and an increase
of $500,000 in the core portfolio properties.
GENERAL AND ADMINISTRATIVE
General and administrative expense was $2.4 million and represented
4.6% of total revenues for the three months ended June 30, 1999, compared to
$2.4 million and 5.9% of total revenues for the corresponding period in 1998.
13
<PAGE> 14
INTEREST EXPENSE/CAPITALIZED INTEREST
Interest expense increased 51.5%, or $5.1 million, for the three months
ended June 30, 1999. The summary below identifies the increase by its various
components (dollars in thousands).
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30,
------------------------------------------------
1999 1998 INC. (DEC.)
---- ---- -----------
<S> <C> <C> <C>
Average loan balance..................... $ 1,021,501 $680,112 $ 341,389
Average rate............................. 7.11% 7.51% (0.40)%
Total interest........................... $ 18,157 $ 12,769 $ 5,388
Less: Capitalized interest.............. (1,667) (1,781) 114
Add: Amortization of rate buydown....... 194 (194)
Other (1)................................ (1,350) (1,190) (160)
------------ -------- ----------
Interest expense......................... $ 15,140 $ 9,992 $ 5,148
============ ========= ==========
</TABLE>
(1) Other consists primarily of interest costs billed to joint venture entities.
RESULTS OF OPERATIONS
SIX MONTHS ENDED JUNE 30, 1999 COMPARED TO SIX MONTHS ENDED JUNE 30, 1998
REVENUES
Total revenues increased 34.4%, or $27.5 million, for the six months
ended June 30, 1999. Of the $27.5 million increase, $25.8 million was the result
of increased revenues at the malls, $1.3 million was the result of increased
revenues at the community centers offset with a decrease of $100,000 from
dispositions and $500,000 was related to other revenue increases.
Minimum rents
Minimum rents increased 26.5%, or $15.8 million, for the six months
ended June 30, 1998.
<TABLE>
<CAPTION>
INCREASE (DOLLARS IN MILLIONS)
-------------------------------------------------------------
COMMUNITY PERCENT
MALLS CENTERS TOTAL TOTAL
----- ------- ----- -----
<S> <C> <C> <C> <C>
Same center.................. $ 1.1 $ 1.0 $ 2.1 3.5%
Acquisitions/Developments.... 13.8 0.0 13.8 23.1
Dispositions................. 0.0 (0.1) (0.1) (0.1)
----- ------ ----- ----
$14.9 $ 0.9 $15.8 26.5%
===== ====== ===== ====
</TABLE>
Percentage rents
Percentage rents increased $540,000 for the six months ended June 30,
1999. This increase was primarily earned at the malls.
Tenant recoveries
Tenant recoveries reflect a net increase of 61.6%, or $9.1 million, for
the six months ended June 30, 1999.
<TABLE>
<CAPTION>
INCREASE (DOLLARS IN MILLIONS)
------------------------------------------------------------
COMMUNITY PERCENT
MALLS CENTERS TOTAL TOTAL
----- ------- ----- -----
<S> <C> <C> <C> <C>
Same center.................. $ 0.8 $ 0.3 $ 1.1 7.4%
Acquisitions/Developments.... 8.0 0.0 8.0 54.2
----- ----- ----- ----
$ 8.8 $ 0.3 $ 9.1 61.6%
===== ===== ===== ====
</TABLE>
14
<PAGE> 15
Other revenues
The $2.0 million increase in other revenues is primarily the result of
increases in temporary tenant income at the malls of $1.6 million and a net
increase of $330,000 in management fee revenues from the joint ventures.
OPERATING EXPENSES
Total operating expenses increased 60.7%, or $10.7 million, for the six
months ended June 30, 1999. Recoverable operating expenses increased $9.7
million, the provision for credit losses increased $450,000 and other operating
expenses increased $550,000.
Recoverable expenses
Recoverable operating expenses increased 59.7%, or $9.7 million, for
the six months ended June 30, 1999.
<TABLE>
<CAPTION>
INCREASE (DOLLARS IN MILLIONS)
---------------------------------------------------------------
COMMUNITY PERCENT
MALLS CENTERS TOTAL TOTAL
----- ------- ----- -----
<S> <C> <C> <C> <C>
Same center.................. $ 0.9 $ 0.3 $ 1.2 7.4%
Acquisitions/Developments.... 8.5 0.0 8.5 52.3
------ ------ ----- ----
$ 9.4 $ 0.3 $ 9.7 59.7%
====== ====== ===== ====
</TABLE>
Provision for credit losses
The provision for credit losses was approximately $1.2 million and
represented 1.1% of tenant revenues for the six months ended June 30, 1999,
compared to 1.0% of tenant revenues for the six months ended June 30, 1998.
Depreciation and amortization
The $4.6 million increase in depreciation and amortization consists
primarily of an increase of $3.6 million from mall acquisitions and an increase
of $1.0 million in the core portfolio properties.
GENERAL AND ADMINISTRATIVE
General and administrative expense was $5.1 million and represented
4.8% of total revenues for the six months ended June 30, 1999, compared to $4.5
million and 5.6% of total revenues for the corresponding period in 1998.
INTEREST EXPENSE/CAPITALIZED INTEREST
Interest expense increased 48.7%, or $9.8 million, for the six months
ended June 30, 1999. The summary below identifies the increase by its various
components (dollars in thousands).
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
----------------------------------------------------
1999 1998 INC. (DEC.)
---- ---- -----------
<S> <C> <C> <C>
Average loan balance..................... $ 1,016,716 $653,024 $ 363,692
Average rate............................. 7.14% 7.52% (0.38)%
Total interest........................... $ 36,297 $ 24,554 $ 11,743
Less: Capitalized interest.............. (3,374) (3,265) (109)
Add: Amortization of rate buydown....... 388 (388)
Other (1)................................ (2,900) (1,480) (1,420)
------------ --------- ---------
Interest expense......................... $ 30,023 $ 20,197 $ 9,826
============ ========= =========
</TABLE>
(1) Other consists primarily of interest costs billed to joint venture entities.
15
<PAGE> 16
LIQUIDITY AND CAPITAL RESOURCES
Liquidity
The Company has several active development, renovation and expansion
projects and will continue to pursue other projects in these areas.
In January 1999, the Company refinanced a maturing $40.0 million
mortgage note payable with a new $52.5 million mortgage note payable on Grand
Central Mall which matures in February 2009 and bears interest at 7.18% per
annum. The Company extinguished $16.0 in maturing short term notes during the
first quarter and refinanced a short term note payable of $10.0 million which
has a new maturity date of October 1, 1999.
In April 1999, the Company refinanced a $11.5 million mortgage note
payable with a new $20.5 million mortgage note payable on Weberstown Mall which
matures in May 2006 and bears interest at 7.43% per annum. Also in April 1999,
the Company modified and increased an existing short term note payable to $21.5
million.
In June 1999, the Company, through the Operating Partnership, amended
its existing revolving line of credit (the "Credit Facility"). The amended
Credit Facility was reconfigured from $190.0 million collateralized by a pool of
11 properties to $170.0 million line of credit collateralized by three
properties, extended the term through January 31, 2001 and changed the interest
rate to a range of 160 to 190 basis points over LIBOR (7.1875% at June 30,
1999). Payments under the Credit Facility are guaranteed by GRT. Concurrent with
the amendment to the Credit Facility, the Company closed a $24.4 million short
term note payable collateralized by five community centers previously encumbered
by the Credit Facility; three community centers previously encumbered by the
Credit Facility remain unencumbered.
In June 1999, the Company secured a $90.0 million mortgage note payable
of which $21.5 million and $50.0 million were funded in June 1999 and July 1999,
respectively, to refinance existing mortgage maturities and the remaining $18.5
million is expected to be funded in September 1999 with the proceeds to be used
to pay-off a maturing loan.
Management anticipates that net cash provided by operating activities,
the funds available under its Credit Facility, its construction financing,
long-term mortgage debt, venture structure for acquisitions and developments,
issuance of preferred and common shares of beneficial interest and proceeds from
the sale of assets will provide sufficient capital resources to carry out the
Company's business strategy relative to the renovations, expansions and
developments discussed herein. Based upon its current debt-to-market
capitalization, the Company does not expect to pursue significant additional
acquisitions until such time as the Company has reduced the amount of
outstanding borrowings or has access to additional equity capital.
At June 30, 1999, the Company's debt-to-total-market capitalization was
60.7%, compared to 61.0% at December 31, 1998. The Company's intent is to
maintain this ratio between approximately 40.0% and 60.0% and the Company is
working toward reducing this ratio below 60.0% in 1999.
Net cash provided by operating activities for the six months ended
June 30, 1999, was $46.3 million versus $39.1 million for the corresponding
period of 1998. Net income adjusted for non-cash items accounted for a $5.6
million increase, while changes in operating assets and liabilities accounted
for a $1.6 million increase.
Net cash used in investing activities for the six months ended
June 30, 1999, was $30.6 million, and reflects additional direct investments in
real estate assets of $15.8 million and additional indirect investments in real
estate through investments in unconsolidated entities of $9.4 million.
Net cash used in financing activities for the six months ended June 30,
1999, was $16.8 million. Cash was used to reduce outstanding borrowings on the
Credit Facility by $13.2 million, to fund distributions of $34.8 million and
principal payments on mortgage and notes payable of $113.7 million. Cash was
provided by issuance of new mortgage and notes payable of $144.7 million.
16
<PAGE> 17
EXPANSION, RENOVATION AND DEVELOPMENT ACTIVITY
The Company continues to be active in its expansion, renovation and
development activities. Its business strategy is to grow the Company's assets
and cash flow available, to among other things, provide for dividend
requirements.
Expansions and Renovations
- --------------------------
The Company maintains a strategy of selective expansions and
renovations in order to improve the operating performance and the competitive
position of its existing portfolio. The Company also engages in an active
redevelopment program with the objective of attracting innovative retailers
which management believes will enhance the operating performance of the
properties.
Malls
At Indian Mound Mall in Newark, Ohio, the expansion of an existing
Elder-Beerman store by approximately 21,000 square feet was completed in January
1999 and increased the mall's GLA to approximately 564,000 square feet. At Grand
Central Mall in Parkersburg, West Virginia, the Company relocated County Market
to a new 63,600 square-foot outparcel building which opened in March 1999. At
Ashland Town Center in Ashland, Kentucky, the Company added its fourth anchor
when Goody's opened in a 27,900 square-foot store in March 1999. At The Mall at
Fairfield Commons in Beavercreek, Ohio, the Company is in the process of
completing a 75,000 square-foot Regal Cinemas on one of the mall's outparcels,
which is expected to open in the third quarter 1999.
Community Centers
The Company currently has community center anchor expansion projects in
process at Cross-Creek Plaza in Beaufort, South Carolina, Twin County Plaza in
Galax, Virginia and Loyal Plaza in Loyalsock, Pennsylvania. The total financial
commitment in connection with these projects is approximately $5.0 million.
Developments
- ------------
Polaris Towne Center
In March 1998, the Company, in a joint venture in which it has a 50.0%
ownership interest, commenced construction of an approximately 700,000
square-foot power community center in northern Columbus, Ohio. Upon completion,
the community center will feature grocery and discount store anchors,
restaurants, big box retailers and several specialty shops. The initial anchor,
Kroger, opened in the fourth quarter of 1998, three additional anchor tenants
and six small shop tenants occupying in excess of 124,000 square feet opened in
the first half of 1999, an additional 200,000 square feet of space is expected
to open through the fall of 1999 and ground leases for certain outparcels will
commence in the first half of 2000. Two anchor tenants purchased land and are
constructing their own stores. Target will open in a 136,000 square foot store
in the fourth quarter of 1999 and Lowes will open in a 135,000 square foot store
in the second quarter of 2000. The required equity for Polaris Towne Center was
contributed to the joint venture during 1998. The joint venture also has a
construction loan facility in place that is sufficient to fund the balance of
the estimated cost of the project.
Jersey Gardens
The Company, in a joint venture in which the Company has a 30.0%
ownership interest, is currently developing a 1.3 million square-foot
value-oriented fashion and entertainment megamall, ("Jersey Gardens"), located
in Elizabeth, New Jersey. Construction of the mall and related infrastructure is
underway and completion is projected for fourth quarter of 1999, with the grand
opening scheduled for October 21, 1999. At June 30, 1999 leases had been
executed for approximately 75.0% of the GLA. The required equity for Jersey
Gardens and off-site improvements have been funded. The Company has also
arranged a construction loan facility for the project and has met the
pre-leasing requirements of such loan.
17
<PAGE> 18
Polaris Fashion Place
In March 1998, the Company announced plans for the development of a new
super-regional mall of approximately 1.5 million square feet in northern
Columbus, Ohio. Polaris Fashion Place is expected to be a bi-level mall
featuring six anchor tenants, approximately 150 mall stores and four
restaurants, which will be located across the street from Polaris Towne Center
and is projected to open in 2001.
Carson
In April 1999, the Company terminated its contingent contract to
acquire the land for a value-oriented super-regional mall located in Carson,
California. The Company is currently exploring alternatives with respect to
continued participation in the development of this site.
Bolingbrook
In August 1999, the Company terminated its contract to acquire the land
for a super- regional mall in the Chicago suburb of Bolingbrook, Illinois. The
Company is currently exploring alternatives with respect to continued
participation in the development of this site.
PORTFOLIO DATA
Tenants reporting sales data in the table below for the twelve month
periods ended June 30, 1999, and 1998, represent 18.9 million square feet of
GLA, or 81.3% of the "same store" population.
<TABLE>
<CAPTION>
MALLS COMMUNITY CENTERS
-------------------------- ---------------------------------
PROPERTY TYPE SALES PSF % INCREASE SALES PSF % INCREASE
------------- --------- ---------- ------------------ ----------
<S> <C> <C> <C> <C>
Anchors............................ $168.90 1.3% $246.28 4.0%
Stores............................. $286.33 3.5% $177.43 2.7%
Total.............................. $223.61 2.5% $237.75 3.9%
</TABLE>
Portfolio occupancy statistics by property type are summarized below:
<TABLE>
<CAPTION>
OCCUPANCY (1) (2)
------------------------------------------------------------
6/30/99 3/31/99 12/31/98 9/30/98 6/30/98
------- ------- -------- ------- -------
<S> <C> <C> <C> <C> <C>
Mall Anchors........................ 97.5% 96.1% 96.3% 96.5% 97.7%
Mall Stores......................... 81.9% 82.0% 84.1% 82.5% 79.2%
Mall Stores Comparable 12 Months.... 80.1% 80.6% 82.0% 80.8% 79.2%
Total Mall Portfolio................ 91.8% 90.8% 91.8% 91.3% 91.0%
Community Center Anchors............ 97.5% 98.7% 98.7% 97.9% 97.9%
Community Center Stores............. 89.1% 89.4% 90.2% 88.1% 87.6%
Total Community Centers............. 95.6% 96.6% 96.7% 95.6% 95.5%
Single Tenant Retail Properties..... 92.2% 92.2% 92.2% 92.2% 92.2%
Total Community Center Portfolio.... 95.2% 96.1% 96.3% 95.3% 95.2%
</TABLE>
(1) Occupancy statistics included in the above table are based on the total
Company portfolio which includes properties owned by the Company and
properties held in joint ventures.
(2) Occupied space is defined as any space where a tenant is occupying the
space and/or paying rent at the date indicated, excluding all tenants with
leases having an initial term of less than one year.
18
<PAGE> 19
FUNDS FROM OPERATIONS
Management considers funds from operations ("FFO") to be a supplemental
measure of the Company's operating performance. FFO does not represent cash
generated from operating activities in accordance with generally accepted
accounting principles and is not necessarily indicative of cash available to
fund cash needs. FFO should not be considered as an alternative to net income,
as the primary indicator of the Company's operating performance, or as an
alternative to cash flow as a measure of liquidity. The following table
illustrates the calculation of FFO for the three and six months ended June 30,
1999 and 1998 (in thousands):
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
---------------------------- ---------------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net income available to common shareholders....... $ 4,315 $ 4,807 $ 9,406 $ 10,111
Add back (less):
Real estate depreciation and amortization.... 9,591 7,480 18,904 14,778
GRT share of joint venture depreciation
and amortization.......................... 2,414 2,150 4,743 4,088
Extraordinary item........................... 295 295
Minority interest in operating partnership... 451 603 1,078 1,270
--------- --------- -------- --------
Funds from operations............................. $ 17,066 $ 15,040 $ 34,426 $ 30,247
========= ========= ======== ========
</TABLE>
FFO increased 13.5%, or $2.0 million, for the three months ended June
30, 1999. The increase was the result of the Company's continuous focus on its
core portfolio and the impact of its strategic acquisitions in 1998. Property
net operating income increased $7.9 million and FFO from unconsolidated entities
increased $140,000. These increases were partially offset by an increase in net
interest expense of $5.5 million, an increase in preferred stock dividends of
$240,000 and an increase in general and administrative expenses of $60,000.
FFO increased 13.8%, or $4.2 million, for the six months ended June 30,
1999. The increase was the result of the Company's continuous focus on its core
portfolio and the impact of its strategic acquisitions in 1998. Property net
operating income increased $16.8 million and was partially offset by an increase
in net interest expense of $10.6 million, an increase in preferred stock
dividends of $700,000, a decrease in FFO from unconsolidated entities of
$190,000 and an increase in general and administrative expenses of $600,000.
ACCOUNTING PRONOUNCEMENTS
In July 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards ("SFAS") No. 133, "Accounting for Derivative
Instruments and Hedging Activities." SFAS No. 133 is effective for financial
statements for fiscal quarters of fiscal years beginning after June 15, 2000.
The Company will be required to adopt SFAS No. 133 effective January 1, 2001.
SFAS No. 133 standardizes the accounting for derivative instruments by requiring
that all entities recognize them as assets and liabilities in the balance sheet
and subsequently measure them at fair market value. It also prescribes specific
accounting principles to be applied to hedging activities and hedging
transactions which are significantly different from prior accounting principles.
The Company has not yet determined the impact of SFAS No. 133.
YEAR 2000 ISSUES
The Company recognizes that Year 2000 issues may have an impact on its
business, operations and financial condition. The Company has completed an
assessment of its Year 2000 readiness with respect to all of its information
technology ("IT") systems and the reliability and condition of its non-IT
systems. The Company has obtained status updates regarding Year 2000 issues on
these systems either via contacting the manufacturers and vendors, or by
acquiring the necessary information from their websites.
19
<PAGE> 20
The Company's IT systems generally consist of file servers, operating
systems, application programs and workstations that utilize purchased systems.
The Company has evaluated the Year 2000 compliance status of each vendor and
believes that its existing systems and planned upgrades, to be completed by
third quarter 1999, will be Year 2000 compliant. Implementation of planned
upgrades will not result in significant additional cost to the Company. The
Company does not have any mainframe/midrange computer codes to verify.
All of the Company's servers and workstations use Intel based
processors and the Company has used third party applications to verify these
systems. Planned upgrades and new purchases have eliminated several
non-compliant systems. The Company plans to phase-out the remaining older
computers by the end of the third quarter 1999. The majority of the remaining
issues will be resolved via a planned upgrade to MS Office 2000 later this year.
The Company will utilize an outside consulting firm to verify its tests and
validate the correction and testing methods.
The costs incurred by the Company at the present time have been
internal costs only. The Company expects to spend no more than $30,000 for
outside consultants to give additional assurance on its IT systems. The source
of these funds will be from operations. The significant risks to the Company in
the event that Year 2000 issues are not identified and corrected include the
possibility that IT system problems could cause delays or errors in processing
financial and operations information. The Year 2000 issue has not affected any
of the Company's IT system decisions. At the present time the Company has
planned upgrades in progress that will not be delayed or accelerated due to Year
2000 issues.
The Company's contingency plan recognizes that the biggest exposures
are non-IT systems which may result in Year 2000 issues. These exposures are
facility related and encompass areas such as HVAC systems, elevators, security,
lighting, telecommunications, electrical, plumbing, fire and sprinkler controls,
as well as our reliance on outside contractors for services such as security,
janitorial and exterior maintenance. At the present time, the Company has not
identified any instances where Year 2000 issues will require material costs to
repair or replace any of these systems. If failure does occur in any of these
provided services as a result of Year 2000 issues, the Company is prepared to
correct the problem with manual labor, either hired or internally which could
cause a short term limitation in the efficiency of the Company's properties
operations.
The Company has setup a dedicated Year 2000 Task Force. The Task Force
has contacted all the tenants and vendors including utility companies. The Task
Force has compiled a list of emergency contacts including maintenance and repair
technicians. We are asking all tenants to do the same, and provide us with a
list of emergency contacts. We are also requesting that the tenants have a
representative available at each location on January 1, 2000 to ensure a smooth
transition into the next century.
While the Company believes its planning efforts are adequate to address
its Year 2000 concerns, there can be no guarantee that the systems of other
companies on which the Company's systems and operations rely will be converted
on a timely basis and will not have a material adverse effect on the Company.
OTHER
The shopping center industry is seasonal in nature, particularly in the
fourth quarter during the holiday season when tenant occupancy and retail sales
are typically at their highest levels. In addition, malls achieve most of their
temporary tenant rents and percentage rents during the holiday season. As a
result of the above, earnings are generally highest in the fourth quarter of
each year.
The retail industry has experienced some difficulty, which is reflected
in sales trends and in the bankruptcies and continued restructuring of several
prominent retail organizations. Continuation of these trends could impact future
earnings performance.
INFLATION
Inflation has remained relatively low during the past three years and
has had a minimal impact on the Company's properties. Many tenants' leases
contain provisions designed to lessen the impact of inflation. Such provisions
include clauses enabling the Company to receive percentage rentals based on
tenants' gross sales, which generally increase as prices rise, and/or escalation
clauses, which generally increase rental rates during the terms of the leases.
In addition, many of the leases are for terms of less than 10 years, which may
enable the Company to replace
20
<PAGE> 21
existing leases with new leases at higher base and/or percentage rentals if
rents of the existing leases are below the then-existing market rate.
Substantially all of the leases, other than those for anchors, require the
tenants to pay a proportionate share of common area maintenance, real estate
taxes and insurance, thereby reducing the Company's exposure to increases in
costs and operating expenses resulting from inflation.
Inflation may, however, have a negative impact on some of the Company's
other operating items. Interest expense and general and administrative expenses
may be adversely affected by inflation as these specified costs could increase
at a rate higher than rents. Also, for tenant leases with stated rent increases,
inflation may have a negative effect as the stated rent increases in these
leases could be lower than the increase in inflation at any given time.
21
<PAGE> 22
PART I
FINANCIAL INFORMATION
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The following table presents descriptions of the financial instruments
and derivative instruments that are held by the Company at June 30, 1999, and
which are sensitive to changes in interest rates. The Company enters into
derivative financial instrument transactions in order to manage or reduce market
risk. Under interest-rate swaps, the Company agrees with other parties to
exchange, at specified intervals, the difference between fixed-rate and floating
rate interest amounts calculated by reference to an agreed notional principal
amount. The Company does not enter into derivative financial instrument
transactions for speculative purposes.
For the liabilities, the table represents principal calendar year cash
flows that exist by maturity date and the related average interest rate. For the
interest rate derivatives, the table presents the notional amounts and expected
interest rates that exist by contractual dates. The notional amount is used to
calculate the contractual payments to be exchanged under the contract. The
variable rates are estimated based upon the 30-day forward LIBOR rate which at
June 30, 1999 was 5.236%.
In August 1998, the Company entered into a three-year interest-rate
swap agreement which fixed LIBOR at 5.662% per annum on a notional amount of
$40,000. In September 1998, the Company entered into a three-year interest rate
protection agreement on $130,000 of borrowings in which the obligor agreed to
reimburse the Company as a result of an increase in LIBOR above 7.750% per
annum. In June 1999, the Company also entered into a one and a half year
interest rate protection agreement on $170,000 of borrowings in which the
obligor agreed to reimburse the Company as a result of an increase in LIBOR
above 8.000% per annum. All of these agreements have been reflected in the table
below.
All amounts are reflected in thousands:
<TABLE>
<CAPTION>
FAIR
1999 2000 2001 2002 2003 THEREAFTER TOTAL VALUE
---- ---- ---- ---- ---- ---------- ----- -----
LIABILITIES:
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Fixed rate.............. $ 20,376 $133,290 $ 66,296 $53,299 $43,543 $261,243 $578,047 $566,581
Average interest rate... 7.266% 7.231% 7.156% 7.170% 7.077% 6.240% 7.096%
Variable rate........... $ 104,142 $ 22,500 $285,332 21,520 $433,493 $433,493
Average interest rate... 7.199% 7.236% 6.840% 7.366% 6.936%
INTEREST RATE DERIVATIVES:
Notional amount......... $340,000 $340,000 $340,000 $340,000 $ (332)
Average pay rate........ 5.286% 5.286% 5.286% 5.286%
Average receive rate.... 5.236% 5.236% 5.236% 5.236%
</TABLE>
22
<PAGE> 23
PART II
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None
ITEM 2. CHANGES IN SECURITIES
None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
An annual meeting of shareholders was held on May 12, 1999.
Proxies for the meeting were solicited by the Company pursuant
to Regulation 14 under the Securities Exchange Act of 1934. In
connection with Proposal 1 regarding the election of trustees,
there was no solicitation in opposition to the management's
nominees as listed in the proxy statement and all of such
nominees were elected. There were no broker non-votes in
connection with such proposal.
Votes of 19,203,949 shares were cast for the election of George
A. Schmidt as a Trustee; votes of 1,977,999 shares were
withheld.
Votes of 19,203,499 shares were cast for the election of Alan
R. Weiler as a Trustee; votes of 1,978,449 shares were
withheld.
Votes of 19,203,499 shares were cast for the election of
Michael P. Glimcher as a Trustee; votes of 1,978,449 shares
were withheld.
In connection with Proposal 2, there was no solicitation in
opposition of the ratification of the appointment of
PricewaterhouseCoopers LLP as the Company's independent public
accountants as set forth in the proxy statement and such
appointment was ratified.
Votes of 21,065,580 shares were cast for the ratification of
the appointment of PricewaterhouseCoopers LLP as the Company's
independent public accountants; votes of 49,942 shares were
against; and votes of 66,424 shares abstained. In addition,
there were no broker non-votes in connection with such
proposal.
ITEM 5. OTHER INFORMATION
None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.88 Deed Trust and Security Agreement by Weberstown Mall,
LLC for the benefit of Lehman Brothers Holdings Inc.
dated as of April 26, 1999.
10.89 Promissory Note dated as of April 26, 1999, issued by
Weberstown Mall, LLC in the amount of twenty million
five hundred thousand dollars ($20,500,000).
23
<PAGE> 24
10.90 Term Note dated as of June 17, 1999, issued by Glimcher
Properties Limited Partnership in the amount of twenty million
five hundred thousand dollars ($22,500,000).
10.91 Deed of Trust, Assignment of Rents and Security Agreement by
Glimcher Properties Limited Partnership for the benefit of
KeyBank National Association dated as of June 17, 1999.
10.92 Executed form of Open End Mortgage Assignment of Rents and
Security Agreement for each of the two individual mortgages,
dated, June 17, 1999 and issued by Glimcher Properties Limited
Partnership for the benefit of KeyBank National Association
dated as of June 17, 1999.
10.93 A Deed of Trust, Assignment of Rents and Security Agreement by
Glimcher Properties Limited Partnership for the benefit of
KeyBank National Association dated as of June 17, 1999.
10.94 Deed of Trust, Security Agreement, Assignment of Rents and
Fixture Filing by Glimcher Properties Limited Partnership for
the benefit of KeyBank National Association dated as of June
17, 1999.
10.95 Amended and Restated Term Note as of June 17, 1999, issued by
Glimcher Properties Limited Partnership in the amount of
twenty four million three hundred seventy five thousand
dollars ($24,375,000).
10.96 Note Consolidation and Modification Agreement as of April 28,
1999, issued by Glimcher Properties Limited Partnership in the
amount of twenty one million five hundred thousand dollars
($21,500,000).
10.97 Executed form of Mortgage Modification Agreement for each of
the three individual mortgages dated as of April 28, 1999 and
issued by Glimcher York Associates Limited Partnership for the
benefit of Lehman Brothers Holdings Inc.
10.98 Executed Form of Mortgage Modification Agreement for each of
the three individual mortgages dated as of April 28, 1999 and
issued by Glimcher York Associates Limited Partnership for the
benefit of Lehman Brothers Holdings Inc.
10.99 Mortgage Modification Agreement by Glimcher Properties Limited
Partnership for the benefit of Lehman Brothers Holdings Inc.
dated as of April 28, 1999.
10.100 Mortgage Modification Agreement by Glimcher Development
Corporation for the benefit of Lehman Brothers Holdings, Inc.
dated as of April 28, 1999.
10.101 Mortgage Modification Agreement by Glimcher Properties Limited
Partnership for the benefit of Lehman Brothers Holdings Inc.
dated as of April 28, 1999.
10.102 Amended and Restated Promissory Note as of April 28, 1999
issued by Glimcher Properties Limited Partnership and Glimcher
Development Corporation in the amount of twenty one million
five hundred thousand dollars ($21,500,000).
10.103 First Amendment to Second Amended and Restated Loan Agreement
dated as of June 17, 1999 between Glimcher Properties Limited
Partnership, Glimcher Realty Trust, Glimcher Properties, The
Huntington National Bank ("HNB"), KeyBank National Association
("KeyBank"), Firstar, N.A. ("Firstar"), The Provident Bank
("Provident"), National City Bank ("National City"), Bankers
Trust Company ("Bankers Trust"), PNC Bank National Association
("PNC"), FirstMerit Bank N. A. ("FirstMerit"), and First Union
National Bank ("First Union").
24
<PAGE> 25
10.104 Form of Substitute Revolving Note for each of the nine
individual notes, dated as of June 17, 1999, executed by
Glimcher Properties Limited Partnership and issued to the
following entities in the following amounts:
a. HNB in the amount of $30.0 million.
b. KeyBank in the amount of $30.0 million.
c. Firstar in the amount of $20.0 million.
d. Provident in the amount of $10.0 million.
e. National City in the amount of $20.0 million.
f. Bankers Trust in the amount of $25.0 million.
g. PNC in the amount of $10.0 million.
h. FirstMerit in the amount of $10.0 million.
i. First Union in the amount of $15.0 million
10.105 Form Guaranty for each of the nine individual guarantees,
dated as of June 17, 1999 and issued by Glimcher Realty Trust
to the following entities in the following amounts:
a. HNB to the extent of $30.0 Million.
b. KeyBank to the extent of $30.0 million.
c. Firstar to the extent of $20.0 million.
d. Provident to the extent of $10.0 million.
e. National City to the extent of $20.0 million.
f. Bankers Trust to the extent of $25.0 million.
g. PNC to the extent of $10.0 million.
h. First Merit to the extent of $10.0 million.
i. First Union to the extent of $15.0 million.
10.106 Executed Form of Modification of Indebtedness Secured by
Open-ended Mortgage, Assignment of Rents and Security
Agreement for each of the three individual mortgages, dated as
of June 17, 1999 and issued by Glimcher Properties Limited
Partnership.
10.107 Security Agreement - Interest Rate Protection Contract dated
as of June 17, 1999, executed by Glimcher Properties Limited
Partnership in favor of Huntington as Administrative Agent for
the lenders.
27.1 Financial Data Schedule (filed for EDGAR filing purposes
only).
(b) Reports on Form 8-K
None
25
<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
GLIMCHER REALTY TRUST
August 11, 1999
- --------------------- ---------------------------------------------------------
(Date) Herbert Glimcher, Chairman of the Board, President
and Chief Executive Officer (Principle Executive Officer)
August 11, 1999
- --------------------- ---------------------------------------------------------
(Date) William G. Cornely, Executive Vice President
Chief Operating Officer & Chief Financial Officer
26
<PAGE> 1
Exhibit 10.88
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN
TO:
Paul A. Keenan
Cadwalader, Wickersham &
Taft
100 Maiden Lane
New York, New York 10038
- --------------------------------------------------------------------------------
================================================================================
WEBERSTOWN MALL, LLC,
a Delaware limited liability company, as grantor
(Borrower)
to
CHICAGO TITLE INSURANCE COMPANY, as trustee
(Trustee)
for the benefit of
LEHMAN BROTHERS HOLDINGS INC., DOING BUSINESS AS
LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC., as
beneficiary (Lender)
--------------------------
DEED OF TRUST AND
SECURITY AGREEMENT
--------------------------
Dated: As of April 26, 1999
Location: Weberstown Mall
Stockton, California
THIS DOCUMENT SECURES A PROMISSORY NOTE WHICH MAY CONTAIN PROVISIONS FOR
ADJUSTMENTS IN THE INTEREST RATE AND PAYMENT AMOUNTS AND/OR A BALLOON PAYMENT.
THIS INSTRUMENT CONSTITUTES A SECURITY AGREEMENT AS THAT TERM IF DEFINED IN THE
CALIFORNIA UNIFORM COMMERCIAL CODE. PORTIONS OF THE COLLATERAL ARE GOODS THAT
ARE OR ARE TO BECOME FIXTURES ON THE LAND DESCRIBED IN EXHIBIT A HERETO. THIS
INSTRUMENT IS INTENDED TO SERVE AS A FIXTURE FILING AND IS TO BE RECORDED IN THE
REAL ESTATE RECORDS OF EACH COUNTY IN WHICH SAID LAND OR ANY PORTION THEREOF IS
LOCATED AND INDEXED AS A FEE DEED OF TRUST AND A FIXTURE FILING. BORROWER IS THE
OWNER OF THE FEE INTEREST IN EXHIBIT A HERETO.
<PAGE> 2
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN
TO:
Paul A. Keenan
Cadwalader, Wickersham &
Taft
100 Maiden Lane
New York, New York 10038
- --------------------------------------------------------------------------------
================================================================================
<PAGE> 3
DEED OF TRUST AND SECURITY AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT (this "SECURITY
INSTRUMENT") is made as of this 26th day of April, 1999, by WEBERSTOWN MALL,
LLC, a Delaware limited liability company, having its principal place of
business at 20 South Third Street, Columbus, Ohio 43215, as grantor ("BORROWER")
to CHICAGO TITLE INSURANCE COMPANY, a California corporation, having an address
at 3663 Arch Road, Suite F, Stockton, California 95215, as trustee ("TRUSTEE"),
for the benefit of LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation, d/b/a
LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC., having an address
at Three World Financial Center, New York, New York 10285, as beneficiary
("LENDER").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, this Security Instrument is given to secure a loan
(the "LOAN") in the principal sum of TWENTY MILLION FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($20,500,000) or so much thereof as may be advanced pursuant to
that certain Loan Agreement dated as of the date hereof between Borrower and
Lender (as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time, the "LOAN AGREEMENT") and evidenced by
that certain Promissory Note dated the date hereof made by Borrower to Lender
(such Note, together with all extensions, renewals, replacements, restatements
or modifications thereof being hereinafter referred to as the "NOTE"); and
WHEREAS, Borrower desires to secure the payment of the Debt
(as defined in the Loan Agreement) and the performance of all of its obligations
under the Note, the Loan Agreement and the other Loan Documents; and
WHEREAS, this Security Instrument is given pursuant to the
Loan Agreement, and payment, fulfillment, and performance by Borrower of its
obligations thereunder and under the other Loan Documents are secured hereby,
and each and every term and provision of the Loan Agreement and the Note,
including the rights, remedies, obligations, covenants, conditions,
agreements, indemnities, representations and warranties of the parties
therein, are hereby incorporated by reference herein as though set forth in
full and shall be considered a part of this Security Instrument (the Loan
Agreement, the Note, this Security Instrument, that certain Assignment of
Leases and Rents of even date herewith made by Borrower in favor of Lender
(the "ASSIGNMENT OF LEASES") and all other documents evidencing or securing
the Debt are hereinafter referred to collectively as the "LOAN DOCUMENTS").
NOW THEREFORE, in consideration of the making of the Loan by
Lender and the covenants, agreements, representations and warranties set forth
in this Security Instrument:
Article 1 - GRANTS OF SECURITY
Section 1.1 PROPERTY CONVEYED. Borrower does hereby
irrevocably grant, bargain, sell, pledge, assign, warrant, transfer and convey
to Trustee and its successors and
-1-
<PAGE> 4
assigns, in trust, with Power of Sale for the benefit of Lender as beneficiary
in trust, the following property, rights, interests and estates now owned, or
hereafter acquired by Borrower (collectively, the "PROPERTY"):
(a) LAND. The real property described in EXHIBIT A
attached hereto and made a part hereof (the "LAND");
(b) ADDITIONAL LAND. All additional lands, estates
and development rights hereafter acquired by Borrower for use
in connection with the Land and the development of the Land
and all additional lands and estates therein which may, from
time to time, by supplemental mortgage or otherwise be
expressly made subject to the lien of this Security
Instrument;
(c) IMPROVEMENTS. The buildings, structures,
fixtures, additions, enlargements, extensions, modifications,
repairs, replacements and improvements now or hereafter
erected or located on the Land (collectively, the
"IMPROVEMENTS");
(d) EASEMENTS. All easements, rights-of-way or use,
rights, strips and gores of land, streets, ways, alleys,
passages, sewer rights, water, water courses, water rights and
powers, air rights and development rights, and all estates,
rights, titles, interests, privileges, liberties, servitudes,
tenements, hereditaments and appurtenances of any nature
whatsoever, in any way now or hereafter belonging, relating or
pertaining to the Land and the Improvements and the reversion
and reversions, remainder and remainders, and all land lying
in the bed of any street, road or avenue, opened or proposed,
in front of or adjoining the Land, to the center line thereof
and all the estates, rights, titles, interests, dower and
rights of dower, curtesy and rights of curtesy, property,
possession, claim and demand whatsoever, both at law and in
equity, of Borrower of, in and to the Land and the
Improvements and every part and parcel thereof, with the
appurtenances thereto;
(e) EQUIPMENT. All "equipment," as such term is
defined in Article 9 of the Uniform Commercial Code, now owned
or hereafter acquired by Borrower, which is used at or in
connection with the Improvements or the Land or is located
thereon or therein (including, but not limited to, all
machinery, equipment, furnishings, and electronic
data-processing and other office equipment now owned or
hereafter acquired by Borrower and any and all additions,
substitutions and replacements of any of the foregoing),
together with all attachments, components, parts, equipment
and accessories installed thereon or affixed thereto
(collectively, the "EQUIPMENT"). Notwithstanding the
foregoing, Equipment shall not include any property belonging
to tenants under leases except to the extent that Borrower
shall have any right or interest therein;
(f) FIXTURES. All Equipment now owned, or the
ownership of which is hereafter acquired, by Borrower which is
so related to the Land and
-2-
<PAGE> 5
Improvements forming part of the Property that it is deemed
fixtures or real property under the law of the particular
state in which the Equipment is located, including, without
limitation, all building or construction materials intended
for construction, reconstruction, alteration or repair of or
installation on the Property, construction equipment,
appliances, machinery, plant equipment, fittings, apparatuses,
fixtures and other items now or hereafter attached to,
installed in or used in connection with (temporarily or
permanently) any of the Improvements or the Land, including,
but not limited to, engines, devices for the operation of
pumps, pipes, plumbing, cleaning, call and sprinkler systems,
fire extinguishing apparatuses and equipment, heating,
ventilating, plumbing, laundry, incinerating, electrical, air
conditioning and air cooling equipment and systems, gas and
electric machinery, appurtenances and equipment, pollution
control equipment, security systems, disposals, dishwashers,
refrigerators and ranges, recreational equipment and
facilities of all kinds, and water, gas, electrical, storm and
sanitary sewer facilities, utility lines and equipment
(whether owned individually or jointly with others, and, if
owned jointly, to the extent of Borrower's interest therein)
and all other utilities whether or not situated in easements,
all water tanks, water supply, water power sites, fuel
stations, fuel tanks, fuel supply, and all other structures,
together with all accessions, appurtenances, additions,
replacements, betterments and substitutions for any of the
foregoing and the proceeds thereof (collectively, the
"FIXTURES"). Notwithstanding the foregoing, "Fixtures" shall
not include any property which tenants are entitled to remove
pursuant to leases except to the extent that Borrower shall
have any right or interest therein;
(g) PERSONAL PROPERTY. All furniture, furnishings,
objects of art, machinery, goods, tools, supplies, appliances,
general intangibles, contract rights, accounts, accounts
receivable, franchises, licenses, certificates and permits,
and all other personal property of any kind or character
whatsoever (as defined in and subject to the provisions of the
Uniform Commercial Code as hereinafter defined), other than
Fixtures, which are now or hereafter owned by Borrower and
which are located within or about the Land and the
Improvements, together with all accessories, replacements and
substitutions thereto or therefor and the proceeds thereof
(collectively, the "PERSONAL PROPERTY"), and the right, title
and interest of Borrower in and to any of the Personal
Property which may be subject to any security interests, as
defined in the Uniform Commercial Code, as adopted and enacted
by the state or states where any of the Property is located
(the "UNIFORM COMMERCIAL CODE"), superior in lien to the lien
of this Security Instrument and all proceeds and products of
the above;
(h) LEASES AND RENTS. All leases and other agreements
affecting the use, enjoyment or occupancy of the Land and the
Improvements heretofore or hereafter entered into, whether
before or after the filing by or against Borrower of any
petition for relief under 11 U.S.C. Section 101 et seq., as
the same may be
-3-
<PAGE> 6
amended from time to time (the "BANKRUPTCY Code")
(collectively, the "LEASES") and all right, title and interest
of Borrower, its successors and assigns therein and
thereunder, including, without limitation, cash or securities
deposited thereunder to secure the performance by the lessees
of their obligations thereunder and all rents, additional
rents, revenues, issues and profits (including all oil and gas
or other mineral royalties and bonuses) from the Land and the
Improvements whether paid or accruing before or after the
filing by or against Borrower of any petition for relief under
the Bankruptcy Code (collectively, the "RENTS") and all
proceeds from the sale or other disposition of the Leases and
the right to receive and apply the Rents to the payment of the
Debt;
(i) CONDEMNATION AWARDS. All awards or payments,
including interest thereon, which may heretofore and hereafter
be made with respect to the Property, whether from the
exercise of the right of eminent domain (including but not
limited to any transfer made in lieu of or in anticipation of
the exercise of the right), or for a change of grade, or for
any other injury to or decrease in the value of the Property;
(j) INSURANCE PROCEEDS. All proceeds in respect of
the Property under any insurance policies covering the
Property, including, without limitation, the right to receive
and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Property;
(k) TAX CERTIORARI. All refunds, rebates or credits
in connection with reduction in real estate taxes and
assessments charged against the Property as a result of tax
certiorari or any applications or proceedings for reduction;
(l) CONVERSION. All proceeds of the conversion,
voluntary or involuntary, of any of the foregoing including,
without limitation, proceeds of insurance and condemnation
awards, into cash or liquidation claims;
(m) RIGHTS. The right, in the name and on behalf of
Borrower, to appear in and defend any action or proceeding
brought with respect to the Property and to commence any
action or proceeding to protect the interest of Lender in the
Property;
(n) AGREEMENTS. All agreements, contracts,
certificates, instruments, franchises, permits, licenses,
plans, specifications and other documents, now or hereafter
entered into, and all rights therein and thereto, respecting
or pertaining to the use, occupation, construction, management
or operation of the Land and any part thereof and any
Improvements or respecting any business or activity conducted
on the Land and any part thereof and all right, title and
interest of Borrower therein and thereunder, including,
without limitation, the right, upon the happening of any
default hereunder, to receive and collect any sums payable to
Borrower thereunder;
-4-
<PAGE> 7
(o) TRADEMARKS. All tradenames, trademarks,
servicemarks, logos, copyrights, goodwill, books and records
and all other general intangibles relating to or used in
connection with the operation of the Property;
(p) OTHER RIGHTS. Any and all other rights of
Borrower in and to the items set forth in Subsections (a)
through (o) above.
AND without limiting any of the other provisions of this
Security Instrument, to the extent permitted by applicable law, Borrower
expressly grants to Trustee, as secured party, a security interest in the
portion of the Property which is or may be subject to the provisions of the
Uniform Commercial Code which are applicable to secured transactions; it being
understood and agreed that the Improvements and Fixtures are part and parcel of
the Land (the Land, the Improvements and the Fixtures collectively referred to
as the "REAL PROPERTY") appropriated to the use thereof and, whether affixed or
annexed to the Real Property or not, shall for the purposes of this Security
Instrument be deemed conclusively to be real estate and conveyed hereby.
Section 1.2 ASSIGNMENT OF RENTS. Borrower hereby absolutely
and unconditionally assigns to Lender and Trustee all of Borrower's right, title
and interest in and to all current and future Leases and Rents; it being
intended by Borrower that this assignment constitutes a present, absolute
assignment and not an assignment for additional security only. Nevertheless,
subject to the terms of the Assignment of Leases and Section 7.1(h) of this
Security Instrument, Lender grants to Borrower a revocable license to collect,
receive, use and enjoy the Rents. Borrower shall hold the Rents, or a portion
thereof sufficient to discharge all current sums due on the Debt, for use in the
payment of such sums.
Section 1.3 SECURITY AGREEMENT. This Security Instrument is
both a real property deed of trust and a "security agreement" within the meaning
of the Uniform Commercial Code. The Property includes both real and personal
property and all other rights and interests, whether tangible or intangible in
nature, of Borrower in the Property. By executing and delivering this Security
Instrument, Borrower hereby grants to Lender, as security for the Obligations
(hereinafter defined), a security interest in the Fixtures, the Equipment and
the Personal Property to the full extent that the Fixtures, the Equipment and
the Personal Property may be subject to the Uniform Commercial Code (said
portion of the Property so subject to the Uniform Commercial Code being called
the "COLLATERAL"). If an Event of Default shall occur and be continuing, Lender,
in addition to any other rights and remedies which it may have, shall have and
may exercise immediately and without demand, any and all rights and remedies
granted to a secured party upon default under the Uniform Commercial Code,
including, without limiting the generality of the foregoing, the right to take
possession of the Collateral or any part thereof, and to take such other
measures as Lender may deem necessary for the care, protection and preservation
of the Collateral. Upon request or demand of Lender after the occurrence and
during the continuance of an Event of Default, Borrower shall, at its expense,
assemble the Collateral and make it available to Lender at a convenient place
(at the Land if tangible property) reasonably acceptable to Lender. Borrower
shall pay to Lender on demand any and all expenses, including reasonable legal
expenses and
-5-
<PAGE> 8
attorneys' fees, incurred or paid by Lender in protecting its interest in the
Collateral and in enforcing its rights hereunder with respect to the Collateral
after the occurrence and during the continuance of an Event of Default. Any
notice of sale, disposition or other intended action by Lender with respect to
the Collateral sent to Borrower in accordance with the provisions hereof at
least ten (10) business days prior to such action, shall, except as otherwise
provided by applicable law, constitute reasonable notice to Borrower. The
proceeds of any disposition of the Collateral, or any part thereof, may, except
as otherwise required by applicable law, be applied by Lender to the payment of
the Debt in such priority and proportions as Lender in its discretion shall deem
proper. Borrower's (Debtor's) principal place of business is as set forth on
page one hereof and the address of Lender (Secured Party) is as set forth on
page one hereof.
Section 1.4 FIXTURE FILING. Certain of the Property is or will
become "fixtures" (as that term is defined in the Uniform Commercial Code) on
the Land, described or referred to in this Security Instrument, and this
Security Instrument, upon being filed for record in the real estate records of
the city or county wherein such fixtures are situated, shall operate also as a
financing statement naming Borrower as the Debtor and Lender as the Secured
Party filed as a fixture filing in accordance with the applicable provisions of
said Uniform Commercial Code upon such of the Property that is or may become
fixtures.
Section 1.5 PLEDGES OF MONIES HELD. Borrower hereby pledges to
Lender any and all monies now or hereafter held by Lender or on behalf of
Lender, including, without limitation, any sums deposited in the Clearing
Account, the Reserve Funds and Net Proceeds, as additional security for the
Obligations until expended or applied as provided in this Security Instrument.
CONDITIONS TO GRANT
TO HAVE AND TO HOLD the above granted and described Property
unto and to the use and benefit of Trustee and its successors and assigns,
forever;
IN TRUST, WITH POWER OF SALE, to secure payment to Lender of
the Obligations at the time and in the manner provided for its payment in the
Note and in this Security Instrument.
PROVIDED, HOWEVER, these presents are upon the express
condition that, if Borrower shall well and truly pay to Lender the Debt at the
time and in the manner provided in the Note, the Loan Agreement and this
Security Instrument, shall well and truly perform the Other Obligations as set
forth in this Security Instrument and shall well and truly abide by and comply
with each and every covenant and condition set forth herein and in the Note, the
Loan Agreement and the other Loan Documents, these presents and the estate
hereby granted shall cease, terminate and be void; provided, however, that
Borrower's obligation to indemnify and hold harmless Lender pursuant to the
provisions hereof shall survive any such payment or release.
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Article 2 - DEBT AND OBLIGATIONS SECURED
Section 2.1 DEBT. This Security Instrument and the grants,
assignments and transfers made in Article 1 are given for the purpose of
securing the Debt which by its definition (as set forth in Loan Agreement)
includes, but is not limited to, the obligations of Borrower to pay to Lender
the principal and interest owing pursuant to the terms and conditions of the
Note.
Section 2.2 OTHER OBLIGATIONS. This Security Instrument and
the grants, assignments and transfers made in Article 1 are also given for the
purpose of securing the following (the "OTHER OBLIGATIONS"):
(a) the performance of all other obligations of Borrower
contained herein;
(b) the performance of each obligation of Borrower contained
in the Loan Agreement and any other Loan Document; and
(c) the performance of each obligation of Borrower contained
in any renewal, extension, amendment, modification, consolidation,
change of, or substitution or replacement for, all or any part of the
Note, the Loan Agreement or any other Loan Document.
A copy of each of the Loan Documents is available for review during regular
business hours at the office of Lender at the address first set forth above.
Section 2.3 DEBT AND OTHER OBLIGATIONS. Borrower's obligations
for the payment of the Debt and the performance of the Other Obligations may
sometimes be referred to collectively herein as the "OBLIGATIONS."
Article 3 - BORROWER COVENANTS
Borrower covenants and agrees that:
Section 3.1 PAYMENT OF DEBT. Borrower will pay the Debt at the
time and in the manner provided in the Loan Agreement, the Note and this
Security Instrument.
Section 3.2 INCORPORATION BY REFERENCE. All the covenants,
conditions and agreements contained in (a) the Loan Agreement, (b) the Note and
(c) all and any of the other Loan Documents, are hereby made a part of this
Security Instrument to the same extent and with the same force as if fully set
forth herein.
Section 3.3 INSURANCE. Borrower shall obtain and maintain, or
cause to be maintained, in full force and effect at all times insurance with
respect to Borrower and the Property as required pursuant to the Loan Agreement.
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Section 3.4 MAINTENANCE OF PROPERTY. Borrower shall cause the
Property to be maintained in a good and safe condition and repair. The
Improvements, the Fixtures, the Equipment and the Personal Property shall not be
removed, demolished or materially altered (except for normal replacement of the
Fixtures, the Equipment or the Personal Property, tenant finish and
refurbishment of the Improvements) without the consent of Lender. Borrower shall
promptly repair, replace or rebuild any part of the Property which may be
destroyed by any casualty, or become damaged, worn or dilapidated and shall
complete and pay for any structure at any time in the process of construction or
repair on the Land.
Section 3.5 WASTE. Borrower shall not commit or suffer any
waste of the Property or make any change in the use of the Property which will
in any way materially increase the risk of fire or other hazard arising out of
the operation of the Property, or take any action that might invalidate or allow
the cancellation of any Policy, or do or permit to be done thereon anything that
may in any way materially impair the value of the Property or the security of
this Security Instrument. Borrower will not, without the prior written consent
of Lender, permit any drilling or exploration for or extraction, removal, or
production of any minerals from the surface or the subsurface of the Land,
regardless of the depth thereof or the method of mining or extraction thereof.
Section 3.6 PAYMENT FOR LABOR AND MATERIALS. (a) Borrower will
promptly pay when due all bills and costs for labor, materials, and specifically
fabricated materials ("LABOR AND MATERIAL COSTS") incurred in connection with
the Property and never permit to exist beyond the due date thereof in respect of
the Property or any part thereof any lien or security interest, even though
inferior to the liens and the security interests hereof, and in any event never
permit to be created or exist in respect of the Property or any part thereof any
other or additional lien or security interest other than the liens or security
interests hereof except for the Permitted Encumbrances.
(b) After prior written notice to Lender, Borrower, at its own
expense, may contest by appropriate legal proceeding, promptly initiated and
conducted in good faith and with due diligence, the amount or validity or
application in whole or in part of any of the Labor and Material Costs, provided
that (i) no Event of Default has occurred and is continuing under the Loan
Agreement, the Note, this Security Instrument or any of the other Loan
Documents, (ii) Borrower is permitted to do so under the provisions of any other
mortgage, deed of trust or deed to secure debt affecting the Property, (iii)
such proceeding shall suspend the collection of the Labor and Material Costs
from Borrower and from the Property or Borrower shall have paid all of the Labor
and Material Costs under protest, (iv) such proceeding shall be permitted under
and be conducted in accordance with the provisions of any other instrument to
which Borrower is subject and shall not constitute a default thereunder, (v)
neither the Property nor any part thereof or interest therein will be in danger
of being sold, forfeited, terminated, canceled or lost, and (vi) Borrower shall
have furnished the security as may be required in the proceeding, or as may be
reasonably requested by Lender to insure the payment of any contested Labor and
Material Costs, together with all interest and penalties thereon.
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Section 3.7 PERFORMANCE OF OTHER AGREEMENTS. Borrower shall
observe and perform each and every term, covenant and provision to be observed
or performed by Borrower pursuant to the Loan Agreement, any other Loan Document
and any other agreement or recorded instrument affecting or pertaining to the
Property and any amendments, modifications or changes thereto.
Section 3.8 CHANGE OF NAME, IDENTITY OR STRUCTURE. Borrower
shall not change Borrower's name, identity (including its trade name or names)
or, if not an individual, Borrower's corporate, partnership or other structure
without notifying Lender of such change in writing at least thirty (30) days
prior to the effective date of such change and, in the case of a change in
Borrower's structure, without first obtaining the prior written consent of
Lender. Borrower shall execute and deliver to Lender, prior to or
contemporaneously with the effective date of any such change, any financing
statement or financing statement change required by Lender to establish or
maintain the validity, perfection and priority of the security interest granted
herein. At the request of Lender, Borrower shall execute a certificate in form
satisfactory to Lender listing the trade names under which Borrower intends to
operate the Property, and representing and warranting that Borrower does
business under no other trade name with respect to the Property.
Article 4 - OBLIGATIONS AND RELIANCES
Section 4.1 RELATIONSHIP OF BORROWER AND LENDER. The
relationship between Borrower and Lender is solely that of debtor and creditor,
and Lender has no fiduciary or other special relationship with Borrower, and no
term or condition of any of the Loan Agreement, the Note, this Security
Instrument and the other Loan Documents shall be construed so as to deem the
relationship between Borrower and Lender to be other than that of debtor and
creditor.
Section 4.2 NO RELIANCE ON LENDER. The general partners,
members, principals and (if Borrower is a trust) beneficial owners of Borrower
are experienced in the ownership and operation of properties similar to the
Property, and Borrower and Lender are relying solely upon such expertise and
business plan in connection with the ownership and operation of the Property.
Borrower is not relying on Lender's expertise, business acumen or advice in
connection with the Property.
Section 4.3 NO LENDER OBLIGATIONS. (a) Notwithstanding the
provisions of SUBSECTIONS 1.1(h) AND (n) or SECTION 1.2, Lender is not
undertaking the performance of (i) any obligations under the Leases; or (ii) any
obligations with respect to such agreements, contracts, certificates,
instruments, franchises, permits, trademarks, licenses and other documents.
(b) By accepting or approving anything required to be
observed, performed or fulfilled or to be given to Lender pursuant to this
Security Instrument, the Loan Agreement, the Note or the other Loan Documents,
including, without limitation, any officer's certificate, balance sheet,
statement of profit and loss or other financial statement, survey, appraisal, or
insurance policy, Lender shall not be deemed to have warranted, consented to, or
affirmed the
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<PAGE> 12
sufficiency, the legality or effectiveness of same, and such acceptance or
approval thereof shall not constitute any warranty or affirmation with respect
thereto by Lender.
Section 4.4 RELIANCE. Borrower recognizes and acknowledges
that in accepting the Loan Agreement, the Note, this Security Instrument and the
other Loan Documents, Lender is expressly and primarily relying on the truth and
accuracy of the warranties and representations set forth in Section 4.1 of the
Loan Agreement without any obligation to investigate the Property and
notwithstanding any investigation of the Property by Lender; that such reliance
existed on the part of Lender prior to the date hereof, that the warranties and
representations are a material inducement to Lender in making the Loan; and that
Lender would not be willing to make the Loan and accept this Security Instrument
in the absence of the warranties and representations as set forth in Section 4.1
of the Loan Agreement.
Article 5 - FURTHER ASSURANCES
Section 5.1 RECORDING OF SECURITY INSTRUMENT, ETC. Borrower
forthwith upon the execution and delivery of this Security Instrument and
thereafter, from time to time, will cause this Security Instrument and any of
the other Loan Documents creating a lien or security interest or evidencing the
lien hereof upon the Property and each instrument of further assurance to be
filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect and perfect the lien or security interest hereof upon, and the interest
of Lender in, the Property. Borrower will pay all taxes, filing, registration or
recording fees, and all expenses incident to the preparation, execution,
acknowledgment and/or recording of the Note, this Security Instrument, the other
Loan Documents, any note, deed of trust or mortgage supplemental hereto, any
security instrument with respect to the Property and any instrument of further
assurance, and any modification or amendment of the foregoing documents, and all
federal, state, county and municipal taxes, duties, imposts, assessments and
charges arising out of or in connection with the execution and delivery of this
Security Instrument, any deed of trust or mortgage supplemental hereto, any
security instrument with respect to the Property or any instrument of further
assurance, and any modification or amendment of the foregoing documents, except
where prohibited by law so to do.
Section 5.2 FURTHER ACTS, ETC. Borrower will, at the cost of
Borrower, and without expense to Lender, do, execute, acknowledge and deliver
all and every such further acts, deeds, conveyances, deeds of trust,
assignments, notices of assignments, transfers and assurances as Lender shall,
from time to time, reasonably require, for the better assuring, conveying,
assigning, transferring, and confirming unto Lender and Trustee the property and
rights hereby deeded, granted, bargained, sold, conveyed, confirmed, pledged,
assigned, warranted and transferred or intended now or hereafter so to be, or
which Borrower may be or may hereafter become bound to convey or assign to
Trustee or Lender, or for carrying out the intention or facilitating the
performance of the terms of this Security Instrument or for filing, registering
or recording this Security Instrument, or for complying with all Legal
Requirements. Borrower, on demand, will execute and deliver, and in the event it
shall fail to
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<PAGE> 13
so execute and deliver, hereby authorizes Lender to execute in the name of
Borrower or without the signature of Borrower to the extent Lender may lawfully
do so, one or more financing statements to evidence more effectively the
security interest of Lender in the Property. Borrower grants to Lender an
irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to Lender at
law and in equity, including without limitation such rights and remedies
available to Lender pursuant to this SECTION 5.2. Nothing contained in this
SECTION 5.2 shall be deemed to create an obligation on the part of Borrower to
pay any costs and expenses incurred by Lender in connection with the
Securitization or other sale or transfer of the Loan.
Section 5.3 CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP
LAWS. (a) If any law is enacted or adopted or amended after the date of this
Security Instrument which deducts the Debt from the value of the Property for
the purpose of taxation or which imposes a tax, either directly or indirectly,
on the Debt or Lender's interest in the Property, Borrower will pay the tax,
with interest and penalties thereon, if any. If Lender is advised by counsel
chosen by it that the payment of tax by Borrower would be unlawful or taxable to
Lender or unenforceable or provide the basis for a defense of usury then Lender
shall have the option by written notice of not less than one hundred twenty
(120) days to declare the Debt immediately due and payable.
(b) Borrower will not claim or demand or be entitled to any
credit or credits on account of the Debt for any part of the Taxes or Other
Charges assessed against the Property, or any part thereof, and no deduction
shall otherwise be made or claimed from the assessed value of the Property, or
any part thereof, for real estate tax purposes by reason of this Security
Instrument or the Debt. If such claim, credit or deduction shall be required by
law, Lender shall have the option, by written notice of not less than one
hundred twenty (120) days, to declare the Debt immediately due and payable.
(c) If at any time the United States of America, any State
thereof or any subdivision of any such State shall require revenue or other
stamps to be affixed to the Note, this Security Instrument, or any of the other
Loan Documents or impose any other tax or charge on the same, Borrower will pay
for the same, with interest and penalties thereon, if any.
Section 5.4 SPLITTING OF DEED OF TRUST. This Security
Instrument and the Note shall, at any time until the same shall be fully paid
and satisfied, at the sole election of Lender, be split or divided into two or
more notes and two or more security instruments, each of which shall cover all
or a portion of the Property to be more particularly described therein. To that
end, Borrower, upon written request of Lender, shall execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered by the then owner
of the Property, to Lender and/or its designee or designees substitute notes and
security instruments in such principal amounts, aggregating not more than the
then unpaid principal amount of this Security Instrument, and containing terms,
provisions and clauses similar to those contained herein and in the Note, and
such other documents and instruments as may be required by Lender.
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<PAGE> 14
Section 5.5 REPLACEMENT DOCUMENTS. Upon receipt of an
affidavit of an officer of Lender as to the loss, theft, destruction or
mutilation of the Note or any other Loan Document which is not of public record,
and, in the case of any such mutilation, upon surrender and cancellation of such
Note or other Loan Document, Borrower will issue, in lieu thereof, a replacement
Note or other Loan Document, dated the date of such lost, stolen, destroyed or
mutilated Note or other Loan Document in the same principal amount thereof and
otherwise of like tenor.
Article 6 - DUE ON SALE/ENCUMBRANCE
Section 6.1 LENDER RELIANCE. Borrower acknowledges that Lender
has examined and relied on the experience of Borrower and its general partners,
members, principals and (if Borrower is a trust) beneficial owners in owning and
operating properties such as the Property in agreeing to make the Loan, and will
continue to rely on Borrower's ownership of the Property as a means of
maintaining the value of the Property as security for repayment of the Debt and
the performance of the Other Obligations. Borrower acknowledges that Lender has
a valid interest in maintaining the value of the Property so as to ensure that,
should Borrower default in the repayment of the Debt or the performance of the
Other Obligations, Lender can recover the Debt by a sale of the Property.
Section 6.2 NO SALE/ENCUMBRANCE. Borrower agrees that Borrower
shall not, without the prior written consent of Lender, sell, convey, mortgage,
grant, bargain, encumber, pledge, assign, or otherwise transfer the Property or
any part thereof or permit the Property or any part thereof to be sold,
conveyed, mortgaged, granted, bargained, encumbered, pledged, assigned, or
otherwise transferred, unless Lender shall consent thereto in accordance with
SECTION 6.4 hereof.
Section 6.3 SALE/ENCUMBRANCE DEFINED. A sale, conveyance,
mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer within
the meaning of this Article 6 shall be deemed to include, but not be limited to,
(a) an installment sales agreement wherein Borrower agrees to sell the Property
or any part thereof for a price to be paid in installments; (b) an agreement by
Borrower leasing all or a substantial part of the Property for other than actual
occupancy by a space tenant thereunder or a sale, assignment or other transfer
of, or the grant of a security interest in, Borrower's right, title and interest
in and to any Leases or any Rents; (c) the voluntary or involuntary sale,
conveyance, transfer or pledge of the stock of the general partner of Borrower
(or the stock of any corporation directly or indirectly controlling such general
partner by operation of law or otherwise) or the creation or issuance of new
stock by which an aggregate of more than ten percent (10%) of such general
partner's stock shall be vested in a party or parties who are not now
stockholders; (d) the voluntary or involuntary sale, conveyance, transfer or
pledge of any general or limited partnership interest in Borrower; (e) if
Borrower, any general partner of Borrower, any guarantor or any indemnitor is a
limited liability company, the change, removal or resignation of a member or
managing member or the transfer or pledge of the interest of any member or
managing member or any profits or proceeds relating to such interest; or (f) any
other transfer prohibited by the terms of the Loan Agreement.
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Section 6.4 LENDER'S RIGHTS. Lender reserves the right to
condition the consent required hereunder upon (a) a modification of the terms
hereof and of the Loan Agreement, the Note or the other Loan Documents; (b) an
assumption of the Loan Agreement, the Note, this Security Instrument and the
other Loan Documents as so modified by the proposed transferee, subject to the
provisions of Section 9.4 of the Loan Agreement; (c) payment of all of Lender's
reasonable expenses incurred in connection with such transfer; (d) the
confirmation in writing by the applicable Rating Agencies that the proposed
transfer will not, in and of itself, result in a downgrade, qualification or
withdrawal of the initial, or, if higher, then current ratings assigned in
connection with any Securitization; (e) the delivery of a nonconsolidation
opinion reflecting the proposed transfer satisfactory in form and substance to
Lender; (f) the proposed transferee's continued compliance with the
representations and covenants set forth in Section 4.1.30 and 5.2.14 of the Loan
Agreement; (g) the delivery of evidence satisfactory to Lender that the single
purpose nature and bankruptcy remoteness of Borrower, its shareholders, partners
or members, as the case may be, following such transfers are in accordance with
the standards of the Rating Agencies; (h) the proposed transferee's ability to
satisfy Lender's then-current underwriting standards; or (i) such other
conditions as Lender shall determine in its reasonable discretion to be in the
interest of Lender, including, without limitation, the creditworthiness,
reputation and qualifications of the transferee with respect to the Loan and the
Property. Lender shall not be required to demonstrate any actual impairment of
its security or any increased risk of default hereunder in order to declare the
Debt immediately due and payable upon Borrower's sale, conveyance, mortgage,
grant, bargain, encumbrance, pledge, assignment, or transfer of the Property
without Lender's consent. This provision shall apply to every sale, conveyance,
mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer of the
Property regardless of whether voluntary or not, or whether or not Lender has
consented to any previous sale, conveyance, mortgage, grant, bargain,
encumbrance, pledge, assignment, or transfer of the Property.
