EXHIBIT 10.174
DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, with offices at 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000 ("Borrower"), in consideration of the payments to
Borrower which BANK ONE, NA, a national banking association, having an office
and place of business at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000-0000
("Lender"), has made contemporaneously herewith or may hereafter make, does
hereby grant, bargain, sell and convey unto Xxxxxx X. Xxxx, resident of Xxxx
County, Tennessee ("Trustee"), whose address is 1500 First Tennessee Plaza, 000
Xxxxx Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, his successors and assigns
forever, with the power of sale, certain real property situated in the State of
Tennessee, County of Xxxxxxx, and City of Morristown, being more fully described
in Exhibit "A" hereto and by this reference made a part hereof (the "Property"),
together with the following, to the extent 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, deposit accounts, funds,
documents, contract rights, accounts, commitments, construction agreements,
architectural agreements, payment intangibles, promissory notes, investment
property, letter of credit rights, supporting obligations, general intangibles
(including, without limitation, trademarks, trade names and symbols), tax
credits, instruments, notes and chattel paper arising from or by virtue of any
transactions related to the Property, the Improvements or the Personal Property
or relating directly or indirectly to the ownership, occupancy, use, operation,
and maintenance of the Property, Personal Property, and Improvements or the
construction of the Improvements; (h) all permits, licenses, franchises,
certificates, and other rights and privileges obtained in connection with the
Property, the Improvements or the Personal Property; (i) all proceeds arising
from or by virtue of the sale, lease or other disposition of the Property, the
Improvements, the Personal Property or any portion thereof or interest therein;
(j) all proceeds (including, without limitation, premium refunds) of each policy
of insurance relating to the Property, the Improvements or the Personal
Property; (k) all proceeds from the taking of any of the Property, the
Improvements, the Personal Property or any rights appurtenant thereto by right
of eminent domain or by private or other purchase in lieu thereof (including,
without limitation, change of grade of streets, curb cuts or other rights of
access), for any public or quasi public use under any law; (l) all right, title
and interest of Borrower in and to all streets, roads, public places, easements
and rights-of-way, existing or proposed, public or private, adjacent to or used
in connection with, belonging or pertaining to the Property; (m) all of the
leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (n) all consumer goods located in, on or about the
Property or the Improvements or used in connection with the use or operation
thereof; (o) all rights, hereditaments and appurtenances pertaining to the
foregoing; and (p) other interests of every kind or nature 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").
PROPERTY ADDRESS: 1611-1701 X. Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
MAIL TAX BILLS TO: Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
MAXIMUM PRINCIPAL INDEBTEDNESS FOR TENNESSEE RECORDING PURPOSES IS
$15,190,000.
THIS DEED OF TRUST SECURES OBLIGATORY ADVANCES AS DEFINED BY TENNESSEE LAW AND
THE ADVANCES MADE HEREUNDER ARE SOLELY FOR COMMERCIAL PURPOSES.
TO HAVE AND TO HOLD the Mortgaged Property, together with the rights,
privileges and appurtenances thereto belonging, unto Lender and its successors
and assigns forever, and Borrower hereby binds itself and its successors and
assigns to warrant and forever defend the Mortgaged Property unto Lender and its
successors and assigns, against the claim or claims of all persons claiming or
to claim the same or any part thereof, except as to those matters described in
Exhibit "B" attached hereto and by this reference made a part hereof (the
"Permitted Encumbrances").
This Deed of Trust, Assignment of Rents and Security Agreement (the
"Deed of Trust") is given for the purpose of securing loan advances which Lender
is obligated to make to Borrower pursuant to the terms and conditions of the
Loan Agreement, of even date herewith, by and between Borrower and Lender (the
"Loan Agreement"), which Loan Agreement is by this reference made a part hereof.
The parties hereto intend that, in addition to any other indebtedness
or obligations secured hereby, the Deed of Trust shall secure unpaid balances of
loan advances made after the Deed of Trust is delivered to the Register of Deeds
for record. Such loan advances are and will be evidenced by a note or notes of
Borrower. The maximum amount of unpaid loan indebtedness, which shall consist of
unpaid balances of loan advances made either before or after, or both before and
after, the Deed of Trust is delivered to the Register of Deeds for record,
exclusive of
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interest thereon and of advances for taxes, assessments, insurance premiums and
costs incurred for protection of the Mortgaged Property, which may be
outstanding at any time is Fifteen Million One Hundred Ninety Thousand Dollars
($15,190,000.00).
