ECP Commercial I LLC v. Boaz Shopping Center LLC et al

Filing 1

Agreed ORDER Appointing Receiver. $46.00; Receipt Number 073196. by Thomas Anderson, United States District Judge, Western District of Tennessee on 2/19/2016. (Attachments: # 1 Exhibit 1 Part 1, # 2 Exhibit 1 Part 2, # 3 Exhibit 1 Part 3, # 4 Exhibit 1 Part 4, # 5 Exhibit 1 Part 5, # 6 Exhibit 1 Part 6, # 7 Exhibit 2) (dbera, )

SCHEDULE I

CONSTRUCTION TRANCHE

Project

Uvalde Shopping Center
Bloomington Shopping Center
Cortez Shopping Center
Douglas Shopping Center
Ville Platte Shopping Center
Eden Shopping Center
Yukon Shopping Center
St. Johns Shopping Center
Washington Shopping Center
Lexington Shopping Center
Building Exchange Properties (Lubbock Shopping Center)
Longview Shoppmg Center
Cedartown, LLC (Cedartown Shopping Center)
Keokuk II Shopping Center
Spectra Exchange Group, 1, LLC (Oak Grove Shopping Center)
Pueblo West Shopping Center
Total

11.

Project
Loan Amount

$3,025,500
$2,608,000
$2,100,000
$3,412,500
$2,510,000
$2,512,500
$3,570,000
$3,337,500
$3,475,000
$4,318,000
$3,267,650
$4,249,500
$3,800,000
$1,425,000
$4,275,000
$2,250,000
$50,136,150

STABILIZED TRANCHE

Project

Mustang Shopping Center
Alice Shopping Center
Bad Axe Shopping Center
Total

$2,800,000
$4,087,500
$2,898,000
$9,785,500

SECOND AMENDMENT TO
MASTER CONSTRUCTION LOAN AGREEMENT

THIS SECOND AMENDMENT TO MASTER CONSTRUCTION LOAN
.-..,AqR.EpMENT (the "Second Amendment'.') is made as of this \D·+-.- day of
Ge ~ , 2006, by and between THE SPECTRA GROUP, INC., a Tennessee
corporation ("Spectra"), JEFF H. FARMER, JR. ("Fanner"), and KEYBANK
NATIONAL ASSOCIATION (the "Bank"), under the following circumstances:

A.

Pursuant to a Master Construction Loan Agreement dated December 8,
2005, between Spectra, Farmer and the Bank (the "Original Loan
Agreement") as amended by a First Amendment to Master Construction
Loan Agreement dated June 30, 2006 between the same parties (the "First
Amendment''), the Original Loan Agreement and the First Amendment
being collectively referred to as the "Loan Agreement"), the Bank made a
$75,000,000.00 project loan facility (the "Loan") available to Fanner on
the terms and conditions set forth in the Loan Agreement.

~.

Spectra, Farmer and the Bank hereby desire to amend the Loan Agreement
to, among other things, increase the amount of the Loan, all under the
terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the foregoing premises, and other good
and valuable consideration, the receipt and sufficiency ofwhich is hereby acknowledged,
the parties agree as follows:
1.
Except as hereinafter specifically provided, all words in this Second
Amendment beginning with capital letters which are not normally capitalized shall have
the same meaning as set forth in the Loan Agreement.
2.
Effective as of
amended as follows:

D(' ~)Jv.... JU, 2006, the Loan Agreement is hereby

(a)
The phrase "$75,000,000" contained in the defined term "Loan" in
Section 2.1 of the Loan Agreement is hereby deleted and the phrase "$85,000,000.00" is
hereby inserted in its place.
(b)
The phrase "Fifty Million Dollars ($50,000,000.00)" contained in
the first sentence of Section 4.1 of the Loan Agreement is hereby deleted and the phrase
"Eighty-Five Million Dollars ($85,000,000.00)" is hereby inserted in its place.
(c)
The phrase "Twenty-Five Million Dollars ($25,000,000.00)"
contained in the third sentence of Section 4.1 of the Loan Agreement is hereby deleted
and the phrase "Zero Dollars ($0)" is hereby inserted in its place.
3.
Notwithstanding anything in the Loan Agreement, as amended hereby, to
the contrary, Farmer and Spectra acknowledge and agree that the Bank shall have the
right, and the Bank hereby retains the right, at any time during the term of the Loan and
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EXHIBIT 20

l
I.

in the Bank's sole and absolute discretion, to reduce the Construction Tranche by up to a
maximum of $35,000,000.00 so long as the Bank provides a corresponding increase, in
an amount equal to such amount of reduction, in the amount of the permitted stabilized
Tranche under the Loan Agreement, as amended hereby.
4.
All the terms and provisions of the Loan Agreement, except as hereby
amended, are hereby ratified and confirmed.
5.
Spectra and Farmer hereby represent, warrant, covenant and agree, on
behalf of themselves and all of the Borrowers, the Loan Agreement, as modified hereby,
remains otherwise unmodified and in full force and effect and that Spectra, Farmer and
each Borrower has no cause of action at law or in equity against the Bank, including,
without limitation, any offset, counterclaim or defense with respect to the Loan
Agreement or any of the documents or instruments entered into in connection with the
Loan Agreement or any Project.
6.
Farmer, as Guarantor of each Project Loan, hereby consents to the
modification of the Loan Agreement as set forth herein, reaffirms each and every
Guaranty executed by Farmer, and represents, warrants, and covenants to the Bank that
Farmer and Spectra has no cause of action at law or in equity against the Bank including,
without limitation, any offset, counterclaim or defense with respect to any of the
obligations under the Loan Agreement, Project Agreements, Notes or any other document
executed and delivered in connection therewith.
WITNESS the execution hereof as of the date first written above.

KEYBANK ~TION
\

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~-·~~~~~~~~----Name: K
.. eiber"
Title: Senior Vice President

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THIRD AMENDMENT TO
MASTER CONSTRUCTION LOAN AGREEMENT
THIS THIRD AMENDMENT TO MASTER CONSTRU9,TION LOAN
EMENT (the "Third Amendment") is made as of this L~day of
_ _ __ , 2007, by and between THE SPECTRA GROUP, INC., a Tennessee
corpor tion ("Spectra"), .JEFF H. FARMER, JR. ("Farmer"), and KEYBANK
NATIONAL ASSOCIATION (the "Bank"), under the following circumstances:

~-.....:::1-t"'-1-,_,

A.

Pursuant to a Master Construction Loan Agreement dated December 8,
2005, between Spectra, Farmer and the Bank (the "Original Loan
Agreement"), as amended by a First Amendment to Master Construction
Loan Agreement dated June 30, 2006 between the same parties (the "First
Amendment") and as further amended by a Second Amendment to Master
Construction Loan Agreement dated October 10, 2006 between the same
parties (the "Second Amendment"), the Original Loan Agreement, the
First Amendment and the Second Amendment being collectively referred
to as the "Loan Agreement"), the Bank made a $85,000,000.00 project
loan facility (the "Loan") available to Farmer on the terms and conditions
set forth in the Loan Agreement.

f!.

Spectra, Farmer and the Bank hereby desire to amend the Loan Agreement
to, among other things, extend the maturity date of the Loan, all under the
terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the foregoing premises, and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1.
Except as hereinafter specifically provided, all words in this Third
Amendment beginning with capital letters which are not normally capitalized shall have
the same meaning as set forth in the Loan Agreement.
2.
follows:

Effective as of June 30, 2007, the Loan Agreement is hereby amended as

The phrase "July 2, 2007" contained in the definition "Project Loan
(a)
Commitment Expiration Date" in Section 2.1 of the Original Loan Agreement as
amended by the First Amendment is hereby deleted and the phrase "July 2, 2008" is
hereby inserted in its place.
(b)
The plu·ase "plus 100 basis points" contained in the definition of
"Total Annual Debt Service" in Section 2.1 ofthe Loan Agreement is hereby deleted.
(c)
The phrase "the Loan is repaid with pem1anent loan from Lender
or an affiliate of Lender" contained in the first sentence of Section 7.3 of the Loan
Agreement is hereby deleted and the phrase "if the Loan is permanently financed by an

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EXHIBIT 21

I
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I

entity other than Lender and Lender is not competitively priced with the market"
hereby inserted in its place.

IS

(d)
The phrase "93%" contained in Section 4.4(vii) of the Loan
Agreement is hereby deleted and the phrase "85%" is hereby inserted in its place.
(e)
The last sentence of the third paragraph of Section I 0.2 of the
Loan Agreement is hereby deleted and the following sentence inserted in its place: "The
developer fee of $1 00,000 in the Budget shall be paid to Borrower at the time all of the
tenants under the Required Leases have taken occupancy and begun paying rent and an
interest only Debt Service Coverage Ratio of 1:1 is met based on the full Loan amount."
3.
Lender hereby waives the closing requirement of a list of approved
subcontractors for each Project.
4.
The Bank, Spectra and Farmer all agree that (i) the Project Loan for
Bloomington Shopping Center is hereby extended through and until February 4, 2008, (ii)
the Project Loan for Eden Shopping Center is hereby extended through and until
February I 0, 2008, (iii) the Project Loan for Cortez Shopping Center is hereby extended
through and until December 28, 2007, and (iv) the Project Loan for Ville Platte Shopping
Center is hereby extended through and until January 2, 2008.

I

I

5.
All the terms and provisions of the Loan Agreement, except as hereby
amended, are hereby ratified and confirmed.
6.
Spectra and Farmer hereby represent, warrant, covenant and agree, on
behalf of themselves and all of the Borrowers, the Loan Agreement, as modified hereby,
remains otherwise unmodified and in full force and effect and that Spectra, Farmer and
each Borrower has no cause of action at law or in equity against the Bank, including,
without limitation, any offset, counterclaim or defense with respect to the Loan
Agreement, as amended hereby, or any of the documents or instruments entered into in
connection with the Loan Agreement, as amended hereby, or any Prqject.
7.
Farmer, as Guarantor of each Project Loan, hereby consents to the
modification of the Loan Agreement as set forth herein, reaffirms each and every
Guaranty executed by Farmer, and represents, warrants, and covenants to the Bank that
Farmer and Spectra has no cause of action at law or in equity against the Bank including,
without limitation, any offset, counterclaim or defense with respect to any of the
obligations under the Loan Agreement, Project Agreements, Notes or any other document
executed and delivered in connection therewith.

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1

WITNESS the execution hereof as of the date first written above.

By: _ _g~l--/-£.1-/--~~~~~~
Name:
Title:

642868.2

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'-~·

FOURTH AMENDMENT TO
MASTER CONSTRUCTION LQAN AGREEMENT
THIS FOURTH

AMENDMENT TO MASTER CONSTRUCTION LOAN

~G~E~MENT (the "Fourth Amendment") is made as of this \a'-\:.-- day of
~:N.A
, 2007, by and between THE SPECTRA GROUP, INC., a Tennessee
corporationC"Spectra"), JEFF H. FARMER, JR. ("Farmer"), and KEYBANK
NATIONAL ASSOCIATION (the "Bank"), under the following circumstances:
A.

Pursuant to a Master Construction Loan Agreement dated December 8,
2005, between Spectra, Farmer and the Bank (the "Original Loan
Agreement"), as amended by a First Amendment to Master Construction
Loan Agreement dated June 30, 2006 between the same parties (the "First
Amendment"), as further amended by a Second Amendment to Master
Construction Loan Agreement dated October I 0, 2006 between the same
parties (the "Second Amendment") and as further amended by a Third
Amendment to Master Construction Loan Agreement dated July 18, 2007
between the same parties (the "Third Amendment"), the Original Loan
Agreement, the First Amendment, the Second Amendment and the Third
Amendment being collectively referred to as the "Loan Agreement"), the
Bank made a $85,000,000.00 project loan facility (the "Loan") available to
Farmer on the terms and conditions set forth in the Loan Agreement.

B.

Spectra, Farmer and the Bank hereby desire to amend the Loan Agreement
to, among other things, extend the maturity date of the Loan, all under the
terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the foregoing premises, and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
Except as hereinafter specifically provided, all words in this Third
I.
Amendment beginning with capital letters which are not normally capitalized shall have
the same meaning as set forth in the Loan Agreement.
The second sentence of Section 4.7 is hereby deleted and the following
2.
sentence is inserted in its place: "A Project Loan shall remain "interest only" during any
Extended Term."
3.
All the terms and provisions of the Loan Agreement, except as hereby
amended, are hereby ratified and confirmed.
4.
Spectra and Farmer hereby represent, warrant, covenant and agree, on
behalf of themselves and all of the Borrowers. the Loan Agreement, as modified hereby,
remains otherwise unmodified and in full force and effect and that Spectra, Farmer and
each Borrower has no cause of action at law or in equity against the Bank, including,
without limitation, any offset, counterclaim or defense with respect to the Loan

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EXHIBIT 22

Agreement, as amended hereby, or any of the documents or instruments entered into in
connection with the Loan Agreement, as amended hereby, or any Project.
5.
Farmer, as Guarantor of each Project Loan, hereby consents to the
modification of the Loan Agreement as set forth herein, reaffirms each and every
Guaranty executed by Farmer, and represents, warrants, and covenants to the Bank that
Farmer and Spectra has no cause of action at law or in equity against the Bank including,
without limitation, any offset, counterclaim or defense with respect to any of the
obligations under the Loan Agreement, Project Agreements, Notes or any other document
executed and delivered in connection therewith.
WITNESS the execution hereof as of the date first written above.
KEYBANK NATIONAL ASSOCIATION

SPECTRA GROUP, INC.

By: _ _~~~~~~~~~Name:
Title: C ·

o5R:lRO I

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I

FIFTH AMENDMENT TO
MASTER CONSTRUCTION LOAN AGREEMENT

THIS FIFTH AMENDMENT TO MASTER CONSTRUCTION LOAN
AGREEMENT (the "Fifth Amendment") is made as of this 15th day of April, 2009, by
and between THE SPECTRA GROUP, INC., a Tennessee corporation ("Spectra"),
JEFF H. FARMER, JR. ("Farmer"), and KEYBANK NATIONAL ASSOCIATION, a
national banking association (the "Bank"), under the following circumstances:
A.

Pursuant to a Master Construction Loan Agreement dated December 8,
2005, between Spectra, Farmer and the Bank (the "Original Loan
Agreement"), as amended by a First Amendment to Master Construction
Loan Agreement dated June 30, 2006 between the same parties (the "First
Amendment"), as further amended by a Second Amendment to Master
Construction Loan Agreement dated October 10, 2006 between the same
parties (the "Second Amendment"), as further amended by a Third
Amendment to Master Construction Loan Agreement dated July 18, 2007
between the same parties (the "Third Amendment"), and as further
amended by a Fourth Amendment to Master Construction Loan
Agreement dated October 10, 2007 between the same parties (the "Fourth
Amendment," the Original Loan Agreement, the First Amendment, the
Second Amendment, the Third Amendment and the Fourth Amendment
being collectively referred to as the "Loan Agreement"), the Bank made a
$85,000,000.00 project loan facility available to Farmer on the terms and
conditions set forth in the Loan Agreement.

f!.

Pursuant to the terms of the Loan Agreement, Bank provided Project
Loans to Borrowers for the Projects in the amounts as set forth on Exhibit
A attached hereto and made a part hereof (the "Existing Loans"). The
total amount of principal currently outstanding under the Existing Loans is
$69,870,099.00 (the "Outstanding Principal Loan Balance"). The total
additional amount of principal the Bank is currently obligated to disburse
(subject to satisfaction of all conditions relating thereto set forth in the
Loan Agreement) under the Loan Agreement in connection with the
Existing Loans is $591,401.00 (the "Remaining Disbursement Amount").

C.

Spectra, Farmer and the Bank hereby desire to amend the Loan Agreement
to, among other things, amend and restate all of the Project Notes into one
Promissory Note, extend the maturity date of the Loan and make such
other amendments described herein, all under the terms and conditions
hereinafter set forth.

NOW, THEREFORE, in consideration ofthe foregoing premises, and $10.00 and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:

EXHIBIT 23

1.
Except as hereinafter specifically provided, all words in this Fifth
Amendment beginning with capital letters which are not normally capitalized shall have
the same meaning as set forth in the Loan Agreement. The above recitals to this Fifth
Amendment are hereby incorporated by reference as if fully set forth and Spectra, Farmer
and the Bank acknowledge the recitals to be true and correct. Effective as of April 15,
2009, the Loan Agreement shall be deemed to be modified by the provisions of this Fifth
Amendment.
2.

The defined terms in the Loan Agreement are hereby amended as follows:

(a)
The definition of the term "Debt Service Coverage Ratio" in
Section 2.1 of the Loan Agreement is hereby deleted in its entirety and the following is
inserted in its place:
With respect to a particular period, the ratio of (a) the annualized
Net Operating Income from all of the Projects (but only to the extent
supported by the most recent Appraisal obtained, or approved and
accepted, by the Bank) to (b) the Total Annual Debt Service in connection
with all of the Projects. Notwithstanding the foregoing, Net Operating
Income and Total Annual Debt Service relating to the Project commonly
known as Sweden Shopping Center (as determined by the Bank in its sole
discretion) shall be excluded from the calculation of Debt Service
Coverage Ratio until the earlier to occur of (i) the date such Project
achieves 93% leasing (on a leasable square footage basis) based on tenants
occupying their premises and open for business, at which point the Net
Operating Income for, and that portion of the Total Annual Debt Service
relating to, the Project achieving such leasing (as determined by the Bank
in its sole discretion) shall be included in the calculation of the Debt
Service Coverage Ratio or (ii) March 31, 201 0.
(b)
The definition of the term "Default Interest Rate" in Section 2.1 of
the Loan Agreement is hereby deleted in its entirety and the following is inserted in its
place:
A rate per annum equal to 300 basis points in excess of the Applicable
Rate, but not at any time in excess of the highest rate permitted by law.
(c)
The definition of the term "LIB OR Rate Margin" in Section 2.1 of
the Loan Agreement is hereby deleted in its entirety and the following is inserted in its
place:
3.50% (350 basis points) per annum.
(d)
The definition of the term "Loan" in Section 2.1 of the Loan
Agreement is hereby deleted in its entirety and the following is inserted in its place:
The $70,461,500.00 loan facility made up of the Outstanding
Principal Loan Balance and the Remaining Disbursement Amount.
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(e)
The definition of the term "Loan Amount" in Section 2.1 of the
Loan Agreement is hereby deleted in its entirety and the following is inserted in its place:
$70,461,500.00 as reduced by principal payments made from time
to time.
The definition of the term "Note" in Section 2.1 of the Loan
Agreement is hereby deleted in its entirety and the following is inserted in its place:
(f)

The three Amended and Restated Promissory Notes dated April15,
2009 in an aggregate amount equal to the Loan Amount made by all
Borrowers in favor of the Bank, as modified or amended. For avoidance
of doubt and without intending to limit the definition of the term "Project
Documents", the term "Project Documents" as used in the Loan
Agreement shall include the Note.
(g)
The definition of the term "Prime Rate Margin" in Section 2.1 of
the Loan Agreement is hereby deleted in its entirety and the following is inserted in its
place:
1.25% (125 basis points) per annum.
(h)
The definition of the term "Total Annual Debt Service" in Section
2.1 of the Loan Agreement is hereby deleted in its entirety and the following is inserted
in its place:
The aggregate debt service payments for a 12 month period on the
Loan Amount, assuming (i) a per annum interest rate of 6.45%, and (ii)
monthly payments of principal and interest based on an amortization
period ofthirty (30) years.
(i)
The defined term "Loan to Value Ratio" is hereby added to Section
2.1 of the Loan Agreement and is defined as follows:
Loan to Value Ratio: The ratio of the Loan Amount to the fair
market value of all of the Projects as such fair market value is determined
by applying the capitalization rates to the Net Operating Income for each
Project (but only to the extent such capitalization rates and Net Operating
Income for each such Project is supported by the most recent Appraisal for
the Project obtained, or approved and accepted, by the Bank).
Notwithstanding the foregoing, the fair market value and portion of the
Loan Amount attributable to the Project commonly known as Sweden
Shopping Center (as determined by the Bank in its sole discretion) shall be
excluded from the calculation of the Loan To Value Ratio until the earlier
to occur of (i) the date the Project achieves 93% leasing (on a leasable
square footage basis) based on tenants occupying their premises and open
for business at which point the fair market value and portion of the Loan
Amount attributable to the Project achieving such leasing (as determined
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by the Bank in its sole discretion) shall be included in the calculation of
the Loan to Value Ratio, or (ii) March 31,2010.
G)
The defined term "Telluride Mortgage" is hereby added to Section
2.1 ofthe Loan Agreement and is defined as follows:
Telluride Mortgage. The second mortgage granted by Farmer on
his personal residence in Telluride, Colorado to secure the Loan.
(k)
The defined term "Swap Termination Loan" is hereby added to
Section 2.1 of the Loan Agreement and is defined as follows:
Swap Termination Loan: That loan in the amount of up to
$2,625,000.00 made to Spectra contemporaneously with the Loan to
terminate the fixed interest rate swap ($40,000,000.00 swap with 9/1/2012
maturity date) that related to the Project Loans.
(1)
The definition of the term "Maturity Date" in Section 4.4 of the
Loan Agreement is hereby deleted in its entirety and the following is inserted in its place:

Maturity Date: The earlier of July 15, 2010, or the date the Loan
Amount otherwise becomes due and payable, as such date may be
extended by the Extended Maturity Date, if properly exercised.
(m)
The definition of the term "Extended Maturity Date" in Section 4.4
of the Loan Agreement is hereby deleted in its entirety and the following is inserted in its
place:
Extended Maturity Date: The earlier of (a) July 15, 2011 (if a
$20,000,000.00 curtailment of principal has occurred in accordance with
Paragraph 4 of the Fifth Amendment to this Agreement) or January 15,
2012 (if a $30,000,000.00 curtailment of principal has occurred in
accordance with Paragraph 4 of the Fifth Amendment to this Agreement),
and (b) the date the Loan Amount otherwise becomes due and payable.
(n)
The defined term "Floor Interest Rate" is hereby added to Section
2.1 ofthe Loan Agreement and is stated as follows:
Floor Interest Rate: 4.50% per annum.
3.
Borrower, Farmer and Bank agree that (i) in no event shall Bank be
obligated to disburse any additional funds under the Loan in excess of the Remaining
Disbursement Amount, and (ii) that the maximum aggregate amount to be funded under
the Loan is $70,461,500.00. The Remaining Disbursement Amount is to be disbursed by
the Bank for the sole purpose of reimbursing the appropriate Borrower for the costs of
tenant improvements, commissions for tenants and other costs approved by Bank with
respect to the Project Loans. The Remaining Disbursement Amount shall be disbursed
by the Bank, upon request by the Borrower owning the Project with respect to which such

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costs were incurred, in accordance with the terms of the Loan Agreement, as amended
hereby, applicable to disbursements of a Project Loan, and subject to the additional
condition that prior to and after disbursement of any portion of the Remaining
Disbursement Amount, (i) the Debt Service Coverage Ratio is equal to or greater than
1.20:1.00 (1.25: 1.00 if the Telluride Mortgage has been released by the Bank), and (ii)
the Loan To Value Ratio is equal to or less than 80% (75% if the Telluride Mortgage has
been released by the Bank). Notwithstanding anything in the Loan Agreement, as
amended hereby, or any Project Documents to the contrary, the Bank shall have
absolutely no obligation to make new Project Loans, expend any sums or advance any
funds for any purpose to Spectra, Farmer or any Borrower in connection with the Loan,
the Loan Agreement, as amended hereby, the Project Documents or any other documents
executed by the Bank in favor of Spectra, Farmer, and any Borrower, or any one or
combination of them, or any party related or affiliated to the foregoing parties, except as
specifically provided in this Paragraph 3.
4.
The term of the Loan is hereby extended through and until the Maturity
Date whereupon on the Maturity Date all unpaid principal and accrued interest of the
Loan, and any other amounts payable under the Loan Agreement and the Project
Documents, shall be due and payable. Farmer may extend the Maturity Date to the
Extended Maturity Date, on behalf of the Borrowers, upon satisfying the following
conditions:
(i)
Farmer shall have provided the Bank written notice of such
election to extend on or prior to June 15, 2010;
(ii)
Such notice shall be accompanied by an extension fee in the
amount of 25 basis points of the then outstanding principal balance of the Loan and the
remaining undisbursed amount of the Remaining Disbursement Amount;
(iii)
No Event of Default has occurred and is continuing at the time of
Farmer's written notice to extend or on July 15,2010:
(iv)
On or prior to July 14, 2010, a principal payment of (1) at least
$20,000,000.00 shall have been paid to the Bank by Farmer, which shall permit an
extension of the Maturity Date to July 15, 2011, or (2) at least $30,000,000.00 shall have
been paid to the Bank by Farmer, which shall permit an extension of the Maturity Date to
January 15, 2012; and
(v)
The Debt Service Coverage Ratio is equal to or greater than
1.20:1.00 and the Loan To Value Ratio is equal to or less than 80%.
Any payments made pursuant to Paragraph 12 hereof and applied to reduce the Loan
Amount shall be credited against the principal payment requirement in (iv) above.
Monthly principal payments pursuant to Paragraph 5 hereof and payments made pursuant
to Paragraph 10 hereof shall not be a credit against the principal payment requirement.
Other than the extension rights set forth in this Paragraph 5, Farmer, Spectra and
Borrowers shall have no other rights to extend the Maturity Date and any and all other

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extension rights in the Loan Agreement and the Project Documents are hereby null and
void and of no further force and effect.
5.
Commencing on August 15, 2009 and on the fifteenth day of each month
thereafter during the term of the Loan, Borrowers shall make principal payments on the
Loan to Lender in an amount equal to $94,725.31.
6.
Notwithstanding anything in Section 5.1 of the Loan Agreement to the
contrary, the Applicable Rate shall mean the Adjusted LIBOR Rate such that the Loan
shall bear interest at the Adjusted LIBOR Rate at all times, except in the event (i) the
remaining term of the Loan is less than one month, or (ii) the Bank exercises the right
under Section 5.1 (d) or 5.1 (g) to require the Loan to bear interest at the Adjusted Prime
Rate, in which event the outstanding principal balance due under the Loan shall bear
interest at the Adjusted Prime Rate during such periods. Notwithstanding anything
herein or in the Project Documents to the contrary, in the event the Applicable Rate
would be less than the Floor Interest Rate, at all such times the Applicable Rate shall be
the Floor Interest Rate. In the event Farmer does not timely designate a LIBOR Rate
Interest Period for any period during which the Applicable Rate is the Adjusted LIBOR
Rate, the LIBOR Rate Interest Period shall be one month.
7.
Where appropriate, references to the Project Loan in the Loan Agreement
shall be deemed to be references to the Loan, including without limitation references
contained in Section 4.6, Article 5, Article 6 and Section 7.1
8.
Farmer shall pay to the Bank an origination fee equal to .50% of the
original Loan Amount, payable 50% upon execution of this Fifth Amendment and 50%
on the earlier of (i) the one-year anniversary of the execution of this Fifth Amendment, or
(ii) the date this Loan is paid in full, if prior to such one-year anniversary. Such fee when
paid shall be deemed fully earned and non-refundable. Section 7.3 of the Loan
Agreement requiring an exit fee is hereby deleted and is of no further force and effect.
Farmer shall pay all fees and costs (including without limitation fees and expenses of
consultants, attorneys or other professionals) incurred by the Bank in connection with the
Loan within five (5) days after demand by the Bank, including without limitation, those
related to or in connection with (a) this Fifth Amendment and any documents, agreements
or instruments referred to herein, (b) disbursement, syndication and administration of the
Loan, and (c) enforcement of any of Lender's rights or remedies under the Loan
Agreement, as amended hereby, or the Project Documents, or at law or in equity:
9.
As additional security for the repayment of the Loan, Farmer shall grant
the Bank the Telluride Mortgage, in form and substance satisfactory to the Bank. The
Bank shall release such mortgage at the request of Farmer upon Farmer satisfying the
following conditions: (i) no Event of Default has occurred and is continuing, (ii) the
Debt Service Coverage Ratio is equal to or greater than 1.25: 1.00, (iii) the Loan To Value
Ratio is equal to or less than 75%, and (iv) Farmer has extended the Maturity Date to the
Extended Maturity Date in accordance with the provisions of Paragraph 4 hereof. At the
request of the Bank, Farmer shall obtain new appraisals supporting the conditions in (ii)
and (iii) above.

-6-

10.
During the term of the Loan, Farmer and Spectra shall maintain a Debt
Service Coverage Ratio equal to or greater than 1.20: 1. 00 ( 1.25: 1. 00 if the Telluride
Mortgage has been released) and a Loan To Value Ratio equal to or less than 80% (75%
if the Telluride Mortgage has been released). The foregoing financial covenants shall be
tested by the Bank on every September 30, December 31, March 31 and June 30 occuring
during the term of the Loan. Spectra and Farmer shall deliver to the Bank the financial
information, certified by them, as requested by the Bank to test such covenants within 30
days after the foregoing dates. Failureto do so by such date shall be an Event of Default.
In the event that either or both covenants are not met when tested, Farmer and Spectra
shall, within 15 days after demand therefore by the Bank, make a payment to the Bank in
an amount sufficient to pay down the principal of the Loan such that both covenants are
met. Failure of Farmer or Spectra to make such payment within such 15-day period shall
be an Event of Default.
11.
During the term of the Loan, Farmer will maintain a mm1mum of
unencumbered liquid assets equal to or greater than $2,500,000.00 and a minimum net
worth equal to or greater than $25,000,000.00, all as calculated and determined by the
Bank in its sole discretion. During the term of the Loan, Spectra and Farmer shall
maintain a combined unencumbered net cash flow after debt service and expenses of
$1,250,000.00. The foregoing covenants shall be tested by the Bank every December 31
and June 30 during the term of this Loan. Spectra and Farmer shall deliver the financial
information, certified by them, as requested by the Bank to test such covenants, within 30
days after the foregoing dates. Failure of Farmer and Spectra to deliver such requested
financial information within such time period or meet such covenants when tested shall
be an Event of Default.
12.
The Bank shall release the lien of its Mortgage against an individual
Project or outlot as identified on Exhibit A hereto in the event of a sale or refinance of
such Project or outlot upon satisfaction of the following conditions:
(a)
Delivery to the Bank of all agreements and documents related to
such sale or finance;
(b)

No Event of Default has occurred and is continuing at the time of

the release;
(c)
Delivery of the release price for the Project or outlot identified on
Exhibit A attached hereto and made a part hereof in immediately available funds as
specified by the Bank;
(d)
Delivery of any additional proceeds from such sale or refinance
after the payment by Borrower of the release price and the reasonable out-of-pocket costs
of such sale or refinance (approved by the Bank in its sole discretion) to be applied by the
Bank first against any amounts due in connection with the Swap Termination Loan and
second against any amounts due in connection with the Loan until the Loan achieves and
maintains a Loan to Value Ratio equal to or less than 75% and a Debt Service Coverage

-7-

Ratio equal to or greater than 1.25: 1.00, at which point such additional proceeds shall be
paid to Borrower who is refinancing or selling the Project;
(e)
Delivery of such additional documents, instruments, opinions and
assurances as the Bank may request in connection with such release (including, without
limitation, partial release of lien endorsements to the mortgage title insurance policies in
connection with the Loan, if available); and
(f)
Payment of all out-of-pocket costs incurred by the Bank m
connection with such release (including, without limitation, attorney's fees).

13.
The address of the Bank contained in Section 22 of the Loan Agreement is
hereby deleted and the following is inserted in its place:
KeyBank National Association
303 Broadway
Suite 1700
Cincinnati, Ohio 45202
Attention: Kurt Reiber
Telephone: [phone]
Facsimile: [phone]
14.
Spectra and Farmer hereby represent, warrant, covenant and agree, on
behalf of themselves and all of the Borrowers, (i) the Loan Agreement, as modified
hereby, remains otherwise unmodified and in full force and effect, (ii) that each of
Spectra, Farmer and each Borrower has no claims, defenses, counterclaims, offsets or
causes of action at law or in equity against the Bank or any loan participant banks, or
their respective officers, employees, agents, directors, subsidiaries, affiliates, or attorneys
of any kind or nature whatsoever including, without limitation, any offset, counterclaim
or defense with respect to the Loan Agreement, as amended hereby, or any of the
documents or instruments entered into in connection with the Loan Agreement, as
amended hereby, or any Project, (iii) as of the date of this Fifth Amendment, Farmer and
Spectra, as guarantors, and Borrowers, collectively, were liable to the Bank under the
Loan Agreement and the Project Documents in a principal amount of Sixty-Nine Million
Eight Hundred Seventy Thousand Ninety-Nine and 00/100 Dollars ($69,870,099.00),
plus accrued but unpaid interest thereon, plus the costs and expenses of the Bank
thereunder, all without offsets, counterclaims or defenses of any kind or nature
whatsoever, and (iv) as of the date hereof, all liens, security interests, assignments and
pledges encumbering the Projects are first priority liens, continue unimpaired, are in full
force and effect and secure and shall continue to secure all of the obligations described in
the respective instruments in which such interests were granted, as such instruments may
be amended.
15.
Spectra and Farmer hereby acknowledge and confirm, on behalf of
themselves and all of the Borrowers, that there are no existing defenses, claims,
counterclaims or rights of recoupment or set-off against the Bank in connection with the
obligations owed to the Bank under the Loan Agreement, as amended hereby, or any

-8-

other Project Documents or in connection with the negotiation, preparation, execution,
performance or any other matters relating to the Loan Agreement, as amended hereby, or
any Project Documents.
16.
In consideration of the accommodations being made available by the Bank
to or for the benefit of Farmer, Spectra and the Borrowers under this Agreement, Spectra
and Farmer, for themselves and all of the Borrowers, and their respective agents,
employees, representatives, officers, directors, shareholders, subsidiaries, successors and
assigns, do hereby unconditionally remise, release and discharge the Bank and any loan
participant banks, and their respective shareholders, subsidiaries, affiliates, directors,
servants, agents, employees, financial advisors, consultants, representatives, officers,
attorneys and their respective successors and assigns (the "Released Parties") of and from
any and all claims, counterclaims, demands, actions and causes of action of any nature
whatsoever, whether at law or in equity, including, without limitation, any of the
foregoing arising out of or relating to the Loan Agreement, as amended hereby, and any
Project Documents, any acts or omissions of any Released Party in connection therewith
(including, without limitation, extensions of credit and other financial accommodations
made or not made to Borrowers, Spectra and Farmer or any of them), the transactions
described in this Fifth Amendment, the return of any checks, or any proposed financing
arrangements to or for the benefit of Borrowers, Spectra and Farmer or any of them or
any entities owned by or under the control of Borrowers, Spectra and Farmer or any of
them, which any of them, now has or hereafter can or may have for or by reason of any
cause, matter or thing whatsoever, against any of the Released Parties, from the
beginning of the world to the date hereof.
WI1NESS the execution hereof as of the date first written above.

