Full text
Exhibit A-6
Promissoiy Note, $1,871,505.00, dated July 2, 2014
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PROMISSORY NOTE
$1,871,505.00
Moorefield, West Virginia
July2,2014
FOR VALUE RECEIVED, the undersigned TENX GROUP LLC, a Delaware
limited liability company ("Borrower"), hereby promises te pay to the order of WEST
VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY, a West Virginia public
corporation ("WVEDA"), the sum of One Million Eight Hundred Seventy-One Thousand Five
Hundred Five and 00/100 Dollars ($1,871,505.00) over a term of one hundred eighty (180)
months, with interest from the date hereof at the rate of three and eighty-eight one hundredths
percent (3.88%) per annum on the unpaid principal, in lawful money of the United States, at the
office of the WVEDA, NorthOate Business Park, 180 Association Drive, Charleston, West
Virginia, 25311-1217, or at such other location as may be subsequently designated by the holder
hereof as foliows:
1.
This Promissory Note shall have a term of fîfteen (15) years, and shali be
due and payable in one hundred eighty (180) equal monthly installments of Thirteen Thousand
Seven Hundred Thirty Four and 66/100 Dollars ($13,734.66) each, beginning on the 2"'' day of
August, 2014, and continuing on the 2"^* day of each calendar month thereafter until the final
installment, which shall be due on July 2, 2029, at which time the entirc unpaid principal
balance, together with the interest accrued thereon at the rate aforesaid, shall be due and payable
in full. Said payments shall be applied first to the payment of said interest on the unpaid balance,
second to the payment of principal, and third to the payment of late charges and ail other amounts
due under this Promissory Note.
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2,
This Promissory Note is described in and entitled to the benefit and
security of a Loan Agreement dated as of July 2, 2014, by and among WVEDA, Borrower,
Global Matrix Corporation, a Virginia corporation, as Guarantor, Pons Milvius LLC, a Delaware
limited liability Company, as Guarantor, James V. Pimelli, as Guarantor, and Raymond G. Jones,
as Guarantor (together with ail amendments, renewals, extensions, substitutions and
modifications thereof, the "Loan Agreement"), a Crédit Line Deed of Trust and Fixture Filing
dated as of July 2, 2014, granted by Borrower to Joyce F. Ofsa, as Trustée, for the benefit of
WVEDA (together with ail amendments, renewals, extensions, substitutions and modifications
thereof, the "Deed of Trust"), a Collatéral Assignment of Leases and Rents dated July 1, 2014,
and effective as of July 2, 2014, by and between Borrower and WVEDA (together with ail
amendments, renewals, extensions, substitutions and modifications thereof, the "Lease
Assignment"), and the Guaranties dated as of July 2, 2014 (together with ail amendments,
renewals, extensions, substitutions and modifications thereof, collectively, the "Guaranties") of
Global Matrix Corporation, Pons Milvius LLC, James V. Punelli and Raymond C. Jones
(collectively, the "Guarantors"). If any default shall be made in the payment of any installments
of this Promissory Note or any part thereof, when due, and if such default shall continue for a
period of thirty (30) days after written notice to Borrower, or if there shall be a breach at any time
of a covenant, condition, provision, warranty, stipulation or agreement by Borrower or the
Guarantors contained in said Loan Agreement, Deed of Trust, Lease Assignment or Guaranties
after notice to Borrower as provided therein, then the entire unpaid principal balance hereof, with
interest accrued thereon, shall at once be and become due, payable and demandable, without any
fiirther notice, at the option of the holder hereof. Failure at any time on the part of the holder
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hereof to exercise such option shall not constitute a waiver of the right to exercise the same in the
event of a subséquent similar default.
3.
Borrower shall have the right at any time, without notice, premium or
penalty, to pay ail or any part of this Promissory Note, but any such partial payment shall not
operate to postpone payment as and when due of the regular installments due on this Promissory
Note.
4.
Borrower and each endorser hereof expressly waives presentment for and
demand of payment and notice of the nonpayment of any installment of principal or interest
falling due under this Promissory Note, and also waives protest of same upon default in the
payment of such installment, and agréés that extension or extensions of the time of payment of
this Promissory Note, or any installment part thereof, may be made before, at or after maturity by
agreement with any one or more of the parties hereto without notice to and without releasing the
liability of any other party.
5.
Any payment due under this Promissory Note not made within ten (10)
days of its due date may be subject to a late charge equal to five percent (5%) of the monthly
payment due. An additional five percent (5%) may be charged for each successive month the
payment rcmains 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 are in addition to, not in lieu of,
the continuing accrual of interest.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, TenX Group LLC, a Delaware limited liability
Company, bas caused this Promissory Note to be executed by its duly authorized Managers on
this 2"*^ day of July, 2014.
TENX GROUP LLC,
a Delaware limited liability company
/
By:
îe: James V. Punelli
Title: Manager
By:
Name: Raymond pj Jon^s
Title: Manager
6230070(1916.779)
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Exhibit A-7
Crédit Line Deed of Trust and Fixture Filing (recorded),
dated July 2, 2014
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euzabeth a benedetto
BOOK 282 PAGE 818(19) 195177
A CREDIT LINE DEED OF TRUST AND FIXTURE FILING
THIS CREDIT LINE DEED OF TRUST AND FIXTURE FILING (the
"Deed of Trust"), dated as of the 2"^^ day of July, 2014, by and among TENX GROUP 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
DEVELOPMENT AUTHORITV, a West Virginia public corporation (referred to herein as
either "WVEDA"
or "Beneficiary").
WITNESSETH:
That for and in considération of the indebtedness and trusts hereinafter set forth
and the sum of Ten Dollars ($10.00), cash in hand paid, the receipt and sufficiency of which are
hereby acknowledged, the Grantor does hereby GRANT and CONVEY unto the Trustée, with
the power of sale, ail of the following:
(a)
AU of Grantor's interest in those certain parcels or tracts of land located in
Moorefield District, Hardy County, West Virginia, together with ail buildings, improvements and
structures at any time now or hereafter erected, situated or placed thereon by Grantor and ail
rights, privilèges, easemcnts, hereditaments, appendages and appurtenances thereunto belonging
or appertaining, as more particularly described on Exhibit A attached hereto and made a part of
this Deed of Trust;
(b)
Ail right, title, interest and estate of the Grantor in and to streets,
roadways, sidewalks, curbs, alleys and areas involving the estate hereby conveyed and portions
thereof, and whether vacated by law or ordinance (conditionally or otherwise);
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(c)
Ail fixtures, fixed assets and personalty of a permanent nature, owned by
the Grantor now or at any time hereaftcr annexed, affixed or attached to the Property (as defmed
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, machinery, equipment and articles located on the Property
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)
Ail equipment, materials, supplies and other 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, together with ail rcnt, 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, interests in property and other
rights and interests are herein sometimes referred to colleclively as the "Property."
