Prepared outside the Commonwealth by: When recorded please return to:
Xxx Xxxxx, Esq. Flagler Title Insurance Company
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, LLP
8000 Sears Tower ____________________________
233 South Xxxxxx
Chicago, Illinois 60606 ____________________________
____________________________
Tax Map No: 14-64
EXHIBIT 10.37
THE TOTAL AMOUNT SECURED BY THE DEED OF TRUST (AS DEFINED
HEREINBELOW) IS LIMITED TO THE PRINCIPAL AMOUNT OF $2,800,000.00
PLUS ALL COSTS AND EXPENSES, AS MORE PARTICULARLY SET FORTH IN
THE DEED OF TRUST.
THIS IS A CREDIT LINE DEED OF TRUST
CREDIT LINE DEED OF TRUST
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND
FIXTURE FILING
MADE BY
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
AS GRANTOR
TO
ALEXANDER TITLE AGENCY, INCORPORATED
AS TRUSTEE
FOR THE BENEFIT OF
KEYBANK NATIONAL ASSOCIATION
AS BENEFICIARY
Dated as of: October 17, 2003
Twin County Mall, Galax, Virginia
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CREDIT LINE DEED OF TRUST
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND
FIXTURE FILING
Project Commonly Known As
"Twin County Mall, Galax, Virginia"
THIS CREDIT LINE DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT
AND FIXTURE FILING (this "Deed of Trust") is made as of October __, 2003, by
Glimcher Properties Limited Partnership, a limited partnership organized under
the laws of the State of Delaware ("Grantor") whose address is 000 Xxxx Xxx
Xxxxxx, Xxxxxxxx, Xxxx 00000, in favor of ALEXANDER TITLE AGENCY, INCORPORATED,
a Virginia Corporation, its successors and assigns ("Trustee") whose address is
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, XxXxxx, Xxxxxxxx, 00000, for the benefit of
KEYBANK NATIONAL ASSOCIATION, as administrative agent for itself and one or more
Lenders (as defined in that certain Credit Agreement bearing the date October
__, 2003 by and between Glimcher Properties Limited Partnership, a Delaware
limited partnership (the "Borrower"), such Lenders and KEYBANK NATIONAL
ASSOCIATION, as administrative agent, hereinafter the "Credit Agreement"),
(together with its successors and assigns, the "Beneficiary"), whose address is
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000; the addresses of the Lenders being set
forth in Exhibit B to this Deed of Trust.
1. GRANT AND SECURED OBLIGATIONS.
1.1 Grant. Xxxxxxxx has executed and delivered to the Lenders
certain promissory notes and may in the future execute and deliver to the
Lenders additional promissory notes (the promissory notes, made in favor of the
Lenders, together with any amendments or allonges thereto, or restatements,
replacements or renewals thereof, or new promissory notes to new Lenders under
the Credit Agreement, are collectively referred to herein as the "Notes"), in
and by which the Borrower promises to pay the principal of all Loans under such
Credit Agreement and interest at the rate and in installments as provided in the
Notes, with a final payment of the outstanding principal balance and accrued and
unpaid interest being due on or before October __, 2006. The maximum aggregate
principal amount of the Loans evidenced by the Notes shall be $150,000,000.
However, the maximum principal amount of the indebtedness secured by this Deed
of Trust is $2,800,000. The indebtedness secured hereby shall be governed by the
terms and conditions of the Credit Agreement. To the extent there may be any
inconsistency between the terms and provisions of this Deed of Trust and the
terms and provisions of the Credit Agreement, the terms and provisions of the
Credit Agreement shall govern and control. All capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to such terms in the
Credit Agreement.
In consideration of the debt evidenced by the Notes and the Commitments
evidenced by the Credit Agreement and to secure the timely payment of both
principal and interest in accordance with the terms and provisions of the Notes
and in accordance with the terms, provisions and limitations of this Deed of
Trust, to secure the payment of any and all amounts advanced by the
Administrative Agent or the Lenders with respect to the Premises for the payment
of taxes, assessments, insurance premiums or any other costs incurred in the
protection of the Premises, and to secure the performance of the covenants and
agreements contained herein
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and in the Notes, the Credit Agreement, the Guaranty, the Subsidiary Guaranty
and any other documents evidencing and securing the loan secured hereby or
delivered to Beneficiary pursuant to the Credit Agreement (collectively, the
"Loan Documents") to be performed by Grantor, and to secure all Rate Management
Transactions entered into with the Administrative Agent or any of the Lenders in
connection with the Credit Agreement, and for the purpose of securing payment
and performance of the Secured Obligations defined and described in Section 1.2
below, Grantor hereby irrevocably and unconditionally grants, bargains, sells,
conveys, mortgages and warrants to Beneficiary, with power of sale and with
right of entry and possession, all estate, right, title and interest which
Grantor now has or may later acquire in and to the following property (all or
any part of such property, or any interest in all or any part of it, as the
context may require, the "Property"):
(a) The real property located in the County of Xxxxxxx,
Commonwealth of Virginia , as described in Exhibit A, together with all existing
and future easements and rights affording access to it (the "Premises");
together with
(b) All buildings, structures and improvements now
located or later to be constructed on the Premises (the "Improvements");
together with
(c) All existing and future appurtenances, privileges,
easements, franchises and tenements of the Premises, including all minerals,
oil, gas, other hydrocarbons and associated substances, sulphur, nitrogen,
carbon dioxide, helium and other commercially valuable substances which may be
in, under or produced from any part of the Premises, all development rights and
credits, air rights, water, water rights (whether riparian, appropriative or
otherwise, and whether or not appurtenant) and water stock, and any Premises
lying in the streets, roads or avenues, open or proposed, in front of or
adjoining the Premises and Improvements; together with
(d) All existing and future leases, subleases,
subtenancies, licenses, occupancy agreements and concessions ("leases") relating
to the use and enjoyment of all or any part of the Premises and Improvements,
and any and all guaranties and other agreements relating to or made in
connection with any of such leases; together with
(e) All real property and improvements on it, and all
appurtenances and other property and interests of any kind or character, whether
described in Exhibit A or not, which may be reasonably necessary or desirable to
promote the present and any reasonable future beneficial use and enjoyment of
the Premises and Improvements; together with
(f) All goods, materials, supplies, chattels, furniture,
fixtures, equipment and machinery now or later to be attached to, placed in or
on, or used in connection with the use, enjoyment, occupancy or operation of all
or any part of the Premises and Improvements, whether stored on the Premises or
elsewhere, including all pumping plants, engines, pipes, ditches and flumes, and
also all gas, electric, cooking, heating, cooling, air conditioning, lighting,
refrigeration and plumbing fixtures and equipment, all of which shall be
considered to the fullest extent of the law to be real property for purposes of
this Deed of Trust and any manufacturer's warranties with respect thereto;
together with
(g) All building materials, equipment, work in process or
other personal property of any kind, whether stored on the Premises or
elsewhere, which have been or later will
Twin County Mall, Galax, Virginia
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be acquired for the purpose of being delivered to, incorporated into or
installed in or about the Premises or Improvements; together with
(h) All of Xxxxxxx's interest in and to all operating
accounts pertaining to the Property and the Loan funds, whether disbursed or
not; together with
(i) All rights to the payment of money, accounts,
accounts receivable, reserves, deferred payments, refunds, cost savings,
payments and deposits, whether now or later to be received from third parties
(including all xxxxxxx money sales deposits) or deposited by Grantor with third
parties (including all utility deposits), contract rights, development and use
rights, governmental permits and licenses, applications, architectural and
engineering plans, specifications and drawings, as-built drawings, chattel
paper, instruments, documents, notes, drafts and letters of credit (other than
letters of credit in favor of Beneficiary), which arise from or relate to
construction on the Premises or to any business now or later to be conducted on
it, or to the Premises and Improvements generally and any builder's or
manufacturer's warranties with respect thereto; together with
(j) All insurance policies pertaining to the Premises and
all proceeds, including all claims to and demands for them, of the voluntary or
involuntary conversion of any of the Premises, Improvements or the other
property described above into cash or liquidated claims, including proceeds of
all present and future fire, hazard or casualty insurance policies and all
condemnation awards or payments now or later to be made by any public body or
decree by any court of competent jurisdiction for any taking or in connection
with any condemnation or eminent domain proceeding, and all causes of action and
their proceeds for any damage or injury to the Premises, Improvements or the
other property described above or any part of them, or breach of warranty in
connection with the construction of the Improvements, including causes of action
arising in tort, contract, fraud or concealment of a material fact; together
with
(k) All of Xxxxxxx's rights in and to all Rate Management
Transactions entered into with the Administrative Agent or any of the Lenders in
connection with the Credit Agreement;
(l) All books and records pertaining to any and all of
the property described above, including computer-readable memory and any
computer hardware or software necessary to access and process such memory
("Books and Records"); together with
(m) All proceeds of, additions and accretions to,
substitutions and replacements for, and changes in any of the property described
above.
