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Exhibit 10.93
Credit Line
A /DEED OF TRUST, ASSIGNMENT OF RENTS
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AND SECURITY AGREEMENT
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Credit Line
THIS /DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (herein
"Deed of Trust") is made this _____ day of June, 1999, between GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware Limited Partnership, whose address is
00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (herein "Trustor/Grantor"), Xxxx X.
Xxxxxxxxxxxx, whose address is 000 Xxxx Xxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx Xxxxxx,
Xxxx Xxxxxxxx (herein "Trustee"), and KEYBANK NATIONAL ASSOCIATION, a national
banking association, having an office at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx
00000 Attention: Xxxxx Xxxx Csuhran ("Beneficiary").
TRUSTOR, in consideration of the sum of Twenty-Four Million Three
Hundred Seventy-Five Thousand Dollars ($24,375,000.00) and the trust herein
created, irrevocably grants, bargains, sells, pledges, assigns, warrants,
transfers and conveys to Trustee and Trustee's successors and assigns, in trust,
with power of sale, the following property, rights, interests and estates now
owned, or hereafter acquired by Borrower: (a) the real estate described in
Exhibit "A" attached hereto and incorporated herein by this reference, (the
"Property"); (b) all improvements now or hereafter attached to or placed,
erected, constructed or developed on the Property (collectively the
"Improvements"); (c) all fixtures, furnishings, equipment, inventory, and other
articles of personal property (collectively the "Personal Property") that are
now or hereafter attached to or used in or about the Improvements or that are
necessary or useful for the complete and comfortable use and occupancy of the
Improvements for the purposes for which they were or are to be attached, placed,
erected, constructed or developed or that may be used in or related to the
planning, development, financing or operation of the Improvements, and all
renewals of or replacements or substitutions for any of the foregoing, whether
or not the same are or shall be attached to the Improvements or the Property;
(d) all water and water rights, timber, crops, and mineral interests pertaining
to the Property; (e) all building materials and equipment now or hereafter
delivered to and intended to be installed in or on the Improvements or the
Property; (f) all plans and specifications for the Improvements; (g) all
contracts relating to the Property, the Improvements or the Personal Property;
(h) all deposits (including, without limitation, tenants' security deposits),
bank accounts, funds, documents, contract rights, accounts, commitments,
construction agreements, architectural agreements, general intangibles
(including, without limitation, trademarks, trade names and symbols),
instruments, notes and chattel paper arising from or by virtue of any
transactions related to the Property, the Improvements or the Personal Property;
(i) all permits, licenses, franchises, certificates, and other rights and
privileges obtained in connection with the Property, the Improvements or the
Personal Property; (j) all proceeds arising from or by virtue of the sale, lease
or other disposition of the Property, the Improvements, the Personal Property or
any portion thereof or interest therein; (k) all proceeds (including, without
limitation, premium refunds) of each policy of insurance relating to the
Property, the Improvements or the Personal Property; (l) all proceeds from the
taking of any of the Property, the Improvements, the Personal Property or any
rights appurtenant thereto by right of eminent domain or by private or other
purchase in lieu thereof (including, without limitation, change of grade of
streets, curb cuts or other rights of access), for any public or quasi-public
use under any law; (m) all right, title and interest of Trustor in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Property; (n) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (o) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (p) other interests of every kind and character
that Trustor now has or at any time hereafter acquires in and to the Property,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Trustor with respect thereto (all of
the same, including the Property, collectively the "Trust Property").
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TO HAVE AND TO HOLD the Trust Property, together with the rights,
privileges and appurtenances thereto belonging, unto Beneficiary and its
successors and assigns forever, and Trustor hereby binds itself and its
successors and assigns to warrant and forever defend the Trust Property unto
Beneficiary and its successors and assigns, against the claim or claims of all
persons claiming or to claim the same or any part thereof, except rights of
tenants in possession under written leases, current real estate taxes and
assessments, and those matters set forth on EXHIBIT B ("Permitted Exceptions").
FOR THE PURPOSE OF SECURING: the full and prompt payment, whether at
stated maturity, accelerated maturity or otherwise, of any and all indebtedness,
whether fixed or contingent, and whether advanced before, in connection with or
after the recording of this Deed of Trust (collectively the "Indebtedness") and
the complete, faithful and punctual performance of any and all other obligations
(collectively the "Obligations") of Trustor under the terms and conditions of
(a) that certain Loan Agreement among Trustor, Glimcher Properties Corporation
and Beneficiary, of even date herewith; (b) the Note made by Trustor pursuant to
the Loan Agreement, not to exceed in the aggregate the principal amount of
Twenty-Four Million Three Hundred Seventy-Five Thousand Dollars ($24,375,000),
payable not later than June 17, 2000, and any and all renewals, amendments,
modifications, reductions and extensions thereof and substitutions therefor (the
"Note"); (c) the Deed of Trust; and (d) any other instrument, document,
certificate or affidavit heretofore, now or hereafter given by Trustor
evidencing or securing all or any part of the foregoing (the same together with
the Loan Agreement, the Notes and the Deed of Trust, collectively the "Loan
Documents").
Trustor, for itself and its successors and assigns, hereby covenants
with Beneficiary, its successors and assigns, that:
1. TITLE. Trustor covenants that it is lawfully seized of the Trust
Property and has the right to mortgage, grant, convey and assign the Trust
Property and that the same is unencumbered except for the Permitted Exceptions
and that except as aforesaid it will warrant and defend generally the title to
the Trust Property. If the interest of Beneficiary or Trustee in the Trust
Property or any part thereof shall be endangered or shall be attacked, directly
or indirectly, Trustor hereby authorizes Beneficiary, at Trustor's expense, to
take all necessary and proper steps for the defense of such interest, including
the employment of counsel, the prosecution or defense of litigation and the
compromise or discharge of claims made against such interest. Any sums so
expended by Beneficiary shall be charged against Trustor and collectible in
accordance with the terms of Section 10 hereof.
2. FURTHER ASSURANCES. Trustor, upon the request of Beneficiary, shall
execute, acknowledge, deliver, file and record such further instruments and do
such further acts as may be necessary, desirable or proper to carry out the
purposes of the Loan Documents and to subject to the liens and security
interests created thereby any property intended by the terms thereof to be
covered thereby, including specifically, but without limitation, any renewals,
additions, substitutions, replacements, improvements or appurtenances to the
Trust Property.
3. SUBROGATION FOR FURTHER SECURITY. Beneficiary shall be subrogated
for its further security to the lien, although released of record, of any and
all encumbrances paid with any advance of Indebtedness; provided, however, that
the terms and provisions hereof shall govern the rights and remedies of
Beneficiary and shall supersede the terms, provisions, rights, and remedies
under the lien or liens to which Beneficiary is subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Beneficiary, which consent may be withheld in Beneficiary's
sole discretion, Trustor shall not (a) sell, assign, mortgage, pledge, lease
(except for leases of storerooms in the ordinary course of business) or
otherwise convey or further encumber the Trust Property, or any portion thereof,
or legal, equitable or beneficial interest therein; (b) sell, assign, pledge or
otherwise transfer any beneficial interests in Trustor which individually or in
the aggregate would have the effect of transferring the power to direct the
operations of Trustor or the Trust Property; (c) contract for any
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of the same; (d) permit the Trust Property, or any portion thereof, or legal,
equitable or beneficial interest therein, to be subject to any superior or
inferior lien or encumbrance except as provided in the Permitted Encumbrances;
(e) subdivide, resubdivided or submit to the condominium form of ownership all
or any portion of the Trust Property, or any portion thereof; or (f) initiate or
acquiesce in any change in the zoning classification of the Property or any
portion thereof.
