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Exhibit - 10.114
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxx Xxxxxxxx, Esq.
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
PPM Loan No. 99-0018
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DEED TO SECURE DEBT AND SECURITY AGREEMENT
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THIS DEED TO SECURE DEBT AND SECURITY AGREEMENT (together with all
amendments and supplements hereto, this "Mortgage") is made as of September,
1999, between GLIMCHER PROPERTIES LIMITED PARTNERSHIP a Delaware limited
partnership (the "Mortgagor") 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, and
XXXXXXX NATIONAL LIFE INSURANCE COMPANY, a Michigan corporation (the
"Mortgagee"), c/o PPM Finance, Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000.
1. MORTGAGE AND SECURED OBLIGATIONS.
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1.1. MORTGAGE. For purposes of securing payment and performance of
the Secured Obligations defined and described in SECTION 1.2, Mortgagor hereby
irrevocably and unconditionally grants, bargains, sells, conveys, warrants,
assigns and pledges to Mortgagee, with right of entry and possession, and with
power of sale, all estate, right, title and interest which Mortgagor now has or
may later acquire in and to the following property (all or any part of such
property, or any interest in all or any part of it, as the context may require,
the "Property"):
(a) the real property located in the County of Richmond and
County of Columbia, State of Georgia and more particularly described in
EXHIBIT A attached hereto, together with all existing and future
easements and rights affording access to it (the "Land");
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(b) all buildings, structures and improvements now located or
later to be constructed on the Land (the "Improvements");
(c) all existing and future appurtenances, privileges,
easements, franchises and tenements of the Land, including all
minerals, oil, gas, other hydrocarbons and associated substances,
sulfur, nitrogen, carbon dioxide, helium and other commercially
valuable substances which may be in, under or produced from any part of
the Land, all development rights and credits, air rights, water, water
rights (whether riparian, appropriative or otherwise, and whether or
not appurtenant) and water stock, and any land lying in the streets,
roads or avenues, open or proposed, in front of or adjoining the Land
and Improvements;
(d) all existing and future leases, subleases, subtenancies,
licenses, occupancy agreements and concessions ("Leases", as defined in
the Assignment of Leases and Rents described in SECTION 2 herein,
executed and delivered to Lender contemporaneously herewith) relating
to the use and enjoyment of all or any part of the Land and
Improvements, and any and all guaranties and other agreements relating
to or made in connection with any of such leases;
(e) all goods, materials, supplies, chattels, furniture,
fixtures, equipment and machinery now or later to be attached to,
placed in or on, or used in connection with the use, enjoyment,
occupancy or operation of all or any part of the Land and Improvements,
whether stored on the Land or elsewhere, including all pumping plants,
engines, pipes, ditches and flumes, and also all gas, electric,
cooking, heating, cooling, air conditioning, lighting, refrigeration
and plumbing fixtures and equipment, all of which shall be considered
to the fullest extent of the law to be real property for purposes of
this Mortgage;
(f) all building materials, equipment, work in process or
other personal property of any kind, whether stored on the Land or
elsewhere, which have been or later will be acquired for the purpose of
being delivered to, incorporated into or installed in or about the Land
or Improvements;
(g) all of Mortgagor's interest in and to the Loan funds,
whether disbursed or not, the Escrow Accounts (as defined in SECTION
3.1 of the Loan Agreement) and any of Mortgagor's funds now or later to
be held by or on behalf of Mortgagee;
(h) all rights to the payment of money, accounts, accounts
receivable, reserves, deferred payments, refunds, cost savings,
payments and deposits, whether now or later to be received from third
parties (including all xxxxxxx money sales deposits) or deposited by
Mortgagor with third parties (including all utility deposits), contract
rights, development and use rights, governmental permits and licenses,
applications, architectural and engineering plans, specifications and
drawings, as-built drawings, chattel paper, instruments, documents,
notes, drafts and letters of credit (other than letters of credit in
favor of Mortgagee), which arise from or relate to construction on the
Land or to any business now or later to be conducted on it, or to the
Land and Improvements generally;
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(i) all proceeds, including all claims to and demands for
them, of the voluntary or involuntary conversion of any of the Land,
Improvements or the other property described above into cash or
liquidated claims, including proceeds of all present and future fire,
hazard or casualty insurance policies and all condemnation awards or
payments now or later to be made by any public body or decree by any
court of competent jurisdiction for any taking or in connection with
any condemnation or eminent domain proceeding, and all causes of action
and their proceeds for any damage or injury to the Land, Improvements
or the other property described above or any part of them, or breach of
warranty in connection with the construction of the Improvements,
including causes of action arising in tort, contract, fraud or
concealment of a material fact;
(j) all books and records pertaining to any and all of the
property described above, including computer-readable memory and
software necessary to access and process such memory ("Books and
Records"). Notwithstanding anything in the foregoing to the contrary,
Books and Records shall not be deemed to include the general corporate
books and records of the Mortgagor which are maintained by Mortgagor on
a consolidated basis for all of Mortgagor's properties (which
properties include the Property being secured hereunder) except to the
extent that information in such consolidated books and records pertains
to the Property secured hereunder;
(k) the agreements described in EXHIBIT B attached hereto,
which exhibit is incorporated herein by reference; (ii) all other
agreements heretofore or hereafter entered into relating to the
construction, ownership, operation, management, leasing or use of the
Land or Improvements; (iii) any and all present and future amendments,
modifications, supplements, and addenda to any of the items described
in (i) and (ii) above; (iv) any and all guarantees, warranties and
other undertakings (including payment and performance bonds) heretofore
or hereafter entered into or delivered with respect to any of the items
described in clauses (i) through (iii) above; (v) all trade names,
trademarks, logos and other materials used to identify or advertise, or
otherwise relating to the Land or Improvements; and (vi) all building
permits, governmental permits, licenses, variances, conditional or
special use permits, and other authorizations (collectively, the
"Permits") now or hereafter issued in connection with the construction,
development, ownership, operation, management, leasing or use of the
Land or Improvements, to the fullest extent that the same or any
interest therein may be legally assigned by Mortgagor; and
(l) all right, title and interest of Mortgagor, now or
hereafter arising, in and to that certain parcel of real property
adjoining the Land and described in EXHIBIT B attached hereto (the
"Adjacent Tract") arising and provided under that certain
Third Amendment to Lease Agreement by and between PaineWebber Retail
Property Investments, Ltd., a Texas limited partnership transacting
business in the State of Georgia as PaineWebber Retail Property
Investments, Ltd. L.P., as lessor, and Wal-Mart Stores, Inc., as
lessee dated October 16, 1996 (the "Lease Agreement"); in the event
Mortgagor acquires fee title to all or any portion of the Adjacent
Tract as provided in the Lease Agreement, the lien and security title
of this Mortgage shall, without further action by any party, extend and
spread to such portion of the Adjacent Tract so acquired by Mortgagor
and the buildings, structures and
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improvements thereon, and the Additional Tract shall thereafter
constitute a portion of the Land for all purposes and the buildings,
structures and improvements thereon shall thereafter constitute part of
the Improvements for all purposes (upon acquisition of fee title to the
Adjacent Tract, Mortgagor shall execute any instrument reasonably
requested by Mortgagee to confirm the expansion and spread of the lien
and security title of this Mortgage to the Adjacent Tract),
(m) all proceeds of, additions and accretions to, substitutions
and replacements for, and changes in any of the property described
above.
