In re Panthera Enterprises — TenX Group Credit Line Deed of Trust (Exhibit B)
- Date
- 2021-05-21
Summary
Exhibit B, filed May 21, 2021 as Doc 346-3 in bankruptcy case No. 2:19-bk-00787, In re Panthera Enterprises, is a Credit Line Deed of Trust and Fixture Filing dated August 21, 2013. It is made by TenX Group LLC as grantor, a trustee, and the West Virginia Economic Development Authority (WVEDA) as beneficiary, and conveys the grantor's interest in tracts of land in Moorefield District, Hardy County, West Virginia, with fixtures, equipment and rents. The deed secures a $5,000,000.00 loan with a fifteen-year term evidenced by a promissory note, along with a loan agreement, lease assignment and guaranties. Its covenants cover taxes, insurance, repair, liens, hazardous substances and financial reporting, and it lists events of default. The document closes with a property description including a tract of 689.40 acres and a 2014 county recording stamp; it runs 43 pages.
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
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EXHIBIT B
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A CRKDÏT UNE DEËD OF TRUST AND FIXTURE FILINH
THIS CREDIT LINE DEED OF TRUST AND FIXTURE FÏLING (the
"Deed of Trust"), dated this 21st day of August, 2013, by and among TENX CROUP LLC, a
Delaware Hmited liability company ("Grantor"), JOYCE F. OFSA, a résident of Kanawha
County, West Virginia, as trustée ("Trustée"), and the WEST VIRGINIA ECONOMIC
DEVELOPMENT AUTHORITY, a West Virginia public corporation (referred to herein as
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either"WVEDA"or "Beneficiaiy")-
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That for and in considération of the indebtedness and trusts hereinafter set forth
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and the sum of Ten Dollars ($10.00), cash in hand paid, the receipi and suffîciency of which are
^ tS hereby acknowledged, the Grantor does hereby GIL\NT and CONVEY unlo the Trustée, with
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the power ofsale, all ofthe following:
(a) All of Grantor's interest in those certain parcels or tracts ofland located in
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"E 3 Moorefield District, Hardy County, West Virginia, together with all buildings, improvements and
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|| structures at any time now or hereafter erected, situated or placed thereon by Grantor and all
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rights, privilèges, eascmcnts, heredilaments, appendages and appurtenances thereunto belonging
N or appertaining, as more particularly described on Exhibit A attached hereto and made a part of
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1§ this Deed of Trust;
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.S i (b) All right, title, interest and estate of the Grantor in and to sireets,
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roadways, sidewalks, curbs, alleys and areas involving the estate hereby conveyed and portions
thereof, and whether vacated by law or ordinance (conditionally or olherwise);
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(c) AU fixtures. fixed assets and personally ofa pennanent nature, owned by
the Grantor now or at any time hereafter annexed, afflxed or attached to the Property(as defined
herem) hereby conveyed and the buildings, improvements or structures thereon and used or
intended to be used in the possession, occupation or enjoyment theteof, and ail replacements
addiuons and substitutions thereofor thereto, including, but without limiting the generality ofthe
foregomg, ail apparatus, appliances, machinery, equipment and articles located on the Property
hereby conveyed and used to supply or provide or in connection with hcat, gas, air onn^iti^ning
plumbing, water, lighting, power, elevator service, sewcrage, refrigeration, cooling, ventilation,
spnnkler system and water heater, ail of which, described in this item (c), shall be a part of the
freehold and a portion ofthe security for the obligation herein described;
(d) AU 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
mterest, procured for incoiporaUon 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 ofthe Property hereby conveyed. together with ail rem. income,or other proceeds ftom the
Property hereby conveyed; and
(e) Ail reniais, 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 reçoive ail ofsaid income.
Ail property described above shall secure the obligations herein described and
covered by this Deed of Trust, and ail of the foregoing propert>', interests in property and other
rights and interests arc herein sometimes referred to collectively as the "Property."
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The Grantor docs hcrcby covenant to and with the Truslee that it will
WARRANT GENERALLY ihe Utle 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 frce from any and ail liens,
daims and encumbrances, except the following which are collectively referred to herein as Ihe
"Permilted Encumbrances'*:(i) real eslale taxes assessed but not yet due and payable; and (ii) ail
other exceptions Ilsted on Schedule B,Section II ofthe 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
siatements 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 ofTrust.