Title: Senior Vice President

THE SPECTRA GROUP, INC.
By: ___________________________
Name: JeffH. Farmer, Jr.
Title: Chief Executive Officer

JEFF H. FARMER, JR., Individually

-9-

other Project Documents or in connection with the negotiation, preparation, execution,
performance or any other matters relating to the Loan Agreement, as amended hereby, or
any Project Documents.
16.
In consideration of the accommodations being made available by the Bank
to or for the benefit of Farmer, Spectra and the Borrowers under this Agreement, Spectra
and Farmer, for themselves and all of the Borrowers, and their respective agents,
employees, representatives, officers, directors, shareholders, subsidiaries, successors and
assigns, do hereby unconditionally remise, release and discharge the Bank and any loan
participant banks, and their respective shareholders, subsidiaries, affiliates, directors,
servants, agents, employees, financial advisors, consultants, representatives, officers,
attorneys and their respective successors and assigns (the "Released Parties") of and from
any and all claims, counterclaims, demands, actions and causes of action of any nature
whatsoever, whether at law or in equity, including, without limitation, any of the
foregoing arising out of or relating to the Loan Agreement, as amended hereby, and any
Project Documents, any acts or omissions of any Released Party in connection therewith
(including, without limitation, extensions of credit and other financial accommodations
made or not made to Borrowers, Spectra and Farmer or any of them), the transactions
described in this Fifth Amendment, the return of any checks, or any proposed financing
arrangements to or for the benefit of Borrowers, Spectra and Farmer or any of them or
any entities owned by or under the control of Borrowers, Spectra and Farmer or any of
them, which any of them, now has or hereafter can or may have for or by reason of any
cause, matter or thing whatsoever, against any of the Released Parties, from the
beginning of the world to the date hereof.
WITNESS the execution hereof as of the date first written above.
KEYBANK NATIONAL ASSOCIATION
By: _ _ _ _ _ _ _ _ _ _ _ _ __
Name: Kurt L. Reiber
Title: Senior Vice President

-9-

EXHIBIT A
The following are the minimum release prices for each retail center and outlot:
Retail Centers
Alice Shopping Center
Bay City Shopping Center
Bloomington Shopping Center
Boutte Shopping Center
Marion Shopping Center
Cedartown Shopping Center
Cortez Shopping Center
Dillon Shopping Center
Eden Shopping Center
Evans Mills Shopping Center
Longview Shopping Center
Lubbock Shopping Center
Lubbock SW Shopping Center
Mayodan Shopping Center
Oak Grove Shopping Center
Pueblo West Shopping Center
Salem Shopping Center
Salisbury Shopping Center
Sweden Shopping Center
Uvalde Shopping Center
Ville Platte Shopping Center

$2,475,000
$3,353,000
$2,350,100
$5,025,000
$3,068,800
$3,551,000
$2,070,000
$2,560,000
$2,512,500
$4,520,000
$3,704,400
$3,267,650
$4,575,000
$4,598,050
$4,275,000
$2,110,500
$2,925,000
$3,994,175
$2,750,000
$2,850,000
$2,485,000

Outlots
Bloomington
Longview
Cedartown
Salem
Evans Mills
Dillon
Salisbury

$133,000
$542,500
$210,000
$159,000
$180,000
$217,000
$752,250

735830.5

Return to:
GEORGE C. CALLOWAY, ESQ.
SPECIALIZED TITLE SERVICES, INC.
6133 PEACHTREE DUNWOODY ROAD NE
ATLANTA, GEORGIA 30328
[phone] STS FILE NO. 111 Z. · 31 '\

MAXIMUM PRINCIPAL
AMOUNT SECURED HEREBY:
$73,096,500.00

REC: S'"II,Jt,

DATE:

i-tf-lfl

CHECK:

3tf33

Please cross-reference to
Deed Book 1172, Page 1,
Recodds of Polk County,
Georgia.

TT:
LATEST POSSffiLE
PT:
MATURITY DATE:
January 15,2012, Therefore no'intangible tax is due.
FIRST AMENDMENT TO MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT
AND FIXTURE FILING AND DEED TO SECURE DEBT
This FIRST AMENDMENT TO MORTGAGE, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND Fl_XTURE FILING AND DEED TO SECURE DEBT (this "Amendment"), is
entered into as ofthe~l!{{ay of June, 2009, by and between TELL CITY SHOPPING CENTER LLC, a
Delaware limited liability company ("TCSC"), OTTUMWA SHOPPING CENTER LLC, a Delaware
limited liability company ("OSC"), NEWCASTLE SHOPPING CENTER LLC, a Delaware limited
liability company ("NSC"), and KEOKUK SHOPPING CENTER LLC, a Delaware limited liability
company ("KSC"; TCSC, OSC, NSC and KSC, jointly and severally, "Mortgagor"), and KEYBANK
NATIONAL ASSOCIATION, a national banking association ("Mortgagee").
Preliminary Statement
A.
Mortgagee and The Spectra Group, Inc., a Tennessee corporation ("Spectra"),
and JeffH. Farmer, Jr., an individual ("J. Farmer"; Spectra and J. Farmer, jointly and severally
"Developer"), entered into a Master Construction Loan Agreement dated as of December 8, 2005, as
amended by First Amendment to Master Construction Loan Agreement dated as of June 30, 2006, Second
Amendment to Master Construction Loan Agreement dated as of October 10, 2006, Third Amendment to
Master Construction Loan Agreement dated as of July 18, 2007, and Fourth Amendment to Master
Construction Loan Agreement dated as of October 10, 2007 (collectively, the "Master Loan Agreement"),
pursuant to which Mortgagee agreed to make credit available to certain entities designated by the
Developer.
B.
Pursuant to the Master Loan Agreement, Mortgagee extended a loan to
Cedartown LLC, a Delaware limited liability company ("Original Borrower") in the aggregate original
principal amount of up to Three Million Eight Hundred Thousand and N0/100 Dollars ($3,800,000.00),
which loan is evidenced by a Promissory Note dated as of August 4, 2006 by Original Borrower to
Mortgagee in the maximum principal amount of Three Million Five Hundred Ninety Thousand and
NO/I 00 Dollars ($3,590,000.00) and a Promissory Note dated as of August 4, 2006 by Original
Borrower to Mortgagee in the maximum principal amount of Two Hundred Ten Thousand and N0/100
Dollars ($210,000.00) (jointly and severally, the "Note") and by a Project Agreement dated as of August
4, 2006 between Original Borrower and Mortgagee (the "Loan Agreement").
C.
As security for the Note, among other things, Original Borrower executed and
delivered to Mortgagee a Mortgage, Assignment Of Rents, Security Agreement And Fixture Filing dated
Page 1 of7

EXHIBIT 24

SOOK

l ~i 4 0 PAGE 011 :!

August 4, 2006, and recorded on August 9, 2006 in the public records of Polk County, Georgia at Deed
Book 1172, Page 1 (the "Mortgage"), which Mortgage encumbers, among other things, real property more
fully described in Exhibit A hereto.
D.
Mortgagor assumed all of Original Borrower's obligations and liabilities under
the Note, the Loan Agreement, the Original Mortgage and all other documents and instruments
evidencing the Master Loan pursuant to the Transferee Agreement by and among Mortgagor, Original
Borrower and Mortgagee dated as of August 22, 2006 and recorded September 7, 2006 in the public
records of Polk County, Georgia at Deed Book 1177, Page 344 and the Loan Assumption Agreement by
and among Mortgagor and Original Borrower dated as of August 22, 2006 and recorded September 7,
2006 in the public records of Polk County, Georgia at Deed Book 1177, Page 357.
E.
The term of the Note has matured and Mortgagor has requested that Mortgagee
extend the term of the Note.
F.
Mortgagee has agreed to extend the term of the Note pursuant to the Fifth
Amendment to Master Loan Agreement dated as of April15, 2009 (the "Fifth Amendment"), which Fifth
Amendment requires, among other things, the execution and delivery by Mortgagor and each other
Borrower (as defined in the Master Loan Agreement) of an extension, increase and modification ofthe
Note pursuant to the three Amended and Restated Promissory Notes in the original aggregate principal
amount of up to Seventy Million Four Hundred Sixty-One Thousand Five Hundred and N0/100 Dollars
($70,461,500.00) (the "Amended Master Note"; the loan evidenced by the Note, as amended and restated
by the Amended and Restated Note, the "Master Loan").
G.
Pursuant to the Loan Agreement dated as of the date hereof between Mortgagee
and Spectra (the "Swap Termination Loan Agreement"), Mortgagee has made an additional loan to
Spectra in the original principal amount of up to Two Million Six Hundred Twenty-Five Thousand
Dollars ($2,625,000.00) (the "Swap Termination Loan"), which loan is evidenced by a Term Note dated
as ofthe date hereof from Spectra to Mortgagee (the "Swap Termination Note").
H.
The principal amount of the Swap Termination Loan will be used by Spectra to
pay the amount due by Spectra on the early termination of the rate swap transaction pursuant to the
Confirmation dated March 19, 2009 to the ISDA Master Agreement dated November 22,2005 between
Mortgagee and Spectra. Mortgagor was a beneficiary of the rate swap transaction in connection with the
Note and has authorized and directed Spectra to terminate the rate swap transaction in connection with the
execution and delivery of this Amendment.
I.
As a condition to Mortgagee's execution and delivery of the Fifth Amendment
and Mortgagee's making of the Swap Termination Loan to Spectra, Mortgagee is requiring the execution
and delivery by Mortgagor of this Amendment.

NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Mortgagor and Mortgagee hereby agree as follows:
1.
Definitions. All capitalized terms used herein shall have the respective meanings
ascribed to them in the Mortgage unless otherwise defined herein.
2.
Amendment to Mortgage. (a) All references in the Mortgage to the Note or the
Notes shall be to, jointly and severally, the Amended Master Note and the Swap Termination Note,
together with all modifications and/or amendments thereto.

Page 2 of7

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l :~ 4 0 PAGE 0 1l4

(b)
All references in the Mortgage to the Loan shall be to, jointly and
severally, the Master Loan and the Swap Termination Loan.
(c)
All references in the Mortgage to the Loan Agreement shall be to, jointly
and severally, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan Agreement
and the Swap Termination Loan Agreement, together with all modifications and/or amendments thereto.
(d)
All references in the Mortgage to the Loan Documents shall be to, jointly
and severally, the Mortgage, as amended hereby, the Amended Master Note, the Swap Termination Note,
the Master Loan Agreement, as amended by the Fifth Amendment, the Loan Agreement, the Swap
Termination Loan Agreement and all other documents executed in connection with the Master Loan and
the Swap Termination Loan, together with all modifications and/or amendments thereto.
(e)
Section 7.13 of the Mortgage is amended to increase the maximum
principal amount secured by the Mortgage from Three Million Eight Hundred Thousand and NOll 00
Dollars ($3,800,000.00) to Seventy-Three Million Ninety-Six Thousand Five Hundred and N0/100
Dollars ($73,096,500.00), together with interest and all other amounts secured thereby.

(f)
The Maturity Date for the Amended Mater Note is extended from August
3, 2008 to July 15, 2010, and the Maturity Date may be further extended, pursuant to the terms of the
Fifth Amendment, to January 15, 2012. The Maturity Date for the Swap Termination Note is June 30,
2011.
(g)
Section 1.2 of the Mortgage is amended to add the following to the
definition of Secured Obligations:
(ix)
Payment and performance of all obligations of Farmer,
Spectra and Mortgagor, as applicable, under the Master Loan Agreement, as amended by
the Fifth Amendment, the Amended Master Note, the Swap Termination Loan
Agreement and the Swap Termination Note, in each case together with all modifications
and/or amendments thereof, and under any judgment or other obligation of Farmer,
Spectra and Mortgagor, as applicable (including, without limitation, an obligation to pay
a deficiency), with respect to the Secured Obligations.
(g)

The following is added as a new Section 7.19 of the Mortgage:

Section 7.19
Mortgagee's Rights Not Affected by Changes to Other
Documents. Mortgagor agrees that Mortgagee's rights under this Mortgage shap not be
impaired or affected by any renewals or extensions which may be made from time to
time, with or without the knowledge or consent of Mortgagor, of the time for payment of
interest or principal under the Note or by any forbearance or delay in collecting interest
or principal under the Note, or by any waiver by Mortgagee under the Loan Agreement or
any other Loan Document, or by Mortgagee's failure or election not to pursue any other
remedies it may have against Developer or any other Borrower, or by any change or
modification in the Note, the Loan Agreement or any other Loan Document, or by the
acceptance by Mortgagee of any additional security or any increase, substitution or
change therein, or by the release by Mortgagee of any security or any withdrawal thereof
or decrease therein, or by the application of payments received from any source to the
payment of any obligation other than the indebtedness due under the Note, even though
Mortgagee might lawfully have elected to apply such payments to any part or all of the
Indebtedness, it being the intent hereof that, subject to Mortgagee's compliance with the
Page 3 of7

BOOK. l ~l4 0 PAGE fJ "11 !1
terms of this Mortgage, Mortgagee's rights under this Mortgage shall remain in full force
and effect, notwithstanding any act or thing which might otherwise operate as a legal or
equitable discharge of a surety. Mortgagor further understands and agrees that
Mortgagee may at any time enter into agreements to amend and modify the Note, the
Loan Agreement or other Loan Documents, and may waive or release any provision or
provisions of the Note, the Loan Agreement or other Loan Documents or any thereof,
and, with reference to such instruments, may make and enter into any such agreement or
agreements as Mortgagee and the other party or parties to such documents or instruments
may deem proper and desirable, without in any manner impairing or affecting this
Mortgage or any of Mortgagee's rights hereunder or Mortgagor's obligations hereunder.
(h)

The following is added as a new Section 7.20 of the Mortgage:

Section 7.20
Jurisdiction. Mortgagor hereby irrevocably submits to
the non-exclusive jurisdiction of any state or federal court sitting in Georgia, or in any
state in which collateral for the Note is located, over any action or proceeding arising out
of or relating to the Master Loan, the Swap Termination Loan, this Mortgage or any other
Loan Document, and Mortgagor hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in any such state or federal court.
Mortgagor hereby waives any objection that it may now or hereafter have to the venue of
any such suit or any such court or that such suit is brought in an inconvenient court.
(i)

The following is added as a new Section 7.21 of the Mortgage:

Section 7.21
Inconsistencies with Respect to Release. In the event of
any conflict or inconsistency with respect to release of the Property between the terms of
(a) the Fifth Amendment and the Swap Termination Loan Agreement and (b) this
Mortgage, the terms ofthe Fifth Amendment and the Swap Termination Loan Agreement
shall control.
3.
Release of Mortgage. Mortgagor is entitled to the release of the Mortgage in
accordance with and upon the satisfaction of the conditions set forth in Section 12 of the Fifth
Amendment and the Swap Termination Loan Agreement.
4.
Representations, Warranties and Covenants. Mortgagor hereby represents,
warrants and covenants to Mortgagee that the outstanding principal amount of the Amended Master Note
is $69,870,099.00, that the Mortgage, as modified hereby, remains unmodified and in full force and effect
and that Mortgagor has no cause of action at law or in equity against Mortgagee or any person or entity
directly or indirectly holding an interest in the Master Loan or the Swap Termination Loan, including,
without limitation, any offset, counterclaim or defense with respect to the Amended Master Note, the
Swap Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement, the Swap Termination Loan Agreement, the Mortgage, as modified hereby, or any document
executed and delivered in connection therewith.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

Page 4 of7

BOOK
I

l :-:4 0 PAGE 0 1.lR

5.
Ratification; Joint and Several. Except as modified hereby, the Mortgage shall
remain unmodified and in full force and effect. Mortgagor hereby ratifies and confirms the Mortgage, as
modified hereby. The obligations of Mortgager under the Mortgage, as modified hereby, if there is more
than one Mortgagor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Mortgagee and
Mortgagor as of the day and year first above written.

SIGNED, SEALED AND DELIVERED IN

THE PRESENCE OF:!
.

~.£ki~Miu

PrintName: i3hJz/sh>Jc__ {!/4JZJ2/t/Z.

-

Print Name:

6ud {. yt:Jz
+
k
Bre..Vj

f:·.

S .foe.

TELL CITY SHOPPING CENTER LLC,
a Delaware limited liability company
Print Name:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By: _____________
Name: Jeff H. Farmer, Jr.
Title: Manager

Print Name:

OTTUMWA SHOPPING CENTER LLC,
a Delaware limited liability company
Print Name:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By: _____-:-:-:-=----------Name: JeffH. Farmer, Jr.
Title: Manager

Print Name:

NEWCASTLE SHOPPING CENTER LLC,
a Delaware limited liability company
Print Name:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:____~-=---------------­
Name: Jeff H. Farmer, Jr.
Title: Manager

Print Name:

Georgia, Polk County
·
[SIGNATURES CONTINUE ON FOLLOWING PAGif.~wn Office,this!:Lday ot~1/}nt..
Page 5 of7

20 , at l£.00 Recorded ;;;{;(r
Book13tfo Page liZ..

.j~ LJ~,Cierk

BOOK

l :~ 4 0 PAGE 0 11 7

5.
Ratification; Joint and Several. Except as modified hereby, the Mortgage shall
remain unmodified and in full force and effect. Mortgagor hereby ratifies and confirms the Mortgage, as
modified hereby. The obligations of Mortgager under the Mortgage, as modified hereby, if there is more
than one Mortgagor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Mortgagee and
Mortgagor as of the day and year first above written.
SIGNED, SEALED AND DELIVERED IN
THE PRESENCE OF:

Print Name:

Print Name:

KEYBANK NATIONAL ASSOCIATION,
a national banking association
By: _ _ _ _ _ _ _ _ _ __
Name: Kurt L. Reiber
Title: Senior Vice President
TELL CITY SHOPPING CENTER LLC,
a Delaware limited liability company

SHOPPING CENTER LLC,
a Delaware limited liability company
By:

NEW ASTLE SHOPPING CENTER LLC,
a Delaware limited liability company
By:

Print Name:

[SIGNATURES CONTINUE ON F
Page 5 of7

BOOK

l a4 0 PAGE f) 11 ~

5.
Ratification; Joint and Several. Except as modified hereby, the Mortgage shall
remain unmodified and in full force and effect. Mortgagor hereby ratifies and confirms the Mortgage, as
modified hereby. The obligations of Mortgager under the Mortgage, as modified hereby, if there is more
than one Mortgagor, are joint and several.

IN WITNESS WHEREOF, this Amendment has been duly executed by Mortgagee and
Mortgagor as of the day and year first above written.
SIGNED, SEALED AND
THE PRESENCE ·oF:

KEYBANK NATIONAL ASSOCIATION,
a national banking association

Print Name:

By:

J

Print Name:

Exhibit A -- Description of Land
577925.1

STATE OF OHIO
COUNTY OF HAMILTON

)
) SS:
)

The foregoing instrument was acknowledged before me this _ _ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalf thereof.
Notary Public
My Commission Expires:_ _ _ _ _ __
STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

