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Exhibit 10.91
DEED OF TRUST, ASSIGNMENT OF RENTS
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AND SECURITY AGREEMENT
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THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (herein
"Instrument") is made this 17th day of June, 1999, between the Mortgagor,
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware Limited Partnership whose
mailing address is 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (herein
"Borrower"), the Trustee, Xxxxxx X. Xxxxxxx, Xxxx Xxxxx Area Title Insurance
Company, 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 (herein "Trustee") and the
Mortgagee, KEYBANK NATIONAL ASSOCIATION, a national banking association, having
an office at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 ("Lender").
WHEREAS, pursuant to that certain Loan Agreement among Borrower,
Glimcher Properties Corporation and Lender, of even date herewith ("Loan
Agreement"), the provisions of which are made a part hereof, Borrower has agreed
to borrow, up to a maximum principal indebtedness of Twenty-Four Million Three
Hundred Seventy-Five Thousand Dollars ($24,375,000.00); and
WHEREAS, the indebtedness is or will be evidenced by Borrower's
promissory note (herein "Note") in the aggregate principal amount of Twenty-Four
Million Three Hundred Seventy-Five Thousand Dollars ($24,375,000.00), with the
balance of the indebtedness, if not sooner paid, due and payable on June 17,
2000; and
IN CONSIDERATION OF SUCH INDEBTEDNESS AND THE TRUST HEREIN CREATED AND
TO SECURE TO LENDER (a) the repayment of the indebtedness evidenced by the Note,
whether such indebtedness is advanced before, in connection with or after the
recording of this Deed of Trust, with interest thereon, and all renewals,
extensions and modifications thereof; (b) the performance of the covenants and
agreements of Borrower contained in the Loan Agreement; (c)the payment of all
other sums with interest thereon advanced in accordance herewith to protect the
security of this Instrument; and (d) the performance of the covenants and
agreements of Borrower contained herein, Borrower does hereby irrevocably grant,
bargain and sell, convey, grant a security interest in and confirm to Trustee,
in trust, with power of sale, the following described property:
The property is described on Exhibit "A" attached hereto and
incorporated herein by reference ("Property").
TOGETHER WITH the following, whether now owned or hereafter acquired
by Borrower: (a) all improvements now or hereafter attached to or placed,
erected, constructed or developed on the Property (collectively the
"Improvements"); (b) all fixtures, furnishings, equipment, inventory, and other
articles of personal property (collectively the "Personal Property") that are
now or hereafter attached to or used in or about the Improvements or that are
necessary or useful for the complete and comfortable use and occupancy of the
Improvements for the purposes for which they were or are to be attached, placed,
erected, constructed or developed or that may be used in or related to the
planning, development, financing or operation of the Improvements, and all
renewals of or replacements or substitutions for any of the foregoing, whether
or not the same are or shall be attached to the Improvements or the Property;
(c) all water and water rights, timber, crops, and mineral interests pertaining
to the Property; (d) all building materials and equipment now or hereafter
delivered to and intended to be installed in or on the Improvements or the
Property; (e) all plans and specifications for the Improvements; (f) all
contracts relating to the Property, the Improvements or the Personal Property;
(g) all deposits (including, without limitation, tenants' security deposits),
bank accounts, funds, documents, contract rights, accounts, commitments,
construction agreements, trademarks, trade names and symbols), instruments,
notes and chattel paper arising from or by virtue of any transactions related to
the Property, the Improvements or the Personal Property; (h) all permits,
licenses, franchises, certificates, and other rights and privileges obtained in
connection with the Property, the Improvements or the Personal Property; (i) all
proceeds arising from or by virtue of the sale, lease or other disposition of
the Property, the Improvements, the Personal Property or any portion thereof or
interest therein; (j) all proceeds (including, without
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limitation, premium refunds) of each policy of insurance relating to the
Property, the Improvements or the Personal Property; (k) all proceeds from the
taking of any of the Property, the Improvements, the Personal Property or any
rights appurtenant thereto by right of eminent domain or by private or other
purchase in lieu thereof (including, without limitation, change of grade of
streets, curb cuts or other rights of access), for any public or quasi-public
use under any law; (l) all right, title and interest of Borrower in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Property; (m) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (n) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (o) other interests of every kind and character
that Borrower now has or at any time hereafter acquires in and to the Property,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Borrower with respect thereto (all
of the same, including the Property, collectively the "Mortgaged Property").
TO HAVE AND TO HOLD the Property IN TRUST for the benefit of Lender,
its successors and assigns, forever, for the purposes and uses herein set forth.
Borrower covenants that Borrower is lawfully seized of the estate
hereby conveyed and has the right to Instrument, grant, convey and assign the
Mortgaged Property, that the Mortgaged Property is unencumbered except for the
lien of this Instrument; the lien of real estate taxes and assessments not yet
due; the rights of tenants in possession under written leases and other matters
and encumbrances approved by Lender for inclusion in the lender's policy of
title insurance issued by Chicago Title Insurance Company insuring the lien of
this Instrument as set forth on EXHIBIT B attached hereto (the "Permitted
Exceptions"), and that Borrower will warrant and defend generally the title to
the Property against all claims and demands, whatsoever, except for those items
set forth above.
The Note, the Loan Agreement, this Instrument, the other notes issued
from time to time pursuant to the Loan Agreement, and any other document
evidencing or securing or guaranteeing the indebtedness secured hereby are
hereinafter collectively referred to as ("Loan Documents").
Borrower and Lender covenant and agree as follows:
1. TITLE. Borrower represents that it has good and marketable title in
fee simple to the Mortgaged Property, except for rights of tenants in possession
under written leases, current real estate taxes and assessments and other
matters and encumbrances approved by Lender for inclusion in the lender's policy
of title insurance issued by Chicago Title Insurance Company insuring the lien
of the Instrument (the "Permitted Exceptions"). If the interest of Lender in the
Mortgaged Property or any part thereof shall be endangered or shall be attacked,
directly or indirectly, Borrower hereby authorizes Lender, at Borrower's
expense, to take all necessary and proper steps for the defense of such
interest, including the employment of counsel, the prosecution or defense of
litigation and the compromise or discharge of claims made against such interest.
Any sums so expended by Lender shall be charged against Borrower and collectible
in accordance with the terms of Section 12 hereof.
2. FURTHER ASSURANCES. Borrower, upon the request of Lender, shall
execute, acknowledge, deliver, file and record such further instruments and do
such further acts as may be necessary, desirable or proper to carry out the
purposes of the Loan Documents and to subject to the liens and security
interests created thereby any property intended by the terms thereof to be
covered thereby, including specifically, but without limitation, any renewals,
additions, substitutions, replacements, improvements or appurtenances to the
Mortgaged Property.
