Loading...
HomeMy WebLinkAbout10/18/2022 - Regular1 Vinton Town Council Regular Meeting Council Chambers 311 South Pollard Street Tuesday, October 18, 2022 AGENDA Consideration of: A. 6:00 p.m. - ROLL CALL AND ESTABLISHMENT OF A QUORUM B. MOMENT OF SILENCE C. PLEDGE OF ALLEGIANCE TO THE U. S. FLAG D. UPCOMING COMMUNITY EVENTS/ANNOUNCEMENTS E. REQUESTS TO POSTPONE, ADD TO OR CHANGE THE ORDER OF AGENDA ITEMS F. CONSENT AGENDA 1. Consider adoption of a Resolution appropriating funds in the amount of $3,545.00 for the receipt of an insurance claim made on a Town Vehicle involved in an accident. 2. Consider adoption of a Resolution appropriating $34,266.00, received from the Department of Motor Vehicles, $22,844.00 in Federal funds and the Town’s required in-kind match of $11,422.00 for Overtime Selective Enforcement, training, and equipment 3. Consider adoption of a Resolution appropriating $4,763.00, received from the Department of Criminal Justice Services (DCJS) for necessary equipment for the detectives and training divisions in the Police Department. G. AWARDS, INTRODUCTIONS, PRESENTATIONS, PROCLAMATIONS 1. Vinton Police Department 1st Quarter Report – Chief Drumond 2. Vinton Historical Society/History Museum Annual Report – Randy Layman, President, Vinton Historical Society H. CITIZENS’ COMMENTS AND PETITIONS - This section is reserved for comments and questions for issues not listed on the agenda. Sabrina M. McCarty, Vice Mayor Keith N. Liles, Council Member Laurie J. Mullins, Council Member Michael W. Stovall, Council Member Vinton Municipal Building 311 South Pollard Street Vinton, VA 24179 (540) 983-0607 2 I. BRIEFINGS J. ITEMS REQUIRING ACTION 1. Consider adoption of a Resolution authorizing the Town Manager to execute an amended Performance Agreement between the Town of Vinton, the Roanoke County Economic Development Authority (EDA) and Gish Mill Davii, LLC for the Gish Mill Redevelopment Project – Town Manager 2. Consider adoption of a Resolution granting a Construction Loan in the amount of $1,000,000 and an Industrial Revitalization Loan in the amount of $468,750 to Gish Mill Davii, LLC. as referenced within the amended Local Economic Development Performance Agreement and authorizing the Mayor and/or the Town Manager to execute the necessary documents to complete said loans to Gish Mill Davii, LLC – Town Manager K. TOWN MANAGER’S PROJECT UPDATES/COMMENTS L. REPORTS FROM COMMITTEES 1. Finance Committee – Andrew Keen M. COUNCIL N. MAYOR O. ADJOURNMENT NEXT COMMITTEE/TOWN COUNCIL MEETINGS: October 17, 2022 – 1:00 p.m. – Public Works Committee meeting followed by Economic Development Committee Meeting – TOV Conference Room November 1, 2022 – 6:00 p.m. – Regular Council Meeting – Council Chambers November 7, 2022 – 3:00 p.m. – Finance Committee Meeting – TOV Conference Room NOTICE OF INTENT TO COMPLY WITH THE AMERICANS WITH DISABILITIES ACT. efforts will be made to provide assistance or special arrangements to qualified individuals with disabilities in order to participate in or attend Town Council meetings. Please call (540) 983-0607 at least 48 hours prior to the meeting date so that proper arrangements may be made. Meeting Date October 18, 2022 Department Public Works Issue Consider adoption of a Resolution appropriating funds in the amount of $3,545.00 for the receipt of an insurance claim made on a Town Vehicle involved in an accident. Summary On July 15, 2022 and July 18, 2022, a Dodge Ram pick-up truck incurred damage in the Public Works lot. Two checks totaling $3,545.00 have been received from Virginia Risk Sharing Association (VRSA) and deposited in Revenue Account 200.1901.001 Recoveries and Rebates. This check is for the payment of collision loss less the deductible of $1,000.00 on a 2021 Dodge Ram pickup truck VIN ending 2319. It is necessary to appropriate the $3,545.00 to Public Works, Streets, Highways Maintenance Account 200.4101.304 Maintenance and Repairs – Equipment in order to pay the repair invoices when received. Attachments Resolution Recommendations Motion to adopt Resolution Town Council Agenda Summary RESOLUTION NO. AT A REGULAR MEETING OF THE VINTON TOWN COUNCIL HELD ON TUESDAY, OCTOBER 18, 2022, AT 6:00 P.M., IN THE COUNCIL CHAMBERS OF THE VINTON MUNICIPAL BUILDING, 311 SOUTH POLLARD STREET, VINTON, VIRGINIA WHEREAS, on July 15, 2022 and July 18, 2022, a Dodge Ram pick-up truck incurred damage in the Public Works lot; and WHEREAS, the proper insurance filing was made to the Virginia Risk Sharing Association (VRSA) and the amount less the $1,000.00 deductible has been received into the Revenue Account 200.1901.001– Recoveries and Rebates in the amount of $3,545.00; and WHEREAS, in order that Moon’s Auto Body can be paid when the invoice is received, it is necessary for the Vinton Town Council to appropriate the funds from the Revenue Account 200.1901.001 – Recoveries and Rebates to the Public Works Operating Budget Account Number 200.4101.304 Maintenance and Repair of Equipment. NOW, THEREFORE, BE IT RESOLVED that the Vinton Town Council does hereby approve the following transaction: BUDGET ENTRY GENERAL LEDGER: 200.25100 Appropriations $3,545.00 200.25000 Estimated Revenue $3,545.00 FROM REVENUE: 200.1901.001 Recoveries and Rebates $3,545.00 TO EXPENDITURE: 200.4101.304 Maintenance & Repair of Equipment $3,545.00 This Resolution adopted on motion made by Council Member______ , seconded by Council Member ___________________, with the following votes recorded: AYES: NAYS: APPROVED: Bradley E. Grose, Mayor ATTEST: ______________________________________ Susan N. Johnson, CMC, Town Clerk Meeting Date October 18, 2022 Department Police Issue Consider adoption of a Resolution appropriating $34,266.00, received from the Department of Motor Vehicles, $22,844.00 in Federal funds and the Town’s required in-kind match of $11,422.00 for Overtime Selective Enforcement, training, and equipment. Summary The Department of Criminal Justice Services has approved a grant for the Police Department in the amount of $34,266.00 to include an in-kind match of $11,422.00, to be paid by the Vinton Police Department out of the Fuel and Maintenance and Repair line items. This funding, if approved by Council, will be used to pay officers the overtime rate to work Selective Enforcement in the town and to fund $800.00 in DMV approved training and $5,244.00 to replace two defective equipment. Attachments Resolution Recommendations Motion to adopt Resolution Town Council Agenda Summary 1 RESOLUTION NO. AT A REGULAR MEETING OF THE VINTON TOWN COUNCIL HELD ON TUESDAY, OCTOBER 18, 2020 AT 6:00 PM IN THE COUNCIL CHAMBERS OF THE VINTON MUNICIPAL BUILDING, 311 SOUTH POLLARD STREET, VINTON, VIRGINIA 24179. WHEREAS, in September 2022 the Department of Motor Vehicles (DMV) approved a grant for our participation in the Selective Enforcement-Overtime for the total amount of $34,266.00, to include an in-kind match from the Town in the amount of $11,422.00, to be paid from the current Police Budget under Fuel and Maintenance/Repair budget expenditure accounts; and WHEREAS, the Police Department would use these grant funds for overtime selective enforcement hours and to participate in checkpoints with surrounding jurisdiction, replace two RADAR Eagle 3 units, as well as sending one officer to a DMV approved training; and WHEREAS, the budget for the DMV portion of the grant, in the total amount of $22,844.00, needs to be appropriated to the following account numbers for financial tracking purposes. NOW, THEREFORE, BE IT RESOLVED that the Vinton Town Council does hereby approve the following: BUDGET ENTRY: GENERAL LEDGER: 250.25100 Appropriations $22,844.00 250.25000 Estimated Revenue $22,844.00 FROM REVENUE: 250.1004.001 DMV Overtime Grant Revenue $22,844.00 TO EXPENDITURE: 250.1004.102 DMV Overtime Grant Overtime $ 16,800.00 250.1004.560 DMV Overtime Grant Travel and Training $ 800.00 250.1004.716 DMV Overtime Grant Other Equipment $ 5,244.00 TOTAL $ 22,844.00 This Resolution was adopted on motion made by Council Member , seconded by Council Member , with the following votes recorded: AYES: NAYS: 2 APPROVED: Bradley E. Grose, Mayor ATTEST: __________________________________ Susan N. Johnson, CMC, Town Clerk Meeting Date October 18, 2022 Department Police Issue Consider adoption of a Resolution appropriating $4,763.00, received from the Department of Criminal Justice Services, no match required, for the Local Law Enforcement Block Grant. Summary The Department of Criminal Justice Services has approved a grant for the Police Department in the amount of $4,763.00, no match required. This funding, if approved by Council, will be used to purchase equipment for the Criminal Investigation Division and the Training Division. Attachments Resolution Recommendations Motion to adopt Resolution Town Council Agenda Summary RESOLUTION NO. AT A REGULAR MEETING OF THE VINTON TOWN COUNCIL HELD ON TUESDAY, OCTOBER 18, 2022 AT 6:00 PM IN THE COUNCIL CHAMBERS OF THE VINTON MUNICIPAL BUILDING, 311 SOUTH POLLARD STREET, VINTON, VIRGINIA 24179. WHEREAS, on August 5, 2022 the Department of Criminal Justice Services (DCJS) has approved a grant for the Police Department in the amount of $4,763.00, no match required, to be paid out of the Police Department’s operating budget; and WHEREAS, the Police Department would use these grant funds to purchase necessary equipment for the detectives division and the training division; and WHEREAS, it is necessary for the Vinton Town Council to appropriate the funds from the General Fund Revenue Account in the amount of $4,763.00. NOW, THEREFORE, BE IT RESOLVED that the Vinton Town Council does hereby approve the following accounting transaction: BUDGET ENTRY GENERAL LEDGER: 200.25000 ESTIMATED REVENUE $4,763.00 200.25100 APPROPRIATIONS $4,763.00 FROM REVENUE: 250.1031.001 POL – LOLE FFY21 Grant $4,763.00 TO EXPENDITURE: 250.1031.716 POL – LOLE FFY21 Grant $4,763.00 TOTAL $4,763.00 This Resolution was adopted on motion made by Council Member , seconded by Council Member , with the following votes recorded: AYES: NAYS: APPROVED: Bradley E. Grose, Mayor ATTEST: _______________________________________ Susan N. Johnson, CMC, Town Clerk Meeting Date October 18, 2022 Department Police Issue Vinton Police Department 1st Quarter Report Summary Chief Drumond will present the 1st Quarter (July-August-September) report for the Department Attachments None Recommendations No action required Town Council Agenda Summary Meeting Date October 18, 2022 Department Administration Issue Vinton Historical Society/History Museum Annual Report Summary Randy Layman, President of the Vinton Historical Society, will make this presentation at the meeting. Attachments None Recommendations No action required Town Council Agenda Summary 1 Meeting Date October 18, 2022 Department Administration Issue Consider adoption of a Resolution authorizing the Town Manager to execute an amended Performance Agreement between the Town of Vinton, the Roanoke County Economic Development Authority (EDA) and Gish Mill Davii, LLC for Gish Mill Redevelopment Project Summary The Town of Vinton, in partnership with the Roanoke County Economic Development Authority, has negotiated terms of an amended Performance Agreement with Gish Mill Davii, LLC in order to bridge a funding gap that has developed due to increases in labor, construction materials and interest rate adjustments. The amended agreement is now valued up to $1,927,500 over a ten year period, which is intended to incentivize the redevelopment of the Gish Mill property for the benefit of encouraging the mixed-use commercial, residential and retail development. The original agreement was valued up to $1,378,750. Funding to support the additional $548,750 in incentives are being met by allowing for an additional $80,000 in meals tax collections over the Ten Year Performance and utilizing IRF Loan proceeds ($468,750 + 2.5% interest) that will be returned to the Town by the Company. The Amended Financial Terms of the Agreement include: • A single lump sum payment at closing for public infrastructure, gateway, parking improvements, and related capital investment tasks in the amount of $398,750 • Reimbursement of Utility Connection and System Development Fees paid to the Western Virginia Water Authority by the company, not to exceed $40,000. • Reimbursement of all Building Permitting Fees paid to Roanoke County by the company, not to exceed $20,000. Town Council Agenda Summary 2 • A Construction Loan to the company paid in five equal quarterly installments during construction as an inducement to the company to achieve and maintain the targets set out in the Agreement. The maximum amount of the Construction Loan shall be $1,000,000. • Providing a $468,750 Industrial Redevelopment Loan (IRF) that is being funded by a grant to the Town from DHCD. The Amended Performance Terms of the Agreement include: • A minimum total investment of $3,600,000. • Creation and maintaining at least 24 new jobs for 10 years. • Generating and paying at least $48,000 annually in meals taxes to the Town for 10 years. • Repayment of the IRF loan in full to the Town with interest. Council adopted a Resolution authorizing the Town Manager to execute the previous version of the Performance Agreement at their meeting on June 1, 2021 and the Roanoke County EDA unanimously approved of that same drafted Agreement at their meeting on May 19, 2021. Attachments Amended Performance Agreement Resolution Recommendations Motion to adopt Resolution {00488423.DOCX } 1 LOCAL ECONOMIC DEVELOPMENT PERFORMANCE AGREEMENT This Performance Agreement (“Agreement”) is made and entered into this ___ day of October, 2022, by, between, and among the Town of Vinton, Virginia, a municipality in the Commonwealth of Virginia (the “Town”), the Economic Development Authority of Roanoke County, Virginia, a political subdivision of the Commonwealth of Virginia created under the Industrial Development and Revenue Bond Act (the “Authority”), and Gish Mill Davii, LLC, a limited liability company validly organized and existing under the laws of the Commonwealth of Virginia (the “Company”). Collectively, the Town, Authority, and Company may be referred to herein as the “Parties.” RECITALS: WHEREAS, the Company has entered into a Contract of Sale with the Town of Vinton dated April 8, 2020, to acquire certain real property, together with all improvements thereon and all rights and appurtenances thereunto pertaining, located in the County of Roanoke, Virginia, Parcels ID 060.11-04-22.00-0000 (350 Gus Nicks Blvd) and 060.11-04- 23.00-0000 (0 Gus Nicks Blvd), and located in the City of Roanoke, Virginia, Parcel ID 3410617 (0 Brook St. NE); and commonly known as Gish Mill (collectively the “Property”); and WHEREAS, the Company intends to renovate the Property and lease it to Tenants, and the Company directly, or indirectly through its Tenants, will make a significant Capital Investment, as hereinafter defined, in the Town, will create and maintain a significant number of New Jobs, as hereinafter defined, in the Town, and will collect and remit to the Town Meals Tax Revenue, as hereinafter defined (the “Project”); and WHEREAS, the Town and the Authority recognize that the Company’s renovation and leasing of the Property will promote economic development in the Town and provide additional tax revenue, employment opportunities, and contribute to the vitality of the area; and WHEREAS, the Town is willing to provide funds to the Authority for the Authority to provide a Local Economic Development Incentive Grant (the “Local Grant”) and a Construction Loan (the “Construction Loan”) to the Company for the purpose of inducing the Company to renovate the Property for use by Tenants and Tenants’ customers, thereby directly and indirectly making a significant Capital Investment in the Town, creating and maintaining a significant number of New Jobs in the Town, and generating Meals Tax Revenue in the Town; and WHEREAS, the Virginia Department of Housing & Community Development (the “DHCD”) awarded to the Town of Vinton an Industrial Revitalization Fund grant (“IRF Grant”) in the amount of $468,750 for ultimate use by the Company to renovate the Property into the finished Project as described herein; and {00488423.DOCX } 2 WHEREAS, on June 9, 2021, the Town entered into an agreement with the DHCD for the IRF Grant with the understanding that the Authority will act as a pass-through entity for the IRF Grant in the form of a Loan to allow the Company to undertake and complete the Project on the Property; and WHEREAS, the Town is willing to provide the IRF Grant funds to the Authority for the Authority to provide a Loan to the Company (the “IRF Loan”) as per terms of the Loan Agreement for the purpose of the Company to renovate the Property for use by Tenants and Tenants’ customers, thereby directly and indirectly making a significant Capital Investment in the Town, creating and maintaining a significant number of New Jobs in the Town, and generating Meals Tax Revenue in the Town; and WHEREAS, as the Loan is repaid by the Company to the Authority, the Authority will pay the funds to the Town so the Town may use the funds on future redevelopment projects; and WHEREAS, the acquisition, renovation, and development of the Property will require a Capital Investment by the Company and its Tenants of at least $3,600,000, inclusive of the Local Grant and IRF Loan provided pursuant to this Agreement; and WHEREAS, the Company and its Tenants will create and maintain at least 24 full- time equivalent New Jobs; and WHEREAS, the stimulation of additional tax revenue and economic activity to be generated by the Capital Investment, New Jobs and Meals Tax Revenue constitute valid public purposes for the expenditure of public funds and is the animating purpose for the Local Grant and the IRF Loan. WITNESSETH: NOW THEREFORE, in consideration of the foregoing premises, the mutual benefits, promises, and undertakings of the parties to this Agreement as set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do covenant and agree as follows: I. Definitions. For the purposes of this Agreement, the following terms shall have the following definitions, unless the context or manifest purpose of this Agreement indicate otherwise: Capital Investment means an expenditure by the Company directly or indirectly through its Tenants, in an amount not less than $3,600,000 for the renovation of the Property, including engineering, architectural, developer and legal fees, closing costs, fees associated with obtaining historic tax credits, building construction costs, and furniture, fixtures and equipment, all of which must be incurred and paid no later than the Capital Investment Performance Date. {00488423.DOCX } 3 Construction Performance Period means the period of time during which the Company constructs or has constructed renovations to the Property, which period shall commence no later than March, 31, 2023 and shall end no later than December 31, 2024. Lease means the lease of the leasable space within the building located on the Property to one or more Tenants of the Company. The Company must Lease at least 33% of the leasable space in the building to Tenants no later than the Leased Premises Performance Date. Maintain means that the New Jobs created pursuant to this Agreement with the assistance of the Local Grant and IRF Loan will continue without interruption from the Job Creation Performance Date through the Job Maintenance Performance Date. New Jobs means new permanent full-time equivalent employment of an indefinite duration at the Property for which the Company or its Tenant pays an average hourly wage of at least $10.00. Each New Job must require a minimum of either (i) 35 hours per week of an employee’s time for the Tenant’s normal year, which “normal year” must consist of at least 48 weeks, or (ii) 1,680 hours per year. Part-time positions may be aggregated to equal a full-time equivalent position. Seasonal or temporary positions with construction contractors, vendors, suppliers, and similar multiplier or spin-off jobs shall not qualify as New Jobs. All New Jobs must be created no later than the Job Creation Performance Date and Maintained through the Job Maintenance Performance Date. Meals Tax Revenue means the annual amount of tax revenue collected by the Town of Vinton on meals purchased from the Company and/or its Tenants under Article V, Tax on Prepared Food and Beverages, of Chapter 86 of the Vinton Town Code, as amended. Performance Date means, for each respective Target, the following: a. Capital Investment Performance Date – the date on which Company or any of its Tenants makes its first taxable sale of food and/or beverages (the “Opening Date”), which date shall be no later than December 31, 2024, b. Leased Premises Performance Date – the Opening Date, which date shall be no later than December, 31, 2024, c. Job Creation Performance Date – the Opening Date, which date shall be no later than December 31, 2024 , d. Job Maintenance Performance Date – that date which is ten (10) years after the Opening Date, which date shall be no later than December, 31, 2034, and {00488423.DOCX } 4 e. Meals Tax Revenue Performance Date – that date which is ten (10) years after the Opening Date, which date shall be no later than December, 31, 2034. If the Town Manager deems that good faith and reasonable efforts have been made and are being made by the Company and its Tenants to achieve the Target(s) by the respective Performance Date, the Town may, in its sole discretion, extend any or all of the Performance Dates by up to 12 months. If any Performance Date is extended, the Town shall send written notice of the extension to the Authority and the Company and the date to which any Performance Date has been extended shall become the new “Performance Date” for the Target that is the subject of the extended Performance Date. Any extension of any Performance Date shall have the effect of extending any deadline in any of the Transaction Documents (as defined below) that are tied Performance Date that has been extended. Target means the Company’s obligations pursuant to this Agreement to: (i) make directly, or indirectly through its Tenants, Capital Investments in the Property of at least $3,600,000; (ii) Lease at least 33% of leasable space within the building located on the Property to Tenants; (iii) create directly, or indirectly through its Tenants, at least 24 New Jobs at the Property; (iv) Maintain directly, or indirectly through its Tenants, at least 24 New Jobs at the Property; and (v) annually collect and remit to the Town a minimum of $48,000 in Meals Tax Revenue from the Property, all as of the respective Performance Dates. Tenants mean the entity or entities that Lease all or portions of the Property, make Capital Investments in the Property, create and Maintain New Jobs at the Property, and collect and remit to the Town Meals Tax Revenue from the Property. The Company shall be credited for any Capital Investment at the Property made by Tenants as of the Capital Investment Performance Date, any New Jobs at the Property created by Tenants as of the Job Creation Performance Date, any New Jobs Maintained at the Property by Tenants as of the Job Maintenance Performance Date, and any Meals Tax Revenue collected by Tenants at the Property and remitted to the Town by the Meals Tax Revenue Performance Date. Transaction Documents mean: (i) this Agreement; (ii) the Contract of Sale; (iii) the Construction Loan Agreement; (iv) the Construction Loan Promissory Note; (v) the Construction Loan Deed of Trust; (vi) the IRF Loan Agreement; (vii) the IRF Loan Promissory Note; (viii) the Restriction Agreement; and (ix) the IRF Loan Deed of Trust. Year, for the purposes of this Agreement, means any 12 month period commencing on the Opening Date, or anniversary of the Opening Date. II. Targets. The Company will, directly or indirectly through its Tenants, make a Capital Investment of not less than $3,600,000 in the Property by the Capital Investment Performance Date. The development must be undertaken pursuant to plan presented to {00488423.DOCX } 5 and approved by the Town, provided that such approval by the Town shall not be unreasonably withheld, conditioned, or delayed. The Company will Lease at least 33% of the leasable space within the building located on the Property to Tenants by the Leased Premises Performance Date. The Company will, directly or indirectly through its Tenants, create 24 New Jobs at the Property by the Job Creation Performance Date. The Company will, directly or indirectly through its Tenants, Maintain 24 Jobs at the Property from the Job Creation Performance Date through the Job Maintenance Performance Date. On each anniversary of the Job Creation Performance Date, until the Job Maintenance Performance Date, the Company will annually report to the Town and the Authority whether it has continued to Maintain, directly or indirectly through its Tenants, 24 New Jobs at the Property. The Company will, directly or indirectly through its Tenants, collect from the Property and remit to the Town a minimum of $48,000 annually in Meals Tax Revenue beginning on the Opening Date and continuing each year until the Meals Tax Revenue Performance Date. Annual Construction Loan advances under Section IV of this Agreement will be reduced by the difference between $48,000 and the amount of Meals Tax Revenue actually collected and remitted to the Town in any Year. For example, if the Company directly, or indirectly through its Tenants, collects and remits $40,000 in Meals Tax Revenue in any Year, then its next ensuing annual Construction Loan payment will be reduced by $8,000. III. Local Grant. The Local Grant will be paid by the Authority to the Company in installments as an inducement to the Company to achieve and Maintain the Targets. The Town will provide the funds to the Authority for the purpose of making the Local Grant as set forth herein. The Company shall use the Local Grant proceeds only for expenses directly related to achieving and Maintaining the Targets, and for no other purpose. The maximum amount of the Local Grant shall be $458,750.00 Upon receipt of the Local Grant proceeds from the Town, the Authority shall disburse the Grant proceeds in multiple payments to the Company as follows: A. Payment at Closing: At the time the Town and Company close on the conveyance of the Property under the April 8, 2020 Contract of Sale, the Town will pay to the Authority and the Authority will pay to the Company a single lump sum grant for public infrastructure, parking improvements, closing costs, and related capital investment tasks necessary for closing in the amount not to exceed $398,750. B. Payment Upon Tenant Opening: When the Property’s first Tenant opens for business, the Town will pay to the Authority and the Authority will pay to the Company a grant equal to the amount of all the Permitting and Utility Connection Fees paid to the {00488423.DOCX } 6 Western Virginia Water Authority (WWVA) by the Company and/or its Tenants, which grant amount will not exceed $40,000; and the Town will pay to the Authority and the Authority will pay to the Company a grant equal to the amount of Building Permitting Fees paid to the County by the Company and/or its Tenants, which grant amount will not exceed $20,000. The total amount granted to Company for permitting and connections fees shall not exceed $60,000. C. Within 30 days of its receipt of any of the foregoing Local Grant proceeds from the Town, the Authority will disburse such Local Grant proceeds to the Company. IV. Construction Loan. The Construction Loan will be advanced by the Authority to the Company in multiple installments as an inducement to the Company to achieve and Maintain the Targets. The Town will provide the funds to the Authority for the purpose of making the Construction Loan as set forth herein. Within 30 days of its receipt of the foregoing Construction Loan proceeds from the Town, the Authority will loan such Construction Loan proceeds to the Company. The Company shall use the Construction Loan proceeds only for expenses directly related to achieving and Maintaining the Targets, and for no other purpose. The maximum amount of the Construction Loan shall be $1,000,000. A. Loan advances during Construction Performance period: Commencing on the construction start date, which shall be no later than May 1, 2023, the Town will pay to the Authority and the Authority will loan to the Company in five installments, each in the amount of $200,000, upon the Company’s delivery to the Town and the Authority of notice and evidence satisfactory to the Town and the Authority of the Company’s achieving the following construction milestones: 1. On or before May 1, 2023, the Company shall provide notice and evidence reasonably satisfactory to the Town and the Authority that construction has commenced on the Property. In addition to such other evidence as the Town and/or Authority may request, the Company must provide to the Town and Authority with a copy of a building permit issued by the appropriate authority for renovations to the Property, a certificate from the architect of record on the Project that construction has commenced on renovations to the Property, and other evidence that contractors and subcontractors have mobilized and actually begun to perform renovations to the Property. 