DEED OF TRUST AND SECURITY
AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT (together with all
exhibits and schedules hereto and all extensions, renewals,
amendments, substitutions and replacements hereto and hereof this "
Deed of Trust ") is made this 8th day of October, 2008, to
be effective as of October 14, 2008, by MORGANTOWN MALL ASSOCIATES
LIMITED PARTNERSHIP, an Ohio limited partnership (the "
Grantor "), with an office at 180 East Broad Street,
21 st
Floor, Columbus, Ohio 443215, in
favor of Camden P. Siegrist, a resident of Kanawha County, West
Virginia (the " Trustee ") with a principal address 600
Quarrier Street, Charleston, West Virginia 25301 for the benefit of
FIRST COMMONWEALTH BANK (the " Beneficiary "), with its
principal office at Philadelphia and 6 th Streets, Indiana, Pennsylvania
157019.
WITNESSETH:
WHEREAS, the Grantor is the owner in fee simple of a certain
tract or parcel of land located in the Township of Westover, County
of Monongalia, State of West Virginia, and more particularly
described in Exhibit A attached hereto and made a part
hereof, together with the improvements now or hereafter erected
thereon; and
WHEREAS, the Grantor (in such capacity, the "
Borrower ") is indebted to the Beneficiary in connection
with a certain term loan in the aggregate principal amount of Forty
Million and 00/100 Dollars ($40,000,000.00) (the " Loan ")
pursuant to the terms and conditions of that certain Loan Agreement
dated as of October 8, 2008, (the Loan Agreement, together with all
exhibits, schedules, extensions, renewals, amendments,
substitutions and replacements thereto and thereof is referred to
herein as the " Loan Agreement "); and
WHEREAS, the Borrower has made and delivered to the
Beneficiary that certain Term Note dated as of even date herewith
in the aggregate principal face amount of $40,000,000.00 (together
with all extensions, renewals, amendments, substitutions and
replacements thereto and thereof, collectively the " Note
");
NOW, THEREFORE , in consideration of the Loan and for the
purpose of securing the payment and performance by the Borrower to
the Beneficiary of the following obligations (collectively called
the " Obligations "):
(i) The
Loan, the Note and all other loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrower to the
Beneficiary under or in connection with the Loan Agreement, the
Note or any of the other Loan Documents (as such term is defined in
the Loan Agreement) of any kind or nature including, without
limitation, all Obligations (as such term is defined in the Loan
Agreement), present or future, whether or not (i)
evidenced by any note, guaranty or other instrument, (ii) arising
under any agreement, instrument or document, (iii) for the payment
of money, (iv) arising by reason of an extension of credit, opening
of a letter of credit, loan, equipment lease or guarantee, (v)
under any interest or currency swap, future, option or other
interest rate protection or similar agreement including, without
limitation, any Rate Management Agreement entered into by and
between the Bank and the Borrower in connection with the Loan, (vi)
under or by reason of any foreign currency transaction, forward,
option or other similar transaction providing for the purchase of
one currency in exchange for the sale of another currency, or in
any other manner, or (vii) arising out of overdrafts on deposit or
other accounts or electronic funds transfers (whether by wire
transfer or through automated clearing houses or otherwise) or out
of the return unpaid of, or other failure of the Beneficiary to
receive final payment for, any check, item, instrument, payment
order or other deposit or credit to a deposit or other account or
out of the Beneficiary's non-receipt of or inability to collect
funds or otherwise not being made whole in connection with
depository or other similar arrangements; and any amendments,
extensions, renewals or increases of or to any of the foregoing,
and all costs and expenses of the Beneficiary incurred in the
documentation, negotiation, modification, enforcement, collection
and otherwise in connection with any of the foregoing, including
reasonable attorneys' fees and expense; and (viii) any sums
advanced by the Beneficiary or which may otherwise become due
pursuant to the provisions of this Deed of Trust or pursuant to any
of the other Loan Documents the Grantor, for good and valuable
consideration, receipt of which is hereby acknowledged, and
intending to be legally bound hereby, does hereby give, grant,
bargain, sell, convey, assign, transfer, mortgage, hypothecate,
pledge, set over and confirm unto the Trustee, in trust with the
power of sale and does agree that the Trustee on behalf of the
Beneficiary shall have a security interest in the following
described property, all accessions and additions thereto, all
substitutions therefor and replacements and proceeds thereof, and
