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Exhibit 10.112
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
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DEED OF TRUST, SECURITY AGREEMENT,
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FIXTURE FILING AND FINANCING STATEMENT
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THIS DEED OF TRUST, SECURITY AGREEMENT, FIXTURE FILING AND FINANCING
STATEMENT, together with all amendments and supplements hereto ("DEED OF TRUST")
is made as of June 28, 1999, between GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership (the "TRUSTOR"), having an address at ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, having an address at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, as trustee ("TRUSTEE"),
in favor of ▇▇▇▇▇▇▇ NATIONAL LIFE INSURANCE COMPANY, a Michigan corporation (the
"BENEFICIARY"), having an address c/o PPM Finance, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. DEED OF TRUST AND SECURED OBLIGATIONS.
1.1. DEED OF TRUST. For purposes of securing payment and performance of the
Secured Obligations defined and described in SECTION 1.2, Trustor, hereby
irrevocably and unconditionally grants, bargains, sells, conveys, mortgages,
warrants, assigns and pledges to Trustee, for the benefit of Beneficiary, with
right of entry and possession, and with power of sale, all estate, right, title
and interest which Trustor now has or may later acquire in and to the following
property (all or any part of such property, or any interest in all or any part
of it, as the context may require, the "PROPERTY"):
(a) the real property located in the County of ▇▇▇, State of North
Carolina and more particularly described in EXHIBIT A attached hereto,
together with all existing and future easements and rights affording access
to it (the "LAND");
(b) all buildings, structures and improvements now located or later to
be constructed on the Land (the "IMPROVEMENTS"); -------------
(c) all existing and future appurtenances, privileges, easements,
franchises and tenements of the Land, including all minerals, oil, gas,
other hydrocarbons and associated substances, sulfur, nitrogen, carbon
dioxide, helium and other commercially valuable substances which may be in,
under or produced from any part of the Land, all development rights and
credits, air rights, water, water rights (whether riparian, appropriative
or otherwise, and whether
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or not appurtenant) and water stock, and any land lying in the streets,
roads or avenues, open or proposed, in front of or adjoining the Land and
Improvements;
(d) all existing and future leases, subleases, subtenancies, licenses,
occupancy agreements and concessions ("leases", as defined in the
Assignment of Leases and Rents described in SECTION 2 herein, executed and
delivered to Lender contemporaneously herewith) relating to the use and
enjoyment of all or any part of the Land and Improvements, and any and all
guaranties and other agreements relating to or made in connection with any
of such leases;
(e) all goods, materials, supplies, chattels, furniture, fixtures,
equipment and machinery now or later to be attached to, placed in or on, or
used in connection with the use, enjoyment, occupancy or operation of all
or any part of the Land and Improvements, whether stored on the Land or
elsewhere, including all pumping plants, engines, pipes, ditches and
flumes, and also all gas, electric, cooking, heating, cooling, air
conditioning, lighting, refrigeration and plumbing fixtures and equipment,
all of which shall be considered to the fullest extent of the law to be
real property for purposes of this Deed of Trust;
(f) all building materials, equipment, work in process or other
personal property of any kind, whether stored on the Land or elsewhere,
which have been or later will be acquired for the purpose of being
delivered to, incorporated into or installed in or about the Land or
Improvements;
(g) all of Trustor's interest in and to the Loan funds, whether
disbursed or not, the Escrow Accounts (as defined in SECTION 3.1 of the
Loa Agreement) and any of Trustor's funds now or later to be held by or on
behalf of Trustee for the benefit of Beneficiary;
(h) all rights to the payment of money, accounts, accounts receivable,
reserves, deferred payments, refunds, cost savings, payments and deposits,
whether now or later to be received from third parties (including all
▇▇▇▇▇▇▇ money sales deposits) or deposited by Trustor with third parties
(including all utility deposits), contract rights, development and use
rights, governmental permits and licenses, applications, architectural and
engineering plans, specifications and drawings, as-built drawings, chattel
paper, instruments, documents, notes, drafts and letters of credit (other
than letters of credit in favor of Beneficiary), which arise from or relate
to construction on the Land or to any business now or later to be conducted
on it, or to the Land and Improvements generally;
(i) all proceeds, including all claims to and demands for them, of the
voluntary or involuntary conversion of any of the Land, Improvements or the
other property described above into cash or liquidated claims, including
proceeds of all present and future fire, hazard or casualty insurance
policies and all condemnation awards or payments now or later to be made by
any public body or decree by any court of competent jurisdiction for any
taking or in connection with any condemnation or eminent domain proceeding,
and all causes of action and their proceeds for any damage or injury to the
Land, Improvements or the other property described above or any part of
them, or breach of warranty in connection with the construction of the
Improvements, including causes of action arising in tort, contract, fraud
or concealment of a material fact;
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(j) all books and records pertaining to any and all of the property
described above, including computer-readable memory and software necessary
to access and process such memory ("BOOKS AND RECORDS"). Notwithstanding
anything in the foregoing to the contrary, Books and Records shall not be
deemed to include the general corporate books and records of the Trustor
which are maintained by Trustor on a consolidated basis for all of
Trustor's properties (which properties include the Property being secured
hereunder) except to the extent that information in such consolidated books
and records pertains to the Property secured hereunder;
(k) (i) all agreements heretofore or hereafter entered into relating
to the construction, ownership, operation, management, leasing or use of
the Land or Improvements; (ii) any and all present and future amendments,
modifications, supplements, and addenda to any of the items described in
(i) above; (iii) any and all guarantees, warranties and other undertakings
(including payment and performance bonds) heretofore or hereafter entered
into or delivered with respect to any of the items described in clauses (i)
and (ii) above; (iv) all trade names, trademarks, logos and other materials
used to identify or advertise, or otherwise relating to the Land or
Improvements; and (v) all building permits, governmental permits, licenses,
variances, conditional or special use permits, and other authorizations
(collectively, the "Permits") now or hereafter issued in connection with
the construction, development, ownership, operation, management, leasing or
use of the Land or Improvements, to the fullest extent that the same or any
interest therein may be legally assigned by Mortgagor; and
(l) all proceeds of, additions and accretions to, substitutions and
replacements for, and changes in any of the property described above.
Capitalized terms used above and elsewhere in this Deed of Trust without
definition have the meanings given them in the Loan Agreement referred to in
Section 1.2 below.