Capitalized terms used above and elsewhere in this Deed of Trust
without definition have the meanings given them in the Credit Agreement referred
to in Subsection 1.2(a)(iii) below.
1.2 Secured Obligations.
(a) Grantor makes the grant, conveyance, and mortgage set
forth in Section 1.1 above, and grants the security interest set forth in
Section 3 below for the purpose of securing the following obligations (the
"Secured Obligations") in any order of priority that Beneficiary may choose:
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(i) Payment of all obligations at any time owing
under the Notes under the terms of the Credit Agreement; and
(ii) Payment and performance of all obligations
of Grantor under this Deed of Trust; and
(iii) Payment and performance of all obligations
of Grantor under the Credit Agreement; and
(iv) Payment and performance of any obligations
of Grantor under any Loan Documents which are executed by Xxxxxxx; and
(v) Payment and performance of all obligations
of Grantor arising from any Rate Management Transactions entered into with the
Administrative Agent or any of the Lenders in connection with the Credit
Agreement. Rate Management Transactions shall mean an interest rate hedging
program through the purchase by Grantor from the Administrative Agent or any of
the Lenders in connection with an interest rate swap, cap, or such other
interest rate protection product with respect to the Credit Agreement; and
(vi) Payment and performance of all future
advances and other obligations that Grantor or any successor in ownership of all
or part of the Property may agree to pay and/or perform (whether as principal,
surety or guarantor) for the benefit of Beneficiary, when a writing evidences
the parties' agreement that the advance or obligation be secured by this Deed of
Trust; and
(vii) Payment and performance of all
modifications, amendments, extensions, and renewals, however evidenced, of any
of the Secured Obligations.
(b) All persons who may have or acquire an interest in
all or any part of the Property will be considered to have notice of, and will
be bound by, the terms of the Secured Obligations and each other agreement or
instrument made or entered into in connection with each of the Secured
Obligations. Such terms include any provisions in the Note or the Credit
Agreement which permit borrowing, repayment and reborrowing, or which provide
that the interest rate on one or more of the Secured Obligations may vary from
time to time.
2. ASSIGNMENT OF RENTS.
2.1 Assignment. Grantor hereby irrevocably, absolutely, presently
and unconditionally assigns to Beneficiary all rents, royalties, issues,
profits, revenue, income, accounts, proceeds and other benefits of the Property,
whether now due, past due or to become due, including all prepaid rents and
security deposits (some or all collectively, as the context may require,
"Rents"). This is an absolute assignment, not an assignment for security only.
2.2 Grant of License. Beneficiary hereby confers upon Grantor a
license ("License") to collect and retain the Rents as they become due and
payable, so long as no Event of Default, as defined in Section 6.2 below, shall
exist and be continuing. If an Event of Default has occurred and is continuing,
Beneficiary shall have the right, which it may choose to exercise in its sole
discretion, to terminate this License without notice to or demand upon Grantor,
and without regard to the adequacy of Beneficiary's security under this Deed of
Trust.
Twin County Mall, Galax, Virginia
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2.3 Collection and Application of Rents. Subject to the License
granted to Grantor under Section 2.2 above, Beneficiary has the right, power and
authority to collect any and all Rents. Grantor hereby appoints Beneficiary its
attorney-in-fact to perform any and all of the following acts, if and at the
times when Beneficiary in its sole discretion may so choose:
(a) Demand, receive and enforce payment of any and all
Rents; or
(b) Give receipts, releases and satisfactions for any and
all Rents; or
(c) Xxx either in the name of Grantor or in the name of
Beneficiary for any and all Rents.
Beneficiary and Xxxxxxx agree that the mere recordation of the assignment
granted herein entitles Beneficiary immediately to collect and receive rents
upon the occurrence of an Event of Default, as defined in Section 6.2, without
first taking any acts of enforcement under applicable law, such as, but not
limited to, providing notice to Grantor, filing foreclosure proceedings, or
seeking and/or obtaining the appointment of a receiver. Further, Beneficiary's
right to the Rents does not depend on whether or not Beneficiary takes
possession of the Property as permitted under Subsection 6.3(c). In
Beneficiary's sole discretion, Beneficiary may choose to collect Rents either
with or without taking possession of the Property. Beneficiary shall apply all
Rents collected by it in the manner provided under Section 6.6. If an Event of
Default occurs while Beneficiary is in possession of all or part of the Property
and is collecting and applying Rents as permitted under this Deed of Trust,
Beneficiary and any receiver shall nevertheless be entitled to exercise and
invoke every right and remedy afforded any of them under this Deed of Trust and
at law or in equity.
2.4 Beneficiary Not Responsible. Under no circumstances shall
Beneficiary have any duty to produce Rents from the Property. Regardless of
whether or not Beneficiary, in person or by agent, takes actual possession of
the Premises and Improvements, unless Beneficiary agrees in writing to the
contrary, Beneficiary is not and shall not be deemed to be:
(a) A "Beneficiary in possession" for any purpose; or
(b) Responsible for performing any of the obligations of
the lessor under any lease; or
(c) Responsible for any waste committed by lessees or any
other parties, any dangerous or defective condition of the Property, or any
negligence in the management, upkeep, repair or control of the Property unless
caused by the gross negligence, willful misconduct or bad faith of Beneficiary;
or
(d) Liable in any manner for the Property or the use,
occupancy, enjoyment or operation of all or any part of it.
2.5 Leasing. Grantor shall not accept any deposit or prepayment of
rents under the leases for any rental period exceeding one (1) month without
Beneficiary's prior written consent. Grantor shall not lease the Property or any
part of it except strictly in accordance with the Credit Agreement.
Twin County Mall, Galax, Virginia
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3. GRANT OF SECURITY INTEREST.
3.1 Security Agreement. The parties intend for this Deed of Trust
to create a lien on the Property, and an absolute assignment of the Rents, all
in favor of Beneficiary. The parties acknowledge that some of the Property and
some or all of the Rents may be determined under applicable law to be personal
property or fixtures. To the extent that any Property or Rents may be or be
determined to be personal property, Grantor as debtor hereby grants Beneficiary
and Trustee as secured parties a security interest in all such Property and
Rents, to secure payment and performance of the Secured Obligations. This Deed
of Trust constitutes a security agreement under the Uniform Commercial Code of
the State in which the Property is located, covering all such Property and
Rents.
3.2 Financing Statements. Grantor hereby authorizes Beneficiary to
file one or more financing statements. In addition, Grantor shall execute such
other documents as Beneficiary may from time to time require to perfect or
continue the perfection of Beneficiary's security interest in any Property or
Rents. As provided in Section 5.10 below, Grantor shall pay all fees and costs
that Beneficiary may incur in filing such documents in public offices and in
obtaining such record searches as Beneficiary may reasonably require. In case
Grantor fails to execute any financing statements or other documents for the
perfection or continuation of any security interest, Grantor hereby appoints
Beneficiary as its true and lawful attorney-in-fact to execute any such
documents on its behalf. If any financing statement or other document is filed
in the records normally pertaining to personal property, that filing shall never
be construed as in any way derogating from or impairing this Deed of Trust or
the rights or obligations of the parties under it.
4. FIXTURE FILING.
This Deed of Trust constitutes a financing statement filed as a fixture
filing under Article 9 of the Uniform Commercial Code in the State in which the
Property is located, as amended or recodified from time to time, covering any
Property which now is or later may become fixtures attached to the Premises or
Improvements. For this purpose, the respective addresses of Grantor, as debtor,
and Beneficiary and Trustee, as secured parties, are as set forth in the
preambles of this Deed of Trust.
5. RIGHTS AND DUTIES OF THE PARTIES.
5.1 Representations and Warranties. Grantor represents and
warrants that:
(a) Grantor lawfully possesses and holds fee simple title
to all of the Premises and Improvements;
(b) Grantor has or will have good title to all Property
other than the Premises and Improvements;
(c) Grantor has the full and unlimited power, right and
authority to encumber the Property and assign the Rents;
(d) This Deed of Trust creates a first and prior lien on
the Property;
Twin County Mall, Galax, Virginia
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(e) The Property includes all property and rights which
may be reasonably necessary or desirable to promote the present and any
reasonable future beneficial use and enjoyment of the Premises and Improvements;
(f) Grantor owns any Property which is personal property
free and clear of any security agreements, reservations of title or conditional
sales contracts, and there is no financing statement affecting such personal
property on file in any public office; and
(g) Grantor's place of business, or its chief executive
office if it has more than one place of business, is located at the address
specified below.