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The Grantor does hereby covenant to and with the Trustée that it will
WARRANT GENERALLY 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 froni any and ail liens,
claims and encumbrances, except the following which are collectively referred to hcrcin as the
"Permitted Encumbrances": (i) rcal cstate 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 fmancing
statcments 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 One Million Eight Hundred Seventy-One Thousand Five Hundred Five and
00/100 Dollars ($1,871,505.00) (the "Loan"), with ail interest accruing thereon for a term of
fifteen (15) years, evidenced by a Promissory Note of even date herewith in the original principal
amount of One Million Eight Hundred Seventy-One Thousand Five Hundred Five and 00/100
Dollars ($1,871,505.00), 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 ail the terms 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 ail the terms and conditions under that
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certain Collatéral Assignment of Leases and Rents made on July 1, 2014 and effective as of July
2, 2014 by and between Grantor and WVEDA (together with ail amendments, renewals,
extensions, substitutions and modifications thereof, the "Lease Assignment"), (iv) the
performance by Guarantors of their obligations under their respective Guaranties of even date
herewith (together with ail amendments, renewals, extensions, substitutions and modifications
thereof, collectively, the "Guaranties"), made for the benefit of WVEDA and guaranteeing the
payment by Grantor to WVEDA of ail accrued interest, unpaid principal, late charges and othcr
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 them, as foliows:
1.
That Grantor will promptly pay ail taxes, charges and assessments lawfully
levied against the Property and upon ils 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 appurtenances thereunto belonging, fully insured pursuant to the terms and conditions of the
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Loan Agreement. Upon fuU foreclosure or a deed in lieu of such foreclosure, ail of Grantor's or
its lessee's right, title and interest in and to the aforesaid insurance shali automatically pass to
and be the property of the then holder of the obligation hereby secured.
3.
That Grantor will or shali 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 terms 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 shali fail to comply with the provisions of this paragraph 5,
Beneficiary and Trustée shali have the right, but shali 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 inspect, test, clean up, remove, or otherwise remedy any and ail improper releases or
discharges of hazardous substances or to respond to any complaint, ordcr, 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
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law in order to protect the Property, and any and all costs incurred by Beneficiary and Trustée
pursuant thereto shall be immediately due and payable by Granlor upon demand and shall be
further secured hereby.
6.
That Granlor will pay to Trustée and will pay the holder of any
obligations, the payment of which is hereby secured, any and all sums of money, including costs,
expenses and attorneys' fees incurred or expended in any proceedings, légal or équitable, to
sustain the lien of this Deed 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
under 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 Beneficiary by Grantor concerning
Grantor's financial status is correct and complété, and that there have been no adverse changes in
Grantor's financial status since such information was furnished to Beneficiary.
8.
That Grantor will keep proper books of record and account in accordance
with Sound accounting practice concerning Grantor's business; will furnish the Beneficiary a
copy of its year end financial 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 foliowing 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
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the terms or time periods described in the Loan Agreement or Grantor shall fail to pay as and
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 Beneficiary 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, officers, employées or agents of Grantor, of any illégal or fraudulent act with the intent
to deceive Beneficiary 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 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; (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 bcen 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 bankruptcy 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
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involuntaiy proceeding under bankruptcy or other insolvency laws against Grantor that is not
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; howevcr, this Evcnt 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 encumbrancc, other than the Permitted Encumbrances, any subordinate
lien granted by Grantor to Howard Shockey & Sons, Inc. to secure a loan in the maximum
principal amount of $1,812,144.01 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 witliout 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 terms 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 such réduction is the resuit of causes wholly beyond the control of Grantor or its
lessee; (m)
if fifty-one percent (51%) of the ownership interest or capital stock of Grantor or any
Company Guarantor ccases to be owned by the présent members or shareholders of Grantor or
any Company Guarantor unless prior consent in writing is received from Beneficiary; or (n) upon
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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 transfer of assets in the ordinary course of
business that does not materiaily adversely affect Grantor's fmancial condition) without the
advance written consent of Beneficiary.
10.
If 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 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 Property 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 them, under the provisions hereof,
together with interest thereon at the rate of ten percent (10%) per annum to the date of payment;
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(ii) have a receiver appointée! 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
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 shali 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, Beneficiary may déclaré the Note to be immediately due and payable, and the Note may
be collecled 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 iîrst 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 qualified 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
notified 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,
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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
and may appoint an agent or attorney in his or her place to conduct any sale. Out of the proceeds
of such sale Trustée shall pay, first, the costs and expenses 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 Trustée's commission hereunder; second to Benefîciary 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 Deed of Trust, together with interest thereon at the rate of ten percent
(10%) per annum from the date of payment; third to Benefîciary 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
delivery of and surrender to the purchaser or purchasers of possession of the Property less the
expense, 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 Benefîciary under the Uniform Commercial Code of 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 forlh, Benefîciary and Trustée shall have as to any and ail fixtures and personal
property covered by this Deed of Trust, ail rights, remedies and powers of a secured party under
the Code. This Deed of Trust is to be recorded in the real estate records of each county whcrc the
Property is located to serve as a fixture filing. Grantor also authorizes Benefîciary to file any
fmancing statements in the appropriate filing offices necessary to perfect or evidence the liens
granted by this Deed of Trust.
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(d)
The parties hereto agree that any sale hereunder may be adjourned
from time to time without notice other than oral proclamation of such adjournment at the time
and place of saie, or at the time and place of any 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 Trustée or Trustées by the
Trustée herein named, or by any substituted Trustée in case the right of appointment is exercised
more than once, the new and substituted Trustée or Trustées in each instance shall be vcstcd 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 Tmstees 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 acknowledged 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.
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13.
IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN THE
PARTIES HERETO THAT THIS DEED OF TRUST IS GIVEN TO SECURE FUTURE
ADVANGES OR EXTENSIONS OF CREDIT WITH INTEREST THEREON WHICH THE
SECURED PARTY SHALL MAKE TO GRANTOR FROM TIME TO TIME. Ail advances,
made at the time 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 indcbtcdncss secured hereunder at any one time outstanding shall not exceed the
sum of One Million Eight Hundred Seventy-One Thousand Five Hundred Five and 00/100
Dollars ($1,871,505.00). 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, return receipt requested, directed to Granlor at the address
stated below or such other address given to Beneficiary 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:
13
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of 56
rp Grantor:
TenX Group LLC
1900 Campus Gommons Drive
Suite 100
Reston, Virginia 20191
Attn: James V. Punelli, Manager
To Beneficiarv:
West Virginia Economie Development Authority
NorthOate Business Park
180 Association Drive
Charleston, West Virginia 25311-1217
Attn: Executive Director
To Trustée:
Spilman, Thomas &
Battle, PLLC
P. O. Box 273
Charleston, 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, partnership, 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 where the same meaning is intended shall not affect the validity of
this Deed of Trust.