.2&

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Dillon Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

~~~~~
Page 5 of5

BOOK

l :~ 4 0 PAGE 0 11 !t

KEOKUK SHOPPING CENTER LLC,
a Delaware limited liability company
Print Name:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By: _ _ _ _ _ _ _ _ __
Name: Jeff H. Farmer, Jr.
Title: Manager

Print Name:

Exhibit A -- Description of Land
577912.1

STATE OF OHIO
COUNTY OF HAMILTON

)
) SS:
)

k

The foregoing instrument was acknowledged before me this
day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on

~·
.
,,

thereof.
CHRISTINE CARRIER
Nofaly Nile, Stale

cia.

MyCommlsllonEipnl~

Notary ubhc
tf-,;2/~ :ZOJ)
My Commission Expires: _ _ _ _ _ __

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this _ _ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Tell City Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

Notary Public
My Commission Expires: _ _ _ _ _ __

(ACKNOWLEDGEMENTS CONTINUE ON FOLLOWING PAGE.]

Page 6 of7

BOOK · l :-: 4 0 PAGE 0 1 ~ ()
KEOKUK SHOPPING CENTER LLC,
a Delaware limited liability company

0g<MD

Print Name:

\b\-i-c&

7. •~

By:

;

Exhibit A -- Description of Land
577912.1

STATE OF OHIO

)

COUNTY OF HAMILTON

)

) SS:

The foregoing instrument was acknowledged before me this _ _ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalf thereof.

Notary Public
My Commission Expires: _ _ _ _ _ __

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

2!.£..

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Tell City Shopping Center LLC, a Delaware limited liability company, on be If ofth ompany.

My Commission Expires:_z/--'--'2----l,iJ'---(-4/_ _

[ACKNOWLEDGEMENTS CONTINUE ON FOLLOWING PAGE.]

Page 6 of7

C

~~c~,·~~=~o.-=

tt:,.RlSSA A. LEE
l\OTARY PUBLIC

j~.:~-~~~5>~~

BOOK
STATE OF COLORADO
COUNTY OF SAN MIGUEL

1:{ 40 PAGE 0 1 21

)
) SS:
)

The foregoing instrument was acknowledged before me this 1i.t_ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Ottumwa Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

~~#
My Commission Expires:

STATE OF COLORADO

)

COUNTY OF SAN MIGUEL

z/2_ ~;fj

) SS:
)

2J.L

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Newcastle Shopping Center LLC, a Delaware limited liability company, on behalf the company.

My Commission Expires:

STATE OF COLORADO
COUNTY OF SAN MIGUEL

2/20 /

)
) SS:
)

The foregoing instrument was acknowledged before me this 2./_p day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Keokuk Shopping Center LLC, a Delaware limited liability company, on behalf oft company.

My Commission

Page 7 of7

Expires:.......::.Z~/_Z___,I,t-;{_1~/--

EXHIBIT A

BOOK L. :-: 4 0 PAGE 0 12 ~

Description of Land

All that tract or parcel of land lying and being in Land Lots I075 and 1086 ofthe 2nd District,
4th Section, Polk County, Georgia, and being more particularly described as follows:
Commencing at the northwest comer of Land Lot 1075, said comer being common to Land Lots
1013, I014, 1075 and 1076; thence along the westerly land lot line of Land Lot 1075 the
following courses and distances South 00 degrees 27 minutes 05 seconds West, 99.88 feet to a
point; South 00 degrees 40 minutes 37 seconds West, 112.89 feet to a point; South 01 degrees 41
minutes 15 seconds West, 617.55 feet to a 5/8" capped rebar found, said point being the TRUE
POINT OF BEGINNING; thence leaving said westerly land lot line South 73 degrees 13 minutes
13 seconds East, 89.54 feet to a 5/8" capped rebar found; thence North 16 degrees 45 minutes 46
seconds East, 46.2I feet to a 5/8" capped rebar found; thence South 73 degrees 17 minutes 27
seconds East, 71.38 feet to a 5/8" capped rebar found; thence along a curve to the left, an arc
distance of 122.11 feet, said curve having a radius of76.50 feet and being subtended by a chord
of I 09.55 feet, at North 61 degrees 10 minutes 20 seconds East, to a 5/8" capped rebar found;
thence North 17 degrees 09 minutes 12 seconds East, 19.32 feet to a 5/8" capped rebar found;
thence along a curve to the right, an arc distance of 107.60 feet, said curve having a radius of
68.50 feet and being subtended by a chord of 96.87 feet, at North 6I degrees 50 minutes 0 I
seconds East, to a 5/8" capped rebar found; thence South 73 degrees 09 minutes 17 seconds East,
605.78 feet to a 5/8" capped rebar found; thence South 16 degrees 51 minutes 11 seconds West,
29.38 feet to a 5/8" capped rebar found; thence South 73 degrees 10 minutes 30 seconds East,
140.35 feet to a 5/8" capped rebar found; thence South 18 degrees 41 minutes 23 seconds West,
149.68 feet to a 5/8" capped rebar found; thence South 64 degrees 46 minutes 57 seconds East,
208.97 feet to a 5/8" capped rebar found on the westerly right-of-way of U.S. Highway 27
(variable right-of-way); thence along said westerly right-of-way and a curve to the right, an arc
distance of 148.67 feet, said curve having a radius of 4842.60 feet and being subtended by a
chord of 148.67 feet, at South 28 degrees 40 minutes 10 seconds West, to a 5/8" capped rebar
found; thence leaving said westerly right-of-way North 60 degrees 30 minutes 25 seconds West,
84.67 feet to a 5/8" capped rebar found; thence North 73 degrees 10 minutes 24 seconds West,
1107.27 feet to a 5/8" capped rebar found on the westerly land lot line of Land Lot 1075; thence
along said westerly land lot line North 01 degrees 38 minutes 29 seconds East, 128.51 feet to a
5/8" capped rebar found, said point being the TRUE POINT OF BEGINNING;
Said tract or parcel of land contains 7.620 acres and is more accurately depicted on a plat of
survey prepared by GeoSurvey, Ltd., dated January 31, 2006, job number 20052638.

Georgia, Polk Coun~
Filed in Office this-Lday of¥,2009 , at II: ro Recorded in Deed
Book /!1-lD Page I I 2..

.j ~ LJ~, Clerk

A-I

Return to:
GEORGE C. CALLOWAY, ESQ.
SPECIALIZED TITLE SERVICES, INC.
6133 PEACHTREE DUNWOODY ROAD NE
ATLANTA, GEORGIA 30328
[phone] STS FILE NO. \I 12. · ~ /<)

REC: S'/t.,/~
DATE: 1 .. &f·btJ
CHECK: 2/f~

TT:
PT:

B"OoK· f~: 4 0 PAGE fi 1!! ~

Please cross-reference to
Deed Book 1172, Page 30,
Records o~ Polk County,
Georgia.
FIRST AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS

This FIRST AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS (this
"Amendment"), is entered into as of the~day of June, 2009, by and between TELL CITY SHOPPING
CENTER LLC, a Delaware limited liability company ("TCSC"), OTTUMWA SHOPPING CENTER
LLC, a Delaware limited liability company ("OSC"), NEWCASTLE SHOPPING CENTER LLC, a
Delaware limited liability company ("NSC"), and KEOKUK SHOPPING CENTER LLC, a Delaware
limited liability company ("KSC"; TCSC, OSC, NSC and KSC, jointly and severally, "Assignor"), and
KEYBANK NATIONAL ASSOCIATION, a national banking association ("Assignee").
Preliminary Statement
A.
Assignee and The Spectra Group, Inc., a Tennessee corporation ("Spectra"), and
Jeff H. Farmer, Jr., an individual ("J. Farmer"; Spectra and J. Farmer, jointly and severally "Developer"),
entered into a Master Construction Loan Agreement dated as of December 8, 2005, as amended by First
Amendment to Master Construction Loan Agreement dated as of June 30, 2006, Second Amendment to
Master Construction Loan Agreement dated as of October 10, 2006, Third Amendment to Master
Construction Loan Agreement dated as of July 18, 2007 and Fourth Amendment to Master Construction
Loan Agreement dated as of October 10, 2007 (collectively, the "Master Loan Agreement"), pursuant to
which Assignee agreed to make credit available to certain entities designated by the Developer.
B.
Pursuant to the Master Loan Agreement, Assignee extended a loan to Cedartown
LLC, a Delaware limited liability company ("Original Borrower") in the aggregate original principal
amount of up to Three Million Eight Hundred Thousand and N0/100 Dollars ($3,800,000.00), which loan
is evidenced by a Promissory Note dated as of August 4, 2006 by Original Borrower to Assignee in the
maximum principal amount of Three Million Five Hundred Ninety Thousand and N0/100 Dollars
($3,590,000.00) and a Promissory Note dated as of August 4, 2006 by Original Borrower to Assignee in
the maximum principal amount ofTwo Hundred Ten Thousand and N0/100 Dollars ($210,000.00)
(jointly and severally, the "Note") and by a Project Agreement dated as of August 4, 2006 between
Original Borrower and Assignee (the "Loan Agreement").
C.
As security for the Note, among other things, Original Borrower executed and
delivered to Assignee (i) a Mortgage, Assignment Of Rents, Security Agreement And Fixture Filing dated
August 4, 2006, and recorded on August 9, 2006 in the public records of Polk County, Georgia at Deed
Book 1172, Page 1 (the "Original Mortgage"), as amended by First Amendment to Mortgage, Assignment
Of Rents, Security Agreement And Fixture Filing dated as of the date hereof, and to be recorded in the
public records of Polk County, Georgia prior to this Amendment (the Original Mortgage, as so amended,
the "Amended Mortgage"), and (ii) an Assignment of Leases and Rents dated August 4, 2006, and
recorded on August 9, 2006 in the public records of Polk County, Georgia at Deed Book 1172, Page 30
Page 1 of7

EXHIBIT 25

BOOK

l :-: 4 0 PAGE (112 4

(the "Assignment"), which Amended Mortgage and Assignment encumber, among other things, real
property more fully described in Exhibit A hereto.
D.
Assignor assumed all of Original Borrower's obligations and liabilities under the
Note, the Loan Agreement, the Original Mortgage, the Assignment and all other documents and
instruments evidencing the Master Loan pursuant to the Transferee Agreement by and among Assignor,
Original Borrower and Assignee dated as of August 22, 2006 and recorded September 7, 2006 in the
public records of Polk County, Georgia at Deed Book 1177, Page 344 and the Loan Assumption
Agreement by and among Assignor and Original Borrower dated as of August 22, 2006 and recorded
September 7, 2006 in the public records of Polk County, Georgia at Deed Book 1177, Page 357.
E.
The term of the Note has matured and Assignor has requested that Assignee
extend the term of the Note.
F.
Assignee has agreed to extend the term of the Note pursuant to the Fifth
Amendment to Master Loan Agreement dated as of April 15, 2009 (the "Fifth Amendment"), which Fifth
Amendment requires, among other things, the execution and delivery by Assignor and each other
Borrower (as defined in the Master Loan Agreement) of an extension, increase and modification ofthe
Note pursuant to the three Amended and Restated Promissory Notes in the original aggregate principal
amount of up to Seventy Million Four Hundred Sixty-One Thousand Five Hundred and N0/100 Dollars
($70,461,500.00) (the "Amended Master Note"; the loan evidenced by the Note, as amended and restated
by the Amended and Restated Note, the "Master Loan").
G.
Pursuant to the Loan Agreement dated as of the date hereof between Assignee
and Spectra (the "Swap Termination Loan Agreement"), Assignee has made an additional loan to Spectra
in the original principal amount of up to Two Million Six Hundred Twenty-Five Thousand Dollars
($2,625,000.00) (the "Swap Termination Loan"), which loan is evidenced by a Term Note dated as of the
date hereof from Spectra to Assignee (the "Swap Termination Note").
H.
The principal amount of the Swap Termination Loan will be used by Spectra to
pay the amount due by Spectra on the early termination of the rate swap transaction pursuant to the
Confirmation dated March 19, 2009 to the ISDA Master Agreement dated November 22, 2005 between
Assignee and Spectra. Assignor was a beneficiary of the rate swap transaction in connection with the
Note and has authorized and directed Spectra to terminate the rate swap transaction in connection with the
execution and delivery of this Amendment.
I.
As a condition to Assignee's execution and delivery of the Fifth Amendment and
Assignee's making of the Swap Termination Loan to Spectra, Assignee is requiring the execution and
delivery by Assignor of this Amendment.

NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
1.
Definitions. All capitalized terms used herein shall have the respective meanings
ascribed to them in the Assignment unless otherwise defined herein.
2.
Amendment to Assignment. (a) All references in the Assignment to the Note or
the Notes shall be to, jointly and severally, the Amended Master Note and the Swap Termination Note,
together with all modifications and/or amendments thereto.

Page 2 of7

BOOK

t ~-: 4 0 PAGE (J 1~ ;.;

(b)
All references in the Assignment to the Loan shall be to, jointly and
severally, the Master Loan and the Swap Termination Loan.
(c)

All references in the Assignment to the Mortgage shall be to the

Amended Mortgage.
(d)
All references in the Assignment to the Loan Agreement shall be to,
jointly and severally, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement and the Swap Termination Loan Agreement, together with all modifications and/or
amendments thereto.
(e)
All references in the Assignment to the Loan Documents shall be to,
jointly and severally, the Assignment, as amended hereby, the Amended Master Note, the Swap
Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Amended
Mortgage, the Loan Agreement, the Swap Termination Loan Agreement and all other documents
executed in connection with the Master Loan and the Swap Termination Loan, together with all
modifications and/or amendments thereto.

(f)

The following is added as a new Section 22 of the Assignment:

22.
Assignee's Rights Not Affected by Changes to Other Documents.
Assignor agrees that Assignee's rights under this Assignment shall not be impaired or
affected by any renewals or extensions which may be made from time to time, with or
without the knowledge or consent of Assignor, of the time for payment of interest or
principal under the Note or by any forbearance or delay in collecting interest or principal
under the Note, or by any waiver by Assignee under the Loan Agreement or any other
Loan Document, or by Assignee's failure or election not to pursue any other remedies it
may have against Developer or any other Borrower, or by any change or modification in
the Note, the Loan Agreement or any other Loan Document, or by the acceptance by
Assignee of any additional security or any increase, substitution or change therein, or by
the release by Assignee of any security or any withdrawal thereof or decrease therein, or
by the application of payments received from any source to the payment of any obligation
other than the indebtedness due under the Note, even though Assignee might lawfully
have elected to apply such payments to any part or all of the Indebtedness, it being the
intent hereof that, subject to Assignee's compliance with the terms of this Assignment,
Assignee's rights under this Assignment shall remain in full force and effect,
notwithstanding any act or thing which might otherwise operate as a legal or equitable
discharge of a surety. Assignor further understands and agrees that Assignee may at any
time enter into agreements to amend and modify the Note, the Loan Agreement or other
Loan Documents, and may waive or release any provision or provisions of the Note, the
Loan Agreement or other Loan Documents or any thereof, and, with reference to such
instruments, may make and enter into any such agreement or agreements as Assignee and
the other party or parties to such documents or instruments may deem proper and
desirable, without in any manner impairing or affecting this Assignment or any of
Assignee's rights hereunder or Assignor's obligations hereunder.
(h)

The following is added as a new Section 23 of the Assignment:

23.
Jurisdiction. Assignor hereby irrevocably submits to the nonexclusive jurisdiction of any state or federal court sitting in Georgia, or in any state in
which collateral for the Note is located, over any action or proceeding arising out of or
Page 3 of7

fiOOK

l :·: 4 0PAGE 012 Master Loan, the Swap Termination Loan, this Assignment or any other
f)
relating ~o the
Loan Document, and Assignor hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in any such state or federal court.
Assignor hereby waives any objection that it may now or hereafter have to the venue of
any such suit or any such court or that such suit is brought in an inconvenient court.

3.
Release of Assignment. Assignee is entitled to the release of the Assignment in
accordance with and upon the satisfaction of the conditions set forth in Section 12 of the Fifth
Amendment and the Swap Termination Loan Agreement.
4.
Representations, Warranties and Covenants. Assignor hereby represents,
warrants and covenants to Assignee that the outstanding principal amount of the Amended Master Note is
$69,870,099.00, that the Assignment, as modified hereby, remains unmodified and in full force and effect
and that Assignor has no cause of action at law or in equity against Assignee or any person or entity
directly or indirectly holding an interest in the Master Loan or the Swap Termination Loan, including,
without limitation, any offset, counterclaim or defense with respect to the Amended Master Note, the
Swap Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement, the Swap Termination Loan Agreement, the Amended Mortgage, the Assignment, as
modified hereby, or any document executed and delivered in connection therewith.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

Page 4 of7

BOOK

i :-: 4 0 PAGE 0 12 7

5.
Ratification; Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in fuiJ force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, ifthere is more
than one Assignor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.
SIGNED, SEALED AND DELNERED IN

THE::JNCE~

~ttuW:;

Print Name:

Ducisb A;e {!peel e_J?_

~~-K_ytz
· Print Name:

..t?ra. n

f £.

5/, c.. k:.
Title:

e
Senior Vice President

TELL CITY SHOPPING CENTER LLC,
a Delaware limited liability company
Print Name:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:.~--~~~~--~~---­
Name: JeffH. Farmer, Jr.
Title: Manager

Print Name:

OTTUMWA SHOPPING CENTER LLC,
a Delaware limited liability company
Print Name:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:____________________
Name: Jeff H. Farmer, Jr.
Title: Manager

Print Name:

NEWCASTLE SHOPPING CENTER LLC,
a Delaware limited liability company
Print Name:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By: _ _ _ _ _ _ _ _ _ _ __
Name: Jeff H. Farmer, Jr.
n
.
p
Title: Manager

Print Name:

lk C

ueorg1a, o

[SIGNATURES CONTINUE ON FOLLOWING PAGE.]

oun~

~

File~p Office this_ll_day ot

20

.~,~!IJ:ro

,.

Recorded in eed

Book /WHO Page I ;2.3
Page 5 of7

j ~

LJ.JJ.o, Clerk

BOOK

l :-: 4 0 PAGE 0 12 ~

5.
Ratification; Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, if there is more
than one Assignor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.
SIGNED, SEALED AND DELIVERED IN
THE PRESENCE OF:

Print Name:

Print Name:

KEYBANK NATIONAL ASSOCIATION,
a national banking association
By: _ _ _ _ _~:-:-----­
Name: Kurt L Reiber
Title: Senior Vice President

TELL CITY SHOPPING CENTER LLC,
a Delaware limited liability company
By:

~HAlllP-H>ffl""CENTER LLC,
a Delaware limited liability company

Page 5 of7

KEOKUK SHOPPING CENTER LLC,
a Delaware limited liability company
By:

Print Name:

Exhibit A-- Description of Land
577913.1

STATE OF OHIO

)

) SS:
COUNTY OF HAMU.,TON

)

The foregoing instrument was acknowledged before me this _ _ day of Juqe, 2009 by Kurt L.
Reiber, the Senior Vice President of Key Bank National Association, a national banking association, on
behalf thereof.

Notary Public
My Commission Expires: _ _ _ _ _ __

STATEOFCOLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this lft_ day of June, 2009, by Jeff H.
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Tell City Shopping Center LLC, a Delaware limited liability company, on behalf ofth company.

My Commission

Expires:_2---L/.:....2_17-.L/-I-J__
~

[ACKNOWLEDGEMENTS CONTINUE ON FOLLOWING PAGE.]

Page 6 of7

BOOK

l ~) 4 0 PAGE 0 13 0
KEOKUK SHOPPING CENTER LLC,
a Delaware limited liability company

Print Name:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:____________________

Print Name:

Name: Jeff H. Farmer, Jr.
Title: Manager

Exhibit A -- Description of Land
577913.1

STATE OF OHIO

)

COUNTY OF HAMILTON

) SS:
)

The foregoing instrument was acknowledged before me this ~ day of JuQe, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on

.4~~•Athereof. aRSIIIEr.eMER

~ ~
Notary Public

- -S1alefi0No
My Qmnlsslan Expinls 08-21.a11

My Commission Expires:

STATEOFCOLORADO
COUNTY OF SAN MIGUEL

9-:2/- 2DI/

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Tell City Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

Notary Public
My Commission Expires: ____________

[ACKNOWLEDGEMENTS CONTINUE ON FOLLOWING PAGE.]

Page 6 of7

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

X

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Ottumwa Shopping Center LLC, a Delaware limited liability company, on behalf of the ompany.

My Commission Expires:_2_A_2---J-v1--'-f.;_l_

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this~ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Newcastle Shopping Center LLC, a Delaware limited liability company, o ehalf fthe company.

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this?/ A day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware !intitediiability company, Manager of
Keokuk Shopping Center LLC, a Delaware limited liability company, on behalf of the ompany.

My Commission Expires:

Page 7 of7

,_pl!tJ
I

EXHIBIT A

BOOK

l ~14 0 PAGE 0 13 2

Description of Land

All that tract or parcel of land lying and being in Land Lots 1075 and 1086 ofthe 2nd District,
4th Section, Polk County, Georgia, and being more particularly described as follows:
Commencing at the northwest comer of Land Lot 1075, said comer being common to Land Lots
1013, 1014, 1075 and 1076; thence along the westerly land lot line of Land Lot 1075 the
following courses and distances South 00 degrees 27 minutes 05 seconds West, 99.88 feet to a
point; South 00 degrees 40 minutes 37 seconds West, 112.89 feet to a point; South 01 degrees 41
minutes 15 seconds West, 617.55 feet to a 5/8" capped rebar found, said point being the TRUE
POINT OF BEGINNING; thence leaving said westerly land lot line South 73 degrees 13 minutes
13 seconds East, 89.54 feet to a 5/8" capped rebar found; thence North 16 degrees 45 minutes 46
seconds East, 46.21 feet to a 5/8'' capped rebar found; thence South 73 degrees 17 minutes 27
seconds East, 71.38 feet to a 5/8" capped rebar found; thence along a curve to the left, an arc
distance of 122.11 feet, said curve having a radius of 76.50 feet and being subtended by a chord
of 109.55 feet, at North 61 degrees 10 minutes 20 seconds East, to a 5/8" capped rebar found;
thence North 17 degrees 09 minutes 12 seconds East, 19.32 feet to a 5/8" capped rebar found;
thence along a curve to the right, an arc distance of 107.60 feet, said curve having a radius of
68.50 feet and being subtended by a chord of96.87 feet, at North 61 degrees 50 minutes 01
seconds East, to a 5/8" capped rebar found; thence South 73 degrees 09 minutes 17 seconds East,
605.78 feet to a 5/8" capped rebar found; thence South 16 degrees 51 minutes 11 seconds West,
29.38 feet to a 5/8" capped rebar found; thence South 73 degrees 10 minutes 30 seconds East,
140.35 feet to a 5/8" capped rebar found; thence South 18 degrees 41 minutes 23 seconds West,
149.68 feet to a 5/8" capped rebar found; thence South 64 degrees 46 minutes 57 seconds East,
208.97 feet to a 5/8" capped rebar found on the westerly right-of-way of U.S. Highway 27
(variable right-of-way); thence along said westerly right-of-way and a curve to the right, an arc
distance of 148.67 feet, said curve having a radius of 4842.60 feet and being subtended by a
chord of 148.67 feet, at South 28 degrees 40 minutes 10 seconds West, to a 5/8" capped rebar
found; thence leaving said westerly right-of-way North 60 degrees 30 minutes 25 seconds West,
84.67 feet to a 5/8" capped rebar found; thence North 73 degrees 10 minutes 24 seconds West,
1107.27 feet to a 5/8" capped rebar found on the westerly land lot line of Land Lot 1075; thence
along said westerly land lot line North 01 degrees 38 minutes 29 seconds East, 128.51 feet to a
5/8" capped rebar found, said point being the TRUE POINT OF BEGINNING;
Said tract or parcel of land contains 7.620 acres and is more accurately depicted on a plat of
survey prepared by GeoSurvey, Ltd., dated January 31, 2006, job number 20052638.

Georgia, Polk County
Filed in Office this!Lday of~.
200!1.. at LLlX) Recorded irl01ed
Book/:3'1D Page /~3

6 ~ W.Jlo, Clerk

A-1

FILED ROCKINGHAM COUNTY, NC REBECCA B. CIPRIANI, REGISTER OF DEEDS 9/3/2009
2:01:56 PM BOOK 1381 PAGE 2214 - 2221 INSTRUMENT #20090009155
Recording:$33.00 Probate:$2.00
SJULIAN

PREPARED OUT OF STATE

Stephen M. King, Esq.
Thompson Hine LLP
312 Walnut Street, 14th Floor
Cincinnati, OH 45202

MAXIMUM PRINCIPAL
AMOUNT SECURED HEREBY:
$73,096,500.00
AFTER RECORDING RKI'llKN I U: ~1!:X'-L~.Jil !'!.'
I :mdAnh~TIC~l l.nwy"rs Tnk Insurance
P. O.llo~309
C)C/• ~
RakigiJ. :-JC 27602
0 1-r <:..JU

I0

.
7

FIRST AMENDMENT TO CONSTRUCTION DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
This FIRST AMENDMENT TO CONSTRUCTION DEED OF TRUST, ASSIGNMENT
OF REN,TS, SECURITY AGREEMENT AND FIXTURE FILING (this "Amendment"), is entered into as
ofthe~'ll!>aay of June, 2009, by and between EDEN SHOPPING CENTER LLC, a Delaware limited
liability company ("Mortgagor"), LA WYERS TITLE INSURANCE CORPORATION, as Trustee, and
KEYBANK NATIONAL ASSOCIATION, a national banking association ("Mortgagee").
Preliminacy Statement
A.
Mortgagee and The Spectra Group, Inc., a Tennessee corporation ("Spectra"),
and Jeff H. Farmer, Jr., an individual ("J. Farmer"; Spectra and J. Farmer, jointly and severally
"Developer"), entered into a Master Construction Loan Agreement dated as of December 8, 2005, as
amended by First Amendment to Master Construction Loan Agreement dated as of June 30, 2006, Second
Amendment to Master Construction Loan Agreement dated as of October I 0, 2006, Third Amendment to
Master Construction Loan Agreement dated as of July 18, 2007, and Fourth Amendment to Master
Construction Loan Agreement dated as of October 10,2007 (collectively, the "Master Loan Agreement"),
pursuant to which Mortgagee agreed to make credit available to certain entities designated by the
Developer.
B.
Pursuant to the Master Loan Agreement, Mortgagee extended a loan to
Mortgagor in the original principal amount of up to Two Million Five Hundred Twelve Thousand Five
Hundred and 00/100 Dollars ($2,512,500.00), which loan is evidenced by a Promissory Note dated as of
August 3, 2005 from Mortgagor to Mortgagee (the "Note") and by a Construction Loan Agreement dated
as of August 3, 2005 between Mortgagor and Mortgagee (as amended, the "Loan Agreement").
C.
As security for the Note, among other things, Mortgagor executed and delivered
Lawyers Title Insurance Corporation as Trustee for the benefit of Mortgagee a Construction Deed Of
Trust, Assignment Of Rents, Security Agreement And Fixture Filing dated August 3, 2005, and recorded
on August 8, 2005 in the public records of Rockingham County, North Carolina at Book I252, Page 483
Page I of6

EXHIBIT 26

BK: 1381 PG: 2215

(the "Mortgage"), which Mortgage encumbers, among other things, real property more fully described in
Exhibit A hereto.
D.
The term of the Note has matured and Mortgagor has requested that Mortgagee
extend the term of the Note.
E.
Mortgagee has agreed to extend the term of the Note pursuant to the Fifth
Amendment to Master Loan Agreement dated as of April 15, 2009 (the "Fifth Amendment"), which Fifth
Amendment requires, among other things, the execution and delivery by Mortgagor and each other
Borrower (as defined in the Master Loan Agreement) of an extension, increase and modification of the
Note pursuant to three Amended and Restated Promissory Notes in the aggregate original principal
amount of up to Seventy Million Four Hundred Sixty-One Thousand Five Hundred and NO/I 00 Dollars
($70,461 ,500.00) (the "Amended Master Note"; the loan evidenced by the Note, as amended and restated
by the Amended and Restated Note, the "Master Loan").
F.
Pursuant to the Loan Agreement dated as of the date hereof between Mortgagee
and Spectra (the "Swap Termination Loan Agreement"), Mortgagee has made an additional loan to
Spectra in the original principal amount of up to Two Million Six Hundred Twenty-Five Thousand
Dollars ($2,625,000.00) (the "Swap Termination Loan"), which loan is evidenced by a Term Note dated
as of the date hereof from Spectra to Mortgagee (the "Swap Termination Note").
G.
The principal amount of the Swap Termination Loan will be used by Spectra to
pay the amount due by Spectra on the early termination of the rate swap transaction pursuant to the
Confirmation dated March 19, 2009 to the ISDA Master Agreement dated November 22, 2005 between
Mortgagee and Spectra. Mortgagor was a beneficiary of the rate swap transaction in connection with the
Note and has authorized and directed Spectra to terminate the rate swap transaction in connection with the
execution and delivery of this Amendment.
H.
As a condition to Mortgagee's execution and delivery of the Fifth Amendment
and Mortgagee's making of the Swap Termination Loan to Spectra, Mortgagee is requiring the execution
and delivery by Mortgagor of this Amendment.
NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Mortgagor and Mortgagee hereby agree as follows:
I.
Definitions. All capitalized terms used herein shall have the respective meanings
ascribed to them in the Mortgage unless otherwise defined herein.
2.
Amendment to Mortgage. (a) All references in the Mortgage to the Note or the
Notes shall be to, jointly and severally, the Amended Master Note and the Swap Termination Note,
together with all modifications and/or amendments thereto.
(b)
All references in the Mortgage to the Loan shall be to, jointly and
severally, the Master Loan and the Swap Termination Loan.
(c)
All references in the Mortgage to the Loan Agreement shall be to, jointly
and severally, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan Agreement
and the Swap Termination Loan Agreement, together with all modifications and/or amendments thereto.
(d)
A II references in the Mortgage to the Loan Documents shall be to, jointly
and severally, the Mortgage, as amended hereby, the Amended Master Note, the Swap Termination Note,
Page2 of6

BK: 1381 PG: 2216

the Master Loan Agreement, as amended by the Fifth Amendment, the Loan Agreement, the Swap
Termination Loan Agreement and all other documents executed in connection with the Master Loan and
the Swap Termination Loan, together with all modifications and/or amendments thereto.
(e)
Section 8.13 of the Mortgage is amended to increase the maximum
principal amount secured by the Mortgage from Two Million Five Hundred Twelve Thousand Five
Hundred and 00/100 Dollars ($2,512,500.00) to Seventy-Three Million Ninety-Six Thousand Five
Hundred and NO/! 00 Dollars ($73,096,500.00), together with interest and all other amounts secured
thereby.
(f)
Section 1.2 of the Mortgage is amended to add the following to the
definition of Secured Obligations:

(ix)
Payment and performance of all obligations of Farmer,
Spectra and Mortgagor, as applicable, under the Master Loan Agreement, as amended by
the Fifth Amendment, the Amended Master Note, the Swap Termination Loan
Agreement and the Swap Termination Note, in each case together with all modifications
and/or amendments thereof, and under any judgment or other obligation of Farmer,
Spectra and Mortgagor, as applicable (including, without limitation, an obligation to pay
a deficiency), with respect to the Secured Obligations.
(g)

The following is added as a new Section 8.19 of the Mortgage:

Section 8.19
Mortgagee's Rights Not Affected by Changes to Other
Documents. Mortgagor agrees that Mortgagee's rights under this Mortgage shall not be
impaired or affected by any renewals or extensions which may be made from time to
time, with or without the knowledge or consent of Mortgagor, of the time for payment of
interest or principal under the Note or by any forbearance or delay in collecting interest
or principal under the Note, or by any waiver by Mortgagee under the Loan Agreement or
any other Loan Document, or by Mortgagee's failure or election not to pursue any other
remedies it may have against Developer or any other Borrower, or by any change or
modification in the Note, the Loan Agreement or any other Loan Document, or by the
acceptance by Mortgagee of any additional security or any increase, substitution or
change therein, or by the release by Mortgagee of any security or any withdrawal thereof
or decrease therein, or by the application of payments received from any source to the
payment of any obligation other than the indebtedness due under the Note, even though
Mortgagee might lawfully have elected to apply such payments to any part or all of the
Indebtedness, it being the intent hereof that, subject to Mortgagee's compliance with the
terms of this Mortgage, Mortgagee's rights under this Mortgage shall remain in full force
and effect, notwithstanding any act or thing which might otherwise operate as a legal or
equitable discharge of a surety. Mortgagor further understands and agrees that
Mortgagee may at any time enter into agreements to amend and modifY the Note, the
Loan Agreement or other Loan Documents, and may waive or release any provision or
provisions of the Note, the Loan Agreement or other Loan Documents or any thereof,
and, with reference to such instruments, may make and enter into any such agreement or
agreements as Mortgagee and the other party or parties to such documents or instruments
may deem proper and desirable, without in any manner impairing or affecting this
Mortgage or any of Mortgagee's rights hereunder or Mortgagor's obligations hereunder.
(h)

The following is added as a new Section 8.20 of the Mortgage:

Page 3 of6

Section 8.20
Jurisdiction. Mortgagor hereby irrevocably submits to
the non-exclusive jurisdiction of any state or federal court sitting in North Carolina, or in
any state in which collateral for the Note is located, over any action or proceeding arising
out of or relating to the Master Loan, the Swap Termination Loan, this Mortgage or any
other Loan Document, and Mortgagor hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in any such state or federal
court. Mortgagor hereby waives any objection that it may now or hereafter have to the
venue of any such suit or any such court or that such suit is brought in an inconvenient
court.
(i)

The following is added as a new Section 8.21 of the Mortgage:

Section 8.21
Inconsistencies with Respect to Release. In the event of
any conflict or inconsistency with respect to release of the Property between the terms of
(a) the Fifth Amendment and the Swap Termination Loan Agreement and (b) this
Mortgage, the terms of the Fifth Amendment and the Swap Termination Loan Agreement
shall control.
3.
Release of Mortgage. Mortgagor is entitled to the release of the Mortgage in
accordance with and upon the satisfaction of the conditions set forth in Section 12 of the Fifth
Amendment and the Swap Termination Loan Agreement.
4.
Representations. Warranties and Covenants. Mortgagor hereby represents,
warrants and covenants to Mortgagee that the outstanding principal amount of the Amended Master Note
is $69,870,099.00, that the Mortgage, as modified hereby, remains unmodified and in full force and effect
and that Mortgagor has no cause of action at law or in equity against Mortgagee or any person or entity
directly or indirectly holding an interest in the Master Loan or the Swap Termination Loan, including,
without limitation, any offset, counterclaim or defense with respect to the Amended Master Note, the
Swap Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement, the Swap Termination Loan Agreement, the Mortgage, as modified hereby, or any document
executed and delivered in connection therewith.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

Page 4 of6

5.
Ratification: Joint and Several. Except as modified hereby, the Mortgage shall
remain unmodified and in full force and effect. Mortgagor hereby ratifies and confirms the Mortgage, as
modified hereby. The obligations of Mortgager under the Mortgage, as modified hereby, if there is more
than one Mortgagor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Mortgagee and
Mortgagor as of the day and year first above written.
EDEN SHOPPING CENTER LLC,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:.~--~~~----~--­
Name: Jeff H. Farmer, Jr.
Title: Manager

Exhibit A - Description of Land
577949.1

STATE OF OHIO
COUNTY OF HAMILTON

)
) SS:
)

The foregoing instrument was acknowledged before me this 1:L_ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalf thereof.
/ ) /} .
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,

ctiUSTIECMRER
NallryNIIc, SllllofCIIIo

MyColnmllllanEI!phiN.at1

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Notary Public

My Commission Expires:

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5.
Ratification: Joint and Several. Except as modified hereby, the Mortgage shall
remain unmodified and in full force and effect. Mortgagor hereby ratifies and confinns the Mortgage, as
modified hereby. The obligations of Mortgager under the Mortgage, as modified hereby, ifthere is more
than one Mortgagor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Mortgagee and
Mortgagor as of the day and year first above written.
KEYBANK NATIONAL ASSOCIATION,
a national banking association

EDEN SHOPPING CENTER LLC,
a Delaware limited liability company

By:.~--~~~~-----­
Name: Kurt L. Reiber

By:

Title:

Senior Vice President

LA WYERS TITLE INSURANCE
CORPORATION, TRUSTEE

By:~~-------------Name:
Title:
Exhibit A -- Description of Land
577949.1

STATEOFOIDO
COUNTY OF HAMILTON

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalf thereof.
Notary Public
My Commission Expires:._ _ _ _ _ __

B

;

STATEOF _ _ _=---

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COUNTYOF~~~~--

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_._.~___,¥-o..:r-!i~~_;-a Notal)' Public of

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County, State of

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~!!«~~~~~~~personally came before me this day and acknowledged that
I
of Lawyers Title Insurance Corporation, and being authorized to do

so, execu

the foregoing on behalf of the corporation.

a;..
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a....,..t
Witness my hand and official seal, this the .3!: day of lutti, 2009
~
Notary Public

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this~ day of June, 2009, by Jeff H.
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Eden Shopping Center LLC, a Delaware limited liability company, on behalf of the com any.

My Commission Expires:.--""b~h~1.,_/-il'"fl--

7

Pagejof6

EXHIBIT A
Description of Land
EDEN SHOPPING CENTER LLC PROPERTY
PROPERTY OF OSBORNE INVESTMENTS, L.L.C.; ALL THAT catTAIN PAR.CEL OF ~ WITH
IMPROVEMENTS 'IHBREON, SfiUATED IN !HI! CITY.OP EDEN, LE.AKSVJLLE TOWN~~. COUNTY OF
R~GHAM. STATE OF NORTii CA:ROLINA, AND LYlNG NORTH OF A.RBOR LANE, EAST Of. PIERCE
STREET, AND WEST· OF SOUTHWOOD DIUVE,. BEING KNOWN AS TAX PARCEL 798906481295, MOJU;
PARTICULARLY BOUNDED AND DESCR:qlED AS FOLLOWS:
BEG!l\'NJNG AT AN EXISTING #S R.EBAR LYING lN 111E NORT.HE:RN RIGHT OF WAY OF .ARBOR LANE;
SAID POINT LIES S WOS'4S" W, s:z36.24'(GRID TIE • 5236.70' C.F."'l.0000880) FROM ANEXISTINc;i NORTH
CAROLINA GEODETIC SURVEY MONUMENT "CLUB"; THENCE Wini 11IE NORTJ:iERN RIGHT OF WAY OF
ARIJOR LANE AND THE EASTERN RIGHT OF WAY OF PIERCE STREET A CURVE TlJRNING TO !HE RIGlff
WITH A RADIUS OF20.00', WITH AN ARC LENGTH OF 31.27', WI!HA CHORD BEARING OF N 43°33'22" W,
WITH A CHORD LENGni OF 28.18' TO A NEW N5 REBAR SET, THENCE WITH THE EASTERN RIGHT OF
WAY OF PIERCE STREET Tim FOLLOWING CALLS N 0!0 14'17" E A DISTANCE OF 73.23' TO A NEW #5
RJlBAR SET; l'HENCE Win! A CURVE TURNING TO IHI! LEFT WJTIT A RA,DIUS OF 430.00', wrrH Al-l ARC
LENOn! OF 182.91', WlniACHORDBBA.lUNGOFN l0°S6'Sl"W, WlTiiACHORDLENGlliOF 18J.53'TOA
NEW NS l\EBAR SET, nmNCE Win! A CURVE TURNING TO -mE .LEFT WITH!< RADIUS OF 950.00', WITH
AN ARC LENOn! OF 87 .21', WITH A CHORD BEARJNO OF N 25°45'47" W, WlTH A CHORD LENGTH OF 87.lg'
TO A NEW #5 REBAll SET, THENCE N 28"23'35' W A DISTANCE OF 135.19' TO A NEW #S REBAll SET IN mE
EASTERN RIGHT OF WAY OF PIERCE STREET AND AT THE SOumwEST CORNER OF 11IE PROPERTY OF
MOREHEAD MEMORIAL HOSPITAL (DEED BOOK 1241 PAGE 1966); THENCE WITH THE SOUTHERI-l
PROPERTY LINE OF MOI.U!.HEA.D MEMORIAL HOSPITAL N 77°35'42" EA DISTANCE OF 341.25' TO AN
EXIS'IDlG #5 REBAR FOUND IN THE WES'I'EllN RIGHT OF WAY OF SOurHWOOD DRIVE; 'THENCE WITI·l
THE WESTERN RIGHT OP WAY OF SOUTHWOOD DR.M! A CURVE roRNlNG TO THE LEFT WITH A
RADIUS OF 950:00', WITH AN ARC LENGTii OF 502.46', WITH A CHORD BEARING OF S 26°20'40" E, WITH A
CHORD 'LENGni OF 496.62' TO A NEW #S REBAR SET, THENCE Win! -mE WESTERN RIGHT OF WAY Of
SOUTHWOOD DRIVE AND THE NORTHERN RIGHT OF WAY OF ARBOR LANE A CURVE l'Ul!NING TO TI·IE
IUGHT WITH A RADWS OF 20.00', Willi AN AllC LENGTII OF 3!.99'; WITH A CHORD BEARING OF S
04"19'20" W, wtlRA CHORD LENGTIIOF 28.69' TO AN EX.ISTING liS REBAR FOUND IN !HE NORTHERN
IUGHT OF WAY OF A.RBORLAN!, mENCE WITH THE NORTHERN RIGHT OF WAY OF ARBOR LANE A
CURVE TURNING TO IHI! RIGHT WITH A RADIUS OF 320.00', WITH AN ARC LENGTH OF 23 !.83', wmi A
CHORD BEARING OF S 70°53'43" W, wrm A CHORD LENGTH OF 2.26.79' TO AN EXISTING #5 REBAR
FOUND, THENCE N 88°21'02" W ADlSTANCE OF 182.79' 'roAN EXISTING ils REBAllFOUND; SAID #5
REBAR IS THE POINT AND PLACE OF BEGiNNJNG, F(AVD-IG AN AREA OF 179188.75 SQUARE FEET AND
4.116ACRES. .

A-1

FILED ROCKINGHAM COUNTY, NC REBECCA B. CIPRIANI, REGISTER OF DEEDS 9/3/2009
2:01:57 PM BOOK 1381 PAGE 2222 - 2227 INSTRUMENT #20090009156
Recording:$27.00 Probate:$2.00
SJULIAN

PREPARED OUT OF STATE

Stephen M. King, Esq.
Thompson Hine LLP
312 Walnut Street, 14th Floor
Cincinnati, OH 45202

AfTER RECORDING RKI"URN TO:

~·lt·.PIIA.,IL "'-~~'!

LandAml'rica Lawvcrs Title Insurance
1'. 0. Box 309

.
Raloigh. NC 27602

oe C(L..!Iift,O
0
p;::;

1

FIRST AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
This FIRST AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS (this
"Amendment"), is entered into as oftheJl,Hday of June, 2009, by and between EDEN SHOPPING
CENTER LLC, a Delaware limited liability company ("Assignor"), and KEYBANK NATIONAL
ASSOCIATION, a national banking association ("Assignee").
Preliminary Statement
A.
Assignee and The Spectra Group, Inc., a Tennessee corporation ("Spectra"), and
Jeff H. Fanner, Jr., an individual ("J. Farmer"; Spectra and J. Farmer, jointly and severally "Developer"),
entered into a Master Construction Loan Agreement dated as of December S, 2005, as amended by First
Amendment to Master Construction Loan Agreement dated as of June 30, 2006, Second Amendment to
Master Construction Loan Agreement dated as of October I 0, 2006, Third Amendment to Master
Construction Loan Agreement dated as of July IS, 2007 and Fourth Amendment to Master Construction
Loan Agreement dated as of October 10,2007 (collectively, the "Master Loan Agreement"), pursuant to
which Assignee agreed to make credit available to certain entities designated by the Developer.
B.
Pursuant to the Master Loan Agreement, Assignee extended a loan to Assignor in
the original principal amount of up to Two Million Five Hundred Twelve Thousand Five Hundred and
00/100 Dollars ($2,512,500.00), which loan is evidenced by a Promissory Note dated as of August 3,
2005 Assignor to Assignee (the "Note") and by a Construction Loan Agreement dated as of August 3,
2005 between Assignor and Assignee (as amended, the "Loan Agreement").
C.
As security for the Note, among other things, Assignor executed and delivered (i)
to Lawyers Title Insurance Corporation as Trustee for the benefit of Assignee, a Construction Deed Of
Trust, Assignment Of Rents, Security Agreement And Fixture Filing dated August 3, 2005, and recorded
on August S, 2005 in the public records of Rockingham County, North Carolina at Book 1252, Page 483,
as amended by First Amendment to Construction Deed Of Trust, Assignment Of Rents, Security
Agreement And Fixture Filing dated as of the date hereof, and to be recorded in the public records of
Rockingham County, North Carolina prior to this Amendment (collectively, the "Amended Mortgage"),
Page I of5

BK: 1381 PG: 2223

and (ii) to Assignee, an Assignment of Leases and Rents dated August 3, 2005, and recorded on August 8,
2005 in the public records of Rockingham County, North Carolina at Book 1252, Page 515 (the
"Assignment"), which Amended Mortgage and Assignment encumber, among other things, real property
more fully described in Exhibit A hereto.
D.
The term of the Note has matured and Assignor has requested that Assignee
extend the term of the Note.
E.
Assignee has agreed to extend the term of the Note pursuant to the Fifth
Amendment to Master Loan Agreement dated as of Aprill5, 2009 (the "Fifth Amendment"), which Fifth
Amendment requires, among other things, the execution and delivery by Assignor and each other
Borrower (as defined in the Master Loan Agreement) of an extension, increase and modification of the
Note pursuant to three Amended and Restated Promissory Notes in the aggregate original principal
amount of up to Seventy Million Four Hundred Sixty-One Thousand Five Hundred and N0/100 Dollars
($70,461,500.00) (the "Amended Master Note"; the loan evidenced by the Note, as amended and restated
by the Amended and Restated Note, the "Master Loan").
F.
Pursuant to the Loan Agreement dated as of the date hereof between Assignee
and Spectra (the "Swap Termination Loan Agreement"), Assignee has made an additional loan to Spectra
in the original principal amount of up to Two Million Six Hundred Twenty-Five Thousand Dollars
($2,625,000.00) (the "Swap Termination Loan"), which loan is evidenced by a Term Note dated as of the
date hereof from Spectra to Assignee (the "Swap Termination Note").
G.
The principal amount of the Swap Termination Loan will be used by Spectra to
pay the amount due by Spectra on the early termination of the rate swap transaction pursuant to the
Confirmation dated March 19,2009 to the ISDA Master Agreement dated November 22,2005 between
Assignee and Spectra. Assignor was a beneficiary of the rate swap transaction in connection with the
Note and has authorized and directed Spectra to terminate the rate swap transaction in connection with the
execution and delivery of this Amendment.
H.
As a condition to Assignee's execution and delivery of the Fifth Amendment and
Assignee's making of the Swap Termination Loan to Spectra, Assignee is requiring the execution and
delivery by Assignor of this Amendment.
NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
I.
Definitions. All capitalized terms used herein shall have the respective meanings
ascribed to them in the Assignment unless otherwise defined herein.
2.
Amendment to Assignment. (a) All references in the Assignment to the Note or
the Notes shall be to, jointly and severally, the Amended Master Note and the Swap Termination Note,
together with all modifications and/or amendments thereto.
(b)
All references in the Assi-gnment to the Loan shall be to, jointly and
severally, the Master Loan and the Swap Termination Loan.
(c)

All references in the Assignment to the Mortgage shall be to the

Amended Mortgage.

Page 2 of5

BK: 1381 PG: 2224

(d)
All references in the Assignment to the Loan Agreement shall be to,
jointly and severally, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement and the Swap Termination Loan Agreement, together with all modifications and/or
amendments thereto.
(e)
All references in the Assignment to the Loan Documents shall be to,
jointly and severally, the Assignment, as amended hereby, the Amended Master Note, the Swap
Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Amended
Mortgage, the Loan Agreement, the Swap Termination Loan Agreement and all other documents
executed in connection with the Master Loan and the Swap Termination Loan, together with all
modifications and/or amendments thereto.
(f)

The following is added as a new Section 22 of the Assignment:

22.
Assignee's Rights Not Affected by Changes to Other Documents.
Assignor agrees that Assignee's rights under this Assignment shall not be impaired or
affected by any renewals or extensions which may be made from time to time, with or
without the knowledge or consent of Assignor, of the time for payment of interest or
principal under the Note or by any forbearance or delay in collecting interest or principal
under the Note, or by any waiver by Assignee under the Loan Agreement or any other
Loan Document, or by Assignee's failure or election not to pursue any other remedies it
may have against Developer or any other Borrower, or by any change or modification in
the Note, the Loan Agreement or any other Loan Document, or by the acceptance by
Assignee of any additional security or any increase, substitution or change therein, or by
the release by Assignee of any security or any withdrawal thereof or decrease therein, or
by the application of payments received from any source to the payment of any obligation
other than the indebtedness due under the Note, even though Assignee might lawfully
have elected to apply such payments to any part or all of the Indebtedness, it being the
intent hereof that, subject to Assignee's compliance with the terms of this Assignment,
Assignee's rights under this Assignment shall remain in full force and effect,
notwithstanding any act or thing which might otherwise operate as a legal or equitable
discharge of a surety. Assignor further understands and agrees that Assignee may at any
time enter into agreements to amend and modify the Note, the Loan Agreement or other
Loan Documents, and may waive or release any provision or provisions of the Note, the
Loan Agreement or other Loan Documents or any thereof, and, with reference to such
instruments, may make and enter into any such agreement or agreements as Assignee and
the other party or parties to such documents or instruments may deem proper and
desirable, without in any manner impairing or affecting this Assignment or any of
Assignee's rights hereunder or Assignor's obligations hereunder.
(h)

The following is added as a new Section 23 of the Assignment:

23.
Jurisdiction. Assignor hereby irrevocably submits to the nonexclusive jurisdiction of any state or federal court sitting in North Carolina, or in any
state in which collateral for the Note is located, over any action or proceeding arising out
of or relating to the Master Loan, the Swap Termination Loan, this Assignment or any
other Loan Document, and Assignor hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in any such state or federal
court. Assignor hereby waives any objection that it may now or hereafter have to the
venue of any such suit or any such court or that such suit is brought in an inconvenient
court.
Page 3 ofS

S.
Ratification: Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, ifthere is more
than one Assignor, are joint and several.

IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first ab
written.
EDEN SHOPPING CENTER LLC,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware

limited liability company, its Manager
By:-=-=---=-==-=----,::---Name: JeffH. Farmer, Jr.
Title: Manager

Exhibit A -- Description of Land
577948.1

STATE OF OHIO
COUNTY OF HAMILTON

)
) SS:
)

The foregoing instrument was acknowledged before me this ~ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalfthereof.

·~

&~ t~

Notary Public

'!f.-oll - .;10//
My Commission Expires:_ _ _ _ _ __

STATEOFCOLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Eden Shopping Center LLC, a Delaware limited liability company, on behalf of the company.
Notary Public
My Commission Expires:._ _ _ _ _ __

PageS ofS

5.
Ratification: Joint and Severa}. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confinns the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, if there is more
than one Assignor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.
KEYBANK NATIONAL ASSOCIATION,
a national banking association

EDEN SHOPPING CENTER LLC,
a Delaware limited liability company

By:.~--~----~-----­
Name: Kurt L. Reiber
Title: Senior Vice President

By:

Exhibit A - Description of Land
577948.1

STATEOFOHIO
COUNTY OF HAMILTON

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalf thereof.
Notary Public
My Commission Expires:._ _ _ _ __

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this ;aJ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Eden Shopping Center LLC, a Delaware limited liability company, on behalf fthe comp y.

My Commission

Page 5 ofS

Expires:.__;::~:....f1.__z--"?!~A....J,..L/__
MARISSA A. LEE
NOTARY PUBLIC
STATE OF COLORADO

........,.,,

-

EXHIBIT A
Description of Land
EDEN SHOPPING CENTERLLC PROPERTY
PROPERlY OF OSBORNE Il'NES'I'MEN'IS, LL.C.; ALL 'mAT CERTAIN PARCEL OF LANP WlTii
