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Exhibit 10.80
This Instrument Prepared By:
Xxxxxx X. Xxxxx, Attorney-at-Law Twin County Plaza
PORTER, WRIGHT, XXXXXX & XXXXXX Galax, VA
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
THIS IS A DEED OF TRUST,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (herein
"Instrument") is made this 13th day of October, 1998, between the Mortgagor,
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, whose
address is 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (herein "Trustor/Grantor"
or "Borrower"), ALEXANDER TITLE AGENCY, INC., a Virginia corporation, with its
principal office at 0000 Xxxxx Xxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000, as Trustee
(herein "Trustee/Grantee") and THE HUNTINGTON NATIONAL BANK, a national banking
association, whose address is 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (herein
"Beneficiary" or "Lender"), also a Grantee for purposes of indexing. The address
for Lender to which any notice shall be given is 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxx 00000.
WHEREAS, Borrower is indebted to Lender in the principal sum of
Fourteen Million and 00/100 Dollars ($14,000,000.00), which indebtedness is
evidenced by a promissory note of even date herewith from Borrower (the "Note"),
the terms and conditions of which are made a part hereof as if fully restated
herein, and which provides for installments of interest, with the balance of the
indebtedness, if not sooner paid, due and payable on April 13, 1999.
WHEREAS, the Real Estate and Improvements, both as hereinafter defined,
and the personal property and fixtures described below (all of the foregoing
herein collectively the "Property") encumbered by this Instrument constitutes
one of four shopping center properties mortgaged by Borrower to Lender as
security for such indebtedness pursuant to security instruments of even date
herewith;
NOW, THEREFORE, IN ORDER TO SECURE, TO THE EXTENT OF THREE MILLION AND
00/100 DOLLARS ($3,000,000.00) WITH INTEREST THEREON the repayment of the
indebtedness evidenced by the Note of even date herewith, and all renewals,
extensions and modifications thereof, and the performance of the covenants and
agreements of Borrower contained in the Note; AND IN ORDER TO SECURE ALSO the
payment of all other sums with interest thereon advanced in accordance herewith
to protect the security of this Instrument; and the performance of the covenants
and agreements of Borrower herein (and in other security instruments securing
the indebtedness) contained, Borrower does hereby grant, convey and assign to
Trustee, its successors and assigns in trust, with power of sale, for the
purpose of securing the foregoing indebtedness and obligations, the following
described real property:
See legal description attached hereto as Exhibit "A" and made a part
hereof (the "Real Estate");
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
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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 "Property").
Borrower covenants that Borrower is lawfully seized of the estate
hereby conveyed and has the right to mortgage, grant, convey and assign the
Property; that the Property is unencumbered except for the lien of this
Instrument and the lien of real estate taxes and assessments not yet due; and
that Borrower will warrant and defend generally the title to the Property
against all claims and demands, whatsoever, except for the lien of real estate
taxes and assessments, easements and restrictions of record and any other
encumbrances approved by Lender for inclusion in the title insurance policy to
be issued to insure the lien of this Instrument.
Borrower and Lender covenant and agree as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly pay when
due the principal of and interest on the indebtedness evidenced by the Note, any
prepayment and late charges provided in the Note, and all other sums secured by
this Instrument. Borrower shall timely perform its other obligations under the
Note and under the other instruments given to secure the indebtedness secured by
this Instrument.
2. 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 Property, or
any part thereof, or upon Lender's interest therein, or upon the Property 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 Lender; 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 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 Lender's interest
in the Property, the Deed of Trust or the Indebtedness cannot be lawfully paid
by Borrower, then Borrower shall repay the Indebtedness in full without penalty
within sixty (60) days after demand therefor by Lender.
Upon default in payment of any of the following described items, or
upon the occurrence of any other event of default under this Instrument or under
the Note, Lender shall have the right, at its option, and if Lender does not
elect to accelerate the indebtedness secured hereby and to pursue its other
remedies, to require Borrower to pay to Lender on the day monthly installments
of principal or interest are payable under the Note (or on another day
designated in writing by Lender), until the Note is paid in full, a sum (herein
"Funds") equal to one-twelfth of (a) the yearly water and sewer rates and taxes
and assessments which may be levied on the Property; (b) the yearly ground
rents, if any; (c) the yearly premium installments for fire and other hazard
insurance, rent loss insurance and such other insurance
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covering the Property as Lender may require pursuant to paragraph 5 hereof; and
(d) such other Funds for other taxes, charges, premiums, assessments and
impositions in connection with Borrower or the Property which Lender shall
reasonably deem necessary to protect Lender's interests (herein "Other
Impositions"); all as reasonably estimated initially and from time to time by
Lender.
The Funds shall be held and applied by Lender to pay said rates, rents,
taxes, assessments, insurance premiums and Other Impositions so long as Borrower
is not in breach of any covenant or agreement of Borrower in this Instrument.
