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EXHIBIT 10.9
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WEST VIRGINIA
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A CREDIT LINE DEED OF TRUST, ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (herein
"Deed of Trust") is made this 15th day of May, 1997, between GLIMCHER PROPERTIES
LIMITED PARTNERSHIP, a Delaware Limited Partnership, whose address is 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (herein "Trustor/Grantor"), Xxxx X.
Xxxxxxxxxxxx, whose address is 000 Xxxx Xxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx Xxxxxx,
Xxxx Xxxxxxxx (herein "Trustee"), and 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, 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".
TRUSTOR, in consideration of the sum of One Hundred Ninety Million and
No/100 Dollars ($190,000,000.00) and the trust herein created, irrevocably
grants, conveys and assigns to Trustee and Trustee's successors and assigns, in
trust, with power of sale, the real estate described in Exhibit "A" attached
hereto and incorporated herein by this reference, (the "Property").
TO HAVE AND TO HOLD unto Trustee and Trustee's successors and assigns,
forever, together with the following, whether now owned or hereafter acquired by
Trustor: (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 Trustor in and to all streets, roads, public places, easements
and rights-of-way, existing or proposed, public or private, adjacent to or used
in connection with, belonging or pertaining to the Property; (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 Trustor now has
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or at any time hereafter acquires in and to the Property, Improvements, and
Personal Property described herein and all property that is used or useful in
connection therewith, including rights of ingress and egress and all
reversionary rights or interests of Trustor with respect thereto (all of the
same, including the Property, collectively the "Trust Property").
TO HAVE AND TO HOLD the Trust Property, together with the rights,
privileges and appurtenances thereto belonging, unto Huntington and its
successors and assigns forever, and Trustor hereby binds itself and its
successors and assigns to warrant and forever defend the Trust Property unto
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.
FOR THE PURPOSE OF SECURING: the full and prompt payment, whether at
stated maturity, accelerated maturity or otherwise, of any and all indebtedness,
whether fixed or contingent (collectively the "Indebtedness") and the complete,
faithful and punctual performance of any and all other obligations (collectively
the "Obligations") of Trustor under the terms and conditions of (a) the Loan
Agreement; (b) the Notes from time to time made by Trustor 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 Deed of Trust; and (e) any other instrument, document,
certificate or affidavit heretofore, now or hereafter given by Trustor
evidencing or securing all or any part of the foregoing (the same together with
the Loan Agreement, the Notes and the Deed of Trust, collectively the "Loan
Documents").
Trustor, for itself and its successors and assigns, hereby covenants
with Huntington, its successors and assigns, that:
1. TITLE. Trustor covenants that it is lawfully seized of the Trust
Property and has the right to mortgage, grant, convey and assign the Trust
Property and that the same is unencumbered except for 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 Deed of Trust (the "Permitted Exceptions") and that except as
aforesaid it will warrant and defend generally the title to the Trust Property.
If the interest of Huntington or Trustee in the Trust Property or any part
thereof shall be endangered or shall be attacked, directly or indirectly,
Trustor hereby authorizes Huntington, at Trustor's expense, to take all
necessary and proper steps for the defense of such interest, including the
employment of counsel, the prosecution or defense of litigation and the
compromise or discharge of claims made against such interest. Any sums so
expended by Huntington shall be charged against Trustor and collectible in
accordance with the terms of Section 10 hereof.
2. FURTHER ASSURANCES. Trustor, 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
Trust 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, Trustor shall not (a) sell, assign, mortgage, pledge, lease
(except for leases of storerooms in the ordinary course of
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business) or otherwise convey or further encumber the Trust Property, or any
portion thereof, or legal, equitable or beneficial interest therein; (b) sell,
assign, pledge or otherwise transfer any beneficial interests in Trustor which
individually or in the aggregate would have the effect of transferring the power
to direct the operations of Trustor or the Trust Property; (c) contract for any
of the same; (d) permit the Trust Property, or any portion thereof, or legal,
equitable or beneficial interest therein, to be subject to any superior or
inferior lien or encumbrance except as provided in the Permitted Encumbrances;
(e) subdivide, resubdivided or submit to the condominium form of ownership all
or any portion of the Trust Property, or any portion thereof; or (f) initiate or
acquiesce in any change in the zoning classification of the Property or any
portion thereof.
5. TAXES AND OTHER IMPOSITIONS. Trustor shall promptly pay before
delinquency all taxes, assessments, charges, fines or impositions, general,
local or special (collectively the "Impositions"), levied upon the Trust
Property, or any part thereof, or upon Huntington's interest therein, or upon
the Deed of Trust or the Indebtedness, by any duly or legally constituted public
authority, municipality, township, county or state or the United States, and
upon request, will provide evidence of the payment thereof to Huntington;
provided that Trustor, at Trustor's own cost and expense may, if it shall in
good faith so desire, contest the validity or amount of any Impositions, in
which event Trustor may defer the payment thereof for such period as such
contest shall be actively prosecuted and shall be pending undetermined; further
provided, however, that Trustor shall not allow any such Impositions so
contested to remain unpaid for such length of time as shall permit all or any
portion of the Trust Property, or the lien thereon created by such item, to be
sold by federal, state, county or municipal authority for the nonpayment
thereof. Pending any such contest, Trustor shall maintain adequate book reserves
with respect to such Impositions being contested.
