Blueprint





 







Exhibit 10.27


 



THIRD LOAN MODIFICATION AGREEMENT


 


THIS THIRD LOAN MODIFICATION AGREEMENT
(this "Agreement") is made this 18th day of September, 2017, by and
among SeD MARYLAND DEVELOPMENT,
LLC, a Delaware limited liability company, (hereinafter
referred to as the "Borrower"); SeD
BALLENGER, LLC, a Delaware limited liability company,
(hereinafter referred to as the "Limited Guarantor"); and
XENITH BANK, a Virginia
banking corporation formerly known as THE BANK OF HAMPTON ROADS, its successors and assigns,
(hereinafter referred to as the "Lender").


 



INTRODUCTORY STATEMENT


 

A.           
Pursuant to the terms of a Construction Loan Agreement dated
November 23, 2015 executed by and between the Borrower and the
Lender (such Construction Loan Agreement, together with all
modifications thereto, extensions or renewals thereof and
substitutions therefor being hereinafter referred to as the "Loan
Agreement"), the Lender extended to the Borrower a land development
loan in an original principal amount not to exceed at any one time
outstanding the sum of US$8,000,000 (as the same may be modified,
amended, extended or renewed from time to time, the "Land
Development Loan") and a letter of credit facility in the aggregate
stated amount of US$800,000 (as the same may be modified, amended,
extended or renewed from time to time, the "Letter of Credit
Facility"; such Land Development Loan and Letter of Credit
Facility, as the same may be modified, amended, extended or renewed
from time to time, being hereinafter sometimes referred to both
individually and collectively as the "Loan") to finance the first
stage of the development by the Borrower of certain real property
located in Frederick County, Maryland into a residential
subdivision to be known as "Ballenger Run" containing two hundred
seventy-six (276) single-family building lots (individually, a
"Lot" and collectively, the "Lots") and other building parcels
(individually, a "Parcel" and collectively, the "Parcels") by
clearing and grading and the installation of, among other things,
sediment control, electric lines, communication lines, water and
sewer lines, sidewalks, curbs and paved roads.


 

B.           
The Loan is currently evidenced by (i) a Revolving Credit Note
dated November 23, 2015 executed by the Borrower, as maker, in
favor of the Lender, as payee, with respect to the Land Development
Loan in the original principal amount of US$8,000,000 (which
Revolving Credit Note, together with all modifications thereto,
extensions or renewals thereof and substitutions therefor being
hereinafter referred to as the "Revolving Note"), (ii) a Promissory
Note dated November 23, 2015 executed by the Borrower, as maker, in
favor of the Lender, as payee, with respect to the Letter of Credit
Facility in the original principal amount of US$800,000 (which
Promissory Note, together with all modifications thereto,
extensions or renewals thereof and substitutions therefor being
hereinafter referred to as the "LOC Note"; the Revolving Note and
the LOC Note, together with all modifications thereto, extensions
or renewals thereof and substitutions therefor being hereinafter
sometimes referred to individually as a "Note" and collectively as
the "Notes"), and (iii) one or more Letter of Credit Applications
and/or Agreements heretofore or hereafter executed by the Borrower
(which Letter of Credit Applications and/or Agreements, together
with all modifications thereto, extensions or renewals thereof and
substitutions therefor being hereinafter referred to individually
as a "Letter of Credit Agreement" and collectively as the "Letter
of Credit Agreements").


 


C.           The
Loan is secured by, among other things, the lien of a Deed of
Trust, Assignment and Security Agreement dated November 23, 2015
executed by the Borrower, as grantor, in favor of certain trustees
for the benefit of the Lender and duly recorded among the Land
Records of Frederick County, Maryland on December 1, 2015 in Liber
10880, folio 415 (such Deed of Trust, Assignment and Security
Agreement, together with all modifications thereto, extensions or
renewals thereof and substitutions therefor being hereinafter
referred to as the "Deed of Trust") covering the Borrower's fee
simple interest in the Lots, the Parcels, all improvements now or
hereafter constructed thereon, and all other items of real and
personal property more particularly described therein.


 



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D.           
The payment and performance of certain of the obligations of the
Borrower to the Lender under the Loan are unconditionally and
irrevocably guaranteed by the Limited Guarantor pursuant to the
terms of a certain Limited Guaranty Agreement dated November 23,
2015 executed by the Limited Guarantor in favor of the Lender (such
Limited Guaranty Agreement, together with all modifications
thereto, extensions or renewals thereof and substitutions therefor
being hereinafter referred to as the "Limited
Guaranty").