THE DEED OF TRUST IS GIVEN TO SECURE: the full and prompt payment,
whether at stated maturity, accelerated maturity or otherwise, of any and all
indebtedness, whether fixed or contingent (collectively the "Indebtedness") and
the complete, faithful and punctual performance of any and all other obligations
(collectively the "Obligations") of Borrower to Lender under the terms and
conditions of (a) the Loan Agreement, (b) the Mortgage Note, of even date
herewith, made by Borrower to Lender, in the principal amount of Fifteen Million
One Hundred Ninety Thousand Dollars ($15,190,000.00) payable not later than
November 1, 2004, unless extended by its terms to November 1, 2005, and any and
all renewals, amendments, modifications, reductions and extensions thereof and
substitutions therefor (collectively the "Note"); (c) the Deed of Trust; and (d)
any other instrument, document, certificate or affidavit heretofore, now or
hereafter given by Borrower evidencing or securing all or any part of the
foregoing (the same together with the Loan Agreement, the Note and the Deed of
Trust, collectively the "Loan Documents").
In addition to any other debt or obligation secured hereby, this Deed
of Trust shall also secure unpaid balances of advances heretofore and hereafter
made with respect to the Mortgaged Property, for the payment of taxes,
assessments, insurance premiums or costs incurred for the protection of the
Mortgaged Property.
Borrower, for itself and its successors and assigns, hereby covenants
with Lender, its successors and assigns, that:
1. Title. Borrower represents that it has good and marketable
title in fee simple to the Mortgaged Property, free and clear from all
conditions, restrictions, easements, liens, encumbrances and adverse claims
whatsoever, except the Permitted Encumbrances, and Borrower will forever warrant
and defend the same with the appurtenances above mentioned, unto Lender, its
successors and assigns, against the lawful claims of all persons whomsoever,
except as noted above. The Mortgaged Property constitutes the entirety of one or
more complete tax parcels. Borrower has good and marketable title to the
Personal Property, free and clear of any liens, charges, encumbrances, security
interests and adverse claims whatsoever. 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 shall furnish to Lender evidence
of the title of Borrower to the Mortgaged Property at the execution and delivery
hereof and from time to time hereafter as may be deemed necessary by and
satisfactory to Lender, and Borrower shall promptly pay the cost of said title
evidence when due and payable.
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Borrower, upon the request of Lender, shall execute, acknowledge,
deliver, file and record such further instruments and do such further acts as
may be necessary, desirable or proper to carry out the purposes of the Loan
Documents and to subject to the liens and security interests created thereby any
property intended by the terms thereof to be covered thereby, including
specifically, but without limitation, any renewals, additions, substitutions,
replacements, improvements or appurtenances to the Mortgaged Property.
3. Subrogation for Further Security. Lender shall be subrogated
for its further security to the lien, although released of record, of any and
all encumbrances paid with any advance of Indebtedness; provided, however, that
the terms and provisions hereof shall govern the rights and remedies of Lender
and shall supersede the terms, provisions, rights, and remedies under the lien
or liens to which Lender is subrogated.
4. Status Quo. Except as expressly permitted in any of the Loan
Documents 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) contract for any of the same; (c) 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; (d) subdivide,
resubdivide or submit to the condominium form of ownership all or any portion of
the Mortgaged Property, or any portion thereof; or (e) 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 Deed of Trust
and any right of set-off, counterclaim or other defense which Borrower alleges
to exist against such sums and obligations secured by the Deed of Trust.
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 Deed of Trust or the Indebtedness, by any duly or legally constituted
public authority, municipality, township, county or state or the United States,
and exhibit the evidence of the payment thereof to Lender upon Lender's request;
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; provided
further, 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 furnish to Lender an indemnity
bond secured by a deposit in cash or other security acceptable to Lender, in the
amount
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of the tax or assessment being contested by Borrower, plus a reasonable
additional sum to pay all costs, interest and penalties which may be imposed or
incurred in connection therewith.
In the event that one or more of the Impositions on Lender's interest
in the Mortgaged Property, the Deed of Trust or the Indebtedness cannot be
lawfully paid by Borrower, then Borrower shall repay the Indebtedness in full
without penalty within sixty (60) days after demand therefor by Lender.