In the event that one or more of the Impositions on Huntington's
interest in the Trust Property, the Deed of Trust or the Indebtedness cannot be
lawfully paid by Trustor, then the Trust Property shall be withdrawn from the
Collateral Pool (as such team is defined in the Loan Agreement). In the event
the withdrawal of the Trust Property from the Collateral Pool causes Trustor not
to be in compliance with the required loan to value ratio under the Loan
Agreement, Trustor may either furnish substitute property, as provided in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
6. INSURANCE AND INDEMNIFICATION. Trustor shall provide, maintain and
keep in force at all times the following policies of insurance:
(a) Insurance against loss or damage to the Improvements and
the Personal Property caused by fire and any of the risks covered by insurance
of the type now known as "coverage against all risks of physical loss", in an
amount equal to one hundred percent (100%) of the replacement cost of the
Improvements and the Personal Property and sufficient to prevent Trustor and
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 Trustor engaged on or with respect to the Property and the Improvements in
the limits established by law or, if limits are not so established, in such
amounts as are acceptable to 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;
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(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 Trust 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 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 Deed of Trust 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 Trustor which might otherwise result in
forfeiture of said insurance, (ii) that any rights of set-off, counterclaim or
deductions against Trustor are waived and (iii) that such policy shall not be
canceled or changed except upon not less than thirty (30) days prior written
notice delivered to 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
Trustor 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, Trustor 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 Trust Property or any part thereof or interest therein
or the occupancy thereof by Trustor, then Trustor 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.
Trustor waives any and all right to claim or recover against Huntington, its
officers, employees, agents and representatives, for loss of or damage to
Trustor, the Trust Property, other property of Trustor or the property of others
under control of Trustor from any cause insured against or required to be
insured against by the provisions of the Deed of Trust.
Trustor shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under this
Section unless 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. Trustor 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.
Nothing contained in this Section 6 shall prevent Trustor from keeping
the Improvements and Personal Property insured or causing the same to be insured
against the risks referred to in this Section 6 under a policy or policies of
blanket insurance which may cover other property not subject to the lien of the
Deed of Trust; provided, however, that any such policy of blanket insurance (i)
shall specify therein the amount of the total insurance allocated to the
Improvements and Personal Property, which amount shall be not less than the
amount otherwise required to be carried under the Deed of Trust; (ii) shall not
contain any clause which would result in the insured thereunder
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becoming a co-insurer of any loss with the insurer under such policy; and (iii)
shall in all other respects comply with the provisions of the Deed of Trust.
In the event the damage or destruction to the Improvements is in an
amount of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds shall be paid to Trustor, and used
by Trustor to (i) repair or restore the Improvements to the same condition in
which they were prior to the Casualty, or (ii) for its own purposes, after first
making such repairs to the remaining Improvements so that the same may continue
as a first class shopping center, both architecturally and aesthetically. In the
event Trustor should elect option (ii) above, if a material decrease in the fair
market value of the Trust Property is indicated, Huntington shall be entitled,
at its option, to cause the Trust Property to be reappraised at Trustor's
expense to satisfy itself of continued compliance by Trustor with the loan to
value ratio required by the Loan Agreement. In the event the results of such
reappraisal causes Trustor not to be in compliance with the required loan to
value ratio, Trustor may either furnish substitute property, as provided for in
Section 7 of the Loan Agreement, or pay down the Indebtedness in an amount which
will bring the loan to value ratio into compliance.
In the event the damage or destruction to the Improvements is in an
amount in excess of $500,000.00, and provided there is no Event of Default, as
hereinafter defined, the insurance proceeds are to be applied toward the
restoration of the Improvements. Such sums shall be deposited in escrow with
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 Trust 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 Trust Property to be reappraised at
Trustor'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 6 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Huntington, be applied by Huntington to the
Indebtedness in such order as Huntington may determine.
7. ESCROW. Trustor, in order to more fully protect the security of the
Deed of Trust, does hereby covenant and agree that, if Trustor shall fail to
timely pay taxes, assessments or insurance premiums as provided above, or in the
event of any other default and Huntington does not then elect to exercise its
other remedies, then Trustor 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. Trustor agrees that sufficient funds shall be so accumulated
for the payment of said charges one (1) month prior to the due date thereof and
that Trustor shall furnish Huntington with proper statements covering the same
fifteen (15) days prior to the due dates thereof. In the event the Trust
Property is sold pursuant to the power of sale contained herein, or if
Huntington should take a deed in lieu thereof, the amount so accumulated shall
be credited on account of the unpaid principal or interest. If the total of the
monthly payments as made under this Section 7 shall exceed the payments actually
made by 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 7 shall be insufficient to pay such taxes, assessments, and insurance
premiums then due, then said Trustor shall pay upon demand the amount necessary
to make up the deficiency, which payments shall be secured by the Deed of Trust.
