Contract

EXHIBIT 10.108Return recorded instrument to:William R. WeirPorter Wright Morris & Arthur, LLP925 Euclid Avenue, Suite 1700Cleveland, Ohio 44115 MORTGAGE WITH POWER OF SALE, SECURITY AGREEMENT ———————————————– AND FINANCING STATEMENT ———————–A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW- —————————————————————————-MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A- ——————————————————————————–FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS MORTGAGE.- —————————————————————– THIS MORTGAGE WITH POWER OF SALE, SECURITY AGREEMENT AND FINANCINGSTATEMENT (this “Mortgage”) is made as of the 14th day of March, 2006, by TulsaPromenade, LLC, a Delaware limited liability company, (“Mortgagor”), in favor ofCharter One Bank, N.A., a national banking association with an address of 1215Superior Avenue, Cleveland, Ohio 44114 (“Mortgagee”). WHEREAS, Mortgagee has agreed to make a loan to Mortgagor in the principalamount of Fifty Million and No/100 Dollars ($50,000,000.00) (the “Loan”) andMortgagor has executed that certain promissory note of even date herewith in theamount of Fifty Million and No/100 Dollars ($50,000,000.00) (the “Note”) havinga final maturity on ___________, 2009, with interest thereon according to theterms of the Loan Agreement (defined below) and the Note; and WHEREAS, pursuant to that certain Loan Agreement of even date herewith (the”Loan Agreement”) executed in conjunction with the Note, and certain limitationsset forth in the Loan Agreement regarding the maximum amount available to bedisbursed under the Note, Mortgagee has made or will make an initialdisbursement in the amount of Thirty-Five Million and No/100 Dollars($35,000,000.00) (the “Initial Disbursement”); and WHEREAS, Mortgagor intends to enter into a Hedging Contract (as defined inthe Loan Agreement) with Mortgagee creating additional potential indebtedness ofMortgagor in the amount of approximately Two Million Seven Hundred Thousand andNo/100 Dollars ($2,700,000.00) (the “Additional Exposure”); and WHEREAS, Mortgagor is justly indebted to Mortgagee in the sum ofThirty-Seven Million Seven Hundred Thousand and No/100 Dollars ($37,700,000.00)consisting of the Initial Disbursement and the Additional Exposure; and WHEREAS, pursuant to the terms of the Loan Agreement, Mortgagor may requestand Mortgagee may make certain additional obligatory advances of the Loanproceeds (“Additional Advances”); and WHEREAS, prior to any Additional Advances, Mortgagor and Mortgagee willamend this Mortgage to increase the amount of indebtedness secured hereby andpay any mortgage tax required in conjunction therewith. NOW, THEREFORE, to secure to Mortgagee the payment of the aforesaidindebtedness, with interest thereon, the payment of all present and futureindebtedness from Mortgagor to Mortgagee, and the performance of the covenantsand agreements herein contained and contained in the Loan Agreement, or anyother documents related to the Loan, including without limitation, allobligations and liabilities of Mortgagor under any Hedging Contract, interestrate swap agreements, interest rate cap agreements and interest rate collaragreements, and all other agreements or arrangements with the Mortgagee designedto protect Mortgagor against fluctuations in interest rates or currency exchangerates, Mortgagor does hereby grant, bargain, sell, convey, mortgage and grant asecurity interest unto Mortgagee and to its successors and assigns the realproperty located in Tulsa County, Oklahoma, described on attached Exhibit “A”,together with all and singular the tenements, hereditaments and appurtenancesthereof; all buildings and improvements now or hereafter constructed on suchreal property; and all fixtures, equipment, machinery, apparatus and articles ofpersonal property of every kind and character now owned or hereafter acquired byMortgagor and now or hereafter located in or on the aforesaid buildings andimprovements or used or useful for the operation, construction, ownership,management, maintenance, financing or sale of the foregoing real property,buildings or improvements, and all accounts, instruments, documents, chattelpaper, contract rights, inventory, general intangibles and goods, all of whichproperty is herein called the “Collateral”, which shall include, but not belimited to: (a) all signs, draperies, screens, awnings, storm windows and doors,window shades, cabinets, partitions, floor coverings, escalators, elevators andmotors, ranges, refrigerators, boilers, tanks, furnaces, radiators and allheating, lighting, plumbing, gas, electric, ventilating, refrigerating, airconditioning, laundry, cleaning, fire prevention, fire extinguishing,communications, kitchen and incinerating equipment of whatsoever kind andcharacter; (b) all of the right, title and interest of Mortgagor in and to anyitems of personal property which may be subject to a title retention or securityagreement superior in lien to the lien of this Mortgage; and (c) proceeds andproducts thereof; provided the Collateral shall not include fixtures andfurnishings owned by bona fide tenants of the improvements. The above describedreal