Capitalized terms used above and elsewhere in this Mortgage without definition
have the meanings given them in the Loan Agreement referred to in SECTION 1.2
below.
1.2. SECURED OBLIGATIONS. This Mortgage is made for the purpose of
securing the following obligations (the "Secured Obligations") in any order of
priority that Mortgagee may choose:
(a) Payment of all obligations at any time owing under a
Promissory Note (the "Note") of even date herewith, payable by
Mortgagor as maker in the stated principal amount of Ninety Million
Dollars ($90,000,000.00) to the order of Mortgagee, which Note matures
and is due and payable in full not later than July 1, 2009; and
(b) Payment and performance of all obligations of Mortgagor
under a Loan Agreement of even date herewith between Mortgagor, as
borrower, and Mortgagee, as lender (the "Loan Agreement"); and
(c) Payment and performance of all obligations of Mortgagor
under this Mortgage; and
(d) Payment and performance of any obligations of Mortgagor
under any Loan Documents (as defined in the Loan Agreement) which are
executed by Mortgagor, including without limitation the Environmental
Indemnity; and
(e) Payment and performance of all future advances and other
obligations that Mortgagor or any successor in ownership of all or part
of the Property may agree to pay and/or perform (whether as principal,
surety or guarantor) for the benefit of Mortgagee, when a writing
evidences the parties' agreement that the advance or obligation be
secured by this Mortgage; and
(f) Payment and performance of all modifications, amendments,
extensions and renewals, however evidenced, of any of the Secured
Obligations.
All persons who may have or acquire an interest in all or any part of the
Property will be considered to have notice of, and will be bound by, the terms
of the Secured Obligations and each other agreement or instrument made or
entered into in connection with each of the Secured Obligations. These terms
include any provisions in the Note or the Loan Agreement which provide that the
interest rate on one or more of the Secured Obligations may vary from time to
time.
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2. ASSIGNMENT OF RENTS. As an inducement to Mortgagee to make the loan
evidenced by the Note and the Loan Agreement, Mortgagor has contemporaneously
herewith executed and delivered to Mortgagee an Assignment of Leases and Rents
with respect to the Property.
3. GRANT OF SECURITY INTEREST.
3.1. SECURITY AGREEMENT. The parties acknowledge that some of the
Property and some or all of the Rents (as defined in the Assignment of Leases
and Rents) may be determined under applicable law to be personal property or
fixtures. To the extent that any Property or Rents may be personal property,
Mortgagor as debtor hereby grants Mortgagee as secured party a security interest
in all such Property and Rents, to secure payment and performance of the Secured
Obligations. This Mortgage constitutes a security agreement under the Uniform
Commercial Code as in effect in the State in which the Property is located (the
"Code), covering all such Property and Rents.
3.2. FINANCING STATEMENTS. Mortgagor shall execute one or more
financing statements and such other documents as Mortgagee may from time to time
require to perfect or continue the perfection of Mortgagee's security interest
in any Property or Rents. Mortgagor shall pay all fees and costs that Mortgagee
may incur in filing such documents in public offices and in obtaining such
record searches as Mortgagee may reasonably require. In case Mortgagor fails to
execute any financing statements or other documents for the perfection or
continuation of any security interest, Mortgagor hereby appoints Mortgagee as
its true and lawful attorney-in-fact to execute any such documents on its
behalf.
3.3. FIXTURE FILING. This Mortgage constitutes a financing statement
filed as a fixture filing under Sections 9-313 and 9-402 of the Code, as amended
or recodified from time to time, covering any of the Property which now is or
later may become fixtures attached to the Land or the Improvements. The
following addresses are the mailing addresses of Mortgagor, as debtor under the
Code, and Mortgagee, as secured party under the Code, respectively:
MORTGAGOR: Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
MORTGAGEE: Xxxxxxx National Life Insurance Company
c/o PPM Finance, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
4. REPRESENTATIONS, COVENANTS AND AGREEMENTS.
4.1. GOOD TITLE. Mortgagor covenants that it is lawfully seized of
the Property, that the Property is unencumbered except for the Permitted
Exceptions (as defined in the Loan Agreement), and that it has good right, full
power and lawful authority to convey and mortgage
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the same, and that it will warrant and forever defend the Property and the quiet
and peaceful possession of the same against the lawful claims of all persons
whomsoever.
4.2. INSURANCE. In the event of any loss or damage to any portion of
the Property due to fire or other casualty, or a taking of any portion of the
Property by condemnation or under the power of eminent domain, the settlement of
all insurance and condemnation claims and awards and the application of
insurance and condemnation proceeds shall be governed by SECTION 5 of the Loan
Agreement.
