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Exhibit 10.109
This Instrument Prepared by:
Xxxxx Xxxxxxxx, Esq.
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
DEED OF TRUST, SECURITY AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT
THIS DOCUMENT SECURES OBLIGATORY ADVANCES FOR COMMERCIAL PURPOSES
Maximum Principal Indebtedness for
Tennessee Recording tax purposes is
$_________________________________
Map No.__________________________
Parcel No._______________________
This instrument is a Uniform Commercial Code Financing Statement which is being
filed as a Fixture Filing in accordance with T.C.A. Section 47-9-402(6).
This Deed of Trust secures obligatory advances and is given for commercial
purposes; and notice of these facts is given pursuant to T.C.A.Section 00-00-000
et. seq.
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RECORDING REQUESTED BY AND Maximum Principal Indebtedness for
WHEN RECORDED RETURN TO: Tennessee Recording tax purposes is
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx $_________________________________
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 Map No.___________________________
Attention: Xxxxx Xxxxxxxx, Esq. Parcel No.________________________
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DEED OF TRUST, SECURITY AGREEMENT,
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FIXTURE FILING AND FINANCING STATEMENT
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THIS DOCUMENT SECURES OBLIGATORY ADVANCES FOR COMMERCIAL PURPOSES
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THIS DEED OF TRUST, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING
STATEMENT, together with all amendments and supplements hereto ("DEED OF TRUST")
is made as of June 28, 1999, between GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership (the "TRUSTOR"), having an address at 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 and Xxxxxx Xxxxx, an individual, having an
address at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, as trustee ("TRUSTEE") ,in
favor of XXXXXXX NATIONAL LIFE INSURANCE COMPANY, a Michigan corporation (the
"BENEFICIARY"), having an address c/o PPM Finance, Inc., 000 Xxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
1. DEED OF TRUST AND SECURED OBLIGATIONS.
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1.1. DEED OF TRUST. For purposes of securing payment and performance of
the Secured Obligations defined and described in SECTION 1.2, Trustor, hereby
irrevocably and unconditionally grants, bargains, sells, conveys, mortgages,
warrants, assigns and pledges to Trustee, for the benefit of Beneficiary, with
right of entry and possession, and with power of sale, all estate, right, title
and interest which Trustor now has or may later acquire in and to the following
property (all or any part of such property, or any interest in all or any part
of it, as the context may require, the "PROPERTY"):
(a) the real property located in the County of Xxxxxxx, State
of Tennessee and more particularly described in EXHIBIT A attached hereto,
together with all existing and future easements and rights affording access to
it (the "LAND");
(b) all buildings, structures and improvements now located or
later to be constructed on the Land (the "IMPROVEMENTS");
(c) all existing and future appurtenances, privileges,
easements, franchises and tenements of the Land, including all minerals, oil,
gas, other hydrocarbons and associated substances, sulfur, nitrogen, carbon
dioxide, helium and other commercially valuable substances
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which may be in, under or produced from any part of the Land, all development
rights and credits, air rights, water, water rights (whether riparian,
appropriative or otherwise, and whether or not appurtenant) and water stock, and
any land lying in the streets, roads or avenues, open or proposed, in front of
or adjoining the Land and Improvements;
(d) all existing and future leases, subleases, subtenancies,
licenses, occupancy agreements and concessions ("leases", as defined in the
Assignment of Leases and Rents described in SECTION 2 herein, executed and
delivered to Lender contemporaneously herewith) relating to the use and
enjoyment of all or any part of the Land and Improvements, and any and all
guaranties and other agreements relating to or made in connection with any of
such leases;
(e) all goods, materials, supplies, chattels, furniture,
fixtures, equipment and machinery now or later to be attached to, placed in or
on, or used in connection with the use, enjoyment, occupancy or operation of all
or any part of the Land and Improvements, whether stored on the Land or
elsewhere, including all pumping plants, engines, pipes, ditches and flumes, and
also all gas, electric, cooking, heating, cooling, air conditioning, lighting,
refrigeration and plumbing fixtures and equipment, all of which shall be
considered to the fullest extent of the law to be real property for purposes of
this Deed of Trust;
(f) all building materials, equipment, work in process or
other personal property of any kind, whether stored on the Land or elsewhere,
which have been or later will be acquired for the purpose of being delivered to,
incorporated into or installed in or about the Land or Improvements;
(g) all of Trustor's interest in and to the Loan funds,
whether disbursed or not, the Escrow Accounts (as defined in SECTION 3.1of the
Loan Agreement) and any of Trustor's funds now or later to be held by or on
behalf of Trustee for the benefit of Beneficiary;
(h) all rights to the payment of money, accounts, accounts
receivable, reserves, deferred payments, refunds, cost savings, payments and
deposits, whether now or later to be received from third parties (including all
xxxxxxx money sales deposits) or deposited by Trustor with third parties
(including all utility deposits), contract rights, development and use rights,
governmental permits and licenses, applications, architectural and engineering
plans, specifications and drawings, as-built drawings, chattel paper,
instruments, documents, notes, drafts and letters of credit (other than letters
of credit in favor of Beneficiary), which arise from or relate to construction
on the Land or to any business now or later to be conducted on it, or to the
Land and Improvements generally;
(i) all proceeds, including all claims to and demands for
them, of the voluntary or involuntary conversion of any of the Land,
Improvements or the other property described above into cash or liquidated
claims, including proceeds of all present and future fire, hazard or casualty
insurance policies and all condemnation awards or payments now or later to be
made by any public body or decree by any court of competent jurisdiction for any
taking or in connection with any condemnation or eminent domain proceeding, and
all causes of action and their proceeds for any damage or injury to the Land,
Improvements or the other property described above or any part of them, or
breach of warranty in connection with the construction of
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the Improvements, including causes of action arising in tort, contract, fraud or
concealment of a material fact;
(j) all books and records pertaining to any and all of the
property described above, including computer-readable memory and any computer
hardware or software necessary to access and process such memory ("BOOKS AND
RECORDS"). Notwithstanding anything in the foregoing to the contrary, Books and
Records shall not be deemed to include the general corporate books and records
of the Mortgagor which are maintained by Mortgagor on a consolidated basis for
all of Mortgagor's properties (which properties include the Property being
secured hereunder) except to the extent that information in such consolidated
books and records pertains to the Property secured hereunder;
(k) (i) all agreements heretofore or hereafter entered into
relating to the construction, ownership, operation, management, leasing or use
of the Land or Improvements; (ii) any and all present and future amendments,
modifications, supplements, and addenda to any of the items described in (i)
above; (iii) any and all guarantees, warranties and other undertakings
(including payment and performance bonds) heretofore or hereafter entered into
or delivered with respect to any of the items described in clauses (i) and (ii)
above; (iv) all trade names, trademarks, logos and other materials used to
identify or advertise, or otherwise relating to the Land or Improvements; and
(v) all building permits, governmental permits, licenses, variances, conditional
or special use permits, and other authorizations (collectively, the "Permits")
now or hereafter issued in connection with the construction, development,
ownership, operation, management, leasing or use of the Land or Improvements, to
the fullest extent that the same or any interest therein may be legally assigned
by Mortgagor; and
(l) all proceeds of, additions and accretions to,
substitutions and replacements for, and changes in any of the property described
above.