IMPROVEMENTS mEREON, snuATED IN nil! CITY.OP EDEN, LlW<SVli..LE TOWN~, COUliTY OF
ROCKINGHAM, STATE OF NORTH CAltOLINA, AND LYIN'G NORTH OF ARBOR LANE. EAST OF· PIERCE
S'IREET, AND W!!ST·OF SOUTHWOOD DRIV1l,- BEING KNOWN AS TAX PARCEL 798906481295, MORE
PARTICULARLY BOUNDED AND DESC~ED AS FOLLOWS:
BEGII\'NlNGAT AN '£XISTING#S !UffiARLYING INTB:ENORTHE!Ul RIGHTOPWAYOF ARBOR LANE;
SA,!D POINT LIES S 14'05'45" W, SzJ6.24'(GRlD TIE a 5236.70' C.F... l.0000880) FROM AN :EXISTING WORTH
CAROLINA GEODETIC SUll.VEY MONUMENT "CLUB"; THENCE WITH THE NOR.TMERN RIGHT OF WAY OF
ARBOR LANE AND THE EASTERN RIGHT OF WAY OF PIERCE STREET A CUll.\IE TUl\NING TO rn:E RIGHT
WITH A RADIUS OF 20.00', WITH AN ARC LENGTH OF 31 J.7', W!IH A CHORD BEARING OF N 43'33'22" W,
WITH A CHORD l..ENGTH OF 28.18' TO A NEW #5 REBAR SET, ll:IENCE wm:r THE EASTERN RlGln' OF
WAY OF PIERCE STREET nil! FOLLOWING CALLS N 01"14'17" E A DISTANCE OF 73.23' TO A NEW #5
REBAR SET; THENCE WITH A CUll.VE 'J'URNING TO nil! LEFT WITil' A RADIUS OF 430.00', wrm: AN ARC
LENGTH OF 182.91', wmt A CHORD BEA;RING OF N 10'56'5 1" W, WlTH A CHORD LENGTH OP lSl.SJ' TO fl.
NEW N5 REBAR. SET, nmNCE WITH A CURVE TURNING TOniE LEFT WITH A RADIUS OF 950.00', WITH
AN ARC LENGTH OF 87.21', WITH A CHORD BEARING OF N 25'4S'47" W, WlT!i A CHORD LENGTH OF 87.18'
TO A NEW liS REBAR SilT, ll:IENCE N 28'23'35" W A DISTANCE OF 135.19' TO A NEW#5 REBAR SET IN mE
EASTERN RIGHT OF WAY OF PIERCE STREET AND AT 1RE SOtrmWl!ST CORNER. OF THE PROPERTY OF
MOREHEAD MEMORIAL HOSPITAL (DEED BOOK 1241 PAGE 1966); THENCE WITH 1RE SOU'l'RERN
PROPERlY LINt OF MOREl!EAD MEMORIAL HOSPITALN 77'35'42" E A DISTANCE OF 341.25' TO AN
EXISTING #S REBAR FOUND IN 1RE WESTERN RIGHT OF WAY OF SOUTI!WOOD DRtv:E; THENCE WITH
THE WESTERN RIGHT OF WAY OF SOUTHWOOD DRIVE A CUll.\IE TURNING TO THE LEFT WITH A
RADIUS OF 9So:OO', WITH AN AAC LBNGTII OF 502.46', Wl11i A CHORD BEARING OF S 26'20'40" E. WITH fl.
CHORD ·LENOn! OF 496.62' TO A NEW #S REBAR SET, nmNCE WITH 1RE WESTERN RIGHT OF WAY OF
SOU!HWOOD DRIVE AND THE NORnmRN RIGHT OF WAY OF ARJ30R LANE A CURVE l'tJRNING TO TI-lE
lUGHT WITH A RADIUS OF 20.00', Willi AN ARC LBNGTI! OF 31.99'; WITH A CHORD BEARING OF S
04'19'20" W, WITH A CHORD LENGTH OF 28.69' TO AN EXISTING #5 REBAR FOUND n-1 THE NOR.TfiERN
lUGHT OF WAY OF ARBOR LANE, THENCE WITH THE NORTHERN RIGHT OF WAY OF ARBOR LANE A
CURVE 'l'URNING TO n!:ERlGHT WITH A RADIUS OF 320.00', WITH AN ARC LENGTH OF 231.SJ', WITH A
CHORD BEARING OF S 70'53'43" W, WlTII A CHORD LENGTH OF 226.79' TO AN E:x:ISTING #S REBAR
FOUND, rn:ENCE N &8'21'02" W A DISTANCE OF 182.79' TO AN EXISTING #s REBAR FOUND; SA.lD #5
REBAR IS THE POINT AND PLACE OF BEGlNNING, HAVING AN AREA OF 179288.75 SQUARE FEET AND
4.116ACRES. .

A-I

FILED ROCKINGHAM COUNTY, NC REBECCA B. CIPRIANI, REGISTER OF DEEDS 9/3/2009
2:01:57 PM BOOK 1381 PAGE 2222 - 2227 INSTRUMENT #20090009156
Recording:$27.00 Probate:$2.00
SJULIAN

PREPARED OUT OF STATE

Stephen M. King, Esq.
Thompson Hine LLP
312 Walnut Street, 14th Floor
Cincinnati, OH 45202

AfTER RECORDING RKI"URN TO:

~·lt·.PIIA.,IL "'-~~'!

LandAml'rica Lawvcrs Title Insurance
1'. 0. Box 309

.
Raloigh. NC 27602

oe C(L..!Iift,O
0
p;::;

1

FIRST AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
This FIRST AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS (this
"Amendment"), is entered into as oftheJl,Hday of June, 2009, by and between EDEN SHOPPING
CENTER LLC, a Delaware limited liability company ("Assignor"), and KEYBANK NATIONAL
ASSOCIATION, a national banking association ("Assignee").
Preliminary Statement
A.
Assignee and The Spectra Group, Inc., a Tennessee corporation ("Spectra"), and
Jeff H. Fanner, Jr., an individual ("J. Farmer"; Spectra and J. Farmer, jointly and severally "Developer"),
entered into a Master Construction Loan Agreement dated as of December S, 2005, as amended by First
Amendment to Master Construction Loan Agreement dated as of June 30, 2006, Second Amendment to
Master Construction Loan Agreement dated as of October I 0, 2006, Third Amendment to Master
Construction Loan Agreement dated as of July IS, 2007 and Fourth Amendment to Master Construction
Loan Agreement dated as of October 10,2007 (collectively, the "Master Loan Agreement"), pursuant to
which Assignee agreed to make credit available to certain entities designated by the Developer.
B.
Pursuant to the Master Loan Agreement, Assignee extended a loan to Assignor in
the original principal amount of up to Two Million Five Hundred Twelve Thousand Five Hundred and
00/100 Dollars ($2,512,500.00), which loan is evidenced by a Promissory Note dated as of August 3,
2005 Assignor to Assignee (the "Note") and by a Construction Loan Agreement dated as of August 3,
2005 between Assignor and Assignee (as amended, the "Loan Agreement").
C.
As security for the Note, among other things, Assignor executed and delivered (i)
to Lawyers Title Insurance Corporation as Trustee for the benefit of Assignee, a Construction Deed Of
Trust, Assignment Of Rents, Security Agreement And Fixture Filing dated August 3, 2005, and recorded
on August S, 2005 in the public records of Rockingham County, North Carolina at Book 1252, Page 483,
as amended by First Amendment to Construction Deed Of Trust, Assignment Of Rents, Security
Agreement And Fixture Filing dated as of the date hereof, and to be recorded in the public records of
Rockingham County, North Carolina prior to this Amendment (collectively, the "Amended Mortgage"),
Page I of5

EXHIBIT 27

BK: 1381 PG: 2223

and (ii) to Assignee, an Assignment of Leases and Rents dated August 3, 2005, and recorded on August 8,
2005 in the public records of Rockingham County, North Carolina at Book 1252, Page 515 (the
"Assignment"), which Amended Mortgage and Assignment encumber, among other things, real property
more fully described in Exhibit A hereto.
D.
The term of the Note has matured and Assignor has requested that Assignee
extend the term of the Note.
E.
Assignee has agreed to extend the term of the Note pursuant to the Fifth
Amendment to Master Loan Agreement dated as of Aprill5, 2009 (the "Fifth Amendment"), which Fifth
Amendment requires, among other things, the execution and delivery by Assignor and each other
Borrower (as defined in the Master Loan Agreement) of an extension, increase and modification of the
Note pursuant to three Amended and Restated Promissory Notes in the aggregate original principal
amount of up to Seventy Million Four Hundred Sixty-One Thousand Five Hundred and N0/100 Dollars
($70,461,500.00) (the "Amended Master Note"; the loan evidenced by the Note, as amended and restated
by the Amended and Restated Note, the "Master Loan").
F.
Pursuant to the Loan Agreement dated as of the date hereof between Assignee
and Spectra (the "Swap Termination Loan Agreement"), Assignee has made an additional loan to Spectra
in the original principal amount of up to Two Million Six Hundred Twenty-Five Thousand Dollars
($2,625,000.00) (the "Swap Termination Loan"), which loan is evidenced by a Term Note dated as of the
date hereof from Spectra to Assignee (the "Swap Termination Note").
G.
The principal amount of the Swap Termination Loan will be used by Spectra to
pay the amount due by Spectra on the early termination of the rate swap transaction pursuant to the
Confirmation dated March 19,2009 to the ISDA Master Agreement dated November 22,2005 between
Assignee and Spectra. Assignor was a beneficiary of the rate swap transaction in connection with the
Note and has authorized and directed Spectra to terminate the rate swap transaction in connection with the
execution and delivery of this Amendment.
H.
As a condition to Assignee's execution and delivery of the Fifth Amendment and
Assignee's making of the Swap Termination Loan to Spectra, Assignee is requiring the execution and
delivery by Assignor of this Amendment.
NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
I.
Definitions. All capitalized terms used herein shall have the respective meanings
ascribed to them in the Assignment unless otherwise defined herein.
2.
Amendment to Assignment. (a) All references in the Assignment to the Note or
the Notes shall be to, jointly and severally, the Amended Master Note and the Swap Termination Note,
together with all modifications and/or amendments thereto.
(b)
All references in the Assi-gnment to the Loan shall be to, jointly and
severally, the Master Loan and the Swap Termination Loan.
(c)

All references in the Assignment to the Mortgage shall be to the

Amended Mortgage.

Page 2 of5

BK: 1381 PG: 2224

(d)
All references in the Assignment to the Loan Agreement shall be to,
jointly and severally, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement and the Swap Termination Loan Agreement, together with all modifications and/or
amendments thereto.
(e)
All references in the Assignment to the Loan Documents shall be to,
jointly and severally, the Assignment, as amended hereby, the Amended Master Note, the Swap
Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Amended
Mortgage, the Loan Agreement, the Swap Termination Loan Agreement and all other documents
executed in connection with the Master Loan and the Swap Termination Loan, together with all
modifications and/or amendments thereto.
(f)

The following is added as a new Section 22 of the Assignment:

22.
Assignee's Rights Not Affected by Changes to Other Documents.
Assignor agrees that Assignee's rights under this Assignment shall not be impaired or
affected by any renewals or extensions which may be made from time to time, with or
without the knowledge or consent of Assignor, of the time for payment of interest or
principal under the Note or by any forbearance or delay in collecting interest or principal
under the Note, or by any waiver by Assignee under the Loan Agreement or any other
Loan Document, or by Assignee's failure or election not to pursue any other remedies it
may have against Developer or any other Borrower, or by any change or modification in
the Note, the Loan Agreement or any other Loan Document, or by the acceptance by
Assignee of any additional security or any increase, substitution or change therein, or by
the release by Assignee of any security or any withdrawal thereof or decrease therein, or
by the application of payments received from any source to the payment of any obligation
other than the indebtedness due under the Note, even though Assignee might lawfully
have elected to apply such payments to any part or all of the Indebtedness, it being the
intent hereof that, subject to Assignee's compliance with the terms of this Assignment,
Assignee's rights under this Assignment shall remain in full force and effect,
notwithstanding any act or thing which might otherwise operate as a legal or equitable
discharge of a surety. Assignor further understands and agrees that Assignee may at any
time enter into agreements to amend and modify the Note, the Loan Agreement or other
Loan Documents, and may waive or release any provision or provisions of the Note, the
Loan Agreement or other Loan Documents or any thereof, and, with reference to such
instruments, may make and enter into any such agreement or agreements as Assignee and
the other party or parties to such documents or instruments may deem proper and
desirable, without in any manner impairing or affecting this Assignment or any of
Assignee's rights hereunder or Assignor's obligations hereunder.
(h)

The following is added as a new Section 23 of the Assignment:

23.
Jurisdiction. Assignor hereby irrevocably submits to the nonexclusive jurisdiction of any state or federal court sitting in North Carolina, or in any
state in which collateral for the Note is located, over any action or proceeding arising out
of or relating to the Master Loan, the Swap Termination Loan, this Assignment or any
other Loan Document, and Assignor hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in any such state or federal
court. Assignor hereby waives any objection that it may now or hereafter have to the
venue of any such suit or any such court or that such suit is brought in an inconvenient
court.
Page 3 ofS

S.
Ratification: Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, ifthere is more
than one Assignor, are joint and several.

IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first ab
written.
EDEN SHOPPING CENTER LLC,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware

limited liability company, its Manager
By:-=-=---=-==-=----,::---Name: JeffH. Farmer, Jr.
Title: Manager

Exhibit A -- Description of Land
577948.1

STATE OF OHIO
COUNTY OF HAMILTON

)
) SS:
)

The foregoing instrument was acknowledged before me this ~ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalfthereof.

·~

&~ t~

Notary Public

'!f.-oll - .;10//
My Commission Expires:_ _ _ _ _ __

STATEOFCOLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Eden Shopping Center LLC, a Delaware limited liability company, on behalf of the company.
Notary Public
My Commission Expires:._ _ _ _ _ __

PageS ofS

5.
Ratification: Joint and Severa}. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confinns the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, if there is more
than one Assignor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.
KEYBANK NATIONAL ASSOCIATION,
a national banking association

EDEN SHOPPING CENTER LLC,
a Delaware limited liability company

By:.~--~----~-----­
Name: Kurt L. Reiber
Title: Senior Vice President

By:

Exhibit A - Description of Land
577948.1

STATEOFOHIO
COUNTY OF HAMILTON

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalf thereof.
Notary Public
My Commission Expires:._ _ _ _ __

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this ;aJ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Eden Shopping Center LLC, a Delaware limited liability company, on behalf fthe comp y.

My Commission

Page 5 ofS

Expires:.__;::~:....f1.__z--"?!~A....J,..L/__
MARISSA A. LEE
NOTARY PUBLIC
STATE OF COLORADO

........,.,,

-

EXHIBIT A
Description of Land
EDEN SHOPPING CENTERLLC PROPERTY
PROPERlY OF OSBORNE Il'NES'I'MEN'IS, LL.C.; ALL 'mAT CERTAIN PARCEL OF LANP WlTii
IMPROVEMENTS mEREON, snuATED IN nil! CITY.OP EDEN, LlW<SVli..LE TOWN~, COUliTY OF
ROCKINGHAM, STATE OF NORTH CAltOLINA, AND LYIN'G NORTH OF ARBOR LANE. EAST OF· PIERCE
S'IREET, AND W!!ST·OF SOUTHWOOD DRIV1l,- BEING KNOWN AS TAX PARCEL 798906481295, MORE
PARTICULARLY BOUNDED AND DESC~ED AS FOLLOWS:
BEGII\'NlNGAT AN '£XISTING#S !UffiARLYING INTB:ENORTHE!Ul RIGHTOPWAYOF ARBOR LANE;
SA,!D POINT LIES S 14'05'45" W, SzJ6.24'(GRlD TIE a 5236.70' C.F... l.0000880) FROM AN :EXISTING WORTH
CAROLINA GEODETIC SUll.VEY MONUMENT "CLUB"; THENCE WITH THE NOR.TMERN RIGHT OF WAY OF
ARBOR LANE AND THE EASTERN RIGHT OF WAY OF PIERCE STREET A CUll.\IE TUl\NING TO rn:E RIGHT
WITH A RADIUS OF 20.00', WITH AN ARC LENGTH OF 31 J.7', W!IH A CHORD BEARING OF N 43'33'22" W,
WITH A CHORD l..ENGTH OF 28.18' TO A NEW #5 REBAR SET, ll:IENCE wm:r THE EASTERN RlGln' OF
WAY OF PIERCE STREET nil! FOLLOWING CALLS N 01"14'17" E A DISTANCE OF 73.23' TO A NEW #5
REBAR SET; THENCE WITH A CUll.VE 'J'URNING TO nil! LEFT WITil' A RADIUS OF 430.00', wrm: AN ARC
LENGTH OF 182.91', wmt A CHORD BEA;RING OF N 10'56'5 1" W, WlTH A CHORD LENGTH OP lSl.SJ' TO fl.
NEW N5 REBAR. SET, nmNCE WITH A CURVE TURNING TOniE LEFT WITH A RADIUS OF 950.00', WITH
AN ARC LENGTH OF 87.21', WITH A CHORD BEARING OF N 25'4S'47" W, WlT!i A CHORD LENGTH OF 87.18'
TO A NEW liS REBAR SilT, ll:IENCE N 28'23'35" W A DISTANCE OF 135.19' TO A NEW#5 REBAR SET IN mE
EASTERN RIGHT OF WAY OF PIERCE STREET AND AT 1RE SOtrmWl!ST CORNER. OF THE PROPERTY OF
MOREHEAD MEMORIAL HOSPITAL (DEED BOOK 1241 PAGE 1966); THENCE WITH 1RE SOU'l'RERN
PROPERlY LINt OF MOREl!EAD MEMORIAL HOSPITALN 77'35'42" E A DISTANCE OF 341.25' TO AN
EXISTING #S REBAR FOUND IN 1RE WESTERN RIGHT OF WAY OF SOUTI!WOOD DRtv:E; THENCE WITH
THE WESTERN RIGHT OF WAY OF SOUTHWOOD DRIVE A CUll.\IE TURNING TO THE LEFT WITH A
RADIUS OF 9So:OO', WITH AN AAC LBNGTII OF 502.46', Wl11i A CHORD BEARING OF S 26'20'40" E. WITH fl.
CHORD ·LENOn! OF 496.62' TO A NEW #S REBAR SET, nmNCE WITH 1RE WESTERN RIGHT OF WAY OF
SOU!HWOOD DRIVE AND THE NORnmRN RIGHT OF WAY OF ARJ30R LANE A CURVE l'tJRNING TO TI-lE
lUGHT WITH A RADIUS OF 20.00', Willi AN ARC LBNGTI! OF 31.99'; WITH A CHORD BEARING OF S
04'19'20" W, WITH A CHORD LENGTH OF 28.69' TO AN EXISTING #5 REBAR FOUND n-1 THE NOR.TfiERN
lUGHT OF WAY OF ARBOR LANE, THENCE WITH THE NORTHERN RIGHT OF WAY OF ARBOR LANE A
CURVE 'l'URNING TO n!:ERlGHT WITH A RADIUS OF 320.00', WITH AN ARC LENGTH OF 231.SJ', WITH A
CHORD BEARING OF S 70'53'43" W, WlTII A CHORD LENGTH OF 226.79' TO AN E:x:ISTING #S REBAR
FOUND, rn:ENCE N &8'21'02" W A DISTANCE OF 182.79' TO AN EXISTING #s REBAR FOUND; SA.lD #5
REBAR IS THE POINT AND PLACE OF BEGlNNING, HAVING AN AREA OF 179288.75 SQUARE FEET AND
4.116ACRES. .

A-I

FILED ROCKINGHAM COUNTY, NC REBECCA B. CIPRIANI, REGISTER OF DEEDS 9/3/2009
2:01:58 PM BOOK 1381 PAGE 2228 - 2239 INSTRUMENT #20090009157
Recording:$45.00 Probate:$2.00
SJOLIAN

PREPARED OUT OF STATE

MAXIMUM PRINCIPAL
AMOUNT SECURED HEREBY:
$73,096,500.00

REI I 1ibli0·
Stephen M. King, Esq.
Thompson Hine LLP
312 Walnut Street, 14th Floor
Cincinnati, OH 45202

,\fTER RECORDING HI::TUKN "I U: ~·1 '·'"''-' '•'- ' " Ko
l.i!ndr'\mcrica Lawyers Title Insurance -------·"·P. O.llox 309
~
11
Raleigh. NC 27602
c:J""I <-1 ~

\OQv-.1

7

FIRST AMENDMENT TO CONSTRUCTION DEED OF TRUST. ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
This FIRST AMENDMENT TO CONSTRUCTION DEED OF TRUST, ASSIGNMENT
OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this "Amendment"), is entered into as
of the_ day of June, 2009, by and between TYLER SHOPPING CENTER LLC, a Delaware limited
liability company ("TSC"), PULASKI SHOPPING CENTER LLC, a Delaware limited liability company
(''PSC"), SHAWNEE SHOPPING CENTER LLC, a Delaware limited liability company ("SSC"), FT.
DODGE SHOPPING CENTER LLC, a Delaware limited liability company ("FSC"), KEOKUK
SHOPPING CENTER LLC, a Delaware limited liability company ("KSC"), WEST BURLINGTON
SHOPPING CENTER LLC, a Delaware limited liability company ("WSC"), MARSHALLTOWN
SHOPPING CENTER LLC, a Delaware limited liability company ("MSC"), and OSKALOOSA
SHOPPING CENTER LLC, a Delaware limited liability company (''OSC"; TSC, PSC, SSC, FSC, KSC,
WSC, MSC and OSC,jointly and severally, "Mortgagor"), LA WYERS TITLE INSURANCE
CORPORATION, as Trustee, and KEYBANK NATIONAL ASSOCIATION, a national banking
association ("Mortgagee").
Preliminary Statement

A.
Mortgagee and The Spectra Group, Inc., a Tennessee corporation ("Spectra"),
and Jeff H. Farmer, Jr., an individual (''J. Farmer"; Spectra and J. Farmer, jointly and severally
"Developer"), entered into a Master Construction Loan Agreement dated as of December 8, 2005, as
amended by First Amendment to Master Construction Loan Agreement dated as of June 30, 2006, Second
Amendment to Master Construction Loan Agreement dated as of October I 0, 2006, Third Amendment to
Master Construction Loan Agreement dated as of July 18,2007, and Fourth Amendment to Master
Construction Loan Agreement dated as of October 10,2007 (collectively, the "Master Loan Agreement"),
pursuant to which Mortgagee agreed to make credit available to certain entities designated by the
Developer.
B.
Pursuant to the Master Loan Agreement, Mortgagee extended a loan to
Mortgagor in the original principal amount of up to Four Million Eight Hundred Seventy-Five and
Page 1 of9

EXHIBIT 28

BK: 1381 PG: 2229

N0/100 Dollars ($4,875,000.00), which loan is evidenced by a Promissory Note dated as of August 25,
2006 from Mortgagor to Mortgagee (the "Note") and by a Construction Loan Agreement dated as of
August 25, 2006 between Mortgagor and Mortgagee (the "Loan Agreement").
C.
As security for the Note, among other things, Mortgagor executed and delivered
Lawyers Title Insurance Corporation as Trustee for the benefit of Mortgagee a Construction Deed Of
Trust, Assignment Of Rents, Security Agreement And Fixture Filing dated August 25, 2006, and recorded
on August 29,2006 in the public records of Rockingham County, North Carolina at Book 01294, Page
1984 (the "Mortgage"), which Mortgage encumbers, among other things, real property more fully
described in Exhibit A hereto.
D.
The term of the Note has matured and Mortgagor has requested that Mortgagee
extend the term of the Note.
E.
Mortgagee has agreed to extend the term of the Note pursuant to the Fifth
Amendment to Master Loan Agreement dated as of April 15, 2009 (the "Fifth Amendment"), which Fifth
Amendment requires, among other things, the execution and delivery by Mortgagor and each other
Borrower (as defmed in the Master Loan Agreement) of an extension, increase and modification of the
Note pursuant to three Amended and Restated Promissory Notes in the aggregate original principal
amount of up to Seventy Million Four Hundred Sixty-One Thousand Five Hundred and N0/100 Dollars
($70,461,500.00) (the "Amended Master Note"; the loan evidenced by the Note, as amended and restated
by the Amended and Restated Note, the "Master Loan").
F.
Pursuant to the Loan Agreement dated as of the date hereof between Mortgagee
and Spectra (the "Swap Termination Loan Agreement"), Mortgagee has made an additional Joan to
Spectra in the original principal amount of up to Two Million Six Hundred Twenty-Five Thousand
Dollars ($2,625,000.00) (the "Swap Termination Loan"), which loan is evidenced by a Term Note dated
as of the date hereof from Spectra to Mortgagee (the "Swap Termination Note").
G.
The principal amount of the Swap Termination Loan will be used by Spectra to
pay the amount due by Spectra on the early termination of the rate swap transaction pursuant to the
Confirmation dated March 19,2009 to the ISDA Master Agreement dated November 22,2005 between
Mortgagee and Spectra. Mortgagor was a beneficiary of the rate swap transaction in connection with the
Note and has authorized and directed Spectra to terminate the rate swap transaction in connection with the
execution and delivery of this Amendment.
H.
As a condition to Mortgagee's execution and delivery of the Fifth Amendment
and Mortgagee's making of the Swap Termination Loan to Spectra, Mortgagee is requiring the execution
and delivery by Mortgagor of this Amendment.
NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Mortgagor and Mortgagee hereby agree as follows:
I.
Definitions. All capitalized terms used herein shall have the respective meanings
ascribed to them in the Mortgage unless otherwise defined herein.
2.
Amendment to Mortgage. (a) All references in the Mortgage to the Note or the
Notes shall be to, jointly and severally, the Amended Master Note and the Swap Termination Note,
together with all modifications and/or amendments thereto.

Page 2 of9

(b)
All references in the Mortgage to the Loan shall be to, jointly and
severally, the Master Loan and the Swap Termination Loan.
(c)
All references in the Mortgage to the Loan Agreement shall be to, jointly
and severally, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan Agreement
and the Swap Termination Loan Agreement, together with all modifications and/or amendments thereto.
(d)
All references in the Mortgage to the Loan Documents shall be to, jointly
and severally, the Mortgage, as amended hereby, the Amended Master Note, the Swap Termination Note,
the Master Loan Agreement, as amended by the Fifth Amendment, the Loan Agreement, the Swap
Termination Loan Agreement and all other documents executed in connection with the Master Loan and
the Swap Termination Loan, together with all modifications and/or amendments thereto.
(e)
Section 8.13 of the Mortgage is amended to increase the maximum
principal amount secured by the Mortgage from Four Million Eight Hundred Seventy-Five and NO/I 00
Dollars ($4,875,000.00) to Seventy-Three Million Ninety-Six Thousand Five Hundred and N0/100
Dollars ($73,096,500.00), together with interest and all other amounts secured thereby.
(f)
Section 1.2 of the Mortgage is amended to add the following to the
definition of Secured Obligations:

(ix)
Payment and performance of all obligations of Farmer,
Spectra and Mortgagor, as applicable, under the Master Loan Agreement, as amended by
the Fifth Amendment, the Amended Master Note, the Swap Termination Loan
Agreement and the Swap Termination Note, in each case together with all modifications
and/or amendments thereof, and under any judgment or other obligation of Farmer,
Spectra and Mortgagor, as applicable (including, without limitation, an obligation to pay
a deficiency), with respect to the Secured Obligations.
(g)

The following is added as a new Section 8.19 of the Mortgage:

Section 8.19
Mortgagee's Rights Not Affected by Changes to Other
Documents. Mortgagor agrees that Mortgagee's rights under this Mortgage shall not be
impaired or affected by any renewals or extensions which may be made from time to
time, with or without the knowledge or consent of Mortgagor, of the time for payment of
interest or principal under the Note or by any forbearance or delay in collecting interest
or principal under the Note, or by any waiver by Mortgagee under the Loan Agreement or
any other Loan Document, or by Mortgagee's failure or election not to pursue any other
remedies it may have against Developer or any other Borrower, or by any change or
modification in the Note, the Loan Agreement or any other Loan Document, or by the
acceptance by Mortgagee of any additional security or any increase, substitution or
change therein, or by the release by Mortgagee of any security or any withdrawal thereof
or decrease therein, or by the application of payments received from any source to the
payment of any obligation other than the indebtedness due under the Note, even though
Mortgagee might lawfully have elected to apply such payments to any part or all of the
Indebtedness, it being the intent hereof that, subject to Mortgagee's compliance with the
terms of this Mortgage, Mortgagee's rights under this Mortgage shall remain in full force
and effect, notwithstanding any act or thing which might otherwise operate as a legal or
equitable discharge of a surety. Mortgagor further understands and agrees that
Mortgagee may at any time enter into agreements to amend and modify the Note, the
Loan Agreement or other Loan Documents, and may waive or release any provision or
Page 3 of9

provisions of the Note, the Loan Agreement or other Loan Documents or any thereof,
and, with reference to such instruments, may make and enter into any such agreement or
agreements as Mortgagee and the other party or parties to such documents or instruments
may deem proper and desirable, without in any manner impairing or affecting this
Mortgage or any of Mortgagee's rights hereunder or Mortgagor's obligations hereunder.
(h)

The following is added as a new Section 8.20 of the Mortgage:

Section 8.20
Jurisdiction. Mortgagor hereby irrevocably submits to
the non-exclusive jurisdiction of any state or federal court sitting in North Carolina, or in
any state in which collateral for the Note is located, over any action or proceeding arising
out of or relating to the Master Loan, the Swap Termination Loan, this Mortgage or any
other Loan Document, and Mortgagor hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in any such state or federal
court. Mortgagor hereby waives any objection that it may now or hereafter have to the
venue of any such suit or any such court or that such suit is brought in an inconvenient
court.
(i)

The following is added as a new Section 8.2 I of the Mortgage:

Section 8.2 I
Inconsistencies with Respect to Release. In the event of
any conflict or inconsistency with respect to release of the Property between the terms of
(a) the Fifth Amendment and the Swap Termination Loan Agreement and (b) this
Mortgage, the terms of the Fifth Amendment and the Swap Termination Loan Agreement
shall control.
3.
Release of Mortgage. Mortgagor is entitled to the release of the Mortgage in
accordance with and upon the satisfaction of the conditions set forth in Section 12 of the Fifth
Amendment and the Swap Termination Loan Agreement.
4.
Representations, Warranties and Covenants. Mortgagor hereby represents,
warrants and covenants to Mortgagee that the outstanding principal amount of the Amended Master Note
is $69,870,099.00, that the Mortgage, as modified hereby, remains unmodified and in full force and effect
and that Mortgagor has no cause of action at law or in equity against Mortgagee or any person or entity
directly or indirectly holding an interest in the Master Loan or the Swap Termination Loan, including,
without limitation, any offset, counterclaim or defense with respect to the Amended Master Note, the
Swap Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement, the Swap Termination Loan Agreement, the Mortgage, as modified hereby, or any document
executed and delivered in connection therewith.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

Page 4 of9

5.
Ratification: Joint and Several. Except as modified hereby, the Mortgage shall
remain unmodified and in full force and effect. Mortgagor hereby ratifies and confirms the Mortgage, as
modified hereby. The obligations of Mortgager under the Mortgage, as modified hereby, if there is more
than one Mortgagor, are joint and several.
fN WITNESS WHEREOF, this Amendment has been duly executed by Mortgagee and
Mortgagor as of the day and ear first above written.

LA WYERS TITLE INSURANCE CORPORATION,
TRU!rfo

.

/)

~cJ{~(A_/
Name:/( a.~
a))
Title: A~·

C C1---;::;r~

v'ice. .P.,e6i J-u,:Y

TYLER SHOPPCNG CENTER,
a Delaware limited liability company

PULASKI SHOPPING CENTER,
a Delaware limited liability company

By:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:.~--~~~----~---­

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:.~--~~~-~----­

Name: Jeff H. Farmer, Jr.
Title: Manager

Name: Jeff H. Farmer, Jr.
Title: Manager

SHAWNEE SHOPPCNG CENTER,
a Delaware limited liability company

FT. DODGE SHOPPING CENTER,
a Delaware limited liability company

By:

By:

JHF Property Holdings LLC, a Delaware
limited liabilicy company, its Manager

By:.~--~~~----~--­

By:.~--~~~---~--­

Name: Jeff H. Farmer, Jr.
Title: Manager

Name: Jeff H. Farmer, Jr.
Title: Manager

KEOKUK SHOPPCNG CENTER,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

WEST BURLINGTON SHOPPING CENTER,
a Delaware limited liability company

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:

By:.-:-::----:--=::-=-::----,-----Name: Jeff H. Farmer, Jr.
Title: Manager

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:·-,-----,--,=-:--::----::-----Name: Jeff H. Farmer, Jr.
Title: Manager

[SIGNATURES CONTINUE ON FOLLOWING PAGE]

Page 5 of9

S.
Ratification: Joint and Several. Except as modified hereby, the Mortgage shall
remain unmodified and in full force and effect. Mortgagor hereby ratifies and confirms the Mortgage, as
modified hereby. The obligations of Mortgager under the Mortgage, as modified hereby, if there is more
than one Mortgagor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Mortgagee and
Mortgagor as of the day and year first above written.
KEYBANK NATIONAL ASSOCIATION,
a national banking association

LAWYERS TITLE INSURANCE CORPORATION,
TRUSTEE

By:

By:.~--------­
Name:
Title:

N~am--e-:~K~u-rt~L~.~R~e7.ibe~r-------

7

Title:

Senior Vice President

TYLER SHOPPING CENTER,
a Delaware limited liability company

PULASKI SHOPPING CENTER,
a Delaware limited liability company
By:

FT. DODGE SHOPPING CENTER,
a Delaware limited liability company
By:

KEOKUK

WEST BURLINGTON SHOPPING CENTER,
a Delaware limited liability company

By:

By:

[SIGNATURES CONTINUE ON FOLLOWING PAGE]

PageS of9

MARSHALLTOWN SHOPPING CENTER,
a Delaware limited liability company

OSKALOOSA SHOPPING CENTER,
a Delaware limited liability company

JHF Property Holdings LLC, a Delaware By:
limited liability company, its Manager

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:~---=-=o-=----,:---­

By:

By:~---=-=o-=---c:---­

Name: Jeff H. Farmer, Jr.
Title: Manager

Name: Jeff H. Farmer, Jr.
Title: Manager

Exhibit A -- Description of Land

sms6.t

STATEOFOIDO
COUNTY OF HAMILTON

)
) SS:
)

:Jk_

The foregoing instrument was acknowledged before me this
day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalf thereof.

(!/~{!~

Notary Public
My Commission Expires:

STATE OF _ _ _ _ _ ___
COUNTY OF __________

9-c21-o20/l

)

) SS:
)

I,
a Notary Public of
County, State of
,
certifY that
personally came before me this day and acknowledged that
he/she is
of Lawyers Title Insurance Corporation, and being authorized to do
so, executed the foregoing on behalf of the corporation.
Witness my hand and official seal, this the __ day of June, 2009

Notary Public

Page 6 of9

B

MARSHALLTOWN SHOPPING CENTER,

OSKALOOSA SHOPPING CENTER,

a Delaware limited liability company

a Delaware limited liability company

By:

By:

Exhibit A -- Description of Land
577956.1

STATEOFOHIO
COUNTY OF HAMU..TON

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalf thereof.
Notary Public
My Commission Expires:. _ _ _ _ _ __

STATEOF

NC.
-------

COUNTY OF

)

) SS:

\f\JoJ(R_

)

I, ~t416k.a t..l ~r411kL.a Notary Public of \1\.lQ.~ County, State of Aj(..,
,
certify !h~t!' ~~£.t~ personal!~ came before me this ~ay and ac~owledg~ that
he/she 1s Ca.'kf
6
of Lawyers T1tle Insurance Corporation, and bemg authonzed to do
so, executed the foregoing on behalf of the corporation.

,

41

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Witness my hand and official seal, this the~ day of J.i, 2009

\>"~. Bft4~~

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Page 6of9

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STATEOFCOLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

1ft.

.
The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Fanner, Jr., Manager of niP Property Holdings LLC, a Delaware limited liability company, Manager of
Tyler Shopping Center LLC, a Delaware limited liability company, on be alf of the company.

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

2f.t..

day of June, 2009, by Jeff H.
The foregoing instrument was acknowledged before me this
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Pulaski Shopping Center LLC, a Delaware limited liability company, on behalf of the ompany.

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this..2G? day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Shawnee Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

~1¥/1

Page 7 of9

B

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this ifL day of June, 2009, by Jeff H.
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Ft. Dodge Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

~;&l
My Commission Expires: JIZA 41
I

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

Z/L

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Keokuk Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

.

STATE OF COLORADO
COUNTY OF SAN MIGUEL

e~~

Nolibli;
~ J /.
My Commission Expires: ~~,//I

)
) SS:
)

The foregoing instrument was acknowledged before me this2lL day of June, 2009, by Jeff H.
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
West Burlington Shopping Center LLC, a Delaware limited liability company, on beh If of the company.

PageS of9

l
ffi;~~~.;~·e~i'z;h',\ii&il~;g<i~'il:r.iii!!l¥iiliiik.:i'k!.~ki~.\;~:,.\0ii,;r~<.i>M;~ll.i~;;,~y;:.~;&4::l.i~;f><,;iiii.&lli<iilii>$1!-;iii;."l.~;rt'.ii~\f.~li~4~~ti!i~<J,s;~:fi;p,;t~,:,i:#Xt'\ii,f,\tlt1~i!it1:i~~·rlttiW.;~~~ih~~;;:~];,'\}-k~~~

B

STATEOFCOLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this 1J..t_ day of June, 2009, by Jeff H.
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Marshalltown Shopping Center LLC, a Delaware limited liability company, on behalf of e company.

STATEOFCOLORADO
COUNTY OF SAN MIGl{EL

)
) SS:
)

The foregoing instrument was acknowledged before me this~ day of June, 2009, by Jeff H.
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Oskaloosa Shopping Center LLC, a Delaware limited liability company, on behalf of company.

I

Page 9 of9

-----------------------------------------------------------------------EXHIBIT A
Description of Land
All of that certain lot or parcel ofland situated in Mayo Township, Rockingham County, North
Carolina, and more particularly described as follows:
All of Lot I as shown on the plat of IDK, LLC Subdivision recorded in Plat Book 60, Page 11,
Rockingham County Registry (the "Plat").
TOGETHER WITH non-exclusive easements for ingress, egress, regress, and utility purposes
over portions of Lots 2, 3, 4, and 5 as shown on the Plat for the benefit of said Lot I, as follows:
I.

A 30-foot access and utility easement designated as "1" on the Plat;

2.

A 25-foot access and utility easement designated as "2" on the Plat; and

3.

A 30-foot access and utility easement designated as "3" on the Plat.

578465.1

A-1

3813
FILED ROCKINGHAM COUNTY, NC REBECCA B. CIPRIANI, REGISTER OF DEEDS 9/3/2009
2:01:59 PM BOOK 1381 PAGE 2240 - 2251 INSTRUMENT #20090009158
Recording:$45.00 Probate:$2.00
SJULIAN

PREPARED OUT OF STATE

Stephen M. King, Esq.
Thompson Hine LLP
312 Walnut Street, 14th Floor
Cincinnati, OH 45202

AfTER RECORDING RETURN ·10:

:.andAmcrica Lawyers Title
P.o. Box 309

Raleigh. OIC 27602

;if...>:J:!U-'L'.-~.1.!~:1

lnsumnc~

·\oi::>o1 _~ v
tt:..O
0 ·1-17

FIRST AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
This FIRST AMENDMENT, TO ASSIGNMENT OF LEASES AND RENTS (this
"Amendment"), is entered into as ofthe~day of June, 2009, by and between TYLER SHOPPING
CENTER LLC, a Delaware limited liability company ("TSC"), PULASKI SHOPPING CENTER LLC, a
Delaware limited liability company ("PSC"), SHAWNEE SHOPPING CENTER LLC, a Delaware
limited liability company ("SSC''), FT. DODGE SHOPPING CENTER LLC, a Delaware limited liability
company ("FSC"), KEOKUK SHOPPING CENTER LLC, a Delaware limited liability company
("KSC"), WEST BURLINGTON SHOPPING CENTER LLC, a Delaware limited liability company
("WSC"), MARSHALLTOWN SHOPPING CENTER LLC, a Delaware limited liability company
("MSC"), and OSKALOOSA SHOPPING CENTER LLC, a Delaware limited liability company ("OSC";
TSC, PSC, SSC, FSC, KSC, WSC, MSC and OSC, jointly and severally, "Assignor"), and KEYBANK
NATIONAL ASSOCIATION, a national banking association ("Assignee").
Preliminary Statement
A.
Assignee and The Spectra Group, Inc., a Tennessee corporation ("Spectra"), and
Jeff H. Farmer, Jr., an individual ("J. Fanner"; Spectra and J. Farmer, jointly and severally "Developer"),
entered into a Master Construction Loan Agreement dated as of December 8, 2005, as amended by First
Amendment to Master Construction Loan Agreement dated as of June 30, 2006, Second Amendment to
Master Construction Loan Agreement dated as of October I 0, 2006, Third Amendment to Master
Construction Loan Agreement dated as of July 18, 2007 and Fourth Amendment to Master Construction
Loan Agreement dated as of October 10, 2007 (collectively, the "Master Loan Agreement"), pursuant to
which Assignee agreed to make credit available to certain entities designated by the Developer.

B.
Pursuant to the Master Loan Agreement, Assignee extended a loan to Assignor in
the original principal amount of up to Four Million Eight Hundred Seventy-Five and N0/100 Dollars
($4,875,000.00), which loan is evidenced by a Promissory Note dated as of August 25, 2006 from
Assignor to Assignee (the "Note") and by a Construction Loan Agreement dated as of August 25, 2006
between Assignor and Assignee (the "Loan Agreement").

Page I of9

BK: 1381 PG: 2241

C.
As security for the Note, among other things, Assignor executed and delivered (i)
to Lawyers Title Insurance Corporation as Trustee for the benefit of Assignee, a Construction Deed Of
Trust, Assignment Of Rents, Security Agreement And Fixture Filing dated August 25, 2006, and recorded
on August 29, 2006 in the public records of Rockingham County, North Carolina at Book 01294, Page
1984, as amended by First Amendment to Construction Deed Of Trust, Assignment Of Rents, Security
Agreement And Fixture Filing dated as of the date hereof, and to be recorded in the public records of
Rockingham County, North Carolina prior to this Amendment (collectively, the "Amended Mortgage"),
and (ii) to Assignee, an Assignment of Leases and Rents dated August 25, 2006, and recorded on August
29, 2006 in the public records of Rockingham County, North Carolina at Book 01294, Page 2015 (the
"Assignment"), which Amended Mortgage and Assignment encumber, among other things, real property
more fully described in Exhibit A hereto.
D.
The term of the Note has matured and Assignor has requested that Assignee
extend the term of the Note.
E.
Assignee has agreed to extend the term of the Note pursuant to the Fifth
Amendment to Master Loan Agreement dated as of April 15, 2009 (the "Fifth Amendment"), which Fifth
Amendment requires, among other things, the execution and delivery by Assignor and each other
Borrower (as defined in the Master Loan Agreement) of an extension, increase and modification of the
Note pursuant to three Amended and Restated Promissory Notes in the aggregate original principal
amount of up to Seventy Million Four Hundred Sixty-One Thousand Five Hundred and NOll 00 Dollars
($70,461 ,500.00) (the "Amended Master Note"; the loan evidenced by the Note, as amended and restated
by the Amended and Restated Note, the "Master Loan").
F.
Pursuant to the Loan Agreement dated as of the date hereof between Assignee
and Spectra (the "Swap Termination Loan Agreement"), Assignee has made an additional loan to Spectra
in the original principal amount of up to Two Million Six Hundred Twenty-Five Thousand Dollars
($2,625,000.00) (the "Swap Termination Loan"), which loan is evidenced by a Term Note dated as of the
date hereof from Spectra to Assignee (the "Swap Termination Note").
G.
The principal amount of the Swap Termination Loan will be used by Spectra to
pay the amount due by Spectra on the early termination of the rate swap transaction pursuant to the
Confirmation dated March 19, 2009 to the lSD A Master Agreement dated November 22, 2005 between
Assignee and Spectra. Assignor was a beneficiary of the rate swap transaction in connection with the
Note and has authorized and directed Spectra to terminate the rate swap transaction in connection with the
execution and delivery of this Amendment.
H.
As a condition to Assignee's execution and delivery of the Fifth Amendment and
Assignee's making of the Swap Termination Loan to Spectra, Assignee is requiring the execution and
delivery by Assignor of this Amendment.
NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
I.
Definitions. All capitalized terms used herein shall have the respective meanings
ascribed to them in the Assignment unless otherwise defined herein.
2.
Amendment to Assignment. (a) All references in the Assignment to the Note or
the Notes shall be to, jointly and severally, the Amended Master Note and the Swap Termination Note,
together with all modifications and/or amendments thereto.

Page 2 of9

(b)
All references in the Assignment to the Loan shall be to, jointly and
severally, the Master Loan and the Swap Termination Loan.
(c)

All references in the Assignment to the Mortgage shall be to the

Amended Mortgage.
(d)
All references in the Assignment to the Loan Agreement shall be to,
jointly and severally, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement and the Swap Termination Loan Agreement, together with all modifications and/or
amendments thereto.
(e)
All references in the Assignment to the Loan Documents shall be to,
jointly and severally, the Assignment, as amended hereby, the Amended Master Note, the Swap
Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Amended
Mortgage, the Loan Agreement, the Swap Termination Loan Agreement and all other documents
executed in connection with the Master Loan and the Swap Termination Loan, together with all
modifications and/or amendments thereto.
(f)

The following is added as a new Section 22 of the Assignment:

22.
Assignee's Rights Not Affected by Changes to Other Documents.
Assignor agrees that Assignee's rights under this Assignment shall not be impaired or
affected by any renewals or extensions which may be made from time to time, with or
without the knowledge or consent of Assignor, of the time for payment of interest or
principal under the Note or by any forbearance or delay in collecting interest or principal
under the Note, or by any waiver by Assignee under the Loan Agreement or any other
Loan Document, or by Assignee's failure or election not to pursue any other remedies it
may have against Developer or any other Borrower, or by any change or modification in
the Note, the Loan Agreement or any other Loan Document, or by the acceptance by
Assignee of any additional security or any increase, substitution or change therein, or by
the release by Assignee of any security or any withdrawal thereof or decrease therein, or
by the application of payments received from any source to the payment of any obligation
other than the indebtedness due under the Note, even though Assignee might lawfully
have elected to apply such payments to any part or all of the Indebtedness, it being the
intent hereof that, subject to Assignee's compliance with the terms of this Assignment,
Assignee's rights under this Assignment shall remain in full force and effect,
notwithstanding any act or thing which might otherwise operate as a legal or equitable
discharge of a surety. Assignor further understands and agrees that Assignee may at any
time enter into agreements to amend and modify the Note, the Loan Agreement or other
Loan Documents, and may waive or release any provision or provisions of the Note, the
Loan Agreement or other Loan Documents or any thereof, and, with reference to such
instruments, may make and enter into any such agreement or agreements as Assignee and
the other party or parties to such documents or instruments may deem proper and
desirable, without in any manner impairing or affecting this Assignment or any of
Assignee's rights hereunder or Assignor's obligations hereunder.
(h)

The following is added as a new Section 23 of the Assignment:

23.
Jurisdiction. Assignor hereby irrevocably submits to the nonexclusive jurisdiction of any state or federal court sitting in North Carolina, or in any
state in which collateral for the Note is located, over any action or proceeding arising out
Page 3 of9

of or relating to the Master Loan, the Swap Termination Loan, this Assignment or any
other Loan Document, and Assignor hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in any such state or federal
court. Assignor hereby waives any objection that it may now or hereafter have to the
venue of any such suit or any such court or that such suit is brought in an inconvenient
court.
3.
Release of Assignment. Assignee is entitled to the release of the Assignment in
accordance with and upon the satisfaction of the conditions set forth in Section 12 of the Fifth
Amendment and the Swap Termination Loan Agreement.
4.
Representations. Warranties and Covenants. Assignor hereby represents,
warrants and covenants to Assignee that the outstanding principal amount of the Amended Master Note is
$69,870,099.00, that the Assignment, as modified hereby, remains unmodified and in full force and effect
and that Assignor has no cause of action at law or in equity against Assignee or any person or entity
directly or indirectly holding an interest in the Master Loan or the Swap Termination Loan, including,
without limitation, any offset, counterclaim or defense with respect to the Amended Master Note, the
Swap Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement, the Swap Termination Loan Agreement, the Amended Mortgage, the Assignment, as
modified hereby, or any document executed and delivered in connection therewith.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.)

Page 4 of9

---------------------------------------------------------------------------~

5.
Ratification: Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, if there is more
than one Assignor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.

er
Senior Vice President
TYLER SHOPPING CENTER,
a Delaware litflifed liability company

PULASKI SHOPPING CENTER,
a Delaware limited liability company

By:

By:

lliF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:.77--~~~----~--­

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:-:-:----::-=:-:-----::----Name: Jeff H. Farmer, Jr.
Title: Manager

Name: Jeff H. Farmer, Jr.
Title: Manager

SHAWNEE SHOPPING CENTER,
a Delaware limited liability company

FT. DODGE SHOPPING CENTER,
a Delaware limited liability company

By:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:.-:-:----:-=c-=-----:--Name: Jeff H. Farmer, Jr.
Title: Manager

By:=----=-=:-:-----::----Name: Jeff H. Farmer, Jr.
Title: Manager

KEOKUK SHOPPING CENTER,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

WEST BURLINGTON SHOPPING CENTER,
a Delaware limited liability company

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:

By:·---~~~--~--­

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:.-:-:----::-=;-;::-----::---Name: Jeff H. Farmer, Jr.
Title: Manager

Name: Jeff H. Farmer, Jr.
Title: Manager

[SIGNATURES ·coNTINUE ON FOLLOWING PAGE]

Page 5 of9

5.
Ratification; Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, if there is more
than one Assignor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.
KEYBANK NATIONAL ASSOCIATION,
a national banking association
By:

-:-N::-a_m_e_:'":'K::-urt--:L:-.-:R:-e""ib_e_r- - Title: Senior Vice President

TYLER SHOPPING CENTER,
a Delaware limited liability company

PULASKI SHOPPING CENTER,
a Delaware limited liability company

By:

WEST B
INGTON SHOPPING CENTER,
a Delaware limited liability company
By:

By:

[SIGNATURES CONTINUE ON FOLLOWING PAGE)

Page 5 of9

B

·-

MARSHALLTOWN SHOPPING CENTER,
a Delaware limited liability company

OSKALOOSA SHOPPING CENTER,
a Delaware limited liability company

By:

·-···---··---------------

By:

Exhibit A - Description of Land
577957.1

STATEOFOHIO
COUNTY OF HAMILTON

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalf thereof.
Notary Public
My Commission Expires:._ _ _ _ _ __

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

J1t..

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff' H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Tyler Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

$~7&

Page 6 of9

MARSHALLTOWN SHOPPING CENTER,
a Delaware limited liability company
By:

OSKALOOSA SHOPPING CENTER,
a Delaware limited liability company

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:-:-:----:-=:-=--~:---­

By:-:-:---=-==-=-~=---­
Name: Jeff H. Farmer, Jr.
Title: Manager

Name: Jeff H. Farmer, Jr.
Title: Manager

Exhibit A - Description of Land
S179S1.1

STATEOFOHIO
COUNTY OF HAMILTON

)
) SS:
)

~

The foregoing instrument was acknowledged before me this
day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on

~

behalfthereof.

COUNTY OF SAN MIGUEL

~

Notary Public

CHRISTINE CARRIER
Neilly Nile, SIBle of Qljo
Itt Conlnilllon &pna 0Nt.a1t

STATEOFCOLORADO

{J

My Commission Expires:

IJ-011-

c2DI/

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Tyler Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

Notary Public
My Commission Expires:_ _ _ _ __

Page 6 of9

B

-------------------------------------------~

STATE OF COLORADO

)
) SS:
)

COUNTY OF SAN MIGUEL

'21t...

day of June, 2009, by Jeff H.
The foregoing instrument was acknowledged before me this
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Pulaski Shopping Center LLC, a Delaware limited liability company, on behalf of the c pany.

STATEOFCOLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me thisa day of June, 2009, by Jeff H.
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
S~awnee Shopping Center LLC, a Delaware limited liability company, on
half o e company.

STATE OF COLORADO

)

COUNTY OF SAN MIGUEL

)

) SS:

2&

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Ft. Dodge Shopping Center LLC, a Delaware limited liability company, on beh of the company.
I

Page 7 of9

B

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

2/iJ

day of June, 2009, by Jeff H.
The foregoing instrument was acknowledged before me this
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Keokuk Shopping Center LLC, a Delaware limited liability company, on beha f of the company.

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

2/e_

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of ·
West Burlington Shopping Center LLC, a Delaware limited liability compan on be If of the company.

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

thiJ-/0

day of June, 2009, by Jeff H.
The foregoing instrument was acknowledged before me
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware iimltedliability company, Manager of
Marshalltown Shopping Center LLC, a Delaware limited liability company, on behalf o e company.

Page 8 of9

B

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

21£

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Fanner, Jr., Manager of .JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Oskaloosa Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