 

E.           
In addition to the foregoing documents, instruments, and
agreements, the obligations of the Borrower to the Lender under the
Loan are further secured by (i) an Assignment of Contracts of Sale
dated November 23, 2015 executed by the Borrower in favor of the
Lender (such Assignment of Contracts of Sale, together with all
modifications thereto, extensions or renewals thereof and
substitutions therefor being hereinafter referred to as the
"Assignment of Contracts"), (ii) an Environmental Indemnification
Agreement dated November 23, 2015 executed by the Borrower and the
Limited Guarantor in favor of the Lender (such Environmental
Indemnification Agreement, together with all modifications thereto,
extensions or renewals thereof and substitutions therefor being
hereinafter referred to as the "Environmental Indemnity"), and
(iii) an Assignment and Pledge of Collateral Account dated November
23, 2015 executed by the Borrower and the Limited Guarantor in
favor of the Lender (such Assignment and Pledge of Collateral
Account, together with all modifications thereto, extensions or
renewals thereof and substitutions therefor being hereinafter
referred to as the "Assignment of Collateral
Account"),.


 

F.           
The terms of the Loan have previously been modified by (i) that
certain Loan Modification Agreement dated January 27, 2017 executed
by and among the Borrower, the Limited Guarantor and the Lender
(hereinafter referred to as the "First Modification Agreement") and
(ii) that certain Loan Modification Agreement dated June 30, 2017
executed by and among the Borrower, the Limited Guarantor and the
Lender (hereinafter referred to as the "Second Modification
Agreement").


 


G.           Furthermore,
subsequent to the closing of the Loan, the Borrower sold one or
more of the Lots or Parcels originally covered by the lien of the
Deed of Trust, and the Lender released the same from the lien of
the Deed of Trust in return for agreed upon principal curtailments
on the Loan.


 


H.           On
this date, the Borrower continues to be the owner of those Lots and
Parcels and other areas of land more particularly described in
Exhibit A attached hereto and made a part hereof (hereinafter
referred to as the "Land") and the improvements now or hereafter
constructed thereon (hereinafter referred to as the "Improvements";
the Land and the Improvements and all other items of real and
personal property now or hereafter covered by the lien of the Deed
of Trust being hereinafter collectively referred to as the
"Property"), and the Borrower and the Limited Guarantor hereby
acknowledge and agree that the Deed of Trust constitutes a valid
and subsisting first lien on the fee simple interest of the
Borrower in the Property as security for the Borrower's payment of
the entire outstanding principal balance of the Loan secured
thereby, and interest thereon, all in accordance with the terms,
covenants, conditions and warranties of the Deed of Trust and the
Notes secured thereby, and that all of the other provisions of the
same are in full force and effect.


 

I.           
The Borrower and the Limited Guarantor have now requested that the
Lender increase the principal amount of the Revolving Note by the
sum of US$3,000,000 in order to provide additional funds to the
Borrower, and further modify the terms of repayment of the
Loan.


 



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J.           In
order to induce the Lender to agree to the requests of the Borrower
and the Limited Guarantor hereinabove set forth, and upon the
express condition that the lien of the Deed of Trust remains a
valid and subsisting first lien on the Property and that the
execution and delivery of this Agreement shall not impair the lien
thereof, the parties hereto have agreed to execute and deliver this
Agreement to modify the terms and conditions of the Loan as
hereinafter more particularly set forth.


 



AGREEMENTS


 


NOW,
THEREFORE, in consideration of the premises and for the sum of One
Dollar ($1.00) and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, the
parties hereto, for themselves, their respective successors and
assigns do hereby mutually covenant and agree as
follows:


 

1.           
Incorporation of
Recitals. The parties hereto acknowledge and agree that the
recitals hereinabove set forth are true and correct in all respects
and that the same are incorporated herein and made a part
hereof.


 

2.           
Outstanding
Obligations. The parties hereto acknowledge and agree (a)
that the outstanding principal balance of the Loan as of the date
hereof, but prior to any advance by the Lender of any additional
proceeds of the Loan made on or about the date hereof, is
US$7,984,631.00, (b) that, as of the date hereof, Letters of Credit
(as defined in the Loan Agreement) in the aggregate stated amount
of US$493,212.18 remain issued and outstanding under the Loan, (c)
that interest on the unpaid principal balance of the Notes has been
paid through August 31, 2017, and (d) that the unpaid principal
balance of the Loan, together with accrued and unpaid interest
thereon, is due and owing subject to the terms of repayment
hereinafter set forth, without defense or offset.


 

3.           
Additional
Indebtedness. In consideration of the agreements set forth
herein, the Lender hereby agrees to increase the principal amount
of the Revolving Note by the sum of US$3,000,000 to an aggregate
amount not to exceed at any time outstanding the sum of
US$11,000,000. Thus, the Borrower hereby promises to pay to the
Lender, in addition to the principal sum originally evidenced by
the Revolving Note, and in accordance with the terms of the
Revolving Note, as modified hereby, with interest, the additional
principal sum of US$3,000,000 (hereinafter referred to as the
"Additional Proceeds"). The face amount of the Revolving Note,
therefore, is hereby increased to the sum of US$11,000,000, and the
parties hereto hereby covenant and agree that, from and as of the
date hereof, whenever the term "principal sum" or "principal
amount" is referred to with respect to the Land Development Loan in
the Revolving Note, the Loan Agreement or in any of the other Loan
Documents (as hereinafter defined), such term shall be deemed to
mean the sum of US$11,000,000 or so much thereof as may from time
to time be advanced and/or readvanced by the Lender to or for the
account of the Borrower under the Revolving Note, as increased
hereby. The Additional Proceeds shall be advanced and/or readvanced
by the Lender to or for the account of the Borrower strictly in
accordance with, and subject to the terms and conditions contained
in, the Revolving Note and the Loan Agreement, each as modified
hereby. In particular, and not in limitation of the foregoing, and
notwithstanding the fact that the principal amount of the Revolving
Note has been increased pursuant to the terms of this Section 3,
the parties hereto hereby acknowledge and agree that the Cumulative
Loan Advance Limit of US$26,000,000 established pursuant to the
terms of the Loan Agreement remains unchanged. Therefore,
notwithstanding anything contained herein to the contrary, in no
event shall the aggregate amount advanced and/or readvanced under
the Land Development Loan exceed the Cumulative Loan Advance Limit
of US$26,000,000.