Article 7 - RIGHTS AND REMEDIES UPON DEFAULT
Section 7.1 REMEDIES. Upon the occurrence and during the
continuance of any Event of Default, Borrower agrees that Lender or Trustee, or
both, may take such action, without notice or demand, as it deems advisable to
protect and enforce its rights against Borrower and in and to the Property,
including, but not limited to, the following actions, each of which may be
pursued concurrently or otherwise, at such time and in such order as Lender or
Trustee may determine, in their sole discretion, without impairing or otherwise
affecting the other rights and remedies of Lender or Trustee:
(a) declare the entire unpaid Debt to be immediately due and
payable;
(b) institute proceedings, judicial or otherwise, for the
complete foreclosure of this Security Instrument under any applicable
provision of law, in which case the Property or any interest therein
may be sold for cash or upon credit in one or more parcels or in
several interests or portions and in any order or manner;
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<PAGE> 16
(c) with or without entry, to the extent permitted and
pursuant to the procedures provided by applicable law, institute
proceedings for the partial foreclosure of this Security Instrument for
the portion of the Debt then due and payable, subject to the continuing
lien and security interest of this Security Instrument for the balance
of the Debt not then due, unimpaired and without loss of priority;
(d) sell for cash or upon credit the Property or any part
thereof and all estate, claim, demand, right, title and interest of
Borrower therein and rights of redemption thereof, pursuant to power of
sale or otherwise, at one or more sales, as an entity or in parcels, at
such time and place, upon such terms and after such notice thereof, all
as may be required or permitted by law; and, without limiting the
foregoing:
(i) In connection with any sale or sales hereunder,
Lender or the Trustee shall be entitled to elect to treat any
of the Property which consists of a right in action or which
is property that can be severed from the Real Property covered
hereby or any improvements without causing structural damage
thereto as if the same were personal property, and dispose of
the same in accordance with applicable law, separate and apart
from the sale of Real Property. Where the Property consists of
Real Property, Personal Property, Equipment or Fixtures,
whether or not such Personal Property or Equipment is located
on or within the Real Property, Lender and/or the Trustee
shall be entitled to elect to exercise its rights and remedies
against any or all of the Real Property, Personal Property,
Equipment and Fixtures in such order and manner as is now or
hereafter permitted by applicable law;
(ii) Lender and/or the Trustee shall be entitled to
elect to proceed against any or all of the Real Property,
Personal Property, Equipment and Fixtures in any manner
permitted under applicable law; and if Lender and/or the
Trustee so elects pursuant to applicable law, the power of
sale herein granted shall be exercisable with respect to all
or any of the Real Property, Personal Property, Equipment and
Fixtures covered hereby, as designated by Lender and/or the
Trustee and Trustee is hereby authorized and empowered to
conduct any such sale of any Real Property, Personal Property,
Equipment and Fixtures in accordance with the procedures
applicable to Real Property;
(iii) Should Lender and/or the Trustee elect to sell
any portion of the Property which is Real Property or which is
Personal Property, Equipment or Fixtures that the Lender
and/or the Trustee has elected under applicable law to sell
together with Real Property in accordance with the laws
governing a sale of Real Property, Lender and/or the Trustee
shall give such notice of Event of Default, if any, and
election to sell as may then be required by law. Thereafter,
upon the expiration of such time and the giving of such notice
of sale as may then be required by law, and without the
necessity of any demand on Borrower, Lender and/or the Trustee
at the time and place specified in the notice of sale,
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<PAGE> 17
shall sell such Real Property or part thereof at public
auction to the highest bidder for cash in lawful money of the
United States. Lender or the Trustee may from time to time
postpone any sale hereunder by public announcement thereof at
the time and place noticed therefor;
(iv) If the Property consists of several lots,
parcels or items of property, Lender or the Trustee shall,
subject to applicable law, (A) designate the order in which
such lots, parcels or items shall be offered for sale or sold,
or (B) elect to sell such lots, parcels or items through a
single sale, or through two or more successive sales, or in
any other manner Lender or the Trustee designates. Any Person,
other than the Trustee, including Borrower or Lender, may
purchase at any sale hereunder. Should Lender or the Trustee
desire that more than one sale or other disposition of the
Property be conducted, Lender or the Trustee shall, subject to
applicable law, cause such sales or dispositions to be
conducted simultaneously, or successively, on the same day, or
at such different days or times and in such order as Lender or
the Trustee may designate, and no such sale shall terminate or
otherwise affect the lien of this Security Instrument on any
part of the Property not sold until all the Debt has been paid
in full. In the event Lender or the Trustee elects to dispose
of the Property through more than one sale, except as
otherwise provided by applicable law, Borrower agrees to pay
the costs and expenses of each such sale and of any judicial
proceedings wherein such sale may be made;
(e) institute an action, suit or proceeding in equity for the
specific performance of any covenant, condition or agreement contained
herein, in the Note, the Loan Agreement or in the other Loan Documents;
(f) recover judgment on the Note either before, during or
after any proceedings for the enforcement of this Security Instrument
or the other Loan Documents;
(g) apply for the appointment of a receiver, trustee,
liquidator or conservator of the Property, without notice and without
regard for the adequacy of the security for the Debt and without regard
for the solvency of Borrower, any guarantor, indemnitor with respect to
the Loan or of any Person, liable for the payment of the Debt;
(h) the license granted to Borrower under SECTION 1.2 hereof
shall automatically be revoked and Lender may enter into or upon the
Property, either personally or by its agents, nominees or attorneys and
dispossess Borrower and its agents and servants therefrom, without
liability for trespass, damages or otherwise and exclude Borrower and
its agents or servants wholly therefrom, and take possession of all
books, records and accounts relating thereto and Borrower agrees to
surrender possession of the Property and of such books, records and
accounts to Lender upon demand, and thereupon Lender may (i) use,
operate, manage, control, insure, maintain, repair, restore and
otherwise deal with all and every part of the Property and conduct
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<PAGE> 18
the business thereat; (ii) complete any construction on the Property in
such manner and form as Lender deems advisable; (iii) make alterations,
additions, renewals, replacements and improvements to or on the
Property; (iv) exercise all rights and powers of Borrower with respect
to the Property, whether in the name of Borrower or otherwise,
including, without limitation, the right to make, cancel, enforce or
modify Leases, obtain and evict tenants, and demand, sue for, collect
and receive all Rents of the Property and every part thereof; (v)
require Borrower to pay monthly in advance to Lender, or any receiver
appointed to collect the Rents, the fair and reasonable rental value
for the use and occupation of such part of the Property as may be
occupied by Borrower; (vi) require Borrower to vacate and surrender
possession of the Property to Lender or to such receiver and, in
default thereof, Borrower may be evicted by summary proceedings or
otherwise; and (vii) apply the receipts from the Property to the
payment of the Debt, in such order, priority and proportions as Lender
shall deem appropriate in its sole discretion after deducting therefrom
all expenses (including reasonable attorneys' fees) incurred in
connection with the aforesaid operations and all amounts necessary to
pay the Taxes, Other Charges, insurance and other expenses in
connection with the Property, as well as just and reasonable
compensation for the services of Lender, its counsel, agents and
employees;
(i) exercise any and all rights and remedies granted to a
secured party upon default under the Uniform Commercial Code,
including, without limiting the generality of the foregoing: (i) the
right to take possession of the Fixtures, the Equipment, the Personal
Property or any part thereof, and to take such other measures as Lender
may deem necessary for the care, protection and preservation of the
Fixtures, the Equipment, the Personal Property, and (ii) request
Borrower at its expense to assemble the Fixtures, the Equipment, the
Personal Property and make it available to Lender at a convenient place
acceptable to Lender. Any notice of sale, disposition or other intended
action by Lender with respect to the Fixtures, the Equipment, the
Personal Property sent to Borrower in accordance with the provisions
hereof at least ten (10) days prior to such action, shall constitute
commercially reasonable notice to Borrower;
(j) apply any sums then deposited or held in escrow or
otherwise by or on behalf of Lender in accordance with the terms of the
Loan Agreement, this Security Instrument or any other Loan Document to
the payment of the following items in any order in its uncontrolled
discretion:
(i) Taxes and Other Charges;
(ii) Insurance Premiums;
(iii) Interest on the unpaid principal balance of
the Note;
(iv) Amortization of the unpaid principal balance
of the Note;
(v) All other sums payable pursuant to the Note,
the Loan Agreement, this Security Instrument
and the other Loan
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<PAGE> 19
Documents, including without limitation
advances made by Lender pursuant to the
terms of this Security Instrument;
(k) pursue such other remedies as Lender may have under
applicable law; or
(1) apply the undisbursed balance of any Net Proceeds
Deficiency deposit, together with interest thereon, to the payment of
the Debt in such order, priority and proportions as Lender shall deem
to be appropriate in its discretion.
In the event of a sale, by foreclosure, power of sale or otherwise, of less than
all of Property, this Security Instrument shall continue as a lien and security
interest on the remaining portion of the Property unimpaired and without loss of
priority.
Section 7.2 APPLICATION OF PROCEEDS. The purchase money,
proceeds and avails of any disposition of the Property, and or any part thereof,
or any other sums collected by Lender pursuant to the Note, this Security
Instrument or the other Loan Documents, may be applied by Lender to the payment
of the Debt in such priority and proportions as Lender in its discretion shall
deem proper, to the extent consistent with law.
Section 7.3 RIGHT TO CURE DEFAULTS. Upon the occurrence and
during the continuance of any Event of Default, Lender may remedy such Event of
Default in such manner and to such extent as Lender may deem necessary to
protect the security hereof, but without any obligation to do so and without
notice to or demand on Borrower, and without releasing Borrower from any
obligation hereunder. Lender is authorized to enter upon action or proceeding to
the Property for such purposes, or appear in, defend, or bring any action or
proceeding to protect its interest in the Property or to foreclose this Security
Instrument or collect the Debt, and the cost and expense thereof (including
reasonable attorneys' fees to the extent permitted by law), with interest as
provided in this SECTION 7.3, shall constitute a portion of the Debt and shall
be due and payable to Lender upon demand. All such costs and expenses incurred
by Lender in remedying such Event of Default or such failed payment or act or in
appearing in, defending, or bringing any such action or proceeding shall bear
interest at the Default Rate, for the period after notice from Lender that such
cost or expense was incurred to the date of payment to Lender. All such costs
and expenses incurred by Lender together with interest thereon calculated at the
Default Rate shall be deemed to constitute a portion of the Debt and be secured
by this Security Instrument and the other Loan Documents and shall be
immediately due and payable upon demand by Lender therefor.
Section 7.4 ACTIONS AND PROCEEDINGS. Lender or Trustee has the
right to appear in and defend any action or proceeding brought with respect to
the Property and to bring any action or proceeding, in the name and on behalf of
Borrower, which Lender, in its discretion, decides should be brought to protect
its interest in the Property.
Section 7.5 RECOVERY OF SUMS REQUIRED TO BE PAID. Lender shall
have the right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Lender or Trustee thereafter to bring an action of
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foreclosure, or any other action, for a default or defaults by Borrower existing
at the time such earlier action was commenced.
Section 7.6 EXAMINATION OF BOOKS AND RECORDS. At reasonable
times and upon reasonable notice, Lender, its agents, accountants and attorneys
shall have the right to examine the records, books, management and other papers
of Borrower which reflect upon their financial condition, at the Property or at
any office regularly maintained by Borrower where the books and records are
located. Lender and its agents shall have the right to make copies and extracts
from the foregoing records and other papers. In addition, at reasonable times
and upon reasonable notice, Lender, its agents, accountants and attorneys shall
have the right to examine and audit the books and records of Borrower pertaining
to the income, expenses and operation of the Property during reasonable business
hours at any office of Borrower where the books and records are located. This
SECTION 7.6 shall apply throughout the term of the Note and without regard to
whether an Event of Default has occurred or is continuing.
Section 7.7 OTHER RIGHTS, ETC. (a) The failure of Lender or
Trustee to insist upon strict performance of any term hereof shall not be deemed
to be a waiver of any term of this Security Instrument. Borrower shall not be
relieved of Borrower's obligations hereunder by reason of (i) the failure of
Lender or Trustee to comply with any request of Borrower or any guarantor or
indemnitor with respect to the Loan to take any action to foreclose this
Security Instrument or otherwise enforce any of the provisions hereof or of the
Note or the other Loan Documents, (ii) the release, regardless of consideration,
of the whole or any part of the Property, or of any person liable for the Debt
or any portion thereof, or (iii) any agreement or stipulation by Lender
extending the time of payment or otherwise modifying or supplementing the terms
of the Note, this Security Instrument or the other Loan Documents.
(b) It is agreed that the risk of loss or damage to the
Property is on Borrower, and Lender shall have no liability whatsoever for
decline in value of the Property, for failure to maintain the Policies, or for
failure to determine whether insurance in force is adequate as to the amount of
risks insured. Possession by Lender shall not be deemed an election of judicial
relief, if any such possession is requested or obtained, with respect to any
Property or collateral not in Lender's possession.
(c) Lender may resort for the payment of the Debt to any other
security held by Lender in such order and manner as Lender, in its discretion,
may elect. Lender or Trustee may take action to recover the Debt, or any portion
thereof, or to enforce any covenant hereof without prejudice to the right of
Lender or Trustee thereafter to foreclose this Security Instrument. The rights
of Lender or Trustee under this Security Instrument shall be separate, distinct
and cumulative and none shall be given effect to the exclusion of the others. No
act of Lender or Trustee shall be construed as an election to proceed under any
one provision herein to the exclusion of any other provision. Neither Lender nor
Trustee shall be limited exclusively to the rights and remedies herein stated
but shall be entitled to every right and remedy now or hereafter afforded at law
or in equity.
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Section 7.8 RIGHT TO RELEASE ANY PORTION OF THE PROPERTY.
Lender may release any portion of the Property for such consideration as Lender
may require without, as to the remainder of the Property, in any way impairing
or affecting the lien or priority of this Security Instrument, or improving the
position of any subordinate lienholder with respect thereto, except to the
extent that the obligations hereunder shall have been reduced by the actual
monetary consideration, if any, received by Lender for such release, and may
accept by assignment, pledge or otherwise any other property in place thereof as
Lender may require without being accountable for so doing to any other
lienholder. This Security Instrument shall continue as a lien and security
interest in the remaining portion of the Property.
Section 7.9 VIOLATION OF LAWS. If the Property is not in
material compliance with Legal Requirements, Lender may impose additional
requirements upon Borrower in connection herewith including, without limitation,
monetary reserves or financial equivalents.
Section 7.10 RECOURSE AND CHOICE OF REMEDIES. Notwithstanding
any other provision of this Security Instrument or the Loan Agreement,
including, without limitation, Section 9.4 of the Loan Agreement, Lender and
other Indemnified Parties (as hereinafter defined) are entitled to enforce the
obligations of Borrower, any guarantor and indemnitor contained in Sections 9.2,
9.3 and 9.4 herein and Section 9.2 of the Loan Agreement without first resorting
to or exhausting any security or collateral and without first having recourse to
the Note or any of the Property, through foreclosure, exercise of a power of
sale or acceptance of a deed in lieu of foreclosure or otherwise, and in the
event Lender commences a foreclosure action against the Property, or otherwise
causes Trustee to exercise the power of sale pursuant to this Security
Instrument, Lender is entitled to pursue a deficiency judgment with respect to
such obligations against Borrower and any guarantor or indemnitor with respect
to the Loan. The provisions of Sections 9.2, 9.3 and 9.4 herein and Section 9.2
of the Loan Agreement are exceptions to any non-recourse or exculpation
provisions in the Loan Agreement, the Note, this Security Instrument or the
other Loan Documents, and Borrower and any guarantor or indemnitor with respect
to the Loan are fully and personally liable for the obligations pursuant to
Sections 9.2, 9.3 and 9.4 herein and Section 9.2 of the Loan Agreement. The
liability of Borrower and any guarantor or indemnitor with respect to the Loan
pursuant to Sections 9.2, 9.3 and 9.4 herein and Section 9.2 of the Loan
Agreement is not limited to the original principal amount of the Note.
Notwithstanding the foregoing, nothing herein shall inhibit or prevent Lender or
Trustee from foreclosing or exercising a power of sale pursuant to this Security
Instrument or exercising any other rights and remedies pursuant to the Loan
Agreement, the Note, this Security Instrument and the other Loan Documents,
whether simultaneously with foreclosure proceedings or in any other sequence. A
separate action or actions may be brought and prosecuted against Borrower
pursuant to Sections 9.2, 9.3 and 9.4 herein and Section 9.2 of the Loan
Agreement, whether or not action is brought against any other Person or whether
or not any other Person is joined in the action or actions. In addition, Lender
shall have the right but not the obligation to join and participate in, as a
party if it so elects, any administrative or judicial proceedings or actions
initiated in connection with any matter addressed in Article 8 or Section 9.4
herein.
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Section 7.11 RIGHT OF ENTRY. Upon reasonable notice to
Borrower, Lender and its agents shall have the right to enter and inspect the
Property at all reasonable times.
Article 8 - ENVIRONMENTAL HAZARDS
Section 8.1 ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES.
Based upon an environmental assessment of the Property and information that
Borrower knows after due inquiry of the Manager, and except as otherwise
disclosed by that certain Environmental Site Assessment of the Property
delivered to Lender (such report is referred to below as the "ENVIRONMENTAL
REPORT"), (a) there are no Hazardous Substances (defined below) or underground
storage tanks in, on, or under the Property, except those that are both (i) in
compliance with Environmental Laws (defined below) and with permits issued
pursuant thereto and (ii) fully disclosed to Lender in writing pursuant the
Environmental Report; (b) there are no past, present or threatened Releases
(defined below) of Hazardous Substances in, on, under or from the Property which
has not been fully remediated in accordance with Environmental Law; (c) there is
no threat of any Release of Hazardous Substances migrating to the Property; (d)
there is no past or present non-compliance with Environmental Laws, or with
permits issued pursuant thereto, in connection with the Property which has not
been fully remediated in accordance with Environmental Law; (e) Borrower does
not know of, and has not received, any written or oral notice or other
communication from any Person (including but not limited to a governmental
entity) relating to Hazardous Substances or Remediation (defined below) thereof,
of possible liability of any Person pursuant to any Environmental Law, other
environmental conditions in connection with the Property, or any actual or
potential administrative or judicial proceedings in connection with any of the
foregoing; and (f) Borrower has truthfully and fully provided to Lender, in
writing, any and all information relating to conditions in, on, under or from
the Property that is known to Borrower and that is contained in Borrower's files
and records, including but not limited to any reports relating to Hazardous
Substances in, on, under or from the Property and/or to the environmental
condition of the Property.
"ENVIRONMENTAL LAW" means any present and future federal,
state and local laws, statutes, ordinances, rules, regulations and the like, as
well as common law, relating to protection of human health or the environment,
relating to Hazardous Substances, relating to liability for or costs of
Remediation or prevention of Releases of Hazardous Substances or relating to
liability for or costs of other actual or threatened danger to human health or
the environment. Environmental Law includes, but is not limited to, the
following statutes, as amended, any successor thereto, and any regulations
promulgated pursuant thereto, and any state or local statutes, ordinances,
rules, regulations and the like addressing similar issues: the Comprehensive
Environmental Response, Compensation and Liability Act; the Emergency Planning
and Community Right-to-Know Act; the Hazardous Substances Transportation Act;
the Resource Conservation and Recovery Act (including but not limited to
Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act;
the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the
Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal
Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide
Act; the Endangered Species Act; the National Environmental Policy Act; and
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the River and Harbors Appropriation Act. Environmental Law also includes, but is
not limited to, any present and future federal, state and local laws, statutes,
ordinances, rules, regulations and the like, as well as common law: conditioning
transfer of property upon a negative declaration or other approval of a
governmental authority of the environmental condition of the Property; requiring
notification or disclosure of Releases of Hazardous Substances or other
environmental condition of the Property to any governmental authority or other
Person, whether or not in connection with transfer of title to or interest in
property; imposing conditions or requirements in connection with permits or
other authorization for lawful activity; relating to nuisance, trespass or other
causes of action related to the Property; and relating to wrongful death,
personal injury, or property or other damage in connection with any physical
condition or use of the Property.
"HAZARDOUS SUBSTANCES" include but are not limited to any and
all substances (whether solid, liquid or gas) defined, listed, or otherwise
classified as pollutants, hazardous wastes, hazardous substances, hazardous
materials, extremely hazardous wastes, or words of similar meaning or regulatory
effect under any present or future Environmental Laws or that may have a
negative impact on human health or the environment, including but not limited to
petroleum and petroleum products, asbestos and asbestos-containing materials,
polychlorinated biphenyls, lead, radon, radioactive materials, flammables and
explosives, but excluding substances of kinds and in amounts ordinarily and
customarily used or stored in similar properties for the purpose of cleaning or
other maintenance or operations and otherwise in compliance with all
Environmental Laws.
"RELEASE" of any Hazardous Substance includes but is not
limited to any release, deposit, discharge, emission, leaking, spilling,
seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping,
disposing or other movement of Hazardous Substances.
"REMEDIATION" includes but is not limited to any response,
remedial, removal, or corrective action, any activity to cleanup, detoxify,
decontaminate, contain or otherwise remediate any Hazardous Substance, any
actions to prevent, cure or mitigate any Release of any Hazardous Substance, any
action to comply with any Environmental Laws or with any permits issued pursuant
thereto, any inspection, investigation, study, monitoring, assessment, audit,
sampling and testing, laboratory or other analysis, or evaluation relating to
any Hazardous Substances or to anything referred to in Article 8.
Section 8.2 ENVIRONMENTAL COVENTANTS. Borrower covenants and
agrees that: (a) all uses and operations on or of the Property, whether by
Borrower or any other Person, shall be in compliance with all Environmental Laws
and permits issued pursuant thereto; (b) there shall be no Releases of Hazardous
Substances in, on, under or from the Property; (c) there shall be no Hazardous
Substances in, on, or under the Property, except those that are both (i) in
compliance with all Environmental Laws and with permits issued pursuant thereto
and (ii) fully disclosed to Lender in writing; (d) Borrower shall keep the
Property free and clear of all liens and other encumbrances imposed pursuant to
any Environmental Law, whether due to any act or omission of Borrower or any
other Person (the
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"ENVIRONMENTAL LIENS"); (e) Borrower shall, at its sole cost and expense, fully
and expeditiously cooperate in all activities pursuant to SECTION 8.3 below,
including but not limited to providing all relevant information and making
knowledgeable persons available for interviews; (f) Borrower shall, at its sole
cost and expense, perform any environmental site assessment or other
investigation of environmental conditions in connection with the Property,
pursuant to any reasonable written request of Lender made in the event that
Lender has reason to believe that an environmental hazard exists on the Property
(including but not limited to sampling, testing and analysis of soil, water,
air, building materials and other materials and substances whether solid, liquid
or gas), and share with Lender the reports and other results thereof, and Lender
and other Indemnified Parties shall be entitled to rely on such reports and
other results thereof; (g) Borrower shall, at its sole cost and expense, comply
with all reasonable written requests of Lender made in the event that Lender has
reason to believe that an environmental hazard exists on the Property (i)
reasonably effectuate Remediation of any condition (including but not limited to
a Release of a Hazardous Substance) in, on, under or from the Property; (ii)
comply with any Environmental Law; (iii) comply with any directive from any
governmental authority; and (iv) take any other reasonable action necessary or
appropriate for protection of human health or the environment; (h) Borrower
shall not do or allow any tenant or other user of the Property to do any act
that materially increases the dangers to human health or the environment, poses
an unreasonable risk of harm to any Person (whether on or off the Property),
impairs or may impair the value of the Property, is contrary to any requirement
of any insurer, constitutes a public or private nuisance, constitutes waste, or
violates any covenant, condition, agreement or easement applicable to the
Property; and (i) Borrower shall immediately notify Lender in writing of (A) any
presence or Releases or threatened Releases of Hazardous Substances in, on,
under, from or migrating towards the Property; (B) any non-compliance with any
Environmental Laws related in any way to the Property; (C) any actual or
potential Environmental Lien; (D) any required or proposed Remediation of
environmental conditions relating to the Property; and (E) any written or oral
notice or other communication of which Borrower becomes aware from any source
whatsoever (including but not limited to a governmental entity) relating in any
way to Hazardous Substances or Remediation thereof, possible liability of any
Person pursuant to any Environmental Law, other environmental conditions in
connection with the Property, or any actual or potential administrative or
judicial proceedings in connection with anything referred to in this Article 8.
Section 8.3 LENDER'S RIGHTS. In the event that Lender has
reason to believe that an environmental hazard exists on the Property, upon
reasonable notice from Lender, Borrower shall, at Borrower's expense, promptly
cause an engineer or consultant satisfactory to Lender to conduct any
environmental assessment or audit (the scope of which shall be determined in
Lender's sole and absolute discretion) and take any samples of soil, groundwater
or other water, air, or building materials or any other invasive testing
requested by Lender and promptly deliver the results of any such assessment,
audit, sampling or other testing; provided, however, if such results are not
delivered to Lender within a reasonable period, upon reasonable notice to
Borrower, Lender and any other Person designated by Lender, including but not
limited to any receiver, any representative of a governmental entity, and any
environmental consultant, shall have the right, but not the obligation, to enter
upon the
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Property at all reasonable times to assess any and all aspects of the
environmental condition of the Property and its use, including but not limited
to conducting any environmental assessment or audit (the scope of which shall be
determined in Lender's sole and absolute discretion) and taking samples of soil,
groundwater or other water, air, or building materials, and reasonably
conducting other invasive testing. Borrower shall cooperate with and provide
access to Lender and any such Person designated by Lender.
Article 9 - INDEMNIFICATION
Section 9.1 GENERAL INDEMNIFICATION. Borrower shall, at its
sole cost and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties from and against any and all claims, suits, liabilities
(including, without limitation, strict liabilities), actions, proceedings,
obligations, debts, damages, losses, costs, expenses, diminutions in value,
fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in
settlement, punitive damages, foreseeable and unforeseeable consequential
damages, of whatever kind or nature (including but not limited to reasonable
attorneys' fees and other costs of defense) (collectively, the "LOSSES") imposed
upon or incurred by or asserted against any Indemnified Parties and directly or
indirectly arising out of or in any way relating to any one or more of the
following: (a) ownership of this Security Instrument, the Property or any
interest therein or receipt of any Rents; (b) any amendment to, or restructuring
of, the Debt, and the Note, the Loan Agreement, this Security Instrument, or any
other Loan Documents; (c) any and all lawful action that may be taken by Lender
in connection with the enforcement of the provisions of this Security Instrument
or the Loan Agreement or the Note or any of the other Loan Documents, whether or
not suit is filed in connection with same, or in connection with Borrower, any
guarantor or indemnitor and/or any partner, joint venturer or shareholder
thereof becoming a party to a voluntary or involuntary federal or state
bankruptcy, insolvency or similar proceeding; (d) any accident, injury to or
death of persons or loss of or damage to property occurring in, on or about the
Property or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways; (e) any use, nonuse or
condition in, on or about the Property or any part thereof or on the adjoining
sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;
(f) any failure on the part of Borrower to perform or be in compliance with any
of the terms of this Security Instrument; (g) performance of any labor or
services or the furnishing of any materials or other property in respect of the
Property or any part thereof; (h) the failure of any person to file timely with
the Internal Revenue Service an accurate Form 1099-B, Statement for Recipients
of Proceeds from Real Estate, Broker and Barter Exchange Transactions, which may
be required in connection with this Security Instrument, or to supply a copy
thereof in a timely fashion to the recipient of the proceeds of the transaction
in connection with which this Security Instrument is made; (i) any failure of
the Property to be in compliance with any Legal Requirements; (j) the
enforcement by any Indemnified Party of the provisions of this Article 9; (k)
any and all claims and demands whatsoever which may be asserted against Lender
by reason of any alleged obligations or undertakings on its part to perform or
discharge any of the terms, covenants, or agreements contained in any Lease; (1)
the payment of any commission, charge or brokerage fee to anyone claiming
through Borrower which may be payable in
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connection with the funding of the Loan; or (m) any misrepresentation made by
Borrower in this Security Instrument or any other Loan Document. Notwithstanding
the foregoing, Borrower shall not be liable to the Indemnified Parties under
this SECTION 9.1 for any Losses to which the Indemnified Parties may become
subject to the extent such Losses arise by reason of the gross negligence,
illegal acts, fraud or willful misconduct of the Indemnified Parties. Any
amounts payable to Lender by reason of the application of this SECTION 9.1 shall
become immediately due and payable and shall bear interest at the Default Rate
from the date loss or damage is sustained by Lender until paid. For purposes of
this Article 9, the term "INDEMNIFIED PARTIES" means Lender and any Person who
is or will have been involved in the origination of the Loan, any Person who is
or will have been involved in the servicing of the Loan secured hereby, any
Person in whose name the encumbrance created by this Security Instrument is or
will have been recorded, persons and entities who may hold or acquire or will
have held a full or partial interest in the Loan secured hereby (including, but
not limited to, investors or prospective investors in the Securities, as well as
custodians, trustees and other fiduciaries who hold or have held a full or
partial interest in the Loan secured hereby for the benefit of third parties) as
well as the respective directors, officers, shareholders, partners, employees,
agents, servants, representatives, contractors, subcontractors, affiliates,
subsidiaries, participants, successors and assigns of any and all of the
foregoing (including but not limited to any other Person who holds or acquires
or will have held a participation or other full or partial interest in the Loan,
whether during the term of the Loan or as a part of or following a foreclosure
of the Loan and including, but not limited to, any successors by merger,
consolidation or acquisition of all or a substantial portion of Lender's assets
and business).
Section 9.2 MORTGAGE AND/OR INTANGIBLE TAX. Borrower shall, at
its sole cost and expense, protect, defend, indemnify, release and hold harmless
the Indemnified Parties from and against any and all Losses imposed upon or
incurred by or asserted against any Indemnified Parties and directly or
indirectly arising out of or in any way relating to any tax on the making and/or
recording of this Security Instrument, the Note or any of the other Loan
Documents, but excluding any income, franchise or other similar taxes.
Section 9.3 ERISA INDEMNIFICATION. Borrower shall, at its sole
cost and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties from and against any and all Losses (including, without
limitation, reasonable attorneys' fees and costs incurred in the investigation,
defense, and settlement of Losses incurred in correcting any prohibited
transaction or in the sale of a prohibited loan, and in obtaining any individual
prohibited transaction exemption under ERISA that may be required, in Lender's
sole discretion) that Lender may incur, directly or indirectly, as a result of a
default under Sections 4.1.9 or 5.2.12 of the Loan Agreement.
Section 9.4 ENVIRONMENTAL INDEMNIFICATION. Borrower shall, at
its sole cost and expense, protect, defend, indemnify, release and hold harmless
the Indemnified Parties from and against any and all Losses and costs of
Remediation (whether or not performed voluntarily), engineers' fees,
environmental consultants' fees, and costs of investigation (including but not
limited to sampling, testing, and analysis of soil, water, air,
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building materials and other materials and substances whether solid, liquid or
gas) imposed upon or incurred by or asserted against any Indemnified Parties,
and directly or indirectly arising out of or in any way relating to any one or
more of the following: (a) any presence of any Hazardous Substances in, on,
above, or under the Property; (b) any past, present or threatened Release of
Hazardous Substances in, on, above, under or from the Property; (c) any activity
by Borrower, any Person affiliated with Borrower or any tenant or other user of
the Property in connection with any actual, proposed or threatened use,
treatment, storage, holding, existence, disposition or other Release,
generation, production, manufacturing, processing, refining, control,
management, abatement, removal, handling, transfer or transportation to or from
the Property of any Hazardous Substances at any tine located in, under, on or
above the Property; (d) any activity by Borrower, any Person affiliated with
Borrower or any tenant or other user of the Property in connection with any
actual or proposed Remediation of any Hazardous Substances at any time located
in, under, on or above the Property, whether or not such Remediation is
voluntary or pursuant to court or administrative order, including but not
limited to any removal, remedial or corrective action; (e) any past or present
non-compliance or violations of any Environmental Laws (or permits issued
pursuant to any Environmental Law) in connection with the Property or operations
thereon, including but not limited to any failure by Borrower, any Affiliate of
Borrower or any tenant or other user of the Property to comply with any order of
any Governmental Authority in connection with any Environmental Laws; (f) the
imposition, recording or filing of any Environmental Lien encumbering the
Property; (g) any administrative processes or proceedings or judicial
proceedings in any way connected with any matter addressed in Article 8 and this
SECTION 9.4; (h) any past, present or threatened injury to, destruction of or
loss of natural resources in any way connected with the Property, including but
not limited to costs to investigate and assess such injury, destruction or loss;
(i) any acts of Borrower or other users of the Property in arranging for
disposal or treatment, or arranging with a transporter for transport for
disposal or treatment, of Hazardous Substances owned or possessed by such
Borrower or other users, at any facility or incineration vessel owned or
operated by another Person and containing such or any similar Hazardous
Substance; (j) any acts of Borrower or other users of the Property, in accepting
any Hazardous Substances for transport to disposal or treatment facilities,
incineration vessels or sites selected by Borrower or such other users, from
which there is a Release, or a threatened Release of any Hazardous Substance
which causes the incurrence of costs for Remediation; (k) any personal injury,
wrongful death, or property damage arising under any statutory or common law or
tort law theory, including but not limited to damages assessed for the
maintenance of a private or public nuisance or for the conducting of an
abnormally dangerous activity on or near the Property; and (1) any
misrepresentation or inaccuracy in any representation or warranty or material
breach or failure to perform any covenants or other obligations pursuant to
Article 8. Notwithstanding the foregoing, Borrower shall not be liable under
this SECTION 9.4 for any Losses or costs of Remediation to which the Indemnified
Parties may become subject to the extent such Losses or costs of Remediation
arise by reason of the gross negligence, illegal acts, fraud of willful
misconduct of the Indemnified Parties. This indemnity shall survive any
termination, satisfaction or foreclosure of this Security Instrument, subject to
the provisions of SECTION 10.5.
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Section 9.5 DUTY TO DEFEND; ATTORNEYS' FEES AND OTHER FEES AND
EXPENSES. Upon written request by any Indemnified Party, Borrower shall defend
such Indemnified Party (if requested by any Indemnified Party, in the name of
the Indemnified Party) by attorneys and other professionals approved by the
Indemnified Parties. Notwithstanding the foregoing, if the defendants in any
such claim or proceeding include both Borrower and any Indemnified Party and
Borrower and such Indemnified Party shall have reasonably concluded that there
are any legal defenses available to it and/or other Indemnified Parties that are
different from or additional to those available to Borrower, such Indemnified
Party shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such Indemnified Party, provided that no compromise or settlement shall be
entered without Borrower's consent, which consent shall not be unreasonably
withheld. Upon demand, Borrower shall pay or, in the sole and absolute
discretion of the Indemnified Parties, reimburse, the Indemnified Parties for
the payment of reasonable fees and disbursements of attorneys, engineers,
environmental consultants, laboratories and other professionals in connection
therewith.
Article 10 - WAIVERS
Section 10.1 WAIVER OF COUNTERCLAIM. To the extent permitted
by applicable law, Borrower hereby waives the right to assert a counterclaim,
other than a mandatory or compulsory counterclaim, in any action or proceeding
brought against it by Lender arising out of or in any way connected with this
Security Instrument, the Loan Agreement, the Note, any of the other Loan
Documents, or the Obligations.
Section 10.2 MARSHALLING AND OTHER MATTERS. To the extent
permitted by applicable law, Borrower hereby waives, to the extent permitted by
law, the benefit of all appraisement, valuation, stay, extension, reinstatement
and redemption laws now or hereafter in force and all rights of marshalling in
the event of any sale hereunder of the Property or any part thereof or any
interest therein. Further, Borrower hereby expressly waives any and all rights
of redemption from sale under any order or decree of foreclosure of this
Security Instrument on behalf of Borrower, and on behalf of each and every
person acquiring any interest in or title to the Property subsequent to the date
of this Security Instrument and on behalf of all persons to the extent permitted
by applicable law.
Section 10.3 WAIVER OF NOTICE. To the extent permitted by
applicable law, Borrower shall not be entitled to any notices of any nature
whatsoever from Lender or Trustee except with respect to matters for which this
Security Instrument or the Loan Documents specifically and expressly provide for
the giving of notice by Lender or Trustee to Borrower and except with respect to
matters for which Lender or Trustee is required by applicable law to give
notice, and Borrower hereby expressly waives the right to receive any notice
from Lender or Trustee with respect to any matter for which this Security
Instrument does not specifically and expressly provide for the giving of notice
by Lender or Trustee to Borrower.
Section 10.4 WAIVER OF STATUTE OF LIMITATIONS. To the extent
permitted by applicable law, Borrower hereby expressly waives and releases to
the fullest extent permitted
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by law, the pleading of any statute of limitations as a defense to payment of
the Debt or performance of its Other Obligations.
Section 10.5 SURVIVAL. The indemnifications made pursuant to
SECTIONS 9.3 AND 9.4 herein and the representations and warranties, covenants,
and other obligations arising under Article 8, shall continue indefinitely in
full force and effect and shall survive and shall in no way be impaired by: any
satisfaction, release or other termination of this Security Instrument, any
assignment or other transfer of all or any portion of this Security Instrument
or Lender's interest in the Property (but, in such case, shall benefit both
Indemnified Parties and any assignee or transferee), any exercise of Lender's
rights and remedies pursuant hereto including but not limited to foreclosure or
acceptance of a deed in lieu of foreclosure, any exercise of any rights and
remedies pursuant to the Loan Agreement, the Note or any of the other Loan
Documents, any transfer of all or any portion of the Property (whether by
Borrower or by Lender following foreclosure or acceptance of a deed in lieu of
foreclosure or at any other time), any amendment to this Security Instrument,
the Loan Agreement, the Note or the other Loan Documents, and any act or
omission that might otherwise be construed as a release or discharge of Borrower
from the obligations pursuant hereto. Notwithstanding anything to the contrary
contained in this Security Instrument or the other Loan Documents, Borrower
shall not have any obligations or liabilities under the indemnification under
SECTION 9.4 herein or other indemnifications with respect to Hazardous
Substances contained in the other Loan Documents with respect to those
obligations and liabilities that Borrower can prove arose solely from Hazardous
Substances that (i) were not present on or a threat to the Property prior to the
date that Lender or its nominee acquired title to the Property, whether by
foreclosure, exercise by power of sale, acceptance of a deed-in-lieu of
foreclosure or otherwise and (ii) were not the result of any act or negligence
of Borrower or any of Borrower's affiliates, agents or contractors.
Article 11 - EXCULPATION
The provisions of Section 9.4 of the Loan Agreement are hereby
incorporated by reference into this Security Instrument to the same extent and
with the same force as if fully set forth herein.
Article 12 - NOTICES
All notices or other written communications hereunder shall be
delivered in accordance with Section 10.6 of the Loan Agreement.
Article 13 - APPLICABLE LAW
Section 13.1 GOVERNING LAW. (A) THIS SECURITY INSTRUMENT WAS
NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY BORROWER AND ACCEPTED BY LENDER
IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTE SECURED HEREBY WERE
DISBURSED FROM THE
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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, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS SECURITY INSTRUMENT AND THE
OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY
APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE
PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND
SECURITY INTERESTS CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN
DOCUMENTS WITH RESPECT TO THE PROPERTY SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAW OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IT BEING
UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE
LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND
ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING
HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY
OTHER JURISDICTION GOVERNS THIS SECURITY INSTRUMENT AND THE OR THE OTHER LOAN
DOCUMENTS, AND THIS SECURITY INSTRUMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR
BORROWER ARISING OUT OF OR RELATING TO THIS SECURITY INSTRUMENT MAY AT LENDER'S
OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK,
COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR
HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES
HEREBY DESIGNATE AND APPOINT
CT CORPORATION SYSTEM, INC.
1633 BROADWAY, 23RD FLOOR
NEW YORK, NEW YORK 10019
ATTENTION: SERVICE OF PROCESS DEPARTMENT
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<PAGE> 31
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 BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER 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 SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND 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.
Section 13.2 USURY LAWS. Notwithstanding anything to the
contrary, (a) all agreements and communications between Borrower and Lender are
hereby and shall automatically be limited so that, after taking into account all
amounts deemed interest, the interest contracted for, charged or received by
Lender shall never exceed the maximum lawful rate or amount, (b) in calculating
whether any interest exceeds the lawful maximum, all such interest shall be
amortized, prorated, allocated and spread over the full amount and term of all
principal indebtedness of Borrower to Lender, and (c) if through any contingency
or event, Lender receives or is deemed to receive interest in excess of the
lawful maximum, any such excess shall be deemed to have been applied toward
payment of the principal of any and all then outstanding indebtedness of
Borrower to Lender, or if there is no such indebtedness, shall immediately be
returned to Borrower.
Section 13.3 PROVISIONS SUBJECT TO APPLICABLE LAW. All rights,
powers and remedies provided in this Security Instrument may be exercised only
to the extent that the exercise thereof does not violate any applicable
provisions of law and are intended to be limited to the extent necessary so that
they will not render this Security Instrument invalid, unenforceable or not
entitled to be recorded, registered or filed under the provisions of any
applicable law. If any term of this Security Instrument or any application
thereof shall be invalid or unenforceable, the remainder of this Security
Instrument and any other application of the term shall not be affected thereby.
Article 14 - DEFINITIONS
All capitalized terms not defined herein shall have the
respective meanings set forth in the Loan Agreement. Unless the context clearly
indicates a contrary intent or unless otherwise specifically provided herein,
words used in this Security Instrument may be used interchangeably in singular
or plural form and the word "BORROWER" shall mean "each
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<PAGE> 32
Borrower and any subsequent owner or owners of the Property or any part thereof
or any interest therein," the word "LENDER" shall mean "Lender and any
subsequent holder of the Note," the word "NOTE" shall mean "the Note and any
other evidence of indebtedness secured by this Security Instrument," the word
"PROPERTY" shall include any portion of the Property and any interest therein,
and the phrases "ATTORNEYS' FEES", "LEGAL FEES" and "COUNSEL FEES" shall include
any and all attorneys', paralegal and law clerk fees and disbursements,
including, but not limited to, fees and disbursements at the pre-trial, trial
and appellate levels incurred or paid by Lender in protecting its interest in
the Property, the Leases and the Rents and enforcing its rights hereunder.
Article 15 - MISCELLANEOUS PROVISIONS
Section 15.1 NO ORAL CHANGE. This Security Instrument, and any
provisions hereof, may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, 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.
Section 15.2 SUCCESSORS AND ASSIGNS. This Security Instrument
shall be binding upon and inure to the benefit of Borrower and Lender and their
respective successors and assigns forever.
Section 15.3 INAPPLICABLE PROVISIONS. If any term, covenant or
condition of the Loan Agreement, the Note or this Security Instrument is held to
be invalid, illegal or unenforceable in any respect, the Loan Agreement, the
Note and this Security Instrument shall be construed without such provision.
Section 15.4 HEADINGS, ETC. The headings and captions of
various Sections of this Security Instrument are for convenience of reference
only and are not to be construed as defining or limiting, in any way, the scope
or intent of the provisions hereof.
Section 15.5 NUMBER AND GENDER. Whenever the context may
require, any pronouns used herein shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural and vice versa.
Section 15.6 SUBROGATION. If any or all of the proceeds of the
Note have been used to extinguish, extend or renew any indebtedness heretofore
existing against the Property, then, to the extent of the funds so used, Lender
shall be subrogated to all of the rights, claims, liens, titles, and interests
existing against the Property heretofore held by, or in favor of, the holder of
such indebtedness and such former rights, claims, liens, titles, and interests,
if any, are not waived but rather are continued in full force and effect in
favor of Lender and are merged with the lien and security interest created
herein as cumulative security for the repayment of the Debt, the performance and
discharge of Borrower's obligations hereunder, under the Loan Agreement, the
Note and the other Loan Documents and the performance and discharge of the Other
Obligations.
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<PAGE> 33
Section 15.7 ENTIRE AGREEMENT. The Note, the Loan Agreement,
this Security Instrument and the other Loan Documents constitute the entire
understanding and agreement between Borrower and Lender with respect to the
transactions arising in connection with the Debt and supersede all prior written
or oral understandings and agreements between Borrower and Lender with respect
thereto. Borrower hereby acknowledges that, except as incorporated in writing in
the Note, the Loan Agreement, this Security Instrument and the other Loan
Documents, there are not, and were not, and no persons are or were authorized by
Lender to make, any representations, understandings, stipulations, agreements or
promises, oral or written, with respect to the transaction which is the subject
of the Note, the Loan Agreement, this Security Instrument and the other Loan
Documents.
Section 15.8 LIMITATION ON LENDER'S RESPONSIBILITY. No
provision of this Security Instrument shall operate to place any obligation or
liability for the control, care, management or repair of the Property upon
Lender, nor shall it operate to make Lender responsible or liable for any waste
committed on the Property by the tenants or any other Person, or for any
dangerous or defective condition of the Property, or for any negligence in the
management, upkeep, repair or control of the Property resulting in loss or
injury or death to any tenant, licensee, employee or stranger. Nothing herein
contained shall be construed as constituting Lender a "mortgagee in possession."
Article 16 - DEED OF TRUST PROVISIONS
Section 16.1 CONCERNING THE TRUSTEE. 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
Security Instrument, 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 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
Borrower and to Lender. Lender 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 Lender 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 Security
Instrument 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 Lender. 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.
Section 16.2 TRUSTEE'S FEES. Borrower shall pay all reasonable
costs, fees and expenses incurred by Trustee and Trustee's agents and counsel in
connection with the
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<PAGE> 34
performance by Trustee of Trustee's duties hereunder and all such costs, fees
and expenses shall be secured by this Security Instrument.
Section 16.3 CERTAIN RIGHTS. With the approval of Lender,
Trustee shall have the right to take any and all of the following actions: (i)
to select, employ, and advise with counsel (who may be, but need not be, counsel
for Lender) upon any matters arising hereunder, including the preparation,
execution, and interpretation of the Loan Agreement, the Note, this Security
Instrument or the other Loan Documents, and shall be fully protected in relying
as to legal matters on the advice of counsel, (ii) to execute any of the trusts
and powers hereof and to perform any duty hereunder either directly or through
his agents or attorneys, (iii) to select and employ, in and about the execution
of his duties hereunder, suitable accountants, engineers and other experts,
agents and attorneys-in-fact, either corporate or individual, not regularly in
the employ of Trustee, and Trustee shall not be answerable for any act, default,
negligence, or misconduct of any such accountant, engineer or other expert,
agent or attorney-in-fact, if selected with reasonable care, or for any error of
judgment or act done by Trustee in good faith, or be otherwise responsible or
accountable under any circumstances whatsoever, except for Trustee's gross
negligence or bad faith, and (iv) any and all other lawful action as Lender may
instruct Trustee to take to protect or enforce Lender's rights hereunder.
Trustee shall not be personally liable in case of entry by Trustee, or anyone
entering by virtue of the powers herein granted to Trustee, upon the Property
for debts contracted for or liability or damages incurred in the management or
operation of the Property. Trustee shall have the right to rely on any
instrument, document, or signature authorizing or supporting an action taken or
proposed to be taken by Trustee hereunder, believed by Trustee in good faith to
be genuine. Trustee shall be entitled to reimbursement for actual expenses
incurred by Trustee in the performance of Trustee's duties hereunder and to
reasonable compensation for such of Trustee's services hereunder as shall be
rendered.
Section 16.4 RETENTION OF MONEY. All moneys received by
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated in any
manner from any other moneys (except to the extent required by applicable law)
and Trustee shall be under no liability for interest on any moneys received by
Trustee hereunder.
Section 16.5 PERFECTION OF APPOINTMENT. Should any deed,
conveyance, or instrument of any nature be required from Borrower by any Trustee
or substitute trustee to more fully and certainly vest in and confirm to the
Trustee or substitute trustee such estates rights, powers, and duties, then,
upon request by the Trustee or substitute trustee, any and all such deeds,
conveyances and instruments shall be made, executed, acknowledged, and delivered
and shall be caused to be recorded and/or filed by Borrower.
Section 16.6 SUCCESSION INSTRUMENTS. Any substitute trustee
appointed pursuant to any of the provisions hereof shall, without any further
act, deed, or conveyance, become vested with all the estates, properties,
rights, powers, and trusts of its or his predecessor in the rights hereunder
with like effect as if originally named as Trustee herein; but nevertheless,
upon the written request of Lender or of the substitute trustee, the Trustee
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<PAGE> 35
ceasing to act shall execute and deliver any instrument transferring to such
substitute trustee, upon the trusts herein expressed, all the estates,
properties, rights, powers, and trusts of the Trustee so ceasing to act, and
shall duly assign, transfer and deliver any of the property and moneys held by
such Trustee to the substitute trustee so appointed in the Trustee's place.
PART II
Article 17 - STATE-SPECIFIC PROVISIONS
Section 17.1 PRINCIPALS OF CONSTRUCTION. In the event of any
inconsistencies between the terms and provisions of this Security Instrument and
Article 17 of this Security Instrument, the terms and provisions of Article 17
shall govern and control.
Section 17.2 ADDITIONAL SECURITY AGREEMENT PROVISIONS
(a) With respect to fixtures, Lender or Trustee may elect to
treat same as either real property or personal property and proceed to
exercise such rights and remedies applicable to the categorization so
chosen. Lender may proceed against the items of real property and any
items of Property separately or together in any order whatsoever,
without in any way affecting or waiving Lender's rights and remedies
under the Uniform Commercial Code, this Security Instrument or the
Note. Borrower acknowledges and agrees that Lender's rights and
remedies under this Security Instrument and the Note shall be
cumulative and shall be in addition to every other right and remedy now
or hereafter existing at law, in equity, by statute or by agreement of
the parties.
(b) Borrower agrees that this Security Instrument constitutes
a financing statement filed as a fixture filing in the Official Records
of San Joaquin County with respect to any and all fixtures included
within the term "Land" or "Property" as used herein and with respect to
any goods and other personal property that may now be or hereafter
become fixtures. The names and mailing addresses of the debtor
(Borrower) and the secured party (Lender) are set forth on the first
page of this Security Instrument. Borrower is the record owner of the
Property. The personal property described above is the collateral
covered by this financing statement. Any reproduction of this Security
Instrument or any other security agreement or financing statement shall
be sufficient as a financing statement.
Section 17.3 ADDITIONAL REMEDIES PROVISION Borrower hereby
authorizes and empowers Lender in its sole discretion, without any notice or
demand and without affecting the lien and charge of this Security Instrument, to
exercise any right or remedy which Lender may have available to it, including,
but not limited to, judicial foreclosure, exercise of rights of power of sale
without judicial action as to any collateral security for the Obligations,
whether real, personal or intangible property. Borrower expressly waives any
defense or benefits that may be available under California Code of Civil
Procedure Section 580 and in its subdivisions, Section 726, or comparable
provisions of the laws of any other state, as well as all
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<PAGE> 36
suretyship defenses that Borrower may have under California law and the laws of
any other state. Without limiting the foregoing, Borrower specifically agrees
that any action maintained by Lender for the appointment of any receiver,
trustee or custodian to collect rents, issues or profits or to obtain possession
of the Property shall not constitute an "action" within the meaning of Section
726 of the California Code of Civil Procedure.
Section 17.4 ADDITIONAL ENVIRONMENTAL PROVISIONS. The
following statutes are hereby deemed to be included in the definition of
Environmental Laws as that term is used throughout this Security Instrument: the
Porter-Cologne Water Control Act; the Waste Management Act of 1980; the Toxic
Pit Cleanup Act; the Underground Tank Act of 1984; the California Water Quality
Improvement Act; and California Health and Safety Codes Section Section 25117
and 25316.
Section 17.5 ADDITIONAL WAIVERS
(a) Borrower has read and hereby approves the Note, this
Security Instrument, the other Loan Documents and all other agreements
and documents relating thereto. Borrower acknowledges that it has been
represented by counsel of its choice to review this Security
Instrument, the Note, the other Loan Documents and all other documents
relating thereto and said counsel has explained and Borrower
understands the provisions thereof, or that Borrower has voluntarily
declined to retain such counsel.
(b) Borrower hereby expressly waives diligence, demand,
presentment, protest and notice of every kind and nature whatsoever
(unless as otherwise required under this Security Instrument or the
Loan Agreement) and waives any right to require Lender to enforce any
remedy against any guarantor, endorser or other person whatsoever prior
to the exercise of its rights and remedies hereunder or otherwise.
Borrower waives any right to require Lender to: (i) proceed or exhaust
any collateral security given or held by Lender in connection with the
Obligations; (ii) give notice of the terms, time and place of any
public or private sale of any real or personal property security for
the Obligations or other guaranty of the Obligations; or (iii) pursue
any other remedy in Lender's power whatsoever.
(c) Until all Obligations shall have been paid in full,
Borrower: (i) shall not have any right of subrogation to any of the
rights of Lender against any guarantor, maker or endorser; (ii) waives
any right to enforce any remedy which Lender now has or may hereafter
have against any other guarantor, maker or endorser; and (iii) waives
any benefit of, and any other right to participate in, any collateral
security for the Obligations or any guaranty of the Obligations now or
hereafter held by Lender.
[NO FURTHER TEXT ON THIS PAGE]
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<PAGE> 37
IN WITNESS WHEREOF, THIS SECURITY INSTRUMENT has been executed
by Borrower as of the day and year first above written.
WEBERSTOWN MALL, LLC,
a Delaware limited liability company
By: GLIMCHER WEBERSTOWN, INC.,
a Delaware corporation, its managing member
By: /s/ George A. Schmidt
--------------------------------------------
Name: George A. Schmidt
Title: Executive Vice President
<PAGE> 38
ACKNOWLEDGMENT
STATE OF NEW YORK,
COUNTY OF NEW YORK, to wit:
The foregoing instrument was acknowledged before me this 26th
day of April, 1999, by George A. Schmidt, the Executive Vice President of
Glimcher Weberstown, Inc., a Delaware corporation, for and on behalf of said
corporation in its capacity as the managing member of Weberstown Mall, LLC, a
Delaware limited liability company, for and on behalf of said limited liability
company.
My Commission expires: November 30, 1999.
--------------------
MAN WAI LAU
---------------------------------------
Notary Public
[SEAL]
<PAGE> 39
EXHIBIT A
---------
LEGAL DESCRIPTION
All those certain parcels of land situate in the City of Stockton, County of San
Joaquin, State of California, and described as follows:
PARCEL ONE:
A portion of Sections 4 and 5, of C.M. WEBER'S GRANT, EL RANCHO DEL CAMPO DE LOS
FRANCESES, in the City of Stockton, more particularly described as follows:
COMMENCING at the Northwest corner of the C.M. WEBER PROPERTY, as shown upon Map
of Survey, filed for record in Book 10 of Surveys, Page 55, San Joaquin County
Records; thence South 17 degrees 46 minutes East, 42.00 feet along the West line
of said C.M. WEBER property to a point on the South line of Yokuts Avenue
extended, as described in Deed to the City of Stockton, recorded in Book 2247
Official Records, Page 524, San Joaquin County Records, said point being the
True Point of Beginning; thence North 72 degrees 50 minutes East, 1307.79 feet
along said South line of Yokuts Avenue to the Westerly termination of the 20
foot radius round corner curve situate at the Northerly end of the Westerly
boundary of Claremont Avenue as shown on the Map of Weberstown Community Center,
filed for record in Vol. 16 of Maps and Plats, Page 50, San Joaquin County
Records; thence along said Westerly boundary of Claremont Avenue and the
Southerly continuation of said Westerly boundary as described in Book 1988 of
Official Records, Page 576, San Joaquin County Records, the following seven (7)
courses: (1) along the arc of a curve to the right having a radius of 20 feet, a
central angle of 91 degrees 57 minutes 54 seconds, an arc length of 32.10 feet,
and a chord bearing South 61 degrees 11 minutes 03 seconds East, 28.77 feet; (2)
along the arc of a curve to the right having a radius of 370 feet, a central
angle of 22 degrees 55 minutes 16 seconds, an arc length of 148.02 feet, and a
chord bearing South 03 degrees 44 minutes 28 seconds East, 147.03 feet; (3)
along the arc of a curve to the left having a radius of 430 feet, a central
angle of 25 degrees 29 minutes 10 seconds, an arc length of 191.27 feet, and a
chord bearing South 05 degrees 01 minute 24 seconds East, 189.70 feet, (4) South
17 degrees 46 minutes East, 753.92 feet, (5) along the arc of a curve to the
left having a radius of 460 feet, a central angle of 16 degrees 45 minutes, an
arc length of 134.48 feet, and a chord bearing South 26 degrees 08 minutes 03
seconds East, 134.00 feet; (6) along the arc of a curve to the right having a
radius of 20 feet, a central angle of 82 degrees 49 minutes, an arc length of
28.91 feet, and a chord bearing South 06 degrees 53 minutes 30 seconds West,
26.46 feet; and (7) South 48 degrees 18 minutes West, 3.76 feet to the most
Northerly corner of the 50 foot wide roadway easement to the City of Stockton,
recorded in Book 2678 of Official Records, Page 544 , San Joaquin County
Records; thence along the Northerly boundary of said 50 foot wide roadway
easement the following three (3)
<PAGE> 40
courses: (1) along the arc of a curve to the left having a radius of 253.92
feet, a central angle of 30 degrees 00 minutes, an arc length of 132.95 feet,
and a chord bearing South 33 degrees 18 minutes West, 131.44 feet; (2) along the
arc of a curve to the right having a radius of 193.92 feet, a central angle of
30 degrees 00 minutes, an arc length of 101.54 feet, and a chord bearing South
33 degrees 18 minutes West 100.38 feet; and (3) South 48 degrees 18 minutes
West, 203.20 feet; thence South 17 degrees 46 minutes East, 109.41 feet to the
Northwesterly boundary of the 100 foot wide East Bay Municipal Utility District
right of way as described in the Deed recorded in Book 248 of Official Records,
Page 461 , San Joaquin County Records; thence South 48 degrees 18 minutes West,
972.63 feet along said Northwesterly boundary to said West line of the C.M.
WEBER property; thence North 17 degrees 46 minutes West, 2006.41 feet along said
West line to the True Point of Beginning;
EXCEPT THEREFROM Parcels 3 and 4, shown upon that certain Parcel Map dated
October 31, 1996 and filed for record December 20, 1996, in Book 20 of Parcel
Maps, at Page 151, San Joaquin County Records.
PARCEL TWO:
All that certain piece or parcel of land situated, lying and being in portions
of Sections 4, and 5, of C.M. WEBER'S GRANT, EL RANCHO DEL CAMPO DE LOS
FRANCESES, in the City of Stockton, more particularly described as follows:
COMMENCING at the intersection of the West line of Claremont Avenue (a 60 foot
wide street) with the North line of the East Bay Municipal Utility District
right of way; thence South 48 degrees 18 minutes West along said North right of
way line a distance of 240.16 feet; thence North 41 degrees 42 minutes West, a
distance of 100.00 feet to the Point of Beginning, said point being on the North
line of March Lane (a 100 foot wide street, formerly known as Camanche Lane);
thence along a curve to the left having a radius of 193.92 feet, a central angle
of 30 degrees, an arc distance of 101.54 feet, the long chord of which bears
North 33 degrees 18 minutes East, a distance of 100.38 feet; thence along a
curve to the right having a radius of 253.92 feet, a central angle of 30 degrees
an arc distance of 132.95 feet, the long chord of which bears North 33 degrees
18 minutes East, a distance of 131.44 feet; thence along a curve to the left
having a radius of 20 feet, a central angle of 82 degrees 49 minutes an arc
distance of 28.91 feet, the long chord of which bears North 6 degrees 53 minutes
30 seconds East, a distance of 26.46 feet to the West line of Claremont Avenue;
thence along said West line of Claremont Avenue along a curve to the left having
a radius of 460 feet, a central angle of 7 degrees 10 minutes 52 seconds, an arc
distance of 57.65 feet, the long chord of which bears South 38 degrees 06
minutes 26 seconds East, a distance of 57.62 feet; thence along a curve to the
right having a radius of 20 feet, a central angle of 89 degrees 59 minutes 52
seconds, an arc distance of 31.42 feet, the long chord of which bears South 3
degrees 18 minutes 04 seconds West, a distance of 28.28 feet to the North
<PAGE> 41
line of March Lane; thence South 48 degrees 18 minutes West along said North
line a distance of 220.16 feet to the hereinbefore mentioned Point of Beginning.
PARCEL THREE:
Being all of Lots 1 and 5 and a portion of Lots 4 and 6 and all that portion of
the 5.400 acre parcel of land lying South of the 42 foot wide right of way for
Yokuts Avenue as shown on the Map of Tract No. 494, Weberstown Community Center,
in the City of Stockton, filed for record in Vol. 16 of Maps and Plats, Page 50,
San Joaquin County Records, more particularly described as follows:
BEGINNING at the Northeast corner of said Lot 1; thence South 17 degrees 46
minutes East, 1017.21 feet along the Easterly line of said Lot 1 and the
Southerly projection thereof to a point on the Southerly line of said Lot 6;
thence along boundary of Weberstown Community Center the following five (5)
courses: (1) South 48 degrees 18 minutes West, 3.20 feet; (2) along the arc of a
curve to the right having a radius of 1628 feet, a central angle of 11 degrees
42 minutes, an arc length of 332.44 feet, and a chord bearing South 54 degrees
09 minutes West, 331.87 feet; (3) along the arc of a curve to the left having a
radius of 1260 feet, a central angle of 0 degrees 45 minutes, an arc length of
16.50 feet, and a chord bearing South 59 degrees 37 minutes 30 seconds West
16.49 feet; (4) North 17 degrees 48 minutes West, 394.87 feet; and (5) South 48
degrees 18 minutes West; 319.60 feet to a point on the Easterly boundary of
Claremont Avenue; thence along said road Easterly boundary the following three
(3) courses: (1) North 17 degrees 46 minutes West, 517.92 feet; (2) along the
arc of a curve to the right having a radius of 370 feet, a central angle of 25
degrees 29 minutes 10 seconds, an arc length of 164.58 feet, and a chord bearing
North 05 degrees 01 minutes 25 seconds West, 163.23 feet; and (3) along the arc
of a curve to the left having a radius of 430 feet, a central angle of 23
degrees 21 minutes 30 seconds, an arc length of 175.30 feet, and a chord bearing
North 03 degrees 57 minutes 35 seconds West, 174.09 feet; thence along the arc
of a curve to the right having a radius of 20 feet, a central angle of 88
degrees 28 minutes 20 seconds, an arc length of 30.88 feet, and a chord bearing
North 28 degrees 35 minutes 50 seconds East, 27.90 feet to a point on said South
line of the 42 foot wide right of way for Yokuts Avenue; thence North 72 degrees
50 minutes East, 528.90 feet along said South line to the True Point of
Beginning.
EXCEPT THEREFROM the following described parcel of land:
Lot 5 and a portion of Lot 6, as shown upon Map of Tract No. 494, Weberstown
Community Center, filed for record in Vol. 16 of Maps and Plats, Page 50, San
Joaquin County Records, described as follows:
Commencing at the Northeast corner of Lot 1, as shown upon said Map entitled,
Weberstown Community Center; thence South 17 degrees 46 minutes East 1017.21
feet along the Easterly line of said Lot 1 and the Southerly projection thereof
to a
<PAGE> 42
point on the Southerly line of said Lot 6 and the true point of beginning of the
hereinafter described parcel of land; thence along the boundary of said
Weberstown Community Center; the following four (4) courses: (1) South 48
degrees 18 minutes West, 3.20 feet; (2) along the arc of a curve to the right
having a radius of 1628 feet, a central angle of 11 degrees 42 minutes, an arc
length of 332.44 feet, and a chord bearing South 54 degrees 09 minutes West,
331.87 feet; (3) along the arc of a curve to the left having a radius of 1260
feet, a central angle of 0 degrees 45 minutes, an arc length of 16.50 feet, and
a chord bearing South 59 degrees 37 minutes 30 seconds West 16.46 feet; (4)
North 17 degrees 46 minutes West, 394.87 feet; thence North 53 degrees 18
minutes East, a distance of 353.62 feet to the Southerly projection of the
Easterly line of said Lot 1; thence South 17 degrees 46 minutes East; along the
Southerly projection of said Easterly line of said Lot 1 to the Point of
Beginning.
NOTE: Above Parcel Three is also described as follows: Parcels A, B
and C as shown on that certain Parcel Map dated April 22, 1988
and filed for record April 20, 1990 in Book 17 of Parcel Maps,
at Page 4, San Joaquin County Records.
PARCEL FOUR:
A portion of Sections 4 and 5, of C.M. WEBER'S GRANT, EL RANCHO DEL CAMPO DE LOS
FRANCESES, in the City of Stockton, more particularly described as follows:
Parcel 4, as shown on that certain Parcel Map filed for record December 20,
1996, in Book 20 of Parcel Maps, at Page 151, San Joaquin County, California
Records.
PARCEL FIVE:
Together with those rights and easements constituting rights in real property
created, defined and limited by that certain Declaration of Establishment of
Restrictions and
Covenants Affecting Land, dated April 2, 1963 and recorded May 16, 1963 in Book
2690, Page 540, of Official Records San Joaquin County, California, as amended
by various amendments as provided and recited in Sixth Amendment to Declaration
of Establishment of Restrictions and Covenants Affecting Land, dated February 3,
1997 and recorded March 6, 1997 as Document No. 97023582, of the Official
Records of San Joaquin County, and as further amended by Supplemental Agreement,
dated February 3, 1997 by and between Weberstown Shopping Center and Center
Properties as Developers and Condev West, Inc., a Memorandum of which was
recorded March 6, 1997 as Document No. 97023581,of Official Records of San
Joaquin County, California.
<PAGE> 1
Exhibit 10.89
PROMISSORY NOTE
$20,500,000.00 New York, New York
As of April 26, 1999
FOR VALUE RECEIVED WEBERSTOWN MALL, LLC, a Delaware limited
liability company, as maker, having its principal place of business at 20 South
Third Street, Columbus, Ohio 43215 ("BORROWER"), hereby unconditionally promises
to pay to the order of LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation,
doing business as LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC.,
as lender, having an address at Three World Financial Center, New York, New York
10285 ("LENDER"), or at such other place as the holder hereof may from time to
time designate in writing, the principal sum of TWENTY MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($20,500,000.00), or so much thereof as may be
advanced by Lender to Borrower pursuant to that certain Loan Agreement of even
date herewith between Borrower and Lender (the "LOAN AGREEMENT") in lawful money
of the United States of America with interest thereon to be computed from the
date of this Note at the Applicable Interest Rate, and to be paid in accordance
with the terms of this Note and the Loan Agreement. All capitalized terms not
defined herein shall have the respective meanings set forth in the Loan
Agreement.
ARTICLE 1: PAYMENT TERMS
Borrower agrees to pay the principal sum of this Note and
interest on the unpaid principal sum of this Note from time to time outstanding
at the rates and at the times specified in Article 2 of the Loan Agreement and
the outstanding balance of the principal sum of this Note and all accrued and
unpaid interest thereon shall be due and payable on the Maturity Date.
ARTICLE 2: DEFAULT AND ACCELERATION
The Debt shall without notice become immediately due and
payable at the option of Lender if any payment required in this Note is not paid
on or prior to the date when due or on the happening of any other Event of
Default.
ARTICLE 3: LOAN DOCUMENTS
This Note is secured by the Mortgage and the other Loan
Documents. All of the terms, covenants and conditions contained in the Loan
Agreement, the Mortgage and the other Loan Documents are hereby made part of
this Note to the same extent and with the same force as if they were fully set
forth herein. In the event of a conflict or inconsistency between the terms of
this Note and the Loan Agreement, the terms and provisions of the Loan Agreement
shall govern.
<PAGE> 2
ARTICLE 4: SAVINGS CLAUSE
Notwithstanding anything to the contrary, (a) all agreements
and communications between Borrower and Lender are hereby and shall
automatically be limited so that, after taking into account all amounts deemed
interest, the interest contracted for, charged or received by Lender shall never
exceed the maximum lawful rate or amount, (b) in calculating whether any
interest exceeds the lawful maximum, all such interest shall be amortized,
prorated, allocated and spread over the full amount and term of all principal
indebtedness of Borrower to Lender, and (c) if through any contingency or event,
Lender receives or is deemed to receive interest in excess of the lawful
maximum, any such excess shall be deemed to have been applied toward payment of
the principal of any and all then outstanding indebtedness of Borrower to
Lender, or if there is no such indebtedness, shall immediately be returned to
Borrower.
ARTICLE 5: NO ORAL CHANGE
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 Borrower or Lender, 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.
