DEED OF TRUST AND SECURITY AGREEMENT
Exhibit
10.104
THIS DEED OF TRUST AND SECURITY
AGREEMENT (together with all exhibits and schedules hereto and all
extensions, renewals, amendments, substitutions and replacements hereto and
hereof this "Deed of
Trust") is made this 8th day of October, 2008, to be effective as of
October 14, 2008, by MORGANTOWN MALL ASSOCIATES LIMITED PARTNERSHIP, an Ohio
limited partnership (the "Grantor"), with an office at
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxx, Xxxx 000000, in favor of Camden X.
Xxxxxxxx, a resident of Kanawha County, West Virginia (the "Trustee") with a principal
address 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx Xxxxxxxx 00000 for the benefit of
FIRST COMMONWEALTH BANK (the "Beneficiary"), with its
principal xxxxxx xx Xxxxxxxxxxxx xxx 0xx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxx 000000.
WITNESSETH:
WHEREAS, the Grantor is the
owner in fee simple of a certain tract or parcel of land located in the Township
of Westover, County of Monongalia, State of West Virginia, and more particularly
described in Exhibit
A attached hereto and made a part hereof, together with the improvements
now or hereafter erected thereon; and
WHEREAS, the Grantor (in such
capacity, the "Borrower") is indebted to the
Beneficiary in connection with a certain term loan in the aggregate principal
amount of Forty Million and 00/100 Dollars ($40,000,000.00) (the "Loan") pursuant to the terms
and conditions of that certain Loan Agreement dated as of October 8, 2008, (the
Loan Agreement, together with all exhibits, schedules, extensions, renewals,
amendments, substitutions and replacements thereto and thereof is referred to
herein as the "Loan
Agreement"); and
WHEREAS, the Borrower has made
and delivered to the Beneficiary that certain Term Note dated as of even date
herewith in the aggregate principal face amount of $40,000,000.00 (together with
all extensions, renewals, amendments, substitutions and replacements thereto and
thereof, collectively the "Note");
NOW, THEREFORE, in
consideration of the Loan and for the purpose of securing the payment and
performance by the Borrower to the Beneficiary of the following obligations
(collectively called the "Obligations"):
(i) The
Loan, the Note and all other loans, advances, debts, liabilities, obligations,
covenants and duties owing by the Borrower to the Beneficiary under or in
connection with the Loan Agreement, the Note or any of the other Loan Documents
(as such term is defined in the Loan Agreement) of any kind or nature including,
without limitation, all Obligations (as such term is defined in the Loan
Agreement), present or future, whether or not (i) evidenced by any
note, guaranty or other instrument, (ii) arising under any agreement, instrument
or document, (iii) for the payment of money, (iv) arising by reason of an
extension of credit, opening of a letter of credit, loan, equipment lease or
guarantee, (v) under any interest or currency swap, future, option or other
interest rate protection or similar agreement including, without limitation, any
Rate Management Agreement entered into by and between the Bank and the Borrower
in connection with the Loan, (vi) under or by reason of any foreign currency
transaction, forward, option or other similar transaction providing for the
purchase of one currency in exchange for the sale of another currency, or in any
other manner, or (vii) arising out of overdrafts on deposit or other accounts or
electronic funds transfers (whether by wire transfer or through automated
clearing houses or otherwise) or out of the return unpaid of, or other failure
of the Beneficiary to receive final payment for, any check, item, instrument,
payment order or other deposit or credit to a deposit or other account or out of
the Beneficiary's non-receipt of or inability to collect funds or otherwise not
being made whole in connection with depository or other similar arrangements;
and any amendments, extensions, renewals or increases of or to any of the
foregoing, and all costs and expenses of the Beneficiary incurred in the
documentation, negotiation, modification, enforcement, collection and otherwise
in connection with any of the foregoing, including reasonable attorneys' fees
and expense; and (viii) any sums advanced by the Beneficiary or which may
otherwise become due pursuant to the provisions of this Deed of Trust or
pursuant to any of the other Loan Documents the Grantor, for good and valuable
consideration, receipt of which is hereby acknowledged, and intending to be
legally bound hereby, does hereby give, grant, bargain, sell, convey, assign,
transfer, mortgage, hypothecate, pledge, set over and confirm unto the Trustee, in trust with the power of sale and does
agree that the Trustee on behalf of the Beneficiary shall
have a security interest in the following described property, all accessions and
additions thereto, all substitutions therefor and replacements and proceeds
thereof, and all reversions and remainders of such property now owned or held or
hereafter acquired (the "Property"), to
wit:
(a) All
of the Grantor's estate in the premises described in Exhibit A, together
with all of the easements, rights of way, privileges, liberties, hereditaments,
gores, streets, alleys, passages, ways, waters, watercourses, rights and
appurtenances thereunto belonging or appertaining, and all of the estate, right,
title, interest, claim and demand whatsoever of the Grantor therein and in the
public streets and ways adjacent thereto, either in law or in equity (the "Realty");
(b) All
of the buildings, structures and improvements of every kind and description now
or hereafter erected or placed on the Realty, and all facilities, fixtures,
machinery, apparatus, appliances, installations, machinery and equipment,
including, without limitation, all building materials to be incorporated into
such buildings, all electrical equipment necessary for the operation of such
buildings and heating, air conditioning and plumbing equipment now or hereafter
attached to, located in or used in connection with those buildings, structures
or other improvements (the "Improvements");
(c) All
machinery, apparatus, equipment, fittings, appliances and fixtures of every kind
and nature whatsoever, and regardless of whether the same may now or hereafter
be attached or affixed to the Realty or Improvements, including, without
limitation, all electrical, antipollution, heating, lighting, incinerating,
power, air conditioning, plumbing, lifting, cleaning, fire prevention, fire
extinguishing, apparatus, equipment, fittings, appliances and fixtures, and all
engines, pipes, pumps, tanks, motors, conduits, ducts, compressors, elevators
and escalators, and all articles of personal property and goods of every kind
and nature whatsoever now or hereinafter affixed to, attached to, placed upon,
or used or usable in any way in connection with the use, enjoyment, occupancy or
operation of the Realty or Improvements (collectively, the "Equipment");
(d) All
rents, issues and profits arising or issuing from the Realty and the
Improvements (the "Rents") including, but not
limited to, the Rents arising or issuing from all leases and subleases now or
hereafter entered into covering all or any part of the Realty and Improvements
(the "Leases"), all of
which Leases and Rents are hereby assigned to the Beneficiary by the
Grantor. The foregoing assignment shall include, without limitation,
all cash or securities deposited under Leases to secure performance of lessees
of their obligations thereunder, whether such cash or securities are to be held
until the expiration of the terms of such leases or applied to one or more
installments of rent coming due prior to the expiration of such
terms. The foregoing assignment extends to Rents arising both before
and after the commencement by or against the Grantor of any case or proceeding
under any federal or state bankruptcy, insolvency or similar law. The
Grantor will execute and deliver to the Beneficiary, on demand, such assignments
and instruments as the Beneficiary may require to implement, confirm, maintain
and continue the assignment hereunder;
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(e) All
of the Grantor's rights and interests in all agreements now or hereafter in
existence providing for or relating to the construction, maintenance, operation
or management of the Property or any part thereof, including the plans and
specifications therefor, and all copies thereof (together with the right to
amend or terminate the same or waive the provisions of the foregoing), and any
amendments, renewals and replacements thereof; to the extent permitted by the
relevant authorities, all licenses, permits and approvals for the ownership,
construction, maintenance, operation, use and occupancy of the Property, or any
part thereof and any amendments, renewals and replacements thereof; all of the
Grantor's rights and interests in all warranties and guaranties from
contractors, subcontractors, suppliers and manufacturers to the maximum extent
permissible relating to the Property or any part thereof; all insurance policies
covering or affecting the Property or any part thereof (collectively, the "Other Property");
(f) All
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or liquidated claims; and
(g) Without
limiting any of the other provisions of this Deed of Trust, the Grantor, as
debtor, expressly grants unto the Beneficiary, as secured party, a security
interest in all those portions of the Property which may be subject to the
Uniform Commercial Code provisions applicable to secured transactions under the
laws of any state, and the Grantor will execute and deliver to the Beneficiary
on demand such financing statements and other instruments as the Beneficiary may
require in order to perfect and maintain such security interest under the
Uniform Commercial Code on the aforesaid collateral.
In
trust, nevertheless, unto the Trustee, to secure the performance and observance
of the Borrowers' obligations hereunder and under the other Loan
Documents.
THE
NAME AND RESIDENCE OF THE BENEFICIAL OWNER OF THE NOTE IS FIRST COMMONWEALTH
BANK, PHILADELPHIA XXX 0XX
XXXXXXX, X.X. XXX 000, XXXXXXX, XXXXXXXXXXXX 00000.
Provided,
however, that if the Grantor shall pay to the Beneficiary the Obligations, and
if the Grantor shall keep and perform each of their other covenants, conditions
and agreements set forth herein and in the other Loan Documents, then, upon the
termination of all obligations, duties and commitments of the Grantor under the
Obligations and this Deed of Trust, the estate hereby granted and conveyed shall
become null and void.