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4.           Confirmation
of Liens and Security Interests. In order to secure to the
Lender the payment of the additional indebtedness evidenced hereby,
the Borrower covenants and agrees to execute and deliver, on the
date hereof, in favor of the Lender, among other things, a First
Supplement to Deed of Trust, Assignment and Security Agreement
(hereinafter referred to as the "First Supplement to Deed of
Trust") pursuant to which the lien of the Deed of Trust shall be
increased to secure the repayment in full of the Additional
Proceeds. In addition, the Borrower and the Limited Guarantor
hereby further acknowledge and agree that, from and as of the date
hereof, the Assignment of Contracts, the Environmental Indemnity
and the Assignment of Collateral Account shall secure the full
principal sum of $11,800,000, together with interest thereon, all
costs and expenses of collection and all other sums that may
heretofore or may hereafter be advanced by the Lender in protection
of its rights pursuant to the terms of such Loan Documents, and
that the uses, purposes and conditions upon which the Borrower and
the Limited Guarantor irrevocably granted, transferred and assigned
to the Lender the security interests, liens, charges and
encumbrances contained in such Loan Documents, shall now include
the purpose of securing performance of each agreement of the
Borrower contained in this Agreement, and the Borrower's payment of
the aggregate principal sum of ELEVEN MILLION EIGHT HUNDRED THOUSAND
DOLLARS (US$11,800,000), with interest thereon,
according to the terms of the Notes, the Loan Agreement and the
other Loan Documents, as modified hereby. Nothing herein contained,
and nothing done pursuant hereto, shall adversely affect or be
construed to adversely affect the liens, security interests,
charges or encumbrances of, or warranties of title in, or
conveyances effected by the Deed of Trust and such other Loan
Documents, or the priority thereof over other liens, security
interests, charges, encumbrances or conveyances, or to release or
adversely affect the liability of any party or parties whomsoever
who may now or hereafter be liable under or on account of the Loan
or any of the Loan Documents, nor shall anything herein contained
or done in pursuance hereof adversely affect or be construed to
adversely affect any other security or instrument held by the
Lender as security for or evidence of the indebtedness evidenced
and secured thereby.


 

5.           
Continuation of Loan
Terms. Except as otherwise expressly set forth herein, the
outstanding principal balance of the Loan shall continue to bear
interest, to be advanced and to be repaid on the terms and subject
to the conditions set forth in the Notes and the other documents
evidencing and securing the Loan (this Agreement, the Loan
Agreement, the Notes, the Deed of Trust, the Limited Guaranty, the
Assignment of Contracts, the Environmental Indemnity, the
Assignment of Collateral Account, the First Modification Agreement,
the Second Modification Agreement, the First Supplement to Deed of
Trust, and all such other documents, whether currently existing or
hereafter executed, and all modifications thereto, extensions or
renewals thereof and substitutions therefor being hereinafter
collectively referred to as the "Loan Documents").


 

6.           
Amendment of Certain
Defined Terms. The parties hereto hereby acknowledge and
agree that from and as of the date hereof, the following terms in
the Loan Agreement shall have the meanings indicated below. All
capitalized terms not defined in this Agreement shall have the
meanings given to them in the Loan Agreement:


 

(a)           
"Budget" shall mean
the revised loan budget attached hereto as Exhibit B and
incorporated herein by reference, as the same may be further
amended from time to time with the prior written approval of the
Lender.


 


(b)           "Completion
Date" shall mean the earlier to occur of (a) the date
required for the completion of the Improvements pursuant to the
terms of the NVR Contracts, or (b) September 30, 2019. Time shall
be of the essence for all purposes hereof.


 



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(c)            "Loan
Amount" means, individually and collectively, the amount of
the Land Development Loan in the original principal amount not to
exceed at any one time outstanding the sum of US$11,000,000 and the
amount of the Letter of Credit Facility in the aggregate stated
amount of US$800,000.


 

(d)           
"Project Schedule"
shall mean the schedule for commencement and completion of the
Construction of the Improvements attached hereto as Exhibit C and
incorporated herein by reference, as the same may be further
amended from time to time with the prior written approval of the
Lender, which approval shall not be unreasonably
withheld.