5. TAXES AND OTHER IMPOSITIONS. Trustor shall promptly pay before
delinquency all taxes, assessments, charges, fines or impositions, general,
local or special (collectively the "Impositions"), levied upon the Trust
Property, or any part thereof, or upon Beneficiary's interest therein, or upon
the Deed of Trust or the Indebtedness, by any duly or legally constituted public
authority, municipality, township, county or state or the United States, and
upon request, will provide evidence of the payment thereof to Beneficiary;
provided that Trustor, at Trustor's own cost and expense may, if it shall in
good faith so desire, contest the validity or amount of any Impositions, in
which event Trustor may defer the payment thereof for such period as such
contest shall be actively prosecuted and shall be pending undetermined; further
provided, however, that Trustor shall not allow any such Impositions so
contested to remain unpaid for such length of time as shall permit all or any
portion of the Trust Property, or the lien thereon created by such item, to be
sold by federal, state, county or municipal authority for the nonpayment
thereof. Pending any such contest, Trustor shall maintain adequate book reserves
with respect to such Impositions being contested.
In the event that one or more of the Impositions on Beneficiary's
interest in the Trust Property, the Deed of Trust or the Indebtedness cannot be
lawfully paid by Trustor, then the Trust Property shall be withdrawn from the
Collateral Pool (as such team is defined in the Loan Agreement). In the event
the withdrawal of the Trust Property from the Collateral Pool causes Trustor not
to be in compliance with the required loan to value ratio under the Loan
Agreement, Trustor may either furnish substitute property, as provided in the
Loan Agreement, or pay down the Indebtedness in an amount which will bring the
loan to value ratio into compliance.
6. INSURANCE AND INDEMNIFICATION. Trustor shall provide, maintain and
keep in force at all times the following policies of insurance:
(a) Insurance against loss or damage to the Improvements and
the Personal Property caused by fire and any of the risks covered by insurance
of the type now known as "coverage against all risks of physical loss", in an
amount equal to one hundred percent (100%) of the replacement cost of the
Improvements and the Personal Property and sufficient to prevent Trustor and
Beneficiary from becoming co-insurers, and otherwise with terms and conditions
acceptable to Beneficiary;
(b) Comprehensive broad form general liability insurance,
insuring against any and all claims for personal injury, death or property
damage occurring on, in or about the Property, the Improvements and the
adjoining streets, sidewalks and passageways, subject to a combined single limit
of not less than Two Million Dollars ($2,000,000.00) for personal injury, death
or property damage arising out of any one accident and a general aggregate limit
of not less than Five Million Dollars ($5,000,000.00), and otherwise with terms
and conditions acceptable to Beneficiary;
(c) Worker's compensation insurance (including employer's
liability insurance, if available and requested by Beneficiary) for all
employees of Trustor engaged on or with respect to the Property and the
Improvements in the limits established by law or, if limits are not so
established, in such amounts as are acceptable to Beneficiary;
(d) During the course of any development or construction of
the Improvements, builder's completed value risk insurance against "all risks of
physical loss", including collapse and transit coverage, in the amounts set
forth in Subsection 8(a) above, and otherwise with terms and conditions
acceptable to Beneficiary;
(e) Upon obtaining a certificate of occupancy for the
Improvements or any portion thereof, business interruption insurance and/or loss
of "rental value" insurance in an amount
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not less than the appraised rentals for the Trust Property for a minimum of
twelve (12) months, and otherwise with terms and conditions acceptable to
Beneficiary;
(f) If the Improvements are located in a federally-designated
flood hazard area, then flood hazard coverage, in the maximum amount available
and otherwise with terms and conditions acceptable to Beneficiary; and
(g) Such other insurance coverage, and in such amount, as may
from time to time be required by Beneficiary against the same or other hazards.
All such policies shall be in a form acceptable to Beneficiary. Each
policy of casualty insurance shall contain a mortgagee clause, substantially in
the form of the standard New York mortgagee clause or otherwise acceptable to
Beneficiary, showing Beneficiary as loss payee. Each policy of liability
insurance shall show Beneficiary as an additional insured. Unless the policy so
provides, each policy of insurance required by the terms of the Deed of Trust
shall contain an endorsement by the insurer, for the benefit of Beneficiary, (i)
that any loss shall be payable in accordance with the terms of such policy
notwithstanding any act or negligence of Trustor which might otherwise result in
forfeiture of said insurance, (ii) that any rights of set-off, counterclaim or
deductions against Trustor are waived and (iii) that such policy shall not be
canceled or changed except upon not less than thirty (30) days prior written
notice delivered to Beneficiary.
All such insurance policies and renewals thereof shall be written by
companies with a BEST'S INSURANCE REPORTS policy holders rating of A and a
financial size category of Class X or be expressly approved by Beneficiary in
writing.
Beneficiary shall have the right to hold the policies, or certificates
thereof acceptable to Beneficiary with certified copies of the policies, and
Trustor shall promptly furnish to Beneficiary all renewal notices and all
receipts of paid premiums. At least thirty (30) days prior to the expiration
date of any such policy, Trustor shall deliver to Beneficiary a renewal policy,
or certificate thereof, in form acceptable to Beneficiary.
If Beneficiary is made a party defendant to any litigation concerning
the Loan Documents or the Trust Property or any part thereof or interest therein
or the occupancy thereof by Trustor, then Trustor shall indemnify, defend and
hold Beneficiary harmless from all liability by reason of said litigation,
including reasonable attorneys' fees and expenses incurred by Beneficiary in any
such litigation, whether or not any such litigation is prosecuted to judgment.
Trustor waives any and all right to claim or recover against Beneficiary, its
officers, employees, agents and representatives, for loss of or damage to
Trustor, the Trust Property, other property of Trustor or the property of others
under control of Trustor from any cause insured against or required to be
insured against by the provisions of the Deed of Trust.
Trustor shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section unless Beneficiary has approved the insurance company and the form and
content of the insurance policy, including, without limitation, the naming
thereon of Beneficiary as a named insured with loss payable to Beneficiary under
a standard mortgage clause of the character above described. Trustor shall
immediately notify Beneficiary whenever any such separate insurance is taken out
and shall promptly deliver to Beneficiary copies of the policies and
certificates evidencing such insurance.
Nothing contained in this Section 6 shall prevent Trustor from keeping
the Improvements and Personal Property insured or causing the same to be insured
against the risks referred to in this Section 6 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Deed of Trust; provided, however, that any such policy of blanket insurance (i)
shall specify therein the amount of the total insurance allocated to the
Improvements and Personal Property, which amount shall be not less than the
amount otherwise required to be carried under the Deed of Trust; (ii) shall not
contain any clause which would result in the insured thereunder
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becoming a co-insurer of any loss with the insurer under such policy; and (iii)
shall in all other respects comply with the provisions of the Deed of Trust.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Trustor, and used
by Trustor to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Trustor should elect option (ii) above, if a material decrease in the fair
market value of the Trust Property is indicated, Beneficiary shall be entitled,
at its option, to cause the Trust Property to be reappraised at Trustor's
expense to satisfy itself of continued compliance by Trustor with the loan to
value ratio required by the Loan Agreement. In the event the results of such
reappraisal causes Trustor not to be in compliance with the required loan to
value ratio, Trustor may either furnish substitute property, as provided for in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Beneficiary as escrow agent for the purpose of repairing, restoring or
reconstructing the Improvements. Such proceeds shall be disbursed by Beneficiary
as work progresses, provided that prior to any disbursement, Beneficiary is in
receipt of proof reasonably satisfactory to it that: (i) the work has been
completed, (ii) there are no outstanding mechanics liens or materialmen's liens,
and (iii) that all charges, costs and expenses incurred with respect to work
completed have been paid in full or will be paid in full with such proceeds.
Prior to the release of any proceeds, Beneficiary must be satisfied that repair,
restoration or reconstruction of the damaged or destroyed Improvements will be
substantially equal in size, quality and value to the Improvements then
presently erected on the Trust Property as existed immediately prior to the loss
and the plans and specifications therefor must be approved by Beneficiary. In
the event Beneficiary believes it is necessary in order to establish value,
Beneficiary may, at its option, cause the Trust Property to be reappraised at
Trustor's expense. All insurance proceeds shall be payable to Beneficiary. The
adjustment of such insurance proceeds with the carrier must be approved by
Beneficiary.