2. On or after June 31, 2023, the Company shall provide notice and evidence reasonably satisfactory to the Town and the Authority that 25% of the total construction has been completed for the Project. In addition to such other evidence as the Town and/or Authority may request, the Company must provide to the Town and Authority with a certificate from the architect of record on the Project that 25% of the total construction on the Project has been completed and evidence of progress payments to the general contractor in the approximate amount of 25% of the total contract price. {00488423.DOCX } 7 3. On or after September 31, 2023, the Company shall provide notice and evidence reasonably satisfactory to the Town and the Authority that 50% of the total construction has been completed for the Project. In addition to such other evidence as the Town and/or Authority may request, the Company must provide to the Town and Authority with a certificate from the architect of record on the Project that 50% of the total construction on the Project has been completed and evidence of progress payments to the general contractor in the approximate amount of 50% of the total contract price. 4. On or after December 31, 2023, the Company shall provide notice and evidence reasonably satisfactory to the Town and the Authority that 75% of the total construction has been completed for the Project. In addition to such other evidence as the Town and/or Authority may request, the Company must provide to the Town and Authority with a certificate from the architect of record on the Project that 75% of the total construction on the Project has been completed and evidence of progress payments to the general contractor in the approximate amount of 75% of the total contract price. 5. On or before the Opening Date, the Company shall provide notice and evidence reasonably satisfactory to the Town and the Authority that construction on the Project has been completed. In addition to such other evidence as the Town and/or Authority may request, the Company must provide to the Town and Authority with a copy of a Certificate of Occupancy issued by the Roanoke County Office of Building Safety for the Property, a certificate from the architect of record on the Project that construction has been completed on renovations to the Property, and evidence of progress payments to the general contractor in the approximate amount of 100% of the total contract price. B. The Construction Loan shall be subject to the terms and conditions of the Construction Loan Agreement and the Construction Loan Promissory Note among the Town, the Authority and the Company. Interest shall accrue at a rate of zero percent (0%) per annum from the date of the initial advance under the Construction Loan as set out in Section IV.A.1. above to the twentieth (20th) anniversary of the Opening Date. Interest shall begin to accrue on the Construction Loan’s outstanding principal balance on the first day following the twentieth (20th) anniversary of the Opening Date at a rate of two and one half per centum (2.5%) per annum. To secure the repayment of the Construction Loan, the Company shall execute a Deed of Trust on the Property in substantially the same form attached hereto, which shall be the same Deed of Trust that secures repayment by the Company of the IRF Loan. The Company shall cooperate as needed in the preparation, execution and recording of the Construction Loan Agreement, the Construction Loan Promissory Note, and the Construction Loan Deed of Trust. C. The Town and Authority shall forgive the outstanding amount of the Construction Loan as of the tenth (10th) anniversary of the Opening Date, provided the Company has achieved and Maintained all Targets as required in this Agreement, and further provided that the Construction Loan forgiveness shall not apply to any Penalties owed by the Company to the Town and/or the Authority under Section V of this {00488423.DOCX } 8 Agreement. If the Company fails to achieve and/or Maintain any Target as set out in Section V, then the amount of the Construction Loan subject to the Penalty (as calculated in Section V) shall be immediately due and payable to the Town or the Authority upon the demand of either the Town or the Authority. D. Any material breach of the Construction Loan Agreement, the Construction Loan Promissory Note, and/or Construction Loan Deed of Trust will constitute a material breach of this Agreement. E. Nothing herein will limit the Town’s or Authority’s ability to enforce all other available rights and remedies it may have at law or in equity in the event the Company defaults on any of its obligations under any of the Transaction Documents, including without limitation the right to foreclose on the Construction Loan Deed of Trust. F. In the event the Authority forecloses on the Deed of Trust under this Section, the provisions of Section VI requiring the Town to pay the Authority’s fees and costs associated with such foreclosure action shall apply. In addition, the provisions of Section VI requiring the Company to reimburse, indemnify and hold the Town harmless for all fees incurred by the Authority and/or Town in such foreclosure action shall apply. V. Targets; Failure to Maintain Targets; Resulting Penalties. A. Commencing on the Opening Date and continuing for ten (10) consecutive years thereafter, the Company shall deliver to the Town and the Authority notice and evidence satisfactory of the Company’s achieving and Maintaining the Targets as follows: 1. On or before the Opening Date, the Company shall provide notice and evidence reasonably satisfactory to the Town and the Authority of the amount of Capital Investment that it has made at the Property, either directly or indirectly through its Tenants. 2. On or before the Opening Date, the Company shall provide notice and evidence reasonably satisfactory to the Town and the Authority of the Leases that have been executed for the Property, including the aggregate percentage of the Property that is under Lease, the Tenants under the Leases, and the durations of the Leases. 3. On or before the Opening Date, the Company shall provide notice and evidence reasonably satisfactory to the Town and the Authority of the number of New Jobs that it has created at the Property, either directly or indirectly through its Tenants. 4. On or before each anniversary of the Opening Date, until the Job Maintenance Performance Date, the Company shall provide notice and evidence reasonably satisfactory to the Town and the Authority that it has, either directly or {00488423.DOCX } 9 indirectly through its Tenants, Maintained 24 New Jobs at the Property from the Job Creation Performance Date through the date of the notice and evidence. 5. On or before each anniversary of the Opening Date, until the Meals Tax Revenue Performance Date, the Company shall provide notice and evidence reasonably satisfactory to the Town and the Authority of the amount of Meals Tax Revenue it has collected from the Property and remitted to the Town, either directly or indirectly through its Tenants. 6. All of the foregoing evidence will be subject to verification by the Town and the Authority, and the Town and Authority reserve the right to request additional information from the Company as necessary for such verification. The Company will be solely responsible for obtaining from Tenants and delivering to the Town and Authority any and all information needed to verify the Targets. The Company shall be liable to the Town and the Authority for Penalties if, at any time, it: (i) fails to timely achieve any Target required under this Agreement by the respective Performance Date; (ii) fails to timely provide the Town and Authority with notice and evidence reasonably satisfactory to the Town and the Authority that demonstrates that the Company has, directly or indirectly through its Tenants, achieved and Maintained the Targets as of the respective Performance Date; (iii) transfers or conveys, or attempts to transfer or convey, fee simple ownership of all or any portion of the Property to any entity without the prior consent of the Town and the Authority; or (iv) breaches any other provision of any Transaction Document which breach is not cured within thirty (30) days of written notice of such breach to the Company from either the Town or the Authority. Any year in which the Company fails to achieve or Maintain a Target by the respective Target Performance Date shall result in a Penalty equal to a percentage equal to the difference between any individual target and the actual performance figure achieved by the Company multiplied by one-tenth (1/10th) of the amount Construction Loan, which amount shall be excluded from the loan forgiveness that otherwise would have applied to that amount of the Construction Loan under Section IV.C. of this Agreement. Penalties shall be payable upon demand from the Town or the Authority, and the Town or Authority may exercise all available rights or remedies to recover the amount of any Penalties, including without limitation the right to foreclose on the Deed of Trust and/or demand payment under any unconditional guaranty. VI. IRF Loan. Upon receipt of the proceeds of the IRF Grant, the Town will provide the IRF Grant funds to the Authority and the Authority will loan those funds to the Company pursuant to the IRF Loan. The Town is responsible for undertaking any budgetary, appropriation, or other necessary financial or legal actions to effect this transfer. Upon closing of the transfer of the proceeds of the IRF Loan to the Company, the Authority and the Town shall execute and record the Restriction Agreement and the IRF Loan Deed of Trust on the Property in substantially the form as attached hereto in the documents entitled “Restriction Agreement” and “IRF Loan Deed of Trust.” The Company {00488423.DOCX } 10 shall cooperate as needed in the preparation, execution and recording of the foregoing documents; provided, however, the Town shall bear the expense of recording. Terms of the IRF Loan are subject to the IRF Loan Agreement and the IRF Loan Promissory Note among the Town, the Authority and the Company. In the event the Company defaults on its obligations under the IRF Loan Agreement and/or the IRF Loan Promissory Note, the Authority will, in consultation with the Town, give notice to the Company of its repayment obligations. In the event that the Company is unwilling or unable to repay its obligations and upon request of the Authority, the Town will provide legal counsel to the Authority and all reasonable attorney’s fees and costs of collection, for the purpose of enforcing the IRF Loan Agreement and/or the IRF Promissory Note. Further, the Town agrees to reimburse the Authority for its costs in any action and any expenses caused to enforce the IRF Loan Agreement. In the event the Company defaults on its obligations under the Restriction Agreement such that Section 3 of the Restriction Agreement is triggered, the Authority will, in consultation with the Town and DHCD, promptly calculate the Company’s liability and give notice to the Company of its accelerated repayment obligations. In the event that the Company is unwilling or unable to repay its obligations and upon request of the Authority, the Town will provide legal counsel to the Authority and all reasonable attorney’s fees and costs of collection, for the purpose of enforcing the Restriction Agreement in accordance with Section 3 thereof. Further, the Town agrees to reimburse the Authority for its costs in any action and any expenses caused by DHCD’s effort to enforce the Restriction Agreement. Any reasonable amount the Town is required to pay for attorney’s fees and costs on behalf of the Authority under either of the preceding paragraphs shall be for the Company’s account, and the Company shall pay such amount to the Town upon written demand. The Company shall indemnify and hold the Town harmless for all such amounts. Any material breach of the IRF Loan Agreement, the IRF Loan Promissory Note, the Restriction Agreement, and/or the IRF Loan Deed of Trust will constitute a material breach of this Agreement. Nothing herein will limit the Town’s or Authority’s ability to enforce all other available rights and remedies it may have at law or in equity in the event the Company defaults on any of its obligations under any of the Transaction Documents, including without limitation the right to foreclose on the IRF Loan Deed of Trust. VII. Reporting. The Company shall annually provide, at the Company’s expense, detailed verification reasonably satisfactory to the Town and the Authority of the Company’s progress on the Targets. For the purposes of verifying the accuracy of reports, and for no other purpose, the Company hereby waives its protections under Section 58.1-3 of the Code of Virginia, 1950, as amended, and authorizes the Commissioner of the Revenue {00488423.DOCX } 11 for Roanoke County, Virginia, to provide verification to the Town and the Authority from her records; provided, however, that such disclosure shall not waive the protections of § 58.1-3 as to any other person, nor authorize the Town or the Authority to disclose such information to any other person. The Company will be solely responsible for obtaining and providing detailed verification reasonably satisfactory to the Town and the Authority of Capital Investment made by Tenants to be credited towards the Company’s Capital Investment obligation and New Jobs created and Maintained by Tenants to be credited towards the Company’s New Jobs obligation VIII. Repayment; Forfeiture. The Company will forfeit future annual Local Grant payments and installments under the Construction Loan if it fails to achieve and Maintain the required number of New Jobs from the Job Creation Performance Date through the Job Maintenance Performance Date. The Company’s failure to Maintain the required number of New Jobs shall not require the repayment of any prior Local Grant payments; however, it will require the repayment of a percentage of prior Construction Loan installments as provided in Section V. The Company’s failure to collect and remit to the Town a minimum of $48,000 in Meals Tax Revenue annually will result in an equal reduction in the amount of annual Construction Loan payments. IX. Notices. Any notices required or permitted to be given under this Agreement shall be given in writing, and shall be deemed to be received upon receipt or refusal after mailing of same in the United States by First-Class U.S. Mail, certified, postage prepaid, or by customary commercial overnight courier (refusal shall mean return of certified mail or overnight courier package not accepted by addressee): GISH MILL DAVII, LLC. 120 Campbell Avenue, SW Roanoke, VA 24011 SPIGLE, MASSEY & CLAY, PLC 8166 Roanoke Road Fincastle, VA 24090 Attn: David Spigle With an additional copy to: David B. Trinkle 2509 Crystal Spring Avenue SW Roanoke, VA 24014 ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA 5204 Bernard Drive, Room 421 Roanoke, Virginia 24018 ROANOKE COUNTY ATTORNEY’S OFFICE 5204 Bernard Drive Fourth Floor Roanoke, Virginia 24018 {00488423.DOCX } 12 If to the County, to: TOWN OF VINTON, VIRGINIA 311 Pollard Street Vinton, Virginia 24179 Attn: Richard W. Peters, Jr., Town Manager With a copy to: TOWN ATTORNEY Guynn, Waddell, Carroll & Lockaby, P.C. 415 South College Avenue Salem, Virginia 24153 Attn: Jeremy E. Carroll The addresses set forth in this section only may be amended by sending written notice to all other parties of a change of address, without need of signed amendment to this Agreement. X. Miscellaneous. Indemnity. The Company agrees to indemnify, defend, and hold the Authority, the Town, and their officers, directors, and employees, free and harmless for and from any and all claims, causes of action, damages or any liability of any type, including reasonable attorneys’ fees, on account of any claims by or any injury or damage to any persons or property growing out of or directly or indirectly resulting or arising in any way out of any negligent, reckless or willful errors, actions, omissions or activities of the Company or its agents, employees or representatives arising out of or connected in any way to any of the matters involved in this Agreement or its performance or non-performance, including without limitation the Company’s performance or failure to perform under any of the Transaction Documents. Integration. This Agreement, including the documents referenced herein, constitutes the full and complete understanding of the Parties respecting its subject matter, and any prior or contemporaneous agreements or understandings, written or oral, are hereby merged into and superseded by the provisions of this Agreement. This Agreement may only be amended or supplemented by a subsequent writing of equal dignity except where expressly set forth herein. This Agreement may not be assigned by a Party without the prior written consent of the other Parties. No covenants of officials. No covenant, agreement or obligation contained in this Agreement shall be deemed to be a covenant, agreement or obligation of any present or future director, officer, employee or agent of the Authority or the Town in his or her individual capacity, and neither Town officials nor the directors of the Authority nor any officer, employee or agent thereof executing this Agreement or any related instrument shall be liable personally on this Agreement or such instrument or be subject to any personal liability or accountability by reason of the execution and delivery thereof. No director, officer, employee or agent of the Authority or the Town shall incur any personal liability with respect to any other action taken by him or her pursuant to this Agreement or the Industrial Development and Revenue Bond Act or any of the transactions contemplated hereby or thereby, provided he acts in good faith. Not a pledge of full faith and credit. Any obligation of the Town to pay, set aside, or otherwise appropriate funds for performance of this Agreement shall be construed to {00488423.DOCX } 13 be subject to appropriation, and shall not be construed to be in derogation of Article VII § 10 of the Virginia Constitution. THE OBLIGATIONS OF THE AUTHORITY UNDER THIS AGREEMENT ARE NOT GENERAL OBLIGATIONS OF THE AUTHORITY BUT ARE LIMITED OBLIGATIONS PAYABLE SOLELY FROM THE REVENUES AND RECEIPTS DERIVED BY THE AUTHORITY FROM THE TOWN PURSUANT TO THIS AGREEMENT. THE OBLIGATIONS OF THE AUTHORITY AND THE TOWN HEREUNDER SHALL NOT BE DEEMED TO CONSTITUTE A DEBT OR A PLEDGE OF THE FAITH AND CREDIT OF THE COMMONWEALTH OF VIRGINIA OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE AUTHORITY AND THE TOWN. Rule of construction for dates. If any action is required to be performed, or if any notice, consent or other communication is given, on a day that is a Saturday or Sunday or a legal holiday in the Commonwealth of Virginia, such performance shall be deemed to be required, and such notice, consent or other communication shall be deemed to be given, on the first business day following such Saturday, Sunday or legal holiday. Unless otherwise specified herein, all references in this Agreement to a “day” or “days” shall refer to calendar days and not business days. Choice of law; Forum Selection. This Agreement shall be construed according to the laws of the Commonwealth of Virginia without regard to its principles of conflicts of laws. The Parties consent to exclusive venue and jurisdiction in any state court of competent jurisdiction in Roanoke County, Virginia or the United States District Court for the Western District of Virginia, Roanoke Division. Attorneys’ fees. The Parties agree that, except as specifically provided in this Agreement, if any Party pursues legal action to enforce the terms of this Agreement, the American Rule shall apply and each Party shall bear its own attorneys’ fees and expert costs and no fee shifting shall occur. Drafter & Severability. This Agreement has been jointly drafted by the Parties, and is to be construed as jointly drafted and not be construed against any of the Parties as the drafter. This Agreement is severable, and if any provision is found to be invalid by any court of competent jurisdiction, the remainder shall survive. The section and paragraph headings in this Agreement are for convenience of reference only and do not modify or restrict any provisions hereof and shall not be used to construe any provisions of this Agreement. Covenant of Authority. All Parties warrant that the signatories below have full authority, and have undertaken such legal actions as may be necessary to ensure such authority, to bind the entities of which they are representatives to the full extent permitted by law. Company agrees that, during the term of this Agreement, it shall not allow its existence to lapse or its authorization to transact business in the Commonwealth of Virginia to be revoked or cancelled at any time. This Agreement may be executed by facsimile, electronic or original signature of the parties and in counterparts which, assuming no modification or alteration, shall constitute an original and when taken together, shall constitute one and the same instrument. {00488423.DOCX } 14 Time of the Essence. Time is of the essence of all obligations set forth herein for which a time is stated. However, whenever a period of time is provided in this Agreement for the Company or Town to do or perform any act or thing, the Company or Town, as the case may be, shall not be liable or responsible for any delays due to strikes, lockouts, casualties, acts of God, war, governmental regulation or control, pandemics or other causes beyond the reasonable control of Company or Town, as the case may be, and in any such event said time period shall be extended for the amount of time the Company or Town is so delayed. Waiver. The failure of any Party to this Agreement to insist upon strict compliance with any term herein shall not be construed to be a waiver of that requirement. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies upon any person, other than the Parties hereto and, subject to the restrictions on assignment herein contained, their respective successors and assigns. Assignment of Agreement. Any obligation under this Agreement may be assigned to a third party with the prior written consent of all Parties and upon such terms as may be set forth in such consents. Any such assignment, however, shall not relieve the Company from any of its obligations under this Agreement. Town Attorney approval. This Agreement has been approved as to form by the Town Attorney of the Town of Vinton, Virginia. Any amendment that is not approved as to form by the Town Attorney is void and of no force and effect. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be construed to be an original and production of all of which shall not be necessary to prove the contents of this Agreement. IN WITNESS WHEREOF, see the following signatures, of even date herewith: [SIGNATURES ON FOLLOWING PAGE] {00488423.DOCX } 15 TOWN OF VINTON, VIRGINIA: Richard W. Peters, Jr. Town Manager Approved as to legal form: Jeremy E. Carroll Town Attorney ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA Linwood P. Windley Chair Approved as to legal form: ____________________________ Peter S. Lubeck Roanoke County Attorney, as Counsel for the EDA GISH MILL DAVII, LLC By: David P. Hill, Member _________________________________ By: David B. Trinkle, Member 1 RESOLUTION NO. AT A REGULAR MEETING OF THE VINTON TOWN COUNCIL, HELD ON TUESDAY, OCTOBER 18, 2022, AT 6:00 P.M. IN THE COUNCIL CHAMBERS OF THE VINTON MUNICIPAL BUILDING, 311 SOUTH POLLARD STREET, VINTON, VIRGINIA. WHEREAS, on April 7, 2020, Council adopted Resolution No. 2350 authorizing a Contract of Sale with Gish Mill Davii, LLC., to acquire the historic Gish Mill property located in the Town of Vinton and has submitted plans to redevelop the property into a mixed- use commercial, residential and retail development to be known as the Gish Mill Redevelopment Project; and WHEREAS, Gish Mill Davii LLC., has agreed to improve the Mill (Tax Map ID: 060.11-04- 22.00-0000, 060.11-04-23.00-0000 and 3410617) at an anticipated investment of $3,600,000 for the purpose of developing approximately 14,000 square feet of move- in ready leasable space suitable for a restaurant, commercial storefront and residential and/or lodging; and WHEREAS, Gish Mill Davii, LLC., has reached terms for a lease with its first tenant that has submitted plans to open a full-service restaurant; and WHEREAS, Gish Mill Davii, LLC., has agreed to improve the parking lot with landscaping, lighting and a new asphalt surface for the purpose of providing dedicated parking for the Gish Mill Redevelopment Project; and WHEREAS, Gish Mill Davii, LLC., will invest a minimum of $3,600,000 towards the property redevelopment and is anticipated to generate new and increased tax revenues for the Town of Vinton and Roanoke County in excess of $165,000 annually and generate at least 24 full-time equivalent (FTE) employment opportunities; and WHEREAS, during the negotiations and discussions between Town staff, representatives of Roanoke County Economic Development Authority and the Town Attorney, an amended Performance Agreement was negotiated to provide Gish Mill Davii, LLC., with an Economic Development Incentive Grant and a Construction Loan to encourage the project development not to exceed $1,458,750 over a 10-year term; and WHEREAS, Council finds that the amended Performance Agreement and related loan documents will serve the public purpose of stimulating economic development, increase tax revenues and employment in the Town; and WHEREAS, the Roanoke County Board of Supervisors approved a Memorandum of Understanding (MOU) with the Town of Vinton to provide funding assistance to the Town in the amount of $220,000, that will be paid in annual installments over a five (5) year period and with the annual payments being based on the total net tax revenue generated by Roanoke County and permitting fees generated as a result of the Gish Mill redevelopment project; and 2 WHEREAS, the Town has secured $250,000 from the Department of Historic Resources for the repair and stabilization of the historic structure and adjacent streambank; and WHEREAS, the Town has secured a grant from the Department of Housing and Community Development in the amount of $468,750 through the Industrial Revitalization Fund that will be issued to Gish Mill Davii, LLC., in the form of a loan; and WHEREAS, on June 1, 2021, Council adopted Resolution No. 2432 authorizing the Town Manager to execute the previous version of the Performance Agreement , and the Roanoke County EDA unanimously approved of that same drafted Agreement at their meeting on May 19, 2021; and WHEREAS, Town staff recommends that said amended Performance Agreement between the Town, Roanoke County Economic Development Authority and Gish Mill Davii, LLC., be executed to formalize said agreement between the parties. NOW, THEREFORE, BE IT RESOLVED, BY THE COUNCIL OF THE TOWN OF VINTON, VIRGINIA, AS FOLLOWS: 1. The amended Performance Agreement is hereby approved in a form substantially similar to the one presented to Council and approved by the Town Attorney. 2. The Town Manager is hereby authorized, for and on behalf of the Town, to execute and then to deliver the amended Performance Agreement and any other necessary documents in furtherance of the same. BE IT FURTHER RESOLVED that the Vinton Town Council does hereby approve the budget transaction as shown on the attached. This Resolution adopted on motion made by Council Member _________________, seconded by Council Member _____________________with the following votes recorded: AYES: NAYS: APPROVED: ___________________________________ Bradley E. Grose, Mayor ATTEST: ___________________________________ Susan N. Johnson, CMC, Town Clerk GENERAL LEDGER GL Account Description Debit Credit 200.25100 Appropriations 119,508.00       200.25000 Estimated Revenue 119,508.00       MOVE FUNDS TO: GL Account Description 200.9950.905 Transfer to Capital Fund 119,508.00       119,508.00       MOVE FUNDS FROM: GL Account Description 200.1899.008 Re‐Appropriated Fund Balance 44,508.00         200.1901.001 Recoveries and Rebates 75,000.00         119,508.00       GENERAL LEDGER GL Account Description Debit Credit 400.25100 Appropriations 119,508.00       400.25000 Estimated Revenue 119,508.00       MOVE FUNDS TO: GL Account Description 400.8150.724 Gish Mill Delivery 119,508.00       119,508.00       MOVE FUNDS FROM: GL Account Description 400.4105.001 Transfer from General Fund 119,508.00       119,508.00       BUDGET TRANSFERS ‐ COUNCIL ACTION ITEM ‐ OCTOBER 18, 2022 GENERAL FUND CAPITAL FUND 1 Meeting Date October 18, 2022 Department Administration Issue Consider adoption of a Resolution granting an Industrial Revitalization Loan in the amount of $468,750 and a Construction Loan in the amount of $1,000,000 to Gish Mill Davii, LLC. as referenced within the amended Performance Agreement and authorizing the Mayor and/or the Town Manager to execute the necessary documents to complete said loans to Gish Mill Davii, LLC. Summary Industrial Revitalization Fund Loan The Town of Vinton was awarded an Industrial Revitalization Fund (IRF) in the amount of $468,750 from the Virginia Department of Housing and Community Development (DHCD). On June 15, 2021, Council adopted Resolution No. 2440 granting the IRF Loan to Gish Mill Davii, LLC under certain terms and conditions. The Town in partnership with the Roanoke County Economic Development Authority intends to provide these funds to Gish Mill Davii, LLC. in the form of a 30-year loan with a 2.5% Interest Rate and a 20-year deferment. Council needs to adopt a Resolution granting the IRF loan to Gish Mill Davii, LLC under new terms and conditions Construction Loan The Town and Roanoke County anticipate generating in excess of $165,000 annually in new revenues from the Gish Mill Project upon its completion. The Town in partnership with the Roanoke County Economic Development Authority intends to provide a construction loan in the amount of $1,000,000 to Gish Mill Davii, LLC. in the form of a 30-year loan with a 2.5% Interest Rate and a 20-year deferment. The funds are to be paid out in five equal quarterly installments during the construction and the loan is to be forgiven should each of the Performance Targets be met as described in the Amended Performance Agreement. Town Council Agenda Summary 2 Along with the Construction Loan Agreement and the IRF Loan Agreement, Gish Mill Davii, LLC. will also execute a Promissory Note, Deed of Trust, IRF Restriction Agreement and such other documents as the Town and/or EDA deem necessary to complete said loans. Attachments Loan Agreements with supporting documents Resolution Recommendations Motion to adopt Resolution {00488422.DOCX } 1 LOAN AGREEMENT AMONG THE TOWN OF VINTON, VIRGINIA, THE ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA, AND GISH MILL DAVII, LLC FOR CONSTRUCTION LOAN FUNDS This Loan Agreement for Construction Loan Funds (“Agreement”) is made and entered into this _____ day of October, 2022, by and among Gish Mill Davii, LLC. (“Borrower”), the Town of Vinton, Virginia (“Town”) and the Economic Development Authority of Roanoke County, Virginia (“EDA”). WITNESSETH WHEREAS, the Town finds that Borrower’s redevelopment of the Gish Mill Property located within the Town of Vinton, Virginia will result in significant capital investment in the Town, the creation and maintenance of a significant number of new jobs in the Town, and otherwise will contribute to the economic development of the Town; and WHEREAS, to assist Borrower with this economic development project, Town shall grant certain funds to the EDA and the EDA shall loan those funds to Gish Mill Davii, LLC for construction costs related to the Gish Mill Redevelopment Project which will rehabilitate the historic structure and, among other objectives, generate capital investment and create new jobs within the Town (“Construction Loan”); and WHEREAS, the Borrower may use the Construction Loan proceeds to renovate and remodel existing buildings and improve the surrounding property for the Gish Mill Redevelopment Project; and WHEREAS, the Borrower shall repay the Construction Loan to the EDA in accordance with the terms of this Agreement, and the EDA shall transfer all repaid loan funds to the Town. NOW, THEREFORE, for and in consideration of the mutual promises contained herein, the parties agree as follows: 1. The Town shall grant to the EDA, in installments, the amount of One Million Dollars ($1,000,000.00) to be used by the EDA exclusively for the Construction Loan to Borrower under this Agreement. {00488422.DOCX } 2 2. The EDA shall loan to Borrower, pursuant to the terms of this Agreement and the Performance Agreement among the Town, the EDA and the Borrower dated October __, 2022 (“Performance Agreement”), the amount of One Million Dollars ($1,000,000.000) to be used by the Borrower exclusively for construction of the Gish Mill Redevelopment Project. The EDA will administer the loan. The EDA will advance loan proceeds to Borrower only in accordance with the schedule and subject to the requirements contained in the Performance Agreement. 3. If Borrower achieves and maintains all economic development targets required under the Performance Agreement during the ten (10) year period immediately following the Opening Date (as defined in the Performance Agreement), then the EDA, on its behalf and on behalf of the Town, will forgive the amount of the loan under this Agreement. If Borrower achieves and maintains some of the economic development targets required under the Performance Agreement during the ten (10) year period immediately following the Opening Date, then the EDA, on its behalf and on behalf of the Town, will forgive only that portion of the loan as calculated in accordance with the methodology contained in the Performance Agreement. For any portion of the loan that is not forgiven, then Borrower shall repay said loan over a period of thirty (30) years following the Opening Date, with no payments required during the first twenty (20) years following the Opening Date. Interest shall accrue at a rate of zero percent (0%) per annum during the initial twenty (20) years following the Opening Date. Interest shall begin to accrue on the loan’s outstanding principal balance on the first day following the twentieth (20th) anniversary of the Opening Date at a rate of two and one half per centum (2.5%) per annum. Beginning on first day of the first full month following the twentieth (20th) anniversary of the Opening Date, and continuing on the first day of each succeeding month until the loan is repaid in full, Borrower shall pay to the EDA all principal and accrued interest under this loan. If the twentieth (20th) anniversary of the Opening Date is in the middle of a month, then daily interest shall be charged to Borrower for the remainder of such month and added to Borrower’s accrued interest payment obligation. Borrower shall make one-hundred and twenty (120) equal monthly payments of principal and interest on the date when due in immediately available funds; provided, however, Borrower may pay the principal balance of {00488422.DOCX } 3 the loan, or any portion thereof, plus accumulated interest, to the EDA at any time prior to the due date, without penalty. 4. As a condition of said loan, Borrower shall execute a Construction Loan Promissory Note, Construction Loan Deed of Trust, Performance Agreement, IRF Loan Agreement, IRF Loan Promissory Note, IRF Loan Deed of Trust, and Restriction Agreement, and such other documents as the Town and/or EDA deem appropriate (collectively, the “Transaction Documents”). The Construction Loan Promissory Note and Construction Loan Deed of Trust shall further evidence the payment obligation agreed to by Borrower under this Agreement. Said Transaction Documents shall be in a form acceptable to counsel for the Town and the EDA, and shall contain certain penalties for failure to pay, as specified in the terms of such documents. The collateral offered by the Borrower(s) to secure the repayment of this loan is as follows: County of Roanoke, Virginia, Parcel ID 060.11-04-22.00-0000 (350 Gus Nicks Blvd); County of Roanoke, Virginia, Parcel ID 060.11-04-23.00-0000 (0 Gus Nicks Blvd); and City of Roanoke, Virginia, Parcel ID 3410617 (0 Brook St. NE); which collectively are known as the Gish Mill Property. 5. Borrower represents and warrants that: a. It is, or as of closing will be, the sole owner of the above-described collateral and that the above-described collateral is free and clear of all other notes, mortgages, deeds of trusts, pledges, security interests, liens, mortgages and similar encumbrances, other than that certain deed of trust on the collateral for the benefit of Virginia Community Capital securing a construction loan for the Gish Mill Redevelopment Project and that certain deed of trust for the benefit of the EDA securing on Industrial Revitalization Fund (“IRF”) loan for the Gish Mill Redevelopment Project, or that such instruments will be subordinated to the EDA’s interest in same, and that, at closing, the EDA will be in no lower than a third priority position, behind only the foregoing Virginia Community Capital and EDA deeds of trust, over said collateral. The EDA or the Town shall have the right, but not the obligation, to conduct a title search, UCC lien search, or similar review of any liens or encumbrances against the collateral prior to closing, and Borrower shall cooperate in such process and shall be responsible for all {00488422.DOCX } 4 costs and expenses connected with such searches and reviews. If the results of such search or review are unsatisfactory to the EDA or the Town for any reason, the EDA or the Town shall have the right to either cancel or terminate this Agreement, or to give Borrower an opportunity to remedy the defect found in the collateral review process. b. It is a duly created, validly existing, and in good standing limited liability company under the laws of the Commonwealth of Virginia. c. It has all powers, licenses, authorizations, and consents and approvals required to exist and to enter into this Agreement and the other Transaction Documents. d. The execution and delivery by Borrower of the Transaction Documents are fully within its power, have been duly authorized as may be required by law, and are legal, binding, valid and enforceable obligations of Borrower. 6. Borrower shall strictly comply with all terms and conditions of this Agreement and all local, state and federal laws, rules and regulations applicable to the Gish Mill Redevelopment Project.. 7. Borrower shall use the loan proceeds only for the improvement of the collateral identified above. Failure to use loan proceeds for these purposes shall be a breach of this Agreement which shall cause the entire amount loaned hereunder, together with all accrued interest and fees, to be due in full at the time of such breach. 8. Borrower hereby irrevocably consents to the Town’s or the EDA’s entry, or the entry of an authorized agent of either of the foregoing, at such reasonable dates and times as they may deem necessary to ensure that the Borrower is using Construction Loan proceeds for the Gish Mill Redevelopment Project and that it is carrying out the project in a good and workmanlike manner. 9. As a condition of making the loan, and as a continuing requirement of this Agreement, Borrower shall strictly comply with all terms as follows, but not be limited to: (i) timely and full repayment of the Construction Loan Promissory Note executed by Borrower; (ii) the achieving and maintaining of the Targets (as defined in the parties’ Performance Agreement dated as of October __, 2022) that are required for the loan; (iii) maintaining for the life of the loan the collateral described herein and not allowing such collateral to lose its value (except for ordinary wear and tear); (iv) keeping adequate casualty insurance on the collateral as required {00488422.DOCX } 5 herein; (v) not declaring bankruptcy, becoming insolvent, or making any assignments for the benefit of any of the Borrower’s creditors; nor taking any action that would cause the EDA or the Town to lose its priority position in the collateral. Furthermore, as a condition of the loan, Borrower shall make its business records, personnel records and books available to EDA or the Town or any of their authorized agents for audit upon three (3) business days’ notice to Borrower, to assure that all terms and conditions of the IRF Loan and this Agreement are being met and that the IRF Loan proceeds are being spent to further the Gish Mill Redevelopment Project. 10. The Loan shall be subject to call, in full, if the Borrower breaches any of the material terms and conditions of this Agreement, any of the Transaction Documents, the Contract of Sale dated as of April 8, 2020, or any other agreement between or among any of the Borrower, the EDA, the DHCD, or the Town related to the Gish Mill Redevelopment Project (collectively, the “Related Agreements”). 11. This Agreement is entered into and governed by the laws of the Commonwealth of Virginia. Any suit to enforce or interpret any term or condition herein or concerning any other matter connected with this Agreement shall be brought only in the Circuit Court of the County of Roanoke, Virginia. 12. Any notices to the parties hereto shall be sent as follows: To the EDA: Economic Development Authority of Roanoke County, Virginia, 5204 Bernard Dr., Room 421, Roanoke, VA 24018 To the Town: Town Manager, Town of Vinton, 311 South Pollard Street, Vinton, VA 24719. To the Borrower: Attn: Gish Mill Davii, 120 Campbell Ave, Roanoke VA 24011 13. Borrower shall be required to procure and maintain insurance with a licensed Virginia insurance company which shall protect the assets pledged as collateral hereunder against loss due to fire or other casualty or hazard, as applicable. The EDA and the Town shall be named as a loss payee or additional insured under said policy up to the amount of the loan, and Borrower shall provide proof of said insurance and shall not cancel said policy or policies without first procuring qualifying replacement insurance coverage from another licensed Virginia insurance company, as required hereunder. All such insurance policies shall be written {00488422.DOCX } 6 by insurers, in amounts, with endorsements, and on terms and conditions satisfactory to the EDA and the Town. Copies of all such policies shall be provided to the EDA and the Town. 14. Borrower shall indemnify and save the EDA and the Town harmless from any and all loss damages incurred by the EDA and/or the Town as a result of any breach of this Agreement or any Related Agreement by Borrower, including, but not limited to, reimbursement to the EDA and/or the Town of any and all costs, fees, damages, claims, losses, and similar items, as well as all attorneys’ fees incurred by the EDA and/or the Town as a result of Borrower’s breach. 15. The closing on the loan shall occur within ten (10) days from the date of this Agreement, or within such reasonable time thereafter as the necessary papers are prepared and all contingencies are satisfied. Borrower covenants that it has and will have, as of the date of closing on the Construction Loan Promissory Note, the Construction Loan Deed of Trust and other Transaction Documents, good and marketable title to the Property and full authority to convey the Property to a trustee of the EDA’s selection. The terms of this Agreement shall survive closing and shall be enforceable until the loan is fully repaid and Borrower has satisfied all requirements of this Agreement. 16. Within thirty (30) days of receiving a loan repayment from Borrower, the EDA shall remit the amount of the loan repayment to the Town. 17. This Agreement shall be binding upon the parties hereto and is not assignable or assumable by any party without the express written consent of the EDA and the Town. [REMAINDER OF PAGE BLANK] [SIGNATURE PAGES FOLLOW] {00488422.DOCX } 7 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first written above. Economic Development Authority of Roanoke County, Virginia By: ______________________________ Name: Linwood P. Windley Title: Chair COMMONWEALTH OF VIRGINIA COUNTY OF ROANOKE, to wit: The foregoing document was acknowledged before me by Linwood P. Windley, Chair of the Economic Development Authority of the County of Roanoke, Virginia, a political subdivision of the Commonwealth of Virginia, on behalf of such entity, this ___ day of October, 2022. ____________________________ Registration Number: _____________ Notary Public My Commission Expires: _____________ Approved as to legal form: ____________________________ Peter S. Lubeck Roanoke County Attorney, as Counsel for the EDA {00488422.DOCX } 8 Town of Vinton, Virginia By: ______________________________ Name: Bradley E. Grose Title: Mayor COMMONWEALTH OF ___________ CITY/COUNTY OF ______________, to wit: The foregoing document was acknowledged before me by Bradley E. Grose, Mayor of the Town of Vinton, Virginia, a political subdivision of the Commonwealth of Virginia, on behalf of such entity, this ___ day of October, 2022. ____________________________ Registration Number: _____________ Notary Public My Commission Expires: _____________ Approved as to legal form: Jeremy E. Carroll Town Attorney {00488422.DOCX } 9 Gish Mill Davii, LLC. By: ______________________________ Name: David P. Hill, Member By: ______________________________ Name: David B. Trinkle, Member COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ______________, to wit: The foregoing document was acknowledged before me by David P. Hill, Member of Gish Mill Davii, LLC, a Virginia limited liability company, on behalf of such entity, this ___ day of October, 2022. ____________________________ Registration Number: _____________ Notary Public My Commission Expires: _____________ COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ______________, to wit: The foregoing document was acknowledged before me by David B. Trinkle, Member of Gish Mill Davii, LLC, a Virginia limited liability company, on behalf of such entity, this ___ day of October, 2022. ____________________________ Registration Number: _____________ Notary Public My Commission Expires: _____________ {00488340.DOC } 1 Prepared by and return to: Jeremy Carroll (VSB#41331) GUYNN, WADDELL, CARROLL & LOCKABY, P.C. Town of Vinton Attorney 415 S. College Ave. Salem, Virginia 24153 Tel. (540) 387-2320 Fax. (540) 389-2350 City of Roanoke Tax ID # 3410617 County of Roanoke Tax Map # 060.11-04-22.00-0000 and 060.11-04-23.00-0000 Loan Amount: $ 1,000,000 TOWN OF VINTON, VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA CONSTRUCTION LOAN DEED OF TRUST THIS DEED OF TRUST is dated the ____ day of October, 2022, among GISH MILL DAVII, LLC, a Virginia limited liability company (referred to herein as "Grantor"); the ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA, a political subdivision of the Commonwealth of Virginia, whose address is 5204 Bernard Dr., SW, Roanoke, Virginia, VA 24018 (referred to below sometimes as "Lender" and sometimes as "Beneficiary"); and JEREMY E. CARROLL, whose business address is 415 S. College Avenue, Salem, VA 24153, and RICHARD W. PETERS JR., whose business address is 311 South Pollard Street, Vinton, VA 24179 (together "Grantee," also referred below as "Trustee"). CONVEYANCE AND GRANT For valuable consideration, Grantor grants, conveys, transfers, encumbers and pledges and assigns to Trustee, for the benefit of Lender as Beneficiary, all of Grantor's present and future right, title, and interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; and all rights, royalties, and profits relating to the real property, including without limitation all minerals, oil, gas, geothermal and similar matters, which real property is located in part in the Town of Vinton, Roanoke County, Virginia and in part in the City of Roanoke, Virginia, is more particularly described on Schedule A attached hereto and made a part hereof, and is more commonly known as 350 Gus Nicks Blvd, Vinton, VA 24179 (the "Real Property"), in trust to secure to the Lender the performance and payment by the Grantor of the Indebtedness (as defined herein) and also to secure the prompt and punctual performance by Borrower of each and every covenant, condition and agreement contained herein, and each and every other obligation, covenant and agreement contained in the Related Documents (as defined below) or otherwise concerning or related to the Real Property. Grantor presently assigns, absolutely and irrevocably, to Lender all of Grantor's right, title, and interest in and to all present and future leases of the Property and all rents from the Property until the Note executed contemporaneously herewith is paid in full, or otherwise forgiven, and this Deed of Trust is released. {00488340.DOC } 2 DEFINITIONS The following words shall have the following meanings when used in this Deed of Trust. Beneficiary. The word "Beneficiary" means the Economic Development Authority of Roanoke County, Virginia, its successors and/or assigns. Borrower. The word "Borrower" means each and every person or entity signing the Note. Deed of Trust. The words "Deed of Trust" mean this Deed of Trust among Grantor, Lender, and Trustee. Grantor. The word "Grantor" means any and all persons and entities executing this Deed of Trust. Any Grantor who signs this Deed of Trust, but does not sign the Note, is signing this Deed of Trust only to grant and convey that Grantor's interest in the Real Property and to grant a security interest in Grantor's interest in the Rents and Personal Property to Lender. Guarantor. The word "Guarantor" means and includes without limitation any and all guarantors, sureties, and accommodation parties in connection with the indebtedness and their personal representatives, successors and assigns. Improvements. The word "Improvements" means and includes without limitation all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property. Indebtedness. The word "Indebtedness" means all principal and interest, together with all other fees, costs, and charges, if any, payable under the Construction Loan Promissory Note and any amounts expended or advanced by Lender or Town (as defined below) to discharge obligations of Borrower or expenses incurred by Trustee or Lender or Town to enforce obligations of Borrower or Grantor under this Deed of Trust, together with interest on such amounts as provided in this Deed of Trust. Lender. The word "Lender" means the Economic Development Authority of Roanoke County, Virginia its successors and assigns. Note. The word "Note" means the Construction Loan Promissory Note dated on the same day as this Deed of Trust, in the principal amount of $1,000,000 from Borrower to Lender, together with all renewals, extensions, modifications, refinancings, and substitutions for the Note. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. Property. The word "Property" means collectively the Real Property and the Personal Property. Real Property. The words "Real Property" mean the property, interests, and rights described above in the "Conveyance and Grant" section. Related Documents. The words "Related Documents" mean and include without limitation all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, and all other instruments, agreements, and documents, whether now or hereafter existing, executed in connection with the indebtedness. Related Documents include, but are not limited to, the Performance Agreement dated October ___, 2022, the IRF Loan Agreement dated October ___, 2022, the IRF Loan Promissory Note dated October ___, 2022, the IRF Loan Deed of Trust dated October __, 2022, the Restriction {00488340.DOC } 3 Agreement dated October __, 2022, the Construction Loan Agreement dated October __, 2022, and the Note. Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. Town. The word “Town” refers to the Town of Vinton, Virginia, a municipal corporation in the Commonwealth of Virginia. The Town is providing $1,000,000 proceeds to the Lender which in turn is lending those proceeds, in the amount of $1,000,000, to the Grantor for use in the Gish Mill Redevelopment Project in accordance with the terms of the Note, this Deed of Trust and the Related Documents. The Lender is administering the loan on behalf of the Town. Trustee. The word "Trustee" means Jeremy E. Carroll and Richard W. Peters Jr and any substitute or successor trustees. If more than one person is named as trustee, the word "Trustee" means each such person. GRANTOR'S REPRESENTATIONS AND WARRANTIES Grantor warrants that: (a) Grantor has the full power, right and authority to enter into this Deed of Trust and to hypothecate the Property; (b) the provisions of this Deed of Trust do not conflict with, or result in a default under any agreement or other instrument binding upon Grantor and do not result in a violation of any law, regulation, court decree or order applicable to Grantor; (c) Grantor holds good and marketable title to the Property in fee simple, free and clear of all liens and encumbrances, other than those set forth in the Real Property description or in any title insurance policy, title report or final title opinion issued in favor of, and accepted by, Lender in connection with this Deed of Trust; and (d) Grantor has the full right, power, and authority to execute and deliver this Deed of Trust to Lender. PAYMENT AND PERFORMANCE Except as otherwise provided in the Note or this Deed of Trust, Borrower shall pay to Lender all Indebtedness secured by this Deed of Trust as it becomes due, and Borrower and Grantor shall strictly perform all their respective obligations under the Note, this Deed of Trust and the Related Documents. POSSESSION AND MAINTENANCE OF THE PROPERTY Grantor and Borrower agree that Grantor's possession and use of the Property shall be governed by the following provisions: Possession and Use. Until the occurrence of an Event of Default, Grantor may (a) remain in possession and control of the Property, (b) use, operate and manage the Property, and (c) collect any Rents from the Property. Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value. Grantor shall not cause, conduct or permit any nuisance nor commit, permit or suffer any stripping of or waste on or to the Property or any portion of the Property. Grantor agrees neither to abandon nor leave unattended the Property. {00488340.DOC } 4 Hazardous Substances. The terms "hazardous waste," "hazardous substance," "disposal," "release," and "threatened release," as used in this Deed of Trust, shall have the same meanings as set forth in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transport Act, 49 U.S.C. Section 1801 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or Federal laws, rules or regulations adopted pursuant to any of the foregoing. The terms "hazardous waste" and "hazardous substance" shall also include, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos. Grantor represents and warrants to Lender that: (a) During the period of Grantor's ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any hazardous waste or substance by any person on, under, about or from the Property; (b) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender in writing, (i) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any hazardous waste or substance on, under, about or from the Property by any prior owners or occupants of the Property or (ii) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (c) Except as previously disclosed to and acknowledged by Lender in writing, (i) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of, or release any hazardous waste or substance on, under, about or from the Property and (ii) any such activity shall be conducted in compliance with all applicable federal, state and local laws, regulations and ordinances, including without limitation those laws, regulations and ordinances described above. Grantor authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the Deed of Trust. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any other person. The representations and warranties contained herein are based on Grantor's due diligence in investigating the Property for hazardous waste and hazardous substances. Grantor hereby (a) releases and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws, and (b) agrees to indemnify and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Deed of Trust or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor's ownership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Deed of Trust, including the obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Deed of Trust and shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or otherwise. Lender's Right to Enter. Lender and its agents and representatives may enter upon the Real Property at all reasonable times to attend to Lender's interest and to inspect the Property for purposes of Grantor's compliance with the terms and conditions of this Deed of Trust. Compliance with Governmental Requirements. Grantor shall promptly comply with all laws, ordinances and regulation, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property. {00488340.DOC } 5 DUE ON SALE -- CONSENT BY LENDER. NOTICE -- THE DEBT SECURED HEREBY IS SUBJECT TO CALL IN FULL OR THE TERMS THEREOF BEING MODIFIED IN THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY CONVEYED. Lender may, at its option, declare immediately due and payable all sums secured by this Deed of Trust upon the sale or transfer, without the Lender's prior written consent, of all of any part of the Real Property, or any interest in the Real Property. TAXES AND LIENS Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, special taxes, assessments, charges (including water and sewer), fines and impositions levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property free of all liens having priority over or equal to the interest of Lender under this Deed of Trust, except for the lien of taxes and assessments not due and except as otherwise provided in this Deed of Trust. Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises, or if a lien is filed, within fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and attorneys' fees or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessments against the Property. PROPERTY DAMAGE INSURANCE Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable value covering all improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender, together with such other hazard and liability insurance as Lender may require. Policies shall be written in form, amounts, coverages and basis acceptable to Lender and issued by a company or companies acceptable to Lender. Grantor, upon request of Lender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including stipulations that coverage will not be cancelled or diminished without at least ten (10) days' prior written notice to Lender. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person. Should the Real Property at any time become located in an area designated by the Director of the Federal Emergency Management Agency as a special flood {00488340.DOC } 6 hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance to the extent such insurance is required by Lender and is or becomes available, for the term of the loan and for the full unpaid principal balance of the loan, or the maximum limit of coverage that is available, whichever is less. EXISTING INDEBTEDNESS The following provisions concerning existing indebtedness (the "Existing Indebtedness") are a part of this Deed of Trust. No Modification. Grantor shall not enter into any agreement with the holder of any mortgage, deed of trust, or other security agreement, which has priority over this Deed of Trust by which that agreement is modified, amended, extended, or renewed without the prior written consent of Lender and the Town. Grantor shall neither request nor accept future advances under any such security agreement without the prior written consent of Lender and the Town. CONDEMNATION Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its election require that all or any portion of the net proceeds of the award by applied to the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees incurred by Trustee or Lender in connection with the condemnation. Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments as may be requested by it from time to time to permit such participation. DEFAULT Each of the following, at the option of Lender, shall constitute an event of default ("Event of Default") under this Deed of Trust: Default on Indebtedness. Failure of Borrower to make any payment when due on the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Deed of Trust to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. Compliance Default. Failure of Grantor or Borrower to comply with any other term, obligation, covenant or condition contained in this Deed of Trust, the Note or in any of the Related Documents. False Statements. Any warranty, representation or statement made or furnished to Lender or the Town by or on behalf of Grantor or Borrower under this Deed of Trust, the Note or the {00488340.DOC } 7 Related Documents is false or misleading in any material respect, either now or at the time made or furnished. Defective Collaterization. This Deed of Trust or any of the Related Documents ceases to be in full force and effect (including failure of any collateral documents to create a valid and perfected security interest or lien) at any time and for any reason. Death or Insolvency. The death of any Grantor or Borrower, the insolvency of Grantor or Borrower, the appointment of a receiver for any part of Grantor or Borrower's property, any assignment for the benefit of creditors, any type of creditor workout or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor or Borrower. Foreclosure, Forfeiture, etc. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Grantor or by any governmental agency against any of the Property. However, this subsection shall not apply in the event of a good faith dispute by Grantor as to the validity or reasonableness of the claim, which is the basis of the foreclosure or forfeiture proceeding, provided that Grantor gives Lender written notice of such claim and furnishes reserves or a surety bond for the claim satisfactory to Lender. Breach of Other Agreement. Any breach by Grantor or Borrower under the terms of any other agreement between Grantor or Borrower and Lender or Town that is not remedied within any grace period provided therein, including without limitation the Related Documents or any other agreement concerning any indebtedness or other obligation of Grantor or Borrower to Lender or Town, whether existing now or later. Insecurity. Lender in good faith deems itself insecure. RIGHTS AND REMEDIES ON DEFAULT Upon the occurrence of any Event of Default and at any time thereafter, Trustee or Lender, at its option, may exercise any one or more of the following rights and remedies, in addition to any other rights and remedies provided by law: Accelerate Indebtedness. Lender shall have the right at its option to declare the entire Indebtedness immediately due and payable, including any prepayment penalty, which Borrower would be required to pay. This right is in addition to all other rights given to holders of any promissory note under Title 55.1 of the Code of Virginia. Foreclosure. With respect to all or any part of the Real Property, the Trustee shall have the right to foreclose by notice and sale, and Lender shall have the right to foreclose by judicial foreclosure, in either case in accordance with and to the full extent provided by applicable law. The proceeds of sale shall be applied by Trustee as follows: (a) first, to pay all proper advertising expenses, auctioneer's allowance, the expenses, if any, required to correct any irregularity in the title, premium for Trustee's bond, auditor's fee, attorneys' fees, and all other expenses of sale incurred in or about the protection and execution of this Deed of Trust, and all moneys advanced for taxes, assessments, insurance and with interest thereon at the rate provided in the Note, and all taxes and assessments due upon the Property at time of sale, and to retain as compensation a commission of five percent (5%) on the amount of the sale or sales; (b) second, to pay the whole amount then remaining unpaid on the Indebtedness; (c) third, to pay liens of record against the {00488340.DOC } 8 Property according to their priority of lien and to the extent that funds remaining in Trustee's hands are available; and (d) last, to pay the remainder of the proceeds, if any, to Grantor, Grantor's heirs, personal representatives, successors or assigns upon the delivery and surrender to the purchaser of possession of the Property, less costs and expenses of obtaining possession. Collect Rents. Lender shall have the right, without notice to Grantor or Borrower, to take possession of and manage the Property and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights under this subparagraph either in person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. Other Remedies. Trustee or Lender shall have any other right or remedy provided in this Deed of Trust, the Note, the Related Documents, or at law or in equity. Waiver; Election of Remedies. A waiver by any party of a breach of a provision of this Deed of Trust shall not constitute a waiver or prejudice the party's rights otherwise to demand strict compliance with that provision or any other provision. Election by Lender to pursue any remedy provided in this Deed of Trust, Note, in any Related Document, or provided by law shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor or Borrower under this Deed of Trust after failure of Grantor or Borrower to perform shall not affect Lender's right to declare a default and to exercise any of its remedies. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Deed of Trust, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and on any appeal. Whether or not any court action is involved, all reasonable expenses incurred by Lender which in Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Notes’ rate from the date of expenditure until repaid. Rights of Trustee. Trustee shall have all of the rights and duties of Lender as set forth in this section. Any Trustee may act alone. Successor Trustee. Lender, at Lender's option, at any time hereafter and without prior notice and without specifying any reason, may from time to time appoint a successor Trustee to any Trustee appointed hereunder. The successor trustee shall succeed to all the title, power and duties conferred upon the Trustee in this Deed of Trust and by applicable law. {00488340.DOC } 9 MISCELLANEOUS PROVISIONS Amendments. This Deed of Trust, together with the Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Deed of Trust. No alteration or amendment to this Deed of Trust shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Applicable Law. This Deed of Trust shall be governed by, construed and enforced in accordance with the laws of the Commonwealth of Virginia. Caption Headings. Caption headings in this Deed of Trust are for convenience purposes only and are not to be used to interpret or define the provisions of this Deed of Trust. Severability. If a court of competent jurisdiction finds any provision of this Deed of Trust to be invalid or unenforceable, it shall be stricken and all other provisions of this Deed of Trust in all other respects shall remain valid and enforceable. Successors and Assigns. Subject to the limitations stated in this Deed of Trust on transfer of Grantor's interest, this Deed of Trust shall be binding upon and inure to the benefit of the parties, their heirs, personal representatives, successors and assigns. If ownership of the Property becomes vested in a person other than the Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Deed of Trust and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Deed of Trust or liability under the Indebtedness. Waivers and Consents. Lender shall not be deemed to have waived any rights under this Deed of Trust (or under the Related Documents) unless such waiver is in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by any party of a provision of this Deed of Trust shall not constitute a waiver of or prejudice the party's right otherwise to demand strict compliance with that provision or any other provision. No prior waiver by Lender, nor any course of dealing between Lender and Grantor or Borrower, shall constitute a waiver of any of Lender's rights or any of Grantor or Borrower's obligations as to any future transactions. Whenever consent by Lender is required in this Deed of Trust, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required. Waiver of Homestead Exemption. Grantor waives the benefit of Grantor's homestead exemption as to this obligation. REMAINDER OF PAGE BLANK SIGNATURE PAGE FOLLOWS {00488340.DOC } 10 WITNESS the following signature(s) and seal(s): GRANTOR: Gish Mill Davii, LLC By: _______________________________ David P. Hill Member By: _______________________________ David B. Trinkle Member COMMONWEALTH OF VIRGINIA COUNTY OF ROANOKE, to-wit: The foregoing instrument was acknowledged before me this __ day of October __, 2022, by David P. Hill in his capacity as a Member of Gish Mill Davii, LLC. ______________________________ Notary Public My commission expires: ________. Notary Number: __________. COMMONWEALTH OF VIRGINIA COUNTY OF ROANOKE, to-wit: The foregoing instrument was acknowledged before me this __ day of October __, 2022, by David B. Trinkle in his capacity as a Member of Gish Mill Davii, LLC. ______________________________ Notary Public My commission expires: ________. Notary Number: __________. {00488340.DOC } 11 SCHEDULE A County of Roanoke, Virginia, Parcel ID 060.11-04-22.00-0000 and 060.11-04-23.00-0000 and City of Roanoke, Virginia, Parcel ID 3410617 ADDRESS: 350 GUS NICKS BLVD, VINTON, VIRGINIA LEGAL DESCRIPTION OF REAL PROPERTY: Being all that certain tract or parcel of land together with the buildings and improvements thereon and the easements and appurtenances thereunto belonging situated in the Town of Vinton, County of Roanoke and Roanoke City, Virginia, containing 1.175 acres and being more particularly shown and described on that certain compiled plat entitled “TOWN OF VINTON PROPERTIES TO BE CONVEYED TO GISH MILL DAVII, LLC,” dated August 25, 2022 and made by L. W. Knighting L.S., a copy of which is recorded in the Clerk’s Office, Circuit Court, Roanoke County in _____________________________________. {00488424.DOCX } 1 TOWN OF VINTON ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA CONSTRUCTION LOAN PROMISSORY NOTE Principal Amount: $1,000,000.00 Loan Date: October ___, 2022 IMPORTANT NOTICE THIS INSTRUMENT CONTAINS A CONFESSION OF JUDGMENT PROVISION WHICH CONSTITUTES A WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE AS A DEBTOR AND ALLOWS THE CREDITOR TO OBTAIN A JUDGMENT AGAINST YOU WITHOUT ANY FURTHER NOTICE. FOR VALUE RECEIVED, the undersigned GISH MILL DAVII, LLC., a Virginia limited liability company (“Borrower”) promises to pay to the order of the Economic Development Authority of Roanoke County, Virginia, its successors and/or assigns (“Lender”), without offset, at Lender’s office, currently located at 5204 Bernard Dr., SW, Roanoke, Virginia, VA 24018, or at such other place as Lender may from time to time designate, the principal sum of ONE MILLION DOLLARS ($1,000,000.00) and all other sums which may be owing to Lender by Borrower pursuant to this promissory note (this “Note”). The following terms shall apply to this Note. 1. REPAYMENT; MATURITY DATE. Interest: Interest on the unpaid balance of this Note shall accrue at a fixed rate of zero percent (0%) per year, from the date of the first installment on the Loan until the twentieth (20th) anniversary of the Opening Date (as defined in the Performance Agreement). Interest on the unpaid balance of this Note shall accrue at a fixed rate of two and one half percent (2.5%) per year, beginning on the first day following the twentieth (20th) anniversary of the Opening Date. Forgiveness: Lender shall forgive the unpaid balance of this Note if Borrower achieves and maintains all economic development targets required under the Performance Agreement during the ten (10) year period immediately following the Opening Date. If the Borrower achieves and maintains some of the economic development targets required under the Performance Agreement during the ten (10) year period immediately following the Opening Date, then Lender will forgive a portion of the unpaid balance in accordance with the terms of the Performance Agreement. Repayment: If not forgiven under the preceding section, the indebtedness evidenced by this Note shall be paid by Borrower to Lender as follows: The term of the loan will be for 30 years, with no payments required during the initial 20 years following the Opening Date. Beginning on the first day of the month following the twentieth (20th) anniversary of the Opening Date, Borrower will commence repaying the principal, all accrued interest, and all other amounts due under this Note in (120) equal {00488424.DOCX } 2 monthly installments. Each installment will be payable on the 1st day of each month for 120 consecutive months. The entire principal balance and all accrued, unpaid interest thereon, if any, and all other amounts due under this Note shall be due and payable no later than the thirtieth (30th) anniversary of the Opening Date (the “Maturity Date”). Daily interest between the accruing between twentieth (20th) anniversary of the Opening Date and the first day of the month following twentieth (20th) anniversary of the Opening Date shall be calculated at a rate of 2.5% per year and included in the Borrower’s accrued interest payment obligation. 2. LATE PAYMENT CHARGE. If any payment due hereunder is not received by Lender within seven (7) days after the due date, Borrower shall pay a late payment charge equal to five percent (5%) of the amount then due. 3. APPLICATION OF PAYMENTS. All payments made pursuant to this Note shall be applied first to late payment charges or other sums owed to Lender, next to accrued interest, and then to principal, or in such other order or proportion as Lender, in Lender’s sole and absolute discretion, may elect from time to time. 4. PREPAYMENT. Borrower may prepay this Note in whole or in part at any time or from time to time without premium or additional interest. 5. EVENTS OF DEFAULT. Any one of the following events shall constitute an “Event of Default” under this Note: a. If any payment on this Note, or if any payment on any other present or future debt or obligation of Borrower, or any maker, endorser or guarantor of this Note or such other debt or obligation (each a “Party” and collectively the “Parties”), to Lender, is not paid when due. b. If Borrower, or any Party, defaults or breaches any term, covenant, representation, warranty, or provision of this Note or defaults or breaches any term, covenant, representation, warranty, or provision of any other agreement or document made by Borrower or any other Party for the benefit of Lender or the Town of Vinton, Virginia (“Town”), including without limitation the Construction Loan Agreement dated as of October __, 2022, the Construction Loan Deed of Trust dated as of October ___, 2022, the Performance Agreement dated as of October __, 2022, the IRF Loan Agreement dated as of October ___, 2022, the IRF Loan Promissory Note dated as of October __, 2022, the Restriction Agreement dated as of ________, 2022, and the IRF Loan Deed of Trust dated as of October ___, 2022 (collectively, as modified or amended from time to time, the “Loan Documents”), or any other instrument or agreement delivered to Lender or Town in connection with this or any other transaction with Lender or Town, or if Borrower, or any Party, makes a materially false or misleading statement to Lender or Town. c. If any of the Security (as hereinafter defined) is lost, abandoned, destroyed, severely damaged, involved in legal proceeding, sold or transferred except as permitted by prior written agreement with Lender. {00488424.DOCX } 3 d. If any Borrower, or any Party, dies, dissolves, merges, consolidates, ceases to be a going concern, or there is a change in the ownership in Borrower or any Party of more than twenty percent (20%). e. If a petition or complaint under any bankruptcy, insolvency or other law seeking reorganization, liquidation, dissolution or other relief is filed by or against Borrower, or any party, or if Borrower, or any Party, becomes unable or admits an inability to pay its debts as they become due. f. If any property of Borrower, or any Party, is seized, attached or levied on, or if a receiver or custodian is appointed for Borrower or any Party. g. If Lender believes in good faith that (i) the prospect of payment or performance hereunder is impaired (ii) any of the Security is insecure or (iii) a material, adverse change has occurred in Borrower’s, or any Party’s, condition, financial or otherwise. h. If any guaranty obtained in connection with this Note is terminated. 