TenX Group LLC — Credit Line Deed of Trust and Fixture Filing (WV EDA)
- Date
- 2013-08-21
Summary
Exhibit A-3, filed November 2, 2019 as Doc 52-3 in bankruptcy case No. 2:19-bk-00787, is a recorded Credit Line Deed of Trust and Fixture Filing dated August 21, 2013. Under it, TenX Group LLC, a Delaware limited liability company, as grantor, conveys to a trustee for the benefit of the WVEDA, a West Virginia public corporation, its interest in land in Moorefield District, Hardy County, West Virginia, with fixtures, equipment, leases and rents. The deed secures a loan of $5,000,000.00 for a term of fifteen (15) years under a promissory note, a loan agreement, a collateral assignment of leases and rents, and guaranties. It sets out grantor covenants on taxes, insurance, liens and financial reporting, and lists events of default. The filing closes with a tract description of 689.40 acres and an Exhibit B listing permitted liens.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 1 of
72
Exhibit A-3
Crédit Line Deed of Trust and Fixture Filing (recorded),
dated August 21, 2013
No. 2:19-bk-00787 Doc 52-3 BOOK
Filed 11/02/19 277 PAGE
Entered 11/02/19158(23)
10:03:07191330
Page 2 of
WV ECONOMIC DEVELOPMENT AUTH 72
NORTH GATE BUSINESS PARK
180 ASSOCIATION DR
CHARLESTON. WV 25311-1217
A CREDIT I INF DEED OF TRUST AND FIXTURE FILING
THIS CREDIT LINE DEED OF TRUST AND FIXTURE FILING (the
"Deed of Trust"), dated this 21 st day of August, 2013, by and among TENX CROUP LLC, a
Delaware limited liability company ("Grantor"), JOYCE F. OFSA, a résident of Kanawha
County, West Virginia, as trustée ("Trustée"), and the WEST VIRGINIA ECONOMIC
C VO
DEVELOPMENT AUTHORITV, a West Virginia public corporation (referred to herein as
CO 00
e <7
~ o
c. T
VD ro either "WVEDA" or "Beneficiary").
d^
c o
WITNESSETH:
<U o
CÛ
(S
That for and in considération of the indebtedness and trusts hereinafter set forth
« s
and the sum of Ten Dollars ($10.00), cash in hand paid, the receipt and sufficiency of which are
« c" hereby acknowledged, the Grantor does hereby GILANT and CONVEY unto the Trustée, with
£ s
3 </>
the power of sale, ail of the following;
2 u-
3 a
o ro
js W
V) e
(a) Ail of Grantor's interest in those certain parcels or tracts of land located in
c ■£
.2 F
ç3 o
•s 3 Moorefield District, Hardy County, West Virginia, together with ail buildings, improvements and
o o
o OÛ
jL> "-l
«J
c ^
o s
o. c4
structures at any time now or hereafter erected, situated or placed thereon by Grantor and ail
3 c
« o
o
rights, privilèges, eascmcnts, hereditaments, appendages and appurtenances thereunto belonging
^ m
"S o
îa J
ex, :-l or appertaining, as more particularly described on Exhibit A attached hereto and made a part of
1—
D, w'
c c
s cS this Deed of Trust;
E ce
2 ^
Ii (b) Ail right, title, interest and estate of the Grantor in and to streets,
.<2 o
roadways, sidewalks, curbs, alleys and areas involving the estate hereby conveyed and portions
thereof, and whether vacated by law or ordinance (conditionally or otherwise);
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 3 of
72
(c) AU fixtures, fixed assets and personalty of a permanent nature, owned by
the Grantor now or at any time hereafter annexed, affîxed or attached to the Property (as defined
herein) hereby conveyed and the buildings, improvements or structures thereon and used or
intended to be used in the possession, occupation or enjoyment thereof, and ail replacements
additions and substitutions thereof or thereto, including, but without limiting the generality of the
foregoing, ail apparatus, appliances, machineiy, equipnient and articles located on the Propeity
hereby conveyed and used to supply or provide or in connection with beat, gas, air conditioning,
plumbing, water, lighting, power, elevator service, sewerage, réfrigération, cooling, ventilation,
sprinkler system and water heater, ail of which, described in this item (c), shall be a part of the
freehold and a portion of the security for the obligation herein described;
(d) AU equipment, materials, supplies and olher property of every kind or
nature whatsoever, now or hereafter owned by Grantor or in which Grantor has or shall have an
interest, procured for incorporation in or to be affixed to buildings or other improvements on the
Property hereby conveyed or appurtenances thereto; and existing and future leases for ail or any
part of the Property hereby conveyed, logether with ail rent, income, or other proceeds from the
Property hereby conveyed; and
(e) AU rentals, proceeds, revenues and other income from the aforementioned
land, buildings and improvements or any part thereof; but so long as Grantor is not in default
hereunder, Grantor may collect and receive ail of said income.
AU property described above shall secure the obligations herein described and
covered by this Deed of Trust, and ail of the foregoing property, inlerests in property and other
rights and interests arc herein sometimes referred to collectively as the "Property."
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 4 of
72
The Grantor docs hercby covenant to and with the Trustée that it will
WARRANT GENEl^LLY the title to its interest in the Property; that Grantor has the right to
convey its interest in the Property to the Trustée; that the same is free from any and ail liens,
ciaims and encumbrances, except the following which are collectively referred to herein as the
"Permitted Encumbrances":(i) real estate taxes assessed but not yet due and payable; and (ii) ail
other exceptions listed on Schedule B,Section II of the Title Insurance Policy issued by Investors
Title Insurance Company; and that Grantor will execute such further assurances of the Property
as may be requisite, including, but not limited to, the exécution and delivery of financing
statements and such other instruments as may be required to impose the lien hereof more
specifically upon any item or items of property, or rights or interests therein, covered by this
Deed of Trust.
IN TRUST NEVERTHELESS, to secure the following: (i) the payment of the
principal sum of Five Million and 00/100 Dollars ($5,000,000.00)(the "Loan"), with ail interest
accruing thereon for a terni of fifteen (15) years, evidenced by a Promissory Note of even date
herewith in the original principal amount of Five Million and 00/100 Dollai'S ($5,000,000.00),
made and executed by the Grantor and payable to the WVEDA which is the bénéficiai owner of
the debt secured hereby (together with ail amendments, renewals, extensions, substitutions and
modifications thereof, the "Note"),(ii) the performance by Grantor and the Guarantors of all the
ternis and conditions under that certain Loan Agreement of even date herewith by and among
WVEDA, Grantor, and the Guarantors named therein (together with ail amendments, renewals,
extensions, substitutions and modifications thereof, the "Loan Agreement"),(iii) the performance
by the Grantor of all the terms and conditions under that certain Collatéral Assignment of Leases
and Rents of even date herewith by and between Grantor and WVEDA (together with all
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 5 of
72
amendments, renewals, extensions, substitutions and modifications thereof, the "Lease
Assignment"), (iv) the performance by Guarantors of their obligations under their respective
Guaranty dated of even date herewith (togetlier with ail amendments, renewals, extensions,
substitutions and modifications thereof, collectively, the "Guaranties"), made for the benefît of
WVEDA and guaranteeing the payment by Grantor to WVEDA of ail accrued interest, unpaid
principal, late charges and other amounts due and owing by Grantor to WVEDA under the Note,
and (v) the performance by Grantor and the Guarantors of ail terms and conditions of the other
WVEDA Loan Documents. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Loan Agreement. This Deed of Trust shall also
secure any note or notes given in continuation, modification, renewal or in lieu of or in
substitution for the Note, however changed in form, manner or amount, together with any interest
that may be due thereon.
Grantor covenants, represents, warrants and agréés with the Trustée and with the
Beneficiary, and each of thcm, as follows:
1. That Grantor will promptly pay ail taxes, charges and assessments lawfully
levied against the Property and upon its failure to so do, then the Trustée or the Beneficiary may,
without any obligation to do so, pay the same or any part thereof remaining unpaid, and any
amount so paid shall bear interest at the rate of ten percent (10%) per annum from the date of
such payment and be and become secured by this Deed of Trust.
2. That Grantor will or shall cause any lessee of the Property to keep ail
buildings and other improvements now or hereafter placed on the Property hereby conveyed, and
the appartenances thereunto belonging, fully insured pursuant to the terms and conditions of the
Loan Agreement. Upon full foreclosure or a deed in lieu of such foreclosure, ail of Grantor's or
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 6 of
72
its lessee's right, title and iiiterest in and to the aforesaid insurance shall automatically pass to
and be the property of the then holder of the obligation hereby secured.
3. Thaï Grantor will or shall cause any lessee of the Property to keep and
maintain ail buildings and other improvements now or hereafter placed on the real property
hereby conveyed in good repair and condition pursuant to the ternis and conditions of the Loan
Agreement.
4. That Grantor will not, without prior written consent of the Beneficiary,
create or permit to exist or be created any mortgage, deed of trust, pledge or other lien or
encumbrance on any of the Property, except this Deed of Trust and the Permitted Encumbrances,
and will not suffer or permit any mechanic's or materialmen's liens or any other lien of any
nature whatsoever to attach to any of the Property or to remain outstanding against same or any
part thereof; provided, however, that Grantor may, in good faith, contest the validity of any such
lien and, in the case of such contest, provide for the payment thereof in a manner satisfactory to
Beneficiary.
5. That no Hazardous Substances currently directly or indirectly affect the
Property. In the event Grantor shall fail to comply with the provisions of this paragraph 5,
Beneficiary and Trustée shall have the right, but shall not be required, to enter in and upon the
Property and take such other actions as Beneficiary and Trustée deem necessary or advisable in
order to inspcct, test, clean up, remove, or otherwise remedy any and ail improper releases or
discharges of hazardous substances or to respond to any complaint, order, citation, directive,
daim, notice, or other action against Grantor, Beneficiary or Trustée by any applicable
governmental unit or any private party or group for violations of any applicable environmental
law in order to protect the Property, and any and ail costs incurred by Beneficiary and Trustée
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 7 of
72
pursuant thereto shall be immediately duc and payable by Grantor upon demand and shall be
further secured hereby.
6. That Grantor wili pay le Trustée and will pay the holder of any
obligations, the payment of which is hereby secured, any and ail sums of money,including costs,
expenses and attorneys' fees incurred or expended in any proceedings, légal or équitable, to
sustain the lien of this Decd of Trust, or its priority, or in defending any party hereto or any party
hereby secured against the liens, demands or daims of title, or any or either of them, of any
person or persons asserting priority over this Deed of Trust or asserting title adverse to the title
undcr which the Trustée holds, or in the discharge of any such lien or daim, or in connection
with any suit at law or in equity to foreclose this Deed of Trust or to recover any obligation
hereby secured, together with interest on such sums at the rate of ten percent (10%) per annum
until paid, and this Deed of Trust shall stand as security therefor.
7. That the information furnished to Bcneficiary by Grantor concerning
Grantor's fmancial status is correct and complété, and that there havc been no adverse changes in
Grantor's financial status since such information was furnished to Beneficiary.
8. That Grantor will kcep proper books of record and account in accordance
with Sound accounting practicc concerning Grantor's business; will furnish the Beneficiary a
copy of its year end fmancial statement and will give the Beneficiary further information
concerning its financial condition or business activities, each as required by the Loan Agreement.