Anything in this Section 6 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Beneficiary, be applied by Beneficiary to the
Indebtedness in such order as Beneficiary may determine.
7. ESCROW. Trustor, in order to more fully protect the security of the
Deed of Trust, does hereby covenant and agree that, if Trustor shall fail to
timely pay taxes, assessments or insurance premiums as provided above, or in the
event of any other default and Beneficiary does not then elect to exercise its
other remedies, then Trustor shall, upon request of Beneficiary, pay to
Beneficiary on the first day of each month, until the Indebtedness is fully
paid, a sum equal to one-twelfth (1/12) of the known or estimated yearly taxes,
assessments, premiums for such insurance as may be required by the terms hereof.
Beneficiary shall hold such monthly payments which may be mingled with its
general funds, without obligation to pay interest thereon, unless otherwise
required by applicable law, to pay such taxes, assessments, and insurance
premiums when due. Trustor agrees that sufficient funds shall be so accumulated
for the payment of said charges one (1) month prior to the due date thereof and
that Trustor shall furnish Beneficiary with proper statements covering the same
fifteen (15) days prior to the due dates thereof. In the event the Trust
Property is sold pursuant to the power of sale contained herein, or if
Beneficiary should take a deed in lieu thereof, the amount so accumulated shall
be credited on account of the unpaid principal or interest. If the total of the
monthly payments as made under this Section 7 shall exceed the payments actually
made by Beneficiary, such excess shall be credited on subsequent monthly
payments of the same nature, but if the total of such monthly payments so made
under this Section 7 shall be insufficient to pay such taxes, assessments, and
insurance premiums then due, then said Trustor shall pay upon demand the amount
necessary to make up the deficiency, which payments shall be secured by the
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Deed of Trust. To the extent that all the provisions of this Section 7 for such
payments of taxes, assessments, and insurance premiums to Beneficiary, are
complied with, Trustor shall be relieved of compliance with the covenants
contained in Sections 5 and 6 herein as to the amounts paid only, but nothing
contained in this Section 7 shall be construed as in any way limiting the rights
of Beneficiary at its option to pay any and all of said items when due.
8. WASTE; REPAIR. Trustor shall neither commit nor permit any waste on
the Trust Property and shall keep all Improvements now or hereafter erected on
the Property in good condition and repair.
9. ALTERATIONS; CONSTRUCTION. Trustor shall have the right to remove,
demolish or alter any of the Improvements, now existing or hereafter constructed
on the Property, or any of the Personal Property in or on the Property or
Improvements, to the extent that the value of same is not diminished. If
Beneficiary believes that there has been a material decrease in value following
any such removal, demolition, or alteration, it may, at its option, cause the
Trust Property to be reappraised at Trustor's expense.
10. ADVANCES SECURED BY DEED OF TRUST. Upon failure of Trustor to
comply with any of these covenants and agreements as to the payment of taxes,
assessments, insurance premiums, repairs, protection of the Trust Property or
Beneficiary's lien thereon, and other charges and the costs of procurement of
title evidence and insurance as aforesaid, Beneficiary may, at its option, pay
the same, and any sums so paid by Beneficiary, together with the reasonable fees
of counsel employed by Beneficiary in consultation and in connection therewith,
shall be charged against Trustor, shall be immediately due and payable by
Trustor shall bear interest at the Default Rate of Interest (as defined in the
Note) and shall be a lien upon the Trust Property and be secured by the Deed of
Trust and may be collected in the same manner as the principal debt hereby
secured.
11. USE. Unless Beneficiary otherwise agrees in writing, Trustor shall
not allow changes in the nature of the occupancy for which the Property and
Improvements were intended at the time the Deed of Trust was executed. Trustor
shall comply with the laws, ordinances, rules, regulations and requirements of
any governmental body applicable to the Trust Property, both during the
construction of any Improvements on the Property and subsequent to the
completion thereof, and Trustor shall not permit the use thereof for any illegal
purpose.
12. INSPECTION. Any person authorized by Beneficiary shall have the
right to enter upon and inspect the Trust Property after reasonable notice to
Trustor and during normal business hours. Beneficiary shall have no duty,
however, to make such inspections. Any inspection of the Trust Property by
Beneficiary shall be entirely for its benefit, and Trustor shall in no way rely
or claim reliance thereon.
13. MINERALS. Without the prior written consent of Beneficiary, except
as provided in the Permitted Exceptions, there shall be no drilling or exploring
for, or extraction, removal, or production of, minerals from the surface or
subsurface of the Trust Property. The term "minerals" as used herein shall
include, without limitation, oil, gas, casinghead gas, coal, lignite,
hydrocarbons, methane, carbon dioxide, helium, uranium and all other natural
elements, compounds and substances, including sand and gravel.
14. CONDEMNATION. If all the Trust Property and Improvements are taken
or acquired in any condemnation proceeding or by exercise of the right of
eminent domain or, with Beneficiary's consent, by any conveyance in lieu
thereof, the amount of any award or other payment for such taking, or conveyance
or damages made in consideration thereof, to the extent of the full amount of
the then remaining unpaid Indebtedness, is hereby assigned to Beneficiary, and
Beneficiary is empowered to collect and receive the same and to give proper
receipts therefor in the name of Borrower, and the same shall be paid forthwith
to Beneficiary. Such award or payment so received by Beneficiary shall be
applied to the Indebtedness (whether or not then due and payable).
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In the event a portion of the Improvements or Property are acquired in
any condemnation proceeding or by the exercise of the right of eminent domain,
to the extent that the damage to the Property or improvements is in the amount
of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the proceeds of any such condemnation or eminent domain
award shall be paid to Trustor, who shall use such proceeds as provided for in
paragraph 6 hereof with respect to the disbursement of insurance proceeds where
the damage or destruction is in an amount of $500,000.00 or less. The provisions
of paragraph 6 with respect to reappraisal and substitute property where there
is damage or destruction in an amount of $500,000.00 or less shall apply as if
fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with Beneficiary as escrow agent for the purpose of
repairing, restoring, or reconstructing the Improvements and/or Property, and
shall be disbursed by Beneficiary in accordance with the provisions of paragraph
6 hereof with respect to the disbursement of insurance proceeds, where the
damage or destruction is in an amount of $500,000.00 or greater. The conditions
to disbursement, including the requirement that Beneficiary be satisfied that
the repaired or restored Improvements would be equal in size, quality and value
to those which existed previously, and the right to cause the Trust Property to
be reappraised, as provided for where there is damage or destruction of
$500,000.00 or greater, shall be applicable as if fully rewritten.
Anything in this Section 14 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Beneficiary,
be applied by Beneficiary to the Indebtedness in such order as Beneficiary may
determine.
15. ASSIGNMENT OF RENTS AND LEASES.
(a) Trustor hereby absolutely and unconditionally assigns,
transfers and sets over unto Beneficiary and Beneficiary's successors and
assigns all present and future leases covering all or any part of the Trust
Property (the "Leases"), together with any extensions or renewals thereof and
any guaranties of any tenants' obligations thereunder, and all of the rents,
royalties, bonuses, income, receipts, revenues, issues and profits now due or
which may hereafter become due under the Leases or any extensions or renewals
thereof, as well as all moneys due and to become due to Trustor under the Leases
for services, materials or installations supplied whether or not the same were
supplied under the terms of the Leases, all liquidated damages following default
under the Leases and all proceeds payable under any policy of insurance covering
loss of rents resulting from untenantability caused by damage to any part of the
Trust Property (such rents, income, receipts, revenues, issues, profits and
other moneys assigned hereby are hereinafter collectively called "Rents"),
together with any and all rights and remedies which Trustor may have against any
tenant under any of the Leases or others in possession of the Trust Property or
any part thereof for the collection or recovery of Rents so assigned. Prior to
an Event of Default, as hereinafter defined, Trustor shall have a license to
collect and receive all Rents as trustee for the benefit of Beneficiary and
Trustor.