5.2 Taxes, and Assessments. Grantor shall , prior to delinquency,
pay or cause to be paid each installment of all taxes and special assessments of
every kind, now or hereafter levied against the Property or any part thereof,
without notice or demand, and shall provide Beneficiary with evidence of the
payment of same. Grantor shall pay all taxes and assessments which may be levied
upon Beneficiary's or the Lenders' interest herein or upon this Deed of Trust or
the debt secured hereby (excluding any income taxes or similar charges imposed
upon Beneficiary or the Lenders), without regard to any law that may be enacted
imposing payment of the whole or any part thereof upon the Beneficiary or any
Lender. Notwithstanding anything contained in this Section to the contrary,
Grantor shall have the right to pay or cause to be paid any such tax or special
assessment under protest or to otherwise contest any such tax or special
assessment but only if (i) such contest has the effect of preventing the
collection of such tax or special assessment so contested and also prevent the
sale or forfeiture of the Property or any part thereof or any interest therein,
(ii) Grantor promptly notifies Beneficiary in writing of its intent to contest
such tax or special assessment, and (iii) if so requested in writing by
Beneficiary, Grantor has deposited security in form and amount reasonably
satisfactory to Beneficiary, and increases the amount of such security so
deposited promptly after Beneficiary's request therefor. Grantor shall prosecute
or cause the prosecution of all such contest actions in good faith and with due
diligence.
5.3 Performance of Secured Obligations. Grantor shall promptly pay
and perform each Secured Obligation in accordance with its terms.
5.4 Liens, Charges and Encumbrances. Grantor shall immediately
discharge any lien on the Property which Beneficiary has not consented to in
writing in accordance with the terms of Section 6.16 of the Credit Agreement.
5.5 Damages, Restoration, and Insurance Proceeds. As long as no
Event of Default has occurred and is then continuing, all insurance proceeds for
losses at the Property of less than $500,000.00 shall be adjusted with and
payable to the Grantor. In case of loss, Beneficiary shall have the right (but
not the obligation) to participate in and reasonably approve the settlement of
any insurance claim in excess of $500,000.00 and all claims thereafter, and
Beneficiary is at all times authorized to collect and receive any insurance
money for those claims which Beneficiary is entitled to approve the settlement
of hereunder however, notwithstanding the forgoing, if the Property is damaged
and the Borrower elects to release the Property from the Collateral Pool in
accordance with the terms of Section 2.7(c) of the Credit Agreement, upon such
release, all insurance proceeds for such damage to the Property shall be payable
to the Grantor.
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At the election of Beneficiary, such insurance proceeds may be applied
to reduce the outstanding balance of the indebtedness under the Credit Agreement
or to pay for costs of repair and restoration of the Property; provided,
however, that so long as no Event of Default has occurred and is then
continuing, Beneficiary shall make such insurance proceeds available to pay for
such costs of repair and restoration. If Beneficiary is entitled to and does
elect to apply insurance proceeds in payment or reduction of the indebtedness
secured hereby, then Beneficiary shall reduce the then outstanding balance of
the Advances by the amount of the insurance proceeds received and so applied by
Beneficiary. In the event that Beneficiary does not elect to apply the insurance
proceeds to the indebtedness secured hereby as set forth above, such insurance
proceeds shall be used to reimburse Grantor for the cost of rebuilding or
restoring the Premises. The Premises shall be so restored or rebuilt as to be
substantially the same quality and character as the Premises were prior to such
damage or destruction in accordance with the original plans and specifications
or to such other condition as Beneficiary shall reasonably approve in writing.
If Beneficiary elects to make the proceeds available for repair and
restoration, any request by Grantor for a disbursement by Beneficiary of fire or
casualty insurance proceeds and funds deposited by Grantor with Beneficiary
pursuant to this Section 5.5 shall be treated by Beneficiary as if such request
were for an Advance under the Credit Agreement, and the disbursement thereof
shall be conditioned upon the Borrower's compliance with and satisfaction of the
same conditions precedent as would be applicable under the Credit Agreement for
such an Advance, and during any such period that funds are available to the
Borrower for application to restore the Property, the amount of the Borrowing
Base attributable to the Property shall be determined in accordance with the
terms of the Credit Agreement. Additionally, such disbursement shall also be
conditioned upon Xxxxxxxx's providing to Administrative Agent: updated title
insurance, satisfactory evidence, as reasonably determined by Administrative
Agent, that the Premises shall be so restored or rebuilt as to be of at least
equal value and quality and substantially the same character as the Premises
were prior to such damage or destruction in accordance with the original plans
and specifications or to such other condition as Administrative Agent shall
reasonably approve in writing, satisfactory evidence of the estimated cost of
completion thereof and with such architect's certificates, waivers of lien,
contractors' sworn statements and other evidence of cost and of payments as
Administrative Agent may reasonably require and approve. The undisbursed balance
of insurance proceeds shall at all times be sufficient to pay for the cost of
completion of the work free and clear of liens and if such proceeds are
insufficient, Grantor shall deposit the amount of such deficiency with
Beneficiary prior to the disbursement by Beneficiary of (i) any insurance
proceeds or (ii) any additional Advances under the Credit Agreement for such
purpose.
5.6 Condemnation Proceeds. Grantor hereby assigns, transfers and
sets over unto Beneficiary its entire interest in the proceeds (the
"Condemnation Proceeds") of any award or any claim for damages for any of the
Property taken or damaged under the power of eminent domain or by condemnation
or any transaction in lieu of condemnation ("Condemnation"), unless,
notwithstanding the forgoing, (i) such taking, damage or condemnation does not
cause a material diminution in the value of the Premises or (ii) Grantor elects
to release the Property in accordance with the terms of Section 2.7(c) of the
Credit Agreement, in which case, upon such release, all Condemnation Proceeds
for damages to the Property shall be payable to the Grantor. Beneficiary shall
make available to Grantor the Condemnation Proceeds for the restoration of the
Premises if Grantor satisfies all of the conditions set forth in this Section
5.6 hereof for
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disbursement of insurance proceeds. In all other cases Beneficiary shall have
the right, at its option, to apply the Condemnation Proceeds upon or in
reduction of the indebtedness secured hereby, whether due or not. If Beneficiary
is entitled to and does elect to apply Condemnation Proceeds upon or in
reduction of the indebtedness secured hereby, then Beneficiary shall reduce the
then outstanding balance of the Advances under the Credit Agreement by the
amount of the Condemnation Proceeds received and so applied by Beneficiary and
the Borrowing Base reduced. If the Condemnation Proceeds are required to be used
as aforesaid to reimburse Grantor for the cost of rebuilding or restoring
buildings or improvements on the Property, or if Beneficiary elects that the
Condemnation Proceeds be so used, and the buildings and other improvements shall
be rebuilt or restored, the Condemnation Proceeds shall be paid out in the same
manner as is provided in this Section 5.6 hereof for the payment of insurance
proceeds toward the cost of rebuilding or restoration of such buildings and
other improvements. Any surplus which may remain out of the Condemnation
Proceeds after payment of such cost of rebuilding or restoration shall, at the
option of Beneficiary, be applied on account of the indebtedness secured hereby
or be paid to any other party entitled thereto.
5.7 Maintenance and Preservation of Property.
(a) Grantor shall insure the Property as required by
Schedule 11 of the Credit Agreement and keep the Property in good condition and
repair.
(b) Except as required by the terms of any lease approved
by Administrative Agent, Grantor shall not remove or demolish the Property or
any material part of it in any way, or materially alter, restore or add to the
Property, or initiate or allow any material change or variance in any zoning or
other Premises use classification which adversely affects the Property or any
material part of it, except with Beneficiary's express prior written consent in
each instance; the term "materially" or "material" as used in this Section
5.7(b) shall mean having a monetary effect in an amount greater than (i)
$500,000 with respect to any Community Center and (ii) $1,000,000 with respect
to any Regional Mall.
(c) Grantor shall not commit or allow any act upon or use
of the Property which would violate: (i) any applicable Laws or order of any
Governmental Authority, whether now existing or later to be enacted and whether
foreseen or unforeseen; or (ii) any public or private covenant, condition,
restriction or equitable servitude affecting the Property. Grantor shall not
bring or keep any article on the Property or cause or allow any condition to
exist on it, if that could invalidate or would be prohibited by any insurance
coverage required to be maintained by Grantor on the Property or any part of it
under the Credit Agreement.
(d) Grantor shall not commit or allow waste of the
Property, including those acts or omissions characterized under the Credit
Agreement as waste which arises out of Materials of Environmental Concern.
(e) Grantor shall perform all other acts which from the
character or use of the Property may be reasonably necessary to maintain and
preserve its value.
5.8 Releases, Extensions, Modifications and Additional Security.
From time to time, Beneficiary may perform any of the following acts without
incurring any liability or giving notice to any person:
Twin County Mall, Galax, Virginia
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(a) Release any person liable for payment of any Secured
Obligation;
(b) Extend the time for payment, or otherwise alter the
terms of payment, of any Secured Obligation;
(c) Accept additional real or personal property of any
kind as security for any Secured Obligation, whether evidenced by deeds of
trust, mortgages, security agreements or any other instruments of security;
(d) Alter, substitute or release any property securing
the Secured Obligations;
(e) Consent to the making of any plat or map of the
Property or any part of it;
(f) Join in granting any easement or creating any
restriction affecting the Property; or
(g) Join in any subordination or other agreement
affecting this Deed of Trust or the lien of it; or
(h) Release the Property or any part of it.