ARTICLE 6: WAIVERS
Borrower and all others who may become liable for the payment
of all or any part of the Debt do hereby severally waive presentment and demand
for payment, notice of dishonor, notice of intention to accelerate, notice of
acceleration, protest and notice of protest and non-payment and all other
notices of any kind. No release of any security for the Debt or extension of
time for payment of this Note or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note, the Loan Agreement or the
other Loan Documents made by agreement between Lender or any other Person shall
release, modify, amend, waive, extend, change, discharge, terminate or affect
the liability of Borrower, and any other Person who may become liable for the
payment of all or any part of the Debt, under this Note, the Loan Agreement or
the other Loan Documents. No notice to or demand on Borrower shall be deemed to
be a waiver of the obligation of Borrower or of the right of Lender to take
further action without further notice or demand as provided for in this Note,
the Loan Agreement or the other Loan Documents. If Borrower is a partnership,
the agreements herein contained shall remain in force and applicable,
notwithstanding any changes in the individuals comprising the partnership, and
the term "Borrower," as used herein, shall include any alternate or successor
partnership, but any predecessor partnership and their partners shall not
thereby be released from any liability. If Borrower is a corporation, the
agreements contained herein shall remain in full force and applicable
notwithstanding any changes in the shareholders comprising, or the officers and
directors relating to, the corporation, and the term "Borrower" as used herein,
shall include any alternative or successor corporation, but any predecessor
corporation shall not be relieved of liability hereunder. (Nothing in the
foregoing sentence shall be construed as a consent to, or a waiver of, any
prohibition or restriction on
-2-
<PAGE> 3
transfers of interests in such partnership which may be set forth in the Loan
Agreement, the Mortgage or any other Loan Document.)
ARTICLE 7: TRANSFER
Upon the transfer of this Note, Borrower hereby waiving notice
of any such transfer, Lender may deliver all the collateral mortgaged, granted,
pledged or assigned pursuant to the Loan Documents, or any part thereof, to the
transferee who shall thereupon become vested with all the rights herein or under
applicable law given to Lender with respect thereto, and Lender shall thereafter
forever be relieved and fully discharged from any liability or responsibility in
the matter; but Lender shall retain all rights hereby given to it with respect
to any liabilities and the collateral not so transferred.
ARTICLE 8: EXCULPATION
The provisions of Section 9.4 of the Loan Agreement are hereby
incorporated by reference into this Note to the same extent and with the same
force as if fully set forth herein.
ARTICLE 9: GOVERNING LAW
(A) THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND
MADE BY BORROWER AND ACCEPTED BY LENDER IN THE STATE OF NEW YORK, AND THE
PROCEEDS OF THIS NOTE 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, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, 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 CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO
PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF
AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY
AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER
JURISDICTION GOVERNS THIS NOTE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR
BORROWER ARISING OUT OF OR RELATING TO THIS NOTE MAY AT LENDER'S OPTION BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW
YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND
BORROWER
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<PAGE> 4
WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR
FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR
PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:
CT CORPORATION SYSTEM, INC.
1633 BROADWAY, 23RD FLOOR
NEW YORK, NEW YORK 10019
ATTENTION: SERVICE OF PROCESS DEPARTMENT
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 BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER 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 SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND 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.
ARTICLE 10: NOTICES
All notices or other written communications hereunder shall be
delivered in accordance with Section 10.6 of the Loan Agreement.
[NO FURTHER TEXT ON THIS PAGE]
-4-
<PAGE> 5
IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day
and year first above written.
WEBERSTOWN MALL, LLC,
a Delaware limited liability company
By: GLIMCHER WEBERSTOWN, INC.,
a Delaware corporation, its managing
member
By: /s/ George A. Schmidt
-----------------------------
Name: George A. Schmidt
Title: Executive Vice President
<PAGE> 1
Exhibit 10.90
Term Note
$22,500,000.00 Columbus, Ohio June 17, 1999
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
KeyBank National Association (hereinafter called the "Bank," which term shall
include any holder hereof) at such place as the Bank may designate or, in the
absence of such designation, at any of the Bank's offices, the sum of Twenty Two
Million Five Hundred Thousand Dollars ($22,500,000.00) or so much thereof as
shall have been advanced by the Bank at any time and not hereafter repaid
(hereinafter referred to as "Principal Sum") together with interest as
hereinafter provided and payable at the time(s) and in the manner(s) hereinafter
provided.
This Term Note is executed and the Loan contemplated hereunder is to be
made pursuant to a Bridge Loan Agreement (hereinafter called "Loan Agreement")
dated as of June 17, 1999, and all the covenants, representations, agreements,
terms, and conditions contained therein, including but not limited to conditions
of default, are incorporated herein as if fully rewritten.
INTEREST
- --------
Interest will accrue on the unpaid balance of the Principal Sum until
paid at the rate or rates of interest set forth in the Loan Agreement.
MANNER OF PAYMENT
- -----------------
The Principal Sum shall be payable on June 17, 2000, and accrued
interest shall be due and payable monthly at the times provided in the Loan
Agreement, and at maturity, whether by demand, acceleration or otherwise.
LATE CHARGE
- -----------
Any installment or other payment not made within ten (10) days of the
date such payment or installment is due shall be subject to a late charge equal
to 5% of the amount of the installment or payment.
DEFAULT
- -------
Upon the occurrence of any of the Events of Default described in
Section 12 of the Loan Agreement, the Bank may, at its option, without notice or
demand, accelerate the maturity of the obligations evidenced hereby, which
obligations shall become immediately due and payable. In the event the Bank
shall institute any action for the enforcement or collection of the obligations
evidenced hereby, the undersigned agree to pay all costs and expenses of such
action, including reasonable attorneys' fees, to the extent permitted by law.
<PAGE> 2
GENERAL PROVISIONS
- ------------------
All of the parties hereto, including the undersigned, and any endorser,
surety, or guarantor, hereby severally waive presentment, notice of dishonor,
protest, notice of protest, and diligence in bringing suit against any party
hereto, and consent that, without discharging any of them, the time of payment
may be extended an unlimited number of times before or after maturity without
notice. The Bank shall not be required to pursue any party hereto, including any
guarantor, or to exercise any rights against any collateral before exercising
any other such rights.
The obligations evidenced hereby may from time to time be evidenced by
another note or notes given in substitution, renewal or extension hereof. Any
security interest or mortgage which then secures the obligations evidenced
hereby shall remain in full force and effect notwithstanding any such
substitution, renewal, or extension.
The captions used herein are for references only and shall not be
deemed a part of this Note. If any of the terms or provisions of this Note shall
be deemed unenforceable, the enforceability of the remaining terms and
provisions shall not be affected. This Note shall be governed by and construed
in accordance with the law of the State of Ohio.
WAIVER OF RIGHT TO TRIAL BY JURY
- --------------------------------
THE UNDERSIGNED ACKNOWLEDGES THAT, AS TO ANY AND ALL DISPUTES THAT MAY
ARISE BETWEEN THE UNDERSIGNED AND THE BANK, THE COMMERCIAL NATURE OF THE
TRANSACTION OUT OF WHICH THIS NOTE ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE
FOR TRIAL BY JURY. ACCORDINGLY, THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO TRIAL
BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO THIS NOTE OR TO
ANY OF THE OTHER INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
By: Glimcher Properties Corporation
Its: Sole General Partner
By: /s/ William G. Cornely
---------------------------------------------------
William G. Cornely
Its: Executive Vice President, Chief Operating Officer
and Chief Financial Officer
-2-
<PAGE> 1
Exhibit 10.91
DEED OF TRUST, ASSIGNMENT OF RENTS
----------------------------------
AND SECURITY AGREEMENT
----------------------
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (herein
"Instrument") is made this 17th day of June, 1999, between the Mortgagor,
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware Limited Partnership whose
mailing address is 20 South Third Street, Columbus, Ohio 43215 (herein
"Borrower"), the Trustee, Donald M. Bastian, Mark Twain Area Title Insurance
Company, 306 Center Street, Hannibal, Missouri 63401 (herein "Trustee") and the
Mortgagee, KEYBANK NATIONAL ASSOCIATION, a national banking association, having
an office at 127 Public Square, Cleveland, Ohio 44114 ("Lender").
WHEREAS, pursuant to that certain Loan Agreement among Borrower,
Glimcher Properties Corporation and Lender, of even date herewith ("Loan
Agreement"), the provisions of which are made a part hereof, Borrower has agreed
to borrow, up to a maximum principal indebtedness of Twenty-Four Million Three
Hundred Seventy-Five Thousand Dollars ($24,375,000.00); and
WHEREAS, the indebtedness is or will be evidenced by Borrower's
promissory note (herein "Note") in the aggregate principal amount of Twenty-Four
Million Three Hundred Seventy-Five Thousand Dollars ($24,375,000.00), with the
balance of the indebtedness, if not sooner paid, due and payable on June 17,
2000; and
IN CONSIDERATION OF SUCH INDEBTEDNESS AND THE TRUST HEREIN CREATED AND
TO SECURE TO LENDER (a) the repayment of the indebtedness evidenced by the Note,
whether such indebtedness is advanced before, in connection with or after the
recording of this Deed of Trust, with interest thereon, and all renewals,
extensions and modifications thereof; (b) the performance of the covenants and
agreements of Borrower contained in the Loan Agreement; (c)the payment of all
other sums with interest thereon advanced in accordance herewith to protect the
security of this Instrument; and (d) the performance of the covenants and
agreements of Borrower contained herein, Borrower does hereby irrevocably grant,
bargain and sell, convey, grant a security interest in and confirm to Trustee,
in trust, with power of sale, the following described property:
The property is described on Exhibit "A" attached hereto and
incorporated herein by reference ("Property").
TOGETHER WITH the following, whether now owned or hereafter acquired
by Borrower: (a) all improvements now or hereafter attached to or placed,
erected, constructed or developed on the Property (collectively the
"Improvements"); (b) all fixtures, furnishings, equipment, inventory, and other
articles of personal property (collectively the "Personal Property") that are
now or hereafter attached to or used in or about the Improvements or that are
necessary or useful for the complete and comfortable use and occupancy of the
Improvements for the purposes for which they were or are to be attached, placed,
erected, constructed or developed or that may be used in or related to the
planning, development, financing or operation of the Improvements, and all
renewals of or replacements or substitutions for any of the foregoing, whether
or not the same are or shall be attached to the Improvements or the Property;
(c) all water and water rights, timber, crops, and mineral interests pertaining
to the Property; (d) all building materials and equipment now or hereafter
delivered to and intended to be installed in or on the Improvements or the
Property; (e) all plans and specifications for the Improvements; (f) all
contracts relating to the Property, the Improvements or the Personal Property;
(g) all deposits (including, without limitation, tenants' security deposits),
bank accounts, funds, documents, contract rights, accounts, commitments,
construction agreements, trademarks, trade names and symbols), instruments,
notes and chattel paper arising from or by virtue of any transactions related to
the Property, the Improvements or the Personal Property; (h) all permits,
licenses, franchises, certificates, and other rights and privileges obtained in
connection with the Property, the Improvements or the Personal Property; (i) all
proceeds arising from or by virtue of the sale, lease or other disposition of
the Property, the Improvements, the Personal Property or any portion thereof or
interest therein; (j) all proceeds (including, without
<PAGE> 2
limitation, premium refunds) of each policy of insurance relating to the
Property, the Improvements or the Personal Property; (k) all proceeds from the
taking of any of the Property, the Improvements, the Personal Property or any
rights appurtenant thereto by right of eminent domain or by private or other
purchase in lieu thereof (including, without limitation, change of grade of
streets, curb cuts or other rights of access), for any public or quasi-public
use under any law; (l) all right, title and interest of Borrower in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Property; (m) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (n) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (o) other interests of every kind and character
that Borrower now has or at any time hereafter acquires in and to the Property,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Borrower with respect thereto (all
of the same, including the Property, collectively the "Mortgaged Property").
TO HAVE AND TO HOLD the Property IN TRUST for the benefit of Lender,
its successors and assigns, forever, for the purposes and uses herein set forth.
Borrower covenants that Borrower is lawfully seized of the estate
hereby conveyed and has the right to Instrument, grant, convey and assign the
Mortgaged Property, that the Mortgaged Property is unencumbered except for the
lien of this Instrument; the lien of real estate taxes and assessments not yet
due; the rights of tenants in possession under written leases and other matters
and encumbrances approved by Lender for inclusion in the lender's policy of
title insurance issued by Chicago Title Insurance Company insuring the lien of
this Instrument as set forth on EXHIBIT B attached hereto (the "Permitted
Exceptions"), and that Borrower will warrant and defend generally the title to
the Property against all claims and demands, whatsoever, except for those items
set forth above.
The Note, the Loan Agreement, this Instrument, the other notes issued
from time to time pursuant to the Loan Agreement, and any other document
evidencing or securing or guaranteeing the indebtedness secured hereby are
hereinafter collectively referred to as ("Loan Documents").
Borrower and Lender covenant and agree as follows:
1. TITLE. Borrower represents that it has good and marketable title in
fee simple to the Mortgaged Property, except for rights of tenants in possession
under written leases, current real estate taxes and assessments and other
matters and encumbrances approved by Lender for inclusion in the lender's policy
of title insurance issued by Chicago Title Insurance Company insuring the lien
of the Instrument (the "Permitted Exceptions"). If the interest of Lender in the
Mortgaged Property or any part thereof shall be endangered or shall be attacked,
directly or indirectly, Borrower hereby authorizes Lender, at Borrower's
expense, to take all necessary and proper steps for the defense of such
interest, including the employment of counsel, the prosecution or defense of
litigation and the compromise or discharge of claims made against such interest.
Any sums so expended by Lender shall be charged against Borrower and collectible
in accordance with the terms of Section 12 hereof.
2. FURTHER ASSURANCES. Borrower, upon the request of Lender, shall
execute, acknowledge, deliver, file and record such further instruments and do
such further acts as may be necessary, desirable or proper to carry out the
purposes of the Loan Documents and to subject to the liens and security
interests created thereby any property intended by the terms thereof to be
covered thereby, including specifically, but without limitation, any renewals,
additions, substitutions, replacements, improvements or appurtenances to the
Mortgaged Property.
3. SUBROGATION FOR FURTHER SECURITY. Lender shall be subrogated for its
further security to the lien, although released of record, of any and all
encumbrances paid with any advance
2
<PAGE> 3
of Indebtedness; provided, however, that the terms and provisions hereof shall
govern the rights and remedies of Lender and shall supersede the terms,
provisions, rights, and remedies under the lien or liens to which Lender is
subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Lender, which consent may be withheld in Lender's sole
discretion, Borrower shall not (a) sell, assign, mortgage, pledge, lease or
otherwise convey or further encumber the Mortgaged Property, or any portion
thereof, or legal, equitable or beneficial interest therein; (b) sell, assign,
pledge or otherwise transfer any beneficial interests in Borrower which
individually or in the aggregate would have the effect of transferring the power
to direct the operations of Borrower or the Mortgaged Property; (c) contract for
any of the same; (d) permit the Mortgaged Property, or any portion thereof, or
legal, equitable or beneficial interest therein, to be subject to any superior
or inferior lien or encumbrance; (e) subdivide, resubdivide or submit to the
condominium form of ownership all or any portion of the Mortgaged Property, or
any portion thereof; or (f) initiate or acquiesce in any change in the zoning
classification of the Property or any portion thereof.
5. PAYMENT OF INDEBTEDNESS. Borrower shall promptly pay the
Indebtedness as the same becomes due and payable.
6. ESTOPPEL CERTIFICATE. Borrower shall furnish to Lender within ten
(10) days of any written request of Lender, a written statement, duly
acknowledged by Borrower, setting forth the sums secured by the Instrument and
any right of set-off, counterclaim or other defense which Borrower alleges to
exist against such sums and obligations secured by the Instrument.
7. TAXES AND OTHER IMPOSITIONS. Borrower shall promptly pay before
delinquency all taxes, assessments, charges, fines or impositions, general,
local or special (collectively the "Impositions"), levied upon the Mortgaged
Property, or any part thereof, or upon Lender's interest therein, or upon the
Instrument or the Indebtedness, by any duly or legally constituted public
authority, municipality, township, county or state or the United States, and
upon request, will provide evidence of the payment thereof to Lender; provided
that Borrower, at Borrower's own cost and expense may, if it shall in good faith
so desire, contest the validity or amount of any Impositions, in which event
Borrower may defer the payment thereof for such period as such contest shall be
actively prosecuted and shall be pending undetermined; further provided,
however, that Borrower shall not allow any such Impositions so contested to
remain unpaid for such length of time as shall permit all or any portion of the
Mortgaged Property, or the lien thereon created by such item, to be sold by
federal, state, county or municipal authority for the nonpayment thereof.
Pending any such contest, Borrower shall maintain adequate book reserves with
respect to such Impositions being contested.
In the event that one or more of the Impositions on Lender's interest
in the Mortgaged Property, the Instrument or the Indebtedness cannot be lawfully
paid by Borrower, then the Mortgaged Property shall be withdrawn from the
Collateral Pool (as such team is defined in the Loan Agreement). In the event
the withdrawal of the Mortgaged Property from the Collateral Pool causes
Borrower not to be in compliance with the required loan to value ratio under the
Loan Agreement, Borrower may either furnish substitute property, as provided in
the Loan Agreement, or pay down the Indebtedness in an amount which will bring
the loan to value ratio into compliance.
8. INSURANCE AND INDEMNIFICATION. Borrower shall provide, maintain and
keep in force at all times the following policies of insurance:
(a) Insurance against loss or damage to the Improvements and
the Personal Property caused by fire and any of the risks covered by insurance
of the type now known as "coverage against all risks of physical loss", in an
amount equal to one hundred percent (100%) of the replacement cost of the
Improvements and the Personal Property and sufficient to prevent Borrower and
Lender from becoming co-insurers, and otherwise with terms and conditions
acceptable to Lender;
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(b) Comprehensive broad form general liability insurance,
insuring against any and all claims for personal injury, death or property
damage occurring on, in or about the Property, the Improvements and the
adjoining streets, sidewalks and passageways, subject to a combined single limit
of not less than Two Million Dollars ($2,000,000.00) for personal injury, death
or property damage arising out of any one accident and a general aggregate limit
of not less than Five Million Dollars ($5,000,000.00), and otherwise with terms
and conditions acceptable to Lender;
(c) Worker's compensation insurance (including employer's
liability insurance, if available and requested by Lender) for all employees of
Borrower engaged on or with respect to the Property and the Improvements in the
limits established by law or, if limits are not so established, in such amounts
as are acceptable to Lender;
(d) During the course of any development or construction of
the Improvements, builder's completed value risk insurance against "all risks of
physical loss", including collapse and transit coverage, in the amounts set
forth in Subsection 8(a) above, and otherwise with terms and conditions
acceptable to Lender;
(e) Upon obtaining a certificate of occupancy for the
Improvements or any portion thereof, business interruption insurance and/or loss
of "rental value" insurance in an amount not less than the appraised rentals for
the Mortgaged Property for a minimum of twelve (12) months, and otherwise with
terms and conditions acceptable to Lender;
(f) If the Improvements are located in a federally-designated
flood hazard area, then flood hazard coverage, in the maximum amount available
and otherwise with terms and conditions acceptable to Lender; and
(g) Such other insurance coverage, and in such amount, as may
from time to time be required by Lender against the same or other hazards.
All such policies shall be in a form acceptable to Lender. Each policy
of casualty insurance shall contain a mortgagee clause, substantially in the
form of the standard New York mortgagee clause or otherwise acceptable to
Lender, showing Lender as loss payee. Each policy of liability insurance shall
show Lender as an additional insured. Unless the policy so provides, each policy
of insurance required by the terms of the Instrument shall contain an
endorsement by the insurer, for the benefit of Lender, (i) that any loss shall
be payable in accordance with the terms of such policy notwithstanding any act
or negligence of Borrower which might otherwise result in forfeiture of said
insurance, (ii) that any rights of set-off, counterclaim or deductions against
Borrower are waived and (iii) that such policy shall not be canceled or changed
except upon not less than thirty (30) days prior written notice delivered to
Lender.
All such insurance policies and renewals thereof shall be written by
companies with a BEST'S INSURANCE REPORTS policy holders rating of A and a
financial size category of Class X or be expressly approved by Lender in
writing.
Lender shall have the right to hold the policies, or certificates
thereof acceptable to Lender with certified copies of the policies, and Borrower
shall promptly furnish to Lender all renewal notices and all receipts of paid
premiums. At least thirty (30) days prior to the expiration date of any such
policy, Borrower shall deliver to Lender a renewal policy, or certificate
thereof, in form acceptable to Lender.
If Lender is made a party defendant to any litigation concerning the
Loan Documents or the Mortgaged Property or any part thereof or interest therein
or the occupancy thereof by Borrower, then Borrower shall indemnify, defend and
hold Lender harmless from all liability by reason of said litigation, including
reasonable attorneys' fees and expenses incurred by Lender in any such
litigation, whether or not any such litigation is prosecuted to judgment.
Borrower waives any and all right to claim or recover against Lender, its
officers, employees, agents and representatives, for loss of or damage to
Borrower, the Mortgaged Property, other property of Borrower or the property
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of others under control of Borrower from any cause insured against or required
to be insured against by the provisions of the Instrument.
Borrower shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section unless Lender has approved the insurance company and the form and
content of the insurance policy, including, without limitation, the naming
thereon of Lender as a named insured with loss payable to Lender under a
standard mortgage clause of the character above described. Borrower shall
immediately notify Lender whenever any such separate insurance is taken out and
shall promptly deliver to Lender copies of the policies and certificates
evidencing such insurance.
Nothing contained in this Section 8 shall prevent Borrower from keeping
the Improvements and Personal Property insured or causing the same to be insured
against the risks referred to in this Section 8 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Instrument; provided, however, that any such policy of blanket insurance (i)
shall specify therein the amount of the total insurance allocated to the
Improvements and Personal Property, which amount shall be not less than the
amount otherwise required to be carried under the Instrument; (ii) shall not
contain any clause which would result in the insured thereunder becoming a
co-insurer of any loss with the insurer under such policy; and (iii) shall in
all other respects comply with the provisions of the Instrument.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Borrower, and used
by Borrower to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Borrower should elect option (ii) above, if a material decrease in the
fair market value of the Mortgaged Property is indicated, Lender shall be
entitled, at its option, to cause the Mortgaged Property to be reappraised at
Borrower's expense to satisfy itself of continued compliance by Borrower with
the loan to value ratio required by the Loan Agreement. In the event the results
of such reappraisal causes Borrower not to be in compliance with the required
loan to value ratio, Borrower may either furnish substitute property, as
provided for in Section 7 of the Loan Agreement, or pay down the Indebtedness in
an amount which will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Lender as escrow agent for the purpose of repairing, restoring or reconstructing
the Improvements. Such proceeds shall be disbursed by Lender as work progresses,
provided that prior to any disbursement, Lender is in receipt of proof
reasonably satisfactory to it that: (i) the work has been completed, (ii) there
are no outstanding mechanics liens or materialmen's liens, and (iii) that all
charges, costs and expenses incurred with respect to work completed have been
paid in full or will be paid in full with such proceeds. Prior to the release of
any proceeds, Lender must be satisfied that repair, restoration or
reconstruction of the damaged or destroyed Improvements will be substantially
equal in size, quality and value to the Improvements then presently erected on
the Mortgaged Property as existed immediately prior to the loss and the plans
and specifications therefor must be approved by Lender. In the event Lender
believes it is necessary in order to establish value, Lender may, at its option,
cause the Mortgaged Property to be reappraised at Borrower's expense. All
insurance proceeds shall be payable to Lender. The adjustment of such insurance
proceeds with the carrier must be approved by Lender.
Anything in this Section 8 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Lender, be applied by Lender to the Indebtedness in
such order as Lender may determine.
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9. ESCROW. Borrower, in order to more fully protect the security of the
Instrument, does hereby covenant and agree that, if Borrower shall fail to
timely pay taxes, assessments or insurance premiums as provided above, or in the
event of any other default and Lender does not then elect to exercise its other
remedies, then Borrower shall, upon request of Lender, pay to Lender on the
first day of each month, until the Indebtedness is fully paid, a sum equal to
one-twelfth (1/12) of the known or estimated yearly taxes, assessments, premiums
for such insurance as may be required by the terms hereof and, if applicable,
any replacement reserve amounts payable by Borrower. Lender shall hold such
monthly payments which may be mingled with its general funds, without obligation
to pay interest thereon, unless otherwise required by applicable law, to pay
such taxes, assessments, and insurance premiums when due. Borrower agrees that
sufficient funds shall be so accumulated for the payment of said charges one (1)
month prior to the due date thereof and that Borrower shall furnish Lender with
proper statements covering the same fifteen (15) days prior to the due dates
thereof. In the event of foreclosure of the Instrument, or if Lender should take
a deed in lieu of foreclosure, the amount so accumulated shall be credited on
account of the unpaid principal or interest. If the total of the monthly
payments as made under this Section 9 shall exceed the payments actually made by
Lender, such excess shall be credited on subsequent monthly payments of the same
nature, but if the total of such monthly payments so made under this Section 9
shall be insufficient to pay such taxes, assessments, and insurance premiums
then due, then said Borrower shall pay upon demand the amount necessary to make
up the deficiency, which payments shall be secured by the Instrument. To the
extent that all the provisions of this Section 9 for such payments of taxes,
assessments, and insurance premiums to Lender, are complied with, Borrower shall
be relieved of compliance with the covenants contained in Sections 7 and 8
herein as to the amounts paid only, but nothing contained in this Section 9
shall be construed as in any way limiting the rights of Lender at its option to
pay any and all of said items when due.
10. WASTE; REPAIR. Borrower shall neither commit nor permit any waste
on the Property and shall keep all Improvements now or hereafter erected on the
Property in good condition and repair.
11. ALTERATIONS; CONSTRUCTION. Borrower shall have the right to remove,
demolish or alter any of the Improvements, now existing or hereafter constructed
on the Property, or any of the Personal Property in or on the Property or
Improvements, to the extent that the value of same is not diminished. If Lender
believes that there has been a material decrease in value following any such
removal, demolition, or alteration, it may, at its option, cause the Mortgaged
Property to be reappraised at Borrower's expense.
12. ADVANCES SECURED BY INSTRUMENT. Upon failure of Borrower to comply
with any of these covenants and agreements as to the payment of taxes,
assessments, insurance premiums, repairs, protection of the Mortgaged Property
or Lender's lien thereon, and other charges and the costs of procurement of
title evidence and insurance as aforesaid, Lender may, at its option, pay the
same, and any sums so paid by Lender, together with the reasonable fees of
counsel employed by Lender in consultation and in connection therewith, shall be
charged against Borrower, shall be immediately due and payable by Borrower,
shall bear interest at the Default Rate of Interest (as defined in the Note) and
shall be a lien upon the Mortgaged Property and be secured by the Instrument and
may be collected in the same manner as the principal debt hereby secured.
13. USE. Unless Lender otherwise agrees in writing, Borrower shall not
allow changes in the nature of the occupancy for which the Property and
Improvements were intended at the time the Instrument was executed. Borrower
shall comply with the laws, ordinances, rules, regulations and requirements of
any governmental body applicable to the Mortgaged Property, both during the
construction of any Improvements on the Property and subsequent to the
completion thereof, and Borrower shall not permit the use thereof for any
illegal purpose.
14. INSPECTION. Any person authorized by Lender shall have the right to
enter upon and inspect the Mortgaged Property after reasonable notice to
Borrower and during normal business hours. Lender shall have no duty, however,
to make such inspections. Any inspection of the
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Mortgaged Property by Lender shall be entirely for its benefit, and Borrower
shall in no way rely or claim reliance thereon.
15. MINERALS. Without the prior written consent of Lender, there shall
be no drilling or exploring for, or extraction, removal, or production of,
minerals from the surface or subsurface of the Property. The term "minerals" as
used herein shall include, without limitation, oil, gas, casinghead gas, coal,
lignite, hydrocarbons, methane, carbon dioxide, helium, uranium and all other
natural elements, compounds and substances, including sand and gravel.
16. CONDEMNATION. If all the Mortgaged Property and Improvements are
taken or acquired in any condemnation proceeding or by exercise of the right of
eminent domain or, with Lender's consent, by any conveyance in lieu thereof, the
amount of any award or other payment for such taking, or conveyance or damages
made in consideration thereof, to the extent of the full amount of the then
remaining unpaid Indebtedness, is hereby assigned to Lender, and Lender is
empowered to collect and receive the same and to give proper receipts therefor
in the name of Borrower, and the same shall be paid forthwith to Lender. Such
award or payment so received by Lender shall be applied to the Indebtedness
(whether or not then due and payable).
In the event a portion of the Property Improvements are acquired in any
condemnation proceeding or by the exercise of the right of eminent domain, to
the extent that the damage to the Property or improvements is in the amount of
$500,000.00 or less, and provided there is no Event of Default, as hereinafter
defined, the proceeds of any such condemnation or eminent domain award shall be
paid to Borrower, who shall use such proceeds as provided for in paragraph 8
hereof with respect to the disbursement of insurance proceeds where the damage
or destruction is in an amount of $500,000.00 or less. The provisions of
paragraph 8 with respect to reappraisal and substitute property where there is
damage or destruction in an amount of $500,000.00 or less shall apply as if
fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with Lender as escrow agent for the purpose of repairing,
restoring, or reconstructing the Improvements and/or Property, and shall be
disbursed by Lender in accordance with the provisions of paragraph 8 hereof with
respect to the disbursement of insurance proceeds, where the damage or
destruction is in an amount of $500,000.00 or greater. The conditions to
disbursement, including the requirement that Lender be satisfied that the
repaired or restored Improvements would be equal in size, quality and value to
those which existed previously, and the right to cause the Mortgaged Property to
be reappraised, as provided for where there is damage or destruction of
$500,000.00 or greater, shall be applicable as if fully rewritten.
Anything in this Section 16 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Lender, be
applied by Lender to the Indebtedness in such order as Lender may determine.
17. ASSIGNMENT OF RENTS AND LEASES.
(a) Borrower hereby absolutely and unconditionally assigns,
transfers and sets over unto Lender and Lender's successors and assigns all
present and future leases covering all or any part of the Mortgaged Property
(the "Leases"), together with any extensions or renewals thereof and any
guaranties of any tenants' obligations thereunder, and all of the rents,
royalties, bonuses, income, receipts, revenues, issues and profits now due or
which may hereafter become due under the Leases or any extensions or renewals
thereof, as well as all moneys due and to become due to Borrower under the
Leases for services, materials or installations supplied whether or not the same
were supplied under the terms of the Leases, all liquidated damages following
default under the Leases and all proceeds payable under any policy of insurance
covering loss of rents resulting from untenantability caused by damage to any
part of the Mortgaged Property (such rents, income,
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receipts, revenues, issues, profits and other moneys assigned hereby are
hereinafter collectively called "Rents"), together with any and all rights and
remedies which Borrower may have against any tenant under any of the Leases or
others in possession of the Mortgaged Property or any part thereof for the
collection or recovery of Rents so assigned. Prior to an Event of Default, as
hereinafter defined, Borrower shall have a license to collect and receive all
Rents as trustee for the benefit of Lender and Borrower.
(b) Borrower hereby represents, warrants and agrees that:
(i) Borrower has good title to the Leases and Rents hereby
assigned and has the right, power and capacity to make this assignment. No
person or entity other than Borrower has or will have any right, title or
interest in or to the Leases or Rents, except for the Permitted Encumbrances.
(ii) Borrower shall, at Borrower's sole cost and expense,
perform and discharge all of the obligations and undertakings of the landlord
under the Leases and give prompt notice to Lender of any failure to do so.
Borrower shall use all reasonable efforts to enforce or secure the performance
of each and every obligation and undertaking of the tenants under the Leases and
shall appear in and prosecute or defend any action or proceeding arising under,
or in any manner connected with, the Leases or the obligations and undertakings
of the tenants thereunder.
(iii) Borrower shall generally operate and maintain the
Mortgaged Property in a manner to insure maximum Rents.
(iv) Borrower shall not pledge, transfer, mortgage or
otherwise encumber or assign the Leases or the Rents.
(v) Borrower shall not collect Rents more than sixty (60)
days prior to accrual.
(c) Lender shall not be obligated to perform or discharge any
obligation or duty to be performed or discharged by Borrower under any of the
Leases; and Borrower hereby agrees to indemnify Lender for, and to save Lender
harmless from, any and all liability, damage or expense arising from any of the
Leases or from this assignment, including, without limitation, claims by tenants
for security deposits or for rental payments more than one (1) month in advance
and not delivered to Lender. All amounts indemnified against hereunder,
including reasonable attorneys' fees if paid by Lender, shall bear interest at
the Default Rate of Interest, as defined in the Note, and shall be payable by
Borrower immediately without demand and shall be secured hereby. This assignment
shall not place responsibility for the control, care, management, or repair of
the Mortgaged Property upon Lender or make Lender responsible or liable for any
negligence in the management, operation, upkeep, repair or control of same
resulting in loss or damage or injury or death to any party.
(d) Upon the occurrence of an Event of Default as hereinafter
defined:
(i) All Rents assigned hereunder shall be paid directly
to Lender, and Lender may notify the tenants under the Leases (or any other
parties in possession of the Mortgaged Property) to pay all of the Rents
directly to Lender at the address specified in Section 27 hereof, for which this
assignment shall be sufficient warrant;
(ii) Lender shall have the right to forthwith enter and
take possession of the Mortgaged Property and to manage, operate, lease and
develop the same; to collect as hereunder provided all or any Rents payable
under the Leases; to make repairs as Lender deems appropriate; and to perform
such other acts in connection with the management, operation, development,
leasing and construction of the Mortgaged Property as Lender, in its sole
discretion, may deem proper; and
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(iii) Lender shall have the right to forthwith enter into
and upon the Mortgaged Property and take possession thereof, and to appoint an
agent, or in the event of the institution of foreclosure proceedings to have a
receiver appointed for the collection of the Rents.
In the event that Lender shall pursue its remedies under Subsections
17(d)(ii) or (iii) above, the net income, after allowing a reasonable fee for
the collection thereof and the management of the Mortgaged Property, may be
applied toward the payment of taxes, assessments, insurance premiums, repairs,
protection of the Mortgaged Property or Lender's lien thereon, and other charges
against the Mortgaged Property and the costs of procurement of such insurance
and of evidence of title to the Mortgaged Property, or any of them, or in the
reduction of the Indebtedness and the payment of interest, as Lender may elect.
If the Rents are not sufficient to meet the costs, if any, of taking control of
and managing the Mortgaged Property and collecting the Rents, any funds expended
by Lender for such purposes shall become indebtedness of Borrower to Lender
secured by the Instrument. Unless Lender and Borrower agree in writing to other
terms of payment, such amounts shall be payable upon demand from Lender to
Borrower and shall bear interest from the date of disbursement at the Default
Rate of Interest stated in the Note.
The exercise or failure to exercise any of the above remedies shall not
in any way preclude or abridge the right of Lender to foreclose the Instrument
or to take any other legal or equitable action thereon. Lender shall have such
rights or privileges as aforesaid regardless of the value of the Mortgaged
Property given as security hereunder, and regardless of the solvency or
insolvency of any party bound for the payment of the Indebtedness or the other
sums hereby secured.
(e) Borrower hereby authorizes and directs the tenants under
the Leases to pay Rents to Lender upon written demand by Lender, without further
consent of Borrower, and the tenants may rely upon any written statement
delivered by Lender to the tenants. Any such payment to Lender shall constitute
payment to Borrower under the Leases.
(f) There shall be no merger of the leasehold estates created
by the Leases with the fee estate of the Property and Improvements without the
prior written consent of Lender.
18. SECURITY AGREEMENT. The Instrument is intended to be a security
agreement pursuant to the Uniform Commercial Code as enacted in the State of
Missouri (the "UCC") for any of the Mortgaged Property comprising personal
property and fixtures which may be subject to a security interest pursuant to
the UCC, and Borrower hereby grants to Lender a security interest in said
personal property and fixtures, whether said property is now existing or
hereafter acquired, together with replacements, replacement parts, additions,
repairs and accessories incorporated therein or affixed thereto and, if sold or
otherwise disposed of, the proceeds (including insurance proceeds) thereof.
Borrower agrees to execute and deliver to Lender UCC financing statements
covering said personal property and fixtures from time to time and in such form
as Lender may require to perfect or maintain the priority of Lender's security
interest with respect to said personal property and fixtures. Borrower shall not
create or suffer to be created any other security interest in said personal
property and fixtures, including replacements thereof and additions thereto.
Upon the occurrence of any Event of Default as set forth in Section 19 hereof,
Lender shall have the remedies of a secured party under the UCC and, at Lender's
option, may also invoke the remedies provided in Section 19 hereof with respect
to such property.
19. DEFAULT. The term "Event of Default" shall have the same meaning as
set forth in the Loan Agreement, which meaning is incorporated by this reference
herein.
Upon the occurrence of any such Event of Default beyond any applicable
cure period, at the option of Lender, without notice or demand, the same being
hereby expressly waived, the entire amount shall become immediately due and
payable, and, in addition to any other right or remedy which Lender may now or
hereafter have at law, in equity, or under the Loan Documents, Lender and
Trustee shall have the right and power: (a) to foreclose upon the Instrument and
the lien hereof; (b) to sell the Mortgaged Property according to law; and (c) to
enter upon and take possession of the Mortgaged Property and/or have a receiver
appointed therefor as set forth in Section 17 hereof.
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20. NO WAIVER. The failure of Lender to exercise any option to declare
the maturity of the principal debt or any other sums hereby secured under any
provision of any of the Loan Documents, or to forbear from exercising any right
or remedy available to Lender under any provision of any of the other Loan
Documents, shall not be deemed a waiver of the right to exercise such option,
right or remedy or declare such maturity as to such past, continuing or
subsequent violation of any of the covenants and agreements of the Loan
Documents. Acceptance by Lender of partial payments shall not constitute a
waiver of any Event of Default. From time to time, Lender may, at Lender's
option, without giving notice to or obtaining the consent of Borrower,
Borrower's successors or assigns, any junior lienholder or any of the
Guarantors, without liability on Lender's part and notwithstanding Borrower's
breach of any covenant or agreement of Borrower in the Instrument, extend the
time for payment of the Indebtedness, or any part thereof, reduce the payments
thereon, release anyone liable on any of said Indebtedness, accept a renewal
note or notes therefor, release from the lien of the Instrument any part of the
Mortgaged Property, take or release other or additional security, reconvey any
part of the Mortgaged Property, consent to any map or plan of the Mortgaged
Property, consent to the granting of any easement, join in any extension or
subordination agreement, or agree in writing with Borrower to modify the rate of
interest or period of amortization of the Note or to change the amount of the
monthly installments payable thereunder. Any actions taken by Lender pursuant to
the terms of this Section 20 shall not affect the obligation of Borrower or
Borrower's successors or assigns to pay the sums secured by the Instrument and
to observe the covenants of Borrower contained herein, shall not affect the
guaranty of any of the Guarantors, and shall not affect the lien or priority of
lien of the Instrument on the Mortgaged Property. Borrower shall pay Lender a
reasonable service charge, together with such title insurance premiums and
attorney's fees as may be incurred at Lender's option for any such action if
taken at Borrower's request.
21. PARCELS; WAIVER OF MARSHALLING. In the event of foreclosure of the
Instrument, the Mortgaged Property may be sold in one or more parcels or as an
entirety as Lender may elect.
Notwithstanding the existence of any other security interests in the
Mortgaged Property held by Lender or by any other party, Lender shall have the
right to determine the order in which any or all of the Mortgaged Property shall
be subjected to the remedies provided herein. Lender shall have the right to
determine the order in which any or all portions of the Indebtedness are
satisfied from the proceeds realized upon the exercise of the remedies provided
herein. Borrower, any party who becomes liable for Borrower's obligations and
covenants under the Instrument, and any party who now or hereafter acquires a
security interest in the Mortgaged Property, or any portion thereof, hereby
waives any and all right to require the marshalling of assets in connection with
the exercise of any of the remedies permitted by applicable law or provided
herein.
22. COSTS OF COLLECTION. Borrower hereby agrees to pay to Lender all
costs of foreclosing the Instrument, and all costs of enforcing, collecting and
securing, and of attempting to enforce, collect and secure, the Note, including,
without limitation, reasonable attorneys' fees, appraisers' fees, court costs,
notice charges and title insurance charges, whether such attempt be made by
suit, in bankruptcy, or otherwise, and such costs and any other sums due Lender
under the Loan Documents may be included in any judgment or decree rendered.
23. RENT ROLL AND FINANCIAL STATEMENTS. Borrower shall maintain full
and correct books and records open to Lender's inspection, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
24. HAZARDOUS SUBSTANCES. (a) Borrower hereby covenants and agrees with
Lender that the following terms shall have the following meanings:
(i) "Environmental Laws" mean all federal, state and
local laws, statutes, ordinances and codes relating to the use, storage,
treatment, generation, transportation, processing, handling, production or
disposal of any Hazardous Substance and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives with respect
thereto.
10
<PAGE> 11
(ii) "Hazardous Substance" means, without limitation, any
flammable explosives, radioactive materials, asbestos, urea formaldehyde foam
insulation, polychlorinated biphenyls, petroleum and petroleum based products,
methane, hazardous materials, hazardous wastes, hazardous or toxic substances or
related materials, as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et
seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C.
Sections 1801, et seq.), the Resource Conservation and Recovery Act, as amended
(42 U.S.C. Sections 6901, et seq.), the Toxic Substances Control Act, as amended
(15 U.S.C. Sections 2601, et seq.), or any other applicable Environmental Law.
(iii) "Indemnitee" means Lender, and all subsequent
holders of the Instrument, their respective successors and assigns, their
respective officers, directors, employees, agents, representatives, contractors
and subcontractors and any subsequent owner of the Property and Improvements who
acquires title thereto from or through Lender.
(iv) "Release" has the same meaning as given to that
term in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, et seq.) and the regulations
promulgated thereunder.
(b) Borrower represents and warrants to Lender that, to its knowledge
after due investigation: (i) the Property and Improvements are not being or have
not been used for the storage, treatment, generation, transportation,
processing, handling, production or disposal of any Hazardous Substance in
violation of any Environmental Laws; (ii) the Property and Improvements do not
contain any Hazardous Substances in violation of any Environmental Laws; (iii)
there has been no Release of any Hazardous Substance on, at or from the Property
and Improvements or any property adjacent to or within the immediate vicinity of
the Property and Improvements and Borrower has not received any form of notice
or inquiry with regard to such a Release or threat of such a Release; (iv) no
event has occurred with respect to the Property and Improvements which, with the
passage of time or the giving of notice, or both, would constitute a violation
of any applicable Environmental Law; (v) there are no agreements or orders or
directives of any federal, state or local governmental agency or authority
relating to the Property and Improvements which require any work, repair,
construction, containment, clean up, investigations, studies, removal or other
remedial action with respect to the Property and Improvements; and (vi) there
are no actions, suits, claims or proceedings, pending or threatened, which seek
any remedy, that arise out of the condition, ownership, use, operation, sale,
transfer or conveyance of the Property and Improvements and (1) a violation or
alleged violation of any applicable Environmental Law, (2) the presence of any
Hazardous Substance or a Release of any Hazardous Substance or the threat of
such a Release, or (3) human exposure to any Hazardous Substance.
(c) Borrower covenants and agrees with Lender as follows:
(i) Borrower shall keep, and shall cause all operators,
tenants, subtenants, licensees and occupants of the Property and Improvements to
keep, the Property and Improvements free of all Hazardous Substances, except for
Hazardous Substances stored, treated, generated, transported, processed,
handled, produced or disposed of in the normal operation of the Property and
Improvements as a shopping center in accordance with all Environmental Laws.
(ii) Borrower shall comply with, and shall cause all
operators, tenants, subtenants, licensee and occupants of the Property and
Improvements to comply with, all Environmental Laws.
(iii) Borrower shall promptly provide Lender with a copy
of all notifications which it gives or receives with respect to any past or
present Release of any Hazardous Substance or the threat of such a Release on,
at or from the Property and Improvements or any property adjacent to or within
the immediate vicinity of the Property and Improvements.
11
<PAGE> 12
(iv) Borrower shall undertake and complete all
investigations, studies, sampling and testing for Hazardous Substances
reasonably required by Lender and, in accordance with all Environmental Laws,
all removal and other remedial actions necessary to contain, remove and clean up
all Hazardous Substances that are determined to be present at the Property and
Improvements in violation of any Environmental Laws.
(v) Lender shall have the right, but not the obligation,
to cure any violation by Borrower of the Environmental Laws and Lender's cost
and expense to so cure shall be secured by the Instrument.
(d) Borrower covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Indemnitee
arising out of the condition, ownership, use, operation, sale, transfer or
conveyance of the Property and Improvements and (i) the storage, treatment
generation, transportation, processing, handling, production or disposal of any
Hazardous Substance, (ii) the presence of any Hazardous Substance or a Release
of any Hazardous Substance or the threat of such a Release, (iii) human exposure
to any Hazardous Substance, (iv) a violation of any Environmental Law, or (v) a
material misrepresentation or inaccuracy in any representation or warranty or
material breach of or failure to perform any covenant made by Borrower herein
(collectively, the "Indemnified Matters").
The liability of Borrower to Indemnitee hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (i) the repayment of all
sums and the satisfaction of all obligations of Borrower under the Note, the
Loan Agreement, the Instrument or other Loan Documents, (ii) the foreclosure of
the Instrument or the acceptance of a deed in lieu thereof, (iii) any amendment
or modification of the Loan Documents by or for the benefit of Borrower or any
subsequent owner of the Property and Improvements, (iv) any extensions of time
for payment or performance required by any of the Loan Documents, (v) the
release or discharge of the Instrument or of Borrower, any of the Guarantors or
any other person from the performance or observance of any of the agreements,
covenants, terms or conditions contained in any of the Loan Documents whether by
Lender, by operation of law or otherwise, (vi) the invalidity or
unenforceability of any of the terms or provisions of the Loan Documents, (vii)
any exculpatory provision contained in any of the Loan Documents limiting Lender
recourse to property encumbered by the Instrument or to any other security or
limiting Lender rights to a deficiency judgment against Borrower, (viii) any
applicable statute of limitations, (ix) the sale or assignment of the Note or
the Instrument, (x) the sale, transfer or conveyance of all or part of the
Property and Improvements, (xi) the dissolution or liquidation of Borrower,
(xii) the death or legal incapacity of Borrower, (xiii) the release or
discharge, in whole or in part, of Borrower in any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or similar
proceeding, or (xiv) any other circumstances which might otherwise constitute a
legal or equitable release or discharge, in whole or in part, of Borrower under
the Note or the Instrument.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Borrower may have to Lender at common law.
25. SUBORDINATE MORTGAGES. Borrower shall not, without the prior
written consent of Lender, which consent may be withheld in Lender's sole
discretion, grant or permit to be created any lien, security interest or other
encumbrance, other than Permitted Encumbrances, covering any of the Mortgaged
Property (each a "Subordinate Mortgage"). If Lender consents to a Subordinate
Mortgage or if the foregoing prohibition is determined by a court of competent
jurisdiction to be unenforceable, any such Subordinate Mortgage shall contain
express covenants to the effect that:
(a) the lien of the Subordinate Mortgage and all instruments
incorporated therein by reference is and always shall be unconditionally
subordinate to the lien of the Instrument and to
12
<PAGE> 13
all advances made pursuant to, and sums secured by, the Instrument, and the
Instrument and all instruments incorporated herein by reference may be renewed,
extended, restructured, modified, increased or reinstated at any time without
giving notice to or obtaining the consent of the Subordinate Mortgage holder;
(b) if any action shall be instituted to foreclose or
otherwise enforce the Subordinate Mortgage, no tenant of any of the Leases shall
be named as a party defendant and no action shall be taken which would terminate
any occupancy or tenancy without the prior written consent of Lender;
(c) in the event of any conflict between the covenants and
agreements of the Instrument and the Subordinate Mortgage, the covenants and
agreements of the Instrument shall prevail;
(d) Rents, if collected by or for the holder of the
Subordinate Mortgage, shall be applied first to the payment of the Indebtedness
and expenses incurred in the ownership, operation and maintenance of the
Mortgaged Property in such order as Lender may determine, prior to being applied
to any indebtedness secured by the Subordinate Mortgage;
(e) a copy of any notice of default under the Subordinate
Mortgage and written notice and opportunity to cure of not less than thirty (30)
days prior to the commencement of any action to foreclose or otherwise enforce
the Subordinate Mortgage shall be given to Lender; and
(f) the holder of the Subordinate Mortgage shall acknowledge
the existence of the Indebtedness secured hereby and further acknowledge that
the lien of the Instrument shall at all times be and remain superior and prior
to the lien of the Subordinate Mortgage to the extent of the entire Indebtedness
secured hereby, notwithstanding any change in the variable rate of interest
being charged under the Note.
26. BUSINESS PURPOSE. Borrower covenants that the proceeds of the loan
and secured by this Instrument will be used for business purposes as specified
in Section 408.015(2) of the Revised Statutes of Missouri, as amended, and that
the principal obligation secured hereby constitutes a business loan which comes
within the purview of said Section.
27. NOTICE. All communications (including bank wire, telex, facsimile
transmission or similar writing) to be given hereunder shall be in writing and
shall be given as set forth below:
(1) If to Borrower, at the following address, or at such other
address as may have been furnished in writing to the Borrower
by the Lender:
Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
Telephone: (614) 621-2245 Ext. 330
Facsimile: (614) 621-8863
(2) If to Lender, at the following address, or at such other
address as may have been furnished in writing to the Borrower
by the Lender:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114-1306
Attention: Dan Heberle
Telephone: (216) 689-0801
Facsimile: (216) 689-4997
13
<PAGE> 14
Each such notice or communication shall be effective (i) if given by
telecopy or facsimile, when such telecopy or facsimile is transmitted to the
facsimile number specified in this Section, (ii) if given by mail, seventy-two
(72) hours after such communication is deposited in the mail with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered at the address specified in this Section.
28. MISCELLANEOUS. The covenants herein contained shall bind, and the
benefits and advantages shall inure to, the respective successors and assigns of
the parties hereto. Whenever used, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all genders.
The captions used herein are for references only and shall not be deemed a part
of this Instrument. If any provision of the Instrument is illegal, or hereafter
rendered illegal, or is for any other reason void, voidable or otherwise
unenforceable, or hereafter rendered void, voidable or otherwise unenforceable,
the remainder of the Instrument shall not be affected thereby, but shall be
construed as if it does not contain such provision. Each right and remedy
provided in the Instrument is distinct and cumulative to all other rights or
remedies under the Instrument or afforded by law or equity, and may be exercised
concurrently, independently or successively, in any order whatsoever. The
Instrument shall be governed by and construed under the laws of the State of
Missouri.
THE PARTIES ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT
MAY ARISE BETWEEN THE PARTIES, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF
WHICH THIS INSTRUMENT ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY
JURY. ACCORDINGLY, EACH OF THE PARTIES TO THIS INSTRUMENT HEREBY WAIVES ANY
RIGHT TO TRIAL BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO
THIS INSTRUMENT.
29. LOAN ADVANCES. This Instrument shall secure unpaid balances of loan
advances which Lender is obligated to make, either before or after or both
before and after, this Instrument is delivered to the Recorder for record
pursuant to the provisions of the Loan Agreement and unreimbursed payments under
letters of credit which Lender is obligated to issue both before and after this
Instrument is delivered to the Recorder for record. The maximum amount of the
unpaid principal balance of said obligatory loan advances and unreimbursed
payments under letters of credit, in the aggregate and exclusive of interest
accrued thereon, which may be outstanding at any time is $24,375,000.00.
30. SUBSTITUTE TRUSTEE. Lender's option, may from time to time remove
Trustee and appoint a successor trustee to any Trustee appointed hereunder by an
instrument recorded in the county in which this Deed of Trust is recorded.
Without conveyance of the Property, the successor trustee shall succeed to all
the title, power and duties conferred upon the Trustee herein and by applicable
law.
IN WITNESS WHEREOF, Borrower has caused the Instrument to be executed
this 17th day of June, 1999.
Signed and acknowledged Borrower:
in the presence of: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
/s/ Laurie Fronek By: Glimcher Properties Corporation,
- ---------------------------------- a Delaware corporation,
Witness___________________________ its sole General Partner
(printed)
/s/ Jane B. Gaines By: /s/ William G. Cornelly
- ---------------------------------- --------------------------------------
Witness___________________________ William G. Cornely, Executive
(printed) Vice President/COO/CFO
14
<PAGE> 15
THE CORPORATION HAS NO SEAL
STATE OF OHIO,
):ss
COUNTY OF FRANKLIN,
On this 17th day of June, 1999, before me, appeared William G. Cornely
to me personally known, who being by me duly sworn, did say that he is the
Executive Vice President/COO/CFO of Glimcher Properties Corporation, a Delaware
corporation, the General Partner of GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership, and that said instrument was signed and sealed on
behalf of said corporation by authority of its Board of Directors as the General
Partner of said limited partnership, and said William G. Cornely acknowledged
said instrument to be the free act and deed of said corporation as the General
Partner of said limited partnership and to be the free act and deed of said
limited partnership. The corporation has no seal.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in Columbus, Ohio, the day and year first above written.
Jane B. Gaines
---------------------------------
Notary Public
This instrument prepared by: expires Nov. 1, 2002
Thompson Hine & Flory LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114-1216
(216) 566-5500
<PAGE> 16
EXHIBIT A
LEGAL DESCRIPTION
A tract of land lying in the West One-Half (W 1/2) of the Northwest Quarter (NW
1/4), and part of Lot One (1), in Hubbard's Subdivision in the East Half (E 1/2)
of the Northwest Quarter (NW 1/4), Section Thirty (30), Township Fifty-Seven
(57) North, Range Four (4) West, in the City of Hannibal, Marion County,
Missouri, and being more fully described as follows: From a point marking the
Northeast corner of the West One-Half (W 1/2) of the Northwest Quarter (NW 1/4)
of Section Thirty (30); thence run South along the East line of the West
One-Half (W 1/2) of the Northwest Quarter (NW 1/4), 541.2 feet to an iron pipe
on the South right of way line of West Ely Road; thence North 85(Degree) and 39'
West along said South line of West Ely Road; 31.34 feet to an iron pipe on the
South line of said West Ely Road, and said iron pipe marking the true point of
beginning; thence South 02(Degree) and 47' East along the West side of West Ely
Creek, 51.9 feet to an iron pipe; thence South 18(Degree) and 37' East along the
West side of said West Ely Creek, 90.2 feet to an iron pipe; thence South
12(Degree) and 17' East along the West side of said West Ely Creek, 215.20 feet
to an iron pipe; thence South 57(Degree) and 13' East along the West side of
said West Ely Creek, 63.35 feet to a right of way maker on the Westerly right of
way line of U.S. Route 61; thence South 34(Degree) and 03' East along the
Westerly right of way line of said U.S. Route 61 a distance of 75.52 feet to an
iron pipe; thence South 33(Degree) and 57' East along the Westerly right of way
line of said U.S. Route 61, a distance of 16.70 feet to a right of way marker;
thence South 03(Degree) and 51' East along the Westerly right of way line of
said U.S. Route 61, a distance of 273.20 feet to an iron pipe; thence South
89(Degree) and 44' West, 169.16 feet to an iron pipe; thence South 00(Degree)
and 00' West, 150.00 feet to a point in the center of Minnow Branch; thence
North 54(Degree) and 00' West along the centerline of said Minnow Branch, 190.00
feet to a point; thence North 58(Degree) and 00' West along the centerline of
said Minnow Branch, 258.00 feet to a point on the West property line; thence
North 00(Degree) and 00' East, 659.30 feet to an iron pipe on the South line of
West Ely Road; thence South 85(Degree) and 39' East along the South line of West
Ely Road, 342.88 feet to the point of beginning. With the above described
subject to an easement heretofore conveyed to the City of Hannibal for utility
purposes.
<PAGE> 17
EXHIBIT B
PERMITTED EXCEPTIONS
1. Taxes for the year 1999 and subsequent years, which are not yet due and
payable.
2. Easement for egress and ingress over the roadway in the North 60 feet
of the East 52.6 feet of the premises in question, according to the
General Warranty Deed retained by William L. Howe and Jean S. Howe, his
wife, dated September 19, 1966 and recorded September 24, 1966 in Book
526, Page 1834, in the Marion County Recorder's Office, Missouri, and
as shown on Survey by Meco Engineering Company, Inc., dated December 5,
1988.
3. Limited access to highway U.S. Route 61 from the premises in question
according to the Indenture, dated December 13, 1963, and recorded
January 3, 1965 in Book 510, Page 225, amended by Agreement for
Shifting State Highway Entrance, recorded January 7, 1975 in Book 535,
Page 37; Agreement for Shifting State Highway Entrance between Hannibal
Development Company and Bobby F. Paris and Virginia Maxine Paris,
husband and wife, and the State of Missouri, recorded March 7, 1975 in
Book 535, Page 379; and Agreement for Shifting State Highway Entrance
between Hannibal Development Company and The State of Missouri,
recorded July 17, 1975 in Book 535, Page 1794, all in the Marion County
Recorder's Office, Missouri, and as shown on Survey by Meco Engineering
Company, Inc., dated December 5, 1988.
4. Sewer Easement granted to the City of Hannibal over a portion of the
premises in question, dated February 19, 1970 and recorded February 19,
1970, in Book 530, Pages 291 and 292; and Easement dated March 23, 1970
and recorded March 24, 1970 in Book 530, Page 465, both in the Marion
County Recorder's Office, Missouri, and as shown on Survey by Meco
Engineering Company, Inc., dated December 5, 1988.
5. Power Line Easement granted to the City of Hannibal over a portion of
the premises in question, dated October 14, 1976 and recorded in Book
536, Page 3338, in the Marion County Recorder's Office, Missouri, and
as shown on Survey by Meco Engineering Company, Inc., dated December 5,
1988.
6. Tenants as tenants only under any and all unrecorded leases.
7. Terms and provisions of that certain Short Form Lease by and between
Glimcher-Samuels Limited Partnership, as "Landlord" and AutoZone, Inc.,
a Nevada corporation, as "Tenant", dated August 23, 1993 and recorded
October 4, 1993 in Book 553, Page 3802, in the Marion County Recorder's
Office, Missouri.
Terms and provisions of that certain Amended Short Form Lease by and
between Glimcher- Samuels Limited Partnership, as "Landlord" and
AutoZone, Inc., a Nevada corporation, as "Tenant" dated January 6, 1994
and recorded March 2, 1994 in Book 554, Page 803, in the Marion County
Recorder's Office, Missouri.
<PAGE> 1
Exhibit 10.92
OPEN-END MORTGAGE, ASSIGNMENT OF RENTS
--------------------------------------
AND SECURITY AGREEMENT
----------------------
*MAXIMUM PRINCIPAL INDEBTEDNESS NOT TO EXCEED $24,375,000*
KNOW ALL MEN BY THESE PRESENTS, that GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, having an office at 20 South Third
Street, Columbus, Ohio 43215 ("Borrower"), in consideration of the sum of
Twenty-Four Million Three Hundred Seventy-Five Thousand ($24,375,000.00) does
hereby GRANT, BARGAIN, SELL, MORTGAGE AND CONVEY certain real property more
fully described in Exhibit "A" attached hereto and incorporated herein (the
"Property") unto KEYBANK NATIONAL ASSOCIATION, a national banking association,
having an office at 127 Public Square, Cleveland, Ohio 44114 ("Lender").
TOGETHER WITH the following, whether now owned or hereafter acquired
by Borrower: (a) all improvements now or hereafter attached to or placed,
erected, constructed or developed on the Property (collectively the
"Improvements"); (b) all fixtures, furnishings, equipment, inventory, and other
articles of personal property (collectively the "Personal Property") that are
now or hereafter attached to or used in or about the Improvements or that are
necessary or useful for the complete and comfortable use and occupancy of the
Improvements for the purposes for which they were or are to be attached, placed,
erected, constructed or developed or that may be used in or related to the
planning, development, financing or operation of the Improvements, and all
renewals of or replacements or substitutions for any of the foregoing, whether
or not the same are or shall be attached to the Improvements or the Property;
(c) all water and water rights, timber, crops, and mineral interests pertaining
to the Property; (d) all building materials and equipment now or hereafter
delivered to and intended to be installed in or on the Improvements or the
Property; (e) all plans and specifications for the Improvements; (f) all
contracts relating to the Property, the Improvements or the Personal Property;
(g) all deposits (including, without limitation, tenants' security deposits),
bank accounts, funds, documents, contract rights, accounts, commitments,
construction agreements, architectural agreements, general intangibles
(including, without limitation, trademarks, trade names and symbols),
instruments, notes and chattel paper arising from or by virtue of any
transactions related to the Property, the Improvements or the Personal Property;
(h) all permits, licenses, franchises, certificates, and other rights and
privileges obtained in connection with the Property, the Improvements or the
Personal Property; (i) all proceeds arising from or by virtue of the sale, lease
or other disposition of the Property, the Improvements, the Personal Property or
any portion thereof or interest therein; (j) all proceeds (including, without
limitation, premium refunds) of each policy of insurance relating to the
Property, the Improvements or the Personal Property; (k) all proceeds from the
taking of any of the Property, the Improvements, the Personal Property or any
rights appurtenant thereto by right of eminent domain or by private or other
purchase in lieu thereof (including, without limitation, change of grade of
streets, curb cuts or other rights of access), for any public or quasi-public
use under any law; (l) all right, title and interest of Borrower in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Property; (m) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (n) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (o) other interests of every kind and character
that Borrower now has or at any time hereafter acquires in and to the Property,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Borrower with respect thereto (all
of the same, including the Property, collectively the "Mortgaged Property").
TO HAVE AND TO HOLD the Mortgaged Property, together with the rights,
privileges and appurtenances thereto belonging, unto Lender and its successors
and assigns forever, and Borrower hereby binds itself and its successors and
assigns to warrant and forever defend the Mortgaged Property unto Lender and its
successors and assigns, against the claim or claims of all persons
<PAGE> 2
claiming or to claim the same or any part thereof, except rights of tenants in
possession under written leases, and easements, agreements and restrictions of
record and current real estate taxes and assessments.
The maximum amount of unpaid loan indebtedness, exclusive of interest
thereon and of advances for taxes, assessments, insurance premiums and costs
incurred for protection of the Mortgaged Property, which may be outstanding at
any time is Twenty-Four Million Three Hundred Seventy-Five Thousand Dollars
($24,375,000.00).
THIS OPEN-END MORTGAGE IS GIVEN TO SECURE: the full and prompt payment,
whether at stated maturity, accelerated maturity or otherwise, of any and all
indebtedness, whether fixed or contingent, and whether advanced before, in
connection with or after the recording of this Mortgage (collectively the
"Indebtedness") and the complete, faithful and punctual performance of any and
all other obligations (collectively the "Obligations") of Borrower under the
terms and conditions of (a) that certain Loan Agreement among Borrower Glimcher
Realty Trust, Glimcher Properties Corporation and Lender, of even date herewith
("Loan Agreement"); (b) the Note made by Borrower pursuant to the Loan
Agreement, not to exceed in the aggregate the principal amount of Twenty-Four
Million Three Hundred Seventy-Five Thousand Dollars ($24,375,000.00), payable
not later than June 17, 2000, and any and all renewals, amendments,
modifications, reductions and extensions thereof and substitutions therefor (the
"Note"); (c) the Mortgage; and (d) any other instrument, document, certificate
or affidavit heretofore, now or hereafter given by Borrower evidencing or
securing all or any part of the foregoing (the same together with the Loan
Agreement, the Note and the Mortgage, collectively the "Loan Documents").
Borrower, for itself and its successors and assigns, hereby covenants
with Lender, its successors and assigns, that:
1. TITLE. Borrower represents that it has good and marketable title in
fee simple to the Mortgaged Property, except for rights of tenants in possession
under written leases, current real estate taxes and assessments and other
matters and encumbrances approved by Lender for inclusion in the lender's policy
of title insurance issued by Chicago Title Insurance Company insuring the lien
of the Mortgage as shown on Exhibit B (the "Permitted Exceptions"). If the
interest of Lender in the Mortgaged Property or any part thereof shall be
endangered or shall be attacked, directly or indirectly, Borrower hereby
authorizes Lender, at Borrower's expense, to take all necessary and proper steps
for the defense of such interest, including the employment of counsel, the
prosecution or defense of litigation and the compromise or discharge of claims
made against such interest. Any sums so expended by Lender shall be charged
against Borrower and collectible in accordance with the terms of Section 12
hereof.
2. FURTHER ASSURANCES. Borrower, upon the request of Lender, shall
execute, acknowledge, deliver, file and record such further instruments and do
such further acts as may be necessary, desirable or proper to carry out the
purposes of the Loan Documents and to subject to the liens and security
interests created thereby any property intended by the terms thereof to be
covered thereby, including specifically, but without limitation, any renewals,
additions, substitutions, replacements, improvements or appurtenances to the
Mortgaged Property.
3. SUBROGATION FOR FURTHER SECURITY. Lender shall be subrogated for its
further security to the lien, although released of record, of any and all
encumbrances paid with any advance of Indebtedness; provided, however, that the
terms and provisions hereof shall govern the rights and remedies of Lender and
shall supersede the terms, provisions, rights, and remedies under the lien or
liens to which Lender is subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Lender, which consent may be withheld in Lender's sole
discretion, Borrower shall not (a) sell, assign, mortgage, pledge, lease (except
for leases in the ordinary course of Borrower's business) or otherwise convey or
further encumber the Mortgaged Property, or any portion thereof, or legal,
equitable or beneficial interest therein; (b) sell, assign, pledge or otherwise
transfer any beneficial
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interests in Borrower which individually or in the aggregate would have the
effect of transferring the power to direct the operations of Borrower or the
Mortgaged Property; (c) contract for any of the same; (d) permit the Mortgaged
Property, or any portion thereof, or legal, equitable or beneficial interest
therein, to be subject to any superior or inferior lien or encumbrance; (e)
subdivide, resubdivide or submit to the condominium form of ownership all or any
portion of the Mortgaged Property, or any portion thereof; or (f) initiate or
acquiesce in any change in the zoning classification of the Property or any
portion thereof.
5. PAYMENT OF INDEBTEDNESS. Borrower shall promptly pay the
Indebtedness as the same becomes due and payable.
6. ESTOPPEL CERTIFICATE. Borrower shall furnish to Lender within ten
(10) days of any written request of Lender, a written statement, duly
acknowledged by Borrower, setting forth the sums secured by the Mortgage and any
right of set-off, counterclaim or other defense which Borrower alleges to exist
against such sums and obligations secured by the Mortgage.
7. TAXES AND OTHER IMPOSITIONS. Borrower shall promptly pay before
delinquency all taxes, assessments, charges, fines or impositions, general,
local or special (collectively the "Impositions"), levied upon the Mortgaged
Property, or any part thereof, or upon Lender's interest therein, or upon the
Mortgage or the Indebtedness, by any duly or legally constituted public
authority, municipality, township, county or state or the United States, and
upon request, will provide evidence of the payment thereof to Lender; provided
that Borrower, at Borrower's own cost and expense may, if it shall in good faith
so desire, contest the validity or amount of any Impositions, in which event
Borrower may defer the payment thereof for such period as such contest shall be
actively prosecuted and shall be pending undetermined; further provided,
however, that Borrower shall not allow any such Impositions so contested to
remain unpaid for such length of time as shall permit all or any portion of the
Mortgaged Property, or the lien thereon created by such item, to be sold by
federal, state, county or municipal authority for the nonpayment thereof.
Pending any such contest, Borrower shall maintain adequate book reserves with
respect to such Impositions being contested.
In the event that one or more of the Impositions on Lender's interest
in the Mortgaged Property, the Mortgage or the Indebtedness cannot be lawfully
paid by Borrower, then the Mortgaged Property shall be withdrawn from the
Collateral Pool (as such team is defined in the Loan Agreement). In the event
the withdrawal of the Mortgaged Property from the Collateral Pool causes
Borrower not to be in compliance with the required loan to value ratio under the
Loan Agreement, Borrower may either furnish substitute property, as provided in
the Loan Agreement, or pay down the Indebtedness in an amount which will bring
the loan to value ratio into compliance.