6. REMEDIES. Upon the occurrence of an Event of Default, Lender shall have the right to accelerate and declare this Note due and payable in full upon ten (10) days’ notice to Borrower. Lender shall have all of the rights and remedies of a secured party under the Uniform Commercial Code, as well as all of the rights and remedies granted by the Loan Documents, by other applicable law, under any document related to the loan evidenced by this Note, or to any of the Security. Without limiting the generality of the foregoing, Lender shall have the right, immediately and without further action or notice, to set off against this Note all money owed by Lender in any capacity to Borrower, and any Party, whether or not due, and to set off against all other liabilities of Borrower and any Party, to Lender all money owed by Lender in any capacity to Borrower and/or each or any Party whether or not due. All rights and remedies of Lender under this Note and the Loan Documents, under any document given to Lender in connection with this Note and under applicable law shall be cumulative and not exclusive and may be exercised successively or concurrently. Lender shall not by any act, delay, omission, or otherwise be deemed to have waived any of its right or remedies and no waiver of any kind shall be deemed to have occurred unless in writing and signed by an authorized office of Lender. Following the occurrence of an Event of Default, Lender may raise the rate of interest accruing on the unpaid balance due under this Note by three percent (3%) above the rate of interest otherwise applicable until such time as such default has been cured to Lender’s entire satisfaction, independent of whether Lender elects to accelerate the unpaid principal balance as a result of such default. 7. INTEREST RATE AFTER JUDGMENT. If judgment is entered against Borrower on this Note, the amount of the judgment entered (which may include principal, interest, penalties, fees, and costs) shall bear interest at the higher of the above described default interest rate as determined on the date of the entry of the judgment, or the legal rate of interest then applicable to judgments in the jurisdiction in which judgment was entered. 8. EXPENSES OF COLLECTION. If this Note is referred to an attorney for collection, whether or not judgment has been confessed or suit has been filed, Borrower shall pay all of Lender’s costs, fees (including, without limitation, Lender’s attorneys’ fees, paralegal {00488424.DOCX } 4 charges and expenses) and all other expenses resulting from such referral. 9. SECURITY. Borrower’s obligations under this Note are secured by the following real property, collectively known as the Gish Mill Property: County of Roanoke, Virginia, Parcel ID 060.11-04-22.00-0000 (350 Gus Nicks Blvd); County of Roanoke, Virginia, Parcel ID 060.11-04-23.00-0000 (0 Gus Nicks Blvd); and City of Roanoke, Virginia, Parcel ID 3410617 (0 Brook St. NE). 10. FINANCIAL CONDITION. Borrower warrants, represents and covenants to Lender that on and after the date hereof: (a) the fair saleable value of Borrower’s assets exceeds its liabilities, Borrower is meeting its current liabilities as they mature, and Borrower is and shall remain solvent; (b) all financial statements of Borrower furnished to Lender are correct and accurately reflect the financial condition of Borrower as of the respective dates thereof; (c) since the date of such financial statements, there has not occurred a material adverse change in the financial condition of Borrower; (d) there are not now pending any court or administrative proceedings or undischarged judgments against Borrower, and Borrower is not in default or claimed default under any agreement; and (e) at such reasonable times as Lender requests, Borrower will furnish Lender with such other financial information as Lender may reasonably request. 11. FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Lender such information as Lender may reasonably request from time to time, including without limitation, financial statements and information pertaining to Borrower’s financial condition. Such information shall be true, complete, and accurate. 12. AFFIRMATIVE COVENANTS. Until this Note is paid in full, Borrower, the Borrower agrees as follows: a. The Borrower shall pay all amounts due under this Note in accordance with its terms without offset or deduction. b. The Borrower shall pay all costs and expenses incurred by Lender in collecting this Note, with or without litigation, or in preserving, perfecting or disposing of any of the Security including attorney’s fees. c. The liability of the Borrower shall not be affected by any failure, neglect, or omission of Lender to exercise any right or remedy that it may have or any determination that any of the collateral, lien or security interest taken by Lender is either invalid, unperfected, or any Security is damaged, misused or destroyed. d. Lender shall not be required to take action against the Borrower or resort to any of the Security, and Lender may without notice to or consent by the Borrower permit the substitution, exchange or release of any of the Security. e. The Borrower waives presentment, demand, protest, notice of dishonor and of protest, and all defenses based on suretyship or impairment of the Security. {00488424.DOCX } 5 f. The Borrower waives the benefit of all homestead and other exemptions to the fullest extent permitted by law. g. The Borrower shall maintain its existence in good standing as may be from time to time required by applicable law. 13. NEGATIVE COVENANTS. Borrower agrees that from the date hereof and until final payment in full of its obligations hereunder, unless Lender shall otherwise consent in writing, Borrower will not: (a) default on any material contract with or obligation when due to a third party or default in the performance of any obligation to a third party incurred for money borrowed (b) permit the assertion or making of any seizure, vesting or intervention by or under authority of any governmental entity, as a result of which the management of Borrower is displaced of its authority in the conduct of its respective business or such business as curtailed or materially impaired (c) permit the entry of any monetary judgment or the assessment against, the filing of any tax lien against, or the issuance of any writ of garnishment or attachment against the Borrower or any property owned by the Borrower; and/or (d) retire or otherwise dispose of any of its ownership interests. 14. NOTICES. Any notices to Borrower shall be sufficiently given, if in writing and mailed or delivered to the address of Borrower shown above or such other address as provided hereunder; and to Lender, if in writing and mailed or delivered to the address of Lender shown above or such other address as Lender may specify in writing from time to time. In the event that Borrower changes Borrower’s mailing address at any time prior to the date the obligations are paid in full, Borrower agrees to promptly give written notice of said change of address by registered or certified mail, return receipt requested, all charges prepaid. 15. JOINT AND SEVERAL LIABILITY. If more than one person or entity is executing this Note as a Borrower, all liabilities under this Note shall be joint and several with respect to each of such persons or entities. 16. ASSIGNABILITY; BINDING NATURE. This Note may be assigned by Lender at any time. This Note shall inure to the benefit of and be enforceable by Lender and Lender’s successors and assigns and any other person to whom Lender my grant an interest in Borrower’s obligations to Lender, and shall be binding and enforceable against Borrower and Borrower’s personal representatives, successors and assigns. 17. INVALIDITY OF ANY PART. If any provision or part of any provision of this Note shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Note and this Note shall be construed as if such invalid, illegal or unenforceable provision or part thereof had never been contained herein, but only to the extent of its invalidity, illegality or unenforceability. 18. MAXIMUM RATE OF INTEREST. Notwithstanding any provision of this Note or the Loan Documents to contrary, Borrower shall not be obligated to pay interest pursuant to this Note in excess of the maximum rate of interest permitted by the laws of any state determined to govern this Note or the laws of the United States applicable to the loans in {00488424.DOCX } 6 such state. If any provision of this Note shall ever be construed to require the payment of any amount of interest in excess of that permitted by applicable law, then the interest to be paid pursuant to this Note shall be held subject to reduction to the amount allowed under applicable law, and any sums paid in excess of the interest rate allowed by law shall be applied in reduction of the principal balance outstanding pursuant to this Note. Borrower acknowledges that it has been contemplated at all times by Borrower that the laws of the Commonwealth of Virginia will govern the maximum rate of interest that it is permissible for Lender to charge Borrower pursuant to this Note. 19. CHOICE OF LAW; CONSENT TO VENUE AND JURISDICTION. This Note shall be governed, construed and interpreted strictly in accordance with the laws of the Commonwealth of Virginia. Borrower consents to the jurisdiction and venue of the courts of Roanoke County in the Commonwealth of Virginia, or to the jurisdiction and venue of the United States District Court for the Western District of Virginia in any action or judicial proceeding brought to enforce, construe or interpret this Note. Borrower agrees to stipulate in any future proceeding that this note is to be considered for all purposes to have been executed and delivered within the geographical boundaries of the Commonwealth of Virginia, even if it was, in fact, executed and delivered elsewhere. 20. ACTIONS AGAINST LENDER. Any action brought by Borrower against Lender which is based, directly or indirectly, or in whole or part, upon this Note or any matter related to this Note or any other Loan Documents shall be brought only in the courts of the Commonwealth of Virginia located in Roanoke County, Virginia. 21. LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING LENDER, BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS NOTE, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (A) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (B) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO THE PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION JUDICIALLY OR OTHERWISE. 22. WAIVER OF JURY TRIAL. BORROWER (BY ITS EXECUTION HEREOF) AND LENDER (BY IT ACCEPTANCE OF THIS NOTE) AGREE THAT ANY SUIT, ACTION, OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR INSTITUTED BY BORROWER, LENDER OR ANY SUCCESSOR OR ASSIGN OF BORROWER OR LENDER ON OR WITH RESPECT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT OR WHICH IN ANY WAY RELATES, DIRECTLY OR INDIRECTLY, TO THE OBLIGATIONS OF BORROWER TO LENDER PURSUANT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT, OR {00488424.DOCX } 7 THE DEALINGS OF BORROWER AND LENDER WITH RESPECT THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. BORROWER AND LENDER HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY SUCH SUIT, ACTION, OR PROCEEDING. 23. CONFESSION OF JUDGMENT. BORROWER HEREBY CONSTITUTES AND APPOINTS LENDER THROUGH AN OFFICER DULY AUTHORIZED BY LENDER AS THE TRUE AND LAWFUL ATTORNEYS-IN-FACT FOR BORROWER UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT IN THE PAYMENT OF ANY OBLIGATION DUE UNDER THIS NOTE, AT MATURITY, OR UPON ACCELERATION, TO CONFESS JUDGMENT AGAINST BORROWER IN FAVOR OF THE LENDER, BEFORE THE CLERK OF THE CIRCUIT COURT FOR ROANOKE COUNTY, VIRGINIA, IN ACCORDANCE WITH THE CODE OF VIRGINIA (1950), AS AMENDED, SECTION 8.01-431 ET SEQ., AND ANY SUCCESSOR STATUTE, FOR ALL AMOUNTS OWED WITH RESPECT TO THE OBLIGATIONS UNDER AND PURSUANT TO THIS NOTE INCLUDING, WITHOUT LIMITATION, ALL COSTS OF COLLECTION AND ATTORNEYS’ FEES IN AN AMOUNT EQUAL TO 25% OF THE OBLIGATIONS THEN OUTSTANDING (WHICH SHALL BE DEEMED REASONABLE ATTORNEYS’ FEES FOR THE PURPOSES OF THIS PARAGRAPH) AND COURT COSTS, HEREBY RATIFYING AND CONFIRMING THE ACTS OF SAID ATTORNEY-IN- FACT AS IF DONE BY THEMSELVES. UPON REQUEST OF LENDER, EACH BORROWER WILL EXECUTE AN AMENDMENT OR OTHER AGREEMENT SUBSTITUTING ATTORNEYS-IN-FACT APPOINTED TO ACT FOR EACH BORROWER HEREUNDER. [SIGNATURE PAGES FOLLOW] {00488424.DOCX } 8 IN WITNESS WHEREOF, and intending to be legally bound hereby, the undersigned execute this Note under seal, as Borrower as of the date first written above. BORROWER: Gish Mill Davii, LLC. a Virginia limited liability company By: Name: David P. Hill Title: Member By: Name: David B. Trinkle Title: Member COMMONWEALTH OF VIRGINIA ) ) TO-WIT CITY/COUNTY OF ROANOKE ) The foregoing instrument was acknowledged before me this _____ day of October, 2022, by David P. Hill and in his individual capacity and in his capacity as a Member of Gish Mill Davii, LLC, and who has presented identification of (a United States Passport, a certificate of United States citizenship, a certificate of naturalization, an unexpired foreign passport, an alien registration card with photograph, a state issued driver’s license or state issued identification card or a United States military card. Notary Public Registration Number: My commission expires: Notary Seal (sharp, legible, reproducible) {00488424.DOCX } 9 COMMONWEALTH OF VIRGINIA ) ) TO-WIT CITY/COUNTY OF ROANOKE ) The foregoing instrument was acknowledged before me this _____ day of October, 2022, by David B. Trinkle, in his individual capacity and in his capacity as a Member of Gish Mill Davii, LLC, and who has presented identification of (a United States Passport, a certificate of United States citizenship, a certificate of naturalization, an unexpired foreign passport, an alien registration card with photograph, a state issued driver’s license or state issued identification card or a United States military card. Notary Public Registration Number: My commission expires: Notary Seal (sharp, legible, reproducible) {00488424.DOCX } 10 LENDER: ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA Linwood P. Windley Chair COMMONWEALTH OF VIRGINIA ) ) TO-WIT CITY/COUNTY OF ROANOKE ) The foregoing instrument was acknowledged before me this _____ day of October, 2022, by Linwood P. Windley, in his capacity as a Chair of the Economic Development Authority of Roanoke County, Virginia, and who has presented identification of (a United States Passport, a certificate of United States citizenship, a certificate of naturalization, an unexpired foreign passport, an alien registration card with photograph, a state issued driver’s license or state issued identification card or a United States military card. Notary Public Registration Number: My commission expires: Notary Seal (sharp, legible, reproducible) Approved as to legal form: ____________________________ Peter S. Lubeck Roanoke County Attorney, as Counsel for the EDA {00488306.DOCX } 1 LOAN AGREEMENT AMONG THE TOWN OF VINTON, VIRGINIA, THE ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA, AND GISH MILL DAVII, LLC FOR THE INDUSTRIAL REVITALIZATION FUND LOAN FUNDS This Loan Agreement for Industrial Revitalization Fund Loan Funds (“Agreement”) is made and entered into this _____ day of October, 2022, by and among Gish Mill Davii, LLC. (“Borrower”), the Town of Vinton, Virginia (“Town”) and the Economic Development Authority of Roanoke County, Virginia (“EDA”). WITNESSETH WHEREAS, the Virginia Department of Housing and Community Development (“DHCD”) awarded the Town an Industrial Revitalization Fund Grant (“IRF Grant”) for the purpose of redeveloping the Gish Mill Property located within the Town of Vinton, Virginia; and WHEREAS, the DHCD requires that the Town shall grant the IRF Grant funds to the EDA and the EDA shall loan those funds to Gish Mill Davii, LLC for undertaking the Gish Mill Redevelopment Project which is designed to rehabilitate the historic structure and, among other objectives, create new jobs within the Town (“IRF Loan”); and WHEREAS, the Borrower may use the IRF Loan proceeds to remodel existing buildings, improve the surrounding property, and purchase fixtures, machinery, and equipment; and WHEREAS, the Borrower shall repay the IRF Loan to the EDA in accordance with the terms of this Agreement, and the EDA shall transfer all repaid loan funds to the Town. NOW, THEREFORE, for and in consideration of the mutual promises contained herein, the parties agree as follows: 1. Exclusively from funds granted to the Town by the DHCD pursuant to the IRF Grant, the Town shall grant to the EDA the amount of Four-hundred Sixty-eight Thousand and Seven Hundred and Fifty Dollars ($468,750.00) to be used by the EDA exclusively for the IRF Loan to Borrower under this Agreement. {00488306.DOCX } 2 2. The EDA shall loan to Borrower, pursuant to the terms of this Agreement, the amount of Four-hundred Sixty-eight Thousand and Seven Hundred and Fifty Dollars ($468,750.00) to be used by the Borrower exclusively for the Gish Mill Redevelopment Project. The EDA will administer the loan. 3. Borrower shall repay said loan over a period of thirty (30) years, with no payments required during the first twenty (20) years following closing. Interest shall accrue at a rate of zero percent (0%) per annum during the initial twenty (20) years following closing. Interest shall begin to accrue on the loan’s outstanding principal balance on the first day following the twentieth (20th) anniversary of closing at a rate of two and one half per centum (2.5%) per annum. Beginning on first day of the first full month following the twentieth (20th) anniversary of closing, and continuing on the first day of each succeeding month until the loan is repaid in full, Borrower shall pay to the EDA all principal and accrued interest under this loan. If the twentieth (20th) anniversary of closing is in the middle of a month, then daily interest shall be charged to Borrower for the remainder of such month and added to Borrower’s accrued interest payment obligation. Borrower shall make one-hundred and twenty (120) equal monthly payments of principal and interest on the date when due in immediately available funds; provided, however, Borrower may pay the principal balance of the loan, or any portion thereof, plus accumulated interest, to the EDA at any time prior to the due date, without penalty. 4. As a condition of said loan, Borrower shall execute an IRF Loan Promissory Note, IRF Loan Deed of Trust, Performance Agreement, Restriction Agreement, Construction Loan Agreement, Construction Loan Promissory Note, Construction Loan Deed of Trust, and such other documents as the Town and/or EDA deem appropriate (collectively, the “Transaction Documents”). The IRF Loan Promissory Note and IRF Loan Deed of Trust shall further evidence the payment obligation agreed to by Borrower under this Agreement. Said Transaction Documents shall be in a form acceptable to counsel for the Town and the EDA, and shall contain certain penalties for failure to pay, as specified in the terms of such documents. The collateral offered by the Borrower(s) to secure the repayment of this loan is as follows: County of Roanoke, Virginia, Parcel ID 060.11-04-22.00-0000 (350 Gus Nicks Blvd); {00488306.DOCX } 3 County of Roanoke, Virginia, Parcel ID 060.11-04-23.00-0000 (0 Gus Nicks Blvd); and City of Roanoke, Virginia, Parcel ID 3410617 (0 Brook St. NE); which collectively are known as the Gish Mill Property. 5. Borrower represents and warrants that: a. It is, or as of closing will be, the sole owner of the above-described collateral and that the above-described collateral is free and clear of all other notes, mortgages, deeds of trusts, pledges, security interests, liens, mortgages and similar encumbrances, other than that certain deed of trust on the collateral for the benefit of Virginia Community Capital securing a construction loan for the Gish Mill Redevelopment Project, or that such instruments will be subordinated to the EDA’s interest in same, and that, at closing, the EDA will be in no lower than a second priority position, behind the foregoing Virginia Community Capital Deed of Trust, over said collateral. The EDA or the Town shall have the right, but not the obligation, to conduct a title search, UCC lien search, or similar review of any liens or encumbrances against the collateral prior to closing, and Borrower shall cooperate in such process and shall be responsible for all costs and expenses connected with such searches and reviews. If the results of such search or review are unsatisfactory to the EDA or the Town for any reason, the EDA or the Town shall have the right to either cancel or terminate this Agreement, or to give Borrower an opportunity to remedy the defect found in the collateral review process. b. It is a duly created, validly existing, and in good standing limited liability company under the laws of the Commonwealth of Virginia. c. It has all powers, licenses, authorizations, and consents and approvals required to exist and to enter into this Agreement and the other Transaction Documents. d. The execution and delivery by Borrower of the Transaction Documents are fully within its power, have been duly authorized as may be required by law, and are legal, binding, valid and enforceable obligations of Borrower. 6. Borrower shall strictly comply with all terms and conditions of this Agreement and all local, state and federal laws, rules and regulations applicable to the Gish Mill Redevelopment Project. The terms and conditions of this Agreement shall include all of the terms and {00488306.DOCX } 4 requirements contained in the Town’s contract with the Virginia Department of Housing and Community Development for the Industrial Revitalization Fund grant proceeds. 7. Borrower shall use the loan proceeds only for the improvement of the collateral identified above. Failure to use loan proceeds for these purposes shall be a breach of this Agreement which shall cause the entire amount loaned hereunder, together with all accrued interest and fees, to be due in full at the time of such breach. 8. Borrower hereby irrevocably consents to the Town’s or the EDA’s entry, or the entry of an authorized agent of either of the foregoing, at such reasonable dates and times as they may deem necessary to ensure that the Borrower is using IRF Loan proceeds for the Gish Mill Redevelopment Project and that it is carrying out the project in a good and workmanlike manner. 9. As a condition of making the loan, and as a continuing requirement of this Agreement, Borrower shall strictly comply with all terms as follows, but not be limited to: (i) timely and full repayment of the IRF Loan Promissory Note executed by Borrower; (ii) the achieving and maintaining of the Targets (as defined in the parties’ Performance Agreement dated as of October ___, 2022) that are required for the loan; (iii) maintaining for the life of the loan the collateral described herein and not allowing such collateral to lose its value (except for ordinary wear and tear); (iv) keeping adequate casualty insurance on the collateral as required herein; (v) not declaring bankruptcy, becoming insolvent, or making any assignments for the benefit of any of the Borrower’s creditors; nor taking any action that would cause the EDA or the Town to lose its priority position in the collateral. Furthermore, as a condition of the loan, Borrower shall make its business records, personnel records and books available to EDA or the Town or any of their authorized agents for audit upon three (3) business days’ notice to Borrower, to assure that all terms and conditions of the IRF Loan and this Agreement are being met and that the IRF Loan proceeds are being spent to further the Gish Mill Redevelopment Project. 10. The Loan shall be subject to call, in full, if the Borrower breaches any of the material terms and conditions of this Agreement, any of the Transaction Documents, the Contract of Sale dated as of April 8, 2020, or any other agreement between or among any of the Borrower, the EDA, the DHCD, or the Town related to the Gish Mill Redevelopment Project (collectively, the “Related Agreements”). {00488306.DOCX } 5 11. This Agreement is entered into and governed by the laws of the Commonwealth of Virginia. Any suit to enforce or interpret any term or condition herein or concerning any other matter connected with this Agreement shall be brought only in the Circuit Court of the County of Roanoke, Virginia. 12. Any notices to the parties hereto shall be sent as follows: To the EDA: Economic Development Authority of Roanoke County, Virginia, 5204 Bernard Dr., Room 421, Roanoke, VA 24018 To the Town: Town Manager, Town of Vinton, 311 South Pollard Street, Vinton, VA 24719. To the Borrower: Gish Mill Davii, LLC, 120 Campbell Ave., SW, Roanoke VA 24011 13. Borrower shall be required to procure and maintain insurance with a licensed Virginia insurance company which shall protect the assets pledged as collateral hereunder against loss due to fire or other casualty or hazard, as applicable. The EDA and the Town shall be named as loss payees or additional insureds under said policy up to the amount of the loan, and Borrower shall provide proof of said insurance and shall not cancel said policy or policies without first procuring qualifying replacement insurance coverage from another licensed Virginia insurance company, as required hereunder. All such insurance policies shall be written by insurers, in amounts, with endorsements, and on terms and conditions satisfactory to the EDA and the Town. Copies of all such policies shall be provided to the EDA and the Town. 14. Borrower shall indemnify and save the EDA and the Town harmless from any and all loss damages incurred by the EDA and/or the Town as a result of any breach of this Agreement or any Related Agreement by Borrower, including, but not limited to, reimbursement to the EDA and/or the Town of any and all costs, fees, damages, claims, losses, and similar items, as well as all attorneys’ fees incurred by the EDA and/or the Town as a result of Borrower’s breach. 15. The closing on the loan shall occur within ten (10) days from the date of this Agreement, or within such reasonable time thereafter as the necessary papers are prepared and all contingencies are satisfied. Borrower covenants that it has and will have, as of the date of closing on the IRF Loan Promissory Note, the IRF Loan Deed of Trust and other Transaction Documents, good and marketable title to the Property and full authority to convey the Property to a trustee of the EDA’s selection. The terms of this Agreement shall survive closing and shall {00488306.DOCX } 6 be enforceable until the loan is fully repaid and Borrower has satisfied all requirements of this Agreement. 