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AND
GRANTOR hereby warrants, covenants and agrees as follows:
1. Warranty
of Title. The Grantor
represents and warrants to the Beneficiary that the Grantor has good and
marketable title to an estate in fee simple absolute in the Realty and the
Improvements and has all right, title and interest in all other property
constituting a part of the Property, in each case free and clear of all Liens
(as defined in the Loan Agreement), except for Permitted Liens (as defined in
the Loan Agreement). This Deed of Trust is a valid and enforceable
first Lien on the Property (except for Permitted Liens), and the Beneficiary
shall, subject to the Grantor's right of possession prior to an Event of Default
(as defined below), quietly enjoy and possess the Property. The
Grantor shall preserve such title as it warrants herein and the validity and
priority of the Lien hereof and shall forever warrant and defend the same to the
Beneficiary against the claims of all Persons. All of the
representations and warranties of the Grantor set forth in the Environmental
Indemnity Agreement (as defined in the Loan Agreement) are incorporated herein
by reference as if set forth herein.
2. Payment
and Performance of Obligations. Until all of the
Obligations shall have been fully paid, satisfied and discharged the Grantor
shall pay or cause to be paid and perform all Obligations when due as provided
in the Loan Documents.
3. Legal
Requirements.
Until all of the Obligations shall have been fully paid, satisfied and
discharged the Grantor shall promptly comply with and conform to all present and
future Governmental Rules which may be applicable to the Grantor or to any of
the Property.
4. Impositions.
(a) Before
interest or penalties are due thereon and otherwise when due, the Grantor shall
pay all taxes of every kind and nature, all charges for any easement or
agreement maintained for the benefit of any of the Property, all general and
special assessments (including, without limitation, any condominium or planned
unit development assessments, if any), levies, permits, inspection and license
fees, all water and sewer rents and charges, and all other charges and Liens,
whether of a like or different nature, even if unforeseen or extraordinary,
imposed upon or assessed against the Grantor or any of the
Property. The Grantor shall comply in all respects with all
agreements, mortgages, covenants, and restrictions now or hereafter affecting
the Realty or Improvements. The obligations referred to in this
Section are hereinafter collectively referred to as the "Impositions". Within
thirty (30) days after the payment of any Imposition, the Grantor shall deliver
to the Beneficiary evidence acceptable to the Beneficiary of such
payment. The Grantor's obligations to pay the Impositions shall
survive the Beneficiary's taking title to the Property through foreclosure,
deed-in-lieu or otherwise. The Grantor shall also deliver to the
Beneficiary, within ten (10) days of receipt thereof, copies of all settlements
and notices pertaining to the Impositions which may be issued by any
Governmental Authority.
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(b) Subject
to the right of the Grantor to contest the payment of an Imposition as provided
in Section 7 hereof, the Beneficiary may pay or perform any Imposition and add
the amount so paid or the cost incurred to the Obligations, and all such amounts
shall on demand be due and payable, together with interest thereon from the date
of such demand at the Default Rate (as such term is defined in the
Note).
5. Insurance.
(a) The
Grantor shall maintain commercial general liability insurance, special perils
property insurance, loss of income insurance, contractual liability insurance
for all indemnification obligations of the Grantor under all leases, and such
other insurance as may be required from time to time by the
Beneficiary. The amounts, coverages and other terms and conditions of
the insurance policies shall at all times be satisfactory to the Beneficiary and
shall satisfy any co-insurance requirements of the Beneficiary. The
Grantor shall pay as they become due all premiums for such insurance, shall keep
each policy in full force and effect, shall deliver to the Beneficiary evidence
of the payment of the full premium therefor at least twenty (20) days prior to
the expiration date of each policy, and shall deliver to the Beneficiary the
original policies of insurance or acceptable evidence thereof, with
noncontributory mortgagee clauses in favor of and acceptable to the
Beneficiary. The Grantor's liability insurance and property policies
shall specifically name the Beneficiary as an additional insured and as lender
loss payee respectively. Each policy shall provide for written notice
to be received by the Beneficiary at least thirty (30) days prior to any
cancellation, non-renewal or amendment of such insurance.
(b) The
Grantor shall deliver to the Beneficiary, at the time of each renewal of the
policy (but at least once every three (3) years), a statement reasonably
satisfactory to the Beneficiary as to the then replacement and insurable values
of the Improvements as determined by the underwriter of fire insurance on the
Property or by a qualified appraiser approved by the Beneficiary.
(c) The
Grantor shall promptly comply with and conform to (i) all provisions of each
such insurance policy and (ii) all requirements of the insurers thereunder
applicable to the Grantor or any of the Property or to the use, manner of use,
occupancy, possession, operation, maintenance, alteration or repair of any of
the Property, even if such compliance necessitates structural changes or
improvements or results in interference with the use or enjoyment of any of the
Property, provided however that the Grantor shall obtain the prior written
consent of the Beneficiary (which consent shall not be unreasonably withheld)
prior to making any material structural changes or improvements or interfering
with the use or enjoyment of any of the Property. The Grantor shall
not use or permit any party to use any of the Property in any manner which would
permit the insurer to cancel any insurance policy.
(d) The
Grantor shall not adjust, collect or compromise any property claims under said
policies without the prior written consent of the Beneficiary. Each
insurer is hereby authorized and directed to make payment under said policies,
including return of unearned premiums, directly to the Beneficiary instead of to
the Grantor and the Beneficiary jointly, and the Grantor appoints the
Beneficiary as the Grantor's attorney-in-fact to endorse any draft
therefor. All insurance proceeds shall be payable to the Beneficiary
and such proceeds may, during the continuance of an Event of Default, at the
Beneficiary's sole option, be applied to any part of the Obligations and in any
order (notwithstanding that such Obligations may not then be due and payable) or
to the repair and restoration of any of the Property. The Beneficiary
shall not be deemed to have elected such option until such option is elected
specifically in writing. Until so elected, the Beneficiary shall not
in any circumstances be deemed to have waived its right to make such
election.
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(e) In
the event of any casualty (whether or not insured against) resulting in damage
to any of the Property, unless an uncured Event of Default exists and the
Beneficiary shall have elected to apply the insurance proceeds to the payment of
the Obligations, the Grantor, whether or not such insurance proceeds shall be
sufficient for the purpose, shall promptly commence and diligently continue to
restore the Property as nearly as possible to its value, condition and character
immediately prior to such casualty. In that event, the Beneficiary
shall have the right to hold any insurance proceeds and disburse them to the
Grantor or for the account of the Grantor as the restoration progresses, as
provided in Section 12 hereof.
(f) In
the event of loss, any separate insurance concurrent in form or
contributing with that required to be maintained under this Section
shall contain a non-contributory mortgagee clause in favor of and acceptable to
the Beneficiary, and a duplicate original policy shall be delivered promptly to
the Beneficiary; provided however that no such concurrent or contributing
insurance shall be maintained without the prior written consent of the
Beneficiary.
6. Installments
for Insurance, Taxes and Other Charges. After the occurrence
of an Event Default, the Grantor shall, if requested by the Beneficiary, pay to
the Beneficiary monthly, an amount equal to one-twelfth (1/12) of the annual
premiums for the insurance policies referred to hereinabove and the
annual Impositions and any other item which at any time may be or become a Lien
upon the Property (the "Escrow
Charges"). The amounts so paid shall be used in payment of the
Escrow Charges so long as no Event of Default shall have occurred. No
amount so paid to the Beneficiary shall be deemed to be trust funds, nor shall
any sums paid bear interest. The Beneficiary shall have no obligation
to pay any insurance premium or Imposition if at any time the funds being held
by the Beneficiary for such premium or Imposition are insufficient to make such
payments. Upon the occurrence of an Event of Default, the Beneficiary
shall have the right, at its election, to apply any amount so held against the
Obligations due and payable in such order as the Beneficiary may deem fit, and
the Grantor hereby grants to the Beneficiary a Lien upon and security interest
in such amounts for such purpose.
7. Right of
Contest. The Grantor may in good faith contest, by proper
legal proceedings, the validity of any Legal Requirement or the validity or
amount of any Imposition, provided, (i) an Event of Default does not exist; (ii)
the Grantor provides the Beneficiary with security satisfactory to the
Beneficiary assuring compliance with or payment of the Imposition and any
additional charge, interest, penalty, expense or other payment which may arise
from or be incurred as a result of such contest; and (iii) such contest operates
to suspend enforcement of compliance with or collection or enforcement of the
Imposition and is maintained and prosecuted with diligence, except in the case
of real estate tax assessment appeals, such contest only may be made if all real
estate taxes are paid.
