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Exhibit - 10.111
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
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DEED OF TRUST, SECURITY AGREEMENT,
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FIXTURE FILING AND FINANCING STATEMENT
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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"; index as "Grantor"), having an
address at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 and LAWYERS TITLE REALTY
SERVICES, INC., having an address at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000,
as trustee ("TRUSTEE"; index as "Grantee"), in favor of XXXXXXX NATIONAL LIFE
INSURANCE COMPANY, a Michigan corporation (the "BENEFICIARY"; index as
"Grantee"), 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 Tazewell,
Commonwealth of Virginia 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 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, appropriate 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;
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(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
security deposits and 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 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 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
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the Trustor which are maintained on a consolidated basis for all of Trustor'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 Xxxxxxxxx; 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 July 1, 2009; 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
(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
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(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 LEASES AND 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 8.9-313 and 8.9-402 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
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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 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.
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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.
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.
(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
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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.
(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 nonjudicial or judicial 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.
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(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.
(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.
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(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.
(j) Single or Multiple Foreclosure Sales. If the Property consists
of more than one lot, parcel or item of property, Beneficiary may:
(i) designate the order in which the lots, parcels and/or
items shall be sold or disposed of or offered for sale or
disposition; and
(ii) 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
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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. Release of this Deed of Trust shall, ipso facto, also release
the Assignment of Leases and Rents referred to in Section 2 above.
7. CONCERNING THE TRUSTEE.
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 recordation or sufficiency of
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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
Xxxxxxx in the performance of Xxxxxxx'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
Xxxxxxx'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 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
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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 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
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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.
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
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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 Beneficiary, 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 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 all 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.
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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 has been
provided in the Addendum shall 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 shall prevail.
[BALANCE OF PAGE LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, Xxxxxxx 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
---------------------------------
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ACKNOWLEDGEMENT
STATE OF ILLINOIS;
COUNTY OF COOK, to-wit:
On this ______ day of June, 1999, before me, a Notary Public in and for
said County and State, appeared Xxxxxxx X. Xxxxxxx, Senior Executive Vice
President and CFO/COO of Glimcher Properties Corporation, a Delaware
corporation, the sole General Partner of GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, who acknowledged that he, being duly authorized by the Board of
Directors of said corporation, did execute the foregoing instrument for and on
behalf of said corporation and limited partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
[AFFIX NOTARIAL SEAL]
/s/ Xxxxx X. Xxxx
--------------------------------
Notary Public
My Commission Expires:
July 2, 2000
----------------------
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COLLEGE PLAZA, BLUEFIELD, VIRGINIA
EXHIBIT A
---------
LEGAL DESCRIPTION
PARCEL I
Located in the County of Tazewell, Commonwealth of Virginia:
Commencing at a PK nail located in the centerline intersection of State Route
102 and Old State Route 102; thence South 57 degree 56'51" West for 270.14 feet
to a point on the Western right-of-way of Commerce Drive; thence along said
Western right-of-way South 18 degree 21'27" East for 66.12 feet to a point;
thence South 20 degree 35'17 East for 102.38 feet to a point; thence South 18
degree 21'27" East for 1181.25 feet to a PK nail on the Northern right-of-way of
State Route 460 By-pass being the true point of beginning; thence along said
right-of-way South 58 degree 54'16" West for 606.75 feet to an iron pin; thence
South 75 degree 20'16" West for 440.82 feet to an iron pin; thence leaving said
right-of-way and following the common line of Xxxxxxxxxxx North 18 degree 21'27"
West for 1109.65 feet to an iron pin common corner of Tract 3 and a portion of
the remainder of Tract 2 (Wal-Mart Stores, Inc.); thence along the common line
of Tract 3 and a portion of the remainder of Tract 2 (Wal-Mart Stores, Inc.)