~~~
£/2 VU

Not Public
My Commission Expires:

Page 9 of9

, /,

EXHIBIT A
Description of Land

All of that certain lot or parcel ofland situated in Mayo Township, Rockingham County, North
Carolina, and more particularly described as follows:
All of Lot 1 as shown on the plat ofiDK, LLC Subdivision recorded in Plat Book 60, Page 11,
Rockingham County Registry (the "Plat").
TOGETHER WITH non-exclusive easements for ingress, egress, regress, and utility purposes
over portions of Lots 2, 3, 4, and 5 as shown on the Plat for the benefit of said Lot 1, as follows:
1.

A 30-foot access and utility easement designated as "1" on the Plat;

2.

A 25-foot access and utility easement designated as "2" on the Plat; and

3.

A 30-foot access and utility easement designated as "3" on the Plat.

578465.1

A-1

FILED ROCKINGHAM COUNTY, NC REBECCA B. CIPRIANI, REGISTER OF DEEDS 9/3/2009
2:01:59 PM BOOK 1381 PAGE 2240 - 2251 INSTRUMENT #20090009158
Recording:$45.00 Probate:$2.00
SJULIAN

PREPARED OUT OF STATE

Stephen M. King, Esq.
Thompson Hine LLP
312 Walnut Street, 14th Floor
Cincinnati, OH 45202

AfTER RECORDING RETURN ·10:

:.andAmcrica Lawyers Title
P.o. Box 309

Raleigh. OIC 27602

;if...>:J:!U-'L'.-~.1.!~:1

lnsumnc~

·\oi::>o1 _~ v
tt:..O
0 ·1-17

FIRST AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
This FIRST AMENDMENT, TO ASSIGNMENT OF LEASES AND RENTS (this
"Amendment"), is entered into as ofthe~day of June, 2009, by and between TYLER SHOPPING
CENTER LLC, a Delaware limited liability company ("TSC"), PULASKI SHOPPING CENTER LLC, a
Delaware limited liability company ("PSC"), SHAWNEE SHOPPING CENTER LLC, a Delaware
limited liability company ("SSC''), FT. DODGE SHOPPING CENTER LLC, a Delaware limited liability
company ("FSC"), KEOKUK SHOPPING CENTER LLC, a Delaware limited liability company
("KSC"), WEST BURLINGTON SHOPPING CENTER LLC, a Delaware limited liability company
("WSC"), MARSHALLTOWN SHOPPING CENTER LLC, a Delaware limited liability company
("MSC"), and OSKALOOSA SHOPPING CENTER LLC, a Delaware limited liability company ("OSC";
TSC, PSC, SSC, FSC, KSC, WSC, MSC and OSC, jointly and severally, "Assignor"), and KEYBANK
NATIONAL ASSOCIATION, a national banking association ("Assignee").
Preliminary Statement
A.
Assignee and The Spectra Group, Inc., a Tennessee corporation ("Spectra"), and
Jeff H. Farmer, Jr., an individual ("J. Fanner"; Spectra and J. Farmer, jointly and severally "Developer"),
entered into a Master Construction Loan Agreement dated as of December 8, 2005, as amended by First
Amendment to Master Construction Loan Agreement dated as of June 30, 2006, Second Amendment to
Master Construction Loan Agreement dated as of October I 0, 2006, Third Amendment to Master
Construction Loan Agreement dated as of July 18, 2007 and Fourth Amendment to Master Construction
Loan Agreement dated as of October 10, 2007 (collectively, the "Master Loan Agreement"), pursuant to
which Assignee agreed to make credit available to certain entities designated by the Developer.

B.
Pursuant to the Master Loan Agreement, Assignee extended a loan to Assignor in
the original principal amount of up to Four Million Eight Hundred Seventy-Five and N0/100 Dollars
($4,875,000.00), which loan is evidenced by a Promissory Note dated as of August 25, 2006 from
Assignor to Assignee (the "Note") and by a Construction Loan Agreement dated as of August 25, 2006
between Assignor and Assignee (the "Loan Agreement").

Page I of9

EXHIBIT 29

BK: 1381 PG: 2241

C.
As security for the Note, among other things, Assignor executed and delivered (i)
to Lawyers Title Insurance Corporation as Trustee for the benefit of Assignee, a Construction Deed Of
Trust, Assignment Of Rents, Security Agreement And Fixture Filing dated August 25, 2006, and recorded
on August 29, 2006 in the public records of Rockingham County, North Carolina at Book 01294, Page
1984, as amended by First Amendment to Construction Deed Of Trust, Assignment Of Rents, Security
Agreement And Fixture Filing dated as of the date hereof, and to be recorded in the public records of
Rockingham County, North Carolina prior to this Amendment (collectively, the "Amended Mortgage"),
and (ii) to Assignee, an Assignment of Leases and Rents dated August 25, 2006, and recorded on August
29, 2006 in the public records of Rockingham County, North Carolina at Book 01294, Page 2015 (the
"Assignment"), which Amended Mortgage and Assignment encumber, among other things, real property
more fully described in Exhibit A hereto.
D.
The term of the Note has matured and Assignor has requested that Assignee
extend the term of the Note.
E.
Assignee has agreed to extend the term of the Note pursuant to the Fifth
Amendment to Master Loan Agreement dated as of April 15, 2009 (the "Fifth Amendment"), which Fifth
Amendment requires, among other things, the execution and delivery by Assignor and each other
Borrower (as defined in the Master Loan Agreement) of an extension, increase and modification of the
Note pursuant to three Amended and Restated Promissory Notes in the aggregate original principal
amount of up to Seventy Million Four Hundred Sixty-One Thousand Five Hundred and NOll 00 Dollars
($70,461 ,500.00) (the "Amended Master Note"; the loan evidenced by the Note, as amended and restated
by the Amended and Restated Note, the "Master Loan").
F.
Pursuant to the Loan Agreement dated as of the date hereof between Assignee
and Spectra (the "Swap Termination Loan Agreement"), Assignee has made an additional loan to Spectra
in the original principal amount of up to Two Million Six Hundred Twenty-Five Thousand Dollars
($2,625,000.00) (the "Swap Termination Loan"), which loan is evidenced by a Term Note dated as of the
date hereof from Spectra to Assignee (the "Swap Termination Note").
G.
The principal amount of the Swap Termination Loan will be used by Spectra to
pay the amount due by Spectra on the early termination of the rate swap transaction pursuant to the
Confirmation dated March 19, 2009 to the lSD A Master Agreement dated November 22, 2005 between
Assignee and Spectra. Assignor was a beneficiary of the rate swap transaction in connection with the
Note and has authorized and directed Spectra to terminate the rate swap transaction in connection with the
execution and delivery of this Amendment.
H.
As a condition to Assignee's execution and delivery of the Fifth Amendment and
Assignee's making of the Swap Termination Loan to Spectra, Assignee is requiring the execution and
delivery by Assignor of this Amendment.
NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
I.
Definitions. All capitalized terms used herein shall have the respective meanings
ascribed to them in the Assignment unless otherwise defined herein.
2.
Amendment to Assignment. (a) All references in the Assignment to the Note or
the Notes shall be to, jointly and severally, the Amended Master Note and the Swap Termination Note,
together with all modifications and/or amendments thereto.

Page 2 of9

(b)
All references in the Assignment to the Loan shall be to, jointly and
severally, the Master Loan and the Swap Termination Loan.
(c)

All references in the Assignment to the Mortgage shall be to the

Amended Mortgage.
(d)
All references in the Assignment to the Loan Agreement shall be to,
jointly and severally, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement and the Swap Termination Loan Agreement, together with all modifications and/or
amendments thereto.
(e)
All references in the Assignment to the Loan Documents shall be to,
jointly and severally, the Assignment, as amended hereby, the Amended Master Note, the Swap
Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Amended
Mortgage, the Loan Agreement, the Swap Termination Loan Agreement and all other documents
executed in connection with the Master Loan and the Swap Termination Loan, together with all
modifications and/or amendments thereto.
(f)

The following is added as a new Section 22 of the Assignment:

22.
Assignee's Rights Not Affected by Changes to Other Documents.
Assignor agrees that Assignee's rights under this Assignment shall not be impaired or
affected by any renewals or extensions which may be made from time to time, with or
without the knowledge or consent of Assignor, of the time for payment of interest or
principal under the Note or by any forbearance or delay in collecting interest or principal
under the Note, or by any waiver by Assignee under the Loan Agreement or any other
Loan Document, or by Assignee's failure or election not to pursue any other remedies it
may have against Developer or any other Borrower, or by any change or modification in
the Note, the Loan Agreement or any other Loan Document, or by the acceptance by
Assignee of any additional security or any increase, substitution or change therein, or by
the release by Assignee of any security or any withdrawal thereof or decrease therein, or
by the application of payments received from any source to the payment of any obligation
other than the indebtedness due under the Note, even though Assignee might lawfully
have elected to apply such payments to any part or all of the Indebtedness, it being the
intent hereof that, subject to Assignee's compliance with the terms of this Assignment,
Assignee's rights under this Assignment shall remain in full force and effect,
notwithstanding any act or thing which might otherwise operate as a legal or equitable
discharge of a surety. Assignor further understands and agrees that Assignee may at any
time enter into agreements to amend and modify the Note, the Loan Agreement or other
Loan Documents, and may waive or release any provision or provisions of the Note, the
Loan Agreement or other Loan Documents or any thereof, and, with reference to such
instruments, may make and enter into any such agreement or agreements as Assignee and
the other party or parties to such documents or instruments may deem proper and
desirable, without in any manner impairing or affecting this Assignment or any of
Assignee's rights hereunder or Assignor's obligations hereunder.
(h)

The following is added as a new Section 23 of the Assignment:

23.
Jurisdiction. Assignor hereby irrevocably submits to the nonexclusive jurisdiction of any state or federal court sitting in North Carolina, or in any
state in which collateral for the Note is located, over any action or proceeding arising out
Page 3 of9

of or relating to the Master Loan, the Swap Termination Loan, this Assignment or any
other Loan Document, and Assignor hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in any such state or federal
court. Assignor hereby waives any objection that it may now or hereafter have to the
venue of any such suit or any such court or that such suit is brought in an inconvenient
court.
3.
Release of Assignment. Assignee is entitled to the release of the Assignment in
accordance with and upon the satisfaction of the conditions set forth in Section 12 of the Fifth
Amendment and the Swap Termination Loan Agreement.
4.
Representations. Warranties and Covenants. Assignor hereby represents,
warrants and covenants to Assignee that the outstanding principal amount of the Amended Master Note is
$69,870,099.00, that the Assignment, as modified hereby, remains unmodified and in full force and effect
and that Assignor has no cause of action at law or in equity against Assignee or any person or entity
directly or indirectly holding an interest in the Master Loan or the Swap Termination Loan, including,
without limitation, any offset, counterclaim or defense with respect to the Amended Master Note, the
Swap Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement, the Swap Termination Loan Agreement, the Amended Mortgage, the Assignment, as
modified hereby, or any document executed and delivered in connection therewith.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.)

Page 4 of9

---------------------------------------------------------------------------~

5.
Ratification: Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, if there is more
than one Assignor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.

er
Senior Vice President
TYLER SHOPPING CENTER,
a Delaware litflifed liability company

PULASKI SHOPPING CENTER,
a Delaware limited liability company

By:

By:

lliF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:.77--~~~----~--­

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:-:-:----::-=:-:-----::----Name: Jeff H. Farmer, Jr.
Title: Manager

Name: Jeff H. Farmer, Jr.
Title: Manager

SHAWNEE SHOPPING CENTER,
a Delaware limited liability company

FT. DODGE SHOPPING CENTER,
a Delaware limited liability company

By:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:.-:-:----:-=c-=-----:--Name: Jeff H. Farmer, Jr.
Title: Manager

By:=----=-=:-:-----::----Name: Jeff H. Farmer, Jr.
Title: Manager

KEOKUK SHOPPING CENTER,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

WEST BURLINGTON SHOPPING CENTER,
a Delaware limited liability company

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:

By:·---~~~--~--­

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:.-:-:----::-=;-;::-----::---Name: Jeff H. Farmer, Jr.
Title: Manager

Name: Jeff H. Farmer, Jr.
Title: Manager

[SIGNATURES ·coNTINUE ON FOLLOWING PAGE]

Page 5 of9

5.
Ratification; Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, if there is more
than one Assignor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.
KEYBANK NATIONAL ASSOCIATION,
a national banking association
By:

-:-N::-a_m_e_:'":'K::-urt--:L:-.-:R:-e""ib_e_r- - Title: Senior Vice President

TYLER SHOPPING CENTER,
a Delaware limited liability company

PULASKI SHOPPING CENTER,
a Delaware limited liability company

By:

WEST B
INGTON SHOPPING CENTER,
a Delaware limited liability company
By:

By:

[SIGNATURES CONTINUE ON FOLLOWING PAGE)

Page 5 of9

B

·-

MARSHALLTOWN SHOPPING CENTER,
a Delaware limited liability company

OSKALOOSA SHOPPING CENTER,
a Delaware limited liability company

By:

·-···---··---------------

By:

Exhibit A - Description of Land
577957.1

STATEOFOHIO
COUNTY OF HAMILTON

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalf thereof.
Notary Public
My Commission Expires:._ _ _ _ _ __

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

J1t..

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff' H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Tyler Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

$~7&

Page 6 of9

MARSHALLTOWN SHOPPING CENTER,
a Delaware limited liability company
By:

OSKALOOSA SHOPPING CENTER,
a Delaware limited liability company

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:-:-:----:-=:-=--~:---­

By:-:-:---=-==-=-~=---­
Name: Jeff H. Farmer, Jr.
Title: Manager

Name: Jeff H. Farmer, Jr.
Title: Manager

Exhibit A - Description of Land
S179S1.1

STATEOFOHIO
COUNTY OF HAMILTON

)
) SS:
)

~

The foregoing instrument was acknowledged before me this
day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on

~

behalfthereof.

COUNTY OF SAN MIGUEL

~

Notary Public

CHRISTINE CARRIER
Neilly Nile, SIBle of Qljo
Itt Conlnilllon &pna 0Nt.a1t

STATEOFCOLORADO

{J

My Commission Expires:

IJ-011-

c2DI/

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Tyler Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

Notary Public
My Commission Expires:_ _ _ _ __

Page 6 of9

B

-------------------------------------------~

STATE OF COLORADO

)
) SS:
)

COUNTY OF SAN MIGUEL

'21t...

day of June, 2009, by Jeff H.
The foregoing instrument was acknowledged before me this
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Pulaski Shopping Center LLC, a Delaware limited liability company, on behalf of the c pany.

STATEOFCOLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me thisa day of June, 2009, by Jeff H.
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
S~awnee Shopping Center LLC, a Delaware limited liability company, on
half o e company.

STATE OF COLORADO

)

COUNTY OF SAN MIGUEL

)

) SS:

2&

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Fanner, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Ft. Dodge Shopping Center LLC, a Delaware limited liability company, on beh of the company.
I

Page 7 of9

B

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

2/iJ

day of June, 2009, by Jeff H.
The foregoing instrument was acknowledged before me this
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Keokuk Shopping Center LLC, a Delaware limited liability company, on beha f of the company.

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

2/e_

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of ·
West Burlington Shopping Center LLC, a Delaware limited liability compan on be If of the company.

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

thiJ-/0

day of June, 2009, by Jeff H.
The foregoing instrument was acknowledged before me
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware iimltedliability company, Manager of
Marshalltown Shopping Center LLC, a Delaware limited liability company, on behalf o e company.