Capitalized terms used above and elsewhere in this Deed of Trust without
definition have the meanings given them in the Loan Agreement referred to in
Section 1.2 below.
1.2. SECURED OBLIGATIONS. This Deed of Trust is made for the purpose of
securing the following obligations (the "SECURED OBLIGATIONS") in any order of
priority that Beneficiary may choose:
(a) Payment of all obligations at any time owing under a
Promissory Note (the "NOTE") of even date herewith, payable by Trustor as maker
in the stated principal amount of Ninety Million Dollars ($90,000,000.00) to the
order of Beneficiary, which Note matures and is due and payable in full not
later than ____________, ______; and
(b) Payment and performance of all obligations of Trustor
under a Loan Agreement of even date herewith between Trustor, as borrower, and
Beneficiary, as lender (the "LOAN AGREEMENT"); and
(c) Payment and performance of all obligations of Trustor
under this Deed of Trust; and
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(d) Payment and performance of any obligations of Trustor
under any Loan Documents (as defined in the Loan Agreement) which are executed
by Trustor, including without limitation the Environmental Indemnity; and
(e) Payment and performance of all future advances and other
obligations that Trustor or any successor in ownership of all or part of the
Property may agree to pay and/or perform (whether as principal, surety or
guarantor) for the benefit of Beneficiary, when a writing evidences the parties'
agreement that the advance or obligation be secured by this Deed of Trust; and
(f) Payment and performance of all modifications, amendments,
extensions and renewals, however evidenced, of any of the Secured Obligations.
All persons who may have or acquire an interest in all or any part of the
Property will be considered to have notice of, and will be bound by, the terms
of the Secured Obligations and each other agreement or instrument made or
entered into in connection with each of the Secured Obligations. These terms
include any provisions in the Note or the Loan Agreement which provide that the
interest rate on one or more of the Secured Obligations may vary from time to
time.
2. ASSIGNMENT OF RENTS. As an inducement to Beneficiary to make the loan
evidenced by the Note and the Loan Agreement, Trustor has contemporaneously
herewith executed and delivered to Beneficiary an Assignment of Leases and Rents
with respect to the Property.
3. GRANT OF SECURITY INTEREST.
3.1. SECURITY AGREEMENT. The parties acknowledge that some of the
Property and some or all of the Rents (as defined in the Assignment of Leases
and Rents) may be determined under applicable law to be personal property or
fixtures. To the extent that any Property or Rents may be personal property,
Trustor as debtor hereby grants Beneficiary as secured party a security interest
in all such Property and Rents, to secure payment and performance of the Secured
Obligations. This Deed of Trust constitutes a security agreement under the
Uniform Commercial Code as in effect in the State in which the Property is
located (the "CODE"), covering all such Property and Rents.
3.2. FINANCING STATEMENTS. Trustor shall execute one or more financing
statements and such other documents as Beneficiary may from time to time require
to perfect or continue the perfection of Beneficiary's security interest in any
Property or Rents. Trustor shall pay all fees and costs that Beneficiary, or
Trustee on behalf of Beneficiary, may incur in filing such documents in public
offices and in obtaining such record searches as Beneficiary may reasonably
require. In case Trustor fails to execute any financing statements or other
documents for the perfection or continuation of any security interest, Trustor
hereby appoints Beneficiary as its true and lawful attorney-in-fact to execute
any such documents on its behalf.
3.3. FIXTURE FILING. Trustor and Beneficiary agree, to the extent
permitted by law, that this instrument constitutes a financing statement filed
as a fixture filing under Sections 9-
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313 and 9-402 of the Code, as amended or recodified from time to time, covering
any of the Property which now is or later may become fixtures attached to the
Land or the Improvements. The following addresses are the mailing addresses of
Trustor, as debtor under the Code, and Beneficiary, as secured party under the
Code, respectively:
TRUSTOR: Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
BENEFICIARY: Xxxxxxx National Life Insurance Company
c/o PPM Finance, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
4. REPRESENTATIONS, COVENANTS AND AGREEMENTS.
4.1. GOOD TITLE. Trustor represents, warrants, and covenants that it is
lawfully seized of the Property, that the Property is unencumbered except for
the Permitted Exceptions (as defined in the Loan Agreement), and that it has
good right, full power and lawful authority to convey and mortgage the same, and
that it will warrant and forever defend the Property and the quiet and peaceful
possession of the same against the lawful claims of all persons whomsoever.
4.2. INSURANCE. In the event of any loss or damage to any portion of
the Property due to fire or other casualty, or a taking of any portion of the
Property by condemnation or under the power of eminent domain, the settlement of
all insurance and condemnation claims and awards and the application of
insurance and condemnation proceeds shall be governed by SECTION 5 of the Loan
Agreement.
4.3. STAMP TAX. If, by the laws of the United States of America, or of
any state or political subdivision having jurisdiction over Trustor, any tax is
due or becomes due in respect of the issuance of the Note, or recording of this
Deed of Trust, Trustor covenants and agrees to pay such tax in the manner
required by any such law. Trustor further covenants to hold harmless and agrees
to indemnify Beneficiary, its successors or assigns, against any liability
incurred by reason of the imposition of any tax on the issuance of the Note or
recording of this Deed of Trust.
4.4. CHANGES IN TAXATION. Other than a tax that may arise in connection
with the transfer of the Note by Beneficiary or imposed on the income of the
Beneficiary, in the event of the enactment after this date of any law of the
State in which the Property is located or any political subdivision thereof
deducting from the value of land for the purpose of taxation any lien thereon,
or imposing upon Beneficiary the payment of the whole or any part of the taxes
or assessments or charges or liens herein required to be paid by Trustor, or
changing in any way the laws relating to the taxation of mortgages or debts
secured by mortgages or the Beneficiary's interest in the Property, or the
manner of collection of taxes, so as to adversely affect this Deed of Trust or
the debt secured hereby, then Trustor, upon demand by Beneficiary, shall pay
such
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taxes or assessments, or reimburse Beneficiary therefor; provided, HOWEVER, that
if in the opinion of counsel for Beneficiary (i) it might be unlawful to require
Trustor to make such payment or (ii) the making of such payment might result in
the imposition of interest beyond the maximum amount permitted by law, then
Beneficiary may elect, by notice in writing given to Trustor, to declare all of
the Secured Obligations to be and become due and payable sixty (60) days from
the giving of such notice.
4.5. SUBROGATION. Beneficiary shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole
or in part by Beneficiary in accordance with this Deed of Trust or with the
proceeds of any loan secured by this Deed of Trust.
