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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 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:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
------------------- -----------------------------------------
COMMON SHARES OF BENEFICIAL INTEREST, NEW YORK STOCK EXCHANGE
PAR VALUE $0.01 PER SHARE 9 1/4% NEW YORK STOCK EXCHANGE
SERIES B CUMULATIVE REDEEMABLE
PREFERRED SHARES OF BENEFICIAL
INTEREST, PAR VALUE $0.01 PER SHARE
-------------------------------------
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
----- -----
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K [ ].
As of February 29, 2000, there were 23,772,550 Common Shares of Beneficial
Interest outstanding, par value $0.01 per share, and the aggregate market value
of such stock held by non-affiliates of the Registrant was $290,311,659 (based
on the closing price on the New York Stock Exchange on such date).
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the 1999 Glimcher Realty Trust Proxy Statement to be filed with the
Securities and Exchange Commission within 120 days after the year covered by
this Form 10-K with respect to the Annual Meeting of Shareholders to be held on
May 10, 2000 are incorporated by reference into Part III.
1 of 75 pages
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TABLE OF CONTENTS
<TABLE>
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FORM
10-K
REPORT
PAGE
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ITEM NO.
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PART I
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1. Business.................................................................................... 3
2. Properties.................................................................................. 9
3. Legal Proceedings........................................................................... 23
4. Submission of Matters to a Vote of Security Holders......................................... 23
PART II
5. Market for the Registrant's Common Equity and Related Shareholder Matters................... 23
6. Selected Financial Data..................................................................... 24
7. Management's Discussion and Analysis of Financial Condition and Results of Operations....... 25
7A. Quantitative and Qualitative Disclosures About Market Risk.................................. 34
8. Financial Statements and Supplementary Data................................................. 34
9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure........ 34
PART III
10. Directors and Executive Officers of the Registrant.......................................... 35
11. Executive Compensation...................................................................... 35
12. Security Ownership of Certain Beneficial Owners and Management.............................. 35
13. Certain Relationships and Related Transactions.............................................. 35
PART IV
14. Exhibits, Financial Statements, Schedules and Reports on Form 8-K........................... 36
</TABLE>
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PART I
This Form 10-K, together with other statements and information publicly
disseminated by Glimcher Realty Trust ("GRT"), contains certain 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-K and in GRT's other reports filed with the Securities and
Exchange Commission.
ITEM 1. BUSINESS
(a) General Development of Business
GRT is a fully-integrated, self-administered and self-managed Maryland
Real Estate Investment Trust ("REIT") which was formed on September 1, 1993 to
continue the business of The Glimcher Company ("TGC"), and its affiliates, of
owning, leasing, acquiring, developing and operating a portfolio of retail
properties consisting of regional and super regional malls (including, most
recently, value-oriented super-regional malls) (the "Malls") and community
shopping centers (including single tenant retail properties) (the "Community
Centers"). The Malls and Community Centers are each individually referred to
herein as a "Property" and the Malls and Community Centers in which GRT holds an
ownership position are collectively referred to herein as the "Properties". On
January 26, 1994, GRT consummated an initial public offering (the "IPO") of
15,825,000 of its common shares of beneficial interest (the "Shares"). On
February 3, 1994, GRT sold an additional 2,373,750 Shares as a result of the
underwriters exercising the over-allotment option granted to them in connection
with the IPO. The net proceeds of the IPO were used by GRT primarily to acquire
(at the time of the IPO) an 86.2% interest in Glimcher Properties Limited
Partnership (the "Operating Partnership"), a Delaware limited partnership of
which Glimcher Properties Corporation ("GPC"), a Delaware corporation and a
wholly owned subsidiary of GRT, is sole general partner, and to repay mortgage
indebtedness with respect to one of the Properties acquired in connection with
the IPO (the "IPO Properties"). The Operating Partnership and/or its
subsidiaries applied the portion of the net proceeds received by it from GRT
towards (i) the acquisition of 46 Properties (the "Acquisition Properties"),
(ii) the repayment of certain mortgage indebtedness and prepayment penalties on
29 Properties (the "Glimcher Properties") contributed to the Operating
Partnership and its affiliates by entities affiliated with Herbert Glimcher and
David J. Glimcher or the beneficial owners of such entities (collectively, the
"Glimcher Entities"), (iii) the payment to persons unaffiliated with TGC of the
purchase price for minority interests in certain of the Glimcher Properties,
(iv) the payment of other costs and expenses associated with the IPO
transactions, and (v) for working capital and other general business purposes.
The net proceeds from the exercise of the over-allotment option were used
entirely to reduce the then outstanding balance of GRT's credit facility.
On June 27, 1995 and October 6, 1997, GRT completed public offerings
for an additional 3,500,000 and 1,750,000 Shares, respectively, (the "Additional
Offerings"). The net proceeds from the Additional Offerings were used by GRT to
acquire additional units of limited partnership in the Operating Partnership.
The Operating Partnership then used the proceeds obtained in exchange for the
GRT units to reduce variable rate indebtedness. On November 17, 1997, GRT
completed a public offering of 4,800,000 shares of 9 1/4% Series B cumulative
redeemable preferred shares of beneficial interest (the "B Preferred Shares"),
par value $0.01 per share, with each share having a liquidation preference of
$25.00. On November 25, 1997, GRT sold an additional 318,000 Series B Preferred
Shares as a result of the underwriters exercising the over-allotment option
granted to them. The net proceeds were contributed to the Operating Partnership
and were used to (i) repay the balance of a $34.4 million bridge loan facility
and (ii) to repay a portion of the outstanding borrowings on GRT's credit
facility.
On November 27, 1996, the Company issued 34,000 shares of its 40,000
authorized Series A convertible preferred shares. The Series A preferred shares
were offered and sold in a private placement to an affiliate of Nomura Asset
Capital Corporation ("Nomura"), for an aggregate cash consideration of $34.0
million and may be
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redeemed by the Company at any time, prior to conversion, at its option without
any penalty or premiums. On November 7, 1997, the Series A preferred shares were
exchanged for Series A-1 preferred shares (the "A-1 Preferred Shares") having
substantially the same terms. Beginning in November 2001, the A-1 Preferred
Shares are convertible into the number of Shares obtained by dividing the
liquidation preference by the conversion price per Share. The conversion price
per Share is the product of (i) the average market price per Share over the 30
trading days prior to the conversion, multiplied by (ii) the applicable
conversion percentage which begins at 90.0% and decreases annually 5.0%, 5.0%
and 10.0% to 70.0%.
On December 5, 1997, the Company issued 56,000 shares of its Series C
convertible preferred shares (the "C Preferred Shares"). The C Preferred Shares
were offered and sold in a private placement to an affiliate of Nomura for an
aggregate cash consideration of $56.0 million and may be redeemed by the Company
at any time, prior to conversion, at its option without any penalty or premiums.
On June 4, 1998, the C Preferred Shares were exchanged for Series D preferred
shares (the "D Preferred Shares") having substantially the same terms. Beginning
in December 2002, the D Preferred Shares are convertible into the number of
Shares obtained by dividing the liquidation preference by the conversion price
per Share. The conversion price per Share is the product of (i) the average
market price per Share over the 30 trading days prior to the conversion,
multiplied by (ii) the applicable conversion percentage which begins at 90.0%
and decreases annually 5.0%, 5.0% and 10.0% to 70.0%.
The sale of the A-1 and D Preferred Shares was exempt from registration
under the Securities Act of 1933, as amended (the "Securities Act") by virtue of
the fact that the A-1 and D Preferred Shares were sold to Nomura affiliates for
their account for investment and not with a view towards the resale, transfer or
distribution thereof, nor with any present intention of distributing the A-1 and
D Preferred Shares, thus qualifying the sale as a transaction by an issuer not
involving any public offering in accordance with Section 4 (2) of the Securities
Act. In addition the Nomura affiliates are "accredited investors" as defined in
Rule 501 (a) under the Securities Act.
The Operating Partnership is a 99.0% limited partner of six Delaware
limited partnerships, Glimcher Holdings Limited Partnership ("Holdings"),
Glimcher Centers Limited Partnership ("Centers"), Grand Central Limited
Partnership ("GCLP"), Glimcher York Associates Limited Partnership ("York"),
Glimcher University Mall Limited Partnership ("University"), Montgomery Mall
Associates Limited Partnership ("Montgomery"), one Ohio limited partnership,
Morgantown Mall Associates Limited Partnership ("Morgantown") and three Delaware
limited liability companies, Glimcher Northtown Venture, LLC ("Northtown"),
Weberstown Mall, LLC ("Weberstown") and Glimcher Lloyd Venture, LLC ("Lloyd").
The general partner in each entity is either (i) GPC, (ii) wholly-owned by GPC,
or (iii) wholly-owned by GRT. The Operating Partnership is (i) a 100.0% member
of a Colorado limited liability company, Olathe Mall LLC ("Olathe") which is a
55.0% member in Great Plains Metro Mall LLC, a Delaware limited liability
company ("Great Plains"), (ii) a 32.3% member of a Delaware limited liability
company, Johnson City Venture, LLC, whose managing member, Glimcher Johnson
City, Inc., a Delaware corporation, is a 1.0% member (collectively, "Johnson
City"); (iii) a 39.0% member of a Delaware limited liability company, Dayton
Mall Venture, LLC, whose managing member, Glimcher Dayton Mall, Inc., is a 1.0%
member (collectively, "Dayton"); (iv) a 39.5% limited partner of a Delaware
limited partnership, Colonial Park Mall Limited Partnership, whose general
partner, Glimcher Colonial Trust, a Delaware business trust, is a 0.5% member
(collectively, "Colonial"), with an option to acquire the remaining 11.0%
interest in the entity which owns the Colonial Park Mall; (v) a 50.0% member of
a Delaware limited liability company, Glimcher New Jersey Metro Mall, LLC
("NJM"), which is a 60.0% member in Elizabeth Metro Mall, LLC, a Delaware
limited liability company; (vi) a 33.85% member of Glimcher SuperMall Venture
LLC, ("SuperMall"), a Delaware limited liability company, whose managing member,
Glimcher Auburn Inc., a Delaware corporation, is a 1.0% member, (vii) a 20.0%
interest in San Mall, LLC, a Delaware limited liability company, which is a
99.5% member of San Mall Limited Partnership, a Delaware limited partnership,
whose general partner, San Mall Corporation, a Delaware corporation, is a 0.5%
member, (viii) a 50.0% interest in Polaris Center, LLC, a Delaware limited
liability company, (ix) a 20.0% interest in Eastland Mall, LLC, a Delaware
limited liability company, which is a 99.5% member of Eastland Mall Limited
Partnership, a Delaware limited partnership, whose general partner, Eastland
Retail Corporation, a Delaware Corporation, is a 0.5% member and (x) a common
shareholder of Glimcher Development Corporation ("GDC"), a Delaware corporation,
with 95.0% economic interest and no voting interest. GDC was incorporated on
October 16, 1996; the construction, development, leasing and legal departments
of GRT were transferred to GDC on November 1, 1996, and provide their services
for a fee to ventures in which GRT has an ownership interest, as well as to
third parties. The operation of GDC allows the Company to earn non-qualified
revenues without jeopardizing its REIT status. The Operating Partnership and
entities directly or indirectly owned or controlled by GRT, on a consolidated
basis, are hereinafter referred to as the "Company."
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The Company does not engage or pay a REIT advisor. Management, leasing,
accounting, design and construction supervision expertise is provided through
its own personnel, through GDC, or, where appropriate, through outside
professionals.
(b) Expansions, Renovations and Developments During the 1999 Fiscal Year
EXPANSIONS AND RENOVATIONS
The Company maintains a strategy of selective expansion and renovation
of its Properties in order to improve the operating performance and the
competitive position of its existing Properties. 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. Certain examples of the Company's recent Property expansions and
renovations are described below.
Malls
In 1997, the Company expanded Indian Mound Mall, located in
Newark/Heath, Ohio, by approximately 122,000 square feet of GLA, which increased
its total GLA to approximately 543,000 square feet. The Company believes that
this expansion has enabled this Mall to continue to dominate its market. The
expansion is consistent with the Company's focus of combining strong anchor
tenants with an expanded entertainment component to provide a compelling
destination focus for shoppers. An approximately 93,000 square foot Sears store
opened in September 1997, and the expansion of the current cinema from
approximately 18,000 square feet to approximately 43,000 square feet, as well as
the addition of approximately 5,000 square feet of mall shops, was completed
during the fourth quarter of 1997.
In 1998, the Company continued its planned expansion and renovation of
Grand Central Mall, located in Parkersburg West Virginia by opening a 23,500
square foot OfficeMax and a new 83,000 square foot Profitt's in the first
quarter of 1998. Additionally, the Company expanded River Valley Mall, located
in Lancaster, Ohio by opening a 23,500 square foot OfficeMax in August 1998.
In 1999, the Company completed the expansion of Indian Mound Mall by
expanding the Elder Beerman store by approximately 21,000 square feet of GLA
which increased the Mall's GLA to approximately 563,000 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 completed a 75,000 square
foot Regal Cinemas on one of the mall's outparcels, which opened in August 1999.
Community Centers
The Company currently has community center anchor expansion projects in
process at Cross Creek Plaza in Beaufort, South Carolina and Loyal Plaza in
Loyalsock, Pennsylvania. Cherry Hill Plaza in Galax, Virginia opened with its
new anchor Goody's in September 1999. The total financial commitment in
connection with these projects is approximately $5.0 million.
DEVELOPMENTS
One of the Company's objectives is to increase its portfolio by
developing new retail properties. The Company's management team has developed
over 100 retail properties nationwide and has significant experience in all
phases of the development process, including site selection, zoning, design,
predevelopment leasing, construction financing and construction management.
The Company has begun developing value-oriented super-regional malls
while continuing to acquire and develop traditional regional mall and community
shopping center properties. These value-oriented super-regional malls transcend
the typical design and format of the value-oriented mall by combining the
amenities and comforts of a contemporary regional mall with significant
entertainment facilities and diversified tenants.
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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, Polaris Towne Center in northern Columbus,
Ohio. Upon completion, Polaris Towne Center will feature grocery and discount
store anchors, restaurants, big box retailers and several specialty shops. The
initial anchor, a 64,000 square-foot Kroger, opened in the fourth quarter of
1998. During 1999, seven additional anchor tenants, 16 small shop tenants, three
outparcel tenants and Target opened and are occupying in excess of 468,000
square feet. Two tenants purchased land and are constructing their own stores.
Target opened a 136,000 square-foot store in October 1999 and Lowes will open in
a 135,000 square foot-store in the second quarter of 2000. The space for which
construction has been completed was 100.0% occupied at December 31, 1999. 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, developed 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 has been completed
and the grand opening of Jersey Gardens was October 21, 1999. At the opening
date leases had been executed for approximately 92.8% of the GLA. Occupancy of
Jersey Gardens was 86.8% at December 31, 1999. The required equity for Jersey
Gardens and off-site improvements had previously been funded. The Company has
also arranged a construction loan facility for the project which matures in
2002.
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.
Construction is expected to commence in 2000 with a projected opening date in
the fourth quarter of 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. All
costs incurred in connection with this development in the amount of $486,000
were written-off in the third quarter of 1999.
(c) Narrative Description of Business
GENERAL The Company concentrates its business on two broad types of
retail properties, Malls and Community Centers. At December 31, 1999, the
Properties consisted of 22 Malls containing an aggregate of 18.3 million square
feet of GLA (8.2 million square feet of GLA is owned in joint ventures) and 104
Community Centers (including 17 single tenant retail properties) containing an
aggregate of 13.6 million square feet of GLA (396,000 square feet of GLA is
owned in a joint venture).
As of December 31, 1999, the occupancy rate for all of the Properties
was 94.5% of GLA, of which 89.3%, 4.5% and 6.2% of GLA was leased to national
retailers, regional retailers and local retailers, respectively. The Company's
focus is to maintain high occupancy rates for the Properties by capitalizing on
management's long-standing relationships with national and regional tenants and
its extensive experience in marketing to local retailers.
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As of December 31, 1999, the Properties had average annualized minimum
rents of $8.96 per square-foot of GLA. Approximately 83.3%, 6.0% and 10.7% of
the annualized minimum rents of the Properties as of December 31, 1999, was
derived from national retail chains, regional retail chains and local retailers,
respectively. Wal-Mart, Kmart and The Limited, Inc. and its consolidated
entities, represented approximately 5.6%, 4.0% and 3.9%, respectively, of the
aggregate annualized minimum rents of the Properties as of December 31, 1999; no
other tenant represented more than 3.0% of the aggregate annualized minimum
rents of the Properties for such period (See Note 17 to the consolidated
financial statements for financial information regarding the Company's
segments).
MALLS The Malls provide a broad range of shopping alternatives to serve
the needs of customers in all market segments. Each of the Malls is anchored by
two to five department stores including Bon-Ton, Boscov's, Dillard's,
Elder-Beerman, JCPenney, Kohl's, Lazarus, Nordstrom, Meier & Frank Co., Neiman
Marcus, Parisian, Proffitt's, Sak's and Sears. Mall stores, most of which are
national retailers, include Finish Line, Footlocker, Hallmark, Lerner New York,
Limited Express, Radio Shack, The Disney Store, The Gap, The Limited, Old Navy,
Warner Brothers and Waldenbooks. To provide a complete shopping, dining and
entertainment experience, the Malls generally have at least one theme
restaurant, a food court which offers a variety of fast food alternatives,
multiple screen movie theaters and other entertainment activities. The largest
of the Malls has 1.5 million square feet of GLA and approximately 250 stores and
the smallest has 225,000 square feet of GLA and approximately 40 stores. The
Malls also have additional restaurants and retail businesses such as Chi-Chi's,
Red Lobster and Toys "R" Us located along the perimeter of the parking areas.
As of December 31, 1999, the Malls accounted for 57.3% of the total
GLA, 68.3% of the aggregate annualized minimum rents of the Properties and had
an overall occupancy rate of 93.4%.
COMMUNITY CENTERS The Company's Community Centers are designed to
attract local and regional area customers and are typically anchored by a
combination of supermarkets, discount department stores or drug stores
("Community Anchors") which attract shoppers to each center's smaller shops. The
tenants at the Company's Community Centers typically offer day-to-day
necessities and value-oriented merchandise. Community Anchors include nationally
recognized retailers such as JCPenney, Kmart, Lowe's, Target and Wal-Mart and
supermarkets such as Big Bear, Kroger and Winn-Dixie. Many of the Community
Centers have retail businesses including Toys "R" Us and OfficeMax or
restaurants including Applebee's, Burger King, Lone Star, McDonald's, and
Wendy's located along the perimeter of the parking areas.
As of December 31, 1999, the Community Centers accounted for 42.7% of
the total GLA, 31.7% of the aggregate annualized minimum rents of the Properties
and had an overall occupancy rate of 96.1%.
GROWTH STRATEGIES AND OPERATING POLICIES Management of the Company
believes per share growth in funds from operations ("FFO") is an important
factor in enhancing shareholder value. The Company's primary business objective
is to achieve growth in FFO by developing and acquiring retail properties, by
improving the operating performance and value of its existing portfolio through
selective expansion and renovation of its Properties and by maintaining high
occupancy rates, increasing minimum rents per square-foot of GLA and
aggressively controlling costs.
Key elements of the Company's growth strategies and operating policies
are to: (i) increase Property values by aggressively marketing available GLA and
renewing existing leases; (ii) negotiate and sign leases which provide for
regular or periodic fixed contractual increases to minimum rents; (iii)
capitalize on management's long-standing relationships with national and
regional retailers and extensive experience in marketing to local retailers, as
well as exploit the leverage inherent in a larger portfolio of properties in
order to lease available space; (iv) utilize its team management approach to
increase productivity and efficiency; (v) hold Properties for long-term
investment and emphasize regular maintenance, periodic renovation and capital
improvements to preserve and maximize value; (vi) selectively dispose of assets
at the time the Company believes that the long-term investment potential has
been achieved and re-deploy the proceeds; (vii) control operating costs by
utilizing Company employees and/or GDC employees to perform management, leasing,
marketing, finance, accounting, construction supervision, legal and data
processing activities; and (viii) renovate, reconfigure or expand Properties and
utilize existing land available for expansion and development of outparcels to
meet the needs of existing or new tenants. Additionally, the Company seeks to
utilize its development capabilities to develop quality Properties at the lowest
possible cost.
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The Company intends to operate in a manner consistent with the
requirements of the Internal Revenue Code of 1986, as amended (the "Code"),
applicable to REITs and related regulations with respect to the composition of
the Company's portfolio and the derivation of income unless, because of
circumstances or changes in the Code (or any related regulation), the trustees
of the Company determine that it is no longer in the best interests of the
Company to qualify as a REIT.
The Company's acquisition strategies are to selectively acquire
strategically located Properties in regional markets where management generally
has extensive operating experience and/or where it has been able to capitalize
on its strong working relationships with national, regional and local retailers,
to enhance such center's operating performance through a comprehensive program
of leasing, merchandising, reconfiguration, proactive management, renovation and
expansion.
The following factors, among others, are considered by the Company in
making acquisitions: (i) the geographic area and type of property; (ii) the
location, construction quality, condition and design of the property; (iii) the
current FFO generated by the property and the ability to increase FFO through
property repositioning and proactive management of the tenant base; (iv) the
potential for capital appreciation; (v) the terms of tenant leases; (vi) the
existing tenant mix at the property; (vii) the potential for economic growth and
the tax and regulatory environment of the communities in which the properties
are located; (viii) the occupancy rates and demand by tenants for properties of
similar type in the vicinity; and (ix) the prospects for financing or
refinancing the property.
The Company acquires and develops its Properties as long-term
investments. Therefore, its focus is to provide for regular maintenance of its
Properties and to conduct periodic renovations and refurbishments to preserve
and increase Property values while also increasing the retail sales prospects of
its tenants. The projects usually include renovating existing facades,
installing uniform signage, updating interior decor, resurfacing parking lots
and increasing parking lot lighting. To meet the needs of existing or new
tenants and changing consumer demands, the Company also reconfigures and expands
its Properties, including utilizing land available for expansion and development
of outparcels for the addition of new anchors. In addition, the Company works
closely with its tenants to renovate their stores and enhance their
merchandising capabilities.
FINANCING STRATEGIES At December 31, 1999, the Company had a
debt-to-total-market-capitalization ratio of 64.7%, based upon the closing price
of the Shares on the New York Stock Exchange as of December 31, 1999. The
Company expects that it may from time to time reevaluate its policy with respect
to its ratio of total-debt-to- total market-capitalization in light of then
current economic conditions; relative costs of debt and equity capital; market
values of its Properties; acquisition, development and expansion opportunities;
and other factors, including meeting the taxable income distribution requirement
for REITs under the Code in the event the Company has taxable income without
receipt of cash sufficient to enable the Company to meet such distribution
requirements.
On November 17, 1997, the Company completed a public offering of
5,118,000 B Preferred Shares (including 318,000 B Preferred Shares sold as a
result of the underwriters exercising the over-allotment option granted to
them). The net proceeds of approximately $123.1 million were contributed by the
Company to the Operating Partnership and were used to: (i) repay the balance of
a $34.4 million bridge loan facility and (ii) repay a portion of the outstanding
borrowings on the Operating Partnership's credit facility.
On October 6, 1997, the Company completed a second offering of
1,750,000 Shares and used the net proceeds of approximately $37.8 million to
acquire additional units of limited partnership in the Operating Partnership.
The Operating Partnership then used the proceeds obtained in exchange for the
GRT units to repay a portion of the outstanding borrowings on its credit
facility.
CORPORATE HEADQUARTERS The Company's headquarters are located at 20
South Third Street, Columbus, Ohio 43215, and its telephone number is (614)
621-9000. In addition, the Company maintains management offices at each of its
Mall Properties.
COMPETITION All of the Properties are located in areas which have
shopping centers and other retail facilities. Generally, there are other retail
properties within a five-mile radius of a Property. The amount of rentable
retail space in the vicinity of the Company's Properties could have a material
adverse effect on the amount of rent
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charged by the Company and on the Company's ability to rent vacant space and/or
renew leases of such Properties. There are numerous commercial developers, real
estate companies and major retailers that compete with the Company in seeking
land for development, properties for acquisition and tenants for properties,
some of which may have greater financial resources than the Company and more
operating or development experience than that of the Company. There are numerous
shopping facilities that compete with the Company's Properties in attracting
retailers to lease space. In addition, retailers at the Properties may face
increasing competition from the Internet, outlet malls, discount shopping clubs,
catalog companies, direct mail, telemarketing and home shopping TV.
EMPLOYEES At December 31, 1999, the Company, GDC and the joint ventures
in which the Company has an interest, had an aggregate of 690 employees, of
which 305 were part-time.
REAL ESTATE AND OTHER CONSIDERATIONS As an owner and developer of real
estate, the Company is subject to risks arising in connection with such
activities and with the underlying real estate, including unknown deficiencies
of and the inability to manage recently acquired Properties, poor economic
conditions in those areas where Properties are located, joint venturer
bankruptcies, unanticipated conflicts of interest between the Company and joint
venturers, failure to obtain consents of joint venturers with respect to sale,
refinancing and other activities, the joint venturers removing the Company as
managing agent or managing member with respect to a Property, buy-sell
arrangements with joint venturers exercised at inopportune times, defaults under
or non-renewal of tenant leases, tenant bankruptcies, competition, liquidity of
real estate, inability to rent un-leased space, failure to generate sufficient
income to meet operating expenses, including debt service, capital expenditures
and tenant improvements, balloon payments on debt, environmental matters,
financing availability, defaults under and failure to repay borrowings,
fluctuations in interest rates, changes in real estate and zoning laws, cost
overruns, delays, unavailability of satisfactory financing and other risks of
development activities. The success of the Company also depends upon certain key
personnel, its ability to maintain its qualification as a REIT and trends in the
national and local economy, including income tax laws, governmental regulations
and legislation and population trends.
TAX STATUS The Company intends to continue to be taxed as a REIT under
Sections 856 through 860 of the Code. As such, the Company generally will not be
subject to Federal income tax to the extent it distributes at least 95.0% of its
REIT taxable income to its shareholders. If the Company fails to qualify as a
REIT in any taxable year, the Company will be subject to Federal income tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. As a qualified REIT, the Company is subject to certain
state and local taxes on its income and property and to federal income and
excise taxes on its undistributed income.
ITEM 2. PROPERTIES
At December 31, 1999, the Company managed and leased a total of 126
Properties, 116 of which were wholly-owned and ten of which were partially owned
in joint ventures. The Properties are located in 28 states primarily throughout
the East and the Midwest as follows: Ohio (29), Pennsylvania (12), Tennessee
(10), Kentucky (8), West Virginia (8), North Carolina (7), New York (6), South
Carolina (6), Indiana (5), Florida (4), Virginia (4), Texas (3), Washington (3),
Alabama (2), Illinois (2), Kansas (2), Massachusetts (2), Missouri (2),
Wisconsin (2), Arizona (1), California (1), Colorado (1), Georgia (1), Michigan
(1), Minnesota (1), Nebraska (1), New Jersey (1), Oregon (1).
(a) Malls
Twenty-two of the Properties are Malls and range in size from 225,000
square feet of GLA to 1.5 million square feet of GLA. Five of the Malls are
located in Ohio and 17 are located throughout the country in the states of Texas
(2), West Virginia (2), Alabama (1), California (1), Florida (1), Kansas (1),
Kentucky (1), Minnesota (1), New Jersey (1), New York (1), North Carolina (1),
Oregon (1), Pennsylvania (1), Tennessee (1) and Washington (1). The location,
general character and major tenant information are set forth below.
9
<PAGE> 10
<TABLE>
<CAPTION>
SUMMARY OF MALLS AT DECEMBER 31, 1999
-------------------------------------
% OF % OF LEASE
ANCHORS STORES TOTAL ANCHORS STORES EXPIRATION
PROPERTY/LOCATION GLA GLA (1) GLA OCCUPIED OCCUPIED ANCHORS (3)
- -------------------------------------------------------------------------------------------------------------------------------
COMPANY OWNED PROPERTIES:
<S> <C> <C> <C> <C> <C> <C> <C>
Ashland Town Center Goody's 03/31/09
Ashland, KY..................... 254,762 187,993 442,755 100.0 82.6 JCPenney 10/31/04
Proffitt's 01/31/10
Wal-Mart 11/10/09
Grand Central Mall Elder-Beerman (2) 01/31/33
Parkersburg/Vienna, WV....... 562,394 356,173 918,567 100.0 90.6 Goody's 04/30/03
JCPenney 09/30/02
Phar-Mor 04/30/07
Proffitt's 03/31/18
Regal Cinemas 11/30/16
Sears 09/25/02
Indian Mound Mall Ames 01/31/12
Newark/Heath, OH.............. 390,400 172,554 562,954 100.0 77.2 Crown Cinema 12/31/07
Elder-Beerman 09/30/06
JCPenney 10/31/01
Lazarus 09/30/01
Sears (2) 09/23/27
Lloyd Center Ice Chalet 12/31/00
Portland, OR................. 752,484 734,408 1,486,892 94.2 88.8 Lloyd Mall Cinemas 01/31/12
Marshalls 01/31/04
Meier & Frank Co. 01/31/06
Nordstrom (5)
Sears (5)
Toys "R" Us 1/31/05
Mall at Fairfield Commons, The Elder-Beerman 10/31/13
Beavercreek/Dayton, OH....... 683,703 438,647 1,122,350 100.0 95.3 JCPenney 10/31/08
Lazarus (2) 01/31/15
Parisian 01/31/14
Sears 10/31/08
Montgomery Mall Dillard's 01/31/01
Montgomery, AL............... 460,341 265,291 725,632 100.0 96.1 JCPenney 04/30/05
Parisian (5)
Morgantown Mall Carmike Cinemas 10/31/05
Morgantown, WV............... 359,171 182,941 542,112 100.0 76.1 Elder-Beerman 09/30/10
JCPenney 09/30/05
Proffitt's 03/15/11
Sears 09/30/05
New Towne Mall Ames 01/31/14
New Philadelphia, OH......... 338,838 175,941 514,779 100.0 80.5 Elder-Beerman 10/31/08
JCPenney 09/30/03
OfficeMax 11/30/11
Phar-Mor 06/30/10
Regal Cinemas 03/31/05
Sears 10/31/03
Northtown Mall Best Buy 01/31/10
Blaine, MN................... 488,546 335,796 824,342 100.0 68.9 HomePlace 12/31/11
Kohl's 08/31/08
Mervyn's California 01/31/03
Montgomery Ward (5)
</TABLE>
10
<PAGE> 11
<TABLE>
<CAPTION>
% OF % OF LEASE
ANCHORS STORES TOTAL ANCHORS STORES EXPIRATION
PROPERTY/LOCATION GLA GLA (1) GLA OCCUPIED OCCUPIED ANCHORS (3)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
River Valley Mall Ames 01/31/13
Lancaster, OH................ 316,947 259,956 576,903 100.0 90.4 Elder-Beerman 09/30/07
JCPenney 09/30/02
Lazarus 09/30/02
Regal Cinemas 12/31/04
Sears 10/31/04
Southside Mall JCPenney 07/31/01
Oneonta, NY.................. 142,719 81,694 224,413 100.0 84.1 Kmart 06/30/08
OfficeMax 12/31/12
University Mall Burdines (5)
Tampa, FL.................... 890,743 411,265 1,302,008 100.0 86.0 Cobb Theatre 12/31/11
Dillard's (5)
JCPenney 10/31/04
Montgomery Ward (5)
Sears (5)
Weberstown Mall Barnes & Noble 01/31/09
Stockton, CA................. 602,817 242,016 844,833 100.0 83.1 Dillard's (5)
JCPenney 03/31/04
Sears (5)
--------- --------- ----------
SUBTOTAL ....................... 6,243,865 3,844,675 10,088,540 99.3 86.0
--------- --------- ----------
PROPERTIES OWNED IN JOINT
VENTURES: (4)
Almeda Mall, Foley's (5)
Houston, TX.................. 582,753 216,753 799,506 100.0 84.4 JCPenney (5)
Old Navy 01/31/05
Palais Royal 12/31/09
Ross Stores 03/31/03
Colonial Park Mall Bon-Ton 01/29/05
Harrisburg, PA............... 504,446 241,297 745,743 100.0 93.3 Boscov's (5)
Sears (5)
Dayton Mall, The Elder-Beerman (5)
Dayton, OH .................. 836,967 485,375 1,322,342 100.0 83.6 JCPenney 03/31/11
Lazarus (5)
Sears (5)
Eastland Mall Belk (5)
Charlotte, NC................ 725,720 337,961 1,063,681 100.0 85.4 Dillard's (5)
Ice Chalet 08/01/05
JCPenney (5)
Sears (5)
Great Mall of the Great Plains, The Burlington Coat
Olathe, KS................... 397,211 404,697 801,908 93.7 78.2 Factory 01/31/08
Dickinson Theatres 12/31/08
Dillard's Clearance 08/14/01
Foozles 08/13/02
Group USA 08/13/07
Jeepers! 12/31/06
Linens'n Things 01/31/08
Marshalls 01/31/13
Oshman's
SuperSports USA 01/31/13
</TABLE>
11
<PAGE> 12
<TABLE>
<CAPTION>
% OF % OF LEASE
ANCHORS STORES TOTAL ANCHORS STORES EXPIRATION
PROPERTY/LOCATION GLA GLA (1) GLA OCCUPIED OCCUPIED ANCHORS (3)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Jersey Gardens 531,345 647,984 1,179,329 91.5 82.9 Bed Bath & Beyond 01/31/10
Elizabeth, NJ................ Burlington Coat
Factory 01/31/10
Cohoes Fashions 01/31/05
Cost Less Home Store 01/31/10
Daffy's 01/31/10
Gap Outlet, The 01/31/05
Group USA 12/31/08
Jeepers! 01/31/09
Last Call 11/30/04
Marshalls 10/31/09
Off 5th Saks Fifth Ave 10/31/14
Oshman's Sporting
Goods 01/31/15
Mall at Johnson City, The Goody's 05/31/06
Johnson City, TN............. 334,605 210,479 545,084 100.0 86.6 JCPenney 03/31/05
Proffitt's for Her 10/31/12
Proffitt's for Men,
Kids & Home 06/30/06
Sears 03/09/01
Northwest Mall Foley's (5)
Houston, TX.................. 582,339 215,834 798,173 100.0 85.2 JCPenney (5)
OfficeMax 06/30/00
Old Navy 01/31/05
Palais Royal 12/31/09
SuperMall of the Great Northwest
Auburn, WA................... 528,458 405,540 933,998 95.3 77.8 Ann Taylor Loft 01/31/06
Bed Bath &
Beyond 08/31/05
Burlington Coat
Factory 08/31/05
Foozles 12/31/05
Marshalls 01/31/11
Nordstrom Rack 08/31/05
Oshman's
SuperSports USA 01/31/11
Sam's Club 05/31/19
---------- --------- ----------
SUBTOTAL........................ 5,023,844 3,165,920 8,189,764 98.1 83.3
---------- --------- ----------
TOTAL........................... 11,267,709 7,010,595 18,278,304 98.8 84.8
========== ========= ==========
</TABLE>
(1) Includes outparcels.
(2) This is a ground lease. The Company owns the land and not the building.
(3) Lease expiration dates do not consider options to renew.
(4) The Operating Partnership has investments in these Mall Properties ranging
from 20.0% to 55.0%. The Company as the joint venture's managing general
partner, and GDC are responsible for management and leasing services,
respectively, and receive fees for providing these services.
(5) The tenant owns the land and the building and operates under an operating
agreement.
12
<PAGE> 13
(b) Community Centers
One hundred four of the Properties are Community Centers (including 17
single tenant retail properties) ranging in size from 13,000 to 490,400 square
feet of GLA. They are located in 24 states primarily in the East and the Midwest
as follows: Ohio (24), Pennsylvania (11), Tennessee (9), Kentucky (7), North
Carolina (6), South Carolina (6), West Virginia (6), Indiana (5), New York (5),
Virginia (4), Florida (3), Illinois (2), Massachusetts (2), Missouri (2),
Washington (2), Wisconsin (2), Alabama (1), Arizona (1), Colorado (1), Georgia
(1), Kansas (1), Michigan (1), Nebraska (1) and Texas (1). The location, general
character and major tenant information are set forth below.
<TABLE>
<CAPTION>
SUMMARY OF COMMUNITY CENTERS AT DECEMBER 31, 1999
-------------------------------------------------
% OF % OF
ANCHORS STORES TOTAL ANCHORS STORES LEASE
PROPERTY/LOCATION GLA GLA (1) GLA OCCUPIED OCCUPIED ANCHORS EXPIRATION (4)
- ------------------------------------------------------------------------------------------------------------------------
COMPANY OWNED PROPERTIES:
<S> <C> <C> <C> <C> <C> <C> <C>
Arnold Plaza Kmart 11/30/02
Arnold, MO................ 140,340 14,860 155,200 100.0 100.0 National 07/31/03
Supermarket (5)
Artesian Square JCPenney 04/30/08
Martinsville, IN........... 170,601 25,400 196,001 100.0 92.1 Kroger 11/30/09
Wal-Mart 09/29/09
Ashland Plaza
Ashland, KY.............. 90,574 42,126 132,700 100.0 97.2 Ames 01/31/03
Audubon Village
Henderson, KY............. 85,491 39,089 124,580 100.0 77.5 Wal-Mart 01/31/08
Aviation Plaza Piggly Wiggly 12/31/09
Oshkosh, WI............... 123,538 51,177 174,715 100.0 85.5 Wal-Mart 12/31/09
Ayden Plaza
Ayden, NC................. 21,000 11,800 32,800 100.0 69.5 Food Lion 10/31/07
Barren River Plaza Goody's 10/31/00
Glasgow, KY.............. 216,895 28,400 245,295 100.0 100.0 Peebles 09/26/10
Wal-Mart 09/18/10
Winn-Dixie 10/03/10
Bollweevil Shopping Center
Enterprise, AL........... 30,625 12,760 43,385 100.0 92.2 Winn-Dixie 05/30/04
Buckhannon Plaza Ames 05/31/05
Tennerton, WV............. 70,951 13,865 84,816 100.0 85.6 A&P (6) 04/30/00
Cambridge Plaza
Cambridge, OH.............. 79,949 15,070 95,019 100.0 100.0 Ames 01/31/13
Canal Place Plaza
Rome, NY................... 117,162 32,800 149,962 100.0 89.0 Kmart 08/31/19
Cherry Hill Plaza
Galax, VA.................. 20,000 N/A 20,000 100.0 N/A Goody's 09/30/09
Chillicothe Plaza
Chillicothe, OH............ 91,508 7,675 99,183 100.0 100.0 Ames 01/31/13
</TABLE>
13
<PAGE> 14
<TABLE>
<CAPTION>
% OF % OF
ANCHORS STORES TOTAL ANCHORS STORES LEASE
PROPERTY/LOCATION GLA GLA (1) GLA OCCUPIED OCCUPIED ANCHORS EXPIRATION (4)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Clarksville Plaza Crossroads
Clarksville, IN............ 93,672 18,170 111,842 100.0 100.0 Furniture 01/31/04
Service
Merchandise 01/31/03
College Plaza Food Lion 09/29/12
Bluefield, VA.............. 148,181 30,250 178,431 100.0 88.4 Wal-Mart 05/29/12
Corry Plaza G.C. Murphy Co. 04/30/02
Corry, PA.................. 69,698 38,669 108,367 100.0 100.0 Quality Farm
& Fleet 08/31/04
Cross Creek Plaza JCPenney 02/28/10
Beaufort, SC............... 170,406 71,712 242,118 100.0 95.3 Wal-Mart 11/10/09
Winn-Dixie 07/17/11
Crossing Meadows Festival Foods 06/27/10
Onalaska, WI............... 178,599 55,385 233,984 100.0 100.0 Wal-Mart 08/23/11
Crossroads Centre Goody's 10/31/01
Knoxville, TN.............. 200,980 41,450 242,430 100.0 100.0 Ingles 09/25/10
Wal-Mart 01/31/09
Cumberland Crossing Food City 12/13/10
Jacksboro, TN.............. 100,034 44,700 144,734 100.0 97.3 Wal-Mart (7) 09/28/10
Cypress Bay Village Food Lion 12/20/10
Morehead City, NC.......... 197,821 59,032 256,853 100.0 100.0 Sears 02/13/05
Wal-Mart 09/29/09
Dallas Plaza
Balch Springs, TX.......... 112,609 10,500 123,109 100.0 100.0 Kmart 11/30/00
Daytona Plaza
Daytona Beach, FL.......... 116,907 24,346 141,253 100.0 68.7 Kmart 11/30/03
Delaware Community Plaza
Delaware, OH............... 54,152 99,299 153,451 100.0 94.0 Kroger 03/31/13
East Pointe Plaza Food Lion 11/16/10
Columbia, SC............... 183,340 90,868 274,208 100.0 100.0 SuperPetz (8) 03/31/06
Wal-Mart 01/31/09
East Pointe Plaza Big Bear 09/30/13
Marysville, OH............. 107,211 37,900 145,111 100.0 100.0 Wal-Mart 11/09/10
Franklin Square Ingles 11/30/07
Spartanburg, SC............ 197,764 38,800 236,564 83.5 100.0 Wal-Mart 07/31/07
Georgesville Square Kroger 04/30/17
Columbus, OH............... 194,909 43,443 238,352 100.0 100.0 Lowe's 10/31/16
Grand Union
Chatham, NY................ 21,756 N/A 21,756 100.0 N/A Grand Union 07/31/19
</TABLE>
14
<PAGE> 15
<TABLE>
<CAPTION>
% OF % OF
ANCHORS STORES TOTAL ANCHORS STORES LEASE
PROPERTY/LOCATION GLA GLA (1) GLA OCCUPIED OCCUPIED ANCHORS EXPIRATION (4)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Grand Union Plaza
South Glens Falls, NY...... 61,335 N/A 61,335 100.0 N/A Grand Union 06/30/19
Gratiot Center Kessel Food
Saginaw, MI................ 173,160 28,151 201,311 84.7 100.0 Market 10/31/09
Kmart 11/30/13
Hills Plaza East............ 77,000 19,025 96,025 100.0 79.0 Ames 10/31/02
Erie, PA
Hocking Valley Mall Kmart 09/30/03
Lancaster, OH.............. 147,817 31,670 179,487 100.0 86.6 Kroger 09/30/02
Horizon Park
Longmont, CO (3)........... 84,180 N/A 84,180 100.0 N/A Kmart 11/30/00
Hunter's Ridge Shopping Center
Gahanna, OH (3)............ 84,180 92,430 176,610 100.0 86.2 Kmart 06/30/01
Huntington Plaza
Huntington, WV............. 24,975 7,200 32,175 100.0 100.0 Kroger 10/31/01
Indian Mound Plaza
Heath, OH.................. N/A 16,600 16,600 N/A 36.1 N/A N/A
Kmart
Alliance, NE (3)........... 40,800 N/A 40,800 100.0 N/A Kmart 03/31/08
Kmart
Bloomington, IN............. 87,405 N/A 87,405 100.0 N/A Kmart 11/30/05
Kmart
Clifton Heights, PA........ 87,543 N/A 87,543 100.0 N/A Kmart 10/31/04
Kmart
Fairhaven, MA.............. 91,653 N/A 91,653 100.0 N/A Kmart 11/30/02
Kmart
Feasterville, PA........... 94,500 N/A 94,500 100.0 N/A Kmart 06/30/03
Kmart
Langhorne, PA.............. 95,810 N/A 95,810 100.0 N/A Kmart 11/30/04
Kmart
Leechburg, PA.............. 85,909 N/A 85,909 100.0 N/A Kmart 05/31/06
Kmart
Norfolk, VA (3)............ 120,997 N/A 120,997 100.0 N/A Kmart 07/31/04
Kmart Shopping Center
Puyallup, WA............... 91,657 38,509 130,166 100.0 76.6 Kmart 11/30/03
Kmart
Seekonk, MA (3)............ 105,900 N/A 105,900 0.0 N/A N/A N/A
</TABLE>
15
<PAGE> 16
<TABLE>
<CAPTION>
% OF % OF
ANCHORS STORES TOTAL ANCHORS STORES LEASE
PROPERTY/LOCATION GLA GLA (1) GLA OCCUPIED OCCUPIED ANCHORS EXPIRATION (4)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Kmart
Yakima, WA................. 116,799 N/A 116,799 100.0 N/A Kmart 09/30/04
Knox Village Square Big Bear 01/29/13
Mount Vernon, OH........... 173,033 34,400 207,433 100.0 100.0 JCPenney 05/31/08
Kmart 01/31/18
Lexington Parkway Plaza Belk (2) 04/10/11
Lexington, NC.............. 152,852 57,298 210,150 100.0 100.0 Goody's 03/31/02
Ingles 09/25/10
Wal-Mart 12/29/09
Liberty Plaza
Morristown, TN............. 29,000 29,700 58,700 100.0 89.2 Food Lion 05/31/03
Linden Corners
Buffalo, NY................ 80,000 10 80,010 100.0 100.0 Ames 01/31/14
Logan Place Houchens 11/30/08
Russellville, KY........... 89,848 24,900 114,748 100.0 100.0 Wal-Mart 03/31/08
Lowe's
Altoona, PA................ 121,148 N/A 121,148 100.0 N/A Lowe's 11/30/14
Lowe's
Columbus, OH............... 125,357 N/A 125,357 100.0 N/A Lowe's 12/31/14
Lowe's
Marion, OH................. 72,507 N/A 72,507 100.0 N/A Lowe's 07/31/13
Lowe's
Wooster, OH................ 71,463 N/A 71,463 100.0 N/A Lowe's 07/31/13
Loyal Plaza Family Toy
Loyalsock, PA (3)........ 189,493 103,777 293,270 100.0 88.9 Warehouse 01/31/03
Giant Food Stores 10/31/19
Kmart 08/31/01
Marion Towne Centre Piggly Wiggly 08/31/12
Marion, SC................. 102,913 53,630 156,543 100.0 97.5 Wal-Mart 06/19/12
Meadowview Square
Ravenna/Kent, OH........... 126,242 25,000 151,242 100.0 52.0 Wal-Mart 01/28/17
Middletown Plaza
Middletown, OH............. 104,125 26,000 130,125 73.9 59.6 Ames 02/28/02
Mill Run
Columbus, OH............... 125,357 46,862 172,219 100.0 100.0 Lowe's 12/31/14
Monroe Shopping Center Ingles 11/30/02
Madisonville, TN........... 64,746 28,450 93,196 100.0 100.0 Wal-Mart (9) 01/31/03
Morgantown Commons OfficeMax 08/31/11
Morgantown, WV............. 200,187 30,656 230,843 100.0 85.3 Phar-Mor 06/30/06
SuperKmart 02/28/21
</TABLE>
16
<PAGE> 17
<TABLE>
<CAPTION>
% OF % OF
ANCHORS STORES TOTAL ANCHORS STORES LEASE
PROPERTY/LOCATION GLA GLA (1) GLA OCCUPIED OCCUPIED ANCHORS EXPIRATION (4)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Morgantown Plaza
Star City, WV.............. 74,540 28,824 103,364 100.0 100.0 Ames 10/31/02
Morningside Plaza
Dade City, FL.............. 33,896 41,221 75,117 100.0 80.8 Kash `N Karry 06/30/05
Mount Vernon Plaza Heilig-Meyers 09/12/06
Mt.Vernon, OH.............. 49,932 11,756 61,688 100.0 100.0 Odd Lots 01/31/04
New Boston Mall
Portsmouth, OH............. 84,180 44,550 128,730 100.0 100.0 Kmart 11/30/03
Newberry Square Shopping Wal-Mart 09/30/07
Center - Newberry, SC...... 104,588 22,240 126,828 100.0 100.0 Winn-Dixie 12/09/07
Newport Plaza II
Newport, KY (3)............ 84,180 14,800 98,980 100.0 100.0 Kmart 06/13/04
North Horner Shopping Center
Sanford, NC................ 22,486 17,650 40,136 100.0 66.0 Food Lion 09/11/02
Northtowne Square
Chattanooga, TN............ 42,130 29,200 71,330 100.0 95.9 Bi-Lo 09/30/01
Ohio River Plaza Ames 01/31/20
Gallipolis, OH............. 105,857 43,136 148,993 100.0 96.3 Kroger 11/18/09
Pea Ridge Shopping Center Kmart 10/31/04
Huntington, WV............. 110,192 39,860 150,052 100.0 69.9 Kroger (10) 02/29/00
Perdido Point Plaza
Pensacola, FL.............. 36,987 9,600 46,587 100.0 100.0 Delchamps 04/30/05
Plaza Vista Mall JCPenney 02/28/04
Sierra Vista, AZ........... 161,043 53,229 214,272 100.0 82.4 Wal-Mart 10/14/11
Prestonsburg Village Center Big Lots 12/31/00
Prestonsburg, KY........... 134,057 41,290 175,347 100.0 100.0 Wal-Mart 09/30/05
Winn-Dixie 01/30/06
Rend Lake Shopping Center Big John's 10/31/04
Benton, IL................. 96,913 24,470 121,383 100.0 100.0 Wal-Mart 01/31/07
Rhea County Shopping Ingles 02/28/03
Dayton, TN................. 71,952 40,050 112,002 100.0 100.0 Wal-Mart 09/30/03
River Edge Plaza Food City 11/01/08
Sevierville, TN (3)........ 108,829 27,396 136,225 100.0 94.2 Wal-Mart (11) 09/30/03
River Valley Plaza Family Toy
Lancaster, OH.............. 173,000 50,865 223,865 67.6 96.1 Warehouse 10/31/04
Target 10/03/14
</TABLE>
17
<PAGE> 18
<TABLE>
<CAPTION>
% OF % OF
ANCHORS STORES TOTAL ANCHORS STORES LEASE
PROPERTY/LOCATION GLA GLA (1) GLA OCCUPIED OCCUPIED ANCHORS EXPIRATION (4)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Roane County Plaza Goody's 02/29/00
Rockwood, TN............... 124,848 35,350 160,198 100.0 100.0 Ingles 02/28/10
Wal-Mart 01/31/10
Scott Town Plaza
Bloomsburg, PA............. 47,334 30,300 77,634 100.0 53.4 Kmart 08/31/01
Shady Springs Plaza
Beaver, WV................. 37,232 30,345 67,577 100.0 74.6 Kroger 09/30/08
Sidney Shopping Center
Sidney, NY................. 50,071 N/A 50,071 100.0 N/A Grand Union 07/31/19
Southside Plaza Food Lion 12/17/11
Sanford, NC................ 147,693 24,600 172,293 100.0 100.0 Wal-Mart 12/29/11
Springfield Commons West Big Bear 03/31/15
Springfield, OH............ 213,017 N/A 213,017 100.0 N/A Lowe's 01/31/15
Toys "R" Us 01/31/08
Steamboat Bend Hannibal Farm
Hannibal, MO............... 81,272 25,420 106,692 100.0 100.0 & Home 08/25/02
Wetterau 10/31/00
Stewart Plaza
Mansfield, OH.............. 30,979 27,069 58,048 100.0 62.8 Kroger 10/31/99
Sunbury Plaza
Sunbury, PA................ 91,131 49,265 140,396 76.8 76.5 Ames 08/14/03
Sycamore Square Food Lion 01/20/10
Ashland City, TN........... 75,552 27,000 102,552 100.0 94.4 Wal-Mart 11/11/08
Target Plaza
Heath, OH.................. 97,000 N/A 97,000 100.0 N/A Target 11/29/14
Twin County Plaza Ingles 01/31/07
Galax, VA.................. 122,273 38,440 160,713 100.0 95.8 Wal-Mart (12) 12/31/99
Village Plaza Bi-Lo 11/30/08
Augusta, GA................ 450,331 40,100 490,431 100.0 88.0 Home Quarters (13) 12/31/99
LS Ward & Sons 11/30/04
OfficeMax 01/31/02
Sam's Club 07/11/08
Wal-Mart 10/28/08
Village Plaza Falley's Food
Manhattan, KS.............. 31,431 24,276 55,707 100.0 89.9 4 Less 10/31/00
Village Square CVS Drugs 12/31/00
Kutztown, PA............... N/A 39,362 39,362 N/A 68.2 McCrory 01/31/01
Quality Shop 12/31/00
Vincennes Kmart 06/30/04
Vincennes, IN (3).......... 108,682 N/A 108,682 100.0 N/A Kroger 12/31/00
</TABLE>
18
<PAGE> 19
<TABLE>
<CAPTION>
% OF % OF
ANCHORS STORES TOTAL ANCHORS STORES LEASE
PROPERTY/LOCATION GLA GLA (1) GLA OCCUPIED OCCUPIED ANCHORS EXPIRATION (4)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Walgreens
Louisville, KY............. 13,000 N/A 13,000 100.0 N/A Walgreens 01/31/25
Walgreens
New Albany, IN............... 13,000 N/A 13,000 100.0 N/A Walgreens 09/30/24
Wal-Mart Plaza Goody's 08/31/02
Springfield, OH............ 155,198 45,305 200,503 100.0 69.9 Wal-Mart 10/27/15
Walnut Cove
Walnut Cove, NC............ 32,000 26,450 58,450 100.0 77.3 Ingles 03/31/06
Walterboro Plaza Piggly Wiggly 09/09/10
Walterboro, SC............. 99,730 32,400 132,130 100.0 100.0 Wal-Mart 06/23/09
Westpark Plaza
Carbondale, IL (3)......... 31,170 24,152 55,322 100.0 94.2 Kroger 03/31/08
---------- ---------- -----------
SUBTOTAL..................... 10,454,270 2,753,785 13,208,055 97.4 90.4
---------- --------- ----------
PROPERTY OWNED IN JOINT
VENTURE: (12)
Polaris Towne Center Barnes & Noble 01/31/15
Columbus, OH............... 291,997 104,383 396,380 100.0 100.0 Best Buy 01/31/15
---------- --------- ---------- Jo-Ann etc. 01/31/10
Kroger 11/30/18
Linens `N Things 01/31/15
OfficeMax 09/30/14
Old Navy 01/31/10
TJ Maxx 03/31/09
SUBTOTAL..................... 291,997 104,383 396,380 100.0 100.0
---------- ---------- -----------
TOTAL........................ 10,746,267 2,858,168 13,604,435 97.5 90.8
========== ========== ===========
</TABLE>
(1) Includes outparcels.
(2) This is a ground lease. The Company owns the land and not the building.
(3) The Company ground leases the land from a third party for this Community
Center.
(4) Lease expiration dates do not consider options to renew.
(5) National Supermarket vacated the store on April 13, 1999, but continues to
pay rent through lease expiration 7/31/03.
(6) A&P vacated the store on July 31, 1999, but continues to pay rent through
lease expiration 4/30/00.
(7) Wal-Mart vacated the store on June 12, 1999, but continues to pay rent
through lease expiration 9/28/10.
(8) SuperPetz vacated the store on December 31, 1998, but continues to pay rent
through lease expiration 3/31/06.
(9) Wal-Mart vacated the store on June 16, 1999, but continues to pay rent
through lease expiration 1/31/03.
(10) Kroger vacated the store on October 27, 1999, but continues to pay rent
through lease expiration 2/29/00.
(11) Wal-Mart vacated the store on September 30, 1995, but continues to pay rent
through lease expiration 9/30/03.
(12) Wal-Mart vacated the store September 15, 1999, but continued to pay rent
through lease termination 12/31/99.
(13) Home Quarters vacated the store and rejected the lease as of December 31,
1999.
(14) The Operating Partnership has an investment in this Community Center of
50.0%. The Company as the joint venture's managing general partner, and GDC
are responsible for management and leasing services, respectively, and
receive fees for providing these services.
Ten of the Community Centers are subject to long-term ground leases
where a third party owns the underlying land and has leased the land to the
Company. The expiration dates of the ground leases (assuming the exercise by the
Company of all of its options to extend the terms of such leases) range from May
2038 to April
19
<PAGE> 20
2082. The Company pays rent, ranging from $1,500 to $60,000 per annum, for the
use of the land and generally is responsible for the costs and expenses
associated with maintaining the building and improvements thereto. In addition,
some of the ground leases provide for sharing of the percentage rents collected,
if any. At the end of the lease term, unless extended, the land, together with
all improvements thereon, will revert to the land owner without compensation to
the lessee.
(d) Properties Subject to Indebtedness
To finance the acquisition and development of the Properties, the
Company has entered into mortgage loans and a credit facility, which are
described below.
The Nomura Loan ($141.0 million)
- -------------------------------
The Nomura loan was originated by Nomura and is evidenced by three
notes (collectively, the "Notes" and individually, a "Note"): (i) a Note, in the
principal amount of $40.0 million which bears interest at the rate of 7.505% per
annum and matures on February 1, 2003; (ii) a Note in the principal amount of
$76.0 million which bears interest at the rate of 7.625% per annum and matures
on August 1, 2000; and (iii) a Note in the principal amount of $25.0 million
which bears interest at the rate of 6.935% per annum and matures on October 1,
2000. Each of the Notes provides for monthly payments of interest only with the
principal amount due on maturity. The borrowers under the Nomura loan are
Holdings and Centers (each a "Borrower" and collectively, the "Borrowers").
Each Note prohibits prepayment (other than upon casualty or
condemnation), except during the last 12 months of their respective terms.
The Nomura loan is a non-recourse loan. Payment of principal and
interest on the Nomura loan is collateralized with first mortgage liens on 54
Properties, 26 of which are owned by Holdings and 28 of which are owned by
Centers (the "Nomura Properties"), and a pledge of the partnership interests in
each of the Borrowers, which interests are held by an affiliate of GRT. These
mortgages are cross-collateralized and cross-defaulted.
The Nomura loan contains customary representations, covenants and
events of default. In addition, it requires that (i) the Borrowers comply with
certain affirmative and negative covenants, including covenants restricting the
incurrence of additional indebtedness on the Nomura Properties; (ii) each
Borrower establish and maintain certain reserve funds; and (iii) the general
partner of each Borrower have an independent director whose vote will be
required for certain specified actions, including the making of any bankruptcy
filing by the respective Borrower. Neither GRT nor the Operating Partnership is
a party to, and neither has guaranteed any amount in respect of, the Nomura
loan, other than certain limited indemnification obligations primarily relating
to potential environmental liabilities and the pledge of partnership interests
as described above.
The Nomura loan also provides that the Nomura Properties will be
managed by the Company or a third party selected by the Company, provided that
the Company, or any other party then managing such property, may be removed as
manager of such properties if an event of default occurs under such loan or if
the ratio of the sum of (i) the net operating income of the Nomura Properties
during the preceding 12 calendar months and (ii) all interest earned during such
period on U.S. government obligations delivered to the lender as substituted
collateral for the Nomura Properties released (as described in the paragraph
above), decreases below an amount equal to 75.0% of the net operating income for
the Nomura Properties determined as of September 30, 1993, (approximately $23.8
million) for three consecutive months.
The Cigna Loan ($50.0 million)
- -----------------------------
The $50.0 million loan was originated by CIGNA and is collateralized
with first mortgage liens on 10 Properties, bears interest at a rate equal to
7.470% per annum and is payable, interest only, until maturity on October 26,
2002. These mortgages are cross-collateralized and cross-defaulted.
20
<PAGE> 21
The Credit Facility ($170.0 million)
- -----------------------------------
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 the Company with the ability to borrow up-to
$170.0 million, extends the term through January 31, 2001, is collateralized
with first mortgage liens on three Properties and currently bears interest at a
rate equal to LIBOR plus 190 basis points per annum (7.7225% at December 31,
1999). Payments due under the Credit Facility are guaranteed by GRT and the
Operating Partnership. During 1999 the weighted average interest rate was
7.112%. At December 31, 1999, the outstanding balance on the Credit Facility was
$125.0 million.
The Credit Facility, as amended, contains customary covenants,
representations, warranties and events of default, including maintenance of a
specified minimum net worth requirement, loan to value ratios, project costs to
asset value ratios, total debt to asset value ratios and EBITDA to total debt
service, restrictions on the incurrence of additional indebtedness and approval
of anchor leases with respect to the Properties which secure the Credit
Facility.
The University Mall Loan ($71.4 million)
- ---------------------------------------
The University Mall loan was originated by Nomura and is collateralized
with a first mortgage lien on University Mall. The loan consists of (i) a note
in the principal amount of $64.9 million with interest at a rate of
approximately 8.23% per annum and maturing in January 2028 with a prepayment
option in January 2013 and (ii) a buy up payment from Nomura of $6.5 million
which reduces the effective interest rate to 7.09% per annum.
The Community Center Loans ($60.5 million)
- -----------------------------------------
The Community Center loans are collateralized with first mortgage liens
on 10 Properties. The loans bear interest at rates ranging from 7.875% to 9.125%
per annum, require payments of principal and interest and mature between March
2000 and April 2016.
The Bridge Loans ($43.7 million)
- -------------------------------
The bridge loans are collateralized with first mortgage liens on 13
Properties. The bridge loans bear interest at interest rates ranging from LIBOR
plus 200 to 275 basis points per annum (8.500% to 9.227% at December 31, 1999),
require payments of interest only and mature between April 2000 and June 2000.
The Northtown Mall Loan ($40.0 million)
- --------------------------------------
The Northtown Mall loan was originated by Nomura and is collateralized
with a first mortgage lien on Northtown Mall. The loan bears interest at a rate
equal to LIBOR, which is fixed at 5.662% per annum during the loan term pursuant
to an existing interest rate swap agreement, plus 125 basis points per annum
(6.912% at December 31, 1999) and is payable interest only until maturity on
August 30, 2001.
The Weberstown Mall Loan ($20.5 million)
- ---------------------------------------
The Weberstown Mall loan was originated by Lehman Brothers and is
collateralized with a first mortgage lien on Weberstown Mall. The loan bears
interest at a rate equal to 7.430% per annum and requires payments of principal
and interest until maturity on May 1, 2006.
The Montgomery Mall Loan ($47.6 million)
- ---------------------------------------
The Montgomery Mall loan was originated by Lehman Brothers and is
collateralized with a first mortgage lien on Montgomery Mall. The loan bears
interest at a rate equal to 6.740% per annum and requires payments of principal
and interest until maturity on August 1, 2028. The loan has a prepayment option
in August 2005.
21
<PAGE> 22
The Morgantown Mall Loan ($58.2 million)
- ---------------------------------------
The Morgantown Mall loan was originated by Nomura and is collateralized
with first mortgage liens on Morgantown Mall and Morgantown Commons. The loan
bears interest at a rate equal to 6.890% per annum and requires payments of
principal and interest until maturity on September 11, 2028. The loan has a
prepayment option in September 2008.
The Lloyd Center Loan ($130.0 million)
- -------------------------------------
The Lloyd Center loan was originated by Goldman Sachs and is
collateralized with a first mortgage lien on Lloyd Center. The loan bears
interest at a rate equal to LIBOR plus 125 basis points per annum (7.720% at
December 31, 1999) and is payable interest only until maturity on October 11,
2001.
The Grand Central Mall Loan ($52.5 million)
- ------------------------------------------
In January 1999, the Company refinanced a maturing $40.0 million
mortgage note payable with a new $52.5 million mortgage note collateralized with
a first mortgage lien on Grand Central Mall. The loan was originated by Lehman
Brothers, bears interest at a rate equal to 7.180% per annum and requires
payments of principal and interest until maturity on February 1, 2009.