5.9 Release. If (a) Grantor shall fully pay all principal and
interest on the Notes, and all other indebtedness secured hereby and comply with
all of the other terms and provisions hereof to be performed and complied with
by Grantor, and terminate the obligations of the Lenders to make additional
advances under the Credit Agreement; or (b) Grantor shall comply with the terms
and conditions as set forth in Section 2.7(c) of Credit Agreement for release of
this Deed of Trust, Beneficiary, upon written request of Grantor stating that
the requirements of either clause (a) or clause (b) above have been satisfied,
shall release this Deed of Trust and the lien thereof by proper instrument upon
payment and discharge of the amounts required under the Credit Agreement and
payment of any filing fee in connection with such release. Grantor shall pay any
costs of preparation and recordation of such release.
5.10 Compensation, Exculpation, Indemnification.
(a) Grantor agrees to pay fees required by and pursuant
to the Credit Agreement, for any services that Beneficiary or Trustee may render
in connection with this Deed of Trust, including providing a statement of the
Secured Obligations or providing the release pursuant to Section 5.9 above.
Grantor shall also pay or reimburse all of Beneficiary's and Trustee's costs and
expenses which may be incurred in rendering any such services. Grantor further
agrees to pay or reimburse Beneficiary for all costs, expenses and other
advances which may be incurred or made by Beneficiary or Trustee in any efforts
to enforce any terms of this Deed of Trust, including any rights or remedies
afforded to Beneficiary and Trustee under Section 6.4, whether any lawsuit is
filed or not, or in defending any action or proceeding arising under or relating
to this Deed of Trust, including attorneys' fees and other legal costs, costs of
any Foreclosure Sale (as defined in Subsection 6.4(i) below) and any cost of
evidence of title. If Beneficiary and/or Trustee, as required by applicable law,
chooses to dispose of Property through more than one Foreclosure Sale, Grantor
shall pay all costs, expenses or other advances that may be incurred or made by
Beneficiary and/or Trustee in each of such Foreclosure Sales. . In any suit to
foreclose the lien hereof or enforce any other remedy of Trustee or Beneficiary
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under this Deed of Trust or the Note, there shall be allowed and included as
additional indebtedness in the decree for sale or other judgment or decree all
expenditures and expenses which may be paid or incurred by or on behalf of
Trustee and Beneficiary for reasonable attorneys' costs and fees (including the
costs and fees of paralegals), survey charges, appraiser's fees, inspecting
engineer's and/or architect's fees, fees for environmental studies and
assessments and all additional expenses incurred by Trustee and Beneficiary with
respect to environmental matters, outlays for documentary and expert evidence,
stenographers' charges, publication costs, and costs (which may be estimated as
to items to be expended after entry of the decree) of procuring all such
abstracts of title, title searches and examinations, title insurance policies,
and similar data and assurances with respect to title as Trustee and Beneficiary
may deem reasonably necessary either to prosecute such suit or to evidence to
bidders at any sale which may be had pursuant to such decree the true condition
of the title to, the value of or the environmental condition of the Property.
All expenditures and expenses of the nature in this Subsection mentioned, and
such expenses and fees as may be incurred in the protection of the Property and
maintenance of the lien of this Deed of Trust, including the fees of any
attorney (including the costs and fees of paralegals) employed by Trustee or
Beneficiary in any litigation or proceeding affecting this Deed of Trust, the
Note or the Property, including probate and bankruptcy proceedings, or in
preparation for the commencement or defense of any proceeding or threatened suit
or proceeding, shall be immediately due and payable by Grantor, with interest
thereon at the Default Rate and shall be secured by this Deed of Trust.
(b) Neither Beneficiary nor Trustee shall be directly or
indirectly liable to Grantor or any other person as a consequence of any of the
following:
(i) Beneficiary's or Trustee's exercise of or
failure to exercise any rights, remedies or powers granted to Beneficiary and/or
Trustee in this Deed of Trust;
(ii) Beneficiary's failure or refusal to perform
or discharge any obligation or liability of Grantor under any agreement related
to the Property or under this Deed of Trust; or
(iii) Any loss sustained by Grantor or any third
party resulting from Beneficiary's failure to lease the Property, or from any
other act or omission of Beneficiary in managing the Property, after an Event of
Default, unless the loss is caused by the willful misconduct, gross negligence
or bad faith of Beneficiary.
Grantor hereby expressly waives and releases all liability of the types
described above, and agrees that no such liability shall be asserted
against or imposed upon Beneficiary or Trustee.
(c) Grantor agrees to indemnify Beneficiary and Trustee
against and hold them harmless from all losses, damages, liabilities, claims,
causes of action, judgments, court costs, attorneys' fees and other legal
expenses, cost of evidence of title, cost of evidence of value, and other costs
and expenses which they may suffer or incur, unless caused by the gross
negligence, willful misconduct or bad faith of the Beneficiary:
(i) In performing any act required or permitted
by this Deed of Trust or any of the other Loan Documents or by law;
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(ii) Because of any failure of Grantor to perform
any of its obligations; or
(iii) Because of any alleged obligation of or
undertaking by Beneficiary and/or Trustee to perform or discharge any of the
representations, warranties, conditions, covenants or other obligations in any
document relating to the Property other than the Loan Documents.
This agreement by Grantor to indemnify Beneficiary and Trustee shall
survive the release and cancellation of any or all of the Secured
Obligations and the full or partial release of this Deed of Trust.
(d) Grantor shall pay all obligations to pay money
arising under this Section 5.9 immediately upon demand by Beneficiary. Each such
obligation shall be added to, and considered to be part of, the principal of the
Note, and shall bear interest from the date the obligation arises at the Default
Rate.
5.11 Defense and Notice of Claims and Actions. At Grantor's sole
expense, Grantor shall protect, preserve and defend the Property and title to
and right of possession of the Property, and the security of this Deed of Trust
and the rights and powers of Beneficiary created under it, against all adverse
claims. Grantor shall give Beneficiary prompt notice in writing if any claim is
asserted which does or could affect any such matters, or if any action or
proceeding is commenced which alleges or relates to any such claim.
5.12 Subrogation. Beneficiary shall be subrogated to the liens of
all encumbrances, whether released of record or not, which are discharged in
whole or in part by Beneficiary in accordance with this Deed of Trust or with
the proceeds of any loan secured by this Deed of Trust.
5.13 Site Visits, Observation and Testing. Beneficiary and its
agents and representatives shall have the right at any reasonable time to enter
and visit the Property for the purpose of performing appraisals, observing the
Property, and conducting non-invasive tests (unless Beneficiary has a good faith
reason to believe that the taking and removing soil or groundwater samples is
required, and in such case, conducting such tests) on any part of the Property.
Beneficiary has no duty, however, to visit or observe the Property or to conduct
tests, and no site visit, observation or testing by Beneficiary, its agents or
representatives shall impose any liability on any of Beneficiary, its agents or
representatives. In no event shall any site visit, observation or testing by
Beneficiary, its agents or representatives be a representation that Materials of
Environmental Concern are or are not present in, on or under the Property, or
that there has been or shall be compliance with any law, regulation or ordinance
pertaining to Materials of Environmental Concern or any other applicable
governmental law. Neither Grantor nor any other party is entitled to rely on any
site visit, observation or testing by any of Beneficiary, its agents or
representatives. Neither Beneficiary, its agents or representatives owe any duty
of care to protect Grantor or any other party against, or to inform Grantor or
any other party of, any Materials of Environmental Concern or any other adverse
condition affecting the Property. Beneficiary shall give Grantor reasonable
notice before entering the Property. Beneficiary shall make reasonable efforts
to avoid interfering with Xxxxxxx's use of the Property in exercising any rights
provided in this Section 5.13. Notwithstanding the foregoing, all rights granted
to Beneficiary under this Section 5.13 are subject to all rights of tenants to
the Property.
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5.14 Notice of Change. Grantor shall give Beneficiary prior written
notice of any change in: (a) the location of its place of business or its chief
executive office if it has more than one place of business; (b) the location of
any of the Property, including the Books and Records; and (c) Grantor's name or
business structure. Unless otherwise approved by Beneficiary in writing, all
Property that consists of personal property (other than the Books and Records)
will be located on the Premises and all Books and Records will be located at
Grantor's place of business or chief executive office if Grantor has more than
one place of business.
6. TRANSFERS, DEFAULT AND REMEDIES.
6.1 Transfers. "Grantor acknowledges that Beneficiary is making
one or more advances under the Credit Agreement in reliance on the expertise,
skill and experience of Grantor; thus, the Secured Obligations include material
elements similar in nature to a personal service contract. In consideration of
Beneficiary's reliance, Xxxxxxx agrees that Grantor shall not make any transfer
of the Property or its interests therein, except for leases in the ordinary
course (a "Transfer"), unless the Transfer is preceded by Beneficiary's express
written consent to the particular transaction and transferee. Beneficiary may
withhold such consent in its sole discretion.
6.2 Events of Default. Grantor will be in default under this Deed
of Trust upon the occurrence of any one or more of the following events (some or
all collectively, "Events of Default;" any one singly, an "Event of Default").