4.6. NOTICE OF CHANGE. Trustor shall give Beneficiary prior written
notice of any change in: (a) the location of its place of business or its chief
executive office if it has more than one place of business; (b) the location of
any of the Property, including the Books and Records; and (c) Trustor's name or
business structure. Unless otherwise approved by Beneficiary in writing, all
Property that consists of personal property (other than the Books and Records)
will be located on the Land and all Books and Records will be located at
Trustor's place of business or chief executive office if Trustor has more than
one place of business.
4.7. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY. From
time to time, Beneficiary may perform any of the following acts without
incurring any liability or giving notice to any person: (i) release any person
liable for payment of any Secured Obligation; (ii) extend the time for payment,
or otherwise alter the terms of payment, of any Secured Obligation; (iii) accept
additional real or personal property of any kind as security for any Secured
Obligation, whether evidenced by deeds of trust, mortgages, security agreements
or any other instruments of security; (iv) alter, substitute or release any
property securing the Secured Obligations; (v) consent to the making of any plat
or map of the Property or any part of it; (vi) join in granting any easement or
creating any restriction affecting the Property; or (vii) join in any
subordination or other agreement affecting this Deed of Trust or the lien of it.
5. DEFAULTS AND REMEDIES.
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5.1. EVENTS OF DEFAULT. An "Event of Default," as defined in the Loan
Agreement, shall constitute an Event of Default hereunder.
5.2. REMEDIES. At any time after an Event of Default, Beneficiary shall
be entitled to invoke any and all of the rights and remedies described below, in
addition to all other rights and remedies available to Beneficiary at law or in
equity. All of such rights and remedies shall be cumulative, and the exercise of
any one or more of them shall not constitute an election of remedies.
(a) ACCELERATION. Beneficiary may declare any or all of the
principal sum hereby secured to be due and payable immediately.
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(b) RECEIVER. Beneficiary shall, as a matter of right, without
notice and without giving bond to Trustor or anyone claiming by, under or
through Trustor, and without regard for the solvency or insolvency of Trustor or
the then value of the Property, to the extent permitted by applicable law, be
entitled to have a receiver appointed for all or any part of the Property and
the Rents, and the proceeds, issues and profits thereof, with the rights and
powers referenced below and such other rights and powers as the court making
such appointment shall confer, and Trustor hereby consents to the appointment of
such receiver and shall not oppose any such appointment. Such receiver shall
have all powers and duties prescribed by the applicable laws in effect in the
State in which the Property is located, all other powers which are necessary or
usual in such cases for the protection, possession, control, management and
operation of the Property, and such rights and powers as Beneficiary would have,
upon entering and taking possession of the Property under subsection (c) below.
(c) ENTRY. Beneficiary, in person, by agent or by
court-appointed receiver, may enter, take possession of, manage and operate all
or any part of the Property, and may also do any and all other things in
connection with those actions that Beneficiary may in its sole discretion
consider necessary and appropriate to protect the security of this Deed of
Trust. Such other things may include: taking and possessing all of Trustor's or
the then owner's Books and Records; entering into, enforcing, modifying or
canceling leases on such terms and conditions as Beneficiary may consider
proper; obtaining and evicting tenants; fixing or modifying Rents; collecting
and receiving any payment of money owing to Trustor; completing any unfinished
construction; and/or contracting for and making repairs and alterations. If
Beneficiary so requests, Trustor shall assemble all of the Property that has
been removed from the Land and make all of it available to Beneficiary at the
site of the Land. Trustor hereby irrevocably constitutes and appoints
Beneficiary as Trustor's attorney-in-fact to perform such acts and execute such
documents as Beneficiary in its sole discretion may consider to be appropriate
in connection with taking these measures, including endorsement of Trustor's
name on any instruments.
(d) CURE; PROTECTION OF SECURITY. Beneficiary may cure any
breach or default of Trustor, and if it chooses to do so in connection with any
such cure, Beneficiary may also enter the Property and/or do any and all other
things which it may in its sole discretion consider necessary and appropriate to
protect the security of this Deed of Trust. Such other things may include:
appearing in and/or defending any action or proceeding which purports to affect
the security of, or the rights or powers of Beneficiary under, this Deed of
Trust; paying, purchasing, contesting or compromising any encumbrance, charge,
lien or claim of lien which in Beneficiary's sole judgment is or may be senior
in priority to this Deed of Trust, such judgment of Beneficiary to be conclusive
as between the parties to this Deed of Trust; obtaining insurance and/or paying
any premiums or charges for insurance required to be carried under the Loan
Agreement; otherwise caring for and protecting any and all of the Property;
and/or employing counsel, accountants, contractors and other appropriate persons
to assist Beneficiary. Beneficiary may take any of the actions permitted under
this Section 5.2(d) either with or without giving notice to any person. Any
amounts expended by Beneficiary under this Section 5.2(d) shall be secured by
this Deed of Trust.
(e) UNIFORM COMMERCIAL CODE REMEDIES. Beneficiary may exercise
any or all of the remedies granted to a secured party under the Code.
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(f) FORECLOSURE; LAWSUITS. Beneficiary shall have the right,
in one or several concurrent or consecutive proceedings, to foreclose the lien
hereof upon the Property or any part thereof, for the Secured Obligations, or
any part thereof, by any proceedings appropriate under applicable law.
Beneficiary or its nominee may bid and become the purchaser of all or any part
of the Property at any foreclosure or other sale hereunder, and the amount of
Beneficiary's successful bid shall be credited on the Secured Obligations.
Without limiting the foregoing, Beneficiary may proceed by a suit or suits in
law or equity, whether for specific performance of any covenant or agreement
herein contained or contained in any of the other Loan Documents (as defined in
the Loan Agreement), or in aid of the execution of any power herein granted, or
for any foreclosure under the judgment or decree of any court of competent
jurisdiction, or for damages, or to collect the indebtedness secured hereby, or
for the enforcement of any other appropriate legal, equitable, statutory or
contractual remedy. Trustee, at the direction of the Beneficiary, may sell the
Property at public auction in one or more parcels, at Beneficiary's option, and
convey the same to the purchaser in fee simple, Trustor to remain liable for any
deficiency for which Trustor shall be personally liable.
(g) FORECLOSURE BY POWER OF SALE.
(i) Should Beneficiary elect to foreclose by exercise of the
power of sale contained herein, upon Beneficiary's request,
Trustee shall sell the property in accordance with the
applicable State law at public auction to the highest bidder.
Any person except Trustee may bid at the Trustee's sale.
Trustee shall apply the proceeds of the sale as follows: (i)
to the expenses of sale, including Trustee's fee and
attorneys' fee; (ii) to all the indebtedness evidenced by the
Note and all other indebtedness secured by this Deed of Trust
or any other Loan Document; (iii) the surplus, if any, shall
be distributed in accordance with the applicable State law.