 

7.           
Extension of the Maturity
Dates; Confirmation of Extension Options. The parties hereto
hereby further acknowledge and agree that, effective upon the
execution and delivery of this Agreement, the maturity of the Loan
shall be extended to December 31, 2019, so that each of the Notes
shall mature, and the entire principal balance of the Loan,
together with all interest accrued and unpaid thereon, and all
other sums owing by the Borrower to the Lender under the Loan
Documents, shall be due and payable in full on December 31, 2019.
Furthermore, the parties hereto hereby acknowledge and agree that
the "Extension Option" set forth in Section 2 of each of the Notes
shall remain available for exercise by the Borrower in accordance
with the terms therein set forth. Accordingly, from and as of the
date hereof, the term "Maturity Date" in each of the Notes shall
mean December 31, 2019, and in the event that the Borrower shall
successfully exercise the Extension Options in accordance with the
terms of the Notes, the term "Maturity Date" shall mean December
31, 2020.


 

8.           
Right to Requisition Sums
from the Cash Collateral Account. In consideration of the
agreements of the Borrower and the Limited Guarantor set forth
herein, the Lender hereby acknowledges and agrees that,
notwithstanding anything contained in Section 4.24 of the Loan
Agreement or in the Assignment of Collateral Account to the
contrary, and so long as no Default or Event of Default shall then
exist under the Loan, the Borrower shall have the right to request
the withdrawal of up to $1,152,204.00 of the sums on deposit in the
Cash Collateral Account in order to satisfy a portion of the
Borrower's required cash equity investment in the Property, which
sums shall be applied towards the payment of project-related costs
and expenses shown in the Budget and approved by the Lender. It
shall be a condition precedent to the right of the Borrower to
requisition such sums from the Cash Collateral Account that the
Borrower shall have delivered to the Lender fully executed copies
of (a) a Declaration of Covenants and Lien for Private Water and
Sewer Facilities Charges for Ballenger Run, and (b) a Ballenger Run
Water and Sewer Facilities Charges Purchase Agreement, in form and
substance satisfactory to the Lender in all respects. In addition,
the Borrower's right to requisition any such sums from the Cash
Collateral Account shall be subject to the satisfaction by the
Borrower of all conditions precedent to the advance of any portion
of the proceeds of the Loan set forth in the Loan
Agreement.


 

9.           
Amendment of Mandatory
Project Absorption Provision. In further consideration of
the agreements of the Borrower and the Limited Guarantor set forth
herein, the parties hereto hereby acknowledge and agree that,
effective upon the execution and delivery of this Agreement,
Section 4.25 of the Loan Agreement is hereby deleted in its
entirety, and the following shall be inserted in lieu
thereof:

 



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"Section 4.25
Mandatory Project
Absorption. The Borrower further covenants and agrees to
consummate the sale and settlement of sufficient Lots within the
Property in order to cause the outstanding principal balance of the
Land Development Loan to be reduced from the application of the
Release Fees resulting from such sales (a) by an aggregate amount
of US$4,080,067, on or before March 31, 2018, (b) by an aggregate
amount of US$13,839,267, on or before December 31, 2018, and (c) by
an aggregate amount of US$22,981,930, on or before June 30, 2019
(each of the specified annual amounts of minimum required
cumulative Release Fees being hereinafter referred to as a "Minimum
Cumulative Curtail Amount"). The failure of the Borrower to achieve
any one or more of the foregoing Minimum Cumulative Curtail Amounts
on or before the applicable date specified above is hereinafter
referred to as a "Sales Shortfall"). Upon the occurrence of any
such Sales Shortfall, the Borrower shall be required to pay to the
Lender a mandatory principal curtailment on the Loan, within ten
(10) days after written notice from the Lender to the Borrower of
the occurrence of such event, in an amount equal to the difference
between (a) the Minimum Cumulative Curtail Amount for the date in
question, and (b) the sum of (i) the aggregate amount of Release
Fees actually received by the Lender prior to the date upon which
such Sales Shortfall shall be deemed to have occurred from the
sales of Lots within the Property, plus (ii) the full amount of any
mandatory principal curtailment previously paid by the Borrower to
the Lender pursuant to the terms of this Section 4.25 as a result
of the occurrence of any prior Sales Shortfall. In no event shall
the Borrower be entitled to the release of any portion of the
Property as a result of the payment by the Borrower of any such
mandatory principal curtailment unless otherwise agreed to by the
Lender in its sole and absolute discretion."


 

10.           
Amendment of Minimum
Release Fee Schedule. In further consideration of the
agreements of the Borrower and the Limited Guarantor set forth
herein, the parties hereto hereby acknowledge and agree that,
effective upon the execution and delivery of this Agreement, the
Minimum Release Fee Schedule attached as Schedule 7.1 to the Loan
Agreement is hereby deleted in its entirety, and the revised
Minimum Release Fee Schedule attached hereto as Exhibit D and made
a part hereof shall be inserted in lieu thereof.