4.3. STAMP TAX. If, by the laws of the United States of America, or
of any state or political subdivision having jurisdiction over Mortgagor, any
tax is due or becomes due in respect of the issuance of the Note, or recording
of this Mortgage, Mortgagor covenants and agrees to pay such tax in the manner
required by any such law. Mortgagor further covenants to hold harmless and
agrees to indemnify Mortgagee, its successors or assigns, against any liability
incurred by reason of the imposition of any tax on the issuance of the Note or
recording of this Mortgage.
4.4. CHANGES IN TAXATION. Other than a tax that may arise in
connection with a transfer of the Note by Mortgagee or that is imposed on the
income of the Mortgagee, in the event of the enactment after this date of any
law of the State in which the Property is located or any political subdivision
thereof deducting from the value of land for the purpose of taxation any lien
thereon, or imposing upon Mortgagee the payment of the whole or any part of the
taxes or assessments or charges or liens herein required to be paid by
Mortgagor, or changing in any way the laws relating to the taxation of mortgages
or debts secured by mortgages or the Mortgagee's interest in the Property, or
the manner of collection of taxes, so as to affect this Mortgage or the Secured
Obligations, then Mortgagor, upon demand by Mortgagee, shall pay such taxes or
assessments, or reimburse Mortgagee therefor; provided, however, that if in the
opinion of counsel for Mortgagee (i) it might be unlawful to require Mortgagor
to make such payment or (ii) the making of such payment might result in the
imposition of interest beyond the maximum amount permitted by law, then
Mortgagee may elect, by notice in writing given to Mortgagor, to declare all of
the Secured Obligations to be and become due and payable sixty (60) days from
the giving of such notice.
4.5. SUBROGATION. Mortgagee shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole
or in part by Mortgagee in accordance with this Mortgage or with the proceeds of
any loan secured by this Mortgage.
4.6. NOTICE OF CHANGE. Mortgagor shall give Mortgagee prior written
notice of any change in: (a) the location of its place of business or its chief
executive office if it has more than one place of business; (b) the location of
any of the Property, including the Books and Records; and (c) Mortgagor's name
or business structure. Unless otherwise approved by Mortgagee in writing, all
Property that consists of personal property (other than the Books and Records)
will be located on the Land and all Books and Records will be located at
Mortgagor's place of business or chief executive office if Mortgagor has more
than one place of business.
4.7. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY.
From time to time, Mortgagee may perform any of the following acts without
incurring any liability or giving notice
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to any person: (i) release any person liable for payment of any Secured
Obligation; (ii) extend the time for payment, or otherwise alter the terms of
payment, of any Secured Obligation; (iii) accept additional real or personal
property of any kind as security for any Secured Obligation, whether evidenced
by deeds of trust, mortgages, security agreements or any other instruments of
security; (iv) alter, substitute or release any property securing the Secured
Obligations; (v) consent to the making of any plat or map of the Property or any
part of it; (vi) join in granting any easement or creating any restriction
affecting the Property; or (vii) join in any subordination or other agreement
affecting this Mortgage or the lien of it.
5. DEFAULTS AND REMEDIES.
5.1. EVENTS OF DEFAULT. An "Event of Default," as defined in the Loan
Agreement, shall constitute an Event of Default hereunder.
5.2. REMEDIES At any time after an Event of Default, Mortgagee shall
be entitled to invoke any and all of the rights and remedies described below, in
addition to all other rights and remedies available to Mortgagee at law or in
equity. All of such rights and remedies shall be cumulative, and the exercise of
any one or more of them shall not constitute an election of remedies.
(a) ACCELERATION. Mortgagee may declare any or all of the
Secured Obligations to be due and payable immediately.
(b) RECEIVER. Mortgagee shall, as a matter of right, without
notice and without giving bond to Mortgagor or anyone claiming by,
under or through Mortgagor, and without regard for the solvency or
insolvency of Mortgagor or the then value of the Property, to the
extent permitted by applicable law, be entitled to have a receiver
appointed for all or any part of the Property and the Rents, and the
proceeds, issues and profits thereof, with the rights and powers
referenced below and such other rights and powers as the court making
such appointment shall confer, and Mortgagor hereby consents to the
appointment of such receiver and shall not oppose any such appointment.
Such receiver shall have all powers and duties prescribed by the
applicable laws in effect in the state in which the Property is
located, all other powers which are necessary or usual in such cases
for the protection, possession, control, management and operation of
the Property, and such rights and powers as Mortgagee would have, upon
entering and taking possession of the Property under subsection (c)
below.
(c) ENTRY. Mortgagee, in person, by agent or by court-appointed
receiver, may enter, take possession of, manage and operate all or any
part of the Property, and may also do any and all other things in
connection with those actions that Mortgagee may in its sole discretion
consider necessary and appropriate to protect the security of this
Mortgage. Such other things may include: taking and possessing all of
Mortgagor's or the then owner's Books and Records; entering into,
enforcing, modifying or canceling leases on such terms and conditions
as Mortgagee may consider proper; obtaining and evicting tenants;
fixing or modifying Rents; collecting and receiving any payment of
money owing to Mortgagor; completing any unfinished construction;
and/or contracting for and making repairs and alterations. If Mortgagee
so requests, Mortgagor shall
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assemble all of the Property that has been removed from the Land and
make all of it available to Mortgagee at the site of the Land.
Mortgagor hereby irrevocably constitutes and appoints Mortgagee as
Mortgagor's attorney-in-fact to perform such acts and execute such
documents as Mortgagee in its sole discretion may consider to be
appropriate in connection with taking these measures, including
endorsement of Mortgagor's name on any instruments.