3. SUBROGATION FOR FURTHER SECURITY. Lender shall be subrogated for its
further security to the lien, although released of record, of any and all
encumbrances paid with any advance
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of Indebtedness; provided, however, that the terms and provisions hereof shall
govern the rights and remedies of Lender and shall supersede the terms,
provisions, rights, and remedies under the lien or liens to which Lender is
subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Lender, which consent may be withheld in Lender's sole
discretion, Borrower shall not (a) sell, assign, mortgage, pledge, lease or
otherwise convey or further encumber the Mortgaged Property, or any portion
thereof, or legal, equitable or beneficial interest therein; (b) sell, assign,
pledge or otherwise transfer any beneficial interests in Borrower which
individually or in the aggregate would have the effect of transferring the power
to direct the operations of Borrower or the Mortgaged Property; (c) contract for
any of the same; (d) permit the Mortgaged Property, or any portion thereof, or
legal, equitable or beneficial interest therein, to be subject to any superior
or inferior lien or encumbrance; (e) subdivide, resubdivide or submit to the
condominium form of ownership all or any portion of the Mortgaged Property, or
any portion thereof; or (f) initiate or acquiesce in any change in the zoning
classification of the Property or any portion thereof.
5. PAYMENT OF INDEBTEDNESS. Borrower shall promptly pay the
Indebtedness as the same becomes due and payable.
6. ESTOPPEL CERTIFICATE. Borrower shall furnish to Lender within ten
(10) days of any written request of Lender, a written statement, duly
acknowledged by Borrower, setting forth the sums secured by the Instrument and
any right of set-off, counterclaim or other defense which Borrower alleges to
exist against such sums and obligations secured by the Instrument.
7. TAXES AND OTHER IMPOSITIONS. Borrower shall promptly pay before
delinquency all taxes, assessments, charges, fines or impositions, general,
local or special (collectively the "Impositions"), levied upon the Mortgaged
Property, or any part thereof, or upon Lender's interest therein, or upon the
Instrument or the Indebtedness, by any duly or legally constituted public
authority, municipality, township, county or state or the United States, and
upon request, will provide evidence of the payment thereof to Lender; provided
that Borrower, at Borrower's own cost and expense may, if it shall in good faith
so desire, contest the validity or amount of any Impositions, in which event
Borrower may defer the payment thereof for such period as such contest shall be
actively prosecuted and shall be pending undetermined; further provided,
however, that Borrower shall not allow any such Impositions so contested to
remain unpaid for such length of time as shall permit all or any portion of the
Mortgaged Property, or the lien thereon created by such item, to be sold by
federal, state, county or municipal authority for the nonpayment thereof.
Pending any such contest, Borrower shall maintain adequate book reserves with
respect to such Impositions being contested.
In the event that one or more of the Impositions on Lender's interest
in the Mortgaged Property, the Instrument or the Indebtedness cannot be lawfully
paid by Borrower, then the Mortgaged Property shall be withdrawn from the
Collateral Pool (as such team is defined in the Loan Agreement). In the event
the withdrawal of the Mortgaged Property from the Collateral Pool causes
Borrower not to be in compliance with the required loan to value ratio under the
Loan Agreement, Borrower may either furnish substitute property, as provided in
the Loan Agreement, or pay down the Indebtedness in an amount which will bring
the loan to value ratio into compliance.
8. INSURANCE AND INDEMNIFICATION. Borrower shall provide, maintain and
keep in force at all times the following policies of insurance:
(a) Insurance against loss or damage to the Improvements and
the Personal Property caused by fire and any of the risks covered by insurance
of the type now known as "coverage against all risks of physical loss", in an
amount equal to one hundred percent (100%) of the replacement cost of the
Improvements and the Personal Property and sufficient to prevent Borrower and
Lender from becoming co-insurers, and otherwise with terms and conditions
acceptable to Lender;
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(b) Comprehensive broad form general liability insurance,
insuring against any and all claims for personal injury, death or property
damage occurring on, in or about the Property, the Improvements and the
adjoining streets, sidewalks and passageways, subject to a combined single limit
of not less than Two Million Dollars ($2,000,000.00) for personal injury, death
or property damage arising out of any one accident and a general aggregate limit
of not less than Five Million Dollars ($5,000,000.00), and otherwise with terms
and conditions acceptable to Lender;
(c) Worker's compensation insurance (including employer's
liability insurance, if available and requested by Lender) for all employees of
Borrower engaged on or with respect to the Property and the Improvements in the
limits established by law or, if limits are not so established, in such amounts
as are acceptable to Lender;
(d) During the course of any development or construction of
the Improvements, builder's completed value risk insurance against "all risks of
physical loss", including collapse and transit coverage, in the amounts set
forth in Subsection 8(a) above, and otherwise with terms and conditions
acceptable to Lender;
(e) Upon obtaining a certificate of occupancy for the
Improvements or any portion thereof, business interruption insurance and/or loss
of "rental value" insurance in an amount not less than the appraised rentals for
the Mortgaged Property for a minimum of twelve (12) months, and otherwise with
terms and conditions acceptable to Lender;
(f) If the Improvements are located in a federally-designated
flood hazard area, then flood hazard coverage, in the maximum amount available
and otherwise with terms and conditions acceptable to Lender; and
(g) Such other insurance coverage, and in such amount, as may
from time to time be required by Lender against the same or other hazards.
All such policies shall be in a form acceptable to Lender. Each policy
of casualty insurance shall contain a mortgagee clause, substantially in the
form of the standard New York mortgagee clause or otherwise acceptable to
Lender, showing Lender as loss payee. Each policy of liability insurance shall
show Lender as an additional insured. Unless the policy so provides, each policy
of insurance required by the terms of the Instrument shall contain an
endorsement by the insurer, for the benefit of Lender, (i) that any loss shall
be payable in accordance with the terms of such policy notwithstanding any act
or negligence of Borrower which might otherwise result in forfeiture of said
insurance, (ii) that any rights of set-off, counterclaim or deductions against
Borrower are waived and (iii) that such policy shall not be canceled or changed
except upon not less than thirty (30) days prior written notice delivered to
Lender.
All such insurance policies and renewals thereof shall be written by
companies with a BEST'S INSURANCE REPORTS policy holders rating of A and a
financial size category of Class X or be expressly approved by Lender in
writing.