 

11.           
Ratification of Limited
Guaranty. The Limited Guarantor hereby covenants and agrees
with the Lender that the execution of this Agreement does not and
shall not in any manner affect the obligations and liabilities of
the Limited Guarantor under the Limited Guaranty and the other Loan
Documents executed by the Limited Guarantor, that the Limited
Guaranty and such other Loan Documents remain in full force and
effect, and all obligations of the Borrower set forth in this
Agreement are covered by the terms of the Limited Guaranty as if
the same were set forth fully therein at the time of the execution
thereof..


 

12.           
Fees and Expenses.
In consideration of the Lender's agreement to increase, modify and
extend the Loan and in addition to the payments of principal and
interest required under the Notes, the Borrower and/or the Limited
Guarantor shall pay to the Lender, upon the execution and delivery
of this Agreement, a non-refundable Loan modification fee in the
amount of US$10,000. In addition, the Borrower and the Limited
Guarantor, jointly and severally, covenant and agree to pay all
other reasonable fees, costs, charges and expenses incurred by the
Lender in connection with the preparation of this Agreement and the
modification of the Loan, including without limitation, the
Lender's reasonable attorneys' fees and all recording
costs.


 

13.           
Additional Events of
Default. In addition to those events of default specifically
enumerated in the Notes, the Loan Agreement, the Deed of Trust
and/or any of the other Loan Documents, the failure of the Borrower
or the Limited Guarantor to comply with the terms of any covenant
or agreement contained herein (after the expiration of any
applicable grace and/or cure period afforded to the Borrower and/or
the Limited Guarantor for monetary and/or non-monetary defaults
pursuant to the terms of the Loan Documents) shall constitute an
event of default and shall entitle the Lender to exercise all
rights and remedies provided in the Notes, the Loan Agreement and
the Deed of Trust, as well as all other rights and remedies
provided to the Lender under the terms of any of the other Loan
Documents as a result of the occurrence of the same.

 



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14.           
Release of Claims.
The Borrower and the Limited Guarantor, for themselves and for each
of their respective successors and assigns, hereby release and
waive all claims and/or defenses they now or hereafter may have
against the Lender and its successors and assigns on account of any
occurrence relating to the Loan, the Loan Documents and/or the
Property which accrued prior to the date hereof, including, but not
limited to, any claim that the Lender (a) breached any obligation
to the Borrower and/or the Limited Guarantor in connection with the
Loan, (b) was or is in any way involved with the Borrower and/or
the Limited Guarantor as a partner, joint venturer, or in any other
capacity whatsoever other than as a lender, (c) failed to fund any
portion of the Loan or any other sums as required under any
document or agreement in reference thereto, or (d) failed to timely
respond to any offers to cure any defaults under any document or
agreement executed by the Borrower, the Limited Guarantor or any
third party or parties in favor of the Lender. This release and
waiver shall be effective as of the date of this Agreement and
shall be binding upon the Borrower and the Limited Guarantor and
each of their respective successors and assigns, and shall inure to
the benefit of the Lender and its successors and assigns. The term
"Lender" as used herein shall include, but shall not be limited to,
its present and former officers, directors, employees, agents and
attorneys.


 

15.           
Continuing Agreements;
Novation. Except as expressly modified hereby, the parties
hereto ratify and confirm each and every provision of the Notes,
the Loan Agreement, the Deed of Trust, the Limited Guaranty and
each of the other Loan Documents as if the same were set forth
herein. In the event that any of the terms and conditions in the
Notes or in any of the other Loan Documents conflict in any way
with the terms and provisions hereof, the terms and provisions
hereof shall prevail. The parties hereto covenant and agree that
the execution of this Agreement is not intended to and shall not
cause or result in a novation with regard to the Notes and/or any
of the other Loan Documents and that the existing indebtedness of
the Borrower to the Lender evidenced by the Notes is continuing,
without interruption, and has not been discharged by a new
agreement.


 

16.           
Entire Agreement.
NO STATEMENTS, AGREEMENTS OR REPRESENTATIONS, ORAL OR WRITTEN,
WHICH MAY HAVE BEEN MADE TO THE BORROWER OR TO THE LIMITED
GUARANTOR OR TO ANY EMPLOYEE OR AGENT OF THE BORROWER OR OF THE
LIMITED GUARANTOR, EITHER BY THE LENDER OR BY ANY EMPLOYEE, AGENT
OR BROKER ACTING ON THE LENDER'S BEHALF, WITH RESPECT TO THE
MODIFICATION OF THE LOAN, SHALL BE OF ANY FORCE OR EFFECT, EXCEPT
TO THE EXTENT STATED IN THIS AGREEMENT OR IN ANY OTHER DOCUMENT
EXECUTED AND DELIVERED IN CONNECTION HEREWITH, AND ALL PRIOR
AGREEMENTS AND REPRESENTATIONS WITH RESPECT TO THE MODIFICATION OF
THE LOAN ARE MERGED HEREIN AND THEREIN.


 

17.           
Captions. The
captions herein set forth are for convenience only and shall not be
deemed to define, limit or describe the scope or intent of this
Agreement.