1.2. SECURED OBLIGATIONS. This Deed of Trust is made for the purpose of
securing the following obligations (the "SECURED OBLIGATIONS") in any order of
priority that Beneficiary may choose:
(a) Payment of all obligations at any time owing under a Promissory
Note (the "NOTE") of even date herewith, payable by Trustor as maker in the
stated principal amount of Ninety Million Dollars ($90,000,000.00) to the
order of Beneficiary, which Note matures and is due and payable in full not
later than July 1, 2009; and
(b) Payment and performance of all obligations of Trustor under a Loan
Agreement of even date herewith between Trustor, as borrower, and
Beneficiary, as lender (the "LOAN AGREEMENT"); and
(c) Payment and performance of all obligations of Trustor under this
Deed of Trust; and
(d) Payment and performance of any obligations of Trustor under any
Loan Documents (as defined in the Loan Agreement) which are executed by
Trustor, including without limitation the Environmental Indemnity; and
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(e) Payment and performance of all future advances and other
obligations that Trustor or any successor in ownership of all or part of
the Property may agree to pay and/or perform (whether as principal, surety
or guarantor) for the benefit of Beneficiary, when a writing evidences the
parties' agreement that the advance or obligation be secured by this Deed
of Trust; and
(f) Payment and performance of all modifications, amendments,
extensions and renewals, however evidenced, of any of the Secured
Obligations.
All persons who may have or acquire an interest in all or any part of the
Property will be considered to have notice of, and will be bound by, the terms
of the Secured Obligations and each other agreement or instrument made or
entered into in connection with each of the Secured Obligations. These terms
include any provisions in the Note or the Loan Agreement which provide that the
interest rate on one or more of the Secured Obligations may vary from time to
time.
2. ASSIGNMENT OF RENTS. As an inducement to Beneficiary to make the loan
evidenced by the Note and the Loan Agreement, Trustor has contemporaneously
herewith executed and delivered to Beneficiary an Assignment of Leases and Rents
with respect to the Property.
3. GRANT OF SECURITY INTEREST.
3.1. SECURITY AGREEMENT. The parties acknowledge that some of the Property
and some or all of the Rents (as defined in the Assignment of Leases and Rents)
may be determined under applicable law to be personal property or fixtures. To
the extent that any Property or Rents may be personal property, Trustor as
debtor hereby grants Beneficiary as secured party a security interest in all
such Property and Rents, to secure payment and performance of the Secured
Obligations. This Deed of Trust constitutes a security agreement under the
Uniform Commercial Code as in effect in the State in which the Property is
located (the "CODE"), covering all such Property and Rents.
3.2. FINANCING STATEMENTS. Trustor shall execute one or more financing
statements and such other documents as Beneficiary may from time to time require
to perfect or continue the perfection of Beneficiary's security interest in any
Property or Rents. Trustor shall pay all fees and costs that Beneficiary, or
Trustee on behalf of Beneficiary, may incur in filing such documents in public
offices and in obtaining such record searches as Beneficiary may reasonably
require. In case Trustor fails to execute any financing statements or other
documents for the perfection or continuation of any security interest, Trustor
hereby appoints Beneficiary as its true and lawful attorney-in-fact to execute
any such documents on its behalf.
3.3. FIXTURE FILING. Trustor and Beneficiary agree, to the extent permitted
by law, that this instrument constitutes a financing statement filed as a
fixture filing under Sections 9-313 and 9-402 of the Code, as amended or
recodified from time to time, covering any of the Property which now is or later
may become fixtures attached to the Land or the Improvements. The following
addresses are the mailing addresses of Trustor, as debtor under the Code, and
Beneficiary, as secured party under the Code, respectively:
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TRUSTOR: Glimcher Properties Limited Partnership
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
BENEFICIARY: ▇▇▇▇▇▇▇ National Life Insurance Company
c/o PPM Finance, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
4. REPRESENTATIONS, COVENANTS AND AGREEMENTS.
4.1. GOOD TITLE. Trustor represents, warrants, and covenants that it is
lawfully seized of the Property, that the Property is unencumbered except for
the Permitted Exceptions (as defined in the Loan Agreement), and that it has
good right, full power and lawful authority to convey and mortgage the same, and
that it will warrant and forever defend the Property and the quiet and peaceful
possession of the same against the lawful claims of all persons whomsoever.
4.2. INSURANCE. In the event of any loss or damage to any portion of the
Property due to fire or other casualty, or a taking of any portion of the
Property by condemnation or under the power of eminent domain, the settlement of
all insurance and condemnation claims and awards and the application of
insurance and condemnation proceeds shall be governed by SECTION 5 of the Loan
Agreement.
4.3. STAMP TAX. If, by the laws of the United States of America, or of any
state or political subdivision having jurisdiction over Trustor, any tax is due
or becomes due in respect of the issuance of the Note, or recording of this Deed
of Trust, Trustor covenants and agrees to pay such tax in the manner required by
any such law. Trustor further covenants to hold harmless and agrees to indemnify
Beneficiary, its successors or assigns, against any liability incurred by reason
of the imposition of any tax on the issuance of the Note or recording of this
Deed of Trust.
4.4. CHANGES IN TAXATION. Other than a tax that may arise in connection
with the transfer of the Note by Beneficiary or imposed on the income of the
Beneficiary, in the event of the enactment after this date of any law of the
State in which the Property is located or any political subdivision thereof
deducting from the value of land for the purpose of taxation any lien thereon,
or imposing upon Beneficiary the payment of the whole or any part of the taxes
or assessments or charges or liens herein required to be paid by Trustor, or
changing in any way the laws relating to the taxation of mortgages or debts
secured by mortgages or the Beneficiary's interest in the Property, or the
manner of collection of taxes, so as to adversely affect this Deed of Trust or
the debt secured hereby, then Trustor, upon demand by Beneficiary, shall pay
such taxes or assessments, or reimburse Beneficiary therefor; PROVIDED, HOWEVER,
that if in the opinion of counsel for Beneficiary (i) it might be unlawful to
require Trustor to make such payment or (ii) the making of such payment might
result in the imposition of interest beyond the maximum amount permitted by law,
then Beneficiary may elect, by notice in writing given to Trustor, to
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declare all of the Secured Obligations to be and become due and payable sixty
(60) days from the giving of such notice.
4.5. SUBROGATION. Beneficiary shall be subrogated to the liens of all
encumbrances, whether released of record or not, which are discharged in whole
or in part by Beneficiary in accordance with this Deed of Trust or with the
proceeds of any loan secured by this Deed of Trust.