all reversions and remainders of such property now owned or held or
hereafter acquired (the " Property "), to wit:
(a) All
of the Grantor's estate in the premises described in Exhibit
A , together with all of the easements, rights of way,
privileges, liberties, hereditaments, gores, streets, alleys,
passages, ways, waters, watercourses, rights and appurtenances
thereunto belonging or appertaining, and all of the estate, right,
title, interest, claim and demand whatsoever of the Grantor therein
and in the public streets and ways adjacent thereto, either in law
or in equity (the " Realty ");
(b) All
of the buildings, structures and improvements of every kind and
description now or hereafter erected or placed on the Realty, and
all facilities, fixtures, machinery, apparatus, appliances,
installations, machinery and equipment, including, without
limitation, all building materials to be incorporated into such
buildings, all electrical equipment necessary for the operation of
such buildings and heating, air conditioning and plumbing equipment
now or hereafter attached to, located in or used in connection with
those buildings, structures or other improvements (the "
Improvements ");
(c) All
machinery, apparatus, equipment, fittings, appliances and fixtures
of every kind and nature whatsoever, and regardless of whether the
same may now or hereafter be attached or affixed to the Realty or
Improvements, including, without limitation, all electrical,
antipollution, heating, lighting, incinerating, power, air
conditioning, plumbing, lifting, cleaning, fire prevention, fire
extinguishing, apparatus, equipment, fittings, appliances and
fixtures, and all engines, pipes, pumps, tanks, motors, conduits,
ducts, compressors, elevators and escalators, and all articles of
personal property and goods of every kind and nature whatsoever now
or hereinafter affixed to, attached to, placed upon, or used or
usable in any way in connection with the use, enjoyment, occupancy
or operation of the Realty or Improvements (collectively, the "
Equipment ");
(d) All
rents, issues and profits arising or issuing from the Realty and
the Improvements (the " Rents ") including, but not limited
to, the Rents arising or issuing from all leases and subleases now
or hereafter entered into covering all or any part of the Realty
and Improvements (the " Leases "), all of which Leases and
Rents are hereby assigned to the Beneficiary by the
Grantor. The foregoing assignment shall include, without
limitation, all cash or securities deposited under Leases to secure
performance of lessees of their obligations thereunder, whether
such cash or securities are to be held until the expiration of the
terms of such leases or applied to one or more installments of rent
coming due prior to the expiration of such terms. The
foregoing assignment extends to Rents arising both before and after
the commencement by or against the Grantor of any case or
proceeding under any federal or state bankruptcy, insolvency or
similar law. The Grantor will execute and deliver to the
Beneficiary, on demand, such assignments and instruments as the
Beneficiary may require to implement, confirm, maintain and
continue the assignment hereunder;
(e) All
of the Grantor's rights and interests in all agreements now or
hereafter in existence providing for or relating to the
construction, maintenance, operation or management of the Property
or any part thereof, including the plans and specifications
therefor, and all copies thereof (together with the right to amend
or terminate the same or waive the provisions of the foregoing),
and any amendments, renewals and replacements thereof; to the
extent permitted by the relevant authorities, all licenses, permits
and approvals for the ownership, construction, maintenance,
operation, use and occupancy of the Property, or any part thereof
and any amendments, renewals and replacements thereof; all of the
Grantor's rights and interests in all warranties and guaranties
from contractors, subcontractors, suppliers and manufacturers to
the maximum extent permissible relating to the Property or any part
thereof; all insurance policies covering or affecting the Property
or any part thereof (collectively, the " Other Property
");
(f) All
proceeds of the conversion, voluntary or involuntary, of any of the
foregoing into cash or liquidated claims; and
(g) Without
limiting any of the other provisions of this Deed of Trust, the
Grantor, as debtor, expressly grants unto the Beneficiary, as
secured party, a security interest in all those portions of the
Property which may be subject to the Uniform Commercial Code
provisions applicable to secured transactions under the laws of any
state, and the Grantor will execute and deliver to the Beneficiary
on demand such financing statements and other instruments as the
Beneficiary may require in order to perfect and maintain such
security interest under the Uniform Commercial Code on the
aforesaid collateral.