Page 8 of9

B

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

21£

The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Fanner, Jr., Manager of .JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Oskaloosa Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

~~~
£/2 VU

Not Public
My Commission Expires:

Page 9 of9

, /,

EXHIBIT A
Description of Land

All of that certain lot or parcel ofland situated in Mayo Township, Rockingham County, North
Carolina, and more particularly described as follows:
All of Lot 1 as shown on the plat ofiDK, LLC Subdivision recorded in Plat Book 60, Page 11,
Rockingham County Registry (the "Plat").
TOGETHER WITH non-exclusive easements for ingress, egress, regress, and utility purposes
over portions of Lots 2, 3, 4, and 5 as shown on the Plat for the benefit of said Lot 1, as follows:
1.

A 30-foot access and utility easement designated as "1" on the Plat;

2.

A 25-foot access and utility easement designated as "2" on the Plat; and

3.

A 30-foot access and utility easement designated as "3" on the Plat.

578465.1

A-1

2

Official Records of Pueblo County Clerk & Recorder 1816477
08/25/2009 02:10:10 PM Page 1 of 9
Amendment To Deed Of Trust R: $46.00 D: $0.00 Gilbert Ortiz
Return to:
Stephen M. King, Esq.
Thompson Hine LLP
312 Walnut Street, 14th Floor
Cincinnati, OH 45202
MAXIMUM PRINCIPAL
AMOUNT SECURED HEREBY:
$73,096,500.00
FIRST AMENDMENT TO CONSTRUCTION DEED OF TRUST. ASSIGNMENT OF RENTS.
SECURITY AGREEMENT AND FIXTURE FlLlNG
This FIRST AMENDMENT TO CONSTRUCTION DEED OF TRUST, ASSIGNMENT
OF RE~S, SECURITY AGREEMENT AND FIXTURE FILING (this "Amendment"), is entered into as
ofthe~day of June, 2009, by and between DURANT SHOPPING CENTER LLC, a Delaware limited
liability company ("DSC"), NEWTON SHOPPJNG CENTER LLC, a Delaware limited liability company
("NSC"), and ZACHARY SHOPPlNG CENTER LLC, a Delaware limited liability company ("ZSC";
DSC, NSC and ZSC, jointly and severally, "Mortgagor"), and KEYBANK NATIONAL ASSOCIATION,
a national banking association ("Mortgagee").
Preliminary Statement
A.
Mortgagee and The Spectra Group, Inc., a Tennessee corporation ("Spectra"),
and JeffH. Farmer, Jr., an individual ("J. Farmer"; Spectra and J. Farmer, jointly and severally
"Developer"), entered into a Master Construction Loan Agreement dated as of December 8, 2005, as
amended by First Amendment to Master Construction Loan Agreement dated as of June 30, 2006, Second
Amendment to Master Construction Loan Agreement dated as of October 10, 2006, Third Amendment to
Master Construction Loan Agreement dated as of July'18, 2007, and Fourth Amendment to Master
Construction Loan Agreement dated as of October 10, 2007 (collectively, the "Master Loan Agreement"),
pursuant to which Mortgagee agreed to make credit available to certain entities designated by the
Developer.

B.
Pursuant to the Master Loan Agreement, Mortgagee extended a loan to
Mortgagor in the original principal amount of up to Two Million Two Hundred Fifty Thousand and
00/100 ($2,250,000.00), which loan is evidenced by a Promissory Note dated as of October 11, 2006 from
Mortgagor to Mortgagee (the "Note") and by a Project Agreement dated as of October 11, 2006 between
Mortgagor and Mort~agee (the "Loan Agreement").
C.
As security for the Note, among other things, Mortgagor executed and delivered
to Public Trustee of Pueblo County, Colorado, as Trustee for the benefit of Mortgagee a Construction
Deed of Trust, Assignment Of Rents, Security Agreement And Fixture Filing dated October 11, 2006, and
recorded on October 20, 2006 in the public records of Pueblo County, Colorado at Reception No.
1698835 (the "Mortgage"), which Mortgage encumbers, among other things, real property more fully
described in Exhibit A hereto.
D.
The term of the Note bas matured and Mortgagor has requested that Mortgagee
extend the term of the Note.
E.
Mortgagee has agreed to extend the term of the Note pursuant to the Fifth
Amendment to Master Loan Agreement dated as of April 15, 2009 (the "Fifth Amendment"), which Fifth
Page 1 of6

EXHIBIT 30

7

2

T~

PagJeZ Iliff !I
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Amendment requires, among other things, the execution and delivery by Mortgagor and each other
Borrower (as defmed in the Master Loan Agreement) of an extension, increase and modification of the
Note pursuant to the three Amended and Restated Promissory Notes in the m:iginal aggregate principal
amount of up to Seventy Million Four Hundred Sixty-One Thousand Five Hundred and N0/100 Dollars
($70,461,500.00) (the "Amended Master Note"; the loan evidenced by the Note, as amended and restated
by the Amended and Restated Note, the "Master Loan").
F.
Pursuant to the Loan Agreement dated as of the date hereof between Mortgagee
and Spectra (the "Swap Termination Loan Agreement"), Mortgagee has made an additional loan to
Spectra in the original principal amount of up to Two Million Six Hundred Twenty-Five Thousand
Dollars ($2,625,000.00) (the "Swap Termination Loan"), which loan is evidenced by a Term Note dated
as of the date hereof from Spectra to Mortgagee (the "Swap Termination Note").
G.
The principal amount of the Swap Termination Loan will be used by Spectra to
pay the amount due by Spectra on the early termination of the rate swap transaction pursuant to the
Confirmation dated March 19, 2009 to the ISDA Master Agreement dated November 22, 2005 between
Mortgagee and Spectra. Mortgagor was a beneficiary of the rate swap transaction in connection with the
Note and has authorized and directed Spectra to terminate the rate swap transaction in connection with the
execution and delivery of this Amendment.

H.
As a condition to Mortgagee's execution and delivery of the Fifth Amendment
and Mortgagee's making of the Swap Termination Loan to Spectra, Mortgagee is requiring the execution
and delivery by Mortgagor of this Amendment.
NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Mortgagor and Mortgagee hereby agree as follows:
1.
Definitions. All capitalized terms used herein shall have the respective meanings
ascribed to them in the Mortgage unless otherwise defined herein.

2.
Amendment to Mortgage. (a) All references in the Mortgage to the Note or the
Notes shall be to, jointly and severally, the Amended Master Note and the Swap Termination Note,
together with all modifications and/or amendments thereto.
(b)
All references in the Mortgage to the Loan shall be to, jointly and
severally, the Master Loan and the Swap Termination-Loan.
(c)
All references in the Mortgage to the Loan Agreement shall be to, jointly
and severally, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan Agreement
and the Swap Termination Loan Agreement, together with all modifications and/or amendments thereto.
(d)
All references in the Mortgage to the Loan Documents shall be to, jointly
and severa1Jy, the Mortgage, as amended hereby, the Amended Master Note, the Swap Termination Note,
the Master Loan Agreement, as amended by 'the Fifth Amendment, the Loan Agreement, the Swap
Termination Loan Agreement and all other documents executed in connection with the Master Loan and
the Swap Termination Loan, together with a11 modifications and/or amendments thereto.
(e)
Section 8.13 of the Mortgage is amended to increase the maximum
principal amount secured by the Mortgage from Two Million Two Hundred Fifty Thousand and 00/100
($2,250,000.00) to Seventy-Three Million Ninety-Six Thousand Five Hundred and N0/100 Dollars
($73,096,500.00), together with interest and all other amounts secured thereby.

Page 2 of6

2

T~

lltlgreJJ tdf!B
08/25/2009 02:10:10 PM

(f)
Section 1.2 of the Mortgage is amended to add the following to the
defmition of Secured Obligations:
(ix)
Payment and performance of all obligations of Farmer,
Spectra and Mortgagor, as applicable, under the Master Loan Agreement, as amended by
the Fifth Amendment, the Amended Master Note, the Swap Termination Loan
Agreement and the Swap Tennination Note, in each case together with all modifications
and/or amendments thereof, and under any judgment or other obligation of Farmer,
Spectra and Mortgagor, as applicable (including, without limitation, au obligation to pay
a deficiency), with respect to the Secured Obligations.
(g)

The following is added as a new Section 8.19 of the Mortgage:

Mortgagee's Rights Not Affected by Changes to Other
Section 8.19
Documents. Mortgagor agrees that Mortgagee's rights under this Mortgage shall not be
impaired or affected by any renewals or extensions which may be made from time to
time, with or without the knowledge or consent of Mortgagor, ofthe time for payment of
interest or principal under the Note or by any forbearance or delay in collecting interest
or principal under the Note, or by any waiver by Mortgagee under the Loan Agreement or
any other Loan Document, or by Mortgagee's failure or election not to pursue any other
remedies it may have against Developer or any other Borrower, or by any change or
modification in the Note, the Loan Agreement or any other Loan Document, or by the
acceptance by Mortgagee of any additional security or any increase, substitution or
change therein, or by the release by Mortgagee of any security or any withdrawal thereof
or decrease therein, or by the application of payments received from any source to the
payment of any obligation other than the indebtedness due under the Note, even though
Mortgagee might lawfully have elected to apply such payments to any part or all of the
Indebtedness, it being the intent hereof that, subject to Mortgagee's compliance with the
terms of this Mortgage, Mortgagee's rights under this Mortgage shall remain in full force
and effect, notwithstanding any act or thing which might otherwise operate as a legal or
equitable discharge of a surety. Mortgagor further understands and agrees that
Mortgagee may at any time enter into agreements to amend and modify the Note, the
Loan Agreement or other Loan Documents, and may waive or release any provision or
provisions of the Note, the Loan Agreement or other Loan Documents or any thereof,
and, with reference to such instruments, may make and enter into any such agreement or
agreements as Mortgagee and the other party or parties to such documents or instruments
may deem proper and desirable, without in any manner impairing or affecting this
Mortgage or any of Mortgagee's rights hereunder or Mortgagor's obligations hereunder.
(h)

The following is added as a new Section 8.20 of the Mortgage:

Jurisdiction. Mortgagor hereby irrevocably submits to
Section 8.20
the non-exclusive jurisdiction of any state or federal court sitting in Colorado, or in any
state in which collateral for the Note is located, over any action or proceeding arising out
of or relating to the Master Loan, the Swap Termination Loan, this Mortgage or any other
Loan Document, and Mortgagor hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in any such state or federal court.
Mortgagor hereby waives any objection that it may now or hereafter have to the venue of
any such suit or any such court or that such suit is brought in an inconvenient court.
\

(i)

The following is added as a new Section 8.21 of the Mortgage:

Page 3 of6

T~~41-Gdf!B

08/25/2009 02:10:10 PM

Section 8.21
Inconsistencies with ResP-ect to Release. In the event of
any conflict or inconsistency with respect to release of the Property between the terms of
(a) the Fifth Amendment and the Swap Termination Loan Agreement and (b) thls
Mortgage, the terms of the Fifth Amendment and the Swap Termination Loan Agreement
shall control.
3.
Release of Mortgage. Mortgagor is entitled to the release of the Mortgage in
accordance with and upon the satisfaction of the conditions set forth in Section 12 of the Fifth
Amendment and the Swap Termination Loan Agreement.
4.
Representations, Warranties and Covenants. Mortgagor hereby represents,
warrants and covenants to Mortgagee that the outstanding principal amount of the Amended Master Note
is $69,870,099.00, that the Mortgage, as modified hereby, remains unmodified and in full force and effect
and that Mortgagor has no cause of action at law or in equity against Mmtgagee or any person or entity
directly or indirectly holding an interest in the Master Loan or the Swap Termination Loan, including,
without limitation, any offset, counterclaim or defense with respect to the Amended Master Note, the
Swap Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement, the Swap Termination Loan Agreement, the Mortgage, as modified hereby, or any document
executed and delivered in connection therewith.
[REMAlNDER OF PAGE INTENTIONALLY LEFT BLANK.]

Page 4 of6

2

TISI'I&5lm PagJe5 cd'!B
08/25/2009 02:10:10 PM

5.
Ratification; Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, if there is more
than one Assignor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first abo written.
DURANT SHOPPING CENTER LLC,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:=----::--c=-----Name: JeffH. Farmer, Jr.
Title: Manager

NEWTON SHOPPING CENTER LLC,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware

limited liability company, its Manager

By:.~--~~~--~~--­
Name: Jeff H. Farmer, Jr.
Title: Manager
ZACHARY SHOPPING CENTER LLC,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:.~--~~~--~~--­
Name: Jeff H. Farmer, Jr.
Title: Manager

Exhibit A-- Description of Land
577918.1

[ACKNOWLEDGMENTS FOLLOW.]

PageS of6

TISI'tii5IIIEB ~(I cdf!J
08/25/2009 02:10:10 PM

5.
Ratification; Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, ifthere is more
than one Assignor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.
KEYBANK NATIONAL ASSOCIATION,
a national banking association

DURANT SHOPPING CENTER LLC,
a Delaware limited liability company

By: _ _---c---~--­
Name: Kurt L. Reiber
·Title: Senior Vice President

By:

NEWTON SHOPPING CENTER LLC,
a Delaware limited liability company
By:

ZACHARY SHOPPING CENTER LLC,
a Delaware 'm'
liability company
By:

Exhibit A -- Description of Land
577918.1

[ACKNOWLEDGMENTS FOLLOW.]

Page 5 of6

2

TBI1IID5lZI:i llame 71 cd !I
08/25/2009 02:10:10 PM

STATE OF OHIO
COUNTY OF HAMILTON

)
) SS:
)

i,:

~

The foregoing instrument was acknowledged before me this
day of June, 2009 by Kurt
the Senior Vice President of KeyBank National Association, a national banking association, on

~c~

Notary Public
My Commission Expires:
STATE OF COLORADO
COUNTY OF SAN MIGUEL

0
l ~ c2./ - oZ0//

)
) SS:
)

The foregoing instrument was acknowledged before me this _ _ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
··~urant Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

Notary Public
My Commission Expires:_ _ _ _ _ __
STATEOFCOLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged b.efore me this _ _ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Newton Shopping Center LLC, a Delaware limited liability co,mpany, on behalf of the company.

...., .

Notary Public
My Commission Expires: _ _ _ _ _ __

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this _ _ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Zachary Shopping Center LLC, a Delaware limited liability company, on behalf of the company.

Notary Public
My Commission Expires: _ _ _ _ _ __

Page 6 of6

TB.tlll!i.l$lZB Fame madf !I
08/25/2009 02:10:10 PM

STATEOFOIDO

)

) SS:
COUNTY OF HAMILTON

)

The foregoing instrument was acknowledged before me this __ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of KeyBank National Association, a national banking association, on
behalf thereof.
Notary Public
My Commission Expires: _ _ _ _ _ __
STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

Zf.t_

.•
The foregoing instrument was acknowledged before me this
day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Durant Shopping Center LLC, a Delaware limited liability company, on behalfofthe c pany.

STATE OF COLORADO
COUNTY OF SAN MIGUEL
-

)
) SS:
)

The foregoing instrument was acknowledged before me this~ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Newton Shopping Center LLC, a Delaware limited liability co.mpany, on behalf ofthe c pany.

STATE OF COLORADO

)

COUNTY OF SAN MIGUEL

)

) SS:
The foregoing instrument was aclmowledged before me this 2£z_ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Zachary Shopping Center LLC, a Delaware limited liability company, on beh lfofth ompany.

Page 6 of6

Fame 9J adf 9J
08/25/2009 02:10:10 PM

1'BI1tl5i)5D

EXIDBIT A
Description of Land

Parcel "A", Lot Line Vacation No. 2006 - 010 (formerly Lots 13 through
17, Block 2, Tract 240) according to the plat thereof filed for record
October 3, 2006 Reception Number 1696395 in the Office of the
Pueblo County Clerk & Recorder, County of Pueblo, State of Colorado.

A-1

Official Records of Pueblo County Clerk & Recorder 1816478
08/25/2009 02:10:10 PM Page 1 of 9
Amendment To Assignment Of Leases & Rent R: $46.00 D: $0.00 Gilbert
Ortiz
Return to:
Stephen M. King, Esq.
Thompson Hine LLP
312 Walnut Street, 14th Floor
Cincinnati, OH 45202
FIRST AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
This FIRST AMENDME~ TO ASSIGNMENT OF LEASES AND RENTS (tllis
"Amendment"), is entered into as.ofth~ day of June, 2009, by and between DURANT SHOPPING
CENTER LLC, a Delaware limited liability company ("DSC"), NEWTON SHOPPING CENTER LLC, a
Delaware limited liability company ("NSC"), and ZACHARY SHOPPING CENTER LLC, a Delaware
limited liability company ("ZSC"; DSC, NSC and ZSC,jointly and severally, "Assignor"), and
KEYBANK NATIONAL ASSOCIATION, a national banking association ("Assignee").
Preliminary Statement
A.
Assignee and The Spectra Group, Inc., a Tennessee corporation ("Spectra"), and
JeffH. Farmer, Jr., an individual ("J. Fanner"; Spectra and J. Farmer, jointly and severally "Developer"),
entered into a Master Construction Loan Agreement dated as of December 8, 2005, as amended by First
Amendment to Master Construction Loan Agreement dated as of June 30, 2006, Second Amendment to
Master Construction Loan Agreement dated as of October 10, 2006, Third Amendment to Master
Construction Loan Agreement dated as of July 18, 2007 and Fourth Amendment to Master Construction
Loan Agreement dated as of October 10, 2007 (collectively, the "Master Loan Agreement"), pursuant to
which Assignee agreed to make credit available to certain entities designated by the Developer.
B.
Pursuant to the Master Loan Agreement, Assignee extended a loan to Assignor in
the original principal amount of up to Two Million Two Hundred Fifty Thousand and 00/100
($2,250,000.00), which loan is evidenced by a Promissory Note dated as of October 11, 2006 from
Assignor to Assignee (the "Note") and by a Project Agreement dated as of October 11, 2006 between
Assignor and Assignee (the "Loan Agreement").
C.
As security for the Note, among other things, Assignor executed and delivered (i)
to Public Trustee of Pueblo County, Colorado, as Trustee for the benefit of Assignee, a Construction
Deed of Trust, Assignment Of Rents, Security Agreement And Fixture Filing dated October 11, 2006, and
recorded on October 20, 2006 in the public records of Pueblo County, Colorado at Reception No.
1698835, as amended by First Amendment to Construction Deed of Trust, Assignment Of Rents, Security
Agreement And Fixture Filing dated as of the date hereof, and to be recorded in the public records of
Pueblo.County, Colorado prior to this Amendment (collectively, the "Amended Mortgage"), and (ii) to
Assignee, an Assignment of Leases and Rents dated October 11,2006, and recorded on October 20, 2006
in the public records of Pueblo County, Colorado at Reception No. 1698836 (the "Assignment"), which
Amended Mortgage and Assignment encumber, among other things, real property more fully described in
Exhibit A hereto.
D.
The term of the Note has matured and Assignor has requested that Assignee
extend the term of the Note.
E.
Assignee has agreed to extend the term ofthe Note pursuant to the Fifth
Amendment to Master Loan Agreement dated as of Apri115, 2009 (the "Fifth Amendment"), which Fifth
Amendment requires, among other things, the execution and delivery by Assignor and each other
Page 1 of6

TBI'IIeilr5lillj ~ Z cdf !I
08/25/2009 02:10:10 PM

Borrower (as defmed in the Master Loan Agreement) of an extension, increase and modification of the
Note pursuant to the three Amended and Restated Promissory Notes in the original aggregate principal
amount of up to Seventy Million Four Hundred Sixty-One Thousand Five Hundred and N0/1 00 Dollars
($70,461,500.00) (the "Amended Master Note"; the loan evidenced by the Note, as amended and restated
by the Amended and Restated Note, the "Master Loan").
F.
Pursuant to the Loan Agreement dated as ofthe date hereof between Assignee
and Spectra (the "Swap Termination Loan Agreement"), Assignee has made an additional loan to Spectra
in the original principal amount of up to Two Million Six Hundred Twenty-Five Thousand Dollars
($2,625,000.00) (the "Swap Termination Loan"), which loan is evidenced by a Term Note dated as of the
date hereof from Spectra to Assignee (the "Swap Termination Note").
G.
The principal amount of the Swap Termination Loan will be used by Spectra to
pay the amount due by Spectra on the early termination of the rate swap transaction pursuant to the
Confirmation dated March 19,2009 to the ISDA Master Agreement dated November 22, 2005 between
Assignee and Spectra. Assignor was a beneficiary of the rate swap transaction in connection with the
Note and has authorized and directed Spectra to terminate the rate swap transaction in connection with the
execution and delivery of this ~endment.
H.
As a condition to Assignee's execution and delivery of the Fifth Amendment and
Assignee's making of the Swap Termination Loan to Spectra, Assignee is requiring the execution and
delivery by Assignor of this Amendment.
NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as foJlows:
1.
Definitions. All capitalized terms used herein shall have the respective meanings
ascribed to them in the Assignment unless otherwise defined herein.
2.
Amendment to Assignment. (a) All references in the Assignment to the Note or
the Notes shall be to, jointly and severally, the Amended Master Note and the Swap Termination Note,
together with all modifications and/or amendments thereto.
(b)
All references in the Assignment to the Loan shall be to, jointly and
severally, the Master Loan and the Swap Termination Loan.
(c)

AII references in the Assignment to the Mortgage shall be to the

Amended Mortgage.
(d)
All references in the Assignment to the Loan Agreement shall be to,
jointly and severally, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement and the Swap Termination Loan Agreement, together with all modifications and/or
amendments thereto.
(e)
AJI references in the Assignment to the Loan Documents shall be to,
jointly and severally, the Assignment, as amended hereby, the Amended Master Note, the Swap
Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Amended
Mortgage, the Loan Agreement, the Swap Termination Loan Agreement and all other documents
executed in connection with the Master Loan and the Swap Termination Loan, together with all
modifications and/or amendments thereto.

Page2 of6

T81111515Bi PagJelJ adf!B
08/25/2009 02:10:10 PM

(f)

The following is added as a new Section 22 of the Assignment:

22.
Assignee's Rights Not Affected by Changes to Other Documents.
Assignor agrees that Assignee's rights under this Assignment shall not be impaired or
affected by any renewals or extensions which may be made from time to time, with or
without the know ledge or consent of Assignor, of the time for payment of interest or
principal under the Note or by any forbearance or delay in collecting interest or principal
under the Note, or by any waiver by Assignee under the Loan Agreement or any other
Loan Document, or by Assignee's failure or election not to pursue any other remedies it
may have against Developer or any other Borrower, or by any change or modification in
the Note, the Loan Agreement or any other Loan Document, or by the acceptance by
Assignee of any additional security or any increase, substitution or change therein, or by
the release by Assignee of any security or any withdrawal thereof or decrease therein, or
by the application of payments received from any source to the payment of any obligation
other than the indebtedness due under the Note, even though Assignee might lawfully
have elected to apply such payments to any part or all of the Indebtedness, it being the
intent hereof that, subject to Assignee's compliance with the terms of this Assignment,
Assignee's rights under this Assignment shall remain in full force and effect,
notwithstanding any act or thing which might otherwise operate as a legal or equitable
discharge of a surety. Assignor further understands and agrees that Assignee may at any
time enter into agreements to amend and modify the Note, the Loan Agreement or other
Loan Documents, and may waive or release any provision or provisions ofthe Note, the
Loan Agreement or other Loan Documents or any thereof, and, with reference to such
instruments, may make and enter into any such agreement or agreements as Assignee and
the other party or parties to such docm;nents or instruments may deem proper and
desirable, without in any manner impairing or affecting this Assignment or any of
Assignee's rights hereunder or Assigno,r's obligations hereunder.
~

(h)

'
The following is added as a new Section 23 of the Assignment:

23.
Jurisdiction. Assignor hereby irrevocably submits to the nonexclusive jurisdiction of any state or federal court sitting in Colorado, or in any state in
which collateral for the Note is located, over any action or proceeding arising out of or
relating to the Master Loan, the Swap Termination Loan, this Assignment or any other
Loan Document, and Assignor hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in any such state or federal court.
Assignor hereby waives any objection that it may now or hereafter have to the venue of
any such suit or any such court or that such suit is brought in an inconvenient court.

3.
Release of Assignment. Assignee is entitled to the release of the Assignment in
accordance with and upon the satisfaction of the conditions set forth in Section 12 of the Fifth
Amendment and the Swap Termination Loan Agreement.
4.
Representations, Warranties and Covenants. Assignor hereby represents,
warrants and covenants to Assignee that the outstanding principal amount of the Amended Master Note is
$69,870,099.00, that the Assignment, as modified hereby, remains unmodified and in full force and effect
and that Assignor has no cause of action at law or in equity against Assignee or any person or entity
directly or indirectly holding an interest in the Master Loan or the Swap Termination Loan, including,
without limitation, any offset, counterclaim or defense with respect to the Amended Master Note, the
Swap Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan

Page 3 of6

T11'1115l1R11 FqJe 41. Cldf 5
08/25/2009 02:10:10 PM

Agreement, the Swap Termination Loan Agreement, the Amended Mortgage, the Assignment, as
modified hereby, or any document executed and delivered in connection therewith.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

Page4 of6

T8l'lll5lliDiJ ~P~tagJe s cd m
08/25/2009 02:10:10 PM

5.
Ratification; Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, if there is more
than one Assignor, are joint and several.

IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.
DURANT SHOPPING CENTER LLC,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:.~--~~~----~--­
Name: Jeff H. Farmer, Jr.
Title: Manager
NEWTON SHOPPING CENTER LLC,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:.~--~~~----~--­
Name: JeffH. Farmer, Jr.
·Title: Manager
.
.
ZACHARY SHOPPING CENTER LLC,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:-:-:-----.:-==-=-._::---Name: Jeff H. Farmer, Jr.
Title: Manager

Exhibit A-- Description of Land
577918.1

[ACKNOWLEDGMENTS FOLLOW.]

Page 5 of6

TB1111Dfilj16

~&i cd'91

08/25/2009 02:10:10 PM

5.
Ratification; Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, if there is more
than one Assignor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.
KEYBANK NATIONAL ASSOCIATION,
a national banking association

DURANT SHOPPING CENTER LLC,
a Delaware limited liability company

By:-:-:---,:-:--:--::-~--­

By:

Name: Kurt L. Reiber
Title: Senior Vice President

NEWTON SHOPPING CENTER LLC,
a Delaware limited liability company
By:

ZACHARY SHOPPING CENTER LLC,
a Delaware limited liability company

Exhibit A-- Description of Land
577918.1

[ACKNOWLEDGMENTS FOLLOW.]

Page 5 of6

~

l'agJe7/d!l
08/25/2009 02:10:10 PM

STATE OF OHIO

)

) SS:
COUNTY OF HAMILTON
·'''"~~·J~~Yi~&•r,

)

The foregoing instrument was acknowledged before me this..:&_ day of June, 2009 by Kurt L.
the Senior Vice President of KeyBank National Association, a national banking association, on

/ ) / ~ ..L
~

CHRISTINE CARRIER

Notary Public, SlateofOito.
MyCommlssklnExp&ea09-21-m11
STATE OF COLORADO
COUNTY OF SAN MIGUEL

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9

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P bl'
.
Otary U IC
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My Commission Expires:_____ __
1
)
) SS:
)

The foregoing instrument was ackno~ledged before me this __ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Durant Shopping Center LLC, a Delaware limited liability company, on behalf of the company.
Notary Public
My Commission Expires:_ _ _ _ _ __
STATE OF COLORADO .
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this_·_day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Newton Shopping Center LLC, a Delaware limited liability co.mpany, on behalf of the company.
Notary Public
My Commission Expires:._ _ _ _ _ __
STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Zachary Shopping Center LLC, a Delaware limited liability company, on behalf of the company.
Notary Public
My Commission Expires:_ _ _ _ _ __

Page 6 of6

TIIHifSiitiBi

~~~time

madf 11

08/25/2009 02:10:10 PM

STATE OF OHIO
COUNTY OF HAMILTON

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of Key Bank National Association, a national banking association, on
behalf thereof.
Notary Public
My Commission Expires:_ _ _ _ _ __
STATE OF COLORADO

)

COUNTY OF SAN MIGUEL

)

) SS:

The foregoing instrument was acknowledged before me this~ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limite(! liability company, Manager of
Durant Shopping Center LLC, a Delaware limited liability company, on behalf of the corn any.

0

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)ss:
)

My Commission Expires:

-·~

~4~~;(~·~~~~~:t."r ~
S\;~r~:. oF co~?~~3=j~
='"',;;.~-=··

)

The foregoing instrument was acknowledged before me this .J/r; day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Newton Shopping Center LLC, a Delaware lirnitetlliability co.mpany, on behalf o the co any.

STATE OF COLORADO

)

COUNTY OF SAN MIGUEL

)

) 88:

The foregoing instrument was acknowledged before me this '1//J day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware lirn"'lie'tiiability company, Manager of
Zachary Shopping Center LLC, a Delaware limited liability cornpan~, on behal of the rnpany.

Page 6 of6

Pa1F !It adf !It
08/25/2009 02:10:10 PM

T8I11I5Ji5Jjllj

EXIDBIT A
Description ofLand

Parcel "A"1 Lot Line Vacation No. 2006 - 010 (formerly Lots 13 through
17, Block 2, Tract 240) according to the plat thereof filed for record
October 3, 2006 Reception Number 1696395 in the Office of the
Pueblo County Clerk & Recorder, County of Pueblo, State of Colorado.

A-1

Official Records of Pueblo County Clerk & Recorder 1816479
08/25/2009 02:10:10 PM Page 1 of 2
Subordination Agreement R: $11.00 D: $0.00 Gilbert Ortiz

Return to:
Stephen M. King, Esq.
Thompson Hine LLP
312 Walnut Street, 14th Floor
Cincinnati, OH 45202
CONFffiMATORY SUBORDINATION AGREEMENT

This CONFIRMATORY SUBORDINATION AGREEMENT (this "Agreement") dated as of
June::;u_, 2009, is made by JEFF H. FARMER, JR., a Tennessee resident, as Collection Agent
("Subordinate Lender"), for the use and benefit ofKEYBANK NATIONAL ASSOCIATION, a national
banking association ("Lender").
RECITALS
A.
Zachary Shopping Center LLC, a Delaware limited liability company, Durant Shopping
Center LLC, a Delaware limited liability company, and Newton Shopping Center LLC, a Delaware
limited liability company Gointly and severally, "Pledgor"), are indebted to Subordinate Lender as set
forth in that certain Deed of Trust dated May 17, 2006 by Pledgor to the Public Trustee for Pueblo
County, Colorado, Trustee, for the benefit of Subordinate Lender, recorded in the Office of the County
Clerk and Recorder in Pueblo County, Colorado on May 17, 2006, at Reception No. 1675899 (the
"Subordinate Deed of Trust"; the indebtedness secured by the Subordinate Deed of Trust and any and all
existing and future indebtedness of Pledgor to Subordinate Lender, collectively, the "Subordinate Debt").

B.
Pledgor is indebted to Lender as set forth in that certain Construction Deed ofT111st,
Assignment of Rents, Security Agreement and Fixture Filing dated as of October 11, 2006 by Pledgor to
Public Trustee of Pueblo County, Colorado, for the benefit of Lender, recorded in the Office ofthe
County Clerk and Recorder in Pueblo County, Colorado on October 20,2006, at Reception No. 1698835
(the "Prioritv Deed of Trust"; the indebtedness secured by the Priority Deed of Trust, together with any
and all existing and future indebtedness of Pledgor to Lender, collectively, the "Priority Debt").
C.
The Subordinate Debt is absolutely subordinated and junior in right of payment to the
Priority Debt pursuant to the Subordination Agreement dated as of October 9, 2006 by Pledgor and
Subordinate Lender for the benefit of Lender, recorded in the Office ofthe County Clerk and Recorder in
Pueblo County, Colorado on October 20,2006, at Reception No. 1698838 (the "Subordination
Agreement").
D.
Pledgor and Lender have amended the Priority Deed of Trust pursuant to a First
Amendment to Construction Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing
executed and recorded in the Office of the County Clerk in Pueblo· County, Colorado (the "First
Amendment"), which, among other things, increases the principal amount secured thereby and modifies
the terms of payment for the indebtedness secured thereby.
E.
As a condition to the execution and delivery of the First Amendment, Lender has
required Subordinate Lender to confirm and ratify the Subordination Agreement.

Page 1 of2

1816479 Page 2 of 2
08/25/2009 02:10:10 PM

NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt and
sufficiency ofwhich are hereby aclmowledged, Subordinate Lender hereby agrees for the benefit of
Lender as follows:
1.
Confirmation of Unconditional Subordination. The Subordinate Deed of Trust is and
shall be absolutely subordinated and junior in right of payment and priority of lien to the Priority Deed of
Trust, as amended by the First Amendment. The Subordinate Debt is and shall be absolutely
subordinated and junior in rightofpaymentand priority of lien to the Priority Debt.
2.
Ratification. Except as modified hereby, the Subordination Agreement shall remain
unmodified and in full force and effect. Subordinate Lender hereby ratifies and confirms the
Subordination Agreement, as modified hereby.
IN WITNESS WHEREOF, this Agreement has been duly executed Subordinate Lender as of the
day and year first above written.

s

STATE OF COLORADO
COUNT OF SAN MIGUEL
This instrument was acknowledged before me on this J(day of June, 2009 b~ Jeff H. Farmer, Jr.,

~d~

an individual.

N tary Public
,
Printed Name: (YJaYoStA.-~
My Commission Expires: ~J 1/, 1

. Lee

.
578063.1

I

--~,.~~·~~;!!!!~".riA•

•. -- -

MAR!Sf~A A. LEE

NOT:".RY PUBLIC
ST/-\TE OF COLORADO

Page2 of2

Official Records of Pueblo County Clerk & Recorder 1816480
08/25/2009 02:10:10 PM Page 1 of 2
Subordination Agreement R: $11.00 D: $0.00 Gilbert Ortiz

Return to:
Stephen M. King, Esq.
Thompson Hine LLP
312 Walnut Street, 14th Floor
Cincinnati, OH 45202

CONFmMATORY SUBORDINATION AGREEMENT
This CONFIRMATORY SUBORDINATION AGREEMENT (this "Agreement") dated as of
2009, is made by JEFF H. FARMER. JR., a Tennessee resident, as Collection Agent
("Subordinate Lender"), for the use and benefit ofKEYBANK NATIONAL ASSOCIATION, a national
banking association ("Lender").
June~,

RECITALS
A.
Zachary Shopping Center LLC, a Delaware limited liability company, Durant Shopping
Center LLC, a Delaware limited liability company, and Newton Shopping Center LLC, a Delaware
limited liability company Gointly and severally, "Pledgor"), are indebted to Subordinate Lender as set
forth in that certain Deed of Trust dated July 11, 2006 by Pledgor to the Public Trustee for Pueblo
County, Colorado, Trustee, for the benefit of Subordinate Lender, recorded in the Office of the County
Clerk and Recorder in Pueblo County, Colorado on July 11, 2006, at Reception No. 1683492 (the
"Subordinate Deed of Trust"; the indebtedness secured by the Subordinate Deed of Trust and any and all
existing and future indebtedness of Pledgor to Subordinate Lender, collectively, the "Subordinate Debt").
B.
Pledgor is indebted to Lender as set forth in that certain Construction Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing dated as of October 11, 2006 by Pledgor to
Public Trustee of Pueblo County, Colorado, for the benefit of Lender, recorded in the Office of the
County Clerk and Recorder in Pueblo County, Colorado on October 20,2006, at Reception No. 1698835
(the "Priority Deed of Trust"; the indebtedness secured by the Priority Deed of Trust, together with any
and all existing and future indebtedness of Pledgor to Lender, collectively, the "Priority Debt").
C.
The Subordinate Debt is absolutely subordinated and junior in right of payment to the
Priority Debt pursuant to the Subordination Agreement dated as of October 9, 2006 by Pledgor and
Subordinate Lender for the benefit ofLender, recorded in the Office of the County Clerk and Recorder in
Pueblo County, Colorado on October 20, 2006, at Reception No. 1698837 (the "Subordination
Agreement").
D.
Pledgor and Lender have amended the Priority Deed of Trust pursuant to a First
Amendment to Construction Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing
executed and recorded in the Office of the County Clerk in Pueblo County, Colora~o (the "First
Amendment"), which, among other things, increases the principal amount secured thereby and modifies
the terms of payment for the indebtedness secured thereby.
E.
As a condition to the execution and delivery of the First Amendment, Lender has
required Subordinate Lender to confirm and ratify the Subordination Agreement.

Page 1 of2

1816480 Page 2 of 2
08/25/2009 02:10:10 PM

NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt and
sufficiency of which are hereby aclrnowledged; Subordinate Lender hereby agrees for the benefit of
Lender as follows:
1.
Confirmation ofUnconditional Subordination. The Subordinate Mortgage is and shall be
absolutely subordinated and junior in right of payment and priority of lien to the Priority Mortgage, as
amended by the Second Amendment. The Subordinate Debt is and shall be absolutely subordinated and
junior in right of payment and priority of lien to the Priority Debt.
2.
Ratification. Except as modified hereby, the Subordination Agreement shall remain
unmodified and in full force and effect. Subordinate Lender hereby ratifies and confirms the
Subordination Agreement, as modified hereby.
1N WITNESS WHEREOF, this Agreement has been duly executed Subordinate Len er as of the
day and year first above written.

STATE OF COLORADO
COUNT OF SAN JYIIGUEL
This instrument was aclrnowledged before me on this J.k;day of June, 2009 by J fH. Farmer, Jr.,
an individual.
o ry Public
.
Printed Name: ty)o.n."5i
My Commission

~

. t?e
Expire~~ 1/i1

578099.1

Page2 of2

I

1

Official Records of Pueblo County Clerk & Recorder 1816478
08/25/2009 02:10:10 PM Page 1 of 9
Amendment To Assignment Of Leases & Rent R: $46.00 D: $0.00 Gilbert
Ortiz
Return to:
Stephen M. King, Esq.
Thompson Hine LLP
312 Walnut Street, 14th Floor
Cincinnati, OH 45202
FIRST AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
This FIRST AMENDME~ TO ASSIGNMENT OF LEASES AND RENTS (tllis
"Amendment"), is entered into as.ofth~ day of June, 2009, by and between DURANT SHOPPING
CENTER LLC, a Delaware limited liability company ("DSC"), NEWTON SHOPPING CENTER LLC, a
Delaware limited liability company ("NSC"), and ZACHARY SHOPPING CENTER LLC, a Delaware
limited liability company ("ZSC"; DSC, NSC and ZSC,jointly and severally, "Assignor"), and
KEYBANK NATIONAL ASSOCIATION, a national banking association ("Assignee").
Preliminary Statement
A.
Assignee and The Spectra Group, Inc., a Tennessee corporation ("Spectra"), and
JeffH. Farmer, Jr., an individual ("J. Fanner"; Spectra and J. Farmer, jointly and severally "Developer"),
entered into a Master Construction Loan Agreement dated as of December 8, 2005, as amended by First
Amendment to Master Construction Loan Agreement dated as of June 30, 2006, Second Amendment to
Master Construction Loan Agreement dated as of October 10, 2006, Third Amendment to Master
Construction Loan Agreement dated as of July 18, 2007 and Fourth Amendment to Master Construction
Loan Agreement dated as of October 10, 2007 (collectively, the "Master Loan Agreement"), pursuant to
which Assignee agreed to make credit available to certain entities designated by the Developer.
B.
Pursuant to the Master Loan Agreement, Assignee extended a loan to Assignor in
the original principal amount of up to Two Million Two Hundred Fifty Thousand and 00/100
($2,250,000.00), which loan is evidenced by a Promissory Note dated as of October 11, 2006 from
Assignor to Assignee (the "Note") and by a Project Agreement dated as of October 11, 2006 between
Assignor and Assignee (the "Loan Agreement").
C.
As security for the Note, among other things, Assignor executed and delivered (i)
to Public Trustee of Pueblo County, Colorado, as Trustee for the benefit of Assignee, a Construction
Deed of Trust, Assignment Of Rents, Security Agreement And Fixture Filing dated October 11, 2006, and
recorded on October 20, 2006 in the public records of Pueblo County, Colorado at Reception No.
1698835, as amended by First Amendment to Construction Deed of Trust, Assignment Of Rents, Security
Agreement And Fixture Filing dated as of the date hereof, and to be recorded in the public records of
Pueblo.County, Colorado prior to this Amendment (collectively, the "Amended Mortgage"), and (ii) to
Assignee, an Assignment of Leases and Rents dated October 11,2006, and recorded on October 20, 2006
in the public records of Pueblo County, Colorado at Reception No. 1698836 (the "Assignment"), which
Amended Mortgage and Assignment encumber, among other things, real property more fully described in
Exhibit A hereto.
D.
The term of the Note has matured and Assignor has requested that Assignee
extend the term of the Note.
E.
Assignee has agreed to extend the term ofthe Note pursuant to the Fifth
Amendment to Master Loan Agreement dated as of Apri115, 2009 (the "Fifth Amendment"), which Fifth
Amendment requires, among other things, the execution and delivery by Assignor and each other
Page 1 of6

EXHIBIT 31

1

TBI'IIeilr5lillj ~ Z cdf !I
08/25/2009 02:10:10 PM

Borrower (as defmed in the Master Loan Agreement) of an extension, increase and modification of the
Note pursuant to the three Amended and Restated Promissory Notes in the original aggregate principal
amount of up to Seventy Million Four Hundred Sixty-One Thousand Five Hundred and N0/1 00 Dollars
($70,461,500.00) (the "Amended Master Note"; the loan evidenced by the Note, as amended and restated
by the Amended and Restated Note, the "Master Loan").
F.
Pursuant to the Loan Agreement dated as ofthe date hereof between Assignee
and Spectra (the "Swap Termination Loan Agreement"), Assignee has made an additional loan to Spectra
in the original principal amount of up to Two Million Six Hundred Twenty-Five Thousand Dollars
($2,625,000.00) (the "Swap Termination Loan"), which loan is evidenced by a Term Note dated as of the
date hereof from Spectra to Assignee (the "Swap Termination Note").
G.
The principal amount of the Swap Termination Loan will be used by Spectra to
pay the amount due by Spectra on the early termination of the rate swap transaction pursuant to the
Confirmation dated March 19,2009 to the ISDA Master Agreement dated November 22, 2005 between
Assignee and Spectra. Assignor was a beneficiary of the rate swap transaction in connection with the
Note and has authorized and directed Spectra to terminate the rate swap transaction in connection with the
execution and delivery of this ~endment.
H.
As a condition to Assignee's execution and delivery of the Fifth Amendment and
Assignee's making of the Swap Termination Loan to Spectra, Assignee is requiring the execution and
delivery by Assignor of this Amendment.
NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as foJlows:
1.
Definitions. All capitalized terms used herein shall have the respective meanings
ascribed to them in the Assignment unless otherwise defined herein.
2.
Amendment to Assignment. (a) All references in the Assignment to the Note or
the Notes shall be to, jointly and severally, the Amended Master Note and the Swap Termination Note,
together with all modifications and/or amendments thereto.
(b)
All references in the Assignment to the Loan shall be to, jointly and
severally, the Master Loan and the Swap Termination Loan.
(c)

AII references in the Assignment to the Mortgage shall be to the

Amended Mortgage.
(d)
All references in the Assignment to the Loan Agreement shall be to,
jointly and severally, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan
Agreement and the Swap Termination Loan Agreement, together with all modifications and/or
amendments thereto.
(e)
AJI references in the Assignment to the Loan Documents shall be to,
jointly and severally, the Assignment, as amended hereby, the Amended Master Note, the Swap
Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Amended
Mortgage, the Loan Agreement, the Swap Termination Loan Agreement and all other documents
executed in connection with the Master Loan and the Swap Termination Loan, together with all
modifications and/or amendments thereto.