(d) CURE; PROTECTION OF SECURITY. Mortgagee may cure any
breach or default of Mortgagor, and if it chooses to do so in
connection with any such cure, Mortgagee may also enter the Property
and/or do any and all other things which it may in its sole discretion
consider necessary and appropriate to protect the security of this
Mortgage. Such other things may include: appearing in and/or defending
any action or proceeding which purports to affect the security of, or
the rights or powers of Mortgagee under, this Mortgage; paying,
purchasing, contesting or compromising any encumbrance, charge, lien or
claim of lien which in Mortgagee's sole judgment is or may be senior in
priority to this Mortgage, such judgment of Mortgagee to be conclusive
as between the parties to this Mortgage; obtaining insurance and/or
paying any premiums or charges for insurance required to be carried
under the Loan Agreement; otherwise caring for and protecting any and
all of the Property; and/or employing counsel, accountants, contractors
and other appropriate persons to assist Mortgagee. Mortgagee may take
any of the actions permitted under this SECTION 5.2(D) either with or
without giving notice to any person. Any amounts expended by Mortgagee
under this SECTION 5.2(D) shall be secured by this Mortgage.
(e) UNIFORM COMMERCIAL CODE REMEDIES. Mortgagee may exercise
any or all of the remedies granted to a secured party under Code.
(f) FORECLOSURE; LAWSUITS. Mortgagee shall have the right, in
one or several concurrent or consecutive proceedings, to foreclose the
lien hereof upon the Property or any part thereof, for the Secured
Obligations, or any part thereof, by any proceedings appropriate under
applicable law. Mortgagee or its nominee may bid and become the
purchaser of all or any part of the Property at any foreclosure or
other sale hereunder, and the amount of Mortgagee's successful bid
shall be credited on the Secured Obligations. Without limiting the
foregoing, Mortgagee may proceed by a suit or suits in law or equity,
whether for specific performance of any covenant or agreement herein
contained or contained in any of the other Loan Documents (as defined
in the Loan Agreement), or in aid of the execution of any power herein
granted, or for any foreclosure under the judgment or decree of any
court of competent jurisdiction, or for damages, or to collect the
indebtedness secured hereby, or for the enforcement of any other
appropriate legal, equitable, statutory or contractual remedy.
Mortgagee may sell the Property at public auction in one or more
parcels, at Mortgagee's option, and convey the same to the purchaser in
fee simple, Mortgagor to remain liable for any deficiency for which
Mortgagor shall be personally liable.
(g) OTHER REMEDIES. Mortgagee may exercise all rights and
remedies contained in any other instrument, document, agreement or
other writing heretofore, concurrently or in the future executed by
Mortgagor or any other person or entity in favor
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of Mortgagee in connection with the Secured Obligations or any part
thereof, without prejudice to the right of Mortgagee thereafter to
enforce any appropriate remedy against Mortgagor. Mortgagee shall have
the right to pursue all remedies afforded to a mortgagee under the
applicable laws of the state in which the Property is located, and
shall have the benefit of all of the provisions of any such laws,
including all amendments thereto which may become effective from time
to time after the date hereof. In the event any provision of any such
laws may be repealed, Mortgagee shall have the benefit of such
provision as most recently existing prior to such repeal, as though the
same were incorporated herein by express reference.
(h) POWER OF SALE FOR PERSONAL PROPERTY. Under this power of
sale, Mortgagee shall have the discretionary right to cause some or all
of the Property, which constitutes personal property, to be sold or
otherwise disposed of in any combination and in any manner permitted by
applicable law.
(i) For purposes of this power of sale, Mortgagee may
elect to treat as personal property any Property which is
intangible or which can be severed from the Land or
Improvements without causing structural damage. If it chooses
to do so, Mortgagee may dispose of any personal property in
any manner permitted by Article 9 of the Code, including any
public or private sale, or in any manner permitted by any
other applicable law.
(ii) In connection with any sale or other disposition
of such Property, Mortgagor agrees that the following
procedures constitute a commercially reasonable sale:
Mortgagee shall mail written notice of the sale to Mortgagor
not later than ten (10) days prior to such sale. Upon receipt
of any written request, Mortgagor will make the Property
available to any bona fide prospective purchaser for
inspection during reasonable business hours. Notwithstanding,
Mortgagee shall be under no obligation to consummate a sale
if, in its judgment, none of the offers received by it equals
the fair value of the Property offered for sale. The foregoing
procedures do not constitute the only procedures that may be
commercially reasonable.
(i) SINGLE OR MULTIPLE FORECLOSURE SALES. If the Property
consists of more than one lot, parcel or item of property, Mortgagee
may:
(i) designate the order in which the lots, parcels
and/or items shall be sold or disposed of or offered for sale
or disposition; and
(ii) elect to dispose of the lots, parcels and/or
items through a single consolidated sale or disposition to be
held or made under or in connection with judicial proceedings,
or by virtue of a judgment and decree of foreclosure and sale,
or pursuant to the power of sale contained herein; or through
two or more such sales or dispositions; or in any other manner
Mortgagee may deem to be in its best interests (any
foreclosure sale or disposition as permitted by the terms
hereof is sometimes referred to herein as a "Foreclosure
Sale;" and any two or more such sales, "Foreclosure Sales").