8. Insurance and Indemnification. Borrower shall provide,
maintain and keep in force at all times the following policies of insurance:
(a) Insurance against loss or damage to the Improvements and the
Personal Property caused by fire and any of the risks covered by insurance of
the type now known as "coverage against all risks of physical loss", in an
amount equal to one hundred percent (100%) of the replacement cost of the
Improvements and the Personal Property and sufficient to prevent Borrower and
Lender from becoming co-insurers, and otherwise with terms and conditions
acceptable to Lender;
(b) Comprehensive broad form general liability insurance, insuring
against any and all claims for personal injury, death or property damage
occurring on, in or about the Property, the Improvements and the adjoining
streets, sidewalks and passageways, subject to a combined single limit of not
less than Two Million Dollars ($2,000,000.00) for personal injury, death or
property damage arising out of any one accident, 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) 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 terms and conditions acceptable
to Lender;
(f) If the Improvements are located in a federally designated
flood hazard area, a National Flood Insurance Association standard flood
insurance policy, plus insurance from a private insurance carrier if necessary,
for the duration of the Loan in the amount of the full insurable value of the
Improvements and Personal Property; and
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(g) Such other insurance, including, without limitation, errors
and omissions insurance with respect to the contractors, architects and
engineers, and earthquake insurance, if necessary, and in such amounts, 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 mortgagee. 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 Deed of Trust 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 right of set-off, counterclaim or deductions against
Borrower is 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 acceptable to Lender, in Lender's reasonable judgment. At least thirty
(30) days prior to the expiration date of any such policy or upon request,
Borrower shall promptly furnish to Lender a certificate of such insurance on
Accord Forms 25 and 27, or other forms acceptable to Lender, together with
copies of all renewal notices and all receipts of paid premiums.
If Lender is made a party defendant to any litigation concerning the
Loan Documents or the Mortgaged Property or any part thereof or interest
therein, or the occupancy thereof by Borrower, then Borrower shall indemnify,
defend and hold Lender harmless from all liability by reason of said litigation,
including reasonable attorneys' fees and expenses incurred by Lender in any such
litigation, whether or not any such litigation is prosecuted to judgment.
Borrower waives any and all right to claim or recover against Lender, its
officers, employees, agents and representatives, for loss of or damage to
Borrower, the Mortgaged Property, other property of Borrower or the property of
others under control of Borrower from any cause insured against or required to
be insured against by the provisions of the Deed of Trust.
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 or binders evidencing
such insurance.
Nothing contained in this Section 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 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Deed of Trust; provided, however, that any such policy of blanket insurance (i)
shall specify therein the amount of the total insurance allocated to the
Improvements and Personal
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Property, which amount shall be not less than the amount otherwise required to
be carried under the Deed of Trust; (ii) shall not contain any clause which
would result in the insured thereunder becoming a co-insurer of any loss with
the insurer under such policy; and (iii) shall in all other respects comply with
the provisions of the Deed of Trust.
Notwithstanding anything to the contrary contained in this Section, in
the event that the proceeds (the "Proceeds") payable with respect to any
casualty shall be less than or equal to $250,000.00, then Borrower shall have
the right to settle the insurance claim, and the right to retain the Proceeds,
so long as Borrower shall restore the Mortgaged Property to its condition prior
to such casualty, in a good and workmanlike manner, in compliance with any
applicable legal requirements and the requirements of any lease, free and clear
of liens, and shall remit to Lender promptly upon completion of such restoration
any remaining balance of such Proceeds not used in the restoration of the
Mortgaged Property for application to the principal of the Indebtedness.
If all of the following apply: (i) the Proceeds have been deposited
with Lender; (ii) in the case of insurance proceeds, the insurance carrier has
not denied liability to a named insured; (iii) Lender shall have been furnished
with an estimate of the cost of restoration accompanied by an architect's
certificate as to such costs and appropriate final plans and specifications for
reconstruction of the Improvements, all of which shall be approved by Lender;
(iv) the Improvements so restored or rebuilt shall be of at least equal value
and substantially the same character as prior to the damage or destruction and
appropriate for the purposes for which they were originally erected; (v)
Borrower shall have furnished Lender with evidence satisfactory to Lender that
all Improvements so restored and/or reconstructed and their use fully comply
with all zoning and building laws, ordinances and regulations, and with all
other applicable federal, state, and municipal laws and requirements; (vi) to
the extent that the estimated cost of restoration exceeds the Proceeds
available, Borrower shall have furnished a satisfactory bond of completion or
deposited with Lender such sums as may be necessary to pay such excess costs;
(vii) Lender shall have received notice within thirty (30) days after the fire
or other hazard or of the condemnation proceedings specifying the date of such
fire or other hazard or the date the notice of condemnation proceedings was
received and the request to Lender to make said Proceeds available to Borrower;