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8. Maintenance
and Impairment of Security. The Grantor shall keep or cause to
be kept the Property in good condition and order and in a rentable and
tenantable state of repair and will make or cause to be made, as and when
necessary, all repairs, renewals, and replacements, structural and
nonstructural, exterior and interior, foreseen and unforeseen, ordinary and
extraordinary, provided however that no material structural repairs, renewals or
replacements shall be made without the Beneficiary's prior written consent,
which consent shall not be unreasonably withheld. The Grantor shall
not remove, demolish or alter the Property or any part thereof, nor commit or
suffer waste with respect thereto, nor permit the Property to become deserted or
abandoned. The Grantor shall permit the Beneficiary and its agents at
any reasonable time, and from time to time, to enter upon and visit the Property
for the purpose of inspecting and appraising the same. The Grantor
covenants and agrees not to take or permit any action with respect to the
Property which will in any manner impair the security of this Deed of
Trust.
9. Use of
Property. Unless the Beneficiary otherwise gives its prior
written consent, the Grantor shall not use or permit others to use the Property
for other than as an office and retail complex and for other appurtenant and
related uses.
10. Condemnation. If
all or a material portion of the Property shall be damaged or taken through
condemnation (which term when used in this Deed of Trust shall include any
damage or taking by any Governmental Authority and any transfer by private sale
in lieu thereof), either temporarily or permanently (collectively, a "Material
Taking"), the Obligations secured hereby shall, at the option of the
Beneficiary, become immediately due and payable. For purposes hereof,
a "material portion" shall mean that portion of the Property which, based on a
new Appraisal of the remaining Property after giving effect to such
condemnation, would result in a Loan-to-Value Ratio of 80% or
greater. The Grantor, immediately upon obtaining knowledge of the
institution of any proceedings for the condemnation or taking by eminent domain
of any of the Property, shall notify the Beneficiary of the pendency of such
proceedings. The Beneficiary may participate in any such proceedings
and the Grantor shall deliver to the Beneficiary all instruments requested by it
to permit such participation. Any award or compensation for property
taken or for damage to property not taken other than a Material Taking, whether
as a result of such proceedings or in lieu thereof, is hereby assigned to and
shall be received and collected directly by the Beneficiary, and any award or
compensation shall be applied to the repair and restoration of any of the
Property or, at the Beneficiary's option, after the occurrence and during the
continuance of an Event of Default, to any part of the Obligations and in any
order (notwithstanding that any of such Obligations may not then be due and
payable). The Grantor shall promptly, whether or not such award or
compensation shall be sufficient for the purpose, commence and diligently
continue to restore the Property as nearly as possible to its value, condition
and character immediately prior to such damage. In that event, the
Beneficiary shall have the right to hold the award or compensation and disburse
it to the Grantor or for the account of the Grantor as the restoration
progresses, as provided in Section 12 hereof. The Grantor agrees to
execute such further assignment of any compensation, awards, damages, claims,
rights of action, proceeds, and other payments, as the Beneficiary may
require.
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11. No
Credits on Account of the Debt. Grantor will not claim or
demand or be entitled to any credit or credits on account of the unpaid
principal balance of the Note together with all interest thereon ("Debt") for any part of the
Taxes or Other Charges assessed against the Mortgaged Property, or any part
thereof, and no deduction shall otherwise be made or claimed from the assessed
value of the Mortgaged Property, or any part thereof, for real estate tax
purposes by reason of this Deed of Trust or the Debt. In the event
such claim, credit or deduction shall be required by law, Beneficiary shall have
the option, by written notice of not less than ninety (90) days, to declare the
Obligations immediately due and payable.
12. Restoration.
(a) All
amounts received by the Beneficiary pursuant to Section 5 or Section 10 hereof
may either be held in a restoration fund (the "Restoration Fund") by the
Beneficiary or, if it refuses to serve, a bank or trust company appointed by the
Beneficiary which has a combined capital and surplus of not less than
$100,000,000, as restoration fund trustee (the "Restoration Fund Trustee"),
with any additions thereto that may be required by the Beneficiary as
hereinafter provided. The interest or income, if any, received on all
deposits or investments of any moneys in the Restoration Fund shall be added to
the Restoration Fund. If the Beneficiary consents to the deposit of
such funds in an interest-bearing account or otherwise consents to
the investment of such funds, neither the Beneficiary nor the Restoration Fund
Trustee shall be liable or accountable for any loss resulting from any such
deposit or investment, or for any withdrawal, redemption or sale of deposits or
investments. The Beneficiary and the Restoration Fund Trustee may
impose reasonable charges for services performed in managing the Restoration
Fund and may deduct such charges therefrom. Restoration shall be
performed only in accordance with the following conditions: (i) prior to
commencement of restoration and from time to time during restoration, the
Beneficiary may require the Grantor to deposit additional moneys into the
Restoration Fund in amounts which in the Beneficiary's judgment are sufficient
to defray all costs to be incurred to complete the restoration and all costs
associated therewith, including labor, materials, architectural and design fees
and expenses and contractor's fees and expenses, and the Beneficiary shall have
approved a budget and cost breakdown for the restoration, together with a
disbursement schedule, in detail satisfactory to the Beneficiary; (ii) prior to
commencement of restoration, the Grantor shall provide satisfactory evidence of
rental loss insurance payments sufficient to replace any rents that are reduced
or abated during the projected restoration period or shall deposit additional
funds in the Restoration Fund to compensate for any shortfall in projected debt
service payments during the restoration period, in the Beneficiary's reasonable
discretion; (iii) prior to commencement of restoration, the contracts,
contractors, plans and specifications for the restoration shall have been
approved by the Beneficiary and all Governmental Authorities having
jurisdiction, and the Beneficiary shall be provided with satisfactory title
insurance and acceptable surety bonds insuring satisfactory completion of the
restoration and the payment of all subcontractors and materialmen; (iv) all
restoration work shall be done under fixed price contracts, fully bonded; (v) at
the time of any disbursement, an Event of Default, or any event or condition
which with the passage of time or the giving of notice, or both, would
constitute an Event of Default, shall not have occurred, no mechanics' or
materialmen's liens shall have been filed and remain undischarged and an
endorsement to its title insurance policy, satisfactory to the Beneficiary,
shall have been delivered to the Beneficiary; (vi) disbursements from the
Restoration Fund shall be made from time to time, but not more frequently than
once each calendar month, for completed work under the aforesaid contracts
(subject to retainage) and for other costs associated therewith and approved by
the Beneficiary, upon receipt of evidence satisfactory to the Beneficiary of the
stage of completion and of performance of the work in a good and workmanlike
manner in accordance with the contracts, plans and specifications as approved by
the Beneficiary; (vii) the Grantor will pay the cost of the Beneficiary's
inspecting architect or engineer and the cost of any attorney's fees and
disbursements incurred by the Beneficiary in connection with such restoration;
(viii) the Beneficiary shall have the option to retain up to ten percent (10%)
of the cost of all work until the restoration is fully completed, as determined
by the Beneficiary, and all occupancy permits therefor have been issued; (vix)
the Beneficiary may impose such other reasonable conditions, including a
restoration schedule, as are customarily imposed by construction lenders to
assure complete and lien-free restoration; and (x) any sum remaining in the
Restoration Fund upon completion of restoration shall, at the Beneficiary's
option, be applied to any part of the Obligations and in any order
(notwithstanding that any of such Obligations may not then be due and payable)
or be paid to the Grantor.
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(b) If
within a reasonable period of time after the occurrence of any loss or damage to
the Property, the Grantor shall not have submitted to the Beneficiary and
received the Beneficiary's approval of plans and specifications for the repair,
restoration or rebuilding of such loss or damage or shall not have obtained
approval of such plans and specifications from all Governmental Authorities
whose approval is required, or if, after such plans and specifications are
approved by the Beneficiary and by all such Governmental Authorities, the
Grantor shall fail to commence promptly such repair, restoration or rebuilding,
or if thereafter the Grantor fails to carry out diligently such repair,
restoration or rebuilding or is delinquent in the payment to mechanics,
materialmen or others of the costs incurred in connection with such work, or if
any other condition of this Section is not satisfied within a reasonable period
of time after the occurrence of any such loss or damage, then the Beneficiary,
or any lawfully appointed receiver of the Property, in addition to all other
rights herein set forth, and, after giving the Grantor thirty (30) days written
notice of the nonfulfillment of one or more of the foregoing conditions may,
failing the Grantor's fulfillment of said conditions within said thirty (30) day
period, at the Beneficiary's option, (i) declare that an Event of Default has
occurred and/or apply all proceeds to the payment of any Obligations, and/or
(ii) may perform or cause to be performed such repair, restoration or
rebuilding, and may take such other steps as they deem advisable to carry out
such repair, restoration or rebuilding, and may enter upon the Property for any
of the foregoing purposes, and the Grantor hereby waives, for itself and all
others holding under it, any claim against the Beneficiary and such receiver
(other than a claim based upon the alleged gross negligence or intentional
misconduct of the Beneficiary or any such receiver) arising out of anything done
by them or any of them pursuant to this Section, and the Beneficiary may in its
discretion apply any insurance or condemnation proceeds held by it to reimburse
itself and/or such receiver for all amounts expended or incurred by it in
connection with the performance of such work, including attorney's fees, and any
excess costs shall be paid by the Grantor to the Beneficiary and the Grantor's
obligation to pay such excess costs shall be secured by the Lien of this Deed of
Trust and shall bear interest at the Default Rate, until paid.
