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EXHIBIT 10.8
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INDIANA
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MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, having an office at 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000 ("Borrower"), in consideration of the sum of One
Hundred Ninety Million Dollars ($190,000,000.00) does hereby MORTGAGE AND
WARRANT certain real property more fully described in Exhibit "A" attached
hereto and incorporated herein (the "Property") unto THE HUNTINGTON NATIONAL
BANK, a national banking association, having an office at 00 Xxxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000, as Administrative Agent for KeyBank National Association
Bank, The Huntington National Bank and certain other banks who are or may
hereafter become signatories to a certain Second Amended and Restated Loan
Agreement, dated May 15, 1997, by and among The Huntington National Bank,
KeyBank National Association, the other banks signatory thereto, Glimcher
Properties Limited Partnership, Glimcher Realty Trust and Glimcher Properties
Corporation (the "Loan Agreement"). The Huntington National Bank in its capacity
as Administrative Agent is hereinafter referred to as "Huntington".
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").
TO HAVE AND TO HOLD the Mortgaged Property, together with the rights,
privileges and appurtenances thereto belonging, unto Huntington and its
successors and assigns forever, and
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Borrower hereby binds itself and its successors and assigns to warrant and
forever defend the Mortgaged Property unto Huntington 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 leases,
and easements, agreements and restrictions of record and current real estate
taxes and assessments.
This Open-End Mortgage, Assignment of Rents and Security Agreement (the
"Mortgage") is given for the purpose of securing (i) loan advances which the
Banks are obligated to make to Borrower pursuant to the terms and conditions of
the Loan Agreement, which advances may be advanced, repaid and readvanced and
(ii) any other indebtedness or obligations of Borrower provided for in the Loan
Agreement.
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 under the terms and conditions of
(a) the Loan Agreement; (b) the Notes from time to time made by Borrower
pursuant to the Loan Agreement, not to exceed in the aggregate the principal
amount of One Hundred Ninety Million Dollars ($190,000,000.00), payable not
later than July 31, 1998, unless extended, and any and all renewals, amendments,
modifications, reductions and extensions thereof and substitutions therefor
(collectively the "Notes"); (c) the reimbursement agreements delivered to
Huntington from time to time pursuant to the Loan Agreement in connection with
letters of credit issued thereunder; (d) the Mortgage; and (e) any other
instrument, document, certificate or affidavit heretofore, now or hereafter
given by Borrower evidencing or securing all or any part of the foregoing (the
same together with the Loan Agreement, the Notes and the Mortgage, collectively
the "Loan Documents").
Borrower, for itself and its successors and assigns, hereby covenants
with Huntington, its successors and assigns, that:
1. TITLE. Borrower represents that it has good and marketable title in
fee simple to the Mortgaged Property, except for rights of tenants in possession
under leases, current real estate taxes and assessments and other matters and
encumbrances approved by Huntington for inclusion in the lender's policy of
title insurance issued by Chicago Title Insurance Company insuring the lien of
the Mortgage (the "Permitted Exceptions"). If the interest of Huntington in the
Mortgaged Property or any part thereof shall be endangered or shall be attacked,
directly or indirectly, Borrower hereby authorizes Huntington, at Borrower's
expense, to take all necessary and proper steps for the defense of such
interest, including the employment of counsel, the prosecution or defense of
litigation and the compromise or discharge of claims made against such interest.
Any sums so expended by Huntington shall be charged against Borrower and
collectible in accordance with the terms of Section 12 hereof.
2. FURTHER ASSURANCES. Borrower, upon the request of Huntington, shall
execute, acknowledge, deliver, file and record such further instruments and do
such further acts as may be necessary, desirable or proper to carry out the
purposes of the Loan Documents and to subject to the liens and security
interests created thereby any property intended by the terms thereof to be
covered thereby, including specifically, but without limitation, any renewals,
additions, substitutions, replacements, improvements or appurtenances to the
Mortgaged Property.
3. SUBROGATION FOR FURTHER SECURITY. Huntington 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 Huntington
and shall supersede the terms, provisions, rights, and remedies under the lien
or liens to which Huntington is subrogated.
4. STATUS QUO. Except as expressly permitted herein or except with the
written consent of Huntington, which consent may be withheld in Huntington's
sole discretion, Borrower shall not (a) sell, assign, mortgage, pledge, lease
(except for leases in the ordinary course of Borrower's business) or otherwise
convey or further encumber the Mortgaged Property, or any portion thereof, or
legal, equitable or beneficial interest therein; (b) sell, assign, pledge or
otherwise transfer any
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beneficial interests in Borrower which individually or in the aggregate would
have the effect of transferring the power to direct the operations of Borrower
or the Mortgaged Property; (c) contract for any of the same; (d) permit the
Mortgaged Property, or any portion thereof, or legal, equitable or beneficial
interest therein, to be subject to any superior or inferior lien or encumbrance;
(e) subdivide, resubdivide or submit to the condominium form of ownership all or
any portion of the Mortgaged Property, or any portion thereof; or (f) initiate
or acquiesce in any change in the zoning classification of the Property or any
portion thereof.
5. PAYMENT OF INDEBTEDNESS. Borrower shall promptly pay the
Indebtedness as the same becomes due and payable.