To the extent that all the provisions of this Section 7 for such payments of
taxes, assessments, and insurance premiums to Huntington, are complied with,
Trustor shall be relieved of compliance
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with the covenants contained in Sections 5 and 6 herein as to the amounts paid
only, but nothing contained in this Section 7 shall be construed as in any way
limiting the rights of Huntington at its option to pay any and all of said items
when due.
8. WASTE; REPAIR. Trustor shall neither commit nor permit any waste on
the Trust Property and shall keep all Improvements now or hereafter erected on
the Property in good condition and repair.
9. ALTERATIONS; CONSTRUCTION. Trustor shall have the right to remove,
demolish or alter any of the Improvements, now existing or hereafter constructed
on the Property, or any of the Personal Property in or on the Property or
Improvements, to the extent that the value of same is not diminished. If
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
Trust Property to be reappraised at Trustor's expense.
10. ADVANCES SECURED BY DEED OF TRUST. Upon failure of Trustor to
comply with any of these covenants and agreements as to the payment of taxes,
assessments, insurance premiums, repairs, protection of the Trust Property or
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 Trustor, shall be immediately due and payable by
Trustor shall bear interest at the Default Rate of Interest (as defined in the
Notes) and shall be a lien upon the Trust Property and be secured by the Deed of
Trust and may be collected in the same manner as the principal debt hereby
secured.
11. USE. Unless Huntington otherwise agrees in writing, Trustor shall
not allow changes in the nature of the occupancy for which the Property and
Improvements were intended at the time the Deed of Trust was executed. Trustor
shall comply with the laws, ordinances, regulations and requirements of any
governmental body applicable to the Trust Property, both during the construction
of any Improvements on the Property and subsequent to the completion thereof,
and Trustor shall not permit the use thereof for any illegal purpose.
12. INSPECTION. Any person authorized by Huntington shall have the
right to enter upon and inspect the Trust Property after reasonable notice to
Trustor and during normal business hours. Huntington shall have no duty,
however, to make such inspections. Any inspection of the Trust Property by
Huntington shall be entirely for its benefit, and Trustor shall in no way rely
or claim reliance thereon.
13. MINERALS. Without the prior written consent of Huntington, there
shall be no drilling or exploring for, or extraction, removal, or production of,
minerals from the surface or subsurface of the Trust Property. The term
"minerals" as used herein shall include, without limitation, oil, gas,
casinghead gas, coal, lignite, hydrocarbons, methane, carbon dioxide, helium,
uranium and all other natural elements, compounds and substances, including sand
and gravel.
14. CONDEMNATION. If all the Trust Property and Improvements are taken
or acquired in any condemnation proceeding or by exercise of the right of
eminent domain or, with 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).
In the event a portion of the Improvements or Property are acquired in
any condemnation proceeding or by the exercise of the right of eminent domain,
to the extent that the damage to the Property or improvements is in the amount
of $500,000.00 or less, and provided there is no Event of Default, as
hereinafter defined, the proceeds of any such condemnation or eminent domain
award shall be paid to Trustor, who shall use such proceeds as provided for in
paragraph 6 hereof with respect to the disbursement of insurance proceeds where
the damage or destruction is in an amount
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of $500,000.00 or less. The provisions of paragraph 6 with respect to
reappraisal and substitute property where there is damage or destruction in an
amount of $500,000.00 or less shall apply as if fully rewritten.
In the event the damage to the Improvements or Property by virtue of
such condemnation proceeding or eminent domain proceeding is in an amount in
excess of $500,000.00, and provided there is no Event of Default, as hereinafter
defined, the proceeds of such eminent domain or condemnation award shall be
deposited in escrow with 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
6 hereof with respect to the disbursement of insurance proceeds, where the
damage or destruction is in an amount of $500,000.00 or greater. The conditions
to disbursement, including the requirement that 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 Trust Property to be
reappraised, as provided for where there is damage or destruction of $500,000.00
or greater, shall be applicable as if fully rewritten.
Anything in this Section 14 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the proceeds of such
eminent domain or condemnation award shall, at the sole option of Huntington, be
applied by Huntington to the Indebtedness in such order as Huntington may
determine.
15. ASSIGNMENT OF RENTS AND LEASES.
(a) Trustor 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 Trust Property
(the "Leases"), together with any extensions or renewals thereof and any
guaranties of any tenants' obligations thereunder, and all of the rents,
royalties, bonuses, income, receipts, revenues, issues and profits now due or
which may hereafter become due under the Leases or any extensions or renewals
thereof, as well as all moneys due and to become due to Trustor under the Leases
for services, materials or installations supplied whether or not the same were
supplied under the terms of the Leases, all liquidated damages following default
under the Leases and all proceeds payable under any policy of insurance covering
loss of rents resulting from untenantability caused by damage to any part of the
Trust Property (such rents, income, receipts, revenues, issues, profits and
other moneys assigned hereby are hereinafter collectively called "Rents"),
together with any and all rights and remedies which Trustor may have against any
tenant under any of the Leases or others in possession of the Trust Property or
any part thereof for the collection or recovery of Rents so assigned. Prior to
an Event of Default, as hereinafter defined, Trustor shall have a license to
collect and receive all Rents as trustee for the benefit of Huntington and
Trustor.