16. Within thirty (30) days of receiving a loan repayment from Borrower, the EDA shall remit the amount of the loan repayment to the Town. 17. This Agreement shall be binding upon the parties hereto and is not assignable or assumable by any party without the express written consent of the EDA and the Town. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first written above. Economic Development Authority of Roanoke County, Virginia By: ______________________________ Name: Linwood P. Windley Title: Chair COMMONWEALTH OF VIRGINIA COUNTY OF ROANOKE, to wit: The foregoing document was acknowledged before me by Linwood P. Windley, Chair of the Economic Development Authority of the County of Roanoke, Virginia, a political subdivision of the Commonwealth of Virginia, on behalf of such entity, this ___ day of October, 2022. ____________________________ Registration Number: _____________ Notary Public My Commission Expires: _____________ Approved as to legal form: ____________________________ Peter S. Lubeck Roanoke County Attorney, as Counsel for the EDA {00488306.DOCX } 7 Town of Vinton, Virginia By: ______________________________ Name: Bradley E. Grose Title: Mayor COMMONWEALTH OF ___________ CITY/COUNTY OF ______________, to wit: The foregoing document was acknowledged before me by Bradley E. Gross, Mayor of the Town of Vinton, Virginia, a political subdivision of the Commonwealth of Virginia, on behalf of such entity, this ___ day of October, 2022. ____________________________ Registration Number: _____________ Notary Public My Commission Expires: _____________ Approved as to legal form: Jeremy E. Carroll Town Attorney {00488306.DOCX } 8 Gish Mill Davii, LLC. By: ______________________________ Name: David P. Hill, Member By: ______________________________ Name: David B. Trinkle, Member COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ______________, to wit: The foregoing document was acknowledged before me by David P. Hill, Member of Gish Mill Davii, LLC, a Virginia limited liability company, on behalf of such entity, this ___ day of October, 2022. ____________________________ Registration Number: _____________ Notary Public My Commission Expires: _____________ COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ______________, to wit: The foregoing document was acknowledged before me by David B. Trinkle, Member of Gish Mill Davii, LLC, a Virginia limited liability company, on behalf of such entity, this ___ day of October, 2022. ____________________________ Registration Number: _____________ Notary Public My Commission Expires: _____________ {00488339.DOC } 1 Prepared by and return to: Jeremy Carroll (VSB#41331) GUYNN, WADDELL, CARROLL & LOCKABY, P.C. Town of Vinton Attorney 415 S. College Ave. Salem, Virginia 24153 Tel. (540) 387-2320 Fax. (540) 389-2350 City of Roanoke Tax ID # 3410617 County of Roanoke Tax Map # 060.11-04-22.00-0000 and 060.11-04-23.00-0000 Loan Amount: $ 468,750 TOWN OF VINTON, VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA INDUSTRIAL REVITILIZATION FUND LOAN DEED OF TRUST THIS DEED OF TRUST is dated the ____ day of October __, 2022, among GISH MILL DAVII, LLC, a Virginia limited liability company (referred to herein as "Grantor"); the ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA, a political subdivision of the Commonwealth of Virginia, whose address is 5204 Bernard Dr., SW, Roanoke, Virginia, VA 24018 (referred to below sometimes as "Lender" and sometimes as "Beneficiary"); and JEREMY E. CARROLL, whose business address is 415 S. College Avenue, Salem, VA 24153, and RICHARD W. PETERS JR., whose business address is 311 South Pollard Street, Vinton, VA 24179 (together "Grantee," also referred below as "Trustee"). CONVEYANCE AND GRANT For valuable consideration, Grantor grants, conveys, transfers, encumbers and pledges and assigns to Trustee, for the benefit of Lender as Beneficiary, all of Grantor's present and future right, title, and interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; and all rights, royalties, and profits relating to the real property, including without limitation all minerals, oil, gas, geothermal and similar matters, which real property is located in part in the Town of Vinton, Roanoke County, Virginia and in part in the City of Roanoke, Virginia, is more particularly described on Schedule A attached hereto and made a part hereof, and is more commonly known as 350 Gus Nicks Blvd, Vinton, VA 24179 (the "Real Property"), in trust to secure to the Lender the performance and payment by the Grantor of the Indebtedness (as defined herein) and also to secure the prompt and punctual performance by Borrower of each and every covenant, condition and agreement contained herein, and each and every other obligation, covenant and agreement contained in the Related Documents (as defined below) or otherwise concerning or related to the Real Property. Grantor presently assigns, absolutely and irrevocably, to Lender all of Grantor's right, title, and interest in and to all present and future leases of the Property and all rents from the Property until the Note executed contemporaneously herewith is paid in full and this Deed of Trust is released. {00488339.DOC } 2 DEFINITIONS The following words shall have the following meanings when used in this Deed of Trust. Beneficiary. The word "Beneficiary" means the Economic Development Authority of Roanoke County, Virginia, its successors and/or assigns. Borrower. The word "Borrower" means each and every person or entity signing the Note. Deed of Trust. The words "Deed of Trust" mean this Deed of Trust among Grantor, Lender, and Trustee. Grantor. The word "Grantor" means any and all persons and entities executing this Deed of Trust. Any Grantor who signs this Deed of Trust, but does not sign the Note, is signing this Deed of Trust only to grant and convey that Grantor's interest in the Real Property and to grant a security interest in Grantor's interest in the Rents and Personal Property to Lender. Guarantor. The word "Guarantor" means and includes without limitation any and all guarantors, sureties, and accommodation parties in connection with the indebtedness and their personal representatives, successors and assigns. Improvements. The word "Improvements" means and includes without limitation all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property. Indebtedness. The word "Indebtedness" means all principal and interest, together with all other fees, costs, and charges, if any, payable under the Industrial Revitalization Fund (“IRF”) Loan Promissory Note and any amounts expended or advanced by Lender or Town (as defined below) to discharge obligations of Borrower or expenses incurred by Trustee or Lender or Town to enforce obligations of Borrower or Grantor under this Deed of Trust, together with interest on such amounts as provided in this Deed of Trust. Lender. The word "Lender" means the Economic Development Authority of Roanoke County, Virginia its successors and assigns. Note. The word "Note" means the IRF Loan Promissory Note dated on the same day as this Deed of Trust, in the principal amount of $468,750 from Borrower to Lender, together with all renewals, extensions, modifications, refinancings, and substitutions for the Note. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. Property. The word "Property" means collectively the Real Property and the Personal Property. Real Property. The words "Real Property" mean the property, interests, and rights described above in the "Conveyance and Grant" section. Related Documents. The words "Related Documents" mean and include without limitation all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, and all other instruments, agreements, and documents, whether now or hereafter existing, executed in connection with the indebtedness. Related Documents include, but are not limited to, the Performance Agreement dated October __, 2022, the IRF Loan Agreement dated October __, 2022, the Note, the Restriction Agreement dated October __, 2022, the Construction Loan Agreement dated October ___, 2022, the {00488339.DOC } 3 Construction Loan Promissory Note dated October __, 2022, and the Construction Loan Deed of Trust dated October __, 2022. Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. Town. The word “Town” refers to the Town of Vinton, Virginia, a municipal corporation in the Commonwealth of Virginia. The Town is the recipient of a grant from the Virginia Department of Housing and Community Development Industrial Revitalization Fund. The Town is providing the proceeds of that grant to the Lender which in turn is lending those proceeds, in the amount of $468,750, to the Grantor for use in the Gish Mill Redevelopment Project in accordance with the terms of the Note, this Deed of Trust and the Related Documents. The Lender is administering the loan on behalf of the Town. Trustee. The word "Trustee" means Jeremy E. Carroll and Richard W. Peters Jr and any substitute or successor trustees. If more than one person is named as trustee, the word "Trustee" means each such person. GRANTOR'S REPRESENTATIONS AND WARRANTIES Grantor warrants that: (a) Grantor has the full power, right and authority to enter into this Deed of Trust and to hypothecate the Property; (b) the provisions of this Deed of Trust do not conflict with, or result in a default under any agreement or other instrument binding upon Grantor and do not result in a violation of any law, regulation, court decree or order applicable to Grantor; (c) Grantor holds good and marketable title to the Property in fee simple, free and clear of all liens and encumbrances, other than those set forth in the Real Property description or in any title insurance policy, title report or final title opinion issued in favor of, and accepted by, Lender in connection with this Deed of Trust; and (d) Grantor has the full right, power, and authority to execute and deliver this Deed of Trust to Lender. PAYMENT AND PERFORMANCE Except as otherwise provided in this Deed of Trust, Borrower shall pay to Lender all Indebtedness secured by this Deed of Trust as it becomes due, and Borrower and Grantor shall strictly perform all their respective obligations under the Note, this Deed of Trust and the Related Documents. POSSESSION AND MAINTENANCE OF THE PROPERTY Grantor and Borrower agree that Grantor's possession and use of the Property shall be governed by the following provisions: Possession and Use. Until the occurrence of an Event of Default, Grantor may (a) remain in possession and control of the Property, (b) use, operate and manage the Property, and (c) collect any Rents from the Property. Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value. Grantor shall not cause, conduct or permit any nuisance nor commit, permit or suffer any stripping of or waste on or to the Property or any portion of the Property. Grantor agrees neither to abandon nor leave unattended the Property. {00488339.DOC } 4 Hazardous Substances. The terms "hazardous waste," "hazardous substance," "disposal," "release," and "threatened release," as used in this Deed of Trust, shall have the same meanings as set forth in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transport Act, 49 U.S.C. Section 1801 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or Federal laws, rules or regulations adopted pursuant to any of the foregoing. The terms "hazardous waste" and "hazardous substance" shall also include, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos. Grantor represents and warrants to Lender that: (a) During the period of Grantor's ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any hazardous waste or substance by any person on, under, about or from the Property; (b) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender in writing, (i) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any hazardous waste or substance on, under, about or from the Property by any prior owners or occupants of the Property or (ii) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (c) Except as previously disclosed to and acknowledged by Lender in writing, (i) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of, or release any hazardous waste or substance on, under, about or from the Property and (ii) any such activity shall be conducted in compliance with all applicable federal, state and local laws, regulations and ordinances, including without limitation those laws, regulations and ordinances described above. Grantor authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the Deed of Trust. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any other person. The representations and warranties contained herein are based on Grantor's due diligence in investigating the Property for hazardous waste and hazardous substances. Grantor hereby (a) releases and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws, and (b) agrees to indemnify and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Deed of Trust or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor's ownership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Deed of Trust, including the obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Deed of Trust and shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or otherwise. Lender's Right to Enter. Lender and its agents and representatives may enter upon the Real Property at all reasonable times to attend to Lender's interest and to inspect the Property for purposes of Grantor's compliance with the terms and conditions of this Deed of Trust. Compliance with Governmental Requirements. Grantor shall promptly comply with all laws, ordinances and regulation, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property. {00488339.DOC } 5 DUE ON SALE -- CONSENT BY LENDER. NOTICE -- THE DEBT SECURED HEREBY IS SUBJECT TO CALL IN FULL OR THE TERMS THEREOF BEING MODIFIED IN THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY CONVEYED. Lender may, at its option, declare immediately due and payable all sums secured by this Deed of Trust upon the sale or transfer, without the Lender's prior written consent, of all of any part of the Real Property, or any interest in the Real Property. TAXES AND LIENS Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, special taxes, assessments, charges (including water and sewer), fines and impositions levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property free of all liens having priority over or equal to the interest of Lender under this Deed of Trust, except for the lien of taxes and assessments not due and except as otherwise provided in this Deed of Trust. Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises, or if a lien is filed, within fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and attorneys' fees or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessments against the Property. PROPERTY DAMAGE INSURANCE Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable value covering all improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender, together with such other hazard and liability insurance as Lender may require. Policies shall be written in form, amounts, coverages and basis acceptable to Lender and issued by a company or companies acceptable to Lender. Grantor, upon request of Lender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including stipulations that coverage will not be cancelled or diminished without at least ten (10) days' prior written notice to Lender. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person. Should the Real Property at any time become located in an area designated by the Director of the Federal Emergency Management Agency as a special flood {00488339.DOC } 6 hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance to the extent such insurance is required by Lender and is or becomes available, for the term of the loan and for the full unpaid principal balance of the loan, or the maximum limit of coverage that is available, whichever is less. EXISTING INDEBTEDNESS The following provisions concerning existing indebtedness (the "Existing Indebtedness") are a part of this Deed of Trust. No Modification. Grantor shall not enter into any agreement with the holder of any mortgage, deed of trust, or other security agreement, which has priority over this Deed of Trust by which that agreement is modified, amended, extended, or renewed without the prior written consent of Lender and the Town. Grantor shall neither request nor accept future advances under any such security agreement without the prior written consent of Lender and the Town. CONDEMNATION Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its election require that all or any portion of the net proceeds of the award by applied to the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees incurred by Trustee or Lender in connection with the condemnation. Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments as may be requested by it from time to time to permit such participation. DEFAULT Each of the following, at the option of Lender, shall constitute an event of default ("Event of Default") under this Deed of Trust: Default on Indebtedness. Failure of Borrower to make any payment when due on the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Deed of Trust to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. Compliance Default. Failure of Grantor or Borrower to comply with any other term, obligation, covenant or condition contained in this Deed of Trust, the Note or in any of the Related Documents. False Statements. Any warranty, representation or statement made or furnished to Lender or the Town by or on behalf of Grantor or Borrower under this Deed of Trust, the Note or the {00488339.DOC } 7 Related Documents is false or misleading in any material respect, either now or at the time made or furnished. Defective Collaterization. This Deed of Trust or any of the Related Documents ceases to be in full force and effect (including failure of any collateral documents to create a valid and perfected security interest or lien) at any time and for any reason. Death or Insolvency. The death of any Grantor or Borrower, the insolvency of Grantor or Borrower, the appointment of a receiver for any part of Grantor or Borrower's property, any assignment for the benefit of creditors, any type of creditor workout or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor or Borrower. Foreclosure, Forfeiture, etc. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Grantor or by any governmental agency against any of the Property. However, this subsection shall not apply in the event of a good faith dispute by Grantor as to the validity or reasonableness of the claim, which is the basis of the foreclosure or forfeiture proceeding, provided that Grantor gives Lender written notice of such claim and furnishes reserves or a surety bond for the claim satisfactory to Lender. Breach of Other Agreement. Any breach by Grantor or Borrower under the terms of any other agreement between Grantor or Borrower and Lender or Town that is not remedied within any grace period provided therein, including without limitation the Related Documents or any other agreement concerning any indebtedness or other obligation of Grantor or Borrower to Lender or Town, whether existing now or later. Insecurity. Lender in good faith deems itself insecure. RIGHTS AND REMEDIES ON DEFAULT Upon the occurrence of any Event of Default and at any time thereafter, Trustee or Lender, at its option, may exercise any one or more of the following rights and remedies, in addition to any other rights and remedies provided by law: Accelerate Indebtedness. Lender shall have the right at its option to declare the entire Indebtedness immediately due and payable, including any prepayment penalty, which Borrower would be required to pay. This right is in addition to all other rights given to holders of any promissory note under Title 55.1 of the Code of Virginia. Foreclosure. With respect to all or any part of the Real Property, the Trustee shall have the right to foreclose by notice and sale, and Lender shall have the right to foreclose by judicial foreclosure, in either case in accordance with and to the full extent provided by applicable law. The proceeds of sale shall be applied by Trustee as follows: (a) first, to pay all proper advertising expenses, auctioneer's allowance, the expenses, if any, required to correct any irregularity in the title, premium for Trustee's bond, auditor's fee, attorneys' fees, and all other expenses of sale incurred in or about the protection and execution of this Deed of Trust, and all moneys advanced for taxes, assessments, insurance and with interest thereon at the rate provided in the Note, and all taxes and assessments due upon the Property at time of sale, and to retain as compensation a commission of five percent (5%) on the amount of the sale or sales; (b) second, to pay the whole amount then remaining unpaid on the Indebtedness; (c) third, to pay liens of record against the {00488339.DOC } 8 Property according to their priority of lien and to the extent that funds remaining in Trustee's hands are available; and (d) last, to pay the remainder of the proceeds, if any, to Grantor, Grantor's heirs, personal representatives, successors or assigns upon the delivery and surrender to the purchaser of possession of the Property, less costs and expenses of obtaining possession. Collect Rents. Lender shall have the right, without notice to Grantor or Borrower, to take possession of and manage the Property and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights under this subparagraph either in person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. Other Remedies. Trustee or Lender shall have any other right or remedy provided in this Deed of Trust, the Note, the Related Documents, or at law or in equity. Waiver; Election of Remedies. A waiver by any party of a breach of a provision of this Deed of Trust shall not constitute a waiver or prejudice the party's rights otherwise to demand strict compliance with that provision or any other provision. Election by Lender to pursue any remedy provided in this Deed of Trust, Note, in any Related Document, or provided by law shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor or Borrower under this Deed of Trust after failure of Grantor or Borrower to perform shall not affect Lender's right to declare a default and to exercise any of its remedies. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Deed of Trust, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and on any appeal. Whether or not any court action is involved, all reasonable expenses incurred by Lender which in Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Notes’ rate from the date of expenditure until repaid. Rights of Trustee. Trustee shall have all of the rights and duties of Lender as set forth in this section. Any Trustee may act alone. Successor Trustee. Lender, at Lender's option, at any time hereafter and without prior notice and without specifying any reason, may from time to time appoint a successor Trustee to any Trustee appointed hereunder. The successor trustee shall succeed to all the title, power and duties conferred upon the Trustee in this Deed of Trust and by applicable law. {00488339.DOC } 9 MISCELLANEOUS PROVISIONS Amendments. This Deed of Trust, together with the Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Deed of Trust. No alteration or amendment to this Deed of Trust shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Applicable Law. This Deed of Trust shall be governed by, construed and enforced in accordance with the laws of the Commonwealth of Virginia. Caption Headings. Caption headings in this Deed of Trust are for convenience purposes only and are not to be used to interpret or define the provisions of this Deed of Trust. Severability. If a court of competent jurisdiction finds any provision of this Deed of Trust to be invalid or unenforceable, it shall be stricken and all other provisions of this Deed of Trust in all other respects shall remain valid and enforceable. Successors and Assigns. Subject to the limitations stated in this Deed of Trust on transfer of Grantor's interest, this Deed of Trust shall be binding upon and inure to the benefit of the parties, their heirs, personal representatives, successors and assigns. If ownership of the Property becomes vested in a person other than the Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Deed of Trust and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Deed of Trust or liability under the Indebtedness. Waivers and Consents. Lender shall not be deemed to have waived any rights under this Deed of Trust (or under the Related Documents) unless such waiver is in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by any party of a provision of this Deed of Trust shall not constitute a waiver of or prejudice the party's right otherwise to demand strict compliance with that provision or any other provision. No prior waiver by Lender, nor any course of dealing between Lender and Grantor or Borrower, shall constitute a waiver of any of Lender's rights or any of Grantor or Borrower's obligations as to any future transactions. Whenever consent by Lender is required in this Deed of Trust, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required. Waiver of Homestead Exemption. Grantor waives the benefit of Grantor's homestead exemption as to this obligation. REMAINDER OF PAGE BLANK SIGNATURE PAGE FOLLOWS {00488339.DOC } 10 WITNESS the following signature(s) and seal(s): GRANTOR: Gish Mill Davii, LLC By: _______________________________ David P. Hill Member By: _______________________________ David B. Trinkle Member COMMONWEALTH OF VIRGINIA COUNTY OF ROANOKE, to-wit: The foregoing instrument was acknowledged before me this __ day of October __, 2022, by David P. Hill in his capacity as a Member of Gish Mill Davii, LLC. ______________________________ Notary Public My commission expires: ________. Notary Number: __________. COMMONWEALTH OF VIRGINIA COUNTY OF ROANOKE, to-wit: The foregoing instrument was acknowledged before me this __ day of October __, 2022, by David B. Trinkle in his capacity as a Member of Gish Mill Davii, LLC. ______________________________ Notary Public My commission expires: ________. Notary Number: __________. {00488339.DOC } 11 SCHEDULE A County of Roanoke, Virginia, Parcel ID 060.11-04-22.00-0000 and 060.11-04-23.00-0000 and City of Roanoke, Virginia, Parcel ID 3410617 ADDRESS: 350 GUS NICKS BLVD, VINTON, VIRGINIA LEGAL DESCRIPTION OF REAL PROPERTY: Being all that certain tract or parcel of land together with the buildings and improvements thereon and the easements and appurtenances thereunto belonging situated in the Town of Vinton, County of Roanoke and Roanoke City, Virginia, containing 1.175 acres and being more particularly shown and described on that certain compiled plat entitled “TOWN OF VINTON PROPERTIES TO BE CONVEYED TO GISH MILL DAVII, LLC,” dated August 25, 2022 and made by L. W. Knighting L.S., a copy of which is recorded in the Clerk’s Office, Circuit Court, Roanoke County in _____________________________________. {00488425.DOCX } 1 TOWN OF VINTON ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA INDUSTRIAL REVITILIZATION FUND LOAN PROMISSORY NOTE Principal Amount: $468,750.00 Loan Date: October ___, 2022 IMPORTANT NOTICE THIS INSTRUMENT CONTAINS A CONFESSION OF JUDGMENT PROVISION WHICH CONSTITUTES A WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE AS A DEBTOR AND ALLOWS THE CREDITOR TO OBTAIN A JUDGMENT AGAINST YOU WITHOUT ANY FURTHER NOTICE. FOR VALUE RECEIVED, the undersigned GISH MILL DAVII, LLC., a Virginia limited liability company (“Borrower”) promises to pay to the order of the Economic Development Authority of Roanoke County, Virginia, its successors and/or assigns (“Lender”), without offset, at Lender’s office, currently located at 5204 Bernard Dr., SW, Roanoke, Virginia, VA 24018, or at such other place as Lender may from time to time designate, the principal sum of FOUR HUNDRED SIXTY-EIGHT THOUSAND AND SEVEN HUNDRED FIFTY DOLLARS ($468,750.00) and all other sums which may be owing to Lender by Borrower pursuant to this promissory note (this “Note”). The following terms shall apply to this Note. 1. REPAYMENT; MATURITY DATE. Interest: Interest on the unpaid balance of this Note shall accrue at a fixed rate of zero percent (0%) per year, for the first twenty years of the loan. Interest on the unpaid balance of this Note shall accrue at a fixed rate of two and one half percent (2.5%) per year, beginning on the first day following the twentieth (20th) anniversary of the Loan Date. Repayment: The indebtedness evidenced by this Note shall be paid by Borrower to Lender as follows: The term of the loan will be for 30 years, with no payments required during the initial 20 years following the Loan Date. Beginning on the first day of the month following the twentieth (20th) anniversary of the Loan Date, Borrower will commence repaying the principal, all accrued interest, and all other amounts due under this Note in (120) equal monthly installments. Each installment will be payable on the 1st day of each month for 120 consecutive months. The entire principal balance and all accrued, unpaid interest thereon, if any, and all other amounts due under this Note shall be due and payable no later than the thirtieth (30th) anniversary of the Loan Date (the “Maturity Date”). Daily interest between the accruing between twentieth (20th) anniversary of the Loan Date and the first day of the month following twentieth (20th) anniversary of the Loan Date shall be calculated at a rate of 2.5% per year and included in the Borrower’s accrued interest payment obligation. {00488425.DOCX } 2 2. LATE PAYMENT CHARGE. If any payment due hereunder is not received by Lender within seven (7) days after the due date, Borrower shall pay a late payment charge equal to five percent (5%) of the amount then due. 3. APPLICATION OF PAYMENTS. All payments made pursuant to this Note shall be applied first to late payment charges or other sums owed to Lender, next to accrued interest, and then to principal, or in such other order or proportion as Lender, in Lender’s sole and absolute discretion, may elect from time to time. 4. PREPAYMENT. Borrower may prepay this Note in whole or in part at any time or from time to time without premium or additional interest. 