Lender shall make no charge for so holding and applying the Funds, analyzing
said account or for verifying and compiling said assessments and bills, unless
Lender is required under applicable law to pay Borrower interest, earnings or
profits on the Funds and applicable law permits Lender to make such a charge.
Unless applicable law requires interest, earnings or profits to be paid, Lender
shall not be required to pay Borrower any interest, earnings or profits on the
Funds. Lender shall give to Borrower, without charge, an annual accounting of
the Funds in Lender's normal format showing credits and debits to the Funds and
the purpose for which each debit to the Funds was made. The Funds are pledged as
additional security for the sums secured by this Instrument and shall be subject
to the right of set off.
If the amount of the Funds held by Lender at the time of the annual
accounting thereof shall exceed the amount deemed necessary by Lender to provide
for the payment of water and sewer rates, taxes, assessments, insurance
premiums, rents and Other Impositions, as they fall due, such excess shall be
credited to Borrower on the next monthly installment or installments of Funds
due. If at any time the amount of the Funds held by Lender shall be less than
the amount deemed necessary by Lender to pay water and sewer rates, taxes,
assessments, insurance premiums, rents and Other Impositions, as they fall due,
Borrower shall pay to Lender any amount necessary to make up the deficiency
immediately after notice from Lender to Borrower requesting payment thereof.
Upon Borrower's breach of any covenant or agreement of Borrower in this
Instrument, Lender may apply, in any amount and in any order as Lender shall
determine in Lender's sole discretion, any Funds held by Lender at the time of
application (a) to pay rates, rents, taxes, assessments, insurance premiums and
Other Impositions which are now or will hereafter become due, or (b) as a credit
against sums secured by this Instrument. Upon payment in full of all sums
secured by this Instrument, Lender shall promptly refund to Borrower any Funds
held by Lender.
3. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise,
all payments received from Borrower under the Note or this Instrument shall be
applied in the following order of priority: (a) amounts payable to Lender by
Borrower under paragraph 2 hereof; (b) interest payable on the Note; (c)
principal of the Note; (d) interest payable on advances made pursuant to
paragraph 8 hereof; (e) principal of advances made pursuant to paragraph 8
hereof; and (f) any other sums secured by this Instrument in such order as
Lender, at Lender's option, may determine; provided, however, that Lender may,
at Lender's option, apply any sums payable pursuant to paragraph 8 hereof prior
to interest on and principal of the Note, but such application shall not
otherwise affect the order of priority of application specified in this
paragraph 3.
4. CHARGES; LIENS. Borrower shall promptly discharge any lien which
has, or may have, priority over or equality with, the lien of this Instrument
(other than the lien of real estate taxes and assessments which shall be paid in
accordance with the preceding paragraph), and Borrower shall pay, when due, the
claims of all persons supplying labor or materials to or in connection with the
Property. Without Lender's prior written permission, Borrower shall not allow
any lien, encumbrance, or other interest in the Property inferior to the lien of
this Instrument to be perfected against the Property, provided that Borrower may
contest any mechanic's or materialman's lien in good faith and by appropriate
proceedings; further provided that Borrower shall cause such mechanic's or
materialman's lien to be promptly discharged of record upon commencement of any
judicial proceeding to enforce such lien and shall pay all expenses incurred by
Lender in order to protect the lien of this Instrument.
5. 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 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 Property and sufficient to prevent Borrower and Lender from becoming
co-insurers, and otherwise with terms and conditions acceptable to Lender;
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(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 Lender;
(c) Worker's compensation insurance (including employer's
liability insurance, if available and requested by Lender) for all employees of
Borrower 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 Lender;
(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 5(a) above, and otherwise with terms and conditions
acceptable to Lender;
(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 Property for a minimum of twelve (12) months, and otherwise with terms and
conditions acceptable to Lender;
(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 Lender; and
(g) Such other insurance coverage, and in such amount, as may
from time to time be required by Lender against the same or other hazards.
All such policies shall be in a form acceptable to Lender. 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
Lender, showing Lender as mortgagee. Each policy of liability insurance shall
show Lender as an additional insured. Unless the policy so provides, each policy
of insurance required by the terms of this Instrument shall contain an
endorsement by the insurer, for the benefit of Lender, (i) that any loss shall
be payable in accordance with the terms of such policy notwithstanding any act
or negligence of Borrower which might otherwise result in forfeiture of said
insurance, (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
Lender.
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 Lender in
writing.
Lender shall have the right to hold the policies, or certificates
thereof acceptable to Lender with certified copies of the policies, and Borrower
shall promptly furnish to Lender 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 Lender a renewal policy, or certificate
thereof, in form acceptable to Lender.
If Lender is made a party defendant to any litigation concerning the
Loan Documents as hereinafter defined or the Property or any part thereof or
interest therein or the occupancy thereof by Borrower, then Borrower shall
indemnify, defend and hold Lender harmless from all liability by reason of said
litigation, including reasonable attorneys' fees and expenses incurred by Lender
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 Lender,
its officers, employees, agents and representatives, for loss of or damage to
Borrower, the 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 this Instrument.