6. ESTOPPEL CERTIFICATE. Borrower shall furnish to Huntington within
ten (10) days of any written request of Huntington, a written statement, duly
acknowledged by Borrower, setting forth the sums secured by the Mortgage and any
right of set-off, counterclaim or other defense which Borrower alleges to exist
against such sums and obligations secured by the Mortgage.
7. TAXES AND OTHER IMPOSITIONS. Borrower shall promptly pay before
delinquency all taxes, assessments, charges, fines or impositions, general,
local or special (collectively the "Impositions"), levied upon the Mortgaged
Property, or any part thereof, or upon Huntington's interest therein, or upon
the Mortgage 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 Huntington;
provided that Borrower, at Borrower's own cost and expense may, if it shall in
good faith so desire, contest the validity or amount of any Impositions, in
which event Borrower may defer the payment thereof for such period as such
contest shall be actively prosecuted and shall be pending undetermined; further
provided, however, that Borrower shall not allow any such Impositions so
contested to remain unpaid for such length of time as shall permit all or any
portion of the Mortgaged Property, or the lien thereon created by such item, to
be sold by federal, state, county or municipal authority for the nonpayment
thereof. Pending any such contest, Borrower shall maintain adequate book
reserves with respect to such Impositions being contested.
In the event that one or more of the Impositions on Huntington's
interest in the Mortgaged Property, the Mortgage or the Indebtedness cannot be
lawfully paid by Borrower, then the Mortgaged Property shall be withdrawn from
the Collateral Pool (as such team is defined in the Loan Agreement). In the
event the withdrawal of the Mortgaged Property from the Collateral Pool causes
Borrower not to be in compliance with the required loan to value ratio under the
Loan Agreement, Borrower may either furnish substitute property, as provided in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
8. INSURANCE AND INDEMNIFICATION. Borrower shall provide, maintain and
keep in force at all times the following policies of insurance:
(a) Insurance against loss or damage to the Improvements and
the Personal Property caused by fire and any of the risks covered by insurance
of the type now known as "coverage against all risks of physical loss", in an
amount equal to one hundred percent (100%) of the replacement cost of the
Improvements and the Personal Property and sufficient to prevent Borrower and
Huntington from becoming co-insurers, and otherwise with terms and conditions
acceptable to Huntington;
(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 Huntington;
(c) Worker's compensation insurance (including employer's
liability insurance, if available and requested by Huntington) for all employees
of Borrower engaged on or with respect
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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 Huntington;
(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 Huntington;
(e) Upon obtaining a certificate of occupancy for the
Improvements or any portion thereof, business interruption insurance and/or loss
of "rental value" insurance in an amount not less than the appraised rentals for
the Mortgaged Property for a minimum of twelve (12) months, and otherwise with
terms and conditions acceptable to Huntington;
(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 Huntington; and
(g) Such other insurance coverage, and in such amount, as may
from time to time be reasonably required by Huntington against the same or other
hazards.
All such policies shall be in a form acceptable to Huntington. 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
Huntington, showing Huntington as loss payee. Each policy of liability insurance
shall show Huntington as an additional insured. Unless the policy so provides,
each policy of insurance required by the terms of the Mortgage shall contain an
endorsement by the insurer, for the benefit of Huntington, (i) that any loss
shall be payable in accordance with the terms of such policy notwithstanding any
act or negligence of Borrower, (ii) that any rights of set-off, counterclaim or
deductions against Borrower are waived and (iii) that such policy shall not be
canceled or changed except upon not less than thirty (30) days prior written
notice delivered to Huntington.
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 XV or be expressly approved by Huntington in
writing.
Huntington shall have the right to hold the policies, or certificates
thereof acceptable to Huntington with certified copies of the policies, and
Borrower shall promptly furnish to Huntington all renewal notices and all
receipts of paid premiums. At least thirty (30) days prior to the expiration
date of any such policy, Borrower shall deliver to Huntington a renewal policy,
or certificate thereof, in form acceptable to Huntington.
If Huntington is made a party defendant to any litigation concerning
the Loan Documents or the Mortgaged Property or any part thereof or interest
therein or the occupancy thereof by Borrower, then Borrower shall indemnify,
defend and hold Huntington harmless from all liability by reason of said
litigation, including reasonable attorneys' fees and expenses incurred by
Huntington in any such litigation, whether or not any such litigation is
prosecuted to judgment. Borrower waives any and all right to claim or recover
against Huntington, its officers, employees, agents and representatives, for
loss of or damage to Borrower, the Mortgaged Property, other property of
Borrower or the property of others under control of Borrower from any cause
insured against or required to be insured against by the provisions of the
Mortgage.
Borrower shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section unless Huntington has approved the insurance company and the form and
content of the insurance policy, including, without limitation, the naming
thereon of Huntington as a named insured with loss payable to Huntington under a
standard mortgage clause of the character above described. Borrower shall
immediately notify Huntington whenever any such separate insurance is taken out
and shall promptly deliver to Huntington copies of the policies and certificates
evidencing such insurance.