In
trust, nevertheless, unto the Trustee, to secure the performance
and observance of the Borrowers' obligations hereunder and under
the other Loan Documents.
THE
NAME AND RESIDENCE OF THE BENEFICIAL OWNER OF THE NOTE IS FIRST
COMMONWEALTH BANK, PHILADELPHIA AND 6 TH STREETS, P.O. BOX 400, INDIANA, PENNSYLVANIA
15701.
Provided,
however, that if the Grantor shall pay to the Beneficiary the
Obligations, and if the Grantor shall keep and perform each of
their other covenants, conditions and agreements set forth herein
and in the other Loan Documents, then, upon the termination of all
obligations, duties and commitments of the Grantor under the
Obligations and this Deed of Trust, the estate hereby granted and
conveyed shall become null and void.
AND
GRANTOR hereby warrants, covenants and agrees as
follows:
1.
Warranty of Title . The Grantor
represents and warrants to the Beneficiary that the Grantor has
good and marketable title to an estate in fee simple absolute in
the Realty and the Improvements and has all right, title and
interest in all other property constituting a part of the Property,
in each case free and clear of all Liens (as defined in the Loan
Agreement), except for Permitted Liens (as defined in the Loan
Agreement). This Deed of Trust is a valid and
enforceable first Lien on the Property (except for Permitted
Liens), and the Beneficiary shall, subject to the Grantor's right
of possession prior to an Event of Default (as defined below),
quietly enjoy and possess the Property. The Grantor
shall preserve such title as it warrants herein and the validity
and priority of the Lien hereof and shall forever warrant and
defend the same to the Beneficiary against the claims of all
Persons. All of the representations and warranties of
the Grantor set forth in the Environmental Indemnity Agreement (as
defined in the Loan Agreement) are incorporated herein by reference
as if set forth herein.
2.
Payment and Performance of Obligations .
Until all of the Obligations shall have been fully
paid, satisfied and discharged the Grantor shall pay or cause to be
paid and perform all Obligations when due as provided in the Loan
Documents.
3.
Legal Requirements . Until all of the Obligations
shall have been fully paid, satisfied and discharged the Grantor
shall promptly comply with and conform to all present and future
Governmental Rules which may be applicable to the Grantor or to any
of the Property.
4.
Impositions .
(a) Before
interest or penalties are due thereon and otherwise when due, the
Grantor shall pay all taxes of every kind and nature, all charges
for any easement or agreement maintained for the benefit of any of
the Property, all general and special assessments (including,
without limitation, any condominium or planned unit development
assessments, if any), levies, permits, inspection and license fees,
all water and sewer rents and charges, and all other charges and
Liens, whether of a like or different nature, even if unforeseen or
extraordinary, imposed upon or assessed against the Grantor or any
of the Property. The Grantor shall comply in all
respects with all agreements, mortgages, covenants, and
restrictions now or hereafter affecting the Realty or
Improvements. The obligations referred to in this
Section are hereinafter collectively referred to as the "
Impositions ". Within thirty (30) days after the
payment of any Imposition, the Grantor shall deliver to the
Beneficiary evidence acceptable to the Beneficiary of such
payment. The Grantor's obligations to pay the
Impositions shall survive the Beneficiary's taking title to the
Property through foreclosure, deed-in-lieu or
otherwise. The Grantor shall also deliver to the
Beneficiary, within ten (10) days of receipt thereof, copies of all
settlements and notices pertaining to the Impositions which may be
issued by any Governmental Authority.