9. The occurrence of any of the following events shall constitute an event of
default under this Deed of Trust (hereinafter called an "Event of Default"): (a) if Grantor shall
fail to pay the principal, interest or other sums due and owing under the Loan in accordance with
the tenus or time periods described in the Loan Agreement or Grantor shall fail to pay as and
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 8 of
72
when due any other sums due and owing under this Deed of Trust or under any of the other
WVEDA Loan Documents;(b) if Grantor or any Guarantor shall fail to observe or perform any
other agreement, term, obligation, covenant or condition contained in this Deed of Trust, the
Lease Assignment, the Guaranties, the Loan Agreement or any other WVEDA Loan Document;
(c) any warranty, représentation or statement made or furnished to Beneflciary by or on behalf of
Grantor or any Guarantor under this Deed of Trust, the Lease Assignment, the Loan Agreement,
the Guaranties or any other WVEDA Loan Document is false or misleading in any material
respect, at the time made or furnished;(d) the commission by Grantor, including any members,
managers, offïcers, employées or agents of Grantor, of any illégal or fraudulent act with the intent
to deceive Beneficiai'y including, without limitation, the falsification of any of Grantor's books
or records;(e) this Deed of Trust, the Lease Assignment, the Loan Agreement, the Guaranties or
any of the other WVEDA Loan Documents ceases to bc in full force and effect (including failure
of any collatéral document to create a valid or perfected security interest or lien) at any time and
for any reason;(f) if a default or event of default shall occur and continue beyond any applicable
grâce period with respect to any other indebtedness of Grantor;(g) the dissolution or termination
of Grantor's or any Company Guarantor's existence as an ongoing business, Grantor's or any
Guarantor's insolvency, the appointment of a receiver for any part of Grantor's or any
Guarantor's property that has not been released or dismissed in sixty (60) days, any assignment
for the benefit of creditors of ail or substantially ail of Grantor's property including, but not
limited to, the Property, any type of creditor workout involving the Property, the commencement
of any voluntary proceeding under any baiikruptcy or insolvency laws by Grantor, or Grantor
admits in writing its inability to pay its debts as they become due;(h)the commencement of any
involuntary proceeding under bankruptcy or other insolvency laws against Grantor that is not
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 9 of
72
dismissed within sixty (60) days of the filing date;(i) commencement of foreclosure, whether by
judicial proceeding, self-help, repossession or any other method, by any creditor of Grantor
against the Property or any of the collatéral for the Loan; however, this Event of Default shall not
apply if there is a good faith dispute by Grantor as to the validity or reasonableness of the daim
which is the basis of the creditor proceeding, and if Grantor gives WVEDA written notice of the
creditor proceeding and furnishes reserves or other adéquate security for the creditor proceeding
satisfactory to WVEDA;(j) if there shall now or hereafter exist upon the Property, or any part
thereof, any daim, lien or encumbrance, other than the Permitted Encumbrances, any subordinate
lien granted by Grantor to any Subordinated Noteholder (as deflned in the Loan Agreement) or
other liens and encumbrances, if any, approved in writing by Beneficiary, which is or might be
superior or subordinate to the lien of this Deed of Trust;(k) if the Property, or any part thereof or
any interest therein, shall be sold or transferred in any manner whatsoever, whether by deed, sales
contract or any other instrument, by Grantor to any person, firm or corporation without the
advance written consent of Beneficiary;(1) if opérations of Grantor or any lessee of Grantor shall
cease or be significantly curtailed at the Property (opérations shall be "significantly curtailed" if
total employment(as measured in tenus of man hours) at the Property for any calendar quarter is
less than fifty percent (50%) of the average quarterly employment of Grantor or any lessee of
Grantor at the Property for the previous four quarters, unless sueh réduction is the resuit of
causes wholly beyond the control of Grantor or ils lessee;(m) if fifty-one percent (51%) of the
ownership interest or capital stock of Grantor or any Company Guarantor ceases to be owned by
the présent members or shareholders of Grantor or any Company Guarantor unless prior consent
in writing is received froni Beneficiary; or (n) upon the sale or other transfer of the Property or
any of Grantor's other assets in any manner whatsoever to any person or entity (other than a
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 10
of 72
transfer of assets in the ordinary course of business that does net materially adversely aftect
Grantor's financial condition) without the advance written consent of Beneficiary.
10. If (x) any one or more Events of Default shall occur pursuant to
subsections 9(a), 9(b), 9(c), 9(d), 9(e), 9(f), 9(g), 9(h), 9(i) or 9(j), and is not cured within thirty
(30) days following the date notice of such default is sent by the Trustée or WVEDA to Grantor
as provided in paragraph 14 below or(y)any one or more Events of Default shall occur pursuant
to subsections 9(k), 9(1), 9(m)or 9(n), Trustée or WVEDA,at their option, may exercise any one
or more of the following rights and remedies, any two or more of which may be exercised
concurrently:
(a) Trustée or Beneficiary may forthwith, without notice, separately or
jointly: (i) enter into and upon ail of the Property and take possession of the Properly without
process of law, without liability to Grantor or to any other owner or owners of the Property, and
manage and rent the same, or any part thereof, collect and receive the rents, issues and profits
thereof and apply the same to the payment of the indebtedness hereby secured, after first
deducting the costs and expenses incurred in managing the Property and in collecting said rents,
issues and profits (including a commission of three percent (3%) of the total amount collected,
which shall be paid to Beneficiary, or to Trustée, as the case may be, for managing the same and
collecting and disbursing said rents, issues and profits accruing therefrom), and after deducting
such further amount or amounts as may be necessary to pay or reimburse Beneficiary and Trustée
for any sum or sums of money paid by them, or either of thcm, under the provisions hereof,
together with interest thereon at the rate of ten percent(10%) per annum to the date of payment;
(ii) have a receiver appointed by any court having jurisdiction to take charge of the Property and
collect, receive and apply the rents, issues and profits thereof; or (iii) exercise any or ail of the
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 11
of 72
other rights and remédiés provided for in this Deed of Trust. It is understood and agreed by and
between the parties hereto that nothing herein contained shall be construed as a substitute for, or
in dérogation of, the right to foreclose this Deed of Trust or as imposing any duty or obligation
upon Beneficiary or upon Trustée, or either of them, to take charge of the Property or to collect
said rents, issues or profits or to have a receiver appointed for such purposes.
(b) Without further notice to or demand on Grantor or any other
person, Beneficiaiy may déclaré the Note to be immediately due and payable, and the Note may
be collected by proper action, foreclosure of this Deed of Trust, or any other légal or équitable
proceeding.
(c) At any time after the exercise by Beneficiary of the option to
déclaré the Note immediately due and payable, Trustée, upon the written request of Beneficiary,
shall foreclose upon and sell the Property to satisfy the Note at public auction, at the Trustee's
option either at the location of the Property or at the front door of the courthouse of the county in
which the Property is located, for cash in hand on the day of sale, after first giving notice of such
sale by publishing such notice in a newspaper of général circulation published in the county
wherein the Property is located, or if there be no such newspaper, in a qualifîed newspaper of
général circulation in said county, once a week for two successive weeks preceding the day of
sale and after giving notice to Grantor and to any subordinate lienholder who has previously
notifîed Beneficiary of the existence of a subordinate lien at least twenty (20) days prior to the
sale, and no other notice of such sale shall be required. To the extent not prohibited by West
Virginia law, Grantor waives ail rights pursuant to West Virginia Code §38-1-10 and §38-1-11,
as amended, to require Trustée to post a bond before making any sale or receiving any of the
proceeds of such sale under this Deed of Trust. Trustée is not required to be présent at such sale
10
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 12
of 72
aiid may appoint an agent or attorney in his or lier place to conduct any sale. Out of the proceeds
of such sale Trustée shall pay, first, the costs and expcnscs of executing this Deed of Trust,
together with an amount equal to five percent(5%)of the gross proceeds of sale to Trustée, or to
the one so acting, as the Trustee's commission hereunder; second to Beneficiary and Trustée ail
moneys which they or either of them may have paid for taxes, assessments or other governmental
charges or fees, insurance, repairs, court costs, and ail other costs and expenses incurred or paid
under the provisions of this Decd of Trust, together with interest thereon at the rate of ten percent
(10%) per annum from the date of pay ment; third to Beneficiary the full amount due and unpaid
on the Note and ail other indebtedness hereby secured, together with ail interest accrued thereon
to date of payment; and fourth, the balance, if any, to Grantor, its successors or assigns, upon
delivcry of and surrender to the purchaser or purchasers of possession of the Property less the
expensc, if any, of obtaining such possession. This Deed of Trust shall, with respect to ail items
of Personal property and fixtures subject to the lien hereof, be deemed to grant a security interest
to Beneficiary under the Uniform Commercial Code ol West Virginia (the "Code"). In the event
of the occurrence of any Event of Default, in addition to the rights, remedies and powers
hereinabove set forth, Beneficiary and Trustée shall have as to any and ail fixtures and personal
property covered by this Deed of Trust, ail rights, remédiés and powers of a secured party under
the Code. This Deed of Trust is to be recordcd in the real estate records of each county where the
Property is located to serve as a fixture filing. Grantor also authorizes Beneficiary to file any
financing statements in the appropriate filing offices necessary to perfect or evidence the liens
granted by this Deed of Trust
11
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 13
of 72
(d) rhc parties hereto agrce thaï any sale hereunder may be adjourned
from time to time without notiee other lhan oral proclamation of such adjournment at the time
and place of sale, or at the lime and place ofany adjourned sale.
11. The parties hereto agree that Beneficiary may, at any time and from time to
time hereafter, without prior notice, appoint and substitute another Trustée or Trustées,
corporations or persons, in place of the Trustée herein named to execute this trust. Upon such
appointment, either with or without a conveyance to the substituted 1 rustee or Trustées by the
Trustée herein named, or by any substituted Ti-ustee in case the right of appointment is exercised
more than once, the new and substituted Trustée or Trustées in each instance shall be vested with
ail the rights, titles, interests, powers, duties and trusts in the premises which are vested in and
conferred upon the Trustée herein named; and such new and substituted Trustée or Trustées shall
be considered the successors and assigns of the Trustée who is named herein within the meaning
of this Deed of Trust, and substituted in her place and stead. Each such appointment and
substitution shall be evidenced by an instrument in writing which shall recite the parties to, and
the book and page of record of, this Deed of Trust, and the description of the Property herein
described, which instrument, executed and acknowledgcd by Beneficiary and recorded in the
office of the Clerk of the County Commission of the County wherein the Property is located,
shall be conclusive proof of the proper substitution and appointment of such successor Trustée or
Trustées, and notice of such proper substitution and appointment to ail parties in interest.
12. In the event foreclosure proceedings are instituted under the terms and
provisions of this Deed of Trust, but are not completed, Trustée shall be entitled to charge and
collect the necessary costs and expenses incurred by her or her successor.
12
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 14
of 72
13. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN THE
PARTIES HERETO THAT THIS DEED OF TRUST IS GIVEN TO SECURE FUTURE
ADVANCES OR EXTENSIONS OF CREDIT WITH INTEREST THEREON WHICH THE
SECURED PARTY SHALL MAKE TO GRANTOR FROM TIME TO TIME. Ali advances,
made al the lime of recording hereof or to be made in the future, are secured by this Deed of
Trust as if made on the date of recording hereof. However, the aggregate maximum principal
amount of the indebtedness secured hereunder at any one time outstanding shall not exceed the
sum of Five Million and 00/100 Dollars ($5,000,000.00). THE FUTURE ADVANCES TO BE
SECURED BY THIS CREDIT LINE DEED OF TRUST ARE INTENDED TO BE
OBLIGATORY FOR PURPOSES OF WEST VIRGINIA CODE §38-l-14(a)(3).
14. A copy of any notice of Trustee's sale under this Deed of Trust shall be
served on Grantor by certified mail, retum receipt requested, directed to Grantor at the address
stated below or such other address given to Bencficiary in writing by Grantor, subséquent to the
exécution and delivery of this Deed of Trust. Any other notice under this Deed of Trust shall be
effective upon the deposit of such notice, in writing, in the regular United States mail, postage
prepaid, addressed to the party or parties who receive such notice at the following addresses or at
such other addresses any such party may give to the other parties in writing. Any notice of a
subordinate lien, any notice of other liens pursuant to West Virginia Code § 38-1-4 and § 38-1-14
or other notice may be served on Beneficiary at its address below:
To Grantor:
TenX Group LLC
1900 Campus Commons Drive
Suite 100
Reston,VA 20191
Attn: James V. Punelli, Manager
13
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 15
of 72
To Beneficiarv:
West Virginia Economie Development Authority
NorthGate Business Park
180 Association Drive
Charieston, West Virginia 25311-1217
Attn: Executive Director
To Tmstee:
Spilman, Thomas & Battle, PLLC
P. O. Box 273
Charieston, West Virginia 25321-0273
Attn: Joyce F. Ofsa
15. The parties hereto further agree that the words "it" or "its" when used in
this Deed of Trust, shall, when required by the context hereof, be taken to refer to and to mean,
the Grantor herein, whether one or more in number, and whether individual, partncrship, firm or
corporation; that the word "Trustée" shall include ail Trustées if more than one Trustée is named
herein. It is further agreed that the words "note," "Note," "obligation" or "indebtedness" shall
include any and ail notes or obligations, if more than one, secured by this Deed of Trust; and
singular or plurals of words whcrc the same meaning is intended shall not affect the validity of
this Deed of Trust.
16. In the event two or more Trustées are named herein, or in the event two or
more substitute Trustées are appointed under the provisions of paragraph 11 above, any one or
more of such Trustée or substitute Trustée may act in the exécution of this trust with the full
power and authority granted hereunder. The Trustée herein may act by agent or attorney in the
exécution of this trust and it shall not be necessary for the ITustee to be présent in person at any
foreclosure sale conducted hereunder.
17. Inasmuch as the parties intend that this Deed of Trust shall, among other
things, constitute a fixturc fmancing statemenl, the undersigned sets forth the following:
14
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 16
of 72
(a) The debtor is TenX Group LLC, and its address is as set forth in
Paragraph 14 above.
(b) The secured party is the Beneficiary, West Virginia Economie
Development Authority, and its address is as set forth in Paragraph 14 above.
(c) The properly concerned is described in Exhibit A attached hereto
and made a part hereof, and the record holdcr thereof is the Grantor.
(d) THE SECURED PARTY DESIRES THIS FINANCING
STATEMENT TO BE INDEXED AGAINST THE RECORD OWNER CE THE PROPERTY.
18. Any failure on the part of Beneficiary or Trustée to exercise any option
herein provided shall not be construed as a waiver of any rights or privilèges contained herein.
19. The parties hereto agree that if any term or provision of this Deed of Trust
contravenes any law of the State of West Virginia or any other applicable law or régulation, such
term or provision is hereby amended and modified to conform to such law or régulation.
20. The parties hereto agree that ail covenants, agreements, représentations
and warranties made herein shall extend to, bind, and inure to the benefit of the heirs, devisees,
Personal représentatives, successors and assigns of the parties hereto.