Lender shall have the right to hold the policies, or certificates
thereof acceptable to Lender with certified copies of the policies, and Borrower
shall promptly furnish to Lender all renewal notices and all receipts of paid
premiums. At least thirty (30) days prior to the expiration date of any such
policy, Borrower shall deliver to Lender a renewal policy, or certificate
thereof, in form acceptable to Lender.
If Lender is made a party defendant to any litigation concerning the
Loan Documents or the Mortgaged Property or any part thereof or interest therein
or the occupancy thereof by Borrower, then Borrower shall indemnify, defend and
hold Lender harmless from all liability by reason of said litigation, including
reasonable attorneys' fees and expenses incurred by Lender in any such
litigation, whether or not any such litigation is prosecuted to judgment.
Borrower waives any and all right to claim or recover against Lender, its
officers, employees, agents and representatives, for loss of or damage to
Borrower, the Mortgaged Property, other property of Borrower or the property
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of others under control of Borrower from any cause insured against or required
to be insured against by the provisions of the Instrument.
Borrower shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section unless Lender has approved the insurance company and the form and
content of the insurance policy, including, without limitation, the naming
thereon of Lender as a named insured with loss payable to Lender under a
standard mortgage clause of the character above described. Borrower shall
immediately notify Lender whenever any such separate insurance is taken out and
shall promptly deliver to Lender copies of the policies and certificates
evidencing such insurance.
Nothing contained in this Section 8 shall prevent Borrower from keeping
the Improvements and Personal Property insured or causing the same to be insured
against the risks referred to in this Section 8 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Instrument; provided, however, that any such policy of blanket insurance (i)
shall specify therein the amount of the total insurance allocated to the
Improvements and Personal Property, which amount shall be not less than the
amount otherwise required to be carried under the Instrument; (ii) shall not
contain any clause which would result in the insured thereunder becoming a
co-insurer of any loss with the insurer under such policy; and (iii) shall in
all other respects comply with the provisions of the Instrument.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Borrower, and used
by Borrower to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Borrower should elect option (ii) above, if a material decrease in the
fair market value of the Mortgaged Property is indicated, Lender shall be
entitled, at its option, to cause the Mortgaged Property to be reappraised at
Borrower's expense to satisfy itself of continued compliance by Borrower with
the loan to value ratio required by the Loan Agreement. In the event the results
of such reappraisal causes Borrower not to be in compliance with the required
loan to value ratio, Borrower may either furnish substitute property, as
provided for in Section 7 of the Loan Agreement, or pay down the Indebtedness in
an amount which will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Lender as escrow agent for the purpose of repairing, restoring or reconstructing
the Improvements. Such proceeds shall be disbursed by Lender as work progresses,
provided that prior to any disbursement, Lender is in receipt of proof
reasonably satisfactory to it that: (i) the work has been completed, (ii) there
are no outstanding mechanics liens or materialmen's liens, and (iii) that all
charges, costs and expenses incurred with respect to work completed have been
paid in full or will be paid in full with such proceeds. Prior to the release of
any proceeds, Lender must be satisfied that repair, restoration or
reconstruction of the damaged or destroyed Improvements will be substantially
equal in size, quality and value to the Improvements then presently erected on
the Mortgaged Property as existed immediately prior to the loss and the plans
and specifications therefor must be approved by Lender. In the event Lender
believes it is necessary in order to establish value, Lender may, at its option,
cause the Mortgaged Property to be reappraised at Borrower's expense. All
insurance proceeds shall be payable to Lender. The adjustment of such insurance
proceeds with the carrier must be approved by Lender.
Anything in this Section 8 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Lender, be applied by Lender to the Indebtedness in
such order as Lender may determine.
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9. ESCROW. Borrower, in order to more fully protect the security of the
Instrument, does hereby covenant and agree that, if Borrower shall fail to
timely pay taxes, assessments or insurance premiums as provided above, or in the
event of any other default and Lender does not then elect to exercise its other
remedies, then Borrower shall, upon request of Lender, pay to Lender on the
first day of each month, until the Indebtedness is fully paid, a sum equal to
one-twelfth (1/12) of the known or estimated yearly taxes, assessments, premiums
for such insurance as may be required by the terms hereof and, if applicable,
any replacement reserve amounts payable by Borrower. Lender shall hold such
monthly payments which may be mingled with its general funds, without obligation
to pay interest thereon, unless otherwise required by applicable law, to pay
such taxes, assessments, and insurance premiums when due. Borrower agrees that
sufficient funds shall be so accumulated for the payment of said charges one (1)
month prior to the due date thereof and that Borrower shall furnish Lender with
proper statements covering the same fifteen (15) days prior to the due dates
thereof. In the event of foreclosure of the Instrument, or if Lender should take
a deed in lieu of foreclosure, the amount so accumulated shall be credited on
account of the unpaid principal or interest. If the total of the monthly
payments as made under this Section 9 shall exceed the payments actually made by
Lender, such excess shall be credited on subsequent monthly payments of the same
nature, but if the total of such monthly payments so made under this Section 9
shall be insufficient to pay such taxes, assessments, and insurance premiums
then due, then said Borrower shall pay upon demand the amount necessary to make
up the deficiency, which payments shall be secured by the Instrument. To the
extent that all the provisions of this Section 9 for such payments of taxes,
assessments, and insurance premiums to Lender, are complied with, Borrower shall
be relieved of compliance with the covenants contained in Sections 7 and 8
herein as to the amounts paid only, but nothing contained in this Section 9
shall be construed as in any way limiting the rights of Lender at its option to
pay any and all of said items when due.
10. WASTE; REPAIR. Borrower shall neither commit nor permit any waste
on the Property and shall keep all Improvements now or hereafter erected on the
Property in good condition and repair.
11. ALTERATIONS; CONSTRUCTION. Borrower shall have the right to remove,
demolish or alter any of the Improvements, now existing or hereafter constructed
on the Property, or any of the Personal Property in or on the Property or
Improvements, to the extent that the value of same is not diminished. If Lender
believes that there has been a material decrease in value following any such
removal, demolition, or alteration, it may, at its option, cause the Mortgaged
Property to be reappraised at Borrower's expense.
12. ADVANCES SECURED BY INSTRUMENT. Upon failure of Borrower to comply
with any of these covenants and agreements as to the payment of taxes,
assessments, insurance premiums, repairs, protection of the Mortgaged Property
or Lender's lien thereon, and other charges and the costs of procurement of
title evidence and insurance as aforesaid, Lender may, at its option, pay the
same, and any sums so paid by Lender, together with the reasonable fees of
counsel employed by Lender in consultation and in connection therewith, shall be
charged against Borrower, shall be immediately due and payable by Borrower,
shall bear interest at the Default Rate of Interest (as defined in the Note) and
shall be a lien upon the Mortgaged Property and be secured by the Instrument and
may be collected in the same manner as the principal debt hereby secured.