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(j) POWER OF SALE. Mortgagee, with or without entry,
personally or by its agents or attorneys, may sell the
Property or any part of the Property at one or more public
sale or sales at the usual place for conducting sales of the
county in which the Land or any part of the Land is situated,
to the highest bidder for cash, in order to pay the Secured
Obligations, and all expenses of sale and of all proceedings
in connection therewith, including reasonable attorney's fees,
after advertising the time, place, and terms of sale once a
week for four (4) weeks immediately preceding such sale (but
without regard to the number of days) in a newspaper in which
sheriff's sales are advertised in said county, all other
notice being hereby waived by Mortgagor. Mortgagor or its
nominee may bid and become the purchaser of all or any part of
the property at any foreclosure sale hereunder (to the extent
permitted by applicable law). At any such public sale,
Mortgagee may execute and deliver to the purchaser a
conveyance of the Property or any part of the Property in fee
simple, with full warranties of title, and to this end
Mortgagor hereby constitutes and appoints Mortgagee the agent
and attorney-in-fact of Mortgagor to make such sale and
conveyance, and thereby to divest Mortgagor of all right,
title and equity that Mortgagor may have in and to the
Property and to vest the same in the purchaser or purchasers
at such sale or sales, and all the acts and doings of said
agent and attorney-in-fact are hereby ratified and confirmed,
and any recitals in said conveyance or conveyances as to facts
essential to a valid sale shall be binding upon Mortgagor. The
aforesaid power of sale and agency hereby granted are coupled
with an interest and are irrevocable by death or otherwise and
shall not be exhausted by one exercise thereof but may be
exercised until full payment of all of the indebtedness
secured hereby. In the event of any sale under this Mortgage
by virtue of the exercise of the powers herein granted, or
pursuant to any order in any judicial proceeding or otherwise,
the Property may be sold as an entirety or in separate parcels
and in such manner or order as Mortgagee in its discretion may
elect, and if Mortgagee so elects, Mortgagee may sell the
personal property covered by this Mortgage at one or more
separate sales in any manner permitted by the Code, and one or
more exercises of the powers herein granted shall not
extinguish nor exhaust such powers, until the entire Property
is sold or the indebtedness secured hereby is paid in full.
Mortgagee may, at its option, sell the Property subject to the
rights of any tenants of the Property, and the failure to make
any such tenants parties to the foreclosure proceedings and to
foreclose their rights will not be asserted by Mortgagor to be
a defense to any proceedings instituted by Mortgagee to
collect the indebtedness secured hereby. If the indebtedness
secured is now or hereafter further secured by any chattel
mortgages, pledges, contracts of guaranty, assignments of
lease or other security instruments, Mortgagee may at its
option exhaust the remedies granted under any of the said
security either concurrently or independently, and in such
order as Mortgagee may determine in its discretion. In the
event of any such foreclosure sale by Mortgagee, Mortgagor
shall be deemed a tenant holding over and shall forthwith
deliver possession to the purchaser or purchasers at such sale
or be summarily dispossessed according to provisions of law
applicable to tenants holding over. Mortgagee may proceed in a
suit or suits in law or equity for the enforcement of any
appropriate legal, equitable, statutory, or contractual
remedy. In case Mortgagee shall have proceeded to enforce any
right, power or remedy under this Mortgage by foreclosure,
entry or otherwise in the event Mortgagee commences
advertising of the intended exercise of the sale under power
provided hereunder, and such
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proceeding or advertisement shall have been withdrawn,
discontinued or abandoned for any reason, then in every such
case (i) Mortgagor and Mortgagee shall be restored to their
former positions and rights, (ii) all rights, powers, and
remedies of Mortgagee shall continue as if no such proceeding
had been taken, (iii) each and every Event of Default declared
or occurring prior or subsequent to such withdrawal,
discontinuance or abandonment shall be deemed to be a
continuing Event of Default, and (iv) neither this Mortgage,
nor the Note, nor the indebtedness secured hereby, nor any
other Loan Document shall be or shall be deemed to be
reinstated or otherwise affected by such withdrawal,
discontinuance or abandonment; and Mortgagor hereby expressly
waives the benefit of any statute or rule of law now provided,
or which may hereafter be provided, which would produce a
result contrary to or in conflict with this sentence.
Mortgagee reserves the right to proceed against Mortgagor for
any deficiency owed to Mortgagee after any such public sale
described herein by pursuing a confirmation action after the
foreclosure sale in accordance with applicable Georgia law.
If it chooses to have more than one Foreclosure Sale, Mortgagee at its option
may cause the Foreclosure Sales to be held simultaneously or successively, on
the same day, or on such different days and at such different times and in such
order as it may deem to be in its best interests. No Foreclosure Sale shall
terminate or affect the liens of this Mortgage on any part of the Property which
has not been sold, until all of the Secured Obligations have been paid in full.
5.3. APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of any
Foreclosure Sale shall be applied in the following manner:
(a) First, to pay the portion of the Secured Obligations
attributable to the expenses of sale, costs of any action and any other
sums for which Mortgagor is obligated to reimburse Mortgagee hereunder
or under the other Loan Documents;
(b) Second, to pay the portion of the Secured Obligations
attributable to any sums expended or advanced by Mortgagee under the
terms of this Mortgage which then remain unpaid;
(c) Third, to pay all other Secured Obligations in any order
and proportions as Mortgagee in its sole discretion may choose; and
(d) Fourth, to remit the remainder, if any, to the person or
persons entitled to it.
6. RELEASE OF LIEN. If Mortgagor shall fully pay and perform all of the
Secured Obligations and comply with all of the other terms and provisions hereof
and the other Loan Documents to be performed and complied with by Mortgagor,
then Mortgagee shall release this Mortgage and the lien thereof by proper
instrument upon payment, performance and discharge of all of the Secured
Obligations and payment by Mortgagor of any filing fee in connection with such
release.
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7. MISCELLANEOUS PROVISIONS.
7.1. ADDITIONAL PROVISIONS. The Loan Documents fully state all of the
terms and conditions of the parties' agreement regarding the matters mentioned
in or incidental to this Mortgage. The Loan Documents also grant further rights
to Mortgagee and contain further agreements and affirmative and negative
covenants by Mortgagor which apply to this Mortgage and the Property.
7.2. GIVING OF NOTICE. Any notice, demand, request or other
communication which any party hereto may be required or may desire to give
hereunder shall be given as provided in SECTION 9.3 of the Loan Agreement.