(c) The
Grantor waives any and all right to claim or recover against the Beneficiary,
its officers, employees, agents and representatives, for loss of or damage to
the Grantor, the Property, the Grantor's property or the property of others
under the Grantor's control from any cause insured against or required to be
insured against by the provisions of this Deed of Trust.
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13. Books and
Records. The Grantor shall maintain and the Beneficiary shall
have access to complete and adequate books of account and other records relating
to the financing, development, construction, leasing, management, operation and
use of the Property as the Beneficiary may require, and the Grantor will discuss
the finances and business of the Property with the Beneficiary, as the
Beneficiary may request. Such books and records shall be kept in all
material respects in accordance with GAAP consistently applied. The
Grantor shall permit the Beneficiary to photocopy such books and records on the
Property, or, if photocopying facilities are not available on the Property, at a
copying facility selected by the Beneficiary in its reasonable
discretion.
14. Leases.
(a) The
Grantor shall not (i) execute an assignment or pledge of the Rents and/or the
Leases other than in favor of the Beneficiary; or (ii) accept any prepayment of
an installment of any Rents for more than one (1) month in advance without the
prior written consent of the Beneficiary, which consent shall not be
unreasonably withheld.
(b) Without
the prior written consent of the Beneficiary (which consent shall not be
unreasonably withheld) the Grantor shall not, in any material manner amend,
modify, extend or consent to the surrender of any Lease, or make any Lease
except as permitted by the Loan Agreement.
(c) The
Grantor shall promptly (i) perform all of the provisions of the Leases on the
part of the landlord thereunder to be performed; (ii) appear in and defend any
action or proceeding in any manner connected with the Leases or the obligations
of the Grantor thereunder; and (iii) deliver to the Beneficiary promptly copies
of any notices of default which the Grantor may at any time forward to or
receive from a tenant of any Lease.
(d) Each
Lease shall contain terms requiring each tenant thereunder, to attorn to the
Beneficiary or any other Person succeeding to the interest of the Beneficiary as
a result of the enforcement of this Deed of Trust and to recognize the
Beneficiary or such successor in interest as landlord under the Lease without
change in the provisions thereof; provided, however, that the Beneficiary or
such successor in interest shall not be bound by (i) any prepayment of an
installment of rent or other obligation other than rent for the current month,
or (ii) any amendment or modification to the Lease made in violation of the Loan
Agreement or (iii) any obligations under the Lease to have been performed prior
to the date that the Beneficiary or a purchaser in foreclosure or in lieu
thereof shall have acquired title to the Property.
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15. Recordation.
(a) The
Grantor forthwith upon the execution and delivery of this Deed of Trust and
thereafter from time to time, shall cause this Deed of Trust, and any security
instrument creating the Lien or evidencing the Lien hereof upon the mixed or
personal property 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 the Beneficiary in, the
Property.
(b) The
Grantor shall pay all filing, registration and recording fees, and all expenses
incident to the preparation, execution and acknowledgment of this Deed of Trust,
any security instrument with respect to the Improvements and any instrument of
further assurance and all federal, state, county and municipal stamp taxes and
other taxes, duties, imposts, assessments and charges arising out of or in
connection with the execution and delivery of this Deed of Trust, the other Loan
Documents, any security instrument with respect to the Improvements or any
instrument of further assurance.
16. Further
Assurances and Covenants. The Grantor, at the cost of the
Grantor, and without expense to the Beneficiary, agrees to execute such further
assurances as may be desirable by the Beneficiary for the purposes of further
evidencing, carrying out and/or confirming this Deed of Trust and for all other
purposes intended by this Deed of Trust.
17. Events of
Default. "Event of Default" shall be as
defined in the Loan Agreement.
18. Remedies.
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(a) In
the event of an Event of Default, the Beneficiary may, at its option and
notwithstanding any contrary provisions in any of the other Loan Documents,
without demand, notice or delay, do one or more of the following: (i) the
Beneficiary may declare the entire unpaid principal balance of the Note together
with all interest thereon and all other outstanding Obligations, to be due and
payable immediately; (ii) the Beneficiary may (A) institute and maintain an
action of mortgage foreclosure against the Property and the interests of the
Grantor therein, (B) institute and maintain an action on the Note, and (C) take
such other action at law or in equity for the enforcement of any of the Loan
Documents as provided in the Loan Documents and as the law may allow, and in
each such action the Beneficiary shall be entitled to all costs of suit and
reasonable attorneys fees; (iii) the Beneficiary may, without releasing the
Grantor from any obligation under any of the Loan Documents and without waiving
any Event of Default: (A) collect any or all of the Rents, including any Rents
past due and unpaid, (B) perform any obligation or exercise any right or remedy
of the Grantor under any Lease, or (C) enforce any obligation of any tenant of
any of the Property. The Beneficiary shall not be obligated to do any
of the foregoing, even if the Beneficiary may have theretofore performed
obligations or exercised remedies of the Grantor or enforced obligations of
tenants. The Beneficiary may exercise any right under this subsection
(iii) whether or not the Beneficiary shall have entered into possession of any
of the Property, and nothing herein contained shall be construed as constituting
the Beneficiary a "mortgagee in possession", unless the Beneficiary shall have
entered into and shall continue to be in actual possession of the
Property. The Grantor hereby authorizes and directs each and every
present and future tenant of any of the Property to pay all Rents directly to
the Beneficiary and to perform all other obligations of that tenant for the
direct benefit of the Beneficiary, as if the Beneficiary were the landlord under
the Lease with that tenant, immediately upon receipt of a demand by the
Beneficiary to make such payment or perform such obligations. No
tenant shall have any responsibility to ascertain whether such demand is
permitted hereunder or whether an Event of Default shall have occurred; the
Grantor hereby waives any right, claim or demand it may now or hereafter have
against any such tenant by reason of such payment of Rents or performance of
obligations to the Beneficiary; and any such payment or performance to the
Beneficiary shall discharge the obligations of the tenant to make such payment
or performance to the Grantor. The Grantor shall indemnify the
Beneficiary and hold the Beneficiary harmless from and against any and all
claims, liability, damage, cost and expense (including attorney's
fees) which may be asserted against or incurred by the Beneficiary by reason of
any alleged obligations to perform any provision of any Lease. After
deduction of all costs and expenses incurred in the operation and management of
the Property and in the collection of the Rents (including attorneys' fees,
administration expenses, management fees and brokers' commissions), the
Beneficiary may apply the Rents received by the Beneficiary to the payment of
any or all of the following, in such order and amounts as the Beneficiary, in
its sole discretion, may elect, whether or not the same be then
due: Liens on any of the Property, Impositions, claims, insurance
premiums, other carrying charges, invoices of persons who have supplied goods or
services to or for the benefit of any of the Property, costs and expenses of
maintenance, repair, restoration, alteration or improvement of any of the
Property, or the Obligations. The Beneficiary may, in its
sole discretion, determine the method by which, and extent to which, the Rents
will be collected and obligations of tenants enforced; and the Beneficiary may
waive or choose to perform or enforce any provision of any Lease. The
Beneficiary shall not be accountable for any Rents or other sums it does not
actually receive. The Grantor hereby appoints the Beneficiary as its
attorney-in-fact effective upon an Event of Default to perform all acts which
the Grantor is required or permitted to perform under any and all Leases; (iv)
the Beneficiary may, without releasing the Grantor from any obligation under any
of the Loan Documents and without waiving any Event of Default, enter upon and
take possession of the Property or any portion thereof, with or without legal
action and by force if necessary, or have a receiver appointed without proof of
depreciation or inadequacy of the value of the Property or other security or
proof of the insolvency of the Grantor. The Beneficiary or said
receiver may manage and operate the Property; make, cancel, enforce or modify
the Leases or any of them; obtain and evict tenants; establish or change the
amount of any Rents; and perform any acts and advance any sums which the
Beneficiary deems proper to protect the security of this Deed of Trust, all such
sums to be payable on demand, together with interest thereon at the Default
Rate, from the date of such demand, and such sums and interest to be secured by
this Deed of Trust; and (v) the Beneficiary may take possession of the Equipment
and Other Property, or any portion thereof, and may use and deal with the same
to the same extent as the Grantor is entitled to do so and may sell the same
pursuant to law and exercise such other rights and remedies with respect to the
same as may be provided by law, and file such continuation statements which it
deems desirable.