21. If there shall be any inconsistencies between the terms, covenants,
conditions and provisions set forth in this Deed of Trust and the terms, covenants, conditions and
provisions set forth in the Loan Agreement, then, unless this Deed of Trust expressly provides
otherwise, the terms, covenants, conditions and provisions of the Loan Agreement shall prevail.
[Remainder of Page Intentionally Left Blank]
15
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 17
of 72
IN WITNESS WHEREOF, the managers of TenX Group LLC, a Delaware
limited liability company, bas caused this Deed of Trust te be executed effective as of the day
and year first above written.
TENX GROUP LLC,
a Delaware limited liability company
ïes V. Punelli
TitTe: Manager
Rayq^m-CTjQnes
Title: Manager
16
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 18
of 72
STATE OF
COUNTY OF VA'lPHLd^ ,to-wit:
e-V-
The foregoing instrument was acknowledged before me this 2.\ day of August, 2013, by
James V. Punelli, the Manager of TenX Group LLC, a Delaware limited liability company, on
behalf of the limited liability company.
My commission expires: .(L^ 1
otary Puduc
[SEAL]
OFFICIALSEAL
Notary Publie,State ot West Virginia
SHARON MICHAEL
PO Box 119
204 North Elm Street
STATE OF Moorefleld, WV 26B36
My commtealor» expires July 25,2021
COUNTY OF ,to-wit:
The foregoing instrument was acknowledged before me this'ZiI ^day of August, 2013, by
Raymond G. Jones, the Manager of TenX Group LLC,a Delaware limited liability company, on
behalf of the limited liability company.
My commission expires: O.S
[SEAL]
OFFICIALSEAL
Notary Public,Slate cl West Virginia
SHARON MICHAEL
PO Box 119
204 North Elm Street
Moorefleld, VW 26B36 ,
My commission expires July 25,2021
This instrument prepared by Elizabcth A. Benedetto, Spilman Thomas & Battle, PLLC, 300 Kanawha
Boulevard, East, Charleston, WV 25301;(304)340-3800.
5119328 (1916.756)
17
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 19
of 72
EXHIBIT A
Real Property Description
(See Attached)
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 20
of 72
DESCRIPTION OF SURVEY
FOR
MOOREFIELD TRAINING CENTER
689.40 ACRES - PART OF TAX MAP 203 PARCEL 8
BOTH SIDES OF COUNTY ROUTE 220/8
A tract of land in Moorefield.District, Haidy County, West Virginia situated 2.1
miles west of Old Fields, WV on the both sides of County Route 220/8, on the drains of
Anderson Run and being more particularly described as follows:(AU bearings are WV
State Plane Grid North Zone)
BEGINNING at a 5/8" rebar capped Lantek found in fence on the south side of
Corridor H being 330 feet from center and corner to Kennie Crites Heirs DB 80/262,
thence leaving Crites and with Corridor H right of way for 2 calls
S IT 26' 15" E 1393.08 feet to a 3/4" rebar found 334 feet south from Corridor H
centerline, thence
S 40° 00' 35" E 396.18 feet to a 1" rebar found on the southwest base of a 6"fence post
461 feet southwest from Corridor H centerline and corner to a Wetland Area DB244/608,
thence leaving the Corridor H right of way and with the Wetland Area for 3 calls
S 14° 52' 14" W 578.00 feet to a 5/8"x30" capped rebar set, thence .
S 45° 35' 21" W 1139.65 feet to a 1" rebar found, thence
S 44° 26' 20" E 324.57 feet to a rebar found capped WVDOT,corner to WVDOH
DB 287/63 non-controlled right of way, thence leaving the Wetland and with non-
controlled right of way for 2 calls
S 50° 49' 37" E 975.05 feet to a capped WVDOT rebar found on a flat ridge, thence
S 82° 03' 33" E 1110,87 feet to a 3/4" capped WVDOT rebar found, corner to WVDOFI
controlled right of way for Corridor H in DB 287/67,thence leaving non-controlled right
of way and with controlled right of way
S 31° 18' 33" W crossing a run at 409 feet and in ail 517.51 to a 5/8" rebar found, thence
leaving Corridor H right of way and with new division Unes through Rennick Williams
S 87° 09' 56" W 186.76 feet to a 5/8"x30" capped rebar set by a métal fence post 30 feet
south of a drain, thence
S 84° 49' 41" W 150.09 feet to a 5/8"x30" capped rebar set by a métal fence post 12 feet
south of a drain, thence
s 66" 33' 09" W 368.34 feel to a 5/8"x30" capped rtbar set by a métal fence post 65 feet
south of a drain, thence
S 74" 58' 39" W 621.33 feet to a 5/8"x30" capped rebar set by a métal fence post 75 feet
south of a drain, thence crossing said drain
N 68° 14' 53" W 259.95 feet to a 5/8"x30" capped rebar set 60 feet north of a drain,
thence
S 80° 21' 52" W 354.61 feet to a 5/8"x30" capped rebar set by a métal fence post 35 feet
north of County Route 220/8, thence crossing said road
S 77° 33' 13" W 298.13 feet to a 5/8"x30" capped rebar set by a métal fence post 27 feet
south of said road, thence
S 62° 22' 57" W 294.96 feet to a 5/8"x30" capped rebar set by a métal fence post 40 feet
north of a drain, thence crossing said drain
S 20° 3r 08" W 186.14 feet to a 5/8"x30" capped rebar set by a métal fence post 60 feet
south of a drain, thence
S 41° 12' 44" W 285.99 feet to a 5/8"x30" capped rebar set by a métal fence post 40 feet
south of a drain, thence
S 40° 48' 30" W 167.25 feet to a 5/8"x30" capped rebar set by a métal fence post 45 feet
south of a drain, thence
S 40° 36' 17" W 211.92 feet to a 5/8"x30" capped rebar set 62 feet southeast of a drain in
a boundary line of Michael L. Ait DB 214/492 and 17 feet northeast of a fence line with
reference to a 5/8" rebar found and bearing S 61° 02' 57" E 2005.21 feet, thence leaving
division Unes and with original boundary Unes and Ait(found fence Une is not on
boundary Une)
N 61° 02' 57" W crossing a run at 70 feet and in ail 1052.78 feet to a 5/8" capped rebar
found in the intersection of fences, thence
S 59° 32' 08" W 2900.93 feet to a Va" rebar found in a pine stump in a fence corner on a
ridge line, corner to Brian D. Helmick DB 221/41 of the Walnut Bottom Hideaway
Subdivision in Plat Book 2/121, thence leaving Ait and with owners of said subdivision
being Helmick, John T. Fraley, II, Jeffrey G. Richardson, and Joseph Topper(see
attached plat for corner identification)
S 36° 28' 26" W passing varions corners to said subdivision lots and in ail 3802.87 feet
to a Vi" iron pipe found in a stone pile 100 feet northwest ofthe top of a flat ridge with 8"
and 10" double chestnut oak, 8" red oak, and 4" gum pointers, corner to Kemie Crites
Heirs DB 68/374, thence leaving Topper and said subdivision and with Crites Heirs
Filed 11/02/19
Page 21 Entered 11/02/19 10:03:07 of 72 Doc 52-3 No. 2:19-bk-00787
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 22
of 72
470 17' 00" W passing a found marked 20" hickory at 681 feet and passing a 6'"
hickory(wth old fence) on line at 1487.6 feet, and in ail 2721.99 feet to a 5/8"x30"
capped rebar set 4 feet northwest of a large boulder in a line of Margaret L. Woemer WB
29/5, thence leaving Crites Heirs and with Woemer and near an old found fence line
N 04^ 45' 00" E 1412.42 feet to a métal fence post set in the base of a fence comer post
683 feet southeast of Corridor H centerline,(original comer called for 2 white oaks)
comer to Doug Veach, now WVDOH in DE 288/555(WVDOH establisher a comer
some 63.70 feet away when purchasing property from Woemer, Veach, and Williams
which does not agree with field evidence and is shown on the attached plat), thence
leaving Woemer and Veach and with WVDOH property purchased from Rennick
Williams for non-controlled right of way
N 740 49' 48" £ 63.70 feet to a capped rebar found, thence
N 37° 46' 13" E crossing a sediment pond and in ail 994.83 feet to a y4" capped rebar
found on the southeast side of an old woods road, thence
N 52° 55' 42" E crossing an access road at 209 feet and in ail 502.47 feet to a %"capped
rebar found 14 feet northeast of an old woods road, thence partially along a constructed
fence
N 62° 05' 36" E 3421.72 feet to a 5/8"x30" capped rebar set in a found marked line of
Darley D. Smith DE 225/30, thence leaving WVDOH right of way and with Smith for 2
calls
S 34° 56' 00" E passing a 14" white oak found marked centerline at 110 feet and in ail
430.66 feet to a '/i" rebar found with 28" white oak and 18" hickory pointers, 8 feet north
of a drain and 30 feet northeast of a woods road, thence
N 34° 42' 13" E 790.69 feet to a 5/8"x30" capped rebar set, comer to WVDOH non-
controlled right of way purchased from Rennick Williams,thence leaving Smith and with
said right of way Unes
S 72° 22' 03" E 284.94 feet to a 5/8"x30" capped rebar set, thence
S 22° 44' 49" W 274.41 feet to a 3/4" capped rebar found, thence
S 61° 33' 16" E 104.19 feet to a Va" capped rebar found on the northwest side of County
Route 220/8, thence crossing said road
S 61° 36' 28" E 30.47 feet to a capped rebar found on the southeast side of said road,
thence
S 55° 41' 13" E 28.72 feet to a capped rebar found, thence
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 23
of 72
N 39° 41' 59" E 348.83 feet to a capped rebar found, thence
S 73° 06' 59" E 178.43 feet to a 5/8"x30" capped rebar set in the old boundary line
between Williams and Kennie Crites Heirs DB 80/262 and in WDOH right of way with
a found V*' capped rebar bearing S 73° 06' 59" E 313.75 feet, thence leaving WVDOH
right of way and with original lines of Crites Heirs
S 43° 29' 46" E passing a 5/8" rebar found capped Lantek at 57.46 feet and 542.44 feet,
crossing a run and in ail 613.00 feet to a 5/8"x30" capped rebar set on the southeast side
of County Route 220/8, thence
N 64° 24' 08" E crossing into said road and in ail 502.38 feet to a 5/8"x30" capped rebar
set in a found large oak stump (called for red oak in original deed) on the northwest side
of County Route 220/8, 15 feet from center, thence
N 61° 19' 15" E 5.34 feet to a 5/8" rebar found capped Lantek, thence
N 30° 43' 34" E crossing a run and passing a 5/8" rebar found capped Lantek on line at
1591.26 feet and in ail 3217.79 feet to the BEGINNING containing 689.40 acres more or
less as surveyed in October 2009 by L & W Enterprises, Inc. of Petersburg, WV and as
shown on a plat attached hereto and made a part of this description.
Seing part of the land from Effie S. P. Maphis and Donald W. Maphis to Rennick
C. Williams and Betty P. Williams by deed dated April 22,1992 in deed book 218 page
211 recorded in the Office of the Clerk of Hardy County, West Virginia and taxed as part
of parcel 8 on tax map 203.
vy - |v, c;- - ^ Signed Curtis E. Keplinger, PS #518
H ï 'S For L & W Enterprises. Inc.
§^,\^STATE0F^/g,5
'Xii i.
cl' !
This document presented and filed:
08/22/2013 09:47.43 AM
Gregory L. Ely, Hardy County, WV
191330
MB /
.ni/
"«>45 /
J nTr > ^Z%
5 S,— ^ îfi . f /
-♦ 'i 3 i ^ /
ti ^ «««piHîîj lis I*""
-^J.ur-oss
\ / A~' <yx ^ X
■--'/?i\5 .^V"^ «-S5| t
\ I
? ï^îs s~§
F'i
— I f « K ? £•'' 2 ?
I "îipHfl
Filed 11/02/19
Page 24 Entered 11/02/19 10:03:07 of 72 Doc 52-3 No. 2:19-bk-00787
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 25
of 72
Exhibit A-4
Collatéral Assignment of Leases and Rents (recorded),
effective August 21, 2013
No.
WV 2:19-bk-00787
ECONOMIC Doc
DEVELOPMENT 52-3
AUTH Filed 11/02/19 Entered
BOOK 11/02/19
277 PAGE10:03:07 Page
1 81(13) 26
191331
NORTH GATE BUSINESS PARK of 72
180 ASSOCIATION DR
CHARLESTON, WV 25311-1217
COLLATERAL ASSIGNMENT OF LEASES AND RENTS
THIS COLLATERAL ASSIGNMENT OF LEASES AND RENTS
C VO
c4 OO ("Assignment"), dated as of the 20th day of August, 2013, but intending to be effective as of Ihe
E^
.•= O
wJ
ex Tj-
21st day of August, 2013, by and between TENX CROUP LLC, a Delaware limited liability
•g r:. Company ("Assignor"), and WEST VIRGINIA ECONOMIC DEVELOPMENT
5o
^ AUTHORITY,a West Virginia public corporation ("Assignée").
(U c
w^ WITNESSETH:
2^
•a ..