The Jackson National Life Loan ($90.0 million)
- ---------------------------------------------
The $90.0 million loan was originated by Jackson National Life and is
collateralized with first mortgage liens on 11 Properties. The loan bears
interest at a rate equal to 8.460% per annum and requires payments of principal
and interest until maturity on July 1, 2009.
The Construction Loans
- ----------------------
Georgesville Square Loan
In September 1996, the Company entered into a construction loan to
finance the development of Georgesville Square, a Community Center in Columbus,
Ohio, pursuant to which the Company has a right to borrow $16.9 million. The
construction loan is due April 2000, is subject to one extension of six months
and requires monthly payments of principal and interest at LIBOR plus 200 basis
points (8.476% at December 31, 1999). As of December 31, 1999, the Company had
borrowed $16.6 million under this construction loan.
Meadowview Square Loan
In October 1996, the Company entered into a construction loan to
finance the development of Meadowview Square, a Community Center in Kent, Ohio,
pursuant to which the Company has a right to borrow $9.8 million. The
construction loan is due May 2000, is subject to one extension of six months and
requires monthly payments of principal and interest at LIBOR plus 200 basis
points (8.476% at December 31, 1999). As of December 31, 1999, the Company had
borrowed $9.5 million under this construction loan.
Fairfield Commons Regal Cinemas Loan
- ------------------------------------
In February 1999, the Company entered into a construction loan to
finance the development of Regal Cinemas at The Mall at Fairfield Commons in
Beavercreek, Ohio, pursuant to which the Company has a right to borrow $8.7
million. The construction loan is due February 1, 2001, is subject to two
extensions of six months each and is payable monthly, interest only, at LIBOR
plus 190 basis points (8.376% at December 31, 1999). As of December 31, 1999,
the Company had borrowed $8.4 million under this construction loan.
22
<PAGE> 23
ITEM 3. LEGAL PROCEEDINGS
The Company is not presently involved in any material litigation nor,
to its knowledge, is any material litigation threatened against the Company or
its Properties, other than routine litigation arising in the ordinary course of
business.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matter was submitted to a vote of security holders through the
solicitation of proxies or otherwise during the fourth quarter of fiscal year
1999.
PART II.
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED SHAREHOLDER
MATTERS
(a) Market Information
The Shares are currently listed and traded on the New York Stock
Exchange ("NYSE") under the symbol "GRT." On February 29, 2000, the last
reported sales price of the Shares on the NYSE was $12.375. The following table
shows the high and low sales prices for the Shares on the NYSE for the 1999 and
1998 quarterly periods indicated as reported by the New York Stock Exchange
Composite Tape and the cash distributions per Share paid by GRT with respect to
each of such periods.
DISTRIBUTIONS
QUARTER ENDED HIGH LOW PER SHARE
------------- ---- --- ---------
March 31, 1998 $ 22.750 $ 21.125 $ 0.4808
June 30, 1998 22.125 19.438 0.4808
September 30, 1998 20.125 16.250 0.4808
December 31,1998 17.125 15.000 0.4808
March 31, 1999 16.063 13.688 0.4808
June 30, 1999 17.813 13.875 0.4808
September 30, 1999 16.500 14.688 0.4808
December 31, 1999 15.063 12.750 0.4808
(b) Holders
The number of holders of record of the Shares was 1,010 as of February
29, 2000.
(c) Distributions
Future Share distributions paid by GRT will be at the discretion of the
trustees of GRT and will depend upon the actual cash flow of GRT, its financial
condition, capital requirements, the annual distribution requirements under the
REIT provisions of the Code and such other factors as the trustees of GRT deem
relevant.
GRT has implemented a Distribution Reinvestment and Share Purchase Plan
under which its shareholders or Operating Partnership unit holders may elect to
purchase additional Shares and/or automatically reinvest their distributions in
Shares. In order to fulfill its obligations under the plan, GRT may purchase
Shares in the open market or issue Shares that have been registered and
authorized specifically for the plan. As of December 31, 1999, 250,000 Shares
were authorized of which 77,588 Shares have been issued.
(d) Recent Sales of Unregistered Securities
The information required herein, is set forth under Item 1 (a), General
Development of Business.
23
<PAGE> 24
ITEM 6. SELECTED FINANCIAL DATA
The following table sets forth Selected Financial Data for the Company.
This information should be read in conjunction with the financial statements of
the Company and Management's Discussion and Analysis of the Financial Condition
and Results of Operations, each included elsewhere in this Form 10-K.
SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
------------------------------------------------------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
OPERATING DATA (IN THOUSANDS, EXCEPT
PER SHARE AMOUNTS):
Total revenues ..................................... $ 227,010 $ 184,091 $ 140,138 $ 117,678 $ 104,248
Operating expenses ................................. 62,126 44,824 29,548 27,212 22,706
Depreciation and amortization ...................... 44,097 35,825 27,869 22,418 20,560
General and administrative ......................... 9,417 10,011 8,286 9,371 6,409
Interest expense ................................... 64,333 48,823 42,146 29,297 26,215
Equity in income (loss) from unconsolidated entities (4,570) (2,388) (661) 42
Interest income .................................... 1,534 1,883 1,032 506 649
(Loss) gain on sales of properties/outparcels ...... (12) 155 1,506
Minority interest in operating partnership ......... 2,316 2,623 3,022 3,385 3,294
Extraordinary item:
Extinguishment of debt-prepayment fees
and write-off of deferred financing fees ........ 545 490
Net income ......................................... 41,128 40,990 29,793 28,049 25,713
Preferred stock dividends .......................... 21,620 20,079 4,705 268
Net income available to common shareholders ........ 19,508 20,911 25,088 27,781 25,713
Per common share data:
Earnings per share (basic and diluted) ........... $ 0.82 $ 0.88 $ 1.12 $ 1.27 $ 1.27
Distributions .................................... $ 1.9232 $ 1.9232 $ 1.9232 $ 1.9232 $ 1.9099
BALANCE SHEET DATA (IN THOUSANDS):
Real estate, before accumulated depreciation ....... $ 1,558,452 $ 1,428,641 $ 1,091,422 $ 949,138 $ 696,898
Real estate, after accumulated depreciation ........ 1,374,965 1,291,412 983,811 862,717 630,199
Total assets ....................................... 1,586,050 1,558,495 1,163,798 949,402 669,003
Total debt ......................................... 1,032,229 994,011 591,688 575,247 324,779
Redeemable preferred shares ........................ 90,000 90,000 90,000 34,000
Total shareholders' equity ......................... 365,660 391,075 411,055 269,211 284,691
OTHER DATA:
Ratio of earnings to combined fixed charges and
preferred stock dividends ........................ 1.45x 1.54x 1.59x 1.81x 1.98x
Funds from operations (1) (in thousands) ........... $ 71,265 $ 64,803 $ 55,898 $ 51,382 $ 46,983
Cash provided by operating activities (in thousands) 97,120 76,796 56,406 53,918 40,972
Cash used in investing activities (in thousands) ... (12,621) (409,015) (244,823) (161,251)
Cash (used in) provided by financing activities
(in thousands) ................................... (84,409) 333,734 186,883 110,469 7,013
Number of properties (2) ........................... 126 125 120 113 88
Total GLA (in thousands) (3) (4) ................... 31,883 30,334 25,450 18,554 13,154
Occupancy rate % (2) (3) ........................... 94.5% 93.8% 94.0% 95.4% 95.6%
</TABLE>
(1) 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 GAAP 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.
(2) Number of Properties open at the end of the period including three
Properties at December 31, 1997, leased or managed by the Company, in which
the Company did not hold an ownership interest. Occupancy of the Properties
is defined as any space where a tenant is open and/or paying rent at the
date indicated, excluding all tenants with leases having an initial term of
less than one year.
(3) 1999 includes 8.6 million square feet of GLA, 1998 includes 7.1 million
square feet of GLA, 1997 includes 3.4 million square feet of GLA and 1996
includes 549,000 square feet of GLA, owned by joint ventures in which the
Operating Partnership has interests ranging from 20.0% to 50.0%.
(4) 1997 includes 2.5 million square feet of GLA leased or managed by the
Company in which the Company did not hold an ownership interest.
24
<PAGE> 25
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
The following should be read in conjunction with the consolidated
financial statements of GRT including the respective notes thereto, all of which
are included in this Form 10-K.
RESULTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1999 COMPARED TO YEAR ENDED DECEMBER 31, 1998
REVENUES
Total revenues increased 23.3%, or $42.9 million, for the year ended
December 31, 1999. Of the $42.9 million increase, $38.5 million was the result
of increased revenues at the Malls, $3.0 million was the result of increased
revenues at the Community Centers and $1.4 million was related to other revenue
increases.
Minimum rents
Minimum rents increased 17.7%, or $23.4 million, for the year ended
December 31, 1999.
<TABLE>
<CAPTION>
INCREASE (DOLLARS IN MILLIONS)
----------------------------------------------------------------
COMMUNITY PERCENT
MALLS CENTERS TOTAL TOTAL
----- ------- ----- -----
<S> <C> <C> <C> <C>
Same center.................. $ 2.2 $1.2 $ 3.4 2.6%
Acquisitions/Developments..... 19.9 0.1 20.0 15.1%
------ ----- ------ ----
$22.1 $1.3 $23.4 17.7%
===== ==== ===== ====
</TABLE>
Percentage rents
Percentage rents increased $2.4 million for the year ended December 31,
1999. Of this increase, $1.8 million was earned at the Malls and primarily
related to acquisitions/developments and $600,000 was earned at the Community
Centers.
Tenant recoveries
Tenant recoveries reflect a net increase of 32.9%, or $12.5 million,
for the year ended December 31, 1999.
<TABLE>
<CAPTION>
INCREASE (DOLLARS IN MILLIONS)
---------------------------------------------------------------
COMMUNITY PERCENT
MALLS CENTERS TOTAL TOTAL
----- ------- ----- -----
<S> <C> <C> <C> <C>
Same center.................. $ 0.4 $1.1 $ 1.5 3.9%
Acquisitions/Developments.... 11.0 11.0 29.0%
------ ---- ----- ----
$11.4 $1.1 $12.5 32.9%
===== ==== ===== ====
</TABLE>
Other revenues
The $4.7 million increase in other revenues is primarily the result of
an increase of $3.4 million in temporary tenant income at the Malls, $2.2
million of which was from acquisitions/developments, increases in management fee
revenue of $1.0 million and an increase of $300,000 in compactor pad rentals at
the Malls.
25
<PAGE> 26
OPERATING EXPENSES
Total operating expenses increased 38.6%, or $17.3 million, for the
year ended December 31, 1999. Recoverable operating expenses increased $14.8
million, the provision for credit losses increased $1.0 million and other
operating expenses increased $1.5 million.
Recoverable expenses
Recoverable expenses increased 35.7%, or $14.8 million for the year
ended December 31, 1999.
<TABLE>
<CAPTION>
INCREASE (DOLLARS IN MILLIONS)
-------------------------------------------------------------
COMMUNITY PERCENT
MALLS CENTERS TOTAL TOTAL
----- ------- ----- -----
<S> <C> <C> <C> <C>
Same center.................. $ 1.0 $1.0 $ 2.0 4.8%
Acquisitions/Developments... 12.8 12.8 30.9
----- ---- ------ ----
$13.8 $1.0 $14.8 35.7%
===== ==== ===== ====
</TABLE>
Provision for credit losses
The provision for credit losses was approximately $2.6 million and
represented 1.2% of tenant revenues for the year ended December 31, 1999,
compared to 1.0% of tenant revenues for the year ended December 31, 1998.
Depreciation and amortization
The $8.3 million increase in depreciation and amortization consists
primarily of an increase of $6.5 million from Mall acquisitions, an increase of
$1.8 million in the core portfolio Properties and a $1.0 million increase in
corporate expense, offset with a decrease of $1.0 million from dispositions.
GENERAL AND ADMINISTRATIVE
General and administrative expense was $9.4 million and represented
4.1% of total revenues for the year ended December 31, 1999, compared to $10.0
million and 5.4% of total revenues for the corresponding period in 1998. The
decrease in expense is primarily due to a decrease in the number of corporate
associates, as a result of various efficiency initiatives implemented during the
year.
INTEREST EXPENSE/CAPITALIZED INTEREST
Interest expense increased 31.8%, or $15.5 million, for the year ended
December 31, 1999. The summary below identifies the increase by its various
components (dollars in thousands).
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED DECEMBER 31,
-----------------------------------------------
1999 1998 INC. (DEC.)
---- ---- -----------
<S> <C> <C> <C>
Average loan balance..................... $1,043,384 $805,927 $237,457
Average rate............................. 7.21% 7.25% (0.04)%
Total interest........................... 75,228 58,430 16,798
Less: Capitalized interest.............. (5,823) (6,666) 843
Add: Amortization of rate buydown....... 517 (517)
Other (1)................................ (5,072) (3,458) (1,614)
----------- -------- --------
Interest expense......................... $ 64,333 $ 48,823 $ 15,510
=========== ======== ========
</TABLE>
(1) Other consists primarily of interest costs billed to joint ventures.
26
<PAGE> 27
RESULTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1998 COMPARED TO YEAR ENDED DECEMBER 31, 1997
REVENUES
Total revenues increased 31.4%, or $44.0 million, for the year ended
December 31, 1998. Of the $44.0 million increase, $41.1 million was the result
of increased revenues at the Malls $2.1 million was the result of increased
revenues at the Community Centers, $1.5 million was the result of decreased
revenues from dispositions and $2.3 million was related to other revenue
increases.
Minimum rents
Minimum rents increased 22.3%, or $24.0 million, for the year ended
December 31, 1998.
<TABLE>
<CAPTION>
INCREASE (DOLLARS IN MILLIONS)
-------------------------------------------------------------
COMMUNITY PERCENT
MALLS CENTERS TOTAL TOTAL
----- ------- ----- -----
<S> <C> <C> <C> <C>
Same center.................. $ 1.6 $ 1.5 $ 3.1 2.9%
Acquisitions/Developments.... 22.0 0.1 22.1 20.5
Dispositions................. (1.2) (1.2) (1.1)
------ ------- ------ -----
$ 23.6 $ 0.4 $ 24.0 22.3%
======= ======= ====== ====
</TABLE>
Percentage rents
Percentage rents increased $1.5 million for the year ended December 31,
1998. Percentage rents at the Malls increased $1.7 million while percentage
rents at the Community Centers decreased $200,000.
Tenant recoveries
Tenant recoveries reflect a net increase of 56.8%, or $13.7
million, for the year ended December 31, 1998.
<TABLE>
<CAPTION>
INCREASE (DOLLARS IN MILLIONS)
--------------------------------------------------------------
COMMUNITY PERCENT
MALLS CENTERS TOTAL TOTAL
----- ------- ----- -----
<S> <C> <C> <C> <C>
Same center.................. $ 1.4 $ 0.4 $ 1.8 7.5%
Acquisitions/Developments.... 12.1 12.1 50.1
Dispositions................. ( 0.2) (0.2) ( 0.8)
-------- ------ ------- ------
$13.5 $ 0.2 $13.7 56.8%
===== ===== ===== =====
</TABLE>
Other revenues
The $4.7 million increase in other revenues is primarily the result of
increases in management fee revenues of $2.4 million, and an increase of $2.3
million in temporary tenant income at the Malls.
OPERATING EXPENSES
Total operating expenses increased 51.7%, or $15.3 million, for the
year ended December 31, 1998. Recoverable operating expenses increased $15.1
million, the provision for credit losses decreased $600,000 and other operating
expenses increased $700,000.
27
<PAGE> 28
Recoverable expenses
Recoverable expenses increased 57.4%, or $15.1 million for the year
ended December 31, 1998.
<TABLE>
<CAPTION>
INCREASE (DOLLARS IN MILLIONS)
------------------------------------------------------------
COMMUNITY PERCENT
MALLS CENTERS TOTAL TOTAL
----- ------- ----- -----
<S> <C> <C> <C> <C>
Same center.................. $ 2.0 $ 0.7 $ 2.7 10.3%
Acquisitions/Developments... 12.7 12.7 48.2
Dispositions................. (0.3) (0.3) (1.1)
--------- ------ ------ -----
$14.7 $ 0.4 $15.1 57.4%
===== ===== ===== ====
</TABLE>
Provision for credit losses
The provision for credit losses was approximately $1.7 million and
represented 1.0% of tenant revenues for the year ended December 31, 1998,
compared to 1.6% of tenant revenues for the year ended December 31, 1997.
Depreciation and amortization
The $8.0 million increase in depreciation and amortization consists
primarily of an increase of $5.9 million from Mall acquisitions, an increase of
$1.5 million in the core portfolio Properties and an $800,000 increase in
corporate expense, offset with a decrease of $200,000 from dispositions.
GENERAL AND ADMINISTRATIVE
General and administrative expense was $10.0 million and represented
5.4% of total revenues for the year ended December 31, 1998, compared to $8.3
million and 5.9% of total revenues for the corresponding period in 1997. The
increase in expense is primarily due to an increase in the number of corporate
associates as a result of the Company's growth during 1998.
INTEREST EXPENSE/CAPITALIZED INTEREST
Interest expense increased 15.8%, or $6.7 million, for the year ended
December 31, 1998. The summary below identifies the increase by its various
components (dollars in thousands).
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED DECEMBER 31,
----------------------------------------------------
1998 1997 INC. (DEC.)
---- ---- -----------
<S> <C> <C> <C>
Average loan balance..................... $805,927 $586,916 $219,011
Average rate............................. 7.25% 7.66% (0.41)%
Total interest........................... 58,430 44,970 13,460
Less: Capitalized interest.............. (6,666) (3,053) (3,613)
Add: Amortization of rate buydown....... 517 776 (259)
Other (1)................................ (3,458) (547) (2,911)
---------- ---------- -----------
Interest expense......................... $ 48,823 $ 42,146 $ 6,677
======== ======== ===========
</TABLE>
(1) Other consists primarily of interest costs billed to joint ventures.
28
<PAGE> 29
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 million in maturing short-term notes
during the first quarter and refinanced a short-term note payable of $10.0
million.
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. The maturity of the $21.5 million note was extended to April 1, 2000 in
conjunction with a $2.2 million principal payment on September 30, 1999. In June
1999, the Company, through the Operating Partnership, amended its Credit
Facility. The amended Credit Facility was reconfigured from $190.0 million
collateralized with mortgage liens on a pool of 11 Properties to $170.0 million
collateralized with first mortgage liens on 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 (7.723% at December 31, 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 obtained a $90.0 million note payable of
which $21.5 million, $50.0 million and $18.5 million were funded in June 1999,
July 1999 and October 1999, respectively, to refinance existing mortgage
maturities. The note bears interest at 8.460% per annum.
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 December 31, 1999, the Company's debt-to-total-market capitalization
was 64.7%, 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 2000.
Net cash provided by operating activities for the twelve months ended December
31, 1999, was $97.1 million versus $76.8 million for the corresponding period of
1998. Net income adjusted for non-cash items accounted for a $10.8 million
increase, while changes in operating assets and liabilities accounted for a $9.5
million increase.
Net cash used in investing activities for the twelve months ended
December 31, 1999, was $12.6 million and primarily reflects additional direct
investments in real estate assets of $25.3 million and a decrease in indirect
investments in real estate through investments in unconsolidated entities of
$13.6 million.
Net cash used in financing activities for the twelve months ended
December 31, 1999, was $84.4 million. Cash was used to reduce outstanding
borrowings on the Credit Facility by $38.0 million, to fund distributions of
$68.0 million and principal payments on mortgage and notes payable of $196.6
million. Cash was provided by issuance of new mortgage and notes payable of
$217.8 million.
29
<PAGE> 30
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 563,000 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 completed a 75,000
square-foot Regal Cinemas on one of the Mall's outparcels, which opened in
August 1999.
Community Centers
The Company currently has community center anchor expansion projects in
process at Cross Creek Plaza in Beaufort, South Carolina and Loyal Plaza in
Loyalsock, Pennsylvania. Cherry Hill Plaza in Galax, Virginia, opened with its
new anchor Goody's in September 1999. 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, Polaris Towne Center in northern Columbus,
Ohio. Upon completion, Polaris Towne Center will feature grocery and discount
store anchors, restaurants, big box retailers and several specialty shops. The
initial anchor, a 64,000 square-foot Kroger, opened in the fourth quarter of
1998. During 1999, seven additional anchor tenants, 16 small shop tenants, three
outparcel tenants and Target opened and are occupying in excess of 468,000
square feet. Two tenants purchased land and are constructing their own stores.
Target opened a 136,000 square-foot store in October 1999 and Lowe's will open
in a 135,000 square-foot store in the second quarter of 2000. The space for
which construction has been completed was 100.0% occupied at December 31, 1999.
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, developed 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 has been completed
and the grand opening of Jersey Gardens was October 21, 1999. At the opening
date leases had been executed for approximately 92.8% of the GLA. Occupancy of
Jersey Gardens was 86.8% at December 31, 1999. The required equity for Jersey
Gardens and off-site improvements had previously been funded. The Company has
also arranged a construction loan facility for the project which matures in
2002.
30
<PAGE> 31
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.
Construction is expected to commence in 2000 with a projected opening date in
the fourth quarter of 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. All
costs incurred in connection with this development in the amount of $486,000
were written-off in the third quarter of 1999.
Capital Invested in Real Estate
In the fourth quarter of 1999, the Company acquired an additional 10.0%
ownership interest in The Great Mall of the Great Plains, giving the Company a
55.0% equity position. The Company accounted for its interest in this Property
under the equity method prior to its inclusion in investment in real estate as
of October 1, 1999. Investment in real estate has increased $4.8 million (net of
$125.0 million related to The Great Mall of the Great Plains) since December 31,
1998 (in thousands):
<TABLE>
<CAPTION>
NAME OF PROPERTY/DESCRIPTION COST PROJECT TYPE
- ---------------------------------------------------------------------------------------------
<S> <C> <C>
The Mall at Fairfield Commons - Regal Cinemas $ 6,958 Renovation/Expansion
Grand Central Mall 1,730 Renovation/Expansion
Ashland Town Center 1,314 Renovation/Expansion
Lloyd Center 1,290 Renovation/Expansion
Weberstown Mall 1,190 Renovation/Expansion
Indian Mound Mall 805 Renovation/Expansion
Georgesville Square 752 Renovation/Expansion
Southside Mall 378 Renovation/Expansion
Cherry Hill Plaza 1,545 Development
Lloyd Center - Sears (7,023) Sale
Georgesville Square (6,378) Sale
Torresdale Plaza (4,819) Sale
Capital Expenditures (1) 6,463
Various Properties - net 613
------------
$ 4,818
===========
</TABLE>
(1) Capital expenditures include tenant improvements and tenant allowances on
second generation space of $4,784 and routine, recurring maintenance capital
expenditures that cannot be passed through to the tenants of $1,679.
31
<PAGE> 32
PORTFOLIO DATA
Tenants reporting sales data in the table below for the twelve month
periods ended December 31, 1999 and 1998, represent 19.3 million square feet of
GLA, or 76.2% of the "same store" population.
<TABLE>
<CAPTION>
MALL PROPERTIES COMMUNITY CENTERS
-------------------------- ------------------------
PROPERTY TYPE SALES PSF % INCREASE SALES PSF % INCREASE
------------- --------- ---------- --------- ----------
<S> <C> <C> <C> <C>
Anchors............................ $164.88 2.5% $256.50 4.6%
Stores............................. $276.80 3.1% $187.41 3.7%
Total.............................. $220.22 2.8% $247.60 4.5%
</TABLE>
Portfolio occupancy statistics by property type are summarized below:
<TABLE>
<CAPTION>
OCCUPANCY (1) (2)
-----------------------------------------------------------
12/31/99 9/30/99 6/30/99 3/31/99 12/31/98
-------- ------- ------- ------- --------
<S> <C> <C> <C> <C> <C>
Mall Anchors........................ 98.8% 97.3% 97.5% 96.1% 96.3%
Mall Stores......................... 84.8% 82.9% 81.9% 82.5% 84.1%
Mall Stores Comparable 12 Months.... 85.0% 82.9% 81.9% 82.5% 84.1%
Total Mall Portfolio................ 93.4% 91.9% 91.8% 90.8% 91.8%
Community Center Anchors............ 98.3% 97.5% 97.5% 98.7% 98.6%
Community Center Stores............. 90.8% 89.1% 89.1% 89.4% 90.2%
Total Community Centers............. 96.5% 95.5% 95.6% 96.6% 96.7%
Single Tenant Retail Properties..... 92.2% 92.2% 92.2% 92.2% 92.2%
Total Community Center Portfolio.... 96.1% 95.2% 95.2% 96.1% 96.3%
</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.
FUNDS FROM OPERATIONS
Management considers FFO to be a supplemental measure of the Company's
operating performance. FFO does not represent cash generated from operating
activities in accordance with GAAP 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 and adjusted FFO for the years ending
December 31, 1999, 1998 and 1997 (in thousands):
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
----------------------------------
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Net income available to common shareholders............... $19,508 $20,911 $25,088
Add back (less):
Real estate depreciation and amortization............ 39,408 32,151 25,283
GRT share of joint venture depreciation
and amortization.................................. 10,099 8,628 2,660
(Gain) loss on sales of depreciated property......... 293 (155)
(Gain) loss on sales of undepreciated property....... (281)
GRT share of joint venture (gain) loss on sales of
undepreciated property............................ (623)
Extraordinary item................................... 545 490
Minority interest in partnership..................... 2,316 2,623 3,022
------- ------- -------
Funds from operations..................................... $71,265 $64,803 $55,898
======= ======= =======
</TABLE>
32
<PAGE> 33
<TABLE>
<S> <C> <C> <C>
Funds from operations..................................... $71,265 $64,803 $55,898
Add back (less):
Capital expenditures................................. (6,463) (7,787) (6,858)
Straight-line of minimum rents....................... (2,319) (2,114) (1,324)
Straight-line of ground lease expense................ 46 62 67
GRT share of joint venture capital expenditures and
straight-line of minimum rents..................... (2,483) (1,776) (364)
--------- --------- ----------
Adjusted funds from operations............................ $60,046 $53,188 $47,419
======= ======= =======
</TABLE>
FFO increased 10.0%, or $6.5 million for the year ended December 31,
1999. The increase was the result of improved property net operating income of
$25.6 million and a decrease in general and administrative expense of $600,000,
partially offset by increased interest expense of $15.9 million, an increase in
non-real estate depreciation and amortization of $1.0 million, a decrease in the
FFO from unconsolidated entities of $1.3 million and an increase in preferred
stock dividends of $1.5 million.
FFO increased 15.9%, or $8.9 million for the year ended December 31,
1998. The increase was the result of improved property net operating income of
$28.7 million and an increase in the FFO from unconsolidated entities of $4.2
million, partially offset by increased interest expense of $6.7 million, and an
increase in preferred stock dividends of $15.4 million.
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
Year 2000 issues had a minimal impact on the business, operations and
financial condition of the Company. All known issues have been remedied, and we
continue to exercise caution as we approach certain milestone dates.
With respect to its Year 2000 readiness on its information technology
("IT") there were no hardware related issues. All file servers, workstations and
routers continue to function normally. We experienced two software related
issues. One application displayed the wrong date in a non-critical field. This
issue did not effect any monetary calculations, and the vendor promptly fixed
it. We also came across some other date related issues with Microsoft Access
databases. The Year 2000 analysis software had failed to identify this issue.
This was due to the fact that the dates were stored in alphanumeric text fields.
This issue has since been identified, fixed and tested across all related
databases.
With respect to its Year 2000 reliability and condition of its non-IT
systems, there were a total of three non-IT related issues. One involved an
obsolete time clock, which had been replaced but not removed from a Property.
The other two issues involved improper year displays on electro-mechanical
equipment panels. Both units continued to function properly. Both display issues
have been fixed.
The costs incurred by the Company have been less then $100,000 and the
Company has not experienced any material adverse effect due to failure of any of
its or its partner's systems. Our tenants did not report any failures.
Even though the Company has successfully completed the year-end
financial reporting with minimal impact, we continue to exercise caution as we
approach critical dates like February 29, first quarter-end and year-end 2000.
33
<PAGE> 34
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 existing leases with new leases at higher base
and/or percentage rentals if rents in 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.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company's primary market risk exposure is interest rate risk. The
Company uses interest rate protection agreements to manage interest rate risks
associated with long-term, floating rate debt. At December 31, 1999 and 1998,
approximately 62.4% and 58.3%, respectively, of the Company's debt, after giving
effect to interest rate protection agreements, bore interest at fixed rates with
weighted-average maturity of 7.0 years and 6.3 years, respectively, and
weighted-average interest rates of approximately 7.542% and 7.455%,
respectively. The remainder of the Company's debt bears interest at variable
rates with weighted-average interest rates of approximately 8.144% and 7.589%,
respectively.
At December 31, 1999 and 1998, the fair value of the Company's debt was
$841.1 million and $833.5 million, respectively, compared to its carrying
amounts of $855.3 million and $831.0 million, respectively. The Company's
combined future earnings, cash flows and fair values relating to financial
instruments are dependent upon prevalent market rates of interest, primarily
LIBOR. Based upon consolidated indebtedness and interest rates at December 31,
1999 and 1998, a 100 basis points increase in the market rates of interest would
decrease future earnings and cash flows by $3.9 million and $4.1 million,
respectively, and decrease the fair value of debt by approximately $15.6 million
and $10.7 million, respectively. A 100 basis points decrease in the market rates
of interest would increase future earnings and cash flows by $3.9 million and
$4.1 million, respectively, and increase the fair value of debt by approximately
$16.7 million and $11.3 million, respectively.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements and financial statement schedule of Glimcher
Realty Trust and the Report of Independent Accountants thereon are filed
pursuant to this Item 8 and are included in this report in Item 14.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
34
<PAGE> 35
PART III
ITEM 10. TRUSTEES AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information regarding Trustees and executive officers of the Company is
incorporated herein by reference to GRT's definitive proxy statement to be filed
with the Securities and Exchange Commission within 120 days after the year end
of the year covered by this Form 10-K with respect to its Annual Meeting of
Shareholders to be held on May 10, 2000.
ITEM 11. EXECUTIVE COMPENSATION
Information regarding executive compensation of the Company is
incorporated herein by reference to GRT's definitive proxy statement to be filed
with the Securities and Exchange Commission within 120 days after the year end
of the year covered by this Form 10-K with respect to its Annual Meeting of
Shareholders to be held on May 10, 2000.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information regarding security ownership of certain beneficial owners
and management of the Company is incorporated herein by reference to GRT's
definitive proxy statement to be filed with the Securities and Exchange
Commission within 120 days after the year end of the year covered by this Form
10-K with respect to its Annual Meeting of Shareholders to be held on May 10,
2000.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information regarding certain relationships and related transactions of
the Company is incorporated herein by reference to GRT's definitive proxy
statement to be filed with the Securities and Exchange Commission within 120
days after the year end of the year covered by this Form 10-K with respect to
its Annual Meeting of Shareholders to be held on May 10, 2000.
35
<PAGE> 36
PART IV
<TABLE>
<CAPTION>
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES AND REPORTS ON FORM 8-K
(a) (1) FINANCIAL STATEMENTS PAGE NUMBER
-------------------- -----------
<S> <C>
- Report of Independent Accountants.................................. 44
- Glimcher Realty Trust Consolidated Balance Sheets as of
December 31, 1999 and 1998......................................... 45
- Glimcher Realty Trust Consolidated Statements of Operations
for the years ended December 31, 1999, 1998 and 1997............. 46
- Glimcher Realty Trust Consolidated Statements of Shareholders'
Equity ended December 31, 1999, 1998 and 1997...................... 47
- Glimcher Realty Trust Consolidated Statements of Cash Flows
for the years ended December 31, 1999, 1998 and 1997............. 48
- Notes to Consolidated Financial Statements......................... 49
(2) FINANCIAL STATEMENT SCHEDULES
- Schedule II - Valuation and Qualifying Accounts and Reserves....... 64
- Schedule III - Real Estate and Accumulated Depreciation............ 65
- Notes to Schedule III.............................................. 74
</TABLE>
(3) EXHIBITS
3.1 Amended and Restated Declaration of Trust of Glimcher
Realty Trust. (2)
3.2 Bylaws, as amended. (2)
3.3 Amendment to the Company's Amended and Restated
Declaration of Trust. (1)
3.4 Limited Partnership Agreement of Glimcher Properties
Limited Partnership. (13)
3.5 Amendment to Limited Partnership Agreement of
Glimcher Properties Limited Partnership. (13)
3.6 Amendment No. 1 to Limited Partnership Agreement of
Glimcher Properties Limited Partnership. (13)
3.7 Amendment No. 2 to Limited Partnership Agreement of
Glimcher Properties Limited Partnership. (13)
3.8 Amendment No. 3 to Limited Partnership Agreement of
Glimcher Properties Limited Partnership. (13)
3.9 Amendment No. 4 to Limited Partnership Agreement of
Glimcher Properties Limited Partnership. (13)
4.1 Specimen Certificate for Common Shares of Beneficial
Interest. (2)
4.2 Specimen Certificate evidencing 34,000 Shares of
Series A Convertible Preferred Shares. (8)
4.3 Specimen Certificate evidencing Series A-1
Convertible Preferred Shares. (11)
4.4 Specimen Certificate evidencing 9 1/4% Series B
Cumulative Redeemable Preferred Shares of Beneficial
Interest. (11)
4.5 Specimen Certificate evidencing Series C Convertible
Preferred Shares. (13)
4.6 Specimen Certificate evidencing 56,000 Shares of
Series D Convertible Preferred Shares of Beneficial
interest. (14)
10.1 Loan Agreement between Glimcher Properties Limited
Partnership, Glimcher Realty Trust, Glimcher
Properties Corporation and The Huntington National
Bank relating to the Credit Facility. (1)
10.2 First Amendment to Loan Agreement by and among The
Huntington National Bank, Glimcher Realty Trust and
Glimcher Properties Corporation relating to the
Credit Facility. (1)
10.3 Second Amendment to Loan Agreement, First Note
Extension Agreement and First Amendment to a Credit
Line Deed of Trust by and among The Huntington
National Bank, Glimcher Properties Limited
Partnership, Glimcher Realty Trust and Glimcher
Properties Corporation relating to the Credit
Facility. (1)
10.4 Revolving Note issued by Glimcher Properties Limited
Partnership in connection with the Credit Facility.
(1)
10.5 Executed Form of Open-End Mortgage, Assignment of
Rents and Security Agreement issued by Glimcher
Properties Limited Partnership in connection with the
Credit Facility. (1)
36
<PAGE> 37
10.6 Promissory Note issued by Morgantown Mall Associates
Limited Partnership in connection with the Morgantown
Loan. (2)
10.7 Credit Line Deed of Trust and Security Agreement,
issued by Morgantown Mall Associates Limited
Partnership in connection with the Morgantown Loan.
(2)
10.8 Amended and Restated Loan Agreement among Nomura
Asset Capital Corporation, Glimcher Holdings Limited
Partnership, Glimcher Centers Limited Partnership and
Grand Central Limited Partnership relating to the
Nomura Loan. (1)
10.9 Holdings A Note, Nonrecourse Mortgage Note executed
by Glimcher Holdings Limited Partnership, Glimcher
Centers Limited Partnership and Grand Central Limited
Partnership relating to the Nomura Loan. (1)
10.10 Holdings B Note, Nonrecourse Mortgage Note executed
by Glimcher Holdings Limited Partnership, Glimcher
Centers Limited Partnership and Grand Central Limited
Partnership relating to the Nomura Loan. (1)
10.11 Centers Note, Nonrecourse Mortgage Note executed by
Glimcher Holdings Limited Partnership, Glimcher
Centers Limited Partnership and Grand Central Limited
Partnership relating to the Nomura Loan. (1)
10.12 Grand Central Note, Nonrecourse Mortgage Note
executed by Glimcher Holdings Limited Partnership,
Glimcher Centers Limited Partnership and Grand
Central Limited Partnership relating to the Nomura
Loan. (1)
10.13 ISDA Master Agreement between The Huntington National
Bank and Glimcher Properties Limited Partnership. (1)
10.14 Agreement by and between Glimcher Properties Limited
Partnership and Start Marketing, Inc. (1)
10.15 Continuing Guaranty issued by Glimcher Realty Trust
guaranteeing payment of obligations of Glimcher
Properties Limited Partnership in connection with the
Credit Facility. (1)
10.16 Continuing Guaranty issued by Glimcher Properties
Corporation guaranteeing payment of obligations of
Glimcher Properties Limited Partnership in connection
with the Credit Facility. (1)
10.17 Exemplar of Mortgage/Deed of Trust, Assignment of
Leases, Security Agreement and Fixture Filing issued
by Glimcher Holdings Limited Partnership in
connection with the Nomura Loan. (1)
10.18 Exemplar of Mortgage/Deed of Trust, Assignment of
Leases, Security Agreement and Fixture Filing and
Modification of Mortgage/Deed of Trust issued by
Glimcher Centers Limited Partnership in connection
with the Nomura Loan. (1)
10.19 Deed of Trust, Assignment of Leases, Security
Agreement and Fixture Filing and Modification of Deed
of Trust issued by Grand Central Limited Partnership
in connection with the Nomura Loan. (1)
10.20 Glimcher Realty Trust 1993 Employee Share Option
Plan. (2)
10.21 Glimcher Realty Trust 1993 Trustee Share Option Plan.
(2)
10.22 First Amended and Restated Loan Agreement dated as of
June 30, 1995, between Glimcher Properties Limited
Partnership, Glimcher Realty Trust, Glimcher
Properties Corporation, The Huntington National Bank,
Society National Bank and a Bank Group. (3)
10.23 Revolving Promissory Note dated June 30, 1995, in the
amount of $87.5 million executed by Glimcher
Properties Limited Partnership to The Huntington
National Bank. (3)
10.24 Revolving Promissory Note dated June 30, 1995, in the
amount of $87.5 million executed by Glimcher
Properties Limited Partnership to Society National
Bank. (3)
10.25 Guaranty dated June 30, 1995, issued by Glimcher
Realty Trust in favor of The Huntington National
Bank. (3)
10.26 Guaranty dated June 30, 1995, issued by Glimcher
Properties Corporation in favor of The Huntington
National Bank. (3)
10.27 Guaranty dated June 30, 1995, issued by Glimcher
Realty Trust in favor of Society National Bank. (3)
10.28 Guaranty dated June 30, 1995, issued by Glimcher
Properties Corporation in favor of Society National
Bank. (3)
10.29 Promissory Note dated as of October 26, 1995, issued
by Glimcher Properties Limited Partnership in the
amount of twenty seven million six hundred thousand
dollars ($27,600,000). (4)
37
<PAGE> 38
10.30 Exemplar Open-End Mortgage, Security Agreement and
Fixture Filing issued by Glimcher Properties Limited
Partnership in connection with the Connecticut
General Life Insurance Company Loan. (4)
10.31 Exemplar Second Mortgage and Security Agreement dated
as of October 26, 1995, issued by Glimcher Properties
Limited Partnership in connection with the
Connecticut General Life Insurance Company Loan. (4)
10.32 Exemplar Assignment of Rents and Leases dated as of
October 26, 1995, issued by Glimcher Properties
Limited Partnership in connection with the
Connecticut General Life Insurance Company Loan. (4)
10.33 Promissory Note dated as of October 26, 1995, issued
by Glimcher Properties Limited Partnership in the
amount of six million two hundred thousand dollars
($6,200,000). (4)
10.34 Promissory Note dated as of October 26, 1995, issued
by Glimcher Properties Limited Partnership in the
amount of three million six hundred thousand dollars
($3,600,000). (4)
10.35 Promissory Note dated as of October 26, 1995, issued
by Glimcher Properties Limited Partnership in the
amount of three million three hundred thousand
dollars ($3,300,000). (4)
10.36 Promissory Note dated as of October 26, 1995, issued
by Glimcher Properties Limited Partnership in the
amount of four million two hundred thousand dollars
($4,200,000). (4)
10.37 Promissory Note dated as of October 26, 1995, issued
by Glimcher Properties Limited Partnership in the
amount of five million one hundred thousand dollars
($5,100,000). (4)
10.38 Completion Guaranty dated as of October 26, 1995,
issued by Glimcher Properties Limited Partnership and
Glimcher Realty Trust in favor of Connecticut General
Life Insurance Company. (4)
10.39 Purchase and Sale Agreement by and among the Company
and Retail Property Investors, Inc., PaineWebber
Retail Property Investments, Ltd., PaineWebber Retail
Property Investments Joint Venture, PaineWebber
College Plaza, LP., and PaineWebber Marion Towne,
L.P., dated as of March 11, 1996, as amended. (6)
10.40 Securities Purchase Agreement among Partnership
Acquisition Trust II, Glimcher Properties Limited
Partnership and Glimcher Realty Trust, dated November
26, 1996. (7)
10.41 Articles Supplementary designating 40,000 Shares of
Series A Convertible Preferred Shares Beneficial
Interest. (8)
10.42 Second Amendment to First Amended and Restated Loan
Agreement. (7)
10.43 Second Amended and Restated Loan Agreement dated as
of May 15, 1997, between Glimcher Properties Limited
Partnership, Glimcher Realty Trust, Glimcher
Properties Corporation, The Huntington National Bank,
("Huntington"), KeyBank National Association
("KeyBank"), Fleet National Bank ("Fleet"), Star
Bank, National Association ("Star"), PNC Bank,
National Association ("PNC"), The Provident Bank
("Provident"), National City Bank of Columbus
("National City") and Bankers Trust Company ("Bankers
Trust"). (9)
10.44 Form of Revolving Note for each of the eight (8)
individual notes, dated May 15, 1997, and executed by
Glimcher Properties Limited Partnership. (9)
a. Huntington in the amount of $32.5 million;
b. KeyBank in the amount of $32.5 million;
c. Fleet in the amount of $20 million;
d. Star in the amount of $20 million;
e. PNC in the amount of $25 million;
f. Provident in the amount of $10 million;
g. National City in the amount of $20 million; and
h. Bankers Trust in the amount of $30 million.
10.45 Form of Guaranty for each of the eight (8) individual
guarantees, dated May 15, 1997, and issued by
Glimcher Realty Trust and Glimcher Properties
Corporation. (9)
a. Huntington to the extent of $32.5 million;
b. KeyBank to the extent of $32.5 million;
c. Fleet to the extent of $20 million;
d. Star to the extent of $20 million;
e. PNC to the extent of $25 million;
f. Provident to the extent of $10 million;
g. National City to the extent of $20 million; and
h. Bankers Trust to the extent of $30 million.
38
<PAGE> 39
10.46 Security Agreement - Interest Rate Protection
Contract dated May 15, 1997, executed by Glimcher
Properties Limited Partnership in favor of Huntington
as Administrative Agent for the lenders. (9)
10.47 Executed Form of Open-End Mortgage, Assignment of
Rents and Security Agreement for each of the three (3)
individual mortgages, dated May 15, 1997, and issued
by Glimcher Properties Limited Partnership in
connection with the Credit Facility. (9)
10.48 Severance Benefits Agreement dated June 11, 1997, by
and among Glimcher Realty Trust, Glimcher Properties
Limited Partnership and Herbert Glimcher. (13)
10.49 Severance Benefits Agreement dated June 11, 1997, by
and among Glimcher Realty Trust, Glimcher Properties
Limited Partnership and William G. Cornely. (13)
10.50 Severance Benefits Agreement dated June 11, 1997, by
and among Glimcher Realty Trust, Glimcher Properties
Limited Partnership and William R. Husted. (13)
10.51 Severance Benefits Agreement dated June 11, 1997, by
and among Glimcher Realty Trust, Glimcher Properties
Limited Partnership and Michael P. Glimcher. (13)
10.52 Severance Benefits Agreement dated June 11, 1997, by
and among Glimcher Realty Trust, Glimcher Properties
Limited Partnership and George A. Schmidt. (13)
10.53 Severance Benefits Agreement dated June 11, 1997, by
and among Glimcher Realty Trust, Glimcher Properties
Limited Partnership and Timothy C. Getz. (13)
10.54 Underwriting Agreement, dated as of September 30,
1997, among Glimcher Realty Trust, Glimcher
Properties Limited Partnership and Prudential
Securities Incorporated. (10)
10.55 Amendment No. 1 dated as of November 6, 1997 to
Securities Purchase Agreement among Partnership
Acquisition Trust II, Glimcher Properties Limited
Partnership and Glimcher Realty Trust, dated November
26, 1996. (11)
10.56 Articles Supplementary classifying 5,520,000 Shares
of beneficial interest on Series B Cumulative
Redeemable Preferred Shares of Beneficial Interest.
(13)
10.57 Articles Supplementary designating 40,000 Shares of
Series A-1 Convertible Preferred Shares of Beneficial
Interest. (13)
10.58 Articles Supplementary designating 56,000 Shares of
Series C Convertible Preferred Shares of Beneficial
Interest. (13)
10.59 Promissory Note dated as of December 17, 1997, issued
by Glimcher University Mall Limited Partnership in the
amount of sixty four million eight hundred ninety
eight thousand five hundred forty six dollars
($64,898,546). (12)
10.60 Mortgage, assignment of rents, security agreement and
fixture filing by Glimcher University Mall Limited
Partnership to Nomura Asset Capital Corporation dated
as of December 17, 1997. (12)
10.61 Glimcher Realty Trust 1997 Incentive Plan. (13)
10.62 Articles Supplementary designating 56,000 Shares of
Series D Convertible Preferred Shares of Beneficial
Interest. (14)
10.63 Exhibit A to Glimcher Properties Limited Partnership
Agreement, as amended, showing new OP Unit holders
following the purchase of Polaris Center, LLC. (13)
10.64 Promissory Note dated as of June 1, 1998, issued by
Glimcher Properties Limited Partnership in the amount
of fifty million dollars ($50,000,000). (15)
10.65 Mortgage, assignment of leases and rents and security
agreement to Nomura Asset Capital Corporation dated
as of June 1, 1998. (15)
10.66 Promissory Note dated as of June 1, 1998, issued by
Glimcher Northtown Venture, LLC in the amount of
forty million dollars ($40,000,000). (15)
10.67 Mortgage, assignment of leases and rents, security
agreement and fixture financing statement by Glimcher
Northtown Venture, LLC to Nomura Asset Capital
Corporation dated as of June 1, 1998. (15)
10.68 Promissory note dated as of July 15, 1998, issued by
Montgomery Mall Associates Limited Partnership in the
amount of forty seven million seven hundred fifty
thousand dollars ($47,750,000). (15)
10.69 Mortgage and security agreement by Montgomery Mall
Associates Limited Partnership to Lehman Brothers
Holdings, Inc. dated as of July 15, 1998. (15)
10.70 Promissory note dated as of July 15, 1998, issued by
Glimcher Properties Limited Partnership in the amount
of fifteen million dollars ($15,000,000). (15)
39
<PAGE> 40
10.71 Mortgage loan assumption agreement by and among
Weberstown Shopping Center, Center Properties,
Weberstown Mall, LLC and Aid Association for
Lutherans dated as of August 1, 1998. (15)
10.72 Promissory Note dated as of September 1, 1998, issued
by Morgantown Mall Associates Limited Partnership in
the amount of fifty eight million three hundred fifty
thousand dollars ($58,350,000). (15)
10.73 Deed of trust, assignment of leases and rents and
security agreement by Morgantown Mall Associates
Limited Partnership to Michael B. Keller (Trustee)
for the use and benefit of The Capital Company of
America, LLC dated as of September 1, 1998. (15)
10.74 Promissory Note dated as of September 15, 1998,
issued by Glimcher Lloyd Venture, LLC in the amount
of one hundred thirty million dollars ($130,000,000).
(15)
10.75 Mortgage loan cooperation agreement to Goldman Sachs
Mortgage Company dated as of September 15, 1998. (15)
10.76 Promissory Note dated as of September 15, 1998,
issued by Glimcher Properties Limited Partnership in
the amount of ten million dollars ($10,000,000). (15)
10.77 Promissory Note dated as of October 13, 1998, issued
by Glimcher Properties Limited Partnership in the
amount of fourteen million dollars ($14,000,000).
(15)
10.78 Mortgage, assignment of rents and security agreement
by Glimcher Development Corporation to The Huntington
National Bank dated as of October 13, 1998. (15)
10.79 Mortgage, assignment of rents and security agreement
by Glimcher Properties Limited Partnership to The
Huntington National Bank dated as of October 13,
1998. (15)
10.80 Deed of Trust, assignment of rents and security
agreement by Glimcher Properties Limited Partnership
to The Huntington National Bank dated as of October
13, 1998. (15)
10.81 Deed of Trust, assignment of rents and security
agreement by Glimcher Properties Limited Partnership
to The Huntington National Bank dated as of October
13, 1998. (15)
10.82 Mortgage loan to Bankers Trust Company for Ohio
property, dated as of October 30, 1998. (15)
10.83 Mortgage loan to Bankers Trust Company for Kansas
property, dated as of October 30, 1998. (15)
10.84 Mortgage loan to Bankers Trust Company for New York
property, dated as of October 30, 1998. (15)
10.85 Promissory Note dated as of November 1, 1998, issued
by Glimcher Properties Limited Partnership in the
amount of nineteen million dollars ($19,000,000).
(15)
10.86 Deed of Trust and security agreement by Grand Central
Limited Partnership for the benefit of Lehman
Brothers Holdings Inc. dated as of January 21, 1999.
(16)
10.87 Promissory Note dated as of January 21, 1999, issued
by Grand Central Limited Partnership in the amount of
fifty two million five hundred thousand dollars
($52,500,000). Deed of Trust and Security Agreement
by Weberstown Mall, LLC for the benefit of Lehman
Brothers Holdings Inc. dated as of April 26, 1999.
(16)
10.88 Deed of Trust Security Agreement by Weberstown Mall,
LLC for the benefit of Lehman Brothers Holding Inc.
dated as of April 26,1999. (17)
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). (17)
10.90 Term Note dated as of June 17, 1999, issued by
Glimcher Properties Limited Partnership in the amount
of twenty two million five hundred thousand dollars
($22,500,000). (17)
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. (17)
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. (17)
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. (17)
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. (17)
40
<PAGE> 41
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). (17)
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). (17)
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. (17)
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. (17)
10.99 Mortgage Modification Agreement by Glimcher
Properties Limited Partnership for the benefit of
Lehman Brothers Holdings Inc. dated as of April 28,
1999. (17)
10.100 Mortgage Modification Agreement by Glimcher
Development Corporation for the benefit of Lehman
Brothers Holdings, Inc. dated as of April 28, 1999.
(17)
10.101 Mortgage Modification Agreement by Glimcher
Properties Limited Partnership for the benefit of
Lehman Brothers Holdings Inc. dated as of April 28,
1999. (17)
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). (17)
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"). (17)
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: (17)
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 of 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: (17)
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. (17)
41
<PAGE> 42
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.
(17)
10.108 Mortgage, Security Agreement and Financing Statement
by Glimcher Properties Limited Partnership to Jackson
National Life Insurance dated as of June 28, 1999.
10.109 Deed of Trust, Security Agreement, Fixture Filing and
Financing Statement by Glimcher Properties Limited
Partnership to Jackson National Life Insurance dated
as of June 28, 1999.
10.110 Mortgage, Security Agreement Fixture Filing and
Financing Statement by Glimcher Properties Limited
Partnership to Jackson National Life Insurance dated
as of June 28, 1999.
10.111 Deed of Trust, Security Agreement, Fixture Filing and
Financing Statement by Glimcher Properties Limited
Partnership to Jackson National Life Insurance dated
as of June 28, 1999.
10.112 Deed of Trust, Security Agreement, Fixture Filing and
Financing Statement by Glimcher Properties Limited
Partnership to Jackson National Life Insurance dated
as of June 28, 1999.
10.113 Promissory Note dated as of June 28, 1999, issued by
Glimcher Properties Limited Partnership in the amount
of ninety million dollars ($90,000,000).
10.114 Deed to Secure Debt and Security Agreement by
Glimcher Properties Limited Partnership to Jackson
National Life Insurance dated as of October 12, 1999.
21.1 Subsidiaries of the Registrant
23.1 Consent of Independent Accountants
27 Financial Data Schedule. (5)
(1) Incorporated by reference to GRT's Annual Report on Form 10-K
for the fiscal year ended December 31, 1994, filed with the
Securities and Exchange Commission on March 21, 1995.
(2) Incorporated by reference to GRT's Registration Statement No.
33-69740.
(3) Incorporated by reference to GRT's Form 8-K filed with the
Securities and Exchange Commission on July 26, 1995.
(4) Incorporated by reference to GRT's Form 8-K filed with the
Securities and Exchange Commission on December 13, 1995.
(5) This exhibit is filed for EDGAR filing purposes only.
(6) Incorporated by reference to GRT's Form 8-K filed with the
Securities and Exchange Commission on November 7, 1996.
(7) Incorporated by reference to GRT's Annual Report Form 10-K for
the fiscal year ended December 31, 1996, filed with the
Securities and Exchange Commission on March 25, 1997.
(8) Incorporated by reference to GRT's Form 8-K filed with the
Securities and Exchange Commission on February 5, 1997.
(9) Incorporated by reference to GRT's Form 8-K filed with the
Securities and Exchange Commission on June 23, 1997.
(10) Incorporated by reference to GRT's Form 8-K filed with the
Securities and Exchange Commission on November 4, 1997.
(11) Incorporated by reference to GRT's Form 8-K filed with the
Securities and Exchange Commission on November 14, 1997.
(12) Incorporated by reference to GRT's Form 8-K filed with the
Securities and Exchange Commission on December 31, 1997.
(13) Incorporated by reference to GRT's Annual Report Form 10-K for
the fiscal year ended December 31, 1997, filed with the
Securities and Exchange Commission on March 31, 1998.
(14) Incorporated by reference to GRT's Quarterly Report Form 10-Q
for the period ended June 30, 1998, filed with the Securities
and Exchange Commission on August 11, 1998.
(15) Incorporated by reference to GRT's Annual Report Form 10-K for
the Fiscal year ended December 31, 1998, filed with the
Securities and Exchange Commission on March 30, 1999.
(16) Incorporated by reference to GRT's Quarterly Report Form 10-Q
for the period ended March 31, 1999, filed with the Securities
and Exchange Commission on May 14, 1999.
(17) Incorporated by reference to GRT's Quarterly Report Form 10-Q
for the period ended June 30, 1999, filed with the Securities
and Exchange Commission on August 12, 1999.
(b) REPORTS ON FORM 8-K
During the fiscal year ended December 31, 1999, the Company filed the
following Reports on Form 8-K.
- Form 8-K dated March 12, 1999, filed March 12, 1999.
42
<PAGE> 43
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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
/s/ Herbert Glimcher
-------------------------------------
Herbert Glimcher
Chairman of the Board and Chief Executive Officer
March 2, 2000
-------------
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been executed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Herbert Glimcher Chairman of the Board, March 2, 2000
- --------------------------------- Chief Executive Officer (Principal
Herbert Glimcher Executive Officer) and Trustee
/s/ Michael P. Glimcher President and Trustee March 2, 2000
- ---------------------------------
Michael P. Glimcher
/s/ William G. Cornely Executive Vice President,
- --------------------------------- Chief Operating Officer, March 2, 2000
William G. Cornely Chief Financial Officer, Treasurer
and Trustee
/s/ George A. Schmidt Executive Vice President, March 2, 2000
- --------------------------------- General Counsel, Secretary
George A. Schmidt and Trustee
/s/ Wayne S. Doran Member, Board of Trustees March 2, 2000
- ---------------------------------
Wayne S. Doran
/s/ Philip G. Barach Member, Board of Trustees March 2, 2000
- ---------------------------------
Philip G. Barach
/s/ Oliver Birckhead Member, Board of Trustees March 2, 2000
- ---------------------------------
Oliver Birckhead
/s/ E. Gordon Gee Member, Board of Trustees March 2, 2000
- ---------------------------------
E. Gordon Gee
/s/ David J. Glimcher Member, Board of Trustees March 2, 2000
- ---------------------------------
David J. Glimcher
/s/ Alan R. Weiler Member, Board of Trustees March 2, 2000
- ---------------------------------
Alan R. Weiler
/s/ Harvey Weinberg Member, Board of Trustees March 2, 2000
- ---------------------------------
Harvey Weinberg
</TABLE>
43
<PAGE> 44
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Trustees and Shareholders
of Glimcher Realty Trust:
In our opinion, the consolidated financial statements listed in the accompanying
index appearing under Item 14 (a) (1) on page 36 present fairly, in all material
respects, the financial position of Glimcher Realty Trust and its subsidiaries
at December 31, 1999 and 1998, and the results of their operations and their
cash flows for each of the three years in the period ended December 31, 1999 in
conformity with accounting principles generally accepted in the United States.
In addition, in our opinion, the financial statement schedules listed in the
accompanying index appearing under Item 14 (a) (2) on page 36 present fairly, in
all material respects, the information set forth therein when read in
conjunction with the related consolidated financial statements. These financial
statements and the financial statement schedules are the responsibility of the
Company's management; our responsibility is to express an opinion on these
financial statements and financial statement schedules based on our audits. We
conducted our audits of these statements in accordance with auditing standards
generally accepted in the United States, which require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
PricewaterhouseCoopers LLP
Columbus, Ohio
February 9, 2000
44
<PAGE> 45
GLIMCHER REALTY TRUST
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT SHARE AND PAR VALUE AMOUNTS)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------
1999 1998
---- ----
<S> <C> <C>
Investment in real estate:
Land ................................................................ $ 182,559 $ 171,266
Buildings, improvements and equipment ............................... 1,358,901 1,240,121
Developments in progress:
Land ............................................................... 8,221 6,183
Developments ....................................................... 8,771 11,071
----------- -----------
1,558,452 1,428,641
Less accumulated depreciation ....................................... 183,487 137,229
----------- -----------
Net investment in real estate ...................................... 1,374,965 1,291,412
Cash and cash equivalents .............................................. 9,039 8,949
Cash in escrow ......................................................... 24,553 11,327
Investment in unconsolidated entities .................................. 121,777 200,205
Tenant accounts receivable, net ........................................ 37,167 29,050
Deferred expenses, net ................................................. 12,173 10,742
Prepaid and other assets ............................................... 6,376 6,810
----------- -----------
$ 1,586,050 $ 1,558,495
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Mortgage notes payable ................................................. $ 907,229 $ 830,795
Notes payable .......................................................... 125,000 163,000
Accounts payable and accrued expenses .................................. 45,180 32,143
Distributions payable .................................................. 23,018 18,126
----------- -----------
1,100,427 1,044,064
Commitments and contingencies
Minority interest in partnership ....................................... 29,963 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
December 31, 1999 and 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, 23,764,879 and
23,711,098 shares issued and outstanding as of December 31,
1999 and 1998, respectively ....................................... 238 237
Additional paid-in capital ........................................... 353,856 353,117
Distributions in excess of accumulated earnings ...................... (116,384) (90,229)
----------- -----------
$ 1,586,050 $ 1,558,495
=========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
45
<PAGE> 46
GLIMCHER REALTY TRUST
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
------------------------------------
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Revenues:
Minimum rents ............................... $ 155,272 $ 131,918 $ 107,895
Percentage rents ............................ 7,356 4,989 3,499
Tenant recoveries ........................... 50,392 37,928 24,186
Other ....................................... 13,990 9,256 4,558
--------- --------- ---------
Total revenues ............................ 227,010 184,091 140,138
--------- --------- ---------
Operating expenses:
Real estate taxes ........................... 21,032 16,662 10,868
Recoverable operating expenses .............. 35,324 24,866 15,515
--------- --------- ---------
56,356 41,528 26,383
Other operating expenses ..................... 5,770 3,296 3,165
--------- --------- ---------
Total operating expenses .................. 62,126 44,824 29,548
--------- --------- ---------
Property net operating income ............. 164,884 139,267 110,590
Depreciation and amortization .................... 44,097 35,825 27,869
General and administrative ....................... 9,417 10,011 8,286
(Loss) gain on sales of properties/outparcels .... (12) 155
Interest income .................................. 1,534 1,883 1,032
Interest expense ................................. 64,333 48,823 42,146
Equity in income (loss) of unconsolidated entities (4,570) (2,388) (661)
Minority interest in operating partnership ....... 2,316 2,623 3,022
--------- --------- ---------
Income before extraordinary item ................. 41,673 41,480 29,793
Extraordinary item:
Extinguishment of debt prepayment fees and
write-off of deferred financing fees ....... 545 490
--------- --------- ---------
Net income ................................ 41,128 40,990 29,793
Preferred stock dividends ........................ 21,620 20,079 4,705
--------- --------- ---------
Net income available to common shareholders $ 19,508 $ 20,911 $ 25,088
========= ========= =========
Earnings per share before extraordinary item
(basic and diluted) ............................ $ 0.84 $ 0.90 $ 1.12
Extraordinary item ............................... 0.02 0.02
--------- --------- ---------
Earnings per share (basic and diluted) ........... $ 0.82 $ 0.88 $ 1.12
========= ========= =========
Cash distributions declared per common share of
beneficial interest ............................. $ 1.9232 $ 1.9232 $ 1.9232
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
46
<PAGE> 47
GLIMCHER REALTY TRUST
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
For the Years Ended December 31, 1999, 1998, and 1997
(dollars in thousands, except share and per share amounts)
<TABLE>
<CAPTION>
COMMON SHARES OF
SERIES A-1 AND D SERIES B BENEFICIAL INTEREST ADDITIONAL
CONVERTIBLE CUMULATIVE ------------------- PAID-IN
PREFERRED SHARES PREFERRED SHARES SHARES AMOUNT CAPITAL
------------ ------------ ---------- ----- -----------
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1996 ................... $ 34,000 21,888,931 $219 $ 316,673
------------ ---------- ----- -----------
Distributions declared, $1.9232 per share ...
Proceeds from Distribution Reinvestment
and Share Purchase Plan .................. 11,211 232
Other issuance of shares .................... 19,818 342
Proceeds from Series B public offering ...... $ 127,950 (4,878)
Net proceeds from public offering ........... 1,750,000 18 37,828
Preferred equity ............................ 56,000
Preferred stock dividends declared ..........
Net income ..................................
Transfer to minority interest in partnership (1,764)
------------ ------------ ---------- ----- -----------
Balance, December 31, 1997 ................... 90,000 127,950 23,669,960 237 348,433
------------ ------------ ---------- ----- -----------
Distributions declared, $1.9232 per share ..
Proceeds from Distribution Reinvestment
and Share Purchase Plan ................... 19,103 275
Other issuance of shares .................... 16,921 209
OP unit conversion .......................... 5,114 16
Additional OP units issued .................. 4,235
Preferred stock dividends declared ..........
Net income ..................................
Transfer to minority interest in partnership (51)
------------ ------------ ---------- ----- -----------
Balance, December 31, 1998 ................... 90,000 127,950 23,711,098 237 353,117
------------ ------------ ---------- ----- -----------
Distributions declared, $1.9232 per share ...
Proceeds from Distribution Reinvestment
and Share Purchase Plan ................... 31,875 1 501
401(k) Shares issued ........................ 14,728 229
OP unit conversion .......................... 7,178 115
Preferred stock dividends declared ..........