5. EVENTS OF DEFAULT. Any one of the following events shall constitute an “Event of Default” under this Note: a. If any payment on this Note, or if any payment on any other present or future debt or obligation of Borrower, or any maker, endorser or guarantor of this Note or such other debt or obligation (each a “Party” and collectively the “Parties”), to Lender, is not paid when due. b. If Borrower, or any Party, defaults or breaches any term, covenant, representation, warranty, or provision of this Note or defaults or breaches any term, covenant, representation, warranty, or provision of any other agreement or document made by Borrower or any other Party for the benefit of Lender or the Town of Vinton, Virginia (“Town”), including without limitation the IRF Loan Agreement dated as of October __, 2022, the IRF Deed of Trust dated as of October __, 2022, the Performance Agreement dated as of October __, 2022, the Restriction Agreement dated as of October ___, 2022, the Construction Loan Agreement dated as of October ___, 2022, the Construction Loan Promissory Note dated as of October ___, 2022, and the Construction Loan Deed of Trust dated as of October __, 2022 (collectively, as modified or amended from time to time, the “Loan Documents”), or any other instrument or agreement delivered to Lender or Town in connection with this or any other transaction with Lender or Town, or if Borrower, or any Party, makes a materially false or misleading statement to Lender or Town. c. If any of the Security (as hereinafter defined) is lost, abandoned, destroyed, severely damaged, involved in legal proceeding, sold or transferred except as permitted by prior written agreement with Lender. d. If any Borrower, or any Party, dies, dissolves, merges, consolidates, ceases to be a going concern, or there is a change in the ownership in Borrower or any Party of more than twenty percent (20%). e. If a petition or complaint under any bankruptcy, insolvency or other law seeking reorganization, liquidation, dissolution or other relief is filed by or against Borrower, or any party, or if Borrower, or any Party, becomes unable or admits an inability to pay its debts as they become due. {00488425.DOCX } 3 f. If any property of Borrower, or any Party, is seized, attached or levied on, or if a receiver or custodian is appointed for Borrower or any Party. g. If Lender believes in good faith that (i) the prospect of payment or performance hereunder is impaired (ii) any of the Security is insecure or (iii) a material, adverse change has occurred in Borrower’s, or any Party’s, condition, financial or otherwise. h. If any guaranty obtained in connection with this Note is terminated. 6. REMEDIES. Upon the occurrence of an Event of Default, Lender shall have the right to accelerate and declare this Note due and payable in full upon ten (10) days’ notice to Borrower. Lender shall have all of the rights and remedies of a secured party under the Uniform Commercial Code, as well as all of the rights and remedies granted by the Loan Documents, by other applicable law, under any document related to the loan evidenced by this Note, or to any of the Security. Without limiting the generality of the foregoing, Lender shall have the right, immediately and without further action or notice, to set off against this Note all money owed by Lender in any capacity to Borrower, and any Party, whether or not due, and to set off against all other liabilities of Borrower and any Party, to Lender all money owed by Lender in any capacity to Borrower and/or each or any Party whether or not due. All rights and remedies of Lender under this Note and the Loan Documents, under any document given to Lender in connection with this Note and under applicable law shall be cumulative and not exclusive and may be exercised successively or concurrently. Lender shall not by any act, delay, omission, or otherwise be deemed to have waived any of its right or remedies and no waiver of any kind shall be deemed to have occurred unless in writing and signed by an authorized office of Lender. Following the occurrence of an Event of Default, Lender may raise the rate of interest accruing on the unpaid balance due under this Note by three percent (3%) above the rate of interest otherwise applicable until such time as such default has been cured to Lender’s entire satisfaction, independent of whether Lender elects to accelerate the unpaid principal balance as a result of such default. 7. INTEREST RATE AFTER JUDGMENT. If judgment is entered against Borrower on this Note, the amount of the judgment entered (which may include principal, interest, penalties, fees, and costs) shall bear interest at the higher of the above described default interest rate as determined on the date of the entry of the judgment, or the legal rate of interest then applicable to judgments in the jurisdiction in which judgment was entered. 8. EXPENSES OF COLLECTION. If this Note is referred to an attorney for collection, whether or not judgment has been confessed or suit has been filed, Borrower shall pay all of Lender’s costs, fees (including, without limitation, Lender’s attorneys’ fees, paralegal charges and expenses) and all other expenses resulting from such referral. 9. SECURITY. Borrower’s obligations under this Note are secured by the following real property, collectively known as the Gish Mill Property: County of Roanoke, Virginia, Parcel ID 060.11-04-22.00-0000 (350 Gus Nicks Blvd); County of Roanoke, Virginia, Parcel ID 060.11-04-23.00-0000 (0 Gus Nicks Blvd); and City of Roanoke, Virginia, Parcel ID 3410617 (0 Brook St. NE). {00488425.DOCX } 4 10. FINANCIAL CONDITION. Borrower warrants, represents and covenants to Lender that on and after the date hereof: (a) the fair saleable value of Borrower’s assets exceeds its liabilities, Borrower is meeting its current liabilities as they mature, and Borrower is and shall remain solvent; (b) all financial statements of Borrower furnished to Lender are correct and accurately reflect the financial condition of Borrower as of the respective dates thereof; (c) since the date of such financial statements, there has not occurred a material adverse change in the financial condition of Borrower; (d) there are not now pending any court or administrative proceedings or undischarged judgments against Borrower, and Borrower is not in default or claimed default under any agreement; and (e) at such reasonable times as Lender requests, Borrower will furnish Lender with such other financial information as Lender may reasonably request. 11. FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Lender such information as Lender may reasonably request from time to time, including without limitation, financial statements and information pertaining to Borrower’s financial condition. Such information shall be true, complete, and accurate. 12. AFFIRMATIVE COVENANTS. Until this Note is paid in full, Borrower, the Borrower agrees as follows: a. The Borrower shall pay all amounts due under this Note in accordance with its terms without offset or deduction. b. The Borrower shall pay all costs and expenses incurred by Lender in collecting this Note, with or without litigation, or in preserving, perfecting or disposing of any of the Security including attorney’s fees. c. The liability of the Borrower shall not be affected by any failure, neglect, or omission of Lender to exercise any right or remedy that it may have or any determination that any of the collateral, lien or security interest taken by Lender is either invalid, unperfected, or any Security is damaged, misused or destroyed. d. Lender shall not be required to take action against the Borrower or resort to any of the Security, and Lender may without notice to or consent by the Borrower permit the substitution, exchange or release of any of the Security. e. The Borrower waives presentment, demand, protest, notice of dishonor and of protest, and all defenses based on suretyship or impairment of the Security. f. The Borrower waives the benefit of all homestead and other exemptions to the fullest extent permitted by law. g. The Borrower shall maintain its existence in good standing as may be from time to time required by applicable law. 13. NEGATIVE COVENANTS. Borrower agrees that from the date hereof and until final payment in full of its obligations hereunder, unless Lender shall otherwise consent in writing, Borrower will not: (a) default on any material contract with or obligation when due to a third party or default in the performance of any obligation to a third party {00488425.DOCX } 5 incurred for money borrowed (b) permit the assertion or making of any seizure, vesting or intervention by or under authority of any governmental entity, as a result of which the management of Borrower is displaced of its authority in the conduct of its respective business or such business as curtailed or materially impaired (c) permit the entry of any monetary judgment or the assessment against, the filing of any tax lien against, or the issuance of any writ of garnishment or attachment against the Borrower or any property owned by the Borrower; and/or (d) retire or otherwise dispose of any of its ownership interests. 14. NOTICES. Any notices to Borrower shall be sufficiently given, if in writing and mailed or delivered to the address of Borrower shown above or such other address as provided hereunder; and to Lender, if in writing and mailed or delivered to the address of Lender shown above or such other address as Lender may specify in writing from time to time. In the event that Borrower changes Borrower’s mailing address at any time prior to the date the obligations are paid in full, Borrower agrees to promptly give written notice of said change of address by registered or certified mail, return receipt requested, all charges prepaid. 15. JOINT AND SEVERAL LIABILITY. If more than one person or entity is executing this Note as a Borrower, all liabilities under this Note shall be joint and several with respect to each of such persons or entities. 16. ASSIGNABILITY; BINDING NATURE. This Note may be assigned by Lender at any time. This Note shall inure to the benefit of and be enforceable by Lender and Lender’s successors and assigns and any other person to whom Lender my grant an interest in Borrower’s obligations to Lender, and shall be binding and enforceable against Borrower and Borrower’s personal representatives, successors and assigns. 17. INVALIDITY OF ANY PART. If any provision or part of any provision of this Note shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Note and this Note shall be construed as if such invalid, illegal or unenforceable provision or part thereof had never been contained herein, but only to the extent of its invalidity, illegality or unenforceability. 18. MAXIMUM RATE OF INTEREST. Notwithstanding any provision of this Note or the Loan Documents to contrary, Borrower shall not be obligated to pay interest pursuant to this Note in excess of the maximum rate of interest permitted by the laws of any state determined to govern this Note or the laws of the United States applicable to the loans in such state. If any provision of this Note shall ever be construed to require the payment of any amount of interest in excess of that permitted by applicable law, then the interest to be paid pursuant to this Note shall be held subject to reduction to the amount allowed under applicable law, and any sums paid in excess of the interest rate allowed by law shall be applied in reduction of the principal balance outstanding pursuant to this Note. Borrower acknowledges that it has been contemplated at all times by Borrower that the laws of the Commonwealth of Virginia will govern the maximum rate of interest that it is permissible for Lender to charge Borrower pursuant to this Note. {00488425.DOCX } 6 19. CHOICE OF LAW; CONSENT TO VENUE AND JURISDICTION. This Note shall be governed, construed and interpreted strictly in accordance with the laws of the Commonwealth of Virginia. Borrower consents to the jurisdiction and venue of the courts of Roanoke County in the Commonwealth of Virginia, or to the jurisdiction and venue of the United States District Court for the Western District of Virginia in any action or judicial proceeding brought to enforce, construe or interpret this Note. Borrower agrees to stipulate in any future proceeding that this note is to be considered for all purposes to have been executed and delivered within the geographical boundaries of the Commonwealth of Virginia, even if it was, in fact, executed and delivered elsewhere. 20. ACTIONS AGAINST LENDER. Any action brought by Borrower against Lender which is based, directly or indirectly, or in whole or part, upon this Note or any matter related to this Note or any other Loan Documents shall be brought only in the courts of the Commonwealth of Virginia located in Roanoke County, Virginia. 21. LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING LENDER, BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS NOTE, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (A) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (B) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO THE PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION JUDICIALLY OR OTHERWISE. 22. WAIVER OF JURY TRIAL. BORROWER (BY ITS EXECUTION HEREOF) AND LENDER (BY IT ACCEPTANCE OF THIS NOTE) AGREE THAT ANY SUIT, ACTION, OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR INSTITUTED BY BORROWER, LENDER OR ANY SUCCESSOR OR ASSIGN OF BORROWER OR LENDER ON OR WITH RESPECT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT OR WHICH IN ANY WAY RELATES, DIRECTLY OR INDIRECTLY, TO THE OBLIGATIONS OF BORROWER TO LENDER PURSUANT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT, OR THE DEALINGS OF BORROWER AND LENDER WITH RESPECT THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. BORROWER AND LENDER HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY SUCH SUIT, ACTION, OR PROCEEDING. 23. CONFESSION OF JUDGMENT. BORROWER HEREBY CONSTITUTES AND APPOINTS LENDER THROUGH AN OFFICER DULY AUTHORIZED BY LENDER AS THE TRUE AND LAWFUL ATTORNEYS-IN-FACT FOR BORROWER UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT IN THE PAYMENT OF ANY {00488425.DOCX } 7 OBLIGATION DUE UNDER THIS NOTE, AT MATURITY, OR UPON ACCELERATION, TO CONFESS JUDGMENT AGAINST BORROWER IN FAVOR OF THE LENDER, BEFORE THE CLERK OF THE CIRCUIT COURT FOR ROANOKE COUNTY, VIRGINIA, IN ACCORDANCE WITH THE CODE OF VIRGINIA (1950), AS AMENDED, SECTION 8.01-431 ET SEQ., AND ANY SUCCESSOR STATUTE, FOR ALL AMOUNTS OWED WITH RESPECT TO THE OBLIGATIONS UNDER AND PURSUANT TO THIS NOTE INCLUDING, WITHOUT LIMITATION, ALL COSTS OF COLLECTION AND ATTORNEYS’ FEES IN AN AMOUNT EQUAL TO 25% OF THE OBLIGATIONS THEN OUTSTANDING (WHICH SHALL BE DEEMED REASONABLE ATTORNEYS’ FEES FOR THE PURPOSES OF THIS PARAGRAPH) AND COURT COSTS, HEREBY RATIFYING AND CONFIRMING THE ACTS OF SAID ATTORNEY-IN- FACT AS IF DONE BY THEMSELVES. UPON REQUEST OF LENDER, EACH BORROWER WILL EXECUTE AN AMENDMENT OR OTHER AGREEMENT SUBSTITUTING ATTORNEYS-IN-FACT APPOINTED TO ACT FOR EACH BORROWER HEREUNDER. [SIGNATURE PAGES FOLLOW] {00488425.DOCX } 8 IN WITNESS WHEREOF, and intending to be legally bound hereby, the undersigned execute this Note under seal, as Borrower as of the date first written above. BORROWER: Gish Mill Davii, LLC. a Virginia limited liability company By: Name: David P. Hill Title: Member By: Name: David B. Trinkle Title: Member COMMONWEALTH OF VIRGINIA ) ) TO-WIT CITY/COUNTY OF ROANOKE ) The foregoing instrument was acknowledged before me this _____ day of October, 2022, by David P. Hill and in his individual capacity and in his capacity as a Member of Gish Mill Davii, LLC, and who has presented identification of (a United States Passport, a certificate of United States citizenship, a certificate of naturalization, an unexpired foreign passport, an alien registration card with photograph, a state issued driver’s license or state issued identification card or a United States military card. Notary Public Registration Number: My commission expires: Notary Seal (sharp, legible, reproducible) {00488425.DOCX } 9 COMMONWEALTH OF VIRGINIA ) ) TO-WIT CITY/COUNTY OF ROANOKE ) The foregoing instrument was acknowledged before me this _____ day of October, 2022, by David B. Trinkle, in his individual capacity and in his capacity as a Member of Gish Mill Davii, LLC, and who has presented identification of (a United States Passport, a certificate of United States citizenship, a certificate of naturalization, an unexpired foreign passport, an alien registration card with photograph, a state issued driver’s license or state issued identification card or a United States military card. Notary Public Registration Number: My commission expires: Notary Seal (sharp, legible, reproducible) {00488425.DOCX } 10 LENDER: ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA Linwood P. Windley Chair COMMONWEALTH OF VIRGINIA ) ) TO-WIT CITY/COUNTY OF ROANOKE ) The foregoing instrument was acknowledged before me this _____ day of October, 2022, by Linwood P. Windley, in his capacity as a Chair of the Economic Development Authority of Roanoke County, Virginia, and who has presented identification of (a United States Passport, a certificate of United States citizenship, a certificate of naturalization, an unexpired foreign passport, an alien registration card with photograph, a state issued driver’s license or state issued identification card or a United States military card. Notary Public Registration Number: My commission expires: Notary Seal (sharp, legible, reproducible) Approved as to legal form: ____________________________ Peter S. Lubeck Roanoke County Attorney, as Counsel for the EDA {00488308.DOCX 2} 1 Prepared by: Jeremy Carroll (VSB No. 41331) Guynn, Waddell, Carroll & Lockaby, P.C. 415 South College Avenue Salem, Virginia 24153 This instrument is exempt from recordation fees and taxes pursuant to Sections 17.1-266, 17.1-179(E), 58.1-811(A)(3) and 58.1-811(C)(4) of the Code of Virginia, 1950, as amended. RESTRICTION AGREEMENT This RESTRICTION AGREEMENT is made as of the ___ day of October, 2022, by and among the Economic Development Authority of Roanoke County, Virginia, a political subdivision of the Commonwealth of Virginia (the “Authority,” to be indexed as “Grantor”), Gish Mill Davii, LLC, a limited liability company validly organized and existing under the laws of the Commonwealth of Virginia (the “Company,” to be indexed as “Grantor”), and the Virginia Department of Housing and Community Development, an agency of the Commonwealth of Virginia (“DHCD,” to be indexed as “Grantee”). WHEREAS, the Company and the Town of Vinton, Virginia, a municipal corporation of the Commonwealth of Virginia (the “Town”) entered into a Contract of Sale dated as April 8, 2020 (the “Purchase Agreement”) and, along with the Authority, a Performance Agreement dated as of October __, 2022 (the “Performance Agreement”), contemplating the redevelopment of Gish Mill, which is located at County of Roanoke, Virginia, Parcels ID 060.11-04-22.00-0000 (350 Gus Nicks Blvd.) and 060.11-04-23.00- 0000 (0 Gus Nicks Blvd.) and City of Roanoke, Virginia, Parcel ID 3410617 (0 Brook St. NE) and is more completely described in Attachment A (the “Subject Property”), as a mixed use commercial and residential development (the “Project”); and WHEREAS, by virtue of said Purchase Agreement, the Town has agreed to convey the Subject Property to the Company, subject to the terms and conditions contained therein and in the Performance Agreement, and the Authority will have effective control of the Subject Property, through its participation in the Performance Agreement and that certain IRF Loan Promissory Note and IRF Loan Deed of Trust which it holds on the Subject Property, which include performance guarantees by the Company, dated as of October ___, 2022; and WHEREAS, on June 9, 2021, the Town entered into an agreement with DHCD for an Industrial Revitalization Fund grant (“IRF Grant”) with the understanding that the Authority will act as a pass-through entity and will loan the IRF Grant funds to the Company to undertake and complete the Project on the Subject Property; and WHEREAS, DHCD awarded to the Town an IRF Grant in the amount of $468,750, which amount the Town shall grant to the Authority and the Authority shall loan to the Company (“IRF Loan”), for {00488308.DOCX 2} 2 ultimate use by the Company to rehabilitate the Subject Property from a vacant, deteriorating facility, into the finished Project, as contemplated by the Performance Agreement; and WHEREAS, as a condition of the IRF Grant to the Town and subsequent IRF Loan to the Company, DHCD requires placement of a recorded restriction among the land records in the Clerk’s Office of the Circuit Court of Roanoke County, Virginia and among the land records in the Clerk’s Office of the Circuit Court of the City of Roanoke, Virginia. NOW THEREFORE, in consideration of the foregoing recitals, the IRF Grant to the Authority, and the IRF Loan to the Company, the sufficiency of which is hereby acknowledged, the Parties hereto agree as follows: 1. The Authority and the Company do hereby covenant unto DHCD that for a period of Ten (10) years from the date of issuance of a Certificate of Occupancy for any portion of the Subject Property (the “DHCD Compliance Period”), the Subject Property will be used as contemplated in the Performance Agreement, and specifically as a mixed use residential and commercial property with ancillary related structures. 2. The Authority and the Company covenant to notify DHCD immediately, in writing, if during the DHCD Compliance Period there is (i) a change in ownership of any parcel comprising the Subject Property that would cause it to cease to be used for the purposes of the Project; or (ii) any change in use of the Subject Property that would cause the Subject Property no longer to be considered to be within the scope of the Project. 3. In the event that a change in ownership or a change in use, as defined in section 2, causes the Subject Property no longer to be used as contemplated for the Project, DHCD will require the Authority and the Company to make an immediate and full repayment of the IRF Loan (the “Repayment”). The Repayment required under this section will include an acceleration of all amounts due and payable by the Company under that certain IRF Loan Promissory Note dated as of October __, 2022. The Authority’s repayment obligations under this section are limited to those sums lawfully recovered from the Company for such Repayment. The Authority covenants to take commercially reasonable steps to undertake such recovery. 4. At the expiration of the DHCD Compliance Period, this Restriction Agreement shall terminate, without necessity of the recordation of any release. 