Ii
O -n
NOW, THEREFORE, WITNESSETH, that for and in considération of the
o covcnants and agrecments herein contained, which are not mere récitals but are an intégral part
^3
o
X UJ
(/> ^ hcreof, the sum of Ten Dollars ($10.00) cash in hand paid and other good and valuable
•i 1
cd
•s 3
o
considération, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
O o
« œ
c .c covenant and agree as follows:
o s
o. C3
1. The Assignor does hereby collaterally grant, transfer, assign and pledge to
« o
>,o
"O r f
O^
Assignée and its successors and assigns, a security interest in and to Assignor's entire interest as
«
u eu
Cl
landlord together with ail rentals, income, profits and other monies due and which shall become
51
i cQ due to Assignor under ail existing and future leases relating to Assignor's right, title and interest
ë
E in those certain tracts or parcels of real estate consisting of 689.40 acres, more or less, as
x:
I" H*
described more particularly in Exhibit A attached hereto and incorporatcd herein by reference,
together with the buildings and improvements thereon and ail easements, rights and
appartenances related thereto, including attached buildings and improvements, ail located in
Moorefield District, Hardy County, West Virginia (the "Leased Promises"), and any and ail
amendments, extensions, modifications or revisions thureto, including, but not limited to, that
certain Commercial Lease dated August 1, 2013 (the "Lease Agreement"), by and between
Assignor and Panthera Training Center LLC, a Delaware limited liability company ("Tenant").
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 27
of 72
Hereinafter, the Lease Agreement and any current and future leases of ail or any portion of Ihe
Leased Premises are collectively referred to as the "Leases."
2. The interest so assigned and pledged will secure the prompt and punctual
payment when due of ail principal, accrued interest and other payments due and owing on that
certain term loan made by Assignée to Assigner in the principal amount of Five Million and
00/100 Dollars ($5,000,000.00), together wilh any amendments, modifications, renewals,
extensions or refînancings thereof, as evidenced by that certain Promissory Note dated as of the
date hereof, in the principal amount of Five Million and 00/100 Dollars ($5,000,000.00)
(together wilh ail amendments, renewals, extensions, substitutions and modifications thereof, the
"Promissory Note"), made by Assigner and payable to Assignée. The Promissory Note is
secured, among other things, by that certain Crédit Line Deed of Trust and Fixture Filing dated as
of the date hereof, granted by Assigner to Joyce F. Ofsa, as Trustée, for the benefit of Assignée
(together with ail amendments, renewals, extensions, substitutions and modifications thereof, the
"Deed of Trust") and the Guaranties dated as of the date hereof(together with ail amendments,
renewals, extensions, substitutions and modifications thereof, collectively, the "Guaranties") of
Global Matiix Corporation, a Virginia corporation, Pons Milvius LLC, a Delaware limited
liability company, James V. Punelli and Raymond C. Jones (collectively, the "Guarantors") and
this Assignment. Ail of the above is as set forth in that certain Loan Agreement among Assignor,
Assignée and the Guarantors dated as of the date hereof(together with ail amendments, renewals,
extensions, substitutions and modifications thereof, the "Loan Agreement"). Capitalized terms
used and not Othcrwise defined herein shall have the meanings assigned to such terms in the
Loan Agreement.
3. This Assignment shall also secure the payment when due of the other
charges set forth in said Promissory Note, Deed of Trust and Guaranties, including costs,
expenses and sums advanced by Assignée or the holder of such Promissory Note for taxes,
insurance and other obligations, including interest thereon, and ail other costs and expenses of
the assignée or such holder including reasonable attorneys' fees and costs incurred in enforcing
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 28
of 72
the obligations under the Promissory Note, the Deed of Trust or the Guaranties or in defending
the rights granted to the hoider herein.
4. It is expressly understood that this Assignment does net obligate Assignée
to perform any of the obligations of Assignor as landlord under the tenus of the Leases. Il shall
remain the responsibility of Assignor to perform any and ail covenants and obligations of the
landlord under the Leases and to otherwise keep the Leases in full force and effect.
5. So long as Assignor is not in default on any of the obligations described
herein, Assignor may collect and receive ail monies due to it and continue to cnjoy the benefîts to
which it is entitled under the aforesaid Leases. In the event of any uncured default on the part of
Assignor hereunder, then Assignée, or its designee, shall have the right forthwith to operate or
sublet the Leased Premises, to collect and receive any rents, income, profits or other monies
arising from the Leased Premises, to apply such rents, income, profits or other monies to
payment of ail necessary charges and expenses of operating, managing, or maintaining the
premises, to apply any balances from the Leases upon the obligations herein described, to give
any notices or make any demands as are necessary or appropriate under the Leases, to have a
receiver appointed by any Court having jurisdiction with such powers as may be prescribed, and
to exercise any other remedies which may be available. The exercise or non-exercise by
Assignée of any of its options under this Assignment shall not be considered a waiver of any
default by Assignor.
6. Assignée may direct Tenant and any other lessee, upon receipt of written
notice from Assignée in the event of default beyond the applicable grâce period on any of the
obligations described herein, to pay Assignée ail rentah-, income, profits and other monies due
and owing under the Leases, and to continue to do so until otherwise notified by Assignée.
7. Assignor does hereby warrant that this Assignment of the reniais, income,
profits and other monies of the Leases créâtes a first priority lien encumbering the interests of
Assignor as lessor under the Leases. Assignor further warrants that it will not, without the prior
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 29
of 72
written consent of Assignée, croate or permit to exist or to be created any pledge or assignment of
the Leases except this Assignment.
8. Assigner warrants that it is the sole owner of the Leases assigned by this
Assignment; that the Leases are not now encumbered; that the Leases are valid and in fuil force
and effect in accordance with their respective terms; that Tenant is not in default under any ofthe
terms, conditions, or covenants of the Lease Agreement; that no rental payments have been
assigned; that no rental payment for any period subséquent to the date of this Assignment has
been paid in advance of the time when the same became due under the Leases; and that the
Leases will not be altered, amended or modified in any material respect without the prior written
consent of Assignée, which shall not be unreasonably withheld or delayed.
9. Nothing contained in this Assignment, nor any act done or committed by
Assignée pursuant to the terms of this Assignment, shall be deemed a waiver by Assignée of any
ofthe rights or remedies under the Loan Agreement.
10. Any provision of this Assignment which is prohibited or deemed to be
unenforceable by the law of any jurisdiclion shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the remaining provisions of
the Assignment and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
11. This Assignment shall be govemed by the laws of the State of West
Virginia and any disputes arising under this Assignment shall be resolved in the courts of West
Virginia.
12. The provisions of this Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective successo s and assigns.
13. This Assignment may be executed in counterparts, each of which shall be
deemed an original and ail of which together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery ofa manually executed counterpart ofthis Agreement.
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 30
of 72
IN WITNESS WHEREOF, Assigner and Assignée have caused this Assignment to be
executed by their duly aulhorized members or officers as of the date first written above.
TENX GROUP LLC,
a Dclaware limited liability company
ames V. Punelli
Its: Manag^
Name: Raymonaj^Ç. Jojiies
Its: Manager
STATE OF tOasA-
COUNTYOF .to-wit:
Y»
The foregoing instrument was acknowledged before me this ZS ^ day of August,
2013, by James V. Punelli, the Manager of TenX Group LLC, a Delaware limited liability
company, on behalf ofthe limited liability company.
My commission expires:
[Notarial Seal] OFRCIAL SEAL
Notary Public, Stale ot West Virginia
SHARON MICHAEL
PO Box 119
204 Nortti Elm Streel
Moorefield, WV 26836
My commission expires July 25,2021
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 31
of 72
STATE OF
COUNTY OF i-W<-xL| to-wit:
The foregoing instrument was acknowledged before me this 2^^ay of August,
2013, by Raymond C. Jones, the Manager of TenX Group LLC, a Delaware limited liabiiity
Company, on behaif of the limited liabiiity company.
My commission expires:
CL__——tîotaty
OFFICIAL SEAL
[Notarial Seal] Notary Public, State of Wast Virginia|
SHARON MICHAEL
PO Box 119
204 Norlh Elm Street
Moorcfleld, WV 26836
My commission expires July 25,2021 ^
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 32
of 72
WEST VIRGINIA ECONOMIC
DEVELOPMENT AUTHORITY,
a West Virginia public corporation
By: iJc^
Name: David A. Wamer
Its: Executive Director
STATE OF WEST VIRGINIA,
COUNTY OF KANAWHA,to-wit:
The foregoing instrument was acknowledged before me this 21' day of August,
2013, by David A. Wamer, the Executive Director of West Virginia Economie Development
Authority, a West Virginia public corporation, on behalf of the corporation.
My commission expires: Qs.âon
o-S-.<u.lcl6 u %S ■ Af
Officiai Seal
Notary Public u
Notary Public
State of West Virginia
Beverly S. Oolin
226 4ih Avenue
Soulh Charleston, WV 25303-15391
This instrument was prepared by and upon recordation should be returncd to Eilzabcth A. Benedetto, Spilman Thomas & Battle,
PLLC,P. O. Box 273, Charleston, West Virginia 25321;(304)340-3861.
5111984(1916.756)
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 33
of 72
EXHIBIT A
lUSAL PROPERTY LEGAL DESCRIPTION
(See Attached)
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 34
of 72
DESCRIPTION OF SURVEY
FOR
MOOREFIELD TRAINING CENTER
689.40 ACRES - PART OF TAX MAP 203 PARCEL 8
BOTH SIDES OF COUNTY ROUTE 220/8
A tract of land in Moorefield.District, Hardy County, West Virginia situated 2.1
miles west of Old Fields, WV on the both sides of County Route 220/8, on the drains of
Anderson Run and being more particularly described as follows:(Ail bearings are WV
State Plane Grid Noith Zone)
BEGINNING at a 5/8'' rebar capped Lantek found in fence on the south side of
Corridor H being 330 feet from center and corner to Kennie Crites Heirs DE 80/262,
thence leaving Crites and with Corridor H right of way for 2 calls
S 77° 26' 15" E 1393.08 feet to a 3/4" rebar found 334 feet south from Corridor H
centerline, thence
S 40° 00' 35" E 396.18 feet to a 1" rebar found on the southwest base of a 6" fence post
461 feet southwest from Corridor H centerline and corner to a Wetland Area DB244/608,
thence leaving the Corridor H right of way and with the Wetland Area for 3 calls
S 14° 52' 14" W 578.00 feet to a 5/8"x30" capped rebar set, thence .