13. USE. Unless Lender otherwise agrees in writing, Borrower shall not
allow changes in the nature of the occupancy for which the Property and
Improvements were intended at the time the Instrument was executed. Borrower
shall comply with the laws, ordinances, rules, regulations and requirements of
any governmental body applicable to the Mortgaged Property, both during the
construction of any Improvements on the Property and subsequent to the
completion thereof, and Borrower shall not permit the use thereof for any
illegal purpose.
14. INSPECTION. Any person authorized by Lender shall have the right to
enter upon and inspect the Mortgaged Property after reasonable notice to
Borrower and during normal business hours. Lender shall have no duty, however,
to make such inspections. Any inspection of the
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Mortgaged Property by Lender shall be entirely for its benefit, and Borrower
shall in no way rely or claim reliance thereon.
15. MINERALS. Without the prior written consent of Lender, there shall
be no drilling or exploring for, or extraction, removal, or production of,
minerals from the surface or subsurface of the Property. The term "minerals" as
used herein shall include, without limitation, oil, gas, casinghead gas, coal,
lignite, hydrocarbons, methane, carbon dioxide, helium, uranium and all other
natural elements, compounds and substances, including sand and gravel.
16. CONDEMNATION. If all the Mortgaged Property and Improvements are
taken or acquired in any condemnation proceeding or by exercise of the right of
eminent domain or, with Lender's consent, by any conveyance in lieu thereof, the
amount of any award or other payment for such taking, or conveyance or damages
made in consideration thereof, to the extent of the full amount of the then
remaining unpaid Indebtedness, is hereby assigned to Lender, and Lender is
empowered to collect and receive the same and to give proper receipts therefor
in the name of Borrower, and the same shall be paid forthwith to Lender. Such
award or payment so received by Lender shall be applied to the Indebtedness
(whether or not then due and payable).
In the event a portion of the Property Improvements are acquired in any
condemnation proceeding or by the exercise of the right of eminent domain, to
the extent that the damage to the Property or improvements is in the amount of
$500,000.00 or less, and provided there is no Event of Default, as hereinafter
defined, the proceeds of any such condemnation or eminent domain award shall be
paid to Borrower, who shall use such proceeds as provided for in paragraph 8
hereof with respect to the disbursement of insurance proceeds where the damage
or destruction is in an amount of $500,000.00 or less. The provisions of
paragraph 8 with respect to reappraisal and substitute property where there is
damage or destruction in an amount of $500,000.00 or less shall apply as if
fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with Lender as escrow agent for the purpose of repairing,
restoring, or reconstructing the Improvements and/or Property, and shall be
disbursed by Lender in accordance with the provisions of paragraph 8 hereof with
respect to the disbursement of insurance proceeds, where the damage or
destruction is in an amount of $500,000.00 or greater. The conditions to
disbursement, including the requirement that Lender be satisfied that the
repaired or restored Improvements would be equal in size, quality and value to
those which existed previously, and the right to cause the Mortgaged Property to
be reappraised, as provided for where there is damage or destruction of
$500,000.00 or greater, shall be applicable as if fully rewritten.
Anything in this Section 16 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Lender, be
applied by Lender to the Indebtedness in such order as Lender may determine.
17. ASSIGNMENT OF RENTS AND LEASES.
(a) Borrower hereby absolutely and unconditionally assigns,
transfers and sets over unto Lender and Lender's successors and assigns all
present and future leases covering all or any part of the Mortgaged Property
(the "Leases"), together with any extensions or renewals thereof and any
guaranties of any tenants' obligations thereunder, and all of the rents,
royalties, bonuses, income, receipts, revenues, issues and profits now due or
which may hereafter become due under the Leases or any extensions or renewals
thereof, as well as all moneys due and to become due to Borrower under the
Leases for services, materials or installations supplied whether or not the same
were supplied under the terms of the Leases, all liquidated damages following
default under the Leases and all proceeds payable under any policy of insurance
covering loss of rents resulting from untenantability caused by damage to any
part of the Mortgaged Property (such rents, income,
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receipts, revenues, issues, profits and other moneys assigned hereby are
hereinafter collectively called "Rents"), together with any and all rights and
remedies which Borrower may have against any tenant under any of the Leases or
others in possession of the Mortgaged Property or any part thereof for the
collection or recovery of Rents so assigned. Prior to an Event of Default, as
hereinafter defined, Borrower shall have a license to collect and receive all
Rents as trustee for the benefit of Lender and Borrower.
(b) Borrower hereby represents, warrants and agrees that:
(i) Borrower has good title to the Leases and Rents hereby
assigned and has the right, power and capacity to make this assignment. No
person or entity other than Borrower has or will have any right, title or
interest in or to the Leases or Rents, except for the Permitted Encumbrances.
(ii) Borrower shall, at Borrower's sole cost and expense,
perform and discharge all of the obligations and undertakings of the landlord
under the Leases and give prompt notice to Lender of any failure to do so.
Borrower shall use all reasonable efforts to enforce or secure the performance
of each and every obligation and undertaking of the tenants under the Leases and
shall appear in and prosecute or defend any action or proceeding arising under,
or in any manner connected with, the Leases or the obligations and undertakings
of the tenants thereunder.
(iii) Borrower shall generally operate and maintain the
Mortgaged Property in a manner to insure maximum Rents.
(iv) Borrower shall not pledge, transfer, mortgage or
otherwise encumber or assign the Leases or the Rents.
(v) Borrower shall not collect Rents more than sixty (60)
days prior to accrual.
(c) Lender shall not be obligated to perform or discharge any
obligation or duty to be performed or discharged by Borrower under any of the
Leases; and Borrower hereby agrees to indemnify Lender for, and to save Lender
harmless from, any and all liability, damage or expense arising from any of the
Leases or from this assignment, including, without limitation, claims by tenants
for security deposits or for rental payments more than one (1) month in advance
and not delivered to Lender. All amounts indemnified against hereunder,
including reasonable attorneys' fees if paid by Lender, shall bear interest at
the Default Rate of Interest, as defined in the Note, and shall be payable by
Borrower immediately without demand and shall be secured hereby. This assignment
shall not place responsibility for the control, care, management, or repair of
the Mortgaged Property upon Lender or make Lender responsible or liable for any
negligence in the management, operation, upkeep, repair or control of same
resulting in loss or damage or injury or death to any party.