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Nothing contained in this Section 8 shall prevent Borrower from keeping
the Improvements and Personal Property insured or causing the same to be insured
against the risks referred to in this Section 8 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Mortgage; 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 Mortgage; (ii) shall not contain any clause
which would result in the insured thereunder becoming a co-insurer of any loss
with the insurer under such policy; and (iii) shall in all other respects comply
with the provisions of the Mortgage.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Borrower, and used
by Borrower to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Borrower should elect option (ii) above, if a material decrease in the
fair market value of the Mortgaged Property is indicated, Huntington shall be
entitled, at its option, to cause the Mortgaged Property to be reappraised at
Borrower's expense to satisfy itself of continued compliance by Borrower with
the loan to value ratio required by the Loan Agreement. In the event the results
of such reappraisal causes Borrower not to be in compliance with the required
loan to value ratio, Borrower may either furnish substitute property, as
provided for in Section 7 of the Loan Agreement, or pay down the Indebtedness in
an amount which will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
Huntington as escrow agent for the purpose of repairing, restoring or
reconstructing the Improvements. Such proceeds shall be disbursed by Huntington
as work progresses, provided that prior to any disbursement, Huntington 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, Huntington must be satisfied that repair,
restoration or reconstruction of the damaged or destroyed Improvements will be
substantially equal in size, quality and value to the Improvements then
presently erected on the Mortgaged Property as existed immediately prior to the
loss and the plans and specifications therefor must be approved by Huntington.
In the event Huntington believes it is necessary in order to establish value,
Huntington may, at its option, cause the Mortgaged Property to be reappraised at
Borrower's expense. All insurance proceeds shall be payable to Huntington. The
adjustment of such insurance proceeds with the carrier must be approved by
Huntington.
Anything in this Section 8 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Huntington, be applied by Huntington to the
Indebtedness in such order as Huntington may determine.
9. ESCROW. Borrower, in order to more fully protect the security of the
Mortgage, does hereby covenant and agree that, if Borrower shall fail to timely
pay taxes, assessments or insurance premiums as provided above, or in the event
of any other default and Huntington does not then elect to exercise its other
remedies, then Borrower shall, upon request of Huntington, pay to Huntington 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. Huntington
shall hold such monthly payments which may be mingled with its general funds,
without obligation to pay interest thereon, unless otherwise required by
applicable law, to pay such taxes, assessments, and insurance premiums when due.
Borrower agrees that sufficient funds shall be so accumulated for the payment of
said charges one (1) month prior to the due date thereof and that Borrower shall
furnish Huntington with proper statements covering the same fifteen (15) days
prior to the due dates thereof. In the event of foreclosure of the Mortgage, or
if Huntington should take a deed in lieu of foreclosure, the amount so
accumulated shall be credited on account of the unpaid principal or interest. If
the total of the monthly payments as made
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under this Section 9 shall exceed the payments actually made by Huntington, such
excess shall be credited on subsequent monthly payments of the same nature, but
if the total of such monthly payments so made under this Section 9 shall be
insufficient to pay such taxes, assessments, and insurance premiums then due,
then said Borrower shall pay upon demand the amount necessary to make up the
deficiency, which payments shall be secured by the Mortgage. To the extent that
all the provisions of this Section 9 for such payments of taxes, assessments,
and insurance premiums to Huntington, are complied with, Borrower shall be
relieved of compliance with the covenants contained in Sections 7 and 8 herein
as to the amounts paid only, but nothing contained in this Section 9 shall be
construed as in any way limiting the rights of Huntington at its option to pay
any and all of said items when due.
10. WASTE; REPAIR. Borrower shall neither commit nor permit any waste
on the Property and shall keep all Improvements now or hereafter erected on the
Property in good condition and repair.
11. ALTERATIONS; CONSTRUCTION. Borrower shall have the right to remove,
demolish or alter any of the Improvements, now existing or hereafter constructed
on the Property, or any of the Personal Property in or on the Property or
Improvements, to the extent that the value of same is not diminished. If
Huntington believes that there has been a material decrease in value following
any such removal, demolition, or alteration, it may, at its option, cause the
Mortgaged Property to be reappraised at Borrower's expense.
12. ADVANCES SECURED BY MORTGAGE. Upon failure of Borrower to comply
with any of these covenants and agreements as to the payment of taxes,
assessments, insurance premiums, repairs, protection of the Mortgaged Property
or Huntington's lien thereon, and other charges and the costs of procurement of
title evidence and insurance as aforesaid, Huntington may, at its option, pay
the same, and any sums so paid by Huntington, together with the reasonable fees
of counsel employed by Huntington in consultation and in connection therewith,
shall be charged against Borrower, shall be immediately due and payable by
Borrower, shall bear interest at the Default Rate of Interest (as defined in the
Notes) and shall be a lien upon the Mortgaged Property and be secured by the
Mortgage and may be collected in the same manner as the principal debt hereby
secured.
13. USE. Unless Huntington otherwise agrees in writing, Borrower shall
not allow changes in the nature of the occupancy for which the Property and
Improvements were intended at the time the Mortgage was executed. Borrower shall
comply with the laws, ordinances, regulations and requirements of any
governmental body applicable to the Mortgaged Property, both during the
construction of any Improvements on the Property and subsequent to the
completion thereof, and Borrower shall not permit the use thereof for any
illegal purpose.