S 45° 35' 21" W 1139.65 feet to a 1" rebar found, thence
S 44° 26' 20" E 324.57 feet to a rebar found capped WVDOT,corner to WVDOH
DE 287/63 non-controlled right of way,thence leaving the Wetland and with non-
controlled right of way for 2 calls
S 50° 49' 37" E 975.05 feet to a capped WVDOT rebar found on a flat ridge, thence
S 82° 03' 33" EU 10.87 feet to a 3/4" capped WVDOT rebar found, comer to WVDOH
controlled right of way for Corridor H in DB 287/67,thence leaving non-controlled right
of way and with controlled right of way
S3I°18'33"W crossing a run at 409 feet and in ail 517.51 to a 5/8" rebar found, thence
leaving Corridor H right of way and with new division Unes thiough Rennick Williams
S 87° 09' 56" W 186.76 feet to a 5/8"x30" capped rebar set by a métal fence post 30 feet
south of a drain, thence
S 84° 49' 41" W 150.09 feet to a 5/8"x30" capped rebar set by a métal fence post 12 feet
south of a drain, thence
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 35
of 72
s 66^ 33' 09" W 368.34 feet to a 5/8"x30" capped rebar set by a métal fence post 65 feet
south of a drain, thence
S 74® 58' 39" W 621.33 feet to a 5/8"x30" capped rebar set by a métal fence post 75 feet
south ofa drain, thence crossing said drain
N 68° 14' 53" W 259.95 feet to a 5/8"x30" capped rebar set 60 feet nonh of a drain,
thence
S 80° 21' 52" W 354.61 feet to a 5/8"x30" capped rebar set by a métal fence post 35 feet
north of County Route 220/8, thence crossing said road
S 77° 33' 13" W 298.13 feet to a 5/8"x30" capped rebar set by a métal fence post 27 feet
south of said road, thence
S 62° 22' 57" W 294.96 feet to a 5/8"x30" capped rebar set by a métal fence post 40 feet
north of a drain, thence crossing said drain
S 20° 3r 08" W 186.14 feet to a 5/8"x30" capped rebar set by a métal fence post 60 feet
south of a drain, thence
S 41° 12' 44" W 285.99 feet to a 5/8"x30" capped rebar set by a métal fence post 40 feet
south of a drain, thence
S 40° 48' 30" W 167.25 feet to a 5/8"x30" capped rebar set by a métal fence post 45 feet
south of a drain, thence
S 40° 36' 17" W 211.92 feet to a 5/8"x30" capped rebar set 62 feet southeast of a drain in
a boundary line of Michael L. Ait DB 214/492 and 17 feet northeast of a fence line with
reference to a 5/8" rebar found and bearing S 61° 02' 57" E 2005.21 feet, thence leaving
division lines and with original boundary Unes and Ait(found fence line is not on
boundary line)
N 61° 02' 57" W crossing a run at 70 feet and in ail 1052.78 feet to a 5/8" capped rebar
found in the intersection of fences, thence
S 59° 32' 08" W 2900.93 feet to a y4" rebar found in a pine stump in a fence corner on a
ridge line, corner to Brian D. Helmick DB 221/41 ofthe Walnut Bottom Hideaway
Subdivision in Plat Book 2/121, thence leaving Ait and with owners of said subdivision
being Helmick, John T. Fraley, II, Jeffrey G. Richardson, and Joseph Topper(see
attached plat for corner identification)
S 36° 28' 26" W passing varions corners to said subdivision lots and in ail 3802.87 feet
to a Vi' iron pipe found in a stone pile 100 feet northwest ofthe top of a flat ridge with 8"
and 10" double chestnut oak, 8" red oak, and 4" gum pointers, corner to Kemie Crites
Heirs DB 68/374, thence leaving Topper and said subdivision and with Crites Heirs
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 36
of 72
N 47° 17' 00" W passing a found marked 20" hickory at 681 feet and passing a 6"
hickory (with old fence) on line at 1487.6 feet, and in ail 2721.99 feet to a 5/8"x30"
capped rebar set 4 feet northwest of a large boulder in a line of Margaret L. Woemer WB
29/5, thence leaving Crites Heirs and with Woemer and near an old found fence line
N 04° 45' 00" E 1412.42 feet to a métal fence post set in the base of a fence corner post
683 feet southeast of Corridor H centerline,(original corner called for 2 white oaks)
corner to Doug Veach, now WVDOH in DB 288/555(WVDOH establisher a corner
some 63.70 feet away when purchasing property from Woemer, Veach, and Williams
which does not agree with field evidence and is shown on the attached plat), thence
leaving Woemer and Veach and with WVDOH property purchased from Rennick
Williams for non-controlled right of way
N 74° 49' 48" E 63.70 feet to a ^4" capped rebar found, thence
N 37° 46' 13" E crossing a sediment pond and in ail 994.83 feet to a ^4" capped rebar
found on the southeast side of an old woods road, thence
N 52° 55' 42" E crossing an access road at 209 feet and in ail 502.47 feet to a y4" capped
rebar found 14 feet northeast of an old woods road, thence partially along a constructed
fence
N 62° 05' 36" E 3421,72 feet to a 5/8"x30" capped rebar set in a found marked line of
Darley D. Smith DB 225/30, thence leaving VA/DOH right of way and with Smith for 2
calls
S 34° 56' 00"E passing a 14" white oak found marked centerline at 110 feet and in ail
430.66 feet to a 14" rebar found with 28" white oak and 18" hickory pointers, 8 feet north
of a drain and 30 feet northeast of a woods road, thence
N 34° 42' 13" E 790.69 feet to a 5/8"x30" capped rebar set, comer to WVDOH non-
controlled right of way purchased from Rennick Williams, thence leaving Smith and with
said right of way Unes
S 72° 22' 03" E 284.94 feet to a 5/8"x30" capped rebar set, thence
S 22° 44' 49" W 274.41 feet to a 3/4" capped rebar found, thence
S 61° 33' 16" E 104.19 feet to a Va" capped rebar found on the northwest side of County
Route 220/8, thence crossing said road
S 61° 36' 28" E 30.47 feet to a H"capped rebar found on the southeast side of said road,
thence
S 55° 41' 13" E 28.72 feet to a y4" capped rebar found, thence
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 37
of 72
N 39° 41' 59" E 348.83 feet to a capped rebar found, thence
S 73° 06' 59" E 178.43 feet to a 5/8"x30" capped rebar set in the old boundary line
between Williams and Kennie Crites Heirs DB 80/262 and in WVDOH right of way with
a found capped rebar bearing S 73° 06' 59" E 313.75 feet, thence leaving WVDOH
right of way and with original Unes of Crites Heirs
S 43° 29' 46" E passing a 5/8" rebar found capped Lantek at 57.46 feet and 542.44 feet,
crossing a run and in ail 613.00 feet to a 5/8"x30" capped rebar set on the southeast side
of County Route 220/8, thence
N 64° 24' 08" E crossing into said road and in ail 502.38 feet to a 5/8"x30" capped rebar
set in a found large oak stump (called for red oak in original deed) on the northwest side
of County Route 220/8, 15 feet from center, thence
N 61° 19' 15" E 5.34 feet to a 5/8" rebar found capped Lantek,thence
N 30° 43' 34" E crossing a run and passing a 5/8" rebar found capped Lantek on line at
1591.26 feet and in ail 3217.79 feet to the BEGINNING containing 689.40 acres more or
less as surveyed in October 2009 by L & W Enterprises, Inc. of Petersburg, WV and as
shown on a plat attached hereto and made a part of this description.
Being part of the land from Effie S. P. Maphis and Donald W. Maphis to Rermick
C. Williams and Betty P. Williams by deed dated April 22,1992 in deed book 218 page
211 recorded in the Office of the Clerk of Hardy County, West Virginia and taxed as part
of parcel 8 on tax map 203.
UuA-tU E.
N'n q-p Signed Curtis E. Keplinger, PS #518
H = ''' ' H' For L & W Enterprises. Inc.
O* \ Xi
O'o,
i\
^ % rH )îi
Page 38
m}
ïniM
Entered 11/02/19 10:03:07
m
This document oresented and filed-
08^^013 09:47:44 AM
Filed 11/02/19
Gregofy L. Ely. Hardy County, WV il
191331 Transfer Tax; SO 00
of 72
î5S
'MiîP r/w«iî^/ s
l i i llil !
Doc 52-3
i' «it5 '-^5 l. ^
/\ li\ ifi—StS'
H i|ÉÉ/i
~ — c ?ï
"i i tr s
£^ 5-
s 5r
* i
8^
1^14 r il
5e ^5?
No. 2:19-bk-00787
ilis
|g
W . />-< --J./ i
d f>» y î"~""'
sa jï
S =^j
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 39
of 72
Exhibit A-5
Loan Agreement dated July 2,2014
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 40
of 72
LQAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") dated as of the 2'"' day of July,
2014, by and among TENX CROUP LLC,a Delaware limited liability company ("Borrower"),
the WEST VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY, a West Virginia
public corporation ("WVEDA"), GLOBAL MATRIX CORPORATION, a Virginia
corporation ("Global Matrix"), PONS MILVIUS LLC, a Delaware limited liability company
("Pons Milvius" and together with Global Matrix, the "Company Guarantors"), JAMES V.
PUNELLI and RAYMOND C. JONES (collectively, the "Personal Guarantors" and together
with the Company Guarantors, collectively, the "Guarantors").
WHEREAS, by a Deed dated April 17, 2014, by and between Donnie L. Pratt, as
grantor, and BoiTOwer, as grantcc, Borrower bas acquired that certain parcel or tract of real
property consisting of 58.09 acres, more or less, located in Moorefield District, Old Fields, Hardy
County, West Virginia and described more particularly as "Tract One" in Exhibit A attached
hereto and incorporaled herein by reference(the "Pratt Property")for the sum of$152,000;
WHEREAS, the Pratt Property is adjacent to that certain parcel or tract of real
property consisting of 689.40 acres, more or less, located at 2506 Fish Pond Road in Moorefield
District, Old Fields, Hardy County, West Virginia and described more particularly as "Tract
Two" in Exhibit A attached hereto and incorporated herein by reference (the "Training Facility
Property" and together with the Pratt Property and ail buildings, improvements and structures
located thereon, the "Property");
WHEREAS, Borrower owns a securily opérations training facility which is
located on the Training Facility Property (the "Training Facility");
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 41
of 72
WHEREAS, Borrower leases the Training Facility to its wholly-owned
subsidiaiy, Panthera Training Center LLC, a Delaware limited liability company ("Panthera"),
pursuant to the terms of a Commercial Lease dated August 1, 2013, between Borrower, as lessor,
and Panthera, as Icssce (the "Lease Agreement");
WHEREAS, Bon'ower lias constructed certain improvements at the Training
Facility which include, without limitation, a two-story 6,000 square foot live-fire assault house, a
fully-covered 50 yard shooting range, a "combat" town training area, an expanded armory
complex, new classrooms including a hand-to-hand combat"mat room" and certain drainage and
road repairs and other improvements (collectively, the "Training Facility Improvements"), to
expand the services offered at the Training Facility;
WHEREAS, Borrower has applied to WVEDA for a loan in the maximum
principal amount of $1,871,505 to be used to permanently finance a portion of the costs to (i)
acquire the Pratt Property and (ii) construct, install and equip the Training Facility Improvements
(collectively, the "Project");
WHEREAS,a loan in the amount of 1,871,505 was approved by WVEDA upon
those terms and conditions set forth in WVEDA's loan commitment letter dated April 17, 2014,
as supplemented by its final approval letter to Borrower dated May 29, 2014, both of which are
incorporated herein by reference in their entirety (collectively, the "Commitment");
WHEREAS, the Training Center Improvements were constructed by Howard
Shockey & Sons, Inc., a Virginia based général contracter with its principal offices located in
Winchester, Virginia("HSS");
WHEREAS,to permanently finance a portion ofthe costs of the Project, HSS has
agreed to convert a portion of its account receivable due and owing by Borrower for work
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 42
of 72
completed by HSS on the Training Center Improvements to a five-year term loan in the principal
amount of $1,812,144.01 (the "HSS Loan"), to be evidenced by a Deed of Trust Note dated as of
the date hereof, made by Borrower and Panthera and payable to the order of HSS in the principal
amount of$1,812,144.01 (the "HSS Note");
WHEREAS,the total cost of the Project is at least $4,158,901;
WHEREAS,Borrower has contributed at least $475,251.99 of equity towards the
Project; and
WHEREAS, Borrower represents and warrants to WVEDA that ail proceeds
from the WVEDA Loan (as hereinafter defined) shall serve as permanent fmancing for the
Project.
NOW,THEREFORE, in considération of the premises set forth above and the
mutual covenants and agreements herein contained, the parties hereto covenant and agree to and
with each other as foliows:
A. Financing
WVEDA agréés to make a loan to Borrower to permanently finance a portion of
the costs of the Project, under the following terms:
1. WVEDA shall make a loan to Borrower (the "WVEDA Loan"), evidenced
by a negotiable promissory note (together with ail amendmcnts, renewals, extensions,
substitutions and modifications thereof, the "WVEDA Note") in the principal amount of One
Million Eight Hundred Scventy-One Thousand Five Hundred Five and 00/100 Dollars
($1,871,505.00), with a term of fifteen (15) years, bearing interest at a rate set at Closing equal to
the rate from the prcvious business day of a 20-year term U. S. Treasury Security plus three-
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 43
of 72
fourths percent(0.75%), as such rate is stated in the Daiiy Treasuiy Yield Curve Rates section of
the U. S. Treasury officiai website twww.ustrcas.gov).
2. The WVEDA Loan shall be repaid in consécutive monthiy instailments
over a pcriod of one hundred eighty(180) months bearing interest at the rate fixed at Closing and
amortized over the entire term of the WVEDA Loan. The first monthiy installment shall be due
thirty (30) days from the date of the WVEDA Note and monthiy instailments shall be paid on the
same day of each succeeding month thereafter until the 180th and final installment, at which time
ail principal and accrued interest shall be due and payable by Borrower in full. The WVEDA
Loan may be pre-paid, in whole or in part, at any time, without penalty.
3. Any payment due to WVEDA under this Agreement or the WVEDA Note
and not made within ten (10) days of its due date may be subject to a late charge equal to five
percent(5%)of the monthiy payment due. An additional five percent(5%) may be charged for
each successive month the payment remains past due. This late payment charge shall apply
individually to ail payments due and there shall be no daily pro-rata adjustment. Ail late charges
accrue to the benefit of WVEDA and are in addition to, not in lieu of, the continuing accrual of
interest.
4. The WVEDA Loan shall not represent more than forty-five percent
(45.0%)of the total cost of the Project.
5. The proceeds of the WVEDA Loan shall be used by Borrower only as
permanent fmancing for the Project and not as construction or working capital financing.
6. At Closing, WVEDA shall disburse the proceeds of the WVEDA Loan
pursuant to proper wiring instructions received from Borrower.
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 44
of 72
7. For purposes of this Agreement and all documents referred to herein, the
term "Closing" shall mean the date of this Agreement.
B. Securitv Interests
1. Borrower shall grant WVEDA a deed of trust lien in the Property, together
with all improvements and fixtures thereto, and all appurtenances thereunto appertaining, by
proper crédit line deed of trust and fixture filing (together with all amendments, renewals,
extensions, substitutions and modifications thereof, the "WVEDA Deed of Trust") to secure all
principal, accrued interest and other sums due and owing to WVEDA under the WVEDA Loan
and the performance of all obligations of Borrower and Guarantors under the WVEDA Loan
Documents(as hereinafter defined).
2. Borrower shall grant WVEDA a security interest in all existing and future
leases and all rents, issues and profits relating to or arising from the Property, by proper
Collatéral Assignment of Leases and Rents (together with all amendments, renewals, extensions,
substitutions and modifications thereof, the "WVEDA Lease Assignment"), to secure the
payment of all principal, accrued interest and other sums due and owing to WVEDA under the
WVEDA Loan and the performance of all obligations of Borrower and Guarantors under the
WVEDA Loan Documents.
3. Borrower shall cause Guarantors to jointly and severally, irrevocably,
unconditionally and absolutely guarantee payment of the WVEDA Loan and Borrower's and
Guarantors' performance under the terms and conditions of this Agreement and the other
WVEDA Loan Documents pursuant to the terms of those certain Guaranties dated as of the date
hereof, by and between each Guarantor and WVEDA (together with all amendments, renewals,
extensions, substitutions and modifications thereof, collectively, the"WVEDA Guaranties").