estate, appurtenances, improvements and Collateral are hereinaftercollectively called the “Mortgaged Premises” and are hereby declared to besubject to the lien of this Mortgage as security for the payment of theindebtedness herein described. All of the terms used in this paragraph which aredefined in the Oklahoma Uniform Commercial Code (the “UCC”) shall have themeanings set forth in the UCC. TO HAVE AND TO HOLD the Mortgaged Premises with all the rights,improvements and appurtenances thereunto belonging, or in anywise appertainingunto Mortgagee, its successors and assigns, forever. Mortgagor covenants that,except for rights-of-way and easements of record and other exceptions as may beapproved by Mortgagee, Mortgagor is seized of an indefeasible estate in fee 2simple in the Mortgaged Premises, that Mortgagor has good title to the MortgagedPremises, a good right to sell, convey and mortgage the same, that the MortgagedPremises are free and clear of all general and special taxes, liens, charges andencumbrances of every kind and character, and that Mortgagor hereby warrants andwill forever defend the title thereto against the claims of all personswhomsoever. 1. Payment of Debt. If Mortgagor shall pay the indebtedness hereindescribed and Mortgagor shall in all things do and perform all other acts andagreements herein contained to be done, then, in that event only, this Mortgageshall be and become null and void. 2. Maintenance; Waste. With respect to the Mortgaged Premises, Mortgagorcovenants and agrees to keep the same in good condition and repair; to pay allgeneral and special taxes and assessments and other charges that may be leviedor assessed upon or against the same as they become due and payable and tofurnish to Mortgagee receipts showing payment of any such taxes and assessments,if demanded; to pay all debts for repair or improvements now existing orhereafter arising which may become liens upon or charges against the MortgagedPremises; to comply with or cause to be complied with all requirements of anygovernmental authority relating to the Mortgaged Premises; to promptly repair,restore, replace or rebuild any part of the Mortgaged Premises which may bedamaged or destroyed by any casualty whatsoever or which may be affected by anycondemnation proceeding or exercise of eminent domain; and to promptly notifyMortgagee of any damage to the Mortgaged Premises in excess of One MillionDollars ($1,000,000.00). Mortgagor further covenants and agrees that Mortgagorwill not commit or suffer to be committed any waste of the Mortgaged Premises;initiate, join in or consent to any change in any private restrictive covenant,zoning ordinance or other public or private restrictions limiting or definingthe uses which may be made of the Mortgaged Premises or any part thereof; permitany lien or encumbrance of any kind or character to accrue or remain on theMortgaged Premises or any part thereof which might take precedence over the lienof this Mortgage. 3. Taxes and Insurance. Mortgagor will pay or cause to be paid all realestate taxes and assessments on the Mortgaged Premises and all insurancepremiums for hazard and liability insurance covering the Mortgaged Premises asthe same shall become due as further set forth in the Loan Agreement.Furthermore, Mortgagor shall submit evidence of payment of the same upon writtenrequest from Mortgagee. In the event of a default in the payment of such taxesor insurance then Mortgagee shall be permitted to pay the taxes and/or insuranceto protect the Mortgaged Premises and charge the same to the Mortgagor asadditional indebtedness secured by the Mortgage. Notwithstanding the foregoing,Mortgagee shall reserve the right to require Mortgagor to pay to Mortgagee inaddition to the monthly installments of principal and interest a sum (herein”Funds”) equal to one-twelfth of the yearly taxes and assessments which mayattain priority over this Mortgage plus one-twelfth of yearly premiuminstallments for hazard insurance, all as reasonably estimated initially andfrom time to time by Mortgagee on the basis of assessments and bills andreasonable estimates thereof. The Funds shall be held by Mortgagee, who shallapply the Funds to pay said taxes, assessments and insurance premiums. Mortgageeshall make no charge for so holding and applying the Funds or verifying andcompiling said assessments and bills. Mortgagee shall not be required to payMortgagor any interest on the Funds. Mortgagee shall give to Mortgagor, without 3charge, an annual accounting of the Funds showing credits and debits to theFunds and the purpose for which each debit to the Funds was made. The Funds arepledged as additional security for the indebtedness secured by this Mortgage.Funds paid hereunder may be commingled with other funds of the Mortgagee. If the amount of the Funds held by Mortgagee shall not be sufficient to paytaxes, assessments and insurance premiums as they fall due, Mortgagor shall payto Mortgagee the amount of any such deficiency within thirty days after noticefrom Mortgagee to Mortgagor requesting payment thereof. Upon payment in full of all sums secured by this Mortgage, Mortgagee shallpromptly refund to Mortgagor any Funds held by Mortgagee. 