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 Lender has approved the insurance company and the form and
content of the insurance policy, including, without limitation, the naming
thereon of Lender as a named insured with loss payable to Lender under a
standard mortgage clause of
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the character above described. Borrower shall immediately notify Lender whenever
any such separate insurance is taken out and shall promptly deliver to Lender
copies of the policies and certificates evidencing such insurance.
Nothing contained in this Section 5 shall prevent Borrower from keeping
the Improvements and Property insured or causing the same to be insured against
the risks referred to in this Section 5 under a policy or policies of blanket
insurance which may cover other property not subject to the lien of this
Instrument; provided, however, that any such policy of blanket insurance (i)
shall specify therein the amount of the total insurance allocated to the
Improvements and Property, which amount shall be not less than the amount
otherwise required to be carried under this Instrument; (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 this Instrument.
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.
Borrower may elect option (ii) above only if it first provides to Lender
evidence satisfactory to Lender that there will be no material decrease in the
fair market value of the Property.
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
Lender as escrow agent for the purpose of repairing, restoring or reconstructing
the Improvements. Such proceeds shall be disbursed by Lender as work progresses,
provided that prior to any disbursement, Lender 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, Lender 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 Property as existed immediately prior to the loss and the plans and
specifications therefor must be approved by Lender. In the event Lender believes
it is necessary in order to establish value, Lender may, at its option, cause
the Property to be reappraised at Borrower's expense. All insurance proceeds
shall be payable to Lender. The adjustment of such insurance proceeds with the
carrier must be approved by Lender.
Anything in this Section 5 to the contrary notwithstanding, if there
shall be an Event of Default, as hereinafter defined, the insurance proceeds
shall, at the sole option of Lender, be applied by Lender to the Indebtedness in
such order as Lender may determine.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower (a) shall not
commit waste or permit impairment or deterioration of the Property, (b) shall
not abandon the Property, (c) shall restore or repair promptly and in a good and
workmanlike manner all or any part of the Property to the equivalent of its
original condition, or such other condition as Lender may approve in writing, in
the event of any damage, injury or loss thereto, whether or not insurance
proceeds are sufficient to cover in whole or in part the costs of such
restoration or repair, (d) shall keep the Property, including Improvements,
fixtures, equipment, machinery and appliances thereon in good repair and shall
replace fixtures, equipment, machinery and appliances on the Property when
necessary to keep such items in good repair, (e) materially shall comply with
all laws, ordinances, regulations and requirements of any governmental body
applicable to the Property, (f) shall operate the Property as a shopping center,
and (g) shall give notice in writing to Lender of and, unless otherwise directed
in writing by Lender, appear in and defend any action or proceeding purporting
to affect the Property, the security of this Instrument or the rights or powers
of Lender. Neither Borrower nor any tenant or other person shall remove,
demolish or alter any improvement now existing or hereafter erected on the
Property or any fixture, equipment, machinery or appliance in or on the Property
except when incident to the replacement of fixtures, equipment, machinery and
appliances with items of like kind.
7. USE OF PROPERTY. Unless required by applicable law or unless Lender
has otherwise agreed in writing, Borrower shall not allow changes in the use for
which all or any part of the
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Property was intended at the time this Instrument was executed. Borrower shall
not initiate or acquiesce in a change in the zoning classification of the
Property without Lender's prior written consent.
8. PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the
covenants and agreements contained in this Instrument, or if any action or
proceeding is commenced which affects the Property or title thereto or the
interest of Lender therein, including, but not limited to, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then Lender at Lender's option may make such appearances,
disburse such sums and take such action as Lender deems necessary, in its sole
discretion, to protect Lender's interest, including, but not limited to, (a)
disbursement of attorney's fees, (b) entry upon the Property to make repairs,
and (c) procurement of satisfactory insurance as provided in paragraph 5 hereof.
Any amounts disbursed by Lender pursuant to this paragraph, with
interest thereon, shall become additional indebtedness of Borrower secured by
this Instrument. Unless Borrower and Lender agree to other terms of payment,
such amounts shall be immediately due and payable and shall bear interest from
the date of disbursement at the rate stated in the Note unless collection from
Borrower of interest at such rate would be contrary to applicable law, in which
event such amounts shall bear interest at the highest rate which may be
collected from Borrower under applicable law. Borrower hereby covenants and
agrees that Lender shall be subrogated to the lien of any deed of trust or other
lien discharged, in whole or in part, by the indebtedness secured hereby.
Nothing contained in this paragraph shall require Lender to incur any expense or
take any action hereunder.
9. INSPECTION. Any person authorized by Lender shall have the right to
enter upon and inspect the Property after reasonable notice to Borrowers and
during normal business hours. Lender shall have no duty, however, to make such
inspections. Any inspection of the Property by Lender shall be entirely for its
benefit, and Borrower shall in no way rely or claim reliance thereon.