Net income ..................................
Transfer to minority interest in partnership
- ------------------------------------------------------------------------------------------------------------------------------------
(106)
------------ ------------ ---------- ----- -----------
Balance, December 31, 1999 ................... $ 90,000 $ 127,950 23,764,879 $ 238 $ 353,856
============ ============ ========== ===== ===========
<CAPTION>
DISTRIBUTIONS
IN EXCESS OF
ACCUMULATED
EARNINGS TOTAL
-------- ---------
<S> <C> <C>
Balance, December 31, 1996 ................... $ (47,681) $303,211
--------- --------
Distributions declared, $1.9232 per share ... (42,972) (42,972)
Proceeds from Distribution Reinvestment
and Share Purchase Plan ..................
232
Other issuance of shares .................... 342
Proceeds from Series B public offering ...... 123,072
Net proceeds from public offering ........... 37,846
Preferred equity ............................ 56,000
Preferred stock dividends declared .......... (4,705) (4,705)
Net income .................................. 29,793 29,793
Transfer to minority interest in partnership (1,764)
--------- --------
Balance, December 31, 1997 ................... (65,565) 501,055
--------- --------
Distributions declared, $1.9232 per share .. (45,575) (45,575)
Proceeds from Distribution Reinvestment
and Share Purchase Plan ................... 275
Other issuance of shares .................... 209
OP unit conversion .......................... 16
Additional OP units issued .................. 4,235
Preferred stock dividends declared .......... (20,079) (20,079)
Net income .................................. 40,990 40,990
Transfer to minority interest in partnership (51)
--------- --------
Balance, December 31, 1998 ................... (90,229) 481,075
--------- --------
Distributions declared, $1.9232 per share ... (45,663) (45,663)
Proceeds from Distribution Reinvestment
and Share Purchase Plan ................... 502
401(k) Shares issued ........................ 229
OP unit conversion .......................... 115
Preferred stock dividends declared .......... (21,620) (21,620)
Net income .................................. 41,128 41,128
Transfer to minority interest in partnership (106)
--------- --------
Balance, December 31, 1999 ................... $(116,384) $455,660
========= ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
47
<PAGE> 48
GLIMCHER REALTY TRUST
CONSOLIDATED STATEMENTS OF CASH FLOWS
(dollars in thousands)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
-----------------------------------------
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Cash flows from operating activities:
Net income................................................... $ 41,128 $40,990 $29,793
Adjustments to reconcile net income to net cash provided
by operating activities:
Provision for doubtful accounts.......................... 2,635 1,670 2,242
Depreciation and amortization............................ 44,097 35,825 27,869
Equity in (income) loss of unconsolidated entities....... 4,570 2,388 661
Other non-cash expenses.................................. 537 776
Minority interest in partnership......................... 2,316 2,623 3,022
Loss (gains) on sales of properties/outparcels........... 12 (155)
Extraordinary loss on long term debt extinguishment...... 545 490
Net changes in operating assets and liabilities:
Tenant accounts receivable, net.......................... (6,746) (7,217) (4,759)
Deferred expenses, prepaid and other assets.............. 433 (2,723) 1,065
Accounts payable and accrued expenses.................... 8,130 2,213 (4,108)
---------- ----------- -----------
Net cash provided by operating activities............. 97,120 76,796 56,406
---------- ----------- -----------
Cash flows from investing activities:
Additions to investment in real estate....................... (25,334) (32,634) (26,909)
Acquisition of properties.................................... (296,393) (122,579)
Proceeds from (investment in) unconsolidated entities........ 13,570 (75,581) (77,505)
Proceeds from sales of properties/outparcels................. 17,890 253
(Payments to) withdrawals from cash in escrow................ (13,121) 379 (1,875)
Additions to deferred expenses, prepaid and other assets..... (5,626) (4,786) (16,208)
---------- ----------- -----------
Net cash used in investing activities................. (12,621) (409,015) (244,823)
---------- ----------- -----------
Cash flows from financing activities:
(Payments to) proceeds from revolving line of credit, net.... (38,000) 73,000 (13,000)
Proceeds from issuance of mortgages and notes payable........ 217,825 390,006 76,538
Principal payments on mortgage and notes payable............. (196,641) (62,422) (43,497)
Net proceeds from issuance of shares......................... 501 484 38,418
Net proceeds from issuance of redeemable preferred shares... 179,072
Cash distributions........................................... (68,094) (67,334) (50,648)
---------- ----------- -----------
Net cash (used in) provided by financing activities... (84,409) 333,734 186,883
---------- ----------- -----------
Net change in cash and cash equivalents....................... 90 1,515 (1,534)
Cash and cash equivalents, at beginning of period............. 8,949 7,434 8,968
---------- ----------- -----------
Cash and cash equivalents, at end of period................... $ 9,039 $ 8,949 $ 7,434
========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
48
<PAGE> 49
GLIMCHER REALTY TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
1. ORGANIZATION AND BASIS OF PRESENTATION
Organization
Glimcher Realty Trust (the "Company" or "GRT") is a fully-integrated,
self-administered and self-managed Maryland real estate investment trust
("REIT"), which owns, leases, manages and develops a portfolio of retail
properties (the "Property" or "Properties") consisting of regional malls
("Malls") and community shopping centers (including single tenant retail
properties) ("Community Centers"). At December 31, 1999, the Company, managed
and leased a total of 126 Properties, 116 of which were wholly owned and 10 of
which were partially owned in joint ventures, consisting of 22 Malls and 104
Community Centers. Glimcher Properties Limited Partnership (the "Operating
Partnership") also holds substantially all of the economic interest in Glimcher
Development Corporation ("GDC"), a non-qualified REIT subsidiary which provides
development, construction, leasing and legal services to the Company, ventures
in which the Company has an ownership interest and to third parties.
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 December 31,
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),
one Colorado limited liability company ("Olathe Mall 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. Inter-entity balances and transactions have been
eliminated.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting periods. For example, estimates are used to establish common area
maintenance, real estate tax and insurance tenant accounts receivable,
percentage rents and accounts receivable reserves. The Company bases its
estimates on historical sales performance of tenants, changes in Property
occupancy, mix of tenants and industry trends of tenant credit risk. Actual
results could differ from those estimates.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Investment in Real Estate
Real estate assets including acquired assets, are stated at cost. Costs
incurred for the development, construction and improvement of Properties are
capitalized, including direct costs incurred by GRT for these activities.
Interest and real estate taxes incurred during construction periods are
capitalized and amortized on the same basis as the related assets.
49
<PAGE> 50
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
Depreciation expense is computed using the straight-line method and
estimated useful lives for building and improvements of 40 years and equipment
and fixtures of five to 10 years. Expenditures for leasehold improvements and
construction allowances paid to tenants are capitalized and amortized over the
remaining life of the initial terms of each lease. Maintenance and repairs are
charged to expense when incurred.
Management evaluates the recoverability of its investment in real
estate assets in accordance with Statement of Financial Accounting Standards
("SFAS") No. 121, "Accounting for Impairment of Long-Lived Assets and Long-Lived
Assets To Be Disposed Of. " This statement requires that long-lived assets be
reviewed for impairment whenever events or changes in circumstances indicate
that full asset recoverability is questionable. Management's assessment of
recoverability of its real estate assets under this statement includes, but is
not limited to, recent operating results, expected net operating cash flow and
management's plans for future operations.
Cash and Cash Equivalents
For purposes of the statements of cash flows, all highly liquid
investments purchased with original maturities of three months or less are
considered to be cash equivalents. At December 31, 1999 and 1998, cash and cash
equivalents primarily consisted of overnight purchases of debt securities and
mortgage pass-through securities. The carrying amounts approximate fair value.
Cash in Escrow
Cash in escrow consists primarily of cash held for real estate taxes,
insurance and Property reserves for maintenance and expansion or leasehold
improvements as required by certain of the loan agreements.
Deferred Expenses
Deferred expenses consist principally of financing fees, leasing
commissions paid to third parties and direct costs related to leasing
activities. These costs are amortized on a straight-line basis over the terms of
the respective agreements. Deferred expenses in the accompanying consolidated
balance sheets are shown net of accumulated amortization of $7,320 and $11,927
as of December 31, 1999 and 1998, respectively.
Derivative Financial Instruments
Gains and losses related to interest rate swaps, caps, collars and
floors are recognized as an adjustment to interest expense over the life of the
agreement. Any premiums paid are recorded as assets and amortized over the life
of the underlying derivative agreement.
Revenue Recognition
Minimum rents are recognized on an accrual basis over the terms of the
related leases which approximate a straight-line basis. Percentage rents are
recognized on an accrual basis. Recoveries from tenants for taxes, insurance and
other shopping center operating expenses are recognized as revenues in the
period the applicable costs are incurred.
An allowance for doubtful accounts has been provided against the
portion of tenant accounts receivable which is estimated to be uncollectible.
Tenant accounts receivable in the accompanying balance sheets are shown net of
an allowance for doubtful accounts of $2,606, $3,995 and $5,030 as of December
31, 1999, 1998 and 1997, respectively.
50
<PAGE> 51
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
Interest Costs Year Ended December 31,
------------------------------
1999 1998 1997
-------- -------- --------
Interest capitalized........................ $ 5,823 $ 6,666 $ 3,053
Interest expense............................ 64,333 48,306 41,370
Amortization of interest rate buydown....... 517 776
-------- -------- --------
Total interest costs........................ $ 70,156 $ 55,489 $ 45,199
======== ======== ========
Advertising Costs
The Company promotes its Properties on behalf of its tenants through
various media. Advertising is expensed as incurred and the majority of the
advertising expense is recovered from the tenants through lease obligations. Net
advertising expense was $278, $79 and $269 for the years ended December 31,
1999, 1998 and 1997, respectively.
Income Taxes
GRT files as a REIT under Sections 856-860 of the Internal Revenue Code
(the "Code"). In order to qualify as a REIT, GRT is required to distribute at
least 95.0% of its taxable income to shareholders and to meet certain asset and
income tests as well as certain other requirements. GRT will generally not be
liable for federal income taxes, provided it satisfies the necessary
distribution requirements. Even as a qualified REIT, the Company is subject to
certain state and local taxes on its income and property. The Company has an
equity investment in GDC, which is a non-qualified REIT subsidiary under Section
856 (I) of the Code. For federal income tax purposes, GDC is treated as a
separate entity and taxed as a regular C-Corporation.
Supplemental Disclosure of Non-Cash Financing and Investing Activities
Accounts payable of $1,794, $3,390 and $5,991 were accrued for real
estate improvements and other assets as of December 31, 1999, 1998 and 1997,
respectively.
GRT, through the Operating Partnership, acquired four Malls during the
year ended December 31, 1998. The purchase price included cash of $296,393 and
the assumption of net liabilities of $27,539. GRT, through the Operating
Partnership, acquired one Mall during the year ended December 31, 1997. The
purchase price included cash of $122,579 and the assumption of net liabilities
of $606.
Share distributions of $11,425, $11,400 and $11,381 and Operating
Partnership distributions of $1,426, $1,429 and $1,252 had been declared but not
paid as of December 31, 1999, 1998 and 1997, respectively. Series A-1
convertible preferred share distributions of $950, $883 and $734 had been
declared but not paid as of December 31, 1999, 1998 and 1997, respectively.
Series D convertible preferred share distributions of $6,259, $1,454 and $355
had been declared but not paid as of December 31, 1999, 1998 and 1997,
respectively. Series B cumulative preferred share distributions of $2,959,
$2,959 and $357 had been declared but not paid as of December 31, 1999, 1998 and
1997, respectively.
Amounts paid for interest were $73,880, $56,503 and $44,935 in 1999,
1998 and 1997, respectively. Amounts paid for state and local income taxes were
$895, $1,017 and $878 in 1999, 1998 and 1997, respectively.
Reclassifications
Certain reclassifications of prior period amounts have been made in the
financial statements to conform to the 1999 presentation.
51
<PAGE> 52
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
3. MORTGAGE NOTES PAYABLE AS OF DECEMBER 31, 1999 AND 1998 CONSIST OF THE FOLLOWING:
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............. 73,052 76,000 7.625% 7.625% (a) 76,000 Aug. 1, 2000
Grand Central L.P................ 52,105 7.180% (b) 46,065 Feb. 1, 2009
Morgantown Mall Associates L.P... 57,656 58,214 6.890% 6.890% (b) (c) (c)
University Mall L.P.............. 69,910 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.. 47,133 47,602 6.740% 6.740% (b) (e) (e)
Weberstown Mall, LLC ............ 20,407 11,520 7.430% 8.800% (b) 19,151 May 1, 2006
Glimcher Lloyd Venture, LLC...... 130,000 130,000 (f) (f) (a) 130,000 Oct. 11, 2001
Great Plains MetroMall, LLC...... 54,892 (g) (b) 54,461 July 1, 2000
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...... 89,420 (h) (b) 63,013 July 1, 2009
Other Mortgage Notes......... 60,458 101,709 (i) (i) (b) 51,902 (j)
Other Bridge Facilities...... 43,725 89,000 (k) (k) (a) 43,725 (l)
Tax Exempt Bonds............. 19,000 19,000 6.000% 6.000% (m) Nov. 1, 2028
Construction Loans........... 34,471 32,055 (n) (n) (a), (b) (o)
--------- ---------
Total Mortgage Notes Payable..... $ 907,229 $ 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 (7.720% at December 31, 1999 and 6.790% at December 31, 1998).
(g) Interest rate of LIBOR plus 250 basis points (7.938% at December 31,
1999).
(h) Interest rate of LIBOR plus 210 basis points (8.179% at December 31,
1999); (converted to fixed rate of 8.460% effective March 1, 2000).
(i) Interest rates ranging from 7.875% to 9.125%.
(j) Final maturity dates ranging from March 2000 to April 2016.
(k) Interest rates of LIBOR plus 200-275 basis points (8.500% -9.227% at
December 31, 1999 and 7.147% - 11.375% at December 31, 1998).
(l) Final maturity dates ranging from April to June 2000.
(m) The loan requires semi-annual payments of interest.
(n) Interest rates ranging from 8.376% to 8.476% at December 31, 1999 and
7.626% at December 31, 1998.
(o) Final maturity dates ranging from April 2000 to February 2001.
All mortgage notes payable are collateralized by certain Properties
owned by the respective partnerships with net book value of $1,217,603 and
$1,145,078 at December 31, 1999 and 1998, respectively. Certain of the loans
contain financial covenants regarding minimum net operating income and coverage
ratios.
Principal maturities (excluding extension options) on mortgage notes
payable during the five years subsequent to December 31, 1999, are as follows:
2000-$260,060; 2001-$206,899; 2002-$55,716; 2003-$46,150; 2004-$6,569;
thereafter-$334,783.
4. NOTES PAYABLE
On June 17, 1999, the Company, through the Operating Partnership,
amended its existing revolving line of
52
<PAGE> 53
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
credit (the "Credit Facility"). The amended Credit Facility provides the Company
with the ability to borrow up-to $170,000, extends the term through January 31,
2001, is collateralized with first mortgage liens on three Properties and
currently bears interest at a rate equal to LIBOR plus 190 basis points per
annum (7.723% at December 31, 1999 and 6.813% at December 31, 1998). Payments
due under the Credit Facility are guaranteed by GRT and the Operating
Partnership. During 1999 and 1998, the weighted-average interest rate was 7.112%
and 7.241%, respectively.
The Credit Facility, as amended, contains customary covenants,
representations, warranties and events of default, including maintenance of a
specified minimum net worth requirement, loan to value ratios, project costs to
asset value ratios, total debt to asset value ratios and EBITDA to total debt
service, restrictions on the incurrence of additional indebtedness and approval
of anchor leases with respect to the Properties which secure the Credit
Facility.
At December 31, 1999, the balance outstanding on the Credit Facility
was $125,000. In addition, $1,350 represents a holdback on the available balance
of the Credit Facility for letters of credit issued under the Credit Facility.
As of December 31, 1999, the unused balance of the Credit Facility available to
the Company was $43,650.
5. SERIES A-1, B, D AND E PREFERRED SHARES
The Company's Declaration of Trust authorizes the Company to issue up
to an aggregate 100,000,000 shares of the Company, consisting of common shares
or one or more series of preferred shares of beneficial interest.
On November 27, 1996, the Company sold 34,000 of its Series A
convertible preferred shares. On November 7, 1997, the Series A preferred shares
were exchanged for Series A-1 preferred shares (the "A-1 Preferred Shares")
having substantially the same terms. Distributions on the A-1 Preferred Shares
are paid quarterly based upon 90-day LIBOR plus a spread based on leverage
(10.929% at December 31, 1999 and 10.163% at December 31, 1998). The Company may
redeem the A-1 Preferred Shares at any time, prior to conversion, at its option
without any penalty or premiums. Beginning in November 2001, the A-1 Preferred
Shares are convertible into the number of shares obtained by dividing the
liquidation preference by the conversion price per share. The conversion price
per share is the product of (i) the average market price per share over the 30
trading days prior to the conversion, multiplied by (ii) the applicable
conversion percentage which begins at 90.0% and decreases annually 5.0%, 5.0%
and 10.0% to 70.0%. In the event of default, an additional distribution of
$40.00 per share per annum shall accrue on each A-1 Preferred Share.
Additionally, the holders of a majority of the A-1 Preferred Shares shall have
the exclusive right, voting separately as a class together with the holders of
other shares of convertible preferred shares to elect two additional trustees
for one-year terms until such time as the default no longer exists and shall
also have the right to commence conversion.
On December 5, 1997, the Company sold 56,000 shares of its Series C
convertible preferred shares. On June 4, 1998, the Series C convertible
preferred shares were converted to Series D convertible preferred shares (the "D
Preferred Shares") having substantially the same terms. Terms of the D Preferred
Shares are substantially the same as the A-1 Preferred Shares except that the D
Preferred Shares are convertible beginning in December 2002.
On November 17, 1997, the Company completed a $120,000 public offering
of 4,800,000 shares of 9 1/4% Series B cumulative preferred shares of beneficial
interest (the "B Preferred Shares"). On November 25, 1997, the Company sold an
additional 318,000 B Preferred Shares as a result of the underwriters exercising
the over-allotment option granted to them. Aggregate net proceeds of the
offering were $123,072. Distributions on the B Preferred Shares are payable
quarterly in arrears. The Company generally may redeem the B Preferred Shares
anytime on or after November 15, 2002, at a redemption price of $25.00 per
share, plus accrued and unpaid distributions. The
53
<PAGE> 54
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
redemption price (other than the portion thereof consisting of accrued and
unpaid distributions) is payable solely out of the sale proceeds of other
capital shares of the Company, which may include other series of preferred
shares. The Company contributed the proceeds to the Operating Partnership in
exchange for preferred units. The Operating Partnership pays a preferred
distribution to the Company equal to the dividends paid on the B Preferred
Shares.
On March 9, 1999, the Board of Trustees adopted a Preferred Share
Purchase Plan (the "Plan") pursuant to which a distribution will be made of one
preferred share purchase right (a "Right") for each outstanding common share.
The distribution was made on March 22, 1999, to the shareholders of record at
the close of business on that date. Each Right entitles the registered holder to
purchase from the Company one one-hundredth of a Series E Junior Participating
Preferred Share of the Company, par value $0.01 per share (the "Preferred
Shares"), at a price of $55.00 per one one-hundredth of a Preferred Share (the
"Purchase Price"), subject to adjustment. The Rights will become exercisable in
the event that any person or group acquires or announces its intention to
acquire, beneficial ownership of 15.0% or more of the outstanding common shares
of the Company (an "Acquiring Person"). Alternatively each Right holder, except
the Acquiring Person, will have the right to receive upon exercise that number
of common shares having a market value of two times the Purchase Price of the
Right. At any time before any person or group becomes an Acquiring Person, the
Board of Trustees may redeem the Rights at a price of $0.01 per Right at which
time the right to exercise the Rights will terminate. At any time after a person
or group becomes an Acquiring Person, the Board of Trustees may exchange the
Rights at an exchange ratio of one common share or one Preferred Share per
Right. The Plan expires on March 9, 2009.
6. DERIVATIVE FINANCIAL INSTRUMENTS
The Company uses derivative financial instruments to manage interest
rate risks associated with long-term, floating rate debt. 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 also 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. The Company is exposed to
credit loss in the event of non-performance by the obligors. However, the
Company does not anticipate non-performance by the obligors.
7. RENTALS UNDER OPERATING LEASES
GRT receives rental income from the leasing of retail shopping center
space under operating leases with expiration dates through the year 2025. The
minimum future base rentals under non-cancelable operating leases as of December
31, 1999 are as follows:
2000............................ $ 152,221
2001............................ 141,920
2002............................ 131,146
2003............................ 115,615
2004............................ 99,927
Thereafter...................... 499,042
----------
$1,139,871
==========
Minimum future base rentals do not include amounts which may be
received from certain tenants based upon a percentage of their gross sales or as
reimbursement of operating expenses. Minimum rents contain straight-line
adjustments for rental revenue increases which aggregated $2,319, $2,115 and
$1,324 for the years ended December 31, 1999, 1998 and 1997, respectively.
54
<PAGE> 55
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
In 1999, 1998 and 1997, no tenant collectively accounted for more than
10.0% of rental income. The tenant base includes national, regional and local
retailers, and consequently the credit risk is concentrated in the retail
industry.
8. INVESTMENT IN UNCONSOLIDATED ENTITIES
Investment in unconsolidated entities consists of preferred stock and
non-voting common stock of Glimcher Development Corporation, 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 share of net income (loss) for the period January 1, 1998 to
September 30, 1999, and the balance sheet at December 31, 1998, include the
Company's 45.00% interest in Great Plains MetroMall, LLC. Effective October 1,
1999, the Company acquired an additional 10.00% interest and Great Plains
MetroMall, LLC is included in the consolidated financial statements from that
date.
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
December 31,
-------------------------
1999 1998
---------- -----------
Assets:
Investment properties at cost, net...............$ 635,834 $ 675,993
Other assets..................................... 58,901 41,701
---------- ----------
$ 694,735 $ 717,694
========== ==========
Liabilities and Members' Equity:
Mortgage note payable............................$ 458,211 $ 401,927
Accounts payable and accrued expenses............ 62,996 113,837
521,207 515,764
Members' equity.................................. 173,528 201,930
---------- ----------
$ 694,735 $ 717,694
========== ==========
Operating Partnership's Share of:
Members' equity..................................$ 103,592 $ 136,645
========== ==========
RECONCILIATION OF MEMBERS' EQUITY TO COMPANY
INVESTMENT IN UNCONSOLIDATED ENTITIES:
Members' equity..................................$ 103,592 $ 136,645
Advances and additional costs.................... 18,185 63,560
---------- ----------
Investment in unconsolidated entities............$ 121,777 $ 200,205
========== ==========
55
<PAGE> 56
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
STATEMENT OF OPERATIONS FOR THE YEARS ENDED DECEMBER 31,
--------------------------------
1999 1998
---- ----
Total revenues........................................$ 100,689 $ 85,162
Operating expenses.................................... (47,528) (37,002)
---------- ----------
Net operating income.................................. 53,161 48,160
Depreciation and amortization......................... (17,871) (14,784)
Other expenses ...................................... (4,727) (6,158)
Gain (loss) on sales of properties/outparcels......... 623
Interest expense, net................................. (29,716) (25,064)
---------- ----------
Net income (loss).....................................$ 1,470 $ 2,154
========== ==========
Operating Partnership's share of net income (loss)....$ (4,570) $ (2,388)
========== ==========
9. TRANSACTIONS WITH AFFILIATES
On October 16, 1996, the Company formed GDC, an unconsolidated
non-qualified REIT subsidiary which is owned by the Operating Partnership,
Herbert Glimcher and Michael P. Glimcher. The Operating Partnership holds 95.0%
of the ownership interest; the Glimchers hold 100.0% of the voting interest and
5.0% of the ownership interest. GDC provides development, construction, leasing
and legal services for a fee, to the Company, to joint ventures in which the
Company has an ownership interest and to third parties. In 1999, 1998 and 1997,
GDC recognized fee income of $6,759, $8,893 and $1,293, respectively, for
services provided to these joint ventures.
During 1999, the Company acquired expansion land adjacent to a Mall
from a partnership in which the Glimchers hold an equity for approximately
$5,000. Approximately $4,900 is included in accounts payable at December 31,
1999, related to this transaction.
The Company reimbursed The Glimcher Company ("TGC") and Corporate
Flight, Inc. ("CFI") $1 and $47 in 1999, $2 and $36 in 1998 and $11 and $179 in
1997, respectively, for the use, in connection with Company related matters, of
a bus owned by TGC and an airplane owned by CFI; GDC and the Company's joint
ventures reimbursed the same two companies $10 and $526 in 1999, $5 and $1,032
in 1998 and $25 and $907 in 1997, respectively.
Effective January 1994, the Company engaged Archer-Meek-Weiler Agency,
Inc. ("AMW"), an agency in which Alan R. Weiler (a Trustee of GRT) is president,
to provide property and employee practices liability insurance services to the
Company. Total commissions received by AMW during 1999, 1998 and 1997 were
approximately $169, $179 and $137, respectively.
Certain of the Properties also have tenants in which officers of GRT
hold a financial interest. Annual base minimum rents and tenant accounts
receivable from these tenants are as follows:
YEAR ENDED DECEMBER 31,
-----------------------------
1999 1998 1997
---- ---- ----
Minimum rents................................$350 $506 $559
Tenant accounts receivable (payable)......... 137 162 (9)
10. COMMITMENTS
The Operating Partnership leases office space under an operating lease
that had an initial term of ten years commencing on March 21, 1994.
Additionally, 10 of GRT's Properties are subject to long-term ground leases
where a third party owns the underlying land and has leased the land to GRT. GRT
pays rent, ranging from $2 to
56
<PAGE> 57
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
$60 per annum, for the use of the land and generally is responsible for the
costs and expenses associated with maintaining the building and improvements
thereto. Future minimum rental payments as of December 31, 1999 are as follows:
Office Lease Ground Leases
2000.................. $ 809 $ 237
2001.................. 809 239
2002.................. 622 192
2003.................. 489 162
2004.................. 122 156
Thereafter............ 7,278
----------- -------------
$ 2,851 $ 8,264
=========== =============
Office rental expenses (including miscellaneous month-to-month lease
rentals) for the years ended December 31, 1999, 1998 and 1997 were $809, $707
and $612, respectively. Ground lease expenses for the years ended December 31,
1999, 1998 and 1997 were $226, $258 and $256, respectively.
In connection with a mortgage note payable for Johnson City Venture,
LLC, the Operating Partnership provided an unconditional guarantee for the
payment of the lesser of $6,200 or the outstanding balance of the loan.
In connection with the development of Polaris Towne Center, the
Operating Partnership provided the lender with a completion guarantee and an
unconditional guarantee of payment of 50.0% of the outstanding obligation on the
indebtedness until the Property achieves a coverage ratio of 1.2 at which time
the guarantee is reduced to 25.0%.
In connection with the development of Jersey Gardens, the Operating
Partnership provided the senior lending group with a completion guarantee and
payment of interest on the senior portion of the construction facility to a
maximum of $30,000 until the Property achieves a coverage ratio of 1.25.
As of December 31, 1999 and 1998, no reserves for losses have been
provided in connection with these guarantees, as the Company does not expect to
incur any liability.
11. SHARE OPTION PLANS
GRT has established the Employee Share Option Plan (the "Employee
Plan"), the Trustee Share Option Plan (the "Trustee Plan") and the 1997
Incentive Plan (the "Incentive Plan") for the purpose of attracting and
retaining the Company's trustees, executive and other employees. A maximum of
400,000 shares have been reserved for issuance under the Employee Plan, a
maximum of 700,000 shares have been reserved for issuance under the Trustee Plan
and a maximum of 3,000,000 shares have been reserved for issuance under the
Incentive Plan.
The Company applies Accounting Principles Board Opinion No. 25 ("APB
25") and related interpretations in accounting for its plans. Under APB 25 the
Company recognizes no compensation expense related to options, as no options are
granted at a price below the market price on the day of grant. Had compensation
cost for the plans been determined based on the fair value at the grant dates
for grants under these plans consistent with SFAS No. 123, the Company's net
income available to common shareholders would have been decreased to the pro
forma amounts indicated below:
57
<PAGE> 58
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
1999 1998 1997
---- ---- ----
Net income available to common shareholders:
As reported................................. $19,508 $20,911 $25,088
Pro forma................................... 19,244 20,640 24,961
Earnings per share (basic and diluted):
As reported................................. $ 0.82 $ 0.88 $ 1.12
Pro forma................................... 0.81 0.87 1.12
The fair value of each option grant was estimated on the date of the
grant using the Black-Scholes options pricing model with the following
assumptions: average risk free interest rates ranging from 4.75% to 6.73%,
expected average lives of five years, annual dividend rates of $1.9232 and
volatility of 14%.
A summary of the status of the Company's three option plans at December
31, 1999, 1998 and 1997 and changes during the years ending on those dates is
presented below. Options issued under the Incentive Plan are included under the
Trustee Plan and Employee Plan.
<TABLE>
<CAPTION>
1997 1998 1999
WEIGHTED- WEIGHTED- WEIGHTED-
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
OPTIONS PRICE OPTIONS PRICE OPTIONS PRICE
------- ----- ------- ----- ------- -----
<S> <C> <C> <C> <C> <C> <C>
TRUSTEE PLAN:
- ------------
Outstanding at beginning of year............ 242,000 $18.732 576,500 $18.707 691,500 $19.585
Granted..................................... 371,000 18.750 115,000 20.500 409,000 15.000
Exercised................................... (1,500) 18.750
Forfeited................................... (35,000) 19.320
------- ------- ---------
Outstanding at end of year.................. 576,500 18.707 691,500 19.585 1,100,500 17.881
======== ======= =========
EMPLOYEE PLAN:
- --------------
Outstanding at beginning of year............ 284,550 $18.456 360,372 $18.993 537,649 $19.636
Granted..................................... 141,500 19.606 270,500 20.520 591,500 14.991
Exercised................................... (18,128) 17.069 (16,921) 17.645
Forfeited................................... (47,550) 18.337 (76,302) 20.175 (82,984) 17.362
------- ------- ---------
Outstanding at end of year.................. 360,372 18.993 537,649 19.636 1,046,165 17.190
======== ======= =========
Options exercisable at year-end under
the Trustee Plan.......................... 144,800 314,867 521,166
Options exercisable at year-end under
the Employee Plan......................... 136,386 177,483 317,998
Weighted-average fair value of options
granted during the year................... $0.8384 $ 0.8067 $ 0.1604
</TABLE>
58
<PAGE> 59
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
The following table summarizes information regarding the options
outstanding at December 31, 1999 under the Company's plans:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
-------------------------------------------------- -------------------------------------
WEIGHTED- WEIGHTED-
NUMBER AVERAGE AVERAGE NUMBER WEIGHTED-
RANGE OF OUTSTANDING AT REMAINING EXERCISE EXERCISABLE AT AVERAGE
EXERCISE PRICES DECEMBER 31, 1999 CONTRACTUAL LIFE PRICE DECEMBER 31,1999 EXERCISE PRICE
--------------- ----------------- ---------------- ----- ---------------- --------------
TRUSTEE PLAN:
<S> <C> <C> <C> <C> <C>
$20.250 102,000 4.1 $20.250 102,000 $20.250
20.250 2,000 5.2 20.250 2,000 20.250
17.000 103,000 6.2 17.000 103,000 17.000
18.750 - 20.750 369,500 7.4 19.833 247,833 19.833
20.500 115,000 8.4 20.500 48,333 20.500
15.000 409,000 9.2 15.000 18,000 15.000
--------- -------
15.000 - 21.500 1,100,500 7.8 17.881 521,166 19.251
========= =======
EMPLOYEE PLAN:
$20.250 68,900 4.1 $20.250 68,900 $20.250
16.250 - 19.750 81,265 6.3 17.075 81,265 17.075
18.750 - 21.875 109,000 7.4 19.288 74,333 19.288
20.500 - 22.250 234,500 8.4 20.534 81,500 20.534
14.563 - 15.000 552,500 9.2 14.991 12,000 15.000
--------- -------
14.250 - 22.250 1,046,165 8.3 17.190 317,998 19.088
========= =======
</TABLE>
All of the options granted in 1997 under the Employee Plan will be
exercisable at the rate of 33.3% per annum over a three-year period beginning
with the first anniversary of the date of grant and will remain exercisable
through the tenth anniversary of such date. All but 6,000 options granted under
the Trustee Plan in 1997 will be exercisable at the rate of 33.3% per annum over
a three-year period beginning with the first anniversary of the date of grant
and will remain exercisable through the tenth anniversary of such date. Options
for 6,000 shares were exercisable immediately, and will remain exercisable
through the tenth anniversary of such date.
All but 15,000 options granted under the plans in 1998 will be
exercisable at the rate of 33.3% per annum over a three-year period beginning
with the first anniversary of the date of grant and will remain exercisable
through the tenth anniversary of such date. Options for 15,000 shares were
exercisable immediately, and will remain exercisable through the tenth
anniversary of such date.
All but 30,000 options granted under the plans in 1999 will be
exercisable at the rate of 33.3% per annum over a three-year period beginning
with the first anniversary of the date of grant and will remain exercisable
through the tenth anniversary of such date. Options for 30,000 shares were
exercisable immediately, and will remain exercisable through the tenth
anniversary of such date.
59
<PAGE> 60
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
12. EMPLOYEE BENEFIT PLAN - 401(K) PLAN
In January 1996, the Company established a qualified retirement savings
plan under Code 401(k) for eligible employees which contains a cash or deferred
arrangement which permits participants to defer up to a maximum of 15.0% of
their compensation, subject to certain limitations. Participant's salary
deferrals up to a maximum of 4.0% of qualified compensation will be matched at
50.0%. The Company matching will be in the form of GRT shares. The Company
contributed $229, $127 and $109 to the plan in 1999, 1998 and 1997,
respectively.
13. DISTRIBUTIONS
For the years ended December 31, 1999, 1998 and 1997, approximately
35.9%, 54.8% and 30.6%, respectively, of the distributions received by common
shareholders were considered to be a return of capital for tax purposes. Also,
1.3% of each quarterly distribution declared in 1999 was designated and
considered to be long-term capital gain for tax purposes and 0.2% of each
quarterly distribution declared in 1999 was considered to be unrecaptured Code
Section 1250 gain for tax purposes.
14. EARNINGS PER SHARE
In February 1997, the Financial Accounting Standards Board issued SFAS
No. 128, "Earnings Per Share." SFAS No. 128 establishes standards for computing
and presenting earnings per share ("EPS") and replaces the presentation of
primary EPS with a presentation of basic EPS and diluted EPS, as summarized in
the table below:
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
------------------------------------------------------------------------------------
1999 1998 1997
------------------------------ -------------------------- --------------------------
PER PER PER
INCOME SHARES SHARE INCOME SHARES SHARE INCOME SHARES SHARE
------ ------ ----- ------ ------ ----- ------ ------ -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BASIC EPS
Income available to
common stockholders.......... $19,508 23,741 $ 0.82 $20,911 23,694 $0.88 $25,088 22,321 $1.12
EFFECT OF DILUTIVE SECURITIES
Operating partnership units.... 2,316 2,967 2,623 2,969 3,022 2,604
Options........................ 15 31 71
DILUTED EPS
Income available plus
------- ------ ----- ------- ------ ----- ------- ------ -----
assumed conversions.......... $21,824 26,723 $0.82 $23,534 26,694 $0.88 $28,110 24,996 $1.12
======= ====== ===== ======= ====== ===== ======= ====== =====
</TABLE>
The A-1 and D Preferred Shares include certain conversion features that could
potentially dilute basic 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. Additionally, options
with exercise prices greater than the average share prices for the periods
presented were excluded from the respective computations of diluted EPS because
to do so would have been antidilutive.
60
<PAGE> 61
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
15. FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying values of cash and cash equivalents, cash in escrow,
tenant accounts receivable, accounts payable and accrued expenses are reasonable
estimates of their fair values because of the short maturity of these financial
instruments. The carrying value of the Credit Facility is also a reasonable
estimate of its fair value because it bears variable rate interest at current
market rates. Based on the discounted amount of future cash flows using rates
currently available to GRT for similar liabilities (ranging from 6.00% to 9.00%
per annum at December 31, 1999 and 6.00% to 11.38% per annum at December 31,
1998), the fair value of GRT's mortgage notes payable is estimated at $841,095
and $833,487 at December 31, 1999 and 1998, respectively. The fair value of the
debt instruments identified with GRT considers in part the credit of GRT as an
entity, and not just the individual entities and Properties owned by GRT.
The fair value of interest rate protection agreements are estimated
based on quotes from the market makers of these instruments and represent the
estimated amounts that GRT would expect to receive or pay to terminate such
agreements. Because the Company hedges only with instruments that have high
correlations with the underlying transaction, changes in derivatives fair value
are expected to be offset by changes in pricing. At December 31, 1999 and 1998,
the total notional amounts hedged were $340,000 and $170,000, respectively. The
fair values and carrying amounts of the interest rate protection agreements were
$781 and $145 at December 31, 1999 and ($572) and $129 at December 31, 1998,
respectively. The fair value of the interest rate protection agreements were
determined by third parties.
16. PROPERTY ACQUISITIONS
NET
AMOUNT LIABILITIES
ACQUISITION PROPERTY NAME ALLOCATED TO AND DEBT
DATE AND LOCATION ASSETS ACQUIRED CASH ASSUMED
- --------------------------------------------------------------------------------
ACQUISTIONS - 1998
June 1998 Northtown Mall -
Blaine, Minnesota.......$ 55,131 $ 54,961 $ 170
July 1998 Montgomery Mall -
Montgomery, Alabama..... 71,023 70,602 421
August 1998 Weberstown Mall -
Stockton, California... 24,586 24,586
September 1998 Lloyd Center -
Portland, Oregon........ 173,192 170,830 2,362
-------- --------- --------
Total....................................... $323,932 $ 296,393 $27,539
======== ========= ========
61
<PAGE> 62
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
17. SEGMENT REPORTING
In June 1997, the Financial Accounting Standards Board issued SFAS No.
131, "Disclosures About Segments of an Enterprise and Related Information." SFAS
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 YEAR ENDED DECEMBER 31, 1999
---------------------------------------------------------
Community
Malls Centers Corporate Total
--------- --------- --------- -----------
<S> <C> <C> <C> <C>
Total revenues.................... $ 145,190 $ 81,820 $ $ 227,010
Total operating expenses.......... 47,162 14,963 62,125
--------- --------- --------- -----------
Property net operating income..... $ 98,028 $ 66,857 $ $ 164,885
========= ========= ========= ===========
Net investment in real estate..... $ 848,603 $ 522,206 $ 4,156 $ 1,374,965
========= ========= ========= ===========
FOR THE YEAR ENDED DECEMBER 31, 1998
---------------------------------------------------------
COMMUNITY
MALLS CENTERS CORPORATE TOTAL
--------- --------- --------- -----------
Total revenues.................... $105,249 $ 78,842 $ $ 184,091
Total operating expenses.......... 31,247 13,577 44,824
--------- --------- --------- -----------
Property net operating income..... $ 74,002 $ 65,265$ $ 139,267
========= ========= ========= ===========
Net investment in real estate..... $744,177 $543,813 $3,422 $1,291,412
========= ========= ========= ===========
FOR THE YEAR ENDED DECEMBER 31, 1997
---------------------------------------------------------
COMMUNITY
MALLS CENTERS CORPORATE TOTAL
--------- --------- --------- -----------
Total revenues.................... $ 61,801 $ 78,337 $ $ 140,138
Total operating expenses.......... 16,099 13,449 29,548
--------- --------- --------- -----------
Property net operating income..... $ 45,702 $ 64,888 $ $ 110,590
========= ========= ========= ===========
Net investment in real estate..... $422,996 $557,831 $2,984 $ 983,811
========= ========= ========= ===========
</TABLE>
62
<PAGE> 63
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
18. INTERIM FINANCIAL INFORMATION (UNAUDITED)
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
YEAR ENDED DECEMBER 31, 1999 QUARTER QUARTER QUARTER QUARTER
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Total revenues ........................................ $54,086 $53,259 $54,343 $65,322
Income before minority interest in partnership and
extraordinary item.......................................... 11,084 10,193 13,710 9,002
Extraordinary item............................................ 295 250
Preferred stock dividends..................................... 5,366 5,132 5,521 5,601
Net income available to common shareholders................... 5,091 4,315 7,068 3,034
Earnings per share before extraordinary item
(basic and diluted)......................................... 0.21 0.19 0.31 0.13
Earnings per share (basic and diluted)........................ 0.21 0.18 0.30 0.13
Distributions declared per share.............................. 0.4808 0.4808 0.4808 0.4808
FIRST SECOND THIRD FOURTH
YEAR ENDED DECEMBER 31, 1998 QUARTER QUARTER QUARTER QUARTER
- --------------------------------------------------------------------------------------------------------------
Total revenues ........................................ $39,664 $40,190 $46,502 $57,735
Income before minority interest in partnership and
extraordinary item.......................................... 10,879 10,305 10,650 12,269
Extraordinary item............................................ 490
Preferred stock dividends..................................... 4,908 4,894 4,982 5,295
Net income available to common shareholders................... 5,304 4,808 4,600 6,199
Earnings per share before extraordinary item
(basic and diluted)......................................... 0.22 0.20 0.21 0.26
Earnings per share (basic and diluted)........................ 0.22 0.20 0.19 0.26
Distributions declared per share.............................. 0.4808 0.4808 0.4808 0.4808
</TABLE>
Net income for the third quarter of 1999 includes net gains on sale of
assets of $2,203 ($0.09 per share) and the fourth quarter of 1999 includes net
losses from the sale of assets of $2,215 ($0.09 per share).
63
<PAGE> 64
GLIMCHER REALTY TRUST
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
for the years ended December 31, 1999, 1998, and 1997
(DOLLARS IN THOUSANDS)
BALANCE AT
BEGINNING CHARGED BALANCE AT
OF YEAR TO EXPENSE DEDUCTIONS END OF YEAR
------- ---------- ---------- -----------
Year ended December 31, 1999-
Allowance for doubtful accounts $3,995 $2,635 $4,024 $2,606
Year ended December 31, 1998-
Allowance for doubtful accounts $5,030 $1,670 $2,705 $3,995
Year ended December 31, 1997-
Allowance for doubtful accounts $4,463 $2,242 $1,675 $5,030
64
<PAGE> 65
GLIMCHER REALTY TRUST
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
AS OF DECEMBER 31, 1999
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COSTS CAPITALIZED
SUBSEQUENT
INITIAL COST TO ACQUISITION
---------------------------- ---------------------------
BUILDINGS AND
DESCRIPTION AND LOCATION IMPROVEMENTS
OF PROPERTY ENCUMBRANCES [d] LAND [a] IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
MALLS
<S> <C> <C> <C> <C>
Ashland Town Center
Ashland, KY [g] $ 3,866 $ 21,454 $ 6,928
Grand Central Mall
Parkersburg/Vienna, WV [g] 3,960 41,136 28,123
Great Mall of the Great Plains
Olathe, KS 15,297 94,805 7,333
Indian Mound Mall
Newark/Heath, OH [f] 892 19,497 9,469
Lloyd Center Mall
Portland, OR 130,000 162,956
The Mall at Fairfield Commons
Beavercreek/Dayton, OH [f] 5,438 102,914 18,936
Montgomery Mall
Montgomery, AL [n] 70,927
Morgantown Mall
Morgantown, WV [i] 1,273 40,484 2,738
New Towne Mall
New Philadelphia, OH [f] 1,190 23,475 6,764
Northtown Mall
Blaine, MN 40,000 55,100
River Valley Mall
Lancaster, OH [g] 875 26,910 13,725
Southside Mall
Oneonta, NY [g] 1,194 10,643 1,764
University Mall
Tampa, FL 70,695 13,314 108,230 1,558
Weberstown Mall
Stockton, CA [l], [m] 29,051
</TABLE>
<TABLE>
<CAPTION>
GROSS AMOUNTS
AT WHICH
CARRIED AT
CLOSE OF PERIOD
-------------------------------------
DATE
BUILDINGS AND CONSTRUCTION
DESCRIPTION AND LOCATION IMPROVEMENTS TOTAL ACCUMULATED WAS DATE
OF PROPERTY LAND [b] [c] [b] [c] DEPRECIATION COMPLETED ACQUIRED
- ----------------------------------------------------------------------------------------------------------------------------------
MALLS
<S> <C> <C> <C> <C> <C> <C>
Ashland Town Center
Ashland, KY $ 4,144 $ 28,104 $ 32,248 $ 7,041 1989
Grand Central Mall
Parkersburg/Vienna, WV 3,961 69,258 73,219 9,510 1993
Great Mall of the Great Plains
Olathe, KS 15,646 101,789 117,435 13,270 1997
Indian Mound Mall
Newark/Heath, OH 802 29,056 29,858 8,342 1986
Lloyd Center Mall
Portland, OR 47,737 115,219 162,956 3,734 1998
The Mall at Fairfield Commons
Beavercreek/Dayton, OH 5,438 121,850 127,288 21,775 1993
Montgomery Mall
Montgomery, AL 10,382 60,545 70,927 2,547 1998
Morgantown Mall
Morgantown, WV 1,249 43,246 44,495 13,379 1990
New Towne Mall
New Philadelphia, OH 1,248 30,181 31,429 8,915 1988
Northtown Mall
Blaine, MN 13,264 41,836 55,100 1,700 1998
River Valley Mall
Lancaster, OH 1,001 40,509 41,510 12,805 1987
Southside Mall
Oneonta, NY 1,194 12,407 13,601 1,788 1994
University Mall
Tampa, FL 13,314 109,788 123,102 6,450 1997
Weberstown Mall
Stockton, CA 3,298 25,753 29,051 1,776 1998
</TABLE>
<TABLE>
<CAPTION>
LIFE UPON WHICH
DEPRECIATION IN
LATEST STATEMENT
DESCRIPTION AND LOCATION OF OPERATIONS
OF PROPERTY IS COMPUTED
- -------------------------------------------------------
MALLS
<S> <C>
Ashland Town Center
Ashland, KY [e]
Grand Central Mall
Parkersburg/Vienna, WV [e]
Great Mall of the Great Plains
Olathe, KS [e]
Indian Mound Mall
Newark/Heath, OH [e]
Lloyd Center Mall
Portland, OR
The Mall at Fairfield Commons
Beavercreek/Dayton, OH [e]
Montgomery Mall
Montgomery, AL
Morgantown Mall
Morgantown, WV [e]
New Towne Mall
New Philadelphia, OH [e]
Northtown Mall
Blaine, MN
River Valley Mall
Lancaster, OH [e]
Southside Mall
Oneonta, NY [e]
University Mall
Tampa, FL
Weberstown Mall
Stockton, CA
</TABLE>
65
<PAGE> 66
GLIMCHER REALTY TRUST
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
AS OF DECEMBER 31, 1999
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COSTS CAPITALIZED
SUBSEQUENT
INITIAL COST TO ACQUISITION
----------------------------- -----------------------------
BUILDINGS AND
DESCRIPTION AND LOCATION IMPROVEMENTS
OF PROPERTY ENCUMBRANCES [d] LAND [a] IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMUNITY CENTERS
Arnold Plaza
Arnold, MO [g] $ 527 $ 4,965 $ 190
Artesian Square
Martinsville, IN $ 5,268 760 6,791 192
Ashland Plaza
Ashland, KY [g] 312 1,633 462
Audubon Village
Henderson, KY 4,063 606 5,453 7
Aviation Plaza
Oshkosh, WI 6,592 914 8,227 61
Ayden Plaza
Ayden, NC [g] 138 1,243
Barren River Plaza
Glasgow, KY 7,894 1,215 10,932
Bollweevil Shopping Center
Enterprise, AL [g] 215 1,916 4
Buckhannon Plaza
Tennerton, WV [g] 269 2,464
Cambridge Plaza
Cambridge, OH [g] 195 691 376
Canal Place Plaza
Rome, NY [h] 420 6,264 138
Cherry Hill Plaza
Galax, VA
Chillicothe Plaza
Chillicothe, OH [g] 78 410 196
Clarksville Plaza
Clarksville, IN [f] 127 621 470
</TABLE>
<TABLE>
<CAPTION>
GROSS AMOUNTS
AT WHICH
CARRIED AT
CLOSE OF PERIOD
----------------------------------------- DATE
BUILDINGS AND CONSTRUCTION
DESCRIPTION AND LOCATION IMPROVEMENTS TOTAL ACCUMULATED WAS DATE
OF PROPERTY LAND [b] [c] [b] [c] DEPRECIATION COMPLETED ACQUIRED
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
COMMUNITY CENTERS
Arnold Plaza
Arnold, MO $ 527 $ 5,155 $5,682 $753 1994
Artesian Square
Martinsville, IN 944 6,799 7,743 544 1996
Ashland Plaza
Ashland, KY 312 2,095 2,407 1,075 1968
Audubon Village
Henderson, KY 606 5,460 6,066 436 1996
Aviation Plaza
Oshkosh, WI 914 8,288 9,202 660 1996
Ayden Plaza
Ayden, NC 138 1,243 1,381 184 1994
Barren River Plaza
Glasgow, KY 1,215 10,932 12,147 865 1996
Bollweevil Shopping Center
Enterprise, AL 216 1,919 2,135 285 1994
Buckhannon Plaza
Tennerton, WV 269 2,464 2,733 362 1994
Cambridge Plaza
Cambridge, OH 195 1,067 1,262 693 1965
Canal Place Plaza
Rome, NY 420 6,402 6,822 948 1994
Cherry Hill Plaza
Galax, VA 158 1,037 1,195 7
Chillicothe Plaza
Chillicothe, OH 78 606 684 220 1964
Clarksville Plaza
Clarksville, IN 127 1,091 1,218 345 1968
</TABLE>
<TABLE>
<CAPTION>
LIFE UPON WHICH
DEPRECIATION IN
LATEST STATEMENT
DESCRIPTION AND LOCATION OF OPERATIONS
OF PROPERTY IS COMPUTED
- -------------------------------------------------------
<S> <C>
COMMUNITY CENTERS
Arnold Plaza
Arnold, MO [e]
Artesian Square
Martinsville, IN [e]
Ashland Plaza
Ashland, KY [e]
Audubon Village
Henderson, KY [e]
Aviation Plaza
Oshkosh, WI [e]
Ayden Plaza
Ayden, NC [e]
Barren River Plaza
Glasgow, KY [e]
Bollweevil Shopping Center
Enterprise, AL [e]
Buckhannon Plaza
Tennerton, WV [e]
Cambridge Plaza
Cambridge, OH [e]
Canal Place Plaza
Rome, NY [e]
Cherry Hill Plaza
Galax, VA
Chillicothe Plaza
Chillicothe, OH [e]
Clarksville Plaza
Clarksville, IN [e]
</TABLE>
66
<PAGE> 67
GLIMCHER REALTY TRUST
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
AS OF DECEMBER 31, 1999
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COSTS CAPITALIZED
SUBSEQUENT
INITIAL COST TO ACQUISITION
----------------------------- -----------------------------
BUILDINGS AND
DESCRIPTION AND LOCATION IMPROVEMENTS
OF PROPERTY ENCUMBRANCES [d] LAND [a] IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
College Plaza
Bluefield, VA [j] $ 1,072 $ 9,650
Corry Plaza
Corry, PA [g] 265 2,472 184
Cross Creek Plaza
Beaufort, SC [j] 1,317 11,854 1,596
Crossing Meadows
Onalaska, WI 9,147 1,334 12,006 (15)
Crossroads Centre
Knoxville, TN 6,424 883 7,944 16
Cumberland Crossing
Jacksboro, TN 5,006 729 6,562 5
Cypress Bay Village
Morehead City, NC [j] 1,121 10,089 88
Dallas Plaza
Balch Springs, TX [g] 262 2,326 19
Daytona Plaza
Daytona Beach, FL [g] 420 3,807 125
Delaware Community Plaza
Delaware, OH 7,980 1,250 11,118 10
East Pointe Plaza
Columbia, SC 10,936 1,255 11,294
East Pointe Plaza
Marysville, OH [f] 453 4,112 3,478
Franklin Square
Spartanburg, SC [j] 977 8,789 114
Georgesville Square
Columbus, OH 22,512 17,833
Grand Union
Chatham, NY [k] 227 2,042
</TABLE>
<TABLE>
<CAPTION>
GROSS AMOUNTS
AT WHICH
CARRIED AT
CLOSE OF PERIOD
----------------------------------------
BUILDINGS AND DATE CONSTRUCTION
DESCRIPTION AND LOCATION IMPROVEMENTS TOTAL ACCUMULATED WAS DATE
OF PROPERTY LAND [b] [c] [b] [c] DEPRECIATION COMPLETED ACQUIRED
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
College Plaza
Bluefield, VA $1,072 $ 9,650 $ 10,722 $ 764 1996
Corry Plaza
Corry, PA 265 2,656 2,921 398 1994
Cross Creek Plaza
Beaufort, SC 1,317 13,450 14,767 1,038 1996
Crossing Meadows
Onalaska, WI 1,326 11,999 13,325 969 1996
Crossroads Centre
Knoxville, TN 883 7,960 8,843 631 1996
Cumberland Crossing
Jacksboro, TN 729 6,567 7,296 522 1996
Cypress Bay Village
Morehead City, NC 1,121 10,177 11,298 831 1996
Dallas Plaza
Balch Springs, TX 262 2,345 2,607 356 1994
Daytona Plaza
Daytona Beach, FL 420 3,932 4,352 569 1994
Delaware Community Plaza
Delaware, OH 1,250 11,128 12,378 1,094 1996
East Pointe Plaza
Columbia, SC 1,255 11,294 12,549 894 1996
East Pointe Plaza
Marysville, OH 427 7,616 8,043 1,401 1992
Franklin Square
Spartanburg, SC 971 8,909 9,880 696 1996
Georgesville Square
Columbus, OH 2,478 15,354 17,832 1,207 1996
Grand Union
Chatham, NY 227 2,042 2,269 281 1994
</TABLE>
<TABLE>
<CAPTION>
LIFE UPON WHICH
DEPRECIATION IN
LATEST STATEMENT
DESCRIPTION AND LOCATION OF OPERATIONS
OF PROPERTY IS COMPUTED
- -------------------------------------------------------
<S> <C>
College Plaza
Bluefield, VA [e]
Corry Plaza
Corry, PA [e]
Cross Creek Plaza
Beaufort, SC [e]
Crossing Meadows
Onalaska, WI [e]
Crossroads Centre
Knoxville, TN [e]
Cumberland Crossing
Jacksboro, TN [e]
Cypress Bay Village
Morehead City, NC [e]
Dallas Plaza
Balch Springs, TX [e]
Daytona Plaza
Daytona Beach, FL [e]
Delaware Community Plaza
Delaware, OH [e]
East Pointe Plaza
Columbia, SC [e]
East Pointe Plaza
Marysville, OH [e]
Franklin Square
Spartanburg, SC [e]
Georgesville Square
Columbus, OH
Grand Union
Chatham, NY [e]
</TABLE>
67
<PAGE> 68
GLIMCHER REALTY TRUST
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
AS OF DECEMBER 31, 1999
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COSTS CAPITALIZED GROSS AMOUNTS AT
SUBSEQUENT WHICH CARRIED AT
INITIAL COST TO ACQUISITION CLOSE OF PERIOD
---------------------------- -------------- --------------
BUILDINGS AND
DESCRIPTION AND LOCATION IMPROVEMENTS
OF PROPERTY ENCUMBRANCES [d] LAND [a] IMPROVEMENTS LAND [b]
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Grand Union Plaza
South Glens Falls, NY [k] $ 507 $ 4,566 $ 507
Gratiot Center
Saginaw, MI [h] 1,196 10,778 12 1,196
Hills Plaza East
Erie, PA [g] 241 2,240 271 241
Hocking Valley Mall
Lancaster, OH [g] 606 5,550 101 606
Horizon Park
Longmont, CO [g] 219 1,908 40 219
Hunter's Ridge Shopping Center
Gahanna, OH [h] 850 7,713 269 850
Huntington Plaza
Huntington, WV 175 525 150 175
Indian Mound Plaza
Heath, OH 22 384 40 22
Kmart
Alliance, NE [g] 175 1,567 6 175
Kmart
Bloomington, IN [g] 298 2,689 298
Kmart
Clifton Heights, PA [g] 277 2,491 122 277
Kmart
Fairhaven, MA [g] 221 1,995 221
Kmart
Feasterville, PA [g] 244 2,204 244
Kmart
Langhorne, PA [g] 314 2,936 314
Kmart
Leechburg, PA [g] 261 2,338 12 261
<CAPTION>
GROSS AMOUNTS AT WHICH
CARRIED AT CLOSE OF PERIOD
--------------------------------
LIFE UPON WHICH
DATE DEPRECIATION IN
BUILDINGS AND CONSTRUCTION LATEST STATEMENT
DESCRIPTION AND LOCATION IMPROVEMENTS TOTAL ACCUMULATED WAS DATE OF OPERATIONS
OF PROPERTY [c] [b] [c] DEPRECIATION COMPLETED ACQUIRED IS COMPUTED
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Grand Union Plaza
South Glens Falls, NY $ 4,566 $ 5,073 $ 637 1994 [e]
Gratiot Center
Saginaw, MI 10,790 11,986 1,505 1994 [e]
Hills Plaza East
Erie, PA 2,511 2,752 345 1994 [e]
Hocking Valley Mall
Lancaster, OH 5,651 6,257 847 1994 [e]
Horizon Park
Longmont, CO 1,948 2,167 279 1994 [e]
Hunter's Ridge Shopping Center
Gahanna, OH 7,982 8,832 1,057 1994 [e]
Huntington Plaza
Huntington, WV 675 850 216 1966 [e]
Indian Mound Plaza
Heath, OH 424 446 118 1988 [e]
Kmart
Alliance, NE 1,573 1,748 232 1994 [e]
Kmart
Bloomington, IN 2,689 2,987 394 1994 [e]
Kmart
Clifton Heights, PA 2,613 2,890 376 1994 [e]
Kmart
Fairhaven, MA 1,995 2,216 294 1994 [e]
Kmart
Feasterville, PA 2,204 2,448 325 1994 [e]
Kmart
Langhorne, PA 2,936 3,250 431 1994 [e]
Kmart
Leechburg, PA 2,350 2,611 347 1994 [e]
</TABLE>
68
<PAGE> 69
GLIMCHER REALTY TRUST
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
AS OF DECEMBER 31, 1999
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COSTS CAPITALIZED GROSS AMOUNTS AT
SUBSEQUENT WHICH CARRIED AT
INITIAL COST TO ACQUISITION CLOSE OF PERIOD
---------------------------- -------------- ----------------
BUILDINGS AND
DESCRIPTION AND LOCATION IMPROVEMENTS
OF PROPERTY ENCUMBRANCES [d] LAND [a] IMPROVEMENTS LAND [b]
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Kmart
Norfolk, VA [g] $ 188 $ 1,662 $ 49 $ 188
Kmart
Seekonk, MA [g] 244 2,182 (876)
Kmart
Puyallup, WA [g] 426 3,870 34 426
Kmart
Yakima, WA [g] 256 2,305 256
Knox Village Square
Mount Vernon, OH [g] 865 8,479 207 865
Lexington Parkway Plaza
Lexington, NC $ 7,181 1,003 9,029 630 1,602
Liberty Plaza
Morristown, TN [g] 369 3,312 369
Linden Corners
Buffalo, NY [g] 414 3,726 415
Logan Place
Russellville, KY 2,190 367 3,307 20 367
Lowe's
Altoona, PA [h] 1,452 4,877 2 1,452
Lowe's
Columbus, OH [h] 1,330 4,569 18 1,330
Lowe's
Marion, OH [g] 626 2,454 1 626
Lowe's
Wooster, OH [g] 500 2,515 37 520
Loyal Plaza
Loyalsock, PA [g] 1,718 15,513 498 1,718
Marion Towne Center
Marion, SC 5,590 754 6,787 17 754
<CAPTION>
Gross Amounts at Which
Carried at Close of Period
-------------------------------
LIFE UPON WHICH
DATE DEPRECIATION IN
BUILDINGS AND CONSTRUCTION LATEST STATEMENT
DESCRIPTION AND LOCATION IMPROVEMENTS TOTAL ACCUMULATED WAS DATE OF OPERATIONS
OF PROPERTY [c] [b] [c] DEPRECIATION COMPLETED ACQUIRED IS COMPUTED
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Kmart
Norfolk, VA $ 1,711 $ 1,899 247 1994 [e]
Kmart
Seekonk, MA 1,550 1,550 1994 [e]
Kmart
Puyallup, WA 3,904 4,330 $ 591 1994 [e]
Kmart
Yakima, WA 2,305 2,561 341 1994 [e]
Knox Village Square
Mount Vernon, OH 8,686 9,551 1,600 1992 [e]
Lexington Parkway Plaza
Lexington, NC 9,060 10,662 724 1996 [e]
Liberty Plaza
Morristown, TN 3,312 3,681 490 1994 [e]
Linden Corners
Buffalo, NY 3,725 4,140 550 1994 [e]
Logan Place
Russellville, KY 3,327 3,694 266 1996 [e]
Lowe's
Altoona, PA 4,879 6,331 619 1994 [e]
Lowe's
Columbus, OH 4,587 5,917 573 1994 [e]
Lowe's
Marion, OH 2,455 3,081 397 1993 [e]
Lowe's
Wooster, OH 2,532 3,052 408 1993 [e]
Loyal Plaza
Loyalsock, PA 16,011 17,729 2,413 1994 [e]
Marion Towne Center
Marion, SC 6,804 7,558 543 1996 [e]
</TABLE>
69
<PAGE> 70
GLIMCHER REALTY TRUST
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
as of December 31, 1999
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COSTS CAPITALIZED GROSS AMOUNTS AT
SUBSEQUENT WHICH CARRIED AT
INITIAL COST TO ACQUISITION CLOSE OF PERIOD
---------------------------- -------------- --------------
BUILDINGS AND
DESCRIPTION AND LOCATION IMPROVEMENTS
OF PROPERTY ENCUMBRANCES [d] LAND [a] IMPROVEMENTS LAND [b]
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Meadowview Square
Kent, OH $ 9,542 $ 9,478 $ 403
Middletown Plaza
Middletown, OH 127 1,159 173 127
Mill Run
Columbus, OH [h] 2,711 6,935 68 2,711
Monroe Shopping Center
Madisonville, TN [g] 375 3,522 72 375
Morgantown Commons
Morgantown, WV [i] 175 7,549 11,200 358
Morgantown Plaza
Star City, WV [k] 305 1,137 704 305
Morningside Plaza
Dade City, FL [g] 487 4,300 79 487
Mount Vernon Plaza
Mount Vernon, OH [k] 58 431 864 58
New Boston Mall
Portsmouth, OH [g] 537 4,906 179 537
Newberry Square Shopping Center
Newberry, SC [h] 594 5,355 5 594
Newport Plaza II
Newport, KY [g] 462 4,176 204 462
North Horner Shopping Center
Sanford, NC [g] 206 1,875 72 206
Northtowne Square
Chattanooga, TN [g] 390 3,516 66 390
Ohio River
Gallipolis, OH [f] 502 6,373 104 461
Pea Ridge Shopping Center
Huntington, WV [g] 687 6,160 267 687
<CAPTION>
GROSS AMOUNTS AT WHICH
CARRIED AT CLOSE OF PERIOD
--------------------------------
LIFE UPON WHICH
DATE DEPECIATION IN
BUILDINGS AND CONSTRUCTION LATEST STATEMENT
DESCRIPTION AND LOCATION IMPROVEMENTS TOTAL ACCUMULATED WAS DATE OF OPERATIONS
OF PROPERTY [c] [b] [c] DEPRECIATION COMPLETED ACQUIRED IS COMPUTED
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Meadowview Square
Kent, OH $ 9,075 $ 9,478 695
Middletown Plaza
Middletown, OH 1,332 1,459 305 1972 [e]
Mill Run
Columbus, OH 7,003 9,714 869 1995 [e]
Monroe Shopping Center
Madisonville, TN 3,594 3,969 520 1994 [e]
Morgantown Commons
Morgantown, WV 18,566 18,924 2,832 1991 [e]
Morgantown Plaza
Star City, WV 1,841 2,146 840 1967 [e]
Morningside Plaza
Dade City, FL 4,379 4,866 696 1994 [e]
Mount Vernon Plaza
Mount Vernon, OH 1,295 1,353 827 1963 [e]
New Boston Mall
Portsmouth, OH 5,085 5,622 751 1994 [e]
Newberry Square Shopping Center
Newberry, SC 5,360 5,954 709 1994 [e]
Newport Plaza II
Newport, KY 4,380 4,842 625 1994 [e]
North Horner Shopping Center
Sanford, NC 1,947 2,153 277 1994 [e]
Northtowne Square
Chattanooga, TN 3,582 3,972 535 1994 [e]
Ohio River
Gallipolis, OH 6,518 6,979 1,632 1989 [e]
Pea Ridge Shopping Center
Huntington, WV 6,427 7,114 1,004 1994 [e]
</TABLE>
70
<PAGE> 71
GLIMCHER REALTY TRUST
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
AS OF DECEMBER 31, 1999
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COSTS CAPITALIZED GROSS AMOUNTS
SUBSEQUENT WHICH CARRIED AT
INITIAL COST TO ACQUISITION CLOSE OF PERIOD
---------------------------- -------------- --------------
BUILDINGS AND
DESCRIPTION AND LOCATION IMPROVEMENTS
OF PROPERTY ENCUMBRANCES [d] LAND [a] IMPROVEMENTS LAND [b]
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Perdido Point Plaza
Pensacola, FL [g] $ 329 $ 2,957 $ 329
Plaza Vista Mall
Sierra Vista, AZ [f] 1,531 6,436 3,585 1,395
Prestonsburg Village Center
Prestonsburg, KY [h] 663 6,002 193 663
Rend Lake Shopping Center
Benton, IL [g] 462 4,175 73 462
Rhea County Shopping Center
Dayton, TN [g] 395 3,524 31 395
River Edge Plaza
Sevierville, TN [g] 553 5,054 56 553
River Valley Plaza
Lancaster, OH [g] 320 5,035 668 304
Roane County Plaza
Rockwood, TN $ 4,883 630 5,669 630
Scott Town Plaza
Bloomsburg, PA [g] 188 1,730 65 188
Shady Springs Plaza
Beaver, WV [g] 455 4,094 116 455
Sidney Shopping Center .