(b) Trustor hereby represents, warrants and agrees that:
(i) Trustor has good title to the Leases and Rents
hereby assigned and has the right, power and capacity to make this assignment.
No person or entity other than Trustor has or will have any right, title or
interest in or to the Leases or Rents.
(ii) Trustor shall, at Trustor's sole cost and
expense, perform and discharge all of the obligations and undertakings of the
landlord under the Leases and give prompt notice to Huntington of any failure to
do so. Trustor shall use all reasonable efforts to enforce or secure the
performance of each and every obligation and undertaking of the tenants under
the Leases and shall appear in and prosecute or defend any action or proceeding
arising under, or in any manner connected with, the Leases or the obligations
and undertakings of the tenants thereunder.
(iii) Trustor shall generally operate and maintain
the Trust Property in a manner to insure maximum Rents.
(iv) Trustor shall not pledge, transfer, mortgage or
otherwise encumber or assign the Leases or the Rents.
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(v) Trustor 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 Trustor under any of the
Leases; and Trustor 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 Trustor immediately without demand and shall be secured
hereby. This assignment shall not place responsibility for the control, care,
management, or repair of the Trust Property upon 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 Trust Property) to pay all of the
Rents directly to Huntington at the address specified in Section 29 hereof, for
which this assignment shall be sufficient warrant;
(ii) Huntington shall have the right to forthwith
enter and take possession of the Trust Property and to manage, operate, lease
and develop the same; to collect as hereunder provided all or any Rents payable
under the Leases; to make repairs as Huntington deems appropriate; and to
perform such other acts in connection with the management, operation,
development, leasing and construction of the Trust Property as Huntington, in
its sole discretion, may deem proper; and
(iii) Huntington shall have the right to forthwith
enter into and upon the Trust Property and take possession thereof, and to
appoint an agent, or in the event of the institution of foreclosure proceedings
to have a receiver appointed for the collection of the Rents.
In the event that Huntington shall pursue its remedies under
Subsections 15(d)(ii) or (iii) above, the net income, after allowing a
reasonable fee for the collection thereof and the management of the Trust
Property, may be applied toward the payment of taxes, assessments, insurance
premiums, repairs, protection of the Trust Property or Huntington's lien
thereon, and other charges against the Trust Property and the costs of
procurement of such insurance and of evidence of title to the Trust Property, or
any of them, or in the reduction of the Indebtedness and the payment of
interest, as Huntington may elect. If the Rents are not sufficient to meet the
costs, if any, of taking control of and managing the Trust Property and
collecting the Rents, any funds expended by Huntington for such purposes shall
become indebtedness of Trustor to Huntington secured by the Deed of Trust.
Unless Huntington and Trustor agree in writing to other terms of payment, such
amounts shall be payable upon demand from Huntington to Trustor 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 exercise the power of
sale contained herein or to take any other legal or equitable action thereon.
Huntington shall have such rights or privileges as aforesaid regardless of the
value of the Trust Property given as security hereunder, and regardless of the
solvency or insolvency of any party bound for the payment of the Indebtedness or
the other sums hereby secured.
(e) Trustor hereby authorizes and directs the tenants under
the Leases to pay Rents to Huntington upon written demand by Huntington, without
further consent of Trustor, and the tenants may rely upon any written statement
delivered by Huntington to the tenants. Any such payment to Huntington shall
constitute payment to Trustor under the Leases.
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(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.
16. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. The Deed of Trust is
intended to be a security agreement pursuant to the Uniform Commercial Code as
enacted in the State of West Virginia (the "UCC") for any of the Property
comprising personal property and fixtures which may be subject to a security
interest pursuant to the UCC, and Trustor hereby grants to 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. Trustor 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. Trustor shall not create or suffer to be created any other security
interest in said personal property and fixtures, including replacements thereof
and additions thereto. Upon the occurrence of any Event of Default as set forth
in Section 17 hereof, 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 17 hereof with respect to such property.
17. EVENT OF DEFAULT. The term "Event of Default" shall have the same
meaning as set forth in the Loan Agreement, which meaning is incorporated by
this reference herein.
Upon the occurrence of any such Event of Default, at the option of
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:
to invoke the power of sale and any other remedies permitted by applicable law
or provided for herein. Trustor acknowledges that the power of sale herein
granted may be exercised by Huntington without prior judicial hearing.
Huntington shall be entitled to collect all costs and expenses incurred in
pursuing such remedies, including, but not limited to, attorney's fees and costs
of documentary evidence, abstracts and title reports, all of which shall be
additional sums secured by this Deed of Trust.