16.
In the event two or more frustees arc 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 hercunder. The Trustée herein may act by agent or attorney in the
14
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of 56
exécution of this trust and it shall net be necessary for the Trustée 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 fixture financing statement, the undersigned sets forth the following:
(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 property concerncd 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 OF THE PROPERTY.
18.
Any failurc on the part of Beneficiary or Trustée to exercise any option
hercin 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
15
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of 56
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]
16
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of 56
IN WITNESS WHEREOF, the Managers of TenX Group LLC, a Delaware
limited liability company, have caused this Deed of Trust to be executed as of the day and year
first above written.
TENX GROUP LLC,
a Delaware limited liability company
James V. Punelli
^itle: Manager
Raymond (p.) Jon^s
Title: Manager
17
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of 56
STATE OF
COUNTY OF
,
to-wit:
The foregoing instrument was acknowledged before me this^^ day of July, 2014, by
James V. Punelli, the Manager of TenX Group LLC, a Delaware limitcd liability company, on
behalf of the limited liability company.
7-1 l^io
My commission expires:
[SEAl
orr iciAi sï:al
SI A t î: of V/EST VIRGINIA
A
MOÏAHY PURI.IC
S
tu-!!.. A F GORDON
lî' va "'!"'' ' H.lî
KnAi.'SKor-T- & baker
POfiOX 119
MCIOREFIELO, VW :^6B36
My conimiisioii txpires Jaiuiory ?7,5>020 ,
'4
Notary Public
STA TE OF
COUNTY OF M
to-wit:
da
The foregoing instrument was acknowledged before me thiso^ day of July, 2014, by
Raymond C. Jones, the Manager of TenX Group LLC, a Delaware limited liability company, on
behalf of the limited liability company.
My commission expires
..t.,-
—'"T..,.
on-IOlAl.SEAI-
c-rA'i-F OK V/EST VIRGINIA
iVoTARY PUBLIC
.,!Î'
'^jHFU /V F GORDON
A4 Mooari-iFLO.vw
Notary Public
This instrument prepared by Elizabeth A. Bcnedetto, Spilman Thomas & Battle, PLLC, 300 Kanawha
Boulevard, Hast, Charleston, WV 25301; (304) 340-3800.
6239680(1916.779)
18
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of 56
Exhibit A
TRACT ONE: ALL THAT CERTAIN LOT, TRACT OR PARCEL OF REAL ESTATE, CONTAINING
58.09 ACRES, MORE OR LES
S, 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
277, 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.
This document presented and filed:
07/02/2014 02:22:19 PM
/
Gregory L. Ely, Hardy County, WV
195177
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Exhibit A-8
Collatéral Assignment of Leases and Rents (recorded),
effective July 2, 2014
No. 2:19-bk-00787 Doc 53-3 Filed 11/02/19 Entered 11/02/19 10:12:20 Page 26
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BOOK 282 PAGE 837(9) 195178
ELIZABETH A. BENEDETTO
SPILMAN THOMAS & BATTLE, PLLC
300 KANAWHA BLVD.E, PO BOX 273
CHARLESTON. WV 25301
COLLATERAL ASSIGNMENT OF LEASES AND RENTS
THIS COLLATERAL ASSIGNMENT OF LEASES AND RENTS
("Assignment"), made this Ist day of July, 2014, and effective as of the 2nd day of Juiy, 2014, by
and between TENX GROUP LLC, a Deiaware limited liability company ("Assigner"), and
WEST VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY, a West Virginia public
corporation ("Assignée").
WITNESSETH;
NOW, THEREFORE, WITNESSETH, that for and in considération of the
covenants and agreements herein contained, which are not mere récitals but are an intégral part
hereof, the sum of Ten Dollars ($10.00) cash in hand paid and other good and valuable
considération, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
1.
The Assigner does hereby collaterally grant, transfer, assign and pledge to
Assignée and its successors and assigns, a security interest in and to Assigneras entire interest as
landlord together with ail rentais, income, profits and other monies due and which shall become
due to Assigner under ail existing and future leases reiating to Assigner's right, title and interest
in those certain tracts or parceis of real estate described more particularly in Exhibit A attached
hereto and incorporated herein by reference, together with the buildings and improvements
thereon and all easements, rights and appurtenances related thereto, including attached buildings
and improvements, all located in Moorefield District, Hardy County, West Virginia (the "Leased
Promises"), and any and all amendments, extensions, modifications or revisions thereto,
including, but not limited to, that certain Commercial Lease dated August 1, 2013 (the "Lease
Agreement"), by and between Assigner and Panthera Training Center LLC, a Deiaware limited
liability company ("Tenant"). Hereinafter, the Lease Agreement and any current and future
leases of all or any portion of the Leased Promises are collectively referred to as the "Leases."
No. 2:19-bk-00787 Doc 53-3 Filed 11/02/19 Entered 11/02/19 10:12:20 Page 27
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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 One Million Eight
Hundred Seventy-One Thousand Five Hundred Five and 00/100 Dollars ($1,871,505.00),
together with any amendments, modifications, renewals, extensions or refinancings thereof, as
evidenced by that certain Promissory Note dated July 2, 2014, in the principal amount of One
Million Eight Hundred Seventy-One Thousand Five Hundred Five and 00/100 Dollars
($1,871,505.00) (together with 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 July 2, 2014, granted by Assigner to Joyce F. Ofsa, as Trustée, for the
benefît of Assignée (together with ail amendments, renewals, extensions, substitutions and
modifications thereof, the "Deed of Trust"), the Guaranties dated as of July 2, 2014 (together
with ail amendments, renewals, extensions, substitutions and modifications thereof, collectively,
the "Guaranties") of Global Matrix Corporation, a Virginia corporation, Pons Milvius LLC, a
Delaware limited liability company, Raymond C. Jones and James V. Punelli (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 July 2,2014 (together with
ail amendments, renewals, extensions, substitutions and modifications thereof, the "Loan
Agreement"). Capitalized terms used and not otherwise 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 53-3 Filed 11/02/19 Entered 11/02/19 10:12:20 Page 28
of 56
the obligations under the Promissory Note, the Deed of Trust or the Guaranties or in defending
the rights granted to the holder herein.
4.
It is expressiy understood that this Assignment does not obligate Assignée
to perform any of the obligations of Assignor as landlord under the ternis of the Leases. It 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 enjoy the benefits 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 rentals, 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 rentals, income,
profits and other monies of the Leases créâtes a second priority lien encumbering the interests of
Assignor as lessor under the Leases, junior and subordinate to that certain Collatéral Assignment
of Leases and Rents dated as of August 20, 2013, and effective as of August 21, 2013, by and
No. 2:19-bk-00787 Doc 53-3 Filed 11/02/19 Entered 11/02/19 10:12:20 Page 29
of 56
between Assigner and Assignée, and recorded in the Office of the Clerk of the County
Commission of Hardy County, West Virginia in Book 277, at page 181 (the "Prior Assignment").