14. INSPECTION. Any person authorized by Huntington shall have the
right to enter upon and inspect the Mortgaged Property after reasonable notice
to Borrower and during normal business hours. Huntington shall have no duty,
however, to make such inspections. Any inspection of the Mortgaged Property by
Huntington shall be entirely for its benefit, and Borrower shall in no way rely
or claim reliance thereon.
15. MINERALS. Without the prior written consent of Huntington, there
shall be no drilling or exploring for, or extraction, removal, or production of,
minerals from the surface or subsurface of the Property. The term "minerals" as
used herein shall include, without limitation, oil, gas, casinghead gas, coal,
lignite, hydrocarbons, methane, carbon dioxide, helium, uranium and all other
natural elements, compounds and substances, including sand and gravel.
16. CONDEMNATION. If all the Mortgaged Property and Improvements are
taken or acquired in any condemnation proceeding or by exercise of the right of
eminent domain or, with Huntington'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 Huntington, and
Huntington 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 Huntington. Such award or payment so received by Huntington shall be applied
to the Indebtedness (whether or not then due and payable).
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In the event a portion of the Property Improvements are acquired in any
condemnation proceeding or by the exercise of the right of eminent domain, to
the extent that the damage to the Property or improvements is in the amount of
$500,000.00 or less, and provided there is no Event of Default, as hereinafter
defined, the proceeds of any such condemnation or eminent domain award shall be
paid to Borrower, who shall use such proceeds as provided for in paragraph 8
hereof with respect to the disbursement of insurance proceeds where the damage
or destruction is in an amount of $500,000.00 or less. The provisions of
paragraph 8 with respect to reappraisal and substitute property where there is
damage or destruction in an amount of $500,000.00 or less shall apply as if
fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with Huntington as escrow agent for the purpose of
repairing, restoring, or reconstructing the Improvements and/or Property, and
shall be disbursed by Huntington in accordance with the provisions of paragraph
8 hereof with respect to the disbursement of insurance proceeds, where the
damage or destruction is in an amount of $500,000.00 or greater. The conditions
to disbursement, including the requirement that Huntington be satisfied that the
repaired or restored Improvements would be equal in size, quality and value to
those which existed previously, and the right to cause the Mortgaged Property to
be reappraised, as provided for where there is damage or destruction of
$500,000.00 or greater, shall be applicable as if fully rewritten.
Anything in this Section 16 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Huntington, be
applied by Huntington to the Indebtedness in such order as Huntington may
determine.
17. ASSIGNMENT OF RENTS AND LEASES.
(a) Borrower hereby absolutely and unconditionally assigns,
transfers and sets over unto Huntington and Huntington's successors and assigns
all present and future leases covering all or any part of the Mortgaged Property
(the "Leases"), together with any extensions or renewals thereof and any
guaranties of any tenants' obligations thereunder, and all of the rents,
royalties, bonuses, income, receipts, revenues, issues and profits now due or
which may hereafter become due under the Leases or any extensions or renewals
thereof, as well as all moneys due and to become due to Borrower under the
Leases for services, materials or installations supplied whether or not the same
were supplied under the terms of the Leases, all liquidated damages following
default under the Leases and all proceeds payable under any policy of insurance
covering loss of rents resulting from untenantability caused by damage to any
part of the Mortgaged Property (such rents, income, receipts, revenues, issues,
profits and other moneys assigned hereby are hereinafter collectively called
"Rents"), together with any and all rights and remedies which Borrower may have
against any tenant under any of the Leases or others in possession of the
Mortgaged Property or any part thereof for the collection or recovery of Rents
so assigned. Prior to an Event of Default, as hereinafter defined, Borrower
shall have a license to collect and receive all Rents as trustee for the benefit
of Huntington and Borrower.
(b) Borrower hereby represents, warrants and agrees that:
(i) Borrower has good title to the Leases and Rents
hereby assigned and has the right, power and capacity to make this assignment.
No person or entity other than Borrower has or will have any right, title or
interest in or to the Leases or Rents, except for the Permitted Encumbrances.
(ii) Borrower shall, at Borrower's sole cost and
expense, perform and discharge all of the obligations and undertakings of the
landlord under the Leases and give prompt notice to Huntington of any failure to
do so. Borrower shall use all reasonable efforts to enforce or secure the
performance of each and every obligation and undertaking of the tenants under
the Leases
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and shall appear in and prosecute or defend any action or proceeding arising
under, or in any manner connected with, the Leases or the obligations and
undertakings of the tenants thereunder.
(iii) Borrower shall generally operate and maintain the
Mortgaged Property in a manner to insure maximum Rents.
(iv) Borrower shall not pledge, transfer, mortgage or
otherwise encumber or assign the Leases or the Rents.
(v) Borrower shall not collect Rents more than sixty
(60) days prior to accrual.