18. NO WAIVER. The failure of 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
Trustor or its successors or assigns, any junior lienholder, without liability
on Huntington's part and notwithstanding Trustor's breach of any covenant or
agreement of Trustor in the Deed of Trust, extend the time for payment of the
Indebtedness, or any part thereof, reduce the payments thereon, release anyone
liable on any of said Indebtedness, accept a renewal note or notes therefor,
release from the lien of the Deed of Trust any part of the Trust Property, take
or release other or additional security, reconvey any part of the Trust
Property, consent to any map or plan of the Trust Property, consent to the
granting of any easement, join in any extension or subordination agreement, or
agree in writing with Trustor to modify the rate of interest or period of
amortization of the Notes or to change the amount of the monthly installments
payable thereunder. Any actions taken by Huntington pursuant to the terms of
this Section 18 shall not affect the obligation of Trustor or Trustor's
successors or assigns to pay the sums secured by the Deed of Trust and to
observe the covenants of contained herein, and shall not affect the lien or
priority of lien of the Deed of Trust on the Trust Property. Trustor shall pay
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 Trustor's request.
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19. PARCELS; WAIVER OF MARSHALLING. In the event of a sale pursuant to
the power of sale contained herein, the Trust Property may be sold in one or
more parcels or as an entirety as Huntington may elect.
Notwithstanding the existence of any other security interests in the
Trust 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 Trust 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. Trustor, any party who becomes liable for Trustor's obligations and
covenants under the Deed of Trust, and any party who now or hereafter acquires a
security interest in the Trust Property, or any portion thereof, hereby waives
any and all right to require the marshalling of assets in connection with the
exercise of any of the remedies permitted by applicable law or provided herein.
20. COSTS OF COLLECTION. Trustor hereby agrees to pay to Huntington all
costs of enforcing, collecting and securing, and of attempting to enforce,
collect and secure, the Notes, including, without limitation, reasonable
attorneys' fees and court costs, whether such attempt be made by suit, in
bankruptcy, or otherwise, and such costs and any other sums due Huntington under
the Loan Documents may be included in any judgment or decree rendered.
21. SALE PURSUANT TO POWER OF SALE. Prior to any sale pursuant to the
power of sale contained herein, Huntington shall provide Trustor with the notice
required by the laws of the State of West Virginia by mailing to Trustor at 00
Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 in the manner provided in paragraph 30
hereof or such other manner as may be required pursuant to the laws of the State
of West Virginia, notice of such sale. Trustee may sell the Trust Property at
the time and place and under the terms designated in the notice of sale in one
or more parcels and in such order as Trustee may determine at public auction to
the highest bidder for cash. Trustee may postpone sale of all or any parcel of
the Trust Property by public announcement at the time and place of any
previously scheduled sale. Huntington or Huntington's designee may purchase the
Trust Property at any sale.
Trustee shall deliver to the purchaser a Trustee's deed conveying the
Trust Property so sold with special warranty of title. The recitals in the
Trustee's deed shall be prima facie evidence of the truth of the statements made
therein. Trustee shall apply the proceeds of the sale in the following order:
(a) to all costs and expenses of the sale, including, but not limited to
attorney's fees and costs of title evidence; (b) to the discharge of all taxes,
levies and assessments on the Trust Property, if any, as provided by applicable
law; (c) to all sums secured by this Instrument in such order as Huntington, in
Huntington's sole discretion, directs; and (d) the excess, if any, to the person
or persons legally entitled thereto, including, if any, holders of liens
inferior to this Instrument in order of priority, provided that Trustee has
actual notice of such liens. Trustee shall not be required to take possession of
the Trust Property prior to the sale thereof or to deliver possession of the
Trust Property to the purchaser at such sale.
22. RENT ROLL AND FINANCIAL STATEMENTS. Trustor shall maintain full and
correct books and records open to Huntington's inspection, and shall furnish
such financial information and reports as are referenced in the Loan Agreement.
23. HAZARDOUS SUBSTANCES. (a) Trustor hereby covenants and agrees with
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
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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, its participants
in the loan evidenced by the Notes and all subsequent holders of the Deed of
Trust, their respective successors and assigns, their respective officers,
directors, employees, agents, representatives, contractors and subcontractors
and any subsequent owner of the Property and Improvements who acquires title
thereto from or through 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) Trustor represents and warrants to Huntington that, to its
knowledge after due investigation: (i) the Trust Property is being or have not
been used for the storage, treatment, generation, transportation, processing,
handling, production or disposal of any Hazardous Substance in violation of any
Environmental Laws; (ii) the Trust Property does not contain any Hazardous
Substances in violation of any Environmental Laws; (iii) there has been no
Release of any Hazardous Substance on, at or from the Project or any property
adjacent to or within the immediate vicinity of the Trust Property and Trustor
has not received any form of notice or inquiry with regard to such a Release or
threat of such a Release; (iv) no event has occurred with respect to the Trust
Property which, with the passage of time or the giving of notice, or both, would
constitute a violation of any applicable Environmental Law; (v) there are no
agreements or orders or directives of any federal, state or local governmental
agency or authority relating to the Trust Property which require any work,
repair, construction, containment, clean up, investigations, studies, removal or
other remedial action with respect to the Trust Property and (vi) there are no
actions, suits, claims or proceedings, pending or threatened, which seek any
remedy, that arise out of the condition, ownership, use, operation, sale,
transfer or conveyance of the Trust Property and (1) a violation or alleged
violation of any applicable Environmental Law, (2) the presence of any Hazardous
Substance or a Release of any Hazardous Substance or the threat of such a
Release, or (3) human exposure to any Hazardous Substance.