Sidney, NY [k] 518 4,656 518
Southside Plaza
Sanford, NC [j] 960 8,644 960
Springfield Commons West
Springfield, OH [h], [l] 859 8,707 2,886 1,137
Steamboat Bend
Hannibal, MO [f] 100 1,649 395 100
<CAPTION>
GROSS AMOUNTS AT WHICH
CARRIED AT CLOSE OF PERIOD
----------------------------------
LIFE UPON WHICH
DATE DEPECIATION IN
BUILDINGS AND CONSTRUCTION LATEST STATEMENT
DESCRIPTION AND LOCATION IMPROVEMENTS TOTAL ACCUMULATED WAS DATE OF OPERATIONS
OF PROPERTY [c] [b] [c] DEPRECIATION COMPLETED ACQUIRED IS COMPUTED
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Perdido Point Plaza
Pensacola, FL $ 2,957 $ 3,286 $ 437 1994 [e]
Plaza Vista Mall
Sierra Vista, AZ 10,157 11,552 2,355 1988 [e]
Prestonsburg Village Center
Prestonsburg, KY 6,195 6,858 798 1994 [e]
Rend Lake Shopping Center
Benton, IL 4,248 4,710 618 1994 [e]
Rhea County Shopping Center
Dayton, TN 3,555 3,950 523 1994 [e]
River Edge Plaza
Sevierville, TN 5,110 5,663 745 1994 [e]
River Valley Plaza
Lancaster, OH 5,719 6,023 1,403 1988 [e]
Roane County Plaza
Rockwood, TN 5,669 6,299 449 1996 [e]
Scott Town Plaza
Bloomsburg, PA 1,795 1,983 293 1994 [e]
Shady Springs Plaza
Beaver, WV 4,210 4,665 629 1994 [e]
Sidney Shopping Center
Sidney, NY 4,656 5,174 640 1994 [e]
Southside Plaza
Sanford, NC 8,644 9,604 684 1996 [e]
Springfield Commons West
Springfield, OH 11,315 12,452 1,167 1995 [e]
Steamboat Bend
Hannibal, MO 2,044 2,144 512 1988 [e]
</TABLE>
71
<PAGE> 72
GLIMCHER REALTY TRUST
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
AS OF DECEMBER 31, 1999
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COSTS CAPITALIZED GROSS AMOUNTS AT
SUBSEQUENT WHICH CARRIED AT
INITIAL COST TO ACQUISITION CLOSE OF PERIOD
---------------------------- -------------- ---------------
BUILDINGS AND
DESCRIPTION AND LOCATION IMPROVEMENTS
OF PROPERTY ENCUMBRANCES [d] LAND [a] IMPROVEMENTS LAND [b]
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Stewart Plaza
Mansfield, OH [f] $ 563 $ 1,867 $ (149) $ 263
Sunbury Plaza
Sunbury, PA [g] 448 4,074 195 448
Sycamore Square
Ashland City, TN [j] 334 3,010 50 334
Target Plaza
Heath, OH [l] 171 17 171
Twin County Plaza
Galax, VA [l] 575 5,199 42 575
Village Plaza
Augusta, GA $ 18,556 2,194 19,747 104 2,194
Village Plaza
Manhattan, KS [k] 100 1,481 258 100
Village Square
Kutztown, PA [g] 225 2,013 66 224
Vincennes
Vincennes, IN [g] 208 1,875 136 208
Walgreens
Louisville, KY [g] 128 1,141 27 128
Walgreens
New Albany, IN [g] 123 1,093 28 123
Walmart Plaza
Springfield, OH [h] 875 7,952 363 875
Walnut Cove
Walnut Cove, NC [g] 209 1,855 89 209
Walterboro Plaza
Walterboro, SC [j] 629 5,660 106 731
Westpark Plaza
Carbondale, IL [g] 432 3,881 58 432
<CAPTION>
GROSS AMOUNTS AT WHICH
CARRIED AT CLOSE OF PERIOD
-------------------------------
LIFE UPON WHICH
DATE DEPRECIATION IN
BUILDINGS AND CONSTRUCTION LATEST STATEMENT
DESCRIPTION AND LOCATION IMPROVEMENTS TOTAL ACCUMULATED WAS DATE OF OPERATIONS
OF PROPERTY [c] [b] [c] DEPRECIATION COMPLETED ACQUIRED IS COMPUTED
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Stewart Plaza
Mansfield, OH $ 2,018 $ 2,281 $ 1,010 1979 [e]
Sunbury Plaza
Sunbury, PA 4,269 4,717 649 1994 [e]
Sycamore Square
Ashland City, TN 3,060 3,394 242 1996 [e]
Target Plaza
Heath, OH 17 188 2 1995 [e]
Twin County Plaza
Galax, VA 5,241 5,816 570 1995 [e]
Village Plaza
Augusta, GA 19,851 22,045 1,582 1996 [e]
Village Plaza
Manhattan, KS 1,739 1,839 558 1988 [e]
Village Square
Kutztown, PA 2,080 2,304 302 1994 [e]
Vincennes
Vincennes, IN 2,011 2,219 286 1994 [e]
Walgreens
Louisville, KY 1,168 1,296 171 1994 [e]
Walgreens
New Albany, IN 1,121 1,244 164 1994 [e]
Walmart Plaza
Springfield, OH 8,315 9,190 959 1995 [e]
Walnut Cove
Walnut Cove, NC 1,943 2,152 293 1994 [e]
Walterboro Plaza
Walterboro, SC 5,664 6,395 450 1996 [e]
Westpark Plaza
Carbondale, IL 3,939 4,371 588 1994 [e]
</TABLE>
72
<PAGE> 73
GLIMCHER REALTY TRUST
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
AS OF DECEMBER 31, 1999
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COSTS CAPITALIZED GROSS AMOUNTS AT
SUBSEQUENT WHICH CARRIED AT
INITIAL COST TO ACQUISITION CLOSE OF PERIOD
---------------------------- -------------- --------------
BUILDINGS AND
DESCRIPTION AND LOCATION IMPROVEMENTS
OF PROPERTY ENCUMBRANCES [d] LAND [a] IMPROVEMENTS LAND [b]
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
PARTNERSHIPS
Glimcher Properties Limited
Partnership $ 1,780 $ 2,433
-------- --------- --------- --------
103,551 958,065 477,990 182,559
-------- --------- --------- --------
DEVELOPMENTS IN PROGRESS
Cherry Hill Plaza
Galax, VA 215
Georgesville Square
Columbus, OH 2,862
Great Mall of the Great Plains
Olathe, KS 3,440
Meadowview Square
Kent, OH 1,701
Other Developments 3
-------- --------- --------- --------
8,221
-------- --------- --------- --------
Total $103,551 $ 958,065 $ 477,990 $190,780
======== ========= ========= ========
<CAPTION>
GROSS AMOUNTS AT WHICH
CARRIED AT CLOSE OF PERIOD
--------------------------------
LIFE UPON WHICH
DATE DEPRECIATION IN
BUILDINGS AND CONSTRUCTION LATEST STATEMENT
DESCRIPTION AND LOCATION IMPROVEMENTS TOTAL ACCUMULATED WAS DATE OF OPERATIONS
OF PROPERTY [c] [b] [c] DEPRECIATION COMPLETED ACQUIRED IS COMPUTED
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PARTNERSHIPS
Glimcher Properties Limited
Partnership $ 4,874 $ 4,874 $ 2,066 1994 [e]
----------- ---------- ---------
1,358,901 1,541,460 183,487
----------- ---------- ---------
DEVELOPMENTS IN PROGRESS
Cherry Hill Plaza
Galax, VA 536 751
Georgesville Square
Columbus, OH 201 3,063
Great Mall of the Great Plains
Olathe, KS 3,187 6,627
Meadowview Square
Kent, OH 5 1,706
Other Developments 4,842 4,845 7
----------- ---------- ---------
8,771 16,992 7
----------- ---------- ---------
Total $ 1,367,672 $1,558,452 $ 183,494
=========== ========== =========
</TABLE>
73
<PAGE> 74
GLIMCHER REALTY TRUST
NOTES TO SCHEDULE III
(dollars in thousands)
(a) Initial cost for constructed and acquired property is cost at end
of first complete calendar year subsequent to opening or acquisition. For
centers that opened during 1999 and have not yet completed their first calendar
year subsequent to opening, the initial cost is cost incurred through December
31, 1999.
(b) The aggregate gross cost of land and buildings, improvements and
equipment for federal income tax purposes is approximately $1,566,989.
(c) RECONCILIATION OF REAL ESTATE
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------------
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Balance at beginning of year...................................... $1,428,641 $1,091,422 $ 949,138
Additions:
Improvements................................................ 21,708 27,725 29,375
Acquisitions................................................ 124,994 322,284 121,254
Deductions........................................................ (16,897) (12,790) (8,345)
---------- ---------- ----------
Balance at close of year.......................................... $1,558,452 $1,428,641 $1,091,422
========== ========== ==========
</TABLE>
RECONCILIATION OF ACCUMULATED DEPRECIATION
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------------
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Balance at beginning of year...................................... $ 137,229 $ 107,611 $ 86,421
Depreciation expense............................................ 51,336 32,090 25,150
Deductions...................................................... (5,078) (2,472) (3,960)
---------- ---------- ----------
Balance at close of year.......................................... $ 183,487 $ 137,229 $ 107,611
========== =========== ===========
<CAPTION>
<S> <C>
(d) See description of debt in notes 3 and 4 of Notes to
Consolidated Financial Statements.
(e) Depreciation is computed based upon the following estimated
lives:
Buildings and improvements.......................................... 40 years
Equipment and fixtures.............................................. 5-10 years
(f) Properties cross-collateralize the Credit Facility with a
consortium of banks of up to $170,000.
(g) Properties cross-collateralize the following loans:
Glimcher Holdings Limited Partnership Loan B........................ $40,000
Glimcher Holdings Limited Partnership............................... $25,000
Glimcher Centers Limited Partnership................................ $76,000
(h) Properties cross-collateralize the following loan:
Glimcher Properties Limited Partnership............................. $50,000
(i) Properties cross-collateralize the following loan:
Morgantown Mall Associates Limited Partnership...................... $57,656
(j) Properties cross-collateralize the following bridge loan:
Glimcher Properties Limited Partnership............................. $89,420
</TABLE>
74
<PAGE> 75
<TABLE>
<S> <C>
(k) Properties cross-collaterize the following bridge loan:
Glimcher Properties Limited Partnership........................................... $24,375
(l) Properties cross-collateralize the following bridge loan:
Glimcher Properties Limited Partnership........................................... $19,350
(m) Regal Cinemas at The Mall at Fairfield Commons collateralizes the following loan:
Glimcher Properties Limited Partnership........................................ $ 8,363
</TABLE>
75
<PAGE> 1
Exhibit 10.108
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Milos Markovic, Esq.
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
- ------------------------------------------------------------------------------
MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT
----------------------------------------------------
THIS MORTGAGE is made as of June 28, 1999, between GLIMCHER PROPERTIES
LIMITED PARTNERSHIP a Delaware limited partnership (the "Mortgagor") 20 South
Third Street, Columbus, Ohio 43215, and JACKSON NATIONAL LIFE INSURANCE COMPANY,
a Michigan corporation (the "Mortgagee"), c/o PPM Finance, Inc., 225 West Wacker
Drive, Suite 1200, Chicago, Illinois 60606.
1. MORTGAGE AND SECURED OBLIGATIONS.
--------------------------------
1.1. MORTGAGE. For purposes of securing payment and
performance of the Secured Obligations defined and described in SECTION 1.2,
Mortgagor hereby irrevocably and unconditionally grants, bargains, sells,
conveys, mortgages, warrants, assigns and pledges to Mortgagee, with right of
entry and possession, and with power of sale, all estate, right, title and
interest which Mortgagor now has or may later acquire in and to the following
property (all or any part of such property, or any interest in all or any part
of it, as the context may require, the "Property"):
(a) the real property located in the County of Colleton, State
of South Carolina and more particularly described in EXHIBIT A attached
hereto, together with all existing and future easements and rights
affording access to it (the "Land");
(b) all buildings, structures and improvements now located or
later to be constructed on the Land (the "Improvements");
(c) all existing and future appurtenances, privileges,
easements, franchises and tenements of the Land, including all
minerals, oil, gas, other hydrocarbons and associated substances,
sulfur, nitrogen, carbon dioxide, helium and other commercially
valuable substances which may be in, under or produced from any part of
the Land, all development rights and credits, air rights, water, water
rights (whether riparian, appropriative or otherwise, and whether or
not appurtenant) and water stock, and any land lying in the streets,
roads or avenues, open or proposed, in front of or adjoining the Land
and Improvements;
(d) all existing and future leases, subleases, subtenancies,
licenses, occupancy agreements and concessions ("leases", as defined in
the Assignment of Leases and Rents described in SECTION 2 herein,
executed and delivered to Lender contemporaneously
<PAGE> 2
herewith) relating to the use and enjoyment of all or any part of the
Land and Improvements, and any and all guaranties and other agreements
relating to or made in connection with any of such leases;
(e) all goods, materials, supplies, chattels, furniture,
fixtures, equipment and machinery now or later to be attached to,
placed in or on, or used in connection with the use, enjoyment,
occupancy or operation of all or any part of the Land and Improvements,
whether stored on the Land or elsewhere, including all pumping plants,
engines, pipes, ditches and flumes, and also all gas, electric,
cooking, heating, cooling, air conditioning, lighting, refrigeration
and plumbing fixtures and equipment, all of which shall be considered
to the fullest extent of the law to be real property for purposes of
this Mortgage;
(f) all building materials, equipment, work in process or
other personal property of any kind, whether stored on the Land or
elsewhere, which have been or later will be acquired for the purpose of
being delivered to, incorporated into or installed in or about the Land
or Improvements;
(g) all of Mortgagor's interest in and to the Loan funds,
whether disbursed or not, the Escrow Accounts (as defined in SECTION
3.1 of the Loan Agreement) and any of Mortgagor's funds now or later to
be held by or on behalf of Mortgagee;
(h) all rights to the payment of money, accounts, accounts
receivable, reserves, deferred payments, refunds, cost savings,
payments and deposits, whether now or later to be received from third
parties (including all earnest money sales deposits) or deposited by
Mortgagor with third parties (including all utility deposits), contract
rights, development and use rights, governmental permits and licenses,
applications, architectural and engineering plans, specifications and
drawings, as-built drawings, chattel paper, instruments, documents,
notes, drafts and letters of credit (other than letters of credit in
favor of Mortgagee), which arise from or relate to construction on the
Land or to any business now or later to be conducted on it, or to the
Land and Improvements generally;
(i) all proceeds, including all claims to and demands for
them, of the voluntary or involuntary conversion of any of the Land,
Improvements or the other property described above into cash or
liquidated claims, including proceeds of all present and future fire,
hazard or casualty insurance policies and all condemnation awards or
payments now or later to be made by any public body or decree by any
court of competent jurisdiction for any taking or in connection with
any condemnation or eminent domain proceeding, and all causes of action
and their proceeds for any damage or injury to the Land, Improvements
or the other property described above or any part of them, or breach of
warranty in connection with the construction of the Improvements,
including causes of action arising in tort, contract, fraud or
concealment of a material fact;
(j) all books and records pertaining to any and all of the
property described above, including computer-readable memory and
software necessary to access and process such memory ("Books and
Records"). Notwithstanding anything in the
-2-
<PAGE> 3
foregoing to the contrary, Books and Records shall not be deemed to
include the general corporate books and records of the Mortgagor which
are maintained by Mortgagor on a consolidated basis for all of
Mortgagor's properties (which properties include the Property being
secured hereunder) except to the extent that information in such
consolidated books and records pertains to the Property secured
hereunder;
(k) (i) all other agreements heretofore or hereafter entered
into relating to the construction, ownership, operation, management,
leasing or use of the Land or Improvements; (ii) any and all present
and future amendments, modifications, supplements, and addenda to any
of the items described in (i) above; (iii) any and all guarantees,
warranties and other undertakings (including payment and performance
bonds) heretofore or hereafter entered into or delivered with respect
to any of the items described in clauses (i) and (ii) above; (iv) all
trade names, trademarks, logos and other materials used to identify or
advertise, or otherwise relating to the Land or Improvements; and (v)
all building permits, governmental permits, licenses, variances,
conditional or special use permits, and other authorizations
(collectively, the "Permits") now or hereafter issued in connection
with the construction, development, ownership, operation, management,
leasing or use of the Land or Improvements, to the fullest extent that
the same or any interest therein may be legally assigned by Mortgagor;
and
(l) all proceeds of, additions and accretions to,
substitutions and replacements for, and changes in any of the property
described above.
Capitalized terms used above and elsewhere in this Mortgage without definition
have the meanings given them in the Loan Agreement referred to in SECTION 1.2
below.
1.2. SECURED OBLIGATIONS. This Mortgage is made for the
purpose of securing the following obligations (the "Secured Obligations") in any
order of priority that Mortgagee may choose:
(a) Payment of all obligations at any time owing under a
Promissory Note (the "Note") of even date herewith, payable by
Mortgagor as maker in the stated principal amount of Ninety Million
Dollars ($90,000,000.00) to the order of Mortgagee, which Note matures
and is due and payable in full not later than____________, ______; and
(b) Payment and performance of all obligations of Mortgagor
under a Loan Agreement of even date herewith between Mortgagor, as
borrower, and Mortgagee, as lender (the "Loan Agreement"); and
(c) Payment and performance of all obligations of Mortgagor
under this Mortgage; and
(d) Payment and performance of any obligations of Mortgagor
under any Loan Documents (as defined in the Loan Agreement) which are
executed by Mortgagor, including without limitation the Environmental
Indemnity; and
(e) Payment and performance of all future advances and other
obligations that Mortgagor or any successor in ownership of all or part
of the Property may agree to pay
-3-
<PAGE> 4
and/or perform (whether as principal, surety or guarantor) for the
benefit of Mortgagee, when a writing evidences the parties' agreement
that the advance or obligation be secured by this Mortgage; and
(f) Payment and performance of all modifications, amendments,
extensions and renewals, however evidenced, of any of the Secured
Obligations.
All persons who may have or acquire an interest in all or any part of the
Property will be considered to have notice of, and will be bound by, the terms
of the Secured Obligations and each other agreement or instrument made or
entered into in connection with each of the Secured Obligations. These terms
include any provisions in the Note or the Loan Agreement which provide that the
interest rate on one or more of the Secured Obligations may vary from time to
time.
2. ASSIGNMENT OF RENTS. As an inducement to Mortgagee to make the loan evidenced
by the Note and the Loan Agreement, Mortgagor has contemporaneously herewith
executed and delivered to Mortgagee an Assignment of Leases and Rents with
respect to the Property.
3. GRANT OF SECURITY INTEREST.
--------------------------
3.1. SECURITY AGREEMENT. The parties acknowledge that some of
the Property and some or all of the Rents (as defined in the Assignment of
Leases and Rents) may be determined under applicable law to be personal property
or fixtures. To the extent that any Property or Rents may be personal property,
Mortgagor as debtor hereby grants Mortgagee as secured party a security interest
in all such Property and Rents, to secure payment and performance of the Secured
Obligations. This Mortgage constitutes a security agreement under the Uniform
Commercial Code as in effect in the State in which the Property is located (the
"Code), covering all such Property and Rents.
3.2. FINANCING STATEMENTS. Mortgagor shall execute one or more
financing statements and such other documents as Mortgagee may from time to time
require to perfect or continue the perfection of Mortgagee's security interest
in any Property or Rents. Mortgagor shall pay all fees and costs that Mortgagee
may incur in filing such documents in public offices and in obtaining such
record searches as Mortgagee may reasonably require. In case Mortgagor fails to
execute any financing statements or other documents for the perfection or
continuation of any security interest, Mortgagor hereby appoints Mortgagee as
its true and lawful attorney-in-fact to execute any such documents on its
behalf.
3.3. FIXTURE FILING. This Mortgage constitutes a financing
statement filed as a fixture filing under Sections 9-313 and 9-402 of the Code,
as amended or recodified from time to time, covering any of the Property which
now is or later may become fixtures attached to the Land or the Improvements.
The following addresses are the mailing addresses of Mortgagor, as debtor under
the Code, and Mortgagee, as secured party under the Code, respectively:
-4-
<PAGE> 5
MORTGAGOR: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
MORTGAGEE: Jackson National Life Insurance Company
c/o PPM Finance, Inc.
225 West Wacker Drive, Suite 1200
Chicago, Illinois 60606
4. REPRESENTATIONS, COVENANTS AND AGREEMENTS.
-----------------------------------------
4.1. GOOD TITLE. Mortgagor covenants that it is lawfully
seized of the Property, that the Property is unencumbered except for the
Permitted Exceptions (as defined in the Loan Agreement), and that it has good
right, full power and lawful authority to convey and mortgage the same, and that
it will warrant and forever defend the Property and the quiet and peaceful
possession of the same against the lawful claims of all persons whomsoever.
4.2. INSURANCE. In the event of any loss or damage to any
portion of the Property due to fire or other casualty, or a taking of any
portion of the Property by condemnation or under the power of eminent domain,
the settlement of all insurance and condemnation claims and awards and the
application of insurance and condemnation proceeds shall be governed by SECTION
5 of the Loan Agreement.
4.3. STAMP TAX. If, by the laws of the United States of
America, or of any state or political subdivision having jurisdiction over
Mortgagor, any tax is due or becomes due in respect of the issuance of the Note,
or recording of this Mortgage, Mortgagor covenants and agrees to pay such tax in
the manner required by any such law. Mortgagor further covenants to hold
harmless and agrees to indemnify Mortgagee, its successors or assigns, against
any liability incurred by reason of the imposition of any tax on the issuance of
the Note or recording of this Mortgage.
4.4. CHANGES IN TAXATION. Other than a tax that may arise in
connection with a transfer of the Note by Mortgagee or that is imposed on the
income of the Mortgagee, in the event of the enactment after this date of any
law of the State in which the Property is located or any political subdivision
thereof deducting from the value of land for the purpose of taxation any lien
thereon, or imposing upon Mortgagee the payment of the whole or any part of the
taxes or assessments or charges or liens herein required to be paid by
Mortgagor, or changing in any way the laws relating to the taxation of mortgages
or debts secured by mortgages or the Mortgagee's interest in the Property, or
the manner of collection of taxes, so as to affect this Mortgage or the Secured
Obligations, then Mortgagor, upon demand by Mortgagee, shall pay such taxes or
assessments, or reimburse Mortgagee therefor; provided, however, that if in the
opinion of counsel for Mortgagee (i) it might be unlawful to require Mortgagor
to make such payment or (ii) the making of such payment might result in the
imposition of interest beyond the maximum amount permitted by law, then
Mortgagee may elect, by notice in writing given to Mortgagor, to declare
-5-
<PAGE> 6
all of the Secured Obligations to be and become due and payable sixty (60) days
from the giving of such notice.
4.5. SUBROGATION. Mortgagee shall be subrogated to the liens
of all encumbrances, whether released of record or not, which are discharged in
whole or in part by Mortgagee in accordance with this Mortgage or with the
proceeds of any loan secured by this Mortgage.
4.6. NOTICE OF CHANGE. Mortgagor shall give Mortgagee prior
written notice of any change in: (a) the location of its place of business or
its chief executive office if it has more than one place of business; (b) the
location of any of the Property, including the Books and Records; and (c)
Mortgagor's name or business structure. Unless otherwise approved by Mortgagee
in writing, all Property that consists of personal property (other than the
Books and Records) will be located on the Land and all Books and Records will be
located at Mortgagor's place of business or chief executive office if Mortgagor
has more than one place of business.
4.7. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL
SECURITY. From time to time, Mortgagee may perform any of the following acts
without incurring any liability or giving notice to any person: (i) release any
person liable for payment of any Secured Obligation; (ii) extend the time for
payment, or otherwise alter the terms of payment, of any Secured Obligation;
(iii) accept additional real or personal property of any kind as security for
any Secured Obligation, whether evidenced by deeds of trust, mortgages, security
agreements or any other instruments of security; (iv) alter, substitute or
release any property securing the Secured Obligations; (v) consent to the making
of any plat or map of the Property or any part of it; (vi) join in granting any
easement or creating any restriction affecting the Property; or (vii) join in
any subordination or other agreement affecting this Mortgage or the lien of it.
5. DEFAULTS AND REMEDIES.
---------------------
5.1. EVENTS OF DEFAULT. An "Event of Default," as defined in
the Loan Agreement, shall constitute an Event of Default hereunder.
5.2. REMEDIES At any time after an Event of Default, Mortgagee
shall be entitled to invoke any and all of the rights and remedies described
below, in addition to all other rights and remedies available to Mortgagee at
law or in equity. All of such rights and remedies shall be cumulative, and the
exercise of any one or more of them shall not constitute an election of
remedies.
(a) ACCELERATION. Mortgagee may declare any or all of the
Secured Obligations to be due and payable immediately.
(b) RECEIVER. To the extent state law where the property is
situated may permit, Mortgagee shall, as a matter of right, without
notice and without giving bond to Mortgagor or anyone claiming by,
under or through Mortgagor, and without regard for the solvency or
insolvency of Mortgagor or the then value of the Property, to the
extent permitted by applicable law, be entitled to have a receiver
appointed for all or any part of the Property and the Rents, and the
proceeds, issues and profits thereof, with the rights and powers
referenced below and such other rights and powers as the court making
such appointment shall confer, and Mortgagor hereby consents to the
appointment of such
-6-
<PAGE> 7
receiver and shall not oppose any such appointment. Such receiver shall
have all powers and duties prescribed by the applicable laws in effect in the
state in which the Property is located, all other powers which are necessary or
usual in such cases for the protection, possession, control, management and
operation of the Property, and such rights and powers as Mortgagee would have,
upon entering and taking possession of the Property under subsection (c) below.
(c) ENTRY. Mortgagee, in person, by agent or by
court-appointed receiver, may enter, take possession of, manage and
operate all or any part of the Property, and may also do any and all
other things in connection with those actions that Mortgagee may in its
sole discretion consider necessary and appropriate to protect the
security of this Mortgage. Such other things may include: taking and
possessing all of Mortgagor's or the then owner's Books and Records;
entering into, enforcing, modifying or canceling leases on such terms
and conditions as Mortgagee may consider proper; obtaining and evicting
tenants; fixing or modifying Rents; collecting and receiving any
payment of money owing to Mortgagor; completing any unfinished
construction; and/or contracting for and making repairs and
alterations. If Mortgagee so requests, Mortgagor shall assemble all of
the Property that has been removed from the Land and make all of it
available to Mortgagee at the site of the Land. Mortgagor hereby
irrevocably constitutes and appoints Mortgagee as Mortgagor's
attorney-in-fact to perform such acts and execute such documents as
Mortgagee in its sole discretion may consider to be appropriate in
connection with taking these measures, including endorsement of
Mortgagor's name on any instruments.
(d) CURE; PROTECTION OF SECURITY. Mortgagee may cure any
breach or default of Mortgagor, and if it chooses to do so in
connection with any such cure, Mortgagee may also enter the Property
and/or do any and all other things which it may in its sole discretion
consider necessary and appropriate to protect the security of this
Mortgage. Such other things may include: appearing in and/or defending
any action or proceeding which purports to affect the security of, or
the rights or powers of Mortgagee under, this Mortgage; paying,
purchasing, contesting or compromising any encumbrance, charge, lien or
claim of lien which in Mortgagee's sole judgment is or may be senior in
priority to this Mortgage, such judgment of Mortgagee to be conclusive
as between the parties to this Mortgage; obtaining insurance and/or
paying any premiums or charges for insurance required to be carried
under the Loan Agreement; otherwise caring for and protecting any and
all of the Property; and/or employing counsel, accountants, contractors
and other appropriate persons to assist Mortgagee. Mortgagee may take
any of the actions permitted under this SECTION 5.2(d) either with or
without giving notice to any person. Any amounts expended by
Mortgagee under this SECTION 5.2(d) shall be secured by
this Mortgage.
(e) UNIFORM COMMERCIAL CODE REMEDIES. Mortgagee may exercise
any or all of the remedies granted to a secured party under Code.
(f) FORECLOSURE; LAWSUITS. Mortgagee shall have the right, in
one or several concurrent or consecutive proceedings, to foreclose the
lien hereof upon the Property or any part thereof, for the Secured
Obligations, or any part thereof, by any proceedings
-7-
<PAGE> 8
appropriate under applicable law. Mortgagee or its nominee may bid and
become the purchaser of all or any part of the Property at any
foreclosure or other sale hereunder, and the amount of Mortgagee's
successful bid shall be credited on the Secured Obligations. Without
limiting the foregoing, Mortgagee may proceed by a suit or suits in law
or equity, whether for specific performance of any covenant or
agreement herein contained or contained in any of the other Loan
Documents (as defined in the Loan Agreement), or in aid of the
execution of any power herein granted, or for any foreclosure under the
judgment or decree of any court of competent jurisdiction, or for
damages, or to collect the indebtedness secured hereby, or for the
enforcement of any other appropriate legal, equitable, statutory or
contractual remedy. Mortgagee may sell the Property at public auction
in one or more parcels, at Mortgagee's option, and convey the same to
the purchaser in fee simple, Mortgagor to remain liable for any
deficiency for which Mortgagor shall be personally liable.
(g) OTHER REMEDIES. Mortgagee may exercise all rights and
remedies contained in any other instrument, document, agreement or
other writing heretofore, concurrently or in the future executed by
Mortgagor or any other person or entity in favor of Mortgagee in
connection with the Secured Obligations or any part thereof, without
prejudice to the right of Mortgagee thereafter to enforce any
appropriate remedy against Mortgagor. Mortgagee shall have the right to
pursue all remedies afforded to a mortgagee under the applicable laws
of the state in which the Property is located, and shall have the
benefit of all of the provisions of any such laws, including all
amendments thereto which may become effective from time to time after
the date hereof. In the event any provision of any such laws may be
repealed, Mortgagee shall have the benefit of such provision as most
recently existing prior to such repeal, as though the same were
incorporated herein by express reference.
(h) POWER OF SALE FOR PERSONAL PROPERTY. Under this power of
sale, Mortgagee shall have the discretionary right to cause some or all
of the Property, which constitutes personal property, to be sold or
otherwise disposed of in any combination and in any manner permitted by
applicable law.
(i) For purposes of this power of sale, Mortgagee may
elect to treat as personal property any Property which is
intangible or which can be severed from the Land or
Improvements without causing structural damage. If it chooses
to do so, Mortgagee may dispose of any personal property in
any manner permitted by Article 9 of the Code, including any
public or private sale, or in any manner permitted by any
other applicable law.
(ii) In connection with any sale or other disposition
of such Property, Mortgagor agrees that the following
procedures constitute a commercially reasonable sale:
Mortgagee shall mail written notice of the sale to Mortgagor
not later than ten (10) days prior to such sale. Upon receipt
of any written request, Mortgagor will make the Property
available to any bona fide prospective purchaser for
inspection during reasonable business hours. Notwithstanding,
Mortgagee shall be under no obligation to consummate a sale
if, in its judgment, none of the offers received by it equals
the fair value of the Property offered for
-8-
<PAGE> 9
sale. The foregoing procedures do not constitute the only
procedures that may be commercially reasonable.
(i) SINGLE OR MULTIPLE FORECLOSURE SALES. If the Property
consists of more than one lot, parcel or item of property, Mortgagee
may:
(i) designate the order in which the lots, parcels
and/or items shall be sold or disposed of or offered for sale
or disposition; and
(ii) elect to dispose of the lots, parcels and/or
items through a single consolidated sale or disposition to be
held or made under or in connection with judicial proceedings,
or by virtue of a judgment and decree of foreclosure and sale,
or pursuant to the power of sale contained herein; or through
two or more such sales or dispositions; or in any other manner
Mortgagee may deem to be in its best interests (any
foreclosure sale or disposition as permitted by the terms
hereof is sometimes referred to herein as a "Foreclosure
Sale;" and any two or more such sales, "Foreclosure Sales").
If it chooses to have more than one Foreclosure Sale, Mortgagee at its option
may cause the Foreclosure Sales to be held simultaneously or successively, on
the same day, or on such different days and at such different times and in such
order as it may deem to be in its best interests. No Foreclosure Sale shall
terminate or affect the liens of this Mortgage on any part of the Property which
has not been sold, until all of the Secured Obligations have been paid in full.
5.3. APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of
any Foreclosure Sale shall be applied in the following manner:
(a) First, to pay the portion of the Secured
Obligations attributable to the expenses of sale, costs of any
action and any other sums for which Mortgagor is obligated to
reimburse Mortgagee hereunder or under the other Loan
Documents;
(b) Second, to pay the portion of the Secured
Obligations attributable to any sums expended or advanced by
Mortgagee under the terms of this Mortgage which then remain
unpaid;
(c) Third, to pay all other Secured Obligations in
any order and proportions as Mortgagee in its sole discretion
may choose; and
(d) Fourth, to remit the remainder, if any, to the
person or persons entitled to it.
6. RELEASE OF LIEN. If Mortgagor shall fully pay and perform
all of the Secured Obligations and comply with all of the other terms and
provisions hereof and the other Loan Documents to be performed and complied with
by Mortgagor, then Mortgagee shall release this Mortgage and the lien thereof by
proper instrument upon payment, performance and discharge of all of the Secured
Obligations and payment by Mortgagor of any filing fee in connection with such
release.
-9-
<PAGE> 10
7. MISCELLANEOUS PROVISIONS.
------------------------
7.1. ADDITIONAL PROVISIONS. The Loan Documents fully state all of the terms and
conditions of the parties' agreement regarding the matters mentioned in or
incidental to this Mortgage. The Loan Documents also grant further rights to
Mortgagee and contain further agreements and affirmative and negative covenants
by Mortgagor which apply to this Mortgage and the Property.
7.2. GIVING OF NOTICE. Any notice, demand, request or other
communication which any party hereto may be required or may desire to give
hereunder shall be given as provided in SECTION 9.3 of the Loan Agreement.
7.3. REMEDIES NOT EXCLUSIVE. No action for the enforcement of
the lien or any provision hereof shall be subject to any defense which would not
be good and available to the party interposing same in an action at law upon the
Note. Mortgagee shall be entitled to enforce payment and performance of any of
the Secured Obligations and to exercise all rights and powers under this
Mortgage or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Secured Obligations may now or hereafter be
otherwise secured, whether by mortgage, deed of trust, pledge, lien, assignment
or otherwise. Neither the acceptance of this Mortgage nor its enforcement,
whether by court action or other powers herein contained, shall prejudice or in
any manner affect Mortgagee's right to realize upon or enforce any other
security now or hereafter held by Mortgagee, it being agreed that Mortgagee
shall be entitled to enforce this Mortgage and any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. No waiver of any default of the Mortgagor hereunder shall
be implied from any omission by Mortgagee to take any action on account of such
default if such default persists or is repeated, and no express waiver shall
affect any default other than the default specified in the express waiver and
that only for the time and to the extent therein stated. No acceptance of any
payment of any one or more delinquent installments which does not include
interest at the Default Rate from the date of delinquency, together with any
required late charge, shall constitute a waiver of the right of Mortgagee at any
time thereafter to demand and collect payment of interest at such Default Rate
or of late charges, if any.
7.4. WAIVER OF STATUTORY RIGHTS. To the extent permitted by
law, Mortgagor hereby agrees that it shall not and will not apply for or avail
itself of any appraisement, valuation, stay, extension or exemption laws, or any
so-called "Moratorium Laws," now existing or hereafter enacted, in order to
prevent or hinder the enforcement or foreclosure of this Mortgage, but hereby
waives the benefit of such laws. Mortgagor for itself and all who may claim
through or under it waives any and all right to have the property and estates
comprising the Property marshaled upon any foreclosure of the lien hereof and
agrees that any court having jurisdiction to foreclose such lien may order the
Property sold as an entirety. Mortgagor hereby waives any and all rights of
redemption from sale under the power of sale contained herein or any order or
decree of foreclosure of this Mortgage on its behalf and on behalf of each and
every person, except decree or judgment creditors of Mortgagor, acquiring any
interest in or title to the Property subsequent to the date of this Mortgage.
-10-
<PAGE> 11
7.5. ESTOPPEL AFFIDAVITS. Mortgagor, within fifteen (15) days after written
request from Mortgagee, shall furnish a written statement, duly acknowledged,
setting forth the unpaid principal of, and interest on, the Secured Obligations
and stating whether or not any offset or defense exists against such Secured
Obligations, and covering such other matters as Mortgagee may reasonably
require.
7.6. MERGER. No merger shall occur as a result of Mortgagee's
acquiring any other estate in or any other lien on the Property unless Mortgagee
consents to a merger in writing.
7.7. BINDING ON SUCCESSORS AND ASSIGNS. This Mortgage and all
provisions hereof shall be binding upon Mortgagor and all persons claiming under
or through Mortgagor, and shall inure to the benefit of Mortgagee and its
successors and assigns.
7.8. CAPTIONS. The captions and headings of various paragraphs
of this Mortgage are for convenience only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
7.9. SEVERABILITY. If all or any portion of any provision of
this Mortgage shall be held to be invalid, illegal or unenforceable in any
respect, then such invalidity, illegality or unenforceability shall not affect
any other provision hereof or thereof, and such provision shall be limited and
construed as if such invalid, illegal or unenforceable provision or portion
thereof was not contained herein.
7.10. EFFECT OF EXTENSIONS OF TIME AND AMENDMENTS. If the
payment of the Secured Obligations or any part thereof be extended or varied or
if any part of the security be released, all persons now or at any time
hereafter liable therefor, or interested in the Property, shall be held to
assent to such extension, variation or release, and their liability and the lien
and all provisions hereof shall continue in full force, the right of recourse,
if any, against all such persons being expressly reserved by Mortgagee,
notwithstanding such extension, variation or release. Nothing in this SECTION
7.10 shall be construed as waiving any provision contained herein or in the Loan
Documents which provides, among other things, that it shall constitute an Event
of Default if the Property be sold, conveyed, or encumbered.
7.11. MORTGAGEE'S LIEN FOR SECURED OBLIGATIONS. At all times,
regardless of whether any proceeds of the loan secured hereby have been
disbursed, this Mortgage secures (in addition to the amounts secured hereby) the
payment of any and all commissions, service charges, liquidated damages,
expenses and advances due to or incurred by Mortgagee in connection with such
loan; provided, however, that in no event shall the total amount secured hereby
exceed two hundred percent (200%) of the face amount of the Note.
7.12. APPLICABLE LAW. This Mortgage shall be governed by and
construed under the internal laws of the State in which the Property is located.
7.13. LIMITATION OF LIABILITY. The personal liability of
Mortgagor and its general partner hereunder is limited to the extent set forth
in SECTION 9.18 of the Loan Agreement.
7.14. DUE ON SALE CLAUSE. As more fully set forth in SECTION
6.4 of the Loan Agreement, the transfer or encumbrance of the Property, or any
interest therein, or the transfer of
-11-
<PAGE> 12
an interest in Mortgagor, except for the permitted transfers set forth in
SECTION 6.5 of the Loan Agreement, without prior written consent of Mortgagee,
shall constitute an Event of Default.
7.15. TIME IS OF THE ESSENCE. Time is of the essence with
respect to each and every covenant, agreement and obligation of Mortgagor under
this Mortgage, the Note and the other Loan Documents.
7.16. RECORDATION. Mortgagor forthwith upon the execution and
delivery of this Mortgage, and thereafter from time to time, will cause this
Mortgage, and any security instrument creating a lien or evidencing the lien
hereof upon the Property, or any portion thereof, 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 the lien hereof upon, and the interest of Mortgagee in, the
Property.
Mortgagor will pay all filing, registration or recording fees
and taxes, and all expenses incident to the preparation, execution and
acknowledgment of this Mortgage, any mortgage supplemental hereto, any security
instrument with respect to the Property and any instrument of further assurance,
and all federal, state, county and municipal stamp taxes, duties, impositions,
assessments and charges arising out of or in connection with the execution and
delivery of the Note, this Mortgage, any mortgage supplemental hereto, any
security instrument, any other Loan Documents or any instrument of further
assurance.
7.17. MODIFICATIONS. This Mortgage may not be changed or
terminated except in writing signed by both parties. The provisions of this
Mortgage shall extend and be applicable to all renewals, amendments, extensions,
consolidations, and modifications of the other Loan Documents, and any and all
references herein to the Loan Documents shall be deemed to include any such
renewals, amendments, extensions, consolidations or modifications thereof.
7.18. INDEPENDENCE OF SECURITY. Except as may exist pursuant
to easements and agreements existing as of the date hereof which have been
disclosed to Mortgagee, Mortgagor shall not by act or omission permit any
building or other improvement on any premises not subject to the lien of this
Mortgage to rely on the Property or any part thereof or any interest therein to
fulfill any municipal or governmental requirement, and Mortgagor hereby assigns
to Mortgagee any and all rights to give consent for all or any portion of the
Property to rely on any premises not subject to the lien of this Mortgage or any
interest therein to fulfill any municipal or governmental requirement. Mortgagor
shall not by act or omission impair the integrity of the Property as a single
zoning lot, and as one or more complete tax parcels, separate and apart from all
other premises. Any act or omission by Mortgagor which would result in a
violation of any of the provisions of this SECTION 7.18 shall be void.
-12-
<PAGE> 13
7.19. WAIVER OF APPRAISAL RIGHT. The laws of South Carolina
provide that in any real estate foreclosure proceeding, a defendant against whom
a personal judgment is taken or asked may within thirty (30) days after the sale
of the Mortgaged Property apply to the court for an order of appraisal. The
statutory appraisal value as approved by the court would be substituted for the
high bid and may decrease the amount of an deficiency owing in connection with
the transaction. THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY
APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL
BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE MORTGAGED
PROPERTY.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage, under seal, as of the
date first above written.
Signed, sealed and delivered GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
(Seal)
/s/ Dennis Kovach By: Glimcher Properties Corporation,
- ------------------------------ a Delaware corporation, its sole
/s/ Zuchel L. Goetz General Partner
- -----------------------------
By: /s/ William G. Cornely
-------------------------------------
Its: Executive Vice President/coo/cfo
--------------------------------
ACKNOWLEDGEMENT
STATE OF ILLINOIS)
)
COUNTY OF COOK )
On June 25, 1999, before me, the undersigned, a Notary Public in and
for the county and state aforesaid, personally appeared William G. Cornely, the
Executive Vice President/COO & CFO (title) of Glimcher Properties Corporation, a
Delaware corporation to me (or proved to me on the basis of satisfactory
evidence) to be the same of the general partner of GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, the partnership therein named, and
acknowledged the execution thereof to be the free and voluntary act and deed of
said partnership for the uses and purposes therein mentioned and on oath stated
that they were authorized to execute the said instrument on behalf of said
partnership.
WITNESS my hand and official seal.
/s/ Linda J. Polka
--------------------------------
Notary Public in and for the State
Of ILLINOIS
(SEAL)
My commission expires: 7-2-2000
----------
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<PAGE> 14
WALTERBORO PLAZA/COLLETON, SOUTH CARLINA
EXHIBIT A
---------
LEGAL DESCRIPTION
DESCRIPTION OF 13.088 ACRE TRACT
All that certain piece, parcel or tract of land lying in the City of
Walterboro County Colleton, State of South Carolina, consisting of 13.088 acres
known and described as Tract "A"and Tract "A-2" (Walmart Tax Lot) combined, more
particularly described as follows:
Beginning at an iron rod on the Southwestern right-of-way (37.5 feet from the
center line) of S.C. Route 64, said iron rod being 397.50 feet Southeast of the
intersection of such edge of the right-of-way with the center line of Sharon
Drive (Road S-15-3521); thence running South 38 degrees 53' 55" East for a
distance of 93.54 feet along the Southwestern right-of-way (37.5 feet from the
center line) of S.C. Route 64 to an iron rod; thence turning and running North
82 degrees 05' 52" West for a distance of 29.16 feet along Out Parcel "A" to an
ironrod; thence turning and running South 54 degrees 42' 10" West for a distance
of 146.33 feet along Out Parcel "B" to an iron rod; thence turning and running
South 38 degrees 53' 55" East for a distance of 145.00 feet along Out Parcel "B"
to an iron rod; thence turning in and running North 51 degrees 06'05" East for a
distance of 154.00 feet along Out Parcel "B" to an iron rod; thence turning and
running South 38 degrees 53' 55" East for a distance of 195.91 feet along the
Southwestern right-of-way (49.5 feet from the center line) of S.C. Route 64 to
an "X" mark on sidewalk; thence turning and running South 51 degrees 06' 05"
West for a distance of 242.98 feet along Tract "A-1" to a nail in asphalt;
thence turning and running South 38 degrees 53' 55" East for a distance of
149.63 feet along Tract "A-1" to a nail in asphalt; thence turning and running
South 71 degrees 06' 05" West for a distance of 30.86 feet along Tract "A-1" to
a nail in asphalt; thence turning and running South 38 degrees 53' 55" East, for
a distance of 85.59 feet along Tract "A-1" to an iron rod; thence turning and
running South 51 degrees 06' 05" West for a distance of 113.59 feet along Tract
"A-1" to a nail in asphalt; thence turning and running South 38 degrees 53' 55"
East for a distance of 411.75 feet along Tract "A-1" to an iron rod; thence
turning and running South 50 degrees 52' 37" West for a distance of 197.44 feet
along the lands of James S. Hiott, et al to an iron rod; thence turning and
running North 45 degrees 46' 35" West for a distance of 62.65 feet along said
Lot 87 of the Forest Hill Subdivision to an iron rod; thence turning and running
North 70 degrees 45' 00" West for a distance of
Continued...
-14-
<PAGE> 15
EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
DESCRIPTION OF 13.088 ACRE TRACT, CONTINUED...
91.50 feet along said Lot 87 and said Lot 86 of said subdivision to an
iron rod; thence turning and running South 51 degrees 01' 00" West for a
distance of 17.33 feet along said Lot 86 of said subdivision to an iron rod;
thence turning and running North 83 degrees 19' 30" West for a distance of 16.92
feet along said Lot 86 of said subdivision to an iron rod; thence turning and
running North 54 degrees 19' 30" West for a distance of 33.00 feet along said
Lot 86 of said subdivision to an iron rod; thence turning and running North 67
degrees 19' 30" West for a; distance of 102.43 feet along said Lot 85 of said
subdivision to an iron rod; thence turning and running North 45 degrees 05' 16
West for a distance of 15.02 feet along said Lot 84 of said subdivision to an
iron rod; thence turning and running North 46 degrees 17'25" West for a distance
of 67.00 feet along said Lot 84 of said subdivision to an iron rod; thence
turning and running South 83 degrees 42' 35" West for a distance of 142.00 feet
along said Lot 84 and Lot 83 of said subdivision to an iron rod; thence turning
and running North 57 degrees 25' 03" West for a distance of 44.59 feet along
said Lot 83 and said Lot 82 of said subdivision to an iron rod; thence turning
and running North 31 degrees 38' 25" East for a distance of 37.97 feet along the
lands of Sherrill C. Hiott to an iron rod; thence turning and running North 38
degrees 53' 55" West for a distance of 75.69 feet along the lands of Sherrill C.
Hiott to an iron rod; thence running North 38 degrees 53' 55" West for a
distance of 478.79 feet along the lands of Sherrill C. Hiott to an iron rod;
thence turning and running North 51 degrees 06' 05" East for a distance of
845.73 feet along the lands of Sherrill C. Hiott to an iron rod; said iron rod
being the point of beginning, which tract of land contains 13.088 acres (370,093
sq. ft.). This being the same property shown and described on a plat prepared by
Edisto Surveyors, Inc., Orangeburg, South Carolina, and signed by Richard L.
Stroman, S.C.A.L.S. entitled "Walterboro Shopping Center: dated November 4,
1994, which plat is recorded in the Office of the Clerk of Court for Colleton
County, Walterboro, South Carolina recorded in the Plat Books, for a more
accurate pictorial description of the within property, referenced may be had to
said plat of record.
Continued...
-15-
<PAGE> 16
EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
DESCRIPTION OF 3.838 ACRE TRACT (TRACT "A-1")
All that certain piece, parcel or tract of land lying the City of
Walterboro, County of Colleton, State of South Carolina, consisting of 3.838
acres known and described as Tract "A-1" more particularly described as follows:
Beginning at an "X" mark on sidewalk on the Southwestern right-of-way
(49.5 feet from the center line) of S.C. Route 64 said point being 801.50 feet
Southeast of the intersection of such edge of the right-of-way with the center
line of Sharon Drive (Road 5-15-352); thence running South 38 degrees 53' 55"
East for a distance of 84.09 feet along the Southwestern right-of-way (49.5 feet
from the center line of S.C. Route 64 to an iron rod; thence turning and running
North 51 degrees 06' 05" East for a distance of 12.00 feet along the
right-of-way of S.C. Route 64 to an iron spindle in asphalt drive; thence
turning and running South 38 degrees 53' 55" East for a distance of 159.05 feet
along the Southwestern right-of-way (37.5 feet from the center line) of S.C.
Route 64 to an iron rod; thence turning and running South 51 degrees 06' 05"
West for a distance of 104.72 feet along Out Parcel "A" to an iron rod; thence
turning and running South 38 degrees 53' 55" East for a distance of 181.86 feet
along Out Parcel "A" to an iron rod; thence turning and running North 51 degrees
06' 05" East for a distance of 84.72 feet along Out Parcel "A" to an iron rod;
thence turning, and running North 06 degrees 06' 05" East for a distance of
28.28 feet along Out Parcel "A" to an iron rod on the Southwestern right-of-way
(37.5 feet from the center line) of S.C. Route 64; thence turning and running
South 38 degrees 53' 55" East for a distance of 86.00 feet along the
Southwestern right-of-way (37.5 feet from the center line) of S.C. Route 64 to
an iron rod; thence turning and running South 51 degrees 15' 05" West for a
distance of 200.69 feet along the lands of June G. Hudson and Effie R. Griffin
to an iron rod; thence turning and running South 38 degrees 51' 03" East for a
distance of 5.40 feet along the lands of Effie R. Griffin to an iron rod; thence
turning and running South 51 degrees 09' 10" West for a distance of 49.86 feet
along the lands of Effie R. Griffin to an iron rod; thence turning and running
South 39 degrees 01'00" East for a distance of 140.00 feet along the lands of
Effie R. Griffin and the Southwestern terminus of Road S-15-631 to an iron rod
on the Southeastern right-of-way (20.00 feet from the center line of road
S-15-631); thence turning and running South 50 degrees 52' 37"
Continued...
-16-
<PAGE> 17
EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
DESCRIPTION OF 3.838 ACRE TRACT (TRACT "A-1"), CONTINUED...
West for a distance of 147.31 feet along the lands of James S. Hiott, et al to
an iron rod; thence turning and running North 38 degrees 53' 55" West for a
distance of 411.75 feet along Tract "A" to a nail in asphalt; thence turning and
running North 51 degrees 06' 05" East for a distance of 113.59 feet along Tract
"A" to an iron rod; thence turning and running North 38 degrees 53' 55" West for
a distance of 85.59 feet along Tract "A" to a nail in asphalt; thence turning
and running North 71 degrees 06' 05" East for a distance of 30.86 feet along
Tract "A" to a nail in asphalt; thence turning and running North 38 degrees 53'
55" West for a distance of 149.63 feet along Tract "A" to a nail in asphalt;
thence turning and running North 51 degrees 06' 05" East for a distance of
242.98 feet along Tract "A-2" (Wal-Mart Tax lot) to an "X" mark on sidewalk;
said "X" mark on sidewalk being the point of beginning. This being the same
property shown and described on a plat prepared by Edisto Surveyors, Inc.,
Orangeburg, South Carolina, and signed by Richard L. Stroman, S.C.R.L.S.,
entitled "Walterboro Shopping Center", dated November 4,1994, which said plat is
recorded in the office of the Clerk of Court for Colleton County, Walterboro,
South Carolina in Plat Books. For a more accurate pictorial description of the
within property, referenced may be had to said plat of record.
Together with:
Easement Parcels:
Together with easements for vehicular and pedestrian ingress and egress to and
from Tract "A-1", and easements for drainage and utilities, over and across
Outparcel "A" and Outparcel "B" on plat recorded in Plat Book 581, Page 4; said
easements being described in instrument entitled "Agreement Regarding
Outparcels", recorded in Book 509, Page 145; as modified by First Modification
recorded at Book 444, Page 253; and further modified by Second Modification
recorded at Book 471, Page 301, all in Colleton County, South Carolina.
Continued...
-17-
<PAGE> 18
EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
EASEMENT PARCELS, CONTINUED...
Also together with easements for parking and vehicular and pedestrian ingress
and egress to and from Tract "A-1", and easements for drainage and utilities,
over and across Tract "A" and Tract "A-2" on Plat recorded in Plat Book 581,
Page 4; said easements being described in instrument entitled "Agreement
Regarding Store Pad", recorded in Book 509, Page 186; as modified by First
Modification recorded at Book 444, Page 253; and further modified by Second
Modification recorded at Book 471, Page 301 all in Colleton County, South
Carolina.
DERIVATION: Being the same property conveyed to Glimcher Properties Limited
Partnership, by deed of _________________, a(n)_____________ dated __________,
recorded on _________________, in Deed Book ________________, page __________,
in the Office of the Colleton County.
TMS #:
-18-
<PAGE> 1
Exhibit 10.109
This Instrument Prepared by:
Milos Markovic, Esq.
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
DEED OF TRUST, SECURITY AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT
THIS DOCUMENT SECURES OBLIGATORY ADVANCES FOR COMMERCIAL PURPOSES
Maximum Principal Indebtedness for
Tennessee Recording tax purposes is
$_________________________________
Map No.__________________________
Parcel No._______________________
This instrument is a Uniform Commercial Code Financing Statement which is being
filed as a Fixture Filing in accordance with T.C.A. Section 47-9-402(6).
This Deed of Trust secures obligatory advances and is given for commercial
purposes; and notice of these facts is given pursuant to T.C.A.Section 47-28-101
et. seq.
<PAGE> 2
RECORDING REQUESTED BY AND Maximum Principal Indebtedness for
WHEN RECORDED RETURN TO: Tennessee Recording tax purposes is
Sonnenschein Nath & Rosenthal $_________________________________
8000 Sears Tower
Chicago, Illinois 60606 Map No.___________________________
Attention: Milos Markovic, Esq. Parcel No.________________________
- ------------------------------------------------------------------------------
DEED OF TRUST, SECURITY AGREEMENT,
----------------------------------
FIXTURE FILING AND FINANCING STATEMENT
--------------------------------------
THIS DOCUMENT SECURES OBLIGATORY ADVANCES FOR COMMERCIAL PURPOSES
-----------------------------------------------------------------
THIS DEED OF TRUST, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING
STATEMENT, together with all amendments and supplements hereto ("DEED OF TRUST")
is made as of June 28, 1999, between GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership (the "TRUSTOR"), having an address at 20 South
Third Street, Columbus, Ohio 43215 and Stuart Jones, an individual, having an
address at 424 Church Street, Nashville, TN 37219, as trustee ("TRUSTEE") ,in
favor of JACKSON NATIONAL LIFE INSURANCE COMPANY, a Michigan corporation (the
"BENEFICIARY"), having an address c/o PPM Finance, Inc., 225 West Wacker Drive,
Suite 1200, Chicago, Illinois 60606.
1. DEED OF TRUST AND SECURED OBLIGATIONS.
-------------------------------------
1.1. DEED OF TRUST. For purposes of securing payment and performance of
the Secured Obligations defined and described in SECTION 1.2, Trustor, hereby
irrevocably and unconditionally grants, bargains, sells, conveys, mortgages,
warrants, assigns and pledges to Trustee, for the benefit of Beneficiary, with
right of entry and possession, and with power of sale, all estate, right, title
and interest which Trustor now has or may later acquire in and to the following
property (all or any part of such property, or any interest in all or any part
of it, as the context may require, the "PROPERTY"):
(a) the real property located in the County of Cheatam, State
of Tennessee and more particularly described in EXHIBIT A attached hereto,
together with all existing and future easements and rights affording access to
it (the "LAND");
(b) all buildings, structures and improvements now located or
later to be constructed on the Land (the "IMPROVEMENTS");
(c) all existing and future appurtenances, privileges,
easements, franchises and tenements of the Land, including all minerals, oil,
gas, other hydrocarbons and associated substances, sulfur, nitrogen, carbon
dioxide, helium and other commercially valuable substances
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which may be in, under or produced from any part of the Land, all development
rights and credits, air rights, water, water rights (whether riparian,
appropriative or otherwise, and whether or not appurtenant) and water stock, and
any land lying in the streets, roads or avenues, open or proposed, in front of
or adjoining the Land and Improvements;
(d) all existing and future leases, subleases, subtenancies,
licenses, occupancy agreements and concessions ("leases", as defined in the
Assignment of Leases and Rents described in SECTION 2 herein, executed and
delivered to Lender contemporaneously herewith) relating to the use and
enjoyment of all or any part of the Land and Improvements, and any and all
guaranties and other agreements relating to or made in connection with any of
such leases;
(e) all goods, materials, supplies, chattels, furniture,
fixtures, equipment and machinery now or later to be attached to, placed in or
on, or used in connection with the use, enjoyment, occupancy or operation of all
or any part of the Land and Improvements, whether stored on the Land or
elsewhere, including all pumping plants, engines, pipes, ditches and flumes, and
also all gas, electric, cooking, heating, cooling, air conditioning, lighting,
refrigeration and plumbing fixtures and equipment, all of which shall be
considered to the fullest extent of the law to be real property for purposes of
this Deed of Trust;
(f) all building materials, equipment, work in process or
other personal property of any kind, whether stored on the Land or elsewhere,
which have been or later will be acquired for the purpose of being delivered to,
incorporated into or installed in or about the Land or Improvements;
(g) all of Trustor's interest in and to the Loan funds,
whether disbursed or not, the Escrow Accounts (as defined in SECTION 3.1of the
Loan Agreement) and any of Trustor's funds now or later to be held by or on
behalf of Trustee for the benefit of Beneficiary;
(h) all rights to the payment of money, accounts, accounts
receivable, reserves, deferred payments, refunds, cost savings, payments and
deposits, whether now or later to be received from third parties (including all
earnest money sales deposits) or deposited by Trustor with third parties
(including all utility deposits), contract rights, development and use rights,
governmental permits and licenses, applications, architectural and engineering
plans, specifications and drawings, as-built drawings, chattel paper,
instruments, documents, notes, drafts and letters of credit (other than letters
of credit in favor of Beneficiary), which arise from or relate to construction
on the Land or to any business now or later to be conducted on it, or to the
Land and Improvements generally;
(i) all proceeds, including all claims to and demands for
them, of the voluntary or involuntary conversion of any of the Land,
Improvements or the other property described above into cash or liquidated
claims, including proceeds of all present and future fire, hazard or casualty
insurance policies and all condemnation awards or payments now or later to be
made by any public body or decree by any court of competent jurisdiction for any
taking or in connection with any condemnation or eminent domain proceeding, and
all causes of action and their proceeds for any damage or injury to the Land,
Improvements or the other property described above or any part of them, or
breach of warranty in connection with the construction of
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the Improvements, including causes of action arising in tort, contract, fraud or
concealment of a material fact;
(j) all books and records pertaining to any and all of the
property described above, including computer-readable memory and any computer
hardware or software necessary to access and process such memory ("BOOKS AND
RECORDS"). Notwithstanding anything in the foregoing to the contrary, Books and
Records shall not be deemed to include the general corporate books and records
of the Mortgagor which are maintained by Mortgagor on a consolidated basis for
all of Mortgagor's properties (which properties include the Property being
secured hereunder) except to the extent that information in such consolidated
books and records pertains to the Property secured hereunder;
(k) (i) all agreements heretofore or hereafter entered into
relating to the construction, ownership, operation, management, leasing or use
of the Land or Improvements; (ii) any and all present and future amendments,
modifications, supplements, and addenda to any of the items described in (i)
above; (iii) any and all guarantees, warranties and other undertakings
(including payment and performance bonds) heretofore or hereafter entered into
or delivered with respect to any of the items described in clauses (i) and (ii)
above; (iv) all trade names, trademarks, logos and other materials used to
identify or advertise, or otherwise relating to the Land or Improvements; and
(v) all building permits, governmental permits, licenses, variances, conditional
or special use permits, and other authorizations (collectively, the "Permits")
now or hereafter issued in connection with the construction, development,
ownership, operation, management, leasing or use of the Land or Improvements, to
the fullest extent that the same or any interest therein may be legally assigned
by Mortgagor; and
(l) all proceeds of, additions and accretions to,
substitutions and replacements for, and changes in any of the property described
above.