(d) Upon the occurrence of an Event of Default as hereinafter
defined:
(i) All Rents assigned hereunder shall be paid directly
to Lender, and Lender may notify the tenants under the Leases (or any other
parties in possession of the Mortgaged Property) to pay all of the Rents
directly to Lender at the address specified in Section 27 hereof, for which this
assignment shall be sufficient warrant;
(ii) Lender shall have the right to forthwith enter and
take possession of the Mortgaged Property and to manage, operate, lease and
develop the same; to collect as hereunder provided all or any Rents payable
under the Leases; to make repairs as Lender deems appropriate; and to perform
such other acts in connection with the management, operation, development,
leasing and construction of the Mortgaged Property as Lender, in its sole
discretion, may deem proper; and
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(iii) Lender shall have the right to forthwith enter into
and upon the Mortgaged Property and take possession thereof, and to appoint an
agent, or in the event of the institution of foreclosure proceedings to have a
receiver appointed for the collection of the Rents.
In the event that Lender shall pursue its remedies under Subsections
17(d)(ii) or (iii) above, the net income, after allowing a reasonable fee for
the collection thereof and the management of the Mortgaged Property, may be
applied toward the payment of taxes, assessments, insurance premiums, repairs,
protection of the Mortgaged Property or Lender's lien thereon, and other charges
against the Mortgaged Property and the costs of procurement of such insurance
and of evidence of title to the Mortgaged Property, or any of them, or in the
reduction of the Indebtedness and the payment of interest, as Lender may elect.
If the Rents are not sufficient to meet the costs, if any, of taking control of
and managing the Mortgaged Property and collecting the Rents, any funds expended
by Lender for such purposes shall become indebtedness of Borrower to Lender
secured by the Instrument. Unless Lender and Borrower agree in writing to other
terms of payment, such amounts shall be payable upon demand from Lender to
Borrower and shall bear interest from the date of disbursement at the Default
Rate of Interest stated in the Note.
The exercise or failure to exercise any of the above remedies shall not
in any way preclude or abridge the right of Lender to foreclose the Instrument
or to take any other legal or equitable action thereon. Lender shall have such
rights or privileges as aforesaid regardless of the value of the Mortgaged
Property given as security hereunder, and regardless of the solvency or
insolvency of any party bound for the payment of the Indebtedness or the other
sums hereby secured.
(e) Borrower hereby authorizes and directs the tenants under
the Leases to pay Rents to Lender upon written demand by Lender, without further
consent of Borrower, and the tenants may rely upon any written statement
delivered by Lender to the tenants. Any such payment to Lender shall constitute
payment to Borrower under the Leases.
(f) There shall be no merger of the leasehold estates created
by the Leases with the fee estate of the Property and Improvements without the
prior written consent of Lender.
18. SECURITY AGREEMENT. The Instrument is intended to be a security
agreement pursuant to the Uniform Commercial Code as enacted in the State of
Missouri (the "UCC") for any of the Mortgaged Property comprising personal
property and fixtures which may be subject to a security interest pursuant to
the UCC, and Borrower hereby grants to Lender a security interest in said
personal property and fixtures, whether said property is now existing or
hereafter acquired, together with replacements, replacement parts, additions,
repairs and accessories incorporated therein or affixed thereto and, if sold or
otherwise disposed of, the proceeds (including insurance proceeds) thereof.
Borrower agrees to execute and deliver to Lender UCC financing statements
covering said personal property and fixtures from time to time and in such form
as Lender may require to perfect or maintain the priority of Lender's security
interest with respect to said personal property and fixtures. Borrower shall not
create or suffer to be created any other security interest in said personal
property and fixtures, including replacements thereof and additions thereto.
Upon the occurrence of any Event of Default as set forth in Section 19 hereof,
Lender shall have the remedies of a secured party under the UCC and, at Lender's
option, may also invoke the remedies provided in Section 19 hereof with respect
to such property.
19. DEFAULT. The term "Event of Default" shall have the same meaning as
set forth in the Loan Agreement, which meaning is incorporated by this reference
herein.
Upon the occurrence of any such Event of Default beyond any applicable
cure period, at the option of Lender, without notice or demand, the same being
hereby expressly waived, the entire amount shall become immediately due and
payable, and, in addition to any other right or remedy which Lender may now or
hereafter have at law, in equity, or under the Loan Documents, Lender and
Trustee shall have the right and power: (a) to foreclose upon the Instrument and
the lien hereof; (b) to sell the Mortgaged Property according to law; and (c) to
enter upon and take possession of the Mortgaged Property and/or have a receiver
appointed therefor as set forth in Section 17 hereof.
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20. NO WAIVER. The failure of Lender to exercise any option to declare
the maturity of the principal debt or any other sums hereby secured under any
provision of any of the Loan Documents, or to forbear from exercising any right
or remedy available to Lender under any provision of any of the other Loan
Documents, shall not be deemed a waiver of the right to exercise such option,
right or remedy or declare such maturity as to such past, continuing or
subsequent violation of any of the covenants and agreements of the Loan
Documents. Acceptance by Lender of partial payments shall not constitute a
waiver of any Event of Default. From time to time, Lender may, at Lender's
option, without giving notice to or obtaining the consent of Borrower,
Borrower's successors or assigns, any junior lienholder or any of the
Guarantors, without liability on Lender's part and notwithstanding Borrower's
breach of any covenant or agreement of Borrower in the Instrument, extend the
time for payment of the Indebtedness, or any part thereof, reduce the payments
thereon, release anyone liable on any of said Indebtedness, accept a renewal
note or notes therefor, release from the lien of the Instrument any part of the
Mortgaged Property, take or release other or additional security, reconvey any
part of the Mortgaged Property, consent to any map or plan of the Mortgaged
Property, consent to the granting of any easement, join in any extension or
subordination agreement, or agree in writing with Borrower to modify the rate of
interest or period of amortization of the Note or to change the amount of the
monthly installments payable thereunder. Any actions taken by Lender pursuant to
the terms of this Section 20 shall not affect the obligation of Borrower or
Borrower's successors or assigns to pay the sums secured by the Instrument and
to observe the covenants of Borrower contained herein, shall not affect the
guaranty of any of the Guarantors, and shall not affect the lien or priority of
lien of the Instrument on the Mortgaged Property. Borrower shall pay Lender a
reasonable service charge, together with such title insurance premiums and
attorney's fees as may be incurred at Lender's option for any such action if
taken at Borrower's request.
21. PARCELS; WAIVER OF MARSHALLING. In the event of foreclosure of the
Instrument, the Mortgaged Property may be sold in one or more parcels or as an
entirety as Lender may elect.