(c) Trustor covenants and agrees with Huntington as follows:
(i) Trustor shall keep, and shall cause all operators,
tenants, subtenants, licensees and occupants of the Project to keep, the Project
free of all Hazardous Substances, except for Hazardous Substances stored,
treated, generated, transported, processed, handled, produced or disposed of in
the normal operation of the Trust Property as a shopping center in accordance
with all Environmental Laws.
(ii) Trustor shall comply with, and shall cause all operators,
tenants, subtenants, licensee and occupants of the Trust Property to comply
with, all Environmental Laws.
(iii) Trustor 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 Trust Property or any property adjacent to or within the immediate
vicinity of the Trust Property.
(iv) Trustor shall undertake and complete all investigations,
studies, sampling and testing for Hazardous Substances reasonably required by
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 Project in violation of any
Environmental Laws.
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(v) Huntington shall have the right, but not the obligation,
to cure any violation by Trustor of the Environmental Laws and Huntington's cost
and expense to so cure shall be secured by the Deed of Trust.
(d) Trustor covenants and agrees, at its sole cost and expense, to
indemnify, defend and save harmless Indemnitee from and against any and all
damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, actions, proceedings, costs, disbursements
and/or expenses (including, without limitation, reasonable attorneys' and
experts' fees and expenses) of any kind or nature whatsoever which may at any
time be imposed upon, incurred by or asserted or awarded against Indemnitee
arising out of the condition, ownership, use, operation, sale, transfer or
conveyance of the Project and (i) the storage, treatment generation,
transportation, processing, handling, production or disposal of any Hazardous
Substance, (ii) the presence of any Hazardous Substance or a Release of any
Hazardous Substance or the threat of such a Release, (iii) human exposure to any
Hazardous Substance, (iv) a violation of any Environmental Law, or (v) a
material misrepresentation or inaccuracy in any representation or warranty or
material breach of or failure to perform any covenant made by Trustor herein
(collectively, the "Indemnified Matters").
The liability of Trustor to Indemnitee hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (i) the repayment of all
sums and the satisfaction of all obligations under the Notes, the Deed of Trust
or other Loan Documents, (ii) the sale of the Trust Property pursuant to the
power of sale contained herein or the acceptance of a deed in lieu thereof,
(iii) any amendment or modification of the Loan Documents by or for the benefit
of Trustor or any subsequent owner of the Trust Property, (iv) any extensions of
time for payment or performance required by any of the Loan Documents, (v) the
release or discharge of the Deed of Trust or of Trustor, or any other person
from the performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents whether by 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 Deed of Trust or to any other security or limiting Huntington
rights to a deficiency judgment against Trustor, (viii) any applicable statute
of limitations, (ix) the sale or assignment of the Notes or the Deed of Trust,
(x) the sale, transfer or conveyance of all or part of the Trust Property , (xi)
the dissolution or liquidation of Trustor, (xii) the release or discharge, in
whole or in part, of Trustor in any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or similar proceeding, or
(xiv) any other circumstances which might otherwise constitute a legal or
equitable release or discharge, in whole or in part, of Trustor under the Notes
or the Deed of Trust.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Trustor may have to Huntington at common law.
24. SUBORDINATE DEEDS OF TRUST. Trustor 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 Trust
Property (each a "Subordinate Deed of Trust"). If Huntington consents to a
Subordinate Deed of Trust or if the foregoing prohibition is determined by a
court of competent jurisdiction to be unenforceable, any such Subordinate Deed
of Trust shall contain express covenants to the effect that:
(a) the lien of the Subordinate Deed of Trust and all
instruments incorporated therein by reference is and always shall be
unconditionally subordinate to the lien of the Deed of Trust and to all advances
made pursuant to, and sums secured by, the Deed of Trust, and the Deed of Trust
and all instruments incorporated herein by reference may be renewed, extended,
restructured, modified, increased or reinstated at any time without giving
notice to or obtaining the consent of the holder of the Subordinate Deed of
Trust holder;
(b) if any action shall be instituted to sell the Trust
Property or otherwise enforce the Subordinate Deed of Trust, no tenant of any of
the Leases shall be named as a party defendant and no action shall be taken
which would terminate any occupancy or tenancy without the prior written consent
of Huntington;
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(c) in the event of any conflict between the covenants and
agreements of the Deed of Trust and the Subordinate Deed of Trust, the covenants
and agreements of the Deed of Trust shall prevail;
(d) Rents, if collected by or for the holder of the
Subordinate Deed of Trust, shall be applied first to the payment of the
Indebtedness and expenses incurred in the ownership, operation and maintenance
of the Trust Property in such order as Huntington may determine, prior to being
applied to any indebtedness secured by the Subordinate Deed of Trust;
(e) a copy of any notice of default under the Subordinate Deed
of Trust and written notice and opportunity to cure of not less than thirty (30)
days prior to the commencement of any action to sell pursuant to a power of sale
contained therein or otherwise enforce the Subordinate Deed of Trust shall be
given to Huntington; and
(f) the holder of the Subordinate Deed of Trust shall
acknowledge the existence of the Indebtedness secured hereby and further
acknowledge that the lien of the Deed of Trust shall at all times be and remain
superior and prior to the lien of the Subordinate Deed of Trust to the extent of
the entire Indebtedness secured hereby, notwithstanding any change in the
variable rate of interest being charged under the Notes.
