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, )

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October 15, 2010, and as amended and restated pursuant to the Fourth Amended and Restated Promissory Note #3 dated as of the date hereof (collectively, "Note #3") evidences the same indebtedness evidenced by the promissory note(s) for the Project Loan for the Project commonly known as Sweden, New York. The Amended and Restated Promissory Note #1 dated April 15, 2009, as further amended and restated pursuant to a Second Amended and Restated Promissory Note #1dated as of July 15, 2010, as further amended and restated pursuant to a Third Amended and Restated Promissory Note #1 dated as of October 15, 2010, and as amended and restated pursuant to the Fourth Amended and Restated Promissory Note #1 dated as of the date hereof (collectively, "Note #1") evidences the same indebtedness evidenced by the promissory notes for all other Project Loans except for the Project Loans for the Project commonly known as Evans Mills, New York and the Project commonly known as Sweden, New York. This Note, Note #1 and Note #3 are referred to herein as the "Aggregate Note." Payment of this Note is governed by the Loan Agreement. The terms of the Loan Agreement are incorporated herein by express reference as if fully set forth herein. All of the undersigned are Borrowers, as that term is defined in the Loan Agreement, and agree to comply with and be bound by the terms of the Loan Agreement. To the extent that any of the undersigned are Borrowers of Project Loans which predate the Original Loan Agreement, for purposes of clarification, such Borrowers agree and acknowledge that the Loan Agreement shall govern in the event of any conflict between the terms of the Loan Agreement and any loan agreements entered into with respect to such Project Loans prior to the Original Loan Agreement (the "Prior Agreements"). At the request of Payee, such Borrowers shall execute and deliver within fifteen (15) days of written request any documents confirming the terms of the Prior Agreements that are superseded by the Loan Agreement. The Spectra Group, Inc., a Tennessee corporation ("Spectra"), in its capacity as general partner of Alice Shopping Center Unit Two Ltd., a Texas limited partnership, Longview Shopping Center LP, a Texas limited partnership, and Carrollton Shopping Center LTD, a Texas limited partnership shall have no personal liability under this Note by reason of the joint and several liability of the parties thereto. The foregoing shall in no way affect or impair the liability of Spectra under its guaranty of, among other things, the indebtedness evidenced by this Note pursuant to the Guaranty of even date herewith. 1. Interest. The principal amount hereof outstanding from time to time shall bear interest until paid in full at the Applicable Rate, but in no event less than the Floor Interest Rate. 2. Monthly Payments. Interest shall be payable in arrears on the fifteenth (15th) day of each calendar month after the date hereof up to and including the Maturity Date in the amount of all interest accrued during the immediately preceding calendar month. In addition to interest payments, the undersigned shall make principal payments equal to Nine Thousand Six Hundred Fifty-Three and 62/100 Dollars ($9,653.62) commencing on the fifteenth of each calendar month after the date hereof up to and including the Maturity Date. All payments on account of the indebtedness evidenced by this Note shall be made to Payee not later than 11:00 a.m. Cleveland, Ohio time on the day when due in lawful money of the United States and shall be first applied to late charges, costs of collection or enforcement and other similar amounts due, if any, under this Note, the Loan Agreement, the Project Documents and any other documents entered into by Maker or others in connection with the indebtedness evidenced hereby (the Loan Agreement, the Project Documents and such other documents being -2- collectively referred to herein as the "Loan Documents"), then to interest due and payable hereunder and the remainder to principal due and payable hereunder. All payments under the Aggregate Note, except principal payments, shall be applied prorata to the Aggregate Note based upon the outstanding principal amounts thereof. All principal payments under the Aggregate Note shall be applied first to Note #1 and then prorata to this Note and Note #3 (except in the event of release of the Project with respect to either of this Note or Note #3, in which event the principal payment shall be applied to the note for such Project). 3. Maturity Date. The indebtedness evidenced hereby shall mature on the Maturity Date. On the Maturity Date, the entire outstanding principal balance hereof, together with accrued and unpaid interest and all other sums evidenced by this Note, shall, if not sooner paid, become due and payable. 4. General Provisions. (a) Regardless of whether an Adjusted LIBOR Rate would otherwise then be in effect, in the event (i) the principal balance hereof is not paid when due whether by acceleration or upon the Maturity Date or (ii) an Event of Default exists, then the principal balance hereof shall bear interest from and after the Default Rate. In addition, for any installment (exclusive of the payment due upon the Maturity Date) which is not paid within ten (10) days after the due date thereof a late charge equal to the greater of (a) ten percent (10%) of the amount of such installment or (b) $25 shall be due and payable to the holder of this Note on demand to cover the extra expense involved in handling delinquent payments. (b) Maker agrees that the obligation evidenced by this Note is an exempt transaction under the Truth-in-Lending Act, 15 U.S.C. § 1601, et seq. (c) The parties hereto intend and believe that each provision in this Note comports with all applicable local, state and federal laws and judicial decisions. However, if any provision or provisions, or if any portion of any provision or provisions, in this Note is found by a court of law to be in violation of any applicable local, state or federal ordinance, statute, law, administrative or judicial decision, or public policy, and if such court should declare such portion, provision or provisions of this Note to be illegal, invalid, unlawful, void or unenforceable as written, then it is the intent of all parties hereto that such portion, provision or provisions shall be given force to the fullest possible extent that they are legal, valid and enforceable, that the remainder of this Note shall be construed as if such illegal, invalid, unlawful, void or unenforceable portion, provision or provisions were not contained therein, and that the rights, obligations and interest of Maker and the holder or holders hereof under the remainder of this Note shall continue in full force and effect. All agreements herein are expressly limited so that in no contingency or event whatsoever, whether by reason of advancement of the proceeds hereof, acceleration of maturity of the unpaid principal balance hereof, or otherwise, shall the amount paid or agreed to be paid to the holders hereof for the use, forbearance or detention of the money to be advanced hereunder exceed the highest lawful rate permissible under applicable usury laws. If, from any circumstances whatsoever, the fulfillment of any provision hereof, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by law which a court of competent jurisdiction may deem applicable hereto, then, ipso facto, the obligation to be fulfilled shall be reduced to the -3- limit of such validity and if from any circumstance the holder hereof shall ever receive as interest an amount which would exceed the highest lawful rate, such amount which would be excessive interest shall be applied to the reduction of the unpaid principal balance due hereunder and not to the payment of interest. (d) This Note and all provisions hereof shall be binding upon Maker and all persons claiming under or through Maker, and shall inure to the benefit of Payee, together with its successors and assigns, including each owner and holder from time to time of this Note. The obligations of Maker under this Note are joint and several. (e) Time is of the essence as to all dates set forth herein. (f) Maker agrees that its liability shall not be in any manner affected by any indulgence, extension of time, renewal, waiver, or modification granted or consented to by Payee; and Maker consents to any indulgences and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and to any substitution, exchange or release of the collateral, or any part thereof, with or without substitution, and agrees to the addition or release of any makers, endorsers, guarantors, or sureties, all whether primarily or secondarily liable, without notice to Maker and without affecting its liability hereunder. (g) Maker hereby waives and renounces for itself, its