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 45
of 72
C. Conditions Précédent to Financing
The obligation of WVEDA to make the loan herein contemplated is subject to the
following conditions précédent:
1. Dclivery of résolutions duly adopted by Borrower and each Company
Guarantor approving the WVEDA Loan, the performance of this Agreement and the transactions
contemplated herein, accompanied by a certification of the managers, members or authorized
offîcer of Borrower and each Company Guarantor stating that such resolutions are true and
correct, have not been altered, amended or repealed, and are in full force and effect.
2. Execution and deliveiy (and as appropriate, filing, registration or
recordation) of ail documents evidencing the WVEDA Loan and crcating the liens and securily
interests contemplated herein, including, but not limited to, this Loan Agreement, the WVEDA
Note, the WVEDA Deed of Trust, the WVEDA Lease Assignment and the WVEDA Guaranties
(collectively, the"WVEDA Loan Documents").
3. Delivery of an opinion of counsel to Borrower and Guarantors which
addresses such matters required by WVEDA of Borrower and Guarantors with respect to the
transactions contemplated herein and in the other WVEDA Loan Documents, which shall be in
form and substance satisfactory to WVEDA in its sole discrétion.
4. Delivery of certificates of insurance which evidence thaï the insurance
policies required by this Agreement, the Commitment and any of the other WVEDA Loan
Documents have been obtained and are in full force and effect as of the date hereof.
5. Delivery of a Certificate of Good Standing for Borrower and Panthera
from the West Virginia Bureau of Employment Programs for unemployment coverage from the
Unemployment Compensation Division.
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 46
of 72
6. Delivery of evidence of workers' compensation coverage for Panthera.
7. Delivery of Borrower's Certificate of Formation, certified by its
managers.
8. Delivery of Borrower's Operating Agrcement, certified by its managers.
9. Delivery of a Certificate of Existence for Borrower issued by the Secretary
of State of the State of Delaware.
10. Delivery of a Certificate of Authority for Borrower issued by the Secretary
of State ofthe State of West Virginia.
11. Delivery of Global Matrix's Articles of Incorporation, certified by its
corporate secretary or other authorized officer.
12. Delivery of Global Matrix's Bylaws, certified by its corporate secretary or
other authorized officer.
13. Delivery of a Certificate of Good Standing for Global Matrix issued by the
Virginia State Corporation Commission.
14. Delivery of Pons Milvius' Certificate of Formation, certified by its
manager.
15. Delivery ofPons Milvius' Operating Agreement, certified by its manager.
16. Delivery of a Certificate of Existence for Pons Milvius issued by the
Secretaiy of State of the State of Delaware.
17. Delivery of the fmancial statements of Borrower and Guarantors, in form
and substance acceptable to WVEDA.
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 47
of 72
18. Execution and delivery of a certificate from Borrower certifying that the
Project is complété, the Training Center Improvements are structurally sound and fully
operational and the equity contribution of Borrower to the Project is at least $475,251.99.
19. Delivery of a copy of the recorded Deed conveying title to the Pratt
Property to Borrower.
20. Delivery of a copy ofthe légal description for the Property.
21. Delivery of a title insurance policy for the Property, in form and substance
satisfactory to WVEDA in its sole discrétion, without any exceptions as to survey or mechanic's
liens.
22. Either a certificate of flood insurance or a certification by a registered
engineer or liccnscd surveyor thaï the Property is outside the 100-year flood plain.
23. Delivery of an executed copy of the Lease Agreement between Borrower
and Panthera, the terms of which must be satisfactory to WVEDA in its sole discrétion both as to
form and substance.
24. Execution and delivery by Panthera of a Consent, Estoppel, Subordination,
Nondisturbance and Attornment Agreement.
25. Delivery of copies of ail invoices for the Project.
26. Delivery of copies of the HSS Note and ail security and other related
documents.
27. Receipt at Closing of the title insurance policy premium.
28. At or prior to Closing, payment of WVEDA's légal fees and expenses
incurred in connection with the WVEDA Loan.
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 48
of 72
29. Such other documents, agreements, instruments or certificates as WVEDA
may reasonably request.
D. Représentations and Warranties
Borrower and Guarantors hereby represent and warrant to WVEDA as follows:
1. Borrower is a duiy organizcd and validly existing limited liability
Company undcr the laws of the State of Deiaware. Ail applicable fees and taxes bave been timely
paid by Borrower to the State of Deiaware and the State of West Virginia, and Borrower is in
good standing with the Deiaware Secretary of State. The Borrower lias the power and authority
necessary to own its properties and to conduct its business as it is presently conducted in the
State of Deiaware and the State of West Virginia.
2. Each Company Guarantor is a duly organized and validly existing
corporation or limited liability company under the laws of its respective state of formation or
incorporation. AU applicable fees and taxes have been timely paid by each Company Guarantor
to its respective state of formation or incorporation, and each Company Guarantor is in good
standing in its respective state of formation or incorporation.
3. The exécution, dclivcry and performance of this Agreement and ail other
documents and writings referred to herein to which the Borrower is a party (a) are within
Borrower's company powers, (b) have been duly authorized by Borrower and (c) are not in
contravention of the law, the terms of its articles of organization, operating agreement or any
indenture, agreement or undertaking to which Borrower is a party or by which Borrower is
bound.
4. The exécution, deliveiy and performance of this Agreement and ail other
documents and writings referred to herein to which each Company Guarantor is a party (a) are
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 49
of 72
within each of their Company powers,(b) have been duly authorized by each Company Guarantor
and (c) are not in contravention of the law, the terms of its respective articles of organization or
articles of incorporation (as applicable), operating agreement or bylaws (as applicable) or any
indenture, agreement or undertaking to which each Company Guarantor is a party or by which
each Company Guarantor is bound.
5. Borrower's exact légal name is as set forth in this Agreement. Borrower
bas not been known as or used any othcr company,corporate, fictitious or trade name in the past,
nor has it been the surviving entity of a merger of consolidation.
6. Ail information at any time furnished to WVEDA by Borrower and
Guarantors concerning their respective financial condition or otherwise for the purpose of
obtaining the WVEDA Loan has been prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of prior financial periods, is true and correct,
and fairly discloses their respective financial condition as of the date of each such statement.
There has been no material adverse change in Borrower's or any Guarantor's respective financial
condition subséquent to the date of the most recent applicable financial statement supplied to
WVEDA. Neither Borrower nor any Guarantor has any liabilities, contingent or otherwise,
involving material amounts except as disclosed in such financial statements.
7. This Agreement constitutes, and any other document required to be given
by Borrower or Guarantors hereunder will, when delivered, constitute its or his légal, valid and
binding obligation enforceable against Borrower or Guarantors in accordance with the respective
ternis of such document, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws in effect from time to time affecting the rights of creditors generally
10
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 50
of 72
and except to the extent that the enforceability thereof may be limited by the application of
général principles of equity.
6. No litigation or daim, including those for unpaid taxes, is pending or
threatened against Borrower or any Guarantor and no other event bas occurred which may
materially affect adversely their respective fmancial condition or assets. Moreover, no material
fact exists that bas not been disclosed to WVEDA tbat would bave a material adverse effect on
tbe respective properties, business, prospects or financial condition of Borrower or any
Guarantor.
7. To tbe best of Borrower's knowledge, no release of or otber contamination
by a "Hazardous Substance" (as defmed in Section E.ll.) bas occurred at the Property and no
condition, activity or conduct exists on or in connection with tbe Property wbicb constitutes a
violation of any "Environmental Laws"(as defined in Section E.l 1.).
8. Borrower or its lessee, Pantbera, bas obtained ail necessary fédéral, state
and local permits, licenses, autborizations and approvals for tbeir présent and intendcd use of tbe
Property and tbe présent and intended conduct oftbeir respective businesses and opérations.
E. Affirmative Covenants
So long as tbis Agreement is in effect and any part of tbe WVEDA Loan to
Borrower is outstanding, Borrower and Guarantors sball:
1. Promptly inform WVEDA in writing of(a) ail material adverse changes in
Borrower's or any Guarantor's financial condition, and (b) ail daims and ail threatened litigation
and daims relating to Borrower or any Guarantor wbicb could materially affect its or bis
financial condition.
11
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 51
of 72
2. Upon prior written request and, in any case, within thirty (30) days after
the close of each quarterly fiscal period, provide WVEDA with a copy of the unaudited or
internai fmancial statements of Borrower, each Company Guaranlor and Panthera. Each
statement submitted to WVEDA must be signed by a duly authorized member or manager of the
submitting entity and shall be prepared in accordance with generally accepted accounting
principles consistently applied by its accountant. Borrower shall, and shall cause Panthera to,
and each Company Guarantor shall provide to WVEDA annually, as soon as available, but in any
event within one hundred twenty (120) days after the elose of its respective fiscal year, a full and
complété signed copy of its year-end audited fmancial statements prepared by a certifîed public
accounting firm acceptable to WVEDA, which report shall include a balance sheet as of the end
of such year and a statement of profit and loss reflecting the results of its opérations during such
year.
3. Upon the written request of WVEDA, fumish to WVEDA additional
information such as fmancial statements, lists of assets and liabilities, agings of receivables and
payables, rental receipts, inventory schedules, budgets, forecasts, tax returns, royalty agreements,
licenses, and other documents with respect to Borrower's, Panthera's or Guarantors' fînancial
condition or business opérations, as applicable,
4. Maintain fire and other risk insurance which shall contain a "New York
Standard Mortgage Clause" or ils équivalent, public liability insurance, and such other insurance
as WVEDA may require with respect to Borrower's properties and opérations, in form and
amounts, and with coverage and insurance companies reasonably acceptable to WVEDA. Unless
Borrower bas provided WVEDA with evidence that the Property is not located within a spécial
flood hazard area, Borrower shall provide WVEDA with evidence that Borrower has obtained
12
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 52
of 72
Fédéral Flood Insurance in amounts and with covcragc satisfactory to WVEDA. Upon
WVEDA's request, Borrower will deliver to WVEDA, from lime to time, the policies or
certificates of insurance required under this Agreement in a form satisfactory to WVEDA,
including stipulations that coveragc will not be canceled or diminished without at least thirty (30)
days' prior written notice to WVEDA. In connection with ail policies covering assets in which
WVEDA holds or is offered a security interest to secure the WVEDA Loan, Borrower will
provide WVEDA with such loss payable or other endorsements as WVEDA may require.
Borrower agréés to assign to WVEDA ail sums, including, without limitation, retum of
premiums, which may become payable under any and ail of Borrower's policies of insurance on
the Property, and upon WVEDA's request, direct each insurance company issuing any such
policy to make payment thereffom directly to WVEDA. Notwithstanding any provision to the
contrary, WVEDA shall release to Borrower, if not in default hereunder, any such fire and
casualty insurance proceeds received by it hereunder for the purpose of repair or replacing any
property so damaged or destroyed. Borrower shall and shall cause Panthera and any future lessee
of the Property to, maintain proper unemployment compensation and workers' compensation
coverage, if applicable, and other insurance against other risks as are commonly insured against
by companies in similar types of business, ail in a manner satisfactory to WVEDA, and shall
provide such information as WVEDA may reasonably request to evidence that such coverages
are in place.
5. Furnish to WVEDA, upon request, reports on each existing insurance
policy showing such information as WVEDA may reasonably request, including, without
limitation, the following:
(a) the name of the insurer;
13
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 53
of 72
(b) the risks insured;
(c) the amount of the insurance policy;
(d) the properties insured;
(e) the thcn-current property values on the basis of which insurance
has been obtained, and the manner of determining those values;
and
(f) the expiration date of the policy.
In addition, upon request of WVEDA, Borrower will have an independent appraiser satisfactory
to WVEDA déterminé, as applicable, the actual cash value or replacement cost of the Property, at
Borrower's expense, provided that WVEDA may not request such appraisals more than once per
year.
6. Apply ail proceeds from the WVEDA Loan to permanently finance a
portion of the costs of the Project.
7. Pay and discharge when due ail of Borrower's indebtedness and
obligations, including, without limitation, ail assessments, taxes, governmental charges, levies
and liens of every kind and nature, imposed upon ils properties, leases, income, or profits, prior
to the date on which penalties would attach, and ail lawful daims that, if unpaid, may become a
lien or charge upon any of its properties, leases, income or profits; provided, however, Borrower
will not be required to pay and discharge any such assessment, tax, charge, levy, lien or daim so
long as (a) the legality of the same shall be contested in good faith by appropriate proceedings,
and (b) Borrower shall have established on its books adéquate reserves with respect to such
contested assessment, tax, charge, levy, lien, or daim in accordance with gencrally accepted
accounting practices. Upon the demand of WVEDA, Borrower will furnish to WVEDA
evidence of payment of the assessments, taxes, charges, levies, liens and daims and will
authorize the appropriate governmental officiai to deliver to WVEDA at any time a written
14
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 54
of 72
statement of any assessments, taxes, charges, levies, liens and daims against its properties,
leases, income or profits.
8. Perform and comply with ail terms, conditions and provisions set forth in
this Agreement and in ail other WVEDA Loan Documents in a timely manner.