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(b) At
any time after the exercise by Beneficiary of the option to declare the entire
indebtedness of Grantor under the Note to be immediately due and payable,
Trustee, upon the written request of Beneficiary, in accordance with the provisions of Chapter 38, Article
1 of the Code of West Virginia, 1931, as amended, shall foreclose upon and sell the Mortgaged
Property to satisfy the Debt at public auction at the front door of the
courthouse of Monongalia County, West Virginia, for cash or cash equivalent
(including, without limitation, for certified checks, bank drafts, wire transfer
funds, cashier checks and any other method of payment which, in the sole
discretion of Beneficiary, is "cash equivalent"), in hand on the day of sale,
after first giving notice of such sale by publishing such notice in some
newspaper of general circulation published in the county wherein the Mortgaged
Property is located, or if there be no such newspaper, in a qualified newspaper
of general circulation in said county, once a week for two successive weeks
preceding the day of sale and after giving notice to grantor and to any
subordinate lienholder who has previously notified Beneficiary of the existence
of a subordinate lien, at least 20 days prior to the sale, and no other notice
of such sale shall be required.
Beneficiary
may be a purchaser at any such sale.
Any sale
made hereunder may be adjourned from time to time without notice other than by
oral proclamation of such adjournment at the time and place of sale, or at the
time and place of any adjourned sale.
Out of
the proceeds of such sale Trustee shall pay, first, the costs and expenses of
executing this trust, including a reasonable fee to Trustee, or to the one so acting, as his or their commission
hereunder; second, to Beneficiary and Trustee all moneys which they or any of
them may have paid for taxes, assessment or other governmental charges or fees,
insurance, repairs, court costs, and all other costs and expenses incurred or
paid under the provisions of this Deed of Trust, together with interest thereon
at the Default Rate from the date of payment; third, to Beneficiary the full
amount due and unpaid on the Note and all other indebtedness hereby secured,
together with all interest accrued thereon to date of payment; and fourth, the
balance, if any, to Grantor, its successors or assigns, upon delivery of and
surrender to the purchaser or purchasers of possession of the Mortgaged Property
less the expense, if any, of obtaining such possession.
In the
event that foreclosure proceedings are instituted hereunder but are not
completed, Trustee shall be reimbursed for all costs and expenses and a
reasonable fee for so acting in commencing and terminating such proceedings, and
all costs and expenses to incurred by trustee, together with interest thereon
until paid at the Default Rate, and said fee shall all be payable by Grantor on
demand, and shall be and become a part of the Debt and shall be collectible as
such.
Trustee
or if more than one is named as Trustee, the "Trustees," may act in the
execution of this trust, and in the event either of Trustees shall act alone,
the authority and power of the Trustee so acting shall be a full and complete as
if the powers and authority granted to Trustees herein jointly had been granted
to such Trustee alone; and either or both of Trustees are hereby authorized to
act by agent or attorney in the execution of this trust. It shall not
be necessary for any Trustee to be present in person at any foreclosure sale
hereunder.
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It is
expressly covenanted and agreed by all parties hereto that Beneficiary may, at
any time and from time to time hereafter, without notice, appoint and substitute
another Trustee or Trustees, corporations or persons, in place of the Trustee
herein named to execute the trust herein created. Upon such
appointment, either with or without a conveyance to said substituted Trustee or
Trustees by the Trustee herein named, or by any substituted Trustee in case the
said right of appointment is exercised more than once, the new and substituted
Trustee or Trustees in each instance shall be vested with all the rights,
titles, interests, powers, duties and trusts in the premises which are vested in
and conferred upon the Trustee herein named; and such new and substituted
Trustee or Trustees shall be considered the successors and assigns of the
Trustee who is named herein and substituted in his or her place and
stead. Each such appointment and substitution shall be evidenced by
an instrument in writing which shall recite the parties to, and the book and
page of record of, this Deed of Trust, and the description of the real property
herein described, which instrument, executed and acknowledged by Beneficiary or
by its successors or assigns and recorded in the office of the Clerk of the
County Commission of Monongalia County, West Virginia, shall be conclusive proof
of the property substitution and appointment of successor Trustee or Trustees,
and notice of such proper substitution and appointment to all parties in
interest.
Notwithstanding
any other provisions hereof to the contrary, a copy of any notice of trustee's
sale under this Deed of Trust shall be served on Grantor by certified mail,
return receipt requested, directed to Grantor at the address stated above on the
first page of this Deed of Trust or to such other address given to Beneficiary
in writing by Grantor, subsequent to the execution and delivery of this Deed of
Trust.
(c) All
remedies contained in this Deed of Trust are cumulative, and the Beneficiary
also has all other remedies provided by law or in equity or in any of the other
Loan Documents. No delay or failure by the Beneficiary to exercise
any right or remedy under this Deed of Trust will be construed to be a waiver of
that right or remedy or a waiver of any Event of Default. The
Beneficiary may exercise any one or more of its rights and remedies without
regard to the adequacy of its security.
18. The
Beneficiary's Right to Protect Security. The Beneficiary is
hereby authorized to do any one or more of the following, irrespective of
whether an Event of Default has occurred: (a) appear in and defend
any action or proceeding purporting to affect the security hereof or the rights
or powers of the Beneficiary hereunder; (b) take such action as the Beneficiary
may determine to pay, perform or comply with any Imposition, to cure any Event
of Default and to protect its security in the Property, advance sums on behalf
of the Grantor to pay, perform or comply with any Imposition, prohibited Lien,
claim, cost and expense in connection with the Property, including payment for
utilities, fuel or any other necessary maintenance expenses, fees, insurance and
repairs; and for the purpose of exercising any such powers the
Beneficiary is hereby appointed attorney-in-fact for the Grantor and is
authorized to pay or advance sums to meet necessary expenses and costs of
repair, employ counsel and pay reasonable attorneys' fees. All sums
paid by or otherwise owing to the Beneficiary under this Deed of Trust shall be
paid by the Grantor to the Beneficiary on demand, and until paid such sums shall
be added to the principal secured hereby, shall be and included as part of the
Obligations and shall bear interest at the Default Rate from the date of
demand.
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19. The
Beneficiary's Costs and Expenses. In the event of an Event of
Default or the exercise by the Beneficiary of any of its rights hereunder, or if
the Beneficiary shall become a party, either as plaintiff or defendant or
otherwise, to any suit or legal proceeding affecting any of the Property or the
Obligations, or if the Beneficiary's review and approval of any document,
including a Lease, is requested by the Grantor or required by the Beneficiary,
the Grantor shall pay to the Beneficiary, on demand, its costs, expenses and
reasonable attorneys fees incurred in connection therewith. If such
amounts are not paid, they shall be included as part of the Obligations and
shall bear interest at the Default Rate from the date of their
demand.
20. Security
Agreement Under Uniform Commercial Code. This Deed of Trust is
a Security Agreement as defined in the Uniform Commercial
Code. Notwithstanding the filing of a financing statement
covering any of the Property in the records normally pertaining to personal
property, at the Beneficiary's option all of the Property, for all purposes and
in all proceedings, legal or equitable, shall be regarded (to the extent
permitted by law), as part of the Realty whether or not any such item is
physically attached to the Realty or Improvements. The mention in any
such financing statement of any of the Property shall not be construed as in any
way altering any of the rights of the Beneficiary or adversely affecting the
priority of the Lien granted hereby or by any other Loan Document, but such
mention in the financing statement is hereby declared to be for the protection
of the Beneficiary in the event any court shall at any time hold that notice of
the Beneficiary's priority of interest, to be effective against any third party,
must be filed in the Uniform Commercial Code records.
21. The
Grantor's Existence. The Grantor and any subsequent owner of
the interest of the Grantor in the Property (other than an individual) shall do
all things necessary to preserve and keep in full force and effect its
existence, franchises, rights and privileges under the laws of the state of its
formation and its right to own property and transact business in the
jurisdiction or jurisdictions where the Property is located.
22. Representations
and Warranties. In addition to the general warranties and
representations contained in the Loan Agreement, the Grantor represents and
warrants that: (a) the Grantor is duly organized and validly existing under the
laws of the jurisdiction of its formation, as hereinabove stated; (b) the
Grantor has the requisite power to execute and perform this Deed of Trust and
the Obligations; (c) the transactions contemplated in this Deed of Trust are and
will be in all respects legal and not in violation of any Governmental Rule; (d)
all information, reports, papers and data given to the Beneficiary with respect
to any of the Property or the Grantor are accurate in all material respects and
complete insofar as completeness may be necessary to give the Beneficiary
accurate knowledge of the subject matter, and there has been no Material Adverse
Change in any condition or fact stated therein; (e) the Grantor is not a party
to or obligated under any instrument, and there is no litigation pending (or, to
the Grantor's knowledge, threatened), which does or might have a Material
Adverse Effect on the Grantor or any of the Property; (f) none of the Property
has been damaged by fire or other casualty which is not now fully restored; (g)
no notice of taking by eminent domain or condemnation of any of the Property has
been received, and the Grantor has no knowledge that any of such is
contemplated.
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23. Waivers
by the Grantor. The Grantor, to the extent permitted by law,
hereby waives all errors and imperfections in any proceedings instituted by the
Beneficiary under any of the Loan Documents and all benefit of any present or
future statute of limitations or moratorium law or any other present or future
law, regulation or judicial decision which (a) exempts any of the Property or
any other property, real or personal, or any part of the proceeds arising from
any sale thereof from attachment, levy or sale under execution, (b) provides for
any stay of execution, marshalling of assets, exemption from civil process,
redemption, extension of time for payment or valuation or appraisement of any of
the Property, or (c) conflicts with any provision of any of the Loan
Documents.