(viii) the aggregate monthly net income under all Leases, together with the
proceeds of any business interruption insurance with respect thereto, shall be
sufficient to pay during the period of reconstruction the monthly installments
required to be paid upon the Indebtedness as well as all impound payments which
may be required for taxes and insurance, and following reconstruction shall be
sufficient to pay the aforesaid sums as well as all other operating costs and
charges of the Mortgaged Property; (ix) Borrower shall not then be in default
under the Loan Documents, and (x) Lender determines in its sole and absolute
discretion that such restoration can be completed at least three (3) months
prior to the maturity date of the Note; then the Proceeds, less the actual
costs, fees and expenses, if any, incurred in connection with adjustment of loss
and Lender's administrative expenses relating to such loss and the disbursement
of the Proceeds shall be applied by Lender to the payment of all the costs of
the aforesaid restoration, repairs, replacement, rebuilding or alterations,
including the cost of temporary repairs or for the protection of property
pending the completion of permanent restoration, repairs, replacements,
rebuilding or alterations (all of which temporary repairs,
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protection of property and permanent restoration, repairs, replacement,
rebuilding or alterations are hereinafter collective referred to as the
"Restoration"), and shall be paid out from time to time as such Restoration
progresses upon the written request of Borrower if the work for which payment is
requested has been done in a good and workmanlike manner and substantially in
accordance with the plans and specifications therefor. Each request shall be
accompanied by the following:
(a) A certificate signed by Borrower, dated not more than thirty
(30) days prior to such request, setting forth the following:
(i) That the sum then requested either has been paid, or
is justly due to contractors, subcontractors, materialmen, engineers,
architects or other persons who have rendered services or furnished
materials for the restoration therein specified or have paid for the
same, the names and addresses of such persons, a brief description of
such services and materials, the several amounts so paid or due to each
of said persons in respect thereof (together with supporting statements
and invoices for the same), that no part of such expenditures has been
or is being made the basis of any previous or then pending request for
the withdrawal of Proceeds or has been made out of any of the Proceeds
received by Borrower, and that the sum then requested does not exceed
the value of the services and materials described in the certificate.
(ii) That, except for the amount, if any, stated pursuant
to the foregoing subclause (a)(i) in such certificate to be due for
services or materials, there is no outstanding indebtedness known to
the persons signing such certificate, after due inquiry, which is then
due for labor, wages, materials, supplies or services in connection
with such Restoration.
(iii) That the costs, as estimated by the persons signing
such certificate, of the Restoration required to be done subsequent to
the date of such certificate in order to complete and pay for the same,
do not exceed the Proceeds, plus any amount or security approved by
Lender and deposited by Borrower to defray such costs and remaining in
the hands of Lender after payment of the sum requested in such
certificate.
(b) A title insurance report or other evidence satisfactory to
Lender to the effect that there has not been filed with respect to the Mortgaged
Property, or any part thereof, any vendor's, contractor's, laborer's,
materialmen's, or other lien which has not been discharged of record or bonded.
(c) A certificate signed by the architect and/or engineer in
charge of the Restoration, who shall be selected by Borrower and approved in
writing by Lender, certifying to the facts set forth in subclause (i) above, and
that the Restoration is proceeding in accordance with the plans and
specifications approved by Lender and in accordance with all zoning, subdivision
and other governmental laws, ordinances, rules and regulations. Upon compliance
with the foregoing provisions, Lender shall, out of Proceeds (and the amount of
security approved by Lender, if any, deposited by Borrower to defray the costs
of the Restoration), pay or cause to be paid to
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Borrower or the persons named (pursuant to subclause (a)(i) above) in such
certificate the respective amounts stated therein to have been paid by Borrower
or to be due to them, as the case may be.
If the Proceeds at the time held by Lender, less the actual costs, fees
and expenses, if any, incurred in connection with the adjustment of the loss and
Lender's administrative expenses relating to such loss and the disbursement of
the Proceeds, shall be, in Lender's sole and absolute judgment, insufficient to
pay the entire cost of the Restoration, Borrower shall deposit with Lender any
such deficiency prior to disbursement of any additional portion of the Proceeds.
No payment made prior to the final completion of the Restoration shall
exceed ninety percent (90%) of the value of the work performed from time to
time, and at all times the undisbursed balance of said Proceeds remaining in the
hands of Lender shall be at least sufficient to pay for the cost of completion
of the Restoration free and clear of liens.
Final payment shall be made upon delivery of an architect's certificate
and a certification by one of Lender's appraisers as to completion in accordance
with the final plans and specifications and compliance with all zoning,
building, subdivision and other governmental laws, ordinances, rules, and
regulations, and either the presentation of effective lien waivers from all
contractors, subcontractors and materialmen, or the expiration of the period
provided under applicable law for the filing of mechanic's and materialmen's'
liens. Lender may at its option require an endorsement to Lender's policy of
title insurance insuring the continued priority of the lien of this Deed of
Trust as to all sums advanced hereunder, such endorsement to be in form and
substance satisfactory to Lender and paid for by Borrower.