4.6. NOTICE OF CHANGE. Trustor shall give Beneficiary prior written notice
of any change in: (a) the location of its place of business or its chief
executive office if it has more than one place of business; (b) the location of
any of the Property, including the Books and Records; and (c) Trustor's name or
business structure. Unless otherwise approved by Beneficiary in writing, all
Property that consists of personal property (other than the Books and Records)
will be located on the Land and all Books and Records will be located at
Trustor's place of business or chief executive office if Trustor has more than
one place of business.
4.7. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY. From time
to time, Beneficiary may perform any of the following acts without incurring any
liability or giving notice to any person: (i) release any person liable for
payment of any Secured Obligation; (ii) extend the time for payment, or
otherwise alter the terms of payment, of any Secured Obligation; (iii) accept
additional real or personal property of any kind as security for any Secured
Obligation, whether evidenced by deeds of trust, mortgages, security agreements
or any other instruments of security; (iv) alter, substitute or release any
property securing the Secured Obligations; (v) consent to the making of any plat
or map of the Property or any part of it; (vi) join in granting any easement or
creating any restriction affecting the Property; or (vii) join in any
subordination or other agreement affecting this Deed of Trust or the lien of it.
5. DEFAULTS AND REMEDIES.
5.1. EVENTS OF DEFAULT. An "Event of Default," as defined in the Loan
Agreement, shall constitute an Event of Default hereunder.
5.2. REMEDIES. At any time after an Event of Default, Beneficiary shall be
entitled to invoke any and all of the rights and remedies described below, in
addition to all other rights and remedies available to Beneficiary at law or in
equity. All of such rights and remedies shall be cumulative, and the exercise of
any one or more of them shall not constitute an election of remedies.
(a) ACCELERATION. Beneficiary may declare any or all of the principal
sum hereby secured to be due and payable immediately.
(b) RECEIVER. Beneficiary shall, as a matter of right, without notice
and without giving bond to Trustor or anyone claiming by, under or through
Trustor, and without regard for the solvency or insolvency of Trustor or
the then value of the Property, to the extent permitted by applicable law,
be entitled to have a receiver appointed for all or any part of the
Property and the Rents, and the proceeds, issues and profits thereof, with
the rights and powers
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referenced below and such other rights and powers as the court making such
appointment shall confer, and Trustor hereby consents to the appointment of
such receiver and shall not oppose any such appointment. Such receiver
shall have all powers and duties prescribed by the applicable laws in
effect in the State in which the Property is located, all other powers
which are necessary or usual in such cases for the protection, possession,
control, management and operation of the Property, and such rights and
powers as Beneficiary would have, upon entering and taking possession of
the Property under subsection (c) below.
(c) ENTRY. Beneficiary, in person, by agent or by court-appointed
receiver, may enter, take possession of, manage and operate all or any part
of the Property, and may also do any and all other things in connection
with those actions that Beneficiary may in its sole discretion consider
necessary and appropriate to protect the security of this Deed of Trust.
Such other things may include: taking and possessing all of Trustor's or
the then owner's Books and Records; entering into, enforcing, modifying or
canceling leases on such terms and conditions as Beneficiary may consider
proper; obtaining and evicting tenants; fixing or modifying Rents;
collecting and receiving any payment of money owing to Trustor; completing
any unfinished construction; and/or contracting for and making repairs and
alterations. If Beneficiary so requests, Trustor shall assemble all of the
Property that has been removed from the Land and make all of it available
to Beneficiary at the site of the Land. Trustor hereby irrevocably
constitutes and appoints Beneficiary as Trustor's attorney-in-fact to
perform such acts and execute such documents as Beneficiary in its sole
discretion may consider to be appropriate in connection with taking these
measures, including endorsement of Trustor's name on any instruments.
(d) CURE; PROTECTION OF SECURITY. Beneficiary may cure any breach or
default of Trustor, and if it chooses to do so in connection with any such
cure, Beneficiary may also enter the Property and/or do any and all other
things which it may in its sole discretion consider necessary and
appropriate to protect the security of this Deed of Trust. Such other
things may include: appearing in and/or defending any action or proceeding
which purports to affect the security of, or the rights or powers of
Beneficiary under, this Deed of Trust; paying, purchasing, contesting or
compromising any encumbrance, charge, lien or claim of lien which in
Beneficiary's sole judgment is or may be senior in priority to this Deed of
Trust, such judgment of Beneficiary to be conclusive as between the parties
to this Deed of Trust; obtaining insurance and/or paying any premiums or
charges for insurance required to be carried under the Loan Agreement;
otherwise caring for and protecting any and all of the Property; and/or
employing counsel, accountants, contractors and other appropriate persons
to assist Beneficiary. Beneficiary may take any of the actions permitted
under this Section 5.2(D) either with or without giving notice to any
person. Any amounts expended by Beneficiary under this Section 5.2(D) shall
be secured by this Deed of Trust.
(e) UNIFORM COMMERCIAL CODE REMEDIES. Beneficiary may exercise any or
all of the remedies granted to a secured party under the Code.
(f) FORECLOSURE; LAWSUITS. Beneficiary shall have the right, in one or
several concurrent or consecutive proceedings, to foreclose the lien hereof
upon the Property or any part thereof, for the Secured Obligations, or any
part thereof, by any proceedings appropriate under applicable law.
Beneficiary or its nominee may bid and become the purchaser of all or any
part
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of the Property at any foreclosure or other sale hereunder, and the amount
of Beneficiary's successful bid shall be credited on the Secured
Obligations. Without limiting the foregoing, Beneficiary may proceed by a
suit or suits in law or equity, whether for specific performance of any
covenant or agreement herein contained or contained in any of the other
Loan Documents (as defined in the Loan Agreement), or in aid of the
execution of any power herein granted, or for any foreclosure under the
judgment or decree of any court of competent jurisdiction, or for damages,
or to collect the indebtedness secured hereby, or for the enforcement of
any other appropriate legal, equitable, statutory or contractual remedy.
Trustee, at the direction of the Beneficiary, may sell the Property at
public auction in one or more parcels, at Beneficiary's option, and convey
the same to the purchaser in fee simple, Trustor to remain liable for any
deficiency for which Trustor shall be personally liable.
(g) FORECLOSURE BY POWER OF SALE.
