Exhibit 10.9
THIS INSTRUMENT PREPARED
BY AND AFTER RECORDING
MAIL TO:
Xxxxxxx Xxxxxxxx, Esq.
Xxxxxxx & Xxxxx
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
EASTLAND MALL LIMITED PARTNERSHIP,
A Delaware limited partnership
(Grantor)
to
M. XXX XXXXXXX, as Trustee
(Trustee)
for the benefit of
THE CAPITAL COMPANY OF AMERICA LLC
(Beneficiary)
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DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS
SECURITY AGREEMENT AND FIXTURE FILING
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Dated: As of August 11, 1998
Property Location: 0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx
COLLATERAL IS ON INCLUDES FIXTURES
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (this "Deed of Trust"), made as of August 11, 1998, by EASTLAND
MALL LIMITED PARTNERSHIP, a Delaware limited partnership, having an office at
Two World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000 ("Grantor"), to
M. XXX XXXXXXX, as Trustee ("Trustee") for the benefit of THE CAPITAL COMPANY OF
AMERICA, a Delaware limited liability company (together with its successors and
assigns, small hereafter be referred to a "Beneficiary"), having its principal
place of business at Two World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx
00000.
Grantor and Beneficiary have entered into a Loan Agreement dates as of
the date hereof (as amended, modified, restated, consolidated or supplemented
from time to time, the "Loan Agreement") pursuant to which Beneficiary is making
a secured loan to Grantor (the "Loan") and is concurrently therewith advancing
to Grantor Premium Consideration (as defined in the Loan Agreement), and the
original principal amount of the loan and the amount of the Premium
Consideration total Forty Eight Million Seven Hundred Fifty Thousand Dollars
($48,750,000)), all of which proceeds have been disbursed to Borrower
concurrently with the recording of this Mortgage. Capitalized terms used herein
without definition are used as defined in the Loan Agreement. The Loan is
evidence by a Note dated the date hereof made by Grantor to Beneficiary in such
principal amount (as the same may be amended, modified, restated, severed,
consolidated, renewed, replaced, or supplemented from time to time, the "Note").
To secure the payment of the Note and all sums which may or shall become
due hereunder (including, but not limited to, the Unreturned Premium
Consideration) or under any of the other documents evidencing, securing or
executed in connection with the Loan (the Note, this Deed of Trust, the Loan
Agreement and such other documents, as any of the same may, from time to time,
be modified, amended or supplemented, being hereinafter collectively referred to
as the "Loan Documents"), including (i) the payment of interest and other
amounts which would accrue and become due but for the filing of a petition in
bankruptcy (whether or not a claim is allowed against Grantor for such interest
or other amounts in any such bankruptcy proceeding) or the operation of the
automatic stay under Section 362(a) of Title 11 of the United States Code the
"Bankruptcy Code"), and (ii) the costs and expenses of enforcing any provision
of any Loan Document (all such sums being hereinafter collectively referred to
as the "Debt"), Grantor has given, granted, bargained, sold, alienated,
enfeoffed, conveyed, confirmed, warranted, pledged, assigned and hypothecated
and by these presents does hereby give, grant, bargain, sell, alien, enfeoff,
convey, confirm, warrant, pledge, assign and hypothecate unto Trustee, in trust
for the benefit of Beneficiary, WITH POWER OF SALE, the land described in
Exhibit A (the "Premises") and the buildings, structures, fixtures and other
improvements now or hereafter located thereon (the "Improvements");
TOGETHER WITH: all right, title, interest and estate of Grantor now
Premises owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements, and the property, rights,
interests and estates hereinafter described are collectively referred to herein
as the "Trust Property"):
(a) all easements, rights-of-way, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights and
powers, air rights and development rights, rights to oil, gas, minerals, coal
and other substances of any kind or character, and all estate, rights, titles,
interests, privileges, liberties, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way belonging, relating or pertaining to the
Premises and the Improvements; and the reversion and reversions, remainder and
remainders, and all land lying in the bed of any street, road, highway, alley or
avenue, opened, vacated or proposed, in from of or adjoining the Premises, to
the center line thereof; and all the estates, rights, titles, interest, dower
and rights of dower, courtesy and rights of courtesy, property, possession,
claim and demand whatsoever, both at low and in equity, of Grantor of, in and to
the Premises and the Improvements and every part and parcel thereof, with the
appurtenances thereto;
(b) all machinery, furniture, furnishings, equipment, computer software
and hardware, fixtures (including, without limitation, all heating, air
conditioning, plumbing, lighting, communications and elevator fixtures),
inventory, materials, supplies, and other articles of personal property and
accessions thereof, renewals and replacements thereof and substitutions
therefore, and other property of every kind and nature, tangible or intangible,
owned by Grantor, or in which Grantor has or shall have an interest, now or
hereafter located upon the Premises or the Improvements, or appurtenant thereto,
and usable in connection with the present or future operation and occupancy of
the Premises and the Improvements (hereinafter collectively referred to as the
"Equipment"), including any leases of, deposits in connection with, and proceeds
of any sale or transfer of, any of the foregoing, and the right, title and
interest of Grantor in and to any of the Equipment that may be subject to any
"security interest" as defined in the Uniform Commercial Code, as in effect in
the State where the Trust Property is located (the "Ucc"), superior in lien to
the lien of this Deed of Trust;
(c) all awards or payments, including interest thereon, that may
heretofore or hereafter be made with respect to the Premises or the
Improvements, whether from the exercise of the right of eminent domain or
condemnation (including, without limitation, any transfer made in lieu of or in
anticipation of the exercise of such right), or for a change of grade, or for
any other injury to or decrease in the value of the Premises or Improvements;
(d) all leases and other agreements or arrangements heretofore or
hereafter entered into affecting the use, enjoyment or occupancy of, or the
conduct of any activity upon or in, the Premises or the Improvements, including
any extensions, renewals, modifications or amendments thereof (hereinafter
collectively referred to as the "Leases") and all rents, rent equivalents,
moneys payable as damages or in lieu of rent or rent equivalents, royalties
(including, without limitation, all oil and gas or other mineral royalties and
bonuses), income, receivables, receipts, revenues, deposits (including, without
limitation, security, utility and other deposits), accounts, cash, issues,