Capitalized terms used above and elsewhere in this Deed of Trust without
definition have the meanings given them in the Loan Agreement referred to in
Section 1.2 below.
1.2. SECURED OBLIGATIONS. This Deed of Trust is made for the purpose of
securing the following obligations (the "SECURED OBLIGATIONS") in any order of
priority that Beneficiary may choose:
(a) Payment of all obligations at any time owing under a
Promissory Note (the "NOTE") of even date herewith, payable by Trustor as maker
in the stated principal amount of Ninety Million Dollars ($90,000,000.00) to the
order of Beneficiary, which Note matures and is due and payable in full not
later than ____________, ______; and
(b) Payment and performance of all obligations of Trustor
under a Loan Agreement of even date herewith between Trustor, as borrower, and
Beneficiary, as lender (the "LOAN AGREEMENT"); and
(c) Payment and performance of all obligations of Trustor
under this Deed of Trust; and
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(d) Payment and performance of any obligations of Trustor
under any Loan Documents (as defined in the Loan Agreement) which are executed
by Trustor, including without limitation the Environmental Indemnity; and
(e) Payment and performance of all future advances and other
obligations that Trustor or any successor in ownership of all or part of the
Property may agree to pay and/or perform (whether as principal, surety or
guarantor) for the benefit of Beneficiary, when a writing evidences the parties'
agreement that the advance or obligation be secured by this Deed of Trust; and
(f) Payment and performance of all modifications, amendments,
extensions and renewals, however evidenced, of any of the Secured Obligations.
All persons who may have or acquire an interest in all or any part of the
Property will be considered to have notice of, and will be bound by, the terms
of the Secured Obligations and each other agreement or instrument made or
entered into in connection with each of the Secured Obligations. These terms
include any provisions in the Note or the Loan Agreement which provide that the
interest rate on one or more of the Secured Obligations may vary from time to
time.
2. ASSIGNMENT OF RENTS. As an inducement to Beneficiary to make the loan
evidenced by the Note and the Loan Agreement, Trustor has contemporaneously
herewith executed and delivered to Beneficiary an Assignment of Leases and Rents
with respect to the Property.
3. GRANT OF SECURITY INTEREST.
3.1. SECURITY AGREEMENT. The parties acknowledge that some of the
Property and some or all of the Rents (as defined in the Assignment of Leases
and Rents) may be determined under applicable law to be personal property or
fixtures. To the extent that any Property or Rents may be personal property,
Trustor as debtor hereby grants Beneficiary as secured party a security interest
in all such Property and Rents, to secure payment and performance of the Secured
Obligations. This Deed of Trust constitutes a security agreement under the
Uniform Commercial Code as in effect in the State in which the Property is
located (the "CODE"), covering all such Property and Rents.
3.2. FINANCING STATEMENTS. Trustor shall execute one or more financing
statements and such other documents as Beneficiary may from time to time require
to perfect or continue the perfection of Beneficiary's security interest in any
Property or Rents. Trustor shall pay all fees and costs that Beneficiary, or
Trustee on behalf of Beneficiary, may incur in filing such documents in public
offices and in obtaining such record searches as Beneficiary may reasonably
require. In case Trustor fails to execute any financing statements or other
documents for the perfection or continuation of any security interest, Trustor
hereby appoints Beneficiary as its true and lawful attorney-in-fact to execute
any such documents on its behalf.
3.3. FIXTURE FILING. Trustor and Beneficiary agree, to the extent
permitted by law, that this instrument constitutes a financing statement filed
as a fixture filing under Sections 9-
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313 and 9-402 of the Code, as amended or recodified from time to time, covering
any of the Property which now is or later may become fixtures attached to the
Land or the Improvements. The following addresses are the mailing addresses of
Trustor, as debtor under the Code, and Beneficiary, as secured party under the
Code, respectively:
TRUSTOR: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
BENEFICIARY: Jackson National Life Insurance Company
c/o PPM Finance, Inc.
225 West Wacker Drive
Suite 1200
Chicago, Illinois 60606
4. REPRESENTATIONS, COVENANTS AND AGREEMENTS.
4.1. GOOD TITLE. Trustor represents, warrants, and covenants that it is
lawfully seized of the Property, that the Property is unencumbered except for
the Permitted Exceptions (as defined in the Loan Agreement), and that it has
good right, full power and lawful authority to convey and mortgage the same, and
that it will warrant and forever defend the Property and the quiet and peaceful
possession of the same against the lawful claims of all persons whomsoever.
4.2. INSURANCE. In the event of any loss or damage to any portion of
the Property due to fire or other casualty, or a taking of any portion of the
Property by condemnation or under the power of eminent domain, the settlement of
all insurance and condemnation claims and awards and the application of
insurance and condemnation proceeds shall be governed by SECTION 5 of the Loan
Agreement.
4.3. STAMP TAX. If, by the laws of the United States of America, or of
any state or political subdivision having jurisdiction over Trustor, any tax is
due or becomes due in respect of the issuance of the Note, or recording of this
Deed of Trust, Trustor covenants and agrees to pay such tax in the manner
required by any such law. Trustor further covenants to hold harmless and agrees
to indemnify Beneficiary, its successors or assigns, against any liability
incurred by reason of the imposition of any tax on the issuance of the Note or
recording of this Deed of Trust.
4.4. CHANGES IN TAXATION. Other than a tax that may arise in connection
with the transfer of the Note by Beneficiary or imposed on the income of the
Beneficiary, in the event of the enactment after this date of any law of the
State in which the Property is located or any political subdivision thereof
deducting from the value of land for the purpose of taxation any lien thereon,
or imposing upon Beneficiary the payment of the whole or any part of the taxes
or assessments or charges or liens herein required to be paid by Trustor, or
changing in any way the laws relating to the taxation of mortgages or debts
secured by mortgages or the Beneficiary's interest in the Property, or the
manner of collection of taxes, so as to adversely affect this Deed of Trust or
the debt secured hereby, then Trustor, upon demand by Beneficiary, shall pay
such
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taxes or assessments, or reimburse Beneficiary therefor; provided, HOWEVER, that
if in the opinion of counsel for Beneficiary (i) it might be unlawful to require
Trustor to make such payment or (ii) the making of such payment might result in
the imposition of interest beyond the maximum amount permitted by law, then
Beneficiary may elect, by notice in writing given to Trustor, to declare all of
the Secured Obligations to be and become due and payable sixty (60) days from
the giving of such notice.
4.5. SUBROGATION. Beneficiary shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole
or in part by Beneficiary in accordance with this Deed of Trust or with the
proceeds of any loan secured by this Deed of Trust.
4.6. NOTICE OF CHANGE. Trustor shall give Beneficiary prior written
notice of any change in: (a) the location of its place of business or its chief
executive office if it has more than one place of business; (b) the location of
any of the Property, including the Books and Records; and (c) Trustor's name or
business structure. Unless otherwise approved by Beneficiary in writing, all
Property that consists of personal property (other than the Books and Records)
will be located on the Land and all Books and Records will be located at
Trustor's place of business or chief executive office if Trustor has more than
one place of business.
4.7. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY. From
time to time, Beneficiary may perform any of the following acts without
incurring any liability or giving notice to any person: (i) release any person
liable for payment of any Secured Obligation; (ii) extend the time for payment,
or otherwise alter the terms of payment, of any Secured Obligation; (iii) accept
additional real or personal property of any kind as security for any Secured
Obligation, whether evidenced by deeds of trust, mortgages, security agreements
or any other instruments of security; (iv) alter, substitute or release any
property securing the Secured Obligations; (v) consent to the making of any plat
or map of the Property or any part of it; (vi) join in granting any easement or
creating any restriction affecting the Property; or (vii) join in any
subordination or other agreement affecting this Deed of Trust or the lien of it.
5. DEFAULTS AND REMEDIES.
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5.1. EVENTS OF DEFAULT. An "Event of Default," as defined in the Loan
Agreement, shall constitute an Event of Default hereunder.
5.2. REMEDIES. At any time after an Event of Default, Beneficiary shall
be entitled to invoke any and all of the rights and remedies described below, in
addition to all other rights and remedies available to Beneficiary at law or in
equity. All of such rights and remedies shall be cumulative, and the exercise of
any one or more of them shall not constitute an election of remedies.
(a) ACCELERATION. Beneficiary may declare any or all of the
principal sum hereby secured to be due and payable immediately.
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(b) RECEIVER. Beneficiary shall, as a matter of right, without
notice and without giving bond to Trustor or anyone claiming by, under or
through Trustor, and without regard for the solvency or insolvency of Trustor or
the then value of the Property, to the extent permitted by applicable law, be
entitled to have a receiver appointed for all or any part of the Property and
the Rents, and the proceeds, issues and profits thereof, with the rights and
powers referenced below and such other rights and powers as the court making
such appointment shall confer, and Trustor hereby consents to the appointment of
such receiver and shall not oppose any such appointment. Such receiver shall
have all powers and duties prescribed by the applicable laws in effect in the
State in which the Property is located, all other powers which are necessary or
usual in such cases for the protection, possession, control, management and
operation of the Property, and such rights and powers as Beneficiary would have,
upon entering and taking possession of the Property under subsection (c) below.
(c) ENTRY. Beneficiary, in person, by agent or by
court-appointed receiver, may enter, take possession of, manage and operate all
or any part of the Property, and may also do any and all other things in
connection with those actions that Beneficiary may in its sole discretion
consider necessary and appropriate to protect the security of this Deed of
Trust. Such other things may include: taking and possessing all of Trustor's or
the then owner's Books and Records; entering into, enforcing, modifying or
canceling leases on such terms and conditions as Beneficiary may consider
proper; obtaining and evicting tenants; fixing or modifying Rents; collecting
and receiving any payment of money owing to Trustor; completing any unfinished
construction; and/or contracting for and making repairs and alterations. If
Beneficiary so requests, Trustor shall assemble all of the Property that has
been removed from the Land and make all of it available to Beneficiary at the
site of the Land. Trustor hereby irrevocably constitutes and appoints
Beneficiary as Trustor's attorney-in-fact to perform such acts and execute such
documents as Beneficiary in its sole discretion may consider to be appropriate
in connection with taking these measures, including endorsement of Trustor's
name on any instruments.
(d) CURE; PROTECTION OF SECURITY. Beneficiary may cure any
breach or default of Trustor, and if it chooses to do so in connection with any
such cure, Beneficiary may also enter the Property and/or do any and all other
things which it may in its sole discretion consider necessary and appropriate to
protect the security of this Deed of Trust. Such other things may include:
appearing in and/or defending any action or proceeding which purports to affect
the security of, or the rights or powers of Beneficiary under, this Deed of
Trust; paying, purchasing, contesting or compromising any encumbrance, charge,
lien or claim of lien which in Beneficiary's sole judgment is or may be senior
in priority to this Deed of Trust, such judgment of Beneficiary to be conclusive
as between the parties to this Deed of Trust; obtaining insurance and/or paying
any premiums or charges for insurance required to be carried under the Loan
Agreement; otherwise caring for and protecting any and all of the Property;
and/or employing counsel, accountants, contractors and other appropriate persons
to assist Beneficiary. Beneficiary may take any of the actions permitted under
this Section 5.2(d) either with or without giving notice to any person. Any
amounts expended by Beneficiary under this Section 5.2(d) shall be secured by
this Deed of Trust.
(e) UNIFORM COMMERCIAL CODE REMEDIES. Beneficiary may exercise
any or all of the remedies granted to a secured party under the Code.
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(f) FORECLOSURE; LAWSUITS. Beneficiary shall have the right,
in one or several concurrent or consecutive proceedings, to foreclose the lien
hereof upon the Property or any part thereof, for the Secured Obligations, or
any part thereof, by any proceedings appropriate under applicable law.
Beneficiary or its nominee may bid and become the purchaser of all or any part
of the Property at any foreclosure or other sale hereunder, and the amount of
Beneficiary's successful bid shall be credited on the Secured Obligations.
Without limiting the foregoing, Beneficiary may proceed by a suit or suits in
law or equity, whether for specific performance of any covenant or agreement
herein contained or contained in any of the other Loan Documents (as defined in
the Loan Agreement), or in aid of the execution of any power herein granted, or
for any foreclosure under the judgment or decree of any court of competent
jurisdiction, or for damages, or to collect the indebtedness secured hereby, or
for the enforcement of any other appropriate legal, equitable, statutory or
contractual remedy. Trustee, at the direction of the Beneficiary, may sell the
Property at public auction in one or more parcels, at Beneficiary's option, and
convey the same to the purchaser in fee simple, Trustor to remain liable for any
deficiency for which Trustor shall be personally liable.
(g) FORECLOSURE BY POWER OF SALE.
(i) Should Beneficiary elect to foreclose by exercise of the
power of sale contained herein, upon Beneficiary's request,
Trustee shall sell the property in accordance with the
applicable State law at public auction to the highest bidder.
Any person except Trustee may bid at the Trustee's sale.
Trustee shall apply the proceeds of the sale as follows: (i)
to the expenses of sale, including Trustee's fee and
attorneys' fee; (ii) to all the indebtedness evidenced by the
Note and all other indebtedness secured by this Deed of Trust
or any other Loan Document; (iii) the surplus, if any, shall
be distributed in accordance with the applicable State law.
Trustee shall deliver to the purchaser at the sale its deed,
without warranty, which shall convey to the purchaser the
interest in the Property which Trustor had or had the power to
convey at the time of its execution of this Deed of Trust and
such as it may have acquired thereafter. Trustee's deed shall
recite the facts showing that the sale was conducted in
compliance with all the requirements of the law and of this
Deed of Trust, which recital shall be prima facie evidence of
such compliance and conclusive evidence thereof in favor of
bona fide purchasers and encumbrancers for value. The power of
sale conferred by this Deed of Trust and by the applicable
State law is not an exclusive remedy, and when not exercised
Beneficiary may foreclose this Deed of Trust as a mortgage.
(ii) After deducting all costs, fees and expenses of
Beneficiary and Trustee, including costs of evidence of title
in connection with any such sale, Beneficiary shall apply the
proceeds of sale, in the following order of priority, to
payment of (i) first, all amounts expended under the terms
hereof and not then repaid, with accrued interest, (ii)
second, all other amounts then secured hereby, in such order
as Beneficiary shall determine in its sole and absolute
discretion, and (iii) the remainder, if any, to the person(s)
legally entitled thereto.
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(iii) To the extent permitted by applicable law, Trustee may postpone
the sale of all or any portion of the Property by public announcement
at the time and place of sale, and from time to time thereafter may
again postpone such sale by public announcement or subsequently noticed
sale, and without further notice may make such sale at the time fixed
by the last postponement or may, in its discretion, give a new notice
of sale.
(iv) A sale of less than all of the Property or any defective or
irregular sale made hereunder shall not exhaust the power of sale
provided for herein, and subsequent sales may be made hereunder until
all Secured Obligations have been satisfied or the entire Property
sold, without defect or irregularity.
(h) OTHER REMEDIES. Beneficiary may exercise all rights and remedies
contained in any other instrument, document, agreement or other writing
heretofore, concurrently or in the future executed by Trustor or any other
person or entity in favor of Beneficiary in connection with the Secured
Obligations or any part thereof, without prejudice to the right of Beneficiary
thereafter to enforce any appropriate remedy against Trustor. Beneficiary shall
have the right to pursue all remedies afforded to a beneficiary of a deed of
trust under applicable law, and shall have the benefit of all of the provisions
of such applicable law, including all amendments thereto which may become
effective from time to time after the date hereof. In the event any provision of
such law which is specifically referred to herein may be repealed, Beneficiary
shall have the benefit of such provision as most recently existing prior to such
repeal, as though the same were incorporated herein by express reference.
(i) POWER OF SALE FOR PERSONAL PROPERTY. Under this power of sale,
Beneficiary shall have the discretionary right to cause some or all of the
Property, which constitutes personal property, to be sold or otherwise disposed
of in any combination and in any manner permitted by applicable law.
(i) For purposes of this power of sale, Beneficiary may elect to treat
as personal property any Property which is intangible or which can be
severed from the Land or Improvements without causing structural
damage. If it chooses to do so, Beneficiary may dispose of any personal
property in any manner permitted by Article 9 of the Code, including
any public or private sale, or in any manner permitted by any other
applicable law.
(ii) In connection with any sale or other disposition of such Property,
Trustor agrees that the following procedures constitute a commercially
reasonable sale: Beneficiary shall mail written notice of the sale to
Trustor not later than ten (10) days prior to such sale. Upon receipt
of any written request, Trustor will make the Property available to any
bona fide prospective purchaser for inspection during reasonable
business hours. Notwithstanding, Beneficiary shall be under no
obligation to consummate a sale if, in its judgment, none of the offers
received by it equals the fair value of the Property offered for sale.
The foregoing procedures do not constitute the only procedures that may
be commercially reasonable.
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(J) SINGLE OR MULTIPLE FORECLOSURE SALES. If the Property consists of
more than one lot, parcel or item of property, Beneficiary may:
(1) designate the order in which the lots, parcels and/or items shall
be sold or disposed of or offered for sale or disposition; and
(2) elect to dispose of the lots, parcels and/or items through a single
consolidated sale or disposition to be held or made under or in
connection with judicial proceedings, or by virtue of a judgment and
decree of foreclosure and sale, or pursuant to the power of sale
contained herein; or through two or more such sales or dispositions; or
in any other manner Beneficiary may deem to be in its best interests
(any foreclosure sale or disposition as permitted by the terms hereof
is sometimes referred to herein as a "FORECLOSURE SALE;" and any two or
more such sales, "FORECLOSURE SALES").
If it chooses to have more than one Foreclosure Sale, Beneficiary at its option
may cause the Foreclosure Sales to be held simultaneously or successively, on
the same day, or on such different days and at such different times and in such
order as it may deem to be in its best interests. No Foreclosure Sale shall
terminate or affect the payment secured under the Deed of Trust on any part of
the Property which has not been sold, until all of the Secured Obligations have
been paid in full.
5.3. APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of any
Foreclosure Sale shall be applied in the following manner:
(a) First, to pay the portion of the Secured Obligations attributable
to the expenses of sale, costs of any action and any other sums for which
Trustor is obligated to reimburse Beneficiary hereunder or under the other Loan
Documents;
(b) Second, to pay the portion of the Secured Obligations attributable
to any sums expended or advanced by Beneficiary under the terms of this Deed of
Trust which then remain unpaid;
(c) Third, to pay all other Secured Obligations in any order and
proportions as Beneficiary in its sole discretion may choose; and
(d) Fourth, to remit the remainder, if any, to the person or persons
entitled to it.
Beneficiary shall have no liability for any funds which it does not actually
receive.
6. RELEASE. If Trustor shall fully pay and perform all of the Secured
Obligations and comply with all of the other terms and provisions hereof and the
other Loan Documents to be performed and complied with by Trustor, then
Beneficiary shall instruct Trustee to reconvey this Deed of Trust and the lien
thereof by proper instrument upon payment, performance and discharge of all of
the Secured Obligations and payment by Trustor of any filing fee in connection
with such release.
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7. CONCERNING THE TRUSTEE.
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7.1. NO REQUIRED ACTION. Trustee shall not be required to take any
action toward the execution and enforcement of the trust hereby created or to
institute, appear in, or defend any action, suit, or other proceeding in
connection therewith where, in his opinion, such action would be likely to
involve him in expense or liability, unless requested so to do by a written
instrument signed by Beneficiary and, if Trustee so requests, unless Trustee is
tendered security and indemnity satisfactory to Trustee against any and all
cost, expense, and liability arising therefrom. Trustee shall not be responsible
for the execution, acknowledgment, or validity of the Loan Documents, or for the
proper authorization thereof, or for the sufficiency of the lien and security
interest purported to be created hereby, and Trustee makes no representation in
respect thereof or in respect of the rights, remedies, and recourse of
Beneficiary.
7.2. CERTAIN RIGHTS. With the approval of Beneficiary, Trustee shall
have the right to take any and all of the following actions: (i) to select,
employ, and consult with counsel (who may be, but need not be, counsel for
Beneficiary) upon any matters arising hereunder, including the preparation,
execution, and interpretation of the 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 (iv) any and all other
lawful action that Beneficiary may instruct Trustee to take to protect or
enforce Beneficiary'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 any 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 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. Grantor will, from time to time, pay the
compensation due to Trustee hereunder and reimburse Trustee for, and save
Trustee harmless against, any and all liability and expenses which may be
incurred by Trustee in the performance of Trustee's duties.
7.3. 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).
7.4. SUCCESSOR TRUSTEES. Trustee may resign by the giving of notice of
such resignation in writing to Beneficiary. If (a) Trustee shall die, resign, or
become disqualified from acting in the execution of this trust, or (b) for any
reason, Beneficiary shall prefer to appoint a substitute trustee, or successive
substitute trustees or successive multiple substitute trustees, to act instead
of the aforenamed Trustee, Beneficiary shall have full power to appoint a
substitute trustee in succession who shall succeed to all the estates, rights,
powers, and duties of the aforenamed Trustee. Such appointment may be executed
by any authorized agent of Beneficiary, and if such Beneficiary be a corporation
and such appointment be executed in its behalf by any
-12-
<PAGE> 13
officer of such corporation, such appointment shall be conclusively presumed to
be executed with authority and shall be valid and sufficient without proof of
any action by the board of directors or any superior officer of the corporation.
Grantor hereby ratifies and confirms any and all acts which the aforenamed
Trustee, or his successor or successors in this trust, shall do lawfully by
virtue hereof.
7.5. PERFECTION OF APPOINTMENT. Should any deed, conveyance, or
instrument of any nature be required from Grantor 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 Grantor.
7.6. 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 Beneficiary or of the substitute Trustee, the Trustee 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.
7.7. NO REPRESENTATION BY TRUSTEE OR BENEFICIARY. By accepting or
approving anything required to be observed, performed, or fulfilled or to be
given to Trustee or Beneficiary pursuant to the 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, neither Trustee nor Beneficiary shall be deemed to have warranted,
consented to, or affirmed the sufficiency, legality, effectiveness, or legal
effect of the same, or of any term, provision, or condition thereof, and such
acceptance or approval thereof shall not be or constitute any warranty or
affirmation with respect thereto by Trustee or Beneficiary.
8. MISCELLANEOUS PROVISIONS.
-------------------------
8.1. ADDITIONAL PROVISIONS. The Loan Documents fully state all of the
terms and conditions of the parties' agreement regarding the matters mentioned
in or incidental to this Deed of Trust. The Loan Documents also grant further
rights to Beneficiary and contain further agreements and affirmative and
negative covenants by Trustor which apply to this Deed of Trust and the
Property.
8.2. GIVING OF NOTICE. Any notice, demand, request or other
communication which any party hereto may be required or may desire to give
hereunder shall be given as provided in SECTION 9.3 of the Loan Agreement.
8.3. REMEDIES NOT EXCLUSIVE. No action for the enforcement of the lien
or any provision hereof shall be subject to any defense which would not be good
and available to the party interposing same in an action at law upon the Note.
Beneficiary shall be entitled to enforce
-13-
<PAGE> 14
payment and performance of any of the Secured Obligations and to exercise all
rights and powers under this Deed of Trust or other agreement or any laws now or
hereafter in force, notwithstanding some or all of the Secured Obligations may
now or hereafter be otherwise secured, whether by mortgage, deed of trust,
pledge, lien, assignment or otherwise. Neither the acceptance of this Deed of
Trust nor its enforcement, whether by court action or other powers herein
contained, shall prejudice or in any manner affect Beneficiary's right to
realize upon or enforce any other security now or hereafter held by Beneficiary,
it being agreed that Beneficiary shall be entitled to enforce this Deed of Trust
and any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. No waiver of any
default of the Trustor hereunder shall be implied from any omission by
Beneficiary to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect any default other
than the default specified in the express waiver and that only for the time and
to the extent therein stated. No acceptance of any payment of any one or more
delinquent installments which does not include interest at the Default Rate from
the date of delinquency, together with any required late charge, shall
constitute a waiver of the right of Beneficiary at any time thereafter to demand
and collect payment of interest at such Default Rate or of late charges, if any.
8.4. WAIVER OF STATUTORY RIGHTS. To the extent permitted by law,
Trustor hereby agrees that it shall not and will not apply for or avail itself
of any appraisement, valuation, stay, extension or exemption laws, or any
so-called "Moratorium Laws," now existing or hereafter enacted, in order to
prevent or hinder the enforcement or foreclosure of this Deed of Trust, but
hereby waives the benefit of such laws. Trustor for itself and all who may claim
through or under it waives any and all right to have the property and estates
comprising the Property marshaled upon any foreclosure of the lien hereof and
agrees that any court having jurisdiction to foreclose such lien may order the
Property sold as an entirety. To the extent permitted by law, Trustor hereby
waives any and all rights of redemption from sale under the power of sale
contained herein or any order or decree of foreclosure of this Deed of Trust on
its behalf and on behalf of each and every person, except decree or judgment
creditors of Trustor, acquiring any interest in or title to the Property
subsequent to the date of this Deed of Trust.
8.5. ESTOPPEL AFFIDAVITS. Trustor, within fifteen (15) days after
written request from Beneficiary, shall furnish a written statement, duly
acknowledged, setting forth the unpaid principal of, and interest on, the
Secured Obligations and stating whether or not any offset or defense exists
against such Secured Obligations, and covering such other matters as Beneficiary
may reasonably require.
8.6. MERGER. No merger shall occur as a result of Beneficiary's
acquiring any other estate in or any other lien on the Property unless
Beneficiary consents to a merger in writing.
8.7. BINDING ON SUCCESSORS AND ASSIGNS. This Deed of Trust and all
provisions hereof shall be binding upon Trustor and all persons claiming under
or through Trustor, and shall inure to the benefit of Beneficiary and its
successors and assigns.
-14-
<PAGE> 15
8.8. CAPTIONS. The captions and headings of various paragraphs of this
Deed of Trust are for convenience only and are not to be construed as defining
or limiting, in any way, the scope or intent of the provisions hereof.
8.9. SEVERABILITY. If all or any portion of any provision of this Deed
of Trust shall be held to be invalid, illegal or unenforceable in any respect,
then such invalidity, illegality or unenforceability shall not affect any other
provision hereof or thereof, and such provision shall be limited and construed
as if such invalid, illegal or unenforceable provision or portion thereof was
not contained herein.
8.10. EFFECT OF EXTENSIONS OF TIME AND AMENDMENTS. If the payment of
the Secured Obligations or any part thereof be extended or varied or if any part
of the security be released, all persons now or at any time hereafter liable
therefor, or interested in the Property, shall be held to assent to such
extension, variation or release, and their liability and the lien and all
provisions hereof shall continue in full force, the right of recourse, if any,
against all such persons being expressly reserved by Beneficiary,
notwithstanding such extension, variation or release. Nothing in this SECTION
8.10 shall be construed as waiving any provision contained herein or in the Loan
Documents which provides, among other things, that it shall constitute an Event
of Default if the Property be sold, conveyed, or encumbered.
8.11. SERVICE CHARGE AND EXPENSES. At all times, regardless of whether
any proceeds of the loan secured hereby have been disbursed, this Deed of Trust
secures (in addition to the amounts secured hereby) the payment of any and all
commissions, service charges, liquidated damages, expenses and advances due to
or incurred by Beneficiary in connection with such loan; PROVIDED, HOWEVER, that
in no event shall the total amount secured hereby exceed two hundred percent
(200%) of the face amount of the Note.
8.12. APPLICABLE LAW. This Deed of Trust shall be governed by and
construed under the internal laws of the State in which the Property is located.
8.13. LIMITATION OF LIABILITY. The personal liability of Mortgagor and
its general partner hereunder is limited to the extent set forth in SECTION 9.18
of the Loan Agreement.
8.14. DUE ON SALE CLAUSE. As more fully set forth in SECTION 6.4 of the
Loan Agreement, the transfer or encumbrance of the Property, or any interest
therein, or the transfer of an interest in Trustor, except for the permitted
transfers set forth in SECTION 6.5 of the Loan Agreement, without prior written
consent of Benficiary, shall constitute an Event of Default.
8.15. TIME IS OF THE ESSENCE. Time is of the essence with respect to
each and every covenant, agreement and obligation of Trustor under this Deed of
Trust, the Note and the other Loan Documents.
8.16. RECORDATION. Trustor forthwith upon the execution and delivery of
this Deed of Trust, and thereafter from time to time, will cause this Deed of
Trust, and any security instrument creating a lien or evidencing the lien hereof
upon the Property, or any portion thereof, and each instrument of further
assurance, to be filed, registered or recorded in such manner and in such
-15-
<PAGE> 16
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien hereof upon, and the interest of
Beneficiary in, the Property.
Trustor will pay all filing, registration or recording fees and taxes,
and all expenses incident to the preparation, execution and acknowledgment of
this Deed of Trust, any deed of trust supplemental hereto, any security
instrument with respect to the Property and any instrument of further assurance,
and all federal, state, county and municipal stamp taxes, duties, impositions,
assessments and charges arising out of or in connection with the execution and
delivery of the Note, this Deed of Trust, any deed of trust supplemental hereto,
any security instrument, any other Loan Documents or any instrument of further
assurance.
8.17. MODIFICATIONS. This Deed of Trust may not be changed or
terminated except in writing signed by both parties. The provisions of this Deed
of Trust shall extend and be applicable to all renewals, amendments, extensions,
consolidations, and modifications of the other Loan Documents, and any and all
references herein to the Loan Documents shall be deemed to include any such
renewals, amendments, extensions, consolidations or modifications thereof.
8.18. INDEPENDENCE OF SECURITY. Except as may exist pursuant to
easements and agreements existing as of the date hereof which have been
disclosed to Mortgagee, Trustor shall not by act or omission permit any building
or other improvement on any premises not subject to the Deed of Trust to rely on
the Property or any part thereof or any interest therein to fulfill any
municipal or governmental requirement, and Trustor hereby assigns to Beneficiary
any and all rights to give consent for all or any portion of the Property to
rely on any premises not subject to the Deed of Trust or any interest therein to
fulfill any municipal or governmental requirement. Trustor shall not by act or
omission impair the integrity of the Property as a single zoning lot, and as one
or more complete tax parcels, separate and apart from all other premises. Any
act or omission by Trustor which would result in a violation of any of the
provisions of this SECTION 8.18 shall be void.
9. STATE SPECIFIC PROVISIONS. The provisions of the Addendum to Deed of Trust
attached hereto as ANNEX I (the "ADDENDUM") are hereby incorporated herein by
this reference. Defined terms in the Addendum for which no definition is
provided in the Addendum will have the meanings given to such terms in the Deed
of Trust. In the event of any conflict or inconsistency between the provisions
of the Deed of Trust and the provisions of the Addendum, the provisions of the
Addendum will prevail.
[BALANCE OF PAGE LEFT BLANK INTENTIONALLY]
-16-
<PAGE> 17
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the
date first written above.
TRUSTOR:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Glimcher Properties Corporation,
a Delaware corporation, its sole
general partner
By: /s/ William G. Cornely
---------------------------------------
Its: Executive Vice President/COO,CFO
-----------------------------------
-17-
<PAGE> 18
STATE OF ILLINOIS )
COUNTY OF COOK )
Before me, Linda Polk of the state and county aforementioned,
personally appeared William G. Cornely, with whom I am personally acquainted (or
proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged such person to be the of Glimcher Properties Corporation, a
Delaware corporation, the sole general partner of Glimcher Properties Limited
Partnership, a Delaware limited partnership the within name bargainor, a
partnership, and that such person, as such partner, executed the foregoing
instrument for the purpose therein contained, by signing the name of the
partnership by such person as partner.
Witness my hand and seal, this 28th day of June, 1999.
/s/ Linda J. Polka
-----------------------------
------
NOTARY PUBLIC
My commission expires:
7-2-2000
- ----------------------
-18-
<PAGE> 19
Sycamore Square/Ashland City, Tennessee
EXHIBIT A
---------
LEGAL DESCRIPTION
A tract of land in the First Civil District of Cheatham County, Ashland City,
Tennessee and being Lot 1 as shown on the plan entitled "Sycamore Square
Shopping Center" as recorded in Plat Book 3, Page 101, Register's Office for
Cheatham County, Tennessee and as revised by Surveyor's Certificate of
Correction as recorded in Deed Book 293, Page 5, Register's Office for Cheatham
County, Tennessee and being described according to a survey dated March 26, 1996
and prepared by Ragan-Smith -Associates, Inc. 315 Woodland Street, Nashville,
Tennessee 37206 and being more particularly described as follows:
BEGINNING at an iron pin set on the Southeasterly right-of-way line of State
Route 49, Frey Street, (a 60 foot wide right-of-way at said pin) said pin being
the Southwest corner of the John Johnston property as recorded in Deed Book 222,
Page 297 Register's Office for Cheatham County, Tennessee and being the
Northwest corner of Lot 1 of the aforementioned plan and also being the
Northwest corner of the herein described tract of land; thence,
1. Leaving the Southeasterly right-of-way line of State Route 49 and with the
Southwesterly line of the Johnston property, South 62 degree 57' 09" East,
209.56 feet to an existing iron pin; thence,
2. Continuing with the Southerly line of the Johnston property, North 71 degree
08' 24" East, 73.89 feet to an existing iron pin at the Southwest corner of the
Tennessee and Associates V Partnership property as recorded in Deed Book 288,
Page 880, Register's Office for Cheatham County, Tennessee; thence,
3. With the Southerly line of the Tennessee and Associates V Partnership
property, South 61 degrees 31' 47" East, 509.87 feet to an existing iron pin;
thence,
4. With the Westerly line of the Tennessee and Associates V Partnership property
and the Westerly line of Lots 71, 72 and 73 as shown on the plan entitled
"Ashland Estates" as recorded in Plat Book 4, Page 10, Register's Office for
Cheatham County, Tennessee, South 28 degrees 26' 00" West, 1079.82 feet to an
iron pin set in the Northeasterly right-of-way line of Ashland Drive (A 50 foot
wide right of way); thence,
5. With the Northeasterly right-of-way line of Ashland Drive, North 61 degrees
34' 00" West, 749.62 feet to an iron pin at the Southeast corner of Lot 4 as
shown on the aforementioned plan of "Sycamore Square Shopping Center"; the same
being the Town of Ashland City, Tennessee property as recorded in Deed Book 378,
Page 430, Register's Office for Cheatham County, Tennessee; thence,
6. Leaving the Northeasterly right-of-way line of Ashland Drive and with the
Southeasterly line of Lot 4, North 28 degree 27' 04" East, 20.00 feet to an iron
pin set; thence,
Continued...
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<PAGE> 20
EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
7. With the Northeasterly line of Lot 4, North 61 degrees 34' 00" West, 20.00
feet to an iron pin set in the Southeasterly right-of-way line of State Route
49, (a 60 feet wide right-of-way); thence,
8. With the Southeasterly right-of-way line of State Route 49, North 28 degrees
27' 04" East, 82.78 feet to an existing iron pin at the Southwest corner of Lot
3 as shown on the plan entitled "Sycamore Square Shopping Center" as recorded in
Plat Book 3, Page 101, Register's Office for Cheatham County, Tennessee the same
being the John L. Borum, Jr. property as recorded in Deed Book 312, Page 381,
Register's Office for Cheatham County, Tennessee; thence,
9. With the Southwesterly line of Lot 3, South 61 degrees 32' 09" East, 160.08
feet to an existing P.K. nail, said nail being the Southeast corner of Lot 3;
thence,
10. With the Southeasterly line of Lot 3 and 2 of the aforementioned plan of
"Sycamore Square Shopping Center", Lot 2 being the Palmetto Federal Savings Bank
of South Carolina property as recorded in Deed Book 312, Page 628, Register's
Office for Cheatham County, Tennessee, North 28 degrees 26' 36" East, 505.05
feet to an existing P.K. nail, said nail being the Northeast corner of Lot 2;
thence,
11. With the Northeasterly line of Lot 2, North 61 degrees 32' 51" West, 147.99
feet to an existing iron pin in the Southeasterly right-of-way line of State
Route 49, said road being 72 feet wide at said pin as recorded in Plat Book 3,
Page 101, Register's Office for Cheatham County, Tennessee; thence,
12. With said Southeasterly right-of-way line, North 28 degrees 23' 48" East,
58.00 feet to an existing iron pin; thence,
13. In a Westerly direction with an offset in said right-of-way, North
61(degree)33' 22" West, 12.04 feet to an existing iron pin; thence,
14. Continuing with said Southeasterly right-of-way line, (a 60 foot wide road
along this course) North 28(degrees) 26' 00" East, 355.00 feet to the point of
beginning.
TOGETHER with Non-Exclusive Easements as set forth in Declaration of
Restrictions and Easements of record in Book 269, Page 856 and Book 293, Page
24, as supplemented by Book 293, Page 33, Register's Office for Cheatham County,
Tennessee.
TOGETHER with Non-Exclusive Easements as set forth in Declaration of Slope and
Drainage Easements of record in Book 293, Page 18 and Book 293, Page 732,
Register's Office for Cheatham County, Tennessee.
-20-
<PAGE> 21
EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
Being the same property conveyed to Glimcher Properties Limited
Partnership by Deed from _____________________________________
_______________________________________________________________
of record in Book______________________________________________,
Page___________________________________________________________,
Register's Office for Cheatham County, Tennessee
-21-
<PAGE> 22
ANNEX I
ADDENDUM TO DEED OF TRUST
This Addendum to Deed of Trust is attached to and made a part
of that certain Deed of Trust, Security Agreement, Fixture Filing and Financing
Statement dated June 28, 1999, executed by Glimcher Properties Limited
Partnership, as Trustor, to Stuart Jones, as Trustee, for the benefit of Jackson
National Life Insurance Company, as Beneficiary.
1. The language "and his/her/its successors in trust forever"
is hereby inserted following the language "Trustor hereby irrevocably and
unconditionally grants, bargains, sells, conveys, mortgages, warrants, assigns
and pledges to Trustee" appearing in the second and third lines of Section 1.1
of the Deed of Trust.
2. A new Section 1.2(g) is hereby added to the Deed of Trust
as follows:
This conveyance also secures not only existing indebtedness or
advances, made contemporaneously with Trustor's execution
hereof, but also future advances, whether obligatory or
optional or both, and whether made under the Loan Agreement or
otherwise, to the same extent as if such future advances were
made contemporaneously with the execution of this conveyance
even though no advance is made at the time of the execution of
this conveyance and even though no indebtedness is outstanding
at the time any advance is made.
3. Trustee is and shall be entitled to reasonable
compensation, for all services rendered hereunder, or in connection with the
trust herein created, which compensation in event of a Trustee's sale, as
hereinafter provided, shall not be less than Fifty Dollars ($50.00), and in
addition Trustee shall be entitled to pay a reasonable sum for an examination of
the title at the date of sale to assure himself as to what person is entitled to
receive any surplus which may remain after discharging the liens hereby created.
Trustee's compensation, together with any and all necessary and reasonable
expenses, charges, attorney's fees, including but not limited to fees for legal
advice concerning his rights and duties in the Property, and other disbursements
incurred by Trustee in discharge of his duties as such, shall be a further
charge and lien upon the Property and enforced in the same manner as the
principal obligation due hereunder or under the Note.
4. In the event of an Event of Default, Beneficiary is hereby
authorized and empowered at its option, to declare, without notice, all sums
secured hereby immediately due and payable, whether or not such default be
remedied by Trustor or others and to enforce any of the rights which accrue to
Beneficiary hereunder, and Trustee is authorized and empowered to enter and take
possession of the Property and cause to be performed, at Trustor's expense, such
appraisals and/or environmental surveys as Beneficiary deems necessary, and
before or after such entry to advertise the sale of the Property for the time
and in the manner provided by the laws of
-22-
<PAGE> 23
Tennessee, and to sell the Property or any portion thereof at the option of
Trustee, either on the premises or at the County Courthouse door at which
judicial sales are usually made, for cash to the highest bidder free from all
equity of redemption, the Statutory right of redemption provided by any
applicable Tennessee Statute including that afforded by T.C.A. Section 66-8-101,
et seq., and any amendment or recodification of such statute, homestead, dower
and all other exemptions and marital rights, all of which are hereby expressly
waived and conveyed. Trustee will execute a conveyance to the purchaser
conveying such title as Trustee has and deliver possession to the purchaser,
which shall be given without obstruction, hindrance or delay, and Trustor, in
case of any sale under this Deed of Trust, or upon default in any interest or
principal payment, or breach of any covenant contained herein, will, upon
demand, surrender possession of the Property and will from that moment become
and be tenants at will of the purchaser or of Beneficiary, or of Trustee for the
use of Beneficiary, removable by process as upon a forcible and unlawful
detainer and will pay the said purchaser, or Beneficiary or Trustee for the use
of Beneficiary the reasonable rental value of the property from and after said
sale or after such default or breach of covenant.
5. The owner of the indebtedness secured hereby may become the
purchaser at any sale hereunder.
6. Said sale may be postponed or adjourned at any time and from time to
time without readvertising, and the sale may be dismissed and not made, all at
Beneficiary's option. Trustee, or any successor Trustee, is authorized to
appoint an agent or auctioneer to make any sale hereunder, the cost of which
shall be paid as a proper expense of Trustee, and any sale so made shall have
the same validity as if made by Trustee; and a cash deposit or other security
acceptable to Beneficiary may be required as a condition to the acceptance of
bids.
7. The giving of bond, making of oath or filing of inventory by the
Trustee herein, or its successors, is hereby expressly waived.
8. Beneficiary shall have the right, in its absolute discretion and
without assigning any cause or reason whatsoever, and without giving notice to
any of the parties named herein, the giving of notice being expressly waived by
Trustor, to remove the Trustee named herein, or any successor Trustee at any
time, and to appoint a successor trustee by written instrument executed by it,
and such successor trustee shall become vested with the same title to the
Property and the same rights and powers and subject to the same duties as the
Trustee named herein, and each appointment of a successor trustee by Beneficiary
shall be recorded in the Register's Office of each county in which the Property
is located.
-23-
<PAGE> 24
To be attached to Deed of Trust Filed with Cheatam County Register
(where tax being paid)
SEPARATE STATEMENT UNDER OATH
(SECURED PARTY)
STATE OF ILLINOIS )
COUNTY OF COOK )
DEBTOR: GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership ("Debtor")
SECURED PARTY: JACKSON NATIONAL LIFE INSURANCE COMPANY, a Michigan
corporation ("Secured Party")
The undersigned, being first duly sworn, states that he is a duly authorized
officer of the Secured Party named above, and that:
1. THE MAXIMUM PRINCIPAL INDEBTEDNESS FOR
TENNESSEE RECORDING TAX PURPOSES IS $4,185,000.00.
2. Computation of recording tax:
$4,185,000.00 - $2,000,00 = $4,183,000.00
$4,183,000.00 x $1.15 per thousand = $4,810.45
3. Recording tax in the amount of $4,810.45
is being paid to the Register's Office of Davidson County, Tennessee in
connection with the Tennessee Deed of Trust attached hereto.
JACKSON NATIONAL LIFE INSURANCE COMPANY,
a Michigan corporation
By: /s/ David L. Henderson
-----------------------------------
Name: David L. Henderson
Title: Authorized Signatory
Sworn to and subscribed before me
This 9th day of June, 1999.
/s/ ZUCHEL L. GOLTZ
- ---------------------------
Unofficial Witness
/s/ Scott B. Toban
- ---------------------------
Notary Public
My Commission expires: 1/24/01
-------
-24-
<PAGE> 25
SEPARATE STATEMENT UNDER OATH
(Debtor)
STATE OF OHIO )
COUNTY OF FRANKLIN )
DEBTOR: GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership ("Debtor")
SECURED PARTY: JACKSON NATIONAL LIFE INSURANCE COMPANY ("Secured
Party")
The undersigned, being first duly sworn, states that he is a
duly authorized officer of the Debtor named above, and that:
1. Debtor owns the property subject to the security interest
perfected by the accompanying UCC-1 financing statement, Deed of Trust or
Assignment of Leases and Rents.
2. Contemporaneously with the execution of this Affidavit,
Debtor intends to close a loan transaction (the "Loan") with Secured Party,
which Loan will be (a) in an aggregate principal amount not to exceed
$90,000,000.00 at any one time outstanding and (b) secured by collateral part
within and part without the State of Tennessee.
3. To the best of Debtors' knowledge, the value of the
collateral located in Tennessee is $4,500,000.00 and the value of the collateral
located everywhere is $96,700,000.00.
VALUE OF COLLATERAL IN TENNESSEE ($4,500,000.00) = 4.65%
- ------------------------------------------------
Value of collateral everywhere ($96,700,000.00)
Total principal indebtedness ($90,000,000.00 00) x 4.65% = $4,185,000.00
Portion of total indebtedness on which transfer tax is payable is $4,185,000.00.
-25-
<PAGE> 26
4. This Affidavit is made with the knowledge that the
Secretary of State of the State of Tennessee, the Cheatam County Register and
the Secured Party will rely on this Affidavit.
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, its sole
general partner
By /s/ William G. Cornely
---------------------------------------------
Name: William G. Cornely
Title: Executive Vice President/CFO/COO
Sworn to and subscribed before me
this 8th day of July, 1999.
/s/ Cynthia Yeprem
- ----------------------------
Unofficial Witness
/s/ Carolee J. Oertel
- ----------------------------
Notary Public
My Commission expires: 1-30-2000
----------
-26-
<PAGE> 1
Exhibit 10.110
MORTGAGE, SECURITY
AGREEMENT, FIXTURE FILING AND
FINANCING STATEMENT
==========================================
See attached
THIS SPACE RESERVED FOR RECORDING DATA
=================================================
This Instrument was drafted by and should be
returned to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, IL 60606
Attention: Milos Markovic, Esq.
=================================================
Parcel I.D. No:________________________
<PAGE> 2
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Milos Markovic, Esq.
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
- ------------------------------------------------------------------------------
MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT
----------------------------------------------------
THIS MORTGAGE is made as of June 28, 1999, between GLIMCHER PROPERTIES
LIMITED PARTNERSHIP a Delaware limited partnership (the "Mortgagor") 20 South
Third Street, Columbus, Ohio 43215, and JACKSON NATIONAL LIFE INSURANCE COMPANY,
a Michigan corporation (the "Mortgagee"), c/o PPM Finance, Inc., 225 West Wacker
Drive, Suite 1200, Chicago, Illinois 60606.
1. MORTGAGE AND SECURED OBLIGATIONS.
1.1. MORTGAGE. For purposes of securing payment and performance of the
Secured Obligations defined and described in SECTION 1.2, Mortgagor hereby
irrevocably and unconditionally grants, bargains, sells, conveys, mortgages,
warrants, assigns and pledges to Mortgagee, with right of entry and possession,
and with power of sale, all estate, right, title and interest which Mortgagor
now has or may later acquire in and to the following property (all or any part
of such property, or any interest in all or any part of it, as the context may
require, the "Property"):
(a) the real property located in the County of LaCrosse, State of
Wisconsin and more particularly described in EXHIBIT A attached hereto,
together with all existing and future easements and rights affording access
to it (the "Land");
(b) all buildings, structures and improvements now located or later to
be constructed on the Land (the "Improvements");
(c) all existing and future appurtenances, privileges, easements,
franchises and tenements of the Land, including all minerals, oil, gas,
other hydrocarbons and associated substances, sulfur, nitrogen, carbon
dioxide, helium and other commercially valuable substances which may be in,
under or produced from any part of the Land, all development rights and
credits, air rights, water, water rights (whether riparian, appropriative
or otherwise, and whether or not appurtenant) and water stock, and any land
lying in the streets, roads or avenues, open or proposed, in front of or
adjoining the Land and Improvements;
(d) all existing and future leases, subleases, subtenancies, licenses,
occupancy agreements and concessions ("leases", as defined in the
Assignment of Leases and Rents described in SECTION 2 herein, executed and
delivered to Lender contemporaneously
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herewith) relating to the use and enjoyment of all or any part of the Land
and Improvements, and any and all guaranties and other agreements relating
to or made in connection with any of such leases;
(e) all goods, materials, supplies, chattels, furniture, fixtures,
equipment and machinery now or later to be attached to, placed in or on, or
used in connection with the use, enjoyment, occupancy or operation of all
or any part of the Land and Improvements, whether stored on the Land or
elsewhere, including all pumping plants, engines, pipes, ditches and
flumes, and also all gas, electric, cooking, heating, cooling, air
conditioning, lighting, refrigeration and plumbing fixtures and equipment,
all of which shall be considered to the fullest extent of the law to be
real property for purposes of this Mortgage;
(f) all building materials, equipment, work in process or other
personal property of any kind, whether stored on the Land or elsewhere,
which have been or later will be acquired for the purpose of being
delivered to, incorporated into or installed in or about the Land or
Improvements;
(g) all of Mortgagor's interest in and to the Loan funds, whether
disbursed or not, the Escrow Accounts (as defined in SECTION 3.1 of the
Loan Agreement) and any of Mortgagor's funds now or later to be held by or
on behalf of Mortgagee;
(h) all rights to the payment of money, accounts, accounts receivable,
reserves, deferred payments, refunds, cost savings, payments and deposits,
whether now or later to be received from third parties (including all
earnest money sales deposits) or deposited by Mortgagor with third parties
(including all utility deposits), contract rights, development and use
rights, governmental permits and licenses, applications, architectural and
engineering plans, specifications and drawings, as-built drawings, chattel
paper, instruments, documents, notes, drafts and letters of credit (other
than letters of credit in favor of Mortgagee), which arise from or relate
to construction on the Land or to any business now or later to be conducted
on it, or to the Land and Improvements generally;
(i) all proceeds, including all claims to and demands for them, of the
voluntary or involuntary conversion of any of the Land, Improvements or the
other property described above into cash or liquidated claims, including
proceeds of all present and future fire, hazard or casualty insurance
policies and all condemnation awards or payments now or later to be made by
any public body or decree by any court of competent jurisdiction for any
taking or in connection with any condemnation or eminent domain proceeding,
and all causes of action and their proceeds for any damage or injury to the
Land, Improvements or the other property described above or any part of
them, or breach of warranty in connection with the construction of the
Improvements, including causes of action arising in tort, contract, fraud
or concealment of a material fact;
(j) all books and records pertaining to any and all of the property
described above, including computer-readable memory and software necessary
to access and process such memory ("Books and Records"). Notwithstanding
anything in the foregoing to the contrary, Books and Records shall not be
deemed to include the general
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corporate books and records of the Mortgagor which are maintained by
Mortgagor on a consolidated basis for all of Mortgagor's properties (which
properties include the Property being secured hereunder) except to the
extent that information in such consolidated books and records pertains to
the Property secured hereunder;
(k) (i) all agreements heretofore or hereafter entered into relating
to the construction, ownership, operation, management, leasing or use of
the Land or Improvements; (ii) any and all present and future amendments,
modifications, supplements, and addenda to any of the items described in
(i) above; (iii) any and all guarantees, warranties and other undertakings
(including payment and performance bonds) heretofore or hereafter entered
into or delivered with respect to any of the items described in clauses (i)
and (ii) above; (iv) all trade names, trademarks, logos and other materials
used to identify or advertise, or otherwise relating to the Land or
Improvements; and (v) all building permits, governmental permits, licenses,
variances, conditional or special use permits, and other authorizations
(collectively, the "Permits") now or hereafter issued in connection with
the construction, development, ownership, operation, management, leasing or
use of the Land or Improvements, to the fullest extent that the same or any
interest therein may be legally assigned by Mortgagor; and
(l) all proceeds of, additions and accretions to, substitutions and
replacements for, and changes in any of the property described above.
Capitalized terms used above and elsewhere in this Mortgage without definition
have the meanings given them in the Loan Agreement referred to in SECTION 1.2
below.
1.2. SECURED OBLIGATIONS. This Mortgage is made for the purpose of securing
the following obligations (the "Secured Obligations") in any order of priority
that Mortgagee may choose:
(a) Payment of all obligations at any time owing under a Promissory
Note (the "Note") of even date herewith, payable by Mortgagor as maker in
the stated principal amount of Ninety Million Dollars ($90,000,000.00) to
the order of Mortgagee, which Note matures and is due and payable in full
not later than____________, ______; and
(b) Payment and performance of all obligations of Mortgagor under a
Loan Agreement of even date herewith between Mortgagor, as borrower, and
Mortgagee, as lender (the "Loan Agreement"); and
(c) Payment and performance of all obligations of Mortgagor under this
Mortgage; and
(d) Payment and performance of any obligations of Mortgagor under any
Loan Documents (as defined in the Loan Agreement) which are executed by
Mortgagor, including without limitation the Environmental Indemnity; and
(e) Payment and performance of all future advances and other
obligations that Mortgagor or any successor in ownership of all or part of
the Property may agree to pay and/or perform (whether as principal, surety
or guarantor) for the benefit of Mortgagee,
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when a writing evidences the parties' agreement that the advance or
obligation be secured by this Mortgage; and
(f) Payment and performance of all modifications, amendments,
extensions and renewals, however evidenced, of any of the Secured
Obligations.
All persons who may have or acquire an interest in all or any part of the
Property will be considered to have notice of, and will be bound by, the terms
of the Secured Obligations and each other agreement or instrument made or
entered into in connection with each of the Secured Obligations. These terms
include any provisions in the Note or the Loan Agreement which provide that the
interest rate on one or more of the Secured Obligations may vary from time to
time.
2. ASSIGNMENT OF RENTS. As an inducement to Mortgagee to make the loan
evidenced by the Note and the Loan Agreement, Mortgagor has contemporaneously
herewith executed and delivered to Mortgagee an Assignment of Leases and Rents
with respect to the Property.
3. GRANT OF SECURITY INTEREST.
3.1. SECURITY AGREEMENT. The parties acknowledge that some of the Property
and some or all of the Rents (as defined in the Assignment of Leases and Rents)
may be determined under applicable law to be personal property or fixtures. To
the extent that any Property or Rents may be personal property, Mortgagor as
debtor hereby grants Mortgagee as secured party a security interest in all such
Property and Rents, to secure payment and performance of the Secured
Obligations. This Mortgage constitutes a security agreement under the Uniform
Commercial Code as in effect in the State in which the Property is located,
covering all such Property and Rents.
3.2. FINANCING STATEMENTS. Mortgagor shall execute one or more financing
statements and such other documents as Mortgagee may from time to time require
to perfect or continue the perfection of Mortgagee's security interest in any
Property or Rents. Mortgagor shall pay all fees and costs that Mortgagee may
incur in filing such documents in public offices and in obtaining such record
searches as Mortgagee may reasonably require. In case Mortgagor fails to execute
any financing statements or other documents for the perfection or continuation
of any security interest, Mortgagor hereby appoints Mortgagee as its true and
lawful attorney-in-fact to execute any such documents on its behalf.
3.3. FIXTURE FILING. This Mortgage constitutes a financing statement filed
as a fixture filing under Section 409.312 and Section 409.402, Wis. Stats. (the
"Code"), as amended or recodified from time to time, covering any of the
Property which now is or later may become fixtures attached to the Land or the
Improvements. The following addresses are the mailing addresses of Mortgagor, as
debtor under the Code, and Mortgagee, as secured party under the Code,
respectively:
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MORTGAGOR: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
MORTGAGEE: Jackson National Life Insurance Company
c/o PPM Finance, Inc.
225 West Wacker Drive, Suite 1200
Chicago, Illinois 60606
4. REPRESENTATIONS, COVENANTS AND AGREEMENTS.
4.1. GOOD TITLE. Mortgagor covenants that it is lawfully seized of the
Property, that the Property is unencumbered except for the Permitted Exceptions
(as defined in the Loan Agreement), and that it has good right, full power and
lawful authority to convey and mortgage the same, and that it will warrant and
forever defend the Property and the quiet and peaceful possession of the same
against the lawful claims of all persons whomsoever.
4.2. INSURANCE. In the event of any loss or damage to any portion of the
Property due to fire or other casualty, or a taking of any portion of the
Property by condemnation or under the power of eminent domain, the settlement of
all insurance and condemnation claims and awards and the application of
insurance and condemnation proceeds shall be governed by SECTION 5 of the Loan
Agreement.
4.3. STAMP TAX. If, by the laws of the United States of America, or of any
state or political subdivision having jurisdiction over Mortgagor, any tax is
due or becomes due in respect of the issuance of the Note, or recording of this
Mortgage, Mortgagor covenants and agrees to pay such tax in the manner required
by any such law. Mortgagor further covenants to hold harmless and agrees to
indemnify Mortgagee, its successors or assigns, against any liability incurred
by reason of the imposition of any tax on the issuance of the Note or recording
of this Mortgage.
4.4. CHANGES IN TAXATION. Other than a tax that may arise in connection
with a transfer of the Note by Mortgagee or that is imposed on the income of the
Mortgagee, in the event of the enactment after this date of any law of the State
in which the Property is located or any political subdivision thereof deducting
from the value of land for the purpose of taxation any lien thereon, or imposing
upon Mortgagee the payment of the whole or any part of the taxes or assessments
or charges or liens herein required to be paid by Mortgagor, or changing in any
way the laws relating to the taxation of mortgages or debts secured by mortgages
or the Mortgagee's interest in the Property, or the manner of collection of
taxes, so as to affect this Mortgage or the Secured Obligations, then Mortgagor,
upon demand by Mortgagee, shall pay such taxes or assessments, or reimburse
Mortgagee therefor; provided, however, that if in the opinion of counsel for
Mortgagee (i) it might be unlawful to require Mortgagor to make such payment or
(ii) the making of such payment might result in the imposition of interest
beyond the maximum amount permitted by law, then Mortgagee may elect, by notice
in writing given to Mortgagor, to declare all of the Secured Obligations to be
and become due and payable sixty (60) days from the giving of such notice.
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4.5. SUBROGATION. Mortgagee shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole
or in part by Mortgagee in accordance with this Mortgage or with the proceeds of
any loan secured by this Mortgage.
4.6. NOTICE OF CHANGE. Mortgagor shall give Mortgagee prior written notice
of any change in: (a) the location of its place of business or its chief
executive office if it has more than one place of business; (b) the location of
any of the Property, including the Books and Records; and (c) Mortgagor's name
or business structure. Unless otherwise approved by Mortgagee in writing, all
Property that consists of personal property (other than the Books and Records)
will be located on the Land and all Books and Records will be located at
Mortgagor's place of business or chief executive office if Mortgagor has more
than one place of business.
4.7. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY. From time
to time, Mortgagee may perform any of the following acts without incurring any
liability or giving notice to any person: (i) release any person liable for
payment of any Secured Obligation; (ii) extend the time for payment, or
otherwise alter the terms of payment, of any Secured Obligation; (iii) accept
additional real or personal property of any kind as security for any Secured
Obligation, whether evidenced by deeds of trust, mortgages, security agreements
or any other instruments of security; (iv) alter, substitute or release any
property securing the Secured Obligations; (v) consent to the making of any plat
or map of the Property or any part of it; (vi) join in granting any easement or
creating any restriction affecting the Property; or (vii) join in any
subordination or other agreement affecting this Mortgage or the lien of it.
5. DEFAULTS AND REMEDIES.
5.1. EVENTS OF DEFAULT. An "Event of Default," as defined in the Loan
Agreement, shall constitute an Event of Default hereunder.
5.2. REMEDIES At any time after an Event of Default, Mortgagee shall be
entitled to invoke any and all of the rights and remedies described below, in
addition to all other rights and remedies available to Mortgagee at law or in
equity. All of such rights and remedies shall be cumulative, and the exercise of
any one or more of them shall not constitute an election of remedies.
(a) ACCELERATION. Mortgagee may declare any or all of the Secured
Obligations to be due and payable immediately.
(b) RECEIVER. Mortgagee shall, as a matter of right, without notice
and without giving bond to Mortgagor or anyone claiming by, under or
through Mortgagor, and without regard for the solvency or insolvency of
Mortgagor or the then value of the Property, to the extent permitted by
applicable law, be entitled to have a receiver appointed for all or any
part of the Property and the Rents, and the proceeds, issues and profits
thereof, with the rights and powers referenced below and such other rights
and powers as the court making such appointment shall confer, and Mortgagor
hereby consents to the appointment of such receiver and shall not oppose
any such appointment. Such receiver shall have all powers and duties
prescribed by the applicable laws in effect in the state in which the
Property is located, all other powers which are necessary or usual in such
cases for the protection, possession, control, management and operation of
the
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Property, and such rights and powers as Mortgagee would have, upon entering
and taking possession of the Property under subsection (c) below.
(c) ENTRY. Mortgagee, in person, by agent or by court-appointed
receiver, may enter, take possession of, manage and operate all or any part
of the Property, and may also do any and all other things in connection
with those actions that Mortgagee may in its sole discretion consider
necessary and appropriate to protect the security of this Mortgage. Such
other things may include: taking and possessing all of Mortgagor's or the
then owner's Books and Records; entering into, enforcing, modifying or
canceling leases on such terms and conditions as Mortgagee may consider
proper; obtaining and evicting tenants; fixing or modifying Rents;
collecting and receiving any payment of money owing to Mortgagor;
completing any unfinished construction; and/or contracting for and making
repairs and alterations. If Mortgagee so requests, Mortgagor shall assemble
all of the Property that has been removed from the Land and make all of it
available to Mortgagee at the site of the Land. Mortgagor hereby
irrevocably constitutes and appoints Mortgagee as Mortgagor's
attorney-in-fact to perform such acts and execute such documents as
Mortgagee in its sole discretion may consider to be appropriate in
connection with taking these measures, including endorsement of Mortgagor's
name on any instruments.
(d) CURE; PROTECTION OF SECURITY. Mortgagee may cure any breach or
default of Mortgagor, and if it chooses to do so in connection with any
such cure, Mortgagee may also enter the Property and/or do any and all
other things which it may in its sole discretion consider necessary and
appropriate to protect the security of this Mortgage. Such other things may
include: appearing in and/or defending any action or proceeding which
purports to affect the security of, or the rights or powers of Mortgagee
under, this Mortgage; paying, purchasing, contesting or compromising any
encumbrance, charge, lien or claim of lien which in Mortgagee's sole
judgment is or may be senior in priority to this Mortgage, such judgment of
Mortgagee to be conclusive as between the parties to this Mortgage;
obtaining insurance and/or paying any premiums or charges for insurance
required to be carried under the Loan Agreement; otherwise caring for and
protecting any and all of the Property; and/or employing counsel,
accountants, contractors and other appropriate persons to assist Mortgagee.
Mortgagee may take any of the actions permitted under this SECTION 5.2(d)
either with or without giving notice to any person. Any amounts expended by
Mortgagee under this SECTION 5.2(d) shall be secured by this Mortgage.