Notwithstanding the existence of any other security interests in the
Mortgaged Property held by Lender or by any other party, Lender shall have the
right to determine the order in which any or all of the Mortgaged Property shall
be subjected to the remedies provided herein. Lender shall have the right to
determine the order in which any or all portions of the Indebtedness are
satisfied from the proceeds realized upon the exercise of the remedies provided
herein. Borrower, any party who becomes liable for Borrower's obligations and
covenants under the Instrument, and any party who now or hereafter acquires a
security interest in the Mortgaged Property, or any portion thereof, hereby
waives any and all right to require the marshalling of assets in connection with
the exercise of any of the remedies permitted by applicable law or provided
herein.
22. COSTS OF COLLECTION. Borrower hereby agrees to pay to Lender all
costs of foreclosing the Instrument, and all costs of enforcing, collecting and
securing, and of attempting to enforce, collect and secure, the Note, including,
without limitation, reasonable attorneys' fees, appraisers' fees, court costs,
notice charges and title insurance charges, whether such attempt be made by
suit, in bankruptcy, or otherwise, and such costs and any other sums due Lender
under the Loan Documents may be included in any judgment or decree rendered.
23. RENT ROLL AND FINANCIAL STATEMENTS. Borrower shall maintain full
and correct books and records open to Lender's inspection, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
24. HAZARDOUS SUBSTANCES. (a) Borrower hereby covenants and agrees with
Lender that the following terms shall have the following meanings:
(i) "Environmental Laws" mean all federal, state and
local laws, statutes, ordinances and codes relating to the use, storage,
treatment, generation, transportation, processing, handling, production or
disposal of any Hazardous Substance and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives with respect
thereto.
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(ii) "Hazardous Substance" means, without limitation, any
flammable explosives, radioactive materials, asbestos, urea formaldehyde foam
insulation, polychlorinated biphenyls, petroleum and petroleum based products,
methane, hazardous materials, hazardous wastes, hazardous or toxic substances or
related materials, as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et
seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C.
Sections 1801, et seq.), the Resource Conservation and Recovery Act, as amended
(42 U.S.C. Sections 6901, et seq.), the Toxic Substances Control Act, as amended
(15 U.S.C. Sections 2601, et seq.), or any other applicable Environmental Law.
(iii) "Indemnitee" means Lender, and all subsequent
holders of the Instrument, their respective successors and assigns, their
respective officers, directors, employees, agents, representatives, contractors
and subcontractors and any subsequent owner of the Property and Improvements who
acquires title thereto from or through Lender.
(iv) "Release" has the same meaning as given to that
term in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, et seq.) and the regulations
promulgated thereunder.
(b) Borrower represents and warrants to Lender that, to its knowledge
after due investigation: (i) the Property and Improvements are not being or have
not been used for the storage, treatment, generation, transportation,
processing, handling, production or disposal of any Hazardous Substance in
violation of any Environmental Laws; (ii) the Property and Improvements do not
contain any Hazardous Substances in violation of any Environmental Laws; (iii)
there has been no Release of any Hazardous Substance on, at or from the Property
and Improvements or any property adjacent to or within the immediate vicinity of
the Property and Improvements and Borrower has not received any form of notice
or inquiry with regard to such a Release or threat of such a Release; (iv) no
event has occurred with respect to the Property and Improvements which, with the
passage of time or the giving of notice, or both, would constitute a violation
of any applicable Environmental Law; (v) there are no agreements or orders or
directives of any federal, state or local governmental agency or authority
relating to the Property and Improvements which require any work, repair,
construction, containment, clean up, investigations, studies, removal or other
remedial action with respect to the Property and Improvements; and (vi) there
are no actions, suits, claims or proceedings, pending or threatened, which seek
any remedy, that arise out of the condition, ownership, use, operation, sale,
transfer or conveyance of the Property and Improvements and (1) a violation or
alleged violation of any applicable Environmental Law, (2) the presence of any
Hazardous Substance or a Release of any Hazardous Substance or the threat of
such a Release, or (3) human exposure to any Hazardous Substance.
(c) Borrower covenants and agrees with Lender as follows:
(i) Borrower shall keep, and shall cause all operators,
tenants, subtenants, licensees and occupants of the Property and Improvements to
keep, the Property and Improvements free of all Hazardous Substances, except for
Hazardous Substances stored, treated, generated, transported, processed,
handled, produced or disposed of in the normal operation of the Property and
Improvements as a shopping center in accordance with all Environmental Laws.
(ii) Borrower shall comply with, and shall cause all
operators, tenants, subtenants, licensee and occupants of the Property and
Improvements to comply with, all Environmental Laws.
(iii) Borrower shall promptly provide Lender with a copy
of all notifications which it gives or receives with respect to any past or
present Release of any Hazardous Substance or the threat of such a Release on,
at or from the Property and Improvements or any property adjacent to or within
the immediate vicinity of the Property and Improvements.
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(iv) Borrower shall undertake and complete all
investigations, studies, sampling and testing for Hazardous Substances
reasonably required by Lender and, in accordance with all Environmental Laws,
all removal and other remedial actions necessary to contain, remove and clean up
all Hazardous Substances that are determined to be present at the Property and
Improvements in violation of any Environmental Laws.
(v) Lender shall have the right, but not the obligation,
to cure any violation by Borrower of the Environmental Laws and Lender's cost
and expense to so cure shall be secured by the Instrument.
(d) Borrower covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Indemnitee
arising out of the condition, ownership, use, operation, sale, transfer or
conveyance of the Property and Improvements and (i) the storage, treatment
generation, transportation, processing, handling, production or disposal of any
Hazardous Substance, (ii) the presence of any Hazardous Substance or a Release
of any Hazardous Substance or the threat of such a Release, (iii) human exposure
to any Hazardous Substance, (iv) a violation of any Environmental Law, or (v) a
material misrepresentation or inaccuracy in any representation or warranty or
material breach of or failure to perform any covenant made by Borrower herein
(collectively, the "Indemnified Matters").