Assigner further warrants that it will net, without the prior written consent of Assignée, create or
permit to exist or to be created any pledge or assignment of the Leases except this Assignment
and the Prior Assignment,
8.
Assigner warrants that it is the sole owner of the Leases assigned by this
Assignment; that the Leases are net now encumbered except by the Prior Assignment; that the
Leases are valid and in full force and effect in accordance with their respective terms; that Tenant
is net in default under any of the 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 imder 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
of the 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 jurisdiction 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
benefît of the parties hereto and their respective successors and assigns.
4
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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 coimterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
[Remainder of Page Intentionally Left Blank]
No. 2:19-bk-00787 Doc 53-3 Filed 11/02/19 Entered 11/02/19 10:12:20 Page 31
of 56
IN WITNESS WHEREOF, Assigner and Assignée have caused this Assignment to be
executed by their duly authorized members or officers as of the date first written above.
TENX GROUP LLC,
a Delaware limited liability company
James V. Punelli
Manager
.
Jones
Name: Raymon
Its:
Manager
STATE OF
COUNTY OF
,
to-wit:
The foregoing instrument was acknowledged before me thisi2_ day of July,
2014, 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:
Jn
là
4-
Notary Public
[Notarial Seal]
OrnCIALSEAL
STATE OF WEST VIRGINIA
lii !
V
I
v'ï
NOTARY PUBLIC
SHEU.A F GORDON
I
WALIêBS KRAUSKOPF & BAKER |
^
PO BOX 119
MOCRCFIELO. WV 26^
My
oxptfos January 2^20201
No. 2:19-bk-00787 Doc 53-3 Filed 11/02/19 Entered 11/02/19 10:12:20 Page 32
of 56
STATE OF
COUNTYOF_x^
to-wit:
The foregoing instrument was acknowledged before me this
day of July,
2014, by Raymond C. Jones, the Manager of TenX Group LLC, a Delaware limited liability
Company, on behalf of the limited liability company.
My commission expires:
Notary Public
[Notarial Seal]
M
OFFICIAI. SEAL
STATE OF WEST VIRGINIA
NO
l ARY PUBLIC
H
SHÉILA F GORDON
•' WALTERR KRAUSKOPF & BAKER |
'•
PO BOX 119
MOonEFieto.wv aease
,
My commission
,
No. 2:19-bk-00787 Doc 53-3 Filed 11/02/19 Entered 11/02/19 10:12:20 Page 33
of 56
WEST VIRGINIA ECONOMIC
DEVELOPMENT AUTHORITY,
a West Virginia public corporation
ui
By:
Name: David A. Wamer
Its:
Executive Director
STATE OF WEST VIRGINIA,
COUNTY OF KANAWHA,
to-wit:
The foregoing instrument was acknowledged before me this
day of July,
2014, 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:
«^3 . ^0)1
.
OHIclal Soal
Notary Public
StdlootWost Virginia
Beverly S. Dolin
ast 4ih Avontie
Seutti Chorieiton. VW 2M03-1W» (
Mv commiMion #*plr« Apfli 23. îOU
C\
Notary
This instrument was prepared by and upon recordation should be returned to Elizabeth A. Benedetto, Spilman Thomas &
Battle,
PLLC, P. O. Box 273, Charleston, West Virginia 25321; (304) 340-3861.
6239780(1916.779)
No. 2:19-bk-00787 Doc 53-3 Filed 11/02/19 Entered 11/02/19 10:12:20 Page 34
of 56
Ëxhibit 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, NEST 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
277, 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.
This document presented and filed:
07/02/2014 02:22:20 PM
Gregory L. Ely, Hardy County. WV
195178
Transfer Tax; $0.00
No. 2:19-bk-00787 Doc 53-3 Filed 11/02/19 Entered 11/02/19 10:12:20 Page 35
of 56
Exhibit A-9
Forbearance Agreement, dated July 6,2018
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of 56
FORBEARANCE AGRF.RMF.]VT
This Forbearance Agreement (this "Agreement"^ Is made as of the
day of July 2018
by and among WEST VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY, a West
Virginia public corporation ("WVEDA"); PANTHERA ENTERPRISES, LLC, formerly
TENX GROUP LLC, a Deiaware limited liability company (the "Borrower"): the foBowing
guarantors (coIlective|y, the "Guarantors" and together with the Borrower, the "Obligors"^:
GLOBAL MATRIX CORPORATION, a Vn-gmia corporation; PONS MILVIUS LLC, a
Deiaware limited liability company; JAMES V. PUNELLI, a résident of the Commonwealth of
Virginia; and RAYMOND C. JONES, a résident of the Commonwealth of Virginia; and
PANTHERA TRAINING, LLC, a Virginia limited liability company ("Panthera Training''V
For avoidance of doubt, Panthera Training is not a Guarantor.
RECITALS
A.
To evidence and secure a $5,000,000 taan (the '^013 WVEDA Lnan"1 made by
WVEDA to the Borrower to permanently finance a portion of the Borrower's costs toacquire the
security opérations training facility previously operated as the Moorefield Training Center in
Moorefîeld, Hardy County, West Va-ginia (the "Training Center"V the Obligors previously
executed and delivered to WVEDA the foltowing documents and instruments (as the same may
be amended, restated or modified from time to time, coUectively, the "2013 WVEDA Loan
Documents"^:
(1)
Promissory Note dated August 21, 2013, made by the Borrower and
payable to the order of WVEDA in the original principal amount of $5,000,000 (the "2013
WVEDA Note"V
(2)
Loan Agreement dated August 21, 2013, by and among WVEDA, the
Borrower and the Guarantors (the "2013 WVEDA Loan Agreement"'!:
(3)
Crédit Line Deed of Trust and Fixture Filing dated August 21,2013, from
the Borrower to Joyce F. Ofsa, as Trustée, for the benefit of WVEDA, recorded in the Office of
the Clerk of the County Commission of Hardy County, West Virginia, on August 22, 2013 in
Deed of Trust Book 277, at Page 158 (the "2013 WVEDA Deed of Trust"!, granting a lien on a
tract of real property comprising 689.40 acres, more or less, located in Moorefîeld District,
Hardy County, West Virginia (the "Training Center Prooertv"!. and aU buildings, structures and
improvements thereon (which includes the Training Center), ail fixtures affixed thereto, and ail
rents, income, issues and profits derrved from the Training Center Property;
(4)
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 (the "2013
WVEDA Lease Assignmenf'V by which the Borrower granted to WVEDA a security interesTïî
ail right, tkle and interest of the Borrower in ail rentals, income and profits due under all existing
and future leases of all or any portbn of the Training Center Property, and which was recorded
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on August 22, 2013, in the Office of the Clerk of the County Commission of Hardy Counly,
West Virginia, in Deed of Trust Book 277, atPage 181;
(5)
Guaranty dated August 21, 2013, from Global Matrix Corporation in favor
ofWVEDA;
(6)
Guaranty dated August 21, 2013, ffom Pons Milvius LLC in favor of
WVEDA;
(7)
Guaranty dated August 21, 2013, from James V. Punelli in favor of
WVEDA; and
(8)
Guaranty dated August 21, 2013, from Raymond C. Jones in favor of
WVEDA.