profits, charges for services rendered, and other consideration of whatever form
or nature received by or paid to or for the account of or benefit of Grantor or
its agents or employees from any and all sources arising from or attributable to
the Premises and the
Improvements, including, without limitation, all receivables, customer
obligations, installment payment obligations and other obligations now existing
or hereafter arising or created out of the sale, lease, sublease, license,
concession or other grant of the right of the use and occupancy of property, and
proceeds, if any, from business interruption or other loss of income insurance
(hereinafter collectively referred to as the "RENTS"), together with all
proceeds from the sale or other disposition of the Leases and the right to
receive and apply the Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any insurance policies
covering the Trust Property, including, without limitation, the right to receive
and apply the proceeds of any insurance, judgments, or settlements made in lieu
thereof, for damage to the Trust Property;
(f) the right, in the name and on behalf of Grantor, to appear in and
defend any action or proceeding brought with respect to the Trust Property and
to commence any action or proceeding to protect the interest of Beneficiary in
the Trust Property;
(g) all accounts (including, without limitation, reserve accounts),
escrows, documents, instruments, chattel paper, claims, deposits and general
intangibles, as the foregoing terms are defined in the UCC, and all franchises,
trade names, trademarks, symbols, service marks, books, records, plans,
specifications, designs, drawings, surveys, title insurance policies, permits,
consents, licenses, management agreements, contract rights (including, without
limitation, any contract with any architect or engineer or with any other
provider of goods or services for or in connection with any construction, repair
or other work upon the Trust Property), approvals, actions, refunds of real
estate taxes and assessments (and any other governmental impositions related to
the Trust Property), and causes of action, that now or hereafter relate to, are
derived from or are used in connection with the Trust Property, or the use,
operation, maintenance, occupancy or enjoyment thereof of the conduct of
business or activities thereon (hereinafter collectively referred to as the
"Intangibles"); and
(h) all proceeds, products, offspring, rents and profits from any of the
foregoing, including, without limitation, those from sale, exchange, transfer,
collection, loss, damage, disposition, substitution or replacement of any of the
foregoing.
Without limiting the generality of any of the foregoing, in the event that a
case under the Bankruptcy Code is commenced by or against Grantor, pursuant to
Section 552(b)(2) of the Bankruptcy Code, the security interest granted by this
Deed of Trust shall automatically extend to all Rents acquired by the Grantor
after the commencement of the case and shall constitute cash collateral under
Section 363(a) of the Bankruptcy Code.
TO HAVE AND TO HOLD the Trust Property unto Trustee, in trust for the
benefit of Beneficiary and its successors and assigns, forever;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Grantor shall well and truly pay to Beneficiary the Debt at the time and in
the manner
provided in the Loan Documents and shall well and truly abide by and comply with
each every covenant and condition set forth in the Loan Documents in a timely
manner, these presents and the estate hereby granted shall cease, terminate and
be void;
AND Grantor represents and warrants to and covenants and agrees with
Beneficiary and Trustee as follows:
PART I - GENERAL PROVISIONS
1. Payment of Debt and Incorporation of Covenants, Conditions and
Agreements. Grantor shall pay the Debt at the time and in the manner provided in
the Loan Documents. All the covenants, conditions and agreements contained in
the Loan Documents are hereby made a part of the Deed of trust to the same
extent ad with the same force as if fully set forth herein. Without limiting the
generality of the foregoing, Grantor (i) agrees to insure, repair, maintain and
restore damage to the Trust Property, pay Taxes and Other Charges, and comply
with Legal Requirements, in accordance with the Loan Agreement, and (ii) agrees
that the proceeds of insurance and Awards for Condemnation shall be settled,
held and applied in accordance with the Loan Agreement.
2. Leases and Rents. (a) Grantor does hereby absolutely and
unconditionally assign to Beneficiary all of the Grantor's right, title and
interest in all current and future Leases and Rents, it being intended by
Grantor that this assignment constitutes a present, absolute assignment and not
an assignment for additional security only. Such assignment shall not be
construed to bind Beneficiary to the performance of any of the covenants or
provisions contained in any Lease or otherwise impose any obligation upon
Beneficiary. Nevertheless, subject to the terms of this paragraph, Beneficiary
grants to Grantor a revocable license to operate and manage the Trust Property
and to collect the Rents subject to the requirements of the Loan Agreement
(including the deposit of Rents into the Clearing Accounts). Upon an Event of
Default, without the need for notice or demand, the license granted to Grantor
herein shall automatically be revoked, and Beneficiary shall immediately be
entitled to possession of all Rents in the Clearing Accounts, the Deposit
Account (including all Subaccounts thereof) and all Rents collected thereafter
(including Rents past due and unpaid), whether or not Beneficiary enters upon or
takes control of the Trust Property. Grantor hereby grants and assigns to
Beneficiary the right, at is option, upon revocation of the license granted
herein, to enter upon the Trust Property in person, by agent or by
court-appointed receiver to collect the Rents. Any Rents collected after the
revocation of such license may be applied toward payment of the Debt in such
priority and proportions as Beneficiary in its sole discretion shall deem
proper.
(b) Grantor shall not enter into, modify, amend, cancel, terminate or
renew any Lease except as hereinafter provided. Upon request, Grantor shall
furnish to Beneficiary executed copies of all Leases. All Leases shall be in a
standard form approved by Beneficiary, and be on commercially reasonable terms,
and shall provide that they are subordinate to this Deed of Trust and that the
lessee agrees to attorn to Beneficiary. Each lease for retail use shall require
continued operation of the tenant's
business on the Premises, and reasonably restrict competing business by such
tenant near the Premises. None of the Leases shall contain (i) any option to
purchase, (ii) any right of first refusal to purchase, (iii) any right to
terminate the lease term (except in the event of the destruction of all or
substantially all of the Trust Property), (iv) any requirement that Grantor
obtain a non-disturbance or recognition agreement or (v) any term that would
materially adversely affect Beneficiary's rights under the Loan Documents,
without, in each case, the prior consent of Beneficiary. Each lessee shall
conduct business only in that portion of the Improvements covered by its Lease.