successors and assigns, all rights to the benefits of any statute of limitations and any moratorium, reinstatement, marshalling, forbearance, valuation, stay, extension, redemption, appraisement, or exemption and homestead laws now provided, or which may hereafter be provided, by the laws of the United States and of any state thereof against the enforcement and collection of the obligations evidenced by this Note. (h) If this Note is placed in the hands of attorneys for collection or is collected through any legal proceedings, Maker 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 this Note, including all reasonable attorneys' fees and disbursements. (i) All parties now or hereafter liable with respect to this Note, whether Maker, principal, surety, guarantor, endorsee or otherwise hereby severally waive presentment for payment, demand, notice of nonpayment or dishonor, protest and notice of protest. No failure to accelerate the indebtedness evidenced hereby, acceptance of a past due installment following the expiration of any cure period provided by this Note, any Loan Document or applicable law, or indulgences granted from time to time shall be construed (i) as a novation of this Note or as a reinstatement of the indebtedness evidenced hereby or as a waiver of such right of acceleration or of the right of Payee thereafter to insist upon strict compliance with the terms of this Note, or (ii) to prevent the exercise of such right of acceleration or any other right granted hereunder or by any Laws. Maker hereby expressly waives the benefit of any statute or rule of law or equity now provided, or which may hereafter be provided, which would produce a result contrary to or in conflict with the foregoing. -4- (j) Maker hereby expressly acknowledges that the loan evidenced by this Note is a "business loan" within the meaning of Chapter 1343 of the Ohio Revised Code. (k) With respect to any agreement by Borrower in this Note or in any other Loan Document to pay Payee's attorneys' fees and disbursements incurred in connection with the Loan, Borrower agrees that each Loan Document is a "contract of indebtedness" and that the attorneys' fees and disbursements referenced are those which are a reasonable amount, all as contemplated by Ohio Revised Code Section 1301.21, as such Section may hereafter be amended. Borrower further agrees that the indebtedness incurred in connection with the Loan is not incurred for purposes that are primarily personal, family or household and confirms that the total amount owed on the contract of indebtedness exceeds One Hundred Thousand and No/100 Dollars ($100,000.00). (l) THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. (m) MAKER AND PAYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. [The remainder of this page is intentionally left blank] -5- THIRD AMENDED AND RESTATED PROMISSORY NOTE #3 U.S. $2,670,206.11 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 Boulevard, Suite 500, Indianapolis, Indiana 46240, the principal sum of Two Million Six Hundred Seventy Thousand Two Hundred Six and 11/100 Dollars ($2,670,206.11) 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 Sweden, New York, as such promissory note(s) were amended and restated pursuant to the Amended and Restated Promissory Note #3 dated as of April 15, 2009, a Second Amended and Restated Promissory Note #3 dated as of July 15, 2010, and a Third Amended and Restated Promissory Note #3 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 #2 dated April 15, 2009, as further amended and restated pursuant to a Second Amended and Restated Promissory Note #2 dated as of July 15, 2010, as further amended and restated pursuant to a Third Amended and Restated Promissory Note #2 dated as of October 15, 2010, and as amended and restated pursuant to the Fourth Amended and Restated Promissory EXHIBIT 36 Note #2 dated as of the date hereof (collectively, "Note #2"), evidences the same indebtedness evidenced by the promissory note(s) for the Project Loan for the Project commonly known as Evans Mills, New York. The Amended and Restated Promissory Note #1 dated April 15, 2009, as further amended and restated pursuant to a Second Amended and Restated Promissory Note #1 dated as of July 15, 2010, as further amended and restated pursuant to a Third Amended and Restated Promissory Note #1 dated as of October 15, 2010, and as amended and restated pursuant to the Fourth Amended and Restated Promissory Note #1 dated as of the date hereof (collectively, "Note #1"), evidences the same indebtedness evidenced by the promissory notes for all other Project Loans except for the Project Loans for the Project commonly known as Evans Mills, New York and the Project commonly known as Sweden, New York. This Note, Note #1 and Note #2 are referred to herein as the "Aggregate Note." Payment of this Note is governed by the Loan Agreement. The terms of the Loan Agreement are incorporated herein by express reference as if fully set forth herein. All of the undersigned are Borrowers, as that term is defined in the Loan Agreement, and agree to comply with and be bound by the terms of the Loan Agreement. To the extent that any of the undersigned are Borrowers of Project Loans which predate the Original Loan Agreement, for purposes of clarification, such Borrowers agree and acknowledge that the Loan Agreement shall govern in the event of any conflict between the terms of the Loan Agreement and any loan agreements entered into with respect to such Project Loans prior to the Original Loan Agreement (the "Prior Agreements"). At the request of Payee, such Borrowers shall execute and deliver within fifteen (15) days of written request any documents confirming the terms of the Prior Agreements that are superseded by the Loan Agreement. The Spectra Group, Inc., a Tennessee corporation ("Spectra"), in its capacity as general partner of Alice Shopping Center Unit Two Ltd., a Texas limited partnership, Longview Shopping Center LP, a Texas limited partnership, and Carrollton Shopping Center LTD, a Texas limited partnership shall have no personal liability under this Note by reason of the joint and several liability of the parties thereto. The foregoing shall in no way affect or impair the liability of Spectra under its guaranty of, among other things, the indebtedness evidenced by this Note pursuant to the Guaranty of even date herewith. 1. Interest. The principal amount hereof outstanding from time to time shall bear interest until paid in full at the Applicable Rate, but in no event less than the Floor Interest Rate. 2. Monthly Payments. Interest shall be payable in arrears on the fifteenth (15th) day of each calendar month after the date hereof up to and including the Maturity Date in the amount of all interest accrued during the immediately preceding calendar month. In addition to interest payments, the undersigned shall make principal payments equal to Five Thousand Six Hundred Forty-Eight and 40/100 Dollars ($5,648.40) commencing on the fifteenth of each calendar month after the date hereof up to and including the Maturity Date. All payments on account of the indebtedness evidenced by this Note shall be made to Payee not later than 11:00 a.m. Cleveland, Ohio time on the day when due in lawful money of the United States and shall be first applied to late charges, costs of collection or enforcement and other similar amounts due, if any, under this Note, the Loan Agreement, the Project Documents and any other documents entered into by Maker or others in connection with the indebtedness evidenced hereby (the Loan Agreement, the Project Documents and such other documents being collectively referred to herein as the "Loan Documents"), then to interest due and payable -2- hereunder and the remainder to principal due and payable hereunder. All payments under the Aggregate Note, except principal payments, shall be applied prorata to the Aggregate Note based upon the outstanding principal amounts thereof. All principal payments under the Aggregate Note shall be applied first to Note #1 and then prorata to Note #2 and this Note (except in the event of release of the Project with respect to either of Note #2 or this Note, in which event the principal payment shall be applied to the note for such Project). 3. Maturity Date. The indebtedness evidenced hereby shall mature on the Maturity Date. On the Maturity Date, the entire outstanding principal balance hereof, together with accrued and unpaid interest and all other sums evidenced by this Note, shall, if not sooner paid, become due and payable. 