(e) UNIFORM COMMERCIAL CODE REMEDIES. Mortgagee may exercise any or
all of the remedies granted to a secured party under Code.
(f) FORECLOSURE; LAWSUITS. Mortgagee shall have the right, in one or
several concurrent or consecutive proceedings, to foreclose the lien hereof
upon the Property or any part thereof, for the Secured Obligations, or any
part thereof, by any proceedings appropriate under applicable law.
Mortgagee or its nominee may bid and become the purchaser of all or any
part of the Property at any foreclosure or other sale hereunder, and the
amount of Mortgagee's successful bid shall be credited on the Secured
Obligations. Without limiting the foregoing, Mortgagee may proceed by a
suit or suits in law or equity, whether for specific performance of any
covenant or agreement herein contained
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<PAGE> 9
or contained in any of the other Loan Documents (as defined in the Loan
Agreement), or in aid of the execution of any power herein granted, or for
any foreclosure under the judgment or decree of any court of competent
jurisdiction, or for damages, or to collect the indebtedness secured
hereby, or for the enforcement of any other appropriate legal, equitable,
statutory or contractual remedy. Mortgagee may sell the Property at public
auction in one or more parcels, at Mortgagee's option, and convey the same
to the purchaser in fee simple, Mortgagor to remain liable for any
deficiency for which Mortgagor shall be personally liable.
(g) OTHER REMEDIES. Mortgagee may exercise all rights and remedies
contained in any other instrument, document, agreement or other writing
heretofore, concurrently or in the future executed by Mortgagor or any
other person or entity in favor of Mortgagee in connection with the Secured
Obligations or any part thereof, without prejudice to the right of
Mortgagee thereafter to enforce any appropriate remedy against Mortgagor.
Mortgagee shall have the right to pursue all remedies afforded to a
mortgagee under the applicable laws of the state in which the Property is
located, and shall have the benefit of all of the provisions of any such
laws, including all amendments thereto which may become effective from time
to time after the date hereof. In the event any provision of any such laws
may be repealed, Mortgagee shall have the benefit of such provision as most
recently existing prior to such repeal, as though the same were
incorporated herein by express reference.
(h) POWER OF SALE FOR PERSONAL PROPERTY. Under this power of sale,
Mortgagee shall have the discretionary right to cause some or all of the
Property, which constitutes personal property, to be sold or otherwise
disposed of in any combination and in any manner permitted by applicable
law.
(i) For purposes of this power of sale, Mortgagee may elect to
treat as personal property any Property which is intangible or which
can be severed from the Land or Improvements without causing
structural damage. If it chooses to do so, Mortgagee may dispose of
any personal property in any manner permitted by the Code, including
any public or private sale, or in any manner permitted by any other
applicable law.
(ii) In connection with any sale or other disposition of such
Property, Mortgagor agrees that the following procedures constitute a
commercially reasonable sale: Mortgagee shall mail written notice of
the sale to Mortgagor not later than ten (10) days prior to such sale.
Upon receipt of any written request, Mortgagor will make the Property
available to any bona fide prospective purchaser for inspection during
reasonable business hours. Notwithstanding, Mortgagee shall be under
no obligation to consummate a sale if, in its judgment, none of the
offers received by it equals the fair value of the Property offered
for sale. The foregoing procedures do not constitute the only
procedures that may be commercially reasonable.
(i) SINGLE OR MULTIPLE FORECLOSURE SALES. If the Property consists of
more than one lot, parcel or item of property, Mortgagee may:
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(i) designate the order in which the lots, parcels and/or items
shall be sold or disposed of or offered for sale or disposition; and
(ii) elect to dispose of the lots, parcels and/or items through a
single consolidated sale or disposition to be held or made under or in
connection with judicial proceedings, or by virtue of a judgment and
decree of foreclosure and sale, or pursuant to the power of sale
contained herein; or through two or more such sales or dispositions;
or in any other manner Mortgagee may deem to be in its best interests
(any foreclosure sale or disposition as permitted by the terms hereof
is sometimes referred to herein as a "Foreclosure Sale;" and any two
or more such sales, "Foreclosure Sales").
If it chooses to have more than one Foreclosure Sale, Mortgagee at its option
may cause the Foreclosure Sales to be held simultaneously or successively, on
the same day, or on such different days and at such different times and in such
order as it may deem to be in its best interests. No Foreclosure Sale shall
terminate or affect the liens of this Mortgage on any part of the Property which
has not been sold, until all of the Secured Obligations have been paid in full.
5.3. APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of any
Foreclosure Sale shall be applied in the following manner:
(a) First, to pay the portion of the Secured Obligations attributable
to the expenses of sale, costs of any action and any other sums for which
Mortgagor is obligated to reimburse Mortgagee hereunder or under the other
Loan Documents;
(b) Second, to pay the portion of the Secured Obligations attributable
to any sums expended or advanced by Mortgagee under the terms of this
Mortgage which then remain unpaid;
(c) Third, to pay all other Secured Obligations in any order and
proportions as Mortgagee in its sole discretion may choose; and
(d) Fourth, to remit the remainder, if any, to the person or persons
entitled to it.
6. RELEASE OF LIEN. If Mortgagor shall fully pay and perform all of the
Secured Obligations and comply with all of the other terms and provisions hereof
and the other Loan Documents to be performed and complied with by Mortgagor,
then Mortgagee shall release this Mortgage and the lien thereof by proper
instrument upon payment, performance and discharge of all of the Secured
Obligations and payment by Mortgagor of any filing fee in connection with such
release.
7. MISCELLANEOUS PROVISIONS.
7.1. ADDITIONAL PROVISIONS. The Loan Documents fully state all of the terms
and conditions of the parties' agreement regarding the matters mentioned in or
incidental to this Mortgage. The Loan Documents also grant further rights to
Mortgagee and contain further agreements and affirmative and negative covenants
by Mortgagor which apply to this Mortgage and the Property.
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7.2. GIVING OF NOTICE. Any notice, demand, request or other communication
which any party hereto may be required or may desire to give hereunder shall be
given as provided in SECTION 9.3 of the Loan Agreement.
7.3. REMEDIES NOT EXCLUSIVE. No action for the enforcement of the lien or
any provision hereof shall be subject to any defense which would not be good and
available to the party interposing same in an action at law upon the Note.
Mortgagee shall be entitled to enforce payment and performance of any of the
Secured Obligations and to exercise all rights and powers under this Mortgage or
other agreement or any laws now or hereafter in force, notwithstanding some or
all of the Secured Obligations may now or hereafter be otherwise secured,
whether by mortgage, deed of trust, pledge, lien, assignment or otherwise.
Neither the acceptance of this Mortgage nor its enforcement, whether by court
action or other powers herein contained, shall prejudice or in any manner affect
Mortgagee's right to realize upon or enforce any other security now or hereafter
held by Mortgagee, it being agreed that Mortgagee shall be entitled to enforce
this Mortgage and any other remedy herein or by law provided or permitted, but
each shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. No
waiver of any default of the Mortgagor hereunder shall be implied from any
omission by Mortgagee to take any action on account of such default if such
default persists or is repeated, and no express waiver shall affect any default
other than the default specified in the express waiver and that only for the
time and to the extent therein stated. No acceptance of any payment of any one
or more delinquent installments which does not include interest at the Default
Rate from the date of delinquency, together with any required late charge, shall
constitute a waiver of the right of Mortgagee at any time thereafter to demand
and collect payment of interest at such Default Rate or of late charges, if any.
7.4. WAIVER OF STATUTORY RIGHTS. To the extent permitted by law, Mortgagor
hereby agrees that it shall not and will not apply for or avail itself of any
appraisement, valuation, stay, extension or exemption laws, or any so-called
"Moratorium Laws," now existing or hereafter enacted, in order to prevent or
hinder the enforcement or foreclosure of this Mortgage, but hereby waives the
benefit of such laws. Mortgagor for itself and all who may claim through or
under it waives any and all right to have the property and estates comprising
the Property marshaled upon any foreclosure of the lien hereof and agrees that
any court having jurisdiction to foreclose such lien may order the Property sold
as an entirety. Mortgagor hereby waives any and all rights of redemption from
sale under the power of sale contained herein or any order or decree of
foreclosure of this Mortgage on its behalf and on behalf of each and every
person, except decree or judgment creditors of Mortgagor, acquiring any interest
in or title to the Property subsequent to the date of this Mortgage.
7.5. ESTOPPEL AFFIDAVITS. Mortgagor, within fifteen (15) days after written
request from Mortgagee, shall furnish a written statement, duly acknowledged,
setting forth the unpaid principal of, and interest on, the Secured Obligations
and stating whether or not any offset or defense exists against such Secured
Obligations, and covering such other matters as Mortgagee may reasonably
require.
7.6. MERGER. No merger shall occur as a result of Mortgagee's acquiring any
other estate in or any other lien on the Property unless Mortgagee consents to a
merger in writing.
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7.7. BINDING ON SUCCESSORS AND ASSIGNS. This Mortgage and all provisions
hereof shall be binding upon Mortgagor and all persons claiming under or through
Mortgagor, and shall inure to the benefit of Mortgagee and its successors and
assigns.
7.8. CAPTIONS. The captions and headings of various paragraphs of this
Mortgage are for convenience only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof.
7.9. SEVERABILITY. If all or any portion of any provision of this Mortgage
shall be held to be invalid, illegal or unenforceable in any respect, then such
invalidity, illegality or unenforceability shall not affect any other provision
hereof or thereof, and such provision shall be limited and construed as if such
invalid, illegal or unenforceable provision or portion thereof was not contained
herein.
7.10. EFFECT OF EXTENSIONS OF TIME AND AMENDMENTS. If the payment of the
Secured Obligations or any part thereof be extended or varied or if any part of
the security be released, all persons now or at any time hereafter liable
therefor, or interested in the Property, shall be held to assent to such
extension, variation or release, and their liability and the lien and all
provisions hereof shall continue in full force, the right of recourse, if any,
against all such persons being expressly reserved by Mortgagee, notwithstanding
such extension, variation or release. Nothing in this SECTION 7.10 shall be
construed as waiving any provision contained herein or in the Loan Documents
which provides, among other things, that it shall constitute an Event of Default
if the Property be sold, conveyed, or encumbered.
7.11. MORTGAGEE'S LIEN FOR SERVICE CHARGE AND EXPENSES. At all times,
regardless of whether any proceeds of the loan secured hereby have been
disbursed, this Mortgage secures (in addition to the amounts secured hereby) the
payment of any and all commissions, service charges, liquidated damages,
expenses and advances due to or incurred by Mortgagee in connection with such
loan; provided, however, that in no event shall the total amount secured hereby
exceed two hundred percent (200%) of the face amount of the Note.
7.12. APPLICABLE LAW. This Mortgage shall be governed by and construed
under the internal laws of the State in which the Property is located.
7.13. LIMITATION OF LIABILITY. The personal liability of Mortgagor and its
general partner hereunder is limited to the extent set forth in SECTION 9.18 of
the Loan Agreement.
7.14. DUE ON SALE CLAUSE. As more fully set forth in SECTION 6.4 of the
Loan Agreement, the transfer or encumbrance of the Property, or any interest
therein, or the transfer of an interest in Mortgagor, except for the permitted
transfers set forth in SECTION 6.5 of the Loan Agreement, without prior written
consent of Mortgagee, shall constitute an Event of Default.
7.15. TIME IS OF THE ESSENCE. Time is of the essence with respect to each
and every covenant, agreement and obligation of Mortgagor under this Mortgage,
the Note and the other Loan Documents.
7.16. RECORDATION. Mortgagor forthwith upon the execution and delivery of
this Mortgage, and thereafter from time to time, will cause this Mortgage, and
any security instrument creating a lien or evidencing the lien hereof upon the
Property, or any portion thereof,
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<PAGE> 13
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 the lien hereof upon, and the
interest of Mortgagee in, the Property.
Mortgagor will pay all filing, registration or recording fees and taxes,
and all expenses incident to the preparation, execution and acknowledgment of
this Mortgage, any mortgage supplemental hereto, any security instrument with
respect to the Property and any instrument of further assurance, and all
federal, state, county and municipal stamp taxes, duties, impositions,
assessments and charges arising out of or in connection with the execution and
delivery of the Note, this Mortgage, any mortgage supplemental hereto, any
security instrument, any other Loan Documents or any instrument of further
assurance.
7.17. MODIFICATIONS. This Mortgage may not be changed or terminated except
in writing signed by both parties. The provisions of this Mortgage shall extend
and be applicable to all renewals, amendments, extensions, consolidations, and
modifications of the other Loan Documents, and any and all references herein to
the Loan Documents shall be deemed to include any such renewals, amendments,
extensions, consolidations or modifications thereof.
7.18. INDEPENDENCE OF SECURITY. Except as may exist pursuant to easements
and agreements existing as of the date hereof which have been disclosed to
Mortgagee, Mortgagor shall not by act or omission permit any building or other
improvement on any premises not subject to the lien of this Mortgage to rely on
the Property or any part thereof or any interest therein to fulfill any
municipal or governmental requirement, and Mortgagor hereby assigns to Mortgagee
any and all rights to give consent for all or any portion of the Property to
rely on any premises not subject to the lien of this Mortgage or any interest
therein to fulfill any municipal or governmental requirement. Mortgagor shall
not by act or omission impair the integrity of the Property as a single zoning
lot, and as one or more complete tax parcels, separate and apart from all other
premises. Any act or omission by Mortgagor which would result in a violation of
any of the provisions of this SECTION 7.18 shall be void.
8. STATE SPECIFIC PROVISIONS. The provisions of the Addendum to Mortgage
attached hereto as ANNEX I (the "ADDENDUM") are hereby incorporated herein by
this reference. Defined terms in the Addendum for which no definition is
provided in the Addendum will have the meanings given to such terms in the
Mortgage. In the event of any conflict or inconsistency between the provisions
of the Mortgage and the provisions of the Addendum, the provisions of the
Addendum will prevail.
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<PAGE> 14
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date
first written above.
MORTGAGOR
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, a
Delaware corporation, its sole general
partner
By: /s/ William G. Cornely
-------------------------------------
Its: Executive Vice President/COO/CFO
--------------------------------
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<PAGE> 15
STATE OF ILLINOIS )
COUNTY OF COOK )
This instrument was acknowledged before me on June 28, 1999 by William
G. Cornely the Executive Vice President of Glimcher Properties Corporation, the
sole general partner of Glimcher Properties Limited Partnership.
/s/ LINDA J. POLKA
----------------------------------
Notary Public
Cook County, Illinois
My Commission Expires: 7-2-99
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<PAGE> 16
CROSSING MEADOWS/ONALASKA, WISCONSIN
------------------------------------
EXHIBIT A
Legal Description
PARCEL I
Lot 1 of Certified Survey Map recorded November 19, 1992 in Volume 5 of
Certified Survey Maps, Pages 101, 101-A, 101-B, 101-C, 101-D, 101-E, and 101-F,
as Document Number 1081681. Lots 2 and 3 of Certified Survey Map recorded
November 25, 1991 in Volume 5 of Certified Survey Maps, Pages 37 and 37-A, as
Document Number 1059955.
(Said Certified Survey Maps are located over Lots 1, 2, and 3 of Certified
Survey Map recorded in Volume 5 of Certified Survey Maps, Page 37, on Lot 3 of
Certified Survey Map recorded in Volume 5 of Certified Survey Maps, Page 57, on
Lot 5 of Certified Survey Map recorded in Volume 5 of Certified Survey Maps,
Page 75, on part of vacated Crossing Meadows Drive, on Lots 3 and 4 of Certified
Survey Map recorded in Volume 4 of Certified Survey Maps, Page 107, and on the
SE 1/4 of Section 9, and on the NE 1/4 of Section 16, both in Township 16 North
of Range 7 West, City of Onalaska, La Crosse County, Wisconsin.)
The above lands are also described as follows:
A tract of land being all of Lot 1 of Certified Survey Map as recorded in Volume
5 of Certified Survey Maps, Pages 101-101F as Document No. 1081681, recorded on
November 19, 1992 and all of Lots 2 and 3 of Certified Survey Map as recorded in
Volume 5 of Certified Survey Maps, Pages 37 and 37A, Document No. 1059955, dated
November 25, 1991; and all being part of the Southeast Quarter of Section 9, and
part of the Northeast Quarter of Section 16, Township 16 North, Range 7 West of
the 4th P.M. in the City of Onalaska, LaCrosse County, Wisconsin, to wit:
Beginning at a found chiseled "x" at the southwest corner of said Lot 1, said
point also being on the north line of Pralle's Addition - Block 2, said point
also being in the east right-of-way line of 12th Avenue South; thence along said
east right-of-way line and the west line of said Lot 1, North 00? 25' 22" West,
56.33 feet, to a found chiseled "x", thence along a curve deflecting to the left
having a radius of 885.06
Continued...
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<PAGE> 17
EXHIBIT A
LEGAL DESCRIPTION
(CONTINUED)
PARCEL I, CONTINUED...
feet , an arc length of 431.01 feet, a chord bearing of North 14? 22' 23" West,
a chord distance of 426.77 feet, to a cut cross, thence North 28? 19' 32" West
16.10 feet, to a cut cross at the intersection of said east right-of-way line
and the south right-of-way line of Crossing Meadow Drive; thence along said
south right-of-way line North 61? 28' 04" East 360.08 feet to a cut cross,
thence along a curve deflecting to the right having a radius of 158.00 feet, an
arc length of 141.53 feet, a chord bearing of North 87? 07' 45" East, a chord
distance of 136.84 feet, to a set P/K Nail, thence along a curve deflecting to
the left having a radius of 202.00 feet, an arc length of 180.94 feet, a chord
bearing of North 87? 07' 45" East, a chord distance of 174.95 feet, to a cut
cross, thence North 61? 28' 04" East 503.71 feet to a set iron rod, thence along
a curve deflecting to the right having a radius of 138.00 feet, an arc length of
73.10 feet, a chord bearing of North 76? 38' 32" East, a chord distance of 72.24
feet to a cut cross, thence South 01? 49' 00" West 11.00 feet to set P/K Nail,
thence South 88? 11' 00" East 129.74 feet to a cut cross, thence along a curve
deflecting to the right having a radius of 268.78 feet, an arc length of 5.35
feet, a chord bearing of South 87? 36' 50" East, a chord distance of 5.35 feet
to a cut cross at the northeast corner of said Lot 1; thence leaving said south
right-of-way line along the east line of said Lot 1 South 00? 28' 00" East
283.73 feet to a found iron pipe in the north line of said Lot 3; thence leaving
said east line along said north line North 89? 37' 10" East 307.00 feet to a
found drill hole at the northeast corner of said Lot 3, also being in the west
right-of-way line of said Crossing Meadow Drive; thence along said west
right-of-way line, also being the east line of said Lot 3 along a curve
deflecting to the right having a radius of 224.00 feet, an arc length of 32.98
feet, a chord bearing of South 03?13' 48 East, a chord distance of 32.95 feet to
a cut cross, thence South 00? 58' 00" West 414.84 feet to a cut cross, thence
South 01? 34' 00" East 170.50 feet to a found chiseled "x" at the southeast
corner of said Lot 3, also being in the north line of said Pralle's Addition
Block 1; thence leaving said right-of-way line along said north line, also being
the south line of said Lots 3, 2, and 1 South 89? 28' 00" West 1,470.14 feet, to
the point of beginning.
PARCEL II
Together with a storm sewer easement which constitutes rights in real property
created, defined and limited by that certain Warranty Deed from Crossing
Meadows, Inc., to Cheetah, Inc., recorded in Volume 949 of Records, Page 432, as
Document Number 1076153, which was corrected by re-recording in Volume 952 of
Records, Page 500, as Document Number 1077282.
PARCEL III
Together with a perpetual drainage easement which constitutes rights in real
property created, defined and limited by that certain Grant of Easement and
Agreement by and between Willard W. Webb and Gladys E. Webb to PaineWebber
Retail Property Investments, Ltd., recorded in Volume 951 of Records, Page 769,
as Document Number 1077001.
Continued...
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<PAGE> 18
EXHIBIT A
LEGAL DESCRIPTION
(CONTINUED)
PARCEL IV
Together with a sign easement which constitutes rights in real property created,
defined and limited by that certain Grant of Easement from TCI
Designers/Builders/Developers, Inc., to PaineWebber Retail Property Investments,
Ltd., recorded in Volume 951 of Records, Page 774, as Document Number 1077002.
PARCEL V
Together with a sign easement which constitutes rights in real property created,
defined and limited by that certain Assignment of Easement, from TCI
Designers/Builders/Developers, Inc., to PaineWebber Retail Property Investments,
Ltd., recorded in Volume 951 of Records, Page 779, as Document Number 1077003,
assigning easement reserved in Volume 872 of Records, Page 649, Document Number
1039358.
PARCEL VI
Together with those rights and easements which constitutes rights in real
property created, defined and limited by that certain Declaration of Restrictive
Covenants Running with the Land by Crossing Meadows Inc., a Wisconsin
Corporation, dated May 1, 1992, recorded May 6, 1992, in Volume 933 of Records,
Page 405, Document Number 1068731, affected by Consent of Declarant from
Crossing Meadows, Inc., to The Public, dated May 1, 1992, recorded May 6, 1992,
in Volume 933 of Records, Page 409, Document Number 1068732, amended by
Assignment of Rights Relating to Restrictive Covenants Running with the Land,
from Crossing Meadows Inc., a Wisconsin Corporation to PaineWebber Retail
Property Investments, Ltd., a Texas limited partnership, dated August 31, 1992,
recorded September 11, 1992, in Volume 951 of Records, Page 791, Document Number
1077005, all in the Register of Deeds, La Crosse County, Wisconsin. (LT Ex. 21)
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<PAGE> 19
ANNEX I
ADDENDUM TO MORTGAGE
This Addendum to Mortgage is attached to and made a part of that
certain Mortgage, Security Agreement, Fixture Filing and Financing Statement
dated as of the 28TH day of June, 1999 executed by Glimcher Properties Limited
Partnership, as Mortgagor, in favor of Jackson National Life Insurance Company,
as Mortgagee.
8.1. FORECLOSURE WITHOUT DEFICIENCY JUDGMENT. If the Property is other than
a one-to-four family residence that is owner-occupied at the commencement of a
foreclosure, a farm, a church or a tax exempt charitable organization, Mortgagor
agrees to the provisions of Section 846.103, Wis. Stats., and as the same may be
amended or renumbered from time to time, permitting Mortgagee, upon waiving the
right to judgment for deficiency, to hold the foreclosure sale of real estate
three months after a foreclosure judgment is entered.
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<PAGE> 1
Exhibit - 10.111
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Milos Markovic, Esq.
- --------------------------------------------------------------------------------
DEED OF TRUST, SECURITY AGREEMENT,
----------------------------------
FIXTURE FILING AND FINANCING STATEMENT
--------------------------------------
THIS DEED OF TRUST, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING
STATEMENT, together with all amendments and supplements hereto ("DEED OF TRUST")
is made as of June 28, 1999, between GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership (the "TRUSTOR"; index as "Grantor"), having an
address at 20 South Third Street, Columbus, Ohio 43215 and LAWYERS TITLE REALTY
SERVICES, INC., having an address at 6630 West Broad Street, Richmond, VA 23230,
as trustee ("TRUSTEE"; index as "Grantee"), in favor of JACKSON NATIONAL LIFE
INSURANCE COMPANY, a Michigan corporation (the "BENEFICIARY"; index as
"Grantee"), having an address c/o PPM Finance, Inc., 225 West Wacker Drive,
Suite 1200, Chicago, Illinois 60606.
1. DEED OF TRUST AND SECURED OBLIGATIONS.
-------------------------------------
1.1. DEED OF TRUST. For purposes of securing payment and performance
of the Secured Obligations defined and described in SECTION 1.2, Trustor, hereby
irrevocably and unconditionally grants, bargains, sells, conveys, mortgages,
warrants, assigns and pledges to Trustee, for the benefit of Beneficiary, with
right of entry and possession, and with power of sale, all estate, right, title
and interest which Trustor now has or may later acquire in and to the following
property (all or any part of such property, or any interest in all or any part
of it, as the context may require, the "PROPERTY"):
(a) the real property located in the County of Tazewell,
Commonwealth of Virginia and more particularly described in Exhibit A attached
hereto, together with all existing and future easements and rights affording
access to it (the "Land");
(b) all buildings, structures and improvements now located or
later to be constructed on the Land (the "Improvements");
(c) all existing and future appurtenances, privileges,
easements, franchises and tenements of the Land, including all minerals, oil,
gas, other hydrocarbons and associated substances, sulfur, nitrogen, carbon
dioxide, helium and other commercially valuable substances which may be in,
under or produced from any part of the Land, all development rights and credits,
air rights, water, water rights (whether riparian, appropriate or otherwise, and
whether or not appurtenant) and water stock, and any land lying in the streets,
roads or avenues, open or proposed, in front of or adjoining the Land and
Improvements;
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<PAGE> 2
(d) all existing and future leases, subleases, subtenancies,
licenses, occupancy agreements and concessions ("leases", as defined in the
Assignment of Leases and Rents described in Section 2 herein, executed and
delivered to Lender contemporaneously herewith) relating to the use and
enjoyment of all or any part of the Land and Improvements, and any and all
guaranties and other agreements relating to or made in connection with any of
such leases;
(e) all goods, materials, supplies, chattels, furniture,
fixtures, equipment and machinery now or later to be attached to, placed in or
on, or used in connection with the use, enjoyment, occupancy or operation of all
or any part of the Land and Improvements, whether stored on the Land or
elsewhere, including all pumping plants, engines, pipes, ditches and flumes, and
also all gas, electric, cooking, heating, cooling, air conditioning, lighting,
refrigeration and plumbing fixtures and equipment, all of which shall be
considered to the fullest extent of the law to be real property for purposes of
this Deed of Trust;
(f) all building materials, equipment, work in process or other
personal property of any kind, whether stored on the Land or elsewhere, which
have been or later will be acquired for the purpose of being delivered to,
incorporated into or installed in or about the Land or Improvements;
(g) all of Trustor's interest in and to the Loan funds, whether
disbursed or not, the Escrow Accounts (as defined in Section 3.1of the Loan
Agreement) and any of Trustor's funds now or later to be held by or on behalf of
Trustee for the benefit of Beneficiary;
(h) all rights to the payment of money, accounts, accounts
receivable, reserves, deferred payments, refunds, cost savings, payments and
deposits, whether now or later to be received from third parties (including all
security deposits and earnest money sales deposits) or deposited by Trustor with
third parties (including all utility deposits), contract rights, development and
use rights, governmental permits and licenses, applications, architectural and
engineering plans, specifications and drawings, as-built drawings, chattel
paper, instruments, documents, notes, drafts and letters of credit (other than
letters of credit in favor of Beneficiary), which arise from or relate to
construction on the Land or to any business now or later to be conducted on it,
or to the Land and Improvements generally;
(i) all proceeds, including all claims to and demands for them,
of the voluntary or involuntary conversion of any of the Land, Improvements or
the other property described above into cash or liquidated claims, including
proceeds of all present and future fire, hazard or casualty insurance policies
and all condemnation awards or payments now or later to be made by any public
body or decree by any court of competent jurisdiction for any taking or in
connection with any condemnation or eminent domain proceeding, and all causes of
action and their proceeds for any damage or injury to the Land, Improvements or
the other property described above or any part of them, or breach of warranty in
connection with the construction of the Improvements, including causes of action
arising in tort, contract, fraud or concealment of a material fact;
(j) all books and records pertaining to any and all of the
property described above, including computer-readable memory software necessary
to access and process such memory ("Books and Records"). Notwithstanding
anything in the foregoing to the contrary, "Books and Records" shall not be
deemed to include the general corporate books and records of
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<PAGE> 3
the Trustor which are maintained on a consolidated basis for all of Trustor's
properties (which properties include the Property being secured hereunder)
except to the extent that information in such consolidated books and records
pertains to the Property secured hereunder;
(k) (i) all agreements heretofore or hereafter entered into
relating to the construction, ownership, operation, management, leasing or use
of the Land or Improvements; (ii) any and all present and future amendments,
modifications, supplements, and addenda to any of the items described in (i)
above; (iii) any and all guarantees, warranties and other undertakings
(including payment and performance bonds) heretofore or hereafter entered into
or delivered with respect to any of the items described in clauses (i) and (ii)
above; (iv) all trade names, trademarks, logos and other materials used to
identify or advertise, or otherwise relating to the Land or Improvements; and
(v) all building permits, governmental permits, licenses, variances, conditional
or special use permits, and other authorizations (collectively, the "Permits")
now or hereafter issued in connection with the construction, development,
ownership, operation, management, leasing or use of the Land or Improvements, to
the fullest extent that the same or any interest therein may be legally assigned
by Mortgagor; and
(l) all proceeds of, additions and accretions to, substitutions
and replacements for, and changes in any of the property described above.
Capitalized terms used above and elsewhere in this Deed of Trust
without definition have the meanings given them in the Loan Agreement referred
to in Section 1.2 below.
1.2. SECURED OBLIGATIONS. This Deed of Trust is made for the purpose
of securing the following obligations (the "SECURED OBLIGATIONS") in any order
of priority that Beneficiary may choose:
(a) Payment of all obligations at any time owing under a
Promissory Note (the "Note") of even date herewith, payable by Trustor as maker
in the stated principal amount of Ninety Million Dollars ($90,000,000.00) to the
order of Beneficiary, which Note matures and is due and payable in full not
later than July 1, 2009; and
(b) Payment and performance of all obligations of Trustor under
a Loan Agreement of even date herewith between Trustor, as borrower, and
Beneficiary, as lender (the "Loan Agreement"); and
(c) Payment and performance of all obligations of Trustor under
this Deed of Trust; and
(d) Payment and performance of any obligations of Trustor under
any Loan Documents (as defined in the Loan Agreement) which are executed by
Trustor, including without limitation the Environmental Indemnity; and
(e) Payment and performance of all future advances and other
obligations that Trustor or any successor in ownership of all or part of the
Property may agree to pay and/or perform (whether as principal, surety or
guarantor) for the benefit of Beneficiary, when a writing evidences the parties'
agreement that the advance or obligation be secured by this Deed of Trust; and
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<PAGE> 4
(f) Payment and performance of all modifications, amendments,
extensions and renewals, however evidenced, of any of the Secured Obligations.
All persons who may have or acquire an interest in all or any part of
the Property will be considered to have notice of, and will be bound by, the
terms of the Secured Obligations and each other agreement or instrument made or
entered into in connection with each of the Secured Obligations. These terms
include any provisions in the Note or the Loan Agreement which provide that the
interest rate on one or more of the Secured Obligations may vary from time to
time.
2. ASSIGNMENT OF LEASES AND RENTS. As an inducement to Beneficiary to make
the loan evidenced by the Note and the Loan Agreement, Trustor has
contemporaneously herewith executed and delivered to Beneficiary an Assignment
of Leases and Rents with respect to the Property.
3. GRANT OF SECURITY INTEREST.
3.1. SECURITY AGREEMENT. The parties acknowledge that some of the Property
and some or all of the Rents (as defined in the Assignment of Leases and Rents)
may be determined under applicable law to be personal property or fixtures. To
the extent that any Property or Rents may be personal property, Trustor as
debtor hereby grants Beneficiary as secured party a security interest in all
such Property and Rents, to secure payment and performance of the Secured
Obligations. This Deed of Trust constitutes a security agreement under the
Uniform Commercial Code as in effect in the State in which the Property is
located (the "CODE"), covering all such Property and Rents.
3.2. FINANCING STATEMENTS. Trustor shall execute one or more financing
statements and such other documents as Beneficiary may from time to time require
to perfect or continue the perfection of Beneficiary's security interest in any
Property or Rents. Trustor shall pay all fees and costs that Beneficiary, or
Trustee on behalf of Beneficiary, may incur in filing such documents in public
offices and in obtaining such record searches as Beneficiary may reasonably
require. In case Trustor fails to execute any financing statements or other
documents for the perfection or continuation of any security interest, Trustor
hereby appoints Beneficiary as its true and lawful attorney-in-fact to execute
any such documents on its behalf.
3.3. FIXTURE FILING. Trustor and Beneficiary agree, to the extent permitted
by law, that this instrument constitutes a financing statement filed as a
fixture filing under Sections 8.9-313 and 8.9-402 of the Code, as amended or
recodified from time to time, covering any of the Property which now is or later
may become fixtures attached to the Land or the Improvements. The following
addresses are the mailing addresses of Trustor, as debtor under the Code, and
Beneficiary, as secured party under the Code, respectively:
TRUSTOR: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
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<PAGE> 5
BENEFICIARY: Jackson National Life Insurance Company
c/o PPM Finance, Inc.
225 West Wacker Drive
Suite 1200
Chicago, Illinois 60606
4. REPRESENTATIONS, COVENANTS AND AGREEMENTS.
4.1. GOOD TITLE. Trustor represents, warrants, and covenants that it
is lawfully seized of the Property, that the Property is unencumbered except for
the Permitted Exceptions (as defined in the Loan Agreement), and that it has
good right, full power and lawful authority to convey and mortgage the same, and
that it will warrant and forever defend the Property and the quiet and peaceful
possession of the same against the lawful claims of all persons whomsoever.
4.2. INSURANCE. In the event of any loss or damage to any portion of the
Property due to fire or other casualty, or a taking of any portion of the
Property by condemnation or under the power of eminent domain, the settlement of
all insurance and condemnation claims and awards and the application of
insurance and condemnation proceeds shall be governed by SECTION 5 of the Loan
Agreement.
4.3. STAMP TAX. If, by the laws of the United States of America, or of any
state or political subdivision having jurisdiction over Trustor, any tax is due
or becomes due in respect of the issuance of the Note, or recording of this Deed
of Trust, Trustor covenants and agrees to pay such tax in the manner required by
any such law. Trustor further covenants to hold harmless and agrees to indemnify
Beneficiary, its successors or assigns, against any liability incurred by reason
of the imposition of any tax on the issuance of the Note or recording of this
Deed of Trust.
4.4. CHANGES IN TAXATION. Other than a tax that may arise in connection
with the transfer of the Note by Beneficiary or imposed on the income of the
Beneficiary, in the event of the enactment after this date of any law of the
State in which the Property is located or any political subdivision thereof
deducting from the value of land for the purpose of taxation any lien thereon,
or imposing upon Beneficiary the payment of the whole or any part of the taxes
or assessments or charges or liens herein required to be paid by Trustor, or
changing in any way the laws relating to the taxation of mortgages or debts
secured by mortgages or the Beneficiary's interest in the Property, or the
manner of collection of taxes, so as to adversely affect this Deed of Trust or
the debt secured hereby, then Trustor, upon demand by Beneficiary, shall pay
such taxes or assessments, or reimburse Beneficiary therefor; PROVIDED, HOWEVER,
that if in the opinion of counsel for Beneficiary (i) it might be unlawful to
require Trustor to make such payment or (ii) the making of such payment might
result in the imposition of interest beyond the maximum amount permitted by law,
then Beneficiary may elect, by notice in writing given to Trustor, to declare
all of the Secured Obligations to be and become due and payable sixty (60) days
from the giving of such notice.
4.5. SUBROGATION. Beneficiary shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole
or in part by Beneficiary in accordance with this Deed of Trust or with the
proceeds of any loan secured by this Deed of Trust.
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<PAGE> 6
4.6. NOTICE OF CHANGE. Trustor shall give Beneficiary prior written notice
of any change in: (a) the location of its place of business or its chief
executive office if it has more than one place of business; (b) the location of
any of the Property, including the Books and Records; and (c) Trustor's name or
business structure. Unless otherwise approved by Beneficiary in writing, all
Property that consists of personal property (other than the Books and Records)
will be located on the Land and all Books and Records will be located at
Trustor's place of business or chief executive office if Trustor has more than
one place of business.
4.7. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY. From
time to time, Beneficiary may perform any of the following acts without
incurring any liability or giving notice to any person: (i) release any person
liable for payment of any Secured Obligation; (ii) extend the time for payment,
or otherwise alter the terms of payment, of any Secured Obligation; (iii) accept
additional real or personal property of any kind as security for any Secured
Obligation, whether evidenced by deeds of trust, mortgages, security agreements
or any other instruments of security; (iv) alter, substitute or release any
property securing the Secured Obligations; (v) consent to the making of any plat
or map of the Property or any part of it; (vi) join in granting any easement or
creating any restriction affecting the Property; or (vii) join in any
subordination or other agreement affecting this Deed of Trust or the lien of it.
5. DEFAULTS AND REMEDIES.
5.1. EVENTS OF DEFAULT. An "Event of Default," as defined in the Loan
Agreement, shall constitute an Event of Default hereunder.
5.2. REMEDIES. At any time after an Event of Default, Beneficiary shall be
entitled to invoke any and all of the rights and remedies described below, in
addition to all other rights and remedies available to Beneficiary at law or in
equity. All of such rights and remedies shall be cumulative, and the exercise of
any one or more of them shall not constitute an election of remedies.
(a) ACCELERATION. Beneficiary may declare any or all of the
principal sum hereby secured to be due and payable immediately.
(b) RECEIVER. Beneficiary shall, as a matter of right, without
notice and without giving bond to Trustor or anyone claiming by, under or
through Trustor, and without regard for the solvency or insolvency of Trustor or
the then value of the Property, to the extent permitted by applicable law, be
entitled to have a receiver appointed for all or any part of the Property and
the Rents, and the proceeds, issues and profits thereof, with the rights and
powers referenced below and such other rights and powers as the court making
such appointment shall confer, and Trustor hereby consents to the appointment of
such receiver and shall not oppose any such appointment. Such receiver shall
have all powers and duties prescribed by the applicable laws in effect in the
State in which the Property is located, all other powers which are necessary or
usual in such cases for the protection, possession, control, management and
operation of the Property, and such rights and powers as Beneficiary would have,
upon entering and taking possession of the Property under subsection (c) below.
(c) ENTRY. Beneficiary, in person, by agent or by court-appointed
receiver, may enter, take possession of, manage and operate all or any part of
the Property, and may also
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<PAGE> 7
do any and all other things in connection with those actions that Beneficiary
may in its sole discretion consider necessary and appropriate to protect the
security of this Deed of Trust. Such other things may include: taking and
possessing all of Trustor's or the then owner's Books and Records; entering
into, enforcing, modifying or canceling leases on such terms and conditions as
Beneficiary may consider proper; obtaining and evicting tenants; fixing or
modifying Rents; collecting and receiving any payment of money owing to Trustor;
completing any unfinished construction; and/or contracting for and making
repairs and alterations. If Beneficiary so requests, Trustor shall assemble all
of the Property that has been removed from the Land and make all of it available
to Beneficiary at the site of the Land. Trustor hereby irrevocably constitutes
and appoints Beneficiary as Trustor's attorney-in-fact to perform such acts and
execute such documents as Beneficiary in its sole discretion may consider to be
appropriate in connection with taking these measures, including endorsement of
Trustor's name on any instruments.
(d) CURE; PROTECTION OF SECURITY. Beneficiary may cure any breach or
default of Trustor, and if it chooses to do so in connection with any such cure,
Beneficiary may also enter the Property and/or do any and all other things which
it may in its sole discretion consider necessary and appropriate to protect the
security of this Deed of Trust. Such other things may include: appearing in
and/or defending any action or proceeding which purports to affect the security
of, or the rights or powers of Beneficiary under, this Deed of Trust; paying,
purchasing, contesting or compromising any encumbrance, charge, lien or claim of
lien which in Beneficiary's sole judgment is or may be senior in priority to
this Deed of Trust, such judgment of Beneficiary to be conclusive as between the
parties to this Deed of Trust; obtaining insurance and/or paying any premiums or
charges for insurance required to be carried under the Loan Agreement; otherwise
caring for and protecting any and all of the Property; and/or employing counsel,
accountants, contractors and other appropriate persons to assist Beneficiary.
Beneficiary may take any of the actions permitted under this Section 5.2(d)
either with or without giving notice to any person. Any amounts expended by
Beneficiary under this Section 5.2(d) shall be secured by this Deed of Trust.
(e) UNIFORM COMMERCIAL CODE REMEDIES. Beneficiary may exercise any
or all of the remedies granted to a secured party under the Code.
(f) FORECLOSURE; LAWSUITS. Beneficiary shall have the right, in one
or several concurrent or consecutive proceedings, to foreclose the lien hereof
upon the Property or any part thereof, for the Secured Obligations, or any part
thereof, by any nonjudicial or judicial proceedings appropriate under applicable
law. Beneficiary or its nominee may bid and become the purchaser of all or any
part of the Property at any foreclosure or other sale hereunder, and the amount
of Beneficiary's successful bid shall be credited on the Secured Obligations.
Without limiting the foregoing, Beneficiary may proceed by a suit or suits in
law or equity, whether for specific performance of any covenant or agreement
herein contained or contained in any of the other Loan Documents (as defined in
the Loan Agreement), or in aid of the execution of any power herein granted, or
for any foreclosure under the judgment or decree of any court of competent
jurisdiction, or for damages, or to collect the indebtedness secured hereby, or
for the enforcement of any other appropriate legal, equitable, statutory or
contractual remedy. Trustee, at the direction of the Beneficiary, may sell the
Property at public auction in one or more parcels, at Beneficiary's option, and
convey the same to the purchaser in fee simple, Trustor to remain liable for any
deficiency for which Trustor shall be personally liable.
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<PAGE> 8
(g) FORECLOSURE BY POWER OF SALE.
(i) Should Beneficiary elect to foreclose by exercise of the
power of sale contained herein, upon Beneficiary's request,
Trustee shall sell the property in accordance with the applicable
State law at public auction to the highest bidder. Any person
except Trustee may bid at the Trustee's sale. Trustee shall apply
the proceeds of the sale as follows: (i) to the expenses of sale,
including Trustee's fee and attorneys' fee; (ii) to all the
indebtedness evidenced by the Note and all other indebtedness
secured by this Deed of Trust or any other Loan Document; (iii)
the surplus, if any, shall be distributed in accordance with the
applicable State law. Trustee shall deliver to the purchaser at
the sale its deed, without warranty, which shall convey to the
purchaser the interest in the Property which Trustor had or had
the power to convey at the time of its execution of this Deed of
Trust and such as it may have acquired thereafter. Trustee's deed
shall recite the facts showing that the sale was conducted in
compliance with all the requirements of the law and of this Deed
of Trust, which recital shall be prima facie evidence of such
compliance and conclusive evidence thereof in favor of bona fide
purchasers and encumbrancers for value. The power of sale
conferred by this Deed of Trust and by the applicable State law
is not an exclusive remedy, and when not exercised Beneficiary
may foreclose this Deed of Trust as a mortgage.
(ii) After deducting all costs, fees and expenses of
Beneficiary and Trustee, including costs of evidence of title in
connection with any such sale, Beneficiary shall apply the
proceeds of sale, in the following order of priority, to payment
of (i) first, all amounts expended under the terms hereof and not
then repaid, with accrued interest, (ii) second, all other
amounts then secured hereby, in such order as Beneficiary shall
determine in its sole and absolute discretion, and (iii) the
remainder, if any, to the person(s) legally entitled thereto.
(iii) To the extent permitted by applicable law, Trustee may
postpone the sale of all or any portion of the Property by public
announcement at the time and place of sale, and from time to time
thereafter may again postpone such sale by public announcement or
subsequently noticed sale, and without further notice may make
such sale at the time fixed by the last postponement or may, in
its discretion, give a new notice of sale.
(iv) A sale of less than all of the Property or any
defective or irregular sale made hereunder shall not exhaust the
power of sale provided for herein, and subsequent sales may be
made hereunder until all Secured Obligations have been satisfied
or the entire Property sold, without defect or irregularity.
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<PAGE> 9
(h) OTHER REMEDIES. Beneficiary may exercise all rights and remedies
contained in any other instrument, document, agreement or other writing
heretofore, concurrently or in the future executed by Trustor or any other
person or entity in favor of Beneficiary in connection with the Secured
Obligations or any part thereof, without prejudice to the right of Beneficiary
thereafter to enforce any appropriate remedy against Trustor. Beneficiary shall
have the right to pursue all remedies afforded to a beneficiary of a deed of
trust under applicable law, and shall have the benefit of all of the provisions
of such applicable law, including all amendments thereto which may become
effective from time to time after the date hereof. In the event any provision of
such law which is specifically referred to herein may be repealed, Beneficiary
shall have the benefit of such provision as most recently existing prior to such
repeal, as though the same were incorporated herein by express reference.
(i) POWER OF SALE FOR PERSONAL PROPERTY. Under this power of sale,
Beneficiary shall have the discretionary right to cause some or all of the
Property, which constitutes personal property, to be sold or otherwise disposed
of in any combination and in any manner permitted by applicable law.
(i) For purposes of this power of sale, Beneficiary may
elect to treat as personal property any Property which is
intangible or which can be severed from the Land or Improvements
without causing structural damage. If it chooses to do so,
Beneficiary may dispose of any personal property in any manner
permitted by Article 9 of the Code, including any public or
private sale, or in any manner permitted by any other applicable
law.
(ii) In connection with any sale or other disposition of
such Property, Trustor agrees that the following procedures
constitute a commercially reasonable sale: Beneficiary shall mail
written notice of the sale to Trustor not later than ten (10)
days prior to such sale. Upon receipt of any written request,
Trustor will make the Property available to any bona fide
prospective purchaser for inspection during reasonable business
hours. Notwithstanding, Beneficiary shall be under no obligation
to consummate a sale if, in its judgment, none of the offers
received by it equals the fair value of the Property offered for
sale. The foregoing procedures do not constitute the only
procedures that may be commercially reasonable.
(j) Single or Multiple Foreclosure Sales. If the Property consists
of more than one lot, parcel or item of property, Beneficiary may:
(i) designate the order in which the lots, parcels and/or
items shall be sold or disposed of or offered for sale or
disposition; and
(ii) elect to dispose of the lots, parcels and/or items
through a single consolidated sale or disposition to be held or
made under or in connection with judicial proceedings, or by
virtue of a judgment and decree of foreclosure and sale, or
pursuant to the power of sale contained herein; or through two or
more such sales or dispositions; or in any other
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<PAGE> 10
manner Beneficiary may deem to be in its best interests (any
foreclosure sale or disposition as permitted by the terms hereof
is sometimes referred to herein as a "FORECLOSURE SALE;" and any
two or more such sales, "FORECLOSURE SALES").
If it chooses to have more than one Foreclosure Sale, Beneficiary at its
option may cause the Foreclosure Sales to be held simultaneously or
successively, on the same day, or on such different days and at such different
times and in such order as it may deem to be in its best interests. No
Foreclosure Sale shall terminate or affect the payment secured under the Deed of
Trust on any part of the Property which has not been sold, until all of the
Secured Obligations have been paid in full.
5.3. APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of any
Foreclosure Sale shall be applied in the following manner:
(a) First, to pay the portion of the Secured Obligations attributable
to the expenses of sale, costs of any action and any other sums for which
Trustor is obligated to reimburse Beneficiary hereunder or under the other Loan
Documents;
(b) Second, to pay the portion of the Secured Obligations
attributable to any sums expended or advanced by Beneficiary under the terms of
this Deed of Trust which then remain unpaid;
(c) Third, to pay all other Secured Obligations in any order and
proportions as Beneficiary in its sole discretion may choose; and
(d) Fourth, to remit the remainder, if any, to the person or persons
entitled to it.
Beneficiary shall have no liability for any funds which it does not
actually receive.
6. RELEASE. If Trustor shall fully pay and perform all of the Secured
Obligations and comply with all of the other terms and provisions hereof and the
other Loan Documents to be performed and complied with by Trustor, then
Beneficiary shall instruct Trustee to reconvey this Deed of Trust and the lien
thereof by proper instrument upon payment, performance and discharge of all of
the Secured Obligations and payment by Trustor of any filing fee in connection
with such release. Release of this Deed of Trust shall, ipso facto, also release
the Assignment of Leases and Rents referred to in Section 2 above.
7. CONCERNING THE TRUSTEE.
7.1. NO REQUIRED ACTION. Trustee shall not be required to take any action
toward the execution and enforcement of the trust hereby created or to
institute, appear in, or defend any action, suit, or other proceeding in
connection therewith where, in his opinion, such action would be likely to
involve him in expense or liability, unless requested so to do by a written
instrument signed by Beneficiary and, if Trustee so requests, unless Trustee is
tendered security and indemnity satisfactory to Trustee against any and all
cost, expense, and liability arising therefrom. Trustee shall not be responsible
for the execution, acknowledgment, or validity of the Loan Documents, or for the
proper authorization thereof, or for the recordation or sufficiency of
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<PAGE> 11
the lien and security interest purported to be created hereby, and Trustee makes
no representation in respect thereof or in respect of the rights, remedies, and
recourse of Beneficiary.
7.2. CERTAIN RIGHTS. With the approval of Beneficiary, Trustee shall have
the right to take any and all of the following actions: (i) to select, employ,
and consult with counsel (who may be, but need not be, counsel for Beneficiary)
upon any matters arising hereunder, including the preparation, execution, and
interpretation of the 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 (iv) any and all other lawful action that Beneficiary may
instruct Trustee to take to protect or enforce Beneficiary'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 any 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 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.
Grantor will, from time to time, pay the compensation due to Trustee hereunder
and reimburse Trustee for, and save Trustee harmless against, any and all
liability and expenses which may be incurred by Trustee in the performance of
Trustee's duties.
7.3. 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).
7.4. SUCCESSOR TRUSTEES. Trustee may resign by the giving of notice of such
resignation in writing to Beneficiary. If (a) Trustee shall die, resign, or
become disqualified from acting in the execution of this trust, or (b) for any
reason, Beneficiary shall prefer to appoint a substitute trustee, or successive
substitute trustees or successive multiple substitute trustees, to act instead
of the aforenamed Trustee, Beneficiary shall have full power to appoint a
substitute trustee in succession who shall succeed to all the estates, rights,
powers, and duties of the aforenamed Trustee. Such appointment may be executed
by any authorized agent of Beneficiary, and if such Beneficiary be a corporation
and such appointment be executed in its behalf by any officer of such
corporation, such appointment shall be conclusively presumed to be executed with
authority and shall be valid and sufficient without proof of any action by the
board of directors or any superior officer of the corporation. Grantor hereby
ratifies and confirms any and all acts which the aforenamed Trustee, or his
successor or successors in this trust, shall do lawfully by virtue hereof.
7.5. PERFECTION OF APPOINTMENT. Should any deed, conveyance, or instrument
of any nature be required from Grantor 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
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<PAGE> 12
instruments shall be made, executed, acknowledged, and delivered and shall be
caused to be recorded and/or filed by Grantor.
7.6. 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 Beneficiary or of the substitute Trustee, the Trustee 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.
7.7. NO REPRESENTATION BY TRUSTEE OR BENEFICIARY. By accepting or approving
anything required to be observed, performed, or fulfilled or to be given to
Trustee or Beneficiary pursuant to the 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,
neither Trustee nor Beneficiary shall be deemed to have warranted, consented to,
or affirmed the sufficiency, legality, effectiveness, or legal effect of the
same, or of any term, provision, or condition thereof, and such acceptance or
approval thereof shall not be or constitute any warranty or affirmation with
respect thereto by Trustee or Beneficiary.
8. MISCELLANEOUS PROVISIONS.
8.1. ADDITIONAL PROVISIONS. The Loan Documents fully state all of the terms
and conditions of the parties' agreement regarding the matters mentioned in or
incidental to this Deed of Trust. The Loan Documents also grant further rights
to Beneficiary and contain further agreements and affirmative and negative
covenants by Trustor which apply to this Deed of Trust and the Property.
8.2. GIVING OF NOTICE. Any notice, demand, request or other communication
which any party hereto may be required or may desire to give hereunder shall be
given as provided in SECTION 9.3 of the Loan Agreement.
8.3. REMEDIES NOT EXCLUSIVE. No action for the enforcement of the lien or
any provision hereof shall be subject to any defense which would not be good and
available to the party interposing same in an action at law upon the Note.
Beneficiary shall be entitled to enforce payment and performance of any of the
Secured Obligations and to exercise all rights and powers under this Deed of
Trust or other agreement or any laws now or hereafter in force, notwithstanding
some or all of the Secured Obligations may now or hereafter be otherwise
secured, whether by mortgage, deed of trust, pledge, lien, assignment or
otherwise. Neither the acceptance of this Deed of Trust nor its enforcement,
whether by court action or other powers herein contained, shall prejudice or in
any manner affect Beneficiary's right to realize upon or enforce any other
security now or hereafter held by Beneficiary, it being agreed that Beneficiary
shall be entitled to enforce this Deed of Trust and any other remedy herein or
by law provided or permitted, but each shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute. No waiver of any default of the Trustor
hereunder shall be implied from any omission by Beneficiary to take any action
on
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<PAGE> 13
account of such default if such default persists or is repeated, and no express
waiver shall affect any default other than the default specified in the express
waiver and that only for the time and to the extent therein stated. No
acceptance of any payment of any one or more delinquent installments which does
not include interest at the Default Rate from the date of delinquency, together
with any required late charge, shall constitute a waiver of the right of
Beneficiary at any time thereafter to demand and collect payment of interest at
such Default Rate or of late charges, if any.
8.4. WAIVER OF STATUTORY RIGHTS. To the extent permitted by law, Trustor
hereby agrees that it shall not and will not apply for or avail itself of any
appraisement, valuation, stay, extension or exemption laws, or any so-called
"Moratorium Laws," now existing or hereafter enacted, in order to prevent or
hinder the enforcement or foreclosure of this Deed of Trust, but hereby waives
the benefit of such laws. Trustor for itself and all who may claim through or
under it waives any and all right to have the property and estates comprising
the Property marshaled upon any foreclosure of the lien hereof and agrees that
any court having jurisdiction to foreclose such lien may order the Property sold
as an entirety. To the extent permitted by law, Trustor hereby waives any and
all rights of redemption from sale under the power of sale contained herein or
any order or decree of foreclosure of this Deed of Trust on its behalf and on
behalf of each and every person, except decree or judgment creditors of Trustor,
acquiring any interest in or title to the Property subsequent to the date of
this Deed of Trust.
8.5. ESTOPPEL AFFIDAVITS. Trustor, within fifteen (15) days after written
request from Beneficiary, shall furnish a written statement, duly acknowledged,
setting forth the unpaid principal of, and interest on, the Secured Obligations
and stating whether or not any offset or defense exists against such Secured
Obligations, and covering such other matters as Beneficiary may reasonably
require.
8.6. MERGER. No merger shall occur as a result of Beneficiary's acquiring
any other estate in or any other lien on the Property unless Beneficiary
consents to a merger in writing.
8.7. BINDING ON SUCCESSORS AND ASSIGNS. This Deed of Trust and all
provisions hereof shall be binding upon Trustor and all persons claiming under
or through Trustor, and shall inure to the benefit of Beneficiary and its
successors and assigns.
8.8. CAPTIONS. The captions and headings of various paragraphs of this Deed
of Trust are for convenience only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof.
8.9. SEVERABILITY. If all or any portion of any provision of this Deed of
Trust shall be held to be invalid, illegal or unenforceable in any respect, then
such invalidity, illegality or unenforceability shall not affect any other
provision hereof or thereof, and such provision shall be limited and construed
as if such invalid, illegal or unenforceable provision or portion thereof was
not contained herein.
8.10. EFFECT OF EXTENSIONS OF TIME AND AMENDMENTS. If the payment of the
Secured Obligations or any part thereof be extended or varied or if any part of
the security be released, all persons now or at any time hereafter liable
therefor, or interested in the Property, shall be held to assent to such
extension, variation or release, and their liability and the lien and all
provisions
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<PAGE> 14
hereof shall continue in full force, the right of recourse, if any, against all
such persons being expressly reserved by Beneficiary, notwithstanding such
extension, variation or release. Nothing in this SECTION 8.10 shall be construed
as waiving any provision contained herein or in the Loan Documents which
provides, among other things, that it shall constitute an Event of Default if
the Property be sold, conveyed, or encumbered.
8.11. SERVICE CHARGE AND EXPENSES. At all times, regardless of whether any
proceeds of the loan secured hereby have been disbursed, this Deed of Trust
secures (in addition to the amounts secured hereby) the payment of any and all
commissions, service charges, liquidated damages, expenses and advances due to
or incurred by Beneficiary in connection with such loan; PROVIDED, HOWEVER, that
in no event shall the total amount secured hereby exceed two hundred percent
(200%) of the face amount of the Note.
8.12. APPLICABLE LAW. This Deed of Trust shall be governed by and construed
under the internal laws of the State in which the Property is located.
8.13. LIMITATION OF LIABILITY. The personal liability of Mortgagor and its
general partner hereunder is limited to the extent set forth in SECTION 9.18 of
the Loan Agreement.
8.14. DUE ON SALE CLAUSE. As more fully set forth in SECTION 6.4 of the
Loan Agreement, the transfer or encumbrance of the Property, or any interest
therein, or the transfer of an interest in Trustor, except for the permitted
transfers set forth in SECTION 6.5 of the Loan Agreement, without prior written
consent of Beneficiary, shall constitute an Event of Default.
8.15. TIME IS OF THE ESSENCE. Time is of the essence with respect to each
and every covenant, agreement and obligation of Trustor under this Deed of
Trust, the Note and the other Loan Documents.
8.16. RECORDATION. Trustor forthwith upon the execution and delivery of
this Deed of Trust, and thereafter from time to time, will cause this Deed of
Trust, and any security instrument creating a lien or evidencing the lien hereof
upon the Property, or any portion thereof, 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 the lien hereof upon, and the interest of Beneficiary in,
the Property.
Trustor will pay all filing, registration or recording fees and taxes, and
all expenses incident to the preparation, execution and acknowledgment of this
Deed of Trust, any deed of trust supplemental hereto, any security instrument
with respect to the Property and any instrument of further assurance, and all
federal, state, county and municipal stamp taxes, duties, impositions,
assessments and charges arising out of or in connection with the execution and
delivery of the Note, this Deed of Trust, any deed of trust supplemental hereto,
any security instrument, any other Loan Documents or any instrument of further
assurance.
8.17. MODIFICATIONS. This Deed of Trust may not be changed or terminated
except in writing signed by all parties. The provisions of this Deed of Trust
shall extend and be applicable to all renewals, amendments, extensions,
consolidations, and modifications of the other Loan Documents, and any and all
references herein to the Loan Documents shall be deemed to include any such
renewals, amendments, extensions, consolidations or modifications thereof.
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<PAGE> 15
8.18. INDEPENDENCE OF SECURITY. Except as may exist pursuant to easements
and agreements existing as of the date hereof which have been disclosed to
Mortgagee, Trustor shall not by act or omission permit any building or other
improvement on any premises not subject to the Deed of Trust to rely on the
Property or any part thereof or any interest therein to fulfill any municipal or
governmental requirement, and Trustor hereby assigns to Beneficiary any and all
rights to give consent for all or any portion of the Property to rely on any
premises not subject to the Deed of Trust or any interest therein to fulfill any
municipal or governmental requirement. Trustor shall not by act or omission
impair the integrity of the Property as a single zoning lot, and as one or more
complete tax parcels, separate and apart from all other premises. Any act or
omission by Trustor which would result in a violation of any of the provisions
of this SECTION 8.18 shall be void.
9. STATE SPECIFIC PROVISIONS. The provisions of the Addendum to Deed of Trust
attached hereto as Annex I (the "Addendum") are hereby incorporated herein by
this reference. Defined terms in the Addendum for which no definition has been
provided in the Addendum shall have the meanings given to such terms in the Deed
of Trust. In the event of any conflict or inconsistency between the provisions
of the Deed of Trust and the provisions of the Addendum, the provisions of the
Addendum shall prevail.
[BALANCE OF PAGE LEFT BLANK INTENTIONALLY]
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<PAGE> 16
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date
first written above.
TRUSTOR:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Glimcher Properties Corporation, a
Delaware corporation, its sole
general partner
By: /s/ William G. Cornely
--------------------------------------
Its: Executive Vice President, COO/CFO
---------------------------------
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<PAGE> 17
ACKNOWLEDGEMENT
STATE OF ILLINOIS;
COUNTY OF COOK, to-wit:
On this ______ day of June, 1999, before me, a Notary Public in and for
said County and State, appeared William G. Cornely, Senior Executive Vice
President and CFO/COO of Glimcher Properties Corporation, a Delaware
corporation, the sole General Partner of GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, who acknowledged that he, being duly authorized by the Board of
Directors of said corporation, did execute the foregoing instrument for and on
behalf of said corporation and limited partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
[AFFIX NOTARIAL SEAL]
/s/ Linda J. Polk
--------------------------------
Notary Public
My Commission Expires:
July 2, 2000
----------------------
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<PAGE> 18
COLLEGE PLAZA, BLUEFIELD, VIRGINIA
EXHIBIT A
---------
LEGAL DESCRIPTION
PARCEL I
Located in the County of Tazewell, Commonwealth of Virginia:
Commencing at a PK nail located in the centerline intersection of State Route
102 and Old State Route 102; thence South 57 degree 56'51" West for 270.14 feet
to a point on the Western right-of-way of Commerce Drive; thence along said
Western right-of-way South 18 degree 21'27" East for 66.12 feet to a point;
thence South 20 degree 35'17 East for 102.38 feet to a point; thence South 18
degree 21'27" East for 1181.25 feet to a PK nail on the Northern right-of-way of
State Route 460 By-pass being the true point of beginning; thence along said
right-of-way South 58 degree 54'16" West for 606.75 feet to an iron pin; thence
South 75 degree 20'16" West for 440.82 feet to an iron pin; thence leaving said
right-of-way and following the common line of Leatherwood North 18 degree 21'27"
West for 1109.65 feet to an iron pin common corner of Tract 3 and a portion of
the remainder of Tract 2 (Wal-Mart Stores, Inc.); thence along the common line
of Tract 3 and a portion of the remainder of Tract 2 (Wal-Mart Stores, Inc.)
North 71 degree 38'33" East for 148.69 feet to an iron pin thence still with
Tract 3 and property of Ryan's Family Steakhouse, Inc. the following courses and
distances: North 71 degree 38'33" East for 278.88 feet to an iron pin; thence
South 55 degree 45'16" East for 7.87 feet to a point in a water meter; thence
North 71 degree 38'33" East for 332.79 feet to an iron pin located on the common
line with Outparcel "B"; thence along the common line of Outparcel "B" South 63
degree 21'27" East for 10.20 feet to an iron pin; thence North 71 degree 38'33"
East for 236.37 feet to an iron pin; thence North 23 degree 41'30" East for
34.34 feet to an iron pin on the Western right-of-way of Commerce Drive; thence
along said right-of-way South 18 degree 21'27" East for 96.00 feet to an iron
pin common corner of Outparcel "C"; thence leaving said right-of-way and along
the common line of Outparcel "C" North 60 degree 24'24" West for 34.34 feet to
an iron pin; thence South 71 degree 38'33" West for 242.37 feet to an iron pin;
thence South 26 degree 38'33" West for 20.50 feet to an iron pin; thence South
18 degree 21'27" East for 165.50 feet to a point; common corner of Outparcel
"D"; thence along Outparcel "D" South 18 degree 21'27" East for 162.03 feet to
an iron pin; thence South 63 degree 21'27" East for 25.41 feet to an iron pin;
thence North 71 degree 38'33" East for 243.90 feet to an iron pin; thence North
22 degree 55'38" East for 27.28 feet to an iron pin on the Western right-of-way
Continued...