(b) Subject
to the right of the Grantor to contest the payment of an Imposition
as provided in Section 7 hereof, the Beneficiary may pay or perform
any Imposition and add the amount so paid or the cost incurred to
the Obligations, and all such amounts shall on demand be due and
payable, together with interest thereon from the date of such
demand at the Default Rate (as such term is defined in the
Note).
5.
Insurance .
(a) The
Grantor shall maintain commercial general liability insurance,
special perils property insurance, loss of income insurance,
contractual liability insurance for all indemnification obligations
of the Grantor under all leases, and such other insurance as may be
required from time to time by the Beneficiary. The
amounts, coverages and other terms and conditions of the insurance
policies shall at all times be satisfactory to the Beneficiary and
shall satisfy any co-insurance requirements of the
Beneficiary. The Grantor shall pay as they become due
all premiums for such insurance, shall keep each policy in full
force and effect, shall deliver to the Beneficiary evidence of the
payment of the full premium therefor at least twenty (20) days
prior to the expiration date of each policy, and shall deliver to
the Beneficiary the original policies of insurance or acceptable
evidence thereof, with noncontributory mortgagee clauses in favor
of and acceptable to the Beneficiary. The Grantor's
liability insurance and property policies shall specifically name
the Beneficiary as an additional insured and as lender loss payee
respectively. Each policy shall provide for written
notice to be received by the Beneficiary at least thirty (30) days
prior to any cancellation, non-renewal or amendment of such
insurance.
(b) The
Grantor shall deliver to the Beneficiary, at the time of each
renewal of the policy (but at least once every three (3) years), a
statement reasonably satisfactory to the Beneficiary as to the then
replacement and insurable values of the Improvements as determined
by the underwriter of fire insurance on the Property or by a
qualified appraiser approved by the Beneficiary.
(c) The
Grantor shall promptly comply with and conform to (i) all
provisions of each such insurance policy and (ii) all requirements
of the insurers thereunder applicable to the Grantor or any of the
Property or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration or repair of any of the
Property, even if such compliance necessitates structural changes
or improvements or results in interference with the use or
enjoyment of any of the Property, provided however that the Grantor
shall obtain the prior written consent of the Beneficiary (which
consent shall not be unreasonably withheld) prior to making any
material structural changes or improvements or interfering with the
use or enjoyment of any of the Property. The Grantor
shall not use or permit any party to use any of the Property in any
manner which would permit the insurer to cancel any insurance
policy.
(d) The
Grantor shall not adjust, collect or compromise any property claims
under said policies without the prior written consent of the
Beneficiary. Each insurer is hereby authorized and
directed to make payment under said policies, including return of
unearned premiums, directly to the Beneficiary instead of to the
Grantor and the Beneficiary jointly, and the Grantor appoints the
Beneficiary as the Grantor's attorney-in-fact to endorse any draft
therefor. All insurance proceeds shall be payable to the
Beneficiary and such proceeds may, during the continuance of an
Event of Default, at the Beneficiary's sole option, be applied to
any part of the Obligations and in any order (notwithstanding that
such Obligations may not then be due and payable) or to the repair
and restoration of any of the Property. The Beneficiary
shall not be deemed to have elected such option until such option
is elected specifically in writing. Until so elected,
the Beneficiary shall not in any circumstances be deemed to have
waived its right to make such election.
(e) In
the event of any casualty (whether or not insured against)
resulting in damage to any of the Property, unless an uncured Event
of Default exists and the Beneficiary shall have elected to apply
the insurance proceeds to the payment of the Obligations, the
Grantor, whether or not such insurance proceeds shall be sufficient
for the purpose, shall promptly commence and diligently continue to
restore the Property as nearly as possible to its value, condition
and character immediately prior to such casualty. In
that event, the Beneficiary shall have the right to hold any
insurance proceeds and disburse them to the Grantor or for the
account of the Grantor as the restoration progresses, as provided
in Section 12 hereof.