4. General Provisions. (a) Regardless of whether an Adjusted LIBOR Rate would otherwise then be in effect, in the event (i) the principal balance hereof is not paid when due whether by acceleration or upon the Maturity Date or (ii) an Event of Default exists, then the principal balance hereof shall bear interest from and after the Default Rate. In addition, for any installment (exclusive of the payment due upon the Maturity Date) which is not paid within ten (10) days after the due date thereof a late charge equal to the greater of (a) ten percent (10%) of the amount of such installment or (b) $25 shall be due and payable to the holder of this Note on demand to cover the extra expense involved in handling delinquent payments. (b) Maker agrees that the obligation evidenced by this Note is an exempt transaction under the Truth-in-Lending Act, 15 U.S.C. § 1601, et seq. (c) The parties hereto intend and believe that each provision in this Note comports with all applicable local, state and federal laws and judicial decisions. However, if any provision or provisions, or if any portion of any provision or provisions, in this Note is found by a court of law to be in violation of any applicable local, state or federal ordinance, statute, law, administrative or judicial decision, or public policy, and if such court should declare such portion, provision or provisions of this Note to be illegal, invalid, unlawful, void or unenforceable as written, then it is the intent of all parties hereto that such portion, provision or provisions shall be given force to the fullest possible extent that they are legal, valid and enforceable, that the remainder of this Note shall be construed as if such illegal, invalid, unlawful, void or unenforceable portion, provision or provisions were not contained therein, and that the rights, obligations and interest of Maker and the holder or holders hereof under the remainder of this Note shall continue in full force and effect. All agreements herein are expressly limited so that in no contingency or event whatsoever, whether by reason of advancement of the proceeds hereof, acceleration of maturity of the unpaid principal balance hereof, or otherwise, shall the amount paid or agreed to be paid to the holders hereof for the use, forbearance or detention of the money to be advanced hereunder exceed the highest lawful rate permissible under applicable usury laws. If, from any circumstances whatsoever, the fulfillment of any provision hereof, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by law which a court of competent jurisdiction may deem applicable hereto, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity and if from any circumstance the holder hereof shall ever receive as interest -3- an amount which would exceed the highest lawful rate, such amount which would be excessive interest shall be applied to the reduction of the unpaid principal balance due hereunder and not to the payment of interest. (d) This Note and all provisions hereof shall be binding upon Maker and all persons claiming under or through Maker, and shall inure to the benefit of Payee, together with its successors and assigns, including each owner and holder from time to time of this Note. The obligations of Maker under this Note are joint and several. (e) Time is of the essence as to all dates set forth herein. (f) Maker agrees that its liability shall not be in any manner affected by any indulgence, extension of time, renewal, waiver, or modification granted or consented to by Payee; and Maker consents to any indulgences and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and to any substitution, exchange or release of the collateral, or any part thereof, with or without substitution, and agrees to the addition or release of any makers, endorsers, guarantors, or sureties, all whether primarily or secondarily liable, without notice to Maker and without affecting its liability hereunder. (g) Maker hereby waives and renounces for itself, its successors and assigns, all rights to the benefits of any statute of limitations and any moratorium, reinstatement, marshalling, forbearance, valuation, stay, extension, redemption, appraisement, or exemption and homestead laws now provided, or which may hereafter be provided, by the laws of the United States and of any state thereof against the enforcement and collection of the obligations evidenced by this Note. (h) If this Note is placed in the hands of attorneys for collection or is collected through any legal proceedings, Maker 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 this Note, including all reasonable attorneys' fees and disbursements. (i) All parties now or hereafter liable with respect to this Note, whether Maker, principal, surety, guarantor, endorsee or otherwise hereby severally waive presentment for payment, demand, notice of nonpayment or dishonor, protest and notice of protest. No failure to accelerate the indebtedness evidenced hereby, acceptance of a past due installment following the expiration of any cure period provided by this Note, any Loan Document or applicable law, or indulgences granted from time to time shall be construed (i) as a novation of this Note or as a reinstatement of the indebtedness evidenced hereby or as a waiver of such right of acceleration or of the right of Payee thereafter to insist upon strict compliance with the terms of this Note, or (ii) to prevent the exercise of such right of acceleration or any other right granted hereunder or by any Laws. Maker hereby expressly waives the benefit of any statute or rule of law or equity now provided, or which may hereafter be provided, which would produce a result contrary to or in conflict with the foregoing. (j) Maker hereby expressly acknowledges that the loan evidenced by this Note is a "business loan" within the meaning of Chapter 1343 of the Ohio Revised Code. -4- (k) With respect to any agreement by Borrower in this Note or in any other Loan Document to pay Payee's attorneys' fees and disbursements incurred in connection with the Loan, Borrower agrees that each Loan Document is a "contract of indebtedness" and that the attorneys' fees and disbursements referenced are those which are a reasonable amount, all as contemplated by Ohio Revised Code Section 1301.21, as such Section may hereafter be amended. Borrower further agrees that the indebtedness incurred in connection with the Loan is not incurred for purposes that are primarily personal, family or household and confirms that the total amount owed on the contract of indebtedness exceeds One Hundred Thousand and No/100 Dollars ($100,000.00). (l) THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. (m) MAKER AND PAYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. [The remainder of this page is intentionally left blank] -5- AMENDED AND RESTATED PROMISSORY NOTE U.S. $732,032.97 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 Seven Hundred ThirtyTwo Thousand Thirty-Two and 97/100 Dollars ($732,032.97) 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 Loan Agreement dated June 16, 2006 entered into between The Spectra Exchange Group 1, LLC, a Delaware limited liability company ("Spectra") and Payee (the "Original Loan Agreement"), as amended by an Amendment to Loan Agreement dated August 9, 2007 between the Maker and the Bank (the "First Amendment"), as further amended by an Amendment dated March 5, 2008 between the same parties (the "Second Amendment"), as further amended by a Third Amendment to Loan Agreement and First Amendment to Promissory Note dated April 15, 2009 between the same parties (the "Third Amendment"), as further amended by an Agreement dated October 15, 2010 between the same parties (the "2010 Agreement"), and as further amendment by a Fourth Amendment to Loan Agreement dated as of the date hereof between the same parties (the "Fourth Amendment", the Orginal Loan Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment, the Agreement and the Fourth 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 its entirety, the Promissory Note dated June 16, 2006 between Spectra and Payee (the "Original Note") as amended by the Third Amendment and as amended and restated by the Amended and Restated Promissory Note dated as of October 15, 2010 (the Original Note, as amended, referred to as the "Amended Note") and is not a novation of such note or the indebtedness evidenced thereby. Payment of this Amended and Restated Note is governed by the Loan Agreement. The terms of the Loan Agreement are incorporated herein by express reference as if fully set forth herein. All of the undersigned are Borrowers, as that term is defined in the Loan Agreement, and agree to comply with and be bound by the terms of the Loan Agreement. 