8. INSURANCE AND INDEMNIFICATION. Borrower shall provide, maintain and
keep in force at all times the following policies of insurance:
(a) Insurance against loss or damage to the Improvements and
the Personal Property caused by fire and any of the risks covered by insurance
of the type now known as "coverage against all risks of physical loss", in an
amount equal to one hundred percent (100%) of the replacement cost of the
Improvements and the Personal Property and sufficient to prevent Borrower and
Lender from becoming co-insurers, and otherwise with terms and conditions
acceptable to Lender;
(b) Comprehensive broad form general liability insurance,
insuring against any and all claims for personal injury, death or property
damage occurring on, in or about the Property, the Improvements and the
adjoining streets, sidewalks and passageways, subject to a combined single limit
of not less than Two Million Dollars ($2,000,000.00) for personal injury, death
or property damage arising out of any one accident and a general aggregate limit
of not less than Five Million Dollars ($5,000,000.00), and otherwise with terms
and conditions acceptable to Lender;
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(c) Worker's compensation insurance (including employer's
liability insurance, if available and requested by Lender) for all employees of
Borrower engaged on or with respect to the Property and the Improvements in the
limits established by law or, if limits are not so established, in such amounts
as are acceptable to Lender;
(d) During the course of any development or construction of
the Improvements, builder's completed value risk insurance against "all risks of
physical loss", including collapse and transit coverage, in the amounts set
forth in Subsection 8(a) above, and otherwise with terms and conditions
acceptable to Lender;
(e) Upon obtaining a certificate of occupancy for the
Improvements or any portion thereof, business interruption insurance and/or loss
of "rental value" insurance in an amount not less than the appraised rentals for
the Mortgaged Property for a minimum of twelve (12) months, and otherwise with
terms and conditions acceptable to Lender;
(f) If the Improvements are located in a federally-designated
flood hazard area, then flood hazard coverage, in the maximum amount available
and otherwise with terms and conditions acceptable to Lender; and
(g) Such other insurance coverage, and in such amount, as may
from time to time be reasonably required by Lender against the same or other
hazards.
All such policies shall be in a form acceptable to Lender. Each policy
of casualty insurance shall contain a mortgagee clause, substantially in the
form of the standard New York mortgagee clause or otherwise acceptable to
Lender, showing Lender as loss payee. Each policy of liability insurance shall
show Lender as an additional insured. Unless the policy so provides, each policy
of insurance required by the terms of the Mortgage shall contain an endorsement
by the insurer, for the benefit of Lender, (i) that any loss shall be payable in
accordance with the terms of such policy notwithstanding any act or negligence
of Borrower, (ii) that any rights of set-off, counterclaim or deductions against
Borrower are waived and (iii) that such policy shall not be canceled or changed
except upon not less than thirty (30) days prior written notice delivered to
Lender.
All such insurance policies and renewals thereof shall be written by
companies with a BEST'S INSURANCE REPORTS policy holders rating of A and a
financial size category of Class X or be expressly approved by Lender in
writing.
Lender shall have the right to hold the policies, or certificates
thereof acceptable to Lender with certified copies of the policies, and Borrower
shall promptly furnish to Lender all renewal notices and all receipts of paid
premiums. At least thirty (30) days prior to the expiration date of any such
policy, Borrower shall deliver to Lender a renewal policy, or certificate
thereof, in form acceptable to Lender.
If Lender is made a party defendant to any litigation concerning the
Loan Documents or the Mortgaged Property or any part thereof or interest therein
or the occupancy thereof by Borrower, then Borrower shall indemnify, defend and
hold Lender harmless from all liability by reason of said litigation, including
reasonable attorneys' fees and expenses incurred by Lender in any such
litigation, whether or not any such litigation is prosecuted to judgment.
Borrower waives any and all right to claim or recover against Lender, its
officers, employees, agents and representatives, for loss of or damage to
Borrower, the Mortgaged Property, other property of Borrower or the property of
others under control of Borrower from any cause insured against or required to
be insured against by the provisions of the Mortgage.
Borrower shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section unless Lender has approved the insurance company and the form and
content of the insurance policy, including, without limitation, the naming
thereon of Lender as a named insured with loss payable to Lender under a
standard mortgage clause of the character above described. Borrower shall
immediately notify Lender
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whenever any such separate insurance is taken out and shall promptly deliver to
Lender copies of the policies and certificates evidencing such insurance.
Nothing contained in this Section 8 shall prevent Borrower from keeping
the Improvements and Personal Property insured or causing the same to be insured
against the risks referred to in this Section 8 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Mortgage; provided, however, that any such policy of blanket insurance (i) shall
specify therein the amount of the total insurance allocated to the Improvements
and Personal Property, which amount shall be not less than the amount otherwise
required to be carried under the Mortgage; (ii) shall not contain any clause
which would result in the insured thereunder becoming a co-insurer of any loss
with the insurer under such policy; and (iii) shall in all other respects comply
with the provisions of the Mortgage.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Borrower, and used
by Borrower to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Borrower should elect option (ii) above, if a material decrease in the
fair market value of the Mortgaged Property is indicated, Lender shall be
entitled, at its option, to cause the Mortgaged Property to be reappraised at
Borrower's expense to satisfy itself of continued compliance by Borrower with
the loan to value ratio required by the Loan Agreement. In the event the results
of such reappraisal causes Borrower not to be in compliance with the required
loan to value ratio, Borrower may either furnish substitute property, as
provided for in Section 7 of the Loan Agreement, or pay down the Indebtedness in
an amount which will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Lender as escrow agent for the purpose of repairing, restoring or reconstructing
the Improvements. Such proceeds shall be disbursed by Lender as work progresses,
provided that prior to any disbursement, Lender is in receipt of proof
reasonably satisfactory to it that: (i) the work has been completed, (ii) there
are no outstanding mechanics liens or materialmen's liens, and (iii) that all
charges, costs and expenses incurred with respect to work completed have been
paid in full or will be paid in full with such proceeds. Prior to the release of
any proceeds, Lender must be satisfied that repair, restoration or
reconstruction of the damaged or destroyed Improvements will be substantially
equal in size, quality and value to the Improvements then presently erected on
the Mortgaged Property as existed immediately prior to the loss and the plans
and specifications therefor must be approved by Lender. In the event Lender
believes it is necessary in order to establish value, Lender may, at its option,
cause the Mortgaged Property to be reappraised at Borrower's expense. All
insurance proceeds shall be payable to Lender. The adjustment of such insurance
proceeds with the carrier must be approved by Lender.
Anything in this Section 8 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Lender, be applied by Lender to the Indebtedness in
such order as Lender may determine.
9. ESCROW. Borrower, in order to more fully protect the security of the
Mortgage, does hereby covenant and agree that, if Borrower shall fail to timely
pay taxes, assessments or insurance premiums as provided above, or in the event
of any other default and Lender does not then elect to exercise its other
remedies, then Borrower shall, upon request of Lender, pay to Lender on the
first day of each month, until the Indebtedness is fully paid, a sum equal to
one-twelfth (1/12) of the known or estimated yearly taxes, assessments, premiums
for such insurance as may be required by the terms hereof. Lender shall hold
such monthly payments which may be mingled with its general funds, without
obligation to pay interest thereon, unless otherwise required by applicable law,
to pay such taxes, assessments, and insurance premiums when due. Borrower agrees
that sufficient funds
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shall be so accumulated for the payment of said charges one (1) month prior to
the due date thereof and that Borrower shall furnish Lender with proper
statements covering the same fifteen (15) days prior to the due dates thereof.
In the event of foreclosure of the Mortgage, or if Lender should take a deed in
lieu of foreclosure, the amount so accumulated shall be credited on account of
the unpaid principal or interest. If the total of the monthly payments as made
under this Section 9 shall exceed the payments actually made by Lender, such
excess shall be credited on subsequent monthly payments of the same nature, but
if the total of such monthly payments so made under this Section 9 shall be
insufficient to pay such taxes, assessments, and insurance premiums then due,
then said Borrower shall pay upon demand the amount necessary to make up the
deficiency, which payments shall be secured by the Mortgage. To the extent that
all the provisions of this Section 9 for such payments of taxes, assessments,
and insurance premiums to Lender, are complied with, Borrower shall be relieved
of compliance with the covenants contained in Sections 7 and 8 herein as to the
amounts paid only, but nothing contained in this Section 9 shall be construed as
in any way limiting the rights of Lender at its option to pay any and all of
said items when due.
10. WASTE; REPAIR. Borrower shall neither commit nor permit any waste
on the Property and shall keep all Improvements now or hereafter erected on the
Property in good condition and repair.
11. ALTERATIONS; CONSTRUCTION. Borrower shall have the right to remove,
demolish or alter any of the Improvements, now existing or hereafter constructed
on the Property, or any of the Personal Property in or on the Property or
Improvements, to the extent that the value of same is not diminished. If Lender
believes that there has been a material decrease in value following any such
removal, demolition, or alteration, it may, at its option, cause the Mortgaged
Property to be reappraised at Borrower's expense.
12. ADVANCES SECURED BY MORTGAGE. Upon failure of Borrower to comply
with any of these covenants and agreements as to the payment of taxes,
assessments, insurance premiums, repairs, protection of the Mortgaged Property
or Lender's lien thereon, and other charges and the costs of procurement of
title evidence and insurance as aforesaid, Lender may, at its option, pay the
same, and any sums so paid by Lender, together with the reasonable fees of
counsel employed by Lender in consultation and in connection therewith, shall be
charged against Borrower, shall be immediately due and payable by Borrower,
shall bear interest at the Default Rate of Interest (as defined in the Note) and
shall be a lien upon the Mortgaged Property and be secured by the Mortgage and
may be collected in the same manner as the principal debt hereby secured.
13. USE. Unless Lender otherwise agrees in writing, Borrower shall not
allow changes in the nature of the occupancy for which the Property and
Improvements were intended at the time the Mortgage was executed. Borrower shall
comply with the laws, ordinances, rules, regulations and requirements of any
governmental body applicable to the Mortgaged Property, both during the
construction of any Improvements on the Property and subsequent to the
completion thereof, and Borrower shall not permit the use thereof for any
illegal purpose.
14. INSPECTION. Any person authorized by Lender shall have the right to
enter upon and inspect the Mortgaged Property after reasonable notice to
Borrower and during normal business hours. Lender shall have no duty, however,
to make such inspections. Any inspection of the Mortgaged Property by Lender
shall be entirely for its benefit, and Borrower shall in no way rely or claim
reliance thereon.
15. MINERALS. Without the prior written consent of Lender, there shall
be no drilling or exploring for, or extraction, removal, or production of,
minerals from the surface or subsurface of the Property. The term "minerals" as
used herein shall include, without limitation, oil, gas, casinghead gas, coal,
lignite, hydrocarbons, methane, carbon dioxide, helium, uranium and all other
natural elements, compounds and substances, including sand and gravel.
16. CONDEMNATION. If all the Mortgaged Property and Improvements are
taken or acquired in any condemnation proceeding or by exercise of the right of
eminent domain or, with
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Lender's consent, by any conveyance in lieu thereof, the amount of any award or
other payment for such taking, or conveyance or damages made in consideration
thereof, to the extent of the full amount of the then remaining unpaid
Indebtedness, is hereby assigned to Lender, and Lender is empowered to collect
and receive the same and to give proper receipts therefor in the name of
Borrower, and the same shall be paid forthwith to Lender. Such award or payment
so received by Lender shall be applied to the Indebtedness (whether or not then
due and payable).
In the event a portion of the Property Improvements are acquired in any
condemnation proceeding or by the exercise of the right of eminent domain, to
the extent that the damage to the Property or improvements is in the amount of
$500,000.00 or less, and provided there is no Event of Default, as hereinafter
defined, the proceeds of any such condemnation or eminent domain award shall be
paid to Borrower, who shall use such proceeds as provided for in paragraph 8
hereof with respect to the disbursement of insurance proceeds where the damage
or destruction is in an amount of $500,000.00 or less. The provisions of
paragraph 8 with respect to reappraisal and substitute property where there is
damage or destruction in an amount of $500,000.00 or less shall apply as if
fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with Lender as escrow agent for the purpose of repairing,
restoring, or reconstructing the Improvements and/or Property, and shall be
disbursed by Lender in accordance with the provisions of paragraph 8 hereof with
respect to the disbursement of insurance proceeds, where the damage or
destruction is in an amount of $500,000.00 or greater. The conditions to
disbursement, including the requirement that Lender be satisfied that the
repaired or restored Improvements would be equal in size, quality and value to
those which existed previously, and the right to cause the Mortgaged Property to
be reappraised, as provided for where there is damage or destruction of
$500,000.00 or greater, shall be applicable as if fully rewritten.
Anything in this Section 16 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Lender, be
applied by Lender to the Indebtedness in such order as Lender may determine.
17. ASSIGNMENT OF RENTS AND LEASES.
(a) Borrower hereby absolutely and unconditionally assigns,
transfers and sets over unto Lender and Lender's successors and assigns all
present and future leases covering all or any part of the Mortgaged Property
(the "Leases"), together with any extensions or renewals thereof and any
guaranties of any tenants' obligations thereunder, and all of the rents,
royalties, bonuses, income, receipts, revenues, issues and profits now due or
which may hereafter become due under the Leases or any extensions or renewals
thereof, as well as all moneys due and to become due to Borrower under the
Leases for services, materials or installations supplied whether or not the same
were supplied under the terms of the Leases, all liquidated damages following
default under the Leases and all proceeds payable under any policy of insurance
covering loss of rents resulting from untenantability caused by damage to any
part of the Mortgaged Property (such rents, income, receipts, revenues, issues,
profits and other moneys assigned hereby are hereinafter collectively called
"Rents"), together with any and all rights and remedies which Borrower may have
against any tenant under any of the Leases or others in possession of the
Mortgaged Property or any part thereof for the collection or recovery of Rents
so assigned. Prior to an Event of Default, as hereinafter defined, Borrower
shall have a license to collect and receive all Rents as trustee for the benefit
of Lender and Borrower.
(b) Borrower hereby represents, warrants and agrees that:
(i) Borrower has good title to the Leases and Rents
hereby assigned and has the right, power and capacity to make this assignment.
No person or entity other than Borrower
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has or will have any right, title or interest in or to the Leases or Rents,
except for the Permitted Encumbrances.
(ii) Borrower shall, at Borrower's sole cost and expense,
perform and discharge all of the obligations and undertakings of the
landlord under the Leases and give prompt notice to Lender of any failure to do
so. Borrower shall use all reasonable efforts to enforce or secure the
performance of each and every obligation and undertaking of the tenants under
the Leases and shall appear in and prosecute or defend any action or proceeding
arising under, or in any manner connected with, the Leases or the obligations
and undertakings of the tenants thereunder.
(iii) Borrower shall generally operate and maintain the
Mortgaged Property in a manner to insure maximum Rents.
(iv) Borrower shall not pledge, transfer, mortgage or
otherwise encumber or assign the Leases or the Rents.
(v) Borrower shall not collect Rents more than sixty
(60) days prior to accrual.
(c) Lender shall not be obligated to perform or discharge any
obligation or duty to be performed or discharged by Borrower under any of the
Leases; and Borrower hereby agrees to indemnify Lender for, and to save Lender
harmless from, any and all liability, damage or expense arising from any of the
Leases or from this assignment, including, without limitation, claims by tenants
for security deposits or for rental payments more than one (1) month in advance
and not delivered to Lender. All amounts indemnified against hereunder,
including reasonable attorneys' fees if paid by Lender, shall bear interest at
the Default Rate of Interest, as defined in the Note, and shall be payable by
Borrower immediately without demand and shall be secured hereby. This assignment
shall not place responsibility for the control, care, management, or repair of
the Mortgaged Property upon Lender or make Lender responsible or liable for any
negligence in the management, operation, upkeep, repair or control of same
resulting in loss or damage or injury or death to any party.
(d) Upon the occurrence of an Event of Default as hereinafter
defined:
(i) All Rents assigned hereunder shall be paid directly
to Lender, and Lender may notify the tenants under the Leases (or any other
parties in possession of the Mortgaged Property) to pay all of the Rents
directly to Lender at the address specified in Section 27 hereof, for which this
assignment shall be sufficient warrant;
(ii) Lender shall have the right to forthwith enter and
take possession of the Mortgaged Property and to manage, operate,
lease and develop the same; to collect as hereunder provided all or any Rents
payable under the Leases; to make repairs as Lender deems appropriate; and to
perform such other acts in connection with the management, operation,
development, leasing and construction of the Mortgaged Property as Lender, in
its sole discretion, may deem proper; and
(iii) Lender shall have the right to forthwith enter into
and upon the Mortgaged Property and take possession thereof, and to
appoint an agent, or in the event of the institution of foreclosure proceedings
to have a receiver appointed for the collection of the Rents.
In the event that Lender shall pursue its remedies under Subsections
17(d)(ii) or (iii) above, the net income, after allowing a reasonable fee for
the collection thereof and the management of the Mortgaged Property, may be
applied toward the payment of taxes, assessments, insurance premiums, repairs,
protection of the Mortgaged Property or Lender's lien thereon, and other charges
against the Mortgaged Property and the costs of procurement of such insurance
and of evidence of title to the Mortgaged Property, or any of them, or in the
reduction of the Indebtedness and the payment of interest, as Lender may elect.
If the Rents are not sufficient to meet the costs, if any, of taking control of
and managing the Mortgaged Property and collecting the Rents, any funds expended
by
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Lender for such purposes shall become indebtedness of Borrower to Lender secured
by the Mortgage. Unless Lender and Borrower agree in writing to other terms of
payment, such amounts shall be payable upon demand from Lender to Borrower and
shall bear interest from the date of disbursement at the Default Rate of
Interest stated in the Note.
The exercise or failure to exercise any of the above remedies shall not
in any way preclude or abridge the right of Lender to foreclose the Mortgage or
to take any other legal or equitable action thereon. Lender shall have such
rights or privileges as aforesaid regardless of the value of the Mortgaged
Property given as security hereunder, and regardless of the solvency or
insolvency of any party bound for the payment of the Indebtedness or the other
sums hereby secured.
(e) Borrower hereby authorizes and directs the tenants under
the Leases to pay Rents to Lender upon written demand by Lender, without further
consent of Borrower, and the tenants may rely upon any written statement
delivered by Lender to the tenants. Any such payment to Lender shall constitute
payment to Borrower under the Leases.
(f) There shall be no merger of the leasehold estates created
by the Leases with the fee estate of the Property and Improvements without the
prior written consent of Lender.
18. SECURITY AGREEMENT. The Mortgage is intended to be a security
agreement pursuant to the Uniform Commercial Code as enacted in the State of
Ohio (the "UCC") for any of the Mortgaged Property comprising personal property
and fixtures which may be subject to a security interest pursuant to the UCC,
and Borrower hereby grants to Lender a security interest in said personal
property and fixtures, whether said property is now existing or hereafter
acquired, together with replacements, replacement parts, additions, repairs and
accessories incorporated therein or affixed thereto and, if sold or otherwise
disposed of, the proceeds (including insurance proceeds) thereof. Borrower
agrees to execute and deliver to Lender UCC financing statements covering said
personal property and fixtures from time to time and in such form as Lender may
require to perfect or maintain the priority of Lender's security interest with
respect to said personal property and fixtures. Borrower shall not create or
suffer to be created any other security interest in said personal property and
fixtures, including replacements thereof and additions thereto. Upon the
occurrence of any Event of Default as set forth in Section 19 hereof, Lender
shall have the remedies of a secured party under the UCC and, at Lender's
option, may also invoke the remedies provided in Section 19 hereof with respect
to such property.
19. DEFAULT. The term "Event of Default" shall have the same meaning as
set forth in the Loan Agreement, which meaning is incorporated by this reference
herein.
Upon the occurrence of any such Event of Default beyond any applicable
cure period, at the option of Lender, without notice or demand, the same being
hereby expressly waived, the entire amount shall become immediately due and
payable, and, in addition to any other right or remedy which Lender may now or
hereafter have at law, in equity, or under the Loan Documents, Lender shall have
the right and power: (a) to foreclose upon the Mortgage and the lien hereof; (b)
to sell the Mortgaged Property according to law; and (c) to enter upon and take
possession of the Mortgaged Property and/or have a receiver appointed therefor
as set forth in Section 17 hereof.
20. NO WAIVER. The failure of Lender to exercise any option to declare
the maturity of the principal debt or any other sums hereby secured under any
provision of any of the Loan Documents, or to forbear from exercising any right
or remedy available to Lender under any provision of any of the other Loan
Documents, shall not be deemed a waiver of the right to exercise such option,
right or remedy or declare such maturity as to such past, continuing or
subsequent violation of any of the covenants and agreements of the Loan
Documents. Acceptance by Lender of partial payments shall not constitute a
waiver of any Event of Default. From time to time, Lender may, at Lender's
option, without giving notice to or obtaining the consent of Borrower,
Borrower's successors or assigns, any junior lienholder or any of the
Guarantors, without liability on Lender's part and notwithstanding Borrower's
breach of any covenant or agreement of Borrower in the Mortgage, extend the time
for payment of the Indebtedness, or any part thereof, reduce the payments
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thereon, release anyone liable on any of said Indebtedness, accept a renewal
note or notes therefor, release from the lien of the Mortgage any part of the
Mortgaged Property, take or release other or additional security, reconvey any
part of the Mortgaged Property, consent to any map or plan of the Mortgaged
Property, consent to the granting of any easement, join in any extension or
subordination agreement, or agree in writing with Borrower to modify the rate of
interest or period of amortization of the Note or to change the amount of the
monthly installments payable thereunder. Any actions taken by Lender pursuant to
the terms of this Section 20 shall not affect the obligation of Borrower or
Borrower's successors or assigns to pay the sums secured by the Mortgage and to
observe the covenants of Borrower contained herein, shall not affect the
guaranty of any of the Guarantors, and shall not affect the lien or priority of
lien of the Mortgage on the Mortgaged Property. Borrower shall pay Lender a
reasonable service charge, together with such title insurance premiums and
attorney's fees as may be incurred at Lender's option for any such action if
taken at Borrower's request.
21. PARCELS; WAIVER OF MARSHALLING. In the event of foreclosure of the
Mortgage, the Mortgaged Property may be sold in one or more parcels or as an
entirety as Lender may elect.
Notwithstanding the existence of any other security interests in the
Mortgaged Property held by Lender or by any other party, Lender shall have the
right to determine the order in which any or all of the Mortgaged Property shall
be subjected to the remedies provided herein. Lender shall have the right to
determine the order in which any or all portions of the Indebtedness are
satisfied from the proceeds realized upon the exercise of the remedies provided
herein. Borrower, any party who becomes liable for Borrower's obligations and
covenants under the Mortgage, and any party who now or hereafter acquires a
security interest in the Mortgaged Property, or any portion thereof, hereby
waives any and all right to require the marshalling of assets in connection with
the exercise of any of the remedies permitted by applicable law or provided
herein.
22. COSTS OF COLLECTION. Borrower hereby agrees to pay to Lender all
costs of foreclosing the Mortgage, and all costs of enforcing, collecting and
securing, and of attempting to enforce, collect and secure, the Note, including,
without limitation, reasonable attorneys' fees, appraisers' fees, court costs,
notice charges and title insurance charges, whether such attempt be made by
suit, in bankruptcy, or otherwise, and such costs and any other sums due Lender
under the Loan Documents may be included in any judgment or decree rendered.
23. RENT ROLL AND FINANCIAL STATEMENTS. Borrower shall maintain full
and correct books and records open to Lender's inspection, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
24. HAZARDOUS SUBSTANCES. (a) Borrower hereby covenants and agrees with
Lender that the following terms shall have the following meanings:
(i) "Environmental Laws" mean all federal, state and
local laws, statutes, ordinances and codes relating to the use, storage,
treatment, generation, transportation, processing, handling, production or
disposal of any Hazardous Substance and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives with respect
thereto.
(ii) "Hazardous Substance" means, without limitation, any
flammable explosives, radioactive materials, asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, petroleum and petroleum
based products, methane, hazardous materials, hazardous wastes, hazardous or
toxic substances or related materials, as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Sections 2601, et seq.), or any
other applicable Environmental Law.
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<PAGE> 11
(iii) "Indemnitee" means Lender, and all subsequent
holders of the Mortgage, their respective successors and assigns, their
respective officers, directors, employees, agents, representatives, contractors
and subcontractors and any subsequent owner of the Property and Improvements who
acquires title thereto from or through Lender.
(iv) "Release" has the same meaning as given to that
term in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, et seq.) and the regulations
promulgated thereunder.
(b) Borrower represents and warrants to Lender that, to its knowledge
after due investigation: (i) the Property and Improvements are not being or have
not been used for the storage, treatment, generation, transportation,
processing, handling, production or disposal of any Hazardous Substance in
violation of any Environmental Laws; (ii) the Property and Improvements do not
contain any Hazardous Substances in violation of any Environmental Laws; (iii)
there has been no Release of any Hazardous Substance on, at or from the Property
and Improvements or any property adjacent to or within the immediate vicinity of
the Property and Improvements and Borrower has not received any form of notice
or inquiry with regard to such a Release or threat of such a Release; (iv) no
event has occurred with respect to the Property and Improvements which, with the
passage of time or the giving of notice, or both, would constitute a violation
of any applicable Environmental Law; (v) there are no agreements or orders or
directives of any federal, state or local governmental agency or authority
relating to the Property and Improvements which require any work, repair,
construction, containment, clean up, investigations, studies, removal or other
remedial action with respect to the Property and Improvements; and (vi) there
are no actions, suits, claims or proceedings, pending or threatened, which seek
any remedy, that arise out of the condition, ownership, use, operation, sale,
transfer or conveyance of the Property and Improvements and (1) a violation or
alleged violation of any applicable Environmental Law, (2) the presence of any
Hazardous Substance or a Release of any Hazardous Substance or the threat of
such a Release, or (3) human exposure to any Hazardous Substance.
(c) Borrower covenants and agrees with Lender as follows:
(i) Borrower shall keep, and shall cause all operators,
tenants, subtenants, licensees and occupants of the Property and Improvements to
keep, the Property and Improvements free of all Hazardous Substances, except for
Hazardous Substances stored, treated, generated, transported, processed,
handled, produced or disposed of in the normal operation of the Property and
Improvements as a shopping center in accordance with all Environmental Laws.
(ii) Borrower shall comply with, and shall cause all
operators, tenants, subtenants, licensee and occupants of the Property
and Improvements to comply with, all Environmental Laws.
(iii) Borrower shall promptly provide Lender with a copy
of all notifications which it gives or receives with respect to any
past or present Release of any Hazardous Substance or the threat of such a
Release on, at or from the Property and Improvements or any property adjacent to
or within the immediate vicinity of the Property and Improvements.
(iv) Borrower shall undertake and complete all
investigations, studies, sampling and testing for Hazardous Substances
reasonably required by Lender and, in accordance with all Environmental Laws,
all removal and other remedial actions necessary to contain, remove and clean up
all Hazardous Substances that are determined to be present at the Property and
Improvements in violation of any Environmental Laws.
(v) Lender shall have the right, but not the obligation,
to cure any violation by Borrower of the Environmental Laws and
Lender's cost and expense to so cure shall be secured by the Mortgage.
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<PAGE> 12
(d) Borrower covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Indemnitee
arising out of the condition, ownership, use, operation, sale, transfer or
conveyance of the Property and Improvements and (i) the storage, treatment
generation, transportation, processing, handling, production or disposal of any
Hazardous Substance, (ii) the presence of any Hazardous Substance or a Release
of any Hazardous Substance or the threat of such a Release, (iii) human exposure
to any Hazardous Substance, (iv) a violation of any Environmental Law, or (v) a
material misrepresentation or inaccuracy in any representation or warranty or
material breach of or failure to perform any covenant made by Borrower herein
(collectively, the "Indemnified Matters").
The liability of Borrower to Indemnitee hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (i) the repayment of all
sums and the satisfaction of all obligations of Borrower under the Note, the
Mortgage or other Loan Documents, (ii) the foreclosure of the Mortgage or the
acceptance of a deed in lieu thereof, (iii) any amendment or modification of the
Loan Documents by or for the benefit of Borrower or any subsequent owner of the
Property and Improvements, (iv) any extensions of time for payment or
performance required by any of the Loan Documents, (v) the release or discharge
of the Mortgage or of Borrower, any of the Guarantors or any other person from
the performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents whether by Lender, by
operation of law or otherwise, (vi) the invalidity or unenforceability of any of
the terms or provisions of the Loan Documents, (vii) any exculpatory provision
contained in any of the Loan Documents limiting Lender recourse to property
encumbered by the Mortgage or to any other security or limiting Lender rights to
a deficiency judgment against Borrower, (viii) any applicable statute of
limitations, (ix) the sale or assignment of the Note or the Mortgage, (x) the
sale, transfer or conveyance of all or part of the Property and Improvements,
(xi) the dissolution or liquidation of Borrower, (xii) the death or legal
incapacity of Borrower, (xiii) the release or discharge, in whole or in part, of
Borrower in any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding, or (xiv) any other
circumstances which might otherwise constitute a legal or equitable release or
discharge, in whole or in part, of Borrower under the Note or the Mortgage.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Borrower may have to Lender at common law.
25. SUBORDINATE MORTGAGES. Borrower shall not, without the prior
written consent of Lender, which consent may be withheld in Lender's sole
discretion, grant or permit to be created any lien, security interest or other
encumbrance, other than Permitted Encumbrances, covering any of the Mortgaged
Property (each a "Subordinate Mortgage"). If Lender consents to a Subordinate
Mortgage or if the foregoing prohibition is determined by a court of competent
jurisdiction to be unenforceable, any such Subordinate Mortgage shall contain
express covenants to the effect that:
(a) the lien of the Subordinate Mortgage and all instruments
incorporated therein by reference is and always shall be unconditionally
subordinate to the lien of the Mortgage and to all advances made pursuant to,
and sums secured by, the Mortgage, and the Mortgage and all instruments
incorporated herein by reference may be renewed, extended, restructured,
modified, increased or reinstated at any time without giving notice to or
obtaining the consent of the Subordinate Mortgage holder;
(b) if any action shall be instituted to foreclose or
otherwise enforce the Subordinate Mortgage, no tenant of any of the Leases shall
be named as a party defendant and no action shall be taken which would terminate
any occupancy or tenancy without the prior written consent of Lender;
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<PAGE> 13
(c) in the event of any conflict between the covenants and
agreements of the Mortgage and the Subordinate Mortgage, the covenants and
agreements of the Mortgage shall prevail;
(d) Rents, if collected by or for the holder of the
Subordinate Mortgage, shall be applied first to the payment of the Indebtedness
and expenses incurred in the ownership, operation and maintenance of the
Mortgaged Property in such order as Lender may determine, prior to being applied
to any indebtedness secured by the Subordinate Mortgage;
(e) a copy of any notice of default under the Subordinate
Mortgage and written notice and opportunity to cure of not less than thirty (30)
days prior to the commencement of any action to foreclose or otherwise enforce
the Subordinate Mortgage shall be given to Lender; and
(f) the holder of the Subordinate Mortgage shall acknowledge
the existence of the Indebtedness secured hereby and further acknowledge that
the lien of the Mortgage shall at all times be and remain superior and prior to
the lien of the Subordinate Mortgage to the extent of the entire Indebtedness
secured hereby, notwithstanding any change in the variable rate of interest
being charged under the Note.
26. PRIORITY OF MORTGAGE LIEN. Lender, at Lender's option, is
authorized and empowered to do all things provided to be done by a mortgagee
under Section 1311.14 of the Ohio Revised Code, and any present or future
amendments or supplements thereto, for the protection of Lender's interest in
the Mortgaged Property.
13
<PAGE> 14
27. NOTICE. All communications (including bank wire, telex, facsimile
transmission or similar writing) to be given hereunder shall be in writing and
shall be given as set forth below:
(1) If to Borrower, at the following address, or at such other
address as may have been furnished in writing to the Borrower
by the Lender:
Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
Telephone: (614) 621-2245 Ext. 330
Facsimile: (614) 621-8863
(2) If to Lender, at the following address, or at such other
address as may have been furnished in writing to the Borrower
by the Lender:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114-1306
Attention: Dan Heberle
Telephone: (216) 689-0801
Facsimile: (216) 689-4997
Each such notice or communication shall be effective (i) if given by
telecopy or facsimile, when such telecopy or facsimile is transmitted to the
facsimile number specified in this Section, (ii) if given by mail, seventy-two
(72) hours after such communication is deposited in the mail with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered at the address specified in this Section.
28. MISCELLANEOUS. The covenants herein contained shall bind, and the
benefits and advantages shall inure to, the respective successors and assigns of
the parties hereto. Whenever used, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all genders.
The captions used herein are for references only and shall not be deemed a part
of this Mortgage. If any provision of the Mortgage is illegal, or hereafter
rendered illegal, or is for any other reason void, voidable or otherwise
unenforceable, or hereafter rendered void, voidable or otherwise unenforceable,
the remainder of the Mortgage shall not be affected thereby, but shall be
construed as if it does not contain such provision. Each right and remedy
provided in the Mortgage is distinct and cumulative to all other rights or
remedies under the Mortgage or afforded by law or equity, and may be exercised
concurrently, independently or successively, in any order whatsoever. The
Mortgage shall be governed by and construed under the laws of the State of Ohio.
29. ADVANCES. (a) Borrower and Lender intend that this Mortgage shall
secure the unpaid balance of loan advances made by the holder hereof after this
Mortgage is delivered to the county recorder for record to the fullest extent
and with the highest priority contemplated by Section 5301.232 of the Ohio
Revised Code. The maximum amount of all loan advances, in the aggregate and
exclusive of interest accrued thereon and protective advances made as
contemplated in subsection (b) below and in Section 5301.233 of the Ohio Revised
Code, which may be outstanding at any time, is Twenty-Four Million Three Hundred
Seventy-Five Thousand Dollars ($24,375,000.00). If and to the extent applicable,
Borrower hereby waives any right it may have under Section 5301.232(c) of the
Ohio Revised Code.
(b) In addition to the loan advances referred to in subsection (a)
above, Lender shall have the right, but not the obligation, to make protective
advances with respect to the Mortgaged Property for the payment of taxes,
assessments, insurance premiums, repairs, maintenance and other costs incurred
in the protection of the Mortgaged Property as contemplated by Section 5301.233
of the Ohio Revised Code, and such protective advances, together with interest
thereon at the Default Rate
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<PAGE> 15
from the date of each such advance until it is repaid in full, shall be secured
by this Mortgage to the fullest extent and with the highest priority
contemplated by said Section 4301.233.
THE PARTIES ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE
BETWEEN THE PARTIES, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS
MORTGAGE ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY.
ACCORDINGLY, EACH OF THE PARTIES TO THIS MORTGAGE HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO THIS
MORTGAGE.
PROVIDED, HOWEVER, that these presents are upon the condition that if
Borrower shall fully and promptly pay when due the Indebtedness and shall
completely, faithfully and punctually perform all of the Obligations under the
terms and conditions of the Loan Documents, then the Mortgage shall be void;
otherwise it shall remain in full force and effect in law and equity forever.
IN WITNESS WHEREOF, Borrower has caused the Mortgage to be executed
this ______ day of June, 1999.
Signed and acknowledged Borrower:
in the presence of: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
/s/ Laurie Fronek By: Glimcher Properties Corporation,
- -------------------------------- a Delaware corporation,
Witness its sole General Partner
-----------------------
(printed)
/s/ Jane B. Gaines By: /s/ William G. Cornely
- -------------------------------- -------------------------------
Witness William G. Cornely, Executive
------------------------ Vice President/COO/CFO
(printed)
15
<PAGE> 16
STATE OF OHIO )
)SS:
COUNTY OF FRANKLIN )
On this ______ day of June, 1999, before me, a Notary Public in and for
said County and State, personally appeared William G. Cornely, who acknowledged
himself to be the Executive Vice President/COO/CFO of GLIMCHER PROPERTIES
CORPORATION, a Delaware corporation, the sole general partner of GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, the Delaware limited partnership which executed
the foregoing instrument, and who acknowledged that he, as such officer of said
corporation, being duly authorized by the board of directors of said
corporation, did execute the foregoing instrument for and on behalf of said
limited partnership and that such signing is the free act and deed of said
limited partnership for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Jane B. Gaines
-------------------------------------
Notary Public
Commission Expiration: Nov. 1, 2002
--------------
This instrument prepared by:
David W. Salisbury
Thompson Hine & Flory LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114
16
<PAGE> 17
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL I - Fee Simple:
Situated in the State of Ohio, County of Gallia, City of Gallipolis, Section 17
and Section 23, Township 3, Range 14, Ohio Company Purchase, and being 22.307
acres of land out of that 25.309 acre tract of land as conveyed in a deed to
Ohio River Plaza Associates Limited Partnership, of record in Deed Book 274,
Page 257 (all references herein are to the records located in the Recorder's
Office, Gallia County, Ohio) said 22.307 acres being more particularly described
as follows:
Beginning, for reference in the centerline of State Route 7 at the most
Northerly corner of the above mentioned 25.309 acre tract; thence South
43(Degree) 01' 41" West, with said centerline, a distance of 355.00 feet to the
True Place of Beginning;
Thence South 46(Degree) 58' 19" East, through said 25.309 acre tract, a distance
of 422.04 feet to a point in the Easterly line of same and in the centerline of
Township Road 11;
Thence South 3(Degree) 13' 44" West, with said Easterly line and said
centerline, a distance of 849.81 feet to the Southeasterly corner of said 25.309
acre tract;
Thence South 65(Degree) 45' 40" West with the Southerly line of said 25.309 acre
tract, a distance of 987.62 feet to the Southwesterly corner of same;
Thence North 28(Degree) 23' 39" West, with a Westerly line of said 25.309 acre
tract, a distance of 225.00 feet to the Southwesterly corner of Lot 79 of East
Gallipolis, a subdivision of record in Plat Book 2, Page 82.
Thence North 53(Degree) 36' 21" East, with the Southerly line of said Lot 79, a
distance of 50.00 feet to the Southeasterly corner of same;
Thence North 36(Degree) 23' 39" West, with the Easterly line of said Lot 79, a
distance of 130.00 feet to the Northeasterly corner of same and in the Southerly
right-of-way line of Ohio Avenue, 60 feet in width;
Thence North 53(Degree) 36' 21" East, with said right-of-way line, a distance of
188.23 feet to the intersection of the Easterly right-of-way line of Bell
Avenue, 60 feet in width;
Thence North 2(Degree) 16' 56" East, with said Easterly right-of-way line a
distance of 478.75 feet to a point at the Northwesterly corner of said 25.309
acre tract and in the centerline of State Route 7;
Thence with the centerline of said State Route 7, with the arc of a curve to the
left, having a radius of 2864.79 feet, a central angle of 3(Degree) 57' 09", the
chord of which bears North 48(Degree) 41' 49" East, a chord distance of 197.58
feet to a point;
Thence again through said 25.309 acre tract the following three courses:
1. South 46(Degree) 58' 19" East, a distance of 240.51 feet to a
point;
2. North 43(Degree) 01' 41" East, a distance of 140.00 feet to a
point;
3. North 46(Degree) 58' 19" West, a distance of 234.91 feet to
a point in the centerline of State Route 7, the Northerly line
of said 25.309 acre tract;
Thence along said centerline and said Northerly line with the arc of a curve to
the left, having a radius of 2864.79 feet, a central angle of 0(Degree) 53' 24",
the chord of which bears North 43(Degree) 28' 23" East, a chord distance of
44.50 feet to the point of tangency;
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<PAGE> 18
Thence North 43(Degree) 01' 41" East, continuing along said centerline and said
Northerly line, a distance of 490.26 feet to the True Place of Beginning, and
containing 22.307 acres of land, more or less. The bearings herein are based on
State Route 7 as delineated on the State of Ohio Department of Transportation
plans designated GAL-7-23.84.
PARCEL II - Easement:
Together with a perpetual, nonexclusive Storm Drainage Easement which
constitutes rights in real property created, defined and limited over certain
premises owned by James W. Price, Inc., created in Deed from James W. Price,
Inc., a West Virginia corporation, to Ohio River Plaza Associates Limited
Partnership, an Ohio limited partnership, dated October 21, 1988 and recorded
October 25, 1988 in Deed Volume 274, Page 257, of the Gallia County Records,
Ohio
PARCEL III - Easement:
Together with those rights and easements constituting rights in real property
created, defined and limited by that certain Declaration of Restrictions and
Ingress, Egress and Utility Easement by Ohio River Valley Plaza Associates
Limited Partnership, an Ohio limited partnership, dated October 21, 1988 and
recorded October 25, 1988 in Deed Volume 274, Page 261, of the Gallia County
Records, Ohio.
Prior Deed Reference: Volume ____, Page ____, Gallia County, Ohio Records.
2
<PAGE> 19
EXHIBIT "B"
PERMITTED EXCEPTIONS
1. Taxes for the year 1999 and subsequent years, which are not yet
determined, due and payable. (As to all Parcels)
As to Parcel 1: (Fee Simple)
2. Overhead and underground electric lines, telephone lines, water lines,
gas line, storm sewer lines and sanitary sewer line as shown on a
survey dated October 31, 1989 prepared by Robert W. Wynd, Registered
Surveyor #6872 with M-E Building Consultants, Inc.
3. That portion of premises described herein lying within the bounds of
State Route 7 and Township Road 11 is subject to the rights of the
public to use same for road purposes.
4. Easement from James W. Price and Estelle E. Price, his wife, to
Columbus and Southern Ohio Electric Company, dated January 13, 1969 and
recorded February 11, 1969 in Deed Volume 179, Page 401, of the Gallia
County Records, Ohio.
5. Easement for Channel Purposes from James W. Price, Inc., to the State
of Ohio, dated October 2, 1986 and recorded October 14, 1986 in Deed
Volume 264, Page 349, of the Gallia County Records, Ohio.
6. Declaration of Restrictions and Ingress, Egress and Utility Easement by
Ohio River Valley Plaza Associates Limited Partnership, an Ohio limited
partnership, dated October 21, 1988 and recorded October 25, 1988 in
Deed Volume 274, Page 261, of the Gallia County Records, Ohio.
7. Right of Way and Easement from Ohio River Plaza Associates, an Ohio
Limited Partnership, to Columbia Gas of Ohio, Inc., dated May 3, 1989
and recorded July 19, 1989 in Deed Volume 277, Page 705, of the Gallia
County Records, Ohio.
8. Right of Way and Easement from Ohio River Plaza Associates Limited
Partnership, David J. Glimcher, General Partner, to Columbus Southern
Power Company, dated June 30, 1989 and recorded August 8, 1989 in Deed
Volume 278, Page 77, of the Gallia County Records, Ohio.
9. Right of Way and Easement from Ohio River Plaza Associates Limited
Partnership, David Glimcher, General Partner, to Columbus Southern
Power Company, dated April 20, 1990 and recorded May 25, 1990 in Deed
Volume 281, Page 823, of the Gallia County Records, Ohio.
10. Right of Way and Easement from Ohio River Plaza Associates Limited
Partnership, to Columbia Gas of Ohio, Inc., dated November 21, 1990 and
recorded December 12, 1990 in Deed Volume 285, Page 365, of the Gallia
County Records, Ohio.
11. Tenants as tenants only under any and all unrecorded leases.
12. Memorandum of Lease by and between Ohio River Plaza Associates Limited
Partnership, an Ohio limited partnership, Landlord, and Hills Stores
Company, a Delaware corporation, Tenant, dated October 21, 1988 and
recorded October 25, 1988 in Lease Volume 50, Page 811, of the Gallia
County Records, Ohio.
13. Short Form Lease by and between Ohio River Plaza Associates Limited
Partnership, an Ohio limited partnership, Landlord, and J. C. Penney
Company, Inc., a Delaware corporation, Tenant, dated June 15, 1989 and
recorded August 17, 1989 in Lease Volume 51, Page 335, Term Agreement
by and between Ohio River Plaza Associates Limited Partnership, an Ohio
1
<PAGE> 20
limited partnership, Landlord and J. C. Penney Company, Inc., a
Delaware corporation, Tenant, dated December 7, 1990 and recorded
January 10, 1991 in Lease Volume 52, Page 117, Memorandum of Lease
Extension Agreement by and between Glimcher Properties Limited
Partnership, a Delaware limited partnership, Landlord, and J. C. Penney
Company, Inc., a Delaware corporation, Tenant, dated May 13, 1994 and
recorded August 15, 1994 in Lease Volume 53, Page 249, all of the
Gallia County Records, Ohio.
14. Memorandum of Lease by and between Ohio River Plaza Associates Limited
Partnership, an Ohio limited partnership, Lessor, and Big Bear Stores
Company, a Delaware corporation, Lessee, dated August 15, 1988 and
recorded March 27, 1992 in Lease Volume 52, Page 401, of the Gallia
County Records, Ohio.
As to Parcel II: (Easement)
15. Terms and Conditions of Easement as contained in the Deed from James W.
Price, Inc., a West Virginia corporation, to Ohio River Plaza
Associates Limited Partnership, an Ohio limited partnership, dated
October 21, 1988 and recorded October 25, 1988 in Deed Volume 274, Page
257, of the Gallia County Records, Ohio.
As to Parcel III: (Easement)
16. Easement from James W. Price and Estelle E. Price, his wife; to
Columbus and Southern Ohio Electric Company, dated January 13, 1969 and
recorded February 11, 1969 in Deed Volume 179, Page 401, of the Gallia
County Records, Ohio.
17. Terms and Conditions of Easement as contained in Declaration of
Restrictions and Ingress, Egress and Utility Easement by Ohio River
Valley Plaza Associates Limited Partnership, an Ohio limited
partnership, dated October 21, 1988 and recorded October 25, 1988 in
Deed Volume 274, Page 261, of the Gallia County Records, Ohio.
2
<PAGE> 1
Exhibit 10.93
Credit Line
A /DEED OF TRUST, ASSIGNMENT OF RENTS
-------------------------------------
AND SECURITY AGREEMENT
----------------------
Credit Line
THIS /DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (herein
"Deed of Trust") is made this _____ day of June, 1999, between GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware Limited Partnership, whose address is
20 South Third Street, Columbus, Ohio 43215 (herein "Trustor/Grantor"), John T.
Poffenbarger, whose address is 515 Bank One Center, Charleston, Kanawha County,
West Virginia (herein "Trustee"), and KEYBANK NATIONAL ASSOCIATION, a national
banking association, having an office at 127 Public Square, Cleveland, Ohio
44114 Attention: Renee Rush Csuhran ("Beneficiary").
TRUSTOR, in consideration of the sum of Twenty-Four Million Three
Hundred Seventy-Five Thousand Dollars ($24,375,000.00) and the trust herein
created, irrevocably grants, bargains, sells, pledges, assigns, warrants,
transfers and conveys to Trustee and Trustee's successors and assigns, in trust,
with power of sale, the following property, rights, interests and estates now
owned, or hereafter acquired by Borrower: (a) the real estate described in
Exhibit "A" attached hereto and incorporated herein by this reference, (the
"Property"); (b) all improvements now or hereafter attached to or placed,
erected, constructed or developed on the Property (collectively the
"Improvements"); (c) all fixtures, furnishings, equipment, inventory, and other
articles of personal property (collectively the "Personal Property") that are
now or hereafter attached to or used in or about the Improvements or that are
necessary or useful for the complete and comfortable use and occupancy of the
Improvements for the purposes for which they were or are to be attached, placed,
erected, constructed or developed or that may be used in or related to the
planning, development, financing or operation of the Improvements, and all
renewals of or replacements or substitutions for any of the foregoing, whether
or not the same are or shall be attached to the Improvements or the Property;
(d) all water and water rights, timber, crops, and mineral interests pertaining
to the Property; (e) all building materials and equipment now or hereafter
delivered to and intended to be installed in or on the Improvements or the
Property; (f) all plans and specifications for the Improvements; (g) all
contracts relating to the Property, the Improvements or the Personal Property;
(h) all deposits (including, without limitation, tenants' security deposits),
bank accounts, funds, documents, contract rights, accounts, commitments,
construction agreements, architectural agreements, general intangibles
(including, without limitation, trademarks, trade names and symbols),
instruments, notes and chattel paper arising from or by virtue of any
transactions related to the Property, the Improvements or the Personal Property;
(i) all permits, licenses, franchises, certificates, and other rights and
privileges obtained in connection with the Property, the Improvements or the
Personal Property; (j) all proceeds arising from or by virtue of the sale, lease
or other disposition of the Property, the Improvements, the Personal Property or
any portion thereof or interest therein; (k) all proceeds (including, without
limitation, premium refunds) of each policy of insurance relating to the
Property, the Improvements or the Personal Property; (l) all proceeds from the
taking of any of the Property, the Improvements, the Personal Property or any
rights appurtenant thereto by right of eminent domain or by private or other
purchase in lieu thereof (including, without limitation, change of grade of
streets, curb cuts or other rights of access), for any public or quasi-public
use under any law; (m) all right, title and interest of Trustor in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Property; (n) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (o) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (p) other interests of every kind and character
that Trustor now has or at any time hereafter acquires in and to the Property,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Trustor with respect thereto (all of
the same, including the Property, collectively the "Trust Property").
<PAGE> 2
TO HAVE AND TO HOLD the Trust Property, together with the rights,
privileges and appurtenances thereto belonging, unto Beneficiary and its
successors and assigns forever, and Trustor hereby binds itself and its
successors and assigns to warrant and forever defend the Trust Property unto
Beneficiary and its successors and assigns, against the claim or claims of all
persons claiming or to claim the same or any part thereof, except rights of
tenants in possession under written leases, current real estate taxes and
assessments, and those matters set forth on EXHIBIT B ("Permitted Exceptions").
FOR THE PURPOSE OF SECURING: the full and prompt payment, whether at
stated maturity, accelerated maturity or otherwise, of any and all indebtedness,
whether fixed or contingent, and whether advanced before, in connection with or
after the recording of this Deed of Trust (collectively the "Indebtedness") and
the complete, faithful and punctual performance of any and all other obligations
(collectively the "Obligations") of Trustor under the terms and conditions of
(a) that certain Loan Agreement among Trustor, Glimcher Properties Corporation
and Beneficiary, of even date herewith; (b) the Note made by Trustor pursuant to
the Loan Agreement, not to exceed in the aggregate the principal amount of
Twenty-Four Million Three Hundred Seventy-Five Thousand Dollars ($24,375,000),
payable not later than June 17, 2000, and any and all renewals, amendments,
modifications, reductions and extensions thereof and substitutions therefor (the
"Note"); (c) the Deed of Trust; and (d) any other instrument, document,
certificate or affidavit heretofore, now or hereafter given by Trustor
evidencing or securing all or any part of the foregoing (the same together with
the Loan Agreement, the Notes and the Deed of Trust, collectively the "Loan
Documents").
Trustor, for itself and its successors and assigns, hereby covenants
with Beneficiary, its successors and assigns, that:
1. TITLE. Trustor covenants that it is lawfully seized of the Trust
Property and has the right to mortgage, grant, convey and assign the Trust
Property and that the same is unencumbered except for the Permitted Exceptions
and that except as aforesaid it will warrant and defend generally the title to
the Trust Property. If the interest of Beneficiary or Trustee in the Trust
Property or any part thereof shall be endangered or shall be attacked, directly
or indirectly, Trustor hereby authorizes Beneficiary, at Trustor's expense, to
take all necessary and proper steps for the defense of such interest, including
the employment of counsel, the prosecution or defense of litigation and the
compromise or discharge of claims made against such interest. Any sums so
expended by Beneficiary shall be charged against Trustor and collectible in
accordance with the terms of Section 10 hereof.
2. FURTHER ASSURANCES. Trustor, upon the request of Beneficiary, shall
execute, acknowledge, deliver, file and record such further instruments and do
such further acts as may be necessary, desirable or proper to carry out the
purposes of the Loan Documents and to subject to the liens and security
interests created thereby any property intended by the terms thereof to be
covered thereby, including specifically, but without limitation, any renewals,
additions, substitutions, replacements, improvements or appurtenances to the
Trust Property.
3. SUBROGATION FOR FURTHER SECURITY. Beneficiary shall be subrogated
for its further security to the lien, although released of record, of any and
all encumbrances paid with any advance of Indebtedness; provided, however, that
the terms and provisions hereof shall govern the rights and remedies of
Beneficiary and shall supersede the terms, provisions, rights, and remedies
under the lien or liens to which Beneficiary is subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Beneficiary, which consent may be withheld in Beneficiary's
sole discretion, Trustor shall not (a) sell, assign, mortgage, pledge, lease
(except for leases of storerooms in the ordinary course of business) or
otherwise convey or further encumber the Trust Property, or any portion thereof,
or legal, equitable or beneficial interest therein; (b) sell, assign, pledge or
otherwise transfer any beneficial interests in Trustor which individually or in
the aggregate would have the effect of transferring the power to direct the
operations of Trustor or the Trust Property; (c) contract for any
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<PAGE> 3
of the same; (d) permit the Trust Property, or any portion thereof, or legal,
equitable or beneficial interest therein, to be subject to any superior or
inferior lien or encumbrance except as provided in the Permitted Encumbrances;
(e) subdivide, resubdivided or submit to the condominium form of ownership all
or any portion of the Trust Property, or any portion thereof; or (f) initiate or
acquiesce in any change in the zoning classification of the Property or any
portion thereof.
5. TAXES AND OTHER IMPOSITIONS. Trustor shall promptly pay before
delinquency all taxes, assessments, charges, fines or impositions, general,
local or special (collectively the "Impositions"), levied upon the Trust
Property, or any part thereof, or upon Beneficiary's interest therein, or upon
the Deed of Trust or the Indebtedness, by any duly or legally constituted public
authority, municipality, township, county or state or the United States, and
upon request, will provide evidence of the payment thereof to Beneficiary;
provided that Trustor, at Trustor's own cost and expense may, if it shall in
good faith so desire, contest the validity or amount of any Impositions, in
which event Trustor may defer the payment thereof for such period as such
contest shall be actively prosecuted and shall be pending undetermined; further
provided, however, that Trustor shall not allow any such Impositions so
contested to remain unpaid for such length of time as shall permit all or any
portion of the Trust Property, or the lien thereon created by such item, to be
sold by federal, state, county or municipal authority for the nonpayment
thereof. Pending any such contest, Trustor shall maintain adequate book reserves
with respect to such Impositions being contested.
In the event that one or more of the Impositions on Beneficiary's
interest in the Trust Property, the Deed of Trust or the Indebtedness cannot be
lawfully paid by Trustor, then the Trust Property shall be withdrawn from the
Collateral Pool (as such team is defined in the Loan Agreement). In the event
the withdrawal of the Trust Property from the Collateral Pool causes Trustor not
to be in compliance with the required loan to value ratio under the Loan
Agreement, Trustor may either furnish substitute property, as provided in the
Loan Agreement, or pay down the Indebtedness in an amount which will bring the
loan to value ratio into compliance.
6. INSURANCE AND INDEMNIFICATION. Trustor shall provide, maintain and
keep in force at all times the following policies of insurance:
(a) Insurance against loss or damage to the Improvements and
the Personal Property caused by fire and any of the risks covered by insurance
of the type now known as "coverage against all risks of physical loss", in an
amount equal to one hundred percent (100%) of the replacement cost of the
Improvements and the Personal Property and sufficient to prevent Trustor and
Beneficiary from becoming co-insurers, and otherwise with terms and conditions
acceptable to Beneficiary;
(b) Comprehensive broad form general liability insurance,
insuring against any and all claims for personal injury, death or property
damage occurring on, in or about the Property, the Improvements and the
adjoining streets, sidewalks and passageways, subject to a combined single limit
of not less than Two Million Dollars ($2,000,000.00) for personal injury, death
or property damage arising out of any one accident and a general aggregate limit
of not less than Five Million Dollars ($5,000,000.00), and otherwise with terms
and conditions acceptable to Beneficiary;
(c) Worker's compensation insurance (including employer's
liability insurance, if available and requested by Beneficiary) for all
employees of Trustor engaged on or with respect to the Property and the
Improvements in the limits established by law or, if limits are not so
established, in such amounts as are acceptable to Beneficiary;
(d) During the course of any development or construction of
the Improvements, builder's completed value risk insurance against "all risks of
physical loss", including collapse and transit coverage, in the amounts set
forth in Subsection 8(a) above, and otherwise with terms and conditions
acceptable to Beneficiary;
(e) Upon obtaining a certificate of occupancy for the
Improvements or any portion thereof, business interruption insurance and/or loss
of "rental value" insurance in an amount
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<PAGE> 4
not less than the appraised rentals for the Trust Property for a minimum of
twelve (12) months, and otherwise with terms and conditions acceptable to
Beneficiary;
(f) If the Improvements are located in a federally-designated
flood hazard area, then flood hazard coverage, in the maximum amount available
and otherwise with terms and conditions acceptable to Beneficiary; and
(g) Such other insurance coverage, and in such amount, as may
from time to time be required by Beneficiary against the same or other hazards.
All such policies shall be in a form acceptable to Beneficiary. Each
policy of casualty insurance shall contain a mortgagee clause, substantially in
the form of the standard New York mortgagee clause or otherwise acceptable to
Beneficiary, showing Beneficiary as loss payee. Each policy of liability
insurance shall show Beneficiary as an additional insured. Unless the policy so
provides, each policy of insurance required by the terms of the Deed of Trust
shall contain an endorsement by the insurer, for the benefit of Beneficiary, (i)
that any loss shall be payable in accordance with the terms of such policy
notwithstanding any act or negligence of Trustor which might otherwise result in
forfeiture of said insurance, (ii) that any rights of set-off, counterclaim or
deductions against Trustor are waived and (iii) that such policy shall not be
canceled or changed except upon not less than thirty (30) days prior written
notice delivered to Beneficiary.
All such insurance policies and renewals thereof shall be written by
companies with a BEST'S INSURANCE REPORTS policy holders rating of A and a
financial size category of Class X or be expressly approved by Beneficiary in
writing.
Beneficiary shall have the right to hold the policies, or certificates
thereof acceptable to Beneficiary with certified copies of the policies, and
Trustor shall promptly furnish to Beneficiary all renewal notices and all
receipts of paid premiums. At least thirty (30) days prior to the expiration
date of any such policy, Trustor shall deliver to Beneficiary a renewal policy,
or certificate thereof, in form acceptable to Beneficiary.
If Beneficiary is made a party defendant to any litigation concerning
the Loan Documents or the Trust Property or any part thereof or interest therein
or the occupancy thereof by Trustor, then Trustor shall indemnify, defend and
hold Beneficiary harmless from all liability by reason of said litigation,
including reasonable attorneys' fees and expenses incurred by Beneficiary in any
such litigation, whether or not any such litigation is prosecuted to judgment.
Trustor waives any and all right to claim or recover against Beneficiary, its
officers, employees, agents and representatives, for loss of or damage to
Trustor, the Trust Property, other property of Trustor or the property of others
under control of Trustor from any cause insured against or required to be
insured against by the provisions of the Deed of Trust.
Trustor shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section unless Beneficiary has approved the insurance company and the form and
content of the insurance policy, including, without limitation, the naming
thereon of Beneficiary as a named insured with loss payable to Beneficiary under
a standard mortgage clause of the character above described. Trustor shall
immediately notify Beneficiary whenever any such separate insurance is taken out
and shall promptly deliver to Beneficiary copies of the policies and
certificates evidencing such insurance.
Nothing contained in this Section 6 shall prevent Trustor from keeping
the Improvements and Personal Property insured or causing the same to be insured
against the risks referred to in this Section 6 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Deed of Trust; provided, however, that any such policy of blanket insurance (i)
shall specify therein the amount of the total insurance allocated to the
Improvements and Personal Property, which amount shall be not less than the
amount otherwise required to be carried under the Deed of Trust; (ii) shall not
contain any clause which would result in the insured thereunder
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<PAGE> 5
becoming a co-insurer of any loss with the insurer under such policy; and (iii)
shall in all other respects comply with the provisions of the Deed of Trust.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Trustor, and used
by Trustor to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Trustor should elect option (ii) above, if a material decrease in the fair
market value of the Trust Property is indicated, Beneficiary shall be entitled,
at its option, to cause the Trust Property to be reappraised at Trustor's
expense to satisfy itself of continued compliance by Trustor with the loan to
value ratio required by the Loan Agreement. In the event the results of such
reappraisal causes Trustor not to be in compliance with the required loan to
value ratio, Trustor may either furnish substitute property, as provided for in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Beneficiary as escrow agent for the purpose of repairing, restoring or
reconstructing the Improvements. Such proceeds shall be disbursed by Beneficiary
as work progresses, provided that prior to any disbursement, Beneficiary is in
receipt of proof reasonably satisfactory to it that: (i) the work has been
completed, (ii) there are no outstanding mechanics liens or materialmen's liens,
and (iii) that all charges, costs and expenses incurred with respect to work
completed have been paid in full or will be paid in full with such proceeds.
Prior to the release of any proceeds, Beneficiary must be satisfied that repair,
restoration or reconstruction of the damaged or destroyed Improvements will be
substantially equal in size, quality and value to the Improvements then
presently erected on the Trust Property as existed immediately prior to the loss
and the plans and specifications therefor must be approved by Beneficiary. In
the event Beneficiary believes it is necessary in order to establish value,
Beneficiary may, at its option, cause the Trust Property to be reappraised at
Trustor's expense. All insurance proceeds shall be payable to Beneficiary. The
adjustment of such insurance proceeds with the carrier must be approved by
Beneficiary.
Anything in this Section 6 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Beneficiary, be applied by Beneficiary to the
Indebtedness in such order as Beneficiary may determine.
7. ESCROW. Trustor, in order to more fully protect the security of the
Deed of Trust, does hereby covenant and agree that, if Trustor shall fail to
timely pay taxes, assessments or insurance premiums as provided above, or in the
event of any other default and Beneficiary does not then elect to exercise its
other remedies, then Trustor shall, upon request of Beneficiary, pay to
Beneficiary on the first day of each month, until the Indebtedness is fully
paid, a sum equal to one-twelfth (1/12) of the known or estimated yearly taxes,
assessments, premiums for such insurance as may be required by the terms hereof.
Beneficiary shall hold such monthly payments which may be mingled with its
general funds, without obligation to pay interest thereon, unless otherwise
required by applicable law, to pay such taxes, assessments, and insurance
premiums when due. Trustor agrees that sufficient funds shall be so accumulated
for the payment of said charges one (1) month prior to the due date thereof and
that Trustor shall furnish Beneficiary with proper statements covering the same
fifteen (15) days prior to the due dates thereof. In the event the Trust
Property is sold pursuant to the power of sale contained herein, or if
Beneficiary should take a deed in lieu thereof, the amount so accumulated shall
be credited on account of the unpaid principal or interest. If the total of the
monthly payments as made under this Section 7 shall exceed the payments actually
made by Beneficiary, such excess shall be credited on subsequent monthly
payments of the same nature, but if the total of such monthly payments so made
under this Section 7 shall be insufficient to pay such taxes, assessments, and
insurance premiums then due, then said Trustor shall pay upon demand the amount
necessary to make up the deficiency, which payments shall be secured by the
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<PAGE> 6
Deed of Trust. To the extent that all the provisions of this Section 7 for such
payments of taxes, assessments, and insurance premiums to Beneficiary, are
complied with, Trustor shall be relieved of compliance with the covenants
contained in Sections 5 and 6 herein as to the amounts paid only, but nothing
contained in this Section 7 shall be construed as in any way limiting the rights
of Beneficiary at its option to pay any and all of said items when due.
8. WASTE; REPAIR. Trustor shall neither commit nor permit any waste on
the Trust Property and shall keep all Improvements now or hereafter erected on
the Property in good condition and repair.
9. ALTERATIONS; CONSTRUCTION. Trustor shall have the right to remove,
demolish or alter any of the Improvements, now existing or hereafter constructed
on the Property, or any of the Personal Property in or on the Property or
Improvements, to the extent that the value of same is not diminished. If
Beneficiary believes that there has been a material decrease in value following
any such removal, demolition, or alteration, it may, at its option, cause the
Trust Property to be reappraised at Trustor's expense.
10. ADVANCES SECURED BY DEED OF TRUST. Upon failure of Trustor to
comply with any of these covenants and agreements as to the payment of taxes,
assessments, insurance premiums, repairs, protection of the Trust Property or
Beneficiary's lien thereon, and other charges and the costs of procurement of
title evidence and insurance as aforesaid, Beneficiary may, at its option, pay
the same, and any sums so paid by Beneficiary, together with the reasonable fees
of counsel employed by Beneficiary in consultation and in connection therewith,
shall be charged against Trustor, shall be immediately due and payable by
Trustor shall bear interest at the Default Rate of Interest (as defined in the
Note) and shall be a lien upon the Trust Property and be secured by the Deed of
Trust and may be collected in the same manner as the principal debt hereby
secured.
11. USE. Unless Beneficiary otherwise agrees in writing, Trustor shall
not allow changes in the nature of the occupancy for which the Property and
Improvements were intended at the time the Deed of Trust was executed. Trustor
shall comply with the laws, ordinances, rules, regulations and requirements of
any governmental body applicable to the Trust Property, both during the
construction of any Improvements on the Property and subsequent to the
completion thereof, and Trustor shall not permit the use thereof for any illegal
purpose.
12. INSPECTION. Any person authorized by Beneficiary shall have the
right to enter upon and inspect the Trust Property after reasonable notice to
Trustor and during normal business hours. Beneficiary shall have no duty,
however, to make such inspections. Any inspection of the Trust Property by
Beneficiary shall be entirely for its benefit, and Trustor shall in no way rely
or claim reliance thereon.
13. MINERALS. Without the prior written consent of Beneficiary, except
as provided in the Permitted Exceptions, there shall be no drilling or exploring
for, or extraction, removal, or production of, minerals from the surface or
subsurface of the Trust Property. The term "minerals" as used herein shall
include, without limitation, oil, gas, casinghead gas, coal, lignite,
hydrocarbons, methane, carbon dioxide, helium, uranium and all other natural
elements, compounds and substances, including sand and gravel.
14. CONDEMNATION. If all the Trust Property and Improvements are taken
or acquired in any condemnation proceeding or by exercise of the right of
eminent domain or, with Beneficiary's consent, by any conveyance in lieu
thereof, the amount of any award or other payment for such taking, or conveyance
or damages made in consideration thereof, to the extent of the full amount of
the then remaining unpaid Indebtedness, is hereby assigned to Beneficiary, and
Beneficiary is empowered to collect and receive the same and to give proper
receipts therefor in the name of Borrower, and the same shall be paid forthwith
to Beneficiary. Such award or payment so received by Beneficiary shall be
applied to the Indebtedness (whether or not then due and payable).
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In the event a portion of the Improvements or Property are acquired in
any condemnation proceeding or by the exercise of the right of eminent domain,
to the extent that the damage to the Property or improvements is in the amount
of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the proceeds of any such condemnation or eminent domain
award shall be paid to Trustor, who shall use such proceeds as provided for in
paragraph 6 hereof with respect to the disbursement of insurance proceeds where
the damage or destruction is in an amount of $500,000.00 or less. The provisions
of paragraph 6 with respect to reappraisal and substitute property where there
is damage or destruction in an amount of $500,000.00 or less shall apply as if
fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with Beneficiary as escrow agent for the purpose of
repairing, restoring, or reconstructing the Improvements and/or Property, and
shall be disbursed by Beneficiary in accordance with the provisions of paragraph
6 hereof with respect to the disbursement of insurance proceeds, where the
damage or destruction is in an amount of $500,000.00 or greater. The conditions
to disbursement, including the requirement that Beneficiary be satisfied that
the repaired or restored Improvements would be equal in size, quality and value
to those which existed previously, and the right to cause the Trust Property to
be reappraised, as provided for where there is damage or destruction of
$500,000.00 or greater, shall be applicable as if fully rewritten.
Anything in this Section 14 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Beneficiary,
be applied by Beneficiary to the Indebtedness in such order as Beneficiary may
determine.