10. RENT ROLL AND FINANCIAL STATEMENTS. Borrower shall maintain full
and correct books and records open to Lender's inspection showing in detail the
income, expenses and earnings of Borrower and of the Property, and shall provide
Lender the following:
(a) a financial statement for the Property consisting of a
complete itemized statement of income and operating expenses, prepared in
accordance with general accounting principles or otherwise in form acceptable to
Lender and certified by Borrower's chief executive or financial officer, within
ninety (90) days after the end of each fiscal year of Borrower, or as requested
from time to time by Lender, but not more often than quarterly;
(b) a rent roll of the Property, certified by the chief
executive or financial officer of Borrower, within thirty (30) days after the
end of each fiscal year of Borrower, or as requested from time to time by
Lender, but not more often than quarterly, containing the name and address of
each tenant, square footage of leased premises, annual rent, rent per square
foot, lease commencement date, lease expiration date, date through which rent is
paid, and the nature and extent of any defaults by each tenant;
(c) a financial statement for Borrower consisting of a balance
sheet and a complete itemized statement of annual income and operating expenses
of Borrower, prepared in accordance with generally accepted accounting
principles or otherwise in form acceptable to Lender and certified by Borrower's
chief executive or financial officer, within ninety (90) days after the end of
each fiscal year of Borrower, or as requested from time to time by Lender;
(d) such other financial information as Lender may reasonably
require, when requested from time to time by Lender.
11. CONDEMNATION. If all the Property and Improvements are taken or
acquired in any condemnation proceeding or by exercise of the right of eminent
domain or, with Lender'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 Lender, and Lender 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 Lender. Such award or payment
so received by Lender shall be applied to the Indebtedness (whether or not then
due and payable).
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
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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 5 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 5 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 Lender as escrow agent for the purpose of repairing,
restoring, or reconstructing the Improvements and/or Property, and shall be
disbursed by Lender in accordance with the provisions of paragraph 5 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 Lender 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 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 11 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 Lender, be
applied by Lender to the Indebtedness in such order as Lender may determine.
12. BORROWER AND LIEN NOT RELEASED. From time to time, Lender may, at
Lender's option, without giving notice to or obtaining the consent of Borrower,
Borrower's successors or assigns or of any junior lienholder or guarantors,
without liability on Lender's part and notwithstanding Borrower's breach of any
covenant or agreement of Borrower in this Instrument, extend the time for
payment of said indebtedness or any part thereof, reduce the payments thereon,
release anyone liable on any of said indebtedness, accept a renewal note or
notes therefor, direct Trustee to release from the lien of this Instrument any
part of the Property, take or release other or additional security, reconvey any
part of the Property, consent to any map or plan of the 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 Lender pursuant to the terms of this
paragraph shall not affect the obligation of Borrower or Borrower's successors
or assigns to pay the sums secured by this Instrument and to observe the
covenants of Borrower contained herein, shall not affect the guaranty of any
person, corporation, partnership or other entity for payment of the indebtedness
secured hereby, and shall not affect the lien or priority of lien hereof on the
Property. Borrower shall pay Lender a reasonable service charge, together with
such title insurance premiums and attorney's fees as may be incurred at Lender's
option for any such action if taken at Borrower's request.
13. FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by Lender in
exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any right or remedy.
The acceptance by Lender of payment of any sum secured by this Instrument after
the due date of such payment shall not be a waiver of Lender's right to either
require prompt payment when due of all other sums so secured or to declare a
default for failure to make prompt payment. The procurement of insurance or the
payment of taxes or other liens or charges by Lender shall not be a waiver of
Lender's right to accelerate the maturity of the indebtedness secured by this
Instrument. Lender's receipt of any awards, proceeds or damages under paragraphs
5 and 11 hereof shall not operate to cure or waive Borrower's default in payment
of sums secured by this Instrument.
14. ESTOPPEL CERTIFICATE. Borrower shall, within 10 days of a written
request from Lender, furnish Lender with a written statement, duly acknowledged,
setting forth the sums secured by this Instrument and any right of set-off,
counterclaim or other defense which exists against such sums and the obligations
of this Instrument.
15. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. In addition to being a
deed of trust and assignment of rents, this Instrument is intended to be a
security agreement pursuant to the Uniform Commercial Code for any of the items
specified above as part of the Property which under applicable law, may be
subject to a security interest pursuant to the Uniform Commercial Code, and
Borrower hereby grants Lender a security interest in said items. Borrower agrees
that Lender
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may file this Instrument, or a reproduction thereof, in the real estate records
or other appropriate index, as a financing statement for any of the items
specified above as part of the Property. Any reproduction of this Instrument or
of any other security agreement or financing statement shall be sufficient as a
financing statement. In addition, Borrower agrees to execute and deliver to
Lender, upon Lender's request, any financing statements, as well as extensions,
renewals and amendments thereof, and reproductions of this Instrument in such
form as Lender may require to perfect a security interest with respect to said
items. Borrower shall pay all costs of filing such financing statements and any
extensions, renewals, amendments and releases thereof. Without the prior written
consent of Lender, Borrower shall not create or suffer to be created pursuant to
the Uniform Commercial Code any other security interest in said items, including
replacements and additions thereto. Upon Borrower's breach of any covenant or
agreement of Borrower contained in this Instrument, including the covenants to
pay when due all sums secured by this Instrument, Lender shall have the remedies
of a secured party under the Uniform Commercial Code and, at Lender's option,
may also invoke the remedies provided in paragraph 25 of this Instrument as to
such items. In exercising any of said remedies, Lender may proceed against the
items of real property and any items of personal property specified above as
part of the Property separately or together and in any order whatsoever, without
in any way affecting the availability of Lender's remedies under the Uniform
Commercial Code or of the remedies provided in paragraph 25 of this Instrument.