North 71 degree 38'33" East for 148.69 feet to an iron pin thence still with
Tract 3 and property of Xxxx'x Family Steakhouse, Inc. the following courses and
distances: North 71 degree 38'33" East for 278.88 feet to an iron pin; thence
South 55 degree 45'16" East for 7.87 feet to a point in a water meter; thence
North 71 degree 38'33" East for 332.79 feet to an iron pin located on the common
line with Outparcel "B"; thence along the common line of Outparcel "B" South 63
degree 21'27" East for 10.20 feet to an iron pin; thence North 71 degree 38'33"
East for 236.37 feet to an iron pin; thence North 23 degree 41'30" East for
34.34 feet to an iron pin on the Western right-of-way of Commerce Drive; thence
along said right-of-way South 18 degree 21'27" East for 96.00 feet to an iron
pin common corner of Outparcel "C"; thence leaving said right-of-way and along
the common line of Outparcel "C" North 60 degree 24'24" West for 34.34 feet to
an iron pin; thence South 71 degree 38'33" West for 242.37 feet to an iron pin;
thence South 26 degree 38'33" West for 20.50 feet to an iron pin; thence South
18 degree 21'27" East for 165.50 feet to a point; common corner of Outparcel
"D"; thence along Outparcel "D" South 18 degree 21'27" East for 162.03 feet to
an iron pin; thence South 63 degree 21'27" East for 25.41 feet to an iron pin;
thence North 71 degree 38'33" East for 243.90 feet to an iron pin; thence North
22 degree 55'38" East for 27.28 feet to an iron pin on the Western right-of-way
Continued...
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EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
PARCEL I, CONTINUED...
of Commerce Drive; thence along said right-of-way South 18 degree 21'27" East
for 606.31 feet to a PK nail, being the true point of beginning. Said tract
contains 23.484 acres or 1,022,954 square feet more or less.
PARCEL II
Together with those non-exclusive "Permanent Easements" constituting rights in
real property, created defined and limited under Article 5, Items A, B, C, D, E
and F, of the Construction, Easements and Restrictions, recorded in Deed Book
620 at Page 649 in the Clerk's Office of Tazewell Circuit Court, Virginia, as
more particularly set forth.
Together with a non-exclusive easement for roadways, walkways, ingress, egress,
parking of motor vehicles, loading and unloading of commercial and other
vehicles and the use of facilities installed for comfort and convenience,
constituting rights in real property created defined and limited under Article
6, Item A, of the Easements, Covenants and Restrictions Agreement, recorded in
Deed Book 633 at Page 284, as amended by instruments recorded in Deed Book 637,
Page 402, Deed Book 640, Page 100 and Deed Book 641, Page 898, all in the
Clerk's Office of Tazewell Circuit Court, Virginia.
Together with the non-exclusive easement to maintain and repair road located on
Tract 2, constituting rights in real property, created defined and limited under
Article 6, Item A, of the Easements, Covenants and Restrictions Agreement
recorded in Deed Book 633 at Page 284, as amended by instruments recorded in
Deed Book 637, Page 402, Deed Book 640, Page 100 and Deed Book 641, Page 898,
all in the Clerk's Office of Tazewell Circuit Court, Virginia.
Together with the perpetual non-exclusive utility easement, constituting rights
in real property, created defined and limited under Article 6, Item C(2), of the
Easements, Covenants and Restrictions Agreement, recorded in Deed Book 633, Page
284, as amended by instruments recorded in Deed Book 637, Page 402, Deed Book
640, Page 100 and Deed Book 641, Page 898, all in the Clerk's Office of Tazewell
Circuit Court, Virginia.
Together with the perpetual non-exclusive detention easement, constituting
rights in real property, created defined and limited under Article 6, Item C(3),
of the Easements, Covenants and Restrictions Agreement recorded in Deed Book 633
at Page 284, as amended by instruments recorded in Deed Book 637, Page 402, Deed
Book 640, Page 100 and Deed Book 641, Page 898, all in the Clerk's Office of
Tazewell Circuit Court, Virginia.
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ANNEX I
-------
9.1 PRINCIPLES OF CONSTRUCTION. In the event of inconsistencies between
the terms and conditions of this Article 9 and the terms and conditions of
Articles 1 through 8 of this Deed of Trust, the terms and conditions of this
Article 9 shall control and be binding.