(c) Huntington shall not be obligated to perform or discharge
any obligation or duty to be performed or discharged by Borrower under any of
the Leases; and Borrower hereby agrees to indemnify Huntington for, and to save
Huntington 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 Huntington. All amounts indemnified against
hereunder, including reasonable attorneys' fees if paid by Huntington, shall
bear interest at the Default Rate of Interest, as defined in the Notes, and
shall be payable by Borrower immediately without demand and shall be secured
hereby. This assignment shall not place responsibility for the control, care,
management, or repair of the Mortgaged Property upon Huntington or make
Huntington 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 Huntington, and Huntington may notify the tenants under the Leases (or any
other parties in possession of the Mortgaged Property) to pay all of the Rents
directly to Huntington at the address specified in Section 27 hereof, for which
this assignment shall be sufficient warrant;
(ii) Huntington shall have the right to forthwith enter
and take possession of the Mortgaged Property and to manage, operate, lease and
develop the same; to collect as hereunder provided all or any Rents payable
under the Leases; to make repairs as Huntington deems appropriate; and to
perform such other acts in connection with the management, operation,
development, leasing and construction of the Mortgaged Property as Huntington,
in its sole discretion, may deem proper; and
(iii) Huntington shall have the right to forthwith enter
into and upon the Mortgaged Property and take possession thereof, and to appoint
an agent, or in the event of the institution of foreclosure proceedings to have
a receiver appointed for the collection of the Rents.
In the event that Huntington shall pursue its remedies under
Subsections 17(d)(ii) or (iii) above, the net income, after allowing a
reasonable fee for the collection thereof and the management of the Mortgaged
Property, may be applied toward the payment of taxes, assessments, insurance
premiums, repairs, protection of the Mortgaged Property or Huntington's lien
thereon, and other charges against the Mortgaged Property and the costs of
procurement of such insurance and of evidence of title to the Mortgaged
Property, or any of them, or in the reduction of the Indebtedness and the
payment of interest, as Huntington may elect. If the Rents are not sufficient to
meet the costs, if any, of taking control of and managing the Mortgaged Property
and collecting the Rents, any funds expended by Huntington for such purposes
shall become indebtedness of Borrower to Huntington secured by the Mortgage.
Unless Huntington and Borrower agree in writing to other terms of payment, such
amounts shall be payable upon demand from Huntington to Borrower and shall bear
interest from the date of disbursement at the Default Rate of Interest stated in
the Notes.
The exercise or failure to exercise any of the above remedies shall not
in any way preclude or abridge the right of Huntington to foreclose the Mortgage
or to take any other legal or equitable action thereon. Huntington shall have
such rights or privileges as aforesaid regardless of the value
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of the Mortgaged Property given as security hereunder, and regardless of the
solvency or insolvency of any party bound for the payment of the Indebtedness or
the other sums hereby secured.
(e) Borrower hereby authorizes and directs the tenants under
the Leases to pay Rents to Huntington upon written demand by Huntington, without
further consent of Borrower, and the tenants may rely upon any written statement
delivered by Huntington to the tenants. Any such payment to Huntington shall
constitute payment to Borrower under the Leases.
(f) There shall be no merger of the leasehold estates created
by the Leases with the fee estate of the Property and Improvements without the
prior written consent of Huntington.
18. SECURITY AGREEMENT. The Mortgage is intended to be a security
agreement pursuant to the Uniform Commercial Code as enacted in the State of
Indiana (the "UCC") for any of the Mortgaged Property comprising personal
property and fixtures which may be subject to a security interest pursuant to
the UCC, and Borrower hereby grants to Huntington a security interest in said
personal property and fixtures, whether said property is now existing or
hereafter acquired, together with replacements, replacement parts, additions,
repairs and accessories incorporated therein or affixed thereto and, if sold or
otherwise disposed of, the proceeds (including insurance proceeds) thereof.
Borrower agrees to execute and deliver to Huntington UCC financing statements
covering said personal property and fixtures from time to time and in such form
as Huntington may require to perfect or maintain the priority of Huntington's
security interest with respect to said personal property and fixtures. Borrower
shall not create or suffer to be created any other security interest in said
personal property and fixtures, including replacements thereof and additions
thereto. Upon the occurrence of any Event of Default as set forth in Section 19
hereof, Huntington shall have the remedies of a secured party under the UCC and,
at Huntington's option, may also invoke the remedies provided in Section 19
hereof with respect to such property.
19. DEFAULT. The term "Event of Default" shall have the same meaning as
set forth in the Loan Agreement, which meaning is incorporated by this reference
herein.
Upon the occurrence of any such Event of Default beyond any applicable
cure period, at the option of Huntington, 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 Huntington may
now or hereafter have at law, in equity, or under the Loan Documents, Huntington
shall have the right and power: (a) to foreclose upon the Mortgage and the lien
hereof; (b) to sell the Mortgaged Property according to law; and (c) to enter
upon and take possession of the Mortgaged Property and/or have a receiver
appointed therefor as set forth in Section 17 hereof.
20. NO WAIVER. The failure of Huntington 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 Huntington 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 Huntington of partial payments shall not constitute a
waiver of any Event of Default. From time to time, Huntington may, at
Huntington's option, without giving notice to or obtaining the consent of
Borrower, Borrower's successors or assigns, any junior lienholder or any of the
Guarantors, without liability on Huntington's part and notwithstanding
Borrower's breach of any covenant or agreement of Borrower in the Mortgage,
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 Mortgage any part
of the Mortgaged Property, take or release other or additional security,
reconvey any part of the Mortgaged Property, consent to any map or plan of the
Mortgaged Property, consent to the granting of any easement, join in any
extension or subordination agreement, or agree in writing with Borrower to
modify the rate of interest or period of amortization of the Note or to change
the amount of the monthly installments payable thereunder. Any actions taken by
Huntington pursuant to the terms of this Section 20 shall not affect the
obligation of Borrower or Borrower's successors or assigns to pay the sums
secured by the Mortgage and to observe the covenants of Borrower contained
herein, shall not affect the guaranty of any of the Guarantors, and shall not
affect the lien or priority of lien of the Mortgage on
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the Mortgaged Property. Borrower shall pay Huntington a reasonable service
charge, together with such title insurance premiums and attorney's fees as may
be incurred at Huntington's option for any such action if taken at Borrower's
request.