4. Alterations. Except as permitted under the Loan Agreement, no completedbuilding or other property now or hereafter subject to the lien of this Mortgageshall be removed, demolished or materially altered, without the prior writtenconsent of Mortgagee, except that Mortgagor shall have the right, without suchconsent, to remove and dispose of, free from the lien of this Mortgage, suchCollateral as from time to time may become worn or obsolete, provided thateither: (a) simultaneously with or prior to such removal, any such Collateralshall be replaced with other Collateral of a value at least equal to that of thereplaced Collateral and free from any title retention device, security agreementor other encumbrance, and by such removal or replacement, Mortgagor shall bedeemed to have subjected such Collateral to the lien of this Mortgage; or (b)any net cash proceeds received from such disposition shall be paid over promptlyto Mortgagee to be applied to the last installments due on the indebtednesshereby secured, without any charge for prepayment. 5. Default; Remedies. Upon the failure of Mortgagor (after notice toMortgagor and expiration of any applicable cure period pursuant to the LoanAgreement) to pay any of the taxes, assessments, debts, liens or other chargesas the same become due and payable, or to insure the Mortgaged Premises asrequired under the Loan Agreement, or to perform any of Mortgagor’s covenantsand agreements herein, Mortgagee is hereby authorized, at its option, to insurethe Mortgaged Premises, or any part thereof, and pay the costs of such insuranceand to pay such taxes, assessments, debts, liens or other charges hereindescribed, or any part thereof, and to remedy Mortgagor’s failure to performhereunder and pay the costs associated therewith, and Mortgagor hereby agrees torefund on demand all sum or sums so paid, with interest thereon at the defaultrate under the Note; and any such sum or sums so paid together with interestthereon shall become a part of the indebtedness hereby secured; provided,however, that the retention of a lien hereunder for any sum so paid shall not bea waiver of subrogation or substitution which Mortgagee might otherwise have. Inthe event of the failure of Mortgagor to pay any of the taxes, assessments,debts, liens or other charges herein described as the same become due andpayable (provided, however, Mortgagor shall have the right to contest any suchcharges in good faith by appropriate proceedings and thereby not be in default)or to keep the Mortgaged Premises insured in the manner and time hereinprovided, or the failure to deliver renewal policies in the manner and timeherein provided, or if any installment of principal or interest is not paid ator within the time required by the terms of the Note, or the failure to do anyof the things herein agreed to be done, or on the breach of any of the terms ofthe Note, the Loan Agreement, the Loan documents (as defined in the Loan 4Agreement), this Mortgage or any other instrument securing or evidencing theindebtedness hereby secured, beyond any applicable grace period containedtherein, including, without limitation, all agreements between Mortgagee and theMortgagor which give rise to Hedging Obligations (as defined in the LoanAgreement), then, in any of such events, whether Mortgagee has paid any of thetaxes, liens or other charges, or procured the insurance, or remediedMortgagor’s failure to perform, all as above mentioned, or not, Mortgagor shallbe in default hereunder. In the event of default, after applicable cure period,Mortgagee may either (1) declare the principal of the Note, all interest accruedthereon and all other sums hereby secured, without deduction and without notice,to be immediately due and payable, and Mortgagee will be entitled to foreclosethis Mortgage by judicial proceeding, or (2) after any notice to Mortgagor andMortgagor required by the Oklahoma Power of Sale Mortgage Foreclosure Act,declare the principal of the Note, all interest accrued thereon and all othersums hereby secured, without deduction, to be immediately due and payable, andMortgagee will be entitled to foreclose this Mortgage by power of sale pursuantto the provisions of the Oklahoma Power of Sale Mortgage Foreclosure Act.Mortgagor hereby confers upon Mortgagee and grants to Mortgagee the power tosell the Mortgaged Premises. On default, Mortgagee will be entitled to exerciseall further and additional remedies as might now or hereafter be accorded toMortgagee at law or in equity. Whether Mortgagee elects to foreclose thisMortgage by judicial proceeding or by power of sale, Mortgagee shall,immediately on default, be entitled to the possession of the Mortgaged Premisesand the rents and profits thereof, and shall be entitled to have a receiverappointed to take possession of the Mortgaged Premises without notice, whichnotice Mortgagor hereby waives, notwithstanding anything contained in thisMortgage or any law heretofore or hereafter enacted. 