(i) Should Beneficiary elect to foreclose by exercise of the
power of sale contained herein, upon Beneficiary's request, Trustee
shall sell the property in accordance with the applicable State law at
public auction to the highest bidder. Any person except Trustee may
bid at the Trustee's sale. Trustee shall apply the proceeds of the
sale as follows: (i) to the expenses of sale, including Trustee's fee
and attorneys' fee; (ii) to all the indebtedness evidenced by the Note
and all other indebtedness secured by this Deed of Trust or any other
Loan Document; (iii) the surplus, if any, shall be distributed in
accordance with the applicable State law. Trustee shall deliver to the
purchaser at the sale its deed, without warranty, which shall convey
to the purchaser the interest in the Property which Trustor had or had
the power to convey at the time of its execution of this Deed of Trust
and such as it may have acquired thereafter. Trustee's deed shall
recite the facts showing that the sale was conducted in compliance
with all the requirements of the law and of this Deed of Trust, which
recital shall be prima facie evidence of such compliance and
conclusive evidence thereof in favor of bona fide purchasers and
encumbrancers for value. The power of sale conferred by this Deed of
Trust and by the applicable State law is not an exclusive remedy, and
when not exercised Beneficiary may foreclose this Deed of Trust as a
mortgage.
(ii) After deducting all costs, fees and expenses of Beneficiary
and Trustee, including costs of evidence of title in connection with
any such sale, Beneficiary shall apply the proceeds of sale, in the
following order of priority, to payment of (i) first, all amounts
expended under the terms hereof and not then repaid, with accrued
interest, (ii) second, all other amounts then secured hereby, in such
order as Beneficiary shall determine in its sole and absolute
discretion, and (iii) the remainder, if any, to the person(s) legally
entitled thereto.
(iii) To the extent permitted by applicable law, Trustee may
postpone the sale of all or any portion of the Property by public
announcement at the time and place of sale, and from time to time
thereafter may again postpone such sale by public announcement or
subsequently noticed sale, and without further notice
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may make such sale at the time fixed by the last postponement or may,
in its discretion, give a new notice of sale.
(iv) A sale of less than all of the Property or any defective or
irregular sale made hereunder shall not exhaust the power of sale
provided for herein, and subsequent sales may be made hereunder until
all Secured Obligations have been satisfied or the entire Property
sold, without defect or irregularity.
(h) OTHER REMEDIES. Beneficiary may exercise all rights and remedies
contained in any other instrument, document, agreement or other writing
heretofore, concurrently or in the future executed by Trustor or any other
person or entity in favor of Beneficiary in connection with the Secured
Obligations or any part thereof, without prejudice to the right of
Beneficiary thereafter to enforce any appropriate remedy against Trustor.
Beneficiary shall have the right to pursue all remedies afforded to a
beneficiary of a deed of trust under applicable law, and shall have the
benefit of all of the provisions of such applicable law, including all
amendments thereto which may become effective from time to time after the
date hereof. In the event any provision of such law which is specifically
referred to herein may be repealed, Beneficiary shall have the benefit of
such provision as most recently existing prior to such repeal, as though
the same were incorporated herein by express reference.
(i) POWER OF SALE FOR PERSONAL PROPERTY. Under this power of sale,
Beneficiary shall have the discretionary right to cause some or all of the
Property, which constitutes personal property, to be sold or otherwise
disposed of in any combination and in any manner permitted by applicable
law.
(i) For purposes of this power of sale, Beneficiary may elect to
treat as personal property any Property which is intangible or which
can be severed from the Land or Improvements without causing
structural damage. If it chooses to do so, Beneficiary may dispose of
any personal property in any manner permitted by Article 9 of the
Code, including any public or private sale, or in any manner permitted
by any other applicable law.
(ii) In connection with any sale or other disposition of such
Property, Trustor agrees that the following procedures constitute a
commercially reasonable sale: Beneficiary shall mail written notice of
the sale to Trustor not later than ten (10) days prior to such sale.
Upon receipt of any written request, Trustor will make the Property
available to any bona fide prospective purchaser for inspection during
reasonable business hours. Notwithstanding, Beneficiary shall be under
no obligation to consummate a sale if, in its judgment, none of the
offers received by it equals the fair value of the Property offered
for sale. The foregoing procedures do not constitute the only
procedures that may be commercially reasonable.
(j) SINGLE OR MULTIPLE FORECLOSURE SALES. If the Property consists of
more than one lot, parcel or item of property, Beneficiary may:
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(1) designate the order in which the lots, parcels and/or items
shall be sold or disposed of or offered for sale or disposition; and
(2) elect to dispose of the lots, parcels and/or items through a
single consolidated sale or disposition to be held or made under or in
connection with judicial proceedings, or by virtue of a judgment and
decree of foreclosure and sale, or pursuant to the power of sale
contained herein; or through two or more such sales or dispositions;
or in any other manner Beneficiary may deem to be in its best
interests (any foreclosure sale or disposition as permitted by the
terms hereof is sometimes referred to herein as a "FORECLOSURE SALE;"
and any two or more such sales, "FORECLOSURE SALES").
If it chooses to have more than one Foreclosure Sale, Beneficiary at its option
may cause the Foreclosure Sales to be held simultaneously or successively, on
the same day, or on such different days and at such different times and in such
order as it may deem to be in its best interests. No Foreclosure Sale shall
terminate or affect the payment secured under the Deed of Trust on any part of
the Property which has not been sold, until all of the Secured Obligations have
been paid in full.
5.3. APPLICATION OF FORECLOSURE SALE PROCEEDS. The proceeds of any
Foreclosure Sale shall be applied in the following manner:
(a) First, to pay the portion of the Secured Obligations attributable
to the expenses of sale, costs of any action and any other sums for which
Trustor is obligated to reimburse Beneficiary hereunder or under the other Loan
Documents;
(b) Second, to pay the portion of the Secured Obligations attributable
to any sums expended or advanced by Beneficiary under the terms of this Deed of
Trust which then remain unpaid;
(c) Third, to pay all other Secured Obligations in any order and
proportions as Beneficiary in its sole discretion may choose; and
(d) Fourth, to remit the remainder, if any, to the person or persons
entitled to it.
Beneficiary shall have no liability for any funds which it does not actually
receive.
6. RELEASE. If Trustor shall fully pay and perform all of the Secured
Obligations and comply with all of the other terms and provisions hereof and the
other Loan Documents to be performed and complied with by Trustor, then
Beneficiary shall instruct Trustee to reconvey this Deed of Trust and the lien
thereof by proper instrument upon payment, performance and discharge of all of
the Secured Obligations and payment by Trustor of any filing fee in connection
with such release.
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7. CONCERNING THE TRUSTEE.