(c) Grantor may enter into a proposed new Lease or a proposed
modification, renewal or extension of an existing Lease, without the prior
consent of Beneficiary as permitted under the terms of the Loan Agreement.
Grantor may enter into a proposed Lease or a modification, renewal or extension
that does not satisfy all the conditions in the foregoing sentence only with the
prior consent of Beneficiary, which may not e unreasonably withheld or delayed.
Beneficiary's failure to approve or disapprove final execution copies of any
proposed new Lease, modification, renewal or extension within 30 days after
Beneficiary's receipt thereof shall be deemed to constitute Beneficiary's
approval thereof, provided Grantor shall have promptly furnished to Beneficiary
any pertinent information reasonably requested by Beneficiary in connection with
is consideration.
(d) Grantor (i) shall observe and perform the material obligations
imposed upon the lessor under the Leases and shall not do or permit anything to
impair the value of the Leases as security for the Debt; (ii) shall promptly
send copies to Beneficiary of all notices of default that Grantor shall send or
receive thereunder; (iii) shall enforce, in accordance with commercially
reasonable practices for properties similar to the Trust Property, the terms,
covenants and conditions in the Leases to be observed or performed by the
lessees, short of termination thereof; (iv) shall not collect any of the Rents
more than one month in advance (other than security deposits); (v) shall not
execute any other assignment of lessor's interest in the Leases r the Rents
(except as contemplated by the Loan Documents); (vi) shall not modify any Lease
in a manner inconsistent with the Loan Documents; (vii) shall not convey or
transfer or suffer or permit a conveyance or transfer of the Trust Property so
as to effect a merger of the estates ad rights of, or a termination or
diminution of the obligations of, lessees under Leases; (viii) shall not consent
to any assignment of or subletting under any Lease (other than a Lease that did
not require the prior consent of Beneficiary pursuant to Paragraph 2(c) above)
not in accordance with its terms without the prior consent of Beneficiary, which
may not be unreasonably withheld or delayed; and (ix) shall not cancel or
terminate any Lease or accept a surrender thereof without the prior consent of
Beneficiary, which may not be unreasonably withheld or delayed.
3. Use of Trust Property. Grantor shall not initiate, join in, acquiesce
in, or consent to any change in any private restrictive covenant, zoning law or
other public or private restriction, limiting or defining the uses which may be
made of the Trust Property. If under applicable zoning provisions the use of the
Trust Property is or shall become a nonconforming use, Grantor shall not cause
or permit such nonconforming use to be
discontinued or abandoned without the consent of Beneficiary. Grantor shall not
(i) change the use of the Trust Property, (ii) permit or suffer to occur any
waste on or to the Trust Property or (iii) take any steps to convert the Trust
Property to a condominium or cooperative form of ownership.
4. Transfer or Encumbrance of the Trust Property. (a) Grantor
acknowledges that (i) Beneficiary has examined and relied on the
creditworthiness and experience of the principals of Grantor in owning and
operating properties such as the Trust Property in agreeing to make the Loan,
(ii) Beneficiary will continue to rely on Grantor's ownership of the Trust
Property as a means of maintaining the value of the Trust Property as security
for the Debt, and (iii) Beneficiary has a valid interest in maintaining the
value of the Trust Property so as to ensure that, should Grantor default in the
repayment of the Debt, Beneficiary can recover the Debt by a sale of the Trust
Property or any part thereof, or suffer or permit any Transfer to occur, other
than a Permitted Transfer.
(b) Beneficiary shall not be required to demonstrate any actual
impairment of its security or any increased risk of default hereunder in order
to declare the Debt immediately due and payable upon Transfer in violation of
this Paragraph 4. This provision shall apply to every sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Trust Property (and
every other Transfer) regardless of whether voluntary or not. Any Transfer made
in contravention of the Paragraph 4 shall be null and void and of no force and
effect. Grantor agrees to bear and shall pay or reimburse Beneficiary on demand
for all reasonable expenses (including, without limitation, reasonable
attorneys' fees and disbursements, title search costs and title insurance
endorsement premiums) incurred by Beneficiary in connection with the review,
approval and documentation of any Permitted Transfer.
5. Changes in Laws Regarding Taxation. If any low is enacted or adopted
or amended after the date of this Deed of Trust which deducts the Debt from the
value of the Trust Property for the purpose of taxation or which imposes a tax,
either directly or indirectly, on the Debt or Beneficiary's interest in the
Trust Property, Grantor will pay such tax, with interest and penalties thereon,
if any. If Beneficiary is advised by its counsel that the payment of such tax or
interest and penalties by Grantor would be unlawful, taxable to Beneficiary or
unenforceable, or would provide the basis for a defense of usury, then
Beneficiary shall have the option, by notice of not less than 90 days, to
declare the Debt immediately due and payable.
6. No Credits on Account of the Debt. Grantor shall not claim or demand
or be entitled to any credit on account of the Debt for any part of the Taxes or
Other Charges assessed against the Trust Property, and no deduction shall
otherwise be made or claimed from the assessed value of the Trust Property for
real estate tax purposes by reason of this Deed of Trust or the Debt. If such
claim, credit or deduction shall be required by law, Beneficiary shall have the
option, by notice of not less than 90 days, to declare the Debt immediately due
and payable.