Upon completion of the Restoration in a good and workmanlike manner in
accordance herewith, and provided that Lender has received satisfactory evidence
that the Restoration has been paid for in full and the Mortgaged Property is
free and clear of all liens, any balance of the Proceeds at the time held by
Lender (after reimbursement to Lender of all costs and expenses of Lender,
including administrative expenses, in connection with recovery of the same and
disbursement of such Proceeds for the Restoration), if any, shall be applied as
follows: (i) to the extent that such balance of the Proceeds is equal to or less
than the amount, if any, by which the value of the Mortgaged Property prior to
such damage or destruction exceeds the value of the Mortgaged Property after
such Restoration (for these purposes, the value of the Mortgaged Property shall
be determined by Lender in its discretion), then the portion of the balance of
the Proceeds equal to such excess amount shall be applied to the payment or
prepayment (without any prepayment premium) of the principal balance of the
Indebtedness in such order as Lender may determine, and any amounts so applied
shall reduce the Indebtedness pro tanto; and (ii) to the extent that the balance
of the Proceeds exceeds such excess amount, such portion of the balance of the
Proceeds shall be paid to Borrower.
Lender shall cause Proceeds held by it pursuant to this Section to be
maintained in one or more interest-bearing accounts in accordance with Lender's
customary practices for the payment of interest on account balances, including,
without limitation, minimum balance requirements.
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If the insurance proceeds are applied to the payment of the sums
secured by the Deed of Trust, any such application of proceeds shall not extend
or postpone the due dates of the monthly installments referred to in the Note or
change the amounts of such installments. If the Mortgaged Property is sold
pursuant to Section 19 hereof or if Lender acquires title to the Mortgaged
Property, Lender shall have all of the right, title and interest of Borrower in
and to any insurance policies and unearned premiums thereon and in and to the
proceeds resulting from any damage to the Mortgaged Property prior to such sale
or acquisition.
9. Escrow. Borrower, in order to more fully protect the security
of the Deed of Trust, does hereby covenant and agree that, if Borrower shall
fail to timely pay taxes, assessments or insurance premiums as provided above,
or if there shall occur any other Event of Default, as hereinafter defined, and
Lender does not 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 Deed of Trust, 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 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 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 Deed of Trust. To the extent that all the
provisions of this Section 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 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; Liens; Repair. Borrower shall neither commit nor permit
any waste on the Property, nor cause nor permit the same to become subject to
any superior or inferior lien or encumbrance, except as expressly permitted
herein. Borrower shall keep all Improvements now or hereafter erected on the
Property in good condition and repair. All Improvements hereafter erected shall
have been erected substantially in accordance with the plans and specifications
therefor, which shall be subject to Lender's prior approval except to the extent
such Improvements constitute the "build-out" of premises for tenants under
Leases or are not material.
11. Alterations. Borrower shall not remove, demolish or alter any
of the Improvements, now existing or hereafter constructed on the Property, or
any of the Personal
10
Property in or on the Property or Improvements, except when incident to the
replacement of any of the items of Personal Property with items of like kind and
value.
12. Advances Secured by Deed of Trust. 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 Deed of
Trust, 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 Deed of Trust was executed. Borrower
shall comply with the laws, ordinances, 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 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 at all reasonable times.
Lender shall, however, have no duty to make such inspections. Any inspection of
the Mortgaged Property by Lender shall be entirely for its benefit, and Borrower
shall in no way rely or claim reliance thereon.
15. Minerals. Without the prior written consent of Lender, there
shall be no drilling or exploring for, or extraction, removal, or production of
minerals from the surface or subsurface of the Property. The term "minerals" as
used herein shall include, without limitation, oil, gas, casinghead gas, coal,
lignite, hydrocarbons, methane, carbon dioxide, helium, uranium and all other
natural elements, compounds and substances, including sand and gravel.
16. Condemnation. If all or any part of the Property or
Improvements are damaged, taken or acquired, either temporarily or permanently,
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 who 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. The proceeds shall be
settled, deposited and held consistent with the terms and conditions of Section
8. If Borrower receives notice, written or unwritten, of any actual, intended or
threatened condemnation or eminent domain proceeding, Borrower shall forthwith
furnish a copy of such notice to Lender if such notice was written, or inform
Lender in writing if such notice was unwritten.
11
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
guarantees of any tenants' obligations thereunder, and all of the rents,
royalties, bonuses, income, receipts, revenues, issues and profits now due or
which may hereafter become due under the Leases or any extensions or renewals
thereof, as well as all moneys due and to become due to Borrower under the
Leases for services, materials or installations supplied whether or not the same
were supplied under the terms of the Leases, all liquidated damages following
default under the Leases and all proceeds payable under any policy of insurance
covering loss of rents resulting from untenantability caused by damage to any
part of the Mortgaged Property (such rents, income, receipts, revenues, issues,
profits and other moneys assigned hereby are hereinafter collectively called
"Rents"), together with any and all rights and remedies which Borrower may have
against any tenant under any of the Leases or others in possession of the
Mortgaged Property or any part thereof for the collection or recovery of Rents
so assigned. Borrower is hereby expressly permitted to enter into Leases of the
Mortgaged Property subject to the terms and conditions contained herein. 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 and 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) Intentionally Omitted.