Page2 of6

1

T81111515Bi PagJelJ adf!B
08/25/2009 02:10:10 PM

(f)

The following is added as a new Section 22 of the Assignment:

22.
Assignee's Rights Not Affected by Changes to Other Documents.
Assignor agrees that Assignee's rights under this Assignment shall not be impaired or
affected by any renewals or extensions which may be made from time to time, with or
without the know ledge or consent of Assignor, of the time for payment of interest or
principal under the Note or by any forbearance or delay in collecting interest or principal
under the Note, or by any waiver by Assignee under the Loan Agreement or any other
Loan Document, or by Assignee's failure or election not to pursue any other remedies it
may have against Developer or any other Borrower, or by any change or modification in
the Note, the Loan Agreement or any other Loan Document, or by the acceptance by
Assignee of any additional security or any increase, substitution or change therein, or by
the release by Assignee of any security or any withdrawal thereof or decrease therein, or
by the application of payments received from any source to the payment of any obligation
other than the indebtedness due under the Note, even though Assignee might lawfully
have elected to apply such payments to any part or all of the Indebtedness, it being the
intent hereof that, subject to Assignee's compliance with the terms of this Assignment,
Assignee's rights under this Assignment shall remain in full force and effect,
notwithstanding any act or thing which might otherwise operate as a legal or equitable
discharge of a surety. Assignor further understands and agrees that Assignee may at any
time enter into agreements to amend and modify the Note, the Loan Agreement or other
Loan Documents, and may waive or release any provision or provisions ofthe Note, the
Loan Agreement or other Loan Documents or any thereof, and, with reference to such
instruments, may make and enter into any such agreement or agreements as Assignee and
the other party or parties to such docm;nents or instruments may deem proper and
desirable, without in any manner impairing or affecting this Assignment or any of
Assignee's rights hereunder or Assigno,r's obligations hereunder.
~

(h)

'
The following is added as a new Section 23 of the Assignment:

23.
Jurisdiction. Assignor hereby irrevocably submits to the nonexclusive jurisdiction of any state or federal court sitting in Colorado, or in any state in
which collateral for the Note is located, over any action or proceeding arising out of or
relating to the Master Loan, the Swap Termination Loan, this Assignment or any other
Loan Document, and Assignor hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in any such state or federal court.
Assignor hereby waives any objection that it may now or hereafter have to the venue of
any such suit or any such court or that such suit is brought in an inconvenient court.

3.
Release of Assignment. Assignee is entitled to the release of the Assignment in
accordance with and upon the satisfaction of the conditions set forth in Section 12 of the Fifth
Amendment and the Swap Termination Loan Agreement.
4.
Representations, Warranties and Covenants. Assignor hereby represents,
warrants and covenants to Assignee that the outstanding principal amount of the Amended Master Note is
$69,870,099.00, that the Assignment, as modified hereby, remains unmodified and in full force and effect
and that Assignor has no cause of action at law or in equity against Assignee or any person or entity
directly or indirectly holding an interest in the Master Loan or the Swap Termination Loan, including,
without limitation, any offset, counterclaim or defense with respect to the Amended Master Note, the
Swap Termination Note, the Master Loan Agreement, as amended by the Fifth Amendment, the Loan

Page 3 of6

T11'1115l1R11 FqJe 41. Cldf 5
08/25/2009 02:10:10 PM

Agreement, the Swap Termination Loan Agreement, the Amended Mortgage, the Assignment, as
modified hereby, or any document executed and delivered in connection therewith.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

Page4 of6

1

T8l'lll5lliDiJ ~P~tagJe s cd m
08/25/2009 02:10:10 PM

5.
Ratification; Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, if there is more
than one Assignor, are joint and several.

IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.
DURANT SHOPPING CENTER LLC,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:.~--~~~----~--­
Name: Jeff H. Farmer, Jr.
Title: Manager
NEWTON SHOPPING CENTER LLC,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

By:.~--~~~----~--­
Name: JeffH. Farmer, Jr.
·Title: Manager
.
.
ZACHARY SHOPPING CENTER LLC,
a Delaware limited liability company
By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By:-:-:-----.:-==-=-._::---Name: Jeff H. Farmer, Jr.
Title: Manager

Exhibit A-- Description of Land
577918.1

[ACKNOWLEDGMENTS FOLLOW.]

Page 5 of6

TB1111Dfilj16

~&i cd'91

08/25/2009 02:10:10 PM

5.
Ratification; Joint and Several. Except as modified hereby, the Assignment shall
remain unmodified and in full force and effect. Assignor hereby ratifies and confirms the Assignment, as
modified hereby. The obligations of Assignor under the Assignment, as modified hereby, if there is more
than one Assignor, are joint and several.
IN WITNESS WHEREOF, this Amendment has been duly executed by Assignee and Assignor as
of the day and year first above written.
KEYBANK NATIONAL ASSOCIATION,
a national banking association

DURANT SHOPPING CENTER LLC,
a Delaware limited liability company

By:-:-:---,:-:--:--::-~--­

By:

Name: Kurt L. Reiber
Title: Senior Vice President

NEWTON SHOPPING CENTER LLC,
a Delaware limited liability company
By:

ZACHARY SHOPPING CENTER LLC,
a Delaware limited liability company

Exhibit A-- Description of Land
577918.1

[ACKNOWLEDGMENTS FOLLOW.]

Page 5 of6

~

l'agJe7/d!l
08/25/2009 02:10:10 PM

STATE OF OHIO

)

) SS:
COUNTY OF HAMILTON
·'''"~~·J~~Yi~&•r,

)

The foregoing instrument was acknowledged before me this..:&_ day of June, 2009 by Kurt L.
the Senior Vice President of KeyBank National Association, a national banking association, on

/ ) / ~ ..L
~

CHRISTINE CARRIER

Notary Public, SlateofOito.
MyCommlssklnExp&ea09-21-m11
STATE OF COLORADO
COUNTY OF SAN MIGUEL

/Z

/1 A

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N
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.
Otary U IC
II
-c2,} -cZLJ If
My Commission Expires:_____ __
1
)
) SS:
)

The foregoing instrument was ackno~ledged before me this __ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Durant Shopping Center LLC, a Delaware limited liability company, on behalf of the company.
Notary Public
My Commission Expires:_ _ _ _ _ __
STATE OF COLORADO .
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this_·_day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Newton Shopping Center LLC, a Delaware limited liability co.mpany, on behalf of the company.
Notary Public
My Commission Expires:._ _ _ _ _ __
STATE OF COLORADO
COUNTY OF SAN MIGUEL

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Zachary Shopping Center LLC, a Delaware limited liability company, on behalf of the company.
Notary Public
My Commission Expires:_ _ _ _ _ __