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 term of fifteen (15) years, evidenced by a Promissory Note of even date
herewith in the original principal amount of Five Million and 00/100 Dollars ($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 thereot, the "Note"),(il) the performance by Grantor and the Guarantors of ail 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 ihereof, the "Loan Agreement"),(iii) the performance
by the Grantor of ail 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 ail
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amendments, renewals, extensions, substitutions and modifications thereof, the "Lease
Assignment"), (iv) the performance by Guarantors of their obligations under their respective
Ouaranty dated 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 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 meanmgs assigned to such terms in the Loan Agreemenl. This Deed of Trust shall aiso
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 covcnants, represents, warrants and agréés with the Trustée and with the
Beneficiary, and each ofthcm.as follows:
1. That Grantor will promptly pay ail taxes, charges and assessments lawfully
levied againsl 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 otlier improvements now or hereafter placed on the Property hereby conveyed.and
die appurtenances thereunto belonging, fully insurcd 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
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its lessee's right, tiile and interest in and to the aforesald insurance shall automatically pass to
and be the property ofihc Ihen holder ofihe obligation hereby secured.
3. Thaï Grantor wili or shall cause any lessee of the Property to keep and
maintam al) 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 ofthe 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 tlie Property or to remain outstanding against samc or any
part thereof; provided, however, that Grantor may,in good faith, conlest the validity of any such
lien and, in the case ofsuch contest, provide for the payment thereof in a manner satisfactoiy to
Beneficiary.
5. That no Hazardous Substances currently directly or indirectly affect the
Property. In the event Grantor shall faii 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 necessaiy 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, 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 all cosis incurred by Beneficiary and Trustée
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pursuant iherelo shall be immediately duc and payable by Grantor upon demand and shall be
funher secured hereby.
6. That Granior will pay to 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 ofthis Dccd ofTrust, or its priority. or in defending any party herelo 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 al law or in equity to foreclose this Deed of Trust or to recover any obligation
hereby secured, together wilh interest on such sums at the rate of ten percent(10%) per annum
until paid, and this Deed ofTrust shall stand as security therefor.
7. That the information fumished to Bcncficiary by Grantor conceming
Grantor's financial status is correct and complété, and that there havc been no adverse changes in
Grantor's financial status since such information was fumished to Beneficiary.
8. That Grantor will kcep proper books of record and account in accordance
with Sound accounting practice conceming Grantor's business; will fumish the Beneficiary a
copy of its year end financial statement and will give the Beneficiary further information
conceming 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 lo pay the principal, interest or other sums due and owing under the Loan in accordance with
the terms or time periods described in the Loan Agreement or Grantor shall fail to pay as and
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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 fumished to Beneficiaiy by or on behalfof
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 fumished;(d) the commission by Grantor, inciuding any members,
managers, officers, employées or agents of Grantor, ofany illégal or fraudulent act with the intent
to deceive Benefîciary inciuding, 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 ofthe other WVEDA Loan Documents ceases to bc in full force and effect(inciuding failure
ofany collatéral document to create a valid or perfected security interest or lien) at any time and
for any reason;(Q if a default or evenl 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 benefil of creditors of ail or substantially ail of Grantor's property inciuding, but not
iimited 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
involuntaiy proceeding under bankruptcy or other insolvency laws against Grantor that is not
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dismissed within sixty(60) days of the filing date;(i)commencement of foreclosure. whelher by
judicial proceeding, self-help, repossession or any oiher method, by any creditor of Grantor
against the Property or any ofthe 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 ofthe creditor proceeding, and if Grantor gives WVEDA written notice of the
creditor proceeding and fumishes réserves 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 defined 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 ofthis 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 terms of man hours)at the Property for any calendar quaiter is
less than fifty percent(50%) of the average quarlerly employment of Grantor or any lessee of
Grantor at the Property for the prcvious 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 ceases 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 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
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transfer of assets in the ordinary course of business that does net materially advereely affect
Orantor's financial condition)without the advance written consent ofBeneficiaiy.