1. Interest. The principal amount hereof outstanding from time to time shall bear interest until paid in full at the Applicable Rate, but in no event less than the Floor Interest Rate. 2. Monthly Payments. Interest shall be payable in arrears on the fifteenth (15th) day of each calendar month after the date hereof up to and including the Maturity Date in the amount of all interest accrued during the immediately preceding calendar month. In addition to interest payments, the undersigned shall make principal payments equal to One Thousand Eleven EXHIBIT 37 and 29/100 Dollars ($1,011.29) commencing on the fifteenth of each calendar month after the date hereof up to and including the Maturity Date. All payments on account of the indebtedness evidenced by this Note shall be made to Payee not later than 11:00 a.m. Cleveland, Ohio time on the day when due in lawful money of the United States and shall be first applied to late charges, costs of collection or enforcement and other similar amounts due, if any, under this Note, the Loan Agreement and any other documents entered into by Maker or others in connection with the indebtedness evidenced hereby (the Note, the Loan Agreement and such other documents being collectively referred to herein as the "Loan Documents"), then to interest due and payable hereunder and the remainder to principal due and payable hereunder. 3. Maturity Date. The indebtedness evidenced hereby shall mature on the Maturity Date. On the Maturity Date, the entire outstanding principal balance hereof, together with accrued and unpaid interest and all other sums evidenced by this Note, shall, if not sooner paid, become due and payable. 4. General Provisions. (a) Regardless of whether an Adjusted LIBOR Rate would otherwise then be in effect, in the event (i) the principal balance hereof is not paid when due whether by acceleration or upon the Maturity Date or (ii) an Event of Default exists, then the principal balance hereof shall bear interest from and after the Default Rate. In addition, for any installment (exclusive of the payment due upon the Maturity Date) which is not paid within ten (10) days after the due date thereof a late charge equal to the greater of (a) ten percent (10%) of the amount of such installment or (b) $25 shall be due and payable to the holder of this Note on demand to cover the extra expense involved in handling delinquent payments. (b) Maker agrees that the obligation evidenced by this Note is an exempt transaction under the Truth-in-Lending Act, 15 U.S.C. § 1601, et seq. (c) The parties hereto intend and believe that each provision in this Note comports with all applicable local, state and federal laws and judicial decisions. However, if any provision or provisions, or if any portion of any provision or provisions, in this Note is found by a court of law to be in violation of any applicable local, state or federal ordinance, statute, law, administrative or judicial decision, or public policy, and if such court should declare such portion, provision or provisions of this Note to be illegal, invalid, unlawful, void or unenforceable as written, then it is the intent of all parties hereto that such portion, provision or provisions shall be given force to the fullest possible extent that they are legal, valid and enforceable, that the remainder of this Note shall be construed as if such illegal, invalid, unlawful, void or unenforceable portion, provision or provisions were not contained therein, and that the rights, obligations and interest of Maker and the holder or holders hereof under the remainder of this Note shall continue in full force and effect. All agreements herein are expressly limited so that in no contingency or event whatsoever, whether by reason of advancement of the proceeds hereof, acceleration of maturity of the unpaid principal balance hereof, or otherwise, shall the amount paid or agreed to be paid to the holders hereof for the use, forbearance or detention of the money to be advanced hereunder exceed the highest lawful rate permissible under applicable usury laws. If, from any circumstances whatsoever, the fulfillment of any provision hereof, at the time performance of such provision shall be due, shall involve -2- transcending the limit of validity prescribed by law which a court of competent jurisdiction may deem applicable hereto, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity and if from any circumstance the holder hereof shall ever receive as interest an amount which would exceed the highest lawful rate, such amount which would be excessive interest shall be applied to the reduction of the unpaid principal balance due hereunder and not to the payment of interest. (d) This Note and all provisions hereof shall be binding upon Maker and all persons claiming under or through Maker, and shall inure to the benefit of Payee, together with its successors and assigns, including each owner and holder from time to time of this Note. The obligations of Maker under this Note are joint and several. (e) Time is of the essence as to all dates set forth herein. (f) Maker agrees that its liability shall not be in any manner affected by any indulgence, extension of time, renewal, waiver, or modification granted or consented to by Payee; and Maker consents to any indulgences and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and to any substitution, exchange or release of the collateral, or any part thereof, with or without substitution, and agrees to the addition or release of any makers, endorsers, guarantors, or sureties, all whether primarily or secondarily liable, without notice to Maker and without affecting its liability hereunder. (g) Maker hereby waives and renounces for itself, its successors and assigns, all rights to the benefits of any statute of limitations and any moratorium, reinstatement, marshalling, forbearance, valuation, stay, extension, redemption, appraisement, or exemption and homestead laws now provided, or which may hereafter be provided, by the laws of the United States and of any state thereof against the enforcement and collection of the obligations evidenced by this Note. (h) If this Note is placed in the hands of attorneys for collection or is collected through any legal proceedings, Maker 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 this Note, including all reasonable attorneys' fees and disbursements. (i) All parties now or hereafter liable with respect to this Note, whether Maker, principal, surety, guarantor, endorsee or otherwise hereby severally waive presentment for payment, demand, notice of nonpayment or dishonor, protest and notice of protest. No failure to accelerate the indebtedness evidenced hereby, acceptance of a past due installment following the expiration of any cure period provided by this Note, any Loan Document or applicable law, or indulgences granted from time to time shall be construed (i) as a novation of this Note or as a reinstatement of the indebtedness evidenced hereby or as a waiver of such right of acceleration or of the right of Payee thereafter to insist upon strict compliance with the terms of this Note, or (ii) to prevent the exercise of such right of acceleration or any other right granted hereunder or by any Laws. Maker hereby expressly waives the benefit of any statute or rule of law or equity now provided, or which may hereafter be provided, which would produce a result contrary to or in conflict with the foregoing. -3- (j) Maker hereby expressly acknowledges that the loan evidenced by this Note is a "business loan" within the meaning of Chapter 1343 of the Ohio Revised Code. (k) With respect to any agreement by Borrower in this Note or in any other Loan Document to pay Payee's attorneys' fees and disbursements incurred in connection with the Loan, Borrower agrees that each Loan Document is a "contract of indebtedness" and that the attorneys' fees and disbursements referenced are those which are a reasonable amount, all as contemplated by Ohio Revised Code Section 1301.21, as such Section may hereafter be amended. Borrower further agrees that the indebtedness incurred in connection with the Loan is not incurred for purposes that are primarily personal, family or household and confirms that the total amount owed on the contract of indebtedness exceeds One Hundred Thousand and No/100 Dollars ($100,000.00). (l) THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. (m) MAKER AND PAYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. [The remainder of this page is intentionally left blank] -4- 5th XXXXXX EXHIBIT 38 of July, EXHIBIT 39 EXHIBIT 40 EXHIBIT 41 ALLONGE Reference is made to that certain Amended and Restated Promissory Note dated as of April 15, 2011, in the original principal amount of $732,032.97 executed by Radcliff Shopping Center LLC, Ottumwa Shopping Center LLC, Shelbyville Shopping Center LLC, Plainview Shopping Center LLC, Boaz Shopping Center LLC, La Junta Shopping Center LLC, Wauseon Shopping Center LLC and Ft. Dodge Shopping Center LLC to the order of KeyBank National Association (the "Note"). It is intended that this Allonge be attached to and made a permanent part of the Note. Pay to the order of ECP COMMERCIAL I LLC, a Delaware limited liability company, WITHOUT RECOURSE, REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR BY OPERATION OF LAW, OF ANY KIND OR NATURE WHATSOEVER, except as set forth in that certain Purchase and Sale Agreement for Distressed Trades by and between Assignor and Assignee, dated as of September 16, 2013. DATED this _____ day of September, 2013. KEYBANK NATIONAL ASSOCIATION, a national b.ncing association // I By: / ) ' Name: Jason E. Egger Title: Vice President / /' 2118883 z / / j/ / EXHIBIT 42 ij)fr7 r 1i :J ..