B.
To evidence and secure a $1,871,505 loan (the "2014 WVEDA Loan" and
together with the 2013 WVEDA Loan, the "Loans") made by WVEDA to the Borrower to
permanent^' finance a portion of the costs to acquire 58.09 acres, more or less, adjacent to the
Training Center (the "Pratt Pronertv'' and together with the Training Center Property, the
Collatéral ProDer^'n and to construct improvements and rénovations at the Training Center
including, but not limited to, a 6,000 square foot live-fire assauh house, a covered gun range and
an expanded armoiy complex, aU to expand services offered at the Training Center, the Ob%ors
previously executed and delivered to WVEDA the folbwing documents and instruments (as the
same may be amended, restated or modified from time to time, collective^ the "2014 WVEDA
Loan Documents" and together with the 2013 WVEDA Loan Documents, the "Loan
Documents"^-
(1) Promissory Note dated July 2, 2014, made by the Borrower and payable to
the order of WVEDA in the original princ^al amount of $1,871,505 (the "2014 WVEDA Note"
and together with the 2013 WVEDA Note, the "Notes");
(2) Loan Agreement dated as of July 2, 2014, by and among the Borrower,
WVEDA and the Guarantors (the "2014 WVEDA Loan Agreement"h
(3) Crédit Line Deed of Trust and Fixture Filing dated July 2, 2014, from the
Borrower to Joyce F. Ofsa, as Trustée, for the benefit of WVEDA, recorded in the Office of the
Clerk of the County Commission of Hardy County, West Virginia, on July 2, 2014, in Deed of
Trust Book 282, at Page 818 (the **2014 WVEDA Deed of Trust" and together whh the 2013
WVEDA Deed of Trust, the **Deeds of Trust"), granting a lien on the Collatéral Property, and ail
buildings, structures and improvements thereon, ail fixtures afïïxed to the property, and ail rents,
income, issues and profits derived from the Collatéral Property;
(4)
Collatéral Assignment of Leases and Rents dated as of July 1, 2014, and
effective as of July 2,2014, by and between Borrower and WVEDA (the **2014 WVEDA Lease
Assignment" and together with the 2013 WVEDA Lease Assignment, the **Lease Assignments"L
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by which
Borrower granted to WVEDA a security interest in aU right, titte and interest of the
Borrower in ail reniais, income and profits due under ail existing and future leases of ail or any
portion of the Collatéral Property, and which was recorded on July 2, 2014, in the Office of the
Page 837;
(5)
WVEDA;
WVEDA;
(7)
and
(8)
WVEDA.
C.
On
Guaranty dated July 2, 2014, from Raymond C. Jones in favor of
payment arrangement pursuant to which Borrower agreed to pay $20,000 per month for each of
the Loans ($40,000 per month total), to the WVEDA.
D.^
The Borrower bas defauked under the Loan Documents, as modified, as a resuit
Borrower s failure to make payments as and when due, inchiding, speciflcally, without
limitation, the faOure to make ail but three (3) of nine (9) payments coming due between May
20, 2017, and February 28, 2018 (the "Default").
E.
On February 28, 2018, WVEDA sent a notice of default and demand for payment
letter to the Borrower and the Guarantors, providing the Borrower until March 31, 2018 to cure
the Default by tendermg payment in fuU of al! outstanding princ^l, accrued and unpaki mterest
and other fees and charges due WVEDA under the Notes.
F.
As of the date hereof, the Borrower remains in default under the Loans as a resuit
of te failure to tender payment in fiiU of the Notes to WVEDA by March 31, 2018.
G.
As of July 6, 2018, the 2013 WVEDA Loan has an outstanding balance of
$5,010,754.98, consisting of outstanding principal of $4,472.705.66 and accrued and unpaid
interest of $538,049.32, and the outstanding princpal balance continues to accrue interest at a
daily perdiem rate of $531.82.
H.
As of July 6, 2018, the 2014 WVEDA Loan has an outstanding balance of
$1,895,253.55, consisting of oustanding principal of $1,709,076.52 and accrued and unpaid
interest of $186,177.03, and the outstanding principal balance continues to accrue interest at a
daily per diem rate of $181.68.
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I.
Borrower has presented WVEDA with a Commercial Lease Agreement (the
"2018 Lease") dated June 1, 2018, by and between Borrower as Landtord and Panthera Training
as Tenant, pursuant to which the Borrower agreed to lease the Collatéral Property to Panthera
Training in considération for, among other things, monthly rent of $52,000 to be paid directly to
the WVEDA, and upon other terms as provided therein. A copy of the 2018 Lease is attached
hereto and incorporated herein as Exhibif A.
J.
The Obligors have requested WVEDA to consent to the 2018 Lease and to refrain
for a limited period of time from enforcing its rights and remédiés under the Loan Documents
with respect to the Defauit, and WVEDA is willing to consent to the 2018 Lease and to refrain
for a limited period of time from enforcing its rjghts and remedies under the Loan Documents
upon the terms and conditions stated in this Agreement.
K.
The partffis desire to set forth their agreements as provided below.
AGREEMENT
NOW, THEREFORE, in considération of the premises, and for other good and vahiable
consideratbn, the receipt and sufFiciency of which are hereby acknowledged, the parties hereto,
mtending to be legalty bound, agree as foUows:
1.
Récitals.
The récitals set forth above are incorporated in this Agreement as fu% set forth above
and are hereby acknowledged by the Obligors and WVEDA to be true and accurate.
2.
Définitions.
Capitalized terms not defmed herein shall have the meanings assigned to them in the
Loan Agreements.
3.
Acknowledgment of Defaults.
The Obligors hereby acknowledge and agree that the Defauit has occurred and is
continuing under the Loan Documents, and that WVEDA has the immédiate right to exercise ail
rights and remedies provided under the Loan Documents. Subject to the terms and condilfons
hereof, WVEDA agréés to forbear from exercising its rights and remedies under the Loan
Documents during the Forbearance Period (as defîned herein).
4.
Outstanding Balance Owed Under Loan Documents.
