1
Exhibit 10.97
MORTGAGE MODIFICATION AGREEMENT
GLIMCHER YORK ASSOCIATES LIMITED PARTNERSHIP
HAVING XX XXXXXX XX
00 XXXXX XXXXX XXXXXX
XXXXXXXX, XXXX 00000
(the "MORTGAGOR")
and
XXXXXX BROTHERS HOLDINGS INC., D/B/A XXXXXX CAPITAL,
A DIVISION OF XXXXXX BROTHERS HOLDINGS INC.,
HAVING XX XXXXXX XX
XXXXX XXXXX XXXXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
(the "MORTGAGEE")
LOCATION OF PREMISES:
Grand Union, Xxxxxx, New York
------------------------------------------------------------------------------
RECORD AND RETURN TO:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Esq.
This instrument was prepared by the above named attorney
2
MORTGAGE MODIFICATION AGREEMENT
-------------------------------
AGREEMENT made as of this 28th day of April, 1999, between
GLIMCHER YORK ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership,
having its principal place of business at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000 and ("MORTGAGOR") and XXXXXX BROTHERS HOLDINGS INC., a Delaware
corporation, d/b/a XXXXXX CAPITAL, A DIVISION OF XXXXXX BROTHERS HOLDINGS INC.,
as lender, having an address at Three World Financial Center, New York, New York
10285 ("MORTGAGEE").
W I T N E S E T H :
-----------------
WHEREAS, the Mortgagee is now the lawful owner and holder of
that certain mortgage described on Schedule B attached hereto (the "MORTGAGE")
encumbering the premises described in Schedule A attached hereto together with
the improvements now or hereafter located thereon and all other property
intended to be encumbered thereby (collectively, the "MORTGAGED PROPERTY")
granted by the Mortgagor to the Mortgagee and the Promissory Note dated
September 15, 1998 made by Glimcher Properties Limited Partnership ("GPLP")and
Glimcher Properties Corporation ("GPC") to Bankers Trust Company and assigned to
Mortgagee as modified by that certain Note Modification Agreement dated as of
March 15, 1999 and amended and restated by that certain Amended and Restated
Promissory Note dated as of March 15, 1999 (the "NOTE") made by GPLP and GPC to
Mortgagee; and
WHEREAS, the Mortgagee, as the holder of the Note, and the
Borrower have agreed to increase the amount of and otherwise modify the Note in
accordance with a Note
3
Consolidation and Modification Agreement dated the date hereof between the GPLP,
GPC and Glimcher Development Corporation ("GDC", and with GPLP and GPC,
collectively "BORROWER") and the Mortgagee (the "NOTE MODIFICATION AGREEMENT")
and Mortgagor and Mortgagee have agreed to modify the terms of the Mortgage, in
the manner hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements herein contained, the parties hereto covenant and agree
as follows:
1. The Mortgagor hereby acknowledges that the Note has been
amended and restated in accordance with the Note Modification Agreement and
agrees that the Mortgage secures the Note as so modified and evidenced by that
certain Amended and Restated Note dated the date hereof made by Borrower to
Mortgagee (the "AMENDED AND RESTATED NOTE") pursuant to the Note Modification
Agreement. All references in the Mortgage to the Note shall be deemed to refer
to the Amended and Restated Note.
2. The second sentence of the Paragraph entitled "Background"
on page 1 of the Mortgage is amended to read as follows:
Glimcher Proeprties Limirted Partnership (GPLP") a Delaware
limited partnership and the parent of Mortgagor and Glimcher Properties
Corporation, ("GPC") are the maker of a note dated as of September 15,
1998 made payable to Bankers Trust Company, as modified by that certain
Note Modification Agreement dated as of March 15, 1999 between GPLP and
GPC and Mortgagee, and amended and restated by that certain Amended and
Restated Promissory Note dated as of March 15, 1999 made by GPLP and
GPC to Mortgagee, and consolidated and further modified by that certain
Note Consolidation and Modification Agreement dated as of the date
hereof between GPLP, GPC and Glimcher Development Corporation ("GDC")
and Mortgagee, and amended and restated by that certain Amended and
Restated Promissory
4
Note dated as of the date hereof made by GPLP, GPC and GDC to Mortgagee
in the amount of $21,500,000.00 (as the same may be further amended,
supplemented, modified, extended, restated or replaced from time to
time, the "Note").
3. The amount of "THREE MILLION AND 00/100 DOLLARS
($3,000,000.00)" set forth in paragraph (c) on page 2 of the Mortgage is amended
to read "FOUR MILLION SIX HUNDRED NINETY THOUSAND AND 00/100 DOLLARS
($4,690,000.00)".
4. All references to the Mortgage in the Amended and Restated
Note and any of the other Loan Documents (as defined in the Amended and Restated
Note) shall be deemed to refer to the Mortgage as modified by this Agreement.
5. The Mortgagor covenants and agrees that there is presently
outstanding on the Amended and Restated Note the principal sum of $21,500,000.00
with interest thereon from April 28, 1999, that there exist no defenses,
counterclaims or offsets to its obligations for the payment of the indebtedness
evidenced by the Amended and Restated Note, that, except as modified herein, the
Mortgage remains unmodified and in full force and effect, and that the maximum
amount secured by the Mortgage as modified herein is $4,690,000.00.
6. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute one and the same instrument and shall
become effective when copies hereof, when taken together, bear the signatures of
each of the parties hereto and it shall not be necessary in making proof of this
instrument to produce or account for more than one of such fully executed
counterparts.
5
[The balance of this page has been intentionally left blank]
6
IN WITNESS WHEREOF, this instrument has been executed by each of the
parties hereto as of the date first above written.
GLIMCHER YORK ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher York, Inc., a Delaware corporation,
its sole general partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
CFO/COO
XXXXXX BROTHERS HOLDINGS INC., doing
business as Xxxxxx Capital, a division of
Xxxxxx Brothers Holdings Inc.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name:Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
7
STATE OF OHIO )
: ss.:
COUNTY OF FRANKLIN )
On the 15th day of March, 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared XXXXXXX X. XXXXXXX
personally known to me or proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
/s/ XXXX XXXXXX
-----------------------------------
Notary Public
XXXX XXXXXX
Notary Public, State of Ohio
My Commission Expires 06-24-2002
8
STATE OF NEW YORK )
: ss.:
COUNTY OF ORANGE )
On the 16th day of March, 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared Xxxxxx X. Xxxxxxx
personally known to me or proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
/s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Notary Public
XXXXXXX XXXXXXXX
Notary Public, State of New York
No. 01BI-4987798
Qualified in Orange County
Commission Expires February 4, 2000
9
SCHEDULE A
----------
METES AND BOUNDS DESCRIPTION
10
SCHEDULE B
----------
THE MORTGAGE
Mortgage dated October 30, 1998 made by Glimcher York Associates Limited
Partnership to Bankers Trust Company and recorded in the office of the Delaware
County Clerk on December 24, 1998 at Liber 713 of Mortgages, page 212.
Which mortgage was assigned by Bankers Trust Company to the Mortgagee by
assignment of mortgage dated March 15, 1999 and recorded in the office of the
Delaware County Clerk on March 26, 1999 at Liber 728 of Mortgages, page 179.
Which mortgage was modified by Mortgagee Modification Agreement between Glimcher
Properties Limited Partnership and Mortgagee dated March 15, 1999 and recorded
in the Delaware County Clerk on March 26, 1999 at Liber 728 of Mortgages, page
169.