16. LEASES OF THE PROPERTY. Borrower shall comply with and observe
Borrower's obligations as landlord under all leases of the Property or any part
thereof. Borrower shall furnish Lender with executed copies of all leases now
existing or hereafter made of all or any part of the Property.
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 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.
Borrower does hereby assign to Lender, as additional security, all
leases now existing or hereafter made of all or any part of the Property and, to
the extent permitted by applicable law, all security deposits made by tenants in
connection with such leases of the Property. Upon Borrower's default, Lender, at
Lender's option, shall have all of the rights and powers possessed by Borrower
prior to such assignment.
17. REMEDIES CUMULATIVE. Each remedy provided in this Instrument is
distinct and cumulative to all other rights or remedies under this Instrument or
afforded by law or equity, and may be exercised concurrently, independently, or
successively, in any order whatsoever.
18. ACCELERATION IN CASE OF BORROWER'S INSOLVENCY. If Borrower shall
voluntarily file a petition under the Federal Bankruptcy Code, as such Code may
from time to time be amended, or under any similar or successor Federal Statute
relating to bankruptcy, insolvency, arrangements or reorganizations, or under
any state bankruptcy or insolvency act, or file an answer in an involuntary
proceeding admitting insolvency or failure to pay debts as they come due, or if
Borrower shall fail within 60 days to obtain a vacation, stay or dismissal of
involuntary proceedings brought for the reorganization, dissolution or
liquidation of Borrower, or if an order for relief under the Federal Bankruptcy
Code shall be entered against Borrower, or if a trustee, receiver or custodian
shall be appointed for Borrower or Borrower's property, or if the Property shall
become subject to the jurisdiction of a Federal bankruptcy court or similar
state court, or if Borrower shall make an assignment for the benefit of
Borrower's creditors, or if there is an attachment, execution or other judicial
seizure of any portion of Borrower's assets and such seizure is not discharged
within 60 days, then Lender may, at Lender's option, declare all of the sums
secured by this Instrument to be immediately due and payable without prior
notice to Borrower, and Lender may invoke any remedies permitted by paragraph 25
of this Instrument. Any attorney's fees and other expenses incurred by Lender in
connection with Borrower's bankruptcy or any of the other aforesaid events shall
be additional indebtedness of Borrower secured by this Instrument pursuant to
paragraph 8 hereof.
19. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER. On
sale, encumbrance. or transfer of (a) all or any part of the Property, or any
interest therein, or (b) beneficial interests in Borrower, Lender may, at
Lender's option, declare all of the sums
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secured by this Instrument to be immediately due and payable, and Lender may
invoke any remedies permitted by paragraph 25 of this Instrument. This option
shall not apply in case of:
(i) transfers by devise or descent or by operation of
law upon the death of a tenant in common or a partner;
(ii) the grant of a leasehold interest in a part of
the Property of three years or less (or such longer lease term as Lender may
permit by prior written approval) not containing an option to purchase (except
any interest in the ground lease, if this Instrument encumbers a leasehold); and
(iii) sales or transfers of fixtures or any personal
property pursuant to paragraph 6 hereof.
20. 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 Lender 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 Lender: The Huntington National Bank
Commercial Real Estate Group
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
21. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
CAPTIONS. The covenants and agreements herein contained shall bind, and the
rights hereunder shall inure to, the respective successors and assigns of Lender
and Borrower, subject to the provisions of paragraph 19 hereof. All covenants
and agreements of Borrower shall be joint and several. In exercising any rights
hereunder or taking any actions provided for herein, Lender may act through its
employees, agents or independent contractors as authorized by Lender. The
captions and headings of the paragraphs of this Instrument are for convenience
only and are not to be used to interpret or define the provisions hereof.