25. CREDIT LINE DEED OF TRUST. THIS IS A CREDIT LINE DEED OF TRUST FOR
THE PURPOSES OF WEST VIRGINIA CODE Section 38-1-14, AND SECURES THE MAXIMUM
AMOUNT NOT TO EXCEED $190,000,000.00, AND THIS DEED OF TRUST IS ALSO
SECURITY FOR THE PAYMENT OF INTEREST ON SUCH PRINCIPAL SUMS AND FOR TAXES,
INSURANCE PREMIUMS AND OTHER OBLIGATIONS, INCLUDING INTEREST THEREON,
UNDERTAKEN BY BENEFICIARY OR TRUSTEE PURSUANT TO THE PROVISIONS OF THIS DEED OF
TRUST. THIS DEED OF TRUST SECURES FUTURE ADVANCES, WHICH BENEFICIARY HAS AGREED
TO MAKE TO TRUSTOR IN ACCORDANCE WITH AND SUBJECT TO THE TERMS AND PROVISIONS
OF THE LOAN DOCUMENTS. SUCH FUTURE ADVANCES ARE INTENDED TO BE OBLIGATORY
WITHIN THE MEANING OF WEST VIRGINIA CODE Section 38-1-14.
26. RELEASE. Upon payment of all sums secured by this Instrument,
Huntington shall release this Deed of Trust. Trustor shall pay Huntington's
reasonable costs incurred in releasing this Deed of Trust. If Trustee is
requested to release this Instrument, all Notes evidencing indebtedness secured
by this Instrument shall be surrendered to Trustee.
27. SUBSTITUTE TRUSTEE. If Trustee or any successor trustee to Trustee
should die, resign or become incapacitated or neglect, refuse or become
disqualified to act hereunder, Huntington at Huntington's option without notice
to Trustor may remove Trustee and appoint a successor trustee to any Trustee
appointed hereunder by an instrument recorded in the county in which this Deed
of Trust is recorded. Without conveyance of the Trust Property, the successor
trustee shall succeed to all the title, power and duties conferred upon the
Trustee herein and by applicable law.
28. BENEFICIARY'S ADDRESS. The beneficial owners and holders of the
Notes at the time of execution and delivery hereof are The Huntington National
Bank, whose address is stated in the first paragraph of the first page of this
Instrument; KeyBank National Association, whose address is 000 Xxxxxx Xxxxxx,
0xx Xxxxx, Xxxxxxxxx, Xxxx 00000-0000; Fleet National Bank, Mail Stop RI/MO/215,
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000-0000; Star Bank, N.A.,
000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxxx, Xxxx 00000; PNC Bank, Ohio, National
Association, 000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxx 00000; The
Provident Bank, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000; National City
Bank, Columbus, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000; and Bankers Trust
Company, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
29. NOTICE. Any notice required or permitted to be given hereunder
shall be in writing. If mailed by first class United States mail, postage
prepaid, 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 Trustor, Trustee and Huntington shall be as set forth below;
provided however, that either party shall
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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 Trustor: Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: General Counsel
If to Huntington: The Huntington National Bank
Commercial Real Estate Group
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
ATTN: Xxxxx X. Xxxxx
It to Trustee: Xxxx X. Xxxxxxxxxxxx
000 Xxxx Xxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx
30. MISCELLANEOUS. The covenants herein contained shall bind, and the
benefits and advantages shall inure to, the respective successors and assigns of
the parties hereto. Whenever used, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all genders. If
any provision of the Deed of Trust is illegal, or hereafter rendered illegal, or
is for any other reason void, voidable or otherwise unenforceable, or hereafter
rendered void, voidable or otherwise unenforceable, the remainder of the Deed of
Trust shall not be affected thereby, but shall be construed as if it does not
contain such provision. Each right and remedy provided in the Deed of Trust is
distinct and cumulative to all other rights or remedies under the Deed of Trust
or afforded by law or equity, and may be exercised concurrently, independently
or successively, in any order whatsoever.