 

18.           
Governing Law. The
provisions of this Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Maryland as
the same may be in effect from time to time.


 

19.           
Counterparts; Execution by
Facsimile, Etc. This Agreement may be executed in any number
of counterparts, and each such counterpart shall be deemed to be an
original. It shall not be necessary that the signature of, or on
behalf of, each party, or that the signatures of the persons
required to bind any party, appear on more than one counterpart.
For purposes of this Agreement, a document (or signature page
thereto) signed and transmitted by facsimile machine or e-mail is
to be treated as an original document. The signature of any party
thereon, for purposes hereof, is to be considered as an original
signature, and the document transmitted is to be considered to have
the same binding effect as an original signature on an original
document.


 


 


 


[Signatures
contained on following pages]


 



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IN
WITNESS WHEREOF, the parties have executed this Agreement under
seal as of the date first above written.


 

 


	
 

 

WITNESS OR
ATTEST:

 

 

 

 


/s/                                                    



 

 

 

 

	
BORROWER:

 

SeD MARYLAND
DEVELOPMENT, LLC

 

By: SeD Development
Management, LLC 


 

 

 

By  /s/ Jeffrey M.
Busch                
(SEAL)


     
Jeffrey M. Busch

  
   Manager

  

 

 







 


STATE
OF MARYLAND, COUNTY OF ANNE ARUNDEL, TO WIT:


 


I
HEREBY CERTIFY, that on this 14th day of September, 2017, before
me, the undersigned Notary Public of said State, personally
appeared Jeffrey M. Busch, who acknowledged himself to be a Manager
of SeD Development Management, LLC, a Delaware limited liability
company and the Manager of SeD Maryland Development, LLC, a
Delaware limited liability company, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within
instrument, and acknowledged that he executed the same for the
purposes therein contained as the duly authorized Manager of said
limited liability company by signing the name of the limited
liability company by himself as Manager.


 


WITNESS
my hand and Notarial Seal.


 


/s/ Christine
Norwood


Notary
Public


 


My
Commission Expires: 7/6/20


 


 


[Signatures
continued on following pages]


 



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WITNESS OR
ATTEST:

 

 

 

 

/s/ Mohammad Ghaggur


 

 

 

 

	
LIMITED
GUARANTOR:

 

SeD BALLENGER,
LLC

 

 

 

By  /s/  Conn
Flanigan        
(SEAL)


      
Conn Flanigan

  
    Authorized
Representative

  

 

 








 


STATE
OF COLORADO, COUNTY OF ARAPAHOE, TO WIT:


 


I
HEREBY CERTIFY, that on this 14th day of September, 2017, before
me, the undersigned Notary Public of said State, personally
appeared Jeffrey M. Busch, who acknowledged himself to be an
Authorized Representative of SeD Ballenger, LLC, a Delaware limited
liability company, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein
contained as the duly authorized representative of said limited
liability company by signing the name of the limited liability
company by himself as Authorized Representative.


 


WITNESS
my hand and Notarial Seal.


 


/s/ Daniel G. Budd


Notary
Public


 


My
Commission Expires: June 20, 2025


 


 


 


[Signatures
continued on following page]


 


 



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WITNESS OR
ATTEST:

 

 

 

 


/s/                                                    

 

 

 

 

	
LENDER:

 


XENITH
BANK



 

 

 

By  /s/ John S. Pearsall,
Jr.               
(SEAL)

       John S. Pearsall,
Jr.  
      
Senior
Vice President 


 

 
 

 








 


COMMONWEALTH
OF VIRGINIA, CITY OF RICHMOND TO WIT:


 


I
HEREBY CERTIFY, that on this 15 day of September, 2017, before me,
the undersigned Notary Public of said State, personally appeared
John S. Pearsall, Jr., who acknowledged himself to be a Senior Vice
President of Xenith Bank, a Virginia banking corporation,
personally well known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein
contained as the duly authorized Senior Vice President of said
banking corporation by signing the name of the banking corporation
by himself as Senior Vice President.

 


 


WITNESS
my hand and Notarial Seal.


 


 


 


/s/ Tracy S. Cox


Notary
Public


 


My
Commission Expires: 4-30-2021


 


 



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EXHIBIT
A


Page 1
of 4


 



DESCRIPTION OF THE LAND


 


ALL those lots or parcels of land
located in the County of Frederick, State of Maryland and more
particularly described as follows:


 



PARCEL 1: 45.9542 acres of land, more or less.


 



LAND OF RICHARD B. GRIFFIN ESTATE



RESIDUE OF FARM LOT 1



District 28 Tax Account 581556



FREDERICK COUNTY, MARYLAND


 



ALL of Farm Lot 1 as it is shown on a plat of subdivision
entitled Griffin Farm Lot 1 and recorded in said Land Records in
Plat Book 60 at Page 126 EXCEPT that part of the Farm Lot 1
panhandle shown on said plat that is shown on a plat of subdivision
entitled Central High School and Future Alignment of Ballenger
Creek Pike, Addition and Outlot Plat, Situated Along Ballenger
Creek Pike and recorded in said Land Records in Plat Book 64 at
Page 151, some of which is shown as Ballenger Creek Pike on
Frederick County Department of Public Works Right of Way Plat
310.