(iv) Borrower shall not pledge, transfer, mortgage or
otherwise encumber or assign the Leases or the Rents nor collect Rents
more than thirty (30) days prior to accrual.
(v) Borrower may, without Lender's prior written consent,
(1) waive, excuse condone or in any manner release or discharge any
tenant under any of the Leases of premises comprising 5,000 square feet
or less; (2) disaffirm, cancel, terminate or consent
12
to any surrender of any of the Leases of premises comprising 5,000
square feet or less; or (3) enter into, modify, extend or in any way
alter the terms of any of the Leases of premises comprising 5,000
square feet or less so as to reduce or diminish or postpone the
payments of Rents. Borrower shall not without Lender's prior written
consent, (1) waive, excuse, condone or in any manner release or
discharge any tenant under any of the Leases exceeding 5,000 square
feet; (2) disaffirm, cancel, terminate or consent to any surrender of
any of the Leases exceeding 5,000 square feet; (3) modify, extend or in
any way alter the terms of any of the Leases exceeding 5,000 square
feet so as to reduce or diminish or postpone the payments of Rents; or
(4) permit any assignment of any of the Leases.
(vi) Borrower shall give prompt notice to Lender of any
notice Borrower receives from any tenant under the Leases, specifying
any claimed default by any party under the Leases exceeding 5,000
square feet.
(vii) Borrower hereby assigns any settlement payment for
damages for termination of any of the Leases with Anchor Tenants (as
said term is defined in the Loan Agreement) under the Federal
Bankruptcy Code, or under any other federal, state, or local statute,
to Lender, to be applied to the Indebtedness as Lender may elect, and
agrees to endorse any check for such payment to the order of Lender.
(viii) All existing Leases are valid, unmodified and in full
force and effect, and Borrower has not performed any act or executed
any instrument which might prevent Lender from operating under any of
the terms and provisions thereof or which would limit Lender in such
operation.
(ix) Each of the Leases exceeding 5,000 square feet shall
be in form and content satisfactory to Lender. Borrower shall not enter
any Leases at below market rents without Lender's consent. Borrower
will deliver to Lender certified and correct copies of each of the
Leases once fully executed. Upon request of Lender, Borrower shall
deliver to Lender a subordination and attornment agreement from each
Anchor Tenant and such estoppel certificates from the tenants under the
Leases as Lender shall reasonably request.
(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.
13
(d) Upon the occurrence of an Event of Default as hereinafter
defined:
(i) All Rents assigned hereunder shall be paid directly
to Lender, and Lender may notify the tenants under the Leases (or any
other parties in possession of the Mortgaged Property) to pay all of
the Rents directly to Lender at the address specified in Section 27
hereof, for which this assignment shall be sufficient warrant;
(ii) Lender shall have the right to forthwith enter and
take possession of the Mortgaged Property and to manage, operate, lease
and develop the same; to collect as hereunder provided all or any Rents
payable under the Leases; to make repairs as Lender deems appropriate;
and to perform such other acts in connection with the management,
operation, development, leasing and construction of the Mortgaged
Property as Lender, in its sole discretion, may deem proper; and
(iii) Lender shall have the right to forthwith enter into
and upon the Mortgaged Property and take possession thereof, and to
appoint an agent, or in the event of the institution of foreclosure
proceedings to have a receiver appointed for the collection of the
Rents.
In the event that Lender shall pursue its remedies under Subsections
17(d)(ii) or (iii) above, the net income, after allowing a reasonable fee for
the collection thereof and the management of the Mortgaged Property, may be
applied toward the payment of taxes, assessments, insurance premiums, repairs,
protection of the Mortgaged Property or Lender's lien thereon, and other charges
against the Mortgaged Property and the costs of procurement of such insurance
and of evidence of title to the Mortgaged Property, or any of them, or in the
reduction of the Indebtedness and the payment of interest, as Lender may elect.
If the Rents are not sufficient to meet the costs, if any, of taking control of
and managing the Mortgaged Property and collecting the Rents, any funds expended
by Lender for such purposes shall become indebtedness of Borrower to Lender
secured by the Deed of Trust. 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 Deed of
Trust 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.
18. Security Agreement. The Deed of Trust is intended to be a
security agreement pursuant to the Uniform Commercial Code as enacted in the
State of Tennessee (the "UCC") for
14
any of the Mortgaged Property comprising personal property and fixtures that 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, and hereby authorizes Lender to file without execution by Borrower,
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, and Borrower shall bear all costs thereof, including all UCC
searches reasonably required by Lender. 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 Section 5.1 of the Note, which meaning is incorporated
by this reference herein.