Trustee shall deliver to the purchaser at the sale its deed,
without warranty, which shall convey to the purchaser the
interest in the Property which Trustor had or had the power to
convey at the time of its execution of this Deed of Trust and
such as it may have acquired thereafter. Trustee's deed shall
recite the facts showing that the sale was conducted in
compliance with all the requirements of the law and of this
Deed of Trust, which recital shall be prima facie evidence of
such compliance and conclusive evidence thereof in favor of
bona fide purchasers and encumbrancers for value. The power of
sale conferred by this Deed of Trust and by the applicable
State law is not an exclusive remedy, and when not exercised
Beneficiary may foreclose this Deed of Trust as a mortgage.
(ii) After deducting all costs, fees and expenses of
Beneficiary and Trustee, including costs of evidence of title
in connection with any such sale, Beneficiary shall apply the
proceeds of sale, in the following order of priority, to
payment of (i) first, all amounts expended under the terms
hereof and not then repaid, with accrued interest, (ii)
second, all other amounts then secured hereby, in such order
as Beneficiary shall determine in its sole and absolute
discretion, and (iii) the remainder, if any, to the person(s)
legally entitled thereto.
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(iii) To the extent permitted by applicable law, Trustee may postpone
the sale of all or any portion of the Property by public announcement
at the time and place of sale, and from time to time thereafter may
again postpone such sale by public announcement or subsequently noticed
sale, and without further notice may make such sale at the time fixed
by the last postponement or may, in its discretion, give a new notice
of sale.
(iv) A sale of less than all of the Property or any defective or
irregular sale made hereunder shall not exhaust the power of sale
provided for herein, and subsequent sales may be made hereunder until
all Secured Obligations have been satisfied or the entire Property
sold, without defect or irregularity.
(h) OTHER REMEDIES. Beneficiary may exercise all rights and remedies
contained in any other instrument, document, agreement or other writing
heretofore, concurrently or in the future executed by Trustor or any other
person or entity in favor of Beneficiary in connection with the Secured
Obligations or any part thereof, without prejudice to the right of Beneficiary
thereafter to enforce any appropriate remedy against Trustor. Beneficiary shall
have the right to pursue all remedies afforded to a beneficiary of a deed of
trust under applicable law, and shall have the benefit of all of the provisions
of such applicable law, including all amendments thereto which may become
effective from time to time after the date hereof. In the event any provision of
such law which is specifically referred to herein may be repealed, Beneficiary
shall have the benefit of such provision as most recently existing prior to such
repeal, as though the same were incorporated herein by express reference.
(i) POWER OF SALE FOR PERSONAL PROPERTY. Under this power of sale,
Beneficiary shall have the discretionary right to cause some or all of the
Property, which constitutes personal property, to be sold or otherwise disposed
of in any combination and in any manner permitted by applicable law.
(i) For purposes of this power of sale, Beneficiary may elect to treat
as personal property any Property which is intangible or which can be
severed from the Land or Improvements without causing structural
damage. If it chooses to do so, Beneficiary may dispose of any personal
property in any manner permitted by Article 9 of the Code, including
any public or private sale, or in any manner permitted by any other
applicable law.
(ii) In connection with any sale or other disposition of such Property,
Trustor agrees that the following procedures constitute a commercially
reasonable sale: Beneficiary shall mail written notice of the sale to
Trustor not later than ten (10) days prior to such sale. Upon receipt
of any written request, Trustor will make the Property available to any
bona fide prospective purchaser for inspection during reasonable
business hours. Notwithstanding, Beneficiary shall be under no
obligation to consummate a sale if, in its judgment, none of the offers
received by it equals the fair value of the Property offered for sale.
The foregoing procedures do not constitute the only procedures that may
be commercially reasonable.
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(J) SINGLE OR MULTIPLE FORECLOSURE SALES. If the Property consists of
more than one lot, parcel or item of property, Beneficiary may:
(1) designate the order in which the lots, parcels and/or items shall
be sold or disposed of or offered for sale or disposition; and
(2) elect to dispose of the lots, parcels and/or items through a single
consolidated sale or disposition to be held or made under or in
connection with judicial proceedings, or by virtue of a judgment and
decree of foreclosure and sale, or pursuant to the power of sale
contained herein; or through two or more such sales or dispositions; or
in any other manner Beneficiary may deem to be in its best interests
(any foreclosure sale or disposition as permitted by the terms hereof
is sometimes referred to herein as a "FORECLOSURE SALE;" and any two or
more such sales, "FORECLOSURE SALES").
If it chooses to have more than one Foreclosure Sale, Beneficiary at its option
may cause the Foreclosure Sales to be held simultaneously or successively, on
the same day, or on such different days and at such different times and in such
order as it may deem to be in its best interests. No Foreclosure Sale shall
terminate or affect the payment secured under the Deed of Trust on any part of
the Property which has not been sold, until all of the Secured Obligations have
been paid in full.
5.3. APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of any
Foreclosure Sale shall be applied in the following manner:
(a) First, to pay the portion of the Secured Obligations attributable
to the expenses of sale, costs of any action and any other sums for which
Trustor is obligated to reimburse Beneficiary hereunder or under the other Loan
Documents;
(b) Second, to pay the portion of the Secured Obligations attributable
to any sums expended or advanced by Beneficiary under the terms of this Deed of
Trust which then remain unpaid;
(c) Third, to pay all other Secured Obligations in any order and
proportions as Beneficiary in its sole discretion may choose; and
(d) Fourth, to remit the remainder, if any, to the person or persons
entitled to it.
Beneficiary shall have no liability for any funds which it does not actually
receive.
6. RELEASE. If Trustor shall fully pay and perform all of the Secured
Obligations and comply with all of the other terms and provisions hereof and the
other Loan Documents to be performed and complied with by Trustor, then
Beneficiary shall instruct Trustee to reconvey this Deed of Trust and the lien
thereof by proper instrument upon payment, performance and discharge of all of
the Secured Obligations and payment by Trustor of any filing fee in connection
with such release.
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7. CONCERNING THE TRUSTEE.
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7.1. NO REQUIRED ACTION. Trustee shall not be required to take any
action toward the execution and enforcement of the trust hereby created or to
institute, appear in, or defend any action, suit, or other proceeding in
connection therewith where, in his opinion, such action would be likely to
involve him in expense or liability, unless requested so to do by a written
instrument signed by Beneficiary and, if Trustee so requests, unless Trustee is
tendered security and indemnity satisfactory to Trustee against any and all
cost, expense, and liability arising therefrom. Trustee shall not be responsible
for the execution, acknowledgment, or validity of the Loan Documents, or for the
proper authorization thereof, or for the sufficiency of the lien and security
interest purported to be created hereby, and Trustee makes no representation in
respect thereof or in respect of the rights, remedies, and recourse of
Beneficiary.