15. ASSIGNMENT OF RENTS AND LEASES.
(a) Trustor hereby absolutely and unconditionally assigns,
transfers and sets over unto Beneficiary and Beneficiary's successors and
assigns all present and future leases covering all or any part of the Trust
Property (the "Leases"), together with any extensions or renewals thereof and
any guaranties of any tenants' obligations thereunder, and all of the rents,
royalties, bonuses, income, receipts, revenues, issues and profits now due or
which may hereafter become due under the Leases or any extensions or renewals
thereof, as well as all moneys due and to become due to Trustor under the Leases
for services, materials or installations supplied whether or not the same were
supplied under the terms of the Leases, all liquidated damages following default
under the Leases and all proceeds payable under any policy of insurance covering
loss of rents resulting from untenantability caused by damage to any part of the
Trust Property (such rents, income, receipts, revenues, issues, profits and
other moneys assigned hereby are hereinafter collectively called "Rents"),
together with any and all rights and remedies which Trustor may have against any
tenant under any of the Leases or others in possession of the Trust Property or
any part thereof for the collection or recovery of Rents so assigned. Prior to
an Event of Default, as hereinafter defined, Trustor shall have a license to
collect and receive all Rents as trustee for the benefit of Beneficiary and
Trustor.
(b) Trustor hereby represents, warrants and agrees that:
(i) Trustor has good title to the Leases and Rents
hereby assigned and has the right, power and capacity to make this assignment.
No person or entity other than Trustor has or will have any right, title or
interest in or to the Leases or Rents.
(ii) Trustor shall, at Trustor's sole cost and
expense, perform and discharge all of the obligations and undertakings of the
landlord under the Leases and give prompt notice to Beneficiary of any failure
to do so. Trustor shall use all reasonable efforts to enforce or secure the
performance of each and every obligation and undertaking of the tenants under
the Leases and shall appear in and prosecute or defend any action or proceeding
arising under, or in any manner connected with, the Leases or the obligations
and undertakings of the tenants thereunder.
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(iii) Trustor shall generally operate and maintain
the Trust Property in a manner to insure maximum Rents.
(iv) Trustor shall not pledge, transfer, mortgage or
otherwise encumber or assign the Leases or the Rents.
(v) Trustor shall not collect Rents more than sixty
(60) days prior to accrual.
(c) Beneficiary shall not be obligated to perform or discharge
any obligation or duty to be performed or discharged by Trustor under any of the
Leases; and Trustor hereby agrees to indemnify Beneficiary for, and to save
Beneficiary harmless from, any and all liability, damage or expense arising from
any of the Leases or from this assignment, including, without limitation, claims
by tenants for security deposits or for rental payments more than one (1) month
in advance and not delivered to Beneficiary. All amounts indemnified against
hereunder, including reasonable attorneys' fees if paid by Beneficiary, shall
bear interest at the Default Rate of Interest, as defined in the Note, and shall
be payable by Trustor immediately without demand and shall be secured hereby.
This assignment shall not place responsibility for the control, care,
management, or repair of the Trust Property upon Beneficiary or make Beneficiary
responsible or liable for any negligence in the management, operation, upkeep,
repair or control of same resulting in loss or damage or injury or death to any
party.
(d) Upon the occurrence of an Event of Default as hereinafter
defined:
(i) All Rents assigned hereunder shall be paid
directly to Beneficiary, and, Beneficiary may notify the tenants under the
Leases (or any other parties in possession of the Trust Property) to pay all of
the Rents directly to Beneficiary at the address specified in Section 29 hereof,
for which this assignment shall be sufficient warrant;
(ii) Beneficiary shall have the right to forthwith
enter and take possession of the Trust Property and to manage, operate, lease
and develop the same; to collect as hereunder provided all or any Rents payable
under the Leases; to make repairs as Beneficiary deems appropriate; and to
perform such other acts in connection with the management, operation,
development, leasing and construction of the Trust Property as Beneficiary, in
its sole discretion, may deem proper; and
(iii) Beneficiary shall have the right to forthwith
enter into and upon the Trust
Property and take possession thereof, and to appoint an agent, or in the event
of the institution of foreclosure proceedings to have a receiver appointed for
the collection of the Rents.
In the event that Beneficiary shall pursue its remedies under
Subsections 15(d)(ii) or (iii) above, the net income, after allowing a
reasonable fee for the collection thereof and the management of the Trust
Property, may be applied toward the payment of taxes, assessments, insurance
premiums, repairs, protection of the Trust Property or Beneficiary's lien
thereon, and other charges against the Trust Property and the costs of
procurement of such insurance and of evidence of title to the Trust Property, or
any of them, or in the reduction of the Indebtedness and the payment of
interest, as Beneficiary may elect. If the Rents are not sufficient to meet the
costs, if any, of taking control of and managing the Trust Property and
collecting the Rents, any funds expended by Beneficiary for such purposes shall
become indebtedness of Trustor to Beneficiary secured by the Deed of Trust.
Unless Beneficiary and Trustor agree in writing to other terms of payment, such
amounts shall be payable upon demand from Beneficiary to Trustor and shall bear
interest from the date of disbursement at the Default Rate of Interest stated in
the Note.
The exercise or failure to exercise any of the above remedies shall not
in any way preclude or abridge the right of Beneficiary to exercise the power of
sale contained herein or to take any other legal or equitable action thereon.
Beneficiary shall have such rights or privileges as aforesaid
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regardless of the value of the Trust Property given as security hereunder, and
regardless of the solvency or insolvency of any party bound for the payment of
the Indebtedness or the other sums hereby secured.
(e) Trustor hereby authorizes and directs the tenants under
the Leases to pay Rents to Beneficiary upon written demand by Beneficiary,
without further consent of Trustor, and the tenants may rely upon any written
statement delivered by Beneficiary to the tenants. Any such payment to
Beneficiary shall constitute payment to Trustor under the Leases.
(f) There shall be no merger of the leasehold estates created
by the Leases with the fee estate of the Property and Improvements without the
prior written consent of Beneficiary.
16. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. The Deed of Trust is
intended to be a security agreement pursuant to the Uniform Commercial Code as
enacted in the State of West Virginia (the "UCC") for any of the Property
comprising personal property and fixtures which may be subject to a security
interest pursuant to the UCC, and Trustor hereby grants to Beneficiary a
security interest in said personal property and fixtures, whether said property
is now existing or hereafter acquired, together with replacements, replacement
parts, additions, repairs and accessories incorporated therein or affixed
thereto and, if sold or otherwise disposed of, the proceeds (including insurance
proceeds) thereof. Trustor agrees to execute and deliver to Beneficiary UCC
financing statements covering said personal property and fixtures from time to
time and in such form as Beneficiary may require to perfect or maintain the
priority of Beneficiary's security interest with respect to said personal
property and fixtures. Trustor shall not create or suffer to be created any
other security interest in said personal property and fixtures, including
replacements thereof and additions thereto. Upon the occurrence of any Event of
Default as set forth in Section 17 hereof, Beneficiary shall have the remedies
of a secured party under the UCC and, at Beneficiary's option, may also invoke
the remedies provided in Section 17 hereof with respect to such property.
17. EVENT OF DEFAULT. The term "Event of Default" shall have the same
meaning as set forth in the Loan Agreement, which meaning is incorporated by
this reference herein.
Upon the occurrence of any such Event of Default, at the option of
Beneficiary, without notice or demand, the same being hereby expressly waived,
the entire amount shall become immediately due and payable, and, in addition to
any other right or remedy which Beneficiary may now or hereafter have at law, in
equity, or under the Loan Documents, Beneficiary shall have the right and power:
to invoke the power of sale and any other remedies permitted by applicable law
or provided for herein. Trustor acknowledges that the power of sale herein
granted may be exercised by Beneficiary without prior judicial hearing.
Beneficiary shall be entitled to collect all costs and expenses incurred in
pursuing such remedies, including, but not limited to, attorney's fees and costs
of documentary evidence, abstracts and title reports, all of which shall be
additional sums secured by this Deed of Trust.
18. NO WAIVER. The failure of Beneficiary to exercise any option to
declare the maturity of the principal debt or any other sums hereby secured
under any provision of any of the Loan Documents, or to forbear from exercising
any right or remedy available to Beneficiary under any provision of any of the
other Loan Documents, shall not be deemed a waiver of the right to exercise such
option, right or remedy or declare such maturity as to such past, continuing or
subsequent violation of any of the covenants and agreements of the Loan
Documents. Acceptance by Beneficiary of partial payments shall not constitute a
waiver of any Event of Default. From time to time, Beneficiary may, at
Beneficiary's option, without giving notice to or obtaining the consent of
Trustor or its successors or assigns, any junior lienholder, without liability
on Beneficiary's part and notwithstanding Trustor's breach of any covenant or
agreement of Trustor in the Deed of Trust, extend the time for payment of the
Indebtedness, or any part thereof, reduce the payments thereon, release anyone
liable on any of said Indebtedness, accept a renewal note or notes therefor,
release from the lien of the Deed of Trust any part of the Trust Property, take
or release other or additional security, reconvey any part of the Trust
Property, consent to any map or plan of the Trust Property, consent to the
granting of any easement, join in any extension or subordination agreement, or
agree in writing with Trustor to modify the rate of interest or period of
amortization of the Note or to
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change the amount of the monthly installments payable thereunder. Any actions
taken by Beneficiary pursuant to the terms of this Section 18 shall not affect
the obligation of Trustor or Trustor's successors or assigns to pay the sums
secured by the Deed of Trust and to observe the covenants of contained herein,
and shall not affect the lien or priority of lien of the Deed of Trust on the
Trust Property. Trustor shall pay Beneficiary a reasonable service charge,
together with such title insurance premiums and attorney's fees as may be
incurred at Beneficiary's option for any such action if taken at Trustor's
request.
19. PARCELS; WAIVER OF MARSHALLING. In the event of a sale pursuant to
the power of sale contained herein, the Trust Property may be sold in one or
more parcels or as an entirety as Beneficiary may elect.
Notwithstanding the existence of any other security interests in the
Trust Property held by Beneficiary or by any other party, Beneficiary shall have
the right to determine the order in which any or all of the Trust Property shall
be subjected to the remedies provided herein. Beneficiary shall have the right
to determine the order in which any or all portions of the Indebtedness are
satisfied from the proceeds realized upon the exercise of the remedies provided
herein. Trustor, any party who becomes liable for Trustor's obligations and
covenants under the Deed of Trust, and any party who now or hereafter acquires a
security interest in the Trust Property, or any portion thereof, hereby waives
any and all right to require the marshalling of assets in connection with the
exercise of any of the remedies permitted by applicable law or provided herein.
20. COSTS OF COLLECTION. Trustor hereby agrees to pay to Beneficiary
all costs of enforcing, collecting and securing, and of attempting to enforce,
collect and secure, the Note, including, without limitation, reasonable
attorneys' fees and court costs, whether such attempt be made by suit, in
bankruptcy, or otherwise, and such costs and any other sums due Beneficiary
under the Loan Documents may be included in any judgment or decree rendered.
21. SALE PURSUANT TO POWER OF SALE. Prior to any sale pursuant to the
power of sale contained herein, Beneficiary shall provide Trustor with the
notice required by the laws of the State of West Virginia by mailing to Trustor
at 20 South Third Street, Columbus, Ohio 43215 in the manner provided in
paragraph 30 hereof or such other manner as may be required pursuant to the laws
of the State of West Virginia, notice of such sale. Trustee may sell the Trust
Property at the time and place and under the terms designated in the notice of
sale in one or more parcels and in such order as Trustee may determine at public
auction to the highest bidder for cash. Trustee may postpone sale of all or any
parcel of the Trust Property by public announcement at the time and place of any
previously scheduled sale. Beneficiary or Beneficiary's designee may purchase
the Trust Property at any sale.
Trustee shall deliver to the purchaser a Trustee's deed conveying the
Trust Property so sold with special warranty of title. The recitals in the
Trustee's deed shall be prima facie evidence of the truth of the statements made
therein. Trustee shall apply the proceeds of the sale in the following order:
(a) to all costs and expenses of the sale, including, but not limited to
attorney's fees and costs of title evidence; (b) to the discharge of all taxes,
levies and assessments on the Trust Property, if any, as provided by applicable
law; (c) to all sums secured by this Instrument in such order as Beneficiary, in
Beneficiary's sole discretion, directs; and (d) the excess, if any, to the
person or persons legally entitled thereto, including, if any, holders of liens
inferior to this Instrument in order of priority, provided that Trustee has
actual notice of such liens. Trustee shall not be required to take possession of
the Trust Property prior to the sale thereof or to deliver possession of the
Trust Property to the purchaser at such sale.
22. RENT ROLL AND FINANCIAL STATEMENTS. Trustor shall maintain full and
correct books and records open to Beneficiary's inspection, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
23. HAZARDOUS SUBSTANCES. (a) Trustor hereby covenants and agrees with
Beneficiary that the following terms shall have the following meanings:
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<PAGE> 11
(i) "Environmental Laws" mean all federal, state
and local laws, statutes, ordinances and codes relating to the use, storage,
treatment, generation, transportation, processing, handling, production or
disposal of any Hazardous Substance and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives with respect
thereto.
(ii) "Hazardous Substance" means, without limitation,
any flammable explosives, radioactive materials, asbestos, urea formaldehyde
foam insulation, polychlorinated biphenyls, petroleum and petroleum based
products, methane, hazardous materials, hazardous wastes, hazardous or toxic
substances or related materials, as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601, ET SEQ.), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Sections 1801, ET SEQ.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. Sections 6901, ET SEQ.), the Toxic Substances Control Act, as
amended (15 U.S.C. Sections 2601, ET SEQ.), or any other applicable
Environmental Law.
(iii) "Indemnitee" means Beneficiary, its
participants in the loan evidenced by the Notes and all subsequent holders of
the Deed of Trust, their respective successors and assigns, their respective
officers, directors, employees, agents, representatives, contractors and
subcontractors and any subsequent owner of the Property and Improvements who
acquires title thereto from or through Beneficiary.
(iv) "Release" has the same meaning as given to that
term in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, ET SEQ.) and the regulations
promulgated thereunder.
(b) Trustor represents and warrants to Beneficiary that, to its
knowledge after due investigation: (i) the Trust Property is being or have not
been used for the storage, treatment, generation, transportation, processing,
handling, production or disposal of any Hazardous Substance in violation of any
Environmental Laws; (ii) the Trust Property does not contain any Hazardous
Substances in violation of any Environmental Laws; (iii) there has been no
Release of any Hazardous Substance on, at or from the Project or any property
adjacent to or within the immediate vicinity of the Trust Property and Trustor
has not received any form of notice or inquiry with regard to such a Release or
threat of such a Release; (iv) no event has occurred with respect to the Trust
Property which, with the passage of time or the giving of notice, or both, would
constitute a violation of any applicable Environmental Law; (v) there are no
agreements or orders or directives of any federal, state or local governmental
agency or authority relating to the Trust Property which require any work,
repair, construction, containment, clean up, investigations, studies, removal or
other remedial action with respect to the Trust Property and (vi) there are no
actions, suits, claims or proceedings, pending or threatened, which seek any
remedy, that arise out of the condition, ownership, use, operation, sale,
transfer or conveyance of the Trust Property and (1) a violation or alleged
violation of any applicable Environmental Law, (2) the presence of any Hazardous
Substance or a Release of any Hazardous Substance or the threat of such a
Release, or (3) human exposure to any Hazardous Substance.
(c) Trustor covenants and agrees with Beneficiary as follows:
(i) Trustor shall keep, and shall cause all operators,
tenants, subtenants, licensees and occupants of the Project to keep, the Project
free of all Hazardous Substances, except for Hazardous Substances stored,
treated, generated, transported, processed, handled, produced or disposed of in
the normal operation of the Trust Property as a shopping center in accordance
with all Environmental Laws.
(ii) Trustor shall comply with, and shall cause all operators,
tenants, subtenants, licensee and occupants of the Trust Property to comply
with, all Environmental Laws.
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(iii) Trustor shall promptly provide Beneficiary with a copy
of all notifications which it gives or receives with respect to any past or
present Release of any Hazardous Substance or the threat of such a Release on,
at or from the Trust Property or any property adjacent to or within the
immediate vicinity of the Trust Property.
(iv) Trustor shall undertake and complete all investigations,
studies, sampling and testing for Hazardous Substances reasonably required by
Beneficiary and, in accordance with all Environmental Laws, all removal and
other remedial actions necessary to contain, remove and clean up all Hazardous
Substances that are determined to be present at the Project in violation of any
Environmental Laws.
(v) Beneficiary shall have the right, but not the obligation,
to cure any violation by Trustor of the Environmental Laws and Beneficiary's
cost and expense to so cure shall be secured by the Deed of Trust.
(d) Trustor covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Indemnitee
arising out of the condition, ownership, use, operation, sale, transfer or
conveyance of the Project and (i) the storage, treatment generation,
transportation, processing, handling, production or disposal of any Hazardous
Substance, (ii) the presence of any Hazardous Substance or a Release of any
Hazardous Substance or the threat of such a Release, (iii) human exposure to any
Hazardous Substance, (iv) a violation of any Environmental Law, or (v) a
material misrepresentation or inaccuracy in any representation or warranty or
material breach of or failure to perform any covenant made by Trustor herein
(collectively, the "Indemnified Matters").
The liability of Trustor to Indemnitee hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (i) the repayment of all
sums and the satisfaction of all obligations under the Notes, the Deed of Trust
or other Loan Documents, (ii) the sale of the Trust Property pursuant to the
power of sale contained herein or the acceptance of a deed in lieu thereof,
(iii) any amendment or modification of the Loan Documents by or for the benefit
of Trustor or any subsequent owner of the Trust Property, (iv) any extensions of
time for payment or performance required by any of the Loan Documents, (v) the
release or discharge of the Deed of Trust or of Trustor, or any other person
from the performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents whether by Beneficiary, by
operation of law or otherwise, (vi) the invalidity or unenforceability of any of
the terms or provisions of the Loan Documents, (vii) any exculpatory provision
contained in any of the Loan Documents limiting Beneficiary recourse to property
encumbered by the Deed of Trust or to any other security or limiting Beneficiary
rights to a deficiency judgment against Trustor, (viii) any applicable statute
of limitations, (ix) the sale or assignment of the Note or the Deed of Trust,
(x) the sale, transfer or conveyance of all or part of the Trust Property , (xi)
the dissolution or liquidation of Trustor, (xii) the release or discharge, in
whole or in part, of Trustor in any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or similar proceeding, or
(xiv) any other circumstances which might otherwise constitute a legal or
equitable release or discharge, in whole or in part, of Trustor under the Notes
or the Deed of Trust.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Trustor may have to Beneficiary at common law.
24. SUBORDINATE DEEDS OF TRUST. Trustor shall not, without the prior
written consent of Beneficiary, which consent may be withheld in Beneficiary's
sole discretion, grant or permit to be created any lien, security interest or
other encumbrance, other than Permitted Encumbrances, covering any of the Trust
Property (each a "Subordinate Deed of Trust"). If Beneficiary consents to a
Subordinate Deed of Trust or if the foregoing prohibition is determined by a
court of competent
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<PAGE> 13
jurisdiction to be unenforceable, any such Subordinate Deed of Trust shall
contain express covenants to the effect that:
(a) the lien of the Subordinate Deed of Trust and all
instruments incorporated therein by reference is and always shall be
unconditionally subordinate to the lien of the Deed of Trust and to all advances
made pursuant to, and sums secured by, the Deed of Trust, and the Deed of Trust
and all instruments incorporated herein by reference may be renewed, extended,
restructured, modified, increased or reinstated at any time without giving
notice to or obtaining the consent of the holder of the Subordinate Deed of
Trust holder;
(b) if any action shall be instituted to sell the Trust
Property or otherwise enforce the Subordinate Deed of Trust, no tenant of any of
the Leases shall be named as a party defendant and no action shall be taken
which would terminate any occupancy or tenancy without the prior written consent
of Beneficiary;
(c) in the event of any conflict between the covenants and
agreements of the Deed of Trust and the Subordinate Deed of Trust, the covenants
and agreements of the Deed of Trust shall prevail;
(d) Rents, if collected by or for the holder of the
Subordinate Deed of Trust, shall be applied first to the payment of the
Indebtedness and expenses incurred in the ownership, operation and maintenance
of the Trust Property in such order as Beneficiary may determine, prior to being
applied to any indebtedness secured by the Subordinate Deed of Trust;
(e) a copy of any notice of default under the Subordinate Deed
of Trust and written notice and opportunity to cure of not less than thirty (30)
days prior to the commencement of any action to sell pursuant to a power of sale
contained therein or otherwise enforce the Subordinate Deed of Trust shall be
given to Beneficiary; and
(f) the holder of the Subordinate Deed of Trust shall
acknowledge the existence of the Indebtedness secured hereby and further
acknowledge that the lien of the Deed of Trust shall at all times be and remain
superior and prior to the lien of the Subordinate Deed of Trust to the extent of
the entire Indebtedness secured hereby, notwithstanding any change in the
variable rate of interest being charged under the Notes.
25. DEED OF TRUST. THIS IS A DEED OF TRUST FOR THE PURPOSES OF WEST
VIRGINIA CODE SS.38-1-14, AND SECURES THE MAXIMUM AMOUNT NOT TO EXCEED
$24,375,000, AND THIS DEED OF TRUST IS ALSO SECURITY FOR THE PAYMENT OF INTEREST
ON SUCH PRINCIPAL SUMS AND FOR TAXES, INSURANCE PREMIUMS AND OTHER OBLIGATIONS,
INCLUDING INTEREST THEREON, UNDERTAKEN BY BENEFICIARY OR TRUSTEE PURSUANT TO THE
PROVISIONS OF THIS DEED OF TRUST. THIS DEED OF TRUST SECURES FUTURE ADVANCES,
WHICH BENEFICIARY HAS AGREED TO MAKE TO TRUSTOR IN ACCORDANCE WITH AND SUBJECT
TO THE TERMS AND PROVISIONS OF THE LOAN DOCUMENTS. SUCH FUTURE ADVANCES ARE
INTENDED TO BE OBLIGATORY WITHIN THE MEANING OF WEST VIRGINIA CODE SS.38-1-14.
26. RELEASE. Upon payment of all sums secured by this Instrument,
Beneficiary shall release this Deed of Trust. Trustor shall pay Beneficiary's
reasonable costs incurred in releasing this Deed of Trust. If Trustee is
requested to release this Instrument upon payment of all sums secured by this
Instrument, the Note evidencing indebtedness secured by this Instrument shall be
surrendered to Trustee.
27. SUBSTITUTE TRUSTEE. If Trustee or any successor trustee to Trustee
should die, resign or become incapacitated or neglect, refuse or become
disqualified to act hereunder, Beneficiary at Beneficiary's option without
notice to Trustor may remove Trustee and appoint a successor trustee to any
Trustee appointed hereunder by an instrument recorded in the county in which
this Deed of
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<PAGE> 14
Trust is recorded. Without conveyance of the Trust Property, the successor
trustee shall succeed to all the title, power and duties conferred upon the
Trustee herein and by applicable law.
28. BENEFICIARY'S ADDRESS. The beneficial owner and holder of the Note
is KeyBank National Association, whose address is 127 Public Square, 6th Floor,
Cleveland, Ohio 44114-1306.
29. NOTICE. All communications (including bank wire, telex, facsimile
transmission or similar writing) to be given hereunder shall be in writing and
shall be given as set forth below:
(1) If to Trustor, at the following address, or at such other
address as may have been furnished in writing by the Trustor:
Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
Telephone: (614) 621-2245 Ext. 330
Facsimile: (614) 621-8863
(2) If to Beneficiary, at the following address, or at such other
address as may have been furnished in writing to the
Beneficiary:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114-1306
Attention: Dan Heberle
Telephone: (216) 689-0801
Facsimile: (216) 689-4997
(3) If to Trustee, at the following address, or at such other
address as may have been furnished in writing by the Trustee:
John T. Poffenbarger
515 Bank One Center
Charleston, West Virginia
Each such notice or communication shall be effective (i) if given by
telecopy or facsimile, when such telecopy or facsimile is transmitted to the
facsimile number specified in this Section, (ii) if given by mail, seventy-two
(72) hours after such communication is deposited in the mail with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered at the address specified in this Section.
30. MISCELLANEOUS. The covenants herein contained shall bind, and the
benefits and advantages shall inure to, the respective successors and assigns of
the parties hereto. Whenever used, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all genders.
The captions used herein are for references only and shall not be deemed a part
of the Deed of Trust. If any provision of the Deed of Trust is illegal, or
hereafter rendered illegal, or is for any other reason void, voidable or
otherwise unenforceable, or hereafter rendered void, voidable or otherwise
unenforceable, the remainder of the Deed of Trust shall not be affected thereby,
but shall be construed as if it does not contain such provision. Each right and
remedy provided in the Deed of Trust is distinct and cumulative to all other
rights or remedies under the Deed of Trust or afforded by law or equity, and may
be exercised concurrently, independently or successively, in any order
whatsoever.
THE PARTIES ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT
MAY ARISE BETWEEN THE PARTIES, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF
WHICH THIS DEED OF TRUST ARISES WOULD MAKE ANY
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<PAGE> 15
SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY. ACCORDINGLY, EACH OF THE PARTIES TO
THIS DEED OF TRUST HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY AS TO ANY AND ALL
DISPUTES THAT MAY ARISE RELATING TO THIS DEED OF TRUST.
IN WITNESS WHEREOF, Trustor has caused the Deed of Trust to be executed
this ____ day of June, 1999.
Signed and acknowledged Trustor:
in the presence of:
Glimcher Properties Limited Partnership
Laurie Fronek By: Glimcher Properties Corporation,
- ------------------------------- General Partner
Witness
------------------------
(printed)
Jane B. Gains By: William G. Cornely,
- ------------------------------- -----------------------------------
Witness William G. Cornely, Executive
------------------------ Vice President/COO/CFO
(printed)
15
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STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this ____ day of
_________________, 1999, by William G. Cornely, Executive Vice President/COO/CFO
of Glimcher Properties Corporation, a Delaware corporation, for and on behalf of
said corporation in its capacity as the general partner of Glimcher Properties
Limited Partnership, a Delaware limited partnership, for and on behalf of the
limited partnership.
Jane B. Gaines
---------------------------------------------
Notary Public
Commission
Expiration: November 1, 20002
----------------------------------
This instrument prepared by:
David W. Salisbury
Thompson Hine & Flory LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114-1216
(216) 566-5500
16
<PAGE> 17
EXHIBIT A
LEGAL DESCRIPTION
A tract of land located in file Corporation of Star City, Monongalia County,
West Virginia and being more particularly bounded and described as follows:
Beginning at an iron (Pt. #28) in the Southern Right of Way line of US Rt. 10 &
West Virginia Rt. 7 commonly known as Monongahela Boulevard and in the Eastern
Right of Way line of the Baltimore & Ohio Railroad, thence with the road Right
of Way
South 71(Degree) 13' 30" East 166.32 feet to an iron pin (Pt. #29), thence
South 66(Degree) 41' 49" East 217.30 feet to Rail Road Spike (Pt. #24), thence
South 58(Degree) 45' 14" East 186.63 feet to an iron pin (Pt. #1), thence
South 50(Degree) 08' 39" East 205.27 feet to an iron pin (Pt. #33), thence
South 40(Degree) 06' 30" West 22.63 feet to an iron pin (Pt. #34), thence
leaving said Road Right of Way
North 85(Degree) 57' 00" West 184.98 feet to an iron pin (Pt. #35), thence
North 17(Degree) 00' 00" West 296.30 feet to an iron pin (Pt. #2) corner to
Tract #2 and in the Western Right of Way line to Normandy Street, thence with
same
South 17(Degree) 00' 00" West 150.00 feet to an iron pin (Pt. #26) corner to
Tract #3 thence,
South 17(Degree) 00' 00" West 150.00 feet to an iron pin (Pt. #5), thence
South 17(Degree) 00' 00" West 30.00 feet to an iron pin (Pt. #6), corner to
Tract #4, thence
South 17(Degree) 00' 00" West 100.00 feet to an iron pin (Pt. #9), thence
South 17(Degree) 00' 00" West 530.57 feet to an iron pin (Pt. #10), thence
South 46(Degree) 05' 00" East 98.25 feet to an iron pin (Pt. #11), corner to
Canton Street and West Virginia Utility property, thence with the West Virginia
Utility Property
South 39(Degree) 25' 00" West 311.24 feet to an iron pin (Pt. #12) in the
Eastern Right of Way line of the Baltimore and Ohio Railroad, thence with the
same
North 16(Degree) 36' 00" West 203.55 feet to an iron pin (Pt. #13), thence
North 09(Degree) 49' 00" West 189.06 feet to an iron pin (Pt. #14), thence
North 04(Degree) 12' 00" West 477.63 feet to an iron pin (Pt. #15), thence
North 13(Degree) 59' 00" East 98.28 feet to an iron pin (Pt. #16), thence
North 09(Degree) 30' 00" East 300.00 feet to an iron pin (Pt. #17), thence
North 03(Degree) 08' 30" East 100.73 feet to an iron pin (Pt. #18), thence
North 15(Degree) 22' 00" West 54.95 feet to an iron pin (Pt. #19), thence
North 09(Degree) 30' 00" East 50.00 feet to an iron pin (Pt. #20), thence
North 28(Degree) 04' 30" East 147.68 feet to an iron pin (Pt. #21), thence
North 11(Degree) 33' 00" West 130.88 feet to an iron pin (Pt. #22), thence
North 09(Degree) 30' 00" East 66.93 feet to an iron pin (Pt. #23), corner to
Tract #5, thence North 09(Degree) 30' 00" East 107.74 feet to the beginning
and containing 15.67 acres more or less and being a combination of Tracts #1
through #7 as recorded in Deed Book 802, Page 415, and as shown on a plat
attached hereto and made part of this description (See Map Cabinet No. 434-1).
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EXHIBIT B
PERMITTED EXCEPTIONS
1. Real estate taxes for the year 1999, which are not yet due and payable.
2. Up conveyance of mineral interests and rights-of-ways from Great Scott
Coal and Coke Company to Fred Tropf, dated October 14, 1916 and
recorded October 25, 1916 in Deed Book 142, at Page 356, of the
Monongalia County Records, West Virginia.
3. Sewer Pipeline Right-of-Way from Alexander H. Tait, et al. to The Town
of Star City, dated June 19, 1917 and recorded September 11, 1918 in
Deed Book 147, at Page 214, of the Monongalia County Records, West
Virginia.
4. Telephone Communication System Right-of-Way from Alexander H. Tait, et
al. to Chesapeake & Potomac Telephone Company, dated September 20, 1929
and recorded in Deed Book 232, at Page 329, of the Monongalia County
Records, West Virginia.
5. Water Pipeline Right-of-Way from A..G. Tait, et al. to The Town of Star
City, dated January 18, 1936 and recorded in Deed Book 278, at Page 31,
of the Monongalia County Records, West Virginia.
6. Sewer Pipeline Right-of-Way from Alexander H. Tait, to The City of
Morgantown, et al. dated October 21, 1927 and recorded in Deed Book
218, at Page 231, of the Monongalia County Records, West Virginia.
7. Storm and Sanitary Sewer Pipeline Right-of-Ways from Beach Coal Company
to The City of Morgantown, dated February 1, 1965 and recorded February
22, 1965 in Deed Book 631, at Page 378, of the Monongalia County
Records, West Virginia.
8. Ingress, Egress and Regress right-of way from Beach Coal Company to
George R. Hazucha and Mary Hazucha, dated March 3, 1965 and recorded
March 6, 1965 in Deed Book 631, at Page 632, of the Monongalia County
Records, West Virginia.
9. Electric Distribution Easement from Earl C. Atkins, Jr. and Betty Joe
Atkins to Monongahela Power Company, recorded August 24, 1965 in Deed
Book 638, at Page 271, of the Monongalia County Records, West Virginia.
10. Electric Distribution System Right-of-Way Agreement from Beach Coal
Company to Monongahela Power Company dated August 12, 1965 and recorded
August 24, 1965 in Deed Book 638, at Page 277, of the Monongalia County
Records, West Virginia.
11. Covenants and Restrictions along with a right-of-way from Industrial
Avenue between Ella Leona Oates, et al. and Morgantown Plaza, Inc.,
dated June 3, 1966 and recorded June 29, 1966 in Deed Book 649, at Page
402, of the Monongalia County Records, West Virginia.
12. Pipeline Easement for water, oil, gas and other products from Beach
Coal Company to Consolidated Gas Supply Corporation, recorded July 16,
1966 in Deed Book 650, at Page 309, of the Monongalia County Records,
West Virginia.
13. Pipeline Easement for water, oil, gas and other products from Beach
Coal Company to Consolidated Gas Supply Corporation, dated February 11,
1966 and recorded August 3, 1966 in Deed Book 651, at Page 172, of the
Monongalia County Records, West Virginia.
14. Right-of-way for Ingress, Egress and Regress from Beach Coal Company to
The Town of Star City, recorded in Deed Book 658, at Page 389, of the
Monongalia County Records, West Virginia.
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15. Pipeline Easement for water, oil, gas and other products from
Morgantown Plaza, Inc., to Consolidated Gas Supply Corporation,
recorded March 23, 1967 in Deed Book 659, at Page 99, of the Monongalia
County Records, West Virginia.
16. Electric Distribution, Right-of-Way Agreement from Morgantown Plaza,
Inc., to Monongahela Company, dated May 2, 1967 and recorded May 19,
1967 in Deed Book 661, at Page 295, of the Monongalia County Records,
West Virginia.
17. Electric Distribution Easement from Morgantown Plaza, Inc., to
Monongahela Power Company, dated July 11, 1968 and recorded August 23,
1968 in Deed Book 677, at Page 620, of the Monongalia County Records,
West Virginia.
18. Pipeline Easement for water, oil, gas and other products from
Morgantown Plaza, Inc., to Consolidated Gas Supply Corporation, dated
October 13, 1968 and recorded December 11, 1968 in Deed Book 681, at
Page 266, of the Monongalia County Records, West Virginia.
19. Electric Distribution Line Easement from Morgantown Plaza, Inc. to
Monongahela Power Company, dated June 25, 1969 and recorded August 18,
1969 in Deed Book 689, at Page 238, of the Monongalia County Records,
West Virginia.
20. Gas Pipeline Right-of-Way from Morgantown Plaza, Inc. to Consolidated
Gas Supply Corporation, dated September 11, 1969 and recorded September
24, 1969 in Deed Book 690, at Page 460, of the Monongalia County
Records, West Virginia.
21. Distribution Line Easement from Morgantown Plaza, Inc., to Monongahela
Power Company, dated July 7, 1970 and recorded October 14, 1970 in Deed
Book 701, at Page 473, of the Monongalia County Records, West Virginia.
22. Distribution Line Easement from Morgantown Plaza, Inc., to Monongahela
Power Company, dated December 17, 1975 and recorded March 10, 1976 in
Deed Book 772, at Page 34, of the Monongalia County Records, West
Virginia.
23. Right-of-Way and Easement Agreement between Herbert Glimcher and The
City of Morgantown acting by and through the Morgantown Sanitary Board,
dated October 29, 1979 and recorded April 3, 1980 in Deed Book 837, at
Page 33, of the Monongalia County Records, West Virginia.
24. Distribution Line Easement from Herbert Glimcher and Dine Glimcher,
husband and wife, to Monongahela Power Company, dated August 27, 1980
and recorded September 26, 1980 in Deed Book 845, Page 88, of the
Monongalia County Records, West Virginia.
25. Distribution Line Easement from Herbert Glimcher and Diane Glimcher,
husband and wife, to Monongahela Power Company, dated October 5, 1984
and recorded November 1, 1984 in Deed Book 915, Page 353, of the
Monongalia County Records, West Virginia.
26. Distribution Line Easement from Herbert Glimcher and Diane R. Glimcher,
husband and wife, to Monongahela Power Company, dated November 14, 1985
and recorded January 22, 1986 in Deed Book 936, at Page 592, of the
Monongalia County Records, West Virginia.
27. That certain Right-of-Way for an electrical distribution system as
granted by Herbert Glimcher and Diane R. Glimcher, husband and wife, to
Monongahela Power Company, a corporation, dated November 14, 1985 and
recorded January 22, 1986 in Deed Book 936, at Page 594, of the
Monongalia County Records, West Virginia.
28. Order of entry for Civil Action No. 89-P-89 between West Virginia
Public Energy Authority vs. Herbert Glimcher, et al. recorded July 5,
1989 in Deed Book 996, at Page 271, of the Monongalia County Records,
West Virginia.
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29. Order of entry for Civil Action No. 89-P-89 between West Virginia
Public Energy Authority, a Public corporation vs. Herbert Glimcher, et
al. recorded September 25, 1989 in Deed Book 1001, at Page 217, of the
Monongalia County Records, West Virginia.
30. Water Pipeline Right-of-Way and Easement from Herbert Glimcher to City
of Morgantown, dated April 19, 1993 and recorded April 30, 1993 in Deed
Book 1065, at Page 679, of the Monongalia County Records, West
Virginia.
31. Right of tenants as tenants only under any and all unrecorded leases.
32. Memorandum of Lease from Morgantown Plaza, Inc., Lessor and to Boron
Oil Company, Lessee, dated August 22, 1967 and recorded December 1,
1967 in Deed Book 668, at Page 315, said Lease was assigned by B.P.
Exploration & Oil Inc. to Go-Mart, Inc., by Assignment, dated January
2, 1992 and recorded January 27, 1992 in Book 31, at Page 616, of the
Monongalia County Records, West Virginia.
33. Lease between Morgantown Plaza, Inc., Lessor and Boron Oil Company,
Lessee, dated August 27, 1967 and recorded January 5, 1968 in Deed Book
669, at Page 281, said Lease was assigned from B.P. Exploration & Oil
Inc. to Go-Mart, Inc. by Assignment, dated January 2, 1992 and recorded
January 27, 1992 in Book 31, at Page 616, of the Monongalia County
Records, West Virginia.
34. Subordination Agreement between Shoe Corporation of America, Lessee,
Morgantown Plaza, Inc. Lessor and Dry Dock Savings Bank, dated March 1,
1968 and recorded March 15, 1968 in Deed Book 671, at Page 410, of the
Monongalia County Records, West Virginia.
35. Memorandum of Lease between Morgantown Plaza, Inc., Lessor and Cinema 1
& 2, Inc., Lessee, dated January 27, 1970 and recorded March 12, 1970
in Deed Book 694, at Page 478, of the Monongalia County Records, West
Virginia.
36. Subordination and Non-Disturbance Agreement between White Cross Stores,
Inc. of West Virginia #13, as Lessee, Morgantown Plaza, Inc., as Lessor
and Dry Dock Savings Bank, dated March 13, 1970 and recorded March 30,
1970 in Deed Book 695, at Page 67, of the Monongalia County Records,
West Virginia.
37. Subordination Agreement between SCOA Industries, Inc., as Lessee,
Morgantown Plaza, Inc., as Lessor; and Dry Dock Savings Bank, as Bank,
dated April 3, 1970 and recorded April 13, 1970 in Deed Book 695, at
Page 443, of the Monongalia County Records, West Virginia.
38. Amendment to Lease between Herbert Glimcher and Go-Mart, Inc., dated
November 15, 1993 and recorded December 27, 1993 in Deed Book 1080, at
Page 210, of the Monongalia County Records, West Virginia.
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<PAGE> 1
Exhibit 10.94
STATE OF ARIZONA
I hereby certify that the within Fee No.
instrument was filed and recorded
COUNTY OF
IN DOCKET ________ page ______ and indexed at the request of
________________ Witness my hand and official seal. Compared
Photostated
When recorded mail to: County Recorder Fee
By
Deputy Recorder
- -------------------------------------------------------------------------------
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND FIXTURE FILING
DATED: JUNE 17th, 1999
TRUSTOR:
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware Limited
Partnership, 20 South Third Street, Columbus, Ohio 43215
BENEFICIARY:
KEYBANK NATIONAL ASSOCIATION, a National banking association
having an office at 127 Public Square, Cleveland, Ohio 44114.
TRUSTEE:
CHICAGO TITLE INSURANCE COMPANY,
a Missouri Corporation
2020 North Central Avenue
Suite 300
Phoenix, Arizona, 85004
PROPERTY in Cochise County, State of Arizona, described as:
The Property is described on Exhibit "A" attached hereto and
incorporated by reference herein.
Together with the following, whether now owned or hereafter acquired by
Trustor: (a) all improvements now or hereafter attached to or placed, erected,
constructed or developed on the Property (collectively the "Improvements"); (b)
all fixtures, furnishings, equipment, inventory, and other articles of personal
property (collectively the "Personal Property") that are now or hereafter
attached to or used in or about the Improvements or that are necessary or useful
for the complete and comfortable use and occupancy of the Improvements for the
purposes for which they were or are to be attached, placed, erected, constructed
or developed or that may be used in or related to the planning, development,
financing or operation of the Improvements, and all renewals of or replacements
or substitutions for any of the foregoing, whether or not the same are or shall
be attached to the Improvements or the Property; (c) all water and water rights,
timber, crops, and mineral interests pertaining to the Property; (d) all
building materials and equipment now or hereafter delivered to and intended to
be installed in or on the Improvements or the Property; (e) all plans and
specifications for the Improvements; (f) all contracts relating to the Property,
the Improvements or the Personal Property; (g) all deposits (including, without
limitation, tenants' security deposits), bank accounts, funds, documents,
contract rights, accounts, commitments, construction agreements, architectural
agreements, general intangibles (including, without limitation, trademarks,
trade names and symbols), instruments, notes and chattel paper arising from or
by virtue of any transactions related to the Property, the Improvements or the
Personal Property; (h) all
<PAGE> 2
permits, licenses, franchises, certificates, and other rights and privileges
obtained in connection with the Property, the Improvements or the Personal
Property; (i) all proceeds arising from or by virtue of the sale, lease or other
disposition of the Property, the Improvements, the Personal Property or any
portion thereof or interest therein; (j) all proceeds (including, without
limitation, premium refunds) of each policy of insurance relating to the
Property, the Improvements or the Personal Property; (k) all proceeds from the
taking of any of the Property, the Improvements, the Personal Property or any
rights appurtenant thereto by right of eminent domain or by private or other
purchase in lieu thereof (including, without limitation, change of grade of
streets, curb cuts or other rights of access), for any public or quasi-public
use under any law; (l) all right, title and interest of Trustor in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Property; (m) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (n) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (o) other interests of every kind and character
that Trustor now has or at any time hereafter acquires in and to the Property,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Trustor with respect thereto (all of
the same, including the Property, collectively the "Trust Property").
THIS DEED OF TRUST ("Deed of Trust"), made on the above date between
the Trustor, Trustee, and Beneficiary above named,
WITNESSETH: That Trustor irrevocably grants and conveys to Trustee in
Trust, with Power of Sale, the above described Property, together with leases,
rents, issues, profits, or income thereof (all of which are hereinafter called
"Property Income"); SUBJECT, HOWEVER, to the right, power, and authority
hereinafter given to and conferred upon Beneficiary to collect and apply such
Property Income; AND SUBJECT TO rights of tenants in possession under written
leases, current real estate taxes and assessments, and those other matters set
forth on EXHIBIT B attached hereto ("Permitted Exceptions").
FOR THE PURPOSE OF SECURING: the full and prompt payment, whether at stated
maturity, accelerated maturity or otherwise, of any and all indebtedness,
whether fixed or contingent, and whether such indebtedness is advanced before,
in connection with or after the recording of this Deed of Trust (collectively
the "Indebtedness") and the complete, faithful and punctual performance of any
and all other obligations (collectively the "Obligations") of Trustor under the
terms and conditions of (a) that certain Loan Agreement among Borrower, Glimcher
Properties Corporation and Lender, of even date herewith ("Loan Agreement"); (b)
the Note made by Trustor pursuant to the Loan Agreement, not to exceed in the
aggregate the principal amount of Twenty-Four Million Three Hundred Seventy Five
Thousand Dollars ($24,375,000), payable not later than June 17, 2000, and any
and all renewals, amendments, modifications, reductions and extensions thereof
and substitutions therefor (the "Note"); (c) the Deed of Trust; and (d) any
other instrument, document, certificate or affidavit heretofore, now or
hereafter given by Trustor evidencing or securing all or any part of the
foregoing (the same together with the Loan Agreement, the Note and the Deed of
Trust, collectively the "Loan Documents").
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES:
1. TITLE. Trustor covenants that it is lawfully seized of the Trust
Property and has the right to mortgage, grant, convey and assign the Trust
Property and that the same is unencumbered except for Permitted Exceptions and
that except as aforesaid it will warrant and defend generally the title to the
Trust Property. If the interest of Beneficiary or Trustee in the Trust Property
or any part thereof shall be endangered or shall be attacked, directly or
indirectly, Trustor hereby authorizes Beneficiary, at Trustor's expense, to take
all necessary and proper steps for the defense of such interest, including the
employment of counsel, the prosecution or defense of litigation and the
compromise or discharge of claims made against such interest. Any sums so
expended by
2
<PAGE> 3
Beneficiary shall be charged against Trustor and collectible in accordance with
the terms of Section 10 hereof.
2. FURTHER ASSURANCES. Trustor, upon the request of Beneficiary, shall
execute, acknowledge, deliver, file and record such further instruments and do
such further acts as may be necessary, desirable or proper to carry out the
purposes of the Loan Documents and to subject to the liens and security
interests created thereby any property intended by the terms thereof to be
covered thereby, including specifically, but without limitation, any renewals,
additions, substitutions, replacements, improvements or appurtenances to the
Trust Property.
3. SUBROGATION FOR FURTHER SECURITY. Beneficiary shall be subrogated
for its further security to the lien, although released of record, of any and
all encumbrances paid with any advance of Indebtedness; provided, however, that
the terms and provisions hereof shall govern the rights and remedies of
Beneficiary and shall supersede the terms, provisions, rights, and remedies
under the lien or liens to which Beneficiary is subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Beneficiary, which consent may be withheld in Beneficiary's
sole discretion, Trustor shall not (a) sell, assign, mortgage, pledge, lease
(except for leases of storerooms in the ordinary course of business) or
otherwise convey or further encumber the Trust Property, or any portion thereof,
or legal, equitable or beneficial interest therein; (b) sell, assign, pledge or
otherwise transfer any beneficial interests in Trustor which individually or in
the aggregate would have the effect of transferring the power to direct the
operations of Trustor or the Trust Property; (c) contract for any of the same;
(d) permit the Trust Property, or any portion thereof, or legal, equitable or
beneficial interest therein, to be subject to any superior or inferior lien or
encumbrance except as provided in the Permitted Encumbrances; (e) subdivide,
resubdivided or submit to the condominium form of ownership all or any portion
of the Trust Property, or any portion thereof; or (f) initiate or acquiesce in
any change in the zoning classification of the Property or any portion thereof.
5. TAXES AND OTHER IMPOSITIONS. Trustor shall promptly pay before
delinquency all taxes, assessments, charges, fines or impositions, general,
local or special (collectively the "Impositions"), levied upon the Trust
Property, or any part thereof, or upon Beneficiary's interest therein, or upon
the Deed of Trust or the Indebtedness, by any duly or legally constituted public
authority, municipality, township, county or state or the United States, and
upon request, will provide evidence of the payment thereof to Beneficiary;
provided that Trustor, at Trustor's own cost and expense may, if it shall in
good faith so desire, contest the validity or amount of any Impositions, in
which event Trustor may defer the payment thereof for such period as such
contest shall be actively prosecuted and shall be pending undetermined; further
provided, however, that Trustor shall not allow any such Impositions so
contested to remain unpaid for such length of time as shall permit all or any
portion of the Trust Property, or the lien thereon created by such item, to be
sold by federal, state, county or municipal authority for the nonpayment
thereof. Pending any such contest, Trustor shall maintain adequate book reserves
with respect to such Impositions being contested.
In the event that one or more of the Impositions on Beneficiary's
interest in the Trust Property, the Deed of Trust or the Indebtedness cannot be
lawfully paid by Trustor, then the Trust Property shall be withdrawn from the
Collateral Pool (as such team is defined in the Loan Agreement). In the event
the withdrawal of the Trust Property from the Collateral Pool causes Trustor not
to be in compliance with the required loan to value ratio under the Loan
Agreement, Trustor may either furnish substitute property, as provided in the
Loan Agreement, or pay down the Indebtedness in an amount which will bring the
loan to value ratio into compliance.
6. INSURANCE AND INDEMNIFICATION. Trustor shall provide, maintain and
keep in force at all times the following policies of insurance:
(a) Insurance against loss or damage to the Improvements and
the Personal Property caused by fire and any of the risks covered by insurance
of the type now known as "coverage against all risks of physical loss", in an
amount equal to one hundred percent (100%) of the replacement cost of the
Improvements and the Personal Property and sufficient to prevent Trustor and
Beneficiary from becoming co-insurers, and otherwise with terms and conditions
acceptable to Beneficiary;
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<PAGE> 4
(b) Comprehensive broad form general liability insurance,
insuring against any and all claims for personal injury, death or property
damage occurring on, in or about the Property, the Improvements and the
adjoining streets, sidewalks and passageways, subject to a combined single limit
of not less than Two Million Dollars ($2,000,000.00) for personal injury, death
or property damage arising out of any one accident and a general aggregate limit
of not less than Five Million Dollars ($5,000,000.00), and otherwise with terms
and conditions acceptable to Beneficiary;
(c) Worker's compensation insurance (including employer's
liability insurance, if available and requested by Beneficiary) for all
employees of Trustor engaged on or with respect to the Property and the
Improvements in the limits established by law or, if limits are not so
established, in such amounts as are acceptable to Beneficiary;
(d) During the course of any development or construction of
the Improvements, builder's completed value risk insurance against "all risks of
physical loss", including collapse and transit coverage, in the amounts set
forth in Subsection 8(a) above, and otherwise with terms and conditions
acceptable to Beneficiary;
(e) Upon obtaining a certificate of occupancy for the
Improvements or any portion thereof, business interruption insurance and/or loss
of "rental value" insurance in an amount not less than the appraised rentals for
the Trust Property for a minimum of twelve (12) months, and otherwise with terms
and conditions acceptable to Beneficiary;
(f) If the Improvements are located in a federally-designated
flood hazard area, then flood hazard coverage, in the maximum amount available
and otherwise with terms and conditions acceptable to Beneficiary; and
(g) Such other insurance coverage, and in such amount, as may
from time to time be required by Beneficiary against the same or other hazards.
All such policies shall be in a form acceptable to Beneficiary. Each
policy of casualty insurance shall contain a mortgagee clause, substantially in
the form of the standard New York mortgagee clause or otherwise acceptable to
Beneficiary, showing Beneficiary as loss payee. Each policy of liability
insurance shall show Beneficiary as an additional insured. Unless the policy so
provides, each policy of insurance required by the terms of the Deed of Trust
shall contain an endorsement by the insurer, for the benefit of Beneficiary, (i)
that any loss shall be payable in accordance with the terms of such policy
notwithstanding any act or negligence of Trustor which might otherwise result in
forfeiture of said insurance, (ii) that any rights of set-off, counterclaim or
deductions against Trustor are waived and (iii) that such policy shall not be
canceled or changed except upon not less than thirty (30) days prior written
notice delivered to Beneficiary.
All such insurance policies and renewals thereof shall be written by
companies with a BEST'S INSURANCE REPORTS policy holders rating of A and a
financial size category of Class X or be expressly approved by Beneficiary in
writing.
Beneficiary shall have the right to hold the policies, or certificates
thereof acceptable to Beneficiary with certified copies of the policies, and
Trustor shall promptly furnish to Beneficiary all renewal notices and all
receipts of paid premiums. At least thirty (30) days prior to the expiration
date of any such policy, Trustor shall deliver to Beneficiary a renewal policy,
or certificate thereof, in form acceptable to Beneficiary.
If Beneficiary is made a party defendant to any litigation concerning
the Loan Documents or the Trust Property or any part thereof or interest therein
or the occupancy thereof by Trustor, then Trustor shall indemnify, defend and
hold Beneficiary harmless from all liability by reason of said litigation,
including reasonable attorneys' fees and expenses incurred by Beneficiary in any
such litigation, whether or not any such litigation is prosecuted to judgment.
Trustor waives any and all right to claim or recover against Beneficiary, its
officers, employees, agents and representatives, for loss of or damage to
Trustor, the Trust Property, other property of Trustor or the property of others
under control of Trustor from any cause insured against or required to be
insured against by the provisions of the Deed of Trust.
4
<PAGE> 5
Trustor shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section unless Beneficiary has approved the insurance company and the form and
content of the insurance policy, including, without limitation, the naming
thereon of Beneficiary as a named insured with loss payable to Beneficiary under
a standard mortgage clause of the character above described. Trustor shall
immediately notify Beneficiary whenever any such separate insurance is taken out
and shall promptly deliver to Beneficiary copies of the policies and
certificates evidencing such insurance.
Nothing contained in this Section 6 shall prevent Trustor from keeping
the Improvements and Personal Property insured or causing the same to be insured
against the risks referred to in this Section 6 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Deed of Trust; provided, however, that any such policy of blanket insurance (i)
shall specify therein the amount of the total insurance allocated to the
Improvements and Personal Property, which amount shall be not less than the
amount otherwise required to be carried under the Deed of Trust; (ii) shall not
contain any clause which would result in the insured thereunder becoming a
co-insurer of any loss with the insurer under such policy; and (iii) shall in
all other respects comply with the provisions of the Deed of Trust.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Trustor, and used
by Trustor to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Trustor should elect option (ii) above, if a material decrease in the fair
market value of the Trust Property is indicated, Beneficiary shall be entitled,
at its option, to cause the Trust Property to be reappraised at Trustor's
expense to satisfy itself of continued compliance by Trustor with the loan to
value ratio required by the Loan Agreement. In the event the results of such
reappraisal causes Trustor not to be in compliance with the required loan to
value ratio, Trustor may either furnish substitute property, as provided for in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Beneficiary as escrow agent for the purpose of repairing, restoring or
reconstructing the Improvements. Such proceeds shall be disbursed by Beneficiary
as work progresses, provided that prior to any disbursement, Beneficiary is in
receipt of proof reasonably satisfactory to it that: (i) the work has been
completed, (ii) there are no outstanding mechanics liens or materialmen's liens,
and (iii) that all charges, costs and expenses incurred with respect to work
completed have been paid in full or will be paid in full with such proceeds.
Prior to the release of any proceeds, Beneficiary must be satisfied that repair,
restoration or reconstruction of the damaged or destroyed Improvements will be
substantially equal in size, quality and value to the Improvements then
presently erected on the Trust Property as existed immediately prior to the loss
and the plans and specifications therefor must be approved by Beneficiary. In
the event Beneficiary believes it is necessary in order to establish value,
Beneficiary may, at its option, cause the Trust Property to be reappraised at
Trustor's expense. All insurance proceeds shall be payable to Beneficiary. The
adjustment of such insurance proceeds with the carrier must be approved by
Beneficiary.
Anything in this Section 6 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Beneficiary, be applied by Beneficiary to the
Indebtedness in such order as Beneficiary may determine.
7. ESCROW. Trustor, in order to more fully protect the security of the
Deed of Trust, does hereby covenant and agree that, if Trustor shall fail to
timely pay taxes, assessments or insurance premiums as provided above, or in the
event of any other default and Beneficiary does not then elect to exercise its
other remedies, then Trustor shall, upon request of Beneficiary, pay to
Beneficiary on the first day of each month, until the Indebtedness is fully
paid, a sum equal to one-twelfth (1/12) of the known or estimated yearly taxes,
assessments, premiums for such insurance as may be required by the terms hereof.
Beneficiary shall hold such monthly payments which may be mingled with its
general funds, without obligation to pay interest thereon, unless otherwise
5
<PAGE> 6
required by applicable law, to pay such taxes, assessments, and insurance
premiums when due. Trustor agrees that sufficient funds shall be so accumulated
for the payment of said charges one (1) month prior to the due date thereof and
that Trustor shall furnish Beneficiary with proper statements covering the same
fifteen (15) days prior to the due dates thereof. In the event the Trust
Property is sold pursuant to the power of sale contained herein, or if
Beneficiary should take a deed in lieu thereof, the amount so accumulated shall
be credited on account of the unpaid principal or interest. If the total of the
monthly payments as made under this Section 7 shall exceed the payments actually
made by Beneficiary, such excess shall be credited on subsequent monthly
payments of the same nature, but if the total of such monthly payments so made
under this Section 7 shall be insufficient to pay such taxes, assessments, and
insurance premiums then due, then said Trustor shall pay upon demand the amount
necessary to make up the deficiency, which payments shall be secured by the Deed
of Trust. To the extent that all the provisions of this Section 7 for such
payments of taxes, assessments, and insurance premiums to Beneficiary, are
complied with, Trustor shall be relieved of compliance with the covenants
contained in Sections 5 and 6 herein as to the amounts paid only, but nothing
contained in this Section 7 shall be construed as in any way limiting the rights
of Beneficiary at its option to pay any and all of said items when due.
8. WASTE; REPAIR. Trustor shall neither commit nor permit any waste on
the Trust Property and shall keep all Improvements now or hereafter erected on
the Property in good condition and repair.
9. ALTERATIONS; CONSTRUCTION. Trustor shall have the right to remove,
demolish or alter any of the Improvements, now existing or hereafter constructed
on the Property, or any of the Personal Property in or on the Property or
Improvements, to the extent that the value of same is not diminished. If
Beneficiary believes that there has been a material decrease in value following
any such removal, demolition, or alteration, it may, at its option, cause the
Trust Property to be reappraised at Trustor's expense.
10. ADVANCES SECURED BY DEED OF TRUST. Upon failure of Trustor to
comply with any of these covenants and agreements as to the payment of taxes,
assessments, insurance premiums, repairs, protection of the Trust Property or
Beneficiary's lien thereon, and other charges and the costs of procurement of
title evidence and insurance as aforesaid, Beneficiary may, at its option, pay
the same, and any sums so paid by Beneficiary, together with the reasonable fees
of counsel employed by Beneficiary in consultation and in connection therewith,
shall be charged against Trustor, shall be immediately due and payable by
Trustor shall bear interest at the Default Rate of Interest (as defined in the
Note) and shall be a lien upon the Trust Property and be secured by the Deed of
Trust and may be collected in the same manner as the principal debt hereby
secured.
11. USE. Unless Beneficiary otherwise agrees in writing, Trustor shall
not allow changes in the nature of the occupancy for which the Property and
Improvements were intended at the time the Deed of Trust was executed. Trustor
shall comply with the laws, ordinances, rules, regulations and requirements of
any governmental body applicable to the Trust Property, both during the
construction of any Improvements on the Property and subsequent to the
completion thereof, and Trustor shall not permit the use thereof for any illegal
purpose.
12. INSPECTION. Any person authorized by Beneficiary shall have the
right to enter upon and inspect the Trust Property after reasonable notice to
Trustor and during normal business hours. Beneficiary shall have no duty,
however, to make such inspections. Any inspection of the Trust Property by
Beneficiary shall be entirely for its benefit, and Trustor shall in no way rely
or claim reliance thereon.
13. MINERALS. Without the prior written consent of Beneficiary, except
as provided for in the Permitted Exceptions, there shall be no drilling or
exploring for, or extraction, removal, or production of, minerals from the
surface or subsurface of the Trust Property. The term "minerals" as used herein
shall include, without limitation, oil, gas, casinghead gas, coal, lignite,
hydrocarbons, methane, carbon dioxide, helium, uranium and all other natural
elements, compounds and substances, including sand and gravel.
14. CONDEMNATION. If all the Trust Property and Improvements are taken
or acquired in any condemnation proceeding or by exercise of the right of
eminent domain or, with Beneficiary's consent, by any conveyance in lieu
thereof, the amount of any award or other payment for such
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<PAGE> 7
taking, or conveyance or damages made in consideration thereof, to the extent of
the full amount of the then remaining unpaid Indebtedness, is hereby assigned to
Beneficiary, and Beneficiary is empowered to collect and receive the same and to
give proper receipts therefor in the name of Trustor, and the same shall be paid
forthwith to Beneficiary. Such award or payment so received by Beneficiary shall
be applied to the Indebtedness (whether or not then due and payable).
In the event a portion of the Improvements or Property are acquired in
any condemnation proceeding or by the exercise of the right of eminent domain,
to the extent that the damage to the Property or improvements is in the amount
of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the proceeds of any such condemnation or eminent domain
award shall be paid to Trustor, who shall use such proceeds as provided for in
paragraph 6 hereof with respect to the disbursement of insurance proceeds where
the damage or destruction is in an amount of $500,000.00 or less. The provisions
of paragraph 6 with respect to reappraisal and substitute property where there
is damage or destruction in an amount of $500,000.00 or less shall apply as if
fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with Beneficiary as escrow agent for the purpose of
repairing, restoring, or reconstructing the Improvements and/or Property, and
shall be disbursed by Beneficiary in accordance with the provisions of paragraph
6 hereof with respect to the disbursement of insurance proceeds, where the
damage or destruction is in an amount of $500,000.00 or greater. The conditions
to disbursement, including the requirement that Beneficiary be satisfied that
the repaired or restored Improvements would be equal in size, quality and value
to those which existed previously, and the right to cause the Trust Property to
be reappraised, as provided for where there is damage or destruction of
$500,000.00 or greater, shall be applicable as if fully rewritten.
Anything in this Section 14 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Beneficiary,
be applied by Beneficiary to the Indebtedness in such order as Beneficiary may
determine.
15. ASSIGNMENT OF RENTS AND LEASES. That as additional security,
Trustor hereby gives to and confers upon Beneficiary the right, power, and
authority, during the continuance of this Trust, to collect the Property Income,
reserving to Trustor the right, prior to any default by Trustor in payment of
any indebtedness secured hereby or in performance of any agreement hereunder, to
collect and retain such Property Income as it becomes due and payable but in no
event more than one month in advance. Upon an Event of Default as hereinafter
defined, Beneficiary may at any time, without notice, either in person, by
agent, or by a receiver to be appointed by a court, and without regard to the
adequacy of any security for the indebtedness hereby secured, enter upon and
take possession of said Property or any part thereof, rent said Property, in his
own name sue for or otherwise collect such Property Income, including that past
due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorney's fees, upon any indebtedness secured
hereby, and in such order as Beneficiary may determine. The entering upon and
taking possession of said Property, the collection of such Property Income, and
the application thereof as aforesaid, shall not cure or waive any default or
notice of Trustee's sale hereunder or invalidate any act done pursuant to such
notice.
(b) Trustor hereby represents, warrants and agrees that:
(i) Trustor has good title to the Leases and Rents
hereby assigned and has the right, power and capacity to make this assignment.
No person or entity other than Trustor has or will have any right, title or
interest in or to the Leases or Rents.
(ii) Trustor shall, at Trustor's sole cost and
expense, perform and discharge all of the obligations and undertakings of the
landlord under the Leases and give prompt notice to Beneficiary of any failure
to do so. Trustor shall use all reasonable efforts to enforce or secure the
performance of each and every obligation and undertaking of the tenants under
the Leases and shall appear in and prosecute or defend any action or proceeding
arising under, or in any manner connected with, the Leases or the obligations
and undertakings of the tenants thereunder.
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<PAGE> 8
(iii) Trustor shall generally operate and maintain
the Trust Property in a manner to
insure maximum Rents.
(iv) Trustor shall not pledge, transfer, mortgage or
otherwise encumber or assign the Leases or the Rents.
(v) Trustor shall not collect Rents more than sixty
(60) days prior to accrual.
(c) Beneficiary shall not be obligated to perform or discharge
any obligation or duty to be performed or discharged by Trustor under any of the
Leases; and Trustor hereby agrees to indemnify Beneficiary for, and to save
Beneficiary harmless from, any and all liability, damage or expense arising from
any of the Leases or from this assignment, including, without limitation, claims
by tenants for security deposits or for rental payments more than one (1) month
in advance and not delivered to Beneficiary. All amounts indemnified against
hereunder, including reasonable attorneys' fees if paid by Beneficiary, shall
bear interest at the Default Rate of Interest, as defined in the Note, and shall
be payable by Trustor immediately without demand and shall be secured hereby.
This assignment shall not place responsibility for the control, care,
management, or repair of the Trust Property upon Beneficiary or make Beneficiary
responsible or liable for any negligence in the management, operation, upkeep,
repair or control of same resulting in loss or damage or injury or death to any
party.
(d) Upon the occurrence of an Event of Default as hereinafter
defined:
(i) All Rents assigned hereunder shall be
paid directly to Beneficiary, and, Beneficiary may notify the tenants under the
Leases (or any other parties in possession of the Trust Property) to pay all of
the Rents directly to Beneficiary at the address specified in Section 27 hereof,
for which this assignment shall be sufficient warrant;
(ii) Beneficiary shall have the right to forthwith
enter and take possession of the Trust Property and to manage, operate, lease
and develop the same; to collect as hereunder provided all or any Rents payable
under the Leases; to make repairs as Beneficiary deems appropriate; and to
perform such other acts in connection with the management, operation,
development, leasing and construction of the Trust Property as Beneficiary, in
its sole discretion, may deem proper; and
(iii) Beneficiary shall have the right to forthwith
enter into and upon the Trust Property and take possession thereof, and to
appoint an agent, or in the event of the institution of foreclosure proceedings
to have a receiver appointed for the collection of the Rents.
In the event that Beneficiary shall pursue its remedies under
Subsections 15(d)(ii) or (iii) above, the net income, after allowing a
reasonable fee for the collection thereof and the management of the Trust
Property, may be applied toward the payment of taxes, assessments, insurance
premiums, repairs, protection of the Trust Property or Beneficiary's lien
thereon, and other charges against the Trust Property and the costs of
procurement of such insurance and of evidence of title to the Trust Property, or
any of them, or in the reduction of the Indebtedness and the payment of
interest, as Beneficiary may elect. If the Rents are not sufficient to meet the
costs, if any, of taking control of and managing the Trust Property and
collecting the Rents, any funds expended by Beneficiary for such purposes shall
become indebtedness of Trustor to Beneficiary secured by the Deed of Trust.
Unless Beneficiary and Trustor agree in writing to other terms of payment, such
amounts shall be payable upon demand from Beneficiary to Trustor and shall bear
interest from the date of disbursement at the Default Rate of Interest stated in
the Note.
The exercise or failure to exercise any of the above remedies shall not
in any way preclude or abridge the right of Beneficiary to exercise the power of
sale contained herein or to take any other legal or equitable action thereon.
Beneficiary shall have such rights or privileges as aforesaid regardless of the
value of the Trust Property given as security hereunder, and regardless of the
solvency or insolvency of any party bound for the payment of the Indebtedness or
the other sums hereby secured.
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<PAGE> 9
(e) Trustor hereby authorizes and directs the tenants under
the Leases to pay Rents to Beneficiary upon written demand by Beneficiary,
without further consent of Trustor, and the tenants may rely upon any written
statement delivered by Beneficiary to the tenants. Any such payment to
Beneficiary shall constitute payment to Trustor under the Leases.
(f) There shall be no merger of the leasehold estates created
by the Leases with the fee estate of the Property and Improvements without the
prior written consent of Beneficiary.
16. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. The Deed of Trust is
intended to be a security agreement pursuant to the Uniform Commercial Code as
enacted in the State of Arizona (the "UCC") for any of the Trust Property
comprising personal property and fixtures which may be subject to a security
interest pursuant to the UCC, and Trustor hereby grants to Beneficiary a
security interest in said personal property and fixtures, whether said property
is now existing or hereafter acquired, together with replacements, replacement
parts, additions, repairs and accessories incorporated therein or affixed
thereto and, if sold or otherwise disposed of, the proceeds (including insurance
proceeds) thereof. Trustor agrees to execute and deliver to Beneficiary UCC
financing statements covering said personal property and fixtures from time to
time and in such form as Beneficiary may require to perfect or maintain the
priority of Beneficiary's security interest with respect to said personal
property and fixtures. Trustor shall not create or suffer to be created any
other security interest in said personal property and fixtures, including
replacements thereof and additions thereto. Upon the occurrence of any Event of
Default as set forth in Section 17 hereof, Beneficiary shall have the remedies
of a secured party under the UCC and, at Beneficiary's option, may also invoke
the remedies provided in Section 17 hereof with respect to such property.