7.1. NO REQUIRED ACTION. Trustee shall not be required to take any action
toward the execution and enforcement of the trust hereby created or to
institute, appear in, or defend any action, suit, or other proceeding in
connection therewith where, in his opinion, such action would be likely to
involve him in expense or liability, unless requested so to do by a written
instrument signed by Beneficiary and, if Trustee so requests, unless Trustee is
tendered security and indemnity satisfactory to Trustee against any and all
cost, expense, and liability arising therefrom. Trustee shall not be responsible
for the execution, acknowledgment, or validity of the Loan Documents, or for the
proper authorization thereof, or for the sufficiency of the lien and security
interest purported to be created hereby, and Trustee makes no representation in
respect thereof or in respect of the rights, remedies, and recourse of
Beneficiary.
7.2. CERTAIN RIGHTS. With the approval of Beneficiary, Trustee shall have
the right to take any and all of the following actions: (i) to select, employ,
and consult with counsel (who may be, but need not be, counsel for Beneficiary)
upon any matters arising hereunder, including the preparation, execution, and
interpretation of the Loan Documents, and shall be fully protected in relying as
to legal matters on the advice of counsel, (ii) to execute any of the trusts and
powers hereof and to perform any duty hereunder either directly or through his
agents or attorneys, (iii) to select and employ, in and about the execution of
his duties hereunder, suitable accountants, engineers and other experts, agents
and attorneys-in-fact, either corporate or individual, not regularly in the
employ of Trustee; and (iv) any and all other lawful action that Beneficiary may
instruct Trustee to take to protect or enforce Beneficiary's rights hereunder.
Trustee shall not be personally liable in case of entry by Trustee, or anyone
entering by virtue of the powers herein granted to Trustee, upon the Property
for debts contracted for or liability or damages incurred in the management or
operation of the Property. Trustee shall have the right to rely on any
instrument, document, or signature authorizing or supporting any action taken or
proposed to be taken by Trustee hereunder, believed by Trustee in good faith to
be genuine. Trustee shall be entitled to reimbursement for expenses incurred by
Trustee in the performance of Trustee's duties hereunder and to reasonable
compensation for such of Trustee's services hereunder as shall be rendered.
Grantor will, from time to time, pay the compensation due to Trustee hereunder
and reimburse Trustee for, and save Trustee harmless against, any and all
liability and expenses which may be incurred by Trustee in the performance of
Trustee's duties.
7.3. RETENTION OF MONEY. All moneys received by Trustee shall, until used
or applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated in any manner from any other moneys
(except to the extent required by applicable law).
7.4. SUCCESSOR TRUSTEES. Trustee may resign by the giving of notice of such
resignation in writing to Beneficiary. If (a) Trustee shall die, resign, or
become disqualified from acting in the execution of this trust, or (b) for any
reason, Beneficiary shall prefer to appoint a substitute trustee, or successive
substitute trustees or successive multiple substitute trustees, to act instead
of the aforenamed Trustee, Beneficiary shall have full power to appoint a
substitute trustee in succession who shall succeed to all the estates, rights,
powers, and duties of the aforenamed Trustee. Such appointment may be executed
by any authorized agent of Beneficiary, and if such Beneficiary be a corporation
and such appointment be executed in its behalf by any
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officer of such corporation, such appointment shall be conclusively presumed to
be executed with authority and shall be valid and sufficient without proof of
any action by the board of directors or any superior officer of the corporation.
Grantor hereby ratifies and confirms any and all acts which the aforenamed
Trustee, or his successor or successors in this trust, shall do lawfully by
virtue hereof.
7.5. PERFECTION OF APPOINTMENT. Should any deed, conveyance, or instrument
of any nature be required from Grantor by any Trustee or substitute Trustee to
more fully and certainly vest in and confirm to the Trustee or substitute
Trustee such estates, rights, powers, and duties, then, upon request by the
Trustee or substitute Trustee, any and all such deeds, conveyances and
instruments shall be made, executed, acknowledged, and delivered and shall be
caused to be recorded and/or filed by Grantor.
7.6. SUCCESSION INSTRUMENTS. Any substitute Trustee appointed pursuant to
any of the provisions hereof shall, without any further act, deed, or
conveyance, become vested with all the estates, properties, rights, powers, and
trusts of its or his predecessor in the rights hereunder with like effect as if
originally named as Trustee herein; but nevertheless, upon the written request
of Beneficiary or of the substitute Trustee, the Trustee ceasing to act shall
execute and deliver any instrument transferring to such substitute Trustee, upon
the trusts herein expressed, all the estates, properties, rights, powers, and
trusts of the Trustee so ceasing to act, and shall duly assign, transfer and
deliver any of the property and moneys held by such Trustee to the substitute
Trustee so appointed in the Trustee's place.
7.7. NO REPRESENTATION BY TRUSTEE OR BENEFICIARY. By accepting or approving
anything required to be observed, performed, or fulfilled or to be given to
Trustee or Beneficiary pursuant to the Loan Documents, including, without
limitation, any officer's certificate, balance sheet, statement of profit and
loss or other financial statement, survey, appraisal, or insurance policy,
neither Trustee nor Beneficiary shall be deemed to have warranted, consented to,
or affirmed the sufficiency, legality, effectiveness, or legal effect of the
same, or of any term, provision, or condition thereof, and such acceptance or
approval thereof shall not be or constitute any warranty or affirmation with
respect thereto by Trustee or Beneficiary.
8. MISCELLANEOUS PROVISIONS.
8.1. ADDITIONAL PROVISIONS. The Loan Documents fully state all of the terms
and conditions of the parties' agreement regarding the matters mentioned in or
incidental to this Deed of Trust. The Loan Documents also grant further rights
to Beneficiary and contain further agreements and affirmative and negative
covenants by Trustor which apply to this Deed of Trust and the Property.
8.2. GIVING OF NOTICE. Any notice, demand, request or other communication
which any party hereto may be required or may desire to give hereunder shall be
given as provided in SECTION 9.3 of the Loan Agreement.
8.3. REMEDIES NOT EXCLUSIVE. No action for the enforcement of the lien or
any provision hereof shall be subject to any defense which would not be good and
available to the party interposing same in an action at law upon the Note.