7.3. REMEDIES NOT EXCLUSIVE. No action for the enforcement of the
lien or any provision hereof shall be subject to any defense which would not be
good and available to the party interposing same in an action at law upon the
Note. Mortgagee shall be entitled to enforce payment and performance of any of
the Secured Obligations and to exercise all rights and powers under this
Mortgage or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Secured Obligations may now or hereafter be
otherwise secured, whether by mortgage, deed of trust, pledge, lien, assignment
or otherwise. Neither the acceptance of this Mortgage nor its enforcement,
whether by court action or other powers herein contained, shall prejudice or in
any manner affect Mortgagee's right to realize upon or enforce any other
security now or hereafter held by Mortgagee, it being agreed that Mortgagee
shall be entitled to enforce this Mortgage and any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. No waiver of any default of the Mortgagor hereunder shall
be implied from any omission by Mortgagee to take any action on account of such
default if such default persists or is repeated, and no express waiver shall
affect any default other than the default specified in the express waiver and
that only for the time and to the extent therein stated. No acceptance of any
payment of any one or more delinquent installments which does not include
interest at the Default Rate from the date of delinquency, together with any
required late charge, shall constitute a waiver of the right of Mortgagee at any
time thereafter to demand and collect payment of interest at such Default Rate
or of late charges, if any.
7.4. WAIVER OF STATUTORY RIGHTS. To the extent permitted by law,
Mortgagor hereby agrees that it shall not and will not apply for or avail itself
of any appraisement, valuation, stay, extension or exemption laws, or any
so-called "Moratorium Laws," now existing or hereafter enacted, in order to
prevent or hinder the enforcement or foreclosure of this Mortgage, but hereby
waives the benefit of such laws. Mortgagor for itself and all who may claim
through or under it waives any and all right to have the property and estates
comprising the Property marshaled upon any foreclosure of the lien hereof and
agrees that any court having jurisdiction to foreclose such lien may order the
Property sold as an entirety. Mortgagor hereby waives any and all rights of
redemption from sale under the power of sale contained herein or any order or
decree of foreclosure of this Mortgage on its behalf and on behalf of each and
every person, except decree or judgment creditors of Mortgagor, acquiring any
interest in or title to the Property subsequent to the date of this Mortgage.
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7.5. ESTOPPEL AFFIDAVITS. Mortgagor, within fifteen (15) days after
written request from Mortgagee, shall furnish a written statement, duly
acknowledged, setting forth the unpaid principal of, and interest on, the
Secured Obligations and stating whether or not any offset or defense exists
against such Secured Obligations, and covering such other matters as Mortgagee
may reasonably require.
7.6. MERGER. No merger shall occur as a result of Mortgagee's
acquiring any other estate in or any other lien on the Property unless Mortgagee
consents to a merger in writing.
7.7. BINDING ON SUCCESSORS AND ASSIGNS. This Mortgage and all
provisions hereof shall be binding upon Mortgagor and all persons claiming under
or through Mortgagor, and shall inure to the benefit of Mortgagee and its
successors and assigns.
7.8. CAPTIONS. The captions and headings of various paragraphs of
this Mortgage are for convenience only and are not to be construed as defining
or limiting, in any way, the scope or intent of the provisions hereof.
7.9. SEVERABILITY. If all or any portion of any provision of this
Mortgage shall be held to be invalid, illegal or unenforceable in any respect,
then such invalidity, illegality or unenforceability shall not affect any other
provision hereof or thereof, and such provision shall be limited and construed
as if such invalid, illegal or unenforceable provision or portion thereof was
not contained herein.
7.10. EFFECT OF EXTENSIONS OF TIME AND AMENDMENTS. If the payment of
the Secured Obligations or any part thereof be extended or varied or if any part
of the security be released, all persons now or at any time hereafter liable
therefor, or interested in the Property, shall be held to assent to such
extension, variation or release, and their liability and the lien and all
provisions hereof shall continue in full force, the right of recourse, if any,
against all such persons being expressly reserved by Mortgagee, notwithstanding
such extension, variation or release. Nothing in this SECTION 7.10 shall be
construed as waiving any provision contained herein or in the Loan Documents
which provides, among other things, that it shall constitute an Event of Default
if the Property be sold, conveyed, or encumbered.
7.11. MORTGAGEE'S LIEN FOR SERVICE CHARGE AND EXPENSES. At all times,
regardless of whether any proceeds of the loan secured hereby have been
disbursed, this Mortgage secures (in addition to the amounts secured hereby) the
payment of any and all commissions, service charges, liquidated damages,
expenses and advances due to or incurred by Mortgagee in connection with such
loan; provided, however, that in no event shall the total amount secured hereby
exceed two hundred percent (200%) of the face amount of the Note.
7.12. APPLICABLE LAW. This Mortgage shall be governed by and construed
under the internal laws of the State in which the Property is located.
7.13. LIMITATION OF LIABILITY. The personal liability of Mortgagor and
its general partner hereunder is limited to the extent set forth in SECTION 9.18
of the Loan Agreement.
7.14. DUE ON SALE CLAUSE. As more fully set forth in SECTION 6.4 of
the Loan Agreement, the transfer or encumbrance of the Property, or any interest
therein, or the transfer of
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an interest in Mortgagor, except for the permitted transfers set forth in
SECTION 6.5 of the Loan Agreement, without prior written consent of Mortgagee,
shall constitute an Event of Default.
7.15. TIME IS OF THE ESSENCE. Time is of the essence with respect to
each and every covenant, agreement and obligation of Mortgagor under this
Mortgage, the Note and the other Loan Documents.
7.16. RECORDATION. Mortgagor forthwith upon the execution and delivery
of this Mortgage, and thereafter from time to time, will cause this Mortgage,
and any security instrument creating a lien or evidencing the lien hereof upon
the Property, or any portion thereof, and each instrument of further assurance,
to be filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect the lien hereof upon, and the interest of Mortgagee in, the Property.
Mortgagor will pay all filing, registration or recording fees and
taxes, and all expenses incident to the preparation, execution and
acknowledgment of this Mortgage, any mortgage supplemental hereto, any security
instrument with respect to the Property and any instrument of further assurance,
and all federal, state, county and municipal stamp taxes, duties, impositions,
assessments and charges arising out of or in connection with the execution and
delivery of the Note, this Mortgage, any mortgage supplemental hereto, any
security instrument, any other Loan Documents or any instrument of further
assurance.
7.17. MODIFICATIONS. This Mortgage may not be changed or terminated
except in writing signed by both parties. The provisions of this Mortgage shall
extend and be applicable to all renewals, amendments, extensions,
consolidations, and modifications of the other Loan Documents, and any and all
references herein to the Loan Documents shall be deemed to include any such
renewals, amendments, extensions, consolidations or modifications thereof.