(b) Trustor hereby represents, warrants and agrees that:
(i) Trustor has good title to the Leases and Rents
hereby assigned and has the right, power and capacity to make this assignment.
No person or entity other than Trustor has or will have any right, title or
interest in or to the Leases or Rents.
(ii) Trustor shall, at Trustor's sole cost and
expense, perform and discharge all of the obligations and undertakings of the
landlord under the Leases and give prompt notice to Beneficiary of any failure
to do so. Trustor shall use all reasonable efforts to enforce or secure the
performance of each and every obligation and undertaking of the tenants under
the Leases and shall appear in and prosecute or defend any action or proceeding
arising under, or in any manner connected with, the Leases or the obligations
and undertakings of the tenants thereunder.
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(iii) Trustor shall generally operate and maintain
the Trust Property in a manner to insure maximum Rents.
(iv) Trustor shall not pledge, transfer, mortgage or
otherwise encumber or assign the Leases or the Rents.
(v) Trustor shall not collect Rents more than sixty
(60) days prior to accrual.
(c) Beneficiary shall not be obligated to perform or discharge
any obligation or duty to be performed or discharged by Trustor under any of the
Leases; and Trustor hereby agrees to indemnify Beneficiary for, and to save
Beneficiary harmless from, any and all liability, damage or expense arising from
any of the Leases or from this assignment, including, without limitation, claims
by tenants for security deposits or for rental payments more than one (1) month
in advance and not delivered to Beneficiary. All amounts indemnified against
hereunder, including reasonable attorneys' fees if paid by Beneficiary, shall
bear interest at the Default Rate of Interest, as defined in the Note, and shall
be payable by Trustor immediately without demand and shall be secured hereby.
This assignment shall not place responsibility for the control, care,
management, or repair of the Trust Property upon Beneficiary or make Beneficiary
responsible or liable for any negligence in the management, operation, upkeep,
repair or control of same resulting in loss or damage or injury or death to any
party.
(d) Upon the occurrence of an Event of Default as hereinafter
defined:
(i) All Rents assigned hereunder shall be paid
directly to Beneficiary, and, Beneficiary may notify the tenants under the
Leases (or any other parties in possession of the Trust Property) to pay all of
the Rents directly to Beneficiary at the address specified in Section 29 hereof,
for which this assignment shall be sufficient warrant;
(ii) Beneficiary shall have the right to forthwith
enter and take possession of the Trust Property and to manage, operate, lease
and develop the same; to collect as hereunder provided all or any Rents payable
under the Leases; to make repairs as Beneficiary deems appropriate; and to
perform such other acts in connection with the management, operation,
development, leasing and construction of the Trust Property as Beneficiary, in
its sole discretion, may deem proper; and
(iii) Beneficiary shall have the right to forthwith
enter into and upon the Trust
Property and take possession thereof, and to appoint an agent, or in the event
of the institution of foreclosure proceedings to have a receiver appointed for
the collection of the Rents.
In the event that Beneficiary shall pursue its remedies under
Subsections 15(d)(ii) or (iii) above, the net income, after allowing a
reasonable fee for the collection thereof and the management of the Trust
Property, may be applied toward the payment of taxes, assessments, insurance
premiums, repairs, protection of the Trust Property or Beneficiary's lien
thereon, and other charges against the Trust Property and the costs of
procurement of such insurance and of evidence of title to the Trust Property, or
any of them, or in the reduction of the Indebtedness and the payment of
interest, as Beneficiary may elect. If the Rents are not sufficient to meet the
costs, if any, of taking control of and managing the Trust Property and
collecting the Rents, any funds expended by Beneficiary for such purposes shall
become indebtedness of Trustor to Beneficiary secured by the Deed of Trust.
Unless Beneficiary and Trustor agree in writing to other terms of payment, such
amounts shall be payable upon demand from Beneficiary to Trustor and shall bear
interest from the date of disbursement at the Default Rate of Interest stated in
the Note.
The exercise or failure to exercise any of the above remedies shall not
in any way preclude or abridge the right of Beneficiary to exercise the power of
sale contained herein or to take any other legal or equitable action thereon.
Beneficiary shall have such rights or privileges as aforesaid
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regardless of the value of the Trust Property given as security hereunder, and
regardless of the solvency or insolvency of any party bound for the payment of
the Indebtedness or the other sums hereby secured.
(e) Trustor hereby authorizes and directs the tenants under
the Leases to pay Rents to Beneficiary upon written demand by Beneficiary,
without further consent of Trustor, and the tenants may rely upon any written
statement delivered by Beneficiary to the tenants. Any such payment to
Beneficiary shall constitute payment to Trustor under the Leases.
(f) There shall be no merger of the leasehold estates created
by the Leases with the fee estate of the Property and Improvements without the
prior written consent of Beneficiary.
16. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. The Deed of Trust is
intended to be a security agreement pursuant to the Uniform Commercial Code as
enacted in the State of West Virginia (the "UCC") for any of the Property
comprising personal property and fixtures which may be subject to a security
interest pursuant to the UCC, and Trustor hereby grants to Beneficiary a
security interest in said personal property and fixtures, whether said property
is now existing or hereafter acquired, together with replacements, replacement
parts, additions, repairs and accessories incorporated therein or affixed
thereto and, if sold or otherwise disposed of, the proceeds (including insurance
proceeds) thereof. Trustor agrees to execute and deliver to Beneficiary UCC
financing statements covering said personal property and fixtures from time to
time and in such form as Beneficiary may require to perfect or maintain the
priority of Beneficiary's security interest with respect to said personal
property and fixtures. Trustor shall not create or suffer to be created any
other security interest in said personal property and fixtures, including
replacements thereof and additions thereto. Upon the occurrence of any Event of
Default as set forth in Section 17 hereof, Beneficiary shall have the remedies
of a secured party under the UCC and, at Beneficiary's option, may also invoke
the remedies provided in Section 17 hereof with respect to such property.
17. EVENT OF DEFAULT. The term "Event of Default" shall have the same
meaning as set forth in the Loan Agreement, which meaning is incorporated by
this reference herein.
Upon the occurrence of any such Event of Default, at the option of
Beneficiary, without notice or demand, the same being hereby expressly waived,
the entire amount shall become immediately due and payable, and, in addition to
any other right or remedy which Beneficiary may now or hereafter have at law, in
equity, or under the Loan Documents, Beneficiary shall have the right and power:
to invoke the power of sale and any other remedies permitted by applicable law
or provided for herein. Trustor acknowledges that the power of sale herein
granted may be exercised by Beneficiary without prior judicial hearing.
Beneficiary shall be entitled to collect all costs and expenses incurred in
pursuing such remedies, including, but not limited to, attorney's fees and costs
of documentary evidence, abstracts and title reports, all of which shall be
additional sums secured by this Deed of Trust.