7.2. CERTAIN RIGHTS. With the approval of Beneficiary, Trustee shall
have the right to take any and all of the following actions: (i) to select,
employ, and consult with counsel (who may be, but need not be, counsel for
Beneficiary) upon any matters arising hereunder, including the preparation,
execution, and interpretation of the Loan Documents, and shall be fully
protected in relying as to legal matters on the advice of counsel, (ii) to
execute any of the trusts and powers hereof and to perform any duty hereunder
either directly or through his agents or attorneys, (iii) to select and employ,
in and about the execution of his duties hereunder, suitable accountants,
engineers and other experts, agents and attorneys-in-fact, either corporate or
individual, not regularly in the employ of Trustee; and (iv) any and all other
lawful action that Beneficiary may instruct Trustee to take to protect or
enforce Beneficiary's rights hereunder. Trustee shall not be personally liable
in case of entry by Trustee, or anyone entering by virtue of the powers herein
granted to Trustee, upon the Property for debts contracted for or liability or
damages incurred in the management or operation of the Property. Trustee shall
have the right to rely on any instrument, document, or signature authorizing or
supporting any action taken or proposed to be taken by Trustee hereunder,
believed by Trustee in good faith to be genuine. Trustee shall be entitled to
reimbursement for expenses incurred by Trustee in the performance of Trustee's
duties hereunder and to reasonable compensation for such of Trustee's services
hereunder as shall be rendered. Grantor will, from time to time, pay the
compensation due to Trustee hereunder and reimburse Trustee for, and save
Trustee harmless against, any and all liability and expenses which may be
incurred by Trustee in the performance of Trustee's duties.
7.3. RETENTION OF MONEY. All moneys received by Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated in any manner from any other
moneys (except to the extent required by applicable law).
7.4. SUCCESSOR TRUSTEES. Trustee may resign by the giving of notice of
such resignation in writing to Beneficiary. If (a) Trustee shall die, resign, or
become disqualified from acting in the execution of this trust, or (b) for any
reason, Beneficiary shall prefer to appoint a substitute trustee, or successive
substitute trustees or successive multiple substitute trustees, to act instead
of the aforenamed Trustee, Beneficiary shall have full power to appoint a
substitute trustee in succession who shall succeed to all the estates, rights,
powers, and duties of the aforenamed Trustee. Such appointment may be executed
by any authorized agent of Beneficiary, and if such Beneficiary be a corporation
and such appointment be executed in its behalf by any
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officer of such corporation, such appointment shall be conclusively presumed to
be executed with authority and shall be valid and sufficient without proof of
any action by the board of directors or any superior officer of the corporation.
Grantor hereby ratifies and confirms any and all acts which the aforenamed
Trustee, or his successor or successors in this trust, shall do lawfully by
virtue hereof.
7.5. PERFECTION OF APPOINTMENT. Should any deed, conveyance, or
instrument of any nature be required from Grantor by any Trustee or substitute
Trustee to more fully and certainly vest in and confirm to the Trustee or
substitute Trustee such estates, rights, powers, and duties, then, upon request
by the Trustee or substitute Trustee, any and all such deeds, conveyances and
instruments shall be made, executed, acknowledged, and delivered and shall be
caused to be recorded and/or filed by Grantor.
7.6. SUCCESSION INSTRUMENTS. Any substitute Trustee appointed pursuant
to any of the provisions hereof shall, without any further act, deed, or
conveyance, become vested with all the estates, properties, rights, powers, and
trusts of its or his predecessor in the rights hereunder with like effect as if
originally named as Trustee herein; but nevertheless, upon the written request
of Beneficiary or of the substitute Trustee, the Trustee ceasing to act shall
execute and deliver any instrument transferring to such substitute Trustee, upon
the trusts herein expressed, all the estates, properties, rights, powers, and
trusts of the Trustee so ceasing to act, and shall duly assign, transfer and
deliver any of the property and moneys held by such Trustee to the substitute
Trustee so appointed in the Trustee's place.
7.7. NO REPRESENTATION BY TRUSTEE OR BENEFICIARY. By accepting or
approving anything required to be observed, performed, or fulfilled or to be
given to Trustee or Beneficiary pursuant to the Loan Documents, including,
without limitation, any officer's certificate, balance sheet, statement of
profit and loss or other financial statement, survey, appraisal, or insurance
policy, neither Trustee nor Beneficiary shall be deemed to have warranted,
consented to, or affirmed the sufficiency, legality, effectiveness, or legal
effect of the same, or of any term, provision, or condition thereof, and such
acceptance or approval thereof shall not be or constitute any warranty or
affirmation with respect thereto by Trustee or Beneficiary.
8. MISCELLANEOUS PROVISIONS.
-------------------------
8.1. ADDITIONAL PROVISIONS. The Loan Documents fully state all of the
terms and conditions of the parties' agreement regarding the matters mentioned
in or incidental to this Deed of Trust. The Loan Documents also grant further
rights to Beneficiary and contain further agreements and affirmative and
negative covenants by Trustor which apply to this Deed of Trust and the
Property.
8.2. GIVING OF NOTICE. Any notice, demand, request or other
communication which any party hereto may be required or may desire to give
hereunder shall be given as provided in SECTION 9.3 of the Loan Agreement.
8.3. REMEDIES NOT EXCLUSIVE. No action for the enforcement of the lien
or any provision hereof shall be subject to any defense which would not be good
and available to the party interposing same in an action at law upon the Note.
Beneficiary shall be entitled to enforce
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payment and performance of any of the Secured Obligations and to exercise all
rights and powers under this Deed of Trust or other agreement or any laws now or
hereafter in force, notwithstanding some or all of the Secured Obligations may
now or hereafter be otherwise secured, whether by mortgage, deed of trust,
pledge, lien, assignment or otherwise. Neither the acceptance of this Deed of
Trust nor its enforcement, whether by court action or other powers herein
contained, shall prejudice or in any manner affect Beneficiary's right to
realize upon or enforce any other security now or hereafter held by Beneficiary,
it being agreed that Beneficiary shall be entitled to enforce this Deed of Trust
and any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. No waiver of any
default of the Trustor hereunder shall be implied from any omission by
Beneficiary to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect any default other
than the default specified in the express waiver and that only for the time and
to the extent therein stated. No acceptance of any payment of any one or more
delinquent installments which does not include interest at the Default Rate from
the date of delinquency, together with any required late charge, shall
constitute a waiver of the right of Beneficiary at any time thereafter to demand
and collect payment of interest at such Default Rate or of late charges, if any.
8.4. WAIVER OF STATUTORY RIGHTS. To the extent permitted by law,
Trustor hereby agrees that it shall not and will not apply for or avail itself
of any appraisement, valuation, stay, extension or exemption laws, or any
so-called "Moratorium Laws," now existing or hereafter enacted, in order to
prevent or hinder the enforcement or foreclosure of this Deed of Trust, but
hereby waives the benefit of such laws. Trustor for itself and all who may claim
through or under it waives any and all right to have the property and estates
comprising the Property marshaled upon any foreclosure of the lien hereof and
agrees that any court having jurisdiction to foreclose such lien may order the
Property sold as an entirety. To the extent permitted by law, Trustor hereby
waives any and all rights of redemption from sale under the power of sale
contained herein or any order or decree of foreclosure of this Deed of Trust on
its behalf and on behalf of each and every person, except decree or judgment
creditors of Trustor, acquiring any interest in or title to the Property
subsequent to the date of this Deed of Trust.