7. Further Acts, Etc. Grantor shall, at its sole cost, do execute,
acknowledge and deliver all and every such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment, transfers and assurances as
Beneficiary shall, from time to time, require, for the better assuring,
conveying, assigning, transferring, and confirming unto Beneficiary the property
and rights hereby mortgaged, given, granted, bargained, sold, alienated,
enfeoffed, conveyed, confirmed, pledged, assigned and hypothecated or intended
now or hereafter so to be, or which Grantor may be or may hereafter become bound
to convey or assign to Beneficiary, or for carrying out the intention or
facilitating the performance of the terms of this Deed of trust, or for filing,
registering or recording this Deed of Trust or for facilitating the sale and
transfer of the Loan and the Loan Documents in connection with a "Secondary
Market Transaction" as described in Section 9.1 of the Loan Agreement. Upon
foreclosure, the appointment of a receiver or any other relevant action, Grantor
shall, at its sole cost, cooperate fully and completely to effect the assignment
or transfer of any license, permit, agreement or any other right necessary or
useful to the operation of the Trust Property. Grantor grants to Beneficiary an
irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to
Beneficiary pursuant to this paragraph. Notwithstanding anything to the contrary
in the immediately preceding sentence, Beneficiary shall not execute any
document as attorney-in-fact of Grantor unless (x) Grantor shall have failed or
refused to execute the same with five (5) Business Days after Beneficiary's
request therefore, or (y) in Beneficiary's good faith determination it would be
materially prejudiced by the delay involved in making such a request.
8. Recording of Deed of Trust, Etc. 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 a lien or
security interest or evidencing the lien hereof upon the Trust 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 or security interest
hereof upon, and the interest of Beneficiary in, the Trust Property. Grantor
shall pay all filing, registration or recording fees, all expenses incident to
the preparation, execution and acknowledgment of and all federal, state, county
and municipal, taxes, duties, imposts, documentary stamps, assessments and
charges arising out or of in connection with the execution and delivery of, this
Deed of Trust, any deed of trust supplemental hereto, any security instrument
with respect to the Trust Property or any instrument to further assurance,
except where prohibited by law so to do. Grantor shall hold harmless and
indemnify Beneficiary, its successors and assigns, against any liability
incurred by reason of the imposition of any tax o the making or recording of
this Deed of Trust.
9. Right to Cure Defaults. Upon the occurrence of any Event of Default,
Beneficiary may, but without any obligation to do so and without notice to or
demand on Grantor and without releasing Grantor from any obligation hereunder,
perform the obligations in Default in such manner and to such extent as
Beneficiary may deem necessary to protect the security hereof. Beneficiary is
authorized to enter upon the Trust
Property for such purposes or appear in, defend or bring any action or
proceeding to protect its interest in the Trust Property or to foreclose this
Deed of Trust or collect the Debt, and the cost and expense thereof (including
reasonable attorneys' fees and disbursements to the extent permitted by law),
with interest thereon incurred to the date of payment to Beneficiary, shall
constitute a portion of the Debt, shall be secured by this Deed of Trust and the
other Loan Documents and shall be due and payable to Deed of Trust upon demand.
10. Remedies. (a) Upon the occurrence of any Event of Default,
Beneficiary or Trustee as appropriate may take such action, without notice or
demand, as it deems advisable to protect and enforce its rights against Grantor
and in and to the Trust Property, by Beneficiary itself, Trustee or otherwise,
including, without limitation, the following actions, each of which may be
pursued concurrently or otherwise, at such time and in such order as Beneficiary
or Trustee may determine, in their sole discretion, without impairing or
otherwise affecting the other rights and remedies of Beneficiary or Trustee:
(i) declare the entire Debt to be immediately due and payable;
(ii) institute a proceeding or proceedings, judicial or nonjudicial,
to the extent permitted by law, by advertisement or otherwise,
for the complete foreclosure of this Deed of Trust, in which
case the Trust Property may be sold for cash or upon credit in
one or more parcels or in several interests or portions and in
any order or manner;
(iii) with or without entry, to the extent permitted and pursuant to
the procedures provided by applicable law, institute proceedings
for the partial foreclosure of this Deed of Trust for the
portion of the Debt then due and payable, subject to the
continuing lien of this Deed of Trust for the balance of the
Debt not then due;
(iv) sell for cash or upon credit the Trust Property and all estate,
claim, demand, right, title and interest of Grantor therein and
rights of redemption thereof, pursuant to the power of sale, to
the extent permitted by law, or otherwise, at one or more sales,
as an entirety or in parcels, at such time and place, upon such
terms and after such notice thereof as may be required or
permitted by law;
(v) institute an action, suit or proceeding in equity for the
specific performance of any covenant, condition or agreement
contained herein or in any other Loan Document;
(vi) recover judgment on the Note either before, during or after any
proceeding for the enforcement of this Deed of Trust;
(vii) apply for the appointment of a trustee, receiver, liquidator or
conservator of the Trust Property, without notice and without
regard for the adequacy of the security for the Debt and without
regard for the solvency of the Grantor or of any person, firm or
other entity liable for the payment of the Debt;
(viii) enforce Beneficiary's interest in the Leases and Rents and enter
into or upon the Trust Property, either personally or by its
agents, nominees or attorneys and dispossess Grantor and its
agents and employees therefrom, and thereupon Beneficiary may
(A) use, operate, manage, control, insure, maintain, repair,
restore and otherwise deal with the Trust Property and conduct
the business thereat; (B) complete any construction on the Trust
Property in such manner and form as Beneficiary deems advisable;
(C) make alterations, additions, renewals, replacements and
improvements to or on the Trust Property; (D) exercise all
rights and powers of Grantor with respect to the Trust Property,
whether in the name of Grantor or otherwise, including, without
limitation, the right to make, cancel, enforce or modify Leases,
obtain and evict tenants, and demand, xxx for, collect and
receive Rents; and (E) apply the receipts from the Trust
Property to the payment of the Debt, after deducting therefrom
all expenses (including reasonable attorneys' fees and
disbursements) incurred in connection with the aforesaid
operations and all amounts necessary to pay the Taxes, insurance
and other charges in connection with the Trust Property, as well
as just and reasonable compensation for the services of
Beneficiary, and its counsel, agents and employees;
(ix) require Grantor to pay monthly in advance to Beneficiary, or any
receiver appointed by collect the Rents, the fair and reasonable
rental value for the use and occupation of any portion of the
Trust Property occupied by Grantor, and require Grantor to
vacate and surrender possession of the Trust Property to
Beneficiary or to such receiver, and, in default thereof, evict
Grantor by summary proceedings or otherwise; or
(x) pursue such other rights and remedies as may be available at law
or in equity or under the UCC, including, without limitation,
the right to receive and/or establish a lock box for all Rents
and proceeds from the Intangibles and any other receivables or
rights to payments of Grantor relating to the Trust Property.