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 90). and is not cumd 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 remédiés, any two or more of which may be
concurrently:
(a) Trustce or Bcncficîary may forthwith, without notice, separately or
jomtly: (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 ofthe Property, and
manage and rent the same, or any part thereof, colleci and receive the rents, issues and profits
thcreof 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 afler 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 Ihem, or either of tlicm, 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 jurisdiclion 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
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other rights and remédiés provided for in this Deed ofTrust. It is understood and agreed by and
between the parties hereto thaï nothlng herein contained shall be constnied 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) Witliout 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
déclare the Note immediately due and payable, Trustée, upon the written request of Beneficiaiy,
shall foreclose upon and sell the Property to satisfy the Note at public auction, at the Trustee's
option either at the location of tlic Property or at the front door ofthe courthouse ofthe county in
which the Property is located, for cash in hand on the day ofsale, aller first giving notice ofsuch
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 bas 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 ofsuch sale under this Deed of Trust. Trustée is not required to be présent at such sale
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and may appoint an agent or attorney in his or lier place lo conduct any sale. Out ofthe proceeds
of such sale Trustée shall pay, firsi, the costs and expcnscs of executing ihis Deed of Trust,
togeUier with an amount equal to five percent(5%)of the gross proceeds ofsale 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 ofthem may have paid for taxes, assessments or other govemmental
charges or fees, insurance, repairs, court costs, and ail other costs and expenses incurred or paid
under the provisions ofthis Deed of Trust, together with interest thereon at tlie rate often percent
(10%)per annum from the date of paymcnt; third lo 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, ofobtaining such possession. This Deed of Trust shall, with respect to ail items
of Personal property and fîxtures subject to the lien hereof, be deemed to grant a security interest
to Beneficiary 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 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 ofa secured party under
the Code. This Deed ofTrust is lo be reeorded in the real estate records ofeach 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 ofTrust
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(d) Thc parties hereto agrce thaï any sale hereunder may be adjoumed
from time to lime without notice olher lhan oral proclamation of such adjoumment al the lime
and place ofsale« or at the time and place ofany adjourned sale.
11. The parties hereto agree that Beneficiary may,at any time and from time to
time hereaûer, 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
appointmenl, either with or without a conveyance to the substituied 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 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 assigna ofthe 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 conclusivc proofof thc proper substitution and appointment ofsuch successor Trustée or
Trustées,and notice ofsuch 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 net 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
ADVANCES OR EXTENSIONS OF CREDIT WITH INTEREST THEREON WHICH THE
SECURED PARTY SHALL MAKE TO GRANTOR FROM TIME TO TIME. Ail 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, direcied to Grantor at the address
stated below or such other address given to Bencficiary in writing by Grantor, subséquent to the
exécution and deliveiy of this Deed of Trust. Any other notice under this Deed of Trust shall be
effective upon the deposil 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 ofother 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
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To Beneficiary;
Wesl Virginia Economie Development Authority
NorthGate Business Park
180 Association Drive
Charleston, West Virginia 25311-1217
Attn: Executive Director
To Trustée:
Spilman, Thomas & Battle,PLLC
P. 0.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 individuel, partncrship, firm or
corporation; that the word "Trustée" shall include ail Trustées if more than one Trustée is named
herein. It is flirther 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 tlie same meaning is intended shall not affect the validity of
this Deed ofTrust.
16. In the event two or more Trustées are named herein, or in the event two or
more substitutc 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 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 fixturc financing slatemeni, the undersigned sets forth the following:
14
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(a) The debtor is TenX Group LLC, and its address is as sel fonh in
Paragraph 14above.
(b) The secured party is thc Bcneficiary, West Virginia Economie
Development Authority,and its address is as sel forlh in Paragraph 14 above.
(c) The property concerned is described in Exhibit A attached hereto
and made a part hereof, and the record holdcr thcreof is the Grantor.
(d) THE SECURED PARTY DESIRES THIS FINANCING
STATEMENT TO BEINDEXED AGAINST THE RECORD OWNER DP THE PROPERTY.
18. Any failure on the part of Beneficiary or Trustée to exercise any option
herein provided shali noi be consirued as a waiver ofany rights or privilèges contained herein.
19. The parties hereto agree that if any term or provision ofthis Deed ofTrust
contravenes any law ofthe 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 all covenants, agreements, représentations
and warranties made herein shali extend to, bind, and inure to the benefit of the heirs, devisees.
Personal représentatives, successors and assigns ofthe parties hereto.
