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EXHIBIT 10.56
FIFTH AMENDMENT TO LOAN AGREEMENT
(AND LOAN DOCUMENTS)
THIS FIFTH AMENDMENT TO LOAN AGREEMENT (AND LOAN DOCUMENTS) (the
"Amendment"), is made and entered into as of the first day of September, 1995
by (i) MAJOR REALTY CORPORATION (hereinafter referred to as "Borrower") and
(ii) PNC BANK, KENTUCKY, INC., a Kentucky corporation, formerly known as
Citizens Fidelity Bank and Trust Company (hereinafter referred to as "Lender");
W I T N E S S E T H:
WHEREAS, Lender and Borrower entered into that certain Loan Agreement
dated as of October 11, 1989, as modified by that certain Amendment to Loan
Agreement dated as of November 30, 1990, as further modified by that certain
Second Amendment to Loan Agreement dated as of August 29, 1991, as further
modified by that certain Third Amendment to Loan Agreement dated as of January
31, 1994, and as further modified by that certain Fourth Amendment to Loan
Agreement dated as of January 31, 1995, (hereinafter together referred to as
the "Loan Agreement") for the purpose of evidencing the terms and conditions
subject to which Lender made a loan to Borrower in the original principal sum
of SIXTEEN MILLION AND NO/100 DOLLARS ($16,000,000.00) (hereinafter referred to
as the "Loan"); and
WHEREAS, the Loan is evidenced by that certain Mortgage Note executed
by Borrower to and in favor of PNC dated October 11, 1989, as modified by that
certain Amendment to Mortgage Note dated as of August 29, 1991, as further
modified by that certain Second Amendment to Mortgage Note dated as of January
31, 1994, as further modified by that certain Third Amendment to Mortgage Note
dated as of January 31, 1995 (hereinafter together referred to as the "Note")
and is secured by that certain Mortgage Deed and Security Agreement executed by
Borrower to and in favor of Lender dated October 11, 1989, and recorded on
October 12, 1989, in Official Records Book 4123, Page 1379, as modified by that
certain Amendment to Mortgage Deed and Security Agreement dated August 29,
1991, and recorded August 30, 1991, in Official Records Book 4321, Page 983, as
further modified by that certain Notice of Limitation of Future Advances
recorded on March 30, 1992, in Official Records Book 4391, Page 3509, as
further modified by that certain Modification of Mortgage and Security
Agreement dated October 5, 1992, and recorded on October 7, 1992, in Official
Records Book 4471, Page 2237, as further modified by that certain Amendment to
Mortgage Deed and Security Agreement dated as of January 31, 1994, and recorded
March 1, 1994, in Official Records Book 4705, Page 657, as further modified by
that certain Amendment to Mortgage Deed and Security Agreement dated as of
January 31, 1995, and recorded on February 2, 1995, in Official Records Book
4851, Page 969, as further modified by that certain Notice of Limitation of
Future Advances dated as of January 31, 1995, and recorded on February 3, 1995,
in Official Records Book 4851, Page 3487,
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all of the Public Records of Orange County, Florida (hereinafter together
referred to as the "Mortgage"); and
WHEREAS, Borrower and Lender have agreed to modify the Loan in order
to consent to teh sale of certain property by the Borrower to Cracker Barrel
Old Country Store, Inc., and to accomplish certain other changes, amendments
and modifications thereto, all as provided herein.
NOW THEREFORE, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
change, amend and modify the Loan Agreement and Loan Documents as follows:
1. Definitions. All capitalized terms not otherwise defined
herein shall have their same respective meanings as contained in the Loan
Agreement.
2. Consent To Cracker Barrel Transaction. Subject to the terms
and conditions contained herein, the Lender hereby consents to the sale by the
Borrower to Cracker Barrel Old Country Store, Inc. ("Cracker Barrel") of the
10.36 acre portion of Site #7C now subject to the Mortgage, and the Lender
hereby agrees to release the lien of the Mortgage on such property in exchange
for:
(i) the sum of $1,518,336.60 to be delivered to the
Lender in good and collected funds and to be applied by the Lender to
reduce the principal balance of the Loan; and
(ii) a collateral assignment of the Borrower's interests
in the non-interest bearing, non-recourse, purchase money promissory
note, purchase money mortgage, estoppel letter, consents and other
related documents reflecting or evidencing the sale to Cracker Barrel,
all as acceptable to Lender in its discretion and as provided in
Section 3 of this Amendment.