18. NO WAIVER. The failure of Beneficiary to exercise any option to
declare the maturity of the principal debt or any other sums hereby secured
under any provision of any of the Loan Documents, or to forbear from exercising
any right or remedy available to Beneficiary under any provision of any of the
other Loan Documents, shall not be deemed a waiver of the right to exercise such
option, right or remedy or declare such maturity as to such past, continuing or
subsequent violation of any of the covenants and agreements of the Loan
Documents. Acceptance by Beneficiary of partial payments shall not constitute a
waiver of any Event of Default. From time to time, Beneficiary may, at
Beneficiary's option, without giving notice to or obtaining the consent of
Trustor or its successors or assigns, any junior lienholder, without liability
on Beneficiary's part and notwithstanding Trustor's breach of any covenant or
agreement of Trustor in the Deed of Trust, extend the time for payment of the
Indebtedness, or any part thereof, reduce the payments thereon, release anyone
liable on any of said Indebtedness, accept a renewal note or notes therefor,
release from the lien of the Deed of Trust any part of the Trust Property, take
or release other or additional security, reconvey any part of the Trust
Property, consent to any map or plan of the Trust Property, consent to the
granting of any easement, join in any extension or subordination agreement, or
agree in writing with Trustor to modify the rate of interest or period of
amortization of the Note or to
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change the amount of the monthly installments payable thereunder. Any actions
taken by Beneficiary pursuant to the terms of this Section 18 shall not affect
the obligation of Trustor or Trustor's successors or assigns to pay the sums
secured by the Deed of Trust and to observe the covenants of contained herein,
and shall not affect the lien or priority of lien of the Deed of Trust on the
Trust Property. Trustor shall pay Beneficiary a reasonable service charge,
together with such title insurance premiums and attorney's fees as may be
incurred at Beneficiary's option for any such action if taken at Trustor's
request.
19. PARCELS; WAIVER OF MARSHALLING. In the event of a sale pursuant to
the power of sale contained herein, the Trust Property may be sold in one or
more parcels or as an entirety as Beneficiary may elect.
Notwithstanding the existence of any other security interests in the
Trust Property held by Beneficiary or by any other party, Beneficiary shall have
the right to determine the order in which any or all of the Trust Property shall
be subjected to the remedies provided herein. Beneficiary shall have the right
to determine the order in which any or all portions of the Indebtedness are
satisfied from the proceeds realized upon the exercise of the remedies provided
herein. Trustor, any party who becomes liable for Trustor's obligations and
covenants under the Deed of Trust, and any party who now or hereafter acquires a
security interest in the Trust Property, or any portion thereof, hereby waives
any and all right to require the marshalling of assets in connection with the
exercise of any of the remedies permitted by applicable law or provided herein.
20. COSTS OF COLLECTION. Trustor hereby agrees to pay to Beneficiary
all costs of enforcing, collecting and securing, and of attempting to enforce,
collect and secure, the Note, including, without limitation, reasonable
attorneys' fees and court costs, whether such attempt be made by suit, in
bankruptcy, or otherwise, and such costs and any other sums due Beneficiary
under the Loan Documents may be included in any judgment or decree rendered.
21. SALE PURSUANT TO POWER OF SALE. Prior to any sale pursuant to the
power of sale contained herein, Beneficiary shall provide Trustor with the
notice required by the laws of the State of West Virginia by mailing to Trustor
at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 in the manner provided in
paragraph 30 hereof or such other manner as may be required pursuant to the laws
of the State of West Virginia, notice of such sale. Trustee may sell the Trust
Property at the time and place and under the terms designated in the notice of
sale in one or more parcels and in such order as Trustee may determine at public
auction to the highest bidder for cash. Trustee may postpone sale of all or any
parcel of the Trust Property by public announcement at the time and place of any
previously scheduled sale. Beneficiary or Beneficiary's designee may purchase
the Trust Property at any sale.
Trustee shall deliver to the purchaser a Trustee's deed conveying the
Trust Property so sold with special warranty of title. The recitals in the
Trustee's deed shall be prima facie evidence of the truth of the statements made
therein. Trustee shall apply the proceeds of the sale in the following order:
(a) to all costs and expenses of the sale, including, but not limited to
attorney's fees and costs of title evidence; (b) to the discharge of all taxes,
levies and assessments on the Trust Property, if any, as provided by applicable
law; (c) to all sums secured by this Instrument in such order as Beneficiary, in
Beneficiary's sole discretion, directs; and (d) the excess, if any, to the
person or persons legally entitled thereto, including, if any, holders of liens
inferior to this Instrument in order of priority, provided that Trustee has
actual notice of such liens. Trustee shall not be required to take possession of
the Trust Property prior to the sale thereof or to deliver possession of the
Trust Property to the purchaser at such sale.
22. RENT ROLL AND FINANCIAL STATEMENTS. Trustor shall maintain full and
correct books and records open to Beneficiary's inspection, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
23. HAZARDOUS SUBSTANCES. (a) Trustor hereby covenants and agrees with
Beneficiary that the following terms shall have the following meanings:
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(i) "Environmental Laws" mean all federal, state
and local laws, statutes, ordinances and codes relating to the use, storage,
treatment, generation, transportation, processing, handling, production or
disposal of any Hazardous Substance and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives with respect
thereto.
(ii) "Hazardous Substance" means, without limitation,
any flammable explosives, radioactive materials, asbestos, urea formaldehyde
foam insulation, polychlorinated biphenyls, petroleum and petroleum based
products, methane, hazardous materials, hazardous wastes, hazardous or toxic
substances or related materials, as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601, ET SEQ.), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Sections 1801, ET SEQ.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. Sections 6901, ET SEQ.), the Toxic Substances Control Act, as
amended (15 U.S.C. Sections 2601, ET SEQ.), or any other applicable
Environmental Law.
(iii) "Indemnitee" means Beneficiary, its
participants in the loan evidenced by the Notes and all subsequent holders of
the Deed of Trust, their respective successors and assigns, their respective
officers, directors, employees, agents, representatives, contractors and
subcontractors and any subsequent owner of the Property and Improvements who
acquires title thereto from or through Beneficiary.
(iv) "Release" has the same meaning as given to that
term in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, ET SEQ.) and the regulations
promulgated thereunder.
(b) Trustor represents and warrants to Beneficiary that, to its
knowledge after due investigation: (i) the Trust Property is being or have not
been used for the storage, treatment, generation, transportation, processing,
handling, production or disposal of any Hazardous Substance in violation of any
Environmental Laws; (ii) the Trust Property does not contain any Hazardous
Substances in violation of any Environmental Laws; (iii) there has been no
Release of any Hazardous Substance on, at or from the Project or any property
adjacent to or within the immediate vicinity of the Trust Property and Trustor
has not received any form of notice or inquiry with regard to such a Release or
threat of such a Release; (iv) no event has occurred with respect to the Trust
Property which, with the passage of time or the giving of notice, or both, would
constitute a violation of any applicable Environmental Law; (v) there are no
agreements or orders or directives of any federal, state or local governmental
agency or authority relating to the Trust Property which require any work,
repair, construction, containment, clean up, investigations, studies, removal or
other remedial action with respect to the Trust Property and (vi) there are no
actions, suits, claims or proceedings, pending or threatened, which seek any
remedy, that arise out of the condition, ownership, use, operation, sale,
transfer or conveyance of the Trust Property and (1) a violation or alleged
violation of any applicable Environmental Law, (2) the presence of any Hazardous
Substance or a Release of any Hazardous Substance or the threat of such a
Release, or (3) human exposure to any Hazardous Substance.
(c) Trustor covenants and agrees with Beneficiary as follows:
(i) Trustor shall keep, and shall cause all operators,
tenants, subtenants, licensees and occupants of the Project to keep, the Project
free of all Hazardous Substances, except for Hazardous Substances stored,
treated, generated, transported, processed, handled, produced or disposed of in
the normal operation of the Trust Property as a shopping center in accordance
with all Environmental Laws.
(ii) Trustor shall comply with, and shall cause all operators,
tenants, subtenants, licensee and occupants of the Trust Property to comply
with, all Environmental Laws.
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(iii) Trustor shall promptly provide Beneficiary with a copy
of all notifications which it gives or receives with respect to any past or
present Release of any Hazardous Substance or the threat of such a Release on,
at or from the Trust Property or any property adjacent to or within the
immediate vicinity of the Trust Property.
(iv) Trustor shall undertake and complete all investigations,
studies, sampling and testing for Hazardous Substances reasonably required by
Beneficiary and, in accordance with all Environmental Laws, all removal and
other remedial actions necessary to contain, remove and clean up all Hazardous
Substances that are determined to be present at the Project in violation of any
Environmental Laws.