6. Taxes; Expenses. Mortgagor agrees to pay any and all taxes which may belevied or assessed directly or indirectly upon the Note, this Mortgage and theindebtedness hereby secured, and further agrees to pay all expenses incurred inconnection with the creation of the indebtedness hereby secured, including,without limitation, all broker’s fees, real estate commissions, attorneys’ fees,title guaranty fees, survey expenses, appraiser’s fees, abstracting expenses,recording costs and lien indemnification fees, without regard to any law whichmay be hereafter enacted imposing payment of the whole or any part thereof uponMortgagee; and, upon violation of this agreement, or upon the rendering by anycourt of competent jurisdiction of a decision that such an agreement by amortgagor is legally inoperative, or if the rate of said taxes and expensesadded to the rate of interest provided for in the Note shall exceed the thenlegal rate of interest, then, and in any such event, the indebtedness herebysecured, without deduction, shall, at the option of Mortgagee become immediatelydue and payable, anything contained in this Mortgage or in the Notenotwithstanding. The additional amounts which may become due and payablehereunder shall be regarded as part of the indebtedness secured by thisMortgage. 7. Compliance with Laws. Mortgagor shall promptly and faithfully complywith, conform to and obey all laws, regulations and other governmentalrequirements of any agency or group having jurisdiction or similar bodyexercising similar functions, that may be applicable to Mortgagor or to theMortgaged Premises or to the use or manner of use, occupancy, possession,operation, maintenance, alteration, repair or reconstruction of the MortgagedPremises, whether or not such law, regulation or other governmental requirementor rule or regulation shall necessitate structural changes or improvements orinterfere with the use or enjoyment of the Mortgaged Premises. 5 8. Expenses of Collection. It is agreed that if, and as often as, thisMortgage or the Note is placed in the hands of an attorney for collection, or toprotect the priority or validity of this Mortgage, or to prosecute or defend anysuit affecting the Mortgaged Premises, or to enforce or defend any ofMortgagee’s rights hereunder, Mortgagor shall pay to Mortgagee its reasonableattorneys fees, together with all court costs, expenses for title examination,title insurance or other disbursements relating to the Mortgaged Premises, whichsums shall be secured hereby. 9. Appraisement. Appraisement of the Mortgaged Premises is hereby expresslywaived, or not, at the option of Mortgagee, such option to be exercised at thetime judgment is rendered in any foreclosure hereof, or at any time priorthereto. 10. Sale in Parcels. In case of any sale under this Mortgage by virtue ofjudicial proceedings or otherwise, the Mortgaged Premises may be sold in oneparcel and as an entirety or in such parcels, manner or order as Mortgagee inits sole discretion may elect, and Mortgagor waives any and all rights whichMortgagor may have to insist upon the sale of the Mortgaged Premises in oneparcel or in separate parcels. 11. Condemnation Awards. Application of proceeds received from condemnationshall be applied as set forth in Article VIII of the Loan Agreement. 12. Proceeds of Insurance; Restoration Following Casualty, Application ofProceeds. Application of proceeds received from insurance shall be applied asset forth in Article VIII of the Loan Agreement. 13. Certificate. Mortgagor, upon request made either personally or by mail,shall certify to Mortgagee or to any proposed assignee of this Mortgage, by awriting duly acknowledged, the amount of principal and interest then owing onthis Mortgage and whether any offsets or defenses exist against the indebtednesshereby secured, within ten (10) days after the mailing of such request. 14. Notice. Except for any notice required under applicable law to be givenin another manner, any notice, demand, request or other communication which anyparty hereto may be required or may desire to give hereunder shall be in writingand shall be deemed to have been properly given (i) if hand delivered or if sentby telecopy, effective upon receipt or (ii) if delivered by overnight courierservice, effective on the day following delivery to such courier service, or(iii) if mailed by United States registered or certified mail, postage prepaid,return receipt requested, effective two (2) days after deposit in the UnitedStates mails; addressed in each case as follows: If to Mortgagor: Tulsa Promenade, LLC c/o Glimcher Properties Limited Partnership 190 East Gay Street Columbus, Ohio 43215 Attn: General Counsel 6 If to Mortgagee: Charter One Bank, N.A. 1215 Superior Avenue Cleveland, Ohio 44114or at such other address or to such other addressee as the party to be servedwith notice may have furnished in writing to the party seeking or desiring toserve notice as a place for the service of notice. 