3. Amendment of Paragraph 3.2(c). Paragraph 3.2(c) of the Loan
Agreement, added in connection with the Third Amendment To Loan Agreement dated
January 31, 1994, is hereby amended and restated in its entirety as follows:
"(c) Additional Security. As additional security for the
repayment of the Loan:
(1) Xxxxxx Note And Mortgage. Borrower shall
cause Major Center, a Florida joint venture partnership in
which Borrower has a controlling interest,
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to collaterally assign to Lender the following documents evidencing
and securing an indebtedness in the principal amount of $2,750,000.00,
to wit:
(i) that certain Nonrecourse Purchase
Money Promissory Note executed by Xxxxxx
PropertiesGarrison Channel, Limited
Partnership ("Xxxxxx") to and in favor of
Major Center dated April 26, 1993 in the
original principal amount of $2,750,000 (the
"Xxxxxx Note");
(ii) That certain Nonrecourse Purchase
Money Promissory Mortgage executed by Xxxxxx
to and in favor of Major Center dated April
26, 1993 and recorded on April 29, 1993 in
Official Records Book 6958, Page 1618 of the
Public Records of Hillsborough County,
Florida (the "Xxxxxx Mortgage");
(iii) That certain Partial Release Agreement
executed by Xxxxxx and Major Center dated
April 26, 1993 (the "Xxxxxx Partial Release
Agreement"); and
(iv) the immediate and continuing right
to collect and receive all of the proceeds
income, receipts, revenues, issue and profits
now due or which may hereafter become due or
to which Major Center may now or hereafter
become entitled or may demand or claim
arising or issuing from the Xxxxxx Note, the
Xxxxxx Mortgage, the Xxxxxx Partial Release
Agreement, and any other documents executed
in connection therewith or evidencing, and
securing such indebtedness (collectively, the
"Xxxxxx Loan Documents").
The collateral assignment of the Xxxxxx Loan
Documents to Lender shall be evidenced by a
Collateral Assignment of Non-Recourse Purchase Money
Promissory Note and Mortgage (the "Collateral
Assignment - Xxxxxx") in form and content acceptable
to Lender. In connection with such Collateral
Assignment, Borrower shall cause Xxxxxx to execute
and deliver to Lender an estoppel letter evidencing
that (i) the Xxxxxx Loan Documents have not been
changed, amended or modified, are currently in full
force and effect, with no defaults thereunder on the
part of Xxxxxx or Major Center, and no event has
occurred which, with the passage of time, with the
giving of notice or both, would constitute a default,
and (ii) Xxxxxx acknowledges that Major Center has no
authority to change, amend or modify the Xxxxxx Loan
Documents without the prior written consent of the
Lender and Xxxxxx will pay to the Lender, or in such
manner as the Lender may direct, all sums hereafter
due, owing or payable under the
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Xxxxxx Loan Documents so long as the Collateral
Assignment-Xxxxxx remains in effect. Such estoppel
letter shall provide such other assurances as Lender
may require. In addition, Borrower shall cause First
American Title Insurance Company to issue to Lender
an Endorsement to its Mortgagee Title insurance
Policy No. FA-M912367, insuring the lien of the
Xxxxxx Mortgage reflecting the Collateral
Assignment-Xxxxxx thereof to Lender and otherwise
being acceptable to Lender, in its own discretion.
Borrower shall pay all costs and expenses associated
with the Collateral Assignment of the Xxxxxx Loan
Documents to Lender, including without limitation,
the cost of recording the Collateral
Assignment-Xxxxxx and the premium for issuance of the
Endorsement described herein. Lender agrees that the
Collateral Assignment shall terminate and Lender
shall execute and deliver to Major Center a written
instrument in recordable form accomplishing and
evidencing the termination of the Collateral
Assignment-Xxxxxx upon the earlier of (i) the
payment, performance and discharge in full of the
Loan; or (ii) such time as Lender shall have received
the aggregate sum of $700,000 from Xxxxxx in payments
made under the Xxxxxx Note, whether by prepayments,
payments for partial releases of the Xxxxxx Mortgage,
or payment at maturity; or (iii) such time as Lender
shall have received the aggregate sum of $700,000
from Borrower in principal payments made under,the
Loan without requiring the release of any of the real
property encumbered by the Mortgage.