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<PAGE> 19
EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
PARCEL I, CONTINUED...
of Commerce Drive; thence along said right-of-way South 18 degree 21'27" East
for 606.31 feet to a PK nail, being the true point of beginning. Said tract
contains 23.484 acres or 1,022,954 square feet more or less.
PARCEL II
Together with those non-exclusive "Permanent Easements" constituting rights in
real property, created defined and limited under Article 5, Items A, B, C, D, E
and F, of the Construction, Easements and Restrictions, recorded in Deed Book
620 at Page 649 in the Clerk's Office of Tazewell Circuit Court, Virginia, as
more particularly set forth.
Together with a non-exclusive easement for roadways, walkways, ingress, egress,
parking of motor vehicles, loading and unloading of commercial and other
vehicles and the use of facilities installed for comfort and convenience,
constituting rights in real property created defined and limited under Article
6, Item A, of the Easements, Covenants and Restrictions Agreement, recorded in
Deed Book 633 at Page 284, as amended by instruments recorded in Deed Book 637,
Page 402, Deed Book 640, Page 100 and Deed Book 641, Page 898, all in the
Clerk's Office of Tazewell Circuit Court, Virginia.
Together with the non-exclusive easement to maintain and repair road located on
Tract 2, constituting rights in real property, created defined and limited under
Article 6, Item A, of the Easements, Covenants and Restrictions Agreement
recorded in Deed Book 633 at Page 284, as amended by instruments recorded in
Deed Book 637, Page 402, Deed Book 640, Page 100 and Deed Book 641, Page 898,
all in the Clerk's Office of Tazewell Circuit Court, Virginia.
Together with the perpetual non-exclusive utility easement, constituting rights
in real property, created defined and limited under Article 6, Item C(2), of the
Easements, Covenants and Restrictions Agreement, recorded in Deed Book 633, Page
284, as amended by instruments recorded in Deed Book 637, Page 402, Deed Book
640, Page 100 and Deed Book 641, Page 898, all in the Clerk's Office of Tazewell
Circuit Court, Virginia.
Together with the perpetual non-exclusive detention easement, constituting
rights in real property, created defined and limited under Article 6, Item C(3),
of the Easements, Covenants and Restrictions Agreement recorded in Deed Book 633
at Page 284, as amended by instruments recorded in Deed Book 637, Page 402, Deed
Book 640, Page 100 and Deed Book 641, Page 898, all in the Clerk's Office of
Tazewell Circuit Court, Virginia.
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<PAGE> 20
ANNEX I
-------
9.1 PRINCIPLES OF CONSTRUCTION. In the event of inconsistencies between
the terms and conditions of this Article 9 and the terms and conditions of
Articles 1 through 8 of this Deed of Trust, the terms and conditions of this
Article 9 shall control and be binding.
9.2 ACCELERATION UPON TRANSFER. If any sale, conveyance, alienation,
deed, mortgage, encumbrance, pledge or transfer, other than a transfer permitted
under Section 6.5 of the Loan Agreement or other relevant terms of the Loan
Documents occurs without Beneficiary's consent, then at Beneficiary's sole
option, Beneficiary may, by written notice to Grantor, declare the Obligations
immediately due and payable. Without limiting the generality of the foregoing,
the following provision is set forth herein in order to comply with the
requirements of Section 6.1-330.88 of the Code of Virginia, if such requirements
are applicable to the property:
NOTICE-THE OBLIGATIONS SECURED HEREBY ARE SUBJECT TO CALL IN FULL OR
THE TERMS THEREOF BEING MODIFIED IN THE EVENT OF SALE OR CONVEYANCE OF THE
PROPERTY.
9.3 RIGHTS AND REMEDIES OF TRUSTEE. Upon the occurrence and during the
continuance of an Event of Default by Mortgagor:
a. Trustee may take possession of and sell the Property, or any part
thereof requested by Beneficiary to be sold, and in connection therewith
Mortgagor hereby authorizes and empowers Trustee to take possession of and sell
(or in case of the default of any purchaser to resell) the Property, or any part
thereof, all in accordance with the laws or rules of court of the Commonwealth
of Virginia relating to deeds of trust, including any amendments thereof, or
additions thereto, which do not materially change or impair the remedy. In
connection with any foreclosure, Beneficiary and/or Trustee may (A) procure such
title reports, surveys, tax histories and appraisals as they deem necessary, and
(B) make such commercially reasonable repairs and additions to the Property as
they deem advisable, all of which shall constitute "Expenses" (hereinafter
defined). In the case of any sale under this Deed of Trust, by virtue of
judicial proceedings or otherwise, the Property may be sold as an entirety or in
parcels, by one sale or by several sales, and any fixtures or collateral
encumbered by this Deed of Trust may be sold at the same sale as the Property or
in one or more sales, as may be deemed by Trustee to be appropriate and without
regard to any right of Mortgagor or any other person to the marshaling of
assets, for cash, on credit or for other property, for immediate or future
delivery, and for such price or prices and on such terms as may be prudent,
having first given such notice prior to the sale of such time, place and terms
by publication in at least one newspaper published or having general circulation
in the city or county in which the Property is located as provided hereinbelow.
"Expenses" means all reasonable out-of-pocket costs and expenses of any nature
whatsoever incurred at any time and from time to time (whether before or after
an Event of Default) by Beneficiary or Trustee in exercising or enforcing any
rights, powers and remedies provided in this Deed of Trust or any of the other
Loan Documents, including, without limitation, reasonable attorneys' fees, court
costs, receiver's fees, management fees and reasonable out-of-pocket costs
incurred in the repair, maintenance and operation of, or taking possession of,
or selling, the Property.
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<PAGE> 21
b. Any sale hereunder may be made at public auction, at such time or
times, at such place or places, and upon such terms and conditions and after
such previous public notice as Trustee shall deem appropriate and advantageous
and as required by the laws of the Commonwealth of Virginia. The parties hereto
agree that the advertisement required is as follows: (A) if the advertisement is
inserted on a weekly basis, publication once a week for two (2) weeks shall be
sufficient; and (B) if the advertisement is inserted on a daily basis,
publication once a day for three (3) days, which may be consecutive days, shall
be sufficient.
c. Upon the terms of such sale being complied with, Trustee shall
convey to, and at the cost of, the purchaser or purchasers the interest of
Mortgagor in the Property so sold, by deed of special warranty, free and
discharged of and from all estate, title or interest therein of Borrower, at law
or in equity, such purchaser or purchasers being hereby discharged from all
liability to see to the application of the purchase money.
d. Beneficiary and any affiliate thereof may be a purchaser of the
Property or of any part thereof or of any interest therein at any public sale
thereof, whether pursuant to foreclosure or power of sale or otherwise
hereunder, without thereby forfeiting its right to collect any deficiency from
Mortgagor; and Beneficiary may apply upon the purchase price the Secured
Obligations secured hereby owing to Beneficiary. Beneficiary, upon, any such
purchase, shall acquire good title to the properties so purchased, free of the
lien of this Deed of Trust and free of all rights of redemption in Mortgagor and
free of all liens and encumbrances subordinate to this Deed of Trust.
9.4 STATUTORY CONDITIONS. This Deed of Trust is made under and pursuant
to the provisions of the Code of Virginia, Sections 26-49, 55-58.1, 55-59,
55-59.1 through 55-59.4 and 55-60, as amended, and shall be construed to impose
and confer upon the parties hereto and Beneficiary all the rights, duties and
obligations prescribed by said Sections 26-49, 55-58.1, 55-59, 55-59.1 through
55-59.4 and 55-60, as amended, except as herein otherwise restricted, expanded
or changed, including without limitation the following rights, duties and
obligations described in short form:
All exemptions are hereby waived.
Subject to call on Event of Default which is continuing.
Renewal, extension, or reinstatement permitted.
Substitution of trustees collectively or of any of them individually by
the Beneficiary is permitted for any reason whatsoever, and any number of times
without exhaustion of the right to do so.
Advertisement required, once a week for two successive weeks or for
three (3) consecutive days in any newspaper of general circulation in the County
or City in which the property is situate.
Any Trustee may act.
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<PAGE> 22
The Trustee may require a deposit in the amount of five percent (5%) of
the unpaid principal indebtedness then secured hereby (after a ratable
allocation among the properties financed by the Loan to accompany each bid at
foreclosure sale or sale in lieu thereof.
9.5 APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of such sale
or sales under this Deed of Trust, whether under the assent to a decree, the
power of sale, or by equitable foreclosure, shall be held by Trustee and applied
as follows: FIRST (A) all Expenses incurred in connection with such sale or in
preparing the Property for such sale and of obtaining possession including,
among other things, counsel fees reasonably incurred shall be allowed and paid
out of the proceeds of such sale or sales, (B) the Trustee's Commission
(hereinafter defined) and expenses and (C) all taxes, levies, assessments or
other charges relating to the Property which have or in the opinion of Trustee
may have, priority over the lien of this Deed of Trust, including the pro rata
portion thereof applicable to the taxable period during which any payment is
made pursuant to this subsection; SECOND, to pay all of the Secured Obligations
and all interest then due and accrued thereon, which shall include interest
through the date of ratification of by the Commissioner of Accounts; THIRD, to
pay the amount of any liens of record inferior to this Deed of Trust, together
with lawful interest, and lawful claims of third parties against the proceeds of
any sale; and LASTLY, to pay the surplus, if any, to Mortgagor or any person
entitled thereto unless otherwise required by law or directed by a court of
competent jurisdiction. In the event that the proceeds of any such sale or
sales, together with all other monies at the time held by Trustee under this
Deed of Trust, are insufficient to pay the foregoing costs and expenses,
Beneficiary may, at its sole option, advance such sums as Beneficiary in its
sole and absolute discretion shall determine for the purpose of paying all or
any part of such costs and expenses, and all such sums so advanced shall be (A)
a lien against the Property, (B) added to the amount due under the Note and
secured by this Deed of Trust, and (C) payable within five (5) days after demand
with interest at the rate of interest applicable to the principal balance of the
Note, from and including the date each such advance is made. In any event,
Mortgagor shall be liable to Beneficiary for any deficiency if the proceeds of
any such sale or sales are insufficient to pay, in full, all amounts to be
distributed pursuant to the Clauses FIRST through SECOND above. Mortgagor shall
pay to Trustee a commission in the amount of five percent (5%) if the Property
is advertised for sale under the provisions of this Deed of Trust and is sold,
and one percent (!%) if the Property is advertised for sale under the provisions
of this Deed of Trust and is not sold, and in either case the Mortgagor shall
also pay or reimburse Trustee for all of Trustee's reasonable out-of-pocket
expenses and disbursements hereunder regardless of whether the Property is sold
(the "Trustee's Commission").
9.6 SUBSTITUTION OF TRUSTEES. Beneficiary, or any successor in
ownership of any indebtedness secured hereby, may from time to time, with or
without cause and at Beneficiary's sole discretion, by instrument in writing,
substitute a successor or successors to any Trustee named herein or acting
hereunder, which instrument, executed by the Beneficiary duly acknowledged and
recorded in the appropriate Circuit Court Clerk's Office of the jurisdiction
where the Property is situated, shall be conclusive proof of proper substitution
of such successor Trustee or Trustees, who shall, without conveyance from the
Trustee predecessor, succeed to all its title, estate, rights, powers and
duties.
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<PAGE> 1
Exhibit 10.112
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Milos Markovic, Esq.
- --------------------------------------------------------------------------------
DEED OF TRUST, SECURITY AGREEMENT,
----------------------------------
FIXTURE FILING AND FINANCING STATEMENT
--------------------------------------
THIS DEED OF TRUST, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING
STATEMENT, together with all amendments and supplements hereto ("DEED OF TRUST")
is made as of June 28, 1999, between GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership (the "TRUSTOR"), having an address at 20 South
Third Street, Columbus, Ohio 43215 and Frank Coman, having an address at 201
South College Street, Suite 1590, Charlotte, NC 28244, as trustee ("TRUSTEE"),
in favor of JACKSON NATIONAL LIFE INSURANCE COMPANY, a Michigan corporation (the
"BENEFICIARY"), having an address c/o PPM Finance, Inc., 225 West Wacker Drive,
Suite 1200, Chicago, Illinois 60606.
1. DEED OF TRUST AND SECURED OBLIGATIONS.
1.1. DEED OF TRUST. For purposes of securing payment and performance of the
Secured Obligations defined and described in SECTION 1.2, Trustor, hereby
irrevocably and unconditionally grants, bargains, sells, conveys, mortgages,
warrants, assigns and pledges to Trustee, for the benefit of Beneficiary, with
right of entry and possession, and with power of sale, all estate, right, title
and interest which Trustor now has or may later acquire in and to the following
property (all or any part of such property, or any interest in all or any part
of it, as the context may require, the "PROPERTY"):
(a) the real property located in the County of Lee, State of North
Carolina and more particularly described in EXHIBIT A attached hereto,
together with all existing and future easements and rights affording access
to it (the "LAND");
(b) all buildings, structures and improvements now located or later to
be constructed on the Land (the "IMPROVEMENTS"); -------------
(c) all existing and future appurtenances, privileges, easements,
franchises and tenements of the Land, including all minerals, oil, gas,
other hydrocarbons and associated substances, sulfur, nitrogen, carbon
dioxide, helium and other commercially valuable substances which may be in,
under or produced from any part of the Land, all development rights and
credits, air rights, water, water rights (whether riparian, appropriative
or otherwise, and whether
<PAGE> 2
or not appurtenant) and water stock, and any land lying in the streets,
roads or avenues, open or proposed, in front of or adjoining the Land and
Improvements;
(d) all existing and future leases, subleases, subtenancies, licenses,
occupancy agreements and concessions ("leases", as defined in the
Assignment of Leases and Rents described in SECTION 2 herein, executed and
delivered to Lender contemporaneously herewith) relating to the use and
enjoyment of all or any part of the Land and Improvements, and any and all
guaranties and other agreements relating to or made in connection with any
of such leases;
(e) all goods, materials, supplies, chattels, furniture, fixtures,
equipment and machinery now or later to be attached to, placed in or on, or
used in connection with the use, enjoyment, occupancy or operation of all
or any part of the Land and Improvements, whether stored on the Land or
elsewhere, including all pumping plants, engines, pipes, ditches and
flumes, and also all gas, electric, cooking, heating, cooling, air
conditioning, lighting, refrigeration and plumbing fixtures and equipment,
all of which shall be considered to the fullest extent of the law to be
real property for purposes of this Deed of Trust;
(f) all building materials, equipment, work in process or other
personal property of any kind, whether stored on the Land or elsewhere,
which have been or later will be acquired for the purpose of being
delivered to, incorporated into or installed in or about the Land or
Improvements;
(g) all of Trustor's interest in and to the Loan funds, whether
disbursed or not, the Escrow Accounts (as defined in SECTION 3.1 of the
Loa Agreement) and any of Trustor's funds now or later to be held by or on
behalf of Trustee for the benefit of Beneficiary;
(h) all rights to the payment of money, accounts, accounts receivable,
reserves, deferred payments, refunds, cost savings, payments and deposits,
whether now or later to be received from third parties (including all
earnest money sales deposits) or deposited by Trustor with third parties
(including all utility deposits), contract rights, development and use
rights, governmental permits and licenses, applications, architectural and
engineering plans, specifications and drawings, as-built drawings, chattel
paper, instruments, documents, notes, drafts and letters of credit (other
than letters of credit in favor of Beneficiary), which arise from or relate
to construction on the Land or to any business now or later to be conducted
on it, or to the Land and Improvements generally;
(i) all proceeds, including all claims to and demands for them, of the
voluntary or involuntary conversion of any of the Land, Improvements or the
other property described above into cash or liquidated claims, including
proceeds of all present and future fire, hazard or casualty insurance
policies and all condemnation awards or payments now or later to be made by
any public body or decree by any court of competent jurisdiction for any
taking or in connection with any condemnation or eminent domain proceeding,
and all causes of action and their proceeds for any damage or injury to the
Land, Improvements or the other property described above or any part of
them, or breach of warranty in connection with the construction of the
Improvements, including causes of action arising in tort, contract, fraud
or concealment of a material fact;
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<PAGE> 3
(j) all books and records pertaining to any and all of the property
described above, including computer-readable memory and software necessary
to access and process such memory ("BOOKS AND RECORDS"). Notwithstanding
anything in the foregoing to the contrary, Books and Records shall not be
deemed to include the general corporate books and records of the Trustor
which are maintained by Trustor on a consolidated basis for all of
Trustor's properties (which properties include the Property being secured
hereunder) except to the extent that information in such consolidated books
and records pertains to the Property secured hereunder;
(k) (i) all agreements heretofore or hereafter entered into relating
to the construction, ownership, operation, management, leasing or use of
the Land or Improvements; (ii) any and all present and future amendments,
modifications, supplements, and addenda to any of the items described in
(i) above; (iii) any and all guarantees, warranties and other undertakings
(including payment and performance bonds) heretofore or hereafter entered
into or delivered with respect to any of the items described in clauses (i)
and (ii) above; (iv) all trade names, trademarks, logos and other materials
used to identify or advertise, or otherwise relating to the Land or
Improvements; and (v) all building permits, governmental permits, licenses,
variances, conditional or special use permits, and other authorizations
(collectively, the "Permits") now or hereafter issued in connection with
the construction, development, ownership, operation, management, leasing or
use of the Land or Improvements, to the fullest extent that the same or any
interest therein may be legally assigned by Mortgagor; and
(l) all proceeds of, additions and accretions to, substitutions and
replacements for, and changes in any of the property described above.
Capitalized terms used above and elsewhere in this Deed of Trust without
definition have the meanings given them in the Loan Agreement referred to in
Section 1.2 below.
1.2. SECURED OBLIGATIONS. This Deed of Trust is made for the purpose of
securing the following obligations (the "SECURED OBLIGATIONS") in any order of
priority that Beneficiary may choose:
(a) Payment of all obligations at any time owing under a Promissory
Note (the "NOTE") of even date herewith, payable by Trustor as maker in the
stated principal amount of Ninety Million Dollars ($90,000,000.00) to the
order of Beneficiary, which Note matures and is due and payable in full not
later than July 1, 2009; and
(b) Payment and performance of all obligations of Trustor under a Loan
Agreement of even date herewith between Trustor, as borrower, and
Beneficiary, as lender (the "LOAN AGREEMENT"); and
(c) Payment and performance of all obligations of Trustor under this
Deed of Trust; and
(d) Payment and performance of any obligations of Trustor under any
Loan Documents (as defined in the Loan Agreement) which are executed by
Trustor, including without limitation the Environmental Indemnity; and
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<PAGE> 4
(e) Payment and performance of all future advances and other
obligations that Trustor or any successor in ownership of all or part of
the Property may agree to pay and/or perform (whether as principal, surety
or guarantor) for the benefit of Beneficiary, when a writing evidences the
parties' agreement that the advance or obligation be secured by this Deed
of Trust; and
(f) Payment and performance of all modifications, amendments,
extensions and renewals, however evidenced, of any of the Secured
Obligations.
All persons who may have or acquire an interest in all or any part of the
Property will be considered to have notice of, and will be bound by, the terms
of the Secured Obligations and each other agreement or instrument made or
entered into in connection with each of the Secured Obligations. These terms
include any provisions in the Note or the Loan Agreement which provide that the
interest rate on one or more of the Secured Obligations may vary from time to
time.
2. ASSIGNMENT OF RENTS. As an inducement to Beneficiary to make the loan
evidenced by the Note and the Loan Agreement, Trustor has contemporaneously
herewith executed and delivered to Beneficiary an Assignment of Leases and Rents
with respect to the Property.
3. GRANT OF SECURITY INTEREST.
3.1. SECURITY AGREEMENT. The parties acknowledge that some of the Property
and some or all of the Rents (as defined in the Assignment of Leases and Rents)
may be determined under applicable law to be personal property or fixtures. To
the extent that any Property or Rents may be personal property, Trustor as
debtor hereby grants Beneficiary as secured party a security interest in all
such Property and Rents, to secure payment and performance of the Secured
Obligations. This Deed of Trust constitutes a security agreement under the
Uniform Commercial Code as in effect in the State in which the Property is
located (the "CODE"), covering all such Property and Rents.
3.2. FINANCING STATEMENTS. Trustor shall execute one or more financing
statements and such other documents as Beneficiary may from time to time require
to perfect or continue the perfection of Beneficiary's security interest in any
Property or Rents. Trustor shall pay all fees and costs that Beneficiary, or
Trustee on behalf of Beneficiary, may incur in filing such documents in public
offices and in obtaining such record searches as Beneficiary may reasonably
require. In case Trustor fails to execute any financing statements or other
documents for the perfection or continuation of any security interest, Trustor
hereby appoints Beneficiary as its true and lawful attorney-in-fact to execute
any such documents on its behalf.
3.3. FIXTURE FILING. Trustor and Beneficiary agree, to the extent permitted
by law, that this instrument constitutes a financing statement filed as a
fixture filing under Sections 9-313 and 9-402 of the Code, as amended or
recodified from time to time, covering any of the Property which now is or later
may become fixtures attached to the Land or the Improvements. The following
addresses are the mailing addresses of Trustor, as debtor under the Code, and
Beneficiary, as secured party under the Code, respectively:
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<PAGE> 5
TRUSTOR: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
BENEFICIARY: Jackson National Life Insurance Company
c/o PPM Finance, Inc.
225 West Wacker Drive
Suite 1200
Chicago, Illinois 60606
4. REPRESENTATIONS, COVENANTS AND AGREEMENTS.
4.1. GOOD TITLE. Trustor represents, warrants, and covenants that it is
lawfully seized of the Property, that the Property is unencumbered except for
the Permitted Exceptions (as defined in the Loan Agreement), and that it has
good right, full power and lawful authority to convey and mortgage the same, and
that it will warrant and forever defend the Property and the quiet and peaceful
possession of the same against the lawful claims of all persons whomsoever.
4.2. INSURANCE. In the event of any loss or damage to any portion of the
Property due to fire or other casualty, or a taking of any portion of the
Property by condemnation or under the power of eminent domain, the settlement of
all insurance and condemnation claims and awards and the application of
insurance and condemnation proceeds shall be governed by SECTION 5 of the Loan
Agreement.
4.3. STAMP TAX. If, by the laws of the United States of America, or of any
state or political subdivision having jurisdiction over Trustor, any tax is due
or becomes due in respect of the issuance of the Note, or recording of this Deed
of Trust, Trustor covenants and agrees to pay such tax in the manner required by
any such law. Trustor further covenants to hold harmless and agrees to indemnify
Beneficiary, its successors or assigns, against any liability incurred by reason
of the imposition of any tax on the issuance of the Note or recording of this
Deed of Trust.
4.4. CHANGES IN TAXATION. Other than a tax that may arise in connection
with the transfer of the Note by Beneficiary or imposed on the income of the
Beneficiary, in the event of the enactment after this date of any law of the
State in which the Property is located or any political subdivision thereof
deducting from the value of land for the purpose of taxation any lien thereon,
or imposing upon Beneficiary the payment of the whole or any part of the taxes
or assessments or charges or liens herein required to be paid by Trustor, or
changing in any way the laws relating to the taxation of mortgages or debts
secured by mortgages or the Beneficiary's interest in the Property, or the
manner of collection of taxes, so as to adversely affect this Deed of Trust or
the debt secured hereby, then Trustor, upon demand by Beneficiary, shall pay
such taxes or assessments, or reimburse Beneficiary therefor; PROVIDED, HOWEVER,
that if in the opinion of counsel for Beneficiary (i) it might be unlawful to
require Trustor to make such payment or (ii) the making of such payment might
result in the imposition of interest beyond the maximum amount permitted by law,
then Beneficiary may elect, by notice in writing given to Trustor, to
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<PAGE> 6
declare all of the Secured Obligations to be and become due and payable sixty
(60) days from the giving of such notice.
4.5. SUBROGATION. Beneficiary shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole
or in part by Beneficiary in accordance with this Deed of Trust or with the
proceeds of any loan secured by this Deed of Trust.
4.6. NOTICE OF CHANGE. Trustor shall give Beneficiary prior written notice
of any change in: (a) the location of its place of business or its chief
executive office if it has more than one place of business; (b) the location of
any of the Property, including the Books and Records; and (c) Trustor's name or
business structure. Unless otherwise approved by Beneficiary in writing, all
Property that consists of personal property (other than the Books and Records)
will be located on the Land and all Books and Records will be located at
Trustor's place of business or chief executive office if Trustor has more than
one place of business.
4.7. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY. From time
to time, Beneficiary may perform any of the following acts without incurring any
liability or giving notice to any person: (i) release any person liable for
payment of any Secured Obligation; (ii) extend the time for payment, or
otherwise alter the terms of payment, of any Secured Obligation; (iii) accept
additional real or personal property of any kind as security for any Secured
Obligation, whether evidenced by deeds of trust, mortgages, security agreements
or any other instruments of security; (iv) alter, substitute or release any
property securing the Secured Obligations; (v) consent to the making of any plat
or map of the Property or any part of it; (vi) join in granting any easement or
creating any restriction affecting the Property; or (vii) join in any
subordination or other agreement affecting this Deed of Trust or the lien of it.
5. DEFAULTS AND REMEDIES.
5.1. EVENTS OF DEFAULT. An "Event of Default," as defined in the Loan
Agreement, shall constitute an Event of Default hereunder.
5.2. REMEDIES. At any time after an Event of Default, Beneficiary shall be
entitled to invoke any and all of the rights and remedies described below, in
addition to all other rights and remedies available to Beneficiary at law or in
equity. All of such rights and remedies shall be cumulative, and the exercise of
any one or more of them shall not constitute an election of remedies.
(a) ACCELERATION. Beneficiary may declare any or all of the principal
sum hereby secured to be due and payable immediately.
(b) RECEIVER. Beneficiary shall, as a matter of right, without notice
and without giving bond to Trustor or anyone claiming by, under or through
Trustor, and without regard for the solvency or insolvency of Trustor or
the then value of the Property, to the extent permitted by applicable law,
be entitled to have a receiver appointed for all or any part of the
Property and the Rents, and the proceeds, issues and profits thereof, with
the rights and powers
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<PAGE> 7
referenced below and such other rights and powers as the court making such
appointment shall confer, and Trustor hereby consents to the appointment of
such receiver and shall not oppose any such appointment. Such receiver
shall have all powers and duties prescribed by the applicable laws in
effect in the State in which the Property is located, all other powers
which are necessary or usual in such cases for the protection, possession,
control, management and operation of the Property, and such rights and
powers as Beneficiary would have, upon entering and taking possession of
the Property under subsection (c) below.
(c) ENTRY. Beneficiary, in person, by agent or by court-appointed
receiver, may enter, take possession of, manage and operate all or any part
of the Property, and may also do any and all other things in connection
with those actions that Beneficiary may in its sole discretion consider
necessary and appropriate to protect the security of this Deed of Trust.
Such other things may include: taking and possessing all of Trustor's or
the then owner's Books and Records; entering into, enforcing, modifying or
canceling leases on such terms and conditions as Beneficiary may consider
proper; obtaining and evicting tenants; fixing or modifying Rents;
collecting and receiving any payment of money owing to Trustor; completing
any unfinished construction; and/or contracting for and making repairs and
alterations. If Beneficiary so requests, Trustor shall assemble all of the
Property that has been removed from the Land and make all of it available
to Beneficiary at the site of the Land. Trustor hereby irrevocably
constitutes and appoints Beneficiary as Trustor's attorney-in-fact to
perform such acts and execute such documents as Beneficiary in its sole
discretion may consider to be appropriate in connection with taking these
measures, including endorsement of Trustor's name on any instruments.
(d) CURE; PROTECTION OF SECURITY. Beneficiary may cure any breach or
default of Trustor, and if it chooses to do so in connection with any such
cure, Beneficiary may also enter the Property and/or do any and all other
things which it may in its sole discretion consider necessary and
appropriate to protect the security of this Deed of Trust. Such other
things may include: appearing in and/or defending any action or proceeding
which purports to affect the security of, or the rights or powers of
Beneficiary under, this Deed of Trust; paying, purchasing, contesting or
compromising any encumbrance, charge, lien or claim of lien which in
Beneficiary's sole judgment is or may be senior in priority to this Deed of
Trust, such judgment of Beneficiary to be conclusive as between the parties
to this Deed of Trust; obtaining insurance and/or paying any premiums or
charges for insurance required to be carried under the Loan Agreement;
otherwise caring for and protecting any and all of the Property; and/or
employing counsel, accountants, contractors and other appropriate persons
to assist Beneficiary. Beneficiary may take any of the actions permitted
under this Section 5.2(D) either with or without giving notice to any
person. Any amounts expended by Beneficiary under this Section 5.2(D) shall
be secured by this Deed of Trust.
(e) UNIFORM COMMERCIAL CODE REMEDIES. Beneficiary may exercise any or
all of the remedies granted to a secured party under the Code.
(f) FORECLOSURE; LAWSUITS. Beneficiary shall have the right, in one or
several concurrent or consecutive proceedings, to foreclose the lien hereof
upon the Property or any part thereof, for the Secured Obligations, or any
part thereof, by any proceedings appropriate under applicable law.
Beneficiary or its nominee may bid and become the purchaser of all or any
part
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<PAGE> 8
of the Property at any foreclosure or other sale hereunder, and the amount
of Beneficiary's successful bid shall be credited on the Secured
Obligations. Without limiting the foregoing, Beneficiary may proceed by a
suit or suits in law or equity, whether for specific performance of any
covenant or agreement herein contained or contained in any of the other
Loan Documents (as defined in the Loan Agreement), or in aid of the
execution of any power herein granted, or for any foreclosure under the
judgment or decree of any court of competent jurisdiction, or for damages,
or to collect the indebtedness secured hereby, or for the enforcement of
any other appropriate legal, equitable, statutory or contractual remedy.
Trustee, at the direction of the Beneficiary, may sell the Property at
public auction in one or more parcels, at Beneficiary's option, and convey
the same to the purchaser in fee simple, Trustor to remain liable for any
deficiency for which Trustor shall be personally liable.
(g) FORECLOSURE BY POWER OF SALE.
(i) Should Beneficiary elect to foreclose by exercise of the
power of sale contained herein, upon Beneficiary's request, Trustee
shall sell the property in accordance with the applicable State law at
public auction to the highest bidder. Any person except Trustee may
bid at the Trustee's sale. Trustee shall apply the proceeds of the
sale as follows: (i) to the expenses of sale, including Trustee's fee
and attorneys' fee; (ii) to all the indebtedness evidenced by the Note
and all other indebtedness secured by this Deed of Trust or any other
Loan Document; (iii) the surplus, if any, shall be distributed in
accordance with the applicable State law. Trustee shall deliver to the
purchaser at the sale its deed, without warranty, which shall convey
to the purchaser the interest in the Property which Trustor had or had
the power to convey at the time of its execution of this Deed of Trust
and such as it may have acquired thereafter. Trustee's deed shall
recite the facts showing that the sale was conducted in compliance
with all the requirements of the law and of this Deed of Trust, which
recital shall be prima facie evidence of such compliance and
conclusive evidence thereof in favor of bona fide purchasers and
encumbrancers for value. The power of sale conferred by this Deed of
Trust and by the applicable State law is not an exclusive remedy, and
when not exercised Beneficiary may foreclose this Deed of Trust as a
mortgage.
(ii) After deducting all costs, fees and expenses of Beneficiary
and Trustee, including costs of evidence of title in connection with
any such sale, Beneficiary shall apply the proceeds of sale, in the
following order of priority, to payment of (i) first, all amounts
expended under the terms hereof and not then repaid, with accrued
interest, (ii) second, all other amounts then secured hereby, in such
order as Beneficiary shall determine in its sole and absolute
discretion, and (iii) the remainder, if any, to the person(s) legally
entitled thereto.
(iii) To the extent permitted by applicable law, Trustee may
postpone the sale of all or any portion of the Property by public
announcement at the time and place of sale, and from time to time
thereafter may again postpone such sale by public announcement or
subsequently noticed sale, and without further notice
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<PAGE> 9
may make such sale at the time fixed by the last postponement or may,
in its discretion, give a new notice of sale.
(iv) A sale of less than all of the Property or any defective or
irregular sale made hereunder shall not exhaust the power of sale
provided for herein, and subsequent sales may be made hereunder until
all Secured Obligations have been satisfied or the entire Property
sold, without defect or irregularity.
(h) OTHER REMEDIES. Beneficiary may exercise all rights and remedies
contained in any other instrument, document, agreement or other writing
heretofore, concurrently or in the future executed by Trustor or any other
person or entity in favor of Beneficiary in connection with the Secured
Obligations or any part thereof, without prejudice to the right of
Beneficiary thereafter to enforce any appropriate remedy against Trustor.
Beneficiary shall have the right to pursue all remedies afforded to a
beneficiary of a deed of trust under applicable law, and shall have the
benefit of all of the provisions of such applicable law, including all
amendments thereto which may become effective from time to time after the
date hereof. In the event any provision of such law which is specifically
referred to herein may be repealed, Beneficiary shall have the benefit of
such provision as most recently existing prior to such repeal, as though
the same were incorporated herein by express reference.
(i) POWER OF SALE FOR PERSONAL PROPERTY. Under this power of sale,
Beneficiary shall have the discretionary right to cause some or all of the
Property, which constitutes personal property, to be sold or otherwise
disposed of in any combination and in any manner permitted by applicable
law.
(i) For purposes of this power of sale, Beneficiary may elect to
treat as personal property any Property which is intangible or which
can be severed from the Land or Improvements without causing
structural damage. If it chooses to do so, Beneficiary may dispose of
any personal property in any manner permitted by Article 9 of the
Code, including any public or private sale, or in any manner permitted
by any other applicable law.
(ii) In connection with any sale or other disposition of such
Property, Trustor agrees that the following procedures constitute a
commercially reasonable sale: Beneficiary shall mail written notice of
the sale to Trustor not later than ten (10) days prior to such sale.
Upon receipt of any written request, Trustor will make the Property
available to any bona fide prospective purchaser for inspection during
reasonable business hours. Notwithstanding, Beneficiary shall be under
no obligation to consummate a sale if, in its judgment, none of the
offers received by it equals the fair value of the Property offered
for sale. The foregoing procedures do not constitute the only
procedures that may be commercially reasonable.
(j) SINGLE OR MULTIPLE FORECLOSURE SALES. If the Property consists of
more than one lot, parcel or item of property, Beneficiary may:
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<PAGE> 10
(1) designate the order in which the lots, parcels and/or items
shall be sold or disposed of or offered for sale or disposition; and
(2) elect to dispose of the lots, parcels and/or items through a
single consolidated sale or disposition to be held or made under or in
connection with judicial proceedings, or by virtue of a judgment and
decree of foreclosure and sale, or pursuant to the power of sale
contained herein; or through two or more such sales or dispositions;
or in any other manner Beneficiary may deem to be in its best
interests (any foreclosure sale or disposition as permitted by the
terms hereof is sometimes referred to herein as a "FORECLOSURE SALE;"
and any two or more such sales, "FORECLOSURE SALES").
If it chooses to have more than one Foreclosure Sale, Beneficiary at its option
may cause the Foreclosure Sales to be held simultaneously or successively, on
the same day, or on such different days and at such different times and in such
order as it may deem to be in its best interests. No Foreclosure Sale shall
terminate or affect the payment secured under the Deed of Trust on any part of
the Property which has not been sold, until all of the Secured Obligations have
been paid in full.
5.3. APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of any
Foreclosure Sale shall be applied in the following manner:
(a) First, to pay the portion of the Secured Obligations attributable
to the expenses of sale, costs of any action and any other sums for which
Trustor is obligated to reimburse Beneficiary hereunder or under the other Loan
Documents;
(b) Second, to pay the portion of the Secured Obligations attributable
to any sums expended or advanced by Beneficiary under the terms of this Deed of
Trust which then remain unpaid;
(c) Third, to pay all other Secured Obligations in any order and
proportions as Beneficiary in its sole discretion may choose; and
(d) Fourth, to remit the remainder, if any, to the person or persons
entitled to it.
Beneficiary shall have no liability for any funds which it does not actually
receive.
6. RELEASE. If Trustor shall fully pay and perform all of the Secured
Obligations and comply with all of the other terms and provisions hereof and the
other Loan Documents to be performed and complied with by Trustor, then
Beneficiary shall instruct Trustee to reconvey this Deed of Trust and the lien
thereof by proper instrument upon payment, performance and discharge of all of
the Secured Obligations and payment by Trustor of any filing fee in connection
with such release.
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<PAGE> 11
7. CONCERNING THE TRUSTEE.
7.1. NO REQUIRED ACTION. Trustee shall not be required to take any action
toward the execution and enforcement of the trust hereby created or to
institute, appear in, or defend any action, suit, or other proceeding in
connection therewith where, in his opinion, such action would be likely to
involve him in expense or liability, unless requested so to do by a written
instrument signed by Beneficiary and, if Trustee so requests, unless Trustee is
tendered security and indemnity satisfactory to Trustee against any and all
cost, expense, and liability arising therefrom. Trustee shall not be responsible
for the execution, acknowledgment, or validity of the Loan Documents, or for the
proper authorization thereof, or for the sufficiency of the lien and security
interest purported to be created hereby, and Trustee makes no representation in
respect thereof or in respect of the rights, remedies, and recourse of
Beneficiary.
7.2. CERTAIN RIGHTS. With the approval of Beneficiary, Trustee shall have
the right to take any and all of the following actions: (i) to select, employ,
and consult with counsel (who may be, but need not be, counsel for Beneficiary)
upon any matters arising hereunder, including the preparation, execution, and
interpretation of the 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 (iv) any and all other lawful action that Beneficiary may
instruct Trustee to take to protect or enforce Beneficiary'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 any 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 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.
Grantor will, from time to time, pay the compensation due to Trustee hereunder
and reimburse Trustee for, and save Trustee harmless against, any and all
liability and expenses which may be incurred by Trustee in the performance of
Trustee's duties.
7.3. 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).
7.4. SUCCESSOR TRUSTEES. Trustee may resign by the giving of notice of such
resignation in writing to Beneficiary. If (a) Trustee shall die, resign, or
become disqualified from acting in the execution of this trust, or (b) for any
reason, Beneficiary shall prefer to appoint a substitute trustee, or successive
substitute trustees or successive multiple substitute trustees, to act instead
of the aforenamed Trustee, Beneficiary shall have full power to appoint a
substitute trustee in succession who shall succeed to all the estates, rights,
powers, and duties of the aforenamed Trustee. Such appointment may be executed
by any authorized agent of Beneficiary, and if such Beneficiary be a corporation
and such appointment be executed in its behalf by any
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<PAGE> 12
officer of such corporation, such appointment shall be conclusively presumed to
be executed with authority and shall be valid and sufficient without proof of
any action by the board of directors or any superior officer of the corporation.
Grantor hereby ratifies and confirms any and all acts which the aforenamed
Trustee, or his successor or successors in this trust, shall do lawfully by
virtue hereof.
7.5. PERFECTION OF APPOINTMENT. Should any deed, conveyance, or instrument
of any nature be required from Grantor 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 Grantor.
7.6. 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 Beneficiary or of the substitute Trustee, the Trustee 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.
7.7. NO REPRESENTATION BY TRUSTEE OR BENEFICIARY. By accepting or approving
anything required to be observed, performed, or fulfilled or to be given to
Trustee or Beneficiary pursuant to the 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,
neither Trustee nor Beneficiary shall be deemed to have warranted, consented to,
or affirmed the sufficiency, legality, effectiveness, or legal effect of the
same, or of any term, provision, or condition thereof, and such acceptance or
approval thereof shall not be or constitute any warranty or affirmation with
respect thereto by Trustee or Beneficiary.
8. MISCELLANEOUS PROVISIONS.
8.1. ADDITIONAL PROVISIONS. The Loan Documents fully state all of the terms
and conditions of the parties' agreement regarding the matters mentioned in or
incidental to this Deed of Trust. The Loan Documents also grant further rights
to Beneficiary and contain further agreements and affirmative and negative
covenants by Trustor which apply to this Deed of Trust and the Property.
8.2. GIVING OF NOTICE. Any notice, demand, request or other communication
which any party hereto may be required or may desire to give hereunder shall be
given as provided in SECTION 9.3 of the Loan Agreement.
8.3. REMEDIES NOT EXCLUSIVE. No action for the enforcement of the lien or
any provision hereof shall be subject to any defense which would not be good and
available to the party interposing same in an action at law upon the Note.
Beneficiary shall be entitled to enforce
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<PAGE> 13
payment and performance of any of the Secured Obligations and to exercise all
rights and powers under this Deed of Trust or other agreement or any laws now or
hereafter in force, notwithstanding some or all of the Secured Obligations may
now or hereafter be otherwise secured, whether by mortgage, deed of trust,
pledge, lien, assignment or otherwise. Neither the acceptance of this Deed of
Trust nor its enforcement, whether by court action or other powers herein
contained, shall prejudice or in any manner affect Beneficiary's right to
realize upon or enforce any other security now or hereafter held by Beneficiary,
it being agreed that Beneficiary shall be entitled to enforce this Deed of Trust
and any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. No waiver of any
default of the Trustor hereunder shall be implied from any omission by
Beneficiary to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect any default other
than the default specified in the express waiver and that only for the time and
to the extent therein stated. No acceptance of any payment of any one or more
delinquent installments which does not include interest at the Default Rate from
the date of delinquency, together with any required late charge, shall
constitute a waiver of the right of Beneficiary at any time thereafter to demand
and collect payment of interest at such Default Rate or of late charges, if any.
8.4. WAIVER OF STATUTORY RIGHTS. To the extent permitted by law, Trustor
hereby agrees that it shall not and will not apply for or avail itself of any
appraisement, valuation, stay, extension or exemption laws, or any so-called
"Moratorium Laws," now existing or hereafter enacted, in order to prevent or
hinder the enforcement or foreclosure of this Deed of Trust, but hereby waives
the benefit of such laws. Trustor for itself and all who may claim through or
under it waives any and all right to have the property and estates comprising
the Property marshaled upon any foreclosure of the lien hereof and agrees that
any court having jurisdiction to foreclose such lien may order the Property sold
as an entirety. To the extent permitted by law, Trustor hereby waives any and
all rights of redemption from sale under the power of sale contained herein or
any order or decree of foreclosure of this Deed of Trust on its behalf and on
behalf of each and every person, except decree or judgment creditors of Trustor,
acquiring any interest in or title to the Property subsequent to the date of
this Deed of Trust.
8.5. ESTOPPEL AFFIDAVITS. Trustor, within fifteen (15) days after written
request from Beneficiary, shall furnish a written statement, duly acknowledged,
setting forth the unpaid principal of, and interest on, the Secured Obligations
and stating whether or not any offset or defense exists against such Secured
Obligations, and covering such other matters as Beneficiary may reasonably
require.
8.6. MERGER. No merger shall occur as a result of Beneficiary's acquiring
any other estate in or any other lien on the Property unless Beneficiary
consents to a merger in writing.
8.7. BINDING ON SUCCESSORS AND ASSIGNS. This Deed of Trust and all
provisions hereof shall be binding upon Trustor and all persons claiming under
or through Trustor, and shall inure to the benefit of Beneficiary and its
successors and assigns.
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<PAGE> 14
8.8. CAPTIONS. The captions and headings of various paragraphs of this Deed
of Trust are for convenience only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof.
8.9. SEVERABILITY. If all or any portion of any provision of this Deed of
Trust shall be held to be invalid, illegal or unenforceable in any respect, then
such invalidity, illegality or unenforceability shall not affect any other
provision hereof or thereof, and such provision shall be limited and construed
as if such invalid, illegal or unenforceable provision or portion thereof was
not contained herein.
8.10. EFFECT OF EXTENSIONS OF TIME AND AMENDMENTS. If the payment of the
Secured Obligations or any part thereof be extended or varied or if any part of
the security be released, all persons now or at any time hereafter liable
therefor, or interested in the Property, shall be held to assent to such
extension, variation or release, and their liability and the lien and all
provisions hereof shall continue in full force, the right of recourse, if any,
against all such persons being expressly reserved by Beneficiary,
notwithstanding such extension, variation or release. Nothing in this SECTION
8.10 shall be construed as waiving any provision contained herein or in the Loan
Documents which provides, among other things, that it shall constitute an Event
of Default if the Property be sold, conveyed, or encumbered.
8.11. SERVICE CHARGE AND EXPENSES. At all times, regardless of whether any
proceeds of the loan secured hereby have been disbursed, this Deed of Trust
secures (in addition to the amounts secured hereby) the payment of any and all
commissions, service charges, liquidated damages, expenses and advances due to
or incurred by Beneficiary in connection with such loan; PROVIDED, HOWEVER, that
in no event shall the total amount secured hereby exceed two hundred percent
(200%) of the face amount of the Note.
8.12. APPLICABLE LAW. This Deed of Trust shall be governed by and construed
under the internal laws of the State in which the Property is located.
8.13. LIMITATION OF LIABILITY. The personal liability of Mortgagor and its
general partner hereunder is limited to the extent set forth in SECTION 9.18 of
the Loan Agreement.
8.14. DUE ON SALE CLAUSE. As more fully set forth in SECTION 6.4 of the
Loan Agreement, the transfer or encumbrance of the Property, or any interest
therein, or the transfer of an interest in Trustor, except for the permitted
transfers set forth in SECTION 6.5 of the Loan Agreement, without prior written
consent of Beneficiary, shall constitute an Event of Default.
8.15. TIME IS OF THE ESSENCE. Time is of the essence with respect to each
and every covenant, agreement and obligation of Trustor under this Deed of
Trust, the Note and the other Loan Documents.
8.16. RECORDATION. Trustor forthwith upon the execution and delivery of
this Deed of Trust, and thereafter from time to time, will cause this Deed of
Trust, and any security instrument creating a lien or evidencing the lien hereof
upon the Property, or any portion thereof, and each instrument of further
assurance, to be filed, registered or recorded in such manner and in such
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<PAGE> 15
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien hereof upon, and the interest of
Beneficiary in, the Property.
Trustor will pay all filing, registration or recording fees and taxes,
and all expenses incident to the preparation, execution and acknowledgment of
this Deed of Trust, any deed of trust supplemental hereto, any security
instrument with respect to the Property and any instrument of further assurance,
and all federal, state, county and municipal stamp taxes, duties, impositions,
assessments and charges arising out of or in connection with the execution and
delivery of the Note, this Deed of Trust, any deed of trust supplemental hereto,
any security instrument, any other Loan Documents or any instrument of further
assurance.
8.17. MODIFICATIONS. This Deed of Trust may not be changed or terminated
except in writing signed by both parties. The provisions of this Deed of Trust
shall extend and be applicable to all renewals, amendments, extensions,
consolidations, and modifications of the other Loan Documents, and any and all
references herein to the Loan Documents shall be deemed to include any such
renewals, amendments, extensions, consolidations or modifications thereof.
8.18. INDEPENDENCE OF SECURITY. Except as may exist pursuant to easements
and agreements existing as of the date hereof which have been disclosed to
Mortgagee, Trustor shall not by act or omission permit any building or other
improvement on any premises not subject to the Deed of Trust to rely on the
Property or any part thereof or any interest therein to fulfill any municipal or
governmental requirement, and Trustor hereby assigns to Beneficiary any and all
rights to give consent for all or any portion of the Property to rely on any
premises not subject to the Deed of Trust or any interest therein to fulfill any
municipal or governmental requirement. Trustor shall not by act or omission
impair the integrity of the Property as a single zoning lot, and as one or more
complete tax parcels, separate and apart from all other premises. Any act or
omission by Trustor which would result in a violation of any of the provisions
of this SECTION 8.18 shall be void.
9. STATE SPECIFIC PROVISIONS. The provisions of the Addendum to Deed of Trust
attached hereto at ANNEX I (the "ADDENDUM") are hereby incorporated herein by
this reference. Defined terms in the Addendum for which no definition is
provided in the Addendum shall have the meanings given to such terms in the Deed
of Trust. In the event of any conflict or inconsistency between the provisions
of the Deed of Trust and the provisions of the Addendum, the provisions of the
Addendum shall prevail.
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<PAGE> 16
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the
date first written above.
TRUSTOR:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, a
Delaware corporation, its sole general
partner
By: /s/ William G. Cornely
----------------------------------
Its: Executive Vice President/COO/CFO
----------------------------------
ATTEST:
/s/ George A. Schmidt
- -------------------------------
Secretary
- -------------------------------
[Affix Corporate Seal]
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<PAGE> 17
STATE OF OHIO
COUNTY OF FRANKLIN
I, a Notary Public of the County and State aforesaid, certify that George A.
Schmidt personally came before me this day and acknowledged that he/she is
Secretary of Glimcher Properties Corporation, a Delaware corporation, the sole
general partner of GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership and that by authority duly given and as the act of the corporation
on behalf of said partnership, the foregoing instrument was signed in its name
by its Executive Vice President, sealed with its corporate seal and attested by
him/her as its Secretary.
Witness my hand and official stamp or seal, this 28th day of June, 1999.
/s/ Wendy M. Carter (McKinney)
------------------------------
Notary Public
My Commission Expires:
August 19, 1999
- ----------------------
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<PAGE> 18
EXHIBIT A
---------
LEGAL DESCRIPTION
Beginning at an iron pipe, said iron pipe being located South
57(degrees)07'02" West 173.37 feet from a set concrete monument located at the
intersection of the Southern right of way of Seawell Street and the Western
right of way U.S. Highway 421 (South Horner Blvd.) thence, South 14(degrees) 23'
56" East 59.27 feet to an iron pipe; thence, South 36(degrees) 44' 35" East
176.96 feet to an iron pipe; thence North 53(degrees) 15' 25" East 195.51 feet
to an iron pipe lying on the Western right of way of South Horner Blvd., thence,
as the right of way of South Horner Blvd.; South 36(degrees) 44' 35" East 192.61
feet to an iron pipe; thence, leaving the Western right of way of South Horner
Blvd., South 53(degrees) 15' 24" West 195.51 feet to an iron pipe; thence, South
36(degrees) 44' 35" East 152.78 feet to an iron pipe; thence South 70(degrees)
47'32" East 34.02 feet to an iron pipe; thence, North 68(degree) 52' 23" East
125.10 feet to an iron pipe; thence North 53(degrees) 16' 11" East 26.43 feet to
an iron pipe; thence, North 08(degrees) 16' 11" East 24.82 feet to an iron pipe
on the Western right of way of South Horner Blvd.; thence as the Western right
of way South Horner Blvd., South 36(degrees) 44' 35" East 107.82 feet to an iron
pipe; thence, leaving the Western the right of way of South Horner Blvd., South
82(degrees) 45' 30" West 48.97 feet to an iron pipe; thence, South 68(degrees)
52' 23" West 142.12 feet to an iron pipe; thence, South 19(degrees) 34' 12" West
19.83 feet to an iron pipe; thence, South 30(degrees) 03' 11" East 209.79 feet
to an iron pipe; thence, South 75(degrees) 03'11" East 21.92 feet to an iron
pipe; thence, North 59(degrees) 56'47" East 208.16 feet to an iron pipe in
Western right of way of South Horner Blvd., thence as the right of way of South
Horner Blvd., South 33(degrees) 08' 15" East 42.56 feet to an iron pipe, thence
leaving the Western right of way of South Horner Blvd., South 59(degrees) 56'47"
West 1229.01 feet to an iron pipe lying on the Eastern boundary of the Southview
Subdivision as recorded in Plat Cabinet 2, Slide 519, Lee County Registry;
thence as the eastern boundary line of Southview Subdivision North 30(degrees)
03' 11" West 1014.07 feet to an iron pipe lying on the Southern right of way of
Seawall street; thence the following bearings and distances, along the Southern
right of way of Seawall Street; North 65(degrees) 01' 24" East 135.60 feet to an
iron pipe; thence, North 61(degrees) 37' 55" East 619.38 feet to an iron pipe;
thence along a curve with a radius of 608.82 feet, an arc of 148.48 feet, a
chord of 148.11 feet and a chord bearing of North 68(degrees) 37' 08" East to an
iron pipe; thence, North 75(degrees) 36' 20" East 60.51 feet to the point of the
beginning.
continued...
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<PAGE> 19
EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
Above legal description containing 23.711 acres and being a portion of the tract
described in Deed Book 450, Page 953, recorded in the Lee County Registry.
TOGETHER WITH ALL easements appurtenant to said 23.711 acre tract of
land, including but not limited to (i) sign easement, drainage easement and
irrigation line easement created and described in Paragraph 4, "Seller's
Permanent Easement," in instrument styled "Grant of Easement Agreement" dated
March 27, 1992, by and between LC of Sanford, Inc., and Boddie-Noell
Enterprises, Inc., and recorded in Deed Book 476, Page 639, Lee County Registry;
(ii) slope easement and drainage easement created and described in Paragraph 3,
"Buyer's Permanent Easements," in instrument styled "Agreement Regarding
Easements and Restrictions" dated April 29, 1991 by and between LC of Sanford,
Inc. and William J. Brinn, Jr. and Margretta H. Brinn, and recorded in Deed Book
460, Page 965, the Lee County Registry and re-recorded in Book 490, Page 26, the
Lee County, Registry; and (iii) ingress and egress easements created and
described in Paragraph 3 in instrument styled "Declaration of Restrictions and
Easements" dated April 29, 1991 by LC of Sanford, Inc. and recorded in Deed Book
460, Page 956, as amended by instruments recorded in Deed Book 476, Page 630;
Deed Book 490, Page 38; Book 541, Page 155; and Book 541, Page 158, all of the
Lee County Registry; and (iv) easements created and described in that certain
Reciprocal Easement Agreement and Declaration of Restrictions recorded in Book
490, Page 50, and Book 490, Page 35, all in Lee County Registry, North Carolina.
-19-
<PAGE> 20
ANNEX I
1.3 DISCHARGE. THIS CONVEYANCE IS MADE UPON THIS SPECIAL TRUST, that if
Trustor shall pay the Note in accordance with its terms and shall comply with
all the convenants, terms and conditions of this Deed of Trust and otherwise
perform the Obligations, this conveyance shall be null and void and shall be
cancelled of record at the request of Trustor.
1.4 FUTURE ADVANCES. This Deed of Trust is given in whole or in part to
secure all present and future obligations of Trustor to Beneficiary. The period
in which future obligations may be incurred and secured by this Deed of Trust is
the period between the date hereof and that date which is the earlier of (i) the
stated maturity date of the Note or (ii) fifteen (15) years from the date
hereof. The amount of present obligations secured by this Deed of Trust is
Seventy One Million Four Hundred Twenty Five Thousand Dollars ($71,425,000) and
the maximum principal amount, including present and future obligations, which
may be secured by this Deed of Trust at any one time is Ninety Million Dollars
($90,000,000). Any additional amounts advanced by Beneficiary pursuant to the
provisions of this Deed of Trust shall be deemed necessary expenditures for the
protection of the security. Trustor need not sign any instrument or notation
evidencing or stipulating that future advances are secured by this Deed of
Trust.
3. GRANT OF SECURITY AGREEMENT.
This Deed of Trust shall constitute a security agreement pursuant to the
Uniform Commercial Code for any items constituting a part of the Property which,
under applicable law, may be subjected to a security interest pursuant to the
Uniform Commercial Code, and the Trustor hereby grants Beneficiary a security
interest in such items. Trustor agrees that Beneficiary may file this Deed of
Trust, or a copy thereof, in the real estate records or other appropriate index,
as a financing statement for any of such items including, without limitation,
those items which are, or are to become fixtures with respect to the Land.
Trustor shall also execute and deliver to Beneficiary, upon Beneficiary's
request, any financing statements and continuation statements, as Beneficiary
may require to perfect a security interest with respect to such items. Trustor
shall pay all costs of filing such financing and continuation statements and
releases thereof. Without the prior written consent of Beneficiary, Trustor
shall not create or suffer to be created any other security interest in such
items, including replacements and additions thereto. Upon the occurrence of an
Event of Default, Beneficiary shall have the remedies of a secured party under
the Uniform Commercial Code. In exercising such remedies, Beneficiary may
proceed against the real property and personal property described herein
separately or together and in any order whatsoever, without in any way affecting
the availability of Beneficiary's remedies under the Uniform Commercial Code or
herein. This Deed of Trust shall constitute a financing statement filed as a
fixture filing in accordance with N.C. Gen. Stat. ss. 25-9-402 (or any amendment
thereto). For purposes of complying with the requirements of N.C. Gen. Stat. ss.
25-9-402, the name of Trustor, as Debtor, and Beneficiary, as Secured Party, and
the respective addresses of Trustor, as Debtor, and Beneficiary, as Secured
Party, are set forth on the first page of this Deed of Trust; the types or items
of Collateral are described in this paragraph and in the definition of the
"Property" appearing in the granting clauses of this Deed
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<PAGE> 21
of Trust; and the description of the Land is set forth on Exhibit "A" attached
hereto. THE COLLATERAL IS OR INCLUDES FIXTURES.
5.2(g) FORECLOSURE; POWER OF SALE. Upon the occurrence of an Event of
Default, Beneficiary may notify Trustee to exercise the power of sale granted
hereunder and upon such notification it shall be lawful for and the duty of
Trustee, and Trustee is hereby authorized and empowered to expose to sale and to
sell the Property or any part thereof at public sale to the highest bidder for
cash, in compliance with applicable requirements of North Carolina law governing
the exercise of powers of sale contained in deeds of trust and upon such sale,
Trustee shall collect the purchase proceeds and convey title to the portion of
the Property so sold to the purchaser in fee simple. In the event of a sale of
the Property or any part thereof, the proceeds of sale shall be applied in the
following order of priority: (i) to the payment of all costs and expenses for
and in connection with such sale, including a commission for Trustee's services
as hereinafter provided and reasonable attorney's fees incurred by Trustee for
legal services actually performed; (ii) to the reimbursement of Beneficiary for
all sums expended or incurred by Beneficiary under the terms of this Deed of
Trust or to establish, preserve or enforce this Deed of Trust or to collect the
Obligations (including, without limitation, reasonable attorneys' fees); (iii)
to the payment of the Note and interest thereon and all other Obligations hereby
secured; and (iv) the balance, if any, shall be paid to the parties lawfully
entitled thereto. In the event of a sale hereunder, Beneficiary shall have the
right to bid at such sale and shall have the right to credit all or any portion
of the indebtedness secured hereby against the purchase price. Trustee shall
have the right to designate the place of sale in compliance with applicable law
and the sale shall be held at the place designated by the notice of sale.
Trustee may require the successful bidder at any sale to deposit immediately
with Trustee cash or certified check or cashier's check in an amount up to ten
percent (10%) of the bid provided notice of such deposit requirement is
published as required by law. The bid may be rejected if the deposit is not
immediately made. Such deposit shall be refunded in case of a resale because of
an upset bid or if Trustee is unable to convey the portion of the Property so
sold to the bidder because the power of sale has been terminated in accordance
with applicable law. If the purchaser fails to comply with its bid, the deposit
may, at the option of Trustee, be retained and applied to the expenses of the
sale and any resales and to any damages and expenses incurred by reason of such
default (including the amount that such bid exceeds the final sales price), or
may be deposited with the Clerk of Superior Court. In all other cases, the
deposit shall be applied to the purchase price. Pursuant to N.C. Gen. Stat.
Section 25-9-501(4)(or any amendment thereto), Trustee is expressly authorized
and empowered to expose to sale and sell, together with the real estate, any
portion of the Property which constitutes personal property. If personal
property is sold hereunder, it need not be at the place of sale. The notice of
sale, however, shall state the time and place where such personal property may
be inspected prior to sale.
-21-
<PAGE> 1
Exhibit 10.113
PPM LOAN NO. 99-0018
PROMISSORY NOTE
$90,000,000.00 June 28, 1999
1. PROMISE TO PAY. FOR VALUE RECEIVED, the undersigned, GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership ("Maker") hereby
promises to pay to the order of JACKSON NATIONAL LIFE INSURANCE COMPANY, a
Michigan corporation, its successors or assigns ("Noteholder"), the principal
sum of Ninety Million Dollars ($90,000,000.00), with interest on the unpaid
principal balance thereof from the date hereof until maturity at the rate set
forth herein both principal and interest being payable as hereinafter provided
in lawful money of the United States of America at 225 West Wacker Drive, Suite
1200, Chicago, Illinois 60606 or at such other place as from time to time may be
designated by Noteholder. Interest shall be calculated and paid on the basis of
a 30-day month and 360-day year.
2. INTEREST. (a) Maker shall pay interest on the outstanding
principal balance hereof from the date disbursed until paid in full at a rate
per annum equal to the Interest Rate. Until the Conversion Date, the Interest
Rate shall be a variable rate per annum. From and after the Conversion Date, the
Interest Rate shall be a fixed rate per annum. The Initial Interest Rate shall
be 7.36%.
(b) Prior to the Conversion Date, the Interest Rate hereunder shall
be adjusted on each Adjustment Date, with the adjusted rate to become effective
on the first day of the month following the month in which the Adjustment Date
occurs. Noteholder shall give notice to Maker of the new Interest Rate promptly
following the Adjustment Date.
(c) At any time prior to April 19, 2000, Maker may elect to convert
the interest rate hereunder to a fixed rate by providing Noteholder with notice
thereof (a "Rate Fix Notice"). If Noteholder receives a Rate Fix Notice after
7:00 a.m. central time on a Business Day, then the Treasury Rate shall be
determined based on the rate prevailing at 4:00 p.m., central time, on the
Business Day the Rate Fix Notice is received. If Noteholder receives a Rate Fix
Notice prior to 7:00 a.m. central time on a Business Day, then the Treasury Rate
shall be determined based on the rate prevailing at 4:00 p.m., central time, on
the Business Day preceding the Business Day the Rate Fix Notice is received. If
Noteholder does not receive a Rate Fix Notice by April 19, 2000, then the
interest rate shall automatically convert to a fixed rate on May 1, 2000 and the
Treasury Rate shall be determined at the close of business on April 19, 2000.
(d) As used herein, the following terms shall have the meanings set
forth below:
"ADJUSTMENT DATE" shall mean the last Business Day of each
September, December, March and June occurring during the term
of the Loan and prior to the Conversion Date.
<PAGE> 2
"CONVERSION DATE" shall mean the date on which the Interest Rate
adjusts to a fixed rate pursuant to Section 2(c) below, which
shall be the first day of the month following the date on which
a Rate Fix Notice is received by Noteholder or, if no Rate Fix
Notice is received, May 1, 2000.
"INTEREST RATE" shall mean (a) prior to the Conversion Date, a
rate per annum equal to the greater of (i) the Index Rate plus
2.10% (210 basis points) and (ii) six percent (6.0%) and (b)
from and after the Conversion Date, a rate per annum equal to
the greater of (i) the Treasury Rate plus 2.10% (210 basis
points) and (ii) six percent (6%).