21. If there shail be any inconsistcncies between the terms, covenants,
conditions and provisions set forlh in Ihis Deed ofTrust and the terms, covenants,conditions and
provisions set forth in the Loan Agreement, ihen, unless this Deed of Trust expressly provides
otherwise, thc terms, covenants,conditions and provisions ofthe Loan Agreement shali prevail.
[Remainder ofPage Intentionally Lefl Blank]
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IN WITNESS WHEREOF, the managers of TenX Group LLC, a Delaware
Iimited liability company, has caused fhis Deed of Trust to be executed effecUve as of the day
and year first above written.
TENX GROUP LLC,
a Delaware limlted liability company
Ses V. Punelli
le: Manager -
Bv: '5^/Rayi^nh^Cj( nés
Title: Manager V
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Of 72 y "
STATEOF
COUNTY OF VA^Vt-CL-. ,to-wit:
The foreping instrument was acknowledged before me this Zl^day of August 2013 bv
behalfof the hmited liability company. on
My commission expires: iL^(L^ OS
[SEAL]
OFRCIALSEAi.
Kotoiy Publie,Ststa ol WesiVbglota
|
STATE OF l>6e5.V v\Z.^r^'. oJ>
SHARON MtOHAEL
PO Box m
204 North Bn stroel
Meerafleid.WV 2BS3S
My cemmtsaten axpbsi•bily 25i 2021]
COUNTY OF to-wit:
The foregoing instrument was acknowledged before me this2i^day ofAugust,2013, by
Raymond C. Jones, the Manager of TenX Croup LLC,a Delaware limited liability company,on
behalfofthe limited liability company.
ires: "3uJ!Ll^ O.S
My commission expires I
[SEAL]
SHARON MICHAEL
PO Box 119
204 Nonh Ettn Stieot
Moorefleld,WV 28838
This instrument prepared by Elizabcth A. Benedetlo, Spilinan Thomas & Battle, PLLC, 300 Kanawha
Boulevard, East, Charleston, WV 25301;(304)340-3800.
5119328(1916.756)
17
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RVHTRTT A
Real Property Description
(See Attached)
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DESCRIPTION OF SURVEY
FOR
MOOREFIELD TRAINING CENTER
689.40 ACRES - PART OF lAX MAP 203 PARCEL 8
BOTH SIDES OF COUNTY ROUTE 220/8
A tract ofland in Moorefield District, Hardy County, West Virginia situated 2.1
miles west ofOld Fields, WV on the both sides of County Route 220/8,on the drains of
Anderson Run and being more particularly described as foUows:(Ail bearines are WV
Staie Plane Grid North Zone)
BEGINNING at a 5/8" rebar capped Lantek found in fence on the south side of
Corridor H being 330 feei from center and corner to Kermie Crites Heirs DB 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 ofa 6"fence post
461 feet southwest firom 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 V*" rebar found capped WVDOT,corner to WVDOH
DB 287/63 non-controlled right ofway, 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 fiât ridge, thence
S 82° 03'33"E 1110.87 feet to a 3/4"capped WVDOT rebar found, corner 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
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 ofa 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
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S 66' 33' 09" W 368.34 feei to a 5/8"x30" capped rtbar set by a meta!fence post 65 feet
south ofa 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 nortfa ofa 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 ofCouniy 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 ofa 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 ofa 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 ofa drain in
a boundary line of Michael L. Ait DB 214/492 and 17 feet northeast ofa 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 lines and Ait(found fence line is not on
boundary line)
N 61° 02'57" W crossing a nm at 70 feet and in ail 1052.78 feet to a 5/8" capped rebar
found in the intersection offences, thence
S 59° 32'08" W 2900.93 feet to a%"rebar found in a pine stump in a fence corner on a
ridge Une,corner to Brian D.Helmick DB 221/41 ofthe Walnut Bottom Hideaway
Subdivision in Plat Book 2/121, thence leaving Ait and with owners ofsaid 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 various corners to said subdivision lots and in ail 3802.87 feet
to a Vi" iron pipe found in a stone pile 100 feet northwest of the top ofa fiât 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
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hjckotyir 00"old
(^th Wpassmgafoundmarked20"hickoryat681 feetandpassinga6"