7.18. INDEPENDENCE OF SECURITY. Except as may exist pursuant to
easements and agreements existing as of the date hereof which have been
disclosed to Mortgagee, Mortgagor shall not by act or omission permit any
building or other improvement on any premises not subject to the lien of this
Mortgage to rely on the Property or any part thereof or any interest therein to
fulfill any municipal or governmental requirement, and Mortgagor hereby assigns
to Mortgagee any and all rights to give consent for all or any portion of the
Property to rely on any premises not subject to the lien of this Mortgage or any
interest therein to fulfill any municipal or governmental requirement. Mortgagor
shall not by act or omission impair the integrity of the Property as a single
zoning lot, and as one or more complete tax parcels, separate and apart from all
other premises. Any act or omission by Mortgagor which would result in a
violation of any of the provisions of this SECTION 7.18 shall be void.
8. GEORGIA LAW PROVISIONS. The following provisions are included in this
Mortgage and shall prevail to the extent of any conflict with any other
provision of this Mortgage.
8.1. HABENDUM CLAUSE. TO HAVE AND TO HOLD all and singular the
Property, whether now owned or held or hereafter acquired, unto Mortgagee and
its successors and assigns, forever in fee simple, WITH POWER OF SALE, upon the
terms and conditions herein
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set forth for the benefit and security of the Note and for the enforcement of
the payment of the principal, premium and interest on the Note in accordance
with its terms, and all other sums payable hereunder or under the Note and the
performance and observance of the provisions of the Note and this Mortgage, all
as herein set forth.
IT IS HEREBY COVENANTED, DECLARED AND AGREED that the Note is to be
issued under and secured by this Mortgage and that the Property is to be held by
Mortgagee upon and subject to the provisions of the Mortgage.
THIS INSTRUMENT is a deed passing title to the Property to Mortgagee
and is made under laws of the State of Georgia relating to deeds to secure debt,
and is not a mortgage, and is given to secure the Secured Obligations evidenced
by the Note and the performance and observance of the provisions of the Loan
Documents.
SHOULD THE INDEBTEDNESS BE PAID according to the tenor and effect
thereof when the same shall become due and payable, and should Mortgagor perform
all covenants and obligations herein contained in a timely manner, then this
Mortgage shall be canceled and surrendered.
9. DELIVERY OF MORTGAGE. Mortgagor hereby acknowledges that it has received
a copy of this Mortgage.
10. FUTURE ADVANCES. This Mortgage is given to secure not only the existing
indebtedness, but also any and all future advances and disbursements (the
"Future Advances") now and hereafter (i) made by Mortgagee to Mortgagor under
the terms of the Loan Documents, and (ii) made prior to Mortgagee receiving
"actual notice" (as such term is defined in Section 44-14-2 1(b) of the Official
Code of Georgia Annotated) of any transfer by Mortgagor of the Property or any
valuable interest therein, regardless of the total amount of such advances and
disbursements and regardless of whether such total amount of advances and
disbursements should exceed the aggregate face amount of the Note, together with
any and all additional advances made by Mortgagee to protect and preserve the
Property or the security interest created hereby in the Property, or for the
payment of any insurance premiums, or for the performance of any of Mortgagor's
obligations hereunder or under the Loan Documents, or for another purpose
provided herein or therein (to the extent permitted by applicable law).
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IN WITNESS WHEREOF, Mortgagor has executed, sealed and delivered this
Mortgage under seal as of the date first written above.
MORTGAGOR
Signed, sealed and delivered
in the Presence of: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware
limited partnership
By: Glimcher Properties Corporation,
------------------------------ a Delaware Corporation, its
Unofficial Witness sole general partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
/s/ Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxx
------------------------------ Executive Vice President
Notary Public Chief Financial Officer and COO
My Commission expires: 1-30-2000
(CORPORATE SEAL)
[Notary Seal]
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EXHIBIT A
---------
LEGAL DESCRIPTION
-----------------
PARCEL I
All that tract or parcel of land lying and being located in the 1269th G.M.D.,
west of the City of Augusta, (Richmond County and Columbia County) Georgia,
containing 44.79 acres and being more particularly described as follows:
Beginning at the intersection of the southerly right of way of Xxxxx Xxxxx
Memorial Drive and the easterly right of way of Xxxxx Xxxxx Expressway
(Interstate 520); thence along the easterly right of way of Xxxxx Xxxxx
Expressway (Interstate 520) in a northerly direction a distance of 288.29 feet
to a #4 rebar found being the POINT OF BEGINNING; thence along the easterly
right of way of Xxxxx Xxxxx Expressway (Interstate 520) North 18 degree 54'47"
West a distance of 768.39 feet to a #4 rebar set; thence leaving the easterly
right of way of Xxxxx Xxxxx Expressway (Interstate 520) North 71 degree 05'13"
East a distance of 250.00 feet to a #4 rebar found; thence North
18 degree 56'40" West a distance of 58.63 feet to a p.k. nail found; thence
18 degree 46'40" West a distance of 8.63 feet to a #4 rebar found; thence along
a curve a length of 729.94 feet having a radius of 2970.47 feet with a chord of
North 25 degree 06'12" West a distance of 728.10 feet to a p.k. nail found;
thence South 64 degree 48'55" West a distance of 251.98 feet to a p.k. nail
found on the easterly right of way of Xxxxx Xxxxx Expressway; thence along the
easterly right of way of Xxxxx Xxxxx Expressway as it curves a length of 280.40
feet having a radius of 2720.43 feet with a chord of North 35 degree 43'47" West