21. PARCELS; WAIVER OF MARSHALLING. In the event of foreclosure of the
Mortgage, the Mortgaged Property may be sold in one or more parcels or as an
entirety as Huntington may elect.
Notwithstanding the existence of any other security interests in the
Mortgaged Property held by Huntington or by any other party, Huntington shall
have the right to determine the order in which any or all of the Mortgaged
Property shall be subjected to the remedies provided herein. Huntington shall
have the right to determine the order in which any or all portions of the
Indebtedness are satisfied from the proceeds realized upon the exercise of the
remedies provided herein. Borrower, any party who becomes liable for Borrower's
obligations and covenants under the Mortgage, and any party who now or hereafter
acquires a security interest in the Mortgaged Property, or any portion thereof,
hereby waives any and all right to require the marshalling of assets in
connection with the exercise of any of the remedies permitted by applicable law
or provided herein.
22. COSTS OF COLLECTION. Borrower hereby agrees to pay to Huntington
all costs of foreclosing the Mortgage, and all costs of enforcing, collecting
and securing, and of attempting to enforce, collect and secure, the Notes,
including, without limitation, reasonable attorneys' fees, appraisers' fees,
court costs, notice charges and title insurance charges, whether such attempt be
made by suit, in bankruptcy, or otherwise, and such costs and any other sums due
Huntington under the Loan Documents may be included in any judgment or decree
rendered.
23. RENT ROLL AND FINANCIAL STATEMENTS. Borrower shall maintain full
and correct books and records open to Huntington's inspection, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
24. HAZARDOUS SUBSTANCES. (a) Borrower hereby covenants and agrees with
Huntington that the following terms shall have the following meanings:
(i) "Environmental Laws" mean all federal, state and
local laws, statutes, ordinances and codes relating to the use, storage,
treatment, generation, transportation, processing, handling, production or
disposal of any Hazardous Substance and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives with respect
thereto.
(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 Huntington, the Banks, their
participants in the loan evidenced by the Notes and all subsequent holders of
the Mortgage, 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 Huntington.
(iv) "Release" has the same meaning as given to that
term in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, ET SEQ.) and the regulations
promulgated thereunder.
(b) Borrower represents and warrants to Huntington that, to its
knowledge after due investigation: (i) the Property and Improvements are not
being or have not been used for the storage, treatment, generation,
transportation, processing, handling, production or disposal of any Hazardous
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Substance in violation of any Environmental Laws; (ii) the Property and
Improvements do not contain any Hazardous Substances in violation of any
Environmental Laws; (iii) there has been no Release of any Hazardous Substance
on, at or from the Property and Improvements or any property adjacent to or
within the immediate vicinity of the Property and Improvements and Borrower has
not received any form of notice or inquiry with regard to such a Release or
threat of such a Release; (iv) no event has occurred with respect to the
Property and Improvements which, with the passage of time or the giving of
notice, or both, would constitute a violation of any applicable Environmental
Law; (v) there are no agreements or orders or directives of any federal, state
or local governmental agency or authority relating to the Property and
Improvements which require any work, repair, construction, containment, clean
up, investigations, studies, removal or other remedial action with respect to
the Property and Improvements; and (vi) there are no actions, suits, claims or
proceedings, pending or threatened, which seek any remedy, that arise out of the
condition, ownership, use, operation, sale, transfer or conveyance of the
Property and Improvements and (1) a violation or alleged violation of any
applicable Environmental Law, (2) the presence of any Hazardous Substance or a
Release of any Hazardous Substance or the threat of such a Release, or (3) human
exposure to any Hazardous Substance.
(c) Borrower covenants and agrees with Huntington as follows:
(i) Borrower shall keep, and shall cause all operators,
tenants, subtenants, licensees and occupants of the Property and Improvements to
keep, the Property and Improvements free of all Hazardous Substances, except for
Hazardous Substances stored, treated, generated, transported, processed,
handled, produced or disposed of in the normal operation of the Property and
Improvements as a shopping center in accordance with all Environmental Laws.
(ii) Borrower shall comply with, and shall cause all
operators, tenants, subtenants, licensee and occupants of the Property and
Improvements to comply with, all Environmental Laws.
(iii) Borrower shall promptly provide Huntington with a
copy of all notifications which it gives or receives with respect to any past or
present Release of any Hazardous Substance or the threat of such a Release on,
at or from the Property and Improvements or any property adjacent to or within
the immediate vicinity of the Property and Improvements.
(iv) Borrower shall undertake and complete all
investigations, studies, sampling and testing for Hazardous Substances
reasonably required by Huntington and, in accordance with all Environmental
Laws, all removal and other remedial actions necessary to contain, remove and
clean up all Hazardous Substances that are determined to be present at the
Property and Improvements in violation of any Environmental Laws.