 



CONTAINING 2,001,764 square feet, or 45.9542 acres of land,
more or less.


 


 



PARCEL 2: 96.8933 acres of land, more or less.


 



LAND OF RICHARD B. GRIFFIN ESTATE



REMAINDER OF THE FIRST DESCRIBED PARCEL



DEED BOOK 2161 PAGE 632



District 28 Tax Account 539193



FREDERICK COUNTY, MARYLAND


 



ALL of the first parcel described in a deed from Richard B.
Griffin, Jr., Victoire Griffin Rankin, Georgianna Griffin DuBose,
and Morgan Guaranty Trust Company of New York, Co-Personal
Representatives of the Estate of Victoire Conley Griffin, to
Richard B. Griffin made 18 December 1995 and recorded in the Land
Records of Frederick County, Maryland, in Book 2161 at Page 632
EXCEPT Farm Lot 1 as it is shown on a plat of subdivision entitled
Griffin Farm Lot 1 and recorded in said Land Records in Plat Book
60 at Page 126, some of Farm Lot 1 now being part of Ballenger
Creek Pike, and EXCEPT the land in said first parcel that is shown
on a plat of subdivision entitled Central High School and Future
Alignment of Ballenger Creek Pike, Addition and Outlot Plat,
Situated Along Ballenger Creek Pike and recorded in said Land
Records in Plat Book 64 at Page 151, some of which is shown as
Ballenger Creek Pike on Frederick County Department of Public Works
Right of Way Plats 309 and 310, and more particularly described as
follows by metes and bounds on the Maryland State Plane projection
of the North American Datum of 1983 according to a survey by Patton
Harris Rust and Associates, PC, of October, 2005.


 


 



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EXHIBIT
A


Page 2
of 4


 



DESCRIPTION OF THE LAND


 



BEGINNING at a concrete monument found at the end of the S
02°36'06" W, 860.47 foot line of said Farm Lot 1 and
proceeding for three lines more or less along an old wood post and
wire fence


 



1.            

S 02°59'52" W,
830.74 feet to a rebar and cap set






 



2.            

N 79°53'20" W,
393.16 feet to a rebar and cap set






 



3. 

S 70°02'10" W,
519.52 feet to a rebar and cap set; thence passing over rebars with
caps found at 327.08 feet and 431.84 and a rebar and cap found at
546.14 feet near a diversion of the fence






 



4.            

N 80°56'00" W,
667.46 feet to a rebar and cap set






 



5.            

N 72°41'00" W,
458.33 feet to a rebar and cap set






 



6. 

S 56°52'50" W,
174.47 feet to the end of the ninth line of the first parcel
described in Book 2161 at Page 632 and the beginning of the first
line of the third parcel described in that deed, both these lines
being cited as the second line of a deed from Jacob Lewis to Henry
C. Drill dated April 12, 1869 and recorded in the Land Records of
Frederick County, Maryland, in Liber C.M. No. 3 at Folio 411;
thence with these-lines






 



7. 

N 27°37'13" W,
978.45 feet; thence with part of the eighth line reversed of the
said first parcel, which is also part of the second line of the
said third parcel






 



8. 

N 35°05'05" W,
1122.36 feet to a rebar and cap found on the east side of Ballenger
Creek Pike, as it is shown on the aforesaid Frederick County
Right-of-Way plats; thence two courses bounded by Ballenger Creek
Pike






 



9.            

N 07° 04' 10"
E, 161.56 feet to a rebar and cap found






 



10. 

278.30 feet along
the arc of a curve to the right with a radius of 3769.72 feet and a
chord bearing N 09°11'04" E for 278.24 feet to the N
85°35'03" W, 1713.52 foot line of said Farm Lot 1; thence
bounded by Farm Lot 1 reversely along the remainder of this line
and then two preceding lines of Farm Lot 1






 



11.       



S 85°33'53" E,
1678.62 feet






 



12.     



S 21°36'17" E,
1525.05 feet






 



13.        



N 82°56'20" E,
968.27 feet to the place of beginning.






 



CONTAINING 4,220,672 square feet, or 96.8933 acres of land,
more or less.


 



EXCEPTING Lots 235, 248, and 261 as shown on a plat of
subdivision entitled "Final Plat, Phase 1, Plat 2, Lots 231-239,
240-251, 259-261, 286, 287 & HOA Common Space, Ballenger Run"
and recorded in said Land Records in Plat Book 98 at Page
12.



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EXHIBIT
A


Page 3
of 4


 



DESCRIPTION OF THE LAND


 



ALSO EXCEPTING Lots 66-69 and 110-115 as shown on a plat of
subdivision entitled "Final Plat, Phase 1, Plat 3, Lots 11-24,
58-73, 102-115 & HOA Common Space, Ballenger Run" and recorded
in said Land Records in Plat Book 98 at Page 13.


 


 



PARCEL 3: 54.1818 acres of land, more or less.


