EXHIBIT 10.112
OPEN-END MORTGAGE
MODIFICATION OF MORTGAGE AND NOTE
This Open-End Mortgage, Modification of Mortgage (the "Agreement") is
entered into as of this ___ day of ________, 2005 by and between The Huntington
National Bank, a national banking association ("Mortgagee") and EM Columbus,
LLC, a Delaware limited liability company ("Mortgagor").
WHEREAS Mortgagor executed and delivered to Mortgagee a certain Note dated
December 22, 2003 in the original principal amount of Thirty Six Million And
00/100 Dollars ($36,000,000.00) ("Note");
WHEREAS, as security for the repayment of the Note, Mortgagor executed and
delivered to Mortgagee a certain Open-End Mortgage, Assignment of Rents and
Security Agreement (the "Mortgage"), which is recorded as Instrument Number
200401080006005 Recorder's Office, Franklin County, Ohio and encumbers certain
Property more particularly defined in the Mortgage and described in Exhibit A;
WHEREAS, Mortgagor has requested Mortgagee to make an additional loan to
complete the construction and renovation of the multi-tenant retail development
located on the property described on Exhibit "A" and an additional parcel
acquired by the Borrower subsequent to the execution and delivery of the
Mortgage, and Mortgagee is willing to do so, but only if the Mortgaged Property
as that term is defined in the Mortgage, is amended to include the premises
subsequently acquired, and all of the Personal Property as defined in the
Mortgage used in connection therewith. The premises acquired subsequent to the
execution and delivery of the Mortgage as well as the property described in
Exhibit "A" less a parcel which has been partially released from the Mortgage
are described and included in Exhibit "B" which is attached hereto and
incorporated herein by reference.
NOW THEREFORE, in consideration of one dollar and other good and valuable
consideration and in further consideration of Mortgagee making an additional
loan to Mortgagor and other good and valuable consideration, the receipt of
which is hereby acknowledged, Mortgagee and Mortgagor hereby agree as follows:
1. The first full paragraph on page 1 of the Mortgage is modified to read
in its entirety as follows:
KNOW ALL MEN BY THESE PRESENTS, that EM Columbus, LLC, a Delaware limited
liability company, having an office at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000
("Borrower"), in consideration of the payments to Borrower which THE HUNTINGTON
NATIONAL BANK, a national banking association, having an office at 00 Xxxxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000 ("Huntington"), has made contemporaneously herewith
or may hereafter make, does hereby GRANT, BARGAIN, SELL AND CONVEY unto
Huntington, its successors and assigns forever, certain real property situated
in the State of Ohio, County of Franklin and City of Columbus being more fully
described in Exhibit "B" hereto and by this reference made a part hereof (the
"Property"), together with the following, whether now owned or hereafter
acquired by Borrower: (a) all improvements now or hereafter attached to or
placed, erected, constructed or developed on the Property (collectively the
"Improvements"); (b) all fixtures, furnishings, equipment, inventory, and other
articles of personal property (collectively the "Personal Property") that are
now or hereafter attached to or used in or about the
Improvements or that are necessary or useful for the complete and comfortable
use and occupancy of the Improvements for the purposes for which they were or
are to be attached, placed, erected, constructed or developed or that may be
used in or related to the planning, development, financing or operation of the
Improvements, and all renewals of or replacements or substitutions for any of
the foregoing, whether or not the same are or shall be attached to the
Improvements or the Property; (c) all water and water rights, timber, crops, and
mineral interests pertaining to the Property; (d) all building materials and
equipment now or hereafter delivered to and intended to be installed in or on
the Improvements or the Property; (e) all plans and specifications for the
Improvements; (f) all contracts relating to the Property, the Improvements or
the Personal Property; (g) all deposits (including, without limitation, tenants'
security deposits), bank accounts, funds, documents, contract rights, accounts,
commitments, construction agreements, 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;
(h) all permits, licenses, franchises, certificates, and other rights and
privileges obtained in connection with the Property, the Improvements or the
Personal Property; (i) all proceeds arising from or by virtue of the sale, lease
or other disposition of the Property, the Improvements, the Personal Property or
any portion thereof or interest therein; (j) all proceeds (including, without
limitation, premium refunds) of each policy of insurance relating to the
Property, the Improvements or the Personal Property; (k) all proceeds from the
taking of any of the Property, the Improvements, the Personal Property or any
rights appurtenant thereto by right of eminent domain or by private or other
purchase in lieu thereof (including, without limitation, change of grade of
streets, curb cuts or other rights of access), for any public or quasi-public
use under any law; (l) all right, title and interest of Borrower in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Property; (m) all of the leases, licenses, occupancy
agreements, rents (including without limitation, room rents), royalties,
bonuses, issues, profits, revenues or other benefits of the Property, the
Improvements or the Personal Property, including, without limitation, cash or
securities deposited pursuant to leases to secure performance by the lessees of
their obligations thereunder; (n) all rights, hereditaments and appurtenances
pertaining to the foregoing; and (o) other interests of every kind and character
that Borrower now has or at any time hereafter acquires in and to the Property,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Borrower with respect thereto (all
of the same, including the Property, collectively the "Mortgaged Property").