(v) Huntington shall have the right, but not the
obligation, to cure any violation by Borrower of the Environmental Laws and
Huntington's cost and expense to so cure shall be secured by the Mortgage.
(d) Borrower covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Indemnitee
arising out of the condition, ownership, use, operation, sale, transfer or
conveyance of the Property and Improvements and (i) the storage, treatment
generation, transportation, processing, handling, production or disposal of any
Hazardous Substance, (ii) the presence of any Hazardous Substance or a Release
of any Hazardous Substance or the threat of such a Release, (iii) human exposure
to any Hazardous Substance, (iv) a violation of any Environmental Law, or (v) a
material misrepresentation or inaccuracy in any representation or warranty or
material breach of or failure to perform any covenant made by Borrower herein
(collectively, the "Indemnified Matters").
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The liability of Borrower to Indemnitee hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (i) the repayment of all
sums and the satisfaction of all obligations of Borrower under the Notes, the
Mortgage or other Loan Documents, (ii) the foreclosure of the Mortgage or the
acceptance of a deed in lieu thereof, (iii) any amendment or modification of the
Loan Documents by or for the benefit of Borrower or any subsequent owner of the
Property and Improvements, (iv) any extensions of time for payment or
performance required by any of the Loan Documents, (v) the release or discharge
of the Mortgage or of Borrower, any of the Guarantors or any other person from
the performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents whether by Huntington, 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 Huntington recourse to property
encumbered by the Mortgage or to any other security or limiting Huntington
rights to a deficiency judgment against Borrower, (viii) any applicable statute
of limitations, (ix) the sale or assignment of the Notes or the Mortgage, (x)
the sale, transfer or conveyance of all or part of the Property and
Improvements, (xi) the dissolution or liquidation of Borrower, (xii) the death
or legal incapacity of Borrower, (xiii) the release or discharge, in whole or in
part, of Borrower in any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding, or (xiv) any other
circumstances which might otherwise constitute a legal or equitable release or
discharge, in whole or in part, of Borrower under the Notes or the Mortgage.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Borrower may have to Huntington at common law.
25. SUBORDINATE MORTGAGES. Borrower shall not, without the prior
written consent of Huntington, which consent may be withheld in Huntington's
sole discretion, grant or permit to be created any lien, security interest or
other encumbrance, other than Permitted Encumbrances, covering any of the
Mortgaged Property (each a "Subordinate Mortgage"). If Huntington consents to a
Subordinate Mortgage or if the foregoing prohibition is determined by a court of
competent jurisdiction to be unenforceable, any such Subordinate Mortgage shall
contain express covenants to the effect that:
(a) the lien of the Subordinate Mortgage and all instruments
incorporated therein by reference is and always shall be unconditionally
subordinate to the lien of the Mortgage and to all advances made pursuant to,
and sums secured by, the Mortgage, and the Mortgage and all instruments
incorporated herein by reference may be renewed, extended, restructured,
modified, increased or reinstated at any time without giving notice to or
obtaining the consent of the Subordinate Mortgage holder;
(b) if any action shall be instituted to foreclose or
otherwise enforce the Subordinate Mortgage, no tenant of any of the Leases shall
be named as a party defendant and no action shall be taken which would terminate
any occupancy or tenancy without the prior written consent of Huntington;
(c) in the event of any conflict between the covenants and
agreements of the Mortgage and the Subordinate Mortgage, the covenants and
agreements of the Mortgage shall prevail;
(d) Rents, if collected by or for the holder of the
Subordinate Mortgage, shall be applied first to the payment of the Indebtedness
and expenses incurred in the ownership, operation and maintenance of the
Mortgaged Property in such order as Huntington may determine, prior to being
applied to any indebtedness secured by the Subordinate Mortgage;
(e) a copy of any notice of default under the Subordinate
Mortgage and written notice and opportunity to cure of not less than thirty (30)
days prior to the commencement of any action to foreclose or otherwise enforce
the Subordinate Mortgage shall be given to Huntington; and
(f) the holder of the Subordinate Mortgage shall acknowledge
the existence of the Indebtedness secured hereby and further acknowledge that
the lien of the Mortgage shall at all
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times be and remain superior and prior to the lien of the Subordinate Mortgage
to the extent of the entire Indebtedness secured hereby, notwithstanding any
change in the variable rate of interest being charged under the Notes.
26. FUTURE ADVANCES. Notwithstanding anything contained in this
Instrument, the Loan Agreement or the Notes to the contrary, this Instrument
shall secure: (i) 200% of the face amount of the Notes, exclusive of any items
described in (ii) below, including any additional advances made from time to
time after the date hereof pursuant to the Loan Agreement and other loan
documents whether made as part of the debt secured hereby, made at the option of
Lenders, made after a reduction to a zero (0) or other balance, or made
otherwise, (ii) all other amounts payable by Borrower, or advanced by Lenders
for the account, or on behalf, of the Borrower, pursuant to the Loan Agreement
and other loan documents, including, without limitation, reimbursement
agreements in connection with letters of credit and any amounts advanced with
respect to the Property for the payment of taxes, assessments, insurance
premiums and other costs and impositions incurred for the protection of the
Property to the same extent as if the future obligations and advances were made
on the date of execution of this Instrument; and (iii) future modifications,
extensions, and renewals of any debt secured by this Instrument. Pursuant to IC
32-8-11-9, the lien of this Instrument with respect to any future advances,
modifications, extensions, and renewals referred to herein and made from time to
time shall have the same priority to which this Instrument otherwise would be
entitled as of the date this Instrument is executed and recorded without regard
to the fact that any such future advance, modification, extension, or renewal
may occur after the Instrument is executed.