Upon the occurrence of any such Event of Default, at the option of
Lender, without notice or demand, the same being hereby expressly waived, the
entire amount shall become immediately due and payable, and, in addition to any
other right or remedy which Lender may now or hereafter have at law, in equity,
or under the Loan Documents, Lender shall have the right and power: (a) to
foreclose upon the Deed of Trust and the lien hereof; (b) to invoke the power of
sale 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.
Borrower acknowledges that the power of sale herein granted may be
exercised by Lender without prior judicial hearing. Said sale shall be made in
accordance with Tennessee law as set forth in TCA Section.35-5-101 et. seq. as
may be amended from time to time for cash free of the right and equity of
redemption and statutory right of redemption and all other exemptions which are
expressly waived. Borrower has the right to bring an action to assert the
non-existence of a breach or any other defense of Borrower to acceleration and
sale.
If Lender invokes the power of sale, Trustee shall give notice of sale
by public advertisement for the time and in the manner provided by the laws of
Tennessee, and Lender or Trustee shall mail a copy of the notice of sale to
Borrower in the manner provided herein. Trustee, without demand on Borrower,
shall sell the Mortgaged Property at the time and under the terms designated in
the notice of sale at public auction to the highest bidder, in one or more
parcels and in such order as Trustee may determine. Trustee may postpone sale of
all or any parcel of the Mortgaged Property by public announcement at the time
and place of any previously scheduled sale. Lender or Lender's designee may
purchase the Mortgaged Property at any sale. The Trustee shall give notice of
the time, place and terms of such sale and of the Mortgaged Property to be sold
by advertising the sale of the Mortgaged Property for twenty-one (21) days by
15
three (3) weekly notices in some newspaper published in the county and state
where the Mortgaged Property is situated.
Trustee shall deliver to the purchaser Trustee's deed conveying the
Mortgaged Property so sold without any covenant or warranty, expressed or
implied. The recitals in the Trustee's deed shall be prima facie evidence of the
truth of the statements made therein. Trustee shall apply the proceeds of the
sale in the following order: (a) to all costs and expenses of the sale,
including, but not limited to, Trustee's and attorney's fees and costs of title
evidence; (b) to all sums secured by this Deed of Trust in such order as Lender
in Lender's sole discretion, directs; and (c) the excess, if any, to the person
or persons legally entitled thereto.
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, or any junior lienholder, without liability on
Lender's part and notwithstanding Borrower's breach of any covenant or agreement
of Borrower in the Deed of Trust, extend the time for payment of the
Indebtedness, or any part thereof, reduce the payments thereon, release anyone
liable on any of said Indebtedness, accept a renewal note or notes therefor,
release from the lien of the Deed of Trust any part of the 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 shall not affect the obligation of Borrower or Borrower's successors or
assigns to pay the sums secured by the Deed of Trust and to observe the
covenants of Borrower contained herein, and shall not affect the lien or
priority of lien of the Deed of Trust 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 Marshaling. In the event of foreclosure of
the Deed of Trust, 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 Deed of Trust, and any party
16
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 marshaling
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 Deed of Trust, 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 showing in detail
the income, expenses and earnings of Borrower and of the Mortgaged Property, and
shall provide Lender the following:
(a) Within ninety (90) days from the end of each fiscal year of
Borrower, or as requested from time to time by Lender, an annual financial
statement consisting of a balance sheet, together with a complete itemized
statement of annual income and operating expenses of Borrower and of the
Mortgaged Property, certified by the chief financial officer of Borrower and on
forms prescribed by, or satisfactory to Lender. Lender reserves the right to
require the annual financial statements to be both duly audited and certified by
an independent certified public accountant satisfactory to Lender; and
(b) Within thirty (30) days after the end of each calendar
quarter, Borrower shall provide to Lender a certificate certified by the chief
financial officer of Borrower calculating for that preceding quarter DSCR, as
defined in the Loan Documents;
(c) Within forty-five (45) days from the end of each quarter,
monthly operating statements for the Mortgaged Property, certified by the chief
financial officer of Borrower and on forms prescribed by, or satisfactory to,
Lender, together with a rent roll of the Mortgaged Property, certified by the
chief financial officer of Borrower. The rent roll shall contain the name of
each tenant, square footage of leased premises, annual rent, lease commencement
date and lease expiration date.