9. Borrower shall conduct its business affairs in a reasonable and prudent
manner and in compliance with ail applicable fédéral, state and municipal laws, ordinances, rules
and régulations respecting its properties, leases, charters, businesses and opérations, including,
but not limited to, if applicable, compliance with ail minimum funding standards and other
requirements of the Employée Retirement Income Security Act of 1974, as amended, and other
laws applicable to its employée benefit plans.
10. Permit WVEDA, or its désignées, at any reasonable time to inspect the
Property or any other collatéral for the WVEDA Loan,and examine and audit Borrower's books,
accounts and records, and make copies and memoranda of its books, accounts, and records. If
Borrower now or al any time hereafter maintains any records (including, without limitation,
computer generated records and computer programs for the génération of such records) in the
possession of a third party, then it shall, upon request of WVEDA, notify such party to permit
WVEDA free acccss to such records at ail reasonable times and to provide WVEDA with copies
of any records it may request, ail at Borrower's expense.
11. In regard to environmental compliance, the following définitions shall
apply for purposes of this Agreement:
"Environmental Law" shall mcan any fédéral, state or local statute, régulation or
ordinancc or any judicial or administrative decree or décision now or hereafter promulgated with
respect to any "Hazardous Substance" (as hereinafter defined), drinking watcr, ground water,
15
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 55
of 72
landfills, open dumps, slorage tanks, underground storage tanks, solid waste, waste water, storm
water runoff, waste émissions, or wells. Without iimiting the generality of the foregoing, the
term Environmental Law shall encompass each of the following statutes, as may be amended
from time to tinie, and ail régulations from time to time promulgated thereunder: the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (codiflcd in
scattered sections of 26 U.S.C., 33 U.S.C., 42 U.S.C. and 42 U.S.C. §9601, et seg.); the Clean
Water Act of 1977(33 U.S.C. §1251, et seg.); the Clean Air Act(42 U.S.C. §7401, et the
Resource Conservation and Recovery Act of 1976(42 U.S.C. §6901, et seg.); the Safe Drinking
Water Act (21 U.S.C. §349, 42 U.S.C. §§201 and 300f through 300j-9); the Toxic Substances
Control Act(15 U.S.C. §2601, et seg.); the West Virginia Water Pollution Control Act(W. Va.
Code §22-11-1, et seg.); the West Virginia Hazardous Waste Management Act(W. Va. Code
§22-18-1, et seg.); the West Virginia Solid Waste Management Act(W. Va. Code §22-15-1, et
seg.): the West Virginia Underground Storage Tank Act (W. Va. Code §22-17-1, et seg.); the
West Virginia Groundwater Protection Act (W. Va. Code §22-12-1, et seg.); and the West
Virginia Air Pollution Control Act(W. Va. Code §22-5-1, et seg.).
"Release" shall mean any spilling, leaking, pumping, emitting, emptying,
discharging, injecting, storing, escaping, leaching, dumping, burying, abandoning, or disposing
into the environment by Borrower or any predecessor in interest of Borrower or any lessee of
Borrower, under or in any way involving or affecting the Property.
''Hazardous Substance" shall mean each and eveiy élément, compound, chemical
mixture, petroleum and gas product, substance, contaminant, pollutant, including, without
limitation, substances which are toxic, carcinogenic, ignitable, corrosive or otherwise dangerous
to human, plant or animal health or well-being, and any other substance dcfmed as a "hazardous
16
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 56
of 72
substance,""hazardous waste," "hazardous material," "toxic material," "toxic waste," or "spécial
waste" under any Environniental Law and any other substance which by law requires spécial
handling in its collection, storage, treatment or disposai.
(a) Borrower shall, and shall cause any lessee of the Property to,
comply with ail Environmental Laws and obtain ail necessary environmental authorizations and
approvals from the appropriate governmental agencies for its présent and intended uses of the
Property.
(b) If Borrower or any lesscc of the Property receives any notice of(i)
a Release of any Hazardous Substance, notification of which must be given to any governmental
agency under any Environmental Law, or notification of which has, in fact, been given to any
governmental agency, or (ii) any complaint, order, citation or notice with regard to air émissions,
water discharges, or any other environmental health or safety matter affecting Borrower, Panthera
or any other lessee of the Property (an "Environmental Complaint") from any person or entity,
including, without limitation, the Environmental Protection Agency ("EPA"), then Borrower or
its lessee shall immediately notify WVEDA orally and in writing of said Release, complaint,
order, citation or notice.
(c) WVEDA and its désignées shall have the right, but shall be under
no obligation to inspect the Property and ail improvcments located thereon, including the right to
perform tests thereupon and take samples therefrom during reasonable business hours to
détermine whether Hazardous Substances exist thereupon and whether Borrower and its lessees
are in compliance with ail applicable Environmental Laws.
(d) Borrower shall indemnify, defend and hold WVEDA harmless
from any actions, liabilities, daims, causes of action, responsibilities, obligations, assessments,
17
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 57
of 72
citations, fines or penalties arising from or related to any Release of Hazardous Substance or any
violation of any Environmental Laws with regard to the Property.
12. Borrower shall notify WVEDA at least twenty (20) days prior to such
event of any change in its exact légal naine or of any change in its business location or its state of
formation.
13. Borrower and Guarantors shall provide WVEDA, upon request and not
more often than annually, with a certificate certifying that the représentations and warranties set
forth in this Agreement are true and correct and that Borrower and Guarantors are in compliance
with its or his covenants hereunder as of the date of the certificate and furthcr certifying that, as
ofthe date of the certificate, no default exists under this Agreement.
14. Borrower, Panthera and Guarantors, as applicable, shall make, exécuté and
deliver to WVEDA such promissory notes, crédit line deeds of trust and fixture filings, collatéral
assignment of leases and rents, subordination agreements, and other documents and agreements
as WVEDA,or its attorneys, may reasonably request to evidence and secure the payment of the
WVEDA Loan and to create and perfect ail liens described herein. Moreover, at the request of
WVEDA, Borrower, Panthera and Guarantors will promptly and duly execute and deliver such
additional documents and assurances and take such additional actions as may be necessary or
désirable in order to correct any defect, error or omission which may at any time be discovered or
to more effectively carry out the intent and purpose of this Agreement.
15. Borrower shall submit to WVEDA annually, by no later than April 1 of
each calendar year, a report showing the total number of permanent and part-time employées of
Borrower and its tenants working at the Property as of December 31 of the previous year and the
18
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 58
of 72
aggregate total of gross wages paid to these employées during the twelve month period ending
December 31 of the previous year.
16. Ail current and future loans by members or managers of Borrower to
Bon'ower are and shall be fully subordinate to the WVEDA Loan, both for collatéral and
repayment, and payments thereon shall be deferred until the WVEDA Loan is paid in full.
F. Négative Covenants
Borrower and Guarantors covenant and agree that while any part of the WVEDA
Loan is outstanding:
1. Borrower shall not(a)cease to actively carry on those activities that served
as the basis of WVEDA approval for assistance; or (b)sell, lease, transfer, encumber, pledge or
otherwise dispose of any substantial part of its interest in the Property or in its other assets,
which, whether in one or more transactions, would resuit in the cessation or substantial
curtailment of such business activities.
2. Neither Borrower nor any Company Guarantor shall merge or consolidate
with any person or entity unless Borrower or such Company Guarantor is the surviving entity.
3. Borrower shall not create, permit to be created or suffer to exist any lien
upon the Property except:(a) liens arising by opération of law in the ordinary course of business;
(b) liens arising out of pledges or deposits under workers' compensation, unemployment
insurance, old âge pension, social sccurity, retirement benefits or other similar législation; (c)
liens granted to WVEDA securing the WVEDA Loan; (d) the liens identified on Exhibit B
attached hereto and incorporated herein by reference (the "Permitted Liens"); (e) a subordinate
lien to be granted by Borrower to HSS on the date hercof to secure the HSS Note; and (0 such
19
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 59
of 72
other subordinate liens to secure future fmancings as may be permitted by WVEDA in advance
and in writing.
4. Borrower shail not sell, transfer, assign, exchange or otherwise dispose of
the Property or any other collatéral for the WVEDA Loan, other than the replacement of its assets
in the ordinary course of business.
5. Borrower shall not make any loans or advances to any person or entity,
including, without limitation, Borrower's members, managers, officers or employées except for
temporary advances in the ordinary course of business.
6. Borrower shall not increase the salary or compensation of its members,
managers, officers or any member of any of their immédiate families unless a profit was made in
the calendar year immediately preceding such increase, ail of Borrower's debts are paid to a
current status and no default or Event of Default exists under the terms of this Agreement.
7. Borrower shall not guaranty, endorse or otherwise become directly or
contingently liable for the debts of others (including, without limitation, by way of agreement,
contingent or otherwise, to purchase, provide funds to or otherwise invest in a debtor or
otherwise to assure a creditor against loss) while a default exists with regard to the WVEDA
Loan.
8. Borrower shall not, without the advance written consent of WVEDA,
déclaré, or make, or incur any obligation or liability to make, any payment in cash or in other
assets, either as dividends or distributions upon any class of ownership interest in Borrower, or
purchase, retire, redeem or otherwise acquire for value any class of ownership interest in
Borrower if any of the following circumstances exist at that time: (a) Borrower is in default of
any fînancial covenant relating to the WVEDA Loan;(b) Borrower is in default or is unable to
20
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 60
of 72
pay its carrent financial obligations under any financing document with any of its lenders
including, without limitation, WVEDA or HSS; or(c) Borrower lias failed to pay when due any
govemmental tax, charge, fee or assessment (subject to the absolute right of Borrower to
challenge such tax, charge,fee or assessment).
G. Events of Default
Each of the following shall constitute an Event of Default under this Agreement:
1. Borrower shall fail to pay the principal, interest or other sums due and
owing under the WVEDA Loan in accordance with the terms or time periods described herein or
in any ofthe other WVEDA Loan Documents.
2. Borrower or any Guarantor shall fail to observe or perform any other
agreement, term, obligation, covenant or condition contained in this Agreement or in any of the
other WVEDA Loan Documents.
3. Any warranty, représentation or statement made or furnished to WVEDA
by or on behalf of Borrower or any Guarantor under this Agreement or in any of the other
WVEDA Loan Documents is false or misleading in any material respect, either now or at the
time made or furnished.
4. The commission by Borrower or any Guarantor or of any members,
managers, officers, employées or agents of Borrower of any illégal or fraudaient act with the
intent to deceive WVEDA, including, without limitation, the falsification of Borrower's or any
Guarantor's books or records.
5. This Agreement or any of the WVEDA Loan Documents ceases to be in
full force and effect (including failure of any collatéral document to create a valid or perfected
security interest or lien) at any time and for any reason.
21
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 61
of 72
6. The dissolution or termination of Borrower's or any Company Guarantor's
existence as an ongoing business, Borrower's or any Guarantor's insolvency, the appointment of
a receiver for any part of Borrower's or any Guarantor's property that lias net been released or
dismissed in sixty (60) days, any assignnient for the benefit of creditors, any type of creditor
workout, the commencement of any voluntary proceeding under any bankruptcy or insolvency
laws by Borrower or any Guarantor or Borrower's or any Guarantor's written admission of its or
his inability to pay its or his debts as they become due.
7. The commencement of any involuntary proceeding undcr bankruptcy or
other insolvency laws against Borrower or any Guarantor that is not dismissed wilhin sixty (60)
days of its filing date.
8. Commencement of foreclosure, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower against Borrower's interest in the
Property or against any other collatéral for the WVEDA Loan. However, this Event of Default
shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of
the daim which is the basis of the creditor proceeding, and if Borrower gives WVEDA written
notice of the creditor proceeding and furnishes reserves or other adéquate security for the creditor
proceeding satisfactory to WVEDA.
9. If a default or event of default shall occur and continue beyond any
applicable grâce period with respect to any other indebtcdness of Borrower.
10. If 51% of the membership interest or units of Borrower ceases to be owned
by the présent members of Borrower, unless prior consent in writing is received from WVEDA.
22
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 62
of 72
11. If 51% of the membership interest or units or capital stock, as applicable,
of any Company Guarantor ceases to be owned by the présent members or shareholders of each
Company Guarantor, uniess prior written consent in writing is received from WVEDA.
12. If the opérations shall cease or be significantly curtailed at the Property.
Opérations shall be "significantly curtailed" if the total employment (as measured in terms of
man hours) at the Property for any calendar quarter is less than fifty percent(50%)of the average
quarterly employment at the Property for the previous four quarters, uniess such réduction is the
resuit of causes wholly beyond the control of Borrower or its lessees.
13. Upon the sale or other transfer of the Property or any other collatéral
securing the WVEDA Loan in any manner whatsoever by Borrower to any person or entity
without the advance written consent of WVEDA.
H. Remédiés
WVEDA shall have the following remedies upon the occurrence of an Event of
Default:
1. (a) Upon the occurrence of any Event of Default under subsections
Gl, G2, G3, G4, G5, G6, G7, G8 or G9, WVEDA shall firsl be required to give written notice of
such default to Borrower. Borrower, in such event, will have thirty (30) days following the
mailing of such notice to cure the Event of Default. If one or more Events of Default shall occur
and is not cured within the 30-day period, then WVEDA, at its option, may déclaré the entire
unpaid principal of its loan, together with ail unpaid accrued interest and ail other sums due and
owing thereon, immediately due and payable and proceed under the terms of this Agreement or
any other WVEDA Loan Document.