27. NOTICE. Any notice required or permitted to be given hereunder
shall be in writing. If mailed by first class United States mail, postage
prepaid, registered or certified with return receipt requested, then such shall
be effective upon its deposit in the mails. Notice given in any other manner
shall be effective only if and when received by the addressee. For purposes of
notice, the addresses of Borrower and Huntington shall be as set forth below;
provided however, that either party shall have the right to change such party's
address for notice hereunder to any other location within the continental United
States by the giving of thirty (30) days' notice to the other party.
If to Borrower: Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
If to Huntington: The Huntington National Bank
Commercial Real Estate Group
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
28. MISCELLANEOUS. The covenants herein contained shall bind, and the
benefits and advantages shall inure to, the respective successors and assigns of
the parties hereto. Whenever used, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all genders. If
any provision of the Mortgage 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
Mortgage shall not be affected thereby, but shall be construed as if it does not
contain such provision. Each right and remedy provided in the Mortgage is
distinct and cumulative to all other rights or remedies under the Mortgage or
afforded by law or equity, and may be exercised concurrently, independently or
successively, in any order whatsoever. The Mortgage shall be governed by and
construed under the laws of the State of Ohio.
HUNTINGTON, BY ACCEPTANCE OF THIS MORTGAGE, AND BORROWER HEREBY
MUTUALLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE FOR THE BENEFIT OF
THE OTHER ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE LOAN DOCUMENTS, THE TRANSACTIONS RELATED
THERETO OR THE RELATIONSHIP ESTABLISHED THEREBY. THIS PROVISION IS A MATERIAL
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INDUCEMENT TO HUNTINGTON AND BORROWER TO ENTER INTO THIS TRANSACTION. IT SHALL
NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY HUNTINGTON'S ABILITY TO
PURSUE ITS REMEDIES.
IN WITNESS WHEREOF, Borrower has caused the Mortgage to be executed
this 15th day of May, 1997.
Signed and acknowledged Borrower:
in the presence of: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
/s/ Xxxxxx X. Xxxxxx By: Glimcher Properties Corporation,
----------------------------- a Delaware corporation,
Witness Xxxxxx X. Xxxxxx its sole General Partner
----------------------
(printed)
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxxx
----------------------------- ----------------------------------
Witness Xxxxxx X. Xxxxx Xxxxx X. Xxxxxxxx, President
----------------------
(printed)
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
On this 15th day of May, 1997, before me, a Notary Public in and for
said County and State, personally appeared Xxxxx X. Xxxxxxxx as an officer of
Glimcher Properties Corporation, a Delaware corporation, and the sole general
partner of Glimcher Properties Limited Partnership, a Delaware Limited
Partnership, who acknowledged the execution of the foregoing Mortgage,
Assignment of Rents and Security Agreement and who, having been duly sworn,
stated that any representations therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxx X. Xxxxx
--------------------------------
Commission Expires: Notary Public
Printed Name: Xxxxxx X. Xxxxx
--------------------
My County of Residence:
Franklin County, Ohio
----------------------
This instrument prepared by:
Xxxxxx X. Xxxxx, Attorney at Law
PORTER, WRIGHT, XXXXXX & XXXXXX
00 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
The Huntington National Bank
Commercial Real Estate Group
January 3, 1994 Revision
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EXHIBIT A
LEGAL DESCRIPTION
Part of Survey 19 of the Illinois Grant in the Town of Clarksville of Xxxxx
County, Indiana, being the same 10.00 Acre Parcel conveyed to Xxxxxxx Xxxxxxxx
at Deed Drawer 17, Instrument 1310 and bounded as follows:
Commencing at a Drill Hole in the center of State Road 131, the centerline of
which is the line dividing Surveys 31 and 32 from Survey 19 and which drill hole
marks the west corner of Survey 19, thence the following courses:
North 54(degree) 45' 48" East, 1054.00 feet with said dividing line; South
35(degree) 34' 36" East, 75.00 feet to an iron pipe in the Southeast
right-of-way line of State Road 131 which marks the North corner of the above
referenced Glimcher Parcel and the West corner of a tract of land conveyed to
the Rehabilitation Center and Goodwill Industries of Southeastern Indiana, Inc.
at Deed Drawer 21, Instrument 13_2, the true point of beginning of this
description. Thence the following courses of the boundary:
South 35(degree) 34' 36" East, 869.72 feet with said line to an iron pipe at
Glimcher's East corner; South 54(degree) 25' 24" West, 500.00 feet to an iron
pipe at Glimcher's South corner; North 35(degree) 34' 36" West, 872.68 feet with
Glimcher's Southwest line to a point in the Southeast right-of-way line of Xxxxx
Xxxx 000; North 54(degree) 45' 48" East, 500.00 feet with said Right-of-Way line
to the place of beginning and containing 10.00 acres of land, more or less.