"INDEX RATE" shall mean the three month interbank offered rate
for dollar deposits in the London market ("LIBOR"), as shown in
the "Money Rates" column in the "Money and Investing" section of
the Wall Street Journal, as published on the business day prior
to the Adjustment Date or, in the event that the Wall Street
Journal shall cease to publish such rate daily, then as
published by Bloomberg L.P. or a similar service designated by
Noteholder. If the three month LIBOR shall cease to exist, then
Noteholder and Maker shall in good faith mutually agree upon an
alternate Index Rate.
"TREASURY RATE" shall mean the average yield of the ten-year
U.S. Government/Treasury Constant Maturities, as reported by
Bloomberg, L.P. at the time specified in Section 2(c).
3. PAYMENTS. A payment of interest only on the unpaid principal
balance of this Note shall be due and payable in advance on the date hereof in
an amount equal to interest accrued from and including the date hereof through
June 30, 1999*. Maker agrees to pay Noteholder monthly installment payments of
principal and interest on the 1st day of August, 1999* and on the same day of
each succeeding month through and including the 1st day of July, 2009 (the
"Maturity Date"), on which date all unpaid principal and interest, together with
any other sums due under the terms of this Note, shall be due and payable. Such
payments shall be determined based on the then-applicable Interest Rate and a
principal amortization schedule of twenty (20) years.
4. TREATMENT OF PAYMENTS. All payments of principal, interest, late
charges (as described below), and prepayment premium (as described below), if
any, due under this Note shall be paid to Noteholder by wire transfer or check
of immediately available funds to such bank or place, and in such other manner,
as Noteholder may from time to time designate. If such payment is received by
2:00 p.m., such payment will be credited to Maker's account as of the date on
which received. If such payment is received after 2:00 p.m., such payment will
be credited to Maker's account on the business day next following the date on
which received. Each installment payment under this Note shall be applied first
to the payment of any cost or expense for which Maker is liable hereunder or
under the other Loan Documents, including any unpaid late charge, then to
accrued interest and the remainder to the reduction of unpaid principal. Time is
of the essence as to all payments hereunder.
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<PAGE> 3
5. LATE CHARGES. If any monthly installment of principal and/or
interest is not paid in full on or before the tenth day of the month in which
such payment is due, then a charge for late payment ("Late Charge") in the
amount of five percent (5%) of the amount of such installment shall be
immediately assessed and shall be immediately due and payable by Maker. The
parties hereby recognize that the Late Charge is a reasonable approximation of
an actual loss difficult to estimate. Noteholder's failure to collect such Late
Charge shall not constitute a waiver of Noteholder's right to require payment of
such Late Charge for past or future defaults. The Late Charge shall be in
addition to all other rights and remedies available to Noteholder upon the
occurrence of a default under the Loan Documents.
6. DEFAULT INTEREST. Upon the occurrence of (a) an Event of Default
(as defined in the Loan Agreement) and acceleration of the Loan or (b) maturity
of this Note, interest shall accrue hereunder at an annual rate (the "Default
Rate") equal to the lesser of (i) eighteen percent (18%) and (ii) the maximum
rate allowed by law. The Default Rate shall accrue on the entire outstanding
balance hereof, including, without limitation, delinquent interest and any and
all costs and expenses incurred by Noteholder in connection therewith.
7. SECURITY. This Note is made pursuant to a Loan Agreement of even
date herewith (the "Loan Agreement") and secured by, among other things, certain
mortgages, deeds of trust and deeds to secure debt of even date herewith for the
benefit of Noteholder evidencing liens on certain real properties described
therein and in the Loan Agreement, and evidencing a security interest in certain
personal property, fixtures and equipment described therein. Capitalized terms
not otherwise defined herein shall have the meanings ascribed to such terms in
the Loan Agreement.
8. EVENT OF DEFAULT. Upon the failure to pay any installment of
principal and/or interest due on this Note as above promised or upon the
occurrence of an Event of Default, Noteholder shall have the option of declaring
the indebtedness evidenced hereby to be immediately due and payable ("the Loan
Acceleration"). After Loan Acceleration, Noteholder shall have the option of
applying any payments received to principal or interest or any other costs due
pursuant to the terms of this Note or the Loan Documents.
9. PREPAYMENT. This Note may not be prepaid before July 1, 2002.
Thereafter, Maker may prepay this Note in whole or in part upon payment of a
prepayment premium equal to the greater of (i) 1% of the prepaid amount and (ii)
an amount calculated at the time of prepayment using a formula designed to
compensate Noteholder for the loss of its performing Loan. The amount referred
to in clause (ii) will be calculated by (a) determining the present value on the
date of prepayment of all future principal and interest payments, including any
balloon payments, assuming payment in accordance with the terms of this Note and
(b) subtracting therefrom the then-outstanding principal balance of this Note.
The discount rate for purposes of determining such present value shall be the
quotient obtained by dividing (A) the Treasury Rate plus 50 basis points by (B)
twelve. As used herein, "Treasury Rate" shall mean the yield (as of the date
three (3) business days prior to the date of prepayment) as reported by
Bloomberg L.P. of U.S. Government Treasury Securities having a maturity date
which is the same as the Maturity Date; provided, however, that if no Treasury
Constant Maturities are published for the specific length of time to the
Maturity Date, the index to be utilized shall be the weighted average of the
Treasury Constant Maturities published for the two periods most nearly
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<PAGE> 4
corresponding to the Maturity Date, and provided further that if such yields are
no longer reported by Bloomberg L.P., the Treasury Rate shall be based on the
yields reported in another publication of comparable reliability and
institutional acceptance as selected by Lender in its sole discretion which most
closely approximates yields in percent per annum of selected U.S. Treasury
securities of varying maturities. Maker may prepay the Loan at par during the
ninety (90) day period preceding the Maturity Date. No prepayment premium will
be charged on amounts attributable to insurance or condemnation proceeds applied
to reduce the principal balance of this Note. Maker agrees that Noteholder shall
not be obligated to actually reinvest the amount prepaid in any Treasury
obligations as a condition precedent to receiving a prepayment premium
hereunder. In addition to the foregoing right to prepay this Note in full, Maker
may, commencing on July 1, 2002, prepay an amount up to 5% of the
then-outstanding principal balance of this Note in any year without any
prepayment premium or penalty.
10. LIMITATION ON PERSONAL LIABILITY. The personal liability of
Maker and its general partners hereunder is limited to the extend provided in
Section 9.18 of the Loan Agreement.
11. NON-USURIOUS LOAN. It is the intent of Noteholder and Maker in
this Note and the other Loan Documents now or hereafter securing this Note to
contract in strict compliance with applicable usury law. In furtherance thereof,
Noteholder and Maker stipulate and agree that none of the terms and provisions
contained in this Note, or in any other instrument executed in connection
herewith including but not limited to the Loan Documents, shall ever be
construed to create a contract to pay for the use, forbearance or detention of
money, or interest at a rate in excess of the maximum interest rate permitted to
be charged by applicable law. Neither Maker nor any guarantors, endorsers or
other parties now or hereafter becoming liable for payment of this Note shall
ever be required to pay interest on this Note at a rate in excess of the maximum
interest that may be lawfully charged under applicable law, and the provisions
of this paragraph shall control over all other provisions of this Note, the Loan
Documents and any other instruments now or hereafter executed in connection
herewith which may be in apparent conflict herewith. Noteholder expressly
disavows any intention to charge or collect excessive unearned interest or
finance charges in the event the maturity of this Note is accelerated. If the
maturity of this Note is accelerated for any reason or if the principal of this
Note is paid prior to the Maturity Date, and as a result thereof the interest
received for the actual period of existence of this Note exceeds the applicable
maximum lawful rate, Noteholder shall, at its option, either refund the amount
of such excess or credit the amount of such excess against the principal balance
of this Note then outstanding and thereby shall render inapplicable any and all
penalties of any kind provided by applicable law as a result of such excess
interest. In the event that Noteholder collects monies which are deemed to
constitute interest which would increase the effective interest rate on this
Note to a rate in excess of that permitted to be charged by applicable law, all
such sums deemed to constitute interest in excess of the lawful rate shall, upon
such determination, at the option of Noteholder, be either immediately returned
or credited against the principal balance of this Note then outstanding, in
which event any and all penalties of any kind under applicable law as a result
of such excess interest shall be inapplicable. By execution of this Note Maker
acknowledges that it believes this Note and all interest and fees paid in
connection with the loan represented by this Note, to be non-usurious. Maker
agrees that if, at any time, Maker should believe that this Note or the loan
represented by this Note is in fact usurious, Maker will give Noteholder notice
of such condition and Maker agrees that Noteholder shall have ninety (90) days
in which to make appropriate refund or other adjustment in order to
-4-
<PAGE> 5
correct such condition if in fact such condition exists. The term "applicable
law" as used in this Note shall mean the laws of the State of Illinois or the
laws of the United States, whichever allows the greater rate of interest, as
such laws now exist or may be changed or amended or come into effect in the
future.
12. NOTEHOLDER'S ATTORNEY FEES. Should the indebtedness represented
by this Note or any part thereof be collected at law or in equity or through any
bankruptcy, receivership, probate or other court proceedings or if this Note is
placed in the hands of attorneys for collection after default, or if the lien or
priority of the lien represented by any Mortgage or the other Loan Documents is
the subject of any court proceeding, Maker and all endorsers, guarantors and
sureties of this Note jointly and severally agree to pay to Noteholder in
addition to the principal and interest due and payable hereon reasonable
attorney and collection fees including those incurred by Noteholder for any
appeal.
13. MAKER'S WAIVERS. Maker and all endorsers, guarantors and
sureties of this Note and all other persons liable or to become liable on this
Note severally waive presentment for payment, demand, notice of demand and of
dishonor and nonpayment of this Note, notice of intention to accelerate the
maturity of this Note, notice of acceleration, protest and notice of protest,
diligence in collecting, and the bringing of suit against any other party, and
agree to all renewals, extensions, modifications, partial payments, releases or
substitutions of security, in whole or in part, with or without notice, before
or after maturity.
14. PAYMENT OF TAXES AND FEES. Maker agrees to pay the cost of any
revenue, tax or other documentary fee or stamps now or hereafter required by law
to be affixed to this Note or the Mortgages. Maker shall also pay any
out-of-pocket expenses incurred by Noteholder in connection with the conversion
of the Interest Rate hereunder.
15. GOVERNING LAW. This Note and the rights, duties and liabilities
of the parties hereunder and/or arising from or relating in any way to the
indebtedness evidenced by this Note or the transaction of which such
indebtedness is a part shall be governed and construed for all purposes by the
law of the State of Illinois.
16. WAIVER OF TRIAL BY JURY. MAKER HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THE LOAN, THE APPLICATION FOR THE LOAN, THE LOAN DOCUMENTS OR ANY
ACTS OR OMISSIONS OF NOTEHOLDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN
CONNECTION THEREWITH.
-5-
<PAGE> 6
IN WITNESS WHEREOF, Maker has caused this Note to be duly executed as
of the day and year first above written.
MAKER:
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
--------------------------------
(Taxpayer ID Number)
------------------------
-6-
<PAGE> 7
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
On the 28th day of June, 1999 before me, a notary public in and for the
State and County aforesaid, personally appeared William G. Cornely, who
acknowledged himself/herself to be 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 he/she as such officer, being authorized to so do, executed the foregoing
instrument for the purposes therein contained on behalf of such corporation as
general partner of such limited partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Linda J. Polka
----------------------------------
Notary Public
My Commission Expires: 7-2-2000
--------
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<PAGE> 1
Exhibit - 10.114
- --------------------------------------------------------------------------------
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Milos Markovic, Esq.
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
PPM Loan No. 99-0018
-------
DEED TO SECURE DEBT AND SECURITY AGREEMENT
------------------------------------------
THIS DEED TO SECURE DEBT AND SECURITY AGREEMENT (together with all
amendments and supplements hereto, this "Mortgage") is made as of September,
1999, between GLIMCHER PROPERTIES LIMITED PARTNERSHIP a Delaware limited
partnership (the "Mortgagor") 20 South Third Street, Columbus, Ohio 43215, and
JACKSON NATIONAL LIFE INSURANCE COMPANY, a Michigan corporation (the
"Mortgagee"), c/o PPM Finance, Inc., 225 West Wacker Drive, Suite 1200, Chicago,
Illinois 60606.
1. MORTGAGE AND SECURED OBLIGATIONS.
--------------------------------
1.1. MORTGAGE. For purposes of securing payment and performance of
the Secured Obligations defined and described in SECTION 1.2, Mortgagor hereby
irrevocably and unconditionally grants, bargains, sells, conveys, warrants,
assigns and pledges to Mortgagee, with right of entry and possession, and with
power of sale, all estate, right, title and interest which Mortgagor now has or
may later acquire in and to the following property (all or any part of such
property, or any interest in all or any part of it, as the context may require,
the "Property"):
(a) the real property located in the County of Richmond and
County of Columbia, State of Georgia and more particularly described in
EXHIBIT A attached hereto, together with all existing and future
easements and rights affording access to it (the "Land");
<PAGE> 2
(b) all buildings, structures and improvements now located or
later to be constructed on the Land (the "Improvements");
(c) all existing and future appurtenances, privileges,
easements, franchises and tenements of the Land, including all
minerals, oil, gas, other hydrocarbons and associated substances,
sulfur, nitrogen, carbon dioxide, helium and other commercially
valuable substances which may be in, under or produced from any part of
the Land, all development rights and credits, air rights, water, water
rights (whether riparian, appropriative or otherwise, and whether or
not appurtenant) and water stock, and any land lying in the streets,
roads or avenues, open or proposed, in front of or adjoining the Land
and Improvements;
(d) all existing and future leases, subleases, subtenancies,
licenses, occupancy agreements and concessions ("Leases", as defined in
the Assignment of Leases and Rents described in SECTION 2 herein,
executed and delivered to Lender contemporaneously herewith) relating
to the use and enjoyment of all or any part of the Land and
Improvements, and any and all guaranties and other agreements relating
to or made in connection with any of such leases;
(e) all goods, materials, supplies, chattels, furniture,
fixtures, equipment and machinery now or later to be attached to,
placed in or on, or used in connection with the use, enjoyment,
occupancy or operation of all or any part of the Land and Improvements,
whether stored on the Land or elsewhere, including all pumping plants,
engines, pipes, ditches and flumes, and also all gas, electric,
cooking, heating, cooling, air conditioning, lighting, refrigeration
and plumbing fixtures and equipment, all of which shall be considered
to the fullest extent of the law to be real property for purposes of
this Mortgage;
(f) all building materials, equipment, work in process or
other personal property of any kind, whether stored on the Land or
elsewhere, which have been or later will be acquired for the purpose of
being delivered to, incorporated into or installed in or about the Land
or Improvements;
(g) all of Mortgagor's interest in and to the Loan funds,
whether disbursed or not, the Escrow Accounts (as defined in SECTION
3.1 of the Loan Agreement) and any of Mortgagor's funds now or later to
be held by or on behalf of Mortgagee;
(h) all rights to the payment of money, accounts, accounts
receivable, reserves, deferred payments, refunds, cost savings,
payments and deposits, whether now or later to be received from third
parties (including all earnest money sales deposits) or deposited by
Mortgagor with third parties (including all utility deposits), contract
rights, development and use rights, governmental permits and licenses,
applications, architectural and engineering plans, specifications and
drawings, as-built drawings, chattel paper, instruments, documents,
notes, drafts and letters of credit (other than letters of credit in
favor of Mortgagee), which arise from or relate to construction on the
Land or to any business now or later to be conducted on it, or to the
Land and Improvements generally;
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(i) all proceeds, including all claims to and demands for
them, of the voluntary or involuntary conversion of any of the Land,
Improvements or the other property described above into cash or
liquidated claims, including proceeds of all present and future fire,
hazard or casualty insurance policies and all condemnation awards or
payments now or later to be made by any public body or decree by any
court of competent jurisdiction for any taking or in connection with
any condemnation or eminent domain proceeding, and all causes of action
and their proceeds for any damage or injury to the Land, Improvements
or the other property described above or any part of them, or breach of
warranty in connection with the construction of the Improvements,
including causes of action arising in tort, contract, fraud or
concealment of a material fact;
(j) all books and records pertaining to any and all of the
property described above, including computer-readable memory and
software necessary to access and process such memory ("Books and
Records"). Notwithstanding anything in the foregoing to the contrary,
Books and Records shall not be deemed to include the general corporate
books and records of the Mortgagor which are maintained by Mortgagor on
a consolidated basis for all of Mortgagor's properties (which
properties include the Property being secured hereunder) except to the
extent that information in such consolidated books and records pertains
to the Property secured hereunder;
(k) the agreements described in EXHIBIT B attached hereto,
which exhibit is incorporated herein by reference; (ii) all other
agreements heretofore or hereafter entered into relating to the
construction, ownership, operation, management, leasing or use of the
Land or Improvements; (iii) any and all present and future amendments,
modifications, supplements, and addenda to any of the items described
in (i) and (ii) above; (iv) any and all guarantees, warranties and
other undertakings (including payment and performance bonds) heretofore
or hereafter entered into or delivered with respect to any of the items
described in clauses (i) through (iii) above; (v) all trade names,
trademarks, logos and other materials used to identify or advertise, or
otherwise relating to the Land or Improvements; and (vi) all building
permits, governmental permits, licenses, variances, conditional or
special use permits, and other authorizations (collectively, the
"Permits") now or hereafter issued in connection with the construction,
development, ownership, operation, management, leasing or use of the
Land or Improvements, to the fullest extent that the same or any
interest therein may be legally assigned by Mortgagor; and
(l) all right, title and interest of Mortgagor, now or
hereafter arising, in and to that certain parcel of real property
adjoining the Land and described in EXHIBIT B attached hereto (the
"Adjacent Tract") arising and provided under that certain
Third Amendment to Lease Agreement by and between PaineWebber Retail
Property Investments, Ltd., a Texas limited partnership transacting
business in the State of Georgia as PaineWebber Retail Property
Investments, Ltd. L.P., as lessor, and Wal-Mart Stores, Inc., as
lessee dated October 16, 1996 (the "Lease Agreement"); in the event
Mortgagor acquires fee title to all or any portion of the Adjacent
Tract as provided in the Lease Agreement, the lien and security title
of this Mortgage shall, without further action by any party, extend and
spread to such portion of the Adjacent Tract so acquired by Mortgagor
and the buildings, structures and
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<PAGE> 4
improvements thereon, and the Additional Tract shall thereafter
constitute a portion of the Land for all purposes and the buildings,
structures and improvements thereon shall thereafter constitute part of
the Improvements for all purposes (upon acquisition of fee title to the
Adjacent Tract, Mortgagor shall execute any instrument reasonably
requested by Mortgagee to confirm the expansion and spread of the lien
and security title of this Mortgage to the Adjacent Tract),
(m) all proceeds of, additions and accretions to, substitutions
and replacements for, and changes in any of the property described
above.
Capitalized terms used above and elsewhere in this Mortgage without definition
have the meanings given them in the Loan Agreement referred to in SECTION 1.2
below.
1.2. SECURED OBLIGATIONS. This Mortgage is made for the purpose of
securing the following obligations (the "Secured Obligations") in any order of
priority that Mortgagee may choose:
(a) Payment of all obligations at any time owing under a
Promissory Note (the "Note") of even date herewith, payable by
Mortgagor as maker in the stated principal amount of Ninety Million
Dollars ($90,000,000.00) to the order of Mortgagee, which Note matures
and is due and payable in full not later than July 1, 2009; and
(b) Payment and performance of all obligations of Mortgagor
under a Loan Agreement of even date herewith between Mortgagor, as
borrower, and Mortgagee, as lender (the "Loan Agreement"); and
(c) Payment and performance of all obligations of Mortgagor
under this Mortgage; and
(d) Payment and performance of any obligations of Mortgagor
under any Loan Documents (as defined in the Loan Agreement) which are
executed by Mortgagor, including without limitation the Environmental
Indemnity; and
(e) Payment and performance of all future advances and other
obligations that Mortgagor or any successor in ownership of all or part
of the Property may agree to pay and/or perform (whether as principal,
surety or guarantor) for the benefit of Mortgagee, when a writing
evidences the parties' agreement that the advance or obligation be
secured by this Mortgage; and
(f) Payment and performance of all modifications, amendments,
extensions and renewals, however evidenced, of any of the Secured
Obligations.
All persons who may have or acquire an interest in all or any part of the
Property will be considered to have notice of, and will be bound by, the terms
of the Secured Obligations and each other agreement or instrument made or
entered into in connection with each of the Secured Obligations. These terms
include any provisions in the Note or the Loan Agreement which provide that the
interest rate on one or more of the Secured Obligations may vary from time to
time.
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2. ASSIGNMENT OF RENTS. As an inducement to Mortgagee to make the loan
evidenced by the Note and the Loan Agreement, Mortgagor has contemporaneously
herewith executed and delivered to Mortgagee an Assignment of Leases and Rents
with respect to the Property.
3. GRANT OF SECURITY INTEREST.
3.1. SECURITY AGREEMENT. The parties acknowledge that some of the
Property and some or all of the Rents (as defined in the Assignment of Leases
and Rents) may be determined under applicable law to be personal property or
fixtures. To the extent that any Property or Rents may be personal property,
Mortgagor as debtor hereby grants Mortgagee as secured party a security interest
in all such Property and Rents, to secure payment and performance of the Secured
Obligations. This Mortgage constitutes a security agreement under the Uniform
Commercial Code as in effect in the State in which the Property is located (the
"Code), covering all such Property and Rents.
3.2. FINANCING STATEMENTS. Mortgagor shall execute one or more
financing statements and such other documents as Mortgagee may from time to time
require to perfect or continue the perfection of Mortgagee's security interest
in any Property or Rents. Mortgagor shall pay all fees and costs that Mortgagee
may incur in filing such documents in public offices and in obtaining such
record searches as Mortgagee may reasonably require. In case Mortgagor fails to
execute any financing statements or other documents for the perfection or
continuation of any security interest, Mortgagor hereby appoints Mortgagee as
its true and lawful attorney-in-fact to execute any such documents on its
behalf.
3.3. FIXTURE FILING. This Mortgage constitutes a financing statement
filed as a fixture filing under Sections 9-313 and 9-402 of the Code, as amended
or recodified from time to time, covering any of the Property which now is or
later may become fixtures attached to the Land or the Improvements. The
following addresses are the mailing addresses of Mortgagor, as debtor under the
Code, and Mortgagee, as secured party under the Code, respectively:
MORTGAGOR: Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
Attention: General Counsel
MORTGAGEE: Jackson National Life Insurance Company
c/o PPM Finance, Inc.
225 West Wacker Drive, Suite 1200
Chicago, Illinois 60606
4. REPRESENTATIONS, COVENANTS AND AGREEMENTS.
4.1. GOOD TITLE. Mortgagor covenants that it is lawfully seized of
the Property, that the Property is unencumbered except for the Permitted
Exceptions (as defined in the Loan Agreement), and that it has good right, full
power and lawful authority to convey and mortgage
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<PAGE> 6
the same, and that it will warrant and forever defend the Property and the quiet
and peaceful possession of the same against the lawful claims of all persons
whomsoever.
4.2. INSURANCE. In the event of any loss or damage to any portion of
the Property due to fire or other casualty, or a taking of any portion of the
Property by condemnation or under the power of eminent domain, the settlement of
all insurance and condemnation claims and awards and the application of
insurance and condemnation proceeds shall be governed by SECTION 5 of the Loan
Agreement.
4.3. STAMP TAX. If, by the laws of the United States of America, or
of any state or political subdivision having jurisdiction over Mortgagor, any
tax is due or becomes due in respect of the issuance of the Note, or recording
of this Mortgage, Mortgagor covenants and agrees to pay such tax in the manner
required by any such law. Mortgagor further covenants to hold harmless and
agrees to indemnify Mortgagee, its successors or assigns, against any liability
incurred by reason of the imposition of any tax on the issuance of the Note or
recording of this Mortgage.
4.4. CHANGES IN TAXATION. Other than a tax that may arise in
connection with a transfer of the Note by Mortgagee or that is imposed on the
income of the Mortgagee, in the event of the enactment after this date of any
law of the State in which the Property is located or any political subdivision
thereof deducting from the value of land for the purpose of taxation any lien
thereon, or imposing upon Mortgagee the payment of the whole or any part of the
taxes or assessments or charges or liens herein required to be paid by
Mortgagor, or changing in any way the laws relating to the taxation of mortgages
or debts secured by mortgages or the Mortgagee's interest in the Property, or
the manner of collection of taxes, so as to affect this Mortgage or the Secured
Obligations, then Mortgagor, upon demand by Mortgagee, shall pay such taxes or
assessments, or reimburse Mortgagee therefor; provided, however, that if in the
opinion of counsel for Mortgagee (i) it might be unlawful to require Mortgagor
to make such payment or (ii) the making of such payment might result in the
imposition of interest beyond the maximum amount permitted by law, then
Mortgagee may elect, by notice in writing given to Mortgagor, to declare all of
the Secured Obligations to be and become due and payable sixty (60) days from
the giving of such notice.
4.5. SUBROGATION. Mortgagee shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole
or in part by Mortgagee in accordance with this Mortgage or with the proceeds of
any loan secured by this Mortgage.
4.6. NOTICE OF CHANGE. Mortgagor shall give Mortgagee prior written
notice of any change in: (a) the location of its place of business or its chief
executive office if it has more than one place of business; (b) the location of
any of the Property, including the Books and Records; and (c) Mortgagor's name
or business structure. Unless otherwise approved by Mortgagee in writing, all
Property that consists of personal property (other than the Books and Records)
will be located on the Land and all Books and Records will be located at
Mortgagor's place of business or chief executive office if Mortgagor has more
than one place of business.
4.7. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY.
From time to time, Mortgagee may perform any of the following acts without
incurring any liability or giving notice
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<PAGE> 7
to any person: (i) release any person liable for payment of any Secured
Obligation; (ii) extend the time for payment, or otherwise alter the terms of
payment, of any Secured Obligation; (iii) accept additional real or personal
property of any kind as security for any Secured Obligation, whether evidenced
by deeds of trust, mortgages, security agreements or any other instruments of
security; (iv) alter, substitute or release any property securing the Secured
Obligations; (v) consent to the making of any plat or map of the Property or any
part of it; (vi) join in granting any easement or creating any restriction
affecting the Property; or (vii) join in any subordination or other agreement
affecting this Mortgage or the lien of it.
5. DEFAULTS AND REMEDIES.
5.1. EVENTS OF DEFAULT. An "Event of Default," as defined in the Loan
Agreement, shall constitute an Event of Default hereunder.
5.2. REMEDIES At any time after an Event of Default, Mortgagee shall
be entitled to invoke any and all of the rights and remedies described below, in
addition to all other rights and remedies available to Mortgagee at law or in
equity. All of such rights and remedies shall be cumulative, and the exercise of
any one or more of them shall not constitute an election of remedies.
(a) ACCELERATION. Mortgagee may declare any or all of the
Secured Obligations to be due and payable immediately.
(b) RECEIVER. Mortgagee shall, as a matter of right, without
notice and without giving bond to Mortgagor or anyone claiming by,
under or through Mortgagor, and without regard for the solvency or
insolvency of Mortgagor or the then value of the Property, to the
extent permitted by applicable law, be entitled to have a receiver
appointed for all or any part of the Property and the Rents, and the
proceeds, issues and profits thereof, with the rights and powers
referenced below and such other rights and powers as the court making
such appointment shall confer, and Mortgagor hereby consents to the
appointment of such receiver and shall not oppose any such appointment.
Such receiver shall have all powers and duties prescribed by the
applicable laws in effect in the state in which the Property is
located, all other powers which are necessary or usual in such cases
for the protection, possession, control, management and operation of
the Property, and such rights and powers as Mortgagee would have, upon
entering and taking possession of the Property under subsection (c)
below.
(c) ENTRY. Mortgagee, in person, by agent or by court-appointed
receiver, may enter, take possession of, manage and operate all or any
part of the Property, and may also do any and all other things in
connection with those actions that Mortgagee may in its sole discretion
consider necessary and appropriate to protect the security of this
Mortgage. Such other things may include: taking and possessing all of
Mortgagor's or the then owner's Books and Records; entering into,
enforcing, modifying or canceling leases on such terms and conditions
as Mortgagee may consider proper; obtaining and evicting tenants;
fixing or modifying Rents; collecting and receiving any payment of
money owing to Mortgagor; completing any unfinished construction;
and/or contracting for and making repairs and alterations. If Mortgagee
so requests, Mortgagor shall
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<PAGE> 8
assemble all of the Property that has been removed from the Land and
make all of it available to Mortgagee at the site of the Land.
Mortgagor hereby irrevocably constitutes and appoints Mortgagee as
Mortgagor's attorney-in-fact to perform such acts and execute such
documents as Mortgagee in its sole discretion may consider to be
appropriate in connection with taking these measures, including
endorsement of Mortgagor's name on any instruments.
(d) CURE; PROTECTION OF SECURITY. Mortgagee may cure any
breach or default of Mortgagor, and if it chooses to do so in
connection with any such cure, Mortgagee may also enter the Property
and/or do any and all other things which it may in its sole discretion
consider necessary and appropriate to protect the security of this
Mortgage. Such other things may include: appearing in and/or defending
any action or proceeding which purports to affect the security of, or
the rights or powers of Mortgagee under, this Mortgage; paying,
purchasing, contesting or compromising any encumbrance, charge, lien or
claim of lien which in Mortgagee's sole judgment is or may be senior in
priority to this Mortgage, such judgment of Mortgagee to be conclusive
as between the parties to this Mortgage; obtaining insurance and/or
paying any premiums or charges for insurance required to be carried
under the Loan Agreement; otherwise caring for and protecting any and
all of the Property; and/or employing counsel, accountants, contractors
and other appropriate persons to assist Mortgagee. Mortgagee may take
any of the actions permitted under this SECTION 5.2(D) either with or
without giving notice to any person. Any amounts expended by Mortgagee
under this SECTION 5.2(D) shall be secured by this Mortgage.
(e) UNIFORM COMMERCIAL CODE REMEDIES. Mortgagee may exercise
any or all of the remedies granted to a secured party under Code.
(f) FORECLOSURE; LAWSUITS. Mortgagee shall have the right, in
one or several concurrent or consecutive proceedings, to foreclose the
lien hereof upon the Property or any part thereof, for the Secured
Obligations, or any part thereof, by any proceedings appropriate under
applicable law. Mortgagee or its nominee may bid and become the
purchaser of all or any part of the Property at any foreclosure or
other sale hereunder, and the amount of Mortgagee's successful bid
shall be credited on the Secured Obligations. Without limiting the
foregoing, Mortgagee may proceed by a suit or suits in law or equity,
whether for specific performance of any covenant or agreement herein
contained or contained in any of the other Loan Documents (as defined
in the Loan Agreement), or in aid of the execution of any power herein
granted, or for any foreclosure under the judgment or decree of any
court of competent jurisdiction, or for damages, or to collect the
indebtedness secured hereby, or for the enforcement of any other
appropriate legal, equitable, statutory or contractual remedy.
Mortgagee may sell the Property at public auction in one or more
parcels, at Mortgagee's option, and convey the same to the purchaser in
fee simple, Mortgagor to remain liable for any deficiency for which
Mortgagor shall be personally liable.
(g) OTHER REMEDIES. Mortgagee may exercise all rights and
remedies contained in any other instrument, document, agreement or
other writing heretofore, concurrently or in the future executed by
Mortgagor or any other person or entity in favor
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<PAGE> 9
of Mortgagee in connection with the Secured Obligations or any part
thereof, without prejudice to the right of Mortgagee thereafter to
enforce any appropriate remedy against Mortgagor. Mortgagee shall have
the right to pursue all remedies afforded to a mortgagee under the
applicable laws of the state in which the Property is located, and
shall have the benefit of all of the provisions of any such laws,
including all amendments thereto which may become effective from time
to time after the date hereof. In the event any provision of any such
laws may be repealed, Mortgagee shall have the benefit of such
provision as most recently existing prior to such repeal, as though the
same were incorporated herein by express reference.
(h) POWER OF SALE FOR PERSONAL PROPERTY. Under this power of
sale, Mortgagee shall have the discretionary right to cause some or all
of the Property, which constitutes personal property, to be sold or
otherwise disposed of in any combination and in any manner permitted by
applicable law.
(i) For purposes of this power of sale, Mortgagee may
elect to treat as personal property any Property which is
intangible or which can be severed from the Land or
Improvements without causing structural damage. If it chooses
to do so, Mortgagee may dispose of any personal property in
any manner permitted by Article 9 of the Code, including any
public or private sale, or in any manner permitted by any
other applicable law.
(ii) In connection with any sale or other disposition
of such Property, Mortgagor agrees that the following
procedures constitute a commercially reasonable sale:
Mortgagee shall mail written notice of the sale to Mortgagor
not later than ten (10) days prior to such sale. Upon receipt
of any written request, Mortgagor will make the Property
available to any bona fide prospective purchaser for
inspection during reasonable business hours. Notwithstanding,
Mortgagee shall be under no obligation to consummate a sale
if, in its judgment, none of the offers received by it equals
the fair value of the Property offered for sale. The foregoing
procedures do not constitute the only procedures that may be
commercially reasonable.
(i) SINGLE OR MULTIPLE FORECLOSURE SALES. If the Property
consists of more than one lot, parcel or item of property, Mortgagee
may:
(i) designate the order in which the lots, parcels
and/or items shall be sold or disposed of or offered for sale
or disposition; and
(ii) elect to dispose of the lots, parcels and/or
items through a single consolidated sale or disposition to be
held or made under or in connection with judicial proceedings,
or by virtue of a judgment and decree of foreclosure and sale,
or pursuant to the power of sale contained herein; or through
two or more such sales or dispositions; or in any other manner
Mortgagee may deem to be in its best interests (any
foreclosure sale or disposition as permitted by the terms
hereof is sometimes referred to herein as a "Foreclosure
Sale;" and any two or more such sales, "Foreclosure Sales").
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<PAGE> 10
(j) POWER OF SALE. Mortgagee, with or without entry,
personally or by its agents or attorneys, may sell the
Property or any part of the Property at one or more public
sale or sales at the usual place for conducting sales of the
county in which the Land or any part of the Land is situated,
to the highest bidder for cash, in order to pay the Secured
Obligations, and all expenses of sale and of all proceedings
in connection therewith, including reasonable attorney's fees,
after advertising the time, place, and terms of sale once a
week for four (4) weeks immediately preceding such sale (but
without regard to the number of days) in a newspaper in which
sheriff's sales are advertised in said county, all other
notice being hereby waived by Mortgagor. Mortgagor or its
nominee may bid and become the purchaser of all or any part of
the property at any foreclosure sale hereunder (to the extent
permitted by applicable law). At any such public sale,
Mortgagee may execute and deliver to the purchaser a
conveyance of the Property or any part of the Property in fee
simple, with full warranties of title, and to this end
Mortgagor hereby constitutes and appoints Mortgagee the agent
and attorney-in-fact of Mortgagor to make such sale and
conveyance, and thereby to divest Mortgagor of all right,
title and equity that Mortgagor may have in and to the
Property and to vest the same in the purchaser or purchasers
at such sale or sales, and all the acts and doings of said
agent and attorney-in-fact are hereby ratified and confirmed,
and any recitals in said conveyance or conveyances as to facts
essential to a valid sale shall be binding upon Mortgagor. The
aforesaid power of sale and agency hereby granted are coupled
with an interest and are irrevocable by death or otherwise and
shall not be exhausted by one exercise thereof but may be
exercised until full payment of all of the indebtedness
secured hereby. In the event of any sale under this Mortgage
by virtue of the exercise of the powers herein granted, or
pursuant to any order in any judicial proceeding or otherwise,
the Property may be sold as an entirety or in separate parcels
and in such manner or order as Mortgagee in its discretion may
elect, and if Mortgagee so elects, Mortgagee may sell the
personal property covered by this Mortgage at one or more
separate sales in any manner permitted by the Code, and one or
more exercises of the powers herein granted shall not
extinguish nor exhaust such powers, until the entire Property
is sold or the indebtedness secured hereby is paid in full.
Mortgagee may, at its option, sell the Property subject to the
rights of any tenants of the Property, and the failure to make
any such tenants parties to the foreclosure proceedings and to
foreclose their rights will not be asserted by Mortgagor to be
a defense to any proceedings instituted by Mortgagee to
collect the indebtedness secured hereby. If the indebtedness
secured is now or hereafter further secured by any chattel
mortgages, pledges, contracts of guaranty, assignments of
lease or other security instruments, Mortgagee may at its
option exhaust the remedies granted under any of the said
security either concurrently or independently, and in such
order as Mortgagee may determine in its discretion. In the
event of any such foreclosure sale by Mortgagee, Mortgagor
shall be deemed a tenant holding over and shall forthwith
deliver possession to the purchaser or purchasers at such sale
or be summarily dispossessed according to provisions of law
applicable to tenants holding over. Mortgagee may proceed in a
suit or suits in law or equity for the enforcement of any
appropriate legal, equitable, statutory, or contractual
remedy. In case Mortgagee shall have proceeded to enforce any
right, power or remedy under this Mortgage by foreclosure,
entry or otherwise in the event Mortgagee commences
advertising of the intended exercise of the sale under power
provided hereunder, and such
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<PAGE> 11
proceeding or advertisement shall have been withdrawn,
discontinued or abandoned for any reason, then in every such
case (i) Mortgagor and Mortgagee shall be restored to their
former positions and rights, (ii) all rights, powers, and
remedies of Mortgagee shall continue as if no such proceeding
had been taken, (iii) each and every Event of Default declared
or occurring prior or subsequent to such withdrawal,
discontinuance or abandonment shall be deemed to be a
continuing Event of Default, and (iv) neither this Mortgage,
nor the Note, nor the indebtedness secured hereby, nor any
other Loan Document shall be or shall be deemed to be
reinstated or otherwise affected by such withdrawal,
discontinuance or abandonment; and Mortgagor hereby expressly
waives the benefit of any statute or rule of law now provided,
or which may hereafter be provided, which would produce a
result contrary to or in conflict with this sentence.
Mortgagee reserves the right to proceed against Mortgagor for
any deficiency owed to Mortgagee after any such public sale
described herein by pursuing a confirmation action after the
foreclosure sale in accordance with applicable Georgia law.
If it chooses to have more than one Foreclosure Sale, Mortgagee at its option
may cause the Foreclosure Sales to be held simultaneously or successively, on
the same day, or on such different days and at such different times and in such
order as it may deem to be in its best interests. No Foreclosure Sale shall
terminate or affect the liens of this Mortgage on any part of the Property which
has not been sold, until all of the Secured Obligations have been paid in full.
5.3. APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of any
Foreclosure Sale shall be applied in the following manner:
(a) First, to pay the portion of the Secured Obligations
attributable to the expenses of sale, costs of any action and any other
sums for which Mortgagor is obligated to reimburse Mortgagee hereunder
or under the other Loan Documents;
(b) Second, to pay the portion of the Secured Obligations
attributable to any sums expended or advanced by Mortgagee under the
terms of this Mortgage which then remain unpaid;
(c) Third, to pay all other Secured Obligations in any order
and proportions as Mortgagee in its sole discretion may choose; and
(d) Fourth, to remit the remainder, if any, to the person or
persons entitled to it.
6. RELEASE OF LIEN. If Mortgagor shall fully pay and perform all of the
Secured Obligations and comply with all of the other terms and provisions hereof
and the other Loan Documents to be performed and complied with by Mortgagor,
then Mortgagee shall release this Mortgage and the lien thereof by proper
instrument upon payment, performance and discharge of all of the Secured
Obligations and payment by Mortgagor of any filing fee in connection with such
release.
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<PAGE> 12
7. MISCELLANEOUS PROVISIONS.
7.1. ADDITIONAL PROVISIONS. The Loan Documents fully state all of the
terms and conditions of the parties' agreement regarding the matters mentioned
in or incidental to this Mortgage. The Loan Documents also grant further rights
to Mortgagee and contain further agreements and affirmative and negative
covenants by Mortgagor which apply to this Mortgage and the Property.
7.2. GIVING OF NOTICE. Any notice, demand, request or other
communication which any party hereto may be required or may desire to give
hereunder shall be given as provided in SECTION 9.3 of the Loan Agreement.
7.3. REMEDIES NOT EXCLUSIVE. No action for the enforcement of the
lien or any provision hereof shall be subject to any defense which would not be
good and available to the party interposing same in an action at law upon the
Note. Mortgagee shall be entitled to enforce payment and performance of any of
the Secured Obligations and to exercise all rights and powers under this
Mortgage or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Secured Obligations may now or hereafter be
otherwise secured, whether by mortgage, deed of trust, pledge, lien, assignment
or otherwise. Neither the acceptance of this Mortgage nor its enforcement,
whether by court action or other powers herein contained, shall prejudice or in
any manner affect Mortgagee's right to realize upon or enforce any other
security now or hereafter held by Mortgagee, it being agreed that Mortgagee
shall be entitled to enforce this Mortgage and any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. No waiver of any default of the Mortgagor hereunder shall
be implied from any omission by Mortgagee to take any action on account of such
default if such default persists or is repeated, and no express waiver shall
affect any default other than the default specified in the express waiver and
that only for the time and to the extent therein stated. No acceptance of any
payment of any one or more delinquent installments which does not include
interest at the Default Rate from the date of delinquency, together with any
required late charge, shall constitute a waiver of the right of Mortgagee at any
time thereafter to demand and collect payment of interest at such Default Rate
or of late charges, if any.
7.4. WAIVER OF STATUTORY RIGHTS. To the extent permitted by law,
Mortgagor hereby agrees that it shall not and will not apply for or avail itself
of any appraisement, valuation, stay, extension or exemption laws, or any
so-called "Moratorium Laws," now existing or hereafter enacted, in order to
prevent or hinder the enforcement or foreclosure of this Mortgage, but hereby
waives the benefit of such laws. Mortgagor for itself and all who may claim
through or under it waives any and all right to have the property and estates
comprising the Property marshaled upon any foreclosure of the lien hereof and
agrees that any court having jurisdiction to foreclose such lien may order the
Property sold as an entirety. Mortgagor hereby waives any and all rights of
redemption from sale under the power of sale contained herein or any order or
decree of foreclosure of this Mortgage on its behalf and on behalf of each and
every person, except decree or judgment creditors of Mortgagor, acquiring any
interest in or title to the Property subsequent to the date of this Mortgage.
-12-
<PAGE> 13
7.5. ESTOPPEL AFFIDAVITS. Mortgagor, within fifteen (15) days after
written request from Mortgagee, shall furnish a written statement, duly
acknowledged, setting forth the unpaid principal of, and interest on, the
Secured Obligations and stating whether or not any offset or defense exists
against such Secured Obligations, and covering such other matters as Mortgagee
may reasonably require.
7.6. MERGER. No merger shall occur as a result of Mortgagee's
acquiring any other estate in or any other lien on the Property unless Mortgagee
consents to a merger in writing.
7.7. BINDING ON SUCCESSORS AND ASSIGNS. This Mortgage and all
provisions hereof shall be binding upon Mortgagor and all persons claiming under
or through Mortgagor, and shall inure to the benefit of Mortgagee and its
successors and assigns.
7.8. CAPTIONS. The captions and headings of various paragraphs of
this Mortgage are for convenience only and are not to be construed as defining
or limiting, in any way, the scope or intent of the provisions hereof.
7.9. SEVERABILITY. If all or any portion of any provision of this
Mortgage shall be held to be invalid, illegal or unenforceable in any respect,
then such invalidity, illegality or unenforceability shall not affect any other
provision hereof or thereof, and such provision shall be limited and construed
as if such invalid, illegal or unenforceable provision or portion thereof was
not contained herein.
7.10. EFFECT OF EXTENSIONS OF TIME AND AMENDMENTS. If the payment of
the Secured Obligations or any part thereof be extended or varied or if any part
of the security be released, all persons now or at any time hereafter liable
therefor, or interested in the Property, shall be held to assent to such
extension, variation or release, and their liability and the lien and all
provisions hereof shall continue in full force, the right of recourse, if any,
against all such persons being expressly reserved by Mortgagee, notwithstanding
such extension, variation or release. Nothing in this SECTION 7.10 shall be
construed as waiving any provision contained herein or in the Loan Documents
which provides, among other things, that it shall constitute an Event of Default
if the Property be sold, conveyed, or encumbered.
7.11. MORTGAGEE'S LIEN FOR SERVICE CHARGE AND EXPENSES. At all times,
regardless of whether any proceeds of the loan secured hereby have been
disbursed, this Mortgage secures (in addition to the amounts secured hereby) the
payment of any and all commissions, service charges, liquidated damages,
expenses and advances due to or incurred by Mortgagee in connection with such
loan; provided, however, that in no event shall the total amount secured hereby
exceed two hundred percent (200%) of the face amount of the Note.
7.12. APPLICABLE LAW. This Mortgage shall be governed by and construed
under the internal laws of the State in which the Property is located.
7.13. LIMITATION OF LIABILITY. The personal liability of Mortgagor and
its general partner hereunder is limited to the extent set forth in SECTION 9.18
of the Loan Agreement.
7.14. DUE ON SALE CLAUSE. As more fully set forth in SECTION 6.4 of
the Loan Agreement, the transfer or encumbrance of the Property, or any interest
therein, or the transfer of
-13-
<PAGE> 14
an interest in Mortgagor, except for the permitted transfers set forth in
SECTION 6.5 of the Loan Agreement, without prior written consent of Mortgagee,
shall constitute an Event of Default.
7.15. TIME IS OF THE ESSENCE. Time is of the essence with respect to
each and every covenant, agreement and obligation of Mortgagor under this
Mortgage, the Note and the other Loan Documents.
7.16. RECORDATION. Mortgagor forthwith upon the execution and delivery
of this Mortgage, and thereafter from time to time, will cause this Mortgage,
and any security instrument creating a lien or evidencing the lien hereof upon
the Property, or any portion thereof, 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 the lien hereof upon, and the interest of Mortgagee in, the Property.
Mortgagor will pay all filing, registration or recording fees and
taxes, and all expenses incident to the preparation, execution and
acknowledgment of this Mortgage, any mortgage supplemental hereto, any security
instrument with respect to the Property and any instrument of further assurance,
and all federal, state, county and municipal stamp taxes, duties, impositions,
assessments and charges arising out of or in connection with the execution and
delivery of the Note, this Mortgage, any mortgage supplemental hereto, any
security instrument, any other Loan Documents or any instrument of further
assurance.
7.17. MODIFICATIONS. This Mortgage may not be changed or terminated
except in writing signed by both parties. The provisions of this Mortgage shall
extend and be applicable to all renewals, amendments, extensions,
consolidations, and modifications of the other Loan Documents, and any and all
references herein to the Loan Documents shall be deemed to include any such
renewals, amendments, extensions, consolidations or modifications thereof.
7.18. INDEPENDENCE OF SECURITY. Except as may exist pursuant to
easements and agreements existing as of the date hereof which have been
disclosed to Mortgagee, Mortgagor shall not by act or omission permit any
building or other improvement on any premises not subject to the lien of this
Mortgage to rely on the Property or any part thereof or any interest therein to
fulfill any municipal or governmental requirement, and Mortgagor hereby assigns
to Mortgagee any and all rights to give consent for all or any portion of the
Property to rely on any premises not subject to the lien of this Mortgage or any
interest therein to fulfill any municipal or governmental requirement. Mortgagor
shall not by act or omission impair the integrity of the Property as a single
zoning lot, and as one or more complete tax parcels, separate and apart from all
other premises. Any act or omission by Mortgagor which would result in a
violation of any of the provisions of this SECTION 7.18 shall be void.
8. GEORGIA LAW PROVISIONS. The following provisions are included in this
Mortgage and shall prevail to the extent of any conflict with any other
provision of this Mortgage.
8.1. HABENDUM CLAUSE. TO HAVE AND TO HOLD all and singular the
Property, whether now owned or held or hereafter acquired, unto Mortgagee and
its successors and assigns, forever in fee simple, WITH POWER OF SALE, upon the
terms and conditions herein
-14-
<PAGE> 15
set forth for the benefit and security of the Note and for the enforcement of
the payment of the principal, premium and interest on the Note in accordance
with its terms, and all other sums payable hereunder or under the Note and the
performance and observance of the provisions of the Note and this Mortgage, all
as herein set forth.
IT IS HEREBY COVENANTED, DECLARED AND AGREED that the Note is to be
issued under and secured by this Mortgage and that the Property is to be held by
Mortgagee upon and subject to the provisions of the Mortgage.
THIS INSTRUMENT is a deed passing title to the Property to Mortgagee
and is made under laws of the State of Georgia relating to deeds to secure debt,
and is not a mortgage, and is given to secure the Secured Obligations evidenced
by the Note and the performance and observance of the provisions of the Loan
Documents.
SHOULD THE INDEBTEDNESS BE PAID according to the tenor and effect
thereof when the same shall become due and payable, and should Mortgagor perform
all covenants and obligations herein contained in a timely manner, then this
Mortgage shall be canceled and surrendered.
9. DELIVERY OF MORTGAGE. Mortgagor hereby acknowledges that it has received
a copy of this Mortgage.
10. FUTURE ADVANCES. This Mortgage is given to secure not only the existing
indebtedness, but also any and all future advances and disbursements (the
"Future Advances") now and hereafter (i) made by Mortgagee to Mortgagor under
the terms of the Loan Documents, and (ii) made prior to Mortgagee receiving
"actual notice" (as such term is defined in Section 44-14-2 1(b) of the Official
Code of Georgia Annotated) of any transfer by Mortgagor of the Property or any
valuable interest therein, regardless of the total amount of such advances and
disbursements and regardless of whether such total amount of advances and
disbursements should exceed the aggregate face amount of the Note, together with
any and all additional advances made by Mortgagee to protect and preserve the
Property or the security interest created hereby in the Property, or for the
payment of any insurance premiums, or for the performance of any of Mortgagor's
obligations hereunder or under the Loan Documents, or for another purpose
provided herein or therein (to the extent permitted by applicable law).
-15-
<PAGE> 16
IN WITNESS WHEREOF, Mortgagor has executed, sealed and delivered this
Mortgage under seal as of the date first written above.
MORTGAGOR
Signed, sealed and delivered
in the Presence of: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware
limited partnership
By: Glimcher Properties Corporation,
- ------------------------------ a Delaware Corporation, its
Unofficial Witness sole general partner
By: /s/ William G. Cornely
-----------------------------------
/s/ Carolee J. Oertel William G. Cornely
- ------------------------------ Executive Vice President
Notary Public Chief Financial Officer and COO
My Commission expires: 1-30-2000
(CORPORATE SEAL)
[Notary Seal]
-16-
<PAGE> 17
EXHIBIT A
---------
LEGAL DESCRIPTION
-----------------
PARCEL I
All that tract or parcel of land lying and being located in the 1269th G.M.D.,
west of the City of Augusta, (Richmond County and Columbia County) Georgia,
containing 44.79 acres and being more particularly described as follows:
Beginning at the intersection of the southerly right of way of Scott Nixon
Memorial Drive and the easterly right of way of Bobby Jones Expressway
(Interstate 520); thence along the easterly right of way of Bobby Jones
Expressway (Interstate 520) in a northerly direction a distance of 288.29 feet
to a #4 rebar found being the POINT OF BEGINNING; thence along the easterly
right of way of Bobby Jones Expressway (Interstate 520) North 18 degree 54'47"
West a distance of 768.39 feet to a #4 rebar set; thence leaving the easterly
right of way of Bobby Jones Expressway (Interstate 520) North 71 degree 05'13"
East a distance of 250.00 feet to a #4 rebar found; thence North
18 degree 56'40" West a distance of 58.63 feet to a p.k. nail found; thence
18 degree 46'40" West a distance of 8.63 feet to a #4 rebar found; thence along
a curve a length of 729.94 feet having a radius of 2970.47 feet with a chord of
North 25 degree 06'12" West a distance of 728.10 feet to a p.k. nail found;
thence South 64 degree 48'55" West a distance of 251.98 feet to a p.k. nail
found on the easterly right of way of Bobby Jones Expressway; thence along the
easterly right of way of Bobby Jones Expressway as it curves a length of 280.40
feet having a radius of 2720.43 feet with a chord of North 35 degree 43'47" West
a distance of 280.28 feet to a #4 rebar found; thence leaving the easterly right
of way of Bobby Jones Expressway (Interstate 520) North 58 degree 09'13" East a
distance of 242.05 feet to an "X" in concrete found; thence North
38 degree 12'59" West a distance of 240.00 feet to a #4 rebar found; thence
South 46 degree 21'59" West a distance of 251.34 feet to a #4 rebar found on the
easterly right of way of Bobby Jones Expressway (Interstate 520); thence along
the easterly right of way of Bobby Jones Expressway (Interstate 520) North
46 degree 26'56" West a distance of 55.04 feet to a 3" open top pipe found;
thence leaving the easterly right of way of Bobby Jones Expressway (Interstate
520) North 50 degree 11'42" East a distance of 234.51 feet to a #4 rebar set;
thence North 50 degree 21'20" East a distance of 418.09 feet to a #8 rebar
found; thence South 67 degree 09'37" East a distance of 136.30 feet to a #4
rebar found; thence North 66 degree 01'32" East a distance of 30.12 feet to a #4
rebar set; thence North 24 degree 00'33" West a distance of 21.46 feet to a #4
rebar set; thence North 74 degree 19'40" East a distance of 199.10 feet to a
point; thence North 74 degree 14'14" East a distance of 176.76 feet to a point;
thence North 74 degree 17'39" East a distance of 18.80 feet to a p.k. nail set;
thence South 23 degree 22'34" East a distance of 288.86 feet to a p.k. nail set;
thence South 18 degree 41'24" East a distance of 182.37 feet to a #4 rebar set;
thence South 00 degree 36'30" West a distance of 59.01 feet to a #4 rebar set;
thence South 11 degree 11'48" East a distance of 440.80 feet to a #4 rebar set;
thence South 46 degree 00'51" East a distance of 71.42 feet to a #4 rebar set;
thence South 20 degree 49'39" East a distance of 179.32 feet to a #4 rebar set;
thence South 80 degree 43'27" East a distance of 119.77 feet to a #4 rebar
found; thence along a curve a length of 135.16 feet having a radius of 1014.30
feet with a chord of South 05 degree 36'51" East a distance of 135.06 feet to a
#4 rebar found; thence along a curve a length of 40.01 feet having a radius of
1014.30 feet with a chord of South 10 degree 35'02" East a distance of 40.01
feet to a #4 rebar found; thence along a curve a length of 106.24 feet having a
radius of 1014.30 feet with a chord of South 15 degree 04'59" East a distance of
106.19 feet to a #4 rebar found; thence South 17 degree 37'24" East
-17-
<PAGE> 18
a distance of 293.63 feet to a #4 rebar found; thence South 24 degree 02'29"
East a distance of 149.29 feet to a #4 rebar found; thence South 24 degree
00'22" East a distance of 342.43 feet to a #4 rebar found on the northerly right
of way of Scott Nixon Memorial Drive; thence along the northerly right of way of
Scott Nixon Memorial Drive South 65 degree 48'43" West a distance of 687.66 feet
to a #4 rebar found; thence along the northerly right of way of Scott Nixon
Memorial Drive North 22 degree 01'16" West a distance of 10.00 feet to a #4
rebar found; thence continuing along the northerly right of way of Scott
Memorial Drive South 65 degree 52'29" West a distance of 76.80 feet to a #4
rebar found; thence leaving the northerly right of way of Scott Memorial Drive
North 09 degree 40'14" West a distance of 218.29 feet to a #4 rebar found;
thence South 71 degree 00'30" West a distance of 230.10 feet to the POINT OF
BEGINNING.
PARCEL II
Together with Easement for the benefit of Parcel I, which constitutes rights in
real property created, defined and limited by that certain Cross Easement
entered into and between Hubert E. Anderson and Frances F. Anderson and Dayton &
Associates-XVI, a South Carolina General Partnership, dated July 30, 1987 and
recorded August 3, 1987 in Realty Reel 267, Page 1940, in Richmond County,
Georgia and recorded in Deed Book 602, Pages 56 through 65, in Columbia County,
Georgia, and by that subsequent Easement Agreement entered into and between
Hubert E. Anderson and Frances F. Anderson and Dayton & Associates-XVI, a South
Carolina General Partnership, dated August 16, 1989 and recorded August 17, 1989
in Realty Reel 316, Page 1248, in Richmond County, Georgia, and recorded August
18, 1989 in Deed Book 771, Page 277, in Columbia County, Georgia.
PARCEL III
Together with Easement for the benefit of Parcel I, which constitutes rights in
real property created, defined and limited by that certain Declaration of
Restrictions and Easements, imposed by Dayton & Associates-XVI, a South Carolina
General Partnership, dated August 16, 1989, recorded in Deed Book 780, Page 271,
in Columbia County, Georgia, and recorded September 20, 1989 in Realty Reel 316,
Page 1238, in Richmond County, Georgia.
PARCEL IV
Together with Easement for the benefit of Parcel I, which constitutes rights in
real property created, defined and limited by that certain Easement Agreement
between Richmond County and PaineWebber Retail Property Investments, Inc., dated
January 7, 1992 and recorded January 17, 1992 in Realty Reel 376, Page 1048,
Richmond County, Georgia.
PARCEL V
Together with Easements for the benefit of Parcel I, which constitutes rights in
real property created, defined and limited by that certain First Amendment to
Declaration of Restrictions and Easements between PaineWebber Retail Property
Investments, Ltd. and Wal-Mart Stores, Inc., dated December 18, 1992 and
recorded February 9, 1993 in Deed Book 1174, Pages 297-302, in
-18-
<PAGE> 19
Columbia County, Georgia, and recorded February 14, 1997 in Realty Reel 548,
Pages 948-955, in Richmond County, Georgia.
PARCEL VI
Together with Easements for the benefit of Parcel I, which constitutes rights in
real property created, defined and limited by that certain Easement Agreement
with Covenants and Restrictions Affection Land ("ECR") between Wal-Mart Stores,
Inc. and PaineWebber Retail Property Investments, Ltd., dated October 16, 1996
and recorded October 30, 1996 in Realty Reel 538, Pages 1002-1017, in Richmond
County, Georgia, and recorded November 21, 1996 in Deed Book 1778, Pages
193-207, in Columbia County, Georgia.
-19-
<PAGE> 1
LIST OF SUBSIDIARIES Exhibit 21.1
GLIMCHER REALTY TRUST ("GRT") HAS THE FOLLOWING SUBSIDIARIES:
1. Glimcher Properties Corporation, a Delaware corporation (100%
shareholder);
2. Glimcher Properties Limited Partnership, a Delaware limited partnership
(approximately 90% limited partnership interest);
3. Glimcher Johnson City, Inc., a Delaware corporation (100% shareholder);
4. Glimcher Dayton Mall, Inc. a Delaware corporation (100% shareholder);
5. Glimcher Colonial Trust, a Delaware business trust (100% shareholders);
6. Glimcher Colonial Park Mall, Inc., a Delaware corporation (100%
shareholder);
7. Glimcher Tampa, Inc., a Delaware corporation (100% shareholder );
8. Glimcher Auburn, Inc., a Delaware corporation (100% shareholder);
9. Glimcher Weberstown, Inc., a Delaware corporation (100% shareholder);
10. Glimcher Blaine, Inc., a Delaware corporation (100% shareholder);
11. Glimcher Montgomery, Inc., a Delaware corporation (100% shareholder); and
12. Glimcher Portland, Inc., a Delaware corporation (100% shareholder).
GLIMCHER PROPERTIES CORPORATION HAS THE FOLLOWING SUBSIDIARIES:
1. Glimcher Holdings, Inc., a Delaware corporation (100% shareholder);
2. Glimcher Centers, Inc., a Delaware corporation (100% shareholder);
3. Glimcher Grand Central, Inc., a Delaware corporation (100% shareholder);
4. Glimcher York, Inc., a Delaware corporation (100% shareholder); and
5. Glimcher Morgantown Mall, Inc., an Ohio corporation (100% shareholder).
GLIMCHER PROPERTIES LIMITED PARTNERSHIP HAS THE FOLLOWING SUBSIDIARIES:
1. Glimcher Holdings Limited Partnership, a Delaware limited partnership (99%
limited partnership interest);
2. Glimcher Centers Limited Partnership, a Delaware limited partnership (99%
limited partnership interest);
3. Grand Central Limited Partnership, a Delaware limited partnership (99%
limited partnership interest);
4. Glimcher York Associates Limited Partnership, a Delaware limited
partnership (99% limited partnership interest);
<PAGE> 2
5. Glimcher University Mall Limited Partnership, a Delaware limited
partnership (99% limited partnership interest);
6. Morgantown Mall Associates Limited Partnership, an Ohio Limited
partnership (99% limited partnership interest);
7. Olathe Mall LLC, a Colorado limited liability company (approximately 82%
member interest);
8. Johnson City Venture LLC, a Delaware limited liability company
(approximately 32% member interest);
9. Dayton Mall Venture LLC, a Delaware limited liability company (39% member
interest);
10. Colonial Park Mall Limited Partnership, a Delaware limited partnership
(39% limited partners);
11. Glimcher New Jersey Metro Mall LLC, a Delaware limited liability company
(50% member interest);
12. Glimcher Development Corporation, a Delaware corporation (95%
shareholder);
13. Weberstown Mall, LLC, a Delaware limited liability company (99% member
interest);
14. Glimcher Northtown Venture, LLC, a Delaware limited liability company (99%
member interest);
15. Montgomery Mall Associates Limited Partnership, a Delaware limited
partnership (99% limited partnership interest);
16. Glimcher Lloyd Venture, LLC, a Delaware limited liability company (99%
member interest);
17. Glimcher SuperMall Venture, LLC a Delaware limited liability company
(approximately 34% member interest);
18. San Mall, LLC, a Delaware limited liability company (20% member interest);
19. Polaris Center, LLC, a Delaware limited liability company (50% member
interest); and
20. Eastland Mall, LLC, a Delaware limited liability company (20% member
interest).
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-3 (File Nos. 33-90730, 33-91084, 333-43317, 333-43319 and
333-61339), and on Form S-8 (File Nos. 33-94542, 333-10221 and 333-84537) of
Glimcher Realty Trust of our report dated February 9, 1999 relating to the
financial statements and financial statement schedules, which appears in this
Form 10-K.
PricewaterhouseCoopers LLP
Columbus, Ohio
March 2, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 9,039
<SECURITIES> 0
<RECEIVABLES> 37,167
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 1,558,452
<DEPRECIATION> 183,487
<TOTAL-ASSETS> 1,586,050
<CURRENT-LIABILITIES> 0
<BONDS> 1,032,229
90,000
127,950
<COMMON> 238
<OTHER-SE> 237,472
<TOTAL-LIABILITY-AND-EQUITY> 0
<SALES> 0
<TOTAL-REVENUES> 227,010
<CGS> 0
<TOTAL-COSTS> 59,491
<OTHER-EXPENSES> 53,514
<LOSS-PROVISION> 2,635
<INTEREST-EXPENSE> 64,333
<INCOME-PRETAX> 41,673
<INCOME-TAX> 0
<INCOME-CONTINUING> 41,673
<DISCONTINUED> 0
<EXTRAORDINARY> 545
<CHANGES> 0
<NET-INCOME> 41,128
<EPS-BASIC> 0.84
<EPS-DILUTED> 0.82
</TABLE>