a distance of 280.28 feet to a #4 rebar found; thence leaving the easterly right
of way of Xxxxx Xxxxx Expressway (Interstate 520) North 58 degree 09'13" East a
distance of 242.05 feet to an "X" in concrete found; thence North
38 degree 12'59" West a distance of 240.00 feet to a #4 rebar found; thence
South 46 degree 21'59" West a distance of 251.34 feet to a #4 rebar found on the
easterly right of way of Xxxxx Xxxxx Expressway (Interstate 520); thence along
the easterly right of way of Xxxxx Xxxxx Expressway (Interstate 520) North
46 degree 26'56" West a distance of 55.04 feet to a 3" open top pipe found;
thence leaving the easterly right of way of Xxxxx Xxxxx Expressway (Interstate
520) North 50 degree 11'42" East a distance of 234.51 feet to a #4 rebar set;
thence North 50 degree 21'20" East a distance of 418.09 feet to a #8 rebar
found; thence South 67 degree 09'37" East a distance of 136.30 feet to a #4
rebar found; thence North 66 degree 01'32" East a distance of 30.12 feet to a #4
rebar set; thence North 24 degree 00'33" West a distance of 21.46 feet to a #4
rebar set; thence North 74 degree 19'40" East a distance of 199.10 feet to a
point; thence North 74 degree 14'14" East a distance of 176.76 feet to a point;
thence North 74 degree 17'39" East a distance of 18.80 feet to a p.k. nail set;
thence South 23 degree 22'34" East a distance of 288.86 feet to a p.k. nail set;
thence South 18 degree 41'24" East a distance of 182.37 feet to a #4 rebar set;
thence South 00 degree 36'30" West a distance of 59.01 feet to a #4 rebar set;
thence South 11 degree 11'48" East a distance of 440.80 feet to a #4 rebar set;
thence South 46 degree 00'51" East a distance of 71.42 feet to a #4 rebar set;
thence South 20 degree 49'39" East a distance of 179.32 feet to a #4 rebar set;
thence South 80 degree 43'27" East a distance of 119.77 feet to a #4 rebar
found; thence along a curve a length of 135.16 feet having a radius of 1014.30
feet with a chord of South 05 degree 36'51" East a distance of 135.06 feet to a
#4 rebar found; thence along a curve a length of 40.01 feet having a radius of
1014.30 feet with a chord of South 10 degree 35'02" East a distance of 40.01
feet to a #4 rebar found; thence along a curve a length of 106.24 feet having a
radius of 1014.30 feet with a chord of South 15 degree 04'59" East a distance of
106.19 feet to a #4 rebar found; thence South 17 degree 37'24" East
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a distance of 293.63 feet to a #4 rebar found; thence South 24 degree 02'29"
East a distance of 149.29 feet to a #4 rebar found; thence South 24 degree
00'22" East a distance of 342.43 feet to a #4 rebar found on the northerly right
of way of Xxxxx Xxxxx Memorial Drive; thence along the northerly right of way of
Xxxxx Xxxxx Memorial Drive South 65 degree 48'43" West a distance of 687.66 feet
to a #4 rebar found; thence along the northerly right of way of Xxxxx Xxxxx
Memorial Drive North 22 degree 01'16" West a distance of 10.00 feet to a #4
rebar found; thence continuing along the northerly right of way of Xxxxx
Memorial Drive South 65 degree 52'29" West a distance of 76.80 feet to a #4
rebar found; thence leaving the northerly right of way of Xxxxx Memorial Drive
North 09 degree 40'14" West a distance of 218.29 feet to a #4 rebar found;
thence South 71 degree 00'30" West a distance of 230.10 feet to the POINT OF
BEGINNING.
PARCEL II
Together with Easement for the benefit of Parcel I, which constitutes rights in
real property created, defined and limited by that certain Cross Easement
entered into and between Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx and Dayton &
Associates-XVI, a South Carolina General Partnership, dated July 30, 1987 and
recorded August 3, 1987 in Realty Reel 267, Page 1940, in Richmond County,
Georgia and recorded in Deed Book 602, Pages 56 through 65, in Columbia County,
Georgia, and by that subsequent Easement Agreement entered into and between
Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx and Dayton & Associates-XVI, a South
Carolina General Partnership, dated August 16, 1989 and recorded August 17, 1989
in Realty Reel 316, Page 1248, in Richmond County, Georgia, and recorded August
18, 1989 in Deed Book 000, Xxxx 000, xx Xxxxxxxx Xxxxxx, Xxxxxxx.
PARCEL III
Together with Easement for the benefit of Parcel I, which constitutes rights in
real property created, defined and limited by that certain Declaration of
Restrictions and Easements, imposed by Dayton & Associates-XVI, a South Carolina
General Partnership, dated August 16, 1989, recorded in Deed Book 780, Page 271,
in Columbia County, Georgia, and recorded September 20, 1989 in Realty Reel 316,
Page 1238, in Richmond County, Georgia.
PARCEL IV
Together with Easement for the benefit of Parcel I, which constitutes rights in
real property created, defined and limited by that certain Easement Agreement
between Richmond County and PaineWebber Retail Property Investments, Inc., dated
January 7, 1992 and recorded January 17, 1992 in Realty Reel 376, Page 1048,
Richmond County, Georgia.
PARCEL V
Together with Easements for the benefit of Parcel I, which constitutes rights in
real property created, defined and limited by that certain First Amendment to
Declaration of Restrictions and Easements between PaineWebber Retail Property
Investments, Ltd. and Wal-Mart Stores, Inc., dated December 18, 1992 and
recorded February 9, 1993 in Deed Book 1174, Pages 297-302, in
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Columbia County, Georgia, and recorded February 14, 1997 in Realty Reel 548,
Pages 948-955, in Richmond County, Georgia.
PARCEL VI
Together with Easements for the benefit of Parcel I, which constitutes rights in
real property created, defined and limited by that certain Easement Agreement
with Covenants and Restrictions Affection Land ("ECR") between Wal-Mart Stores,
Inc. and PaineWebber Retail Property Investments, Ltd., dated October 16, 1996
and recorded October 30, 1996 in Realty Reel 538, Pages 1002-1017, in Richmond
County, Georgia, and recorded November 21, 1996 in Deed Book 1778, Pages
193-207, in Columbia County, Georgia.
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