fence)on line at 1487.6 feet, and in ail 2721.99 feet to a 5/8"x30"
wpped rebar set 4 feet northwest ofa large boulder in a line of Margaret L. Woemer WB
29/5, ihence leavmg Crites Heirs and with Woemer and near an old found fence line
N M» 45'00"E 1412 42 feet to a métal fence posi set in the base ofa fence corner 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 purchasing property from Woemer, Veach, and Williams
which does not agree with field evidence and is shown on the attached plat) thence
ea^g 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 capped rebar found, thence
N 37® 46' 13"E crossing a sedimeni pond and in ail 994.83 feet to a capped rebar
found on the southeast side ofan old woods road, thence
N 52® 55' 42"E crossing an access road aî 209 feet and in ail 502.47 feet to a capped
rebar found 14 feet northeast ofan 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
8^34® 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
ofa drain and 30 feet northeast ofa 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 capped rebar found on the northwest side of Couniy
Route 220/8,thence crossing said road
S 61® 36'28" E 30.47 feet to a Vi" capped rebar found on the southeast side ofsaid road,
thence
S 55® 41' 13" E 28.72 feet to a capped rebar found,thence
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N 39® 41 59'E 348.83 feet to a V"capped rebar found, ihence
LIT wMr^ and Kennie Cntes
betweenJVilliams ® 5/8"x30"
Heirscapped rebarand
DB 80/262 set inin the old boundary
WVDOH righi ofline
way with
a found W capped rebar bearing S 73» 06- 59» E 313.75 feet.foence leaXg
nght of way and with original Unes ofCrites Heirs
S 43® 29'46"E passing a 5/8"rebar found capped Lantek at 57.46 feet and 542 44 feet
sz; °
N 64° 24'08"E crossing into said road and in ail 502.38 feet to a 5/8"x30"capped rebar
set m a foimd 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
b91.26 feetTairf m ail 3217.79 feet to the ® ^Wed689.40
BEGINNING containing Lantekacres
on line
moreal or
less as surveyed m October 2009 by L & W Enterprises, Inc. ofPetersburg, WV and as
shown on a plat attached hereto and made a part of this description.
C. Williams and Betty P.^
Williams by deed dated April 22,1992 inW. Maphis
deed booktoRennick
218 oage
211 recorded in the OfBce ofthe Clerk ofHardy County, West Virginia and taxed as part
ofparcel8ontaxmap203. ^
Ê^i No.518 Vil SignedCurtisEKeplinger, PS#518
!â:|.l.iSrATCOF ForL&WEnterprises,Inc.
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la t- B Ol f^
Is|j
p
PI
0££l6l
Alunoo ApiBH'Ab n AjoSoig
IIW£riv:60tl.0Z/ZZ/80
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fîÊSaS!»œ^-4 HM..
SPILMAN rMUWl/\î> a D«1 1 ut. c-pj
300 KANAWHA BLVD.E, PO BOX 273
CHARLESTON. WV 25301
A CREDIT LP4K DEED OF TRUST AND FIXTURE FILING
THIS CREDIT LINE DEED OF TRUST AND FIXTURE FILING (the
"Deed of Trust"), dated as of the a"*" day of July, 2014, by and among TENX GROUP LLC,a
Delaware limited liability company CGrantor"), JOYCE F. OFSA, a résident of Kanawha
County, West Virginia, as trustée ("Trustée"), and the WEST VIRGINIA ECONOMIC
DEVELOPMENT AUTHORITY, 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 ofsale, ail ofthe following:
(a) Ail of Grantor's interest in those certain parcels or tracts ofland 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, heredilaments, 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) AU 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(condilionally or otherwise);
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(c) Ail fixtures, fixed assets and personalty of a permanent nature, owned by
the Cranter now or at any time hereaftcr annexed, affixed or attached to the Property(as defined
herein) hereby conveyed and the buildings, improvements or structures ihereon 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 ofthe
foregoing, ail apparatus, appliances, machine^, équipaient 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 ofthe securily 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) Ail 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 ofsaid income.
Ail property described above shall secure the obligations herein described and
covered by this Deed of Trust, and ail of the foregoing property, inleresls in property and other
rights and interests are herein sometimes referred to colleclively as the "Property."