17. EVENT OF DEFAULT. The term "Event of Default" shall have the same
meaning as set forth in the Loan Agreement, which meaning is incorporated by
this reference herein.
Upon the occurrence of any such Event of Default, at the option of
Beneficiary, without notice or demand, the same being hereby expressly waived,
the entire amount shall become immediately due and payable, and, in addition to
any other right or remedy which Beneficiary may now or hereafter have at law, in
equity, or under the Loan Documents, Beneficiary shall have the right and power:
to invoke the power of sale and any other remedies permitted by applicable law
or provided for herein. Trustor acknowledges that the power of sale herein
granted may be exercised by Beneficiary without prior judicial hearing.
Beneficiary shall be entitled to collect all costs and expenses incurred in
pursuing such remedies, including, but not limited to, attorney's fees and costs
of documentary evidence, abstracts and title reports, all of which shall be
additional sums secured by this Deed of Trust.
18. NO WAIVER. The failure of Beneficiary to exercise any option to
declare the maturity of the principal debt or any other sums hereby secured
under any provision of any of the Loan Documents, or to forbear from exercising
any right or remedy available to Beneficiary under any provision of any of the
other Loan Documents, shall not be deemed a waiver of the right to exercise such
option, right or remedy or declare such maturity as to such past, continuing or
subsequent violation of any of the covenants and agreements of the Loan
Documents. Acceptance by Beneficiary of partial payments shall not constitute a
waiver of any Event of Default. From time to time, Beneficiary may, at
Beneficiary's option, without giving notice to or obtaining the consent of
Trustor or its successors or assigns, any junior lienholder, without liability
on Beneficiary's part and notwithstanding Trustor's breach of any covenant or
agreement of Trustor in the Deed of Trust, extend the time for payment of the
Indebtedness, or any part thereof, reduce the payments thereon, release anyone
liable on any of said Indebtedness, accept a renewal note or notes therefor,
release from the lien of the Deed of Trust any part of the Trust Property, take
or release other or additional security, reconvey any part of the Trust
Property, consent to any map or plan of the Trust Property, consent to the
granting of any easement, join in any extension or subordination agreement, or
agree in writing with Trustor to modify the rate of interest or period of
amortization of the Note or to change the amount of the monthly installments
payable thereunder. Any actions taken by Beneficiary pursuant to the terms of
this Section 18 shall not affect the obligation of Trustor or Trustor's
successors or assigns to pay the sums secured by the Deed of Trust and to
observe the covenants of contained herein, and shall not affect the lien or
priority of lien of the Deed of Trust on the Trust Property. Trustor shall pay
Beneficiary a reasonable service charge, together with such title insurance
premiums and attorney's fees as may be incurred at Beneficiary's option for any
such action if taken at Trustor's request.
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<PAGE> 10
19. PARCELS. That upon default by Trustor in the payment of any
indebtedness secured hereby or in performance of any agreement hereunder,
Beneficiary may declare all sums secured hereby immediately due and payable by
delivery to Trustee of written notice thereof, setting forth the nature thereof,
and of election to cause to be sold the Trust Property under this Deed of Trust.
Trustee may cause said Property to be sold in one parcel or in separate parcels
of such dimensions as Trustee may determine; a sale of part of said Property
shall not invalidate the lien hereof on the portions remaining unsold. The
remedies granted to Trustee hereunder may be enforced concurrently or
successively and are in addition to all other rights and remedies available to
Trustee and Beneficiary at law or in equity. Beneficiary also shall deposit with
Trustee this Deed of Trust, the Note, and all documents evidencing expenditures
secured hereby.
20. COSTS OF COLLECTION. Trustor hereby agrees to pay to Beneficiary
all costs of enforcing, collecting and securing, and of attempting to enforce,
collect and secure, the Note, including, without limitation, reasonable
attorneys' fees and court costs, whether such attempt be made by suit, in
bankruptcy, or otherwise, and such costs and any other sums due Beneficiary
under the Loan Documents may be included in any judgment or decree rendered.
21. SALE PURSUANT TO POWER OF SALE. Trustee shall record and give
notice of Trustee's sale in the manner required by law, and after the lapse of
such time as may then be required by law, Trustee shall sell, in the manner
required by law, said Property at public auction at the time and place fixed by
it in said notice of Trustee's sale to the highest bidder for cash in lawful
money of the United States, payable at time of sale. Trustee may postpone or
continue the sale by giving notice of postponement or continuance by public
declaration at the time and place last appointed for the sale. Trustee shall
deliver to such purchaser its Deed conveying the Property so sold, but without
any covenant or warranty, expressed or implied. Any person, including Trustor,
Trustee, or Beneficiary, may purchase at such sale.
After deducting all costs, fees, and expenses of Trustee and
of this Trust, including cost of evidence of title in connection with sale and
reasonable attorney's fees, Trustee shall apply the proceeds of sale to payment
of: All sums then secured hereby and all other sums due under the terms hereof,
with accrued interest, and the remainder, if any, to the person or persons
legally entitled thereto, or as provided in A.R.S. Sec. 33-812. To the extent
permitted by law, an action may be maintained by Beneficiary to recover a
deficiency judgment for any balance due hereunder. Beneficiary may foreclose
this Deed of Trust as a realty Deed of Trust, Security Agreement, Assignment of
Rents and Fixture Filing.
22. RENT ROLL AND FINANCIAL STATEMENTS. Trustor shall maintain full and
correct books and records open to Beneficiary's inspection, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
23. HAZARDOUS SUBSTANCES. (a) Trustor hereby covenants and agrees with
Beneficiary that the following terms shall have the following meanings:
(i) "Environmental Laws" mean all federal,
state and local laws, statutes, ordinances and codes relating to the use,
storage, treatment, generation, transportation, processing, handling, production
or disposal of any Hazardous Substance and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives with respect
thereto.
(ii) "Hazardous Substance" means, without
limitation, any flammable explosives, radioactive materials, asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, petroleum and petroleum
based products, methane, hazardous materials, hazardous wastes, hazardous or
toxic substances or related materials, as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Sections 9601, ET SEQ.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, ET SEQ.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 6901, ET SEQ.), the Toxic
Substances Control Act, as amended (15 U.S.C. Sections 2601, ET SEQ.), or any
other applicable Environmental Law.
(iii) "Indemnitee" means Beneficiary and all
subsequent holders of the Deed of Trust, their respective successors and
assigns, their respective officers, directors, employees,
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<PAGE> 11
agents, representatives, contractors and subcontractors and any subsequent owner
of the Property and Improvements who acquires title thereto from or through
Beneficiary.
(iv) "Release" has the same meaning as given to
that term in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Sections 9601, ET SEQ.) and the
regulations promulgated thereunder.
(b) Trustor represents and warrants to Beneficiary that, to its
knowledge after due investigation: (i) the Trust Property is being or have not
been used for the storage, treatment, generation, transportation, processing,
handling, production or disposal of any Hazardous Substance in violation of any
Environmental Laws; (ii) the Trust Property does not contain any Hazardous
Substances in violation of any Environmental Laws; (iii) there has been no
Release of any Hazardous Substance on, at or from the Project or any property
adjacent to or within the immediate vicinity of the Trust Property and Trustor
has not received any form of notice or inquiry with regard to such a Release or
threat of such a Release; (iv) no event has occurred with respect to the Trust
Property which, with the passage of time or the giving of notice, or both, would
constitute a violation of any applicable Environmental Law; (v) there are no
agreements or orders or directives of any federal, state or local governmental
agency or authority relating to the Trust Property which require any work,
repair, construction, containment, clean up, investigations, studies, removal or
other remedial action with respect to the Trust Property and (vi) there are no
actions, suits, claims or proceedings, pending or threatened, which seek any
remedy, that arise out of the condition, ownership, use, operation, sale,
transfer or conveyance of the Trust Property and (1) a violation or alleged
violation of any applicable Environmental Law, (2) the presence of any Hazardous
Substance or a Release of any Hazardous Substance or the threat of such a
Release, or (3) human exposure to any Hazardous Substance.
(c) Trustor covenants and agrees with Beneficiary as follows:
(i) Trustor shall keep, and shall cause all operators,
tenants, subtenants, licensees and occupants of the Project to keep, the Project
free of all Hazardous Substances, except for Hazardous Substances stored,
treated, generated, transported, processed, handled, produced or disposed of in
the normal operation of the Trust Property as a shopping center in accordance
with all Environmental Laws.
(ii) Trustor shall comply with, and shall cause all operators,
tenants, subtenants, licensee and occupants of the Trust Property to comply
with, all Environmental Laws.
(iii) Trustor shall promptly provide Beneficiary with a copy
of all notifications which it gives or receives with respect to any past or
present Release of any Hazardous Substance or the threat of such a Release on,
at or from the Trust Property or any property adjacent to or within the
immediate vicinity of the Trust Property.
(iv) Trustor shall undertake and complete all investigations,
studies, sampling and testing for Hazardous Substances reasonably required by
Beneficiary and, in accordance with all Environmental Laws, all removal and
other remedial actions necessary to contain, remove and clean up all Hazardous
Substances that are determined to be present at the Project in violation of any
Environmental Laws.
(v) Beneficiary shall have the right, but not the obligation,
to cure any violation by Trustor of the Environmental Laws and Beneficiary's
cost and expense to so cure shall be secured by the Deed of Trust.
(d) Trustor covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Indemnitee
arising out of the condition, ownership, use, operation, sale, transfer or
conveyance of the Project and (i) the storage, treatment generation,
transportation, processing, handling, production or disposal of any Hazardous
Substance, (ii) the presence of any Hazardous Substance or a Release of any
Hazardous Substance or the threat of such a Release,
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<PAGE> 12
(iii) human exposure to any Hazardous Substance, (iv) a violation of any
Environmental Law, or (v) a material misrepresentation or inaccuracy in any
representation or warranty or material breach of or failure to perform any
covenant made by Trustor herein (collectively, the "Indemnified Matters").
The liability of Trustor to Indemnitee hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (i) the repayment of all
sums and the satisfaction of all obligations under the Note, the Loan Agreement,
the Deed of Trust or other Loan Documents, (ii) the sale of the Trust Property
pursuant to the power of sale contained herein or the acceptance of a deed in
lieu thereof, (iii) any amendment or modification of the Loan Documents by or
for the benefit of Trustor or any subsequent owner of the Trust Property, (iv)
any extensions of time for payment or performance required by any of the Loan
Documents, (v) the release or discharge of the Deed of Trust or of Trustor, or
any other person from the performance or observance of any of the agreements,
covenants, terms or conditions contained in any of the Loan Documents whether by
Beneficiary, by operation of law or otherwise, (vi) the invalidity or
unenforceability of any of the terms or provisions of the Loan Documents, (vii)
any exculpatory provision contained in any of the Loan Documents limiting
Beneficiary recourse to property encumbered by the Deed of Trust or to any other
security or limiting Beneficiary rights to a deficiency judgment against
Trustor, (viii) any applicable statute of limitations, (ix) the sale or
assignment of the Note or the Deed of Trust, (x) the sale, transfer or
conveyance of all or part of the Trust Property , (xi) the dissolution or
liquidation of Trustor, (xii) the release or discharge, in whole or in part, of
Trustor in any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding, or (xiv) any other
circumstances which might otherwise constitute a legal or equitable release or
discharge, in whole or in part, of Trustor under the Note or the Deed of Trust.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Trustor may have to Beneficiary at common law.
24. SUBORDINATE DEEDS OF TRUST. Trustor shall not, without the prior
written consent of Beneficiary, which consent may be withheld in Beneficiary's
sole discretion, grant or permit to be created any lien, security interest or
other encumbrance, other than Permitted Encumbrances, covering any of the Trust
Property (each a "Subordinate Deed of Trust"). If Beneficiary consents to a
Subordinate Deed of Trust or if the foregoing prohibition is determined by a
court of competent jurisdiction to be unenforceable, any such Subordinate Deed
of Trust shall contain express covenants to the effect that:
(a) the lien of the Subordinate Deed of Trust and all
instruments incorporated therein by reference is and always shall be
unconditionally subordinate to the lien of the Deed of Trust and to all advances
made pursuant to, and sums secured by, the Deed of Trust, and the Deed of Trust
and all instruments incorporated herein by reference may be renewed, extended,
restructured, modified, increased or reinstated at any time without giving
notice to or obtaining the consent of the holder of the Subordinate Deed of
Trust holder;
(b) if any action shall be instituted to sell the Trust
Property or otherwise enforce the Subordinate Deed of Trust, no tenant of any of
the Leases shall be named as a party defendant and no action shall be taken
which would terminate any occupancy or tenancy without the prior written consent
of Beneficiary;
(c) in the event of any conflict between the covenants and
agreements of the Deed of Trust and the Subordinate Deed of Trust, the covenants
and agreements of the Deed of Trust shall prevail;
(d) Rents, if collected by or for the holder of the
Subordinate Deed of Trust, shall be applied first to the payment of the
Indebtedness and expenses incurred in the ownership, operation and maintenance
of the Trust Property in such order as Beneficiary may determine, prior to being
applied to any indebtedness secured by the Subordinate Deed of Trust;
(e) a copy of any notice of default under the Subordinate Deed
of Trust and written notice and opportunity to cure of not less than thirty (30)
days prior to the commencement of any action to sell pursuant to a power of sale
contained therein or otherwise enforce the Subordinate Deed of Trust shall be
given to Beneficiary; and
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<PAGE> 13
(f) the holder of the Subordinate Deed of Trust shall
acknowledge the existence of the Indebtedness secured hereby and further
acknowledge that the lien of the Deed of Trust shall at all times be and remain
superior and prior to the lien of the Subordinate Deed of Trust to the extent of
the entire Indebtedness secured hereby, notwithstanding any change in the
variable rate of interest being charged under the Note.
25. RELEASE. Upon payment of all sums secured by this Deed of Trust,
Beneficiary shall release this Deed of Trust. Trustor shall pay Beneficiary's
reasonable costs incurred in releasing this Deed of Trust. If Trustee is
requested to release this Instrument upon payment of all sums secured by this
Deed of Trust, the Note evidencing indebtedness secured by this Instrument shall
be surrendered to Trustee.
26. SUBSTITUTE TRUSTEE. If Trustee or any successor trustee to Trustee
should die, resign or become incapacitated or neglect, refuse or become
disqualified to act hereunder, Beneficiary at Beneficiary's option without
notice to Trustor may remove Trustee and appoint a successor trustee to any
Trustee appointed hereunder by an instrument recorded in the county in which
this Deed of Trust is recorded. Without conveyance of the Trust Property, the
successor trustee shall succeed to all the title, power and duties conferred
upon the Trustee herein and by applicable law.
27. NOTICE. All communications (including bank wire, telex, facsimile
transmission or similar writing) to be given hereunder shall be in writing and
shall be given as set forth below:
(1) If to Borrower, at the following address, or at such other
address as may have been furnished in writing to the Borrower
by the Lender:
Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
Telephone: (614) 621-2245 Ext. 330
Facsimile: (614) 621-8863
(2) If to Lender, at the following address, or at such other
address as may have been furnished in writing to the Borrower
by the Lender:
KeyBank National Association
127 Public Square
Cleveland, Ohio 44114-1306
Attention: Dan Heberle
Telephone: (216) 689-0801
Facsimile: (216) 689-4997
Each such notice or communication shall be effective (i) if given by
telecopy or facsimile, when such telecopy or facsimile is transmitted to the
facsimile number specified in this Section, (ii) if given by mail, seventy-two
(72) hours after such communication is deposited in the mail with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered at the address specified in this Section.
28. MISCELLANEOUS. The covenants herein contained shall bind, and the
benefits and advantages shall inure to, the respective successors and assigns of
the parties hereto. Whenever used, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all genders.
The captions used herein are for references only and shall not be deemed a part
of the Deed of Trust. If any provision of the Deed of Trust is illegal, or
hereafter rendered illegal, or is for any other reason void, voidable or
otherwise unenforceable, or hereafter rendered void, voidable or otherwise
unenforceable, the remainder of the Deed of Trust shall not be affected thereby,
but shall be construed as if it does not contain such provision. Each right and
remedy provided in the Deed of Trust is distinct and cumulative to all other
rights or remedies under the Deed of Trust or afforded by law or equity, and may
be exercised concurrently, independently or successively, in any order
whatsoever.
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THE PARTIES ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE
BETWEEN THE PARTIES, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS
DEED OF TRUST ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY.
ACCORDINGLY, EACH OF THE PARTIES TO THIS DEED OF TRUST HEREBY WAIVES ANY RIGHT
TO TRIAL BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO THIS DEED
OF TRUST.
IN WITNESS WHEREOF, Trustor has caused the Deed of Trust to be executed
this 17th day of June, 1999.
Signed and acknowledged Trustor:
in the presence of:
Glimcher Properties Limited Partnership
/s/ Laurie Fronek By: Glimcher Properties Corporation,
- ----------------------------- General Partner
Witness
---------------------
(printed)
/s/ Jane B. Gaines By: /s/ William G. Cornely
- ---------------------------- ------------------------------------
Witness William G. Cornely, Executive
-------------------- Vice President/COO/CFO
(printed)
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<PAGE> 15
STATE OF OHIO
COUNTY OF FRANKLIN, SS:
On this 17th day of June, 1999, before me, appeared William G. Cornely
to me personally known, who being by me duly sworn, did say that he is the
Executive Vice President/COO/CFO of Glimcher Properties Corporation, a Delaware
corporation, the General Partner of GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership, and that said instrument was signed and sealed on
behalf of said corporation by authority of its Board of Directors as the General
Partner of said limited partnership, and said William G. Cornely acknowledged
said instrument to be the free act and deed of said corporation as the General
Partner of said limited partnership and to be the free act and deed of said
limited partnership. The corporation has no seal.
/s/ Jane B. Gaines
----------------------------------------
Notary Public
Commission
Expiration: /s/ Nov. 1, 2002
--------------------------------
This instrument prepared by:
Thompson Hine & Flory LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114-1216
(216) 566-5500
<PAGE> 16
EXHIBIT A
LEGAL DESCRIPTION
PARCEL I:
Lot 1, PLAZA VISTA MALL, according to Book 12 of Maps, Page 84, Records of
Cochise County, Arizona.
PARCEL II:
Lot 5, PLAZA VISTA MALL, according to Book 12 of Maps, Page 84, Records of
Cochise County, Arizona.
PARCEL III:
That portion of Lot 6, PLAZA VISTA MALL, according to Book 12 of Maps, Page 84,
Records of Cochise County, Arizona, more particularly described as follows:
BEGINNING at the Northeast corner of said Lot 6;
Thence South 00 (Degrees) 15' 31" West, coincident with the Easterly line of
said Lot 6, a distance of 23.63 feet;
thence South 44 (Degrees) 44' 29" East, coincident with the Easterly line of
said Lot 6, a distance of 19.58 feet;
thence South 89 (Degrees) 55' 53" West, a distance of 296.55 feet;
thence North 00 (Degrees) 04' 07" West, a distance of 20.25 feet to a point on
the Northerly line of said Lot 6;
thence South 89 (Degrees) 44' 29" East, coincident with the Northerly line of
said Lot 6, a distance of 43.00 feet;
thence North 00 (Degrees) 04' 07" West, coincident with the line of said Lot 6,
a distance of 17.55 feet;
thence North 89 (Degrees) 55' 53" East, coincident with the Northerly line of
said Lot 6, a distance of 239.92 feet to the POINT OF BEGINNING.
PARCEL IV:
TOGETHER WITH drainage easement as created in Document No. 8803-04595, 45.00
feet wide, lying 22.50 feet on each side of the following described centerline,
being a portion of Section 31, Township 21 South, Range 21 East of the Gila and
Salt River Base and Meridian, Cochise County, Arizona, described as follows:
COMMENCING at the West quarter corner of the said Section 31;
thence North 89 (Degrees) 55' 53" East, along the East-West mid-section line, a
distance of 113.07 feet to a point on the East right-of-way line of Arizona
State Highway 90;
thence South 00 (Degrees) 15' 31" West along the said right-of-way line, a
distance of 1,158.95 feet to the Northerly right-of-way line of Charleston
Road;
thence along said right-of-way the following courses and distances:
South 89 (Degrees) 45' 33" East, 900.00 feet;
North 00 (Degrees) 14' 27" East, 50.00 feet;
South 89 (Degrees) 45' 33" East, 100.00 feet;
South 00 (Degrees) 14' 27" West, 50.00 feet;
16
<PAGE> 17
South 89 (Degrees) 45' 33" East, 322.50 feet to the POINT OF BEGINNING;
thence North 00 (Degrees) 15' 31" East, 280.00 feet, to the terminus of the
said centerline.
17
<PAGE> 18
EXHIBIT B
PERMITTED EXCEPTIONS
1. Taxes for the full year 1999, none yet due and payable.
2. Reservations contained in the Patent from the United States of America
reading as follows: Subject to any vested and accrued water rights for
mining, agricultural, manufacturing, or other purposes, and rights to
ditches and reservoirs used in connection with such water rights as may
be recognized and acknowledged by the local customs, laws and decisions
of courts; and there is reserved from the lands hereby granted, a right
of way thereon for ditches or canals constructed by the authority of
the United States of America; and any other reservation as set forth in
the Statutes under which said Patent was issued.
3. Water rights, claims or title to water, whether or not of public
record.
4. Liabilities and obligations by reason of the inclusion of said land
within BVR Maintenance/Improvement District, none yet due and payable.
5. THE RIGHTS of the Estate of Renee S. Cushman, deceased, her heirs,
devisees, executors, administrators, and assigns to an undivided
one-half interest in the proceeds of all oil, gas, coal or other
hydrocarbon substances and minerals which may hereafter be discovered
in, upon or under said property, as set forth in instrument recorded in
Docket 768, Page 512, of the Records of Cochise County, Arizona.
6. Easement and rights incident thereto for electric transmission or
distribution line or system as set forth in instrument recorded in
Docket 909, Page 410, of the Records of Cochise County, Arizona.
(Affects Parcels I, II and III)
7. Easement and rights incident thereto for water lines as set forth in
instrument recorded in Docket 1486, Page 128, of the Records of Cochise
County, Arizona. (Affects Parcels I, II and III)
8. Right of Way Easement and rights incident thereto for electric
transmission or distribution line or system, dated July 20, 1982 and
recorded September 24, 1982 in Docket 1620, Page 561, of the Records of
Cochise County, Arizona. (Affects Parcel III)
9. Easement and rights incident thereto for water line as set forth in
instrument recorded in Document No. 8803-04594, of the Records of
Cochise County, Arizona. (Affects Parcels I, II AND IV)
10. Declaration of Drainage Easement and rights incident thereto for
drainage, by and between Bella Vista Ranches Limited Partnership, an
Arizona limited partnership and Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership, dated March 3, 1988 and
recorded March 4, 1988 in Document No. 8803-04595, of the Records of
Cochise County, Arizona.
11. Conditions, covenants and restrictions and easements contained in
Declaration of Restrictions and Ingress, Egress and Utility Easement,
by Sierra Vista Associates Limited Partnership, an Ohio limited
partnership, dated March 4, 1988 and recorded March 4, 1988 in Document
No. 8803-04596, of the Records of Cochise County, Arizona.
12. Unrecorded Lease dated February 2, 1988, for a term of fifteen years as
disclosed by Memorandum of Lease by and between Sierra Vista Mall
Associates Limited Partnership, an Ohio limited partnership and J.C.
Penney Company, Inc., a Delaware corporation, dated February 2, 1988
and recorded March 4, 1988 in Document No. 8803-04597 and recorded
November 14, 1988 in Document No. 8811-23687 and thereafter Term
Agreement dated August 1, 1990 and recorded August 30, 1990, was
executed by Sierra Vista Mall Associates
18
<PAGE> 19
Limited Partnership, an Ohio limited partnership, and J. C. Penney
Company, Inc., a Delaware corporation, recorded in Document No.
9008-16755; all of the Records of Cochise County, Arizona. Lease
Modification No. 2 by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership; and the J. C. Penney Company,
Inc., a Delaware corporation, dated May 7, 1993, recorded June 30, 1993
in Document No. 9306-17088, of the Records of Cochise County, Arizona.
13. Unrecorded Lease dated March 1, 1988, for a term ending on March 1,
2008 and providing for six extensions of five years each as disclosed
by Short Form Lease by and between Sierra Vista Mall Associates Limited
Partnership and Wal-Mart Stores, Inc., dated March 1, 1988 and recorded
March 4, 1988 in Document No. 8803-04598, and recorded March 4, 1988 in
Document No. 8808-18122; and Lease Modification 2, Sierra Vista Mall
Associates Limited Partnership, an Ohio limited partnership; and the
Wal-Mart Stores, Inc., a Delaware corporation, dated April 30, 1993,
recorded June 30, 1993 in Document No. 9306-17089, all of the Records
of Cochise County, Arizona.
14. The right of the State of Arizona to prohibit, limit, control or direct
access to the highway named below, as set forth in Deed of Dedication,
dated March 9, 1988 and recorded March 30, 1988 in Document No.
8803-06578, of the Records of Cochise County, Arizona.
Name of Highway: Highway #90 as to the following described area:
A 1.00 foot wide strip of land over that portion of Section 31,
Township 21 South, Range 21 East of the Gila and Salt River Base and
Meridian, Cochise County, Arizona, the West and South sideline of the
said strip, described in said instrument:
15. Right of Way Easement and rights incident thereto for electric
transmission or distribution line or system dated October 11, 1988 and
recorded December 5, 1988 in Document No. 8812-25035, of the Records of
Cochise County, Arizona. (Affects Parcels I and II)
16. Easements as shown on Map recorded in Book 12 of Maps, Page 84, of the
Records of Cochise County, Arizona.
17. Non-Access Easement which restricts direct access to the street named
below as shown on recorded plat of said subdivision:
Street: Not named but shown on Map lying to the North of said Lot 1.
18. ANY ACTION that may be taken by the Department of Transportation to
acquire right of way for State Highway as disclosed by Resolution of
Establishment, dated July 21, 1989 and recorded August 28, 1989 in
Document No. 8908-17459, of the Records of Cochise County, Arizona.
19. Conditions, covenants and restrictions and easements contained in
Reciprocal Easement Agreement by and between Max Club Inc., a Minnesota
corporation and Sierra Vista Mall Associates Limited Partnership, an
Ohio limited partnership, dated June 30, 1993 and recorded June 30,
1993 in Document No. 9306-17087, of the Records of Cochise County,
Arizona.
20. Unrecorded Lease dated August 16, 1988, as disclosed by Lease
Assignment by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership and Vanguaro Financial
Company, an Ohio corporation, dated February 8, 1987 and recorded
February 16, 1989 in Document No. 8902-03108; Assigning Lessors
interest as additional security for indebtedness secured by Deed of
Trust by and between Sierra Vista Mall Associates Limited Partnership,
an Ohio limited partnership, Trustor, Ticor Title Insurance Company of
California, a California corporation, Trustee, and Vanguaro Financial
Company, an Ohio corporation, Beneficiary, dated February 8, 1989 and
recorded February 16, 1989 in Document No. 8902-03104, both of the
Records of Cochise County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
Lessee: Hub Distributing, Inc.
21. Unrecorded Lease dated January 31, 1989, as disclosed by Lease
Assignment by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership and Vanguaro
19
<PAGE> 20
Financial Company, an Ohio corporation, dated February 8, 1987 and
recorded February 16, 1989 in Document No. 8902-03108; Assigning
Lessors interest as additional security for indebtedness secured by
Deed of Trust by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership, Trustor, Ticor Title
Insurance Company of California, a California corporation, Trustee, and
Vanguaro Financial Company, an Ohio corporation, Beneficiary, dated
February 8, 1989 and recorded February 16, 1989 in Document No.
8902-03104, both of the Records of Cochise County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
Lessee: Vista Optical, Inc.
22. Unrecorded Lease dated October 6, 1988, as disclosed by Lease
Assignment by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership and Vanguaro Financial
Company, an Ohio corporation, dated February 8, 1987 and recorded
February 16, 1989 in Document No. 8902-03108; Assigning Lessors
interest as additional security for indebtedness secured by Deed of
Trust by and between Sierra Vista Mall Associates Limited Partnership,
an Ohio limited partnership, Trustor, Ticor Title Insurance Company of
California, a California corporation, Trustee, and Vanguaro Financial
Company, an Ohio corporation, Beneficiary, dated February 8, 1989 and
recorded February 16, 1989 in Document No. 8902-03104, both of the
Records of Cochise County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
Lessee: Reese Carpenter/Wendy's Hallmark or Sierra Vista, Inc.
23. Unrecorded Lease dated October 28, 1988, as disclosed by Lease
Assignment by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership and Vanguaro Financial
Company, an Ohio corporation, dated February 8, 1987 and recorded
February 16, 1989 in Document No. 8902-03108; Assigning Lessors
interest as additional security for indebtedness secured by Deed of
Trust by and between Sierra Vista Mall Associates Limited Partnership,
an Ohio limited partnership, Trustor, Ticor Title Insurance Company of
California, a California corporation, Trustee, and Vanguaro Financial
Company, an Ohio corporation, Beneficiary, dated February 8, 1989 and
recorded February 16, 1989 in Document No. 8902-03104, both of the
Records of Cochise County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
Lessee: John E. Fritz and Yolanda L. Fritz
24. Unrecorded Lease dated December 18, 1988, as disclosed by Lease
Assignment by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership and Vanguaro Financial
Company, an Ohio corporation, dated February 8, 1987 and recorded
February 16, 1989 in Document No. 8902-03108; Assigning Lessors
interest as additional security for indebtedness secured by Deed of
Trust by and between Sierra Vista Mall Associates Limited Partnership,
an Ohio limited partnership, Trustor, Ticor Title Insurance Company of
California, a California corporation, Trustee, and Vanguaro Financial
Company, an Ohio corporation, Beneficiary, dated February 8, 1989 and
recorded February 16, 1989 in Document No. 8902-03104, both of the
Records of Cochise County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
Lessee: Desert Images, Inc.
25. Unrecorded Lease dated September 13, 1988, as disclosed by Lease
Assignment by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership and Vanguaro Financial
Company, an Ohio corporation, dated February 8, 1987 and recorded
February 16, 1989 in Document No. 8902-03108; Assigning Lessors
interest as additional security for indebtedness secured by Deed of
Trust by and between Sierra Vista Mall Associates Limited Partnership,
an Ohio limited partnership, Trustor, Ticor Title Insurance Company of
California, a California corporation, Trustee, and Vanguaro Financial
Company, an Ohio corporation, Beneficiary, dated February 8, 1989 and
recorded February 16, 1989 in Document No. 8902-03104, both of the
Records of Cochise County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
20
<PAGE> 21
Lessee: Redlon's Men's Wear
26. Unrecorded Lease dated July 19, 1988, as disclosed by Lease Assignment
by and between Sierra Vista Mall Associates Limited Partnership, an
Ohio limited partnership and Vanguaro Financial Company, an Ohio
corporation, dated February 8, 1987 and recorded February 16, 1989 in
Document No. 8902-03108; Assigning Lessors interest as additional
security for indebtedness secured by Deed of Trust by and between
Sierra Vista Mall Associates Limited Partnership, an Ohio limited
partnership, Trustor, Ticor Title Insurance Company of California, a
California corporation, Trustee, and Vanguaro Financial Company, an
Ohio corporation, Beneficiary, dated February 8, 1989 and recorded
February 16, 1989 in Document No. 8902-03104, both of the Records of
Cochise County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
Lessee: Sally Beauty Co., an Indiana corporation.
27. Unrecorded Lease dated December 12, 1988, as disclosed by Lease
Assignment by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership and Vanguaro Financial
Company, an Ohio corporation, dated February 8, 1987 and recorded
February 16, 1989 in Document No. 8902-03108; Assigning Lessors
interest as additional security for indebtedness secured by Deed of
Trust by and between Sierra Vista Mall Associates Limited Partnership,
an Ohio limited partnership, Trustor, Ticor Title Insurance Company of
California, a California corporation, Trustee, and Vanguaro Financial
Company, an Ohio corporation, Beneficiary, dated February 8, 1989 and
recorded February 16, 1989 in Document No. 8902-03104, both of the
Records of Cochise County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
Lessee: Hastings Books and Records, Inc.
28. Unrecorded Lease dated January 10, 1989, as disclosed by Lease
Assignment by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership and Vanguaro Financial
Company, an Ohio corporation, dated February 8, 1987 and recorded
February 16, 1989 in Document No. 8902-03108; Assigning Lessors
interest as additional security for indebtedness secured by Deed of
Trust by and between Sierra Vista Mall Associates Limited Partnership,
an Ohio limited partnership, Trustor, Ticor Title Insurance Company of
California, a California corporation, Trustee, and Vanguaro Financial
Company, an Ohio corporation, Beneficiary, dated February 8, 1989 and
recorded February 16, 1989 in Document No. 8902-03104, both of the
Records of Cochise County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
Lessee: Lisa Sierra and Robert Carney
29. Unrecorded Lease dated October 4, 1988, as disclosed by Lease
Assignment by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership and Vanguaro Financial
Company, an Ohio corporation, dated February 8, 1987 and recorded
February 16, 1989 in Document No. 8902-03108; Assigning Lessors
interest as additional security for indebtedness secured by Deed of
Trust by and between Sierra Vista Mall Associates Limited Partnership,
an Ohio limited partnership, Trustor, Ticor Title Insurance Company of
California, a California corporation, Trustee, and Vanguaro Financial
Company, an Ohio corporation, Beneficiary, dated February 8, 1989 and
recorded February 16, 1989 in Document No. 8902-03104, both of the
Records of Cochise County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
Lessee: Susie Rabb
30. Unrecorded Lease dated October 4, 1988, as disclosed by Lease
Assignment by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership and Vanguaro Financial
Company, an Ohio corporation, dated February 8, 1987 and recorded
February 16, 1989 in Document No. 8902-03108; Assigning Lessors
interest as additional security for indebtedness secured by Deed of
Trust by and between Sierra Vista Mall Associates Limited Partnership,
an Ohio limited partnership, Trustor, Ticor Title Insurance Company of
California, a California corporation, Trustee, and Vanguaro Financial
Company, an Ohio
21
<PAGE> 22
corporation, Beneficiary, dated February 8, 1989 and recorded February
16, 1989 in Document No. 8902-03104, both of the Records of Cochise
County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
Lessee: SMT Corporation, an Arizona corporation, doing business as
Advance Checking
31. Unrecorded Lease dated October 19, 1988, as disclosed by Lease
Assignment by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership and Vanguaro Financial
Company, an Ohio corporation, dated February 8, 1987 and recorded
February 16, 1989 in Document No. 8902-03108; Assigning Lessors
interest as additional security for indebtedness secured by Deed of
Trust by and between Sierra Vista Mall Associates Limited Partnership,
an Ohio limited partnership, Trustor, Ticor Title Insurance Company of
California, a California corporation, Trustee, and Vanguaro Financial
Company, an Ohio corporation, Beneficiary, dated February 8, 1989 and
recorded February 16, 1989 in Document No. 8902-03104, both of the
Records of Cochise County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
Lessee: Carol Brooks
32. Unrecorded Lease dated January 5, 1989, as disclosed by Lease
Assignment by and between Sierra Vista Mall Associates Limited
Partnership, an Ohio limited partnership and Vanguaro Financial
Company, an Ohio corporation, dated February 8, 1987 and recorded
February 16, 1989 in Document No. 8902-03108; Assigning Lessors
interest as additional security for indebtedness secured by Deed of
Trust by and between Sierra Vista Mall Associates Limited Partnership,
an Ohio limited partnership, Trustor, Ticor Title Insurance Company of
California, a California corporation, Trustee, and Vanguaro Financial
Company, an Ohio corporation, Beneficiary, dated February 8, 1989 and
recorded February 16, 1989 in Document No. 8902-03104, both of the
Records of Cochise County, Arizona.
Lessor: Sierra Vista Mall Associates Limited Partnership, an Ohio
limited partnership
Lessee: Tandy Corporation, a Delaware corporation
33. Rights of tenants as tenants only under any and all unrecorded leases.
<PAGE> 1
Exhibit 10.95
AMENDED AND RESTATED TERM NOTE
------------------------------
$24,375,000.00 Columbus, Ohio June 17, 1999
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
KeyBank National Association (hereinafter called the "Bank," which term shall
include any holder hereof) at such place as the Bank may designate or, in the
absence of such designation, at any of the Bank's offices, the sum of Twenty
Four Million Three Hundred Seventy-Five Thousand Dollars ($24,375,000.00) or so
much thereof as shall have been advanced by the Bank at any time and not
hereafter repaid (hereinafter referred to as "Principal Sum") together with
interest as hereinafter provided and payable at the time(s) and in the manner(s)
hereinafter provided.
This Amended and Restated Term Note ("Note") is executed and delivered
and the Loan contemplated hereunder is made pursuant to a Bridge Loan Agreement
(hereinafter called "Loan Agreement") dated as of June 17, 1999; and all the
covenants, representations, agreements, terms, and conditions contained therein,
including but not limited to conditions of default, are incorporated herein as
if fully rewritten. This Note amends and restates in its entirety that certain
Term Note made by the undersigned for the benefit of Bank, in the original
amount of Twenty-Two Million Five Hundred Thousand Dollars ($22,500,000.00),
dated June 17, 1999 ("Original Note") and amends the Original Note to evidence
the full amount of the credit facility contemplated by the Loan Agreement;
however, this Note is not intended as and shall not be deemed to be, a
repayment, cancellation, refinancing or replacement of the indebtedness created
by the Original Note but rather as a consolidation and continuation of such
indebtedness on the terms set forth herein.
INTEREST
- --------
Interest will accrue on the unpaid balance of the Principal Sum until
paid at the rate or rates of interest set forth in the Loan Agreement.
MANNER OF PAYMENT
- -----------------
The Principal Sum shall be payable on June 17, 2000, and accrued
interest shall be due and payable monthly at the times provided in the Loan
Agreement, and at maturity, whether by demand, acceleration or otherwise.
LATE CHARGE
- -----------
Any installment or other payment not made within ten (10) days of the
date such payment or installment is due shall be subject to a late charge equal
to 5% of the amount of the installment or payment.
DEFAULT
- -------
<PAGE> 2
Upon the occurrence of any of the Events of Default described in
Section 12 of the Loan Agreement, the Bank may, at its option, without notice or
demand, accelerate the maturity of the obligations evidenced hereby, which
obligations shall become immediately due and payable. In the event the Bank
shall institute any action for the enforcement or collection of the obligations
evidenced hereby, the undersigned agree to pay all costs and expenses of such
action, including reasonable attorneys' fees, to the extent permitted by law.
GENERAL PROVISIONS
- ------------------
All of the parties hereto, including the undersigned, and any endorser,
surety, or guarantor, hereby severally waive presentment, notice of dishonor,
protest, notice of protest, and diligence in bringing suit against any party
hereto, and consent that, without discharging any of them, the time of payment
may be extended an unlimited number of times before or after maturity without
notice. The Bank shall not be required to pursue any party hereto, including any
guarantor, or to exercise any rights against any collateral before exercising
any other such rights.
The obligations evidenced hereby may from time to time be evidenced by
another note or notes given in substitution, renewal or extension hereof. Any
security interest or mortgage which then secures the obligations evidenced
hereby shall remain in full force and effect notwithstanding any such
substitution, renewal, or extension.
The captions used herein are for references only and shall not be
deemed a part of this Note. If any of the terms or provisions of this Note shall
be deemed unenforceable, the enforceability of the remaining terms and
provisions shall not be affected. This Note shall be governed by and construed
in accordance with the law of the State of Ohio.
WAIVER OF RIGHT TO TRIAL BY JURY
- --------------------------------
THE UNDERSIGNED ACKNOWLEDGES THAT, AS TO ANY AND ALL DISPUTES THAT MAY
ARISE BETWEEN THE UNDERSIGNED AND THE BANK, THE COMMERCIAL NATURE OF THE
TRANSACTION OUT OF WHICH THIS NOTE ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE
FOR TRIAL BY JURY. ACCORDINGLY, THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO TRIAL
BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO THIS NOTE OR TO
ANY OF THE OTHER INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
By: Glimcher Properties Corporation
AGREED TO AND APPROVED: Its: Sole General Partner
KEYBANK NATIONAL ASSOCIATION
By: William G. Cornely
---------------------------------------
Its: Executive Vice President, COO and CFO
-2-
<PAGE> 1
Exhibit 10.96
NOTE CONSOLIDATION AND MODIFICATION AGREEMENT
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
HAVING AN OFFICE AT
20 SOUTH THIRD STREET
COLUMBUS, OHIO 43215
AND
GLIMCHER PROPERTIES CORPORATION
HAVING AN OFFICE AT
20 SOUTH THIRD STREET
COLUMBUS, OHIO 43215
AND
GLIMCHER DEVELOPMENT CORPORATION
HAVING AN OFFICE AT
20 SOUTH THIRD STREET
COLUMBUS, OHIO 43215
(collectively, the "BORROWER")
--------
and
LEHMAN BROTHERS HOLDINGS INC., d/b/a LEHMAN CAPITAL,
A DIVISION OF LEHMAN BROTHERS HOLDINGS INC.,
HAVING AN OFFICE AT
THREE WORLD FINANCIAL CENTER
NEW YORK, NEW YORK 10285
(the "LENDER")
------
LOCATION OF PREMISES:
Grand Union, Sidney, New York
Grand Union, Chatham, New York
Grand Union, South Glen Falls, New York
Mount Vernon Plaza, Mount Vernon, Ohio
Village Plaza, Manhattan, Kansas
Target Plaza, Heath, Ohio
Toys R Us Plaza, Springfield, Ohio
Twin County Plaza, Galax, Virginia
- --------------------------------------------------------------------------------
<PAGE> 2
NOTE CONSOLIDATION AND MODIFICATION AGREEMENT
---------------------------------------------
AGREEMENT made as of this 28th day of April, 1999, between GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, having its
principal place of business at 20 South Third Street, Columbus, Ohio 43215
("GPLP"), GLIMCHER PROPERTIES CORPORATION, a Delaware corporation, having its
principal place of business at 20 South Third Street, Columbus, Ohio 43215
("GPC"), and GLIMCHER DEVELOPMENT CORPORATION, a Delaware corporation, having
its principal place of business at 20 South Third Street, Columbus, Ohio 43215
("GDC", and collectively, "BORROWER") and LEHMAN BROTHERS HOLDINGS INC., a
Delaware corporation, d/b/a LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS
HOLDINGS INC., as lender, having an address at Three World Financial Center, New
York, New York 10285 ("LENDER").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Lender is the lawful owner and holder of that certain
promissory note dated September 15, 1998 made by GPLP and GPC to Bankers Trust
Company in the principal sum of $10,000,000 and assigned to Lender and modified
by that certain Note Modification Agreement dated as of March 15, 1999 between
GPLP and GPC and Lender, as amended and restated by that certain Amended and
Restated Promissory Note from GPLP and GPC to Lender dated as of March 15, 1999
("PRIOR NOTE A"), which Prior Note A evidences a total existing outstanding
principal indebtedness of $10,000,000 together with interest thereon; and
WHEREAS, the Lender is the lawful owner and holder of that certain
promissory note dated October 13, 1998 made by GPLP, GDC and Weberstown Mall LLC
to The Huntington
<PAGE> 3
National Bank in the principal sum of $14,000,000, as extended by the certain
Extension Agreement dated April 13, 1999 between GPLP and GDC and Weberstown
Mall LLC and The Huntington National Bank and assigned to Lender ("PRIOR NOTE B"
and collectively with Prior Note A, the "PRIOR NOTES"), which Prior Note B
evidences a total existing outstanding principal indebtedness of $11,500,000
together with interest thereon; and
WHEREAS, the Lender and the Borrower have agreed to consolidate and
modify the Prior Notes as hereinafter set forth.
NOW THEREFORE, in consideration of the agreements herein expressed and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto covenant and agree as follows:
1. The Prior Notes and the indebtedness evidenced thereby are hereby
consolidated so that together they shall hereafter evidence a single
indebtedness in the aggregate principal amount of the $21,500,000.00 (the
"Indebtedness") together with interest thereon.
2. The Borrower hereby acknowledges that it is indebted to the Lender
in accordance with the Prior Notes and that the outstanding principal balance of
the Prior Notes is, on the date hereof, $21,500,000.00, with interest thereon
and that there are no defenses, offsets or counterclaims to the payment of same.
3. The Borrower hereby agrees and promises to pay to the Lender the
Indebtedness, together with interest thereon, in accordance with the terms,
covenants and conditions set forth in the form of the Amended and Restated
Promissory Note attached hereto as Exhibit A (the "PROMISSORY NOTE").
3
<PAGE> 4
4. The Promissory Note is intended to amend and restate in their
entirety the Prior Notes; however, the Promissory Note is not intended to create
any new indebtedness nor to constitute a novation as to Borrower's obligations
under the Prior Note.
5. All references in the Promissory Note attached as Exhibit A to the
term "MORTGAGE" shall mean (a) those certain mortgages made by GPLP and Glimcher
York Associates Limited Partnership ("YORK") to Bankers Trust Company dated
October 30, 1998 and assigned to Lender, as the same have been modified by those
certain Mortgage Modification Agreements executed between Lender and GPLP and
York as of March 15, 1999, and those certain Mortgage Modification Agreements
executed between Lender and GPLP and York as of the date hereof, (b) those
certain mortgages made by GPLP and GDC to The Huntington National Bank dated
October 13, 1998 and assigned to Lender, as the same have been modified by those
certain Mortgage Modification Agreements executed between Lender and GPLP and
GDC as of the date hereof, and that certain deed of trust, assignment of rents
and security agreement made by Glimcher Properties Limited Partnership to
Alexander Title Agency, Inc., Trustee, and The Huntington National Bank dated
October 13, 1998 and assigned to Lender, as the same has been modified by that
certain Deed of Trust Modification Agreement executed by Lender, Borrower and
Trustee as of the date hereof.
6. Simultaneous with the execution of this Agreement, the Borrower
shall pay to Lender an origination fee equal to (i) 0.625% multiplied by (ii)
the principal amount of the indebtedness evidenced by Prior Note B.
7. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which, when taken
together, shall constitute one and the same instrument and shall become
effective when copies hereof, when taken together,
4
<PAGE> 5
bear the signatures of each of the parties hereto and it shall not be necessary
in making proof of this instrument to produce or account for more than one of
such fully executed counterparts.
5
<PAGE> 6
IN WITNESS WHEREOF, this instrument has been executed by each of the
parties hereto as of the date first above written.
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, a Delaware
corporation, its sole general partner
By: /s/ WILLIAM G. CORNELY
--------------------------------------------
Name: William G. Cornely
Title: Executive Vice President
CFO/COO
GLIMCHER PROPERTIES CORPORATION, a
Delaware corporation
By: /s/ WILLIAM G. CORNELY
--------------------------------------------
Name: William G. Cornely
Title: Executive Vice President
CFO/COO
LEHMAN BROTHERS HOLDINGS INC., doing
business as Lehman Capital, a division of
Lehman Brothers Holdings Inc.
By: /s/ Thomas A. Hawkins
--------------------------------------------
Name: THOMAS A. HAWKINS
Title: Authorized Signatory
5
<PAGE> 7
STATE OF OHIO)
: ss.:
COUNTY OF FRANKLIN)
On the 15th day of March, 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared WILLIAM G. CORNELY
personally known to me or proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his capacity as Executive Vice President of
Glimcher Properties Corporation, as the sole general partner of Glimcher
Properties Limited Partnership, and that by his signature on the instrument, the
entity upon behalf of which the person acted, executed the instrument.
/s/ MARY GORELL
-----------------------------------
Notary Public
MARY GORELL
Notary Public, State of Ohio
My Commission Expires 06-24-2002
STATE OF OHIO)
: ss.:
COUNTY OF FRANKLIN)
On the 15th day of March, 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared WILLIAM G. CORNELY
personally known to me or proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity as Executive Vice
President of Glimcher Properties Corporation, and that by his signature on the
instrument, the entity upon behalf of which the person acted, executed the
instrument.
/s/ MARY GORELL
-----------------------------------
Notary Public
MARY GORELL
Notary Public, State of Ohio
My Commission Expires 06-24-2002
6
<PAGE> 8
STATE OF NEW YORK )
: ss.:
COUNTY OF ORANGE )
On the 16th of March, 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared Thomas A. Hawkins
personally known to me or proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/his/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
/s/ MARYANN BIELFELD
-----------------------------------
Notary Public
MARYANN BIELFIED
Notary Public, State of New York
No. 018I-4987798
Qualified in Orange County
Commission Expires February 4, 2000
<PAGE> 9
EXHIBIT A
---------
AMENDED AND RESTATED PROMISSORY NOTE
------------------------------------
9
<PAGE> 1
Exhibit 10.97
MORTGAGE MODIFICATION AGREEMENT
GLIMCHER YORK ASSOCIATES LIMITED PARTNERSHIP
HAVING AN OFFICE AT
20 SOUTH THIRD STREET
COLUMBUS, OHIO 43215
(the "MORTGAGOR")
and
LEHMAN BROTHERS HOLDINGS INC., D/B/A LEHMAN CAPITAL,
A DIVISION OF LEHMAN BROTHERS HOLDINGS INC.,
HAVING AN OFFICE AT
THREE WORLD FINANCIAL CENTER
NEW YORK, NEW YORK 10285
(the "MORTGAGEE")
LOCATION OF PREMISES:
Grand Union, Sidney, New York
- ------------------------------------------------------------------------------
RECORD AND RETURN TO:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Joseph Vidulich, Esq.
This instrument was prepared by the above named attorney
<PAGE> 2
MORTGAGE MODIFICATION AGREEMENT
-------------------------------
AGREEMENT made as of this 28th day of April, 1999, between
GLIMCHER YORK ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership,
having its principal place of business at 20 South Third Street, Columbus, Ohio
43215 and ("MORTGAGOR") and LEHMAN BROTHERS HOLDINGS INC., a Delaware
corporation, d/b/a LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC.,
as lender, having an address at Three World Financial Center, New York, New York
10285 ("MORTGAGEE").
W I T N E S E T H :
-----------------
WHEREAS, the Mortgagee is now the lawful owner and holder of
that certain mortgage described on Schedule B attached hereto (the "MORTGAGE")
encumbering the premises described in Schedule A attached hereto together with
the improvements now or hereafter located thereon and all other property
intended to be encumbered thereby (collectively, the "MORTGAGED PROPERTY")
granted by the Mortgagor to the Mortgagee and the Promissory Note dated
September 15, 1998 made by Glimcher Properties Limited Partnership ("GPLP")and
Glimcher Properties Corporation ("GPC") to Bankers Trust Company and assigned to
Mortgagee as modified by that certain Note Modification Agreement dated as of
March 15, 1999 and amended and restated by that certain Amended and Restated
Promissory Note dated as of March 15, 1999 (the "NOTE") made by GPLP and GPC to
Mortgagee; and
WHEREAS, the Mortgagee, as the holder of the Note, and the
Borrower have agreed to increase the amount of and otherwise modify the Note in
accordance with a Note
<PAGE> 3
Consolidation and Modification Agreement dated the date hereof between the GPLP,
GPC and Glimcher Development Corporation ("GDC", and with GPLP and GPC,
collectively "BORROWER") and the Mortgagee (the "NOTE MODIFICATION AGREEMENT")
and Mortgagor and Mortgagee have agreed to modify the terms of the Mortgage, in
the manner hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements herein contained, the parties hereto covenant and agree
as follows:
1. The Mortgagor hereby acknowledges that the Note has been
amended and restated in accordance with the Note Modification Agreement and
agrees that the Mortgage secures the Note as so modified and evidenced by that
certain Amended and Restated Note dated the date hereof made by Borrower to
Mortgagee (the "AMENDED AND RESTATED NOTE") pursuant to the Note Modification
Agreement. All references in the Mortgage to the Note shall be deemed to refer
to the Amended and Restated Note.
2. The second sentence of the Paragraph entitled "Background"
on page 1 of the Mortgage is amended to read as follows:
Glimcher Proeprties Limirted Partnership (GPLP") a Delaware
limited partnership and the parent of Mortgagor and Glimcher Properties
Corporation, ("GPC") are the maker of a note dated as of September 15,
1998 made payable to Bankers Trust Company, as modified by that certain
Note Modification Agreement dated as of March 15, 1999 between GPLP and
GPC and Mortgagee, and amended and restated by that certain Amended and
Restated Promissory Note dated as of March 15, 1999 made by GPLP and
GPC to Mortgagee, and consolidated and further modified by that certain
Note Consolidation and Modification Agreement dated as of the date
hereof between GPLP, GPC and Glimcher Development Corporation ("GDC")
and Mortgagee, and amended and restated by that certain Amended and
Restated Promissory
<PAGE> 4
Note dated as of the date hereof made by GPLP, GPC and GDC to Mortgagee
in the amount of $21,500,000.00 (as the same may be further amended,
supplemented, modified, extended, restated or replaced from time to
time, the "Note").
3. The amount of "THREE MILLION AND 00/100 DOLLARS
($3,000,000.00)" set forth in paragraph (c) on page 2 of the Mortgage is amended
to read "FOUR MILLION SIX HUNDRED NINETY THOUSAND AND 00/100 DOLLARS
($4,690,000.00)".
4. All references to the Mortgage in the Amended and Restated
Note and any of the other Loan Documents (as defined in the Amended and Restated
Note) shall be deemed to refer to the Mortgage as modified by this Agreement.
5. The Mortgagor covenants and agrees that there is presently
outstanding on the Amended and Restated Note the principal sum of $21,500,000.00
with interest thereon from April 28, 1999, that there exist no defenses,
counterclaims or offsets to its obligations for the payment of the indebtedness
evidenced by the Amended and Restated Note, that, except as modified herein, the
Mortgage remains unmodified and in full force and effect, and that the maximum
amount secured by the Mortgage as modified herein is $4,690,000.00.
6. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute one and the same instrument and shall
become effective when copies hereof, when taken together, bear the signatures of
each of the parties hereto and it shall not be necessary in making proof of this
instrument to produce or account for more than one of such fully executed
counterparts.
<PAGE> 5
[The balance of this page has been intentionally left blank]
<PAGE> 6
IN WITNESS WHEREOF, this instrument has been executed by each of the
parties hereto as of the date first above written.
GLIMCHER YORK ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher York, Inc., a Delaware corporation,
its sole general partner
By: /s/ William G. Cornely
---------------------------------------
Name: William G. Cornely
Title: Executive Vice President
CFO/COO
LEHMAN BROTHERS HOLDINGS INC., doing
business as Lehman Capital, a division of
Lehman Brothers Holdings Inc.
By: /s/ Thomas A. Hawkins
-------------------------------------------
Name:Thomas A. Hawkins
Title: Authorized Signatory
<PAGE> 7
STATE OF OHIO )
: ss.:
COUNTY OF FRANKLIN )
On the 15th day of March, 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared WILLIAM G. CORNELY
personally known to me or proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
/s/ MARY GORELL
-----------------------------------
Notary Public
MARY GORELL
Notary Public, State of Ohio
My Commission Expires 06-24-2002
<PAGE> 8
STATE OF NEW YORK )
: ss.:
COUNTY OF ORANGE )
On the 16th day of March, 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared Thomas A. Hawkins
personally known to me or proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
/s/ Maryann Bielfeld
-----------------------------------
Notary Public
MARYANN BIELFELD
Notary Public, State of New York
No. 01BI-4987798
Qualified in Orange County
Commission Expires February 4, 2000
<PAGE> 9
SCHEDULE A
----------
METES AND BOUNDS DESCRIPTION
<PAGE> 10
SCHEDULE B
----------
THE MORTGAGE
Mortgage dated October 30, 1998 made by Glimcher York Associates Limited
Partnership to Bankers Trust Company and recorded in the office of the Delaware
County Clerk on December 24, 1998 at Liber 713 of Mortgages, page 212.
Which mortgage was assigned by Bankers Trust Company to the Mortgagee by
assignment of mortgage dated March 15, 1999 and recorded in the office of the
Delaware County Clerk on March 26, 1999 at Liber 728 of Mortgages, page 179.
Which mortgage was modified by Mortgagee Modification Agreement between Glimcher
Properties Limited Partnership and Mortgagee dated March 15, 1999 and recorded
in the Delaware County Clerk on March 26, 1999 at Liber 728 of Mortgages, page
169.
<PAGE> 1
Exhibit 19.98
MORTGAGE MODIFICATION AGREEMENT
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
HAVING AN OFFICE AT
20 SOUTH THIRD STREET
COLUMBUS, OHIO 43215
(the "MORTGAGOR")
and
LEHMAN BROTHERS HOLDINGS INC., D/B/A LEHMAN CAPITAL,
A DIVISION OF LEHMAN BROTHERS HOLDINGS INC.,
HAVING AN OFFICE AT
THREE WORLD FINANCIAL CENTER
NEW YORK, NEW YORK 10285
(the "MORTGAGEE")
LOCATION OF PREMISES:
Mount Vernon Plaza, Mount Vernon, Ohio
------------------------------------------------------------------------------
RECORD AND RETURN TO:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Joseph Vidulich, Esq.
This instrument was prepared by the above named attorney
<PAGE> 2
MORTGAGE MODIFICATION AGREEMENT
-------------------------------
AGREEMENT made as of this 28th day of April, 1999, between
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, having
its principal place of business at 20 South Third Street, Columbus, Ohio 43215
and ("MORTGAGOR") and LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation,
d/b/a LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC., as lender,
having an address at Three World Financial Center, New York, New York 10285
("MORTGAGEE").
W I T N E S E T H :
-----------------
WHEREAS, the Mortgagee is now the lawful owner and holder of
that certain mortgage described on Schedule B attached hereto (the "MORTGAGE")
encumbering the premises described in Schedule A attached hereto together with
the improvements now or hereafter located thereon and all other property
intended to be encumbered thereby (collectively, the "MORTGAGED PROPERTY")
granted by the Mortgagor to the Mortgagee and the Promissory Note dated
September 15, 1998 made by Mortgagee and Glimcher Properties Corporation ("GPC")
to Bankers Trust Company and assigned to Mortgagee, as modified by that certain
Note Modification Agreement dated as of March 15, 1999 and amended and restated
by that certain Amended and Restated Promissory Note dated as of March 15, 1999
(the "NOTE") made by Mortgagor and GPC to Mortgagee; and
WHEREAS, the Mortgagee, as the holder of the Mortgage, and the
Mortgagor, as the owner of the Mortgaged Property, have agreed to increase the
amount of and otherwise
<PAGE> 3
modify the Note in accordance with a Note Consolidation and Modification
Agreement dated the date hereof between Mortgagor, GPC and Glimcher Development
Corporation ("GDC", and with Mortgagor and GPC, collectivley, "BORROWER") and
the Mortgagee (the "NOTE MODIFICATION AGREEMENT") and to modify the terms of the
Mortgage, in the manner hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements herein contained, the parties hereto covenant and agree
as follows:
1. The Mortgagor hereby acknowledges that the Note has been
amended and restated in accordance with the Note Modification Agreement and
agrees that the Mortgage secures the Note as so modified and hereby agrees to
pay the indebtedness evidenced by the Note and interest thereon at the rate of
interest and on the terms provided for in the Amended and Restated Note dated
the date hereof made by Borrower to Mortgagee (the "AMENDED AND RESTATED NOTE")
pursuant to the Note Modification Agreement. All references in the Mortgage to
the Note shall be deemed to refer to the Amended and Restated Note.
2. The second sentence of the Paragraph entitled "Background"
on page 1 of the Mortgage is amended to read as follows:
Mortgagor and Glimcher Properties Corporation ("GPC") are the
maker of a note dated as of September 15, 1998 made payable to Bankers
Trust Company, as modified by that certain Note Modification Agreement
dated as of March 15, 1999 between Mortgagor and GPC and Mortgagee, and
amended and restated by that certain Amended and Restated Promissory
Note dated as of March 15, 1999 made by Mortgagor and GPC to Mortgagee,
and consolidated and further modified by that certain Note
Consolidation and Modification Agreement dated as of the date hereof
between Mortgagor GPC and Glimcher Development Corporation ("GDC") and
Mortgagee, and amended and restated
<PAGE> 4
by that certain Amended and Restated Promissory Note dated as of the
date hereof made by Mortgagor, GPC and GDC to Mortgagee in the amount
of $21,500,000.00 (as the same may be further amended, supplemented,
modified, extended, restated or replaced from time to time, the
"Note").
3. All references to the Mortgage in the Amended and Restated
Note and any of the other Loan Documents (as defined in the Amended and Restated
Note) shall be deemed to refer to the Mortgage as modified by this Agreement.
4. The Mortgagor covenants and agrees that there is presently
outstanding on the Amended and Restated Note the principal sum of $21,500,000.00
with interest thereon from April 28, 1999, that there exist no defenses,
counterclaims or offsets to its obligations for the payment of the indebtedness
evidenced by the Amended and Restated Note, and that, except as modified herein,
the Mortgage remains unmodified and in full force and effect.
5. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute one and the same instrument and shall
become effective when copies hereof, when taken together, bear the signatures of
each of the parties hereto and it shall not be necessary in making proof of this
instrument to produce or account for more than one of such fully executed
counterparts.
[The balance of this page has been intentionally left blank]
<PAGE> 5
IN WITNESS WHEREOF, this instrument has been executed by each of the
parties hereto as of the date first above written.
Signed and acknowledged GLIMCHER PROPERTIES LIMITED
in the presence of: PARTNERSHIP, a Delaware limited partnership
/s/ Dennis J. Kovach By: Glimcher Properties Corporation, a Delaware
- --------------------------- corporation, its sole general partner
Signature
By: /s/ William G. Cornely
Dennis J. Kovach --------------------------------------------
- --------------------------- Name: William G. Cornely
Printed Name Title: Executive Vice President
CFO/COO
/s/ Jacqueline C. Lukasik
- ---------------------------
Signature
Jacqueline C. Lukasik
- ---------------------------
Printed Name
LEHMAN BROTHERS HOLDINGS INC., doing business as
Lehman Capital, a division of Lehman Brothers
Holdings Inc.
By: /s/ Thomas A. Hawkins
--------------------------------------------
Name: THOMAS A. HAWKINS
Title: Authorized Signatory
<PAGE> 6
STATE OF OHIO )
: ss.:
COUNTY OF FRANKLIN )
On the 15th day of March, 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared WILLIAM G. CORNELY
personally known to me or proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
/s/ Mary Gorell
-----------------------------------
Notary Public
MARY GORELL
Notary Public, State of Ohio
My Commission Expires 06-24-2002
<PAGE> 7
STATE OF NEW YORK )
: ss.:
COUNTY OF ORANGE )
On the 16th day of March, 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared Thomas A. Hawkins
personally known to me or proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
/s/ Maryann Bielfeld
-----------------------------------
Notary Public
MARYANN BIELFELD
Notary Public, State of New York
No. 01BI-4987798
Qualified in Orange County
Commission Expires February 4, 2000
<PAGE> 8
SCHEDULE A
----------
METES AND BOUNDS DESCRIPTION
<PAGE> 9
SCHEDULE B
----------
THE MORTGAGE
Mortgage dated October 30, 1998 made by Glimcher Properties Limited Partnership
to Bankers Trust Company and recorded in the Knox County, Ohio Records on
December ___ 1998 at Volume 573 page 434.
Which mortgage was assigned by Bankers Trust Company to the Mortgagee by
assignment of mortgage dated March 15, 1999 and recorded in the Knox County,
Ohio Records on ________ ___ 1999 at Volume ____ page ___.
Which mortgage was modified by Mortgagee Modification Agreement between Glimcher
Properties Limited Partnership and Mortgagee dated March 15, 1999 and recorded
in the Knox County, Ohio Records on ________ ___ 1999 at Volume ____ page ___.
<PAGE> 1
MORTGAGE MODIFICATION AGREEMENT
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
HAVING AN OFFICE AT
20 SOUTH THIRD STREET
COLUMBUS, OHIO 43215
(the "MORTGAGOR")
and
LEHMAN BROTHERS HOLDINGS INC., D/B/A LEHMAN CAPITAL,
A DIVISION OF LEHMAN BROTHERS HOLDINGS INC.,
HAVING AN OFFICE AT
THREE WORLD FINANCIAL CENTER
NEW YORK, NEW YORK 10285
(the "MORTGAGEE")
LOCATION OF PREMISES:
Village Plaza, Manhattan, Kansas
------------------------------------------------------------------------------
RECORD AND RETURN TO:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Joseph Vidulich, Esq.
This instrument was prepared by the above named attorney
<PAGE> 2
MORTGAGE MODIFICATION AGREEMENT
-------------------------------
AGREEMENT made as of this 28th day of April, 1999, between
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, having
its principal place of business at 20 South Third Street, Columbus, Ohio 43215
and ("MORTGAGOR") and LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation,
d/b/a LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC., as lender,
having an address at Three World Financial Center, New York, New York 10285
("MORTGAGEE").
W I T N E S E T H :
-----------------
WHEREAS, the Mortgagee is now the lawful owner and holder of
that certain mortgage described on Schedule B attached hereto (the "MORTGAGE")
encumbering the premises described in Schedule A attached hereto together with
the improvements now or hereafter located thereon and all other property
intended to be encumbered thereby (collectively, the "MORTGAGED PROPERTY")
granted by the Mortgagor to the Mortgagee and the Promissory Note dated
September 15, 1998 made by Mortgagee and Glimcher Properties Corporation ("GPC")
to Bankers Trust Company and assigned to Mortgagee, as modified by that certain
Note Modification Agreement dated as of March 15, 1999 and amended and restated
by that certain Amended and Restated Promissory Note dated as of March 15, 1999
(the "NOTE") made by Mortgagor and GPC to Mortgagee; and
WHEREAS, the Mortgagee, as the holder of the Mortgage, and the
Mortgagor, as the owner of the Mortgaged Property, have agreed to increase the
amount of and otherwise
<PAGE> 3
modify the Note in accordance with a Note Consolidation and Modification
Agreement dated the date hereof between Mortgagor, GPC and Glimcher Development
Corporation ("GDC", and with Mortgagor and GPC, collectively "BORROWER") and the
Mortgagee (the "NOTE MODIFICATION AGREEMENT") and to modify the terms of the
Mortgage, in the manner hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements herein contained, the parties hereto covenant and agree
as follows:
1. The Mortgagor hereby acknowledges that the Note has been
amended and restated in accordance with the Note Modification Agreement and
agrees that the Mortgage secures the Note as so modified and hereby agrees to
pay the indebtedness evidenced by the Note and interest thereon at the rate of
interest and on the terms provided for in the Amended and Restated Note dated
the date hereof made by Borrower to Mortgagee (the "AMENDED AND RESTATED NOTE")
pursuant to the Note Modification Agreement. All references in the Mortgage to
the Note shall be deemed to refer to the Amended and Restated Note.
2. The second sentence of the Paragraph entitled "Background"
on page 1 of the Mortgage is amended to read as follows:
Mortgagor and Glimcher Properties Corporation ("GPC") are the
maker of a note dated as of September 15, 1998 made payable to Bankers
Trust Company, as modified by that certain Note Modification Agreement
dated as of March 15, 1999 between Mortgagor and GPC and Mortgagee, and
amended and restated by that certain Amended and Restated Promissory
Note dated as of March 15, 1999 made by Mortgagor and GPC to Mortgagee,
and consolidated and further modified by that certain Note
Consolidation and Modification Agreement dated as of the date hereof
between Mortgagor GPC and Glimcher Development Corporation ("GDC") and
Mortgagee, and amended and restated
<PAGE> 4
by that certain Amended and Restated Promissory Note dated as of the
date hereof made by Mortgagor, GPC and GDC to Mortgagee in the amount
of $21,500,000.00 (as the same may be further amended, supplemented,
modified, extended, restated or replaced from time to time, the
"Note").