8.5. ESTOPPEL AFFIDAVITS. Trustor, within fifteen (15) days after
written request from Beneficiary, shall furnish a written statement, duly
acknowledged, setting forth the unpaid principal of, and interest on, the
Secured Obligations and stating whether or not any offset or defense exists
against such Secured Obligations, and covering such other matters as Beneficiary
may reasonably require.
8.6. MERGER. No merger shall occur as a result of Beneficiary's
acquiring any other estate in or any other lien on the Property unless
Beneficiary consents to a merger in writing.
8.7. BINDING ON SUCCESSORS AND ASSIGNS. This Deed of Trust and all
provisions hereof shall be binding upon Trustor and all persons claiming under
or through Trustor, and shall inure to the benefit of Beneficiary and its
successors and assigns.
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15
8.8. CAPTIONS. The captions and headings of various paragraphs of this
Deed of Trust are for convenience only and are not to be construed as defining
or limiting, in any way, the scope or intent of the provisions hereof.
8.9. SEVERABILITY. If all or any portion of any provision of this Deed
of Trust shall be held to be invalid, illegal or unenforceable in any respect,
then such invalidity, illegality or unenforceability shall not affect any other
provision hereof or thereof, and such provision shall be limited and construed
as if such invalid, illegal or unenforceable provision or portion thereof was
not contained herein.
8.10. EFFECT OF EXTENSIONS OF TIME AND AMENDMENTS. If the payment of
the Secured Obligations or any part thereof be extended or varied or if any part
of the security be released, all persons now or at any time hereafter liable
therefor, or interested in the Property, shall be held to assent to such
extension, variation or release, and their liability and the lien and all
provisions hereof shall continue in full force, the right of recourse, if any,
against all such persons being expressly reserved by Beneficiary,
notwithstanding such extension, variation or release. Nothing in this SECTION
8.10 shall be construed as waiving any provision contained herein or in the Loan
Documents which provides, among other things, that it shall constitute an Event
of Default if the Property be sold, conveyed, or encumbered.
8.11. SERVICE CHARGE AND EXPENSES. At all times, regardless of whether
any proceeds of the loan secured hereby have been disbursed, this Deed of Trust
secures (in addition to the amounts secured hereby) the payment of any and all
commissions, service charges, liquidated damages, expenses and advances due to
or incurred by Beneficiary in connection with such loan; PROVIDED, HOWEVER, that
in no event shall the total amount secured hereby exceed two hundred percent
(200%) of the face amount of the Note.
8.12. APPLICABLE LAW. This Deed of Trust shall be governed by and
construed under the internal laws of the State in which the Property is located.
8.13. LIMITATION OF LIABILITY. The personal liability of Mortgagor and
its general partner hereunder is limited to the extent set forth in SECTION 9.18
of the Loan Agreement.
8.14. DUE ON SALE CLAUSE. As more fully set forth in SECTION 6.4 of the
Loan Agreement, the transfer or encumbrance of the Property, or any interest
therein, or the transfer of an interest in Trustor, except for the permitted
transfers set forth in SECTION 6.5 of the Loan Agreement, without prior written
consent of Benficiary, shall constitute an Event of Default.
8.15. TIME IS OF THE ESSENCE. Time is of the essence with respect to
each and every covenant, agreement and obligation of Trustor under this Deed of
Trust, the Note and the other Loan Documents.
8.16. RECORDATION. Trustor forthwith upon the execution and delivery of
this Deed of Trust, and thereafter from time to time, will cause this Deed of
Trust, and any security instrument creating a lien or evidencing the lien hereof
upon the Property, or any portion thereof, and each instrument of further
assurance, to be filed, registered or recorded in such manner and in such
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places as may be required by any present or future law in order to publish
notice of and fully to protect the lien hereof upon, and the interest of
Beneficiary in, the Property.
Trustor will pay all filing, registration or recording fees and taxes,
and all expenses incident to the preparation, execution and acknowledgment of
this Deed of Trust, any deed of trust supplemental hereto, any security
instrument with respect to the Property and any instrument of further assurance,
and all federal, state, county and municipal stamp taxes, duties, impositions,
assessments and charges arising out of or in connection with the execution and
delivery of the Note, this Deed of Trust, any deed of trust supplemental hereto,
any security instrument, any other Loan Documents or any instrument of further
assurance.
8.17. MODIFICATIONS. This Deed of Trust may not be changed or
terminated except in writing signed by both parties. The provisions of this Deed
of Trust shall extend and be applicable to all renewals, amendments, extensions,
consolidations, and modifications of the other Loan Documents, and any and all
references herein to the Loan Documents shall be deemed to include any such
renewals, amendments, extensions, consolidations or modifications thereof.
8.18. INDEPENDENCE OF SECURITY. Except as may exist pursuant to
easements and agreements existing as of the date hereof which have been
disclosed to Mortgagee, Trustor shall not by act or omission permit any building
or other improvement on any premises not subject to the Deed of Trust to rely on
the Property or any part thereof or any interest therein to fulfill any
municipal or governmental requirement, and Trustor hereby assigns to Beneficiary
any and all rights to give consent for all or any portion of the Property to
rely on any premises not subject to the Deed of Trust or any interest therein to
fulfill any municipal or governmental requirement. Trustor shall not by act or
omission impair the integrity of the Property as a single zoning lot, and as one
or more complete tax parcels, separate and apart from all other premises. Any
act or omission by Trustor which would result in a violation of any of the
provisions of this SECTION 8.18 shall be void.
9. STATE SPECIFIC PROVISIONS. The provisions of the Addendum to Deed of Trust
attached hereto as ANNEX I (the "ADDENDUM") are hereby incorporated herein by
this reference. Defined terms in the Addendum for which no definition is
provided in the Addendum will have the meanings given to such terms in the Deed
of Trust. In the event of any conflict or inconsistency between the provisions
of the Deed of Trust and the provisions of the Addendum, the provisions of the
Addendum will prevail.
[BALANCE OF PAGE LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the
date first written above.
TRUSTOR:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Glimcher Properties Corporation,
a Delaware corporation, its sole
general partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Its: Executive Vice President/COO,CFO
-----------------------------------
-00-
00
XXXXX XX XXXXXXXX )
COUNTY OF XXXX )
Before me, Xxxxx Xxxx of the state and county aforementioned,
personally appeared Xxxxxxx X. Xxxxxxx, with whom I am personally acquainted (or
proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged such person to be the of Glimcher Properties Corporation, a
Delaware corporation, the sole general partner of Glimcher Properties Limited
Partnership, a Delaware limited partnership the within name bargainor, a
partnership, and that such person, as such partner, executed the foregoing
instrument for the purpose therein contained, by signing the name of the
partnership by such person as partner.
Witness my hand and seal, this 28th day of June, 1999.