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The Granfor does hereby covenant to and with thc 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 front any and ail liens,
claims and encumbrances. exeept the foliowing which are eoilectively tefened to hercin as the
"Pernutted Encumbrances":(i) rcal cstate taxes assessed but not yet due and payable; and(il)ail
other exceptions listed on Sehedule B,Section II ofUie Title Insuranee Policy issued by Investors
Titie Insuranee Company; and that Grantor will exeeute such further assurances of the Property
as may be requisite, including, but not limited to, the exécution and delivery of finan,..og
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 ofTrust.
IN TRUST NEVERTHELESS,to secure the foliowing: (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 ofeven 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 ofLeases and Rents made on July 1,2014 and effective as ofJuly
2, 2014 by and between Grantor and WVEDA (together with ail amendments. renewals,
extensions» substituUons 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» rcnewals, 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 perfonnance by
Grantor and the Guarantors of ail terms and conditions of the other WVEDA Loan Documents.
Capitalized terms used and not otherwise defîned 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
Benefîciary, and each ofthem,as follows:
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 Benefîciary 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 ofTrust.
2. That Grantor will or shall cause any lessee of the Property to keep ail
buildings and other improvements now or hereafler placed on the Property hereby conveyed,and
tlie appurtenances thereunto belonging, fully insured pursuant to the terms and conditions of the
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Loan Agreement Upon fiill foreclosure ora deed in lieu of such foreclosure, al! of Grantor's or
its lessee's right, title and interest in and to the aforesaid insurance shall automatically pass to
and be the property of the ihen holder ofthe obligation hereby secured.
3. That Grantor will or shall cause any lessee of the Property to keep and
mamtain ail buildings and other improvements now or hereafler placed on the real property
hcrcby conveyed in good repair and condition pursuant to the ternis and conditions of the Loan
Agreement.
4. That Grantor will not, without prier 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 ofthe Property,except this Deed ofTrust 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 ofsuch 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 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
govemmental unit or any private party or group for violations of any applicable environmental
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law m order to prolect the Propeny, and any and all costs incurred by Beneficiaiy and Trustée
pursuant Ihereto shall be immedialely due and payable by Grantor upon demand and shall be
further secured hereby,
6. That Grantor will pay to Trustée and will pay the holder of any
obligations,the payment of whlch is hereby secured,any and all sums of money,includlng costs,
expenses and attorneys' fces incurred or expendcd in any proceedings, légal or équitable, to
sustam the lien ofthis Deed ofTrust, or its priority,or in defending any party hereto or any party
hereby secured against the liens, demands or daims of tiUe, or any or either of them, of any
person or persons asserting priority over this Deed of Trust or asseiting title adverec to the title
under whlch the Trustée holds, or in the discharge of any such lien or daim, or in connection
with any suit at iaw 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 pereent(iO%)per «mum
until paid» and this Dccd ofTrust shall stand as securily therefor.
7. That the information fumished to Beneficiary by Grantor conceming
Grantor's fmancial status is correct and complété, and that there have been no adverse changes in
Grantor's financial status since such information was fumished to Beneficiary.
8. That Grantor will keep proper books of record and account in accordance
with Sound accounting practice conceming Grantor's business; will furnish the Beneficiaiy a
copy of its year end financial statement and will give the Beneficiaiy further information
conceming its financial condition or business activities,each as required by the Loan Agreement.
9. The occurrence of any of the following cvents 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 Guarantics, 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 mcmbcrs,
managers, officers, employées or agents ofGrantor, ofany illégal or fraudaient act with the intent
to deceive Beneficiary including, without limitation, Uie falsification of any of Grantor's books
or records;(e)this Deed of Trust, the Lease Assignment, the Loan Agreement,the Guaranties or
any ofthe 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)ifa 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
Guarantofs insolvency, the appointment of a receiver for any part of Grantor's or any
Guarantor's properiy 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 offoreclosure, whether by
judicial proceeding, self-help, tepossession or any other method. by any créditer of Grantor
against the Property or any ofthe collatéral for the Loan; howevcr,this Evcnt ofDcfault shall not
apply if there is a good faith dispute by Grantor as to the validity or reasonableness ofthe daim
which is the basis ofthe credilor proceeding, and if Grantor gives WVEDA wriiten notice of the
creditor proceeding and fumishes reserves or other adéquate security for ihe créditer 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 Beneficiaiy, 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 Beneficiaiy;(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 fifly percent (50%) of the average
quarterly employment of Grantor or any lessee of Grantor at the Property for the previous four
quartcrs, unless such réduction is the resuit of causes wholly beyond the control of Grantor or its
lessee;(m)iffifly-one percent(51%)ofthe 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 ttansfer of assets in the oïdinaiy couree of
business that does not materially adversely affea Grantor's financial condition) without the
advance written consent ofBeneficiaiy.