In the event of a sale, by foreclosure or otherwise, of less than all of the
Trust Property, this Deed of Trust shall continue as a lien on the remaining
portion of the Trust Property.
(b) The proceeds of any sale made under or by virtue of this Paragraph
10, together with any other sums which then may be held by Beneficiary under
this Deed of Trust, whether under the provisions of this paragraph or otherwise,
shall be applied by
Beneficiary to the payment of the Debt in such priority and proportion as
Beneficiary in its sole discretion shall deem proper.
(c) Beneficiary or Trustee as appropriate may adjourn from time to time
any sale by it to be made under or by virtue of this Deed of Trust by
announcement at the time and place appointed for such sale or for such adjourned
sale or sales; and, except as otherwise provided by an applicable law,
Beneficiary or Trustee as appropriate, without further notice or publication,
may make such sale at the time and place to which the same shall be so
adjourned.
(d) Upon the completion of any sale or sales pursuant hereto, Trustee,
Beneficiary, or an officer of any court empowered to do so, shall execute and
deliver to the accepted purchaser or purchasers a good and sufficient
instrument, or good and sufficient instruments, conveying, assigning and
transferring all estate, right, title and interest in and to the property and
rights sold. Beneficiary is hereby irrevocably appointed the true and lawful
attorney of Grantor, in its name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the Trust Property and rights so sold
and for that purpose Beneficiary may execute all necessary instruments of
conveyance, assignment and transfer, and may substitute one or more persons with
like power, Grantor hereby ratifying and confirming all that its said attorney
or such substitute or substitutes shall lawfully do by virtue hereof. Any sale
or sales made under or by virtue of this Paragraph 10, whether made under the
power of sale herein granted or under or by virtue of judicial proceedings or of
a judgment or decree of foreclosure and sale, shall operate to divest all the
estate, right, title, interest, claim and demand whatsoever, whether at law or
in equity, of Grantor in and to the properties and rights so sold, and shall be
a perpetual bar both at law and in equity against Grantor and against any all
persons claiming or who may claim the same, or any part thereof, from, through
or under Grantor.
(e) Upon any sale made under or by virtue of this Paragraph 10, whether
made under a power of sale or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale, Beneficiary may bid for and acquire
the Trust Property or any part thereof and in lieu of paying cash therefore may
make settlement for the purchase price by crediting upon the Debt the net sales
price after deducting therefrom the expenses of the sale and costs of the action
and any other sums which Beneficiary is authorized to deduct under this Deed of
Trust or any other Loan Document.
(f) No recovery of any judgment by Beneficiary and no levy of an
execution under any judgment upon the Trust Property or upon any other property
of Grantor shall affect in any manner or to any extent the lien of this Deed of
Trust upon the Trust Property or any part thereof, or any liens, rights, powers
or remedies of Beneficiary hereunder, but such liens, rights, powers and
remedies of Beneficiary shall continue unimpaired as before.
(g) Beneficiary or Trustee may terminate or rescind any proceeding or
other action brought in connection with its exercise of the remedies provided in
this Paragraph
10 at any time before the conclusion thereof, as determined in Beneficiary's
sole discretion and without prejudice to Beneficiary.
(h) Beneficiary may resort to any remedies and the security given by
this Deed of Trust or in any other Loan Document in whole or in part, and in
such portions and in such order as determined by Beneficiary's sole discretion.
No such action shall in any way be considered a waiver of any rights, benefits
or remedies evidenced or provided by any Loan Document. The failure of
Beneficiary to exercise any right, remedy or option provided in any Loan
Document shall not be deemed a waiver of such right, remedy or option or of any
covenant or obligation secured by any Loan Document. No acceptance by
Beneficiary of any payment after the occurrence of any Event of Default and no
payment by Beneficiary of any obligation for which Grantor is liable hereunder
shall be deemed to waive or cure any Event of Default, or Grantor's liability to
pay such obligation. No sale of all or any portion of the Trust Property, no
forbearance on the part of Beneficiary, and no extension of time for the payment
of the whole or any portion of the Debt or any other indulgence given by
Beneficiary to Grantor, shall operate to release or in any manner affect the
interest of Beneficiary in the remaining Trust Property or the liability of
Grantor to pay the Debt. No waiver by Beneficiary shall be effective unless it
is in writing and then only to the extent specifically stated. All costs and
expenses of Beneficiary in exercising its rights and remedies under this
Paragraph 10 (including reasonable attorneys' fees and disbursements to the
extent permitted by law), shall be paid by Grantor immediately upon notice from
Beneficiary, with interest at the Default Rate for the period after notice from
Beneficiary, and such costs and expenses shall constitute a portion of the Debt
and shall be secured by this Deed of Trust.
(i) The interests and rights of Beneficiary under the Loan Documents
shall not be impaired by any indulgence, including (i) any renewal, extension or
modification which Beneficiary may grant with respect to any of the Debt, (ii)
any surrender, compromise, release, renewal, extension, exchange or substitution
which Beneficiary may grant with respect to the Trust Property or any portion
thereof or (iii) any release or indulgence granted to any maker, endorser,
guarantor or surety of any of the Debt.