/s/ Xxxxx X. Polka
-----------------------------
------
NOTARY PUBLIC
My commission expires:
7-2-2000
----------------------
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00
Xxxxxxxx Xxxxxx/Xxxxxxx Xxxx, Xxxxxxxxx
EXHIBIT A
---------
LEGAL DESCRIPTION
A tract of land in the First Civil District of Xxxxxxxx County, Ashland City,
Tennessee and being Lot 1 as shown on the plan entitled "Sycamore Square
Shopping Center" as recorded in Plat Book 3, Page 101, Register's Office for
Xxxxxxxx County, Tennessee and as revised by Surveyor's Certificate of
Correction as recorded in Deed Book 293, Page 5, Register's Office for Xxxxxxxx
County, Tennessee and being described according to a survey dated March 26, 1996
and prepared by Xxxxx-Xxxxx -Associates, Inc. 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000 and being more particularly described as follows:
BEGINNING at an iron pin set on the Southeasterly right-of-way line of State
Route 49, Xxxx Street, (a 60 foot wide right-of-way at said pin) said pin being
the Southwest corner of the Xxxx Xxxxxxxx property as recorded in Deed Book 222,
Page 297 Register's Office for Xxxxxxxx County, Tennessee and being the
Northwest corner of Lot 1 of the aforementioned plan and also being the
Northwest corner of the herein described tract of land; thence,
1. Leaving the Southeasterly right-of-way line of State Route 49 and with the
Southwesterly line of the Xxxxxxxx property, South 62 degree 57' 09" East,
209.56 feet to an existing iron pin; thence,
2. Continuing with the Southerly line of the Xxxxxxxx property, North 71 degree
08' 24" East, 73.89 feet to an existing iron pin at the Southwest corner of the
Tennessee and Associates V Partnership property as recorded in Deed Book 288,
Page 880, Register's Office for Xxxxxxxx County, Tennessee; thence,
3. With the Southerly line of the Tennessee and Associates V Partnership
property, South 61 degrees 31' 47" East, 509.87 feet to an existing iron pin;
thence,
4. With the Westerly line of the Tennessee and Associates V Partnership property
and the Westerly line of Lots 71, 72 and 73 as shown on the plan entitled
"Ashland Estates" as recorded in Plat Book 4, Page 10, Register's Office for
Xxxxxxxx County, Tennessee, South 28 degrees 26' 00" West, 1079.82 feet to an
iron pin set in the Northeasterly right-of-way line of Ashland Drive (A 50 foot
wide right of way); thence,
5. With the Northeasterly right-of-way line of Ashland Drive, North 61 degrees
34' 00" West, 749.62 feet to an iron pin at the Southeast corner of Lot 4 as
shown on the aforementioned plan of "Sycamore Square Shopping Center"; the same
being the Town of Ashland City, Tennessee property as recorded in Deed Book 378,
Page 430, Register's Office for Xxxxxxxx County, Tennessee; thence,
6. Leaving the Northeasterly right-of-way line of Ashland Drive and with the
Southeasterly line of Xxx 0, Xxxxx 00 degree 27' 04" East, 20.00 feet to an iron
pin set; thence,
Continued...
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EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
7. With the Northeasterly line of Xxx 0, Xxxxx 00 degrees 34' 00" West, 20.00
feet to an iron pin set in the Southeasterly right-of-way line of State Route
49, (a 60 feet wide right-of-way); thence,
8. With the Southeasterly right-of-way line of Xxxxx Xxxxx 00, Xxxxx 00 degrees
27' 04" East, 82.78 feet to an existing iron pin at the Southwest corner of Lot
3 as shown on the plan entitled "Sycamore Square Shopping Center" as recorded in
Plat Book 3, Page 000, Xxxxxxxx'x Xxxxxx xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx the same
being the Xxxx X. Xxxxx, Xx. property as recorded in Deed Book 312, Page 381,
Register's Office for Xxxxxxxx County, Tennessee; thence,
9. With the Southwesterly line of Xxx 0, Xxxxx 00 degrees 32' 09" East, 160.08
feet to an existing P.K. nail, said nail being the Southeast corner of Lot 3;
thence,
10. With the Southeasterly line of Lot 3 and 2 of the aforementioned plan of
"Sycamore Square Shopping Center", Lot 2 being the Palmetto Federal Savings Bank
of South Carolina property as recorded in Deed Book 312, Page 628, Register's
Office for Xxxxxxxx County, Tennessee, North 28 degrees 26' 36" East, 505.05
feet to an existing P.K. nail, said nail being the Northeast corner of Lot 2;
thence,
11. With the Northeasterly line of Xxx 0, Xxxxx 00 degrees 32' 51" West, 147.99
feet to an existing iron pin in the Southeasterly right-of-way line of State
Route 49, said road being 72 feet wide at said pin as recorded in Plat Book 3,
Page 000, Xxxxxxxx'x Xxxxxx xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx; thence,
12. With said Southeasterly right-of-way line, North 28 degrees 23' 48" East,
58.00 feet to an existing iron pin; thence,
13. In a Westerly direction with an offset in said right-of-way, North
61(degree)33' 22" West, 12.04 feet to an existing iron pin; thence,
14. Continuing with said Southeasterly right-of-way line, (a 60 foot wide road
along this course) North 28(degrees) 26' 00" East, 355.00 feet to the point of
beginning.
TOGETHER with Non-Exclusive Easements as set forth in Declaration of
Restrictions and Easements of record in Book 269, Page 856 and Book 293, Page
24, as supplemented by Book 293, Page 33, Register's Office for Xxxxxxxx County,
Tennessee.
TOGETHER with Non-Exclusive Easements as set forth in Declaration of Slope and
Drainage Easements of record in Book 293, Page 18 and Book 293, Page 732,
Register's Office for Xxxxxxxx County, Tennessee.
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EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
Being the same property conveyed to Glimcher Properties Limited
Partnership by Deed from _____________________________________
_______________________________________________________________
of record in Book______________________________________________,
Page___________________________________________________________,
Register's Office for Xxxxxxxx County, Tennessee
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ANNEX I
ADDENDUM TO DEED OF TRUST
This Addendum to Deed of Trust is attached to and made a part
of that certain Deed of Trust, Security Agreement, Fixture Filing and Financing
Statement dated June 28, 1999, executed by Glimcher Properties Limited
Partnership, as Trustor, to Xxxxxx Xxxxx, as Trustee, for the benefit of Xxxxxxx
National Life Insurance Company, as Beneficiary.
1. The language "and his/her/its successors in trust forever"
is hereby inserted following the language "Trustor hereby irrevocably and
unconditionally grants, bargains, sells, conveys, mortgages, warrants, assigns
and pledges to Trustee" appearing in the second and third lines of Section 1.1
of the Deed of Trust.
2. A new Section 1.2(g) is hereby added to the Deed of Trust
as follows:
This conveyance also secures not only existing indebtedness or
advances, made contemporaneously with Trustor's execution
hereof, but also future advances, whether obligatory or
optional or both, and whether made under the Loan Agreement or
otherwise, to the same extent as if such future advances were
made contemporaneously with the execution of this conveyance
even though no advance is made at the time of the execution of
this conveyance and even though no indebtedness is outstanding
at the time any advance is made.