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
foUowing the date notice of such default is sent by the Trustée or WVEDA to Grantor as
provided m 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 Beneficiaiy may foithwith, without notice, separately or
jomtly: (i) enter into and upon ail of the Property and take possession of the Property without
process oflaw, without liability to Grantor or to any other owner or owners ofthe Property, and
manage and rent the same, or any part thereof, collect and receive the rents, issues and profits
thereof and apply tlie 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 coilected.
which shall be paid to Beneficiaiy,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 necessaiy to pay or rcimburse Beneficiaiy and Trustée
for any sum or sums of money paid by them, or either of them, under the provisions hercof,
together with inlerest thereon ai the rate of ten percent(10%)per annum to the date of payment;
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(n)have a receiver appointée! by any court having jurisdiction to take charge of the Property and
coilect, receive and apply the rents, issues and profits thereof; or (iii) exercise any or al! of the
other rights and remedies provided for in this Dced of Trust It is understood and agreed by and
between the parties hereto that nothing herein contained shall be conslrued as a substilute for, or
in dérogation of, the right to foreciose this Deed of Trust or as imposing any duty or obligation
upon Beneficiaiy or upon Trustée, or either of them, to take charge of the Property or to coilect
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, Benefîciary 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 Benefîciary of the option to
déclaré the Note immediately due and payable. Trustée, upon the written request of Benefîciary,
shall foreciose upon and sell the Property to satisfy the Note at public auction, at the Trustee's
option either at the location ofthe Property or at the front door ofthe 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 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 Benefîciary of the existence of a subordinate lien at least tweniy (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 ofsuch 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 ofthe 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%)ofthe gross proceeds ofsale to Trustée, or to
the one so actmg, as the Trustee's commission hereunder; second to Beneficiary and Trustée ail
moncys which they or either oftliem may have paid for taxes, assessments or other govemmental
charges or fees, insurance, repairs, court costs, and ail other costs and expenses incurred or paid
under the provisions ofthis Deed of Trust, together with intercst thereon at the rate often percent
(10%)per annum from the date of payment; third to Beneficiary the flill 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 succcssois or assigns, upon
deliveiy 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
ofPersonal property and fixtures subject to the lien hereof, be deemed to grant a security interest
to Beneficiary 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, remédiés and powers
hereinabove set forlh, Beneficiary and Trustée shall have as to any and ail fixtures and personal
property covered by this Deed of Trust, ail rights, remédies and powers ofa secured party under
the Code. This Deed ofTrust is to be recorded in the real estate records ofeach county whcrc the
Property is located to serve as a fîxture filing. Grantor also authorizes Beneficiary to file any
financing statemcnts in the appropriate filing offices necessary to perfect or evidence the liens
granted by this Deed ofTrust.
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(d) The parties hereto agrce ihat any sale hereunder may be adjourned
from time to time wlthout notice other than oral proclamation of such adjoumment at the time
and place ofsaie, or at the time and place ofany adjourned sale.
11. The parties hereto agree that Bcncficiaiy 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 bc 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 Trustées shall
be considered the successors and assigns ofthe Trustée who is named herein within the meaning
of this Deed of Trust, and substituted in her place and steacL 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
dcscribed, 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 proofofthe proper substitution and appointment ofsuch successor Trustée or
Trustées,and notice ofsuch proper substitution and appointment to ail parties in interest.
12. In the evenl 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 necessaiy 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
ADVANCES 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 herecf 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, retum receipt requested, directed to Grantor al the address
stated below or such other address given to Beneficiaiy 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 tlie party or parties who reçoive 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 ofother liens pursuant to West Virginia Code § 38-1-4 and § 38-1-14
or other notice may be served on Beneficiary at its address bclow:
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'Ib Grantor!
TenX Group LLC
1900 Campus Gommons Drive
Suite 100
Reston, Virginia 20191
Attn: James V.Punelli, Manager
To Beneficjary
West Virginia Bconomic Development Authority
NorthOate Business Park
180 Association Drive
Charicston, West Virginia 25311-1217
Alln: Executive Director
To Trustée!