(a) If a default shall occur with respect to covenants,
agreements and obligations of Grantor under this Deed of Trust involving the
payment of money (other than a default in the payment of principal when due as
provided in Section 7.1 of the Credit Agreement) and shall continue for a period
of five (5) business days after the due date thereof; or
(b) If there is a failure to perform or observe any of
the other covenants, agreements and conditions contained in this Deed of Trust
in accordance with the terms hereof, and such default continues unremedied for a
period of thirty (30) days after written notice from Beneficiary to defaulting
Grantor of the occurrence thereof; or
(c) An "Event of Default" occurs under the Credit
Agreement or any other Loan Document.
6.3 Remedies. At any time after an Event of Default, Beneficiary
shall be entitled to invoke any and all of the rights and remedies described
below, in addition to all other rights and remedies available to Beneficiary at
law or in equity. All of such rights and remedies shall be cumulative, and the
exercise of any one or more of them shall not constitute an election of
remedies.
(a) Acceleration. Upon the occurrence and continuation of
any Event of Default above under subsections 6.2 (a) or 6.2 (b) above, the
Property shall no longer be eligible to be included in the calculation of the
Borrowing Base unless the Required Lenders consent to its continued inclusion.
Upon the occurrence of an Event of Default under subsection 6.2 (c) above, or if
upon removal of the Property from the Borrowing Base, the Borrower does not
reduce the outstanding balance of the Loans to be less than or equal to the
recomputed Borrowing Base within the time period allowed under Section 2.7(b) of
the Credit Agreement,
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then the whole of said principal sum hereby secured shall, at once either
automatically or at the option of Beneficiary as described in Section 8.1 of the
Credit Agreement, become immediately due and payable, together with accrued
interest thereon, without any presentment, demand, protest or notice of any kind
to Grantor, and the Trustee at the request of the Beneficiary may also declare
said principal sum and accrued interest to be due and payable.
(b) Receiver. Beneficiary shall, as a matter of right,
without notice and without giving bond to Grantor or anyone claiming by, under
or through Grantor, and without regard for the solvency or insolvency of Grantor
or the then value of the Property, to the extent permitted by applicable law, be
entitled to have a receiver appointed for all or any part of the Property and
the Rents, and the proceeds, issues and profits thereof, with the rights and
powers referenced below and such other rights and powers as the court making
such appointment shall confer, and Grantor hereby consents to the appointment of
such receiver and shall not oppose any such appointment. Such receiver shall
have all powers and duties prescribed by applicable law, all other powers which
are necessary or usual in such cases for the protection, possession, control,
management and operation of the Property, and such rights and powers as
Beneficiary would have, upon entering and taking possession of the Property
under subsection (c) below.
(c) Entry. Beneficiary, in person, by agent or by
court-appointed receiver, may enter, take possession of, manage and operate all
or any part of the Property, and may also do any and all other things in
connection with those actions that Beneficiary may in its sole discretion
consider necessary and appropriate to protect the security of this Deed of
Trust. Such other things may include: taking and possessing all of Grantor's or
the then owner's Books and Records; entering into, enforcing, modifying or
canceling leases on such terms and conditions as Beneficiary may consider
proper; obtaining and evicting tenants; fixing or modifying Rents; collecting
and receiving any payment of money owing to Beneficiary; completing any
unfinished construction; and/or contracting for and making repairs and
alterations. If Beneficiary so requests, Grantor shall assemble all of the
Property that has been removed from the Premises and make all of it available to
Beneficiary at the site of the Premises. Grantor hereby irrevocably constitutes
and appoints Beneficiary as Xxxxxxx's attorney-in-fact to perform such acts and
execute such documents as Beneficiary in its sole discretion may consider to be
appropriate in connection with taking these measures, including endorsement of
Grantor's name on any instruments.
(d) Cure; Protection of Security. Beneficiary may cure
any breach or default of Grantor, and if it chooses to do so in connection with
any such cure, Beneficiary may also enter the Property and/or do any and all
other things which it may in its sole discretion consider necessary and
appropriate to protect the security of this Deed of Trust, including, without
limitation, completing construction of the improvements at the Property
contemplated by the Credit Agreement. Such other things may include: appearing
in and/or defending any action or proceeding which purports to affect the
security of, or the rights or powers of Beneficiary under, this Deed of Trust;
paying, purchasing, contesting or compromising any encumbrance, charge, lien or
claim of lien which in Beneficiary's sole judgment is or may be senior in
priority to this Deed of Trust, such judgment of Beneficiary or to be conclusive
as among the parties to this Deed of Trust; obtaining insurance and/or paying
any premiums or charges for insurance required to be carried under the Credit
Agreement; otherwise caring for and protecting any and all of the Property;
and/or employing counsel, accountants, contractors and other appropriate persons
to assist Beneficiary. Beneficiary may take any of the actions permitted under
this
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Subsection 6.3(d) either with or without giving notice to any person. Any
amounts expended by Beneficiary under this Subsection 6.3(d) shall be secured by
this Deed of Trust.
(e) Uniform Commercial Code Remedies. Beneficiary may
exercise any or all of the remedies granted to a secured party under the Uniform
Commercial Code in the State in which the Property is located.
(f) Foreclosure and Sale: Instruct the Trustee to sell,
and, in the case of any default of any purchaser, to resell, the Property or any
part thereof at one or more public sales in accordance with the applicable laws
of the jurisdiction in which the Property is located, without notice except as
required or set forth herein or by law, upon such terms and conditions, in such
parcels, at such time and place as the Trustee shall deem advantageous and
proper, and without regard to any right of the Grantor or any other person to
the marshalling of liens and/or assets, such rights and any benefit of the
doctrine of election of remedies being hereby waived, and the Grantor hereby
declares its assent to the passing of a decree for the sale of any or all of the
Property or any estate or interest therein by any equity court having
jurisdiction over the sale of the Property. Any sale made by the Trustee
hereunder shall be after previous daily advertisement and such other
advertisement as the Trustee shall deem advantageous and proper and at such
other times and containing such information as appropriate under any applicable
laws and regulations, without regard to any right of the Grantor or any other
person to the marshalling of assets. Upon compliance with the terms of such
sale, the Trustee shall convey to and at the cost of the purchaser, the Property
so sold, free and discharged of and from all estate, right, title or interest of
the Grantor at law or in equity. The aforesaid power of sale and assent to
decree are granted as cumulative of the other remedies provided hereby or by law
for collection of the Indebtedness, and shall not be exhausted by one exercise
thereof but may be exercised until full and indefeasible payment of all of the
Indebtedness. In the event of any sale under this Deed of Trust by virtue of the
exercise of the powers herein granted, or pursuant to any order in any judicial
proceeding or otherwise, the Property may be sold as an entirety or in separate
parcels and in such manner or order as the Trustee may deem appropriate, and the
Personalty covered by this Deed of Trust may be sold at the same sale as the
Property or at one or more separate sales in any manner permitted by the Uniform
Commercial Code of the Commonwealth of Virginia, and one or more exercises of
the powers herein granted shall not extinguish nor exhaust such powers, until
the entire Property is sold or the Indebtedness is paid in full. The Grantor
hereby expressly waives any right which it may have to direct the order in which
any of the Property shall be sold in the event of any sale pursuant hereto. If
the Indebtedness is now or hereafter further secured by any chattel mortgages,
pledges, contracts or guarantees, assignments of lease or other security
instruments, the Beneficiary may at its option exhaust the remedies granted
under any of said security instruments, either concurrently or independently,
and in such order as the Beneficiary may determine.
Except as otherwise specifically provided herein, any sale of the
Property shall be made in accordance with the provisions of Sections 55-59.1,
55-59.2, 55-59.3, 55-59.4 and 55-63 of the Code of Virginia (1950), as amended,
or other applicable general local laws of the Commonwealth of Virginia or
judicial rules or procedures relating to the foreclosure of deeds of trust.
The Beneficiary, may, in addition to and not in abrogation of the
rights covered under the immediately preceding subparagraph, or elsewhere in
this ERROR! REFERENCE SOURCE NOT FOUND.,
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either with or without entry or taking possession as herein provided or
otherwise, proceed by a suit or suits at law or in equity or by any other
appropriate proceeding or remedy (i) to enforce payment of the Note or the
performance of any term, covenant, condition or agreement of this Deed of Trust
or any other right, and (ii) pursue any other remedy available to it, all as the
Beneficiary in its sole discretion shall elect.
(g) Other Remedies. Beneficiary may exercise all rights
and remedies contained in any other instrument, document, agreement or other
writing heretofore, concurrently or in the future executed by Grantor or any
other person or entity in favor of Beneficiary in connection with the Secured
Obligations or any part thereof, without prejudice to the right of Beneficiary
thereafter to enforce any appropriate remedy against Grantor. Beneficiary shall
have the right to pursue all remedies afforded to a Beneficiary under applicable
law, and shall have the benefit of all of the provisions of such applicable law,
including all amendments thereto which may become effective from time to time
after the date hereof.