23
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 63
of 72
(b) Upon the occun*ence of any Event of Default under subsections
GIO, G11, G12 or G13, WVEDA, at its option, may déclaré the entire unpaid principal of the
WVEDA Loan, together with ail unpaid accrued interest and ail other sums due and owing
thereon, immediately due and payable and proceed under the terms of this Agreement or any
other WVEDA Loan Document.
2. Upon the occurrence of an Event of Default which is not timely cured as
provided herein, WVEDA may, at its option, also pursue any available remedy at law or in
equity, by suit, action or other proceeding to enforce or compel the performance of the duties and
obligations of Borrower and Guarantors and WVEDA may pursue any remedies set forth in any
other WVEDA Loan Document.
3. No remedy conferred upon or reserved to WVEDA herein is exclusive of
any other remedy, and each and every such remedy shall be cumulative and shall be in addition to
any other remedy given now or hereinafter existing at law or in equity or by statute.
I. Miscellaneous Provisions
The parties agree to the following miscellaneous provisions:
1. This Agreement constitutes the entire understanding and agreement of the
parties as to the matters set forth in this Agreement, except for the Commitment which has been
incorporated herein by référence. In the event of a eonflict between the terms of this Agreement
and the Commitment, the terms of this Agreement shall prevail. No altération of or amendment
to this Agreement shall be effective unless made in writing and signed by the party or parties
sought to be charged or bound by such altération or amendment.
2. The forum having proper jurisdiction and venue to adjudicate any daim,
dispute or default which may arise oui of this Agreement or the performance of the transactions
24
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 64
of 72
contemplated hereby shall be the Circuit Court of Kanawha County or the United States District
Court for the Southern District of West Virginia. The parties expressly submit and irrcvocably
consent to such jurisdiction and venue and specificaliy waive any and ail rights they may have to
contest such jurisdiction or venue of the above-mentioned forums and to demand any other
forums; provided, however, that nothing in this section shall affect the right of WVEDA to serve
process in any manner permitted by law or limit any right that WVEDA may have to bring
proceedings against any party hereto in the courts of any other jurisdiction or to enforce in any
lawful manner ajudgment obtained in one jurisdiction in the courts of any other jurisdiction.
3. Borrower agréés to pay upon demand, at Closing or prior thereto, ail ofthe
reasonable expenses incurred by WVEDA in comiection with this Agreement and ail other loan
documents or in connection with the loans made pursuant to this Agreement, including, but not
limited to, reasonable attorneys' fees; provided that Borrower's obligation to pay WVEDA's
attorneys' fees incurred in connection with the documentation and closing of the WVEDA Loan
shall not exceed the greater of $2,500.00 or 1% of the principal amount of the WVEDA Loan,
except as otherwise set forth in the Commitment. WVEDA may retain someone else to help
collect its loans and to enforce this Agreement and Borrower will pay for those reasonable costs
and services. This includes the reasonable attorneys' fees and légal expenses of WVEDA,
whether or not there is a lawsuit, including reasonable attorneys' fees for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injonction), appeals, and any
anticipated post-judgment collection services. Borrower will also pay any court costs, in addition
to ail other sums provided by law.
4. Ail notices to be served hereunder shall be in writing and shall be
sufficiently given when mailed by first class mail to the following addresses:
25
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 65
of 72
(a) WEST VIRGINIA ECONOMIC DEVELOPMENT
AUTHORITY
NorthGate Business Park
180 Association Drive
Charleston, West Virginia 25311 -1217
Attention: Executive Director
(b) TENX GROUP LLC
1900 Campus Gommons Drive
Suite 100
Reston, Virginia 20191
Attention: James V. Punclli, Manager
(c) GLOBAL MATRIX CORPORATION
43787 Bent Creek Terrace
Leesburg, Virginia 20176
Attention: Raymond C. Jones
(d) PONS MILVIUS LLC
11654 Plaza America Drive,# 320
Reston, Virginia 20190
Attention: James V. Punelli
(e) JAMES V.PUNELLI
11654 Plaza America Drive,# 320
Reston, Virginia 20190
(f) RAYMOND C. JONES
43787 Bent Creek Terrace
Leesburg, Virginia 20176
In addition, notice shall be deenied sufficiently given if the notice is transmitted by telccopy to
the appropriate party's principal place of business or if thc notice is served in a manner
prescribed by the laws of the State of West Virginia for the service of a summons in a civil
action.
5. If a court of compétent jurisdiction finds any provision of this Agreement
to be invalid or unenforceable as to any person, entity or circumstance, such fmding shall not
render that provision invalid or unenforceable as to any other persons, entities or circumstances.
If feasible, any such offending provision shall be deemed to be modified in order to comply with
26
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 66
of 72
thc limits of enforceabilily or validily; provided, however, if the offending provision cannot be so
modified, it shall be stricken and ail other provisions of this Agreement in ail other respects shall
remain valid and enforceable.
6. AH warranties, représentations, covenants and indemnities made by
Borrower and Guarantors in this Agreement or in any certificate or other instrument delivered by
Borrower or Guarantors to WVEDA under this Agreement shall be considered to have been
relied upon by WVEDA and will survive the making of the WVEDA Loan and the delivery to
WVEDA of the related documents, regardless of any investigation made by WVEDA or on its
behalf. The warranties, covenants and indemnities set forth in this Agreement may be assigned
or otherwise transferred by WVEDA to its successors and assigns and to any subséquent
transférée of ail or any portion of the WVEDA Loan, through or under WVEDA, without notice
to Borrower or Guarantors and without any further consent of any other person or entity.
7. Tinie is of the essence in the performance of this Agreement.
8. WVEDA shall not be deemed to have waived any rights under this
Agreement unless such waiver is given in writing and signed by a duly authorized officer of
WVEDA. No delay or omission on the part of WVEDA in exercising any right shall operate as a
waiver of that right or any other right. A waiver by WVEDA of a provision of this Agreement
shall not préjudice or constitute a waiver of its right to otherwise demand in the future strict
compliance with that provision or any other provision of this Agreement. No prior waiver by
WVEDA, nor any course of dcaling between it, or any officer or agent thereof, and Borrower
shall constitute a waiver of any of its rights or of any obligations of Borrower. Whenever the
consent of WVEDA is required under this Agreement, the granting of such consent by WVEDA
in any instance shall not constitute continuing consent in subséquent instances where such
consent is required and in ail cases such consent may be granted or withheld in the sole discrétion
of WVEDA.
9. This Agreement shall be binding upon and shall inure to the benefit of the
parties and their personal représentatives, heirs, successors and assigns; provided, however, that
27
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 67
of 72
Borrower and Guarantors may not assign or transfer any rights or obligations hereunder without
the prior wrilten consent of WVEDA.
10. This Agreement shall continue in full force and effect so long as any
portion of the WVEDA Loan reniains outstanding or bas not been fully and finally paid,
performed or satisfied.
11. WVEDA may sell, transfer or othcrwise assign ail or any part of its right,
title and interest in and to this Agreement, the loans made hereunder or any of the related loan
documents without the consent of Borrower or any Guarantor.
12. This Agreement may be executed in counterparts, each of which shall be
deemed an original and ail of which shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart ofthis Agreement.
[Remainder ofPage Intentionally Left Blank]
28
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 68
of 72
IN WITNESS WHEREOF, Borrower, WVEDA and Guarantors have caused this
Agreement to be executed individually or by their duly authorized officers or managers as of the
day and year first above written.
BORROWER: TENX GROUP LLC,
a Dclaware limited liability company
Najp«r7ames V. Punelli
Ils: Manager
Name: Raymond jC./Jone
Ils: Manager
LENDER: WEST VIRGINIA ECONOMIC
DEVELOPMENT AUTHORITY,
a West Virginia public corporation
By:
Name: David A. Warner
Its: Executive Director
GUARANTORS: GLOBAL MATRIX CORPORaVTION,
a Virginia corporation
Name: Raymond C
Its: Président
PONS MILVIUS LLC,
a Delaware limited liability company
By:
N^^fféfî^es V. Punelli
Its: Manager
29
J
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 69
of 72
GUARANTORS:
Jatiïîes V.Punelli
Raymond C./dnes
6240272(1916.779)
30
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 70
of 72
EXHÏBITA
REAL PROPERTY LEGAL DESCRIPTION
(See Attached)
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 71
of 72
Exhibit A
TRACT ONE: ALL THAT CERTAIN LOT, TRACT OR PARCEL OF REAL ESTATE, CONTAINING
58.09 ACRES, MORE OR LESS, BY THE LEGAL DESCRIPTION ON RECORD IN THE OFFICE
OF THE ASSESSOR OF HARDY COUNTY, WEST VIRGINIA, SITUATE ADJACENT TO AND
NORTHEAST OF SECONDARY COUNTY ROUTE 220/8 KNOWN AS FISH POND ROAD, ABOUT
2.5 MILES NORTHWEST OF THE COMMUNITY OF OLD FIELDS IN MOOREFIELD DISTRICT,
HARDY COUNTY, WEST VIRGINIA, AND BEING THE RESIDUE OF THAT CERTAIN PARCEL
OF REAL ESTATE DESIGNATED AS "TRACT #2- 126. 31 ACRES" ON THAT "PLAT OF
SURVEY OF THE KENNY CRITES ESTATE" WHICH IS OF RECORD IN THE OFFICE OF THE
CLERK OF THE COUNTY COMMISSION OF HARDY COUNTY, WEST VIRGINIA, IN MAP BOOK
8, AT PAGE 52; LESS HOWEVER; THAT CERTAIN OUTCONVEYANCE OF 79.69 ACRES,
AFFECTING "TRACT #1" AND "TRACT #2" OF THE ABOVE MENTIONED PLAT OF SURVEY
FROM EMORY CRITES, ALBERT CRITES, FRANK JUNIOR CRITES, MARGARET CONROY,
DENNIS TOMALKA, AND CATHERINE PRATT TO THE WEST VIRGINIA DEPARTMENT OF
TRANSPORTATION, DIVISION OF HIGHWAYS BY ORDER DATED AUGUST 30, 2006, OF
RECORD IN THE AFORESAID CLERK'S OFFICE IN DEED BOOK 293, AT PAGE 424.
REFERENCE IS HEREBY MADE TO SAID PLAT OF SURVEY FOR A MORE SPECIFIC
DESCRIPTION OF THE TRACT OR PARCEL OF REAL ESTATE CERTIFIEE HEREBY.
TRACT TWO: ALL THAT CERTAIN TRACT OR PARCEL OF REAL ESTATE CONTAINING
689.40 ACRES, MORE OR LESS, INCLUSIVE OF COUNTY ROUTE 220/8, LYING AND
BEING SITUATE 2 MILES WEST OF OLD FIELDS AND 6 MILES NORTH WEST OF THE TOWN
OF MOOREFIELD ON BOTH SIDES OF FISH POND ROAD IN MOOREFIELD DISTRICT, HARDY
COUNTY, WEST VIRGINIA, AND BEING MORE PARTICULARLY DESCRIBED BY A
DESCRIPTION OF SURVEY AND PLAT OF SURVEY IN THAT CERTAIN CREDIT LINE DEED
OF TRUST DATED AUGUST 21, 2013 AND OF RECORD IN THE OFFICE OF THE CLERK OF
THE COUNTY COMMISSION OF HARDY COUNTY, WEST VIRGINIA IN DEED OF TRUST BOOK
217, AT PAGES 176 AND 180, RESPECTIVELY. REFERENCE IS HEREBY MADE THE
AFOREMENTIONED DESCRIPTION OF SURVEY AND PLAT OF SURVEY FOR A MORE SPECIFIC
DESCRIPTION OF THE TRACT OR PARCEL OF REAL ESTATE CERTIFIEE HEREBY.
No. 2:19-bk-00787 Doc 52-3 Filed 11/02/19 Entered 11/02/19 10:03:07 Page 72
of 72
EXHIBÏT B
PERMITTED LIENS
Crédit Line Deed of Trust and Fixture Filing dated August 21, 2013, granted by
Borrower to Joyce F. Ofsa, as Trustée, and WVEDA,of record in the Office of the Clerk
of the County Commission of Hardy County, West Virginia, in Book 277, at page 158.
Deed of Trust dated as of Oclober 15, 2012, granted by Borrower to Norman T. Daniels,
Jr., as Trustée, for the benefit of West Virginia Paving, Inc., of record in the Office ofthe
Clerk of the County Commission of Hardy County, West Virginia, in Book 277, at page
355.
Collatéral Assignment of Leases and Rents dated as of August 20,2013, and effective as
of August 21,2013, by and between Borrower and WVEDA,of record in the Office of
the Clerk of the County Commission of Hardy County, West Virginia, in Book 277, at
page 181.
File and source
- File
- gov.uscourts.wvnb.75953.52.3.pdf
- Size
- 4,518,863 bytes
- SHA-256
- 11bb7050a10b05a5024b201d67bea9582a58586c6ff5fef348825da276ecd487
- Our copy
- gov.uscourts.wvnb.75953.52.3.pdf
- Original
- PACER (login required)