3. Section 42 of the Mortgage is deleted in its entirety and
replaced by the following:
42. MAXIMUM AMOUNT SECURED. With respect to this Mortgage on
properties located in Kansas, the maximum amount secured hereby is
$1,750,000. Property located in Kansas may be released from this
Mortgage upon payment of the amount provided in that certain Amended
and Restated Note dated as of April 28, 1999 made by Mortgagor and
Glimcher Development Corporation to Lehman Brothers Holdings Inc.,
d/b/a Lehman Capital, a Division of Lehman Brothers Holdings Inc.
4. All references to the Mortgage in the Amended and Restated
Note and any of the other Loan Documents (as defined in the Amended and Restated
Note) shall be deemed to refer to the Mortgage as modified by this Agreement.
5. The Mortgagor covenants and agrees that there is presently
outstanding on the Amended and Restated Note the principal sum of $21,500,000.00
with interest thereon from April 28, 1999, that there exist no defenses,
counterclaims or offsets to its obligations for the payment of the indebtedness
evidenced by the Amended and Restated Note, and that, except as modified herein,
the Mortgage remains unmodified and in full force and effect.
6. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute one and the same instrument and shall
become effective when copies hereof, when taken together, bear the signatures of
each of the parties hereto and it shall not be necessary in
<PAGE> 5
making proof of this instrument to produce or account for more than one of such
fully executed counterparts.
[The balance of this page has been intentionally left blank]
<PAGE> 6
IN WITNESS WHEREOF, this instrument has been executed by each of the
parties hereto as of the date first above written.
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, a Delaware
corporation, its sole general partner
By: /s/ William G. Cornely
--------------------------------------------
Name: William G. Cornely
Title: Executive Vice President
CFO/COO
LEHMAN BROTHERS HOLDINGS INC., doing business as
Lehman Capital, a division of Lehman Brothers
Holdings Inc.
By: /s/ Thomas A. Hawkins
--------------------------------------------
Name: THOMAS A. HAWKINS
Title: Authorized Signatory
<PAGE> 7
STATE OF OHIO )
: ss.:
COUNTY OF FRANKLIN )
On the 15th day of March, 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared WILLIAM G. CORNELY
personally known to me or proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
/s/ Mary Gorell
-----------------------------------
Notary Public
MARY GORELL
Notary Public, State of Ohio
My Commission Expires 06-24-2002
<PAGE> 8
STATE OF NEW YORK )
: ss.:
COUNTY OF ORANGE )
On the 16th day of March, 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared Thomas A. Hawkins
personally known to me or proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), andthat by his/her/their signature(s) on the instrument, the
person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
/s/ MARYANN BIELFELD
-----------------------------------
Notary Public
MARYANN BIELFELD
Notary Public, State of New York
No. 01BI-4987798
Qualified in Orange County
My Commission Expires February 4, 2000
<PAGE> 9
SCHEDULE A
METES AND BOUNDS DESCRIPTION
<PAGE> 10
SCHEDULE B
THE MORTGAGE
Mortgage dated October 30, 1998 made by Glimcher Properties Limited Partnership
to Bankers Trust Company and recorded in the office of the Register of Deeds of
Riley County, Kansas, on December 23, 1998 at Liber 748, page 991.
Which mortgage was assigned by Bankers Trust Company to the Mortgagee by
assignment of mortgage dated March 15, 1999 and recorded in the office of the
Register of Deeds of Riley County, Kansas, on ________ ___ 1999 at Liber ____,
page ___.
Which mortgage was modified by Mortgagee Modification Agreement between Glimcher
Properties Limited Partnership and Mortgagee dated March 15, 1999 and recorded
in the office of the Register of Deeds of Riley County, Kansas, on ________ ___
1999 at Liber ____, page ___.
<PAGE> 1
Exhibit 10.01
MORTGAGE MODIFICATION AGREEMENT
GLIMCHER DEVELOPMENT CORPORATION
HAVING AN OFFICE AT
20 SOUTH THIRD STREET
COLUMBUS, OHIO 43215
(the "MORTGAGOR")
and
LEHMAN BROTHERS HOLDINGS INC., D/B/A LEHMAN CAPITAL,
A DIVISION OF LEHMAN BROTHERS HOLDINGS INC.,
HAVING AN OFFICE AT
THREE WORLD FINANCIAL CENTER
NEW YORK, NEW YORK 10285
(the "MORTGAGEE")
LOCATION OF PREMISES:
Toys R Us Plaza, Springfield, Ohio
------------------------------------------------------------------------------
RECORD AND RETURN TO:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Joseph Vidulich, Esq.
This instrument was prepared by the above named attorney
<PAGE> 2
MORTGAGE MODIFICATION AGREEMENT
-------------------------------
AGREEMENT made as of this 28th day of April, 1999, between
GLIMCHER DEVELOPMENT CORPORATION, a Delaware corporation, having its principal
place of business at 20 South Third Street, Columbus, Ohio 43215 and
("MORTGAGOR") and LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation, d/b/a
LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC., as lender, having
an address at Three World Financial Center, New York, New York 10285
("MORTGAGEE").
W I T N E S E T H :
-----------------
WHEREAS, the Mortgagee is now the lawful owner and holder of
that certain mortgage described on Exhibit B attached hereto (the "MORTGAGE")
encumbering the premises described in Exhibit A attached hereto together with
the improvements now or hereafter located thereon and all other property
intended to be encumbered thereby (collectively, the "MORTGAGED PROPERTY")
granted by the Mortgagor to the Mortgagee and the Promissory Note dated October
13, 1998 made by Mortgagor, Glimcher Properties Limited Partnership ("GPLP") and
Weberstown Mall, LLC to The Huntington National Bank and assigned to Mortgagee,
(the "NOTE"); and
WHEREAS, the Mortgagee, as the holder of the Mortgage, and the
Mortgagor, as the owner of the Mortgaged Property, have agreed to increase the
amount of, extend the Maturity Date of and otherwise modify the Note in
accordance with a Note Consolidation and Modification Agreement dated the date
hereof between Mortgagor, GPLP and Glimcher Properties Corporation ("GPC", and
with Mortgagor and GPLP, collectively "BORROWER")
<PAGE> 3
and the Mortgagee (the "NOTE MODIFICATION AGREEMENT") and to modify the terms of
the Mortgage, in the manner hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements herein contained, the parties hereto covenant and agree
as follows:
1. The Mortgagor hereby acknowledges that the Note has been
amended and restated in accordance with the Note Modification Agreement and
agrees that the Mortgage secures the Note as so modified and hereby agrees to
pay the indebtedness evidenced by the Note and interest thereon at the rate of
interest and on the terms provided for in the Amended and Restated Note dated
the date hereof made by Borrower to Mortgagee (the "AMENDED AND RESTATED NOTE")
pursuant to the Note Modification Agreement. All references in the Mortgage to
the Note shall be deemed to refer to the Amended and Restated Note.
2. The Maturity Date of the Amended and Restated Note shall be
extended in accordance with the terms of the Note Modification Agreement.
3. All of the provisions of the Mortgage are amended and
restated in their entirety to read as provided in and shall be superseded by all
the provisions of the Mortgage attached hereto as EXHIBIT C.
4. All references to the Mortgage in the Amended and Restated
Note and any of the other Loan Documents (as defined in the Amended and Restated
Note) shall be deemed to refer to the Mortgage as modified by this Agreement.
<PAGE> 4
5. The Mortgagor covenants and agrees that there is presently
outstanding on the Amended and Restated Note the principal sum of $21,500,000.00
with interest thereon from April 28, 1999, that there exist no defenses,
counterclaims or offsets to its obligations for the payment of the indebtedness
evidenced by the Amended and Restated Note, and that, except as modified herein,
the Mortgage remains unmodified and in full force and effect.
6. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute one and the same instrument and shall
become effective when copies hereof, when taken together, bear the signatures of
each of the parties hereto and it shall not be necessary in making proof of this
instrument to produce or account for more than one of such fully executed
counterparts.
[The balance of this page has been intentionally left blank]
<PAGE> 5
IN WITNESS WHEREOF, this instrument has been executed by each of the
parties hereto as of the date first above written.
GLIMCHER DEVELOPMENT CORPORATION,
a Delaware corporation
By: /s/ George A. Schmidt
----------------------------------
Name: George A Schmidt
Title: Executive Vice President
LEHMAN BROTHERS HOLDINGS
INC., doing business as
Lehman Capital, a division
of Lehman Brothers Holdings
Inc.
By: /s/ Mary Pat Archer
---------------------------------
Name:Mary Pat Archer
Title: Senior Vice President
<PAGE> 6
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 26th day of April, 1999, 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 person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
/s/ Man Wai Lau
-----------------------------------
Notary Public
Man Wai Lau
Notary Public, State of New York
No. 24-4781742
Qualified in Kings County
Certificate Filed in New York County
Commission Expires Nov. 30, 1999
<PAGE> 7
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 28th day of April, 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared Mary Pat Archer
personally known to me or proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and acknowledged
to me that she executed the same in her capacity, and that by her signature on
the instrument, the person, or the entity upon behalf of which the person
acted, executed the instrument.
/s/ Saleenah Callaway
-----------------------------------
Notary Public
Saleenah Callaway
Notary Public, State of New York
Certificate Filed in New York County
Commission Expires March 3, 2001
<PAGE> 8
EXHIBIT A
---------
METES AND BOUNDS DESCRIPTION
<PAGE> 9
EXHIBIT
LEGAL DESCRIPTION
Situated in the Township of Springfield, County of Clark and State of Ohio:
Lying in Section 12, Town 4, Range 9, Springfield Township, Clark County, Ohio.
Being the remainder of the Nicholas B. Pavlatos original 17.78 acre tract as
deeded and described in Volume 642, Page 189, of the Clark County Records of
Deeds and being more particularly described as follows:
Beginning at a concrete monument found at Station 700 plus 00 of the center line
survey of Ohio Route 41.
Thence, with the centerline of Ohio Route 41, North 71 degrees 23' 50" West, a
distance of 17.81 feet to a point on an East corporation line of the City of
Springfield;
Thence, with the said corporation line, North 6 degrees 20' 00" East , a
distance of 127.92 feet to a 5/8 inch rod set at an angle in the corporation
line and the North limited access right-of-way of Ohio Route 41 and the true
point of beginning;
Thence, with the East line of the State of Ohio 7.965 acre tract (Vol. 645, Page
23), North 6 degrees 20' 00" East, a distance of 624.98 feet to a 5/8 inch
iron rod set, passing a 5/8 inch iron rod set at 534.98 feet;
Thence, with South line of the Springfield Commons 24.127 acre tract (Plat Book
16, Page 240) and a South corporation line of the City of Springfield, South 84
degrees 13' 05" East, a distance of 316.81 feet to a 5/8 inch iron rod set;
Thence, with the West limited access right-of-way of Bechtle Avenue (varying
width) part of the State of Ohio 9.015 acre tract (Vol.717, Page 67), South 13
degrees 55' 55" West, a distance of 659.88 feet to a 5/8 inch iron rod set,
passing a 5/8 inch iron rod set at 144.05 feet;
Continued...
<PAGE> 10
EXHIBIT
LEGAL DESCRIPTION, CONTINUED...
Thence, with the North limited access right-of-way of Ohio Route 41 (Troy
Pike), North 77 degrees 11' 24" West, a distance of 231.01 feet to the point of
beginning;
Containing 4.022 acres of which 0.826 acre with within the Highways
right-of-way.
The basis for bearings is based upon the centerline of Ohio Route 41 being
North 71 degrees 23' 50" West and all other bearings are from angles and
distances measured in a field survey by Lee Surveying and Mapping Company on
August 30, 1995.
<PAGE> 11
SCHEDULE B
THE MORTGAGE
Mortgage dated October 13, 1998 made by Glimcher Properties Limited Partnership
to The Huntington National Bank and recorded in the Clark County, Ohio Records
on October 23,1998 at Book 1270, page 171.
Which mortgage was assigned by The Huntington National Bank to the Mortgagee by
Assignment of Mortgage dated the date hereof and recorded in the Knox County,
Ohio Records on ________ ___ 1999 at Book ____, page ___.
<PAGE> 1
Exhibit 10.101
PREPARED BY AND UPON PARTIAL EXEMPTION CLAIMED
RECORDATION RETURN TO: (VA CODE ss. 58.1-809).
RECORDATION TAX PAID ON
Cadwalader, Wickersham & Taft $3,000,000 IN DEED BOOK 545, PAGE 142
100 Maiden Lane
New York, New York 10038
Attention: Joseph Vidulich
================================================================================
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership, Grantor
to
ALEXANDER TITLE AGENCY, INC., Trustee (index as Grantee)
for the benefit of
LEHMAN BROTHERS HOLDINGS INC., d/b/a LEHMAN CAPITAL,
A DIVISION OF LEHMAN BROTHERS HOLDINGS INC., Beneficiary (index as Grantee)
--------------------------
DEED OF TRUST MODIFICATION AGREEMENT
--------------------------
Dated: As of April 28, 1999
Location: Twin County Plaza
City of Galax, Virginia
Place of Recordation: Carroll County Circuit Court Clerk's Office
================================================================================
THE DEED OF TRUST SECURES INDEBTEDNESS WHICH IS SECURED BY PROPERTY LOCATED
WITHIN THE COMMONWEALTH OF VIRGINIA AS WELL AS PROPERTY LOCATED IN OTHER STATES.
ACCORDINGLY, THE INDEBTEDNESS SUBJECT TO VIRGINIA RECORDING TAX IS FIRST
COMPUTED PURSUANT TO VA. CODE ANN. ss.58.1-803B AND THE RESULTING INDEBTEDNESS
SUBJECT TO RECORDING TAX IN VIRGINIA IS $2,280,000.00.
1
<PAGE> 2
DEED OF TRUST MODIFICATION AGREEMENT
------------------------------------
AGREEMENT made as of this 28th day of April, 1999, between GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, having its
principal place of business at 20 South Third Street, Columbus, Ohio 43215
("GRANTOR"), ALEXANDER TITLE AGENCY, INC., ("TRUSTEE"), and LEHMAN BROTHERS
HOLDINGS INC., a Delaware corporation, d/b/a LEHMAN CAPITAL, A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC., as lender, having an address at Three World
Financial Center, New York, New York 10285 ("BENEFICIARY").
W I T N E S E T H:
------------------
WHEREAS, the Beneficiary is now the beneficiary under that certain Deed of
Trust, Assignment of Rents and Security Agreement described on Exhibit B
attached hereto (the "DEED OF TRUST") encumbering the premises described in
Exhibit A attached hereto together with the improvements now or hereafter
located thereon and all other property intended to be encumbered thereby
(collectively, the "TRUST PROPERTY") granted by the Grantor to Alexander Title
Agency, Inc., as Trustee for The Huntington National Bank (the original
beneficiary) and the Promissory Note dated October 13, 1998 made by Grantor,
Glimcher Development Corporation ("GDC") and Weberstown Mall, LLC to The
Huntington National Bank and assigned to Beneficiary (the "NOTE"); and
WHEREAS, the Beneficiary, as the holder of the Deed of Trust, and the
Grantor, as the owner of the Trust Property, have agreed to increase the amount
of, extend the Maturity Date of and otherwise modify the Note in accordance with
a Note Consolidation and Modification Agreement dated the date hereof between
Grantor, GDC and Glimcher Properties
2
<PAGE> 3
Corporation ("GPC", and with Grantor and GDC, collectively "Borrower") and the
Beneficiary (the "NOTE MODIFICATION AGREEMENT") and to modify the terms of the
Deed of Trust, in the manner hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual promises and
agreements herein contained, the parties hereto covenant and agree as follows:
1. The Grantor hereby acknowledges that the Note has been amended and
restated in accordance with the Note Modification Agreement and agrees that the
Deed of Trust secures the Note as so modified to the extent of $5,280,000 and
hereby agrees to pay the indebtedness evidenced by the Note and interest thereon
at the rate of interest and on the terms provided for in the Amended and
Restated Note dated the date hereof made by Borrower to Beneficiary (the
"AMENDED AND RESTATED NOTE") pursuant to the Note Modification Agreement. All
references in the Deed of Trust to the Note shall be deemed to refer to the
Amended and Restated Note.
2. The Maturity Date of the Amended and Restated Note shall be extended to
October 1, 1999, in accordance with the terms of the Note Modification
Agreement.
3. All of the provisions of the Deed of Trust are amended and restated in
their entirety to read as provided in and shall be superseded by all the
provisions of the Amended and Restated Deed of Trust, Assignment of Leases and
Rents and Security Agreement attached hereto as Exhibit C.
3
<PAGE> 4
4. All references to the Deed of Trust in the Amended and Restated Note and
any of the other Loan Documents (as defined in the Amended and Restated Note)
shall be deemed to refer to the Deed of Trust as amended and restated by this
Agreement.
5. The Grantor covenants and agrees that there is presently outstanding on
the Amended and Restated Note the principal sum of $21,500,000.00 with interest
thereon from April 28, 1999, of which the principal amount of $5,280,000,
together with interest thereon, is secured by the Amended and Restated Deed of
Trust, Assignment of Rents and Security Agreement, that there exist no defenses,
counterclaims or offsets to its obligations for the payment of the indebtedness
evidenced by the Amended and Restated Note, and that, except as amended and
restated herein, the Deed of Trust remains in full force and effect.
6. The Trustee joins herein, at the request and direction of the
Beneficiary, to evidence its consent hereto and to the amendment and restatement
of the Deed of Trust in the form attached hereto as Exhibit C.
7. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which, when taken together,
shall constitute one and the same instrument and shall become effective when
copies hereof, when taken together, bear the signatures of each of the parties
hereto and it shall not be necessary in making proof of this instrument to
produce or account for more than one of such fully executed counterparts.
[The balance of this page has been intentionally left blank]
4
<PAGE> 5
IN WITNESS WHEREOF, this instrument has been executed by each of the
parties hereto as of the date first above written.
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, a Delaware
corporation, its sole general partner
By: /s/ George A. Schmidt
----------------------------------------
Name: George A. Schmidt
Title: Executive Vice President
LEHMAN BROTHERS HOLDINGS INC., doing
business as Lehman Capital, a division of Lehman
Brothers Holdings Inc.
By: /s/ Mary Pat Archer
--------------------------------------------
Name: Mary Pat Archer
Title: Senior Vice President
ALEXANDER TITLE AGENCY, INC.
By:
--------------------------------------------
Name:
Title:
5
<PAGE> 6
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 26th day of April, 1999, 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 person(s)
whose name(s) is (are) subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their capacity(ies), and that
by his/her/their signature(s) on the instrument, the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
/s/ Man Wai Lau
--------------------------
Notary Public
6
<PAGE> 7
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ day of April, 1999, before me, the undersigned, a Notary Public
in and for said state, personally appeared ______________________, personally
known to me or proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
--------------------------
Notary Public
6
<PAGE> 8
STATE OF VIRGINIA )
: ss.:
COUNTY OF ________ )
On the ____ day of April, 1999, before me, the undersigned, a Notary Public
in and for said state, personally appeared __________________________________,
on behalf of Alexander Title Agency, Inc., Trustee, personally known to me or
proved to me on the basis of satisfactory evidence to be the person whose name
is subscribed to the within instrument and acknowledged to me that he executed
the same in his capacity, and that by his signature on the instrument, the
person, or the entity upon behalf of which the person acted, executed the
instrument.
--------------------------
Notary Public
7
<PAGE> 9
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 28th day of April, 1999, before me, the undersigned, a Notary Public
in and for said state, personally appeared Mary Pat Archer, personally known to
me or proved to me on the basis of satisfactory evidence to be the person whose
name is subscribed to the within instrument and acknowledged to me that she
executed the same in her capacity, and that by her signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
/s/ Saleenah Callaway
--------------------------
Notary Public
8
<PAGE> 10
EXHIBIT A
---------
METES AND BOUNDS DESCRIPTION
9
<PAGE> 11
EXHIBIT A
---------
LEGAL DESCRIPTION
PARCEL 1:
A parcel of land located on East Stuart Drive (U.S. Highway 221 & 58) in the
City of Galax, Virginia being more particularly described as follows:
Beginning at a concrete right-of-way monument in the South line of U.S. Highway
221 and 58, said monument being located South 56 degrees 39 feet 56 inches West
75.51 feet from a right-of-way monument at the intersection of the West
right-of-way line of State route 722 (Cranberry Road) with the South
right-of-way line of U.S. Highway 221 and 58; thence from point of beginning
running South 31 degrees 14 feet 30 inches West 236.98 feet to an iron pin,
thence South 54 degrees 23 feet 30 inches East 527.14 feet to an iron pin;
thence South 09 degrees 26 feet 30 inches West 533.17 feet to an iron pin;
thence South 49 degrees 36 feet 00 inches West 160.16 feet to an iron pin in the
line of Conner, Inc., (DB 357, Page 115); thence South 74 degrees 25 feet 00
inches West 898.05 feet to an iron pipe, the common corner of Conner, Inc. and
Galax Motor Company, Inc.; thence with the line of Galax Motor Company, Inc.,
North 26 degrees 55 feet 30 inches West 558.70 feet to an iron pin in the
right-of-way of U.S. 221 and 58; thence with the right-of-way line of the
following seven calls: North 85 degrees 49 feet 30 inches East 5.99 feet, North
50 degrees 50 feet 00 inches East 150.00 feet, North 46 degrees 32 feet 30
inches East 200.72 feet, North 49 degrees 52 feet 30 inches East 300.27 feet,
North 44 degrees 06 feet 00 inches East 171.18 feet, North 49 degrees 26 feet 00
inches East 450.13 feet and North 57 degrees 39 feet 29 inches East 74.76 feet
to the point of beginning containing 22.737 acres or less.
There is excepted from the above described tract, three parcels described as
follows:
Out Lot 1: Commencing at a right-of-way monument in the South line of U.S.
Highway 221 and 58, said monument being the point of beginning for the 22.737
acre tract described above; thence with the right-of-way line of Highway 221 and
58, South 57 degrees 39 feet 20 inches: West 74.76 feet and South 49 degrees 26
feet 00 inches West 226.13 feet; thence leaving the highway right-of-way South
41 degrees 44 feet 00 inches East 48.00 feet to the point of beginning of this
tract; thence from the point of beginning, along the arc of a curve to the right
59.75 feet, said curve having a radius of 73.08 feet and a chord running South
77 degrees 48 feet 55 inches East 58.10 feet, thence South 54 degrees 23 feet 30
inches East 124.78 feet, South 48 degrees 16 feet 00 inches West
Continued ...
10
<PAGE> 12
EXHIBIT A
---------
LEGAL DESCRIPTION, Continued...
PARCEL 1, Continued...
Out Lot 1, Continued...:
181.53 feet, North 41 degrees 44 feet 00 inches West 164.96 feet, North 48
degrees 16 feet 00 inches East 119.97 feet and North 41 degrees 44 feet 00
inches West 3.74 feet to the point of beginning containing 0.612 acres +/- or
26,659 square feet more or less.
Out Lot 2: Commencing at a right-of-way monument in the South line of U.S.
Highway 221 and 58, said monument being the point of beginning for the 22.737
acre tract described above, thence with the right-of-way line of Highway 21 and
58, South 57 degrees 39 feet 20 inches West 74.76 feet 74.76 feet and South 49
degrees 26 feet 00 inches West 226.13 feet; thence leaving the highway
right-of-way, South 41 degrees 44 feet 00 inches East 51.74 feet and South 48
degrees 16 feet 00 inches West 442.97 feet to an iron pin, the point of
beginning of this tract; thence South 41 degrees 44 feet 00 inches East 180.77
feet to an iron pin; thence South 48 degrees 16 feet 00 inches West 148.52 feet
to an iron pin; thence North 86 degrees 44 feet 00 inches West 12.00 feet to an
iron pin; thence North 41 degrees 44 feet 00 inches West 151.08 feet; thence
North 03 degrees 16 feet 00 inches East 30.00 feet to a P-K nail in the concrete
curb; thence North 48 degrees 16 feet 00 inches East 135.79 feet to the point of
beginning, containing 0.646 acres +/- or 28,121 square feet more or less.
Out Lot 3: Beginning on an iron pin in the West line of the above described
22.737 acre tract, said beginning iron being located South 26 degrees 55 feet 30
inches East 55.00 feet from an iron pin in the South right-of-way of U.S.
Highway 221 and 58, the Northwest corner of the above-described 22.737 acre
tract; thence from the point of beginning, running North 68 degrees 04 feet 30
inches East 124.00 feet to an iron pin; thence North 48 degrees 16 feet 00
inches East 58.54 feet to an iron pin; thence South 21 degrees 44 feet 00 inches
East 205.00 feet to an iron pin; thence South 35 degrees 29 feet 14 inches West
78.66 feet to an iron pin; thence North 64 degrees 55 feet 30 inches West 120.00
feet to an iron pin; thence North 40 degrees 25 feet 30 inches West 77.00 feet
to an iron in the line of Galax Motor Company, Inc.; thence North 26 degrees 55
feet 30 inches West 67.00 feet to the point of beginning containing 0.735 acres
+/- or 32,025 square feet more or less.
Continued...
11
<PAGE> 13
EXHIBIT A
---------
LEGAL DESCRIPTION, Continued...
PARCEL 2:
Together with those rights and easements constituting rights in real property
created, defined and limited by that certain Declaration of Easements, Covenants
and Restrictions by Horne Properties, Inc., dated June 10, 1986 and recorded
June 16, 1986 in Deed Book 346, Page 569 and Amendment of Declaration of
Easements, Covenants and Restrictions by and between Horne Properties, Inc. and
Concord Milestone Income Fund II, of Virginia L.P., dated June 22, 1988 and
recorded June 28, 1988 in Deed Book 372, Page 894, both in the Carroll County
Circuit Court Clerk's Office, Virginia.
12
<PAGE> 14
EXHIBIT B
---------
THE DEED OF TRUST
Deed of Trust dated October 13, 1998 made by Glimcher Properties Limited
Partnership to The Huntington National Bank and recorded in the Clerk's Office
of Carroll County, Virginia on November 6, 1998 at Book 545, Page 142.
Which Deed of Trust was assigned by The Huntington National Bank to the
Beneficiary by Certificate of Transfer dated the date hereof and recorded in the
Clerk's Office of Carroll County Virginia on ________ ___ 1999 at Book ____,
page ___.
13
<PAGE> 1
Exhibit 10.102
AMENDED AND RESTATED PROMISSORY NOTE
$21,500,000 New York, New York
As of April __ 1999
FOR VALUE RECEIVED GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership, having its principal place of business at 20 South
Third Street, Columbus, Ohio 43215 ("GPLP"), GLIMCHER PROPERTIES CORPORATION, a
Delaware corporation, having its principal place of business at 20 South Third
Street, Columbus, Ohio 43215 ("GPC"), and GLIMCHER DEVELOPMENT CORPORATION, a
Delaware corporation, having its principal place of business at 20 South Third
Street, Columbus, Ohio 43215 ("GDC", and with GPLP and GPC collectively,
"BORROWER"), hereby unconditionally promises to pay to the order of LEHMAN
BROTHERS HOLDINGS INC., a Delaware corporation, d/b/a LEHMAN CAPITAL, A DIVISION
OF LEHMAN BROTHERS HOLDINGS INC., as lender, having an address at Three World
Financial Center, New York, New York 10285 ("LENDER"), or at such other place as
the holder hereof may from time to time designate in writing, the principal sum
of TWENTY-ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($21,500,000), in
lawful money of the United States of America with interest thereon to be
computed from the date of this Note at the Applicable Interest Rate, and to be
paid in accordance with the terms of this Note.
This Amended and Restated Promissory Note (this "NOTE") is
intended to consolidate, amend and restate (a) that certain promissory note
dated as of September 15, 1998 ("ORIGINAL NOTE A") made by GPLP and GPC to
Bankers Trust Company and assigned to Lender as amended and restated by that
certain Amended and Restated Promissory Note dated as of March 15, 1999 made by
GPLP and GPC to Lender, and (b) that certain promissory note dated as of October
13, 1998 ("ORIGINAL NOTE B", and with Original Note A, the "ORIGINAL NOTES")
made by GPLP, GDC and Weberstown Mall, LLC to The Huntington National Bank and
assigned to Lender, this Note being made pursuant to that certain Note
Consolidation and Modification Agreement between Borrower and Lender dated the
date hereof; however, this Note is not intended to create any new indebtedness
nor to constitute a novation as to Borrower's obligations under the Original
Notes.
ARTICLE 1: DEFINITIONS
As used in this Note, the following terms have the meanings set forth
below:
"APPLICABLE INTEREST RATE" shall mean the rate or rates at
which the outstanding principal amount of the Loan bears interest from time to
time in accordance with the provisions of Section 2.3(a) hereof.
"BREAKAGE COSTS" shall have the meaning set forth in 2.3(h)
hereof.
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"BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or any other day on which national banks in New York, New York are not
open for business.
"CAPITAL EXPENDITURES" shall mean, for any period, the amount
expended for items capitalized under GAAP (including expenditures for building
improvements or major repairs, leasing commissions and tenant improvements).
"DEBT" shall mean the outstanding principal amount set forth
in, and evidenced by, this Note together with all interest accrued and unpaid
thereon and all other sums due to Lender in respect of the loan under this Note
or the Mortgage.
"DEBT SERVICE" shall mean, with respect to any particular
period of time, scheduled principal and/or interest payments under the Note.
"DEFAULT RATE" shall mean a rate per annum equal to the lesser
of (i) the maximum rate permitted by applicable law and (ii) five percent (5%)
above the Applicable Interest Rate.
"DETERMINATION DATE" shall mean, with respect to any Interest
Period, the date that is (2) London Business Days prior to the beginning of such
Interest Period.
"EVENT OF DEFAULT" shall have the meaning set forth in
Article 3(a) hereof.
"FOREIGN TAXES" shall have the meaning set forth in
Section 2.3(e) hereof.
"GAAP" shall mean generally accepted accounting principles in
the United States of America as of the date of the applicable financial report.
"GDC" shall mean Glimcher Development Corporation.
"GPC" shall mean Glimcher Properties Corporation.
"GPLP" shall mean Glimcher Properties Limited Partnership.
"GROSS INCOME FROM OPERATIONS" shall mean all income, in
accordance with GAAP, derived from the ownership and operation of the Property
from whatever source, INCLUDING, but not limited to, rents, utility charges,
escalations, forfeited security deposits, interest on credit accounts, service
fees or charges, license fees, parking fees, rent concessions or credits, and
other required pass-throughs but EXCLUDING sales, use and occupancy or other
taxes on receipts required to be accounted for by Borrower to any governmental
authority, refunds and uncollectible accounts, sales of furniture, fixtures and
equipment, insurance proceeds (other than business interruption or other loss of
income insurance), awards, unforfeited security deposits, utility and other
similar deposits and any disbursements to Borrower from the reserve funds. Gross
income shall not be diminished as a result of the Mortgages or the creation of
any intervening estate or interest in the Property or any part thereof.
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"INDIVIDUAL PROPERTY" shall mean each parcel of real property,
the improvements thereon and all personal property owned by Borrower and
encumbered by a Mortgage, together with all rights pertaining to such property
and improvements, as more particularly described in the Granting Clauses of
each.
"INTEREST PERIOD" shall mean (a) the period commencing on the
date hereof and ending on April 30, 1999 for the first period hereunder, and (b)
for each period thereafter, the period commencing on the first (1st) day of each
calendar month during the term of the Loan and ending on the last day of such
calendar month.
"LIBOR" shall mean, with respect to each Interest Period, the
rate (expressed as a percentage per annum and rounded upward, if necessary, to
the next nearest 1/1000 of 1%) for deposits in U.S. dollars, for a one-month
period, that appears on Telerate Page 3750 (or the successor thereto) as of
11:00 a.m., London time, on the related Determination Date. If such rate does
not appear on Telerate Page 3750 as of 11:00 a.m., London time, on such
Determination Date, LIBOR shall be the arithmetic mean of the offered rates
(expressed as a percentage per annum) for deposits in U.S. dollars for a
one-month period that appear on the Reuters Screen Libor Page as of 11:00 a.m.,
London time, on such Determination Date, if at least two such offered rates so
appear. If fewer than two such offered rates appear on the Reuters Screen Libor
Page as of 11:00 a.m., London time, on such Determination Date, Lender shall
request the principal London Office of any four major reference banks in the
London interbank market selected by Lender to provide such bank's offered
quotation (expressed as a percentage per annum) to prime banks in the London
interbank market for deposits in U.S. dollars for a one-month period as of 11:00
a.m., London time, on such Determination Date for the amounts of not less than
U.S. $1,000,000. If at least two such offered quotations are so provided, LIBOR
shall be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, Lender shall request any three major banks in New
York City selected by Lender to provide such bank's rate (expressed as a
percentage per annum) for loans in U.S. dollars to leading European banks for a
one-month period as of approximately 11:00 a.m., New York City time on the
applicable Determination Date for amounts of not less than U.S. $1,000,000. If
at least two such rates are so provided, LIBOR shall be the arithmetic mean of
such rates. LIBOR shall be determined by Lender or its agent.
"LIBOR LOAN" shall mean the Loan at such time as interest
thereon accrues at a rate of interest based upon LIBOR.
"LOAN" shall mean the loan made by Lender to Borrower in the
original principal amount set forth in, and evidenced by, this Note and secured
by the Mortgage and the other Loan Documents executed and delivered by Borrower.
"LOAN DOCUMENTS" means this Note, the Mortgage and any and all
other agreements, instruments or documents now or hereafter evidencing, securing
or otherwise executed and delivered in connection with the Loan and the
transactions contemplated by this Note.
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"LONDON BUSINESS DAY" shall mean any day other than a
Saturday, Sunday or any other day on which commercial banks in London, England
are not open for business.
"MATURITY DATE" means October 1, 1999 or such other date on
which the final payment of principal on this Note becomes due and payable as
herein provided, whether at such stated maturity date, by declaration of
acceleration or otherwise.
"MAXIMUM LEGAL RATE" shall mean the maximum nonusurious
interest rate, if any, that at any time or from time to time may be contracted
for, taken, reserved, charged or received on the indebtedness evidenced by the
Note and as provided for herein or the other Loan Documents, under the laws of
such state or states whose laws are held by any court of competent jurisdiction
to govern the interest rate provisions of the Loan.
"MORTGAGE" shall mean collectively (a) those certain Mortgages
dated as of October 30, 1998, executed and delivered by GPLP and York to Bankers
Trust Company and assigned to Lender, as modified by those certain Mortgage
Modification Agreements between GPLP and York and Lender dated as of March 15,
1999 and as further modified by those certain Mortgage Modification Agreements
between GPLP and York and Lender dated the date hereof, (b) those certain
Mortgages dated as of October 13, 1998, executed and delivered by GPLP and GDC
to The Huntington National Bank and assigned to Lender, as modified by those
certain Mortgage Modification Agreements between GPLP and GDC and Lender dated
as of the date hereof and encumbering the Property, and (c) that certain Deed of
Trust, Assignment of Leases and Rents and Security Agreement dated as of October
13, 1998, executed and delivered by GPLP to Alexander Title Agency, Inc.,
Trustee, for The Huntington National Bank, as modified, as the same may be
amended, restated, replaced, supplemented or otherwise modified from time to
time.
"NET CASH FLOW" for any period shall mean the amount obtained
by subtracting Operating Expenses and Capital Expenditures for such period from
Gross Income from Operations for such period.
"NET CASH FLOW AFTER DEBT SERVICE" for any period shall mean
the amount obtained by subtracting Debt Service for such period from Net Cash
Flow for such period.
"NET SALES PROCEEDS" shall mean all proceeds received by
Borrower in connection with the arms length sale of an Individual Property to an
unaffiliated third party less any transfer taxes, reasonable and customary
broker's fees to unaffiliated brokers and other cost and expenses approved by
Lender in its reasonable discretion.
"OPERATING EXPENSES" shall mean the total of all expenditures,
computed in accordance with GAAP, of whatever kind relating to the operation,
maintenance and management of the Properties that are incurred on a regular
monthly or other periodic basis, including without limitation, utilities,
ordinary repairs and maintenance, insurance, license fees, property taxes and
assessments, advertising expenses, management fees, payroll and related taxes,
computer processing charges, operational equipment or other lease payments as
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approved by Lender, and other similar costs, but excluding depreciation, Debt
Service, Capital Expenditures.
"PAYMENT DATE" shall mean the first (1st) day of each calendar
month during the term of the Loan or, if such day is not a Business Day, the
immediately succeeding Business Day.
"PRIME RATE" shall mean the annual rate of interest publicly
announced by Citibank, N.A. in New York, New York, as its base rate, as such
rate shall change from time to time. If Citibank, N.A. ceases to announce a base
rate, Prime Rate shall mean the rate of interest published in THE WALL STREET
JOURNAL from time to time as the "Prime Rate". If more than one "Prime Rate" is
published in THE WALL STREET JOURNAL for a day, the average of such "Prime
Rates" shall be used, and such average shall be rounded up to the nearest
one-eighth of one percent (0.125%). If THE WALL STREET JOURNAL ceases to publish
the "Prime Rate", the Lender shall select an equivalent publication that
publishes such "Prime Rate", and if such "Prime Rates" are no longer generally
published or are limited, regulated or administered by a governmental or
quasigovernmental body, then Lender shall select a comparable interest rate
index.
"PRIME RATE LOAN" shall mean the Loan at such time as interest
thereon accrues at a rate of interest based upon the Prime Rate.
"PRIME RATE SPREAD" shall mean the difference (expressed as
the number of basis points) between (a) LIBOR plus the Spread on the date LIBOR
was last applicable to the Loan and (b) the Prime Rate on the date that LIBOR
was last applicable to the Loan.
"PROPERTY" shall mean the parcels of real property, the
improvements thereon and all other property owned by GPLP and York and
encumbered by the Mortgage, together with all rights pertaining to such property
and Improvements, as more particularly described in the Granting Clauses of the
Mortgage.
"SPREAD" shall mean two hundred seventy five (275) basis
points.
"YORK" shall mean Glimcher York Associates Limited
Partnership, a Delaware limited partnership.
ARTICLE 2: PAYMENT TERMS
2.1 INTEREST GENERALLY. Interest on the outstanding principal
balance of the Loan shall accrue from the date hereof to but excluding the
Maturity Date at the Applicable Interest Rate.
2.2 INTEREST CALCULATION. Interest on the outstanding
principal balance of the Loan shall be calculated by multiplying (a) the actual
number of days elapsed in the period for which the calculation is being made by
(b) a daily rate based on a three hundred sixty (360) day year by (c) the
outstanding principal balance.
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2.3 DETERMINATION OF INTEREST RATE.
(a) The Applicable Interest Rate with respect to the Loan
shall be: (i) LIBOR plus the Spread with respect to the applicable Interest
Period for a LIBOR Loan or (ii) the Prime Rate plus the Prime Rate Spread for a
Prime Rate Loan if the Loan is converted to a Prime Rate Loan pursuant to the
provisions of Section 2.3 (c) or (f).
(b) Subject to the terms and conditions of this Section 2.3,
the Loan shall be a LIBOR Loan and Borrower shall pay interest on the
outstanding principal amount of the Loan at LIBOR plus the Spread for the
applicable Interest Period. Any change in the rate of interest hereunder due to
a change in the Applicable Interest Rate shall become effective as of the
opening of business on the first day on which such change in the Applicable
Interest Rate shall become effective. Each determination by Lender of the
Applicable Interest Rate shall be conclusive and binding for all purposes,
absent manifest error.
(c) In the event that Lender shall have determined (which
determination shall be conclusive and binding upon Borrower absent manifest
error) that by reason of circumstances affecting the interbank eurodollar
market, adequate and reasonable means do not exist for ascertaining LIBOR, then
Lender shall forthwith give notice by telephone of such determination, confirmed
in writing, to Borrower at least one (1) day prior to the last day of the
related Interest Period. If such notice is given, the related outstanding LIBOR
Loan shall be converted, on the last day of the then current Interest Period, to
a Prime Rate Loan.
(d) If, pursuant to the terms of this Note, any portion of the
Loan has been converted to a Prime Rate Loan and Lender shall determine (which
determination shall be conclusive and binding upon Borrower absent manifest
error) that the event(s) or circumstance(s) which resulted in such conversion
shall no longer be applicable, Lender shall give notice thereof to Borrower, and
Borrower may elect to convert the Prime Rate Loan to a LIBOR Loan by delivering
to Lender written notice of such election no later than 12:00 p.m. (New York
City Time), three (3) Business Days prior to the desired conversion date, which
notice shall be irrevocable. Notwithstanding any provision of this Note to the
contrary, in no event shall Borrower have the right to elect to convert a LIBOR
Loan to a Prime Rate Loan.
(e) With respect to a LIBOR Loan, all payments made by
Borrower hereunder shall be made free and clear of, and without reduction for or
on account of, income, stamp or other taxes, levies, imposts, duties, charges,
fees, deductions, reserves or withholdings imposed, levied, collected, withheld
or assessed by any Governmental Authority, which are imposed, enacted or become
effective after the date hereof (such non-excluded taxes being referred to
collectively as "FOREIGN TAXES"), excluding income and franchise taxes of the
United States of America or any political subdivision or taxing authority
thereof or therein (including Puerto Rico). If any Foreign Taxes are required to
be withheld from any amounts payable to Lender hereunder, the amounts so payable
to Lender shall be increased to the extent necessary to yield to Lender (after
payment of all Foreign Taxes) interest or any such other amounts payable
hereunder at the rate or in the amounts specified hereunder. Whenever any
Foreign Tax is payable pursuant to applicable law by Borrower, as promptly as
possible
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thereafter, Borrower shall send to Lender an original official receipt,
if available, or certified copy thereof showing payment of such Foreign Tax.
Borrower hereby indemnifies Lender for any incremental taxes, interest or
penalties that may become payable by Lender which may result from any failure by
Borrower to pay any such Foreign Tax when due to the appropriate taxing
authority or any failure by Borrower to remit to Lender the required receipts or
other required documentary evidence.
(f) If any requirement of law or any change therein or in the
interpretation or application thereof, shall hereafter make it unlawful for
Lender to make or maintain a LIBOR Loan as contemplated hereunder, (i) the
obligation of Lender hereunder to make a LIBOR Loan or to convert a Prime Rate
Loan to a LIBOR Loan shall be canceled forthwith and (ii) any outstanding LIBOR
Loan shall be converted automatically to a Prime Rate Loan on the next
succeeding Payment Date or within such earlier period as required by law.
Borrower hereby agrees promptly to pay Lender, upon demand, any additional
amounts necessary to compensate Lender for any costs incurred by Lender in
making any conversion in accordance with this Note, including, without
limitation, any interest or fees payable by Lender to lenders of funds obtained
by it in order to make or maintain the LIBOR Loan hereunder. Lender's notice of
such costs, as certified to Borrower, shall be conclusive absent manifest error.
(g) In the event that any change in any requirement of law or
in the interpretation or application thereof, or compliance by Lender with any
request or directive (whether or not having the force of law) hereafter issued
from any central bank or other Governmental Authority:
(i) shall hereafter impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, or deposits or
other liabilities in or for the account of, advances
or loans by, or other credit extended by, or any
other acquisition of funds by, any office of Lender
which is not otherwise included in the determination
of LIBOR hereunder;
(ii) shall hereafter have the effect of reducing the rate
of return on Lender's capital as a consequence of its
obligations hereunder to a level below that which
Lender could have achieved but for such adoption,
change or compliance (taking into consideration
Lender's policies with respect to capital adequacy)
by any amount deemed by Lender to be material; or
(iii) shall hereafter impose on Lender any other condition
and the result of any of the foregoing is to increase
the cost to Lender of making, renewing or maintaining
loans or extensions of credit or to reduce any amount
receivable hereunder;
then, in any such case, Borrower shall promptly pay Lender, upon demand, any
additional amounts necessary to compensate Lender for such additional cost or
reduced amount receivable
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which Lender deems to be material as determined by Lender (except to the extent
such additional amount has already been taken into account by the application of
clause (b) of the definition of LIBOR set forth in Article 1. If Lender becomes
entitled to claim any additional amounts pursuant to this Section 2.3(g), Lender
shall provide Borrower with not less than ninety (90) days written notice
specifying in reasonable detail the event by reason of which it has become so
entitled and the additional amount required to fully compensate Lender for such
additional cost or reduced amount. A certificate as to any additional costs or
amounts payable pursuant to the foregoing sentence submitted by Lender to
Borrower shall be conclusive in the absence of manifest error. This provision
shall survive payment of the Note and the satisfaction of all other obligations
of Borrower under this Note and the Loan Documents.
(h) Borrower agrees to indemnify Lender and to hold Lender
harmless from any loss or expense which Lender sustains or incurs as a
consequence of (i) any default by Borrower in payment of the principal of or
interest on a LIBOR Loan, including, without limitation, any such loss or
expense arising from interest or fees payable by Lender to lenders of funds
obtained by it in order to maintain a LIBOR Loan hereunder, (ii) any prepayment
(whether voluntary or mandatory) of the LIBOR Loan on a day that (A) is not the
Payment Date immediately following the last day of an Interest Period with
respect thereto or (B) is the Payment Date immediately following the last day of
an Interest Period with respect thereto if Borrower did not give the prior
written notice of such prepayment required pursuant to the terms of this Note,
including, without limitation, such loss or expense arising from interest or
fees payable by Lender to lenders of funds obtained by it in order to maintain
the LIBOR Loan hereunder and (iii) the conversion (for any reason whatsoever,
whether voluntary or involuntary) of the Applicable Interest Rate from LIBOR
plus the Spread to the Prime Rate plus the Prime Rate Spread with respect to any
portion of the outstanding principal amount of the Loan then bearing interest at
LIBOR plus the Spread on a date other than the Payment Date immediately
following the last day of an Interest Period, including, without limitation,
such loss or expenses arising from interest or fees payable by Lender to lenders
of funds obtained by it in order to maintain a LIBOR Loan hereunder (the amounts
referred to in clauses (i), (ii) and (iii) are herein referred to collectively
as the "BREAKAGE COSTS"). This provision shall survive payment of the Note in
full and the satisfaction of all other obligations of Borrower under this Note
and the other Loan Documents.
(i) Lender shall not be entitled to claim compensation
pursuant to this Section 2.3 for any Foreign Taxes, increased cost or reduction
in amounts received or receivable hereunder, or any reduced rate of return,
which was incurred or which accrued more than the earlier of (i) ninety (90)
days before the date Lender notified Borrower of the change in law or other
circumstance on which such claim of compensation is based and delivered to
Borrower a written statement setting forth in reasonable detail the basis for
calculating the additional amounts owed to Lender under this Section 2.3, which
statement shall be conclusive and binding upon all parties hereto absent
manifest error, or (ii) any earlier date provided that Lender notified Borrower
of such change in law or circumstance and delivered the written statement
referenced in clause (i) within ninety (90) days after Lender received written
notice of such change in law or circumstance.
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2.4 ADDITIONAL COSTS. Lender will use reasonable efforts
(consistent with legal and regulatory restrictions) to maintain the availability
of the LIBOR Loan and to avoid or reduce any increased or additional costs
payable by Borrower under Section 2.3, including, if requested by Borrower, a
transfer or assignment of the Loan to a branch, office or Affiliate of Lender in
another jurisdiction, or a redesignation of its lending office with respect to
the Loan, in order to maintain the availability of the LIBOR Loan or to avoid or
reduce such increased or additional costs, provided that the transfer or
assignment or redesignation (a) would not result in any additional costs,
expenses or risk to Lender that are not reimbursed by Borrower and (b) would not
be disadvantageous in any other respect to Lender as determined by Lender in its
sole discretion.
2.5 PAYMENT ON MATURITY DATE. Borrower shall pay to Lender on
the Maturity Date the outstanding principal balance, all accrued and unpaid
interest and all other amounts due hereunder and under the Note, the Mortgage
and other the Loan Documents.
2.6 PAYMENTS AFTER DEFAULT. Upon the occurrence and during the
continuance of an Event of Default, (a) interest on the outstanding principal
balance of the Loan and, to the extent permitted by law, overdue interest and
other amounts due in respect of the Loan, shall accrue at the Default Rate,
calculated from the date such payment was due without regard to any grace or
cure periods contained herein and (b) Lender shall be entitled to receive and
Borrower shall pay to Lender on each Payment Date an amount equal to the Net
Cash Flow After Debt Service from the Property for the prior month, such amount
to be applied by Lender to the payment of the Debt in such order as Lender shall
determine in its sole discretion, including, without limitation, alternating
applications thereof between interest and principal. Interest at the Default
Rate and Net Cash Flow After Debt Service from the Property shall both be
computed from the occurrence of the Event of Default until the actual receipt
and collection of the Debt (or that portion thereof that is then due). To the
extent permitted by applicable law, interest at the Default Rate shall be added
to the Debt, shall itself accrue interest at the same rate as the Loan and shall
be secured by the Mortgage. This paragraph shall not be construed as an
agreement or privilege to extend the date of the payment of the Debt, nor as a
waiver of any other right or remedy accruing to Lender by reason of the
occurrence of any Event of Default; the acceptance of any payment of Net Cash
Flow After Debt Service from the Property shall not be deemed to cure or
constitute a waiver of any Event of Default; and Lender retains its rights under
this Note to accelerate and to continue to demand payment of the Debt upon the
happening of any Event of Default, despite any payment of Net Cash Flow After
Debt Service from the Property.
2.7. LATE PAYMENT CHARGE. If any principal, interest or any
other sums due under the Loan Documents is not paid by Borrower on the date on
which it is due, Borrower shall pay to Lender upon demand an amount equal to the
lesser of five percent (5%) of such unpaid sum or the maximum amount permitted
by applicable law in order to defray the expense incurred by Lender in handling
and processing such delinquent payment and to compensate Lender for the loss of
the use of such delinquent payment. Any such amount shall be secured by the
Mortgage and the other Loan Documents to the extent permitted by applicable law.
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2.8 MAKING OF PAYMENTS. Each payment by Borrower hereunder or
under the Note shall be made in funds settled through the New York Clearing
House Interbank Payments System or other funds immediately available to Lender
by 11:00 a.m., New York City time, on the date such payment is due, to Lender by
deposit to such account as Lender may designate by written notice to Borrower.
Whenever any payment hereunder or under the Note shall be stated to be due on a
day which is not a Business Day, such payment shall be made on the first
Business Day preceding such scheduled due date.
2.9 NO DEDUCTIONS, ETC. All payments made by Borrower
hereunder or under the Note or the other Loan Documents shall be made
irrespective of, and without any deduction for, any setoff, defense or
counterclaims.
2.10 VOLUNTARY PREPAYMENTS. Borrower may prepay the Loan, in
whole or in part, on any Payment Date, without penalty or premium, upon at least
30 days' irrevocable prior written notice to Lender, specifying such Payment
Date and the amount of prepayment. If such notice of prepayment is given, the
principal amount to be prepaid and the other amounts required under this Section
shall be due and payable on the Payment Date specified therein. All prepayments
shall include (i) interest accrued and unpaid on the principal balance of the
Note to (but not including) the day on which such prepayment is received; (ii)
the amount of principal being prepaid; (iii) Breakage Costs, if any; and (iv)
all other sums, if any, then due under the Note and the other Loan Documents. If
any prepayment is received on any day other than a Payment Date, Borrower shall
pay interest on the portion of the Loan so prepaid to (but not including) the
following Payment Date.
2.3.2 MANDATORY PREPAYMENTS. On each date on which Borrower
actually receives any distribution of net proceeds of any insurance policy or
condemnation award, if Lender is not obligated to make such Net Proceeds
available to Borrower for the restoration of the Property, Borrower shall prepay
the outstanding principal balance of the Note in an amount equal to one hundred
percent (100%) of such proceeds together with interest that would have accrued
on such amount through the next Payment Date and Breakage Costs, if any.
ARTICLE 3: DEFAULT AND ACCELERATION
(a) Each of the following events shall constitute an event of
default hereunder (an "EVENT OF DEFAULT"):
(i) if any portion of the Debt is not paid when
due;
(ii) if Borrower or York transfers or encumbers
any portion of the Property without Lender's prior written consent;
(iii) if any representation or warranty made
by Borrower or York herein or in any other Loan Document, or in any report,
certificate, financial statement or other instrument, agreement or document
furnished to Lender shall have been false or misleading in any material respect
as of the date the representation or warranty was made;
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(iv) if Borrower, York or any guarantor under any
guaranty issued in connection with
the Loan shall make an assignment for the benefit of creditors;
(v) if a receiver, liquidator or trustee shall
be appointed for Borrower, York or any guarantor under any guarantee issued in
connection with the Loan or if Borrower, York or such guarantor shall be
adjudicated a bankrupt or insolvent, or if any petition for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any similar
federal or state law, shall be filed by or against, consented to, or acquiesced
in by, Borrower, York or such guarantor, or if any proceeding for the
dissolution or liquidation of Borrower, York or such guarantor shall be
instituted; PROVIDED, HOWEVER, if such appointment, adjudication, petition or
proceeding was involuntary and not consented to by Borrower, York or such
guarantor, upon the same not being discharge, stayed or dismissed within thirty
(30) days;
(vi) if Borrower shall continue to be in default
under any of the other terms, covenants or conditions of this Note not specified
in subsections (i) to (v) above, for ten (10) days after notice to Borrower from
Lender, in the case of any Default which can be cured by the payment of a sum of
money, or for thirty (30) days after notice from Lender in the case of any other
default; PROVIDED, HOWEVER, that if such non-monetary default is susceptible of
cure but cannot reasonably be cured within such 30-day period and provided
further that Borrower shall have commenced to cure such default within such
30-day period and thereafter diligently and expeditiously proceeds to cure the
same, such 30-day period shall be extended for such time as is reasonably
necessary for Borrower in the exercise of due diligence to cure such default,
such additional period not to exceed sixty (60) days; or
(vii) if there shall be default under the
Mortgage or any of the other Loan Documents beyond any applicable cure periods
contained in such documents, whether as to Borrower, York or the Property, or if
any other such event shall occur or condition shall exist, if the effect of such
event or condition is to accelerate the maturity of any portion of the Debt or
to permit Lender to accelerate the maturity of all or any portion of the Debt;
(b) Upon the occurrence of an Event of Default and at any time
thereafter Lender may, in addition to any other rights or remedies available to
it pursuant to this Note and the other Loan Documents or at law or in equity,
Lender may take such action, without further notice or demand, that Lender deems
advisable to protect and enforce its rights against Borrower and in and to the
Property, including, without limitation, declaring the Debt to be immediately
due and payable, and Lender may enforce or avail itself of any or all rights or
remedies provided in the Loan Documents against Borrower and the Property,
including, without limitation, all rights or remedies available at law or in
equity; and upon any Event of Default described in clauses (iv), (v) or (vii)
above, the Debt and all other obligations of Borrower hereunder and under the
other Loan Documents shall immediately and automatically become due and payable,
without notice or demand, and Borrower hereby expressly waives any such notice
or demand, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
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<PAGE> 12
ARTICLE 4: LOAN DOCUMENTS
This Note is secured by the Mortgage and the other Loan
Documents. All of the terms, covenants and conditions contained in the Mortgage
and the other Loan Documents are hereby made part of this Note to the same
extent and with the same force as if they were fully set forth herein. In the
event of a conflict or inconsistency between the terms of this Note and the
Mortgage, the terms and provisions of this Note shall govern.
ARTICLE 5: SAVINGS CLAUSE
Notwithstanding anything to the contrary, this Note is subject
to the express condition that at no time shall Borrower be obligated or required
to pay interest on the principal balance of the Loan at a rate which could
subject Lender to either civil or criminal liability as a result of being in
excess of the Maximum Legal Rate. If, by the terms of this Note or the other
Loan Documents, Borrower is at any time required or obligated to pay interest on
the principal balance due hereunder at a rate in excess of the Maximum Legal
Rate, the Applicable Interest Rate or the Default Rate, as the case may be,
shall be deemed to be immediately reduced to the Maximum Legal Rate and all
previous payments in excess of the Maximum Legal Rate shall be deemed to have
been payments in reduction of principal and not on account of the interest due
hereunder. All sums paid or agreed to be paid to Lender for the use,
forbearance, or detention of the sums due under the Loan, shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term of the Loan until payment in full so that the
rate or amount of interest on account of the Loan does not exceed the Maximum
Legal Rate of interest from time to time in effect and applicable to the Loan
for so long as the Loan is outstanding. If through any contingency or event,
Lender receives or is deemed to receive interest in excess of the Maximum Legal
Rate, any such excess shall be deemed to have been applied toward payment of the
principal of any and all then outstanding indebtedness of Borrower to Lender, or
if there is no such indebtedness, shall immediately be returned to Borrower.
ARTICLE 6: NO ORAL CHANGE
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 Borrower or Lender, 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.
ARTICLE 7: WAIVERS
Borrower and all others who may become liable for the payment
of all or any part of the Debt do hereby severally waive presentment and demand
for payment, notice of dishonor, notice of intention to accelerate, notice of
acceleration, protest and notice of protest and non-payment and all other
notices of any kind. No release of any security for the Debt or extension of
time for payment of this Note or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note, the Mortgage or the other
Loan Documents made by agreement between Lender or any other person or entity
shall release,
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<PAGE> 13
modify, amend, waive, extend, change, discharge, terminate or affect the
liability of Borrower, and any other Person who may become liable for the
payment of all or any part of the Debt, under this Note, the Mortgage or the
other Loan Documents. No notice to or demand on Borrower shall be deemed to be a
waiver of the obligation of Borrower or of the right of Lender to take further
action without further notice or demand as provided for in this Note, the
Mortgage or the other Loan Documents. If Borrower is a partnership, the
agreements herein contained shall remain in force and applicable,
notwithstanding any changes in the individuals or entities, comprising the
partnership, and the term "Borrower," as used herein, shall include any
alternate or successor partnership, but any predecessor partnership and their
partners shall not thereby be released from any liability. If Borrower is a
corporation, the agreements contained herein shall remain in full force and
applicable notwithstanding any changes in the shareholders comprising, or the
officers and directors relating to, the corporation, and the term "Borrower" as
used herein, shall include any alternative or successor corporation, but any
predecessor corporation shall not be relieved of liability hereunder. (Nothing
in the foregoing sentence shall be construed as a consent to, or a waiver of,
any prohibition or restriction on transfers of interests in such partnership
which may be set forth in the Mortgage or any other Loan Document.)
ARTICLE 8: TRANSFER
Upon the transfer of this Note, Borrower hereby waiving notice
of any such transfer, Lender may deliver all the collateral mortgaged, granted,
pledged or assigned pursuant to the Loan Documents, or any part thereof, to the
transferee who shall thereupon become vested with all the rights herein or under
applicable law given to Lender with respect thereto, and Lender shall thereafter
forever be relieved and fully discharged from any liability or responsibility in
the matter; but Lender shall retain all rights hereby given to it with respect
to any liabilities and the collateral not so transferred.
ARTICLE 9: TRIAL BY JURY
BORROWER 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 BORROWER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING
AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER.
ARTICLE 10: GOVERNING LAW
(A) THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND
MADE BY BORROWER AND ACCEPTED BY LENDER IN THE STATE
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<PAGE> 14
OF NEW YORK, AND THE PROCEEDS OF THIS NOTE 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, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, 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 CONTRACTS MADE AND PERFORMED IN SUCH STATE
(WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE
UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER
HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW
OF ANY OTHER JURISDICTION GOVERNS THIS NOTE AND THIS NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR
BORROWER ARISING OUT OF OR RELATING TO THIS NOTE MAY AT LENDER'S OPTION BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW
YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND
BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE
AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT,
ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:
CT CORPORATION SYSTEM, INC.
1633 BROADWAY, 23RD FLOOR
NEW YORK, NEW YORK 10019
ATTENTION: SERVICE OF PROCESS DEPARTMENT
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 BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME
-14-
<PAGE> 15
TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW
YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND
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.
ARTICLE 11: NOTICES
All notices, consents, approvals and requests required or
permitted hereunder or under any other Loan Document 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, return receipt
requested or (b) expedited prepaid delivery service, either commercial or United
States Postal Service, with proof of attempted delivery, and by telecopier (with
answer back acknowledged), addressed as follows (or at such other address and
Person as shall be 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 Section):
If to Lender: Lehman Brothers Holdings Inc.,
Three World Financial Center, 12th Floor
Commercial Mortgage Surveillance Group
New York, New York 10285
Attention: Scott Weiner
Facsimile No. (212) 526-8679
with a copy to: Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: John M. Zizzo, Esq.
Facsimile No. (212) 504-6666
If to Borrower: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: George A. Schmidt, Executive Vice President
Facsimile No. (614) 621-8863
With a copy to: Frost & Jacobs LLP
10 West Broad Street
Columbus, Ohio 43215-3467
Attention: John I. Cadwallader, Esq.
Facsimile No. (614) 464-1737
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
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<PAGE> 16
delivery on a Business Day; or in the case of expedited prepaid delivery and
telecopy, upon the first attempted delivery on a Business Day.
ARTICLE 12: RECOURSE
Notwithstanding anything to the contrary contained in the
Original Note, the Mortgage or any of the other Loan Documents, this Note and
all of the obligations of Borrower hereunder and under the Mortgage and the
other Loan Documents shall be fully recourse to Borrower.
ARTICLE 13: ATTORNEYS' FEES
In the event that suit be brought hereon, or an attorney be
employed or expenses be incurred to compel payment of this Note or any portion
of the indebtedness evidenced hereby, or to defend the Lender's interest under
the Mortgage or as otherwise provided in the Mortgage, Borrower promises to pay
all such reasonable attorneys' fees, costs and expenses (including attorneys'
fees incurred in collecting attorneys' fees) all as actually incurred by Lender
as a result thereof and including, without limitation (a) reasonable attorneys'
fees, costs and expenses incurred in appellate proceedings or in any action or
participation in, or in connection with, any case or proceeding under Chapters 7
or 11 of the United States Bankruptcy Code or any successor thereto, and (b)
reasonable attorneys' fees, costs and expenses incurred as a result of Lender
exercising its rights to cure any Event of Default by Borrower under this Note,
the Mortgage or any other Loan Document, or as a result of the foreclosure,
assignment in lieu thereof or enforcement of the Mortgage. Additionally,
Borrower agrees to pay all reasonable attorneys' fees, costs and expenses
attributable to any subsequent modification or restructure of this Note.
ARTICLE 14: JOINT AND SEVERAL OBLIGATIONS.
The obligations of each Borrower under this Note shall be
joint and several and Lender may enforce such obligations against either or both
parties comprising Borrower in such order as Lender may determine in its sole
discretion.
ARTICLE 15: RELEASE OF PROPERTY.
Except as set forth in this Article 15, no repayment or
prepayment of any portion of the Note shall cause, give rise to a right to
require, or otherwise result in, the release of any lien of any Mortgage on any
Individual Property.
Borrower may obtain the release of an Individual Property from
the lien of the Mortgage thereon (and related Loan Documents) and the release of
Borrower's obligations under the Loan Documents with respect to such Individual
Property (other than those expressly stated to survive) in connection with an
arms length sale of such Individual Property to an unaffiliated third party,
upon the satisfaction of each of the following conditions:
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<PAGE> 17
(a) Borrower shall prepay the Loan on a Payment Date in an
amount equal to the greater of the Net Sales Proceeds from the sales of the
Individual Property to be released or one hundred twenty five percent(125%) of
the Allocated Loan Amount for such Individual Property set forth on Schedule A
annexed hereto;
(b) Borrower shall submit to Lender, not less than thirty (30)
days prior to the date of such release, a release of Lien (and related Loan
Documents) for such Individual Property for execution by Lender. Such release
shall be in a form appropriate in each jurisdiction in which the Individual
Property is located and satisfactory to Lender in its sole discretion. In
addition, Borrower shall provide all other documentation Lender reasonably
requires to be delivered by Borrower in connection with such release, together
with an Officer's Certificate certifying that such documentation (i) is in
compliance with all Legal Requirements, (ii) will effect such release in
accordance with the terms of this Agreement, and (iii) will not impair or
otherwise adversely affect the liens, security interests and other rights of
Lender under the Loan Documents not being released (or as to the parties to the
Loan Documents and Properties subject to the Loan Documents not being released).
[NO FURTHER TEXT ON THIS PAGE]
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<PAGE> 18
IN WITNESS WHEREOF, Borrower has duly executed this
Note as of the day and year first above written.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Glimcher Properties Corporation,
a Delaware corporation, its sole
general partner
By: /s/ George A. Schmidt
---------------------------------------
Name: George A. Schmidt
Title: Executive Vice President
GLIMCHER PROPERTIES CORPORATION,
a Delaware corporation
By: /s/ George A. Schmidt
----------------------------------------
Name: George A. Schmidt
Title: Executive Vice President
GLIMCHER DEVELOPMENT CORPORATION,
a Delaware corporation
By: /s/ George A. Schmidt
---------------------------------------
Name: George A. Schmidt
Title: Executive Vice President
<PAGE> 19
SCHEDULE A
ALLOCATED LOAN AMOUNTS
1. Grand Union, Chatham, New York $1,950,000
2. Grand Union, South Glens Falls, New York $4,340,000
3. Grand Union, Sidney, New York $4,690,000
4. Mount Vernon Plaza, Mount Vernon, Ohio $1,260,000
5. Village Plaza, Manhattan, Kansas $1,750,000
6. Target Plaza, Heath, Ohio $600,000
7. Toys R Us Plaza, Springfield, Ohio $1,630,000
8. Twin County Plaza, Galax, Virginia $5,280,000
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<PAGE> 1
Exhibit 10.103
FIRST AMENDMENT TO SECOND AMENDED
---------------------------------
AND RESTATED LOAN AGREEMENT
---------------------------
This First Amendment to Second Amended and Restated Loan Agreement
(this "Amendment") is entered into at Columbus, Ohio, by and among The
Huntington National Bank, KeyBank National Association, Firstar Bank, N.A., The
Provident Bank, National City Bank, Bankers Trust Company, PNC Bank, National
Association, FirstMerit Bank, N.A. and First Union National Bank as lenders
(collectively, the "Banks"); The Huntington National Bank and KeyBank National
Association, as co-agents (the "Co-Agents"); The Huntington National Bank, as
administrative agent (the "Administrative Agent"); Glimcher Properties Limited
Partnership, as borrower (the "Company"); and Glimcher Realty Trust and Glimcher
Properties Corporation, as guarantors (collectively the "Guarantor"), as of the
17th day of June, 1999, in order to amend the Second Amended and Restated Loan
Agreement entered into by and among the parties as of the 15th day of May, 1997
(the "Loan Agreement").
Whereas, the parties to this Amendment desire to add FirstMerit Bank,
N.A. and First Union National Bank as Banks pursuant to the terms of the Loan
Agreement and to amend certain of the provisions of the Loan Agreement, the Loan
Agreement is hereby amended as follows:
1. FirstMerit Bank, N.A. and First Union National Bank shall each
hereby become a Bank as defined in the Loan Agreement effective as of the date
of this Amendment, entitled to all the benefits and subject to all the
obligations of a Bank under the terms of the Loan Agreement. FirstMerit Bank,
N.A. and First Union National Bank each agrees to be bound by all those
provisions of the Loan Agreement binding upon a Bank.
2. All communications directed to FirstMerit Bank, N.A. and First
Union National Bank under the Loan Agreement or the promissory notes or
guarantees executed and delivered in connection herewith shall be mailed to the
following respective addresses:
FirstMerit Bank, N.A.