(a)
The Obligors acknowledge and agree that as of July 6, 2018, the total
amount due and owing to WVEDA under the 2013 WVEDA Loan Documents is $5,010,754.98,
which consists of unpaid princq>al in the amount of $4,472,705.66, together with accrued and
unpaid interest in the amount of $538,049.32 (the ^*2013 WVEDA Loan Indehtedneg^"^ As of
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July 6, 2018, interest continues te accrue under the 2013 WVEDA Note at a per diem rate of
$531.82.
(b)
The Obligors acioiowledge and agree that as of July 6, 2018, the total
amount due and owing to WVEDA under the 2014 WVEDA Loan Documents is $1,895,253.55
whKh consists of unpaid principal in the amount of $1,709,076.52, together with accrued and
unpaid interest in the amount of $186,177.03 (the "2014 WVEDA Loan Indehtedness» and
together with the 2013 WVEDA Loan Indebtedness, the "Indebtedness"). As of July 6, 2018,
interest continues to accrue under the 2014 WVEDA Note at a per diem rate of $181.68.
5.
Forbearance Period.
Sub^ct to the express provisions of this Agreement, WVEDA hereby agréés to forbear
from exercising its remedies under the Loan Documents until the earlier of (a) 5:00 p.m. on
January 6, 2019; or (b) the occurrence of a Terminalkm Event, as defjned in Section 7 of this
Agreement (the 'Torbearance Period"L
6.
Conditions of Forbearance.
WVEDA s agreement to forbear is condhbned upon and subject to timely satisfaction of
each of the foUowing conditions (the "Conditions of Forbearance"V
(a)
Pavments to WVEDA.
(0 The Obi^ors hereby agree that during the Forbearance Period ail
nwnthiy rental payments to be paid by Panthera Trammg under the 2018 Lease shall be paid
direct^ to WVEDA. WVEDA shall apply the rental payments as foUows:
L
seventy-two percent (72%) of such payments shall be
applied to the 2013 WVEDA Loan Indebtedness {first to accrued interest untfl such accrued
interest is paid in full, then to princ^O» and
2.
twenty-eight percent (28%) of such payments shaD be
applied to the 2014 WVEDA Loan Indebtedness (first to accrued interest until such accrued
interest is paid in fiill, then to prmc^I).
(iO
Upon the occurrence of a Termination Event (as later defîned in
this Agreement) or an Event of Default under the Loan Documents, the Obligore shaO pay ail
amounts due and owing under and pursuant to the Loan Documents in connection with the
Notes, and in addition, the Obl^(M:s shaH pay aO of WVEDA*s attorneys' fees and eiqaenses as
set forth in Section 6(h) of this Agreement.
(b)
Réduction of Delinquent Taxes.
During the Forbearance Period, Borrower shall pay any fiinds that k receives as
AddkÎQnal Rent (as defbied ôi the 2018 Lease) to reduce any and ail of Bcnrower's delinquent
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tax obl^ations, whether such taxes be in tbe nature of pn^jerty, wkhholdnig, âicoine or other
type oftax.
(c)
Actions bv Other Creditors.
During the Forbearance Period, no other creditor of the Borrower shall undertake
to exercise any collection action against the Colhteral Property.
(d)
Correctness of Représentations and Warrantiez.
AU représentations and warranties made by the Obligors to WVEDA under this
Agreement shaU remain true and correct throughout the Forbearance Period, including those
made in the récitals to this Agreement.
(e)
No Defaults Under Loan Documents.
During the Forbearance Period, the Obligors shaU perform under and satisfy aU
other ob%atfons, covenants, représentations and warranties contained in the Loan Documents
applicable to them. With respect to such obligations, covenants, représentations and warranties,
an Event of Default under any of the Loan Documents shaU consthute a Termination Event
under this Agreement.
(0
No Defaults Hereunder.
During the Forbearance Period, the Ob%ors shaU not breach any promise or
covenant contained in this Agreement and shaU not be in defauh under any provision of this
Agreement.
(g)
No Sale. Transfer. Lease or Encumbrance of Assets.
Borrower shaU not sell, convey, transfer, lease, mortgage, pledge, or grant or
permit to exist a security interest in or fen upon any of its assets which secure the Borrower's
Indebtedness to WVEDA including, but not limited to, the Collatéral Property, unless approved
in advance by WVEDA in writing during the Forbearance Period.
(h)
Fees and Expcnses.
Borrower shaU pay aU of WVEDA's attorneys' fees and expenses incurred in
connection with WVEDA's coUection efforts and the negotiation, préparation and exécution of
this Agreement.
(i)
Coopération with WVEDA and Third Partfes.
The Obligors shaU cooperate whh any appraisers, engineers, architects,
auctioneers or third parties that WVEDA may engage in connection with its collatéral, and
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Borrower shall time^ provkle such information about its financial status and/or WVEDA's
collatéral as WVEDA may request.
G)
Other Indebtedness.
During the Forbearance Period, the Obligors shall not be in defauh of any other
commercial indebtedness to which any Obligor is a party, whether to WVEDA or any third
party.
(k)
Consent to Relief from Stav.
The Ob%ors hereby fiiither agree that m the event lhat any Obligor shafl (i) file
for or be the subject of any pétition under title II of the United States Code (as amended, the
'SankniDtcv Code"! (fi) be the subject of an order for retief issued under the Banknqïtcy Code,
(iii) file or be the subject of any petàion seeking any recH'ganizatkHi, composfiion, readjustment,
liquidation, or similar relief under any p-esent or future fédéral or state hw or act rebtà^ to
bankruptcy, insolvency or other relief for debtors, or (iv) be the subject of any order, judgment,
or decree entered by any court of compétent Jurbdiction appoving a petàton filed against such
party for reorganization, composàion, rcadjustment, Bquidation, dissolution or simibr relief,
WVEDA shall thereupon be entîtied to relief from any automatic stay imposed by section 362 of
the Bankruptcy Code, or otherwise, on or agamst the exercise of the rights and remedfes
otherwise avaibble to WVEDA as provided in the Loan Documents, this Agreement, and/br as
otherwise povided by law. The Obligors further waive any r^t they may have to move n such
proceedmg to extend Ae exclusive period to fOe a plan or have a plan accepted, unless WVEDA
has been granted relief from the stay. This povision shall survive any termâiation of this
Agreement.
(D
Further Assurances.
The Obligors will cause to be promptly and duly taken, executed, acknowledged
and delh/ered ail such further acts, documents and assurances as WVEDA may from time to time
request in order more effectively to carry out the intent and purposes of this Agreement and the
transactions contemplated by this Agreement. Promptly upon request by WVEDA, the Obligors
agree to execute and deliver and to fïle and record or refile and rerecord such financtng
statements, deeds of trust, assignments and other such documents in such manner, at such time or
times and in such place or places as may be required by law, and to cause to be taken such other
actions as may be required by law or as may be requested by WVEDA in order effectively to
cany out the intent and purposes of this Agreement.