15. Future Advancements. This Mortgage shall secure the payment of theNote, including any and all advancements made by Mortgagee thereunder, and anyand all additional indebtedness of Mortgagor to Mortgagee incurred in connectionwith the Mortgaged Premises or any improvements now or hereafter locatedthereon, whether or not incurred or becoming payable under the provisions hereofand whether as future advancements or otherwise, together with any renewals,modifications, rearrangements, consolidations or extensions of the Note or otherindebtedness. 16. Inspection; Management. Mortgagee and any persons authorized byMortgagee shall have the right after reasonable notice to enter and inspect theMortgaged Premises at all reasonable times. If, at any time after default byMortgagor in the performance of any of the terms, covenants or provisions ofthis Mortgage or the Note, the management or maintenance of the MortgagedPremises shall be determined by Mortgagee, Mortgagor shall employ, for theduration of such default, as managing agent of the Mortgaged Premises, anyperson from time to time designated or approved by Mortgagee. 17. Payment by Others. Any payment made in accordance with the terms ofthis Mortgage by any person at any time liable for the payment of the whole orany part of the indebtedness now or hereafter secured by this Mortgage, or byany subsequent owner of the Mortgaged Premises, or by any other person whoseinterest in the Mortgaged Premises might be prejudiced in the event of a failureto make such payment, or by any stockholder, officer or director of acorporation or any partner of a partnership or trustee or beneficial owner of atrust which at any time may be liable for such payment or may own or have suchan interest in the Mortgaged Premises, shall be deemed, as between Mortgagee andall persons who at any time may be liable as aforesaid or may own the MortgagedPremises, to have been made on behalf of Mortgagor. 18. No Waiver. Any failure by Mortgagee to insist upon the strictperformance by Mortgagor of any of the terms and provisions hereof shall not bedeemed to be a waiver of any of the terms and provisions hereof, and Mortgagee,notwithstanding any such failure, shall have the right thereafter to insist uponthe strict performance by Mortgagor of any and all of the terms and provisionsof this Mortgage to be performed by Mortgagor. Neither Mortgagor nor any otherperson now or hereafter obligated for the payment of the whole or any part ofthe indebtedness now or hereafter secured by this Mortgage shall be relieved ofsuch obligation by reason of the failure of Mortgagee to comply with any request 7of Mortgagor or of any other person so obligated to take action to foreclosethis Mortgage or otherwise enforce any of the provisions of this Mortgage or ofany obligations secured by this Mortgage, or by reason of the release,regardless of consideration, of the whole or any part of the security held forthe indebtedness secured by this Mortgage, or by reason of any agreement orstipulation between any subsequent owner or owners of the Mortgaged Premises andMortgagee extending, from time to time, the time of payment or modifying theterms of the Note or this Mortgage without first having obtained the consent ofMortgagor or such other person, and in the latter event, Mortgagor and all suchother persons shall continue liable to make such payments according to the termsof any such agreement of extension or modification unless expressly released anddischarged in writing by Mortgagee. Regardless of consideration, and without thenecessity for any notice to or consent by the holder of any subordinate lien onthe Mortgaged Premises, Mortgagee may release the obligation of anyone at anytime liable for any of the indebtedness secured by this Mortgage or any part ofthe security held for such indebtedness and may from time to time extend thetime of payment or otherwise modify the terms of the Note and/or this Mortgagewithout, as to the security for the remainder thereof, in any way impairing oraffecting the lien of this Mortgage or the priority of such lien, as securityfor the payment of the indebtedness as it may be so extended or modified, overany subordinate lien. The holder of any subordinate lien shall have no right toterminate any lease affecting the Mortgaged Premises whether or not such leaseis subordinate to this Mortgage. Mortgagee may resort for the payment ofindebtedness hereby secured to any other security therefor held by Mortgagee insuch order and manner as Mortgagee may elect. 19. Cumulative Remedies. The rights of Mortgagee arising under the clausesand covenants contained in this Mortgage shall be separate, distinct andcumulative and none of these shall be in exclusion of the other. No act ofMortgagee shall be construed as an election to proceed under any one provisionherein to the exclusion of any other provision, anything herein or otherwise tothe contrary notwithstanding. 20. Financial Reports. With respect to the Mortgaged Premises andMortgagor’s operation thereof, Mortgagor agrees to keep proper books of recordand account in accordance with the requirements set forth in the Loan Agreement.Mortgagee shall have the right to examine the books of record and account ofMortgagor and to discuss the affairs, finances and accounts of Mortgagor and tobe informed as to the same by Mortgagor, all at such reasonable times andintervals as Mortgagee may request. Mortgagor agrees to furnish to Mortgageesuch financial statements and other financial information regarding theMortgaged Premises as required under the Loan Agreement. On request, Mortgagorwill furnish convenient facilities for the audit and verification of suchstatements by Mortgagee. 