One East Main Street
West Jefferson, Ohio 43162
Attention: Robert A. Hiss
First Union National Bank
One First Union
NC0166
Charlotte, North Carolina 28288
Attention: Rex E. Rudy
3. Upon the execution and delivery of this Amendment, the Company
shall deliver to the Administrative Agent the sum of $20,000,000.00 to be
applied to the reduction of the principal portion of the Advances outstanding on
that date. The Administrative Agent shall disburse such funds as may be
necessary to purchase the Pro Rata Share of Fleet National Bank (the
"Terminating Bank") in the principal portion of the Advances outstanding on such
date (the "Existing Advances"), net of any letter of credit fees previously paid
to the Terminating Bank and unearned as of the date of this Amendment. Upon such
date, the Administrative Agent shall collect from the Company and pay to the
Terminating Bank its Pro Rata Share of the interest accrued on the Existing
Advances. The pro rata sharing among the Banks of funding and receipt of payment
contemplated in the Loan Agreement, as amended hereby, shall automatically
become effective for each Advance made after the date of this Amendment, but
shall be effective with respect to all letters of credit issued under the Loan
Agreement and remaining outstanding on the effective date of this Amendment,
whether issued on or after such date or prior thereto. The Administrative Agent
shall pay to the Banks their Pro Rata Shares of the unearned standby letter of
credit fees collected from the Terminating Bank.
<PAGE> 2
4. Section 1.1 of the Loan Agreement is hereby amended to recite in
its entirety as follows:
The Banks agree to lend to the Company sums and issue letters of
credit in face amounts totaling an aggregate amount of
$170,000,000.00 (hereinafter referred to as the "Loan"), as
co-lenders subject to the terms and conditions of this Agreement.
The "Commitment Limit" of each Bank shall be the amount set forth
opposite its signature on this Agreement or agreed to in any
subsequent amendment to this Agreement, as hereinafter provided
in this section. Any other provision of this Agreement
notwithstanding, no Bank shall be required to fund any advance or
undertake any obligation with respect to letters of credit issued
hereunder in an aggregate amount that exceeds its Pro Rata Share
of all advances made on the same date or that exceeds the amount
of its Commitment Limit. In addition, no Advances shall be made
or letters of credit issued at any time if, after giving effect
thereto, the sum of the outstanding principal amount of the Loan
and the aggregate of the face amounts of outstanding letters of
credit (the "Total Outstandings") would exceed the lesser of (a)
65% of the fair market value of the properties then in the
Collateral Pool, as determined on the basis of the most recent
appraisals accepted by the Banks, and (b) the Aggregate Borrowing
Base, as determined as of the end of the most recently completed
fiscal quarter based upon the financial information required to
be provided by the Company within the time period permitted for
delivery of quarterly statements pursuant to Section 11(a).
"Aggregate Borrowing Base" shall mean, on any date of
determination, the sum of the Borrowing Bases for each property
in the Collateral Pool. "Borrowing Base" shall mean the value
ascribed to a property in the Collateral Pool for the purpose of
this Section 1.1, calculated as follows: the Net Operating Income
for such property shall be divided by the product of the Market
Constant, 12 and 1.30. "Market Constant" shall mean the factor
determined by the Administrative Agent by reference to a standard
level constant payment table for a fully amortizing loan with a
maturity of 25 years' duration based upon an assumed per annum
interest rate equal to the greater of a (i) the ten-year U.S.
Treasury constant maturities interest rate average, as announced
weekly in Federal Reserve Statistical Release H.15, plus one and
three-quarters percentage points (1.75%), or (ii) seven percent
(7%). In the event that the Total Outstandings shall at any time
exceed the lesser of the amounts described in (a) and (b) above,
the Company agrees to provide within 30 days sufficient
additional collateral (subject to all the requirements of
Sections 7 and 9 hereof) such as to cause the Total Outstandings
not to exceed such amount or to make such repayment of the Loan
as may be required to reduce the Total Outstandings to the lesser
of such amounts.
5. Section 1.3 of the Loan Agreement is hereby amended to recite in its
entirety as follows:
The Co-Agents may from time to time with the consent of the
Company add other commercial banks as Banks under this Agreement.
In each case the addition of a Bank shall be made by (a)
execution by such Bank, the Co-Agents, the Company and the
Guarantor of an amendment in the form of Exhibit A to this
Agreement in which the additional Bank agrees to be bound by all
the terms and conditions of this Agreement and agrees to a
Commitment Limit; (b) delivery to the additional Bank by the
Company of a promissory note in the form of Exhibit B to this
Agreement and in the
2
<PAGE> 3
amount of such Bank's Commitment Limit; (c) delivery by the
Guarantor of guarantees in favor of such Bank in the form of
Exhibits C-1 and D-1 to the First Amendment to Second Amended and
Restated Loan Agreement; and (d) receipt by the Administrative
Agent from the additional Bank of its pro rata share of the
outstanding principal amount of the Loan and payment of that
amount pro rata to the Banks.
6. Section 1.4 of the Loan Agreement is hereby amended to recite in its
entirety as follows:
The Loan shall take the form of a revolving credit, and the
outstanding principal balance may be increased and decreased an
unlimited number of times. The Company's right to obtain advances
pursuant to the Loan shall terminate and the principal balance
shall be payable on January 31, 2001 (the "Termination Date").
Each request for an advance under this Agreement or for the
issuance of a letter of credit shall be directed to the
Administrative Agent and accompanied by a statement signed by the
Company by its chief executive officer, president, chief
financial officer or controller, in such representative capacity,
certifying that there does not then exist any Event of Default
(as hereinafter defined).
7. Section 1.5 of the Loan Agreement is hereby amended to recite in its
entirety as follows:
As part of the amount of the Loan available to the Company
pursuant to Section 1.1, the Company shall have the right to
obtain from the Administrative Agent standby letters of credit in
face amounts aggregating up to $25,000,000.00 at any one time
outstanding, provided that no letter of credit shall have an
expiry date later than one year from the date of issuance, nor
shall any such expiry date be later than the Termination Date
unless such standby letter of credit is secured through the
deposit with the Administrative Agent for the benefit of the
Banks of cash equal to the face amount of the letter of credit.
Each letter of credit shall be issued by The Huntington National
Bank as Administrative Agent in the name of The Huntington
National Bank. Each of the Banks hereby absolutely and
unconditionally purchases from The Huntington National Bank, and
The Huntington National Bank hereby sells to each of the Banks,
an undivided participation interest in each letter of credit
issued under this Agreement and in each letter of credit issued
and outstanding under the First Restated Agreement in an amount
equal to each Bank's Pro Rata Share. At the time of and as a
condition to the issuance of each standby letter of credit under
this Agreement, the Company shall pay to the Administrative
Agent, for the benefit of the Banks, an annual issuance fee equal
to one percent (1%) of the face amount of the letter of credit
and shall pay to the Administrative Agent, individually, a facing
bank fee equal to one-tenth of one percent (0.1%) of the face
amount of the letter of credit. The Company shall also pay to the
Administrative Agent, individually, its customary fees associated
with the administration of standby letters of credit, including
but not limited to those fees associated with the issuance of
routine amendments and the processing of drawings. The Company's
obligation to reimburse the Banks for the amount of a drawing
under any standby letter of credit issued as part of the Loan
shall be evidenced by a reimbursement agreement in the form
customarily used by The Huntington National Bank.
3
<PAGE> 4
Upon any failure of the Company promptly to reimburse the
Administrative Agent pursuant to the terms of any reimbursement
agreement executed and delivered in connection with the Loan,
following any drawing upon a letter of credit, such reimbursement
amount shall be immediately funded by the Administrative Agent
through the making of an Advance under the Loan. Advances for the
purpose of paying unreimbursed letter of credit drawings shall
continue to be made by the Administrative Agent and funded by the
Banks pro rata notwithstanding the existence of any Event of
Default or any other cause; provided, however, that in no event
shall the Banks be obligated to lend more than $170,000,000.00 in
the aggregate, nor shall any individual Bank be obligated to lend
more than the amount of its Commitment Limit.
8. The definition of "Applicable Percentage" contained in Section 2.2
of the Loan Agreement is hereby amended to recite in its entirety as follows:
"Applicable Percentage" shall mean a per annum percentage of
interest equal to 1.60% if the Company's Leverage is less than
0.40 to 1; 1.70% if the Company's Leverage is less than 0.50 to 1
and greater than or equal to 0.40 to 1; 1.80% if the Company's
Leverage is less than 0.55 to 1 and greater than or equal to 0.50
to 1; and 1.90% if the Company's Leverage is greater than or
equal to 0.55 to 1.
9. The third sentence of Section 2.10 of the Loan Agreement is hereby
amended to recite in its entirety as follows:
The Company agrees to pay to the Banks (excepting any Bank
that may have ceased to fund its Pro Rata Share of Advances hereunder
in violation of the terms of this Agreement) quarterly in arrears,
commencing on the date of the First Amendment to Second Amended and
Restated Loan Agreement, a quarterly usage fee equal to the sum of (x)
one-quarter of one percent (1/4%) per annum on the amount by which the
actual daily amount of the Loan outstanding during such quarter is less
than $85,000,000.00, and (y) one-eighth of one percent (1/8%) per annum
on the difference between $170,000,000.00 and the greater of
$85,000,000.00 or the actual daily amount of the Loan outstanding
during such quarter. For purposes of calculating the usage fee only,
the commitment provided for in this Agreement shall be deemed to be
outstanding to the extent of (a) 100% of the Company's aggregate Prime
Interest Rate Advances and LIBO Rate Advances; and (b) 0% of the
aggregate undrawn face amount of standby letters of credit issued under
this Agreement. The Company shall be entitled, upon written notice to
the Administrative Agent, to cancel or reduce the total commitment
provided for herein; provided, however, that any such cancellation or
reduction shall be irrevocable, any reduction shall be in the minimum
amount of $5,000,000.00, and all then outstanding and unpaid principal
(or amount thereof in excess of any remaining commitment), interest
accrued thereon and fees, together with any sum due pursuant to Section
2.8 hereof, shall be paid in full to the Banks.
10. Section 7 of the Loan Agreement is hereby amended to recite in its
entirety as follows:
As security for the Loan, the Company shall grant to the
Administrative Agent, as collateral agent for the Banks, a first
mortgage lien in the following properties owned by the Company: The
Mall at Fairfield Commons in Beavercreek, Ohio; NewTowne Mall in New
Philadelphia, Ohio; and Indian Mound Mall in Heath, Ohio (the foregoing
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<PAGE> 5
properties being referred to in the aggregate as the "Collateral
Pool"). The Company, provided there is not then continuing an Event of
Default, shall have the right to substitute in the Collateral Pool
properties that are of equivalent or greater appraised fair market
value and free of all liens and encumbrances other than real estate
taxes and assessments not yet due and payable, easements, covenants,
conditions and restrictions of record that do not materially interfere
with the use of the premises as a mall or shopping center and the
rights of parties in possession as tenants only, in each case upon the
prior written approval of the Required Banks and, if not included in
the Required Banks, the Co-Agents. Substitution of any property shall
only be considered by the Banks upon the delivery by the Company to the
Banks of (a) Evidence of Value (as hereinafter defined); (b) a current
survey satisfactory in form and substance to the Co-Agents; (c) a
current environmental report satisfactory in form and substance to the
Co-Agents; (d) a current ALTA title insurance commitment and final
mortgagee policy of title insurance for such property and all
appurtenant easements thereto with such reinsurance and endorsements as
the Banks may require, issued by an agent and underwriter acceptable to
the Banks and conforming in all respects with the Administrative
Agent's title insurance requirements; and (e) evidence that the
property is insured under policies providing such coverages and
insuring against such risks as is customary with respect to such
commercial properties. "Evidence of Value" shall mean an independent
appraisal satisfactory in form and substance to the Required Banks,
conducted by appraisers selected by the Co-Agents, and in conformity
with the usual appraisal standards of the Administrative Agent and with
the requirements of all statutes, regulations and interpretations
thereof to which the Banks, or any of them, are subject, establishing
the substitute property to be of a value equal to or greater than the
value of the property for which substitution is being made. In the
event that the Required Banks shall determine that the loan to value
ratio and Aggregate Borrowing Base requirements of Section 1.1 can be
fulfilled without including in the Collateral Pool all the properties
identified in this Section 7, and provided that there is not then
continuing an Event of Default, the Company shall be permitted to
designate the specific properties described in Section 7 that shall be
included in the Collateral Pool, subject to the Company's ongoing
obligation to remain in compliance at all times with Section 1.1.
In the event that (A) any of the properties in the Collateral Pool are
at any time released from inclusion pursuant to the provisions of this
section, and (B) any of such properties are thereafter offered as
substitute or additional properties pursuant to the terms hereof, and
(C) neither the Company nor the Required Banks are then in possession
of information suggesting a material decrease in the fair market value
of such properties, and (D) none of the Banks is required by applicable
law or regulation to obtain a new appraisal of such property, the Banks
agree to accept as Evidence of Value the appraisals on such properties
received in connection with the execution of this Agreement.
11. Section 10.5 of the Loan Agreement is hereby amended to recite in
its entirety as follows:
Neither the Company nor the Guarantor will create or incur,
pursuant to any line of credit, working capital loan or
comparable credit facility other than this Agreement, any
indebtedness for borrowed money or advances. Neither the
Company nor the Guarantor shall incur any other debt for
borrowed money which provides for the creditor to have
recourse to the Company or the Guarantor other than (a) loan
-5-
<PAGE> 6
indebtedness incurred in the ordinary course of business for
the construction financing or permanent financing of real
estate construction, expansion, renovation and acquisition,
and (b) outstanding indebtedness of any one or more
unconsolidated affiliates of Glimcher Realty Trust or the
Company totaling in the aggregate no more than 8% of Total
Asset Value (as defined in Section 10.29).
12. Section 10.14 of the Loan Agreement is hereby amended to recite in
its entirety as follows:
Investments in Joint Ventures by the Company and the Guarantor
shall not exceed $325,000,000.00 plus 40% of the net proceeds
of any public or private equity offering after the date of
this Agreement, excluding proceeds received pursuant to the
agreement with Nomura Asset Capital Corporation for the
payment of $135,000,000.00 existing on the date of this
Agreement.
13. Section 10.20 of the Loan Agreement is hereby amended to recite in
its entirety as follows:
The Company and the Guarantor shall at all times prior to the
Termination Date maintain interest rate protection with
respect to the interest obligations of the Company, the
Guarantor, their Subsidiaries and all their Joint Ventures (as
to the Glimcher Percentage of such Joint Ventures) from a
company or companies and containing terms satisfactory to the
Co-Agents, including but not limited to protection providing
that the aggregate unprotected floating rate debt of those
parties cannot exceed 15% of Total Asset Value (as defined in
Section 10.29). The Company shall grant to the Administrative
Agent for the benefit of the Banks a first priority security
interest in every interest rate protection contract to which
the Company is or may become in the future a party with
respect to the Company's interest obligations relating to the
Loan.
14. Section 10.25 of the Loan Agreement is amended to read in its
entirety as follows:
Maximum dividend payout as to common and preferred shares
shall be 100% of Funds from Operations for the Company, the
Guarantor and their respective Subsidiaries on a consolidated
and cumulative basis over the prior four quarters. "Funds from
Operations" shall mean net income less gains from property
sales, plus losses from property sales and debt
restructurings, amortization and depreciation (including,
solely for the purpose of this definition, the Glimcher
Percentage of the amortization and depreciation of Joint
Ventures for such period), noncash expense and minority
interest expense, less the sum of scheduled principal
payments, excluding balloon payments, and capital expenditures
(including the capital expenditures of each Joint Venture).
For the purposes of this section, capital expenditures will be
assumed to be $.15 per square foot of gross leaseable area in
the properties operated and maintained by the Company,
excluding ground leases, in excess of five years old, and the
capital expenditures of each Joint Venture will be assumed to
be such Joint Venture's Glimcher Percentage of such amount.
Cash flow from properties that secure loans that are in
default and as to which the indebtedness has been accelerated
will be excluded from the calculation of Funds from
Operations.
15. Section 10.28 of the Loan Agreement is amended to read in its
entirety as follows:
-6-
<PAGE> 7
The Company's and the Guarantor's pro-rated share of the
aggregate budgeted project costs of all projects under
construction (whether such project is owned by the Company,
the Guarantor, a Subsidiary or a Joint Venture) shall not
exceed 22.5% of Total Asset Value, as defined in Section 10.29
hereof. For the purposes of this Section 10.28, "project
costs" shall include (except with regard to the Elizabeth
MetroMall and to the extent otherwise determined by the
Co-Agents) expenses associated with off-site improvements. The
Company's and the Guarantor's pro-rated share of project costs
shall be deemed to be the higher of the percentage of (i)
their liability for indebtedness incurred in connection with
the project (with that percentage to be calculated by dividing
the maximum dollar amount of the aggregate liability of the
Company and the Guarantor with respect to such project by the
maximum project indebtedness that could be outstanding subject
to such liability pursuant to agreements in effect at the time
of the calculation) or (ii) their percentage ownership
interest in such project; provided, however, that for each
project owned by a Joint Venture in connection with which the
Company or the Guarantor has executed a completion, payment or
collection guaranty, the pro-rated share shall be 100% of the
project costs for such project. "Project costs" as used in
this Section 10.28 shall not include the project costs for any
project as to which construction has been substantially
completed and the project is producing Net Operating Income
(as hereinafter defined for the purposes of this Section
10.28) equal to or exceeding interest debt service for two
consecutive months. For the purposes of this Section 10.28
only, "Net Operating Income" shall be defined as the sum of
(i) two consecutive months' actual rental income and common
area reimbursements from tenants in occupancy for 12 months or
more, (ii) one-sixth of the annualized actual base rental
income and common area reimbursements for tenants open and
operating for less than 12 months, (iii) two months' pro-forma
rental income from tenants that have executed leases (approved
if necessary) and are scheduled to open within 90 days, and
(iv) actual other income (not annualized) during the two
consecutive month test period, including other recurring
tenant reimbursements, and temporary tenant income, less (i)
rent payable during the two consecutive month test period,
pursuant to leases which are in default, (ii) rent payable
during the two consecutive month test period pursuant to
leases that have expired within the previous 12 months, or are
scheduled to expire within the 60 day period following such
test period, (iii) one-sixth of the annualized pro-forma
operating expenses for the first 12 months after opening (and
actual operating expenses thereafter during the two
consecutive month test period), including a 4% management fee,
and (iv) a tenant improvement and capital expenditure reserve
in the amount of $0.025 per square foot of owned gross leasing
area.
16. Section 10.29 of the Loan Agreement is amended to read in its
entirety as follows:
The consolidated total debt of the Company, the Guarantor and
their respective Subsidiaries (determined in accordance with
generally accepted accounting principles), plus, as to
unconsolidated affiliates, the product of the outstanding debt
of such affiliates and the greater of (i) the percentage of
such affiliates' debt for which creditors of such affiliates
have recourse to the Company or the Guarantor (the "Recourse
Percentage"), or (ii) the percentage of the aggregate
ownership of the Company and the Guarantor in such affiliate,
whether owned pursuant to a preferred or common equity
interest (the "Ownership Percentage") (such greater
percentage, the "Glimcher
-7-
<PAGE> 8
Percentage"), shall not exceed 60% of the Total Asset Value,
to be tested as of the end of each fiscal quarter. The
Ownership Percentage in each unconsolidated affiliate shall be
determined by dividing the sum of the value of the preferred
ownership interest of the Company, the Guarantor and their
respective Subsidiaries in the unconsolidated affiliate and
the value of the common ownership interest of the Company, the
Guarantor and their respective Subsidiaries in the
unconsolidated affiliate by the total preferred and common
equity in such unconsolidated affiliate. For the purposes of
this Agreement, an ownership interest shall be deemed to be
"preferred" if the ownership of such interest provides to the
owner a preference over the owners of common ownership
interests in sharing in either or both of operating cash flow
and cash flow from capital transactions. "Total Asset Value"
shall mean the aggregate of the Company's, the Guarantor's and
their respective Subsidiaries' cash and cash substitutes,
Value of Wholly-Owned Properties and Value of Partially-Owned
Properties. "Value of Wholly-Owned Properties" means the sum
of the following:
(1) the Company's and the Guarantor's EBITDA from the
preceding four consecutive quarters, less EBITDA from
properties owned for less than twelve (12) months
(but not including any properties included in
category (3) below) less income plus losses from
unconsolidated ventures, divided by a capitalization
rate of 8.75% for enclosed malls and 10.00% for other
income-producing properties;
(2) the actual purchase price of properties (exclusive of
soft costs paid by the buyer or the seller) that have
been owned less than twelve (12) months (but not
including any properties included in category (3)
below);
(3) the market value of each project under development,
which shall be its cost until earlier of (A) 48
months from the beginning of construction, (B) 30
months from the issuance of the Certificate of
Occupancy for such development property, or (C) 24
months from the opening of such development property
to the general shopping public; and
(4) for each expansion of a property for the purpose of
increasing that property's gross leaseable area,
where such expansion is undertaken pursuant to a
budget containing construction expenses deemed
reasonable and appropriate by the Co-Agents and in an
aggregate amount in excess of $5,000,000.00, during
the period of 18 months following the commencement of
construction, the amounts expended by the Company and
the Guarantor pursuant to that budget.
"Value of Partially-Owned Properties" means the sum of the
following:
(1) the value of all partially-owned and not consolidated
operating properties owned for at least twelve (12)
months (but not including any properties included in
category (3) below), which shall be the sum of, for
each property, the product of that property's EBITDA
and the Glimcher Percentage of the affiliate that
owns such property, divided by a capitalization rate
of 8.75% for enclosed malls and 10.00% for other
income-producing properties;
-8-
<PAGE> 9
(2) the value of partially-owned and not consolidated
operating properties owned for less than twelve (12)
months (but not including any properties included in
category (3) below), which shall be the sum of, for
each property, the product of that property's
purchase price (exclusive of soft costs paid by the
buyer or the seller) and the Glimcher Percentage of
the affiliate that owns such property;
(3) the value of partially-owned and not consolidated
development properties, which shall be the sum of,
for each such property, until the earlier of (A) 48
months from the beginning of construction, (B) 30
months from the issuance of the Certificate of
Occupancy for such development property, or, (C) 24
months from the opening of such development property
to the general shopping public, the product of that
property's cost and the Glimcher Percentage of the
affiliate that owns such property; and
(4) for each expansion of a partially-owned and not
consolidated property for the purpose of increasing
that property's gross leasable area, where such
expansion is undertaken pursuant to a budget
containing construction expenses deemed reasonable
and appropriate by the Co-Agents and in an aggregate
amount in excess of $5,000,000.00, during the period
of 18 months following the commencement of
construction, the product of the amounts expended by
the Company and the Guarantor pursuant to that budget
and the Glimcher Percentage of the affiliate that
owns such property.
17. Section 11(b) of the Loan Agreement is amended to read in its
entirety as follows:
within 45 days after the end of each quarter (including the
fourth fiscal quarter), or by such later time as may be
permitted for the delivery of quarterly financial statements
pursuant to Section 11(a), a statement signed by each of the
Guarantor's and the Company's chief executive officer,
president or chief financial officer in their respective
representative capacities certifying the compliance by each
with the terms of this Agreement; providing calculations
demonstrating the Company's compliance with the covenants
contained in Sections 10.5(b), 10.10, 10.14, 10.20, 10.25,
10.27, 10.28, 10.29 and 10.30 hereof; and calculating the
Company's Aggregate Borrowing Base as provided in Section 1.1
hereof and the Company's Leverage and resulting Applicable
Percentage as both are defined in Section 2.2 of this
Agreement;
18. The Banks acknowledge their receipt and approval of appraisals
establishing to the satisfaction of the Banks that the total of the Commitment
Limits does not exceed 65% of the fair market value of the properties in the
Collateral Pool.
19. The effectiveness of this Amendment is further expressly
conditioned upon the payment to the Administrative Agent for distribution to the
Banks in accordance with their interests of an Extension Fee equal to 30 basis
points on the amount of the Loan and a Modification Fee equal to 10 basis points
on the amount of the Loan.
20. The effectiveness of this Amendment is further expressly
conditioned upon the Company and the Guarantor providing to the Co-Agents an
endorsement to the policy of title
-9-
<PAGE> 10
insurance issued in connection with the initial closing of the Loan confirming
that the mortgage liens held by the Co-Agents as security for the Loan remain,
following the execution of this Amendment and the recording in the land records
where each of the properties is situated of an instrument of modification, first
priority liens against each of the properties in the Collateral Pool. Such
endorsement shall update the effective date of each of the policies and identify
the insured instrument to be the mortgage as modified by the aforementioned
instrument of modification.
21. The Company and the Guarantor represent and warrant that no Event
of Default has occurred and is continuing, nor will any occur immediately after
the execution and delivery of this Amendment by the performance or observance of
any provision hereof or thereof.
22. Each reference to the Loan Agreement, whether by use of the phrase
"Loan Agreement," "Agreement," the prefix "herein" or any other term, and
whether contained in the Loan Agreement itself, in this Amendment, in any
document executed concurrently herewith or in any loan documents executed
hereafter, shall be construed as a reference to the Loan Agreement as previously
amended and as amended by this Amendment.
23. Except as previously amended and as modified herein, the Loan
Agreement and the Loan Documents shall remain as written originally and in full
force and effect in all respects, and nothing herein shall affect, modify, limit
or impair any of the rights and powers which the Banks may have thereunder.
24. The Company and the Guarantor agree to perform and observe all the
covenants, agreements, stipulations, and conditions to be performed on its part
under the Loan Agreement, the promissory notes and guarantees executed and
delivered in connection herewith, the Loan Documents, and all other related
agreements, as amended by this Amendment.
25. The Company and the Guarantor hereby represent and warrant to the
Co-Agents and the Banks that (a) the Company and the Guarantor have legal power
and authority to execute and deliver the within Amendment; (b) the respective
officers executing the within Amendment on behalf of the Company and the
Guarantor have been duly authorized to execute and deliver the same and bind the
Company and the Guarantor with respect to the provisions provided for herein and
therein; (c) the execution by the Company and Guarantor and the performance and
observance by the Company and the Guarantor of the provisions hereof do not
violate or conflict with the articles of incorporation, regulations or by-laws
of the Company or the Guarantor or any law applicable to the Company or the
Guarantor or result in the breach of any provision of or constitute a default
under any agreement, instrument or document binding upon or enforceable against
the Company or the Guarantor; and (d) this Amendment constitutes a valid and
legally binding obligation upon the Company and the Guarantor, subject to
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally, to general equitable principles and to
applicable doctrines of commercial reasonableness.
26. This Amendment shall become effective only upon (a) its execution
by all parties hereto, which execution may be in any number of counterparts, but
all of which when taken together shall constitute one and the same document; (b)
execution and delivery by the Company and Guarantor to each of the Banks of
promissory notes in the form of Exhibit B to the Loan Agreement in the amount of
each such Bank's respective Commitment Limit; and (c) execution and delivery by
the Guarantor to each Bank of guarantees in the form of Exhibits C-1 and D-1 to
this Amendment, in substitution for the guarantees previously executed and
delivered.
27. The capitalized terms used herein shall have the same meanings as
the capitalized terms used in the Loan Agreement.
IN WITNESS WHEREOF, the Company, the Guarantor, the Banks, the
Co-Agents and the Administrative Agent have hereunto set their hands as of the
17th day of June, 1999.
-10-
<PAGE> 11
COMPANY:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
By: GLIMCHER PROPERTIES CORPORATION
Its: Sole General Partner
By: /s/ William G. Cowely
------------------------------------
Its: Exec. Vice President COO & CFO
-----------------------------------
GUARANTOR:
GLIMCHER REALTY TRUST
By: /s/ William G. Cowely
------------------------------------
Its: Exec. Vice President COO & CFO
-----------------------------------
GLIMCHER PROPERTIES CORPORATION
By: /s/ William G. Cowely
------------------------------------
Its: Exec. Vice President COO & CFO
-----------------------------------
BANKS:
COMMITMENT LIMIT: THE HUNTINGTON NATIONAL BANK
$30,000,000.00
By: /s/ David H. DeVictor
------------------------------------
Its: Vice President
-----------------------------------
COMMITMENT LIMIT: KEYBANK NATIONAL ASSOCIATION
$30,000,000.00
By: /s/ Dan Heberle
------------------------------------
Its: Vice President
-----------------------------------
COMMITMENT LIMIT: _________ BANKERS TRUST COMPANY
$25,000,000.00
By: /s/ Steven P. Lapham
------------------------------------
Its: Principal
-----------------------------------
-11-
<PAGE> 12
COMMITMENT LIMIT: FIRSTAR BANK, N.A.
$20,000,000.00
By: /s/ Marilyn K. Miller
------------------------------------
Its: Vice President
-----------------------------------
COMMITMENT LIMIT: PNC BANK, NATIONAL ASSOCIATION
$10,000,000.00
By: /s/ Wayne Robertson
------------------------------------
Its: Vice President
-----------------------------------
COMMITMENT LIMIT: FIRSTMERIT BANK, N.A.
$10,000,000.00
By: /s/ William P. Randolph
------------------------------------
Its: Executive Vice President
-----------------------------------
COMMITMENT LIMIT: FIRST UNION NATIONAL BANK
$15,000,000.00
By: /s/ Rex E. Rudy
------------------------------------
Its: Vice President
-----------------------------------
COMMITMENT LIMIT: THE PROVIDENT BANK
$10,000,000.00
By: /s/ Brent E. Johnson
------------------------------------
Its: Vice President
-----------------------------------
COMMITMENT LIMIT: NATIONAL CITY BANK
$20,000,000.00
By: /s/ Steven A. Smith
------------------------------------
Its: Vice President
-----------------------------------
CO-AGENTS:
THE HUNTINGTON NATIONAL BANK
By: /s/ David H. DeVictor
------------------------------------
Its: Vice President
-----------------------------------
-12-
<PAGE> 13
KEYBANK NATIONAL ASSOCIATION
By: /s/ Dan Heberle
------------------------------------
Its: Vice President
-----------------------------------
ADMINISTRATIVE AGENT:
THE HUNTINGTON NATIONAL BANK
By: /s/ David H. DeVictor
------------------------------------
Its: Vice President
-----------------------------------
-13-
<PAGE> 1
Exhibit 10.104
SUBSTITUTE
REVOLVING NOTE
$10,000,000.00 Columbus, Ohio June _____, 1999
FOR VALUE RECEIVED, the undersigned, hereinafter referred to in the
plural, promise to pay to the order of The Provident Bank. (hereinafter called
the "Bank," which term shall include any holder hereof) at such place as the
Bank may designate or, in the absence of such designation, at any of the Bank's
offices, the sum of Ten Million and 00/100 Dollars ($10,000,000.00) or so much
thereof as shall have been advanced by the Bank at any time and not hereafter
repaid (hereinafter referred to as "Principal Sum") together with interest as
hereinafter provided and payable at the time(s) and in the manner(s) hereinafter
provided. The proceeds of the loan evidenced hereby may be advanced, repaid and
readvanced in partial amounts during the term of this revolving note ("Note")
and prior to maturity as provided in the Loan Agreement hereinafter described.
This Note is executed and the advances contemplated hereunder are to be
made pursuant to a Second Amended and Restated Loan Agreement (hereinafter
called the "Loan Agreement") dated as of May 15, 1997, as amended by a certain
First Amendment dated June , 1999 (the "Amendment"), and all the covenants,
representations, agreements, terms, and conditions contained therein, including
but not limited to conditions of default, are incorporated herein as if fully
rewritten. This Note is one of nine (9) promissory notes executed and delivered
to the lenders that are parties to the Loan Agreement, as amended by the
Amendment, in substitution for promissory notes originally executed and
delivered to the lenders that were original parties to the Loan Agreement.
INTEREST
- --------
Interest will accrue on the unpaid balance of the Principal Sum until
paid at the rate or rates of interest set forth in the Loan Agreement.
Upon default, whether by acceleration or otherwise, interest will
accrue on the unpaid balance of the Principal Sum and unpaid interest, if any,
until paid at a variable rate of interest per annum, which shall change in the
manner set forth below, equal to two (2) percentage points in excess of the
Prime Commercial Rate.
All interest shall be calculated on the basis of a 360 day year for the
actual number of days the Principal Sum or any part thereof remains unpaid.
There shall be no penalty for prepayment.
As used herein, Prime Commercial Rate shall mean the rate established
by The Huntington National Bank from time to time as its Prime Commercial Rate
based on its consideration of economic, money market, business and competitive
factors. The Prime Commercial Rate is not necessarily the lowest rate offered to
business borrowers by The Huntington National Bank. Subject to any maximum or
minimum interest rate limitation specified herein or by applicable law, any
variable rate of interest on the obligation evidenced hereby shall change
automatically without notice to the undersigned immediately with each change in
the Prime Commercial Rate.
MANNER OF PAYMENT
- -----------------
The Principal Sum shall be payable on January 31, 2001, and accrued
interest shall be due and payable monthly at the times provided in the Loan
Agreement, and at maturity, whether by demand, acceleration or otherwise.
<PAGE> 2
LATE CHARGE
- -----------
Any installment or other payment not made within 10 days of the date
such payment or installment is due shall be subject to a late charge equal to 5%
of the amount of the installment or payment.
DEFAULT
- -------
Upon the occurrence of any of the Events of Default described in
Section 12 of the Loan Agreement, the Bank may, at its option, without notice or
demand, accelerate the maturity of the obligations evidenced hereby, which
obligations shall become immediately due and payable. In the event the Bank
shall institute any action for the enforcement or collection of the obligations
evidenced hereby, the undersigned agree to pay all costs and expenses of such
action, including reasonable attorneys' fees, to the extent permitted by law.
GENERAL PROVISIONS
- ------------------
All of the parties hereto, including the undersigned, and any indorser,
surety, or guarantor, hereby severally waive presentment, notice of dishonor,
protest, notice of protest, and diligence in bringing suit against any party
hereto, and consent that, without discharging any of them, the time of payment
may be extended an unlimited number of times before or after maturity without
notice. The Bank shall not be required to pursue any party hereto, including any
guarantor, or to exercise any rights against any collateral herefor before
exercising any other such rights.
The obligations evidenced hereby may from time to time be evidenced by
another note or notes given in substitution, renewal or extension hereof. Any
security interest or mortgage which then secures the obligations evidenced
hereby shall remain in full force and effect notwithstanding any such
substitution, renewal, or extension.
The captions used herein are for references only and shall not be
deemed a part of this Note. If any of the terms or provisions of this Note shall
be deemed unenforceable, the enforceability of the remaining terms and
provisions shall not be affected. This Note shall be governed by and construed
in accordance with the law of the State of Ohio.
WAIVER OF RIGHT TO TRIAL BY JURY
- --------------------------------
THE UNDERSIGNED ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY
ARISE BETWEEN THE UNDERSIGNED AND THE BANK, THE COMMERCIAL NATURE OF THE
TRANSACTION OUT OF WHICH THIS NOTE ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE
FOR TRIAL BY JURY. ACCORDINGLY, THE UNDERSIGNED HEREBY WAIVE ANY RIGHT TO TRIAL
BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO THIS NOTE OR TO
ANY OF THE OTHER INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation
Its: Sole General Partner
By: William G. Cornely
------------------------------------------
Its: Executive Vice President, Chief Financial
-----------------------------------------
Officer & Chief Operating Officer
-----------------------------------------
<PAGE> 1
Exhibit 10.105
- --------------------------------------------------------------------------------
GUARANTOR: Glimcher Realty Trust DEBTOR: Glimcher Properties
Limited Partnership
ADDRESS: 20 South Third Street ADDRESS: 20 South Third Street
Columbus, Ohio 43215 Columbus, Ohio 43215
- --------------------------------------------------------------------------------
GUARANTY
For the purpose of inducing Bankers Trust Company (hereinafter referred to as
"Bank") to lend money or advance credit to, or renew, extend or forbear from
demanding immediate payment of the Obligations of Glimcher Properties Limited
Partnership (hereinafter referred to as "Debtor"), the undersigned (hereinafter
referred to as "Guarantors" whether one or more), jointly and severally if more
than one (which joint and several liability shall exist regardless of whether
additional Guarantors have evidenced or may in the future evidence their
undertaking by executing this Guaranty, by co-signing one or more promissory
notes or other instruments of indebtedness, by executing one or more separate
agreements of guaranty of any or all of the Obligations referred to herein or
otherwise), hereby unconditionally guarantee the prompt and full payment to Bank
when due, whether by acceleration or otherwise, of all Obligations of any kind
for which Debtor is now or may hereafter become liable to Bank in any manner.
The word "Obligations" is used in its most comprehensive sense and includes,
without limitation, all indebtedness, debts and liabilities (including
principal, interest, late charges, collection costs, attorneys' fees and the
like) of Debtor to Bank, either created by Debtor alone or together with another
or others, primary or secondary, secured or unsecured, absolute or contingent,
liquidated or unliquidated, direct or indirect, whether evidenced by note,
draft, application for letter of credit, agreements of guaranty or otherwise,
and any and all renewals of, extensions of or substitutes therefor, to the
extent that such Obligations arise from or are connected with indebtedness owed
by Debtor to Bank by reason of credit extended or to be extended to Debtor in
the principal amount of $25,000,000.00, pursuant to a promissory note dated as
of June __, 1999, and a Second Amended and Restated Loan Agreement dated as of
May 15, 1997, as amended by that certain First Amendment dated June __, 1999.
Guarantors, and each of them, hereby promise that if one or more of the
Obligations are not paid promptly when due, they, and each of them, will, upon
request of Bank, pay the Obligations to Bank, irrespective of any action or lack
of action on Bank's part in connection with the acquisition, perfection,
possession, enforcement or disposition of any or all Obligations or any or all
security therefor or otherwise, and further irrespective of any invalidity in
any or all Obligations, the unenforceability thereof or the insufficiency,
invalidity or unenforceability of any security therefor.
Guarantors waive notice of any and all acceptances of this Guaranty. This
Guaranty is a continuing guaranty, and, in addition to covering all present
Obligations of Debtor to Bank, will extend to all future Obligations of Debtor
to Bank, and this whether such Obligations are reduced or entirely extinguished
and thereafter increased or reincurred. This Guaranty is made and will remain in
effect as to any and all Obligations of Debtor incurred or arising prior to
receipt by the
<PAGE> 2
loan officer of Bank who is handling Debtor's Obligations of written notice of
termination of this Guaranty. No such written notice or other revocation will in
any way affect the duties of Guarantors to Bank with respect to either
Obligations incurred by Debtor or instruments executed by Debtor prior to the
receipt of such notice by such loan officer of Bank. In addition, no such
written notice or other revocation will in any way affect the liabilities of
Guarantors to Bank with respect to revolving Obligations of Debtor on which
loans or advances are made, whether such loans or advances are made prior or
subsequent to such notice. Revocation by any one or more of Guarantors will not
affect the duties of the remaining Guarantor or Guarantors.
Bank's rights hereunder shall be reinstated and revived, and this Guaranty shall
be fully enforceable, with respect to any amount at any time paid on account of
the Obligations which thereafter shall be required to be restored or returned by
Bank as a result of the bankruptcy, insolvency or reorganization of Debtor,
Guarantors, or any other person, or as a result of any other fact or
circumstance, all as though such amount had not been paid.
Guarantors waive any claims or other rights which they might now have or
hereafter acquire against Debtor or any other person, guarantor, maker or
endorser primarily or contingently liable on the Obligations that arise from the
existence or performance of Guarantors' obligations under this Guaranty or under
any instrument or agreement with respect to any property constituting collateral
or security herefor, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, or any right to
participate in any claim or remedy of Bank against Debtor or any collateral
security therefor which Bank now has or hereafter acquires; whether such claim,
remedy or right arises in equity, under contract or statute, at common law, or
otherwise.
Notwithstanding anything to the contrary herein, the Guarantors' obligations
hereunder shall be limited to a maximum aggregate amount equal to the largest
amount that would not render such Guarantors' obligations thereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of the
Bankruptcy Code or any applicable provisions of comparable state law
(collectively, the "Fraudulent Transfer Laws"), in each case after giving effect
to all other liabilities of Guarantors, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of such entity in respect to intercompany indebtedness to Debtor
or other affiliates of Debtor to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by Guarantors hereunder) and
after giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation or
contribution of Guarantors pursuant to (i) applicable law or (ii) any agreement
providing for an equitable allocation among Guarantors and other affiliates of
Debtor of obligations arising under guarantees by such parties (such limitation
being the "Cap").
Guarantors agree that the Obligations may at any time and from time to time
exceed the Cap of such Guarantors without impairing this Guaranty or, subject to
the previous paragraph, affecting the rights and remedies of Bank hereunder.
Guarantors, and each of them, hereby agree that, to the extent that each or any
Guarantors shall have paid more than their proportionate share of any payment
made hereunder, such Guarantors shall be entitled to seek and receive
contribution from and against any other Guarantors hereunder who have not paid
their proportionate share of such payment. Guarantors' right of contribution
shall be subject to the terms and conditions of the waiver of subrogation
contained in the paragraph below. The provisions of this paragraph relating to
Guarantors' rights to contribution shall in no respect limit the obligations and
liabilities of Guarantors to Bank, and Guarantors shall remain liable to Bank
for the full amount guaranteed by Guarantors hereunder.
Guarantors waive presentment, demand, protest, notice of protest and notice of
dishonor or other nonpayment of any and all Obligations and further waive notice
of sale or other disposition of any collateral or security now held or hereafter
acquired by Bank. Guarantors agree that no extension of time, whether one or
more, nor any other indulgence granted by Bank to Debtor, or to Guarantors, or
any of them, and no omission or delay on Bank's part in exercising any right
against, or in taking any action to collect from or pursue Bank's remedies
against Debtor or
-2-
<PAGE> 3
Guarantors, or any of them, will release, discharge or modify the duties of
Guarantors. Guarantors agree that Bank may, without notice to or further consent
from Guarantors, release or modify any collateral, security or other guaranties
now held or hereafter acquired, or substitute other collateral, security or
other guaranties, and no such action will release, discharge or modify the
duties of Guarantors hereunder. Guarantors further agree that Bank will not be
required to pursue or exhaust any of its rights or remedies against Debtor or
Guarantors, or any of them, with respect to payment of any of the Obligations,
or to pursue, exhaust or preserve any of its rights or remedies with respect to
any collateral, security or other guaranties given to secure the Obligations, or
to take any action of any sort, prior to demanding payment from or pursuing its
remedies against Guarantors.
Guarantors agree that any legal suit, action or proceeding arising out of or
relating to this Guaranty may be instituted in a state or federal court of
appropriate subject matter jurisdiction in the State of Ohio; waive any
objection which they may have now or hereafter to the laying of venue of any
such suit, action or proceeding; and irrevocably submit to the jurisdiction of
any such court in any such suit, action or proceeding.
WAIVER OF RIGHT TO TRIAL BY JURY
- --------------------------------
GUARANTORS ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE BETWEEN
GUARANTORS AND BANK, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS
GUARANTY ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY.
ACCORDINGLY, GUARANTORS HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY AS TO ANY AND
ALL DISPUTES THAT MAY ARISE RELATING TO THIS GUARANTY OR TO ANY OF THE OTHER
INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
If any Obligation of Debtor is assigned by Bank, this Guaranty will inure to the
benefit of Bank's assignee, and to the benefit of any subsequent assignee, to
the extent of the assignment or assignments, provided that no assignment will
operate to relieve Guarantors, or any of them, from any duty to Bank hereunder
with respect to any unassigned Obligation. In the event that any one or more of
the provisions contained in this Guaranty or any application thereof shall be
determined to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and any
other applications thereof shall not in any way be affected or impaired thereby.
This Guaranty shall be construed in accordance with the law of the State of
Ohio.
This Guaranty and all documents, agreements, understandings and arrangements
relating to the transactions contemplated hereby have been or will be executed
or entered into on behalf of Glimcher Realty Trust by one or more officers or
trustees of Glimcher Realty Trust, which has been formed as a Maryland real
estate investment trust pursuant to a Declaration of Trust of Glimcher Realty
Trust dated as of September 1, 1993, in their capacities as officers or
trustees, and not individually, and neither the trustees, officers or
shareholders of Glimcher Realty Trust shall be bound or have any personal
liability hereunder or thereunder. Bank shall look solely to the assets of
Glimcher Realty Trust for satisfaction of any liability of Glimcher Realty Trust
in respect hereof and in respect of all documents, agreements, understandings
and arrangements relating hereto and will not seek recourse or commence any
action against any of the trustees, officers or shareholders of Glimcher Realty
Trust or any of their personal assets for the performance or payment of any
obligation of Glimcher Realty Trust hereunder or thereunder. The foregoing shall
also apply to any future documents, agreements, understandings, arrangements and
transactions hereunder between Glimcher Realty Trust and Bank.
-3-
<PAGE> 4
Executed and delivered at Columbus, Ohio, this __ day of June, 1999.
GUARANTOR:
GLIMCHER REALTY TRUST
By: William G. Cornely
-----------------------------------
Its: Executive Vice President, Chief
-----------------------------------
Financial Officer and Chief
-----------------------------------
Operating Officer
-----------------------------------
-4-
<PAGE> 1
Exhibit 10.106.1
(OH/New Towne Mall)
MODIFICATION OF INDEBTEDNESS SECURED BY OPEN-END MORTGAGE,
----------------------------------------------------------
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
------------------------------------------
WHEREAS, under date of May 15, 1997, Glimcher Properties Limited
Partnership (the "Borrower") executed and delivered its certain Open-End
Mortgage, Assignment of Rents and Security Agreement (the "Mortgage") to The
Huntington National Bank, whose current mailing address is 41 South High Street,
Columbus, Ohio 43215, as administrative agent for Key Bank National Association,
The Huntington National Bank and certain other banks who are or may become
signatories to a certain Second Amended and Restated Loan Agreement dated May
15, 1997 (the "Mortgagee"), and,
WHEREAS, the Mortgage was filed for record with the Tuscarawas County
Recorder on May 23, 1997, at 9:05 a.m., and thereafter recorded in Mortgage
Record 793, page 341, and,
WHEREAS, the premises encumbered by the Mortgage are more fully
described in "Exhibit A" attached hereto and made a part hereof by this
reference, and,
WHEREAS, Ohio Revised Code ss. 5301.231 provides, inter alia, that all
amendments of the debt secured by a mortgage shall be recorded in the office of
the county recorder in which the mortgaged premises are situated, and,
WHEREAS, Borrower and related entities have entered into a First
Amendment to Second Amended and Restated Loan Agreement dated __________, 1999,
which, among other things, amends or modifies the indebtedness secured by the
Mortgage, and,
WHEREAS, the parties, in order to comply with Ohio Revised Code ss.
5301.231 and to give constructive notice of the amendments to the indebtedness
secured by the Mortgage do hereby certify that the indebtedness secured by the
Mortgage has been modified or amended in the following respects:
1. The indebtedness shall be payable not later than January 31, 2001,
instead of July 31, 1998, as set forth in the Mortgage.
2. The interest payable on the principal indebtedness secured by the
Mortgage shall be calculated in accordance with Section 2.2 of the First
Amendment to Second Amended and Restated Loan Agreement, rather than as provided
in that section of the Second Amended and Restated Loan Agreement.
Borrower and Mortgagee agree that the Mortgage shall remain a first
lien on the mortgaged premises in full force and effect in all respects as if
the unpaid balance of the principal, with the interest accrued thereon, had
originally been payable as provided for herein. Nothing herein shall affect or
impair any rights and powers which Mortgagee may have
<PAGE> 2
thereunder. Borrower covenants that it will pay the principal balance of the
indebtedness together with interest, as specified above, and that it will
perform and observe all other covenants, agreements, stipulations and conditions
on its part to be performed under the Mortgage.
IN WITNESS WHEREOF, Lender, by its duly authorized officer, and
Borrower, by its duly authorized general partner, have caused this Agreement to
be executed this ____ day of _________________, 1999.
LENDER:
Signed and acknowledged THE HUNTINGTON NATIONAL BANK,
in the presence of: a national banking association, as
administrative agent
By David DeVictor
- ------------------------------- --------------------------------
Signature
Its: Vice President
- ------------------------------- ---------------------------
Printed Name
- -------------------------------
Signature
- -------------------------------
Printed Name BORROWER:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Glimcher Properties Corporation, a
Delaware corporation, its Sole
General Partner
By William G. Cornely
- -------------------------------
Signature
Its: Executive Vice President, Chief
- ------------------------------- -------------------------------------
Operating Officer and Chief Financial
-------------------------------------
Officer
-------------------------------------
- -------------------------------
Signature
- -------------------------------
Printed Name
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
<PAGE> 3
On this ___ day of ______, 1999, before me, a Notary Public in and for
said County and State, personally appeared __________________________, who
acknowledged ____________to be the ____________________________ of The
Huntington National Bank, a national banking association, administrative agent
for KeyBank National Association, The Huntington National Bank and certain other
banks who are or may become signatories to a certain Second Amended and Restated
Loan Agreement dated May 15, 1997, and who acknowledged to me that _____, as
such _______________________ of said association in its capacity as said
administrative agent, being duly authorized by the association, did execute the
foregoing instrument for and on behalf of said association as administrative
agent and that such signing is the free act and deed of the association as such
administrative agent for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
-------------------------------
Notary Public
My Commission Expires:
----------------
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
On this ____ day of _______, 1999, before me, a Notary Public in and
for said County and State, personally appeared ______________________________,
who acknowledged to be the ___________________________________ of Glimcher
Properties Corporation, a Delaware corporation, the corporation named in the
foregoing instrument as the sole General Partner of GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, the limited partnership which executed the foregoing instrument,
and who acknowledged to me that ___, as such _______________________ of said
corporation, being duly authorized by the Board of Directors of said
corporation, did execute the foregoing instrument for and on behalf of said
limited partnership and that such signing is the free act and deed of said
limited partnership for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Carolee Oertel
---------------------------------------
Notary Public
My Commission Expires: January 30, 2000
----------------
THIS INSTRUMENT PREPARED BY:
Robert C. Kiger, Attorney
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street
Columbus, Ohio 43215
<PAGE> 1
Exhibit 10.107
SECURITY AGREEMENT
------------------
INTEREST RATE PROTECTION CONTRACT
Glimcher Properties Limited Partnership, 20 South Third Street ,
- --------------------------------------- -----------------------------------
Name No. and Street
Columbus , Franklin , Ohio ,
- --------------------------- -------------------------- ----------------------
City County State
a Delaware limited partnership (hereinafter called "Debtor"), for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby grants, pledges and assigns to The Huntington National Bank, as
Administrative Agent for a bank lending group pursuant to a Second Amended and
Restated Loan Agreement dated as of May 15, 1997, as amended, (hereinafter
called "Bank"), a security interest in all of Debtor's accounts, accounts
receivable, contract rights, general intangibles, and other forms of obligations
and receivables arising from or in connection with Debtor's rights under the
interest cap transaction entered into by and between Debtor and The Huntington
National Bank, individually, pursuant to an ISDA Master Agreement dated as of
January 19, 1994, and a Confirmation effective on June 17, 1999, or pursuant to
any other cap agreement, swap agreement or other interest rate protection
contract entered into by Debtor with The Huntington National Bank or any other
counter party in modification thereof or in substitution therefor, and all
books, records, ledger cards, computer programs and other documents or property
at any time evidencing or relating to the foregoing receivables (hereinafter
sometimes called the "Receivables"), whether Debtor's interest in the Collateral
(defined below) be now owned or existing or hereafter arising or acquired, and
wherever located, together with all substitutions, replacements and additions
therefor or thereto and all cash and non-cash proceeds thereof including, but
not limited to, notes, drafts, checks and instruments (all of the foregoing
hereinafter called the "Collateral").
The security interest hereby granted is to secure the prompt and full
payment and complete performance of all Obligations of Debtor to Bank. The word
"Obligations" is used in its most comprehensive sense and includes, without
limitation, all indebtedness, debts and liabilities (including principal,
interest, late charges, collection costs, attorneys' fees to the extent
permitted by law and the like) of Debtor to Bank, whether now existing or
hereafter arising, either created by Debtor alone or together with another or
others, primary or secondary, secured or unsecured, absolute or contingent,
liquidated or unliquidated, direct or indirect, whether evidenced by note,
draft, application for letter of credit or otherwise, and any and all renewals
of or substitutes therefor, arising out of or by reason of the Second Amended
and Restated Loan Agreement entered into as of May 15, 1997, as amended, by and
among Debtor, as borrower, Glimcher Realty Trust and Glimcher Properties
Corporation as guarantors, The Huntington National Bank and KeyBank National
Association as Co-Agents for a bank lending group named therein, and Bank, as
Administrative Agent (the "Loan Agreement").
It is Debtor's express intention that this agreement and the continuing
security interest granted hereby, in addition to covering all present
Obligations of Debtor to Bank, shall extend to all future Obligations of Debtor
to Bank under the Loan Agreement, whether or not such Obligations are reduced or
entirely extinguished and thereafter increased or reincurred, whether or not
such Obligations are related to the indebtedness identified above by class, type
or kind and whether or not such Obligations are specifically contemplated by
Debtor and Bank as of the date hereof. The absence of any reference to this
agreement in any documents, instruments or agreements evidencing or relating to
any Obligation secured hereby shall not limit or be construed to limit the scope
or applicability of this agreement.
<PAGE> 2
1. GENERAL COVENANTS. Debtor represents, warrants and covenants as
follows:
(a) Debtor is, or as to Collateral arising or to be acquired
after the date hereof, shall be, the sole and exclusive owner of the Collateral,
and the Collateral is and shall remain free from any and all liens, security
interests, encumbrances, claims and interests and no security agreement,
financing statement, equivalent security or lien instrument or continuation
statement covering any of the Collateral is on file or of record in any public
office.
(b) Debtor shall not create, permit or suffer to exist, and
shall take such action as is necessary to remove, any claim to or interest in or
lien or encumbrance upon the Collateral, other than the security interest
granted hereby, and shall defend the right, title and interest of Bank in and to
the Collateral against all claims and demands of all persons and entities at any
time claiming the same or any interest therein.
(c) Debtor's principal place of business and chief executive
office is located at the address set forth at the beginning of this agreement;
unless Debtor gives Bank notice in writing of a change in the location of the
Collateral and Debtor's records concerning the Receivables prior to such a
change in location, the Collateral and Debtor's records concerning the
Receivables shall be kept at that address.
(d) At least thirty (30) days prior to the occurrence of any
of the following events, Debtor shall deliver to the loan officer who is
handling Debtor's Obligations on behalf of Bank written notice of such impending
events: (i) a change in Debtor's principal place of business or chief executive
office; or (ii) a change in Debtor's name, identity or corporate structure.
(e) Subject to any limitation stated therein or in connection
therewith, all information furnished by Debtor concerning the Collateral or
otherwise in connection with the Obligations, is or shall be at the time the
same is furnished, accurate, correct and complete in all material respects.
2. COLLECTION OF RECEIVABLES. Debtor shall, unless otherwise directed
by Bank, following the occurrence of an event of default hereunder, collect all
of Debtor's Receivables. With respect to any Receivables collected by the Bank
after the occurrence of an event of default, Debtor authorizes Bank to indorse
the name of Debtor upon any checks or other items received in payment of any
Receivable and to do any and all things necessary in order to reduce the same to
money. All amounts received by Bank representing payment of Receivables may be
applied by Bank to the payment of the Obligations in such order of preference as
Bank may determine, or Bank may, at its option, impound all or any portion of
such amounts and retain said amounts as security for the payment of the
Obligations, with the right on the part of Debtor, upon approval by Bank, to
obtain the release of all or part of such impounded amounts. Bank may, however,
at any time following an event of default, apply all or any part of such
impounded amounts as aforesaid. If so directed by Bank, Debtor shall hold all
payments of any Receivable in trust for Bank and shall forthwith deliver the
same to Bank in the form received by Debtor without commingling with any funds
of Debtor.
Debtor agrees to execute, deliver, file and record all such
notices, affidavits, assignments, financing statements and other instruments as
shall in the judgment of Bank be necessary or desirable to evidence, validate
and perfect the security interest of Bank in the Receivables. Bank shall have
the right following an event of default to notify any persons or entities owing
any Receivables and to demand and receive payment, but Bank shall have no duty
so to do. Upon request of Bank at any time after an event of default, Debtor
shall notify such account debtors that the accounts are payable to Bank.
2
<PAGE> 3
3. INSPECTION. Debtor shall at all times keep accurate and complete
records of the Receivables and Debtor shall, at all reasonable times and from
time to time, allow Bank, by or through any of its officers, agents, attorneys
or accountants, to examine, inspect and make extracts from Debtor's books and
records and to arrange for verification of the Receivables directly with account
debtors or by other methods and to examine and inspect the Collateral wherever
located.
4. FURTHER ASSURANCES. Debtor shall perform, do, make, execute and
deliver all such additional and further acts, things, deeds, assurances and
instruments as Bank may require to more completely vest in and assure to Bank
its rights hereunder and in or to the Collateral.
5. PRESERVATION AND DISPOSITION OF COLLATERAL.
(a) Debtor shall advise Bank promptly, in writing and in
reasonable detail, (i) of any material encumbrance upon or claim asserted
against any of the Collateral; (ii) of any material change in the composition of
the Collateral; and (iii) of the occurrence of any other event that would have a
material effect upon the aggregate value of the Collateral or upon the security
interest of Bank.
(b) Debtor shall not sell or otherwise dispose of the
Collateral.
(c) Debtor shall not use the Collateral in violation of any
statute, ordinance, regulation, rule, decree or order.
(d) Debtor shall pay promptly when due all taxes, assessments,
charges or levies upon the Collateral or in respect to the income or profits
therefrom, except that no such charge need be paid if (i) the validity thereof
is being contested in good faith by appropriate proceedings; (ii) such
proceedings do not involve any danger of sale, forfeiture or loss of any
Collateral or any interest therein; and (iii) such charge is adequately reserved
against in accordance with generally accepted accounting principles.
(e) At its option, Bank may discharge taxes, liens, security
interests or other encumbrances at any time levied or placed on the Collateral.
Debtor agrees to reimburse Bank upon demand for any payment made or any expense
incurred (including reasonable attorneys' fees to the extent permitted by law)
by Bank pursuant to the foregoing authorization. Should Debtor fail to pay said
sum to Bank upon demand, interest shall accrue thereon, from the date of demand
until paid in full, at the highest rate set forth in any document or instrument
evidencing any of the Obligations.
6. EXTENSIONS AND COMPROMISES. With respect to any Collateral held by
Bank as security for the Obligations, Debtor assents to all extensions or
postponements of the time of payment thereof or any other indulgence in
connection therewith, to each substitution, exchange or release of Collateral,
to the addition or release of any party primarily or secondarily liable, to the
acceptance of partial payments thereon and to the settlement, compromise or
adjustment thereof, all in such manner and at such time or times as Bank may
deem advisable. Bank shall have no duty as to the collection or protection of
Collateral or any income therefrom, nor as to the preservation of rights against
prior parties, nor as to the preservation of any right pertaining thereto,
beyond the safe custody of Collateral in the possession of Bank.
7. FINANCING STATEMENTS. At the request of Bank, Debtor shall join
with Bank in executing one or more financing statements in a form satisfactory
to Bank and shall pay the cost of filing the same in all public offices wherever
filing is deemed by Bank to be necessary or desirable. A carbon, photographic or
other reproduction of this agreement or of a financing statement shall be
sufficient as a financing statement.
8. BANK'S APPOINTMENT AS ATTORNEY-IN-FACT. Debtor hereby irrevocably
constitutes and appoints Bank and any officer or agent thereof, with full power
of substitution, as Debtor's true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Debtor and in the name
of Debtor or in Bank's own name, from time to time in Bank's
-3-
<PAGE> 4
discretion, for the purpose of carrying out the terms of this agreement, to take
any and all appropriate action and to execute any and all documents and
instruments that may be necessary or desirable to accomplish the purposes of
this agreement and, without limiting the generality of the foregoing, hereby
grants to Bank the power and right, on behalf of Debtor, without notice to or
assent by Debtor:
(a) To execute, file and record all such financing statements
and similar documents and instruments as Bank may deem necessary or desirable to
protect, perfect and validate Bank's security interest in the Collateral.
(b) Upon the occurrence and continuance of any event of
default under paragraph 9 hereof, (i) to sign and indorse any invoices, drafts
against debtors, assignments, verifications and notices in connection with
accounts and other documents relating to the Collateral; (ii) to commence and
prosecute any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any part thereof and to
enforce any other right in respect of any Collateral; (iii) to defend any suit,
action or proceeding brought against Debtor with respect to any Collateral; (iv)
to settle, compromise or adjust any suit, action or proceeding described above
and, in connection therewith, to give such discharges or releases as Bank may
deem appropriate; and (v) generally, to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral as fully
and completely as though Bank were the absolute owner thereof for all purposes,
and to do, at Bank's option and Debtor's expense, at any time or from time to
time, all acts and things which Bank deems necessary to protect, preserve or
realize upon the Collateral and Bank's security interest therein, in order to
effect the intent of this agreement, all as fully and effectively as Debtor
might do.
Debtor hereby ratifies all that said attorneys shall lawfully
do or cause to be done by virtue hereof. This power of attorney is a power
coupled with an interest and shall be irrevocable.
The powers conferred upon Bank hereunder are solely to protect
its interests in the Collateral and shall not impose any duty upon Bank to
exercise any such powers. Bank shall be accountable only for amounts that Bank
actually receives as a result of the exercise of such powers and neither Bank
nor any of its officers, directors, employees or agents shall be responsible to
Debtor for any act or failure to act, except for Bank's own gross negligence or
willful misconduct.
9. DEFAULT. If any event of default in the payment of any of the
Obligations or in the performance of any of the terms, conditions, or provisions
of any instrument or document evidencing the Obligations secured by this
agreement or in the performance of any covenant contained herein shall occur and
be continuing; or if any warranty, representation or statement made or furnished
to Bank by Debtor proves to have been false in any material respect when made or
furnished:
(a) Bank may, at its option subject to provisions for notice
and rights to cure as contained in the Loan Agreement, declare the unpaid
balance of any or all of the Obligations immediately due and payable and this
agreement and any or all of the Obligations in default.
(b) All payments received by Debtor under or in connection
with any of the Collateral shall be held by Debtor in trust for Bank, shall be
segregated from other funds of Debtor and shall forthwith upon receipt by Debtor
be turned over to Bank in the same form as received by Debtor (duly indorsed by
Debtor to Bank, if required). Any and all such payments so received by Bank
(whether from Debtor or otherwise) may, in the sole discretion of Bank, be held
by Bank as collateral security for, and/or then or at any time thereafter be
applied in whole or in part by Bank against, all or any part of the Obligations
in such order as Bank may elect. Any balance of such payments held by Bank and
remaining after payment in full of all the Obligations shall be paid over to
Debtor or to whomsoever may be lawfully entitled to receive the same. Nothing
set forth in this subparagraph (b) shall authorize or be construed to authorize
Debtor to sell or otherwise dispose of any Collateral.
-4-
<PAGE> 5
(c) Bank shall have the rights and remedies of a secured party
under this agreement, under any other instrument or agreement securing,
evidencing or relating to the Obligations and under the law of the State of
Ohio. Without limiting the generality of the foregoing, Bank shall have the
right to take possession of the Collateral and all books and records relating to
the Collateral and for that purpose Bank may enter upon any premises on which
the Collateral or books and records relating to the Collateral or any part
thereof may be situated and remove the same therefrom. Debtor expressly agrees
that Bank, without demand of performance or other demand, advertisement or
notice of any kind (except the notices specified below of time and place of
public sale or disposition or time after which a private sale or disposition is
to occur) to or upon Debtor or any other person or entity (all and each of which
demands, advertisements and/or notices are hereby expressly waived), may
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase or sell or otherwise dispose of and deliver the Collateral (or
contract to do so), or any part thereof, in one or more parcels at public or
private sale or sales, at any of Bank's offices or elsewhere at such prices as
Bank may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. Bank shall have the right upon any such public
sale or sales, and, to the extent permitted by law, upon any such private sale
or sales, to purchase the whole or any part of the Collateral so sold, free of
any right or equity of redemption in Debtor. Bank shall apply the net proceeds
of any such collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable costs and expenses of every kind incurred in
connection therewith or incidental to the care or safekeeping of any or all of
the Collateral or in any way relating to the rights of Bank hereunder, including
reasonable attorneys' fees to the extent permitted by law and reasonable legal
expenses, to the payment in whole or in part of the Obligations, in such order
as Bank may elect, and only after so paying over such net proceeds and after the
payment by Bank of any other amount required by any provision of law, including
Ohio Revised Code Section 1309.47(A)(3), need Bank account for the surplus, if
any, to Debtor. To the extent permitted by applicable law, Debtor waives all
claims, damages and demands against Bank arising out of the repossession,
retention, sale or disposition of the Collateral. Debtor agrees that Bank need
not give more than seven (7) days' notice (which notification shall be deemed
given when mailed, postage prepaid, addressed to Debtor at Debtor's address set
forth at the beginning of this agreement, or when telecopied or telegraphed to
that address or when telephoned or otherwise communicated orally to Debtor or
any agent of Debtor at that address) of the time and place of any public sale or
of the time after which a private sale may take place and that such notice is
reasonable notification of such matters. Debtor shall remain liable for any
deficiency if the proceeds of any sale or disposition of the Collateral are
insufficient to pay all amounts to which Bank is entitled. Debtor shall also be
liable for the costs of collecting any of the Obligations or otherwise enforcing
the terms thereof or of this agreement including reasonable attorneys' fees to
the extent permitted by law.
10. GENERAL. Any provision of this agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Bank shall not be deemed to have waived any of its rights
hereunder or under any other agreement, instrument or paper signed by Debtor
unless such waiver be in writing and signed by Bank. No delay or omission on the
part of Bank in exercising any right shall operate as a waiver of such right or
any other right. All of Bank's rights and remedies, whether evidenced hereby or
by any other agreement, instrument or paper, shall be cumulative and may be
exercised singularly or concurrently. Any written demand upon or written notice
to Debtor shall be effective when deposited in the mails addressed to Debtor at
the address shown at the beginning of this agreement. This agreement and all
rights and obligations hereunder, including matters of construction, validity
and performance, shall be governed by the law of the State of Ohio. The
provisions hereof shall, as the case may require, bind or inure to the benefit
of, the respective heirs, successors, legal representatives and assigns of
Debtor and Bank.
-5-
<PAGE> 6
IN WITNESS WHEREOF, Debtor has signed this agreement this ____ day of
June, 1999.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation
Its: Sole General Partner
By:
-----------------------------------------
-----------------------------------------
Its:
-----------------------------------------
The Huntington National Bank, individually, hereby consents to the
grant of a security interest as provided in the foregoing agreement.
The Huntington National Bank
By: /s/ David DeVictor
-----------------------------------------
Its: Vice President
-----------------------------------------
Date:
----------------------------------------
-6-
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 7,892
<SECURITIES> 0
<RECEIVABLES> 27,310
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 1,442,449
<DEPRECIATION> 152,471
<TOTAL-ASSETS> 1,564,143
<CURRENT-LIABILITIES> 0
<BONDS> 1,011,540
90,000
127,950
<COMMON> 237
<OTHER-SE> 249,863
<TOTAL-LIABILITY-AND-EQUITY> 1,564,143
<SALES> 0
<TOTAL-REVENUES> 107,345
<CGS> 0
<TOTAL-COSTS> 27,211
<OTHER-EXPENSES> 26,108
<LOSS-PROVISION> 1,216
<INTEREST-EXPENSE> 30,023
<INCOME-PRETAX> 20,199
<INCOME-TAX> 0
<INCOME-CONTINUING> 20,199
<DISCONTINUED> 0
<EXTRAORDINARY> 295
<CHANGES> 0
<NET-INCOME> 19,904
<EPS-BASIC> 0.40
<EPS-DILUTED> 0.39
</TABLE>