- ii F - i: : _: iE F T L uu•rry This instrument prepared by/return to: Jeremy S. Friedberg, Esq. Leitess Friedberg PC 10451 MiH Run Circle, Suite 1000 Owings Mills, Maryland 21117 REC: C372( (410) 581-7400 STATE OF GEORGIA ) DATE: /[- p7-13 CHECK: '2'1/2TT: POLK COUNTY ) PT: ASSIGNMENT OF MORTGAGE (Cedartown Shopping Center, Polk County, Georgia) KNOW ALL MEN BY THESE PRESENTS; that KeyBank National Association, a national banking association having its address at 127 Public Square, Mailcode: OH-U 1-27-0504, Cleveland, Ohio 44114-1306, Attention: Dale Clayton, ("Assignor"), for valuable consideration, the receipt of which is hereby acknowledged, does hereby assign, without recourse, to ECP Commercial I LLC, a Delaware limited liability company having its address at 4695 MacArthur Court, Suite 370 Newport Beach, CA 92660, Attention: Ravi Bhagavatula, ("Assignee"), all of Assignor's legal and equitable right, title, and interest in that certain August 4, 2006 Mortgage, Assignment of Rents, Security Agreement and Fixture Filing granted by Cedartown LLC, a Delaware limited liability company for the benefit of Assignor, recorded on August 9, 2006 at Book 1172 Page 1 in the official records of Polk County, Georgia, as amended by that certain June 26, 2009 First Amendment to Mortgage between Tell City Shopping Center LLC, a Delaware limited liability company, Ottumwa Shopping Center LLC, a Delaware limited liability company, Newcastle Shopping Center LLC, a Delaware limited liability company, and Keokuk Shopping Center LLC, a Delaware limited liability company and Assignor, recorded on September 9,2009 at Book 1340 Page 112 in the official records of Polk County, Georgia (collectively, the "Mortgage"), encumbering certain premises described in the Mortgage and in Exhibit A attached hereto, together with the note(s) and obligations described in the Mortgage and the moneys due and to grow due thereon with interest; provided, however, such assignment does not include the note(s), obligations and moneys due with respect to the Swap Termination Loan (as such term is defined in that certain Purchase and Sale Agreement for Distressed Trades by and between Assignor and Assignee, dated as of September 16, 2013, (the "Purchase and Sale Agreement")); TO HAVE AND TO HOLD same unto Assignee, its successors and assigns, forever, subject only to the provisions of the Mortgage. This Assignment is made WIThOUT RECOURSE OR REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR BY OPERATION OF LAW, OF ANY KIND EXHIBIT 43 AND NATURE WhATSOEVER, except as expressly set forth in the Purchase and Sale Agreement. This Assignment may be executed in any number of counterparts, each of which shall constitute one and the same instrument, and any party hereto may execute this Assignment by signing any such counterpart. The terms and provisions of this Assignment shall inure to the benefit of, and shall be binding upon, the successors and assigns of the parties hereto. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.] 2 :i 221 IN WITNESS WHEREOF, this instrument was signed as of the J) day of September, 2013. ASSIGNOR: KEYBANK NATIONAL ASSOCIATION, a national banking association Witness Signature By: Name: Jason E. Egger Its: Vice President . Witness Printed Name STATE OF OHIO COUNTY OF CUYAHOGA I, the undersigned, a Notary Public in and for said county in said state, hereby certify that JASON E. EGGER, whose name as Vice President of KEYBANK NATIONAL ASSOCIATION, a national banking association, is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act of said banking corporation. Given under my hand and official seal this , day of September, 2013. L\ J Notary Public [NOTARIAL SEAL Mycc CARLA D. WINTERS NOTARY PUBLIC - STATE OF OHIO MY COMMISSION EXPIRES DECEMBER 18, 2016 mn 3 DATED and effective as of this _____ day of September, 2013 ECP COMMERCIAL I LLC, a Delaware limited liability company By: Name: Ravi S. Bhagavatula Its: Authorized Signatory STATE OF CALIFORNIA ) ORANGE COUNTY ) I, the undersigned, a Notary Public in and for said county in said State, hereby certify that Ravi S. Bhagavatula, whose name as Authorized Signatory of ECP COMMERCIAL I LLC, a Delaware limited liability company, is signed to the foregoing instrument and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act of said limited liability company. Given under my hand and official seal this ROBERT KESTER Commission # 1989911 Notary PubUc - Cahfornia Orange County MjComm. Exres Auj 31, 2016ç day of September, 2013. Notary Public AFFIX SEAL My commission expires: El 800K i172PAGEOO2 EXHIBIT A LEGAL DESCRIPTION OF THE PREMISES All that tract or parcel of land lying and being in Land Lots 1075 and 1086 of the 2nd District, 4th Section, Polk County, Georgia, and being more particularly described as follows: Commencing at the northwest corner of Land Lot 1075, said corner 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 518" capped rebar found, said point being the TRUE POINT OF BEGfNN[NG; 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 of 96.87 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 5/8tt 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. BOOK I1'2PiWEUO27 EXHIBIT A-i DESCRIPTION OF THE PREMISES (Shopping Center Parcel) Approximately 6.61 acres of the land described on Exhibit A, the legal description for which shall be provided by the Mortgagor in form and substance satisfactory to the Mortgagee in its sole discretion. BUUK112PAGEOO28 EXHIBIT A-2 DESCRIPTION OF THE PREMISES (Outlot Parcel) Approximately 1.01 acres of the land described on Exhibit A, the legal description for which shall be provided by the Mortgagor in form and substance satisfactory to the Mortgagee, in its sole discretion. Mortgage 25 Cedartown Po'k County BOOK 2OL, WLReCOr I CIeI4 ii 1 72 0 0 2 ) PAGE SCHEDULE B SPECIFIC PROVISIONS The following provisions shall govern and control in the event of a conflict with any of the other provisions of the Mortgage to which this Schedule B is attached. In case the debt hereby secured shall not be paid when it becomes due by maturity in due course, or by reason of any Event of Default as herein provided, Grantor hereby grants to Grantee and assigns, the following irrevocable power of attorney: To sell the said property or any part thereof at auction, at the usual place for conducting sales at the Court House in the County where the land or any part thereof lies, in said State, to the highest bidder for cash, after advertising the time, terms and place of such sale once a week for four weeks immediately preceding such sale (but without regard to the number of days) in a newspaper published in the County where the land lies, or in the paper in which the Sheriffs advertisements for such County are published, all other notice being hereby waived by Grantor, and Grantee or any person on behalf of Grantee, or assigns, may bid and purchase at such sale and thereupon execute and deliver to the purchaser or purchasers at such sale a sufficient conveyance of said premises in fee simple, which conveyance shall contain recitals as to the happening of the default upon which the execution of the power of sale herein granted depends, and Grantor hereby constitutes and appoints Grantee and assigns, the agent and attorney in fact of Grantor to make such recitals, and hereby covenants and agrees that the recitals so to be made by Grantee, or assigns, shall be binding and conclusive upon Grantor, and the heirs, executors, administrators and assigns of Grantor, and that the conveyance to be made by Grantee or assigns, shall be effectual to bar all equity of redemption of Grantor, or the successors in interest of Grantor, in and to said premises, and Grantee or assigns, shall collect the proceeds of such sale, and after reserving therefrom the entire amount of principal and interest due, together with the amount of any taxes, assessments and premiums of insurance or other payments theretofore paid by Grantee, together with all costs and expenses of sale and 15 per centum of the aggregate amount due for attorney's fees, shall pay any over-plus to Grantor, or to the heirs or assigns of Grantor as provided by law, The power and agency hereby granted are coupled with an interest and are irrevocable by death or otherwise and are granted as cumulative to the remedies for collection of said indebtedness provided by law. Grantor hereby waives for itself, its successors and assigns, any rights of homestead against Grantee, its successors and assigns, and further covenants that it will not avail itself of any rights of exemption, valuation, stay, marshalling, redemption, appraisal, or moratorium now or hereafter in force, and acknowledges that it makes this waiver as a material inducement