Spilman, Thomas & Battle,PLLC
P. O. Box 273
Charicston, West Virginia 25321-0273
Attn: Joyce F. Ofsa
15. The parties hereto furtlier agree that the words "it" or "ils*' when used in
this Deed of Trust, shall, when required by the context hereof, bc taken to refer to and to mean,
the Grantor herein, whether one or more in number, and whether individual, partnership, fîrm or
coiporation; 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 vaiidity of
this Deed ofTrust.
16. In the event two or more Trustées arc named herein, or in the evenl Lwo 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
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exécution ofthis tmst and it shall not be necessao- for the Trustée to be present in person at any
foreclosuiig sale conducted hereunder,
17. Inasmuch as the parties intend that this Deed of Trust shali, among other
thmgs,constitute a fixture financing statement,flie undersigned sets forth the foilowing:
(a) The debtor is TenX Croup LLC, and its address is as set forth in
Paragraph 14 above,
(b) The secured party is the Benefîciaiy, West Virginia Economie
Development Authority,and its address is as set forth in Paragraph 14 above.
(c) The property concemcd is described in Exhibii A attached hereto
and made a part hereof, and the record holdcr thereofis 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 Benefîciaiy or Trustée to exercise any option
hercin provided shall not be construed as a waiver ofany rights or privilèges contained herein.
19. The parties hereto agree that ifany term or provision ofthis Deed ofTrust
contravenes any law oftlie State of West Virginia or any other applicable law or régulation,such
term or provision is hereby amended and modifîed to confonn 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 ihe benefil of the heirs, devisees,
Personal représentatives,successors and assigns ofthe parties hereto.
21. If there shall be any inconsislencies between the tenus, covenants,
conditions and provisions set forth in this Deed ofTrust and the terms, covenants, conditions and
15
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provisions set forth in the Loan Agreement. then, unless this Deed of Trust expressiy provides
otherwise,the teims.covenanls.conditions and provisions ofthe Loan Agreement shall prevail.
[Remainder ofPage Intentionally Left Blank]
16
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IN WITNESS WHEREOF. the Managers of TenX Group LLC, a Delaware
limited liability Company, have caused this Deed ofTrust to be executed as of the day and year
first above written.
TENX GROUP LLC,
a Delaware limited liability company
James V. Punelli
initie: Manager
Raymondlp.)Jon^s,
Title: Manager
17
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STATEOF_ Luj
COUNTYOF ,to-wit:
The foregoing instrument was acknowledged before me i. i om vi l
Company.
My commission expires: .2-7f 2''^—
Or-t=ICIAL SEAL
STA1 Iv OF WEST VJRGINIA
NorAHypuui.ic
SHBLAFQORDON
WALll-nj;KltAUSKUPP A BAKER
Notary Public
[SEA PO BOX 119
>" MOONEFIUU}.WV *.16835
My conimisiioii «tpbesJïnwry?7,2020
STATE OF LMoJ o
COUNTY OF to-wit:
1'^
TJe foregoing instrument was acknowledged before me this£::>^ dayofjuly 2014 bv
isïïîxS'"" ^ «i.. S:
My commission expires: ^7 J^ji>
_ ». OrrtCIALSt£At
s:mE or v/est vibswia
1? tiOTARY PUBLIC
Notary Public
SHEILA F «sORDON
iSth
y^blnr-..,-7'U WAI.TCR.S PO
KHAUSKOPT
liOX 119 A BAKER
MOonr-FUîLO.wv zeoM
My caranitlssliai explfca Jatiua^
This instrument prepyed by Elizabeth A. Bcnedetto, Spilman Thomas & Battle, PLLC, 300 Kanawha
Boulevard» East, Charieston, WV 25301;(304)340-3800.
6239680(1916.779)
18
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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, 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" NHICH IS OF RECORD IN THE OFFICE OF THE
CLERK OF THE COUNTY COMMISSION OF HARDY COUNTY, fiEST VIRGINIA, IN MAP BOOK
8, AT PAGE 52; LESS HOWBVER; 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 f/EST 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 CERTIFIED HEREBY.
This document presented and filed:
07/02/2014 02:22:19 PM
y
/
Gregory L. Ely, Hardy County, WV
195177
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