22. GOVERNING LAW; SEVERABILITY. This Instrument shall be governed by
the law of the jurisdiction in which the Property is located. In the event that
any provision of this Instrument or the Note conflicts with applicable law, such
conflict shall not affect other provisions of this Instrument or the Note which
can be given effect without the conflicting provisions, and to this end the
provisions of this Instrument and the Note are declared to be severable. In the
event that any applicable law limiting the amount of interest or other charge
permitted to be collected from Borrower is interpreted so that any charge
provided for in this Instrument or in the Note, whether considered separately or
together with other charges levied in connection with this Instrument and the
Note, violates such law, and Borrower is entitled to the benefit of such law,
such charge is hereby reduced to the extent necessary to eliminate such
violation. The amounts, if any, previously paid to Lender in excess of the
amounts payable to Lender pursuant to such charges as reduced shall be applied
by Lender to reduce the principal of the indebtedness evidenced by the Note. For
the purpose of determining whether any applicable law limiting the amount of
interest or other charges permitted to be collected from Borrower has been
violated, all indebtedness which is secured by this Instrument or evidenced by
the Note and which constitutes interest, as well as all other charges levied in
connection with such indebtedness which constitute interest, shall be deemed to
be uniformly allocated and spread over the stated term of the Note.
23. WAIVER OF STATUTE OF LIMITATIONS; WAIVER OF APPRAISAL. To the
extent permitted by applicable law, Borrower hereby waives the right to assert
any statute of limitations
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as a bar to the enforcement of the lien of this Instrument or to any action
brought to enforce the Note or any other obligation secured by this Instrument.
To the extent permitted by applicable law, Borrower hereby waives any
right of appraisal of the Property. In the event of foreclosure pursuant to
paragraph 25 hereof, Lender may, at Lender's option, obtain an appraisal of the
Property, and any funds expended by Lender for such purpose shall become
indebtedness of Borrower to Lender secured by this Instrument.
24. WAIVER OF MARSHALLING. Notwithstanding the existence of any other
security interests in the Property held by Lender or by any other party, Lender
shall have the right to determine the order in which any or all of the Property
shall be subjected to the remedies provided herein. Lender shall have the right
to determine the order in which any or all portions of the indebtedness secured
hereby are satisfied from the proceeds realized upon the exercise of the
remedies provided herein. Borrower, any party who consents to this Instrument,
and any party who now or hereafter acquires a security interest in the Property
and who has actual or constructive notice hereof 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, to the extent
permitted by applicable law.
25. ACCELERATION; REMEDIES. Upon Borrower's breach of any covenant or
agreement of Borrower in the Note or this Instrument, including, but not limited
to, the covenants to pay when due, after the expiration of any applicable grace
period, any sums secured by this Instrument, Lender, at Lender's option, may
declare all of the sums secured by this Instrument to be immediately due and
payable without further demand and may invoke the power of sale and any other
remedies permitted by applicable law or as provided herein. Borrower
acknowledges that the power of sale herein granted may be invoked by Lender and
exercised by Trustee without prior judicial hearing. Borrower has the right to
bring an action to assert the non-existence of a breach or any other defense of
Borrower to acceleration and sale. Lender shall be entitled to collect all costs
and expenses incurred in pursuing such remedies, including, but not limited to
attorneys fees, costs of documentary evidence, abstracts and title reports.
Reference in this paragraph 25 and in other paragraphs of this Instrument to
"breach" or "default" shall mean the continuance of such event or circumstance
beyond any applicable grace period or notice and cure period provided in this
Instrument or in the Note.
If Lender invokes the power of sale, Lender or Trustee shall give to
Borrower a copy of a notice of sale in the manner prescribed by applicable law.
Trustee shall give public notice of sale in the manner prescribed by applicable
law and shall sell the Property in accordance with the laws of Virginia.
Trustee, without demand on Borrower, shall sell the Property at public auction
to the highest bidder 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. Trustee may postpone sale of all or any parcel of the Property by
public announcement at the time and place of any previously scheduled sale or by
advertising in accordance with applicable law. Lender or Lender's designee may
purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the
Property so sold with special warranty of title. The recitals in 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 accordance with the provisions
of Section 55-59.4 of the Code of Virginia, as amended and effective on the date
hereof. Trustee shall not be required to provide possession of the Property to
the purchaser at such sale.
26. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN POSSESSION.
As part of the consideration for the indebtedness evidenced by the Note,
Borrower hereby absolutely and unconditionally assigns and transfers to Lender
all the rents and revenues of the Property, including those now due, past due,
or to become due by virtue of any lease, license or other agreement for the
occupancy or use of all or any part of the Property, regardless of to whom the
rents and revenues of the Property are payable. Borrower hereby authorizes
Lender or Lender's agents to collect the aforesaid rents and revenues and hereby
directs each tenant of the Property to pay such rents to Lender or Lender's
agents; provided, however, that prior to written notice given by Lender to
Borrower of the breach by Borrower of any covenant or agreement of Borrower in
this Instrument, Borrower shall collect and receive all rents and revenues of
the Property as trustee for the benefit of Lender and Borrower, to apply the
rents and revenues so collected to the sums secured by this Instrument in the
order provided in paragraph 3 hereof with the balance, so long as no such breach
has occurred, to the account of Borrower, it being intended by Borrower and
Lender that this assignment of rents constitutes an absolute assignment and not
an assignment for additional security only. Upon delivery of written notice by
Lender to Borrower of the breach by Borrower of any covenant or
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agreement of Borrower in this Instrument, and without the necessity of Lender
entering upon and taking and maintaining full control of the Property in person,
by agent or by a court-appointed receiver, Lender shall immediately be entitled
to possession of all rents and revenues of the Property as specified in this
paragraph as the same become due and payable, including but not limited to rents
then due and unpaid, and all such rents shall immediately upon delivery of such
notice be held by Borrower as trustee for the benefit of Lender only; provided,
however, that the written notice by Lender to Borrower of the breach by Borrower
shall contain a statement that Lender exercises its rights to such rents.