to Grantee to lend funds to Grantor, and further acknowledges that it has made this waiver knowingly, intelligently, and after consultation with counsel of its choice. This deed is intended to be, and should be construed as, a deed passing legal title under the laws of the State of Georgia regarding conveyances to secure debt, and not as a mortgage, and is intended as security for the payment of all sums secured hereby. This deed and the Note or Notes hereby secured shall be deemed and construed to be contracts executed and to be performed in Georgia. Mrtgage 26 Cedartown BOOK 1464 PAGE 1898 (12) 518503 l Filed Rockingham County, NC Rebecca B. Cipriani, Register of Deeds 10/11/2013 11:05:17AM Fee Amt: $26.00 NC Excise Tax: $0.00 MITZI M. EVANS ASSIGNMENT OF CONSTRUCTION DEED OF TRUST (Eden Shopping Center, Rockingham, County, North Carolina) Return To: Jeremy S. Friedberg, Esq. Leitess Friedberg PC / 10451 Miii Run Circle, Suite 1000 Owings Mills, Maryland 21117 (410) 581-7400 EXHIBIT 44 This instrument prepared by/return to: Jeremy S. Friedberg, Esq. Leitess Friedberg p 10451 Mill Run Circle, Suite 1000 Owings Mills, Maryland 21117 (410) 581-7400 c I STATE OF NORTH CAROLINA ) ROCKINGHAM COUNTY ASSIGNMENT OF CONSTRUCTION DEED OF TRUST (Eden Shopping Center, Rockingham County, North Carolina) KNOW ALL MEN BY THESE PRESENTS; that KeyBank National Association, a national banking association having its address at 127 Public Square, Mailcode: OH-01-27-0504, Cleveland, Ohio 44114-1306, Attention: Dale Clayton, ("Assignor"), for valuable consideration, the receipt of which is hereby acknowledged, does hereby assign, without recourse, to ECP Commercial I LLC, a Delaware limited liability company having its address at 4695 MacArthur Court, Suite 370 Newport Beach, CA 92660, Attention: Ravi Bhagavatula, ("Assignee"), all of Assignor's legal and equitable right, title, and interest in that certain August 3, 2005 Construction Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing granted by Eden Shopping Center LLC, a Delaware limited liability company ("Grantor") to Lawyers Title Insurance Corporation, as Trustee for the benefit of Assignor, as Beneficiary, recorded on August 8, 2005 at Book 1252 Page 483 in the official records of Rockingham County, North Carolina, as amended by that certain June 26, 2009 First Amendment to Construction Deed of Trust between Grantor and Assignor, recorded on September 3, 2009 at Book 1381 Page 2214 in the official records of Rockingham County, North Carolina (collectively, the "Construction Deed of Trust"), encumbering certain premises described in the Construction Deed of Trust and in Exhibit A attached hereto, together with the note(s) and obligations described in the Construction Deed of Trust and the moneys due and to grow due thereon with interest; provided, however, such assignment does not include the note(s), obligations and moneys due with respect to the Swap Termination Loan (as such term is defined in that certain Purchase and Sale Agreement for Distressed Trades by and between Assignor and Assignee, dated as of September 16, 2013, (the "Purchase and Sale Agreement")); TO HAVE AND TO HOLD same unto Assignee, its successors and assigns, forever, subject only to the provisions of the Construction Deed of Trust. This Assignment is made WITHOUT RECOURSE OR REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR BY OPERATION OF LAW, OF ANY KIND AND NATURE WHATSOEVER, except as expressly set forth in the Purchase and Sale Agreement. This Assignment may be executed in any number of counterparts, each of which shall constitute one and the same instrument, and any party hereto may execute this Assignment by signing any such counterpart. The terms and provisions of this Assignment shall inure to the benefit of, and shall be binding upon, the successors and assigns of the parties hereto. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.1 '1 day of September, LN WITNESS WHEREOF, this instrument was signed as of the 2013. ASSIGNOR: KEYBANK NATIONAL ASSOCIATION, a national banking association 7 itness Signature / / By: Name: Jaspn E. Egger Its: Vice President 7' //' )7 Witness Printed Name STATE OF OHIO COUNTY OF CUYAHOGA I, the undersigned, a Notary Public in and for said county in said state, hereby certify that JASON E. EGGER, whose name as Vice President of KEYBANK NATIONAL ASSOCIATION, a national banking association, is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act of said banking corporation. day of September, 2013. Given under my hand and official seal this D. Notary Public [NOTARIAL SEALI My comhkpe: CARLA D. WNTERS NOTARY PUELIC - STATE OF OHIO • .. MY COMMISSION EXPIRES DECEMBER 18, 2016 JY. .... . 0 DATED and effective as of this _____ day of September, 2013 ECP COMMERCIAL I LLC, a Delaware limited liability company By: Name: Ravi S. Its: Authorized Signatory STATE OF CALIFORNIA ) ORANGE COUNTY ) I, the undersigned, a Notary Public in and for said county in said State, hereby certify that Ravi S. Bhagavatula, whose name as Authorized Signatory of ECP COMMERCIAL I LLC, a Delaware limited liability company, is signed to the foregoing instrument and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act of said limited liability company. Given under my hand and official seal this Z 3,. ROBERT KESTER Commission # 1989911 Notary Public - California Orange County MjComm Expires Auj AFFIX SEAL My commission expires:______________ day of September, 2013. - Notary Public 509 EXHIBIT "A" EDEN SHOPPING CENTER. LLC PROPERTY PROPERTY OF OSOBNE INVESTMENTS, LLC.; ALL THAT CERTAIN PARCEL OF LAND WITH IMPROVEMENTS THEREON, SITUATED IN THE CITY OF EDEN, LEAKSVI1S2 TOWNSHIP, COUNTY OF ROCKJNGHAM, STATE OF NORTH CAROLINA, AND LYING NORTH OF ARBOR LANE, EAST OF. PIERCE STREET, AND WEST OF SOUTHWOOI) DRIVE, BEING KNOWN AS TAX PARCEL 7989064 S 1295, MC)RF PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT AN EXISTING #5 REBAR LYNG IN THE NORTHERN RIGHT OF WAY OP ARBOR LANE; SAID POINT LIES S 14°05'45" W, 5236.24'(GRID lIE = 5236.70' C.F.4.O000880) FROM AN EXISTING NORTH CAROLINA GEODETIC SURVEY MONUMENT "CLUB"; THENCE WITH THE NORTHERN RIGHT OF WAY OF ARBOR LANE AND THE EASTERN RIGHT OF WAY OF PIERCE STREET A CURVE TURNING TO THE RJGI1T WITH A RADrUS OF 20.00', WITH AN ARC LENGTH OF 31.27', WITH A CHORD BEARING OF N 4333'22" W, WITH A CHORD LENGTH OF 28.18' TO A NEW #5 REBAR SET, ENCE WITH THE EASTERN RIGHT OP WAY OF PIERCE STREET THE FOLLOWING CALLS N 01°14'17" E A DiSTANCE OF 73.23' TO ANEW #5 REBAR SET; THENCE WITH A CURVE TURNING TO 'IHE LEFT WITH A RADIUS OP 430.00, WITH AN ARC LENGTH OF 182.91', WIIHA CHORD BEARING OF N 10 0 5651 W, WITH A CHORD LENGTH OF iS 133' TO A NEW #5 REBAR. SET, THENCE WITH A CURVE TLJPNING TO THE LEFT WITH A RADIUS OF 950.00', WITH AN ARC LENGTH OF 87.21', WITH A CHORD BEARING OFN 25°45'47" W, WiTH A CHORD LENGTH OF 87.18' TO A NEW #5 REBAR. SET, THENCE N 28°23'35" WA DISTANCE OF 135.19' TO A NEW #5 REBAR SET IN TJ-U EASTERN RIGHT OF WAY OF PIERCE STREET AND AT THE SOUTHWEST CORNER OF THE PROPERTY OF MOKEHEAD MEMORIAL HOSPITAL (DEED BOOK 1241 PAGE 1966); THENCE WITH THE SOUTERN PROPERTY LINE OF MOREHEAD MEMORIAL HOSPITAL N 77°3 5'42" H A DISTANCE OF 341.25' TO AN EXISTING #5 REBAR FOLTND IN THE WESTERN RIGHT OP WAY OF SOUTHWOOD DRIVE; THENCE WITI-I THE WESTERN RIGHT OF WAY OF SOUTHWOOD DRIVE A CURVE TURNING TO THE LEFT WITH A RADIUS OP 950:00', WITH AN ARC LENGTH OF 502.46', WITH A CHORD BEARING OF S 26°20'40" E, WITH A CHORD LENGTH OF 496.62' TO A NEW #5 REBAR SET, THENCE WITH THE WESTERN RIGHT OP WAY OF SOUTHWOOD DRIVE AND THE NORTHERN RIGHT OF WAY OF ARBOR LANE A CURVE TURNING TO TIlE RIGHT WITH A RADIUS OF 20.00', WITH AN ARC LENGTH OF 31.99', WITH A CHORD BEARING OF S 04°1920" W, WITH A CHORD LENGTH OF 28.69' TO AN EX1S11NG #5 REBAR FOUND IN THE NORTFIERN RIGI-IT OF WAY OF ARBOR LANE, THENCE WITH TIlE NORTHERN RIGHT OF WAY OF ARBOR LANE A CURVE TURNING TO THE RIGHT WITH A RADIUS OF 320.00', WITH AN ARC LENGTH OF 231.83', WIIB A CHORD BEARING OF S 70°53'43" W, WITH A CHORD LENGTH OF 226.79' TO AN EXISTING #5 REBAR FOUND, THENCEN 88°21'02" WAD1STANCE OF 182.79' TO ANEXISTING #5 REBARFOUND; SAID #5 REBAR IS THE POINT AND PLACE OF BEGINNING, HAVING AN AREA OF 179288.75 SQUARE FEET ANT) 4.116 ACRES. 