11. Right of Entry. In addition to any other rights or remedies granted
under this Deed of Trust, Beneficiary and its agents shall have the right to
enter and inspect the Trust Property at any reasonable time during the term of
this Deed of Trust. The cost of such inspections or audits shall be borne by
Grantor should Beneficiary determine that an Event of Default exists, including
the cost of all follow up or additional investigations or inquiries deemed
reasonably necessary by Beneficiary. The cost of such inspections, if not paid
for by Grantor following demand, may be added to the principal balance of the
sums due under the Note and this Deed of Trust and shall bear interest
thereafter until paid at the Default Rate.
12. Security Agreement. This Deed of trust is both a real property deed
of trust and a "security agreement" within the meaning of the UCC. The Trust
Property includes both real and personal property and all other rights and
interests, whether tangible or intangible in nature, of Grantor in the Trust
Property. Grantor by executing and delivering this Deed of Trust has granted and
hereby grants to Beneficiary, as security for
the Debt, a security interest in the Trust Property to the full extent that the
Trust Property may be subject to the UCC (such portion of the Trust Property so
subject to the UCC being called in this paragraph the "Collateral"). This Deed
of Trust shall also constitute a "fixture filing" for the purposes of the UCC.
As such, this Deed of Trust covers all items of the Collateral that are or are
to become fixtures. Information concerning the security interest herein granted
may be obtained from the parties at the addresses of the parties set forth in
the first paragraph of this Deed of Trust. If an Event of Default shall occur,
Beneficiary, in addition to any other rights and remedies which it may have,
shall have and may exercise immediately and without demand, any and all rights
and remedies granted to a secured party upon default under the UCC, including,
without limiting the generality of the foregoing, the right to take possession
of the Collateral or any part thereof, and to take such other measures as
Beneficiary may deemed necessary for the care, protections and preservation of
the Collateral. Upon request or demand of Beneficiary, Grantor shall at its
expense assemble the Collateral and make it available to Beneficiary at a
convenient place acceptable to Deed of trust. Grantor shall pay to Beneficiary
on demand any all expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by Beneficiary in protecting the interest in the
Collateral and in enforcing the rights hereunder with respect to the Collateral.
Any notice of sale, disposition or other intended action by Beneficiary with
respect to the Collateral, sent to Grantor in accordance with the provisions
hereof at least ten days prior to such actions, shall constitute commercially
reasonable notice to Grantor. The proceeds of any disposition of the Collateral,
or any part thereof, may be applied by Beneficiary to the payment of the Debt in
such priority and proportions as Beneficiary in its sole discretion shall deem
proper. In the event of any change in name, identity or structure of Grantor,
Grantor shall notify Beneficiary thereof and promptly after request shall
execute, file and record such UCC forms as are necessary to maintain the
priority of Beneficiary's lien upon and security interest in the Collateral, and
shall pay all expenses and fees in connection with the filing and recording
thereof. If Beneficiary shall require the filing or recording of additional UCC
forms or continuation statements, Grantor shall, promptly after request,
execute, file and record such UCC forms or continuation statements as
Beneficiary shall deem necessary, and shall pay all expenses and fees in
connection with the filing and recording thereof, it being understood and
agreed, however, that such additional documents shall increase Grantor's
obligations under the Loan Documents. Grantor hereby irrevocably appoints
Beneficiary as its attorney-in-fact, coupled with an interest, to file with the
appropriate public office on its behalf any financing or other statements signed
only Beneficiary, as secured party, in connection with the Collateral covered by
this Deed of Trust.
13. Actions and Proceedings. Beneficiary has the right to appear in and
defend any action or proceeding brought with respect to the Trust Property and
to bring any action or proceeding, in the name and on behalf of Grantor, which
Beneficiary, in its sole discretion, decides should be brought to protect its or
their interest in the Trust Property. Beneficiary shall, at its option, be
subrogated to the lien of any deed of trust or other security instrument
discharged in whole or in part by the Debt, and any such subrogation rights
shall constitute additional security for the payment of the Debt.
14. Marshalling and Other Matters. Grantor hereby waives, to the extent
permitted by law, the benefit of all appraisement, valuation, stay, extension,
reinstatement and redemption laws now or hereafter in force and all rights of
marshalling in the event of any sale hereunder of the Trust Property or any part
thereof or any interest therein. Further, Grantor hereby expressly waives any
and all rights of redemption from sale under any order or decree of foreclosure
of this Deed of Trust on behalf of Grantor, and on behalf of each and every
person acquiring any interest in or title to the Trust Property subsequent to
the date of this Deed of Trust and on behalf of all persons to the extent
permitted by applicable law. The lien of this Deed of Trust shall be absolute
and unconditional and shall not in any manner be affected or impaired by any
acts or missions whatsoever of Beneficiary and, without limiting the generality
of this foregoing, the live hereof shall not be impaired by (i) any acceptance
by Beneficiary of any other security for any portion of the Debt, (ii) any
failure, neglect or omission on the part of Beneficiary to realize upon or
protect any portion of the Debt or any collateral security therefore or (iii)
any release (except as to the property released), sale, pledge, surrender,
compromise, settlement, renewal, extension, indulgence, alteration, changing,
modification or disposition of any portion of the Debt or of any of the
collateral security therefore; and Beneficiary may foreclose, or exercise any
other remedy available to Beneficiary under other Loan Documents without first
exercising or enforcing any of its remedies under this Deed of Trust, and any
exercise of the rights and remedies of Beneficiary hereunder shall not in any
manner impair the Debt or the liens of any other Loan Document or any of
Beneficiary's rights and remedies thereunder.
15. Notices. All notices, consents, approvals and requests required or
permitted hereunder shall be in writing, and shall e sent, and shall be deemed
effective, as provided in the Loan Agreement.
16. Inapplicable Provisions. If any term, covenant or condition of the
Deed of trust is held to be invalid, illegal or unenforceable in any respect,
this Deed of Trust shall be construed without such provision.
17. Headings. The paragraph headings in this Deed of Trust are for
convenience of reference only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof.