Page 6 of6

TIIHifSiitiBi

~~~time

madf 11

08/25/2009 02:10:10 PM

STATE OF OHIO
COUNTY OF HAMILTON

)
) SS:
)

The foregoing instrument was acknowledged before me this __ day of June, 2009 by Kurt L.
Reiber, the Senior Vice President of Key Bank National Association, a national banking association, on
behalf thereof.
Notary Public
My Commission Expires:_ _ _ _ _ __
STATE OF COLORADO

)

COUNTY OF SAN MIGUEL

)

) SS:

The foregoing instrument was acknowledged before me this~ day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limite(! liability company, Manager of
Durant Shopping Center LLC, a Delaware limited liability company, on behalf of the corn any.

0

STATE OF COLORADO
COUNTY OF SAN MIGUEL

)ss:
)

My Commission Expires:

-·~

~4~~;(~·~~~~~:t."r ~
S\;~r~:. oF co~?~~3=j~
='"',;;.~-=··

)

The foregoing instrument was acknowledged before me this .J/r; day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware limited liability company, Manager of
Newton Shopping Center LLC, a Delaware lirnitetlliability co.mpany, on behalf o the co any.

STATE OF COLORADO

)

COUNTY OF SAN MIGUEL

)

) 88:

The foregoing instrument was acknowledged before me this '1//J day of June, 2009, by Jeff H.
Farmer, Jr., Manager of JHF Property Holdings LLC, a Delaware lirn"'lie'tiiability company, Manager of
Zachary Shopping Center LLC, a Delaware limited liability cornpan~, on behal of the rnpany.

Page 6 of6

Pa1F !It adf !It
08/25/2009 02:10:10 PM

T8I11I5Ji5Jjllj

EXIDBIT A
Description ofLand

Parcel "A"1 Lot Line Vacation No. 2006 - 010 (formerly Lots 13 through
17, Block 2, Tract 240) according to the plat thereof filed for record
October 3, 2006 Reception Number 1696395 in the Office of the
Pueblo County Clerk & Recorder, County of Pueblo, State of Colorado.

A-1

Official Records of Pueblo County Clerk & Recorder 1816479
08/25/2009 02:10:10 PM Page 1 of 2
Subordination Agreement R: $11.00 D: $0.00 Gilbert Ortiz

Return to:
Stephen M. King, Esq.
Thompson Hine LLP
312 Walnut Street, 14th Floor
Cincinnati, OH 45202
CONFffiMATORY SUBORDINATION AGREEMENT

This CONFIRMATORY SUBORDINATION AGREEMENT (this "Agreement") dated as of
June::;u_, 2009, is made by JEFF H. FARMER, JR., a Tennessee resident, as Collection Agent
("Subordinate Lender"), for the use and benefit ofKEYBANK NATIONAL ASSOCIATION, a national
banking association ("Lender").
RECITALS
A.
Zachary Shopping Center LLC, a Delaware limited liability company, Durant Shopping
Center LLC, a Delaware limited liability company, and Newton Shopping Center LLC, a Delaware
limited liability company Gointly and severally, "Pledgor"), are indebted to Subordinate Lender as set
forth in that certain Deed of Trust dated May 17, 2006 by Pledgor to the Public Trustee for Pueblo
County, Colorado, Trustee, for the benefit of Subordinate Lender, recorded in the Office of the County
Clerk and Recorder in Pueblo County, Colorado on May 17, 2006, at Reception No. 1675899 (the
"Subordinate Deed of Trust"; the indebtedness secured by the Subordinate Deed of Trust and any and all
existing and future indebtedness of Pledgor to Subordinate Lender, collectively, the "Subordinate Debt").

B.
Pledgor is indebted to Lender as set forth in that certain Construction Deed ofT111st,
Assignment of Rents, Security Agreement and Fixture Filing dated as of October 11, 2006 by Pledgor to
Public Trustee of Pueblo County, Colorado, for the benefit of Lender, recorded in the Office ofthe
County Clerk and Recorder in Pueblo County, Colorado on October 20,2006, at Reception No. 1698835
(the "Prioritv Deed of Trust"; the indebtedness secured by the Priority Deed of Trust, together with any
and all existing and future indebtedness of Pledgor to Lender, collectively, the "Priority Debt").
C.
The Subordinate Debt is absolutely subordinated and junior in right of payment to the
Priority Debt pursuant to the Subordination Agreement dated as of October 9, 2006 by Pledgor and
Subordinate Lender for the benefit of Lender, recorded in the Office ofthe County Clerk and Recorder in
Pueblo County, Colorado on October 20,2006, at Reception No. 1698838 (the "Subordination
Agreement").
D.
Pledgor and Lender have amended the Priority Deed of Trust pursuant to a First
Amendment to Construction Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing
executed and recorded in the Office of the County Clerk in Pueblo· County, Colorado (the "First
Amendment"), which, among other things, increases the principal amount secured thereby and modifies
the terms of payment for the indebtedness secured thereby.
E.
As a condition to the execution and delivery of the First Amendment, Lender has
required Subordinate Lender to confirm and ratify the Subordination Agreement.

Page 1 of2

1816479 Page 2 of 2
08/25/2009 02:10:10 PM

NOW, THEREFORE, for $10.00 and other good and valuable consideration, the receipt and
sufficiency ofwhich are hereby aclmowledged, Subordinate Lender hereby agrees for the benefit of
Lender as follows:
1.
Confirmation of Unconditional Subordination. The Subordinate Deed of Trust is and
shall be absolutely subordinated and junior in right of payment and priority of lien to the Priority Deed of
Trust, as amended by the First Amendment. The Subordinate Debt is and shall be absolutely
subordinated and junior in rightofpaymentand priority of lien to the Priority Debt.
2.
Ratification. Except as modified hereby, the Subordination Agreement shall remain
unmodified and in full force and effect. Subordinate Lender hereby ratifies and confirms the
Subordination Agreement, as modified hereby.
IN WITNESS WHEREOF, this Agreement has been duly executed Subordinate Lender as of the
day and year first above written.

s

STATE OF COLORADO
COUNT OF SAN MIGUEL
This instrument was acknowledged before me on this J(day of June, 2009 b~ Jeff H. Farmer, Jr.,

~d~

an individual.

N tary Public
,
Printed Name: (YJaYoStA.-~
My Commission Expires: ~J 1/, 1

. Lee

.
578063.1

I

--~,.~~·~~;!!!!~".riA•

•. -- -

MAR!Sf~A A. LEE

NOT:".RY PUBLIC
ST/-\TE OF COLORADO

Page2 of2

C

LOAN f:XTENSION AGREEMENT ANI) SIXTH AMENDMENT TO
.\VIASTER CONSTRUCTION LOAN AGREEMEN'I'

This Loan Extension Agreement and Sixth Amendment to Master Construction Loan Agreement
(this "L·:xtt:nsion Agreement") is made as of this 15th day o!July. 2010 by and among KeyBank National
Ass(>ciation. a national bnnking association ("Kt:yBank" nr "Bank"). TliE SPLCTR.I\ (ii{OUI\ INC ... n
tennessee coqwration ("Spectra"), and JUT 11. FARMl:lt JIC an individual ("Farmer").
RECITALS

WHEKEAS. pursuant to a Master Cllnstruetk1n l.uan Agre0ment dakd December 8, 2005.
betvveen Spectra. r·armer and Bank (the "Original Loan 1\!J.reement"), as amended by a hrst Amendment

to Master C'onstruetion Loan Agreern~;;nt dated June lO, 2006 between tht: same partie' (the "hrst
Amendment"), as further amended by a Stnmd Atm:ndnwnt to Master Constructi\ln Loan i\greerm:nt
datl~d October 10, 2006 hetwcen the same parties (the "S.ccond Amendment"). a~ further amended b) n
Third Amendment to Master Construction L1)<ll1 Agreement dated July 18. 2007 between the same parties
(the "Third t\mendmcnt"). as furthcr amended by a Fourth Amendment to Mastt•r ('pnstruction Loan
Agn:emcnt dated Oct<•ber l 0. 2007 bet\vet~n the same panic~ (the 'Tt)lllih Amt.~ndment"). and as further
amended hy a Fifth Anwndment to Master Construction l.nnn Agn:ement dated as \'I' April I :i. 2009 (the
"! i lth Amendment": the: Original Loan /\greement. the I' irs I Amendment. the Second Amendment liK'
Third /\nwndment. the Fourth Amendment and th~: l ii\h Anwndmt:nt being c:ollectivci; referred tD as the
"Loan Agreement"). Bank made a $85.000,000.00 pn:icd loan fncilit) available tn Fanner on the term<..
and cc>nditions set f<)ti:h in the Loan Ag.reement.

or

WIILREAS, pursuant to tbe knns
the Loan A11rcemenL Bank provided Project Loan<.. to the
BntTmwrs (as defined in the Loan Ag:recmenL the Born,wer:>. Spectra und Fanner arc co!le..:tin:ly
referred to as "Obligated Parties") thr the Projects in thv umounts as set forth nn r;xhibit A attached
hereto and made a part hereof (the "E:-;bting Loans"), lhe Lxisting Loans are cvidenced by tim:<:
Amended and Restated Pmmissory Notes dated as of 1\pril I5, 2009 (collectively . the ''Note").
WllLREAS, th\.': payment ofthe Note was guaranteed by 11 Ciuuranty fnnn \rectra and Farmer
(jointly and severatly, in their capacity as guarantor,"( iuarantor") pursuant to lhc Amended and
Restated Ciunranty dated as ol' April !5. 2009 (the "Guaranty").
Wl!ERI·.AS. Spectra. l'anner and l~ank hereby desire to amend the Loan Ag.rccm\.':nt to. extend
the maturity dak of the Loan and make such oth~;:r arnendrm:nts described herein. all under the t.crm:; and
C\ltKiitiuns hcreinallcr set forth.
AGREE.ME~'fS

'lOW. THFREFOKL Spectra, Iarmer and Bank agrc:c as f()l\ows
I.
Definitions. Except a<.. hcrt!inatter SjWCilknlly provided. all words in this L:.;tcnsion
Agn::emcnt beginning \lith capital letters >vhich arc not normally capitali1ed shall have tl1c same meanin~
a" '>d l'Prth in the L()an Agret:mcnt UTeclivc as of Jul; ! 'i, 20 I 0. the I Alilll Agn:cmenl shall be deemed
to he modilicd hy the provisions ofthi~ LXt(:nsion Agreement.

EXHIBIT 32
/

I

C

2.
Representations, Acknowledgments and Covenant.... Spectra and hmner. on hehail of
tllemsel\es and the Bort\)\'<Crs. rcprcs(mt, acknowkdgc and C\l\'cnani that each ol'th..: lollowing is true on
the date of't~xt'cuti~>n and shall r<:main tfll(~ until the Loan is paid in full:

a)
Tnlt::J!lJ(i~:prn~~~StmGm_<;;n\. The above Rt•citals nrc true and acntrati: in all n:spccts. and
incorporated within this Extension Agn::emcnt as if fully rC\\ rittcn. As a condition to the signing of this
F:-.:h:n:c>itlll AgxcemenL all parties are relyin12 on thL' truth. cnmpldcncss. and <..:tlrrectm~"" of the statenwnh
nnd rqm::scntati\ms made herein, induding the Recitab. and all pnrtit:s represent fi.1r tllemsclv~;:s tlwt thi~
!:"tension Agreement contains no material misrepresentations or omi,;sions by any p<u1y to thi~
Exl\:ns ion

Agret~men1.

b)
!tJQG\ltt,(Qll.l;;.::if:. As of August 24. 2010, the B11rrnwers arc lmh:bted. and the Ciuarantor i.->
liable tas set forth in the Cluaranty), to Bank under the ~ote. in the prindpal mnount or Si.xty-Nine
l'v1 iII ion Twn Hundred I h irty Thousand Sevt;nty and 9S I 00 Dollar~ ( $6Ll .230.070 95) together with
unpaid accrued interest a~ rdkctcd in Bank· s records. wh 1ch interl:st w i! 1 ulntinuc tu accrw::. Spectra
and Farmer acknowledgt' and agree. on behalf ol' them,;eiH'" nnd the Bnrrnvwr~. tha1 the Bank is not
ubi igated to make any h1rther advances under the I.PaJI.

c)
('IQ~ll)j\.)L\!,'J()ff i\s of the date of t!Ji:-i ! .\tension i\grccmcnL llOIIC oltilc Obligated
have any claims or set-offs against tht' Oblig:nti<>ns. nur dn they hm~..· any dercnse~ to. or
counterclaims respecting. the enforcement or administratJ,Hl nr tht:ir respective obligation~ evidenced b)
the Loan Dot:umcnts ami under applkablc lav\, The Obli!wkd Parties shall not a~~t:Ji or -;c·ek tn assert
any claim, set-oil defense or cuumerclaim of any kind <>r nature whatsocH:r \\ ith respect to the Ltl<ln
l )ncuments.
Partie~

d)
Lie!l?JlXl~L1nS.\IlJ.!.~ran~;:cs. No liens or cn~;umbrances other than Banh' s attach to an~ or
the Projects. and no litigation is pending against Obligat~:d Parti~::>. The Btlrt\)Wl~r~ will keep all nf the
Projects and all rights with respect thl~rctu and proceeds of samt~ both ll·ee from nn! adver..;t, lien. and in
goud condition_ and vvill not waste or destnl) any tlfth..: same.
<.:)
JJ!)(QS. Obligated Parties havv prompt!~ paid whl~n due. all lfi,\;Cs. assessment:-.. and
governmental charges of every kind and natur~: that have been lawfully le> ied. as,;es-;t·d (lr irnpo~ed upon
Obligated Parties have, or their respective properti~:~ (including the use thert:\ll} or any (lbifgations
\\hich. if unpaid \\Ould kcon11.' liens against its assets i11cluding, without limitati•.m. all sums due and
owing any taxing authority for income and other ta:-..e~ \\Jlhheld from tlw \\ag~:,; and salaries \lr ib
crnplnyees. All li:dcral. state and otlwr tax n:'lUJTI'i and rcpurb required by Ia\\ to be tiled b~ the
Oblig<lted Patties have been duly filed (or proper extensinns t(lr llling have be1..'!l tllt:dl.

fl

1\tJtll(/rtD ..\.?fQbf.igat~;~\Part.ie~J\l . L\.~t:utc I~uatJ. Q<lCLim<:tl_ts.
(i)

Tlw exccuth)n, ,kllvcry, and pcrh>nnancc b;. Ohligatcd l'nrtics uf each or the

Lxten.c;ion Agreement and tht: \ithcr d\lcumenb rch:rrcd h> hcn:in \\hkh arc
requir<Jd to b..: executed and deli\en:d b! ( >hligatcd Parties:
{ l)
(?)

arc \vilhin the respective Obligat<:d Party\ powers and autlwrity:
du not contravt'ne the respective Obligated Party\ Articles ol
Incorpmat ion. by-laws l \f rcgulat ions. operating. ngrt•etncnt partnership
agreement nr any anwndmcnts thereto:

C

(3)

(4)

(5)

do noL to the best of the respt~ctive Obligated Pnrty's kno\vledJ:!L~
contravene any laws;
except as provided herein. du not result. in or rt~quir~' the ~Creation of any
lien. security inten:sL m nther d1nrge or CIH:umbmncc upon nr with
rcspc;.;t to any of' the assets of <lilY Obligated Party: and
will not ,;:ausc any 1\lOIJe) (1wing on any other imh:btedncss or an;
Obligated J>any to be due and payable.

(ii)

No authorization <'r approval or acti,m by. and rm notict: tn cW filing with. any
governmental authority or rcgulatut) budy is required tlx the due D\:l'CuiiniL
delivery. and perf(mnancc by the respective Ohligat.:d Party's of this Extension
Agreement or any nf the agreements '1r documents referred t1 1 herein. except l\1r
the recording thereof, where necessury. to evidctwc or pcrfc<:t the liens m
security interests granted Bank ''r conveyances made tu Hank in CPnne..:tiun
herewith.

(iii)

This Fxtt:nsion Agre~:ment and tlw other Loan Documents create and constitute
kgaL valid, cn!(m:cahle and binding ,1hlig:ations of the Uhligated Patiks. a::;
appropriate. in <H.:cnrdance \Vith thGir respecti\·e terms.

g)
S_Q,l~_Ri_gb.lJQ.)\2g!ls. No Obligated Pnrty ha;, (i) made n general assignlllcnt Ill!- thl·
benefit of creditors: (ii) filed an:v voluntary petition m bankruplc~· or surt\:~red the tiling uf an:
involuntary petition by its creditors: (iii) su!Tered the appoimmen1 ot'a rcceivcr to !ak~ possession ufa1L
or -;uh-;tantially aiL of ib a~sets: or (iv) ~uffcred the attachment or t.lther judicial sci1ure of alL nr
substantially all. of its assets.

No Vioi~I\It_)l1 \)_[ L<tws Laeh Obligated Party's husine~:; and tl11.' operation then:or
and have con!\1rmcd \\Jth all applicable lmh, ,1rdinancc'>. rule,;. n:g:ulatic'n" and directives of
f!.\lWrnmental or qunsi-gov~.:rnrncntal agem:ies ur authorit1e-.. induding,. hut not limited tll. all existing
zoning. land usc, building, tire. health_ lnbor. t'llVironmentnL ta.'- and sarcty !11\\S. ordina!H;es. nile'>,
regulations and clirecti\·cs. No notice. cilatinn ,1r >peeial as->esc;ment for the \·ioln!iull of any ordinanc!.:s.
rules. regulation~. dircctives m uther lmvs ha~ been recl'i\ ed by any ( Jhligated Party nor duec. any
Obligated Party have knowk~dgc or any rae( or C(mditinn which may result in the j;,;-;uance ,,r any such
not ic!.:, e itntion or a~ses~ment.
l1)

u,nt(lf'll1

t~:_ny_it:Ql!IlWJ114L~;pq-,;grti?·

Lach Obligated Party and the Projects are in complianee \\ ith
all appt"<lpriatc environmental laws nnd rc·gulations.
i}

jl
Jj!Janc_iuJJnJfmi!P~i<l!1. Any financial ami operating statements u! the Obligated Pnrtics
l'urnished 1\) Bank in cumK'clion with ur pursuant to thi'> l.xtcnsion Agreement \)f otherwise are trui.: and
e.l'n·cct. accurately reflect the finanr.:ial po~;ition uf thv p:~rtit~'i described thcrt·in. and do nt'l! nmit to stat~..·
any material liability. c\lntingent or otherwise. or an~ facts IH:cessar') then~tP. tht· c>mission of ''hiclt
\\mild be misleading.

k)
('()JltlilliQJI.-S.. N1!t!Jre_ p[_ [,lll\llJ)Q<,:.un)t:;l)!;,,
specii'ically altered lwr~~in. shall continue unchanged.

I he terms of

th~:

l . uan Docunwnh. not

1)
Q_tbgr l}c[?t. Until the Loan has been paid 111 fulL Fanner ~hall nut u<,e his liquid assets ll'
pa_v any uther debt or obligation except to the extent .~uch debt or obligation becume'> due and payable in
til~· c)f'dinmy cuur;;,e pursuant to its terms. Fanner ,;halt tk-livcr the finnnci:tl infnrmation. certified h\

C

h1rmer. as requested b:,v Bank to confirm Fanner's comp\imu::e with this Section 2(1}. within t..:n ( 10) day~
after Bank's request. l:ailun: of Farmer tn deliver such requested financial int\mnation within such time•
period nr comply with this Section :?.(I) shall he an Event \lf Ddim It

[)ocumentatiou.

3.

a)
1\!Jl~Jl~!t;dJ:-,Jqt~;. Each Not\.: shall be rtplaced with a Second i\me!lded and Restated
Prom issor) Note dated a;) o!' th;: date hen:o f ( cnllectivcly. !ht "t\memh:d Note"). The /\mended Note j, a
!'\:Statement and amendment to the Note and the holder of !iw Amended Note is entitled \() all nf the
hcnerih nr each or the predt·cessor Nut.:. ·r·hc /\mcn(kd Nnte does tl\\l constitute n.:paytm:nt \)r
cnm:cllation or all or any portion or th~ nri),!inal indehledi1L'SS evidenced hy the Noh: or any of the·
subsequent rc;o;tatcmenls. modification<. or arnendmt:nls thvn:of. Tilt' N\lte shall remam in full 1\x~:c and
dlect nnl:-- fi1r the purpose t1f cvidcnt.:ing any amounts due i11 connect inn \.\ ith the Nutt' and any \)!her nr
the l.onn I)ocurnents v\h ich l\1r any 1'\.~a~on in fact or in \;j\\. do 1!01 bccnlllC obi igations ur Borf\l\\ (']'
under the .'\nwnckd Nutc. as intended by tiK: partie~ th~.:rct\\.

b)
R..:,~~~ltttjrlf}B. BDITmver shall ca\lse tn he tkli\.cred to Bank :1 rcsululion for the Oblig.ated
Parties nuthnrizing: the executi<.ll1 and delivery or thi;, l·.xtcn:--ion Ag.rccrncnt. im:luding: all \)f the l.oan
Documenh required H' be delivered in eonneclion here\vith.

4.
al
Agreement_
in ib place:

MaturitY Date.

llS

I he detlnition of the term ''Maturity Date" in Section 4.4 of the Orig.inal Luan
amended ti'tJm time\\) tinH::. i~ lH.:reby deletcd in its t.:ntirety and the l\11lowing is inscned

"\-1J:ILtJLi~LJJ)f!1C: The carlier or October I:;' 20 l 0. or th~· date the loan !\mnunt othervVi;,c
hecomes due and payable."

h)
Tlw term of!ht: Loan is l1cn:by extended through and until the tvlaturity l)atv whereupon
on tht: Maturity Date all (mpaid principal and accrued interest of the Lnan. and any other amounts
payable under the Loan Agreement and the Proj<.;~.:t Lk1L!uments. shall he due and payable.
Not,,ithstanding an_ything to the ~:ontrary in the Luan Ducuments including. without limiwtion. St:ction
4.4 of' the Original L.oan Agreement and Sed ion 4 ,)f the I iHh Amendment. the Obligated 1'11rties shall
h:!\ c no right to further cxt(:nd the Maturity Daw.

5,

Extension Fee: Attorneys'

Ft~es

and

l·:xpt~nscs;

Hank's

Out-uf-Pot~lict

Expenses:

Fifth Amendment Fcc.
a)
Concurrvntly with tht:' C.\eeution ofthi'i ;\grcemcnt. Spectra and Fanner v,i!l pay Banh an
amount equal to $53,4,19.00, om~-half upon execution tll this Lxtension .1\gr~::emr.:nt and one-hair v,ithin
thirty ( 10) days at1er the date of execution of this Extension Agreement (the "Extension l·ce"). \peetra
and l·anner agree to promptly reimburse Bank f()r all ~:osts and expenses. including attorney'c; t't::cs 111'
Bani.;· s coun.:;el incurred by Bnnk in connection w ilh any rcstrueturings of the Amended Note or any nl
the l.nan Dm.:umcnts exe~.:uted and delivered in connectinn herewith. If the Amended Note is placed in
the hands <ll' attorneys F)r collection or is collected thwugh any legal pnlceeding'>. Borrower promises
and agrees tn pay, in additinn to the prim:ipal. inkTl'st nml \lther sums due and payable hereon. all co'>\';
nl' C\>llecting or attempting to cullcct the ;\mended N<ll.l'. including all reasonable at1orncy.<: fi;cc, and

C

disbursements. Bank nwy debit

Htl)

of tht' Ohlig.att:d Partks' deposit accmmh with Bank t<x

sud1

!XI)' ments.

h)

and lhl'

The first sentcnc<.~ of Section X nf the Filth Amendmt.:nt is hcrd>:v ddt:t<:d in ih entin·t)
is inserted in its place:

t~·dlowin!?

"Fanner shall pay 10 Bank an uriginatinn kc <.:qual tn .SOCJ;;) ul the Priginal l.\lan :\mount.
payable 50% upon e.wcution Qf this fifth ;\mcndnH.:nt and SO'/o on the earlier of I i l
October [ 5. 2010, or (ii) thr.~ date this Loan is paid in fulL if prior \(1 Octuhcr I 5. 20 I 0."
6.
Guarantors' Confirmations and Waivers.
F:a~,:h Guarantor_ by cxecutinj!. this
Fxtt:nsiun Agreement. hcn;by assents to the t~:rms and C('nditions of thi:-- Extension Agreement and
ratil'i<:s and re<dllnns the terms and conditions of the Ciuarant:, which Guaranty shall remain in full fmce
and cn~)Cl. Lnch Ciuarantor IH~rehy waives any defense to hi,;/its obligations under the Guaranty bas<:d
upnn or arising. out ut' ( i) the modification;; to the Loan Documents as herein provickd. ( ii) the taking <1f
any ndd it ion a I security for repayment of the l nan, nnd (iii) any act or omission of Bank nccurring. on ;)r
bd\m: the date of this Fxtension Agrecmt:.·nt. Notwithstanding an) language cnntaincd in the U11aranty.
each (iuarantor, \l) the extent permitted b) hm, waiv1.>; any ~,:!aim or nther right which each such
Guarantor might nnw have \lf hereafter may acquire against Borni\\CL each C0-(1\larantor. or any other
obi ie!Uf or the Loan. which arises fhlll1 the existence \)I' peri'mmance \)reach ~uch Ciuarantor"s Iiabll it\ Pr
other \1bli~ations under the Uuaranty and an~ oth..:r guarantic~ which any of tlw (nmran\t)rs has t:~ccuted
in i'avor uf Bank. includinJZ,. without limitation . any right \>f :;ubrouation. reimbursement. exon~:ralion.
conlrihutiun. indcmniflcati:m, and any rig.ht to pi;rtic.ipnte in any'· claim or n::mcd: ()I Bank UlJ.ain"l
Horrovver or any of the Projects. "'hcthcr \II' not such cia 1m. remedy, or rig.ht arises in equitv. or under
cnntract. statHtc. or common law.
7.
RELEASE. EFFf:CTlVE AS OF TilE BATE OF TilE FXECt.!TION AN[)
DFLI\'F:RV OF THIS EXTENSION AGREEMENT, SPECTRA AND FARMER, ON BEHALF
OF THEMSELVES AND ALL OF THE BORROWERS, .IOINTLY t\ND SEVERALLY AGREE
TO RELEASE A"ill HEREBY ()0 RELEASE AND lllSCHARGE. BANK, ITS
SHAREHOLDERS, A(;t<:NTS, SERVANTS, EMPLOYEES, DIRECTORS, OF'FJCERS,
ATTORNEYS, AFFILIATES, SCBSH>IARIES, l'REIH:CESSORS, Sl.iCC'ESSORS AND
ASSIGNS AND ALL PERSONS, F'IRMS, CORPORATIONS, AND ORGANIZA'l'IONS ACTIN(;
ON THEIR BEHALF (COLLECTIVELY THF. "BA'iK PARTIES") OF AND FROM ALL
DAMAGES, LOSSES, CLAIMS, [)f:MANDS. LIABILITIES, OBLIGA TJONS, ACTIONS AND
CAl!SES OF ACTION WHATSOEVER THAT F:ACH OBLIGATED PARTY HAS OR CLAIMS
TO HAVE AGAINST ANY BANK PARTY AS OF THE DATE HEREOF, AND OF EVEln
1\ATURE ANn EXTENT WHATSOEVER ON ACCOUNT OF OR IN ANY WAY, IHRECTL'\
OH JNI.HRECTLV, TOliCHING, CONCERNING, ARISING OtJT OF OR FOUNDED UPOl'i
THF LOAN DOCUMEI\'l'S OR ·nn~ LENDING RELATIONSHIP RESPEC'l'ING THF
OBLIGATIONS BETWEEN ANY OHLIGATf:n PARTY AND ANV BANK PARTY. THIS
RELEASE WILL NOT EXTEND TO ANV CLAIM .\RISING AFTER THE DATE OF ·nus
AGREEMENT 'fO THE EXTENT SUCH CLAIM IS BASED ON AC'l'S OR OMISSIONS OF
BANK WHICH BECOME KNOWN TO FARMER AFTER THE DATE OF THIS EXTENSION
AGREEMENT EXCf:l>T THAT Sllf'H RELEASE IS SPECIFICALLY INTENDED BY THE
PARTIES TO INCLUDF TIH: TRANSACTIONS CONTEMI'LATlm BY THIS EX'l'ENSION
AGREEMENT. FARMER REPRESEN'fS TO BANK THAT liE DOES NOT KNOW OF ANY
SlCll CLAlMS AGAINST BANK AFTER REVIEWING THE LOAN DOCU\1ENTS ANI> THE
BANK INC RELATIONSHIP Wl'l'll Dl!F: DILIGENCE AND IN GOOD FAITH. Bank wuuld IH1l

ag.r~c

to enter into this Extension Agreement but for the pn>vi~ions set lt)rth in this Section. Spectra and
Farmer. on hehalf <'!'themselves and all of the BorrO\vcrs. cunllrm that they have agrl'ed \\)the provisions
of this Se~;;tion of their own volition. with full knowledge of the extent and effect of th<.: various rdcases
and \\aivcrs granted by this Section and oftlw importance t1' Bank of these \\Hivers and releases and nfh:r
having had the opportunity to discuss this matter with counsel (lftheir 0\\11 clwicc.

S.
JLRY TRIAL. THE PAR.lTE~ TO THIS EXTENSION AGREEMENT HEREBY
WAIVE TRIAL BY .JllRY lN ANY ACTION, PROCEEDING. OR COl!NTERCLAIM
BROUGHT flY ANY PARTY AGAINST ANOTHER ON ANY MATTERS WHATSOEVER
ARISINC l.lNI>ER OR IN CONNECTION WITH THIS WORKOUT AGR~~EMIZNT OR THE
LOAN DOCTMENTS OR ANY ANCILLARY AGIHZEMENT AND SHALL 'lAKE ALL

APPROPRIATE STEPS TO IMPLEMENT THAT WAIVER, INCLUDING l'ROVII>ING
FURTHER WRITTEN CONSENT IN COt:RT.
Loan Do~umcnts.
Lxcl:pt a~ herein spL'~;;ifically pl\1\tded u!henvise, the L(\an
shall remain in full force and etrel'l nnd be umiiTech:d hereby In the event ol a cnntlict
between the term~ nf this Extension Agreement. the 1.< liHl Document;, and any other agreement between
Ban~ and any Hornll\er tW any other Obligated Party. then this Lxtensiun AgrC(.'Illcllt shall be controlling.
(),

Dm:um<.mt~

10.
\Vaiver, Amendment. No 1vaivcr of or cuns~::nt to any departun:: lil;m any pmv1s10n
llcn:of shall be efl\:<.:tive unless in writing and signed by the authori,red representative of the party against
whom such a waiver or consent is asserted and shall be effective only in the spe..:dic instance and for the
purpos<; ll)r which given and to the cxt~:nt .specified in su..:h writing. No delay or omission hy any party
hcrclo to exercise any right or remedy upun the happ0ning ot any [vent of Dcfhult hereunder shall impair
'>llch right or n:rncdy c>r he decm<:d to he a waiver ul" ~uch Event of Default. Bank's c.xecutiou and
delivery nf' this Extension i\grcemcnt is not and shnll nut he deemed a \vaiver or any right m remedy ot
Bank by reason of any existing or future dctiwlt under the I 1mn Documents and shall not C'itahlish an~
course of dealing. among the parties that is inconsistent vvith the express 1\.:rms
the Luan Dneuments.
Bank hereby reserves ~uch rights, powers and n::nwdics thm are available 1t1 Bank pursuant to the Loan
D\lCume.nts and applicable !a"v with respt~d to any existing or future dct:nilt under the Loan Documenb..

or

I 1.
SeyerabiHtv I Further Assuranct~s. ln the event that any <lilt: w more of the provisions
cmnained in this Extension AgrC'cmcnt shall f(Jr any reason be held to be invalid. ilkgal ur unenf(m.:cahlc
in any respect. snch invalidity. ilkgality ~w ltiH:nli:lln~abi!ity shall not affect any other provision nr the
!.>.:tension Agre~:m~:nt and the Lxten<;ion Agreement shall be C\li1Slrued as il' ::;uch itnalid tlr
unenforceable provisions had m~vcr bc't:n eontained in this !:~.\:tension Agreement. Spectra and Fanner
shnll cx~~cutc and/nr shall cause the Burrm\er-; to execute any and all agreements, instruments. and
dncumcn!s, and shall tnke and/or shail cause the nonm\crs h1 tak..:: such further actions as rna~ lw
nee~:s~ary to fully effectuate this J-:xtcn~ion Agn:c~ment.
12.

Counterparts, Governing Law, and Miscellaneous. This Lxtcnsinn Agreement mav
which takc;1
t\ 1 ~!J:thcr shall con~titutc one and the same agreement pr<1vidcd. however, that the Lxtension Agreement
shall he of no force or el"tect until signed by all parties hereto. This Lxtcnsion Agreement shall be
construed in accordance with and governed by the law;., 111' the State or Ohio. Courts v-:ithin the State ol
Ohio shall have jurisdiction over any and all dispute'> arising under or p\:rtaining to this F:xtcosion
Agr~~·ment nnd venue in any such di'iputc -;hall lie cxclusi\cly in Hamilton County. ( lhio.
he executed in multiple counterparts. cm:h of which shall contain an originnl. and all

(,

nl·

C

l~XI~:Cl

TFD as of the date first set l(>rth above.

KLYtL'\NK \.!Ar!ONAL ASSOC!A'r!ON

Name: C. llownrd l~gger
Title: Vice President

C

EXHIBIT 1\
The 1\J!lowing are thl' minimum n.:lease prices for each retml center and
Retail (\:mers
/\lice Shopping Center
[}ay City Shopping Center
Bloomington Shopping Center
Boutte Shopping Center
Marion Shopping Center
(\~darto'>vn Shopping Center
Corte; Shopping Center
Dillon Shopping Center
l \kn Shopping Center
hans t'v1ills Shopping Cem<.:r
l.ongvicw Shopping C\:ntcr
Lubbock Shopping Center
Lubbock SW Shopping Center
tv1ayodan Shopping ('enter
Oak Grove Shopping Center
Pueblo West Shopping Center
Salem Shopping Center
Snlisbury Shopping Center
S\-\t:dcn Shopping Center
l \aiJe Shopping Center
Vil!v Platte Shopping Center

$2.475.000
$~.~~:U)00

$2.J 50. 1()()
$5Jl25.000

$3Jl68.XOO
$3.551 J)()()
$2.070.0()0
60.000
52.512.500
~;4_520.000

s:t 704Aoo
$3.267.650
$4,575.000
$4.598.050
~A.ns.ooo

$2.11 0.500
$2.lJ25JlOO
$3.994.1
$.:?. 750.0()()
$2.850,000
$2.485.000

Outlu1s
I~ loum i ngtnn
I .ongvic'>\
( 'cdartn'v\ n
Sak·m
Lvans Mills
Dillon

Salisbury

$\.~3.000

$542.500
10.000
$l59J)O()

Sl :-m.ooo
$217.000

$752.250

\Hnlot,

EXECUTED as of the date first set forth above.
KEYBANK NATIONAL ASSOCIATION

c ~c:A-d~.e

By:
Name: C. Howard Egger
Title: Vice President

A

THE SPECTRA GROUP, INC.

By: _ _ _ _ _ _ _ _ _ _ _ __
Name: JeffH. Farmer, Jr.
Title: Chief Executive Officer

JEFF H. FARMER, JR., Individually

626030.6

7

SEVENTH AMENDMENT TO MASTER CONSTRUCTION LOAN AGREEMENT

This SEVENTH AMENDMENT TO MASTER CONSTRUCTION LOAN AGREEMENT (this
"Amendment") is made as of this 15th day of April, 2011 by and among KEYBANK NATIONAL
ASSOCIATION, a national banking association ("KeyBank" or "Bank"), THE SPECTRA GROUP, INC.,
a Tennessee corporation ("Spectra"), JEFF H. FARMER, JR., an individual ("Farmer") and the
undersigned Borrowers ("Borrowers").
RECITALS
WHEREAS, pursuant to a Master Construction Loan Agreement dated December 8, 2005,
between Spectra, Farmer and Bank (the "Original Loan Agreement"), as amended by a First Amendment
to Master Construction Loan Agreement dated June 30, 2006 between the same parties (the "First
Amendment"), as further amended by a Second Amendment to Master Construction Loan Agreement
dated October 10, 2006 between the same parties (the "Second Amendment"), as further amended by a
Third Amendment to Master Construction Loan Agreement dated July 18, 2007 between the same parties
(the "Third Amendment"), as further amended by a Fourth Amendment to Master Construction Loan
Agreement dated October 10, 2007 between the same parties (the "Fourth Amendment"), as further
amended by a Fifth Amendment to Master Construction Loan Agreement dated as of April 15, 2009 (the
"Fifth Amendment"), as further amended by a Sixth Amendment to Master Construction Loan Agreement
dated July 15, 2010 between the same parties (the "Sixth Amendment"), and as further amended by an
Agreement dated October 15, 2010 between the same parties (the "2010 Agreement"; the Original Loan
Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Sixth Amendment and the 2010 Agreement being collectively
referred to as the "Loan Agreement"), Bank made a $85,000,000.00 project loan facility available to
Farmer on the terms and conditions set forth in the Loan Agreement.
WHEREAS, pursuant to the terms of the Loan Agreement, Bank provided Project Loans to the
Borrowers (as defined in the Loan Agreement; the Borrowers, Spectra and Farmer are collectively
referred to as "Obligated Parties") for the Projects (the "Existing Loans"). The Existing Loans are
evidenced by three Amended and Restated Promissory Notes dated as of April 15, 2009, as each such
notes were amended and restated by a Second Amended and Restated Promissory Note each dated as of
July 15, 2010 executed by the appropriate Borrowers and by Third Amended and Restated Promissory
Notes each dated as of October 15,2010 (collectively, the "Note").
WHEREAS, the payment of the Note was guaranteed by a Guaranty from Spectra and Farmer
Uointly and severally, in their capacity as guarantor, "Guarantor") pursuant to the Amended and
Restated Guaranty dated as of April 15, 2009 (the "Guaranty").
WHEREAS, Spectra, Farmer and Bank hereby desire to amend the Loan Agreement to, extend
the maturity date of the Loan, all under the terms and conditions hereinafter set forth.

AGREEMENTS
NOW, THEREFORE, Spectra, Farmer, Borrowers and Bank agree as follows:
1.
Definitions. Except as hereinafter specifically provided, all words in this Amendment
beginning with capital letters which are not normally capitalized shall have the same meaning as set forth

EXHIBIT 33

in the Loan Agreement. Effective as of April 15, 2011, the Loan Agreement shall be deemed to be
modified by the provisions of this Amendment.

2.
Representations, Acknowledgments and Covenants. Spectra, Farmer and Borrowers
represent, acknowledge and covenant that each of the following is true on the date of execution and shall
remain true until the Loan is paid in full:
a)
True and Correct Statement. The above Recitals are true and accurate in all respects,
incorporated within this Amendment as if fully rewritten. As a condition to the signing of
Amendment, all parties are relying on the truth, completeness, and correctness of the statements
representations made herein, including the Recitals, and all parties represent for themselves that
Amendment contains no material misrepresentations or omissions by any party to this Amendment.

and
this
and
this

b)
Indebtedness. As of April 15, 2011, the Borrowers are indebted, and the Guarantor is
liable (as set forth in the Guaranty), to Bank under the Note, in the principal amount of Sixty-Eight
Million Four Hundred Sixteen Thousand Nine Hundred Ninety-Three and 77/100 Dollars
($68,416,993. 77) together with unpaid accrued interest as reflected in Bank's records, which interest will
continue to accrue. Spectra, Farmer and Borrowers acknowledge and agree that the Bank is not obligated
to make any further advances under the Loan.
c)
Claims or Setoff. As of the date of this Amendment, none of the Obligated Parties have
any claims or set-offs against the Obligations, nor do they have any defenses to, or counterclaims
respecting, the enforcement or administration of their respective obligations evidenced by the Loan
Documents and under applicable law. The Obligated Parties shall not assert or seek to assert any claim,
set-off, defense or counterclaim of any kind or nature whatsoever with respect to the Loan Documents.
d)
Liens and Encumbrances. No liens or encumbrances other than Bank's attach to any of
the Projects, and no litigation is pending against Obligated Parties. The Borrowers will keep all of the
Projects and all rights with respect thereto and proceeds of same both free from any adverse lien, and in
good condition, and will not waste or destroy any of the same.
e)
Taxes. Obligated Parties have promptly paid when due, all taxes, assessments, and
governmental charges of every kind and nature that have been lawfully levied, assessed or imposed upon
Obligated Parties have, or their respective properties (including the use thereof), or any obligations which,
if unpaid would become liens against its assets including, without limitation, all sums due and owing any
taxing authority for income and other taxes withheld from the wages and salaries of its employees. All
federal, state and other tax returns and reports required by law to be filed by the Obligated Parties have
been duly filed (or proper extensions for filing have been filed).
f)

Authority of Obligated Parties to Execute Loan Documents.
(i)

The execution, delivery, and performance by Obligated Parties of each of this
Amendment and the other documents referred to herein which are required to be
executed and delivered by Obligated Parties:
(1)
(2)

(3)

are within the respective Obligated Party's powers and authority;
do not contravene the respective Obligated Party's Articles of
Incorporation, by-laws or regulations, operating agreement, partnership
agreement or any amendments thereto;
do not, to the best of the respective Obligated Party's knowledge
contravene any laws;

2

(4)

(5)

except as provided herein, do not result in or require the creation of any
lien, security interest, or other charge or encumbrance upon or with
respect to any of the assets of any Obligated Party; and
will not cause any money owing on any other indebtedness of any
Obligated Party to be due and payable.

(ii)

No authorization or approval or action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due execution,
delivery, and performance by the respective Obligated Party's of this Amendment
or any of the agreements or documents referred to herein, except for the
recording thereof, where necessary, to evidence or perfect the liens or security
interests granted Bank or conveyances made to Bank in connection herewith.

(iii)

This Amendment and the other Loan Documents create and constitute legal,
valid, enforceable and binding obligations of the Obligated Parties, as
appropriate, in accordance with their respective terms.

g)
Sole Right to Assets. No Obligated Party has (i) made a general assignment for the
benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary
petition by its creditors; (iii) suffered the appointment of a receiver to take possession of all, or
substantially all, of its assets; or (iv) suffered the attachment or other judicial seizure of all, or
substantially all, of its assets.
h)
No Violation of Laws. Each Obligated Party's business and the operation thereof
conform and have conformed with all applicable laws, ordinances, rules, regulations and directives of
governmental or quasi-governmental agencies or authorities, including, but not limited to, all existing
zoning, land use, building, fire, health, labor, environmental, tax and safety laws, ordinances, rules,
regulations and directives. No notice, citation or special assessment for the violation of any ordinances,
rules, regulations, directives or other laws has been received by any Obligated Party nor does any
Obligated Party have knowledge of any fact or condition which may result in the issuance of any such
notice, citation or assessment.
i)
Environmental Concerns. Each Obligated Party and the Projects are in compliance with
all appropriate environmental laws and regulations.
j)
Financial Information. Any financial and operating statements of the Obligated Parties
furnished to Bank in connection with or pursuant to this Amendment or otherwise are true and correct,
accurately reflect the financial position of the parties described therein, and do not omit to state any
material liability, contingent or otherwise, or any facts necessary thereto, the omission of which would be
misleading.
k)
Continuous Nature of Loan Documents.
specifically altered herein, shall continue unchanged.

The terms of the Loan Documents, not

I)
Collateral Account. As a condition to the effectiveness of this Amendment, Spectra shall
establish a deposit account with Bank (the "Collateral Account"). On or before August 15, 2011 and the
fifteenth (15th) of each calendar month thereafter during the term of the Loan, Borrowers shall deposit the
Net Cash Flow (as defined below) for the second preceding calendar month (i.e. the August 15, 2011
deposit shall be based on the Net Cash Flow for June 2011) into the Collateral Account. Together with
such deposit, Borrowers shall deliver to Bank an accounting of the Net Cash Flow for the applicable
month substantially in the form attached as Exhibit A hereto. Spectra hereby grants Bank a security

interest in the Collateral Account. Spectra shall execute and deliver to Bank the Depository Agreement
for Restricted Collateral Account dated as of the date hereof (the "Collateral Account Agreement"). No
funds shall be withdrawn or disbursed from the Collateral Account without Bank's prior written consent
except as expressly set forth in this Amendment. As used herein, "Net Cash Flow" means, for any period,
all gross income from operations of the Projects (including, without limitation, income derived from
leases, service fees or charges), less normal and reasonable operating expenses (such as cleaning, utilities,
administrative, landscaping, security and management expenses), tenant improvement costs, third party
leasing commissions, repairs and maintenance, debt service (including debt service under the Note, the
Amended and Restated Term Note dated as of June 30, 2011 in the principal amount of $1,908,245.83
and the Amended and Restated Promissory Note dated as of the date hereof in the principal amount of
$732,032.97) and other amounts payable to Bank and fixed expenses (such as insurance, real estate and
other taxes), all as relating to the Projects.
3.
Conditions to Amendment. The effectiveness of this Amendment is conditioned upon
the satisfaction of the following conditions:
a)
Amended Note. Each Note shall be replaced with a Fourth Amended and Restated
Promissory Note dated as of the date hereof (collectively, the "Amended Note"). The Amended Note is a
restatement and amendment to the Note and the holder of the Amended Note is entitled to all of the
benefits of each of the predecessor Note. The Amended Note does not constitute repayment or
cancellation of all or any portion of the original indebtedness evidenced by the Note or any of the
subsequent restatements, modifications or amendments thereof. The Note shall remain in full force and
effect only for the purpose of evidencing any amounts due in connection with the Note and any other of
the Loan Documents which for any reason in fact or in law, do not become obligations of Borrower under
the Amended Note, as intended by the parties thereto.
b)
Agreement.

Collateral Agreement. Spectra shall execute and deliver to Bank the Collateral Account

c)
Resolutions. Spectra shall cause to be delivered to Bank a resolution for the Obligated
Parties authorizing the execution and delivery of this Amendment, including all of the Loan Documents
required to be delivered in connection herewith.
d)
Cedartown Town Mortgage. Spectra shall cause the applicable Borrowers to execute and
deliver a Deed to Secure Debt, Assignment of Rents, Security Agreement and Fixture Filing encumbering
the property located in the City of Cedartown, County of Polk, State of Georgia (the "Cedartown
Mortgage") and an Assignment of Leases and Rents with respect to such property. Spectra shall caused
to be delivered at closing a loan title policy insuring the priority of the lien of the Cedartown Mortgage in
form and substance reasonably acceptable to Bank.
e)
Extension Fee. Spectra and Farmer shall pay Bank an extension fee equal to $57,014.16
on or before September 15, 2011.
f)
20 I 0 Appraisal Costs. Spectra and Farmer shall pay Bank an amount equal to
$54,075.00 for appraisals of the Projects conducted in 2010 at Closing.

g)
2010 Origination Fee. Spectra and Farmer shall pay Bank an amount equal to $35,230.75
at closing, which reflects the final installment of the origination fee cited in Section 6.b. of the 2010
Agreement.

4

4.

Maturity Date.

a)
The definition of the tenn "Maturity Date" in Section 4.4 of the Original Loan
Agreement, as amended from time to time, is hereby deleted in its entirety and the following is inserted in
its place:
"Maturity Date: The earlier of August 15, 2011, or the date the Loan Amount otherwise
becomes due and payable."
b)
The term of the Loan is hereby extended through and until the Maturity Date whereupon
on the Maturity Date all unpaid principal and accrued interest of the Loan, and any other amounts payable
under the Loan Agreement and the Project Documents, shall be clue and payable. Notwithstanding
anything to the contrary in the Loan Documents including, without limitation, Section 4.4 of the Original
Loan Agreement and Section 4 of the Fifth Amendment, except as set forth in Section 4(c) the Obligated
Parties shall have no right to further extend the Maturity Date.
c)
The Maturity Date shall be further extended to April 15, 2012 if the following conditions
are satisfied as of August 15, 2011:
(i)

No Event of Default has occurred and is continuing;

(ii)
The Extension Debt Yield (as defined below) is equal to or greater than eight
percent (8%) and the Extension Loan To Value Ratio (as defined below) is equal to or less than eightyfive percent (85%); and
(iii)
Bank shall have reviewed and approved (in Bank's sole discretion) the existing
environmental reports for the Projects, and, if Bank determines in connection with such review that
additional environmental reports are necessary or appropriate, Borrowers shall have such additional
reports prepared at Borrowers' expense by a qualified environmental consultant approved by Bank and
addressed to Bank (or subject to separate letter agreement permitting Bank to rely on such environmental
report) (collectively, the "Additional Environmental Reports") and the Additional Environmental Reports
shall be acceptable to Bank in Bank's sole discretion.
If the Maturity Date is so extended, Spectra and Fanner shall owe Bank an amount equal to
.00167% of the outstanding principal amount of the Loan as of August 15, 2011 (the "2012 Extension
Fee"). Spectra and Farmer shall pay Bank one-half (112) of the 2012 Extension Fee on or before
December 15, 2011, and the other one-half (112) of the 2012 Extension Fee on or before March 15, 2012.
Spectra may apply available funds in the Collateral Account to the payment of the 2012 Extension Fee.
d)

As used herein:

(i)
"Appraised Net Operating Income" means the in place net operating income
determined by the newly ordered appraisals (20 11 appraisals) approved and accepted by Bank for the
Projects.
(ii)
"Extension Debt Yield" means the amount equal to aggregate Appraised Net
Operating Income for the Projects divided by the then outstanding principal amount of the Loan,
multiplied by one hundred percent (100%).

5

(iii)
"Extension Loan to Value Ratio" means the ratio of the then outstanding
principal amount of the Loan, to the "as-is" value of all of the Projects, as determined by the newly
ordered appraisals (2011 appraisals) approved and accepted by Bank for the Projects.

5.
Curtailments. In addition to the interest and principal payments payable by Borrowers
pursuant to the Amended Note, Borrowers shall make on or before July 15, 2011 and on or before the
fifteenth day of each calendar month thereafter until all amounts due under the Amended Note or any
other Loan Document are paid in full, a curtailment of Twenty-Five Thousand and No/100 Dollars
($25,000.00).
6.

Attorneys' Fees and Expenses; Bank's Out-of-Pocket Expenses; Covenants.

a)
Spectra and Farmer agree to promptly reimburse Bank for all costs and expenses,
including attorney's fees of Bank's counsel incurred by Bank in connection with any restructurings of the
Amended Note or any of the Loan Documents executed and delivered in connection herewith. If the
Amended Note is placed in the hands of attorneys for collection or is collected through any legal
proceedings, Borrower promises and agrees to pay, in addition to the principal, interest and other sums
due and payable hereon, all costs of collecting or attempting to collect the Amended Note, including all
reasonable attorneys' fees and disbursements.
b)
Without limiting the foregoing, Farmer, Spectra and the Borrowers shall reimburse Bank
for all appraisals of the Projects conducted by Bank in connection with this Amendment on or before
September 15,2011 (the "2011 Appraisal Fees").
c)
Spectra may apply available funds in the Collateral Account to the payment of the 2011
Appraisal Fees.
d)
Failure of Farmer to comply, or cause compliance, with any of the covenants in this
Amendment shall be an Event of Default under the Loan Documents.

7.
Guarantors' Confirmations and Waivers.
Each Guarantor, by executing this
Amendment, hereby assents to the terms and conditions of this Amendment and ratifies and reaffirms the
terms and conditions of the Guaranty, which Guaranty shall remain in full force and effect. Each
Guarantor hereby waives any defense to his/its obligations under the Guaranty based upon or arising out
of (i) the modifications to the Loan Documents as herein provided, (ii) the taking of any additional
security for repayment of the Loan, and (iii) any act or omission of Bank occurring on or before the date
of this Amendment. Notwithstanding any language contained in the Guaranty, each Guarantor, to the
extent permitted by law, waives any claim or other right which each such Guarantor might now have or
hereafter may acquire against Borrower, each co-Guarantor, or any other obligor of the Loan, which
arises from the existence or performance of each such Guarantor's liability or other obligations under the
Guaranty and any other guaranties which any of the Guarantors has executed in favor of Bank, including,
without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification,
and any right to participate in any claim or remedy of Bank against Borrower or any of the Projects,
whether or not such claim, remedy, or right arises in equity, or under contract, statute, or common law.
8.
RELEASE. EFFECTIVE AS O.F THE DATE OF THE EXECUTION AND
DELIVERY OF THIS AMENDMENT, SPECTRA, FARMER AND BORROWERS, JOINTLY
AND SEVERALLY AGREE TO RELEASE AND HEREBY DO RELEASE AND DISCHARGE,
BANK, ITS SHAREHOLDERS, AGENTS, SERVANTS, EMPLOYEES, DIRECTORS,
OFFICERS, ATTORNEYS, AFFILIATES, SUBSIDIARIES, PREDECESSORS, SUCCESSORS
AND ASSIGNS, INCLUDING WITHOUT LIMITATION ANY PARTICIPANT IN THE

EXISTING LOAN, AND ALL PERSONS, FIRMS, CORPORATIONS, AND ORGANIZATIONS
ACTING ON THEIR BEHALF (COLLECTIVELY THE "BANK PARTIES") OF AND FROM
ALL DAMAGES, LOSSES, CLAIMS, DEMANDS, LIABILITIES, OBLIGATIONS, ACTIONS
AND CAUSES OF ACTION WHATSOEVER THAT EACH OBLIGATED PARTY HAS OR
CLAIMS TO HAVE AGAINST ANY BANK PARTY AS OF THE DATE HEREOF, AND OF
EVERY NATURE AND EXTENT WHATSOEVER ON ACCOUNT OF OR IN ANY WAY,
DIRECTLY OR INDIRECTLY, TOUCHING, CONCERNING, ARISING OUT OF OR
FOUNDED UPON THE LOAN DOCUMENTS OR THE LENDING RELATIONSHIP
RESPECTING THE OBLIGATIONS BETWEEN ANY OBLIGATED PARTY AND ANY BANK
PARTY. THIS RELEASE WILL NOT EXTEND TO ANY CLAIM ARISING AFTER THE
DATE OF THIS AMENDMENT TO THE EXTENT SUCH CLAIM IS BASED ON ACTS OR
OMISSIONS OF BANK WHICH BECOME KNOWN TO FARMER AFTER THE DATE OF
THIS AMENDMENT EXCEPT THAT SUCH RELEASE IS SPECIFICALLY INTENDED BY
THE PARTIES TO INCLUDE THE TRANSACTIONS CONTEMPLATED BY THIS
AMENDMENT. FARMER REPRESENTS TO BANK THAT HE DOES NOT KNOW OF ANY
SUCH CLAIMS AGAINST BANK AFTER REVIEWING THE LOAN DOCUMENTS AND THE
BANKING RELATIONSHIP WITH DUE DILIGENCE AND IN GOOD FAITH. BANK WOULD
NOT AGREE TO ENTER INTO THIS AMENDMENT BUT FOR THE PROVISIONS SET
FORTH IN THIS SECTION. SPECTRA, FARMER AND BORROWER CONFIRM THAT
THEY HAVE AGREED TO THE PROVISIONS OF THIS SECTION OF THEIR OWN
VOLITION, WITH FULL KNOWLEDGE OF THE EXTENT AND EFFECT OF THE VARlO US
RELEASES AND WAIVERS GRANTED BY THIS SECTION AND OF THE IMPORTANCE TO
BANK OF THESE WAIVERS AND RELEASES AND AFTER HAVING HAD THE
OPPORTUNITY TO DISCUSS THIS MATTER WITH COUNSEL OF THEIR OWN CHOICE.
9.
JURY TRIAL. THE PARTIES TO THIS AMENDMENT HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY
ANY PARTY AGAINST ANOTHER ON ANY MATTERS WHATSOEVER ARISING UNDER
OR IN CONNECTION WITH THIS WORKOUT AGREEMENT OR THE LOAN DOCUMENTS
OR ANY ANCILLARY AGREEMENT AND SHALL TAKE ALL APPROPRIATE STEPS TO
IMPLEMENT THAT WAIVER, INCLUDING PROVIDING FURTHER WRITTEN CONSENT
IN COURT.
10.
Loan Documents.
Except as herein specifically provided otherwise, the Loan
Documents shall remain in full force and effect and be unaffected hereby. In the event of a conflict
between the terms of this Amendment, the Loan Documents and any other agreement between Bank and
any Borrower or any other Obligated Party, then this Amendment shall be controlling.
11.
Waiver, Amendment. No waiver of or consent to any departure from any provision
hereof shall be effective unless in writing and signed by the authorized representative of the party against
whom such a waiver or consent is asserted and shall be effective only in the specific instance and for the
purpose for which given and to the extent specified in such writing. No delay or omission by any party
hereto to exercise any right or remedy upon the happening of any Event of Default hereunder shall impair
such right or remedy or be deemed to be a waiver of such Event of Default. Bank's execution and
delivery of this Amendment is not and shall not be deemed a waiver of any right or remedy of Bank by
reason of any existing or future default under the Loan Documents and shall not establish any course of
dealing among the parties that is inconsistent with the express terms of the Loan Documents. Bank
hereby reserves such rights, powers and remedies that are available to Bank pursuant to the Loan
Documents and applicable law with respect to any existing or future default under the Loan Documents.

12.
Severability I Further Assurances. In the event that any one or more of the provisions
contained in this Amendment shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision of this
Amendment, and this Amendment shall be construed as if such invalid or unenforceable provisions had
never been contained in this Amendment. Spectra and Farmer shall execute and/or shall cause the
Borrowers to execute any and all agreements, instruments, and documents, and shall take and/or shall
cause the Borrowers to take such further actions as may be necessary to fully effectuate this Amendment.
13.
Counterparts, Governing Law, and Miscellaneous.
This Amendment may be
executed in multiple counterparts, each of which shall contain an original, and all of which taken together
shall constitute one and the same agreement; provided, however, that this Amendment shall be of no force
or effect until signed by all parties hereto. This Amendment shall be construed in accordance with and
governed by the laws of the State of Ohio. Courts within the State of Ohio shall have jurisdiction over
any and all disputes arising under or pertaining to this Amendment and venue in any such dispute shall lie
exclusively in Hamilton County, Ohio.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

I.·:XECUlFD as of the date tirst set l(·;rih

abov~.

BORROWERS:

Texas limited partnership

RAI>CLIFF SHOPPING CENTER LLC. a
Delaware limit~J liability company

By:

By:

AUO: SHOPPING CENTER \!NIT TWO
LTD .. a Texas limited partnership

BOAZ SHOPPING CENTI<:R LLC. a Delaware
limited liability comp;my

LONGVIEW SHOI,Pil"G CENTER LP. a

CARROLLTON SHOPPING CENTF.R LTD..

DURANT SHOPPING CENTER LLC. a

a Texas limited partnership

Delaware limited liability company

BELTON SHOJ>PING CENH:R LTD, a Texas

TELL CITY SHOPPING CENTER LLC. a

limited partnership

Delaware limited liability company

OTTll!\'lWA SUOPPIN(; CENTER LLC a

LA .JUNTA SHOPPING CENTEH. LLC. a

Dl'iawnre limited liability company

Delaware limit<:d liability company

lly:

Jl\F Property Holdings LLC. a Delaware
limited It l:>ilitv cot anv. its Manager
I
.
.
'··

NEWCASTLE SHOPPING CENTER LLC a

Delaware limited liability company

SIIELBYVlLLE SHOl'PING Cr<:NTER LLC
a Delaware limiteu liability company

KEOKliK SHOI'J>ING CENTER LLC. a

WA()Sf~ON

Delaware limited liability company

Delaware limited liability company

SHOPPING CENTER LLC. a

By:

PLAINVIEW SHOPPING CENTER LLC, a

Delaware

limit~d

FT. J)ODGE SHOPPING CF:NTER LLC a
Delaware limited liability company

liability company

By:

By:

[!)

NEWTOI\ SHOPPII\G CENTER LLC, a

BOtJTTE SHOPPING CENTER LLC, a

Dclm~an::

Ddavvarc limited liability company

limited liahility company

WEST BUULINGTON SHOPPING CENTER
LLC. a D~:lawarc limited liability company
By:

JIIF Property lloldings LLC a Delaware
limited a
ts Manager

CARROLLTON SHOPI'ING CENTER LLC.
a Delaware limited liability company

By:

JfLF Prop

; lloldings LLC. a Dclmvare

limitc~1iabilit'

"
Fly

co

/;

· v · s Manager

.f,.

I

By: ···=.....,q.,JL#'IM'

ZACHARY SHOPPIN(; CENTER LLC. a

SUA WNEE SHOPJ>II\G CE"'TER LLC, a

Delaware limited liability company

Delaware limited liability company

l~y:

By:

llLOOMINGTON SHOPI'JN(; CEI\TER
LLC. a Delaware limited liability company

CORTEZ SHOPPING CENTER LLC a

By:

By:

Delaware limited liahility company
· HoldingstG .C. a Delaware
' its Mana!-(Cl'
limited r bi 'tv . .

JtiF Prope

(

./

.'

"

\

II

c~

()JLLON SHOI'I'ING CENTER LLC, a

PERRY SHOPPING CENTER LLC. a

Delaware limited liability company

Delaware l.imikd liability company

lly:

.111FJ'l~QJ2(rty I loldings

LLC. a Lklaware
li;rtitecl liat\lity wmpat , it: 'lanagcr
\_
//
By: ___ ....

fly:

,

Jeff
IV1' a

EDEN SHOPPING CENTI~R LLC o Delawar~
limited liability company

TYI.EI{ SllOI'PING CENTEU LLC. a
Delaware limited liability company

By:

By:
nagcr

MI~DE:\

SHOPPING CENTER LLC. a
Delaware limited liability company

l't!LASKI SHOPPING CENTER LLC."
Delaware limited liability company

By:

By:

PETAL SHOPPING CENTEn LLC. a

Delaware limited liability company

:'r1ARSIIALLTOWN SHOI'PING CENTER
LLC, a Delawitre limited liability wmpany

By:

lly:

OSKALOOSA SHOPPING CEI'ITER LLC. a
Delaware limited liability company

VILLE PLATTE SHOPI'll\G CENTI<:I{ LLC
a Delaware limited linbi!it} company

By:

By:

LVALDE SHOPPING CEI\TER LLC. a

SWEHEN SHOPPING CE\TI':R LLC. a

Delaware limited liability company

Delawart·limited liability c.:ornpany

By:

By:

KEYBANK NATIONAL ASSOCIATION

Name: C. lloward E::ggcr
Title: Vice President

THE SPECTRA GROllP, INC.

Hy: ___··-·

Name: .kfT lfi;~;me~~j;·-------···
Title: Chief Executive Oflicer

-·-··--·--·---·--·---

JEFF H. FARMER. JR .. Individually

I'

(~

OSKALOOSA SHOPPING CENTER LLC, a

VILLE PLATTE SHOPPING CENTER LLC,

Delaware limited liability company

a Delaware limited liability company

By:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By: _ _ _ _ _ _ _ _ _ __
Jeff H. Farmer, Jr.
Manager

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By: _ _ _ _ _ _ _ _ _ __

Jeff H. Farmer, Jr.
Manager

UVALDE SHOPPING CENTER LLC, a

SWEDEN SHOPPING CENTER LLC, a

Delaware limited liability company

Delaware limited liability company

By:

By:

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager
By: _ _ _ _ _ _ _ _ _ _ __
Jeff H. Farmer, Jr.
Manager

By: _ _ _ _ _ _ _ _ _ __
JeffH. Farmer, Jr.
Manager

KEYBANK NATIONAL ASSOCIATION

~~c-~~~

By:
Name: C. Howard Egger
Title: Vice President

JHF Property Holdings LLC, a Delaware
limited liability company, its Manager

7

THE SPECTRA GROUP, INC.
By: _ _ _ _ _ _ _ _ _ _ _ _ __
Name: Jeff H. Farmer, Jr.
Title: Chief Executive Officer

JEFF H. FARMER, JR., Individually

818139.4

13

EXHIBIT 34

FOURTH AMENDED AND RESTATED
PROMISSORY NOTE #2

U.S. $4,563,625.15

As of April 15, 2011

FOR VALUE RECEIVED, all of the undersigned borrowers, having an address at 5851
Ridge Bend Road, Memphis, Tennessee 38120 (jointly and severally, "Maker"), hereby jointly
and severally promise to pay to the order of KEYBANK NATIONAL ASSOCIATION, a
national banking association ("Payee"), having an address at 8425 Woodfield Crossing
Boulevard, Suite 500, Indianapolis, Indiana 46240, the principal sum of Four Million Five
Hundred Sixty-Three Thousand Six Hundred Twenty-Five and 15/100 Dollars ($4,563,625.15)
or so much thereof as may be advanced hereunder, and interest from the date hereof on the
balance of principal from time to time outstanding, in United States currency, at the rates and at
the times hereinafter described.
This Note is issued by Maker pursuant to that certain Master Construction Loan
Agreement dated December 8, 2005 entered into between The Spectra Group, Inc., a Tennessee
Corporation, Jeff H. Farmer, Jr. and Payee (the "Original Loan Agreement"), as amended by a
First Amendment to Master Construction Loan Agreement dated June 30, 2006 between the
same parties (the "First Amendment"), as further amended by a Second Amendment to Master
Construction Loan Agreement dated October 10, 2006 between the same parties (the "Second
Amendment"), as further amended by a Third Amendment to Master Construction Loan
Agreement dated July 18, 2007 between the same parties (the "Third Amendment"), as further
amended by a Fourth Amendment to Master Construction Loan Agreement dated October 10,
2007 between the same parties (the "Fourth Amendment"), as further amended by a Fifth
Amendment to Master Construction Loan Agreement dated as of April 15, 2009 (the "Fifth
Amendment"), as further amendment by Extension Agreement and Sixth Amendment to Master
Construction Loan Agreement dated July 15, 2010 between the same parties (the "Sixth
Amendment"), as further amended by the Agreement dated October 15, 2010 between the same
parties (the "Agreement"), and as further amended by Seventh Amendment to Master
Construction Loan Agreement dated as of the date hereof between the same parties (the "Seventh
Amendment"; the Orginal Loan Agreement, as amended by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth
Amendment, the Agreement and the Seventh Amendment, is hereinafter collectively referred to
as the "Loan Agreement"). Capitalized terms used and not otherwise defined herein shall have
the meanings given to them in the Loan Agreement. This Note evidences the same indebtedness
evidenced by, and amends and restates in their entirety, all promissory note(s) evidencing the
Project Loan for the Project commonly known as Evans Mills, New York, as such promissory
note(s) were amended and restated pursuant to the Amended and Restated Promissory Note #2
dated as of April 15, 2009, a Second Amended and Restated Promissory Note #2 dated as of July
15, 2010, and a Third Amended and Restated Promissory Note #2 dated as of October 15, 2010,
and is not a novation of such promissory note(s) or such Project Loan. The Amended and
Restated Promissory Note #3 dated April 15, 2009, as further amended and restated pursuant to a
Second Amended and Restated Promissory Note #3 dated as of July 15, 2010, as further
amended and restated pursuant to a Third Amended and Restated Promissory Note #3 dated as of

EXHIBIT 35