2. The paragraph beginning on the penultimate line of page 1 of the
Mortgage and the first two paragraphs on page 2 thereof shall be modified to
read in their entirety as follows:
This Open-End Mortgage, Assignment of Rents and Security Agreement (the
"Mortgage") is given for the purpose of securing loan advances which Huntington
is obligated to make to Borrower for the construction and refurbishing of a
multi-tenant retail development on the Property (the "Project") pursuant to the
terms and conditions of a Loan Commitment Letter dated December 22, 2003, by and
between Borrower and Huntington (the "Loan Commitment") and the Construction
Loan Agreement attached thereto (the "Loan Agreement") pursuant to which the
remaining loan proceeds evidenced by the Note and which Mortgagor and Mortgagee,
hereby agree are to govern the disbursement of the loan evidenced by the note in
the amount of Six Million And 00/100 Dollars ($6,000,000.00). To the extent
necessary, the provisions of the Loan Agreement are hereby amended to include
and to provide for the disbursement of the additional Six Million And 00/100
Dollars ($6,000,00.00).
The parties hereto intend that, in addition to any other indebtedness or
obligations secured hereby, the Mortgage shall secure unpaid balances of loan
advances made after the Mortgage is delivered to the Recorder for record. Such
loan advances are and will be evidenced by a note or notes of Borrower. The
maximum amount of unpaid loan indebtedness, which shall consist of unpaid
balances of loan advances made either before or after, or both before and after,
the Mortgage is delivered to the Recorder for record, exclusive of interest
thereon and of advances for taxes, assessments, insurance premiums and costs
incurred for protection of the Mortgaged Property, which may be outstanding at
any time is Forty Two Million and 00/100 Dollars ($42,000,000.00).
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THE MORTGAGE IS GIVEN TO SECURE: the full and prompt payment, whether at
stated maturity, accelerated maturity or otherwise, of any and all indebtedness,
whether fixed or contingent (collectively the "Indebtedness") and the complete,
faithful and punctual performance of any and all other obligations (collectively
the "Obligations") of Borrower to Huntington under the terms and conditions of
(a) the Loan Commitment; (b) the Loan Agreement; the Note, payable not later
than January 1, 2007, and any and all renewals, amendments, modifications,
reductions and extensions thereof and substitutions therefore (c) the note of
even date in the principal amount of Six Million and 00/100 Dollars
($6,000,000.00) payable not later than January 1, 2007, and any and all
renewals, amendments, modifications, reductions and extensions thereof and
substitutions therefore (collectively the "Notes"); the Mortgage; and any other
instrument, document, certificate or affidavit heretofore, now or hereafter
given by Borrower evidencing or securing or by any person guaranteeing (the
"Guarantors") all or any part of the foregoing (the same together with the Loan
Agreement, the Notes and the Mortgage, collectively the "Loan Documents").
3. The first sentence of paragraph 19 of the Mortgage shall be modified to
read in its entirety as follows:
19. DEFAULT. The term "Event of Default" shall have the same meaning
as set forth in the Notes, which meaning is incorporated by this
reference herein.
4. Section 1.3 of the Note is deleted and the following substituted in lieu
thereof:
1.3 "Debt Service Coverage Ratio" shall mean the ratio of Net
Operating Income to Assumed Debt Service. "Assumed Debt Service" shall
mean the amount of principal and interest that would be due on a loan
in the amount of Forty Two Million Dollars And 00/100 Dollars
($42,000,000.00) being amortized in equal consecutive monthly payments
over twenty (20) years at an interest rate equal to the per annum rate
payable on ten-year United States Treasury Securities as published in
the most recent edition of Federal Reserve Statistical Release H.15
(519) preceding the date of testing, plus two and one half (2.5%) per
annum. "Net Operating Income" shall mean all rents and revenues of the
Project and Property based on executed leases less pro forma expenses
of the Project and Property, as set forth in the appraisal provided to
Huntington and acceptable to Huntington and/or in the leases,
exclusive of any payment of interest or principal on the Note and of
any charges or fees for the services of Borrower, its members, their
respective families or any party or entity financially affiliated with
any of the same.
5. Section 5.1(a) of the Note is deleted and the following is substituted
in lieu thereof:
(a) a failure by Borrower to make any payment of principal or interest
or both when due pursuant to the terms of this Note or the failure by
Borrower to make any payment of interest or both when due pursuant to
a note dated of even date with this Agreement in the amount of Six
Million And 00/100 Dollars ($6,000,000.00).
6. Mortgagor hereby confirms and ratifies all the terms and conditions of
the Note and Mortgage as modified hereby.
7. All other terms and conditions of the Note and Mortgage, which are not
expressly modified or amended herein, shall remain in full force and effect.
8. Mortgagee joins in the execution of this instrument for the sole purpose
of agreeing to the amendments herein contained.
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IN WITNESS WHEREOF, Mortgagor and Mortgagee have caused this instrument to
be executed as of this ____ day of _______, 2005.
BORROWER:
EM COLUMBUS, LLC, a
Delaware limited liability company
By: Glimcher Properties Limited
Partnership, a Delaware limited
Partnership, its member
By: Glimcher Properties Corporation,
A Delaware Corporation
By: ________________________________
Xxxxxx X. Xxxxxxx
Executive Vice President
The Huntington National Bank
By: ________________________________
Xxxxxx Xxxxxx
Its: Vice President
STATE OF OHIO
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this ___ day of
___________, 2005, by Xxxxxx X. Xxxxxxx, Executive Vice President of Glimcher
Properties, a Delaware Corporation, and General Partner of Glimcher Properties
Limited Partnership, a Delaware limited partnership and member of EM Columbus,
LLP, a liability company, on behalf of the limited liability company.
________________________________
Notary Public
Commission Expiration:__________
STATE OF OHIO
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this ___ day of ______.
2005, by Xxxxxx Xxxxxx, Vice President of The Huntington National Bank, a
national banking association, on behalf of the association.
________________________________
Signature of Notary
________________________________
Commission Expiration Date
This Instrument Prepared By:
Xxxxxx X. Xxxxx
Porter, Wright, Xxxxxx & Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
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