(h) Sale of Personal Property. Beneficiary and/or
Trustee, as required by applicable law, shall have the discretionary right to
cause some or all of the Property, which constitutes personal property, to be
sold or otherwise disposed of in any combination and in any manner permitted by
applicable law.
(i) For purposes of this power of sale,
Beneficiary and/or Trustee, as required by applicable law, may elect to treat as
personal property any Property which is intangible or which can be severed from
the Premises or Improvements without causing structural damage. If it chooses to
do so, Beneficiary and/or Trustee, as required by applicable law, may dispose of
any personal property, in any manner permitted by Article 9 of the Uniform
Commercial Code of the State in which the Property is located, including any
public or private sale, or in any manner permitted by any other applicable law.
(ii) In connection with any sale or other
disposition of such Property, Xxxxxxx agrees that the following procedures
constitute a commercially reasonable sale: Beneficiary shall mail written notice
of the sale to Grantor not later than thirty (30) days prior to such sale.
Beneficiary will publish notice of the sale in a local daily newspaper of
general circulation. Upon receipt of any written request, Beneficiary will make
the Property available to any bona fide prospective purchaser for inspection
during reasonable business hours. Notwithstanding, Beneficiary shall be under no
obligation to consummate a sale if, in its judgment, none of the offers received
by it equals the fair value of the Property offered for sale. The foregoing
procedures do not constitute the only procedures that may be commercially
reasonable.
(i) Single or Multiple Foreclosure Sales. If the Property
consists of more than one lot, parcel or item of property, Beneficiary and/or
Trustee, as required by applicable law, may:
(i) Designate the order in which the lots,
parcels and/or items shall be sold or disposed of or offered for sale or
disposition; and
(ii) Elect to dispose of the lots, parcels and/or
items through a single consolidated sale or disposition to be held or made under
or in connection with judicial proceedings, or by virtue of a judgment and
decree of foreclosure and sale; or through two or
Twin County Mall, Galax, Virginia
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more such sales or dispositions; or in any other manner Beneficiary may deem to
be in its best interests (any such sale or disposition, a "Foreclosure Sale;"
and any two or more, "Foreclosure Sales").
If Beneficiary chooses to have more than one Foreclosure Sale,
Beneficiary at its option may cause the Foreclosure Sales to
be held simultaneously or successively, on the same day, or on
such different days and at such different times and in such
order as Beneficiary may deem to be in its best interests. No
Foreclosure Sale shall terminate or affect the liens of this
Deed of Trust on any part of the Property which has not been
sold, until all of the Secured Obligations have been paid in
full.
(j) Credit Bids. At any Foreclosure Sale, any person,
including Grantor or Beneficiary, may bid for and acquire the Property or any
part of it to the extent permitted by then applicable law.
6.4 Application of Foreclosure Sale Proceeds. The proceeds of any
sale of or any part thereof shall be applied by Trustee or Beneficiary to the
extent that funds are so available therefrom in the following order of priority
or as may be otherwise required by law:
(a) to discharge all taxes, levies, and assessment, with
costs and interest if they have priority over the lien of this Deed of
Trust, including the due pro rata thereof for the current year;
(b) to discharge in the order of their priority, if any,
the remaining debts and obligations secured by this Deed of Trust up to
a principal sum of $2,800,000.00 and any liens of record inferior to
this Deed of Trust under which sale is made, with interest and other
charges accrued thereon; and
(c) the residue of the proceeds shall be paid to the
Grantor or his assigns; provided, however, that the Trustee as to such
residue shall not be bound by any inheritance, devise, conveyance,
assignment or lien of or upon the Grantor's equity, without actual
notice thereof prior to distribution..
Beneficiary shall have no liability for any funds which it does not actually
receive.
7. THE TRUSTEE.
7.1 Certain Rights. With the approval of Beneficiary, Trustee
shall have the right to take any and all of the following actions: (i) to
select, employ and consult with counsel (who may be, but need not be, counsel
for Beneficiary) upon any matters arising hereunder, including the preparation,
execution and interpretation of the Loan Documents, and shall be fully protected
in relying as to legal matters on the advice of counsel, (ii) to execute any of
the trusts and powers hereof and to perform any duty hereunder either directly
or through his or her agents or attorneys, (iii) to select and employ, in and
about the execution of his or her duties hereunder, suitable accountants,
engineers and other experts, agents and attorneys-in-fact, either corporate or
individual, not regularly in the employ of Trustee (and Trustee shall not be
answerable for any act, default, negligence, or misconduct of any such
accountant, engineer or other expert, agent or attorney-in-fact, if selected
with reasonable care, or for any error of judgment or act done by
Twin County Mall, Galax, Virginia
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Trustee in good faith, or be otherwise responsible or accountable under any
circumstances whatsoever, except for Trustee's gross negligence or bad faith),
and (iv) any and all other lawful action that Beneficiary may instruct Trustee
to take to protect or enforce Beneficiary's rights hereunder. Trustee shall not
be personally liable in case of entry by Trustee, or anyone entering by virtue
of the powers herein granted to Trustee, upon the Premises for debts contracted
for or liability or damages incurred in the management or operation of the
Premises. Trustee shall have the right to rely on any instrument, document, or
signature authorizing or supporting any action taken or proposed to be taken by
Trustee hereunder, believed by Trustee in good faith to be genuine. Trustee
shall be entitled to reimbursement for expenses incurred by Xxxxxxx in the
performance of Xxxxxxx's duties hereunder and to reasonable compensation for
such of Trustee's services hereunder as shall be rendered. Grantor will, from
time to time, pay the compensation due to Trustee hereunder and reimburse
Trustee for, and save and hold Trustee harmless against, any and all liability
and expenses which may be incurred by Trustee in the performance of Trustee's
duties.
7.2 Retention of Money. All moneys received by Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, and shall be segregated from any other moneys of
Trustee.
7.3 Successor Trustees. Trustee may resign by the giving of notice
of such resignation in writing to Beneficiary. If Trustee shall die, resign or
become disqualified from acting in the execution of this trust, or if, for any
reason, Beneficiary, in Beneficiary's sole discretion and with or without cause,
shall prefer to appoint a substitute trustee or multiple substitute trustees, or
successive substitute trustees or successive multiple substitute trustees, to
act instead of the aforenamed Trustee, Beneficiary shall have full power to
appoint a substitute trustee (or, if preferred, multiple substitute trustees) in
succession who shall succeed (and if multiple substitute trustees are appointed,
each of such multiple substitute trustees shall succeed) to all the estates,
rights, powers and duties of the aforenamed Trustee. Such appointment may be
executed by any authorized agent of Beneficiary, and if such Beneficiary be a
corporation and such appointment be executed on its behalf by any officer of
such corporation, such appointment shall be conclusively presumed to be executed
with authority and shall be valid and sufficient without proof of any action by
the board of directors or any superior officer of the corporation. Grantor
hereby ratifies and confirms any and all acts which the aforenamed Trustee, or
his or her successor or successors in this trust, shall do lawfully by virtue
hereof. If multiple substitute trustees are appointed, each of such multiple
substitute trustees shall be empowered and authorized to act alone without the
necessity of the joinder of the other multiple substitute trustees, whenever any
action or undertaking of such substitute trustees is requested or required under
or pursuant to this Deed of Trust or applicable law. Any prior election to act
jointly or severally shall not prevent either or both of such multiple
substitute Trustees from subsequently executing, jointly or severally, any or
all of the provisions hereof.
7.4 Perfection of Appointment. Should any deed, conveyance, or
instrument of any nature be required from Grantor by any Trustee or substitute
Trustee to more fully and certainly vest in and confirm to Trustee or substitute
Trustee such estates, rights, powers, and duties, then, upon request by Trustee
or substitute trustee, any and all such deeds, conveyances and instruments shall
be made, executed, acknowledged, and delivered and shall be caused to be
recorded and/or filed by Grantor.
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7.5 Succession Instruments. Any substitute trustee appointed
pursuant to any of the provisions hereof shall, without any further act, deed or
conveyance, become vested with all the estates, properties, rights, powers, and
trusts of its, his or her predecessor in the rights hereunder with like effect
as if originally named as Trustee herein; but nevertheless, upon the written
request of Beneficiary or of the substitute trustee, the Trustee ceasing to act
shall execute and deliver any instrument transferring to such substitute
trustee, upon the trusts herein expressed, all the estates, properties, rights,
powers, and trusts of the Trustee so ceasing to act, and shall duly assign,
transfer and deliver any of the property and moneys held by such Trustee to the
substitute trustee so appointed in such Trustee's place.
7.6 No Representation by Trustee or Beneficiary. By accepting or
approving anything required to be observed, performed, or fulfilled or to be
given to Trustee or Beneficiary pursuant to the Loan Documents, neither Trustee
nor Beneficiary shall be deemed to have warranted, consented to, or affirmed the
sufficiency, legality, effectiveness or legal effect of the same, or of any
term, provision, or condition thereof, and such acceptance or approval thereof
shall not be or constitute any warranty or affirmation with respect thereto by
Trustee or Beneficiary.