Borrower agrees that commencing upon delivery of such written notice of
Borrower's breach by Lender to Borrower, each tenant of the Property shall make
such rents payable to and pay such rents to Lender or Lender's agents on
Lender's written demand to each tenant therefor, delivered to each tenant
personally, by mail or delivering such demand to each rental unit, without any
liability on the part of said tenant to inquire further as to the existence of a
default by Borrower.
Borrower hereby covenants that Borrower has not executed any prior
assignment of said rents, that Borrower has not performed, and will not perform,
any acts and has not executed, and will not execute, any instrument which would
prevent Lender from exercising its rights under this paragraph, and that at the
time of execution of this Instrument there has been no anticipation or
prepayment of any of the rents of the Property for more than 1 month prior to
the due dates of such rents. Borrower covenants that Borrower will not hereafter
collect or accept payment of any rents of the Property more than 1 month prior
to the due dates of such rents. Borrower further covenants that Borrower will
execute and deliver to Lender such further assignments of rents and revenues of
the Property as Lender may from time to time request.
Upon Borrower's breach of any covenant or agreement of Borrower in this
Instrument, Lender may in person, by agent or by a court-appointed receiver,
regardless of the adequacy of Lender's security, enter upon and take and
maintain full control of the Property in order to perform all acts necessary and
appropriate for the operation and maintenance thereof including, but not limited
to, the execution, cancellation or modification of leases, the collection of all
rents and revenues of the Property, the making of repairs to the Property and
the execution or termination of contracts providing for the management or
maintenance of the Property, all on such terms as are deemed best to protect the
security of this Instrument. In the event Lender elects to seek the appointment
of a receiver for the Property upon Borrower's breach of any covenant or
agreement of Borrower in this Instrument, Borrower hereby expressly consents to
the appointment of such receiver. Lender or the receiver shall be entitled to
receive a reasonable fee for so managing the Property.
All rents and revenues collected subsequent to delivery of written
notice by Lender to Borrower of the breach by Borrower of any covenant or
agreement of Borrower in this Instrument shall be applied first to the costs, if
any, of taking control of and managing the Property and collecting the rents,
including, but not limited to, attorney's fees, receiver's fees, premiums on
receiver's bonds, costs of repairs to the Property, premiums on insurance
policies, taxes, assessments and other charges on the Property, and the costs of
discharging any obligation or liability of Borrower as lessor or landlord of the
Property and then to the sums secured by this Instrument. Lender or the receiver
shall have access to the books and records used in the operation and maintenance
of the Property and shall be liable to account only for those rents actually
received. Lender shall not be liable to Borrower, anyone claiming under or
through Borrower or anyone having an interest in the Property by reason of
anything done or left undone by Lender under this paragraph.
If the rents of the Property are not sufficient to meet the costs, if
any, of taking control of and managing the Property and collecting the rents,
any funds expended by Lender for such purposes shall become indebtedness of
Borrower to Lender secured by this Instrument pursuant to paragraph 8 hereof.
Unless Lender and Borrower agree in writing to other terms of payment, such
amounts shall be payable upon notice from Lender to Borrower requesting payment
thereof and shall bear interest from the date of disbursement at the rate stated
in the Note.
Any entering upon and taking and maintaining of control of the Property
by Lender or the receiver and any application of rents as provided herein shall
not cure or waive any default hereunder or invalidate any other right or remedy
of Lender under applicable law or as provided herein. This assignment of rents
shall terminate at such time as this Instrument ceases to secure indebtedness
held by Lender.
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27. HAZARDOUS SUBSTANCES.
(a) Borrower hereby covenants and agrees with Lender that the
following terms shall have the following meanings:
(i) "Environmental Laws" means 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 Lender, its participants in
the loan, and all subsequent holders of this Instrument, their respective
successors and assigns, their respective officers, directors, employees, agents,
representatives, contractors and subcontractors and any subsequent owner of the
Property who acquires title thereto from or through Lender.