(2) Bara Note (Intram Property).
Borrower shall collaterally assign to Lender the
following documents evidencing and securing an
indebtedness in the principal amount of $1,310,000,
to wit:
(i) that certain Purchase Money
Promissory Note executed by Bara Vineland,
Inc., a Florida corporation ("Bara") to and
in favor of Borrower dated May 5, 1995 in the
original principal amount of $1,310,000 (the
"Bara Note");
(ii) That certain Purchase Money Mortgage
executed by Bara to and in favor of Borrower
dated May 5, 1995 and recorded on May 5, 1995
in Official Records Book 4888, Page 3778 of
the Public Records of Orange County, Florida
(the "Bara Mortgage");
(iii) the immediate and continuing right to
collect and receive all of the proceeds,
income, receipts, revenues, issue and profits
now due or which may hereafter become due or
to which Borrower may now or hereafter become
entitled or may demand or claim arising or
issuing from the Bara Note, the Bara
Mortgage, and any other
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documents executed in connection therewith or
evidencing and securing such indebtedness
(collectively, the "Bara Loan Documents").
The collateral assignment of the Bara Loan Documents
to Lender shall be evidenced by a Collateral
Assignment of Nonrecourse Purchase Money Promissory
Note and Mortgage (the "Collateral Assignment-Bara")
in form and content acceptable to Lender. In
connection with such Collateral Assignment-Bara,
Borrower shall by December 31, 1995, cause Bara to
execute and deliver to Lender an estoppel letter
evidencing that (i) the Bara Loan Documents have not
been changed, amended or modified, are currently in
full force and effect, with no defaults thereunder on
the part of Bara or Borrower, and no event has
occurred which, with the passage of time, with the
giving of notice or both, would constitute a default,
and (ii) Bara acknowledges that Borrower has no
authority to change, amend or modify the Bara Loan
Documents without the prior written consent of the
Lender and Bara after being notified of an Event of
Default, will pay to the Lender, or in such manner as
the Lender may direct, all sums hereafter due, owing
or payable under the Bara Loan Documents so long as
the Collateral Assignment remains in effect. Such
estoppel letter shall provide such other assurances
as Lender may require. In addition, Borrower shall
cause First American Title Insurance Company to issue
to Lender an Endorsement to its Mortgagee Title
Insurance Policy Xx. XX-X-000000, insuring the lien
of the Bara Mortgage , reflecting the Collateral
Assignment-Bara thereof to Lender and otherwise being
acceptable to Lender, in its own discretion.
Borrower shall pay all costs and expenses associated
with the Collateral Assignment of the Bara Loan
Documents to Lender, including without limitation,
the cost of recording the Collateral Assignment-Bara
and the premium for issuance of the Endorsement
described herein. Lender agrees that the Collateral
Assignment-Bara shall terminate and Lender shall
execute and deliver to Borrower a written instrument
in recordable form accomplishing and evidencing the
termination of the Collateral Assignment-Bara upon
the earlier of (i) the payment, performance and
discharge in full of the Loan; or (ii) provided that
no Event of Default shall then exist, such time as
Lender shall have received the aggregate sum of
$400,000 from Bara in payments made under the Bara
Note, whether by prepayments, payments for partial
releases of the Bara Mortgage, or payment at
maturity; or (iii) provided that no Event Of Default
shall then exist, such time as Lender shall have
received the aggregate sum of $400,000 from Borrower
in principal payments made under the Loan without
requiring the release of any of the real property
encumbered by the Mortgage.