 



LAND OF RICHARD B. GRIFFIN ESTATE



REMAINDER OF THE THIRD DESCRIBED PARCEL



DEED BOOK 2161 PAGE 632



District 28 Tax Account 539207



FREDERICK COUNTY, MARYLAND


 



ALL of the third parcel described in a deed from Richard B.
Griffin, Jr., Victoire Griffin Rankin, Georgianna Griffin DuBose,
and Morgan Guaranty Trust Company of New York, Co-Personal
Representatives of the Estate of Victoire Conley Griffin, to
Richard B. Griffin made 18 December 1995 and recorded in the Land
Records of Frederick County, Maryland, in Book 2161 at Page 632
EXCEPT the land in said third parcel that is shown on a plat of
subdivision entitled Central High School and Future Alignment of
Ballenger Creek Pike, Addition and Outlot Plat, Situated Along
Ballenger Creek Pike and recorded in said Land Records in Plat Book
64 at Page 151, some of which is shown as Ballenger Creek Pike on
Frederick County Department of Public Works Right of Way Plats 305,
306, 308, and 309, ALSO EXCEPTING that parcel of land which was
conveyed by Richard B. Griffin and Victoire C. Griffin, his wife,
to Claude R. Page and Lela S. Page, his wife, by deed dated June
15, 1959 and recorded among the aforesaid Land Records in Liber 619
at Folio 561, the remainder being more particularly described by
the following metes and bounds on the Maryland State Plane
projection of the North American Datum of 1983 according to a
survey by Patton Harris Rust and Associates, PC, of October 5,
2005.


 



BEGINNING at a rebar found at the intersection of the east
side of Ballenger Creek Pike and a line that is both the second
line of said third parcel and the eighth line of the first parcel
described in the same deed; thence with the remainder of these
lines:


 



1. 

S 35°05'05" E,
1122.36 feet; thence with the first line reversed of said third
parcel and the ninth line of said first parcel, both these lines
being cited as the second line of a Deed from Jacob Lewis to Henry
C. Drill dated April 12, 1869 and recorded in the Land Records of
Frederick County, Maryland, in Liber C.M. No. 3 at Folio 411;
thence with these lines






 



2. 

S 27°37'13" E,
978.45 feet; thence passing over iron rebars with caps found at
341.65 feet, 454.92 feet, 739.44 feet, 773.68 feet, 891.91 feet and
973.27 feet for the first of four lines to include said third
parcel






 



3.            

S 56°52'50" W,
1104.18 feet to a rebar and cap set






 



4.            

N 34°59'17" W,
584.10 feet to a rebar and cap set






 



5.            

S 46°30', 43"
W, 311.85 feet to a rebar and cap set






 


 



- 13 -








 






EXHIBIT
A


Page 4
of 4


 



DESCRIPTION OF THE LAND


 



6. 

S 81°30'43" W,
215.11 feet to a rebar and cap set on the eastern side of said
Ballenger Creek Pike; thence twelve lines with the side of
Ballenger Creek Pike






 



7.            

N 14°10'44" W,
12.38 feet to a rebar and cap set






 



8.            

N 16°11'13" W,
268.95 feet to a rebar and cap set






 



9.            

N 76°43'34" W,
66.00 feet to a rebar and cap set






 



10.         



N 16°43'34" W,
49.51 feet to a rebar and cap set






 



11.         



N 14°55'56" W,
153.11 feet to a rebar found






 



12. 

747.28 feet along
the arc of a curve to the right with a radius of 713.94 and a chord
bearing N 19°03'45" E for 713.63 feet to a rebar
found






 



13.         



N 49°02'53" E,
294.70 feet to a rebar and cap set






 



14.         



S 40°57' 07"
E, 50.00 feet to a rebar and cap set






 



15.         



N 46°55'10" E,
109.36 feet to a rebar and cap set






 



16.         



N 46°20'32" W,
50.00 feet to a rebar and cap set






 



17.

554.62 feet along
the arc of a curve to the left with a radius of 868.51 feet and a
chord bearing N 25°21'49" E for 545.24 feet to a rebar and cap
found






 



18.         



N 07°04'10" E,
245.80 feet to the place of beginning.






 



CONTAINING 2,360,160 square feet, or 54.1818 acres of land,
more or less.


 



EXCEPTING Outlot 'A' as shown on a plat of subdivision
entitled "Outlot Plat, Outlot 'A', Ballenger Run" and recorded in
said Land Records in Plat Book 98 at Page 4.


 







 



- 14 -








 






EXHIBIT
B


 



REVISED BUDGET


 


 


 


 


 


 


 


 


 


 


 


 


SEE
ATTACHED


 


 



- 15 -








 






EXHIBIT
C


 



REVISED PROJECT SCHEDULE


 


 


 


 


 


 


 


 


 


 


 


 


SEE
ATTACHED


 


 



- 16 -








 






EXHIBIT
D


 



REVISED MINIMUM RELEASE FEE SCHEDULE


 


 


 


 


 


 


 


 


 


 


 


 


SEE
ATTACHED


 



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