Beneficiary shall be entitled to enforce
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payment and performance of any of the Secured Obligations and to exercise all
rights and powers under this Deed of Trust or other agreement or any laws now or
hereafter in force, notwithstanding some or all of the Secured Obligations may
now or hereafter be otherwise secured, whether by mortgage, deed of trust,
pledge, lien, assignment or otherwise. Neither the acceptance of this Deed of
Trust nor its enforcement, whether by court action or other powers herein
contained, shall prejudice or in any manner affect Beneficiary's right to
realize upon or enforce any other security now or hereafter held by Beneficiary,
it being agreed that Beneficiary shall be entitled to enforce this Deed of Trust
and any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. No waiver of any
default of the Trustor hereunder shall be implied from any omission by
Beneficiary to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect any default other
than the default specified in the express waiver and that only for the time and
to the extent therein stated. No acceptance of any payment of any one or more
delinquent installments which does not include interest at the Default Rate from
the date of delinquency, together with any required late charge, shall
constitute a waiver of the right of Beneficiary at any time thereafter to demand
and collect payment of interest at such Default Rate or of late charges, if any.
8.4. WAIVER OF STATUTORY RIGHTS. To the extent permitted by law, Trustor
hereby agrees that it shall not and will not apply for or avail itself of any
appraisement, valuation, stay, extension or exemption laws, or any so-called
"Moratorium Laws," now existing or hereafter enacted, in order to prevent or
hinder the enforcement or foreclosure of this Deed of Trust, but hereby waives
the benefit of such laws. Trustor for itself and all who may claim through or
under it waives any and all right to have the property and estates comprising
the Property marshaled upon any foreclosure of the lien hereof and agrees that
any court having jurisdiction to foreclose such lien may order the Property sold
as an entirety. To the extent permitted by law, Trustor hereby waives any and
all rights of redemption from sale under the power of sale contained herein or
any order or decree of foreclosure of this Deed of Trust on its behalf and on
behalf of each and every person, except decree or judgment creditors of Trustor,
acquiring any interest in or title to the Property subsequent to the date of
this Deed of Trust.
8.5. ESTOPPEL AFFIDAVITS. Trustor, within fifteen (15) days after written
request from Beneficiary, shall furnish a written statement, duly acknowledged,
setting forth the unpaid principal of, and interest on, the Secured Obligations
and stating whether or not any offset or defense exists against such Secured
Obligations, and covering such other matters as Beneficiary may reasonably
require.
8.6. MERGER. No merger shall occur as a result of Beneficiary's acquiring
any other estate in or any other lien on the Property unless Beneficiary
consents to a merger in writing.
8.7. BINDING ON SUCCESSORS AND ASSIGNS. This Deed of Trust and all
provisions hereof shall be binding upon Trustor and all persons claiming under
or through Trustor, and shall inure to the benefit of Beneficiary and its
successors and assigns.
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8.8. CAPTIONS. The captions and headings of various paragraphs of this Deed
of Trust are for convenience only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof.
8.9. SEVERABILITY. If all or any portion of any provision of this Deed of
Trust shall be held to be invalid, illegal or unenforceable in any respect, then
such invalidity, illegality or unenforceability shall not affect any other
provision hereof or thereof, and such provision shall be limited and construed
as if such invalid, illegal or unenforceable provision or portion thereof was
not contained herein.
8.10. EFFECT OF EXTENSIONS OF TIME AND AMENDMENTS. If the payment of the
Secured Obligations or any part thereof be extended or varied or if any part of
the security be released, all persons now or at any time hereafter liable
therefor, or interested in the Property, shall be held to assent to such
extension, variation or release, and their liability and the lien and all
provisions hereof shall continue in full force, the right of recourse, if any,
against all such persons being expressly reserved by Beneficiary,
notwithstanding such extension, variation or release. Nothing in this SECTION
8.10 shall be construed as waiving any provision contained herein or in the Loan
Documents which provides, among other things, that it shall constitute an Event
of Default if the Property be sold, conveyed, or encumbered.
8.11. SERVICE CHARGE AND EXPENSES. At all times, regardless of whether any
proceeds of the loan secured hereby have been disbursed, this Deed of Trust
secures (in addition to the amounts secured hereby) the payment of any and all
commissions, service charges, liquidated damages, expenses and advances due to
or incurred by Beneficiary in connection with such loan; PROVIDED, HOWEVER, that
in no event shall the total amount secured hereby exceed two hundred percent
(200%) of the face amount of the Note.
8.12. APPLICABLE LAW. This Deed of Trust shall be governed by and construed
under the internal laws of the State in which the Property is located.
8.13. LIMITATION OF LIABILITY. The personal liability of Mortgagor and its
general partner hereunder is limited to the extent set forth in SECTION 9.18 of
the Loan Agreement.
8.14. DUE ON SALE CLAUSE. As more fully set forth in SECTION 6.4 of the
Loan Agreement, the transfer or encumbrance of the Property, or any interest
therein, or the transfer of an interest in Trustor, except for the permitted
transfers set forth in SECTION 6.5 of the Loan Agreement, without prior written
consent of Beneficiary, shall constitute an Event of Default.
8.15. TIME IS OF THE ESSENCE. Time is of the essence with respect to each
and every covenant, agreement and obligation of Trustor under this Deed of
Trust, the Note and the other Loan Documents.
8.16. RECORDATION. Trustor forthwith upon the execution and delivery of
this Deed of Trust, and thereafter from time to time, will cause this Deed of
Trust, and any security instrument creating a lien or evidencing the lien hereof
upon the Property, or any portion thereof, and each instrument of further
assurance, to be filed, registered or recorded in such manner and in such
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places as may be required by any present or future law in order to publish
notice of and fully to protect the lien hereof upon, and the interest of
Beneficiary in, the Property.
Trustor will pay all filing, registration or recording fees and taxes,
and all expenses incident to the preparation, execution and acknowledgment of
this Deed of Trust, any deed of trust supplemental hereto, any security
instrument with respect to the Property and any instrument of further assurance,
and all federal, state, county and municipal stamp taxes, duties, impositions,
assessments and charges arising out of or in connection with the execution and
delivery of the Note, this Deed of Trust, any deed of trust supplemental hereto,
any security instrument, any other Loan Documents or any instrument of further
assurance.
8.17. MODIFICATIONS. This Deed of Trust may not be changed or terminated
except in writing signed by both parties. The provisions of this Deed of Trust
shall extend and be applicable to all renewals, amendments, extensions,
consolidations, and modifications of the other Loan Documents, and any and all
references herein to the Loan Documents shall be deemed to include any such
renewals, amendments, extensions, consolidations or modifications thereof.