8. MISCELLANEOUS PROVISIONS.
8.1 Additional Provisions. The Loan Documents fully state all of
the terms and conditions of the parties' agreement regarding the matters
mentioned in or incidental to this Deed of Trust. The Loan Documents also grant
further rights to Beneficiary and contain further agreements and affirmative and
negative covenants by Grantor which apply to this Deed of Trust and to the
Property.
8.2 No Waiver or Cure.
(a) Each waiver by Beneficiary must be in writing, and no
waiver shall be construed as a continuing waiver. No waiver shall be implied
from any delay or failure by Beneficiary to take action on account of any
default of Grantor. Consent by Beneficiary to any act or omission by Grantor
shall not be construed as a consent to any other or subsequent act or omission
or to waive the requirement for Beneficiary's consent to be obtained in any
future or other instance.
(b) If any of the events described below occurs, that
event alone shall not: cure or waive any breach, Event of Default or notice of
default under this Deed of Trust or invalidate any act performed pursuant to any
such default or notice; or nullify the effect of any notice of default or sale
(unless all Secured Obligations then due have been paid and performed and all
other defaults under the Loan Documents have been cured); or impair the security
of this Deed of Trust; or prejudice Beneficiary or any receiver in the exercise
of any right or remedy afforded any of them under this Deed of Trust; or be
construed as an affirmation by Beneficiary of any tenancy, lease or option, or a
subordination of the lien of this Deed of Trust.
(i) Trustee or Beneficiary, its agent or a
receiver takes possession of all or any part of the Property in the manner
provided in Subsection 6.3(c).
Twin County Mall, Galax, Virginia
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(ii) Beneficiary collects and applies Rents as
permitted under Sections 2.3 and 6.6 above, either with or without taking
possession of all or any part of the Property.
(iii) Beneficiary or Trustee receives and applies
to any Secured Obligation any proceeds of any Property, including any proceeds
of insurance policies, condemnation awards, or other claims, property or rights
assigned to Beneficiary under Section 5.5 and Section 5.6 above.
(iv) Beneficiary makes a site visit, observes the
Property and/or conducts tests as permitted under Section 5.13 above.
(v) Beneficiary or Trustee receives any sums
under this Deed of Trust or any proceeds of any collateral held for any of the
Secured Obligations, and applies them to one or more Secured Obligations.
(vi) Beneficiary, Trustee or any receiver invokes
any right or remedy provided under this Deed of Trust.
8.3 Powers of Beneficiary.
(a) If Beneficiary performs any act which it is empowered
or authorized to perform under this Deed of Trust, including any act permitted
by Section 5.8 or Subsection 6.3(d) of this Deed of Trust, that act alone shall
not release or change the personal liability of any person for the payment and
performance of the Secured Obligations then outstanding, or the lien of this
Deed of Trust on all or the remainder of the Property for full payment and
performance of all outstanding Secured Obligations. The liability of the
original Grantor shall not be released or changed if Beneficiary grants any
successor in interest to Grantor any extension of time for payment, or
modification of the terms of payment, of any Secured Obligation. Beneficiary
shall not be required to comply with any demand by the original Grantor that
Beneficiary refuse to grant such an extension or modification to, or commence
proceedings against, any such successor in interest.
(b) Beneficiary may take any of the actions permitted
under Subsections 6.3(b) and/or 6.3(c) regardless of the adequacy of the
security for the Secured Obligations, or whether any or all of the Secured
Obligations have been declared to be immediately due and payable, or whether
notice of default and election to sell has been given under this Deed of Trust.
(c) From time to time, Beneficiary may apply to any court
of competent jurisdiction for aid and direction in executing and enforcing the
rights and remedies created under this Deed of Trust. Beneficiary may from time
to time obtain orders or decrees directing, confirming or approving acts in
executing and enforcing these rights and remedies.
8.4 Merger. No merger shall occur as a result of Beneficiary's
acquiring any other estate in or any other lien on the Property unless
Beneficiary consents to a merger in writing.
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8.5 Joint and Several Liability. If Grantor consists of more than
one person, each shall be jointly and severally liable for the faithful
performance of all of Grantor's obligations under this Deed of Trust.
8.6 Applicable Law. The creation, perfection and enforcement of
the lien of this Deed of Trust shall be governed by the law of the State in
which the property is located. Subject to the foregoing, in all other respects,
this Deed of Trust shall be governed by the substantive laws of the Commonwealth
of Virginia.
8.7 Successors in Interest. The terms, covenants and conditions of
this Deed of Trust shall be binding upon and inure to the benefit of the heirs,
successors and assigns of the parties. However, this Section 8.7 does not waive
the provisions of Section 6.1 above.
8.8 Interpretation.
(a) Whenever the context requires, all words used in the
singular will be construed to have been used in the plural, and vice versa, and
each gender will include any other gender. The captions of the sections of this
Deed of Trust are for convenience only and do not define or limit any terms or
provisions. The word "include(s)" means "include(s), without limitation," and
the word "including" means "including, but not limited to."
(b) The word "obligations" is used in its broadest and
most comprehensive sense, and includes all primary, secondary, direct, indirect,
fixed and contingent obligations. It further includes all principal, interest,
prepayment charges, late charges, loan fees and any other fees and charges
accruing or assessed at any time, as well as all obligations to perform acts or
satisfy conditions.
(c) No listing of specific instances, items or matters in
any way limits the scope or generality of any language of this Deed of Trust.
The Exhibits to this Deed of Trust are hereby incorporated in this Deed of
Trust.
8.9 In-House Counsel Fees. Whenever Grantor is obligated to pay or
reimburse Beneficiary for any attorneys' fees, those fees shall include the
reasonable and customary allocated costs for services of in-house counsel.
8.10 Waiver of Statutory Rights. To the extent permitted by law,
Grantor hereby agrees that it shall not and will not apply for or avail itself
of any appraisement, valuation, stay, extension or exemption laws, or any
so-called "Moratorium Laws," now existing or hereafter enacted, in order to
prevent or hinder the enforcement or foreclosure of this Deed of Trust, but
hereby waives the benefit of such laws. Grantor for itself and all who may claim
through or under it waives any and all right to have the property and estates
comprising the Property marshalled upon any foreclosure of the lien hereof and
agrees that any court having jurisdiction to foreclose such lien may order the
Property sold as an entirety. Grantor hereby waives any and all rights of
redemption from sale under any judgment 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 Property of any nature whatsoever, subsequent to the date of
this Deed of Trust. The foregoing waiver of right of redemption is made pursuant
to the provisions of applicable law.
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8.11 Severability. If any provision of this Deed of Trust should be
held unenforceable or void, that provision shall be deemed severable from the
remaining provisions and shall in no way affect the validity of this Deed of
Trust except that if such provision relates to the payment of any monetary sum,
then Beneficiary may, at its option, declare all Secured Obligations immediately
due and payable.
8.12 Notices. Any notice, demand, request or other communication
which any party hereto may be required or may desire to give hereunder shall be
in writing and shall be deemed to have been properly given (a) if hand
delivered, when delivered; (b) if mailed by United States Certified Mail
(postage prepaid, return receipt requested), three Business Days after mailing
(c) if by Federal Express or other reliable overnight courier service, on the
next Business Day after delivered to such courier service or (d) if by
telecopier on the day of transmission so long as copy is sent on the same day by
overnight courier as set forth below::
Grantor: Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx, Xxxxxxx, & Xxxxxxx
1300 Huntington Center
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000 0000
Trustee: Alexander Title Agency, Incorporated
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx: Xxxxxxx
XxXxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Beneficiary: KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Real Estate Capital
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, LLP
8000 Sears Tower
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx, Esq.
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Telephone 000-000-0000
Facsimile 000-000-0000
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
Any notice or demand delivered to the person or entity named above to
accept notices and demands for Grantor shall constitute notice or demand duly
delivered to Grantor, even if delivery is refused.
8.13 Future Advances. This Deed of Trust is given to, and the
parties intend that it shall secure indebtedness, exclusive of interest thereon,
in a maximum amount equal to the Aggregate Commitment from time to time under
the Credit Agreement which shall be an amount up to $150,000,000 which
indebtedness may include advances made at the request of Grantor or its
respective successor(s) in title after this Deed of Trust is filed of record to
the fullest extent and with the highest priority contemplated by law (including
disbursements that the Lenders may, but shall not be obligated to, make under
this Deed of Trust, the Loan Documents or any other document with respect
thereto) plus interest thereon, and any disbursements made for the enforcement
of this Deed of Trust and any remedies hereunder, payment of taxes, special
assessments, utilities or insurance on the Property and interest on such
disbursements and all disbursements by Beneficiary pursuant to applicable law
(all such indebtedness being hereinafter referred to as the maximum amount
secured hereby). This Deed of Trust shall be valid and have priority to the
extent of the maximum amount secured hereby over all subsequent liens and
encumbrances, including statutory liens, excepting solely taxes and assessments
levied on the Property given priority by law. All future advances under the
Credit Agreement, the Notes, this Deed of Trust and the other Loan Documents
shall have the same priority as if the future advance was made on the date that
this Deed of Trust was recorded.