3. Trustee is and shall be entitled to reasonable
compensation, for all services rendered hereunder, or in connection with the
trust herein created, which compensation in event of a Trustee's sale, as
hereinafter provided, shall not be less than Fifty Dollars ($50.00), and in
addition Trustee shall be entitled to pay a reasonable sum for an examination of
the title at the date of sale to assure himself as to what person is entitled to
receive any surplus which may remain after discharging the liens hereby created.
Trustee's compensation, together with any and all necessary and reasonable
expenses, charges, attorney's fees, including but not limited to fees for legal
advice concerning his rights and duties in the Property, and other disbursements
incurred by Trustee in discharge of his duties as such, shall be a further
charge and lien upon the Property and enforced in the same manner as the
principal obligation due hereunder or under the Note.
4. In the event of an Event of Default, Beneficiary is hereby
authorized and empowered at its option, to declare, without notice, all sums
secured hereby immediately due and payable, whether or not such default be
remedied by Trustor or others and to enforce any of the rights which accrue to
Beneficiary hereunder, and Trustee is authorized and empowered to enter and take
possession of the Property and cause to be performed, at Trustor's expense, such
appraisals and/or environmental surveys as Beneficiary deems necessary, and
before or after such entry to advertise the sale of the Property for the time
and in the manner provided by the laws of
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Tennessee, and to sell the Property or any portion thereof at the option of
Trustee, either on the premises or at the County Courthouse door at which
judicial sales are usually made, for cash to the highest bidder free from all
equity of redemption, the Statutory right of redemption provided by any
applicable Tennessee Statute including that afforded by T.C.A. Section 66-8-101,
et seq., and any amendment or recodification of such statute, homestead, dower
and all other exemptions and marital rights, all of which are hereby expressly
waived and conveyed. Trustee will execute a conveyance to the purchaser
conveying such title as Trustee has and deliver possession to the purchaser,
which shall be given without obstruction, hindrance or delay, and Trustor, in
case of any sale under this Deed of Trust, or upon default in any interest or
principal payment, or breach of any covenant contained herein, will, upon
demand, surrender possession of the Property and will from that moment become
and be tenants at will of the purchaser or of Beneficiary, or of Trustee for the
use of Beneficiary, removable by process as upon a forcible and unlawful
detainer and will pay the said purchaser, or Beneficiary or Trustee for the use
of Beneficiary the reasonable rental value of the property from and after said
sale or after such default or breach of covenant.
5. The owner of the indebtedness secured hereby may become the
purchaser at any sale hereunder.
6. Said sale may be postponed or adjourned at any time and from time to
time without readvertising, and the sale may be dismissed and not made, all at
Beneficiary's option. Trustee, or any successor Trustee, is authorized to
appoint an agent or auctioneer to make any sale hereunder, the cost of which
shall be paid as a proper expense of Trustee, and any sale so made shall have
the same validity as if made by Trustee; and a cash deposit or other security
acceptable to Beneficiary may be required as a condition to the acceptance of
bids.
7. The giving of bond, making of oath or filing of inventory by the
Trustee herein, or its successors, is hereby expressly waived.
8. Beneficiary shall have the right, in its absolute discretion and
without assigning any cause or reason whatsoever, and without giving notice to
any of the parties named herein, the giving of notice being expressly waived by
Trustor, to remove the Trustee named herein, or any successor Trustee at any
time, and to appoint a successor trustee by written instrument executed by it,
and such successor trustee shall become vested with the same title to the
Property and the same rights and powers and subject to the same duties as the
Trustee named herein, and each appointment of a successor trustee by Beneficiary
shall be recorded in the Register's Office of each county in which the Property
is located.
-23-
24
To be attached to Deed of Trust Filed with Xxxxxxx County Register
(where tax being paid)
SEPARATE STATEMENT UNDER OATH
(SECURED PARTY)
STATE OF ILLINOIS )
COUNTY OF XXXX )
DEBTOR: GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership ("Debtor")
SECURED PARTY: XXXXXXX NATIONAL LIFE INSURANCE COMPANY, a Michigan
corporation ("Secured Party")
The undersigned, being first duly sworn, states that he is a duly authorized
officer of the Secured Party named above, and that:
1. THE MAXIMUM PRINCIPAL INDEBTEDNESS FOR
TENNESSEE RECORDING TAX PURPOSES IS $4,185,000.00.
2. Computation of recording tax:
$4,185,000.00 - $2,000,00 = $4,183,000.00
$4,183,000.00 x $1.15 per thousand = $4,810.45
3. Recording tax in the amount of $4,810.45
is being paid to the Register's Office of Davidson County, Tennessee in
connection with the Tennessee Deed of Trust attached hereto.
XXXXXXX NATIONAL LIFE INSURANCE COMPANY,
a Michigan corporation
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Authorized Signatory
Sworn to and subscribed before me
This 9th day of June, 1999.
/s/ ZUCHEL X. XXXXX
---------------------------
Unofficial Witness
/s/ Xxxxx X. Xxxxx
---------------------------
Notary Public
My Commission expires: 1/24/01
-------
-24-
25
SEPARATE STATEMENT UNDER OATH
(Debtor)
STATE OF OHIO )
COUNTY OF FRANKLIN )
DEBTOR: GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership ("Debtor")
SECURED PARTY: XXXXXXX NATIONAL LIFE INSURANCE COMPANY ("Secured
Party")
The undersigned, being first duly sworn, states that he is a
duly authorized officer of the Debtor named above, and that:
1. Debtor owns the property subject to the security interest
perfected by the accompanying UCC-1 financing statement, Deed of Trust or
Assignment of Leases and Rents.
2. Contemporaneously with the execution of this Affidavit,
Debtor intends to close a loan transaction (the "Loan") with Secured Party,
which Loan will be (a) in an aggregate principal amount not to exceed
$90,000,000.00 at any one time outstanding and (b) secured by collateral part
within and part without the State of Tennessee.
3. To the best of Debtors' knowledge, the value of the
collateral located in Tennessee is $4,500,000.00 and the value of the collateral
located everywhere is $96,700,000.00.
VALUE OF COLLATERAL IN TENNESSEE ($4,500,000.00) = 4.65%
------------------------------------------------
Value of collateral everywhere ($96,700,000.00)
Total principal indebtedness ($90,000,000.00 00) x 4.65% = $4,185,000.00
Portion of total indebtedness on which transfer tax is payable is $4,185,000.00.
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26
4. This Affidavit is made with the knowledge that the
Secretary of State of the State of Tennessee, the Xxxxxxx County Register and
the Secured Party will rely on this Affidavit.
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, its sole
general partner
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President/CFO/COO
Sworn to and subscribed before me
this 8th day of July, 1999.
/s/ Xxxxxxx Xxxxxx
----------------------------
Unofficial Witness
/s/ Xxxxxxx X. Xxxxxx
----------------------------
Notary Public
My Commission expires: 1-30-2000
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