24. Notices.
(a) All
notices required to be delivered to the Grantor pursuant to this Deed of Trust
shall be in writing and shall be sent to the following address, by hand
delivery, recognized national overnight courier service, telex, telegram,
telecopier or other means of electronic data communication or by the United
States mail, first class, postage prepaid unless
another method of delivery is required by applicable law:
Morgantown
Mall Associates Limited Partnership
c/o
Glimcher Properties Limited Partnership
000 Xxxx
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxx,
XX 00000
Attention: General
Counsel
Telecopier:
(000) 000-0000
(b) All
notices required to be delivered to the Beneficiary pursuant to this Deed of
Trust shall be in writing and shall be sent to the following address, by hand
delivery, recognized national overnight courier service, telex, telegram,
telecopier or other means of electronic data communication or by the United
States mail, first class, postage prepaid:
First
Commonwealth Xxxx
Xxxxxxx
Xxxxxxx
X.X. Xxx
000
Xxxxxxx,
XX 00000-0000
Attention: Xxxxx
X. Xxxxxx
Telecopier: 000-000-0000
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With a copy
to:
Xxxxxx
Xxxxxxxxx, P.C.
0000 Xxx
XXX Xxxxx
Xxxxxxxxxx,
XX 00000
Attention: Xxxxxxx
X. Xxxxxx, Esquire
Telecopier: 000-000-0000
(c) All
notices required to be delivered to the Trustee
pursuant to this Deed of Trust shall be in writing and shall be sent to the
following address, by hand delivery, recognized national overnight courier
service, telex, telegram, telecopier or other means of electronic data
communication or by the United States mail, first class, postage prepaid unless
another method of delivery is required by applicable law:
Camden X. Xxxxxxxx,
Esquire
Xxxxxx Xxxx XxXxxxx Xxxxx & Love,
LLP
000 Xxxxxxxx Xxxxxx00
Xxxxxxxxxx,
Xxxx Xxxxxxxx 00000
(d) Unless otherwise provided by applicable
law, all such notices shall be effective three (3) days after mailing,
the date of telecopy transmission or when received, whichever is
earlier. The Grantor, the
Beneficiary and the Trustee may each change
the address for service of notice upon it by a notice in writing to the other
parties hereto.
25. Status of
Parties. It is understood and agreed that the relationship of
the parties is that of grantor and beneficiary and that nothing herein or in any
of the other Loan Documents shall be construed to constitute a partnership,
joint venture or co-tenancy between the Grantor and the
Beneficiary.
26. Severability. In
the event any one or more of the provisions contained in this Deed of Trust
shall, for any reason, be held to be inapplicable, invalid, illegal, or
unenforceable in any respect, such inapplicability, invalidity, illegality or
unenforceability shall not affect any other provision of this Deed of Trust, but
this Deed of Trust shall be construed as if such inapplicable, invalid, illegal
or unenforceable provision had never been contained herein or
therein.
27. Successors. All
of the grants, covenants, terms, provisions and conditions herein shall run with
the land and shall apply to, bind and inure to the benefit of, the successors
and assigns of the Grantor and the successors and assigns of the Beneficiary;
provided, however, that the Grantor may not assign this Deed of Trust without
the prior written consent of the Beneficiary.
28. Attorneys'
Fees. The terms "reasonable attorneys' fees" or "reasonable
counsel fees" as used in this Deed of Trust shall include, but not be limited
to, reasonable attorneys fees incurred in any and all judicial,
bankruptcy, reorganization, arbitration and any other proceedings, including
appellate proceedings, whether such proceedings arise before or after entry of a
final judgment.
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29. Acceleration. In
order to accelerate the maturity of the Obligations hereby secured because of
the failure of the Grantor to pay any tax assessment, liability, obligation or
encumbrance upon the Property as herein provided, it shall not be necessary nor
requisite that the Beneficiary shall first pay the same.
30. Foreclosure
Sale. In case any sale under this Deed of Trust occurs by
virtue of judicial proceedings, the Property may be sold in one parcel and as an
entity, or in such parcels, manner or order as the Beneficiary directs the Trustee in Beneficiary's sole
discretion may elect.
31. Assignment
of Note and/or Deed of Trust.
(a) The
Grantor agrees that nothing herein shall be deemed to prohibit the assignment or
negotiation, with or without recourse, of the Note or any future advances,
extensions, renewals or substitutions thereto or thereof, and any of the Loan
Documents or any interest of the Beneficiary therein, or the assignment of this
Deed of Trust, upon notice to the Grantor of such assignment or
negotiation.
(b) The
Grantor agrees that, if requested by the Beneficiary, the Grantor shall certify
to the assignee of this Deed of Trust, to the Beneficiary, and to such other
persons as the Beneficiary may reasonably request that this Deed of Trust is in
full force and effect, the amount or amounts of the principal balance due
hereunder, the terms of the Note and all such matters and in such form as the
Beneficiary or assignee may reasonably require. In the event that the
Grantor shall fail to so certify such matters within five (5) days after receipt
of the Beneficiary's written request therefor, the Grantor shall be deemed to be
in default under the terms of this Deed of Trust and the Note and the
Beneficiary may exercise any and all rights and remedies under the provisions
hereof.
32. Time of
Essence. Time is of the essence as to all of the Grantor's
obligations hereunder and under the Note secured hereby and under any and all of
the Loan Documents.
33. Miscellaneous. (a)
The section headings in this Deed of Trust are used only for convenience in
finding the subject matters and are not part of this Deed of Trust or to be used
in determining the intent of the parties or otherwise interpreting this Deed of
Trust; (b) as used in this Deed of Trust, the singular shall include the plural
as the context requires and the following words and phrases shall have the
following meanings: (i)"including" shall mean "including but not
limited to", (ii) "provisions" shall mean "provisions, terms, covenants and/or
conditions", (iii) "obligation" shall mean "obligation, duty, covenant and/or
condition", (iv) "any of the Property " shall mean" the Property or any part
thereof or interest therein", and (v) "tenant" shall mean "tenant and/or
subtenant and/or occupant and/or user of any of the Property"; (c) any act which
the Beneficiary is permitted to perform under the Loan Documents may be
performed at any time and from time to time by the Beneficiary or any Person
designated by the Beneficiary; (d) each appointment of the Beneficiary as
attorney-in-fact for the Grantor, under the Loan Documents is irrevocable and
coupled with an interest; (e) except as otherwise specified herein, the
Beneficiary has the right to refuse to grant its consent whenever such consent
is required under the Loan Documents; (f) this Deed of Trust may be modified,
amended, discharged or waived only by an agreement in writing signed by all of
the parties hereto; and (g) the covenants of this Deed of Trust shall run with
the land and bind the Grantor, and the respective successors and assigns of the
Grantor, and all present and subsequent encumbrances, tenants and subtenants of
any of the Property, and shall inure to the benefit of the Beneficiary, its
successors and assigns.
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34. Defeasance. If
the Grantor pays to the Beneficiary in full the Obligations in accordance with
the provisions of the Loan Documents, then this Deed of Trust shall become
void.
35. Appointment
of Successor Trustee. If the Trustee shall become disqualified
from acting in the execution of this trust, or shall fail or refuse to execute
the same when requested by the Beneficiary to do so; or if, for any reason, the
Beneficiary shall prefer to appoint a substitute Trustee to act instead of the
Trustee named herein, the Beneficiary shall have full power to appoint, by
written instrument, a substitute Trustee, and, if necessary, several substitute
Trustees in succession, who shall succeed to all the estate, rights, powers and
duties of the original Trustee named herein. Such appointment may be
executed by any officer of the Beneficiary and 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
Beneficiary.
The
Trustee may at any time, by an instrument in writing, constitute the
Beneficiary, or its successors or assigns, his agent or attorney in fact with
full power and authority to the extent which may be permitted by law, to do any
and all acts and exercise any and all discretion which the Trustee is permitted
to do or exercise, for and in his behalf and in his name.
36. Entire
Agreement. This Deed of Trust will be binding upon and inure
to the benefit of the Grantor and the Beneficiary and their respective heirs,
executors, administrators, successors and assigns; provided, however, that all of
the representations, indemnity, warranties, terms, conditions, provisions and
covenants set forth in the Environmental Indemnity Agreement are incorporated
herein by reference as if set forth herein.
37. Defined
Terms. Any capitalized term used in this Deed of Trust which
is not defined herein shall have the meaning ascribed to it in the Loan
Documents.