(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 Lender that, to its
knowledge after due investigation except as may be set forth in the
environmental report for the Property delivered to Lender in connection
herewith: (i) the Property is not being and has 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 Property does not contain any Hazardous Substance in violation of any
Environmental Laws; (iii) there has been no Release of any Hazardous Substance
on, at or from the Property or any property adjacent to or within the immediate
vicinity of the Property, and Borrower has not received any form of notice or
inquiry with regard to such a Release or the threat of such a Release; (iv) no
event has occurred with respect to the 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
Property which require any work, repair, construction, containment, clean up,
investigations, studies, removal or other remedial action with respect to the
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 Property and (a) a violation
or alleged violation of any applicable Environmental Law, (b) the presence of
any Hazardous Substance or a Release of any Hazardous Substance or the threat of
such a Release, or (c) human exposure to any Hazardous Substance.
(c) Borrower covenants and agrees with Lender as follows:
(i) Borrower shall keep, and shall use reasonable
efforts to cause all operators, tenants, sub-tenants, licensees, and occupants
of the Property to keep, the Property 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 as a
shopping center in accordance with all Environmental Laws.
(ii) Borrower shall comply with, and shall use
reasonable efforts to cause all operators, tenants, sub-tenants, licensees, and
occupants of the Property to comply with, all Environmental Laws.
(iii) Borrower shall promptly provide Lender 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 or any property adjacent to or within the immediate
vicinity of the Property.
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(iv) Borrower shall undertake and complete all
investigations, studies, sampling and testing for Hazardous Substances
reasonably required by Lender 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 in
violation of any Environmental Law.
(v) Lender shall have the right, but not the
obligation, to cure any violation by Borrower of the Environmental Laws and
Lender's cost and expense to so cure shall be secured by this Instrument.
(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 (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").
The liability of Borrower to Indemnitee hereunder shall in no way be
limited, abridged, impaired or otherwise affected by (a) the repayment of all
sums and the satisfaction of all obligations of Borrower under the Note, this
Instrument, or any other instrument evidencing or securing the Note (herein
collectively the "Loan Documents"), (b) the foreclosure of this Instrument or
the acceptance of a deed in lieu thereof, (c) any amendment or modification of
the Loan Documents by or for the benefit of Borrower or any subsequent owner of
the Property, (d) any extensions of time for payment or performance required by
any of the Loan Documents, (e) the release or discharge of this Instrument or of
Borrower, any guarantor of the loan, 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 Lender, by operation of law, or otherwise,
(f) the invalidity or unenforceability of any of the terms or provisions of the
Loan Documents, (g) any applicable statute of limitations, (h) the sale or
assignment of the Note or this Instrument, (i) the sale, transfer, or conveyance
of all or part of the Property, (j) the dissolution or liquidation of Borrower,
(k) the release or discharge, in whole or in part, of Borrower in any
bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or similar proceeding, or (l) any other circumstances which might
otherwise constitute a legal or equitable release or discharge, in whole or in
part, of Borrower under the Note or this Instrument.
The foregoing indemnity shall be in addition to any and all other
obligations and liabilities Borrower may have to Lender at common law.
28. RELEASE. Upon payment of all sums secured by this Instrument,
Lender shall request Trustee to release this Instrument and shall surrender all
notes evidencing indebtedness secured by this Instrument to Trustee. Trustee
shall release this Instrument. Borrower shall pay Trustee's reasonable costs
incurred in releasing this Instrument.
29. SUBSTITUTE TRUSTEE. Lender may from time to time in Lender's
discretion, for any reason whatsoever, remove Trustee and appoint a successor
trustee to any Trustee appointed hereunder in the manner provided by Section
55-59 of the Code of Virginia, as amended and effective on the date hereof.
Without conveyance of the Property, the successor trustee shall succeed to all
the title, power and duties conferred upon the Trustee herein and by applicable
law.
30. IDENTIFICATION OF NOTE. The Note is identified by a certificate on
the Note executed by any Notary Public who certifies an acknowledgement hereto.
31. PRIORITY OF LIEN. This Instrument shall remain in full force and
effect notwithstanding any extension or extensions of the maturity date or other
reamortization of the obligations which this Instrument secures and
notwithstanding the fact that such extensions and reamortizations may be
evidenced by a note or notes signed and dated after the date of this Instrument.
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IN WITNESS WHEREOF, Borrower has caused this Instrument to be executed
by its duly authorized representative.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation, a Delaware
Corporation, its Sole General Partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Its: Senior Vice President
------------------------------------------
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
On this 13th day of October, 1998, before me, a Notary Public in and
for said County and State, personally appeared, Xxxxxx X. Xxxxxxx who
acknowledged himself to be the Senior Vice President of Glimcher Properties
Corporation, a Delaware corporation, the corporation named in the foregoing
instrument as the sole General Partner of GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, the limited partnership which executed the foregoing instrument,
and who acknowledged to me that he, as such Senior Vice President of said
corporation, being duly authorized by the Board of Directors of said
corporation, did execute the foregoing instrument for and on behalf of said
corporation and limited partnership and that such signing is the free act and
deed of said corporation and limited partnership for the uses and purposes
therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxx X. Xxxxx
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[AFFIX NOTARIAL SEAL] Notary Public
My Commission Expires:
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