Borrower consents to Lender's disclosure of financial statements,
information or other material submitted to Lender to other financial
institutions in connection with the sale of participating interests in the loan
secured hereby and to bank regulators and auditors in connection with review of
the loan secured hereby. Except as set forth hereinabove or pursuant to court
order or federal regulation and except to the extent necessary to enforce the
Loan Documents, Lender agrees to maintain the confidentiality of such financial
statements. To the extent Lender shares such financial information with other
financial institutions in connection with the sale of participating interests in
the loan secured hereby, Lender shall require such other financial institutions
to enter into a confidentiality agreement similar to the one stated herein.
17
24. Intentionally Omitted.
25. Intentionally Omitted.
26. Notice. Any notice required or permitted to be given hereunder
shall be in writing. If mailed by first class United States mail, postage
prepaid, registered or certified with return receipt requested, then such shall
be effective upon its deposit in the mails. Notice given in any other manner
shall be effective only if and when received by the addressee. For purposes of
notice, the addresses of Borrower and Lender shall be as set forth below;
provided however, that either party shall have the right to change such party's
address for notice hereunder to any other location within the continental United
States by the giving of thirty (30) days' notice to the other party.
If to Borrower: Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
If to Lender: Bank One, NA
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Xxxxx X. XxXxxxxx,
Vice President
27. Intentionally Omitted.
28. Holding Over. Should Borrower, after an Event of Default,
continue in possession of the Mortgaged Property, either lawfully or unlawfully,
Borrower shall be a tenant from day to day, terminable at the will of either
Borrower or Lender, at a reasonable rental per diem, based upon the value of the
Mortgaged Property occupied and computed by Lender in its sole unfettered
discretion, such rental to be due and payable daily to Lender.
29. Changes in Rate of Interest. The Note contains provisions
allowing for changes in the interest rate and the monthly payment. This Deed of
Trust shall continue to secure the Indebtedness, with the same priority of lien,
notwithstanding any change in the rate of interest on the Note. None of the
Indebtedness can be modified, altered, amended or waived orally.
30. Miscellaneous. The covenants herein contained shall bind, and
the benefits and advantages shall inure to, the respective successors and
assigns of the parties hereto. Whenever used, the singular number shall include
the plural, the plural the singular, and the use of any gender shall include all
genders. If any provision of the Deed of Trust is illegal, or hereafter rendered
illegal, or is for any other reason void, voidable or otherwise unenforceable,
or hereafter rendered void, voidable or otherwise unenforceable, the remainder
of the Deed of Trust shall not be affected thereby, but shall be construed as if
it does not contain such provision. Each right and remedy provided in the Deed
of Trust is distinct and cumulative to all other rights or
18
remedies under the Deed of Trust or afforded by law or equity, and may be
exercised concurrently, independently or successively, in any order whatsoever.
The rights and duties of the parties hereto shall be governed by the laws of the
State of Ohio except that the provisions regarding the perfection of security
interests hereunder and the enforcement thereof shall be governed by the law of
the State of Tennessee.
LENDER, BY ACCEPTANCE OF THIS DEED OF TRUST, AND BORROWER HEREBY
MUTUALLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE FOR THE BENEFIT OF
THE OTHER ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE LOAN DOCUMENTS, THE TRANSACTIONS RELATED
THERETO OR THE RELATIONSHIP ESTABLISHED THEREBY. THIS PROVISION IS A MATERIAL
INDUCEMENT TO LENDER AND BORROWER TO ENTER INTO THIS TRANSACTION. IT SHALL NOT
IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY LENDER'S ABILITY TO PURSUE ITS
REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR COGNOVIT
PROVISION CONTAINED IN THE LOAN DOCUMENTS.
PROVIDED, HOWEVER, that these presents are upon the condition that if
Borrower shall fully and promptly pay when due the Indebtedness and shall
completely, faithfully and punctually perform all of the Obligations under the
terms and conditions of the Loan Documents, then the Deed of Trust shall be
void; otherwise it shall remain in full force and effect in law and equity
forever.
IN WITNESS WHEREOF, Borrower has caused the Deed of Trust to be
executed as of the 30th day of October, 2002.
BORROWER:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware
limited partnership
By: Glimcher Properties Corporation,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
Its: Executive Vice President
00
XXXXX XX XXXX,
XXXXXX XX XXXXXXXX, XX:
The foregoing instrument was acknowledged before me this 30th day of
October, 2002, by Xxxxxx X. Xxxxxxx, the Executive Vice President of Glimcher
Properties Corporation, the General Partner of Glimcher Properties Limited
Partnership, a Delaware limited partnership, on behalf of the corporation and
limited partnership.
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Notary Public
Commission Expiration: 07/02/05
This instrument prepared by:
______________________________
Xxxxxxx X. XxXxxxxx, Esq.
Xxxxxxx and Xxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
20
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
PERMITTED ENCUMBRANCES
All of the Permitted Encumbrances set forth in Lenders Title Policy.