9.2 ACCELERATION UPON TRANSFER. If any sale, conveyance, alienation,
deed, mortgage, encumbrance, pledge or transfer, other than a transfer permitted
under Section 6.5 of the Loan Agreement or other relevant terms of the Loan
Documents occurs without Beneficiary's consent, then at Beneficiary's sole
option, Beneficiary may, by written notice to Grantor, declare the Obligations
immediately due and payable. Without limiting the generality of the foregoing,
the following provision is set forth herein in order to comply with the
requirements of Section 6.1-330.88 of the Code of Virginia, if such requirements
are applicable to the property:
NOTICE-THE OBLIGATIONS SECURED HEREBY ARE SUBJECT TO CALL IN FULL OR
THE TERMS THEREOF BEING MODIFIED IN THE EVENT OF SALE OR CONVEYANCE OF THE
PROPERTY.
9.3 RIGHTS AND REMEDIES OF TRUSTEE. Upon the occurrence and during the
continuance of an Event of Default by Xxxxxxxxx:
a. Trustee may take possession of and sell the Property, or any part
thereof requested by Beneficiary to be sold, and in connection therewith
Mortgagor hereby authorizes and empowers Trustee to take possession of and sell
(or in case of the default of any purchaser to resell) the Property, or any part
thereof, all in accordance with the laws or rules of court of the Commonwealth
of Virginia relating to deeds of trust, including any amendments thereof, or
additions thereto, which do not materially change or impair the remedy. In
connection with any foreclosure, Beneficiary and/or Trustee may (A) procure such
title reports, surveys, tax histories and appraisals as they deem necessary, and
(B) make such commercially reasonable repairs and additions to the Property as
they deem advisable, all of which shall constitute "Expenses" (hereinafter
defined). In the case of any sale under this Deed of Trust, by virtue of
judicial proceedings or otherwise, the Property may be sold as an entirety or in
parcels, by one sale or by several sales, and any fixtures or collateral
encumbered by this Deed of Trust may be sold at the same sale as the Property or
in one or more sales, as may be deemed by Trustee to be appropriate and without
regard to any right of Mortgagor or any other person to the marshaling of
assets, for cash, on credit or for other property, for immediate or future
delivery, and for such price or prices and on such terms as may be prudent,
having first given such notice prior to the sale of such time, place and terms
by publication in at least one newspaper published or having general circulation
in the city or county in which the Property is located as provided hereinbelow.
"Expenses" means all reasonable out-of-pocket costs and expenses of any nature
whatsoever incurred at any time and from time to time (whether before or after
an Event of Default) by Beneficiary or Trustee in exercising or enforcing any
rights, powers and remedies provided in this Deed of Trust or any of the other
Loan Documents, including, without limitation, reasonable attorneys' fees, court
costs, receiver's fees, management fees and reasonable out-of-pocket costs
incurred in the repair, maintenance and operation of, or taking possession of,
or selling, the Property.
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b. Any sale hereunder may be made at public auction, at such time or
times, at such place or places, and upon such terms and conditions and after
such previous public notice as Trustee shall deem appropriate and advantageous
and as required by the laws of the Commonwealth of Virginia. The parties hereto
agree that the advertisement required is as follows: (A) if the advertisement is
inserted on a weekly basis, publication once a week for two (2) weeks shall be
sufficient; and (B) if the advertisement is inserted on a daily basis,
publication once a day for three (3) days, which may be consecutive days, shall
be sufficient.
c. Upon the terms of such sale being complied with, Trustee shall
convey to, and at the cost of, the purchaser or purchasers the interest of
Mortgagor in the Property so sold, by deed of special warranty, free and
discharged of and from all estate, title or interest therein of Borrower, at law
or in equity, such purchaser or purchasers being hereby discharged from all
liability to see to the application of the purchase money.
d. Beneficiary and any affiliate thereof may be a purchaser of the
Property or of any part thereof or of any interest therein at any public sale
thereof, whether pursuant to foreclosure or power of sale or otherwise
hereunder, without thereby forfeiting its right to collect any deficiency from
Mortgagor; and Beneficiary may apply upon the purchase price the Secured
Obligations secured hereby owing to Beneficiary. Beneficiary, upon, any such
purchase, shall acquire good title to the properties so purchased, free of the
lien of this Deed of Trust and free of all rights of redemption in Mortgagor and
free of all liens and encumbrances subordinate to this Deed of Trust.