18. Duplicate Originals. This Deed of trust may be executed in any
number of duplicate originals and each such duplicate original shall be deemed
to be an original.
19. Definitions. Unless the context clearly indicates a contrary intent
or unless otherwise specifically provided herein, words used in this Deed of
Trust may be used interchangeably in singular or plural form; and the "Grantor"
shall mean "each Grantor and any subsequent owner or owners of the Trust
Property or any part thereof or any interest therein," the work "Beneficiary"
shall mean "Beneficiary and any subsequent holder of the Note," the words "Trust
Property" shall include any portion of the Trust Property and any interest
therein, and the words "Attorneys' Fees" include attorneys' fees actually
incurred at standard hourly rates without regard to any statutory presumption
including, without limitation, fees at the pre-trial and appellate levels
incurred or paid by Beneficiary in protecting its interest in the Trust Property
and Collateral and enforcing its rights hereunder.
20. Homestead. Grantor hereby waives and renounces all homestead and
exemption rights provided by the Constitution and laws of the United States and
of any state, in and to the Trust Property as against the collection of the
Debt, or any part thereof.
21. Assignments. Beneficiary shall have the right to assign or transfer
its rights under this Deed of Trust without limitation. Any assignee or
transferee shall be entitled to all the benefits afforded Beneficiary under this
Deed of trust.
22. Waiver of Jury Trial. GRANTOR HEREBY AGREES NOT TO ELECT A TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL OW OR HEREAFTER EXIST WITH
REGARD TO THIS DEED OF TRUST OR ANY OTHER LOAN DOCUMENT, OR ANY CLAIM,
COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY GRANTOR, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. BENEFICIARY IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY GRANTOR.
23. Consents. Any consent or approval by Beneficiary in any single
instance shall not be deemed or construed to be Beneficiary's consent or
approval in any like matter arising at a subsequent date, and the failure of
Beneficiary to promptly exercise any right, power, remedy, consent or approval
provided herein or at law or in equity shall not constitute or be construed as a
waiver of the same nor shall Beneficiary be stopped from exercising such right,
power, remedy, consent or approval at a later date. Any consent or approval
requested of and granted by Beneficiary pursuant hereto shall be narrowly
construed to be applicable only to Grantor and the matter identified in such
consent or approval and no third party shall claim any benefit by reason
thereof, and any such consent or approval shall not be deemed to constitute
Beneficiary a venturer or partner with Grantor nor shall privity of contract be
presumed to have been established with any such third party. If Beneficiary
deems it to be in its best interest to retain assistance of persons, firms or
corporations (including, without limitation, attorneys, title insurance
companies, appraiser, engineers and surveyors) with respect to a request for
consent or approval, Grantor shall reimburse Beneficiary for all costs
reasonably incurred in connection with the employment of such persons, firms or
corporations.
24. Employee Benefit Plan. During the term of this Deed of Trust, unless
Beneficiary shall have previously consented in writing, (i) Grantor shall take
no action
that would cause it to become an "Employee Benefit Plan" as defined in 29 C.F.R.
Section 2510.3-101, or "Assets of a Governmental Plan" subject to regulation
under the state statutes, and (ii) Grantor shall not sell, assign or transfer
the Trust Property, or any portion thereof or interest therein, to any
transferee that does not execute and deliver to Beneficiary its written
assumption of the obligations of the covenant. Grantor shall protect, defend,
indemnify and hold Beneficiary harmless from and against all loss, cost, damage
and expense (including without limitation, all attorneys' fees and excise taxes,
costs of correcting any prohibited transaction or obtaining an appropriate
exemption) that Beneficiary may incur as a result of Grantor's breach of this
covenant. This covenant and indemnity shall survive the extinguishment of the
lien of this Deed of Trust by foreclosure or action in lieu thereof,
furthermore, the foregoing indemnity shall supersede any limitations on
Grantor's liability under any of the Loan Documents.
25. Loan Repayment and Defeasance. Provided no Event of Default exists,
this Deed of Trust will be satisfied and discharged of record by Beneficiary
prior to the Maturity Date only in accordance with the terms and provisions set
forth in Section 2.3 of the Loan Agreement.
26. Governing Law. WITH RESPECT TO MATTERS RELATING TO THE CREATION,
PERFECTION AND PROCEDURES RELATING TO THE ENFORCEMENT OF THIS DEED OF TRUST,
THIS DEED OF TRUST SHALL BE GOVERNED BY, AND BE CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IT BEING UNDERSTOOD
THAT, EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS PARAGRPH AND TO THE FULLEST
EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF ILLINOIS
SHALL GOVERN ALLO MATERES RELATING TO THIS DEED OF TRUST AND THE OTHER LOAN
DOCUMETNS AND ALL OF THE IDNEBTEDNESS OR OBLIGATIONS ARISING HEREUNDER OR
THEREUNDER. ALL PROVISIONS OF THE LOAN AGREEMENT INCORPORATED HEREIN BY
REFERENCE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF TH
STATE OF ILLINOIS, AS SET FORTH IN THE GOVERNING LAW PROVISION OF THE LOAN
AGREEMENT.
27. Exculpation. The liability of Grantor hereunder is limited pursuant
to Section 10.1 of the Loan Agreement.