38. Governing
Law and Jurisdiction. This Deed of Trust has been delivered to
and accepted by the Beneficiary and will be deemed to be made in the State where
the Beneficiary's office indicated above is located. THIS DEED OF TRUST WILL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE GRANTOR AND THE BENEFICIARY
DETERMINED IN ACCORDANCE WITH THE LAWS OF PENNSYLVANIA, EXCEPT THAT THE LAWS OF
THE STATE OF WEST VIRGINIA SHALL GOVERN THE CREATION, PERFECTION AND FORECLOSURE
OF THE LIENS CREATED HEREUNDER ON THE PROPERTY OR ANY INTEREST
THEREIN. The Grantor hereby irrevocably consents to the
exclusive jurisdiction of any state or federal court for the county or judicial
district where the Beneficiary's office indicated above is located, and consents
that all service of process be sent by nationally recognized overnight courier
service directed to the Grantor at the Grantor's address set forth herein and
service so made will be deemed to be completed on the business day after deposit
with such courier; provided that nothing contained in this Deed of Trust will
prevent the Beneficiary from bringing any action, enforcing any award or
judgment or exercising any rights against the Grantor individually, against any
security or against any property of the Grantor within any other county, state
or other foreign or domestic jurisdiction. The Grantor acknowledges
and agrees that the venue provided above is the most convenient forum for both
the Beneficiary and the Grantor. The Grantor waives any objection to
venue and any objection based on a more convenient forum in any action
instituted under this Deed of Trust.
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39. Waiver of
Jury Trial. THE GRANTOR IRREVOCABLY WAIVES ANY
AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM
OF ANY NATURE RELATING TO THIS DEED OF TRUST, ANY DOCUMENTS EXECUTED IN
CONNECTION WITH THIS DEED OF TRUST OR ANY TRANSACTION CONTEMPLATED IN ANY OF
SUCH DOCUMENTS. THE GRANTOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS
KNOWING AND VOLUNTARY.
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-20-
IN
WITNESS WHEREOF, this Deed of Trust and Security Agreement has been executed and
delivered by the parties hereto as of the date of their respective
acknowledgements attached hereto, but effective as of the date first above
written.
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ATTEST/WITNESS:
______________________________________
Name:
Title:
|
MORGANTOWN
MALL ASSOCIATES LIMITED
PARTNERSHIP,
an Ohio limited partnership
By: GLIMCHER
MORGANTOWN MALL, INC.,
a
Delaware corporation, its general partner
By: GLIMCHER
PROPERTIES CORPORATION,
a
Delaware corporation, its sole shareholder
By: ______________________(SEAL)
Name: Xxxx
X. Xxxx
Title: Executive
Vice President, Chief
Financial
Officer and Treasurer
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ACKNOWLEDGEMENT
__________________
OF
________________ )
) SS:
COUNTY OF
__________________
)
On
this, the ____ day of October, 2008, before me, a Notary Public, personally
appeared Xxxx X. Xxxx, who acknowledged himself to be the Executive Vice
President, Chief Financial Officer and Treasurer of Glimcher Morgantown Mall,
Inc., a Delaware corporation, the general partner of Morgantown Mall Associates
Limited Partnership an Ohio limited partnership, and that he as such officer,
being authorized to do so, executed the foregoing instrument for the purposes
therein contained, by signing the name of Morgantown Mall Associates Limited
Partnership by himself as such officer.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal the day and year first
above written.
_______________________________
Notary
Public
My
Commission Expires:
This instrument was prepared
by:
Xxxx X. Xxxxxxx, Esquire
Xxxxxx Xxxxxxxxx, P.C.
0000 Xxx XXX
Xxxxx
Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
EXHIBIT
A
Legal
Description of the Land
A tract
of land situated in Grant District Monongalia County, West Virginia near the
Interstate I-79 Interchange No. 152 and the City of Xxxxxxxx, being more
particularly bounded and described as follows:
Beginning
at a point #1, said point being South 62° 59' 10" West - 308.61' from the
Southwest corner of Chuck’s Furniture Property and being North 55° 11' 54" West
- 1579.76' from the intersection of Xx. 00 & Xx. 00, thence
North 26°
43' 30" West - 640.40' to point #2, thence with Lot #1
South
09°36' 27" West - 36.92' to point #99, thence
South 60°
31' 14" West - 102.00' to point #27, thence
North 59°
54' 14" West - 59.00' to point #26, thence
North 16°
23' 20" West - 177.20' to point #25, thence
North 52°
07' 30" East - 91.22' to point #3, thence with Mall R/W
North 40°
53' 20" West - 216.90' to point #4, thence
North 46°
07' 20" West - 216.40' to point #5, thence with Lot #2
South 37°
54' 08" West - 91.22' to point #30, thence
North 77°
05' 30" West - 147.70' to point #29, thence
North 25°
15' 50" West - 32.10' to point #28, thence
North 35°
56' 30" East - 100.00' to point #6, thence with Mall R/W
North 82°
00' 00" West - 108.06' to point #7, thence
South 69°
18' 25" West - 625.37' to point #23, thence
South 10°
06' 40" West - 370.01' to point #240, thence
South 27°
53' 50" West - 216.39' to point #150, thence
South 11°
45' 55" West - 332.50' to point #151, thence
South 19°
33' 24" East - 436.20' to point #160, thence
South 71°
17' 36" East - 122.63' to point #161, thence
South 35°
23' 00" East - 227.68' to point #17, thence
North 89°
59' 56" East - 397.00' to point #18, thence
South 60°
16' 00" East - 614.96' to point #19, said point being
North 66°
00' 00" East - 319.63' from an iron pin Northeast corner of Xxxxxxx Hills
Cemetery, thence
North 65°
53' 20" East - 428.37' to point #20, thence
North 49°
18' 16" East - 197.84' to point #21, thence
North 14°
48' 03" East - 254.44' to point #22, thence
North 21°
41' 15" West - 378.83' to the beginning containing 59.37 acres
more or less
NOTE: Point equals
iron pin
SOURCES OF TITLE: Deed Book
989, Page 319, and Deed Book 1020, Page 557.
EXHIBIT
“A” - Legal Description of the Land - Continued...
PROPERTY
DESCRIPTION (LOT #1) FOR MORGANTOWN MALL
A tract
of land situated in Grant District, Monongalia County, West Virginia, and being
more particularly bounded and described as follows:
Beginning
at point #2 in line of Mall R/W, thence with same
North 36°
16' 10" West - 209.60' to point #3, thence with Mall Property
South 52°
07' 30" West - 91.22' to point #25, thence
South 16°
23' 20" East - 177.20' to point #26, thence
South 59°
54' 14" East - 59.00' to point #27, thence
North 60°
31' 14" East - 102.00' to point #99, thence
North 09°
36' 27" East - 36.92' to the beginning, containing 0.66 acres more or
less
NOTE: Point equals
iron pin
SOURCES OF
TITLE: Deed Book 989, Page 319, and Deed
Book 1020, Page 557.
PROPERTY
DESCRIPTION (LOT #2) FOR MORGANTOWN MALL
A tract
of land situated in Grant District, Monongalia County, West Virginia, and being
more particular bounded and described as follows:
Beginning
at point #5 in line of Mall R/W, thence with same
North 65°
23' 20" West - 170.50' to point #6, thence with Mall Property
South 35°
56' 30" West - 100.00' to point #28, thence
South 25°
15' 50" East - 32.10' to point #29, thence
South 77°
05' 30" East - 147.70' to point #30, thence
North 37°
54' 08" East - 91.22' to the beginning, containing 0.40 acres more or
less.
NOTE: Point equals
iron pin
SOURCES OF
TITLE: Deed Book 989, Page 319, and Deed
Book 1020, Page 557.
PROPERTY DESCRIPTION FOR
MORGANTOWN MALL SIGN PARCEL
A tract
or parcel of real estate situate, lying and being in Grant District, Monongalia
County, West Virginia, and more particularly bounded and described as
follows:
Continued….
EXHIBIT
“A” - Legal Description of the Land - Continued...
PROPERTY DESCRIPTION FOR
MORGANTOWN MALL SIGN PARCEL - Continued…
Beginning
at a point in the western existing right-of-way line of U.S. Route 19, said
point being in the division line between Tracts 3 and 4 and 157 feet radially
left of relocated Monongalia County Route 46 centerline at Station 2+00, Project
X000-00-0.00, Xxxxxxxxxx Xxxxxx, Xxxx Xxxxxxxx; thence N. 87° 57' E. with said
division line 59.64 feet to a point 132 feet radially left of centerline at
Station 1+55; thence N.
55° 15' 15" E. continuing with said division line 78.81 feet to a point in the
southern proposed non-controlled access right-of-way line of relocated
Monongalia County Route 46, said point being 66 feet radially left of centerline
at Station 1+15; thence S. 67° 03' 00" E. with said proposed right-of-way line
49.20 feet to a point 70 feet left of and at right angle to centerline at
Station 0+70; thence S. 29° 18' 29" E. continuing with said proposed
right-of-way line 11.32 feet to a point in the western revised right-of-way line
of U.S. Route 19, said point being 64 feet left of and at right angle to U.S.