510 EXHIBIT B Leasehold Deed of Trust Addendum The following terms and conditions are included as additional provisions to the Deed of Trust to which it is attached: Grantor will pay or cause to be paid all rent and other charges required under that 1. certain ground lease made by Osborne Investments, LLC "lessor' and Grantor as lessee" dated 't 'y .1 J , 2005 (the "Lease") as and when the same are due and Grantor will keep, observe and perform, or cause to be kept, observed and performed, all of the other terms, covenants, provisions and agreements of the Lease on the part of the lessee thereunder to be kept, observed and performed, and will not in any manner, cancel, terminate or surrender, or permit any cancellation, termination or surrender of the Lease, in whole or in part, or, without the written consent of Beneficiary, either orally or in writing, modify, amend or permit any modification or amendment of any of the terms thereof in any respect, and any attempt on the part of Grantor to exercise any such right without such written consent of Beneficiary shall be null and void and of no effect Grantor will do, or cause to be done, all things necessary to preserve and keep 2. unimpaired the rights of Grantor as lessee under the Lease, and to prevent any default under the Lease, or any termination, surrender, cancellation, forfeiture or impairment thereof, and in the event of the failure of Grantor to make any payment required to be made by Grantor pursuant to the provisions of the Lease or to keep, observe or perform, or cause to be kept, observed or performed, any of the terms, covenants, provisions or agreements of the Lease, Grantor agrees that Beneficiary may (but shall not be obligated to), after notice to Grantor (provided, however, that no such notice shall be required to be given after the occurrence of an Event of Default hereunder or under any of the other Loan Documents) take any action on behalf of Grantor, to make or cause to be kept, observed or performed any such terms, covenants, provisions or agreements and to enter upon the Premises and take all such action thereof as may be necessary therefor, to the end that the rights of Grantor in and to the leasehold estate created by the Lease shall be kept unimpaired and free from default, and all money so expended by Beneficiary, with interest thereon at the Default Rate (as defined in the Loan Agreement) from the date of each such expenditure, shall be paid by Grantor to Beneficiary promptly upon demand by Beneficiary and shall be added to the indebtedness and secured by the Deed of Trust and Beneficiary shall have, in addition to any other remedy of Beneficiary, the same rights and remedies in the event of non-payment of any such sum by Grantor as in the case of a default by Grantor in the payment of any sums due under the Note. Grantor will enforce the obligations of the lessor under the Lease to the end that 3. Grantor may enjoy all of the rights granted to it under the Lease, and will promptly notify Beneficiary in writing of any default by the lessor or by Grantor in the performance or observance of any of the terms, covenants and conditions on the part of the lessor or Grantor, as the case may be, to be performed or observed under the Lease and Grantor will promptly advise Beneficiary in writing of the occurrences of any of the events of default enumerated in the Lease and of the giving of any notice by the lessor to Grantor of any default by Grantor in performance or observance of any of the terms, covenants or conditions of the Lease on the part of the Grantor to be performed or observed and will deliver to Beneficiary a true copy of each such notice. If, B-i 511 pursuant to the Lease, the lessor shall deliver to Beneficiary a copy of any notice of default given to Grantor, such notice shall constitute full authority and protection to Beneficiary for any action taken or omitted to be taken by Beneficiary in good faith in reliance thereon to cure such default. 4. if any action or proceeding shall be instituted to evict Grantor or to recover possession of the Premises or for any other purpose affecting the Lease or this Deed of Trust, Grantor will, immediately upon service thereof on or to Grantor, deliver to Beneficiary a true copy of each petition, summons, complaint, notice of motion, order to show cause and of all other provisions, pleadings, and papers, however designated, served in any such action or proceeding. Grantor covenants and agrees that unless Beneficiary shall otherwise expressly 5. consent in writing, the fee title to the property demised by the Lease and the leasehold estate shall not merge but shall always remain separate and distinct, notwithstanding the union of said estates either in the lessor, Grantor, or a third party by purchase or otherwise; and in case Grantor acquires the fee title or any other estate, title or interest in the Premises, this Deed of Trust shall attach to and cover and be a lien upon the fee title or such other estate so acquired, and such fee title or other estate shall, without further assignment, Deed of Trust or conveyance, become and be subject to the lien of and covered by this Deed of Trust. No release or forbearance of any of Grantor's obligations under the Lease, 6. pursuant to the Lease, or otherwise, shall release Grantor from any of its obligations under this Deed of Trust, including its obligation with respect to the payment of rent as provided for in the Lease and the performance of all of the terms, provisions, covenants, conditions and agreements contained in the Lease, to be kept, performed and complied with by the tenant therein. Upon the occurrence of an Event of Default Grantor shall not make any election 7. or give any consent or approval (other than the exercise of a renewal right or extension right pursuant to Paragraph 9 below) for which a right to do so is conferred upon Grantor as lessee under the Lease without Beneficiary's prior written consent. In case of any Event of Default under this Deed of Trust, all such rights, together with the right of termination, cancellation, modification, change, supplement, alteration or amendment of the Lease, all of which have been assigned for collateral purpose to Beneficiary, shall vest in and be exercisable solely by Beneficiary. Grantor will give Beneficiary prompt written notice of the commencement of any 8. arbitration or appraisal proceeding under and pursuant to the provisions of the Lease. Beneficiary shall have the right to intervene and participate in any such proceeding and Grantor shall confer with Beneficiary to the extent which Beneficiary deems necessary for the protection of Beneficiary. Upon the written request of Beneficiary, if an Event of Default exists, Grantor will exercise all rights of arbitration conferred upon it by the Lease. Grantor shall select an arbitrator who is approved in writing by Beneficiary, provided, however, that if at the time any such proceeding shall be commenced, Grantor shall be in default in the performance or observance of any covenant, condition or other requirement of the Lease, or of this Deed of Trust, on the part of Grantor to be performed or observed, Beneficiary shall have, and is hereby granted, the sole and exclusive right to designate and appoint on behalf of Grantor the arbitrator or arbitrators, or appraiser, in such proceeding. B-2 512 Grantor may exercise any option or right to renew or extend the term of the Lease 9. or exercise the fee option contained therein without the prior written consent of Beneficiary. Grantor shall give Beneficiary simultaneous written notice of the exercise of such option or right to renew or extend, together with a copy of the instrument given to the lessor under the Lease exercising such option or right, and, thereafter, shall promptly deliver to Beneficiary a copy of any acknowledgment by the lessor under such Lease with respect to the exercise of such option or right. If such option or right has not been exercised as aforesaid, then not more than three hundred sixty (360) and not less than two hundred seventy (270) days before the right of Grantor to exercise any option or right to renew or extend the term of the Lease shall expire, Grantor shall give Beneficiary written notice specifying the date, term and manner for which such option or renewal is to be exercised. Within fifteen (15) business days of written demand by Beneficiary, Grantor shall exercise any such option or renewal which is necessary to extend the term of the Lease beyond the term of this Deed of Trust or to comply with any law affecting Grantor or Beneficiary or which is necessary, in Beneficiary's reasonable judgment, to preserve the value of the security intended to be afforded by this Deed of Trust. Grantor shall promptly provide evidence of such exercise of such option or right to Beneficiary's reasonable satisfaction. In the event that Grantor fails to so exercise any such option or right or in the event of any default hereunder which is continuing beyond the applicable cure periods, Grantor hereby agrees and grants to Beneficiary all right and authority to exercise such option in the name of Grantor or in its own name. Nothing contained herein shall affect or limit any rights of Beneficiary granted under the Lease. The lien of this Deed of Trust shall attach to all of Grantor's rights and remedies 10. at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. § 365(h), including, without limitation, all of Grantor's rights to remain in possession of the Premises. Grantor shall not, without Beneficiary's prior written consent, elect to treat the 