9.4 STATUTORY CONDITIONS. This Deed of Trust is made under and pursuant
to the provisions of the Code of Virginia, Sections 26-49, 55-58.1, 55-59,
55-59.1 through 55-59.4 and 55-60, as amended, and shall be construed to impose
and confer upon the parties hereto and Beneficiary all the rights, duties and
obligations prescribed by said Sections 26-49, 55-58.1, 55-59, 55-59.1 through
55-59.4 and 55-60, as amended, except as herein otherwise restricted, expanded
or changed, including without limitation the following rights, duties and
obligations described in short form:
All exemptions are hereby waived.
Subject to call on Event of Default which is continuing.
Renewal, extension, or reinstatement permitted.
Substitution of trustees collectively or of any of them individually by
the Beneficiary is permitted for any reason whatsoever, and any number of times
without exhaustion of the right to do so.
Advertisement required, once a week for two successive weeks or for
three (3) consecutive days in any newspaper of general circulation in the County
or City in which the property is situate.
Any Trustee may act.
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The Trustee may require a deposit in the amount of five percent (5%) of
the unpaid principal indebtedness then secured hereby (after a ratable
allocation among the properties financed by the Loan to accompany each bid at
foreclosure sale or sale in lieu thereof.
9.5 APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of such sale
or sales under this Deed of Trust, whether under the assent to a decree, the
power of sale, or by equitable foreclosure, shall be held by Trustee and applied
as follows: FIRST (A) all Expenses incurred in connection with such sale or in
preparing the Property for such sale and of obtaining possession including,
among other things, counsel fees reasonably incurred shall be allowed and paid
out of the proceeds of such sale or sales, (B) the Trustee's Commission
(hereinafter defined) and expenses and (C) all taxes, levies, assessments or
other charges relating to the Property which have or in the opinion of Trustee
may have, priority over the lien of this Deed of Trust, including the pro rata
portion thereof applicable to the taxable period during which any payment is
made pursuant to this subsection; SECOND, to pay all of the Secured Obligations
and all interest then due and accrued thereon, which shall include interest
through the date of ratification of by the Commissioner of Accounts; THIRD, to
pay the amount of any liens of record inferior to this Deed of Trust, together
with lawful interest, and lawful claims of third parties against the proceeds of
any sale; and LASTLY, to pay the surplus, if any, to Mortgagor or any person
entitled thereto unless otherwise required by law or directed by a court of
competent jurisdiction. In the event that the proceeds of any such sale or
sales, together with all other monies at the time held by Trustee under this
Deed of Trust, are insufficient to pay the foregoing costs and expenses,
Beneficiary may, at its sole option, advance such sums as Beneficiary in its
sole and absolute discretion shall determine for the purpose of paying all or
any part of such costs and expenses, and all such sums so advanced shall be (A)
a lien against the Property, (B) added to the amount due under the Note and
secured by this Deed of Trust, and (C) payable within five (5) days after demand
with interest at the rate of interest applicable to the principal balance of the
Note, from and including the date each such advance is made. In any event,
Mortgagor shall be liable to Beneficiary for any deficiency if the proceeds of
any such sale or sales are insufficient to pay, in full, all amounts to be
distributed pursuant to the Clauses FIRST through SECOND above. Mortgagor shall
pay to Trustee a commission in the amount of five percent (5%) if the Property
is advertised for sale under the provisions of this Deed of Trust and is sold,
and one percent (!%) if the Property is advertised for sale under the provisions
of this Deed of Trust and is not sold, and in either case the Mortgagor shall
also pay or reimburse Trustee for all of Trustee's reasonable out-of-pocket
expenses and disbursements hereunder regardless of whether the Property is sold
(the "Trustee's Commission").
9.6 SUBSTITUTION OF TRUSTEES. Beneficiary, or any successor in
ownership of any indebtedness secured hereby, may from time to time, with or
without cause and at Beneficiary's sole discretion, by instrument in writing,
substitute a successor or successors to any Trustee named herein or acting
hereunder, which instrument, executed by the Beneficiary duly acknowledged and
recorded in the appropriate Circuit Court Clerk's Office of the jurisdiction
where the Property is situated, shall be conclusive proof of proper substitution
of such successor Trustee or Trustees, who shall, without conveyance from the
Trustee predecessor, succeed to all its title, estate, rights, powers and
duties.
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