The liability of Borrower to Indemnitee hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (i) the repayment of all
sums and the satisfaction of all obligations of Borrower under the Note, the
Loan Agreement, the Instrument or other Loan Documents, (ii) the foreclosure of
the Instrument or the acceptance of a deed in lieu thereof, (iii) any amendment
or modification of the Loan Documents by or for the benefit of Borrower or any
subsequent owner of the Property and Improvements, (iv) any extensions of time
for payment or performance required by any of the Loan Documents, (v) the
release or discharge of the Instrument or of Borrower, any of the Guarantors or
any other person from the performance or observance of any of the agreements,
covenants, terms or conditions contained in any of the Loan Documents whether by
Lender, by operation of law or otherwise, (vi) the invalidity or
unenforceability of any of the terms or provisions of the Loan Documents, (vii)
any exculpatory provision contained in any of the Loan Documents limiting Lender
recourse to property encumbered by the Instrument or to any other security or
limiting Lender rights to a deficiency judgment against Borrower, (viii) any
applicable statute of limitations, (ix) the sale or assignment of the Note or
the Instrument, (x) the sale, transfer or conveyance of all or part of the
Property and Improvements, (xi) the dissolution or liquidation of Borrower,
(xii) the death or legal incapacity of Borrower, (xiii) the release or
discharge, in whole or in part, of Borrower in any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or similar
proceeding, or (xiv) any other circumstances which might otherwise constitute a
legal or equitable release or discharge, in whole or in part, of Borrower under
the Note or the Instrument.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Borrower may have to Lender at common law.
25. SUBORDINATE MORTGAGES. Borrower shall not, without the prior
written consent of Lender, which consent may be withheld in Lender's sole
discretion, grant or permit to be created any lien, security interest or other
encumbrance, other than Permitted Encumbrances, covering any of the Mortgaged
Property (each a "Subordinate Mortgage"). If Lender consents to a Subordinate
Mortgage or if the foregoing prohibition is determined by a court of competent
jurisdiction to be unenforceable, any such Subordinate Mortgage shall contain
express covenants to the effect that:
(a) the lien of the Subordinate Mortgage and all instruments
incorporated therein by reference is and always shall be unconditionally
subordinate to the lien of the Instrument and to
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all advances made pursuant to, and sums secured by, the Instrument, and the
Instrument and all instruments incorporated herein by reference may be renewed,
extended, restructured, modified, increased or reinstated at any time without
giving notice to or obtaining the consent of the Subordinate Mortgage holder;
(b) if any action shall be instituted to foreclose or
otherwise enforce the Subordinate Mortgage, no tenant of any of the Leases shall
be named as a party defendant and no action shall be taken which would terminate
any occupancy or tenancy without the prior written consent of Lender;
(c) in the event of any conflict between the covenants and
agreements of the Instrument and the Subordinate Mortgage, the covenants and
agreements of the Instrument shall prevail;
(d) Rents, if collected by or for the holder of the
Subordinate Mortgage, shall be applied first to the payment of the Indebtedness
and expenses incurred in the ownership, operation and maintenance of the
Mortgaged Property in such order as Lender may determine, prior to being applied
to any indebtedness secured by the Subordinate Mortgage;
(e) a copy of any notice of default under the Subordinate
Mortgage and written notice and opportunity to cure of not less than thirty (30)
days prior to the commencement of any action to foreclose or otherwise enforce
the Subordinate Mortgage shall be given to Lender; and
(f) the holder of the Subordinate Mortgage shall acknowledge
the existence of the Indebtedness secured hereby and further acknowledge that
the lien of the Instrument shall at all times be and remain superior and prior
to the lien of the Subordinate Mortgage to the extent of the entire Indebtedness
secured hereby, notwithstanding any change in the variable rate of interest
being charged under the Note.
26. BUSINESS PURPOSE. Borrower covenants that the proceeds of the loan
and secured by this Instrument will be used for business purposes as specified
in Section 408.015(2) of the Revised Statutes of Missouri, as amended, and that
the principal obligation secured hereby constitutes a business loan which comes
within the purview of said Section.
27. NOTICE. All communications (including bank wire, telex, facsimile
transmission or similar writing) to be given hereunder shall be in writing and
shall be given as set forth below:
(1) If to Borrower, at the following address, or at such other
address as may have been furnished in writing to the Borrower
by the Lender:
Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000 Ext. 330
Facsimile: (000) 000-0000
(2) If to Lender, at the following address, or at such other
address as may have been furnished in writing to the Borrower
by the Lender:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Each such notice or communication shall be effective (i) if given by
telecopy or facsimile, when such telecopy or facsimile is transmitted to the
facsimile number specified in this Section, (ii) if given by mail, seventy-two
(72) hours after such communication is deposited in the mail with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered at the address specified in this Section.
28. MISCELLANEOUS. The covenants herein contained shall bind, and the
benefits and advantages shall inure to, the respective successors and assigns of
the parties hereto. Whenever used, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all genders.
The captions used herein are for references only and shall not be deemed a part
of this Instrument. If any provision of the Instrument is illegal, or hereafter
rendered illegal, or is for any other reason void, voidable or otherwise
unenforceable, or hereafter rendered void, voidable or otherwise unenforceable,
the remainder of the Instrument shall not be affected thereby, but shall be
construed as if it does not contain such provision. Each right and remedy
provided in the Instrument is distinct and cumulative to all other rights or
remedies under the Instrument or afforded by law or equity, and may be exercised
concurrently, independently or successively, in any order whatsoever. The
Instrument shall be governed by and construed under the laws of the State of
Missouri.
THE PARTIES ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT
MAY ARISE BETWEEN THE PARTIES, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF
WHICH THIS INSTRUMENT ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY
JURY. ACCORDINGLY, EACH OF THE PARTIES TO THIS INSTRUMENT HEREBY WAIVES ANY
RIGHT TO TRIAL BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO
THIS INSTRUMENT.
29. LOAN ADVANCES. This Instrument shall secure unpaid balances of loan
advances which Lender is obligated to make, either before or after or both
before and after, this Instrument is delivered to the Recorder for record
pursuant to the provisions of the Loan Agreement and unreimbursed payments under
letters of credit which Lender is obligated to issue both before and after this
Instrument is delivered to the Recorder for record. The maximum amount of the
unpaid principal balance of said obligatory loan advances and unreimbursed
payments under letters of credit, in the aggregate and exclusive of interest
accrued thereon, which may be outstanding at any time is $24,375,000.00.
30. SUBSTITUTE TRUSTEE. Lender's option, may from time to time remove
Trustee and appoint a successor trustee to any Trustee appointed hereunder by an
instrument recorded in the county in which this Deed of Trust is recorded.
Without conveyance of the Property, the successor trustee shall succeed to all
the title, power and duties conferred upon the Trustee herein and by applicable
law.
IN WITNESS WHEREOF, Borrower has caused the Instrument to be executed
this 17th day of June, 1999.