(f) In
the event of loss, any separate insurance concurrent in form or
contributing with that required to be maintained under
this Section shall contain a non-contributory mortgagee clause in
favor of and acceptable to the Beneficiary, and a duplicate
original policy shall be delivered promptly to the Beneficiary;
provided however that no such concurrent or contributing insurance
shall be maintained without the prior written consent of the
Beneficiary.
6.
Installments for Insurance, Taxes and Other Charges
. After the occurrence of an Event Default, the Grantor
shall, if requested by the Beneficiary, pay to the Beneficiary
monthly, an amount equal to one-twelfth (1/12) of the annual
premiums for the insurance policies referred to
hereinabove and the annual Impositions and any other
item which at any time may be or become a Lien upon the Property
(the " Escrow Charges "). The amounts so paid
shall be used in payment of the Escrow Charges so long as no Event
of Default shall have occurred. No amount so paid to the
Beneficiary shall be deemed to be trust funds, nor shall any sums
paid bear interest. The Beneficiary shall have no
obligation to pay any insurance premium or Imposition if at any
time the funds being held by the Beneficiary for such premium or
Imposition are insufficient to make such payments. Upon
the occurrence of an Event of Default, the Beneficiary shall have
the right, at its election, to apply any amount so held against the
Obligations due and payable in such order as the Beneficiary may
deem fit, and the Grantor hereby grants to the Beneficiary a Lien
upon and security interest in such amounts for such
purpose.
7.
Right of Contest . The Grantor may in good
faith contest, by proper legal proceedings, the validity of any
Legal Requirement or the validity or amount of any Imposition,
provided, (i) an Event of Default does not exist; (ii) the Grantor
provides the Beneficiary with security satisfactory to the
Beneficiary assuring compliance with or payment of the Imposition
and any additional charge, interest, penalty, expense or other
payment which may arise from or be incurred as a result of such
contest; and (iii) such contest operates to suspend enforcement of
compliance with or collection or enforcement of the Imposition and
is maintained and prosecuted with diligence, except in the case of
real estate tax assessment appeals, such contest only may be made
if all real estate taxes are paid.
8.
Maintenance and Impairment of Security
. The Grantor shall keep or cause to be kept the
Property in good condition and order and in a rentable and
tenantable state of repair and will make or cause to be made, as
and when necessary, all repairs, renewals, and replacements,
structural and nonstructural, exterior and interior, foreseen and
unforeseen, ordinary and extraordinary, provided however that no
material structural repairs, renewals or replacements shall be made
without the Beneficiary's prior written consent, which consent
shall not be unreasonably withheld. The Grantor shall
not remove, demolish or alter the Property or any part thereof, nor
commit or suffer waste with respect thereto, nor permit the
Property to become deserted or abandoned. The Grantor
shall permit the Beneficiary and its agents at any reasonable time,
and from time to time, to enter upon and visit the Property for the
purpose of inspecting and appraising the same. The
Grantor covenants and agrees not to take or permit any action with
respect to the Property which will in any manner impair the
security of this Deed of Trust.
9.
Use of Property . Unless the Beneficiary
otherwise gives its prior written consent, the Grantor shall not
use or permit others to use the Property for other than as an
office and retail complex and for other appurtenant and related
uses.
10.