8.14 Beneficiary's Lien for Service Charge and Expenses. At all
times, regardless of whether any Loan proceeds have been disbursed, this Deed of
Trust secures the payment of any and all loan commissions, service charges,
liquidated damages, expenses and advances due to or incurred by Beneficiary not
to exceed the maximum amount secured hereby. For purposes hereof, all
obligations of Grantor to Beneficiary under all Rate Management Transactions and
any indebtedness or obligation contained therein or evidenced thereby shall be
considered an obligation of Grantor secured hereby, pursuant to the Credit
Agreement; provided however that in no event shall the total amount secured
hereby exceed $150,000,000.
8.15 Advances. The loan evidenced by the Notes is a "revolving
credit loan". The lien of the Deed of Trust shall secure all advances made
pursuant to the terms of the Agreement to the same extent as if such future
advances were made on the date of execution of the Deed of Trust, provided that
such advances are made within twenty (20) years from the date hereof. Although
there may be no indebtedness outstanding on the Note at the time any such
advance is made, the lien of the Deed of Trust as to third persons without
actual notice thereof, shall be valid as to all such indebtedness and future
advances from the time this Deed of Trust is filed for record. The total amount
of the indebtedness evidenced by the Notes and secured by the Deed of Trust may
increase or decrease from time to time, but the total unpaid balance so secured
at any one time shall not exceed the maximum amount specified in Section 7.14
plus interest thereon and any disbursements made for the payment of taxes,
special assessments, insurance or other
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disbursements made pursuant to the terms of this Deed of Trust, the Credit
Agreement, or the other Loan Documents.
8.16 WAIVER OF TRIAL BY JURY. GRANTOR HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS DEED OF TRUST, THE NOTE,
OR ANY OF THE OTHER LOAN DOCUMENTS, THE LOAN OR ANY OTHER STATEMENTS OR ACTIONS
OF GRANTOR OR BENEFICIARY. GRANTOR ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN
THE SIGNING OF THIS DEED OF TRUST AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS
DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. GRANTOR FURTHER ACKNOWLEDGES THAT
(i) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER,
(ii) THIS WAIVER IS A MATERIAL INDUCEMENT FOR BENEFICIARY TO MAKE THE LOAN,
ENTER INTO THIS DEED OF TRUST AND EACH OF THE OTHER LOAN DOCUMENTS, AND (iii)
THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF SUCH OTHER LOAN DOCUMENTS AS IF
FULLY INCORPORATED THEREIN.
8.17 Incorporation of Credit Agreement and Environmental Indemnity
Agreement. The terms and provisions of the Credit Agreement and that certain
Environmental Indemnity Agreement (the "Indemnity") dated as of even date
herewith, are incorporated herein by express reference. All advances and
indebtedness arising and accruing under the Credit Agreement from time to time,
whether or not the resulting indebtedness secured hereby may exceed the face
amount of the Notes, shall be secured hereby to the same extent as though said
Credit Agreement were fully incorporated in this Deed of Trust, and the
occurrence of any Event of Default under said Credit Agreement shall constitute
a Event of Default under this Deed of Trust entitling Beneficiary to all of the
rights and remedies conferred upon Beneficiary by the terms of both this Deed of
Trust and the Credit Agreement. Grantor hereby agrees to comply with all
covenants and fulfill all obligations set forth in the Credit Agreement and
Indemnity which pertain to the Premises as if Grantor were a party to such
documents. In the event of any conflict or inconsistency between the terms of
this Deed of Trust and the Credit Agreement or Indemnity, the terms and
provisions of the Credit Agreement or Indemnity as the case may be, shall in
each instance govern and control.
8.18 Inconsistencies. In the event of any inconsistency between
this Deed of Trust and the Credit Agreement, the terms hereof shall be
controlling as necessary to create, preserve and/or maintain a valid security
interest upon the Property, otherwise the provisions of the Credit Agreement
shall be controlling.
8.19 Partial Invalidity; Maximum Allowable Rate of Interest.
Xxxxxxx and Beneficiary intend and believe that each provision in this Deed of
Trust and the Notes comports with all applicable local, state and federal laws
and judicial decisions. However, if any provision or provisions, or if any
portion of any provision or provisions, in this Deed of Trust or the Notes is
found by a court of law to be in violation of any applicable local, state or
federal ordinance, statute, law, administrative or judicial decision, or public
policy, and if such court should declare such portion, provision or provisions
of this Deed of Trust and the Notes to be illegal, invalid, unlawful, void or
unenforceable as written, then it is the intent both of Grantor and Beneficiary
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that such portion, provision or provisions shall be given force to the fullest
possible extent that they are legal, valid and enforceable, that the remainder
of this Deed of Trust and the Notes shall be construed as if such illegal,
invalid, unlawful, void or unenforceable portion, provision or provisions were
not contained therein, and that the rights, obligations and interest of Grantor
and Beneficiary under the remainder of this Deed of Trust and the Notes shall
continue in full force and effect. All agreements herein and in the Notes are
expressly limited so that in no contingency or event whatsoever, whether by
reason of advancement of the proceeds hereof, acceleration of maturity of the
unpaid principal balance of the Notes, or otherwise, shall the amount paid or
agreed to be paid to the Holders for the use, forbearance or detention of the
money to be advanced hereunder exceed the highest lawful rate permissible under
applicable usury laws. If, from any circumstances whatsoever, fulfillment of any
provision hereof or of the Notes or any other agreement referred to herein, at
the time performance of such provision shall be due, shall involve transcending
the limit of validity prescribed by law which a court of competent jurisdiction
may deem applicable hereto, then, ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity and if from any circumstance the
Holders shall ever receive as interest an amount which would exceed the highest
lawful rate, such amount which would be excessive interest shall be applied to
the reduction of the unpaid principal balance due under the Notes and not to the
payment of interest.
8.20 UCC Financing Statements. Grantor hereby authorizes
Beneficiary to file UCC financing statements to perfect Beneficiary's security
interest in any part of the Property. In addition, Xxxxxxx agrees to sign any
and all other documents that Beneficiary deems necessary in its sole discretion
to perfect, protect, and continue Beneficiary's lien and security interest in
the Property.
8.21 Applicable Law. This Deed of Trust shall be construed,
interpreted and governed by the laws of the State in which the Premises are
located.
8.22 Certain Matters Relating to Property Located in the
Commonwealth of Virginia . With respect to the Property which is located in the
Commonwealth of Virginia, notwithstanding anything contained herein to the
contrary:
8.23 Statutory Provisions. Notwithstanding anything contained
herein to the contrary, this Deed of Trust is made under and pursuant to the
provisions of the Code of Virginia, Sections 55-59, 55-59.1, 55-59.2, 55-59.3,
55-59.4 and 55-60 as the same may be amended from time to time, and shall be
construed to impose and confer upon the parties hereto and the Beneficiary all
the rights, duties and obligations prescribed by said Sections, including
without limitation the following rights, duties, and obligations described in
short form:
(a) All exemptions are hereby waived.
(b) Subject to call on an Event of Default.
(c) Renewal, extension, or reinstatement permitted.
(d) Substitution of Trustees collectively or of any of
them individually by the Holder is permitted for any reason whatsoever, and any
number of times without exhaustion of the right to do so.
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(e) the Trustee's commission in the event of
advertisement but payment before sale, reasonable fees not in excess of 1% of
the outstanding indebtedness.
(f) Any trustee may act.
(g) the Trustee may require a deposit in the amount of
One and One-half Percent (1.5%) of the unpaid principal indebtedness then
secured hereby or Sixty Thousand Dollars ($60,000.00), whichever is greater, to
accompany each bid at foreclosure sale or sale in lieu thereof.
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IN WITNESS WHEREOF, Xxxxxxx has executed this Deed of Trust as of the
date first above written.
Grantor:
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership, sole member
By: Glimcher Properties Corporation, a
Delaware corporation, Sole General Partner
By: __________________________________
Xxxxxx X. Xxxxxxx,
Executive Vice President
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STATE OF ____________ )
) SS:
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this ____ day of
October, 2003, by Xxxxxx X. Xxxxxxx, with whom I am personally acquainted (or
proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged himself to be the Executive Vice President of Glimcher Properties
Corporation, a Delaware corporation, the Sole General Partner of Glimcher
Properties Limited Partnership, a Delaware limited partnership the within named
bargainor, and that he as such Executive Vice President, executed the foregoing
instrument for the purpose therein contained, by signing the name of the company
by himself as Xxxxxx X. Xxxxxxx. He is personally known to me or has produced a
State of ______________ driver's license as identification.
Sign Name:___________________________________
Notary Public
Print Name:__________________________________
Serial No. (if any):_________________________
[NOTARIAL SEAL]
My Commission Expires: ____________________
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EXHIBIT A
DESCRIPTION OF PREMISES
( SEE ATTACHED )
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EXHIBIT B
List of Names and Addresses of Lenders
KEYBANK NATIONAL ASSOCIATION, as administrative agent and lender:
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000
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