21. Security Interest. This Mortgage shall also be considered to be andshall be construed as a security agreement under the UCC with respect to anyproperty described herein which is not a part of the real property describedherein. 21.1 Assembly of Collateral. Upon default hereunder and acceleration of the indebtedness pursuant to the provisions hereof, Mortgagee may at its discretion require Mortgagor to assemble the Collateral and make it available to Mortgagee at a place reasonably convenient to both parties to be designated by Mortgagee. 8 21.2. Notice of Sale. Mortgagee shall give Mortgagor written notice of the time and place of any public sale of any of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made by sending notice to Mortgagor at least five (5) days before the time of the sale or other disposition, which provisions for notice Mortgagor agrees are reasonable. 21.3 Additional Documents. Mortgagee is authorized to file any financing statement, renewal affidavit, certificate, continuation statement, inventory or other documents that it deems necessary in order to protect, preserve, continue, extend or maintain the security interest under and the priority of this Mortgage. Mortgagor will, upon demand, pay any expenses incurred by Mortgagee in the preparation and filing of any such documents in the event such documents are necessary as a result of any request or other action of Mortgagor. 22. Intentionally deleted. 23. Bankruptcy. The entire indebtedness secured by this Mortgage shallbecome and immediately be due at the option of Mortgagee if by order of a courtof competent jurisdiction a receiver or liquidator or trustee of Mortgagor or ofall or any part of the Mortgaged Premises, shall be appointed and shall not havebeen discharged within sixty (60) days; or, if by decree of such court,Mortgagor shall be adjudicated bankrupt or insolvent or the Mortgaged Premisesshall have been sequestered and such decree shall have continued undischargedand unstayed for sixty (60) days after the entry thereof; or if Mortgagor shallfile a petition in voluntary bankruptcy or seeking relief under any provision ofany bankruptcy or insolvency law or shall consent to the filing of anybankruptcy petition against Mortgagor under any such law; or if Mortgagor shallfile a petition or answer seeking reorganization or an arrangement withcreditors; or if (without limitation of the generality of the foregoing)Mortgagor shall make an assignment for the benefit of creditors, or shall admitin writing an inability to pay debts generally as they become due, or shallconsent to the appointment of a receiver, or trustee or liquidator of Mortgagor,or of all or any part of the Mortgaged Premises. 24. Mineral Interests. Mortgagor agrees that the making of any oil, gas ormineral lease or the sale or conveyance of any mineral interest or right toexplore for minerals under, through or upon the Mortgaged Premises would impairthe value of the Mortgaged Premises as security for payment of the indebtednessand that Mortgagor shall have no right, power or authority to lease theMortgaged Premises, or any part thereof, for oil, gas or other mineral purposes,or to grant, assign or convey any mineral interest of any nature, or the rightto explore for oil, gas and other minerals, without first obtaining fromMortgagee express written permission, which permission shall not be valid untilrecorded. Mortgagor further agrees that if Mortgagor shall make any such leaseor attempt to grant any such mineral rights without such prior writtenpermission, then Mortgagee shall have the option, without notice, to declare thesame to be a default hereunder and to declare the indebtedness hereby securedimmediately due and payable. Whether or not Mortgagee shall consent to such 9lease or grant of mineral rights, Mortgagee shall receive the entireconsideration to be paid for such lease or grant of mineral rights, with thesame to be applied upon the indebtedness hereby secured; provided, however, thatthe acceptance of such consideration shall in no way impair the lien of thisMortgage on the entire Mortgaged Premises and all rights therein, including allmineral rights. 