8.18. INDEPENDENCE OF SECURITY. Except as may exist pursuant to easements
and agreements existing as of the date hereof which have been disclosed to
Mortgagee, Trustor shall not by act or omission permit any building or other
improvement on any premises not subject to the Deed of Trust to rely on the
Property or any part thereof or any interest therein to fulfill any municipal or
governmental requirement, and Trustor hereby assigns to Beneficiary any and all
rights to give consent for all or any portion of the Property to rely on any
premises not subject to the Deed of Trust or any interest therein to fulfill any
municipal or governmental requirement. Trustor shall not by act or omission
impair the integrity of the Property as a single zoning lot, and as one or more
complete tax parcels, separate and apart from all other premises. Any act or
omission by Trustor which would result in a violation of any of the provisions
of this SECTION 8.18 shall be void.
9. STATE SPECIFIC PROVISIONS. The provisions of the Addendum to Deed of Trust
attached hereto at ANNEX I (the "ADDENDUM") are hereby incorporated herein by
this reference. Defined terms in the Addendum for which no definition is
provided in the Addendum shall have the meanings given to such terms in the Deed
of Trust. In the event of any conflict or inconsistency between the provisions
of the Deed of Trust and the provisions of the Addendum, the provisions of the
Addendum shall prevail.
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the
date first written above.
TRUSTOR:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, a
Delaware corporation, its sole general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Its: Executive Vice President/COO/CFO
----------------------------------
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Secretary
-------------------------------
[Affix Corporate Seal]
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STATE OF OHIO
COUNTY OF FRANKLIN
I, a Notary Public of the County and State aforesaid, certify that ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ personally came before me this day and acknowledged that he/she is
Secretary of Glimcher Properties Corporation, a Delaware corporation, the sole
general partner of GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership and that by authority duly given and as the act of the corporation
on behalf of said partnership, the foregoing instrument was signed in its name
by its Executive Vice President, sealed with its corporate seal and attested by
him/her as its Secretary.
Witness my hand and official stamp or seal, this 28th day of June, 1999.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇)
------------------------------
Notary Public
My Commission Expires:
August 19, 1999
----------------------
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EXHIBIT A
---------
LEGAL DESCRIPTION
Beginning at an iron pipe, said iron pipe being located South
57(degrees)07'02" West 173.37 feet from a set concrete monument located at the
intersection of the Southern right of way of ▇▇▇▇▇▇▇ Street and the Western
right of way U.S. Highway 421 (South ▇▇▇▇▇▇ Blvd.) thence, South 14(degrees) 23'
56" East 59.27 feet to an iron pipe; thence, South 36(degrees) 44' 35" East
176.96 feet to an iron pipe; thence North 53(degrees) 15' 25" East 195.51 feet
to an iron pipe lying on the Western right of way of South ▇▇▇▇▇▇ Blvd., thence,
as the right of way of South ▇▇▇▇▇▇ Blvd.; South 36(degrees) 44' 35" East 192.61
feet to an iron pipe; thence, leaving the Western right of way of South ▇▇▇▇▇▇
Blvd., South 53(degrees) 15' 24" West 195.51 feet to an iron pipe; thence, South
36(degrees) 44' 35" East 152.78 feet to an iron pipe; thence South 70(degrees)
47'32" East 34.02 feet to an iron pipe; thence, North 68(degree) 52' 23" East
125.10 feet to an iron pipe; thence North 53(degrees) 16' 11" East 26.43 feet to
an iron pipe; thence, North 08(degrees) 16' 11" East 24.82 feet to an iron pipe
on the Western right of way of South ▇▇▇▇▇▇ Blvd.; thence as the Western right
of way South ▇▇▇▇▇▇ Blvd., South 36(degrees) 44' 35" East 107.82 feet to an iron
pipe; thence, leaving the Western the right of way of South ▇▇▇▇▇▇ Blvd., South
82(degrees) 45' 30" West 48.97 feet to an iron pipe; thence, South 68(degrees)
52' 23" West 142.12 feet to an iron pipe; thence, South 19(degrees) 34' 12" West
19.83 feet to an iron pipe; thence, South 30(degrees) 03' 11" East 209.79 feet
to an iron pipe; thence, South 75(degrees) 03'11" East 21.92 feet to an iron
pipe; thence, North 59(degrees) 56'47" East 208.16 feet to an iron pipe in
Western right of way of South ▇▇▇▇▇▇ Blvd., thence as the right of way of South
▇▇▇▇▇▇ Blvd., South 33(degrees) 08' 15" East 42.56 feet to an iron pipe, thence
leaving the Western right of way of South ▇▇▇▇▇▇ Blvd., South 59(degrees) 56'47"
West 1229.01 feet to an iron pipe lying on the Eastern boundary of the Southview
Subdivision as recorded in Plat Cabinet 2, Slide 519, ▇▇▇ County Registry;
thence as the eastern boundary line of Southview Subdivision North 30(degrees)
03' 11" West 1014.07 feet to an iron pipe lying on the Southern right of way of
Seawall street; thence the following bearings and distances, along the Southern
right ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; North 65(degrees) 01' 24" East 135.60 feet to an
iron pipe; thence, North 61(degrees) 37' 55" East 619.38 feet to an iron pipe;
thence along a curve with a radius of 608.82 feet, an arc of 148.48 feet, a
chord of 148.11 feet and a chord bearing of North 68(degrees) 37' 08" East to an
iron pipe; thence, North 75(degrees) 36' 20" East 60.51 feet to the point of the
beginning.
continued...
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EXHIBIT A
---------
LEGAL DESCRIPTION
(CONTINUED)
Above legal description containing 23.711 acres and being a portion of the tract
described in Deed Book 450, Page 953, recorded in the ▇▇▇ County Registry.
TOGETHER WITH ALL easements appurtenant to said 23.711 acre tract of
land, including but not limited to (i) sign easement, drainage easement and
irrigation line easement created and described in Paragraph 4, "Seller's
Permanent Easement," in instrument styled "Grant of Easement Agreement" dated
March 27, 1992, by and between LC of ▇▇▇▇▇▇▇, Inc., and ▇▇▇▇▇▇-▇▇▇▇▇
Enterprises, Inc., and recorded in Deed Book 476, Page 639, ▇▇▇ County Registry;
(ii) slope easement and drainage easement created and described in Paragraph 3,
"Buyer's Permanent Easements," in instrument styled "Agreement Regarding
Easements and Restrictions" dated April 29, 1991 by and between LC of ▇▇▇▇▇▇▇,
Inc. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and recorded in Deed Book
460, Page 965, the ▇▇▇ County Registry and re-recorded in Book 490, Page 26, the
▇▇▇ County, Registry; and (iii) ingress and egress easements created and
described in Paragraph 3 in instrument styled "Declaration of Restrictions and
Easements" dated April 29, 1991 by LC of ▇▇▇▇▇▇▇, Inc. and recorded in Deed Book
460, Page 956, as amended by instruments recorded in Deed Book 476, Page 630;
Deed Book 490, Page 38; Book 541, Page 155; and Book 541, Page 158, all of the
▇▇▇ County Registry; and (iv) easements created and described in that certain
Reciprocal Easement Agreement and Declaration of Restrictions recorded in Book
490, Page 50, and Book 490, Page 35, all in ▇▇▇ County Registry, North Carolina.