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(3) Cracker Barrel Note. Borrower shall
collaterally assign to Lender the following documents
evidencing and securing an indebtedness in the
principal amount of $3,580,000, to wit:
(i) that certain Purchase Money
Promissory Note executed by Cracker Barrel
Old Country Store, Inc a. Tennessee
corporation ("Cracker Barrel") to and in
favor of Borrower dated August 23, 1995 in
the original principal amount of $3,580,000
(the "Cracker Barrel Note");
(ii) that certain Purchase Money Mortgage
executed by Cracker Barrel to and in favor of
Borrower dated August 23, 1995 and to be
promptly recorded in the Public Records of
Orange County, Florida (the "Cracker Barrel
Mortgage");
(iii) the immediate and continuing right to
collect and receive all of the proceeds
income, receipts, revenues, issue and profits
now due or which may hereafter become due or
to which Borrower may now or hereafter become
entitled or may demand or claim arising or
issuing from the Cracker Barrel Note, the
Cracker Barrel Mortgage, and any other
documents executed in connection therewith or
evidencing and securing such indebtedness
(collectively, the "Cracker Barrel Loan
Documents").
The collateral assignment of the Cracker Barrel Loan
Documents to Lender shall be evidenced by a
Collateral Assignment of Nonrecourse Purchase Money
Promissory Note and Mortgage (the "Collateral
Assignment-CB") in form and content acceptable to
Lender. In connection with such Collateral
Assignment-CB, Borrower shall cause Cracker Barrel to
execute and deliver to Lender an estoppel letter
evidencing that (i) the Cracker Barrel Loan Documents
have not been changed, amended or modified, are
currently in full force and effect, with no defaults
thereunder on the part of Cracker Barrel or Borrower,
and no event has occurred which, with the passage of
time, with the giving of notice or both, would
constitute a default, and (ii) Cracker Barrel
acknowledges that Borrower has no authority to
change, amend or modify the Cracker Barrel Loan
Documents without the prior written consent of the
Lender and Cracker Barrel, after being notified of an
Event of Default, will pay to the Lender, or in such
manner as the Lender may direct, all sums hereafter
due, owing or payable under the Cracker Barrel Loan
Documents so long as the Collateral Assignment
remains in effect. Such estoppel letter shall
provide such other assurances as Lender may require.
In addition, Borrower shall cause
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Chicago Title Insurance Company to issue to Lender an
Endorsement to its Mortgagee Title Insurance Policy
acceptable to Lender, insuring the lien of the
Cracker Barrel Mortgage , reflecting the Collateral
Assignment-CB thereof to Lender and otherwise being
acceptable to Lender, in its own discretion.
Borrower shall pay all costs and expenses associated
with the Collateral Assignment of the Cracker Barrel
Loan Documents to Lender, including without
limitation, the cost of recording the Collateral
Assignment-CB and the premium for issuance of the
Endorsement described herein. Lender agrees that the
Collateral Assignment-CB shall terminate and Lender
shall execute and deliver to Borrower a written
instrument in recordable form accomplishing and
evidencing the termination of the Collateral
Assignment-CB upon the earlier of (i) the payment,
performance and discharge in full of the Loan; or
(ii) provided that no Event Of Default shall then
exist, such time as Lender shall have received the
aggregate sum of $2,148,000 from Cracker Barrel in
payments made under the Cracker Barrel Note, whether
by prepayments, payments for partial releases of the
Cracker Barrel Mortgage, or payment at maturity; or
(iii) provided that no Event of Default shall then
exist, such time as Lender shall have received the
aggregate sum of $2,148,000 from Borrower in
principal payments made under the Loan without
requiring the release of any of the real property
encumbered by the mortgage.
(4) Payments on Pledged Notes.
(i) Bara Note. In the event that the maker of the Bara
Note makes any payments on the Bara Note to the Borrower:
(a) if prior to the occurrence of an
Event of Default, then the Borrower shall promptly
deliver to the Lender the first $400,000 of such
payments, to be applied by the Lender to the Loan;
and
(b) if after to the occurrence of an
Event of Default, then the Borrower shall promptly
deliver to the Lender the full amount of such
payments, to be applied by the Lender to the Loan.