11. Lease as terminated under Subsection 365(h)(1) of the Bankruptcy Code, 11 U.S.C. § 365(h)(l). Any such election made without Beneficiary's consent shall be void. Grantor hereby unconditionally assigns, transfers and sets over to Beneficiary all 12. of Grantor's claims and rights to the payment of damages arising from any rejection of the Lease by lessor or any other fee owner of the Premises under the Bankruptcy Code. Beneficiary shall have the right to proceed in its own name or in the name of Grantor in respect of any claim, suit, action or proceeding relating to the rejection of the Lease, including, without limitation, the right to file and prosecute, either in its own name or in the name of Grantor, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect to the lessor or any fee owner under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the obligations secured by this Deed of Trust shall have been satisfied and discharged in full. Any amounts received by Beneficiary as damages arising out of the rejection of the Lease as aforesaid shall be applied first to all costs and expenses of Beneficiary (including, without limitation, attorneys' fees) incurred in connection with the exercise of any of its rights or remedies under this Section and then in accordance with the provisions of this Deed of Trust. Grantor shall promptly make, execute, acknowledge and deliver, in form and substance satisfactory to Beneficiary, a UCC Financing Statement (Form UCC-l) and all such additional instruments, agreements and other documents, as may at any B-3 513 time hereafter be required by Beneficiary to effectuate and carry out the assignment made pursuant to this Section. 13. if pursuant to Subsection 365(h)(2) of the Bankruptcy Code, 11 U. S.C. § 365(h)(2), Grantor shall seek to offset against the rent reserved in the Lease the amount of any damages caused by the nonperformance by the lessor or any fee owner of any of their obligations under the Lease after the rejection by the lessor or any fee owner of the Lease under the Bankruptcy Code, Grantor shall, prior to effecting such offset, notify Beneficiary of its intent to do so, setting forth the amounts proposed to be so offset and the basis therefor. Beneficiary sha]] have the right to object to all or any part of such offset that, in the reasonable judgment of Beneficiary, would constitute a breach of the Lease, and in the event of such objection, Grantor shall not effect any offset of the amounts so objected to by Beneficiary. Neither Beneficiary's failure to object as aforesaid nor any objection relating to such offset shall constitute an approval of any such offset by Beneficiary. 14. If any action, proceeding, motion or notice shall be commenced or filed in respect of the lessor or any fee owner, the Premises or the Lease in connection with any case under the Bankruptcy Code, Beneficiary shall have the option, exercisable upon notice from Beneficiary to Grantor, to conduct and conirol any such litigation with counsel of Beneficiary's choice. Beneficiary may proceed in its own name or in the name of Grantor in connection with any such litigation, and Grantor agrees to execute any and all powers, authorizations, consents or other documents reasonably required by Beneficiary in connection therewith. Grantor shall, upon demand, pay to Beneficiary all costs and expenses (including attorneys' fees) paid or incurred by Beneficiary in connection with the prosecution or conduct of any such proceedings. Any such costs or expenses not paid by Grantor as aforesaid shall be secured by the lien of this Deed of Trust and shall be added to the principal amount of the indebtedness secured hereby. Grantor shall not commence any action, suit, proceeding or case, or file any application or make any motion (unless such motion is for the purpose of protecting the Lease and its value as security for the obligations secured by this Deed of Trust), in respect of the Lease in any such case under the Bankruptcy Code without the prior written consent of Beneficiary, which consent shall not be unreasonably withheld or delayed. Grantor shall, after obtaining knowledge thereof, promptly notify Beneficiary of 15. any filing by or against the lessor or other fee owner of a petition under the Bankruptcy Code. Grantor shall promptly deliver to Beneficiary, following receipt, copies of any and all notices, summonses, pleadings, applications and other documents received by Grantor in connection with any such petition and any proceedings relating thereto. if there shall be filed by or against Grantor a petition under the Bankruptcy Code 16. and Grantor, as lessee under the Lease, shall determine to reject the Lease pursuant to Section 365(a) of the Bankruptcy Code, Grantor shall give Beneficiary not less than thirty (30) days' prior notice of the date on which Grantor shall apply to the Bankruptcy Court for authority to reject the Lease. Beneficiary shall have the right, but not the obligation, to serve upon Grantor within such thirty (30) day period a notice stating that Beneficiary demands that Grantor assume and assign the Lease to Beneficiary pursuant to Section 365 of the Bankruptcy Code. If Beneficiary shall serve upon Grantor the notice described in the preceding sentence, Grantor shall not seek to reject the Lease and shall comply with the demand provided for in the preceding sentence. B-4 514 Notwithstanding anything to the contrary contained herein, this Deed of Trust 17. shall not constitute an assignment of the Lease and Beneficiary shall have not liability or obligation thereunder by reason of its acceptance of this Deed of Trust. 544601.2 B-5 BK: 1381 P0: 2227 EXHIfflTA DescrptiOfl of Land EDEN SHOPPING CEN'IERLLC PROPERTY PROPERTY OF OSBORNE DVESTh1ENTS, LLC.; ALT. THAT CERTAIN PARCEL OF LAND WITH DROVEMENTS THEREON, SrFUATED IN THE CITY .01' EDEN. ILAXSVILLB TOWNSIIU', COUI4TI OF ROCKD'JGHAM, STATE OF NORTH CAXOLINA. AND LYING NORTH OF ARBOR LANE. EAST OF PIERCE STREET, AND WEST' OF SOUTHW000 DR3VE BEING KNOWN AS TAX PARCEL 798906431295, MORE PARTICULARLY BOUNDED AND DESCRHEI) AS FOLLOWS: BEGINNING AT AN EXISTING #5 REBAR LVTNG IN 1118 NORTHERN IUGHT OP WAY OF ARBOR LANE; SARI POINT LIES S 1405'45' W. 523 6.24'(ORE) TIE 5236.70' C.F.l.0000Z80) FROM All E3aSTIN NORTH CAROLINA GEODETIC SURVEY MONUNENT "CLUB'; THENCE WITH THE NORTHEBI4 RIGHT OF WAY OF ARBOR LANE AND DIE EASTERN RIGHT OF WAY OF PIERCE STREET A. CURVE TURNING TO TIlE lUGIIT WITH A RADIUS OF 2O.00 WElls AN ARC LENGTH OF 31 D7'. WITHA CHORD BEARING OF N 43'33'22 W. WITH A CHORD LENGTH OP 28.1 F TO A NEW #5 JIEBAR SET, THENCE WITH THE EASTERN IUCIHT OF WAY OF PIERCE STREET THE FOLLOWING CALLS N 0101417 E A DISTANCE OF 73.23 TO ANEW ilS REBAP. SET; THENCE WITH A CURVE TUBI1ING TO THE LEFT WIllS A RADIUS 01' 430.00', WITILA34 ARC LENGTH 01 182.9 1', WiTH A CHORD BEARING OF 14 10$6'SI W, WIllS A CHORD LENGTH OP 111.53 TO A NEW #5 REBAR SET, THENCE WITH A CURVE TURNING TO THE J2PT WITH A RADIUS 01' 950,00. WiTH AN ARC LENGTH OF 87.21', WITH A CHORD BEARING OFN 25°4547' W, WITH A CHORD LENGTH OF 87.11 TO A NEW #5 RE8AR SET, THEI4CEN 2r23'35' WA DISTANCE 01' 135.19 TO A NEW #5 REBAR SET IN 1118 EASTERN RiGHT OP WAY OF PIERCE STREET AND AT THE SOUTHWEST CORNER OF THE PROPERTY OF HOREOIEAD MEMORIAL HOSPITAL (DEED BOOK 1241 PAGE 1966); TISCE WITH THE SOUTIIERI4 PROPERTY LINE. OF MOREBEAD 314ORIAL HOSPITAL N T7'35'42 E A DISTANCE OP 341.25' TO AN EXISTING OS REBAR FOUND IN TilE WESTERN RIGHT OF WAY OF SO T.TIIIWOOD DRIVE; THENCE WITH THE WESTERN RiGHT OP WAY OF SOUTHW000 DRIVE A CURVE I1JRNOSG TO THE LEFT WITH A RADiUS OP 950:01, WITH AN ARC LENGTH OF 502.46', WITH A CHORD BEABDIG OF S 26 020400 8, WITH A CHORD LENGTH 01' 496.62 TO A NEW 45 EEBAR SET, THENCE WITH THE WESTERN RIGHT OP WAY OF SOUTISWOOD DRIVE AND THE NORTHERN RIGHT 01' WAY OF ARBOR LANE A CURVE TURNING TO 1111 P.IOTIT WITH A RADIUS OF 20.OP, WITH AN ARC LENGTH OF 31,99; WITH A CHORD BEARING OF 5 041920 W, WIllS A CHORD LENGTH OP 21.6910 AN EXISTING #5 REBAR POUND INTHE NORTHERN RIGHT OP WAY OF ABBOItLANE, THENCE WITH TIlE NORTHERN RIGHT OF WAY OF ARBOR LANE A CURVE TURNING TO TOIEFJGHT WITH A RADIUS OP 320.OP, WITH AN ARC LENGTH 01' 231.83', WITH A CHORD BEARING OF S 70 05343 0 W, WiTH A CHORD LENGTH OF 226.79' TO AJSEXISTB'0G #5 REBAR FOUND, THENCE N 08 02r02" WA DISTANCE OF 112.79' TO AN EXISTING #5 REBAR POUND; SAD) #5 REBAI1. IS THE POINT AND PLACE OF BEGD4ND4G, HAVING A2SAJOEA OF 179218.75 SQUARE FEET AND 4.116 ACRES. A-I BOOK 518501 1464 PAGE 1888 (6) ) IIllI Ill IIUI Filed Rockingham County, NC Rebecca B. Cipriani, Register of Deeds 10/11/2013 11:00:55AM Fee Amt: $26.00 NC Excise Tax: $0.00 MITZI M. EVANS ASSIGNMENT OF CONSTRUCTION DEED OF TRUST (Mayodan Shopping Center, Rockingham, County, North Carolina) Return To: / Jeremy S. Friedberg, Esq. 1045 1 Mill Run Circle, Suite 1000 Owings Mills, MD 21117 (410)581-7400 EXHIBIT 45

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