25. Occupancy Leases. With respect to all subsisting and future leases (the”Occupancy Leases”) affecting the Mortgaged Premises, Mortgagor agrees (a) tofaithfully perform Mortgagor’s covenants as lessor under the Occupancy Leasesand neither do, nor neglect to do, nor permit to be done, anything (other thanpursuing the enforcement of the terms of such leases in the exercise of thelessor’s remedies hereunder following default on the party of any lessee) whichmight cause the modification or termination of any of the Occupancy Leases, orof the obligations of any lessee or any person claiming through such lessee, orwhich might diminish or impair the value of any of the Occupancy Leases or therents provided for therein, or the interest of Mortgagor or Mortgagee therein orthereunder; (b) not to anticipate for more than one (1) month any rents that maybecome collectible under any of the Occupancy Leases; (c) not to execute amortgage or create or permit a lien affecting the Mortgaged Premises which mightbe or become superior to any of the Occupancy Leases; (d) to execute and deliverto Mortgagee, within ten (10) days after request therefor, such collateralassignments, estoppel certificates, subordination agreements, attornmentagreements and other instruments as might be required by Mortgagee with respectto any Occupancy Leases now or hereafter affecting the Mortgaged Premises; and(e) all representations made by Mortgagor to Mortgagee in connection with theOccupancy Leases are and will be true and correct. 26. Prohibited Acts. Mortgagor will not sell, convey, contract to sell,mortgage or otherwise transfer or encumber all or any part of the MortgagedPremises; or sell, convey, pledge or encumber or permit the sale, conveyance,pledge or encumbrance of any of the interests in the entity owning the MortgagedPremises, or change or dissolve such owning entity, except as expresslypermitted pursuant to Section 9.2 of the Loan Agreement. The occurrence of anyof the aforesaid events without Mortgagee’s prior written approval, atMortgagee’s option, shall constitute an event of default hereunder, andMortgagee may declare the indebtedness hereby secured immediately due andpayable and exercise any or all of Mortgagee’s rights herein provided. Thisprovision shall apply to each and every sale, conveyance, contract to sell ortransfer, regardless of whether or not Mortgagee has consented to or waived itsrights hereunder, whether by action or inaction, in connection with any previoussale, conveyance, contract to sell or transfer, whether one or more. 27. Indemnity. Mortgagor agrees to indemnify and hold Mortgagee harmlessfrom and against and to reimburse Mortgagee with respect to, any and all claims,demands, causes of action, loss, damage, liabilities, costs and expenses(including attorneys’ fees and court costs) of any and every kind or character,known or unknown, fixed or contingent, asserted against or incurred by Mortgageeat any time and from time to time by reason of or arising out of: (a) the breachof any representation or warranty of Mortgagor set forth in this Mortgage; (b)the failure of Mortgagor to perform any obligation herein required to beperformed by Mortgagor; and (c) the ownership, construction, occupancy,operation, use and maintenance of the Mortgaged Premises prior to the date (the”Release Date”) on which (i) the indebtedness secured by this Mortgage has beenpaid and performed in full and this Mortgage has been released, and (ii) if 10Mortgagee becomes the owner of the Mortgaged Premises by way of foreclosure ofthe lien hereof, deed in lieu of such foreclosure or otherwise, the MortgagedPremises have been sold by Mortgagee; provided, however, this indemnity shallnot apply with respect to matters caused by or arising out of the actions ofMortgagee. All of the foregoing covenants, representations, warranties andindemnities made by Mortgagor shall be continuing and shall be true and correctfor the period from the date hereof through and as of the Release Date with thesame force and effect as if made each day throughout such period, and all ofsuch covenants, representations, warranties, and indemnities shall survive theRelease Date. 28. Fixture Filing. Certain of the Collateral is or will become fixtures onthe real estate described herein and this Mortgage, as being recorded in thereal estate records of in which the Mortgaged Premises are located, shall beeffective as a financing statement on such Mortgaged Premises which is or maybecome fixtures. 29. Cross-Default. A default by Mortgagor under this Mortgage, the LoanAgreement, the Note or any of the other Loan Documents executed in connectionwith the Loan Agreement, shall constitute a default under all such agreements,instruments and obligations. 30. Cross-Collateralization. This Mortgage shall specifically secure,without limitation, the indebtedness of Mortgagor to Mortgagee pursuant to theNote and Loan Agreement, together with all extensions, renewals, amendments,future advances and increases of the Note and Loan Agreement as well as allother indebtedness of the Mortgagor to Mortgagee. 31. No Homestead. Mortgagor hereby represents, warrants, covenants andagrees that the Mortgaged Premises do not constitute, and will not become duringthe term of this Mortgage, homestead property of Mortgagor as such is definedunder applicable law. 32. Subrogation. To the extent funds are advanced under the Note herebysecured for the purpose of paying the indebtedness secured by any mortgage lienhaving priority over the lien of this Mortgage, Mortgagee shall be subrogated toany and all rights, superior titles, liens and equities owned or claimed by theholder of such prior mortgage. Except with respect to the priority of anymortgage to which Mortgagee is subrogated pursuant to the provisions hereof, theterms and provisions of this Mortgage shall govern the rights and remedies ofMortgagee and shall supersede the rights and remedies provided under anymortgage to which Mortgagee is subrogated. 