7.
Termination Events.
Each of the foUowing shall consthute a Termination Event and an Event of
Default under this Agreement:
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(a)
The breach of or faihire to satisfy any of the Conditions of Forbearance as
set forth in Section 6 above including, without limitation, any failure by Panthera Training to pay
ils rental payments directly to WVEDA;
(b)
If any Obligor becomes a debtor in a bankniptcy case by means of either a
voluntary or involuntary petitbn;
(c)
Any kind of receivership or insolvency proceeding is commenced by or
against any Obligor;
(d)
The submission by any Obligor of any false or inaccurate information or
omission of any material fact or any fact necessary to make such information not misleading;
(e)
The entry of any judgment, order, award or decree against any Obligor and
a détermination by WVEDA, in good faith but in ils sole discrétion, that the same, when
aggregated with ail other judgments, orders, awards and decrees outstanding against any Obligor
could have a material adverse effect on the prospect for WVEDA to fully and punctuaBy realize
the fuU benefits conferred on WVEDA by the Loan Documents and this Agreement;
(f)
Any assets of any Obligor shall be attached, levied upon, seized or
repossessed, or corne into the possession of a trustée, receiver or other custodlan and a
détermination by WVEDA, in good faith but in its sole discrétion, that the same could have a
material adverse effect on the prospect for WVEDA to fully and punctually realize the full
benefits conferred on WVEDA by the Loan Documents and this Agreement;
(g)
The occurrence of any event or the existence of any circumstances which,
under the terms of any of the Loan Documents, constitutes a default or an Event of Default
thereunder; or
(h)
The détermination in good faith by WVEDA that a material adverse
change bas occurred in the fmancial condition of any Obligor.
8.
Termination of Forbearance Period.
The Obligors agree that the Forbearance Period automatically, and wâhout notice,
shall terminate upon the earlier of (a) 5.00 p.m. on the date set forth in Sectbn 5(a) hereof; or (b)
the occurrence of any Terminatbn Event, as defmed above.
Upon termmation of the
Forbearance Period, the entire remainbg balance under the Notes shall, at WVEDA's optbn, be
immediately due and payable, and WVEDA shall be under no ohlîgatbn to forbear in any
respect and shall be entitled immediatejy to exercise ail of its rights and remedies under the Loan
Documents, ail without further notice to any Obligor.
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9.
Représentations. Warrantas and Covenants.
In order to induce WVEDA to enter into this Agreement and in conskieration of
the forbearance by WVEDA as herein provkled, the Obligors make the foilowing
représentations, warranties and covenants to WVEDA;
(a)
The Indebtedness is due and payable by the Obligors, and the Loan
Documents are fuUy enforceable by WVEDA and are not subject to any defense, counterclaim,
setoff or recoupment by the Obligors.
(b)
This Agreement represents an arm's-Iength transaction freely entered into
by the Obligors, and WVEDA has acted in good faith in the making of this Agreement. The
Obligors acknowledge that they have had the opportunhy to retain counseJ to particqjate in the
negotiation and exécution of this Agreement.
(c)
The exécution and performance of this Agreement by the Obligors does
not and wiU not violate any agreement to which any Obligor is a party.
(d)
AU financial and other information given by the Obl^ors or any of their
agents or représentatives to WVEDA is and shaU be true and accurate.
(e)
The Obligors shaU not take any action that would impair their ability to
perform the obligations hereunder or to satisfy any of the Conditions of Forbearance.
(0
This Agreement is not being entered into with the intent to hinder, delay
or deffaud any creditor of the Obligors.
'
(g)
AU représentations and warranties made by the Obligors to WVEDA
under the Loan Documents are true and correct as of the date hereof.
No Substitution or Novation: Ratification ofLoan Documents.
This Agreement shaU not constitute a substitution or novation of the Indebtedness
evidenced by the Notes or any of the other Loan Documents. Except as modified by this
Agreement, the Notes and the other Loan Documents shaU continue in full force and effect and
the ObUgors hereby ratify and confîrm the validity and effectiveness of aU of the Loan
Documents, as modified by this Agreement.
11.
Continuatbn ofSecuritv.
Nothing contained in this Agreement shaU be construed to impair the security of
WVEDA,
its successors and assigns under the Loan Documents, nor afîect, nor impair any rights
or powers that WVEDA may have under the Loan Documents for the recovery of the
Indebtedness in case of nonfiilfîUment of the terms, provisions and covenants contained in this
Agreement or the terms, rights, powers and covenants of the Loan Documents, whether deUvered
m connection wMi this Agreement or otherwise. AU rights, powers and remedies of WVEDA
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under any other agreement now or at any time in the future in force between WVEDA and the
Obligors shall be cumulative and net alternative and shall be in addition to ail rights, powers and
remedies given to WVEDA by law.
12.
Release and Waiver.
The Obligors (referred to for purposes of this Sectbn 12 as the "Refôasors")
hereby acknowiedge and stflDukte that they have no daims or causes of action agamst WVEDA
of any kind whatsoever, whether arising out of the Loan Documents, the conduct or
administration of the Loans in connection with the Loan Documents, or out of the negotiation,
exécution and delivery of this Agreement or otherwise. The ReleasOTs hereby fiilly and forever
release and discharge WVEDA and its predecessors, successors, assigns, stockhoJders, afififates,
directors, officers, empbyees, agents, attorneys, mdependent contractors and représentatives
(whether now or heretofore actmg in such capacity or otherwise) (the "Reteasees"), from any and
ail ciaons, demands, fiabOities, obligations, actions, causes of actbn or suks at bw or in equîty,
of whatsoever kind or nature, whether known or unknown, discoveied or undiscovered, matured
or not matured, asserted or unasserted, which the Releasors heretofoie have asserted or now or
heieafter have or may assert agamst any one or more of the Releasees, arisBig out of or in
respect of any actions, conduct, cffcumstances or events occurrtng on or prior to the date of this
Agreement, In flirtherance and not in iânitatkxi of the provisions of the fueceding sentence, the
Releasors aiso agree not to sue or prosecute any action agamst any or aD of the Releasees wfth
respect to any of the matters contemplated wàhm the scope of saki sentence, and the Releasors
agree to hold each and aD of the Releasees harmless in respect of any suà or fHOsecutkm by the
Releasors in contravention of the proviskuis of this sentence.
13.
No Obligation to Extend Future Forbearances: No Waiver.