Signed and acknowledged Borrower:
in the presence of: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
/s/ Xxxxxx Xxxxxx By: Glimcher Properties Corporation,
---------------------------------- a Delaware corporation,
Witness___________________________ its sole General Partner
(printed)
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Cornelly
---------------------------------- --------------------------------------
Witness___________________________ Xxxxxxx X. Xxxxxxx, Executive
(printed) Vice President/COO/CFO
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THE CORPORATION HAS NO SEAL
STATE OF OHIO,
):ss
COUNTY OF FRANKLIN,
On this 17th day of June, 1999, before me, appeared Xxxxxxx X. Xxxxxxx
to me personally known, who being by me duly sworn, did say that he is the
Executive Vice President/COO/CFO of Glimcher Properties Corporation, a Delaware
corporation, the General Partner of GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership, and that said instrument was signed and sealed on
behalf of said corporation by authority of its Board of Directors as the General
Partner of said limited partnership, and said Xxxxxxx X. Xxxxxxx acknowledged
said instrument to be the free act and deed of said corporation as the General
Partner of said limited partnership and to be the free act and deed of said
limited partnership. The corporation has no seal.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in Columbus, Ohio, the day and year first above written.
Xxxx X. Xxxxxx
---------------------------------
Notary Public
This instrument prepared by: expires Nov. 1, 2002
Xxxxxxxx Xxxx & Xxxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
(000) 000-0000
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EXHIBIT A
LEGAL DESCRIPTION
A tract of land lying in the West One-Half (W 1/2) of the Northwest Quarter (NW
1/4), and part of Lot One (1), in Xxxxxxx'x Subdivision in the East Half (E 1/2)
of the Northwest Quarter (NW 1/4), Section Thirty (30), Township Fifty-Seven
(57) North, Range Four (4) West, in the City of Xxxxxxxx, Xxxxxx County,
Missouri, and being more fully described as follows: From a point marking the
Northeast corner of the West One-Half (W 1/2) of the Northwest Quarter (NW 1/4)
of Section Thirty (30); thence run South along the East line of the West
One-Half (W 1/2) of the Northwest Quarter (NW 1/4), 541.2 feet to an iron pipe
on the South right of way line of West Xxx Road; thence North 85(Degree) and 39'
West along said South line of West Xxx Road; 31.34 feet to an iron pipe on the
South line of said West Xxx Road, and said iron pipe marking the true point of
beginning; thence South 02(Degree) and 47' East along the West side of West Xxx
Creek, 51.9 feet to an iron pipe; thence South 18(Degree) and 37' East along the
West side of said West Xxx Creek, 90.2 feet to an iron pipe; thence South
12(Degree) and 17' East along the West side of said West Xxx Creek, 215.20 feet
to an iron pipe; thence South 57(Degree) and 13' East along the West side of
said West Xxx Creek, 63.35 feet to a right of way maker on the Westerly right xx
xxx xxxx xx X.X. Xxxxx 00; thence South 34(Degree) and 03' East along the
Westerly right of way line of said X.X. Xxxxx 00 a distance of 75.52 feet to an
iron pipe; thence South 33(Degree) and 57' East along the Westerly right of way
line of said X.X. Xxxxx 00, a distance of 16.70 feet to a right of way marker;
thence South 03(Degree) and 51' East along the Westerly right of way line of
said X.X. Xxxxx 00, a distance of 273.20 feet to an iron pipe; thence South
89(Degree) and 44' West, 169.16 feet to an iron pipe; thence South 00(Degree)
and 00' West, 150.00 feet to a point in the center of Minnow Branch; thence
North 54(Degree) and 00' West along the centerline of said Minnow Branch, 190.00
feet to a point; thence North 58(Degree) and 00' West along the centerline of
said Minnow Branch, 258.00 feet to a point on the West property line; thence
North 00(Degree) and 00' East, 659.30 feet to an iron pipe on the South line of
West Xxx Road; thence South 85(Degree) and 39' East along the South line of West
Xxx Road, 342.88 feet to the point of beginning. With the above described
subject to an easement heretofore conveyed to the City of Hannibal for utility
purposes.
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EXHIBIT B
PERMITTED EXCEPTIONS
1. Taxes for the year 1999 and subsequent years, which are not yet due and
payable.
2. Easement for egress and ingress over the roadway in the North 60 feet
of the East 52.6 feet of the premises in question, according to the
General Warranty Deed retained by Xxxxxxx X. Xxxx and Xxxx X. Xxxx, his
wife, dated September 19, 1966 and recorded September 24, 1966 in Book
526, Page 1834, in the Xxxxxx County Recorder's Office, Missouri, and
as shown on Survey by Meco Engineering Company, Inc., dated December 5,
1988.
3. Limited access to highway U.S. Route 61 from the premises in question
according to the Indenture, dated December 13, 1963, and recorded
January 3, 1965 in Book 510, Page 225, amended by Agreement for
Shifting State Highway Entrance, recorded January 7, 1975 in Book 535,
Page 37; Agreement for Shifting State Highway Entrance between Hannibal
Development Company and Xxxxx X. Paris and Virginia Xxxxxx Paris,
husband and wife, and the State of Missouri, recorded March 7, 1975 in
Book 535, Page 379; and Agreement for Shifting State Highway Entrance
between Hannibal Development Company and The State of Missouri,
recorded July 17, 1975 in Book 535, Page 1794, all in the Xxxxxx County
Recorder's Office, Missouri, and as shown on Survey by Meco Engineering
Company, Inc., dated December 5, 1988.
4. Sewer Easement granted to the City of Hannibal over a portion of the
premises in question, dated February 19, 1970 and recorded February 19,
1970, in Book 530, Pages 291 and 292; and Easement dated March 23, 1970
and recorded March 24, 1970 in Book 530, Page 465, both in the Xxxxxx
County Recorder's Office, Missouri, and as shown on Survey by Meco
Engineering Company, Inc., dated December 5, 1988.
5. Power Line Easement granted to the City of Hannibal over a portion of
the premises in question, dated October 14, 1976 and recorded in Book
536, Page 3338, in the Xxxxxx County Recorder's Office, Missouri, and
as shown on Survey by Meco Engineering Company, Inc., dated December 5,
1988.
6. Tenants as tenants only under any and all unrecorded leases.
7. Terms and provisions of that certain Short Form Lease by and between
Xxxxxxxx-Xxxxxxx Limited Partnership, as "Landlord" and AutoZone, Inc.,
a Nevada corporation, as "Tenant", dated August 23, 1993 and recorded
October 4, 1993 in Book 553, Page 3802, in the Xxxxxx County Recorder's
Office, Missouri.
Terms and provisions of that certain Amended Short Form Lease by and
between Xxxxxxxx- Xxxxxxx Limited Partnership, as "Landlord" and
AutoZone, Inc., a Nevada corporation, as "Tenant" dated January 6, 1994
and recorded March 2, 1994 in Book 554, Page 803, in the Xxxxxx County
Recorder's Office, Missouri.