(ii) Cracker Barrel Note. In the event that the maker of
the Cracker Barrel Note makes any payments on the Cracker
Barrel Note to the Borrower:
(a) if prior to the occurrence of an
Event of Default then the Borrower shall promptly
deliver to the Lender 60% of each such payment, to be
applied by the Lender to the Loan; and
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(b) if after to the occurrence of an
Event of Default, then the Borrower shall promptly
deliver to the Lender the full amount of such
payments, to be applied by the Lender to the Loan.
(iii) Clarification. As a clarification,
(a) if the maker of the Bara Note has
properly paid the Bara Note in full, and is entitled
to a release of the Bara Mortgage, the Lender shall
execute and deliver an appropriate release of the
Bara Mortgage.
(b) if the maker of the Cracker Barrel
Note has properly:
(1) paid the Cracker Barrel Note in full
and is entitled to a release of the Cracker
Barrel Mortgage, then the Lender shall
execute and deliver an appropriate release of
the Cracker Barrel Mortgage; or
(2) paid the partial release price of
$1,790,000 provided in Paragraph 26 of the
Cracker Barrel mortgage, and is entitled to a
partial release of the Cracker Barrel
Mortgage described therein, then the Lender,
upon delivery of the appropriate release
amount to the Lender, shall execute and
deliver an appropriate partial release of the
Cracker Barrel Mortgage.
4. Fees - Escrow. At the closing of the Cracker Barrel
transaction, the Borrower shall place in an escrow arrangement (satisfactory in
all respects to the Lender) a contingent amendment fee in the amount of $10,740
(computed as .5% of the amount of deferred proceeds due the Lender in
connection with the property transaction). In the event that the Borrower
reduces the principal balance of the Loan to below $5,000,000 on or before
September 30, 1995, then the fee (together with any interest thereon) shall be
refundable to the Borrower. In the event that the principal balance of the
Loan on September 30, 1995 is $5,000,000 or more, then the fee (together with
any interest thereon) shall be promptly paid to the Lender.
5. Amendment To Loan Documents.
(a) The Lender and the Borrower hereby acknowledge that the
term "Loan Documents", as used in the Loan Agreement (and in each of the Loan
Documents), shall include, without limitation, the Loan Agreement, the
Mortgage, the Note, the Collateral Assignment Xxxxxx, the Collateral
Assignment-Bara, the Collateral Assignment-CB, the Xxxxxx Loan Documents, the
Bara Loan Documents, the Cracker Barrel Loan Documents, and all other documents
instruments or agreements in any way pertaining to, or executed in connection
with, the Loan, whether now existing or hereafter obtained or executed.
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(b) The Lender and the Borrower hereby amend paragraph 5
of the Collateral Assignment-Xxxxxx and paragraph 5 of the Collateral
Assignment-Bara to add new subsection (h):
"or (h) the Borrower defaults in any of its
covenants, obligations or agreements hereunder."
(c) The Lender and the Borrower hereby amend paragraph 11
of the Collateral Assignment-Bara to add the following to the end of the first
sentence of paragraph 11: "provided no Event of Default shall then exist".
(d) Any and all references in the Note, the Mortgage or
any of the other Loan Documents, to the term "Loan Agreement" (or to any of the
other Loan Documents), shall hereafter mean and refer to the Loan Agreement
(and/or such Loan Document), as amended by this Amendment.
(e) NotWithstaNding anything to the contrary contained in
any of the Loan Documents (including, without limitation, the Collateral
Assignment-Xxxxxx, Collateral Assignment-Bara, Collateral Assignment-CB):
(1) Upon the occurrence of a default or Event Of
Default under the Loan Agreement, under any of the Security
Documents or under any of the Loan Documents, and provided
that such default is not cured within any applicable cure
period, if any, then the Lender (in addition to such other
rights and remedies that the lender may have) shall have the
specific right to foreclose the Security Mortgage (as such
term is defined in Section I of the Collateral
Assignment-Xxxxxx, Collateral Assignment-Bara, Collateral
Assignment-CB), and the Borrower shall cooperate with the
Lender in this regard, executing whatever, documents or
instruments as may be necessary or appropriate; and
(2) In all events, the Borrower shall not enter
into any settlement agreement, deed in lieu transaction or
other arrangement or stipulation with respect to the Xxxxxx
Loan Documents, the Bara Loan Documents or the Cracker Barrel
Loan Documents, without the prior written approval of the
Lender, in its sole discretion, unless both (i) no Event Of
Default then exists and (ii) such settlement (or other
arrangement) provides for the immediate payment to the Lender
of the amount set forth in Section 11 of each of the
Collateral Assignment Xxxxxx, Collateral Assignment-Bara, and
Collateral Assignment-Cracker Barrel.