33. Governmental Regulation of Mortgagee. Mortgagee is subject to variousgovernmental authorities and the laws, rules and regulations enacted, adoptedand promulgated by them. To the extent that Mortgagee’s authority to perform itsobligations (if any) under this Mortgage, now or hereafter, may be limited orregulated by such governmental authorities, Mortgagee is hereby excused fromsuch performance. 34. Mortgagee’s Failure to Perform. If Mortgagee fails to perform itsobligations (if any) under this Mortgage (except to the extent excused therefromas provided in paragraph 33 above), Mortgagor shall notify Mortgagee in writing(the “Notice”) within thirty (30) days after Mortgagor’s obtaining knowledge of 11such failure. Each such Notice shall describe in detail the act or eventconstituting the non-performance by Mortgagee. Mortgagee shall have thirty (30)days after its receipt of the Notice to cure any such failure to perform, unlesssuch cure cannot be accomplished using reasonable efforts within said thirty(30) day period, in which case Mortgagee shall have such additional time as maybe necessary, using reasonable efforts, to cure such non-performance (the”Mortgagee Cure Period”). 35. Mortgagor’s Rights and Remedies. The giving of the Notice and theexpiration of the Mortgagee Cure Period shall be conditions precedent to anyright of the Mortgagor to bring an action against Mortgagee. Mortgagor herebyexpressly agrees that its sole remedy against Mortgagee in any such action shallbe that of specific performance. 36. Governing Law. The parties hereto agree that this Mortgage shall beconstrued according to the laws of the State of Oklahoma. 37. Construction. Wherever used in this Mortgage, unless the contextclearly indicates a contrary intent or unless otherwise specifically providedherein, the word “Mortgagor” shall mean “Mortgagor and/or any subsequent owneror owners of the Mortgaged Premises”, the word “Mortgagee” shall mean “Mortgageeor any subsequent holder or holders of this Mortgage”, the word “Note” shallmean “the note secured by this Mortgage” and the word “person” shall mean “anindividual, corporation, partnership or unincorporated association”. Theparagraph headings contained herein are included as a matter of convenience andare not intended to define, limit or modify the terms of this Mortgage. ThisMortgage shall be binding on Mortgagor and all heirs, personal representatives,successors and assigns of Mortgagor and inure to the benefit of Mortgagee andall heirs, personal representatives, successors and assigns of Mortgagee. 38. Amendment. This Mortgage cannot be changed except by an agreement inwriting signed by the party against whom enforcement of the change is sought. 39. Special Provision – Revolving Note. Pursuant to the terms of Section7.28.1 of the Loan Agreement, Mortgagor is entitled to borrow, pay, re-borrowand re-pay sums advanced under the Note. Therefore, the outstanding balance ofthe Note is subject to fluctuations up or down due to such advances andre-advances of loan proceeds and/or future repayments of such loan proceeds fromtime to time over the term of the Note, all of which amounts are contemplated byMortgagor and Mortgagee at the time this Mortgage is executed. In addition, theoutstanding principal balance of the Note may, from time to time, be reduced toa zero balance without such repayment operating to extinguish and release thelien and security interest created by this Mortgage. This Mortgage shall remainin full force and effect as to any subsequent future advances made after anyzero balance it attained without loss of priority until the Note and othersecured indebtedness is paid in full and fully performed and satisfied and allcommitment of Mortgagee to make advances under the Note shall have beenterminated in whole. Mortgagor waives the operation of any applicable statute,law or regulation having a contrary effect. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK – SIGNATURE PAGE TO FOLLOW] 12 IN WITNESS WHEREOF, Mortgagor has duly executed this instrument as of thedate first above written. TULSA PROMENADE, LLC, a Delaware limited liability company By: GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, its sole member By: GLIMCHER PROPERTIES CORPORATION, a Delaware corporation, its general partner By:__________________________________ George A. Schmidt Executive Vice PresidentSTATE OF OHIO ) )COUNTY OF FRANKLIN ) The foregoing instrument was acknowledged before me this _____ day ofMarch, 2006, by George A. Schmidt, as Executive Vice President of GlimcherProperties Corporation, as the sole general partner of Glimcher PropertiesLimited Partnership, as the sole member of Tulsa Promenade, LLC, a Delawarelimited liability company, on behalf of the limited liability company. _______________________________ Notary Public My Commission Expires:_____________ (Notarial Seal) 13 Exhibit “A” ———– Legal Description