Condemnation . If all or a material
portion of the Property shall be damaged or taken through
condemnation (which term when used in this Deed of Trust shall
include any damage or taking by any Governmental Authority and any
transfer by private sale in lieu thereof), either temporarily or
permanently (collectively, a "Material Taking"), the Obligations
secured hereby shall, at the option of the Beneficiary, become
immediately due and payable. For purposes hereof, a
"material portion" shall mean that portion of the Property which,
based on a new Appraisal of the remaining Property after giving
effect to such condemnation, would result in a Loan-to-Value Ratio
of 80% or greater. The Grantor, immediately upon
obtaining knowledge of the institution of any proceedings for the
condemnation or taking by eminent domain of any of the Property,
shall notify the Beneficiary of the pendency of such
proceedings. The Beneficiary may participate in any such
proceedings and the Grantor shall deliver to the Beneficiary all
instruments requested by it to permit such
participation. Any award or compensation for property
taken or for damage to property not taken other than a Material
Taking, whether as a result of such proceedings or in lieu thereof,
is hereby assigned to and shall be received and collected directly
by the Beneficiary, and any award or compensation shall be applied
to the repair and restoration of any of the Property or, at the
Beneficiary's option, after the occurrence and during the
continuance of an Event of Default, to any part of the Obligations
and in any order (notwithstanding that any of such Obligations may
not then be due and payable). The Grantor shall
promptly, whether or not such award or compensation shall be
sufficient for the purpose, commence and diligently continue to
restore the Property as nearly as possible to its value, condition
and character immediately prior to such damage. In that
event, the Beneficiary shall have the right to hold the award or
compensation and disburse it to the Grantor or for the account of
the Grantor as the restoration progresses, as provided in Section
12 hereof. The Grantor agrees to execute such further
assignment of any compensation, awards, damages, claims, rights of
action, proceeds, and other payments, as the Beneficiary may
require.
11.
No Credits on Account of the Debt
. Grantor will not claim or demand or be entitled to any
credit or credits on account of the unpaid principal balance of the
Note together with all interest thereon (" Debt ") for any
part of the Taxes or Other Charges assessed against the Mortgaged
Property, or any part thereof, and no deduction shall otherwise be
made or claimed from the assessed value of the Mortgaged Property,
or any part thereof, for real estate tax purposes by reason of this
Deed of Trust or the Debt. In the event such claim,
credit or deduction shall be required by law, Beneficiary shall
have the option, by written notice of not less than ninety (90)
days, to declare the Obligations immediately due and
payable.
12.
Restoration .
(a) All
amounts received by the Beneficiary pursuant to Section 5 or
Section 10 hereof may either be held in a restoration fund (the "
Restoration Fund ") by the Beneficiary or, if it refuses to
serve, a bank or trust company appointed by the Beneficiary which
has a combined capital and surplus of not less than $100,000,000,
as restoration fund trustee (the " Restoration Fund Trustee
"), with any additions thereto that may be required by the
Beneficiary as hereinafter provided. The interest or
income, if any, received on all deposits or investments of any
moneys in the Restoration Fund shall be added to the Restoration
Fund. If the Beneficiary consents to the deposit of such
funds in an interest-bearing account or otherwise
consents to the investment of such funds, neither the Beneficiary
nor the Restoration Fund Trustee shall be liable or accountable for
any loss resulting from any such deposit or investment, or for any
withdrawal, redemption or sale of deposits or
investments. The Beneficiary and the Restoration Fund
Trustee may impose reasonable charges for services performed in
managing the Restoration Fund and may deduct such charges
therefrom. Restoration shall be performed only in
accordance with the following conditions: (i) prior to commencement
of restoration and from time to time during restoration, the
Beneficiary may require the Grantor to deposit additional moneys
into the Restoration Fund in amounts which in the Beneficiary's
judgment are sufficient to defray all costs to be incurred to
complete the restoration and all costs associated therewith,
including labor, materials, architectural and design fees and
expenses and contractor's fees and expenses, and the Beneficiary
shall have approved a budget and cost breakdown for the
restoration, together with a disbursement schedule, in detail
satisfactory to the Beneficiary; (ii) prior to commencement of
restoration, the Grantor shall provide satisfactory evidence of
rental loss insurance payments sufficient to replace any rents that
are reduced or abated during the projected restoration period or