The Obligors acknowiedge and agree that WVEDA is not obligated and does not
agree to extend any other or future forbearance except as e^ressly set forth herein. This
Agreement shaD not constitute a waiver by WVEDA of Boirower's default under the Loan
Docunients. Except as expressly provided herein, WVEDA reserves aU of its rights and
remedies under ail the Loan Documents. No action or course of dealing on the part of WVEDA,
its officers, empbyees, consultants, or agents, nor any failure or delay by WVEDA with respect
to exercising any right, power or privilège of WVEDA under the Notes, any of the other Loan
Documents or this Agreement, shaU operate as a waiver thereof, except to the extent expressly
provided herein.
14.
Goveming Law.
This Agreement shaD be govemed by and construed in accordance with the laws
of the State of West Virginia.
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15.
Notices: Fuither Communications: Amendments.
Any notice, demand, or request required or permitted to be given hereunder shall
be deemed gtven if mailed by certifîed mail, retum recept requested, addressed as foUows:
If to Borrower:
Panthera Enterprises, LLC
1900 Campus Gommons Drive
Suite 100
Reston, VA 20191
Attentbn: James V. PunelK, Manager
If to Guarantors:
Global Matrix Corporation
43787 Bent Creek Terrace
Leesburg, VA 20176
Attentbn: Raymond C. Jones
Pons Mih/bs LLC
11654 Plaza America Drive, M 320
Reston, VA 20190
Attention: James V. Punelli
Raymond C. Jones
43787 Bent Creek Terrace
Leesburg, VA 20176
James V. Punelli
11654 Plaza America Drive, # 320
Reston, VA 20190
If to Panthera
Training:
Pandiera Training, LLC
24681 Dalby' s Lane
Cape Charles, VA 23310
Attentbn: Robert L. Starer, Managmg Member
If to WVEDA:
West Virginia Economb Development Authorhy
NorthGate Business Park
180 Associatbn Drive
Charleston, WV 25311-1217
Attentbn: Caren D. Wilcher, Associate Director
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With acopy to:
Spilman Thomas &
Battle, PLLC
P.O. Box 831
Wheeling, WV 26003-0873
Attentbn: Eric Gadd
This Agreement cannot be amended, rescinded, supplemented or modiffed except
in writing signed by the parties hereto.
16.
Complété Aereement.
This Agreement contains the entire agreement of the parties and supersedes any
other discussions or agreements relating to the subject of this Agreement.
17.
Time of the Essence.
TIME IS OF THE ESSENCE WITH RESPECT TO THE CONDITIONS OF
FORBEARANCE AND THE OBLIGATIONS OF THE OBLIGORS UNDER THIS
AGREEMENT.
18.
Severabilitv.
Any provision of this Agreement that is prohibited by, or unlawfiil or
unenforceable under, West Virginia or fédéral law shall be ineffective only to the extent of such
prohibàion, without invalidating the remaining provisbns of this Agreement.
19.
WAI VER OF JURY TRIAL.
The parties hereto agree that any suit, action or proceeding, irtiether daim
or counterclaim, brought or instituted by any party to this Agreement or any of their
successors or assigns, on, under or with respect to this Agreement, the Notes, any ofthe
other Loan Documents, or the Indebtedness, shall be tried only by a court and not by a
juiy. THE PARTIES EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN
ANY SUCH ACTION OR PROCEEDING. The parties acknowledge and agree that this
provision is a spécifie and material aspect ofthis Agreement between the parties and that
the parties would not enter into this Agreement if this provision were not a part ofthis
Agreement.
20.
Assignment.
This Agreement shall be bmdbg upon and mure to the benefrt of WVEDA and
the Obligors and their personal représentatives, heirs, successors and assigns, except that the
Obligors may not assign or transfer their rights or duties under this Agreement without the prior
written consent of WVEDA. This Agreement may be assigned by WVEDA m its sole
discretbn.
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21.
Guarantors' Consent and Reaffirmation.
Each Guarantor hereby acknowledges and consents to the terms of this
Agreement and vérifiés, reconfirms, reaffirms, restâtes and ratries his or its obligations to
WVEDA pursuant to his or its Guaranties.
22.
Joinder of Panthera Trainins.
Panthera Training joins in the exécution of this Agreement to affirmatively
acknowledge and agree that untfl à reçoives finther notice fixwn WVEDA, aU monthly rentai
payments under the 2018 Lease shall be paid directly to WVEDA.
23.
Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall be
an original and ail of which, taken together, shall constitute but one and the same agreement
among the parties.
[Remainder of Page Intentional^ Left Blank; Signature Pages Foltowj
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[SIGNATURE PAGE 1 TO FORBEARANCE AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement individually or by
their duly authorized cfïîcers or managers as of the day and year first above written.
BORROWER:
PANTHERA ENTERPRISES, LLC, F/K/A
TENX CROUP, LLC,
a Delaware limited iiability com{:»ny
James V. Punelli
Its: Manager
14
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(SIGNATURE PAGE 2 TO FORBEARANCE AGREEMENTJ
♦u • j
MTNESS TOEREOF, the parties have executed this Agreement individually or by
meir duty authonzed officers or managers as of the day and year first above written.
GUARANTOR:
GLOBAL MATRIX CORPORATION, a Virginia
cciporation
RaymontUC. Jones
Its:
Président
15
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[SIGNATURE PAGE 3 TO FORBEARANCE AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement individualty or by
their duly authorized ofïicers or managers as of the day and year fîrst above written.
GUARANTOR;
PONS MILVIUS LLC, a Delaware limited liabilhy
Company
lames V. Punelli
Its: Manager
16
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(SIGNATURE PAGE 4 TO FORBEARANCE AGREEMENT]
♦t, • -4 1?^ VWTNESS ^TOEREOF, the parties have executed this Agreement mdividually or by
their àvfy authonzed ofRcers or managers as of the day and year first above written.
GUARANTOR:
RaymondjC. Jones
17
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[SIGNATURE PAGE 5 TO FORBEARANCE AGREEMENTJ
IN WITNESS WHEREOF, the parties have executed this Agreement individually or by
their duly authorized cfllcers or managers as of the day and year first above written.
GUARANTOR;
V. Punelli
18
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(SIGNATURE PAGE 6 TO FORBEARANCE AGREEMENTJ
IN WITNESS WHEREOF, the parties have executed this Agreement individually or by
their duJy authorized ofïkers or managers as of the day and year first above written.
PANTHERA TRAINING, LLC, a
Virginia
limhed liabilhy company
—
girmie^
Rooert L. Starer
Its:
Managing Member
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(SIGNATURE PAGE 7 TO FORBEARANCE AGREEMENTJ
IN WITNESS WHEREOF, the parties have executed this Agreement individually or by
their duly authorized officers or managers as of the day and year fîrst above written.
LENDER:
WEST VIRGINIA ECONOMIC DEVELOPMENT
AUTHORITY,
a West Virginia public corporatfon
gy.
David A. Wamer
Its: Executive Director
11010886 C001916.0867)
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