HUNTINGTON, BY ACCEPTANCE OF THIS DEED OF TRUST, AND TRUSTOR HEREBY
MUTUALLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE FOR THE BENEFIT OF
THE OTHER ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE LOAN DOCUMENTS, THE TRANSACTIONS RELATED
THERETO OR THE RELATIONSHIP ESTABLISHED THEREBY. THIS PROVISION IS A MATERIAL
INDUCEMENT TO HUNTINGTON AND TRUSTOR TO ENTER INTO THIS TRANSACTION. IT SHALL
NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY HUNTINGTON'S ABILITY TO
PURSUE ITS REMEDIES.
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IN WITNESS WHEREOF, Trustor has caused the Deed of Trust to be executed
this 15th day of May, 1997.
Signed and acknowledged Trustor:
in the presence of:
Glimcher Properties Limited Partnership
/s/ Xxxxxx X. Xxxxxx By: Glimcher Properties Corporation,
------------------------------- General Partner
Witness Xxxxxx X. Xxxxxx
-----------------------
(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:
The foregoing instrument was acknowledged before me this 15th day of
May, 1997, by Xxxxx X. Xxxxxxxx, President of Glimcher Properties Corporation,
the general partner of Glimcher Properties Limited Partnership, on behalf of the
limited partnership.
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Notary Public
Commission
Expiration:
This instrument prepared by:
Xxxxxx X. Xxxxx
Attorney at Law
PORTER, WRIGHT, XXXXXX & XXXXXX
00 Xxxxx Xxxx Xxxxxx, #0000
Xxxxxxxx, Xxxx 00000
The Huntington National Bank
Commercial Real Estate Group
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EXHIBIT A
LEGAL DESCRIPTION
A tract of land located in file Corporation of Star City, Monongalia County,
West Virginia and being more particularly bounded and described as follows:
Beginning at an iron (Pt. #28) in the Southern Right of Way line or US Xx. 00 &
Xxxx Xxxxxxxx Xx. 7 commonly known as Monongahela Boulevard and in the Eastern
Right of Way line of the Baltimore & Ohio Railroad, thence with the road Right
of Way
South 71(degree) 13' 30" East 166.32 to an iron pin (Pt. #29), thence
South 66(degree) 41' 49" East 217.30 to Rial Road Spike (Pt. #24), thence
South 58(degree) 45' 14" East 186.63 to an iron pin (Pt. #1), thence
South 50(degree) 08' 39" East 205.27 to an iron pin (Pt. #33), thence
South 40(degree) 06' 30" West 22.63 to an iron pin (Pt. #34), thence leaving
said Road Right of Way
North 85(degree) 57' 00" West 184.98 to an iron pin (Pt.
#35), thence
South 17(degree) 00' 00" West 296.30 to an iron pin (Pt. #2) corner
to Tract #2 and in the Western Right of Way line to Normandy Street, thence with
same
South 17(degree) 00' 00" 150.00 to an iron pin (Pt. #26) corner to Tract #3
thence,
South 17(degree) 00' 00" West 150.00 to an iron pin (Pt. #5), thence
South 17(degree) 00' 00" West 30.00 to an iron pin (Pt. #6), corner to Tract #4,
thence
South 17(degree) 00' 00" West 100.00 to an iron pin (Pt. #9), thence
South 17(degree) 00' 00" West 530.57 to an iron pin (Pt. #10), thence
South 46(degree) 05' 00" East 98.25 to an iron pin (Pt. #11), corner to Canton
Street and West Virginia Utility property, thence with the West Virginia Utility
Property
South 39(degree) 25' 00" West 311.24 to an iron pin (Pt. #12) in the
Eastern Right of Way line of the Baltimore and Ohio Railroad, thence with the
same
North 16(degree) 36' 00" West 203.55 to an iron pin (Pt. #13), thence
North 09(degree) 49' 00" West 189.06 to an iron pin (Pt. #14), thence
North 04(degree) 12' 00" West 477.63 to an iron pin (Pt. #15), thence
North 13(degree) 59' 00" East 98.28 to an iron pin (Pt. #16), thence
North 09(degree) 30' 00" East 300.00 to an iron pin (Pt. #17), thence
North 03(degree) 08' 30" East 100.73 to an iron pin (Pt. #18), thence
North 15(degree) 22' 00" West 54.95 to an iron pin (Pt. #19), thence
North 09(degree) 30' 00" East 50.00 to an iron pin (Pt. #20), thence
North 28(degree) 04' 30" East 147.68 to an iron pin (Pt. #21), thence
North 11(degree) 33' 00" West 130.88 to an iron pin (Pt. #22), thence
North 09(degree) 30' 00" East 66.93 to an iron pin (Pt. #23), corner to Tract
#5, thence
North 09(degree) 30' 00" East 107.74 to the beginning and containing
15.67 acres more or less and being a combination of Tracts #1 through #7 as
recorded in Deed Book 802, Page 415 and as shown on a plat attached hereto and
made part of this description (See Map Cabinet No. 434-A).