(v) Beneficiary shall have the right, but not the obligation,
to cure any violation by Trustor of the Environmental Laws and Beneficiary's
cost and expense to so cure shall be secured by the Deed of Trust.
(d) Trustor covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Indemnitee
arising out of the condition, ownership, use, operation, sale, transfer or
conveyance of the Project and (i) the storage, treatment generation,
transportation, processing, handling, production or disposal of any Hazardous
Substance, (ii) the presence of any Hazardous Substance or a Release of any
Hazardous Substance or the threat of such a Release, (iii) human exposure to any
Hazardous Substance, (iv) a violation of any Environmental Law, or (v) a
material misrepresentation or inaccuracy in any representation or warranty or
material breach of or failure to perform any covenant made by Trustor herein
(collectively, the "Indemnified Matters").
The liability of Trustor to Indemnitee hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (i) the repayment of all
sums and the satisfaction of all obligations under the Notes, the Deed of Trust
or other Loan Documents, (ii) the sale of the Trust Property pursuant to the
power of sale contained herein or the acceptance of a deed in lieu thereof,
(iii) any amendment or modification of the Loan Documents by or for the benefit
of Trustor or any subsequent owner of the Trust Property, (iv) any extensions of
time for payment or performance required by any of the Loan Documents, (v) the
release or discharge of the Deed of Trust or of Trustor, or any other person
from the performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents whether by Beneficiary, by
operation of law or otherwise, (vi) the invalidity or unenforceability of any of
the terms or provisions of the Loan Documents, (vii) any exculpatory provision
contained in any of the Loan Documents limiting Beneficiary recourse to property
encumbered by the Deed of Trust or to any other security or limiting Beneficiary
rights to a deficiency judgment against Trustor, (viii) any applicable statute
of limitations, (ix) the sale or assignment of the Note or the Deed of Trust,
(x) the sale, transfer or conveyance of all or part of the Trust Property , (xi)
the dissolution or liquidation of Trustor, (xii) the release or discharge, in
whole or in part, of Trustor in any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or similar proceeding, or
(xiv) any other circumstances which might otherwise constitute a legal or
equitable release or discharge, in whole or in part, of Trustor under the Notes
or the Deed of Trust.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Trustor may have to Beneficiary at common law.
24. SUBORDINATE DEEDS OF TRUST. Trustor shall not, without the prior
written consent of Beneficiary, which consent may be withheld in Beneficiary's
sole discretion, grant or permit to be created any lien, security interest or
other encumbrance, other than Permitted Encumbrances, covering any of the Trust
Property (each a "Subordinate Deed of Trust"). If Beneficiary consents to a
Subordinate Deed of Trust or if the foregoing prohibition is determined by a
court of competent
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jurisdiction to be unenforceable, any such Subordinate Deed of Trust shall
contain express covenants to the effect that:
(a) the lien of the Subordinate Deed of Trust and all
instruments incorporated therein by reference is and always shall be
unconditionally subordinate to the lien of the Deed of Trust and to all advances
made pursuant to, and sums secured by, the Deed of Trust, and the Deed of Trust
and all instruments incorporated herein by reference may be renewed, extended,
restructured, modified, increased or reinstated at any time without giving
notice to or obtaining the consent of the holder of the Subordinate Deed of
Trust holder;
(b) if any action shall be instituted to sell the Trust
Property or otherwise enforce the Subordinate Deed of Trust, no tenant of any of
the Leases shall be named as a party defendant and no action shall be taken
which would terminate any occupancy or tenancy without the prior written consent
of Beneficiary;
(c) in the event of any conflict between the covenants and
agreements of the Deed of Trust and the Subordinate Deed of Trust, the covenants
and agreements of the Deed of Trust shall prevail;
(d) Rents, if collected by or for the holder of the
Subordinate Deed of Trust, shall be applied first to the payment of the
Indebtedness and expenses incurred in the ownership, operation and maintenance
of the Trust Property in such order as Beneficiary may determine, prior to being
applied to any indebtedness secured by the Subordinate Deed of Trust;
(e) a copy of any notice of default under the Subordinate Deed
of Trust and written notice and opportunity to cure of not less than thirty (30)
days prior to the commencement of any action to sell pursuant to a power of sale
contained therein or otherwise enforce the Subordinate Deed of Trust shall be
given to Beneficiary; and
(f) the holder of the Subordinate Deed of Trust shall
acknowledge the existence of the Indebtedness secured hereby and further
acknowledge that the lien of the Deed of Trust shall at all times be and remain
superior and prior to the lien of the Subordinate Deed of Trust to the extent of
the entire Indebtedness secured hereby, notwithstanding any change in the
variable rate of interest being charged under the Notes.
25. DEED OF TRUST. THIS IS A DEED OF TRUST FOR THE PURPOSES OF WEST
VIRGINIA CODE SS.38-1-14, AND SECURES THE MAXIMUM AMOUNT NOT TO EXCEED
$24,375,000, AND THIS DEED OF TRUST IS ALSO SECURITY FOR THE PAYMENT OF INTEREST
ON SUCH PRINCIPAL SUMS AND FOR TAXES, INSURANCE PREMIUMS AND OTHER OBLIGATIONS,
INCLUDING INTEREST THEREON, UNDERTAKEN BY BENEFICIARY OR TRUSTEE PURSUANT TO THE
PROVISIONS OF THIS DEED OF TRUST. THIS DEED OF TRUST SECURES FUTURE ADVANCES,
WHICH BENEFICIARY HAS AGREED TO MAKE TO TRUSTOR IN ACCORDANCE WITH AND SUBJECT
TO THE TERMS AND PROVISIONS OF THE LOAN DOCUMENTS. SUCH FUTURE ADVANCES ARE
INTENDED TO BE OBLIGATORY WITHIN THE MEANING OF WEST VIRGINIA CODE SS.38-1-14.
26. RELEASE. Upon payment of all sums secured by this Instrument,
Beneficiary shall release this Deed of Trust. Trustor shall pay Beneficiary's
reasonable costs incurred in releasing this Deed of Trust. If Trustee is
requested to release this Instrument upon payment of all sums secured by this
Instrument, the Note evidencing indebtedness secured by this Instrument shall be
surrendered to Trustee.
27. SUBSTITUTE TRUSTEE. If Trustee or any successor trustee to Trustee
should die, resign or become incapacitated or neglect, refuse or become
disqualified to act hereunder, Beneficiary at Beneficiary's option without
notice to Trustor may remove Trustee and appoint a successor trustee to any
Trustee appointed hereunder by an instrument recorded in the county in which
this Deed of
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Trust is recorded. Without conveyance of the Trust Property, the successor
trustee shall succeed to all the title, power and duties conferred upon the
Trustee herein and by applicable law.
28. BENEFICIARY'S ADDRESS. The beneficial owner and holder of the Note
is KeyBank National Association, whose address is 000 Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx, Xxxx 00000-0000.
29. NOTICE. All communications (including bank wire, telex, facsimile
transmission or similar writing) to be given hereunder shall be in writing and
shall be given as set forth below:
(1) If to Trustor, at the following address, or at such other
address as may have been furnished in writing by the Trustor:
Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000 Ext. 330
Facsimile: (000) 000-0000
(2) If to Beneficiary, at the following address, or at such other
address as may have been furnished in writing to the
Beneficiary:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(3) If to Trustee, at the following address, or at such other
address as may have been furnished in writing by the Trustee:
Xxxx X. Xxxxxxxxxxxx
000 Xxxx Xxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx
Each such notice or communication shall be effective (i) if given by
telecopy or facsimile, when such telecopy or facsimile is transmitted to the
facsimile number specified in this Section, (ii) if given by mail, seventy-two
(72) hours after such communication is deposited in the mail with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered at the address specified in this Section.
30. MISCELLANEOUS. The covenants herein contained shall bind, and the
benefits and advantages shall inure to, the respective successors and assigns of
the parties hereto. Whenever used, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all genders.