Route 19 centerline at Station 9+41; thence S. 04° 31' 35" W. with said proposed
right-of-way line 32.22 feet to a point 58feet left of and at right angle to
centerline at Station 9+10; thence S. 14° 59' 48" W. continuing with said
proposed right-of-way line 73.15 feet to a point 56 feet left of and at right
angle to centerline at Station 8+36; thence S. 25° 11' 42" W. continuing with
said proposed right-of-way line 184.97 feet to a point in the western existing
right-of-way line of U.S. Route 19, said point being 60 feet radially left of
centerline at Station 6+27; thence N. 16° 33' 45" W. with said existing
right-of-way line 263.08 feet to the place of beginning, and containing 0.62
acre, more or less.
NOTE: Point equals
iron pin
SOURCES OF TITLE: Deed Book
No. 1023, at Page 373, and Deed Book No. 1023, at Page 383.
PROPERTY
DESCRIPTION OF MALL AND COMMONS ROAD RIGHT OF WAY
Beginning
at a point #124 in proposed new R/W of relocated Route 46 Department of Highway
Division Line, thence
North 39°
26' 25" East 138.00' to point #105, thence
North 59°
51' 58" West 203.97' to point #57, thence
North 31°
07' 28" West 534.03' to point #60, thence with Chuck’s Furniture
P/L
North 37°
50' 59" East 25.43' to point #87, thence with X.X. Xxxxxxxxx P/L
North 72°
49' 22" West 84.73' to point #88, thence
North 51°
46' 23" West 140.87' to point #89, thence
North 41°
45' 02" West 258.91' to point #90, thence
Continued...
EXHIBIT
“A” - Legal Description of the Land - Continued...
PROPERTY
DESCRIPTION OF MALL AND COMMONS ROAD RIGHT OF WAY, Continued...
North 32°
30' 47" West 382.68' to point #64, thence
North 41°
19' 59" West 515.23' to point #91, thence
North 07°
59' 08" East 154.31' to point #92, said point being in the existing R/W of Rt.
46, thence with said existing R/W
South 59°
39' 24" West 95.00' to point #93, thence
South 80°
31' 58" West 54.76' to point #94, thence
North 88°
39' 25" West 87.94' to point #95, thence
North 77°
15' 17" West 86.12' to point #96, thence
North 72°
22' 06" West 135.36' to point #97, thence
North 69°
35' 24" West 229.40' to point #98, thence leaving existing R/W, thence to the
Morgantown Mall Property
North 81°
36' 00" West 212.91' to point #170, thence
South 50°
35' 57" East 68.00' to point #9, thence with the Mall Property
South 29°
44' 42" East 120.93' to point #8, thence
South 67°
35' 45" East 406.73' to point #7, thence
South 82°
00' 00" East 108.06' to point #6, thence with Lot #2
South 65°
23' 20" East 170.50' to point #5, thence with the Mall P/L
South 46°
07' 20" East 216.40' to point #4, thence
South 40°
53' 20" East 216.90' to point #3, thence with Lot #1
South 36°
16' 10" East 209.60' to point #2, thence with the Mall P/L
Continued...
EXHIBIT
“A” - Legal Description of the Land - Continued...
PROPERTY
DESCRIPTION OF MALL AND COMMONS ROAD RIGHT OF WAY, continued...
South 26°
43' 30" East 640.40' to point #1, thence leaving the Morgantown Mall Property
and with X.X. Xxxxx, Xx. Property
South 48°
03' 16" East 504.16 to point #51, thence
South 54°
28' 52" East 325.26' to the beginning, containing 11.24 acres more or
less
NOTE: Point equals
iron pin
SOURCE OF
TITLE: Deed Book 996, Page 407, and
Deed Book 1020, Page 577.
DESCRIPTION
OF POND PARCEL
Beginning
at point #400, a concrete monument in existing X-00 xxx Xx. 00 Xxxxxxxxxxx X/X,
thence with said R/W
South 20°
04' 09" East - 329.19' to point #222, thence
South 60°
43' 49" East - 64.21' to point #103, thence
South 30°
45' 12" West - 54.17' to point #104, thence
South 39°
26' 25" West - 124.50' to point #105, thence
North 59°
51' 58" West - 203.97' to point #57, thence
North 31°
07' 28" West - 534.03' to point #60, thence
South 78°
56' 37" East - 397.64' to the beginning, and containing 3.26 acres more or
less
LESS AND
EXCEPT THE FOLLOWING:
Situate
in Grant District, Monongalia County, West Virginia, being part a parcel now or
formerly owned by Morgantown Mall Associates Limited Partnership, said parcels
being described in Deed Book No. 1039, page 32, and recorded in the Office of
the Clerk of the County Commission of Monongalia County, West Virginia and more
particularly described as follows:
Beginning
at a point in the westerly line of land now or formerly owned by Xxxxxxx
Properties, LLC (Deed Book No. 1327, Page 144) and land now or formerly owned by
Morgantown Mall Associates Limited Partnership (Deed Book No. 1039, page 32)
bearing N 77° 27' 52" E, 162.04 feet from a 5/8 inch iron bar (found), said iron
bar being a common corner of land now or formerly owned by said Morgantown Mall
Associates Limited Partnership (Deed Book No. 1023, page 383) and land now or
formerly owned by Xxxxxxxx Xxxxxxxxx (Deed Book No. 1092, page
558),
Thence
with two (2) lines with said Xxxxxxx S 20° 10' 38" E, 272.46 feet to
point;
Continued...
EXHIBIT
“A” - Legal Description of the Land - Continued...
LESS AND EXCEPT THE
FOLLOWING, Continued...:
Thence S
60° 50' 20" W, 64.19 feet to a 5/8 inch iron bar (found), said iron bar being
the southeasterly corner of said Xxxxxxx and the southeasterly corner of said
Morgantown Mall, said point also being a common corner of the westerly line of
West Virginia
Secondary Xxxxx Xx. 00;
Thence
with two (2) lines with said Morgantown and said Xxxxx Xx. 00 S 31° 01' 05" W,
52.37 feet to a point;
Thence S
39° 33' 02" W, 124.71 feet to a point, said point being a common corner of said
Morgantown Mall and other lands now or formerly owned by said Morgantown Mall
Associates Limited Partnership (Deed Book No. 989, page 319);
Thence
with a common line of the said Morgantown (Deed Book No. 989, page 319) N 59°
55' 13" W, 75.79 feet to a point;
Thence
with fourteen (14) lines through said Morgantown Mall (Deed Book No. 1039, page
32); N 29° 24' 27" E, 35.45 feet to a 5/8" point;
Thence S
76° 03' 41" E, 23.44 feet to a point;
Thence N
78° 41' 21" E, 26.35 feet to a point;
Thence N
46° 49' 57" E, 27.00 feet to a point;
Thence N
21° 05' 01" E, 65.40 feet to a point;
Thence N
08° 36' 33" E, 26.60 feet to a point;
Thence N
20° 09' 00" W, 64.69 feet to a point;
Continued...
EXHIBIT
“A” - Legal Description of the Land - Continued...
LESS
AND EXCEPT THE FOLLOWING, Continued...:
Thence N
33°04' 29" W, 54.18 feet to a point;
Thence N
29° 59' 53" W, 56.63 feet to a point;
Thence N
81° 35' 17" W, 34.25 feet to a point;
Thence S
75°25' 35" W,33.21 feet to a point;
Thence
with a curve to the right having a radius of 20.00 feet, an arc length of 37.83
feet and a chord bearing and distance of N 50° 23' 30" W, 32.44 feet
to a point;
Thence N
03° 47' 26" E, 61.28 feet to a point;
Thence
with a curve to the right having a radius of 10.00 feet, an arc length of 13.43
feet and a chord bearing and distance of N 42° 15' 58" E, 12.44 feet to a
point;
Thence
with a line through said Morgantown Mall N 80° 44' 30" E, 68.40 feet to the
point of beginning, containing 20,438 square feet or 0.47 acres, more or
less.
NOTE: Point equals
iron pin
SOURCES OF
TITLE: Deed Book 1039, Page
32
EXHIBIT
“A” - Legal Description of the Land - Continued...
DESCRIPTION
OF STORM DRAINAGE EASEMENT THROUGH PARCEL #2
Beginning
at a point #107 in Mall Property, thence
North 84°
23' 45" East - 175.37' to point #108, thence
South 45°
13' 16" East - 62.37' to point #109, thence
South 84°
23' 45" West - 201.29' to point #106, thence
North 21°
41' 15" West - 50.00' to the beginning, and containing 0.21 acres more or
less
SOURCE OF
TITLE: Deed Book 1020, Page
557.
EXHIBIT
“A” - Legal Description of the Land - Continued...
DESCRIPTION
OF STORM DRAINAGE EASEMENT THROUGH RIGHT OF WAY
Beginning
at a point #108 in Mall Road Right of Way, thence
North 84°
23' 45" East - 217.40' to point #187, thence
South 31°
07' 25" East - 53.24' to point #188, thence
South 84°
23' 45" West - 200.57' to point #109, thence
North 45°
13' 16" West - 62.37' to the beginning, and containing 0.23 acres more or
less
SOURCE OR
TITLE: Deed Book 1020, Page
577.