28. Trustee; Successor Trustee. Trustee shall not be liable for any
error of judgment or act done by Trustee, or be otherwise responsible or
accountable under any circumstances whatsoever, except if the result of
Trustee's gross negligence or willful misconduct. Trustee shall not be
personally liable in case of entry by it or anyone acting by virtue of the power
herein granted it upon the Trust Property for debts contracted or liability or
damages incurred in the management or operation of the Trust Property. Trustee
shall have the right to rely on any instrument, document or signature
authorizing or supporting any action take or proposed to be taken by it
hereunder or believed by it be genuine. Trustee shall be entitled to
reimbursement for actual expenses incurred by it in
the performance of its duties hereunder to reasonable compensation for such of
its services hereunder as shall be rendered. Grantor will, from time to time,
reimburse Trustee for and save and hold it harmless form and against any all
loss, cost liability, damage and reasonable expense whatsoever incurred by it in
the performance of its duties. All monies 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 monies
(except to the extent required by law) and Trustee shall be under no liability
for interest o any monies received by it hereunder. Trustee may resign by giving
of notice of such resignation in writing to Beneficiary. If Trustee shall resign
or become disqualified from acting in the execution of this trust or shall fail
or refuse to exercise the same when requested by Beneficiary or if for any or no
reason and without cause Beneficiary shall prefer to appoint a substitute
trustee to act instead of the original Trustee named herein, or any prior
successor or substitute trustee, Beneficiary shall, without any formality or
notice to Grantor or any other person, have full power to appoint a substitute
trustee and, if Beneficiary so elects, several substitute trustees in succession
who shall succeed to all the estate, rights, powers and duties of the
aforementioned Trustee. Any new 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 it he rights hereunder with like effect as if originally named as
Trustee herein; but, nevertheless, upon the written request of the Beneficiary
or his successor trustee, Trustee ceasing to act shall execute and deliver an
instrument transferring to such successor trustee, upon the trust herein
expressed, all the estates, properties, rights, powers and trusts of Trustee so
ceasing to act, and shall duly assign, transfer and deliver any of the property
and monies held by Trustee to the successor trustee to so appointed in its or
his place. Trustee may authorize one or more parties to act on its behalf to
perform the ministerial function required of hereunder, including without
limitation, the transmittal and posting of any notices.
PART II
SPECIAL STATE PROVISIONS
29. Remedies. Beneficiary may elect to have Trustee cause the Trust
Property or any part thereof to be sold under the power of sale herein granted
in any manner permitted by applicable law relating to nonjudicial foreclosure
sales on the date foreclosure is commend. In connection with any sale or sales
hereunder, Trustee may treat any of the Trust Property which consists of a right
in action or which is property that can be severed from the land covered hereby
or any Improvements thereon without causing structural damage thereto in
accordance with applicable law, separate and apart from the sale of land. Any
sale of any personal property hereunder shall be conducted din any manner
permitted by the laws of the State of North Carolina. Should Trustee elect to
sell the Trust Property, or any part thereof, which is land as provided above,
Trustee shall give such notice of default and hearing and election to sell as
may then be required by law, and without the necessity of any demand on Grantor,
Trustee, at the and place specified in the notice of sale, shall sell the Trust
Property or any part thereof at
public auction to the highest bidder for cash in lawful money of the United
States payable at time of sale. Trustee may, from time to time, postpone any
sale hereunder by public announcement thereof at the time and place noticed
therefore or by giving notice of the time and place of the postponed sale in the
manner required by law. If the Trust Property consists of several lots, parcels
or items of property, Trustee may designate the order in which such lots,
parcels or items shall be offered for sale or sold. Any person, including
Beneficiary, may purchase at any sale hereunder, and Beneficiary shall have the
right or purchase at any sale hereunder by crediting upon the bid price the
amount of all or any part of the indebtedness hereby secured plus interest, late
charges, prepayment fees, and reasonable attorneys' fees and trustees' fees, as
herein provided. Should Trustee desire that more than one sale or other
disposition of the Trust Property be conducted, Trustee may, at its option,
cause the same to be conducted simultaneously, or successively, on the same, or
at such different times and in such order as Trustee may deem to be beneficial,
and no such sale shall terminate or otherwise affect the lien of this Deed of
Trust on any part of the default of any purchaser, Trustee shall have the right
to resell the Trust Property as set forth above. Trustee may require the
successful bidder at any sale to deposit immediately with Trustee cash or
certified check in an amount not to exce3ed ten percent (10%) of the bid,
provided notice of such requirement is contained in the advertisement of sale.
The bid may be rejected if the deposit is not immediately made and, thereupon,
the next highest bidder may be declared to be the purchaser. Such deposit shall
be refunded in case a resale is had; otherwise, it shall be applied to the
purchase price. Upon any sale hereunder, Trustee shall execute and deliver to
the purchase or purchasers a deed or deeds conveying the property so sold, but
without any covenant or warranty whatever, express or implied, whereupon such
purchaser or purchasers shall be entitled to immediate possession; and the
recitals of facts in any such deed or deeds such as default, the giving of
notice of default and notice of sale, and other facts affecting the regularity
or validity of such sale or disposition, shall be conclusive proof of the truth
of such facts and any such deed or deeds shall be conclusive against all persons
as to such facts recited therein. Trustee shall be entitled to a reasonable
commission for its services as provided by law. Trustee shall apply the proceeds
of sale first to the Trustee's commissions and any attorney's fees for attorneys
retained by Trustee, second to expenses of foreclosure and sale, third to the
obligations secured by this Deed of Trust and the remainder as required by law.
(Signatures follow on attached page
IN WITNESS WHEREOF, Grantor has executed this instrument as of the day
and year first above written.
GRANTOR:
EASTLAND MALL LIMITED
PARTNERSHIP, a Delaware limited partnership
By: EASTLAND RETAIL CORP., a Delaware
corporation, its sole general partner
By: /s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Affix corporate seal
Attest: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
State of New York
County of New York
I, Xxxxxx Xxxxxxxx, a Notary Public, do hereby certify that Xxxxxx
Xxxxxxx who is the Secretary of Eastland Retail Corp. which is the sole general
partner of Eastland Mall Limited Partnership, a Delaware limited partnership,
personally came before me this day and acknowledged that she is the Secretary of
the Corporation and that, by authority given and as the act of the Corporation,
the foregoing instrument was signed in its name by its Vice President, sealed
with its corporate seal, and attested by herself as its corporate Secretary.
Witness my hand notarial seal, this the 12th day of August, 1998.
/s/ Xxxxxx Xxxxxxxx
-------------------
Notary Public