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ANNEX I
1.3 DISCHARGE. THIS CONVEYANCE IS MADE UPON THIS SPECIAL TRUST, that if
Trustor shall pay the Note in accordance with its terms and shall comply with
all the convenants, terms and conditions of this Deed of Trust and otherwise
perform the Obligations, this conveyance shall be null and void and shall be
cancelled of record at the request of Trustor.
1.4 FUTURE ADVANCES. This Deed of Trust is given in whole or in part to
secure all present and future obligations of Trustor to Beneficiary. The period
in which future obligations may be incurred and secured by this Deed of Trust is
the period between the date hereof and that date which is the earlier of (i) the
stated maturity date of the Note or (ii) fifteen (15) years from the date
hereof. The amount of present obligations secured by this Deed of Trust is
Seventy One Million Four Hundred Twenty Five Thousand Dollars ($71,425,000) and
the maximum principal amount, including present and future obligations, which
may be secured by this Deed of Trust at any one time is Ninety Million Dollars
($90,000,000). Any additional amounts advanced by Beneficiary pursuant to the
provisions of this Deed of Trust shall be deemed necessary expenditures for the
protection of the security. Trustor need not sign any instrument or notation
evidencing or stipulating that future advances are secured by this Deed of
Trust.
3. GRANT OF SECURITY AGREEMENT.
This Deed of Trust shall constitute a security agreement pursuant to the
Uniform Commercial Code for any items constituting a part of the Property which,
under applicable law, may be subjected to a security interest pursuant to the
Uniform Commercial Code, and the Trustor hereby grants Beneficiary a security
interest in such items. Trustor agrees that Beneficiary may file this Deed of
Trust, or a copy thereof, in the real estate records or other appropriate index,
as a financing statement for any of such items including, without limitation,
those items which are, or are to become fixtures with respect to the Land.
Trustor shall also execute and deliver to Beneficiary, upon Beneficiary's
request, any financing statements and continuation statements, as Beneficiary
may require to perfect a security interest with respect to such items. Trustor
shall pay all costs of filing such financing and continuation statements and
releases thereof. Without the prior written consent of Beneficiary, Trustor
shall not create or suffer to be created any other security interest in such
items, including replacements and additions thereto. Upon the occurrence of an
Event of Default, Beneficiary shall have the remedies of a secured party under
the Uniform Commercial Code. In exercising such remedies, Beneficiary may
proceed against the real property and personal property described herein
separately or together and in any order whatsoever, without in any way affecting
the availability of Beneficiary's remedies under the Uniform Commercial Code or
herein. This Deed of Trust shall constitute a financing statement filed as a
fixture filing in accordance with N.C. Gen. Stat. ss. 25-9-402 (or any amendment
thereto). For purposes of complying with the requirements of N.C. Gen. Stat. ss.
25-9-402, the name of Trustor, as Debtor, and Beneficiary, as Secured Party, and
the respective addresses of Trustor, as Debtor, and Beneficiary, as Secured
Party, are set forth on the first page of this Deed of Trust; the types or items
of Collateral are described in this paragraph and in the definition of the
"Property" appearing in the granting clauses of this Deed
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of Trust; and the description of the Land is set forth on Exhibit "A" attached
hereto. THE COLLATERAL IS OR INCLUDES FIXTURES.
5.2(g) FORECLOSURE; POWER OF SALE. Upon the occurrence of an Event of
Default, Beneficiary may notify Trustee to exercise the power of sale granted
hereunder and upon such notification it shall be lawful for and the duty of
Trustee, and Trustee is hereby authorized and empowered to expose to sale and to
sell the Property or any part thereof at public sale to the highest bidder for
cash, in compliance with applicable requirements of North Carolina law governing
the exercise of powers of sale contained in deeds of trust and upon such sale,
Trustee shall collect the purchase proceeds and convey title to the portion of
the Property so sold to the purchaser in fee simple. In the event of a sale of
the Property or any part thereof, the proceeds of sale shall be applied in the
following order of priority: (i) to the payment of all costs and expenses for
and in connection with such sale, including a commission for Trustee's services
as hereinafter provided and reasonable attorney's fees incurred by Trustee for
legal services actually performed; (ii) to the reimbursement of Beneficiary for
all sums expended or incurred by Beneficiary under the terms of this Deed of
Trust or to establish, preserve or enforce this Deed of Trust or to collect the
Obligations (including, without limitation, reasonable attorneys' fees); (iii)
to the payment of the Note and interest thereon and all other Obligations hereby
secured; and (iv) the balance, if any, shall be paid to the parties lawfully
entitled thereto. In the event of a sale hereunder, Beneficiary shall have the
right to bid at such sale and shall have the right to credit all or any portion
of the indebtedness secured hereby against the purchase price. Trustee shall
have the right to designate the place of sale in compliance with applicable law
and the sale shall be held at the place designated by the notice of sale.
Trustee may require the successful bidder at any sale to deposit immediately
with Trustee cash or certified check or cashier's check in an amount up to ten
percent (10%) of the bid provided notice of such deposit requirement is
published as required by law. The bid may be rejected if the deposit is not
immediately made. Such deposit shall be refunded in case of a resale because of
an upset bid or if Trustee is unable to convey the portion of the Property so
sold to the bidder because the power of sale has been terminated in accordance
with applicable law. If the purchaser fails to comply with its bid, the deposit
may, at the option of Trustee, be retained and applied to the expenses of the
sale and any resales and to any damages and expenses incurred by reason of such
default (including the amount that such bid exceeds the final sales price), or
may be deposited with the Clerk of Superior Court. In all other cases, the
deposit shall be applied to the purchase price. Pursuant to N.C. Gen. Stat.
Section 25-9-501(4)(or any amendment thereto), Trustee is expressly authorized
and empowered to expose to sale and sell, together with the real estate, any
portion of the Property which constitutes personal property. If personal
property is sold hereunder, it need not be at the place of sale. The notice of
sale, however, shall state the time and place where such personal property may
be inspected prior to sale.
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