shall deposit additional funds in the Restoration Fund to
compensate for any shortfall in projected debt service payments
during the restoration period, in the Beneficiary's reasonable
discretion; (iii) prior to commencement of restoration, the
contracts, contractors, plans and specifications for the
restoration shall have been approved by the Beneficiary and all
Governmental Authorities having jurisdiction, and the Beneficiary
shall be provided with satisfactory title insurance and acceptable
surety bonds insuring satisfactory completion of the restoration
and the payment of all subcontractors and materialmen; (iv) all
restoration work shall be done under fixed price contracts, fully
bonded; (v) at the time of any disbursement, an Event of Default,
or any event or condition which with the passage of time or the
giving of notice, or both, would constitute an Event of Default,
shall not have occurred, no mechanics' or materialmen's liens shall
have been filed and remain undischarged and an endorsement to its
title insurance policy, satisfactory to the Beneficiary, shall have
been delivered to the Beneficiary; (vi) disbursements from the
Restoration Fund shall be made from time to time, but not more
frequently than once each calendar month, for completed work under
the aforesaid contracts (subject to retainage) and for other costs
associated therewith and approved by the Beneficiary, upon receipt
of evidence satisfactory to the Beneficiary of the stage of
completion and of performance of the work in a good and workmanlike
manner in accordance with the contracts, plans and specifications
as approved by the Beneficiary; (vii) the Grantor will pay the cost
of the Beneficiary's inspecting architect or engineer and the cost
of any attorney's fees and disbursements incurred by the
Beneficiary in connection with such restoration; (viii) the
Beneficiary shall have the option to retain up to ten percent (10%)
of the cost of all work until the restoration is fully completed,
as determined by the Beneficiary, and all occupancy permits
therefor have been issued; (vix) the Beneficiary may impose such
other reasonable conditions, including a restoration schedule, as
are customarily imposed by construction lenders to assure complete
and lien-free restoration; and (x) any sum remaining in the
Restoration Fund upon completion of restoration shall, at the
Beneficiary's option, be applied to any part of the Obligations and
in any order (notwithstanding that any of such Obligations may not
then be due and payable) or be paid to the Grantor.
(b) If
within a reasonable period of time after the occurrence of any loss
or damage to the Property, the Grantor shall not have submitted to
the Beneficiary and received the Beneficiary's approval of plans
and specifications for the repair, restoration or rebuilding of
such loss or damage or shall not have obtained approval of such
plans and specifications from all Governmental Authorities whose
approval is required, or if, after such plans and specifications
are approved by the Beneficiary and by all such Governmental
Authorities, the Grantor shall fail to commence promptly such
repair, restoration or rebuilding, or if thereafter the Grantor
fails to carry out diligently such repair, restoration or
rebuilding or is delinquent in the payment to mechanics,
materialmen or others of the costs incurred in connection with such
work, or if any other condition of this Section is not satisfied
within a reasonable period of time after the occurrence of any such
loss or damage, then the Beneficiary, or any lawfully appointed
receiver of the Property, in addition to all other rights herein
set forth, and, after giving the Grantor thirty (30) days written
notice of the nonfulfillment of one or more of the foregoing
conditions may, failing the Grantor's fulfillment of said
conditions within said thirty (30) day period, at the Beneficiary's
option, (i) declare that an Event of Default has occurred and/or
apply all proceeds to the payment of any Obligations, and/or (ii)
may perform or cause to be performed such repair, restoration or
rebuilding, and may take such other steps as they deem advisable to
carry out such repair, restoration or rebuilding, and may enter
upon the Property for any of the foregoing purposes, and the
Grantor hereby waives, for itself and all others holding under it,
any claim against the Beneficiary and such receiver (other than a
claim based upon the alleged gross negligence or intentional
misconduct of the Beneficiary or any such receiver) arising out of
anything done by them or any of them pursuant to this Section, and
the Beneficiary may in its discretion apply any insurance or
condemnation proceeds held by it to reimburse itself and/or such
receiver for all amounts expended or incurred by it in connection
with the performance of such work, including attorney's fees, and
any excess costs shall be paid by the Grantor to the Beneficiary
and the Grantor's obligation to pay such excess costs shall be
secured by the Lien of this Deed of Trust and shall bear interest
at the Default Rate, until paid.
(c) &nb