The captions used herein are for references only and shall not be deemed a part
of the Deed of Trust. If any provision of the Deed of Trust is illegal, or
hereafter rendered illegal, or is for any other reason void, voidable or
otherwise unenforceable, or hereafter rendered void, voidable or otherwise
unenforceable, the remainder of the Deed of Trust shall not be affected thereby,
but shall be construed as if it does not contain such provision. Each right and
remedy provided in the Deed of Trust is distinct and cumulative to all other
rights or remedies under the Deed of Trust or afforded by law or equity, and may
be exercised concurrently, independently or successively, in any order
whatsoever.
THE PARTIES ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT
MAY ARISE BETWEEN THE PARTIES, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF
WHICH THIS DEED OF TRUST ARISES WOULD MAKE ANY
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SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY. ACCORDINGLY, EACH OF THE PARTIES TO
THIS DEED OF TRUST HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY AS TO ANY AND ALL
DISPUTES THAT MAY ARISE RELATING TO THIS DEED OF TRUST.
IN WITNESS WHEREOF, Trustor has caused the Deed of Trust to be executed
this ____ day of June, 1999.
Signed and acknowledged Trustor:
in the presence of:
Glimcher Properties Limited Partnership
Xxxxxx Xxxxxx By: Glimcher Properties Corporation,
------------------------------- General Partner
Witness
------------------------
(printed)
Xxxx X. Gains By: Xxxxxxx X. Xxxxxxx,
------------------------------- -----------------------------------
Witness Xxxxxxx X. Xxxxxxx, Executive
------------------------ Vice President/COO/CFO
(printed)
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STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this ____ day of
_________________, 1999, by Xxxxxxx X. Xxxxxxx, Executive Vice President/COO/CFO
of Glimcher Properties Corporation, a Delaware corporation, for and on behalf of
said corporation in its capacity as the general partner of Glimcher Properties
Limited Partnership, a Delaware limited partnership, for and on behalf of the
limited partnership.
Xxxx X. Xxxxxx
---------------------------------------------
Notary Public
Commission
Expiration: November 1, 20002
----------------------------------
This instrument prepared by:
Xxxxx X. Xxxxxxxxx
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 located in file Corporation of Star City, Monongalia County,
West Virginia and being more particularly bounded and described as follows:
Beginning at an iron (Pt. #28) in the Southern Right of Way line of US Xx. 00 &
Xxxx Xxxxxxxx Xx. 0 commonly known as Monongahela Boulevard and in the Eastern
Right of Way line of the Baltimore & Ohio Railroad, thence with the road Right
of Way
South 71(Degree) 13' 30" East 166.32 feet to an iron pin (Pt. #29), thence
South 66(Degree) 41' 49" East 217.30 feet to Rail Road Spike (Pt. #24), thence
South 58(Degree) 45' 14" East 186.63 feet to an iron pin (Pt. #1), thence
South 50(Degree) 08' 39" East 205.27 feet to an iron pin (Pt. #33), thence
South 40(Degree) 06' 30" West 22.63 feet to an iron pin (Pt. #34), thence
leaving said Road Right of Way
North 85(Degree) 57' 00" West 184.98 feet to an iron pin (Pt. #35), thence
North 17(Degree) 00' 00" West 296.30 feet to an iron pin (Pt. #2) corner to
Tract #2 and in the Western Right of Way line to Normandy Street, thence with
same
South 17(Degree) 00' 00" West 150.00 feet to an iron pin (Pt. #26) corner to
Tract #3 thence,
South 17(Degree) 00' 00" West 150.00 feet to an iron pin (Pt. #5), thence
South 17(Degree) 00' 00" West 30.00 feet to an iron pin (Pt. #6), corner to
Tract #4, thence
South 17(Degree) 00' 00" West 100.00 feet to an iron pin (Pt. #9), thence
South 17(Degree) 00' 00" West 530.57 feet to an iron pin (Pt. #10), thence
South 46(Degree) 05' 00" East 98.25 feet to an iron pin (Pt. #11), corner to
Canton Street and West Virginia Utility property, thence with the West Virginia
Utility Property
South 39(Degree) 25' 00" West 311.24 feet to an iron pin (Pt. #12) in the
Eastern Right of Way line of the Baltimore and Ohio Railroad, thence with the
same
North 16(Degree) 36' 00" West 203.55 feet to an iron pin (Pt. #13), thence
North 09(Degree) 49' 00" West 189.06 feet to an iron pin (Pt. #14), thence
North 04(Degree) 12' 00" West 477.63 feet to an iron pin (Pt. #15), thence
North 13(Degree) 59' 00" East 98.28 feet to an iron pin (Pt. #16), thence
North 09(Degree) 30' 00" East 300.00 feet to an iron pin (Pt. #17), thence
North 03(Degree) 08' 30" East 100.73 feet to an iron pin (Pt. #18), thence
North 15(Degree) 22' 00" West 54.95 feet to an iron pin (Pt. #19), thence
North 09(Degree) 30' 00" East 50.00 feet to an iron pin (Pt. #20), thence
North 28(Degree) 04' 30" East 147.68 feet to an iron pin (Pt. #21), thence
North 11(Degree) 33' 00" West 130.88 feet to an iron pin (Pt. #22), thence
North 09(Degree) 30' 00" East 66.93 feet to an iron pin (Pt. #23), corner to
Tract #5, thence North 09(Degree) 30' 00" East 107.74 feet to the beginning
and containing 15.67 acres more or less and being a combination of Tracts #1
through #7 as recorded in Deed Book 802, Page 415, and as shown on a plat
attached hereto and made part of this description (See Map Cabinet No. 434-1).
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EXHIBIT B
PERMITTED EXCEPTIONS
1. Real estate taxes for the year 1999, which are not yet due and payable.
2. Up conveyance of mineral interests and rights-of-ways from Great Xxxxx
Coal and Coke Company to Xxxx Xxxxx, dated October 14, 1916 and
recorded October 25, 1916 in Deed Book 142, at Page 356, of the
Monongalia County Records, West Virginia.
3. Sewer Pipeline Right-of-Way from Xxxxxxxxx X. Xxxx, et al. to The Town
of Star City, dated June 19, 1917 and recorded September 11, 1918 in
Deed Book 147, at Page 214, of the Monongalia County Records, West
Virginia.
4. Telephone Communication System Right-of-Way from Xxxxxxxxx X. Xxxx, et
al. to Chesapeake & Potomac Telephone Company, dated September 20, 1929
and recorded in Deed Book 232, at Page 329, of the Monongalia County
Records, West Virginia.
5. Water Pipeline Right-of-Way from A..X. Xxxx, et al. to The Town of Star
City, dated January 18, 1936 and recorded in Deed Book 278, at Page 31,
of the Monongalia County Records, West Virginia.
6. Sewer Pipeline Right-of-Way from Xxxxxxxxx X. Xxxx, to The City of
Morgantown, et al. dated October 21, 1927 and recorded in Deed Book
218, at Page 231, of the Monongalia County Records, West Virginia.
7. Storm and Sanitary Sewer Pipeline Right-of-Ways from Beach Coal Company
to The City of Morgantown, dated February 1, 1965 and recorded February
22, 1965 in Deed Book 631, at Page 378, of the Monongalia County
Records, West Virginia.
8. Ingress, Egress and Regress right-of way from Beach Coal Company to
Xxxxxx X. Xxxxxxx and Xxxx Xxxxxxx, dated March 3, 1965 and recorded
March 6, 1965 in Deed Book 631, at Page 632, of the Monongalia County
Records, West Virginia.
9. Electric Distribution Easement from Xxxx X. Xxxxxx, Xx. and Xxxxx Xxx
Xxxxxx to Monongahela Power Company, recorded August 24, 1965 in Deed
Book 638, at Page 271, of the Monongalia County Records, West Virginia.