(f) Section 3.5 of the Loan Agreement, amended pursuant
to the Fourth Amendment To Loan Agreement dated as of January 31, 1995, is
hereby amended to add the following at the beginning of the first paragraph:
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"Provided that no Event of Default then exists,"
6. Conditions Precedent. Prior to or contemporaneously with the
execution of this Agreement, the Borrower shall have furnished to the Bank the
following, duly executed and dated the date hereof or such other date as shall
be satisfactory to the Bank, and in form and substance satisfactory to the
Bank:
(a) Opinion Letter. An opinion letter of counsel for the
Borrower, which is in form and substance acceptable to the Lender.
(b) Resolutions. Certified copies of the resolutions of
the Board of Directors of the Borrower, evidencing approval of the execution of
this Agreement, related Loan Documents and other instruments as referred to
herein.
(c) Certificate of Borrower. A Certificate of the
Borrower as to such matters as the Lender may elect.
(d) Cracker Barrel Closing. Evidence satisfactory to the
Lender that the Cracker Barrel Closing has occurred contemporaneous with the
execution and delivery of this Amendment, on September 1, 1995, together with
appropriate funds being delivered to Lender and such related documents or
instruments as the Lender may reasonably require, duly executed, delivered and
recorded, as appropriate (including, without limitation, an appropriate consent
from Acceptance Insurance Companies, Inc.).
(e) Amendment Documents/Miscellaneous. All the Loan
Documents and such other documents, instruments certificates or affidavits as
the Lender may reasonably require, duly executed delivered and recorded, as
appropriate.
7. Miscellaneous.
(a) In consideration of the agreements of Lender
contained herein, and the benefits received by Borrower pursuant thereto,
Borrower hereby releases, relinquishes and forever discharges Lender and its
successors, assigns, agents, officers, directors, employees, attorneys and
representatives of and from any and all claims, demands, actions and causes of
action of any and every kind of character, whether known or unknown, which
Borrower may have arising out of or with respect to any and all transactions
relating to the Loan and occurring prior to the date hereof.
(b) Borrower hereby ratifies, confirms and reaffirms for
the benefit of Lender all of the covenants, representations, warranties and
agreements of Borrower set forth in the Loan Agreement and in each of the Loan
Documents, all of which are true, correct and effective as of the date hereof.
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(c) Except as hereby changed, amended and modified, the
Loan Agreement and each of the Loan Documents shall remain unchanged and in
full force and effect in strict accordance with its terms.
(d) This Amendment shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns.
(e) This Amendment may be executed in several
counterparts, each of which shall be treated for all purposes as an original,
and all of which shall be treated as one and the same instrument. This
Amendment will not be binding upon or constitute evidence of an agreement
between the parties hereto until such time as each party has fully executed
this Amendment (or a counterpart hereto) and delivered the same to the other
party to this Amendment.
IN WITNESS WHEREOF, Borrower and Lender have caused these presents to
be executed in manner and form sufficient to bind them as of the day and year
first above written.
Signed, sealed and delivered
in the presence of:
MAJOR REALTY CORPORATION,
a Delaware corporation
/s/ Xxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxxxx
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Print Name: Xxxxxx Xxxxx Xxxxx X. Xxxxxxxxx, Chairman and
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Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxx
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Print Name: Xxxxxxx X. Xxxxxx (CORPORATE SEAL)
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PNC BANK, KENTUCKY, INC.
/s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx, VP
------------------------------------ ---------------------------------
Print Name: Xxxxx X. Xxxx Xxxxxxx X. Xxxxxx
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Vice President
/s/ Xxxxx X. Soberino
------------------------------------
Print Name: Xxxxx X. Soberino (CORPORATE SEAL)
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