10. Electric Distribution System Right-of-Way Agreement from Beach Coal
Company to Monongahela Power Company dated August 12, 1965 and recorded
August 24, 1965 in Deed Book 638, at Page 277, of the Monongalia County
Records, West Virginia.
11. Covenants and Restrictions along with a right-of-way from Industrial
Avenue between Xxxx Xxxxx Xxxxx, et al. and Morgantown Plaza, Inc.,
dated June 3, 1966 and recorded June 29, 1966 in Deed Book 649, at Page
402, of the Monongalia County Records, West Virginia.
12. Pipeline Easement for water, oil, gas and other products from Beach
Coal Company to Consolidated Gas Supply Corporation, recorded July 16,
1966 in Deed Book 650, at Page 309, of the Monongalia County Records,
West Virginia.
13. Pipeline Easement for water, oil, gas and other products from Beach
Coal Company to Consolidated Gas Supply Corporation, dated February 11,
1966 and recorded August 3, 1966 in Deed Book 651, at Page 172, of the
Monongalia County Records, West Virginia.
14. Right-of-way for Ingress, Egress and Regress from Beach Coal Company to
The Town of Star City, recorded in Deed Book 658, at Page 389, of the
Monongalia County Records, West Virginia.
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15. Pipeline Easement for water, oil, gas and other products from
Morgantown Plaza, Inc., to Consolidated Gas Supply Corporation,
recorded March 23, 1967 in Deed Book 659, at Page 99, of the Monongalia
County Records, West Virginia.
16. Electric Distribution, Right-of-Way Agreement from Morgantown Plaza,
Inc., to Monongahela Company, dated May 2, 1967 and recorded May 19,
1967 in Deed Book 661, at Page 295, of the Monongalia County Records,
West Virginia.
17. Electric Distribution Easement from Morgantown Plaza, Inc., to
Monongahela Power Company, dated July 11, 1968 and recorded August 23,
1968 in Deed Book 677, at Page 620, of the Monongalia County Records,
West Virginia.
18. Pipeline Easement for water, oil, gas and other products from
Morgantown Plaza, Inc., to Consolidated Gas Supply Corporation, dated
October 13, 1968 and recorded December 11, 1968 in Deed Book 681, at
Page 266, of the Monongalia County Records, West Virginia.
19. Electric Distribution Line Easement from Morgantown Plaza, Inc. to
Monongahela Power Company, dated June 25, 1969 and recorded August 18,
1969 in Deed Book 689, at Page 238, of the Monongalia County Records,
West Virginia.
20. Gas Pipeline Right-of-Way from Morgantown Plaza, Inc. to Consolidated
Gas Supply Corporation, dated September 11, 1969 and recorded September
24, 1969 in Deed Book 690, at Page 460, of the Monongalia County
Records, West Virginia.
21. Distribution Line Easement from Morgantown Plaza, Inc., to Monongahela
Power Company, dated July 7, 1970 and recorded October 14, 1970 in Deed
Book 701, at Page 473, of the Monongalia County Records, West Virginia.
22. Distribution Line Easement from Morgantown Plaza, Inc., to Monongahela
Power Company, dated December 17, 1975 and recorded March 10, 1976 in
Deed Book 772, at Page 34, of the Monongalia County Records, West
Virginia.
23. Right-of-Way and Easement Agreement between Xxxxxxx Xxxxxxxx and The
City of Morgantown acting by and through the Morgantown Sanitary Board,
dated October 29, 1979 and recorded April 3, 1980 in Deed Book 837, at
Page 33, of the Monongalia County Records, West Virginia.
24. Distribution Line Easement from Xxxxxxx Xxxxxxxx and Dine Glimcher,
husband and wife, to Monongahela Power Company, dated August 27, 1980
and recorded September 26, 1980 in Deed Book 845, Page 88, of the
Monongalia County Records, West Virginia.
25. Distribution Line Easement from Xxxxxxx Xxxxxxxx and Xxxxx Xxxxxxxx,
husband and wife, to Monongahela Power Company, dated October 5, 1984
and recorded November 1, 1984 in Deed Book 915, Page 353, of the
Monongalia County Records, West Virginia.
26. Distribution Line Easement from Xxxxxxx Xxxxxxxx and Xxxxx X. Xxxxxxxx,
husband and wife, to Monongahela Power Company, dated November 14, 1985
and recorded January 22, 1986 in Deed Book 936, at Page 592, of the
Monongalia County Records, West Virginia.
27. That certain Right-of-Way for an electrical distribution system as
granted by Xxxxxxx Xxxxxxxx and Xxxxx X. Xxxxxxxx, husband and wife, to
Monongahela Power Company, a corporation, dated November 14, 1985 and
recorded January 22, 1986 in Deed Book 936, at Page 594, of the
Monongalia County Records, West Virginia.
28. Order of entry for Civil Action No. 89-P-89 between West Virginia
Public Energy Authority vs. Xxxxxxx Xxxxxxxx, et al. recorded July 5,
1989 in Deed Book 996, at Page 271, of the Monongalia County Records,
West Virginia.
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29. Order of entry for Civil Action No. 89-P-89 between West Virginia
Public Energy Authority, a Public corporation vs. Xxxxxxx Xxxxxxxx, et
al. recorded September 25, 1989 in Deed Book 1001, at Page 217, of the
Monongalia County Records, West Virginia.
30. Water Pipeline Right-of-Way and Easement from Xxxxxxx Xxxxxxxx to City
of Morgantown, dated April 19, 1993 and recorded April 30, 1993 in Deed
Book 1065, at Page 679, of the Monongalia County Records, West
Virginia.
31. Right of tenants as tenants only under any and all unrecorded leases.
32. Memorandum of Lease from Morgantown Plaza, Inc., Lessor and to Boron
Oil Company, Lessee, dated August 22, 1967 and recorded December 1,
1967 in Deed Book 668, at Page 315, said Lease was assigned by B.P.
Exploration & Oil Inc. to Go-Mart, Inc., by Assignment, dated January
2, 1992 and recorded January 27, 1992 in Book 31, at Page 616, of the
Monongalia County Records, West Virginia.
33. Lease between Morgantown Plaza, Inc., Lessor and Boron Oil Company,
Lessee, dated August 27, 1967 and recorded January 5, 1968 in Deed Book
669, at Page 281, said Lease was assigned from B.P. Exploration & Oil
Inc. to Go-Mart, Inc. by Assignment, dated January 2, 1992 and recorded
January 27, 1992 in Book 31, at Page 616, of the Monongalia County
Records, West Virginia.
34. Subordination Agreement between Shoe Corporation of America, Lessee,
Morgantown Plaza, Inc. Lessor and Dry Dock Savings Bank, dated March 1,
1968 and recorded March 15, 1968 in Deed Book 671, at Page 410, of the
Monongalia County Records, West Virginia.
35. Memorandum of Lease between Morgantown Plaza, Inc., Lessor and Cinema 1
& 2, Inc., Lessee, dated January 27, 1970 and recorded March 12, 1970
in Deed Book 694, at Page 478, of the Monongalia County Records, West
Virginia.
36. Subordination and Non-Disturbance Agreement between White Cross Stores,
Inc. of Xxxx Xxxxxxxx #00, as Lessee, Morgantown Plaza, Inc., as Lessor
and Dry Dock Savings Bank, dated March 13, 1970 and recorded March 30,
1970 in Deed Book 695, at Page 67, of the Monongalia County Records,
West Virginia.
37. Subordination Agreement between SCOA Industries, Inc., as Lessee,
Morgantown Plaza, Inc., as Lessor; and Dry Dock Savings Bank, as Bank,
dated April 3, 1970 and recorded April 13, 1970 in Deed Book 695, at
Page 443, of the Monongalia County Records, West Virginia.
38. Amendment to Lease between Xxxxxxx Xxxxxxxx and Go-Mart, Inc., dated
November 15, 1993 and recorded December 27, 1993 in Deed Book 1080, at
Page 210, of the Monongalia County Records, West Virginia.
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