5. All notices and other communications given under this Restriction Agreement must be in writing and delivered personally, by facsimile, reputable overnight courier, or by certified U.S. Mail, postage prepaid, to: To the Authority: Economic Development Authority of Roanoke County, Virginia {00488308.DOCX 2} 3 5204 Bernard Drive, SW Roanoke, Virginia 24018 ATTN: Chair And Roanoke County Attorney’s Office 5204 Bernard Drive, SW Fourth Floor Roanoke, Virginia 24018 Attn: Peter Lubeck, County Attorney To the Company: Gish Mill Davii, LLC. 120 Campbell Ave SW Roanoke, VA 24011 To DHCD: Virginia Department of Housing & Community Development 600 East Main Street, Suite 300 Richmond, Virginia 24320 Notices will be deemed delivered: (i) if delivered personally, upon delivery; (ii) if delivered by facsimile, immediately upon electronic confirmation of receipt of transmission; (iii) if delivered by reputable overnight courier, as of noon on the business day on which or, if delivered on a weekend or holiday, next following the day on which the courier delivers it, or (iv) if delivered by U.S. Mail, as of the third business day after deposit in the U.S. Mail. 6. If any provision of this Restriction Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remainder of this Restriction Agreement shall not be affected thereby, and in lieu of such provision that is held to be illegal, invalid, or unenforceable, there shall be added to this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be legal, valid, and enforceable. 7. No person executing this Restriction Agreement on behalf of the entity of which he or she is an employee or officer shall incur any personal liability by virtue of this Restriction Agreement, provided he or she acts in good faith. This Restriction Agreement is not to be construed as a general obligation of the faith and credit of the Commonwealth or any political subdivision thereof, including DHCD and the Authority. 8. The covenants, conditions, and agreements contained in this Restriction Agreement shall bind and inure to the benefit of the Authority, the Company, DHCD, and their respective successors and assigns. {00488308.DOCX 2} 4 9. No amendment or modification of this Restriction Agreement, except as to the addresses set forth in section 5, shall be effective until and unless expressed in writing and signed by the party or parties to be bound thereby. 10. Nothing herein will limit the Authority’s ability to enforce all other available rights and remedies it may have at law or in equity with regard to the IRF Loan, including without limitation the right to enforce the IRF Loan Promissory Note and/or the IRF Loan Deed of Trust dated as of October __, 2022. IN WITNESS WHEREOF, the Authority, Company, and DHCD have executed this Restriction Agreement as of the date first written above. Remainder of page intentionally left blank Signature pages follow {00488308.DOCX 2} 5 GRANTOR: Economic Development Authority of Roanoke County, Virginia By: ______________________________ Name: Linwood P. Windley Title: Chair COMMONWEALTH OF VIRGINIA COUNTY OF ROANOKE, to wit: The foregoing document was acknowledged before me by Linwood P. Windley, Chair of the Economic Development Authority of Roanoke County, Virginia, a political subdivision of the Commonwealth of Virginia, on behalf of such entity, this ___ day of October, 2022. ____________________________ Registration Number: _____________ Notary Public My Commission Expires: _____________ GRANTOR: Gish Mill Davii, LLC By: ______________________________ Name: David P. Hill, Member By: ______________________________ Name: David B. Trinkle, Member COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ______________, to wit: The foregoing document was acknowledged before me by David P. Hill, Member of Gish Mill Davii, LLC, a Virginia limited liability company, on behalf of such entity, this ___ day of October, 2022. ____________________________ Registration Number: _____________ Notary Public My Commission Expires: _____________ {00488308.DOCX 2} 6 COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ______________, to wit: The foregoing document was acknowledged before me by David B. Trinkle, Member of Gish Mill Davii, LLC, a Virginia limited liability company, on behalf of such entity, this ___ day of October, 2022. ____________________________ Registration Number: _____________ Notary Public My Commission Expires: _____________ GRANTEE: Virginia Department of Housing and Community Development By: ______________________________ Name: ____________________________ Title: _____________________________ COMMONWEALTH OF VIRGINIA CITY/COUNTY OF ______________, to wit: The foregoing document was acknowledged before me by ______________________________ of the Virginia Department of Housing and Community Development, an agency of the Commonwealth of Virginia, on behalf of such entity, this ___ day of _______, 2022. ____________________________ Registration Number: _____________ Notary Public My Commission Expires: _____________ {00488308.DOCX 2} 7 Attachment A Being all that certain tract or parcel of land together with the buildings and improvements thereon and the easements and appurtenances thereunto belonging situated in the Town of Vinton, County of Roanoke and Roanoke City, Virginia, containing 1.175 acres and being more particularly shown and described on that certain compiled plat entitled “TOWN OF VINTON PROPERTIES TO BE CONVEYED TO GISH MILL DAVII, LLC,” dated August 25, 2022 and made by L. W. Knighting L.S., a copy of which is recorded in the Clerk’s Office, Circuit Court, Roanoke County in _____________________________________. {00488318.DOCX } 1 Foreclosure Rights Agreement FORECLOSURE RIGHTS AGREEMENT THIS FORECLOSURE RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of [___________], 2022 (the “Effective Date”), by and among, Virginia Community Capital, a Virginia corporation (“[X] Lender”), Gish Mill Davii, LLC, a Virginia limited liability company (“Fee Owner”) the Economic Development Authority of Roanoke County, Virginia, an industrial development authority organized and existing under the laws of the Commonwealth of Virginia (the “[Y] Lender”, and collectively with Virginia Community Capital, the “Lenders”) and [SPE, LLC], a [___________] (“Investor”). RECITALS WHEREAS, Fee Owner is simple owner of real property located in [___________], [___________], and more particularly described in Exhibit A attached hereto (together with the buildings and improvements thereon, the “Real Property”); and WHEREAS, on or about [___________], Fee Owner will execute those certain Deeds of Trust and Security Agreements, which are to be recorded in the Clerk’s Office of Roanoke County (as amended, modified, supplemented and restated from time to time, the “[Y] Deeds of Trust”), and grant to [Y] Lender a security interest in the right, title and interest of Fee Owner in and to the Real Property to secure the obligations of Fee Owner to [Y] Lender pursuant to the EDA’s extension of certain loans to Fee Owner in the aggregate maximum principal amount of $1,468,750.00 (collectively, the “EDA Loan”) as evidenced by those certain promissory notes in the aggregate maximum principal amount of $1,468,750.00 made by Fee Owner in favor of [Y] Lender (collectively, the “EDA Note”) and that certain Performance Agreement and those certain Loan Agreements by and among [Y] Lender, the Town of Vinton, Virginia, and Fee Owner, dated as of [___________]. The Performance Agreement, Loan Agreements, the EDA Note, and the [Y] Deeds of Trust , and any and all other documents executed in connection with the EDA Loan, as the same may be amended, renewed, replaced or supplemented from time to time, collectively, the “EDA Loan Documents”. WHEREAS, on or about the date hereof, the Fee Owner will execute the ([X] Deed of Trust] which is to be recorded in the Clerk’s Office of the [___________] County (as amended, modified, supplemented and restated from time to time, the “[X] Deed of Trust”) and grants to [X] Lender a security interest in the right, title and interest of Fee Owner in and to that Real Property to secure the obligations of Fee Owner to [X] Lender pursuant to [X] Lender’s extension of certain loans to Fee Owner in the aggregate principal amount of $2,000,000.00 (collectively, the “Loan”) as evidenced by those certain promissory notes in the aggregate principal amount of $2,000,000.00 made by Fee Owner in favor of [X] Lender (collectively, the “Note”) and that certain Loan and Security Agreement dated on or about the date hereof (the “Loan Agreement”). The Loan Agreement, the Note, the [X] Deed of Trust, and any and all other documents executed in connection with the Loan, as the same may be amended, renewed, replaced or supplemented from time to time, collectively, the “Loan Documents”. {00488318.DOCX } 2 Foreclosure Rights Agreement WHEREAS, Fee Owner intends to rehabilitate and develop a historic building located on the Real Property (the “Project”), in a manner that qualifies for the historic rehabilitation tax credit (the “Historic Tax Credit”) allowed for qualified rehabilitation expenditures incurred in connection with the “certified rehabilitation” of a “certified historic structure” pursuant to the Sections 47 and 50 of the Internal Revenue Code of 1986 (as amended from time to time, or any corresponding provision or provisions of prior or succeeding law, the “Code”); and WHEREAS, on or about the Effective Date, Investor has been admitted as a member of Fee Owner pursuant to that certain [Amended and Restated Operating Agreement of Fee Owner] dated on or about the date hereof (as amended, modified, supplemented and restated from time to time, “Operating Agreement”); and WHEREAS, Fee Owner and Investor request certain limitations and agreements regarding Lenders’ rights and remedies against the Fee Owner under the [X] Deed of Trust and the [Y] Deeds of Trust as a result of the occurrence of any Event of Default (defined below), and [X] Lender and [Y] Lender have agreed to such limitations and agreements pursuant to the terms of, and subject to the conditions set forth in, this Agreement. NOW, THEREFORE, in consideration of the recitals, the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: SECTION 1 CONSENT. Lenders hereby consent to the acquisition by Investor of an interest in the Fee Owner and to the execution of the Operating Agreement and related documents, and agree that the execution and delivery thereof by Fee Owner shall not constitute a default under the Loan Documents or the EDA Loan Documents. SECTION 2 EXERCISE OF REMEDIES. (a) Lenders declare, agree, and acknowledge that, prior to the Forbearance Termination Date, Lenders will not, without the prior written consent of Investor: (i) take any action or exercise any remedy (at law or in equity) that would cause a recapture or disallowance of any Historic Tax Credits allocated to the Investor (a “Recapture Event”); (ii) commence any action to foreclose or exercise any power of sale under any of the Loan Documents or the EDA Loan Documents impacting the Real Property; (iii) accept a deed or assignment in lieu of foreclosure for the Real Property or any part or portion thereof; (iv) seek or obtain a receiver for the Real Property or any part or portion thereof; (v) take possession or control of the Real Property, or collect or accept any rents from the Real Property; (vi) take any action that would terminate the rights held by or granted to or by third parties with respect to the Real Property; (vii) take any other lien enforcement action against the the Real Property. (b) Lenders further agree that if at any time it should commence any foreclosure proceeding, or commence any action to execute on any lien obtained by way of attachment or otherwise on the Real Property, or otherwise take any action prohibited under Paragraph 2(a), Investor shall (unless such action or remedy has {00488318.DOCX } 3 Foreclosure Rights Agreement been consented to as required herein) be entitled to have the same vacated, dissolved and set aside by such proceedings at law or otherwise as Investor may deem proper, and this Agreement shall be and constitute full and sufficient grounds therefor and shall entitle Investor to become a party to any proceedings at law or otherwise in or by which Lenders may deem it proper to protect its interests hereunder. SECTION 3 TERMINATION. The provisions of Section 2 hereof shall remain effective until the date that is first day of the taxable year after the first [___________] [(__)] months from the Placement in Service (as defined herein) date of the Project (the “Forbearance Termination Date”). On and after the Forbearance Termination Date, Lenders shall be free, in their sole and absolute discretion, to institute proceedings to enforce its rights and remedies under the EDA Loan Documents, Loan Documents and/or as provided by applicable law. All of Fee Owner’s obligations and liabilities to Lenders hereunder shall survive the Forbearance Termination Date. For the purposes hereof, “Placement in Service” means with respect to the Real Property the occurrence of the events necessary to establish the historically rehabilitated Project was “placed in service” for purposes of 26 CFR Section 1.48-12(f)(2). SECTION 4 NOTICE AND CURE RIGHTS. Lenders and Fee Owner each agree, simultaneously with the giving of any notice with respect to the EDA Loan or the Loan, to give a duplicate copy thereof to Investor. Should Fee Owner default in respect of any provision of the EDA Loan Documents or the Loan Documents, or Fee Owner default in respect of any of the provisions of the EDA Loan or the Loan, Investor shall have the right, but not the obligation, to cure such default or cause it to be cured, and Lenders shall accept performance by or on behalf of Investor as though, and with the same effect as if it had been done or performed by the Fee Owner. Investor will have [_____] [(___)] days after the service of such notice upon it within which to cure or cause to be cured the default specified in such notice, or cause it to be cured. SECTION 5 INVESTOR EXERCISE OF PUT. No event of default under the Loan Documents or EDA Loan Documents will result from the exercise of any “put option” or similar right of the Investor to sell all or any portion of its membership interest in Borrower. SECTION 6 SUCCESSORS AND ASSIGNS. This Agreement and each and every covenant, agreement and other provisions hereof shall be binding upon the parties hereto and their heirs, administrators, representatives, successors and assigns. SECTION 7 CHOICE OF LAW. This Agreement is made and executed under, and in all respects is to be governed and construed by, the laws of the Commonwealth of Virginia (excluding its choice-of-law principles). SECTION 8 CAPTIONS AND HEADINGS. The captions and headings of the various sections of this Agreement are for convenience only and are not to be construed as confining or limiting in any way the scope or intent of the provisions hereof. Whenever the context requires or permits, the singular shall include the plural, the plural shall include the singular and the masculine, feminine and neuter shall be freely interchangeable. {00488318.DOCX } 4 Foreclosure Rights Agreement SECTION 9 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of counterparts all of which taken together shall constitute one and the same instrument, and any of the parties or signatories hereto may execute this Agreement by signing any such counterpart. SECTION 10 SEVERABILITY. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law. SECTION 11 AMENDMENTS. No provision of this Agreement may be amended, changed, waived, discharged, or terminated except by an instrument in writing signed by the party against [Signatures on the following page.] {00488318.DOCX } Signature Page to Foreclosure Rights Agreement IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and effective as of the Effective Date. FEE OWNER: [_____________________________] By: [___________], its [___________] By: ______________________________ Name: _______________________ Title: ______________________ [___________] ) ) ss. CITY/COUNTY OF ___________________ ) In said city/county and state, on this ____ day of _______________, 2022, before me personally appeared the above-named __________________, manager of [___________], the managing member of [___________], as aforesaid, and acknowledged the foregoing instrument to be his/her free act and deed as manager of [___________], and the free act and deed of said limited liability companies. ____________________________ Notary Public My Commission Expires:_______ [Signatures Continue] {00488318.DOCX } Signature Page to Foreclosure Rights Agreement IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and effective as of the Effective Date. [X] LENDER: [_____________________________] By: [___________], its [___________] By: ________________________________ Name: ______________________ Title: ______________________ STATE OF [___________] ) ) ss. CITY/COUNTY OF ___________________ ) In said city/county and state, on this ____ day of _______________, 2022, before me personally appeared the above-named [__________________], [___________] of [_____________________], the managing member of [___________], as aforesaid, and acknowledged the foregoing instrument to be his/her free act and deed as manager of [___________], and the free act and deed of said limited liability companies. . ____________________________ Notary Public My Commission Expires:_______ [Signatures Continue] {00488318.DOCX } Signature Page to Foreclosure Rights Agreement IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and effective as of the Effective Date. FEE OWNER: [_____________________________] By: _________________________________ Name: ___________________ Title: ___________________ STATE OF [___________] ) ) ss. CITY/COUNTY OF ___________________ ) In said city/county and state, on this ____ day of ______________, 2022, before me personally appeared the above-named _________________, ______________________ of [___________], as aforesaid, and acknowledged the foregoing instrument to be his/her free act and deed as __________________ of [___________]. and the free act and deed of said nonstock corporation. ____________________________ Notary Public My Commission Expires:_______ [Signatures Continue] {00488318.DOCX } Signature Page to Foreclosure Rights Agreement IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and effective as of the Effective Date. [Y] LENDER: ECONOMIC DEVELOPMENT AUTHORITY OF ROANOKE COUNTY, VIRGINIA By: _________________________________ Name: Stephen A. Musselwhite Title: Chairman COMMONWEALTH OF VIRGINIA) ) ss. CITY/COUNTY OF ___________________ ) In said city/county and state, on this ____ day of October, 2022, before me personally appeared the above-named Stephen A. Musselwhite, Chairman of Economic Development Authority of Roanoke County, Virginia, as aforesaid, and acknowledged the foregoing instrument to be his/her free act and deed as Chairman of Economic Development Authority of Roanoke County, Virginia and the free act and deed of said industrial development authority. ____________________________ Notary Public My Commission Expires:_______ [Signatures Continue] {00488318.DOCX } Signature Page to Foreclosure Rights Agreement IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and effective as of the Effective Date. INVESTOR: [_________________________________] By: ____________________, its [___________] By: ________________________________ Name: ______________________ Title: ______________________ STATE OF __________________ ) ) ss. CITY/COUNTY OF ___________________ ) In said city/county and state, on this ____ day of _______________, 2022, before me personally appeared the above-named [__________________], manager of [___________________________], the managing member of [____________], as aforesaid, and acknowledged the foregoing instrument to be his/her free act and deed as manager of ______________________, and the free act and deed of said limited liability companies. . ____________________________ Notary Public My Commission Expires:_______ {00488318.DOCX } 21191/20/9860575v2 EXHIBIT A LEGAL DESCRIPTION Being all that certain tract or parcel of land together with the buildings and improvements thereon and the easements and appurtenances thereunto belonging situated in the Town of Vinton, County of Roanoke and Roanoke City, Virginia, containing 1.175 acres and being more particularly shown and described on that certain compiled plat entitled “TOWN OF VINTON PROPERTIES TO BE CONVEYED TO GISH MILL DAVII, LLC,” dated August 25, 2022 and made by L. W. Knighting L.S., a copy of which is recorded in the Clerk’s Office, Circuit Court, Roanoke County in _____________________________________. 1 RESOLUTION NO. AT A REGULAR MEETING OF THE VINTON TOWN COUNCIL, HELD ON TUESDAY, OCTOBER 18, 2022, AT 6:00 P.M. IN THE COUNCIL CHAMBERS OF THE VINTON MUNICIPAL BUILDING, 311 SOUTH POLLARD STREET, VINTON, VIRGINIA. WHEREAS, on April 7, 2020, Council adopted Resolution No. 2350 authorizing a Contract of Sale with Gish Mill Davii, LLC., to acquire the historic Gish Mill property located in the Town of Vinton and has submitted plans to redevelop the property into a mixed- use commercial, residential and retail development to be known as the Gish Mill Redevelopment Project; and WHEREAS, Gish Mill Davii LLC., has agreed to improve the Mill (Tax Map ID: 060.11-04- 22.00-0000, 060.11-04-23.00-0000 and 3410617) at an anticipated investment of $3,600,000 for the purpose of developing approximately 14,000 square feet of move- in ready leasable space suitable for a restaurant, commercial storefront and residential and/or lodging; and WHEREAS, Gish Mill Davii, LLC., will invest a minimum of $3,600,000 towards the property redevelopment and is anticipated to generate new and increased tax revenues for the Town of Vinton and Roanoke County in excess of $165,000 annually and generate at least 24 full-time equivalent (FTE) employment opportunities; and WHEREAS, the Virginia Department of Housing and Community Development (DHCD) awarded the Town an Industrial Revitalization Fund Grant (IRF Grant) in the amount of $468,750 for the purpose of redeveloping the Gish Mill Property located within the Town of Vinton, Virginia; and WHEREAS, the DHCD requires that the Town shall grant the IRF Grant funds to the EDA and the EDA shall loan those funds to Gish Mill Davii, LLC. (Borrower) for undertaking the Gish Mill Redevelopment Project which is designed to rehabilitate the historic structure and, among other objectives, create new jobs within the Town (IRF Loan); and WHEREAS, on June 1, 2021, Council adopted Resolution No. 2432 authorizing the Town Manager to execute a Performance Agreement, and the Roanoke County EDA unanimously approved of that same drafted Agreement at their meeting on May 19, 2021; and WHEREAS, on October 18, 2022, Council adopted Resolution No. _____ approving an amended Performance Agreement to provide Gish Mill Davii, LLC., with an Economic Development Incentive Grant, a Construction Loan and an Industrial Revitalization Loan to encourage the project development and the Roanoke County Economic Development Authority (EDA) is expected to approve the amended Performance Agreement at their meeting on October 19, 2022; and 2 WHEREAS, Council finds that the amended Performance Agreement and related loan documents will serve the public purpose of stimulating economic development, increase tax revenues and employment in the Town; and WHEREAS, Gish Mill Davii, LLC. shall repay the IRF Loan to the EDA in accordance with the terms of the IRF Loan Agreement and associated loan documents, and the EDA shall transfer all repaid loan funds to the Town; and WHEREAS, the Construction Loan will be in the amount of $1,000,000 in the form of a thirty (30) year loan with a 2.5% Interest Rate and a twenty (20) year deferment, with funds to be paid out in five (5) equal quarterly installments during the construction with last payment coinciding with the receipt of an occupancy permit (C/O) and will be forgiven if the Borrower meets all obligations of the Performance Targets as described within the amended Performance Agreement or otherwise the Borrower shall repay the Construction Loan to the EDA in accordance with the terms of the Construction Loan Agreement and associated loan documents, and the EDA shall transfer all repaid loan funds to the Town; and WHEREAS, the EDA and the Town of Vinton have agreed to lend the IRF and Construction Loans at a rate of 2.5% over thirty (30) years, with all interest and principal payments being deferred for the initial twenty (20) years of the loan; and WHEREAS, as a condition of said loans, Gish Mill Davii, LLC. shall execute a Promissory Note, Deed of Trust, IRF Restriction Agreement, and such other documents as the Town and/or EDA deem appropriate (collectively, the Transaction Documents) to further evidence the payment obligation agreed to by Gish Mill Davii, LLC. NOW THEREFORE, BE IT RESOLVED, that the Vinton Town Council does hereby approve the Industrial Revitalization Fund Loan in the amount of $468,750 and a Construction Loan in the amount of $1,000,000 to Gish Mill Davii, LLC and authorizes the Mayor and/or the Town Manager to execute the necessary documents in a form substantially similar to the ones presented to Council and approved by the Town Attorney to complete said loans . This Resolution adopted on motion made by Council Member _________________, seconded by Council Member _______________________with the following votes recorded: AYES: NAYS: APPROVED: _________________________________ Bradley L. Grose, Mayor ATTEST: ___________________________________ Susan N. Johnson, CMC, Town Clerk Meeting Date October 18, 2022 Department Finance Department Issue Finance Committee Summary The Finance Committee met on October 10, 2022 and discussed the following items: • July 31, 2022 Financial Statements • August 31, 2022 Financial Statements • Public Works Department vehicle repair appropriation • Police Department DMV Grant appropriation • Police Department LOLE Grant appropriation • Gish Mill Project amended Performance Agreement and appropriation Attachments July 31, 2022 Financial Report Summary August 31, 2022 Financial Report Summary Recommendations Motion to approve July 2022 and August 2022 Financial Reports Town Council Agenda Summary Financial Report Summar July 31, 2022 Adopted Revised YTD MTD YTD Remaining % Budget Budget Posted Posted Balance YTD General Fund 20 Revenues 10,246,695        10,246,695          643,135           643,135           (9,603,560)      6% Expenditures 10,246,695        10,246,695          529,725           529,725           (9,716,970)      5% Revenues over/(under) Expenditures (0)                          113,410           113,410            Grant Fund 250 Revenues 4,208,017          4,208,017            7,798,954       7,798,954       3,590,937       185% Expenditures 4,208,017          4,208,017            1,909,648       1,909,648       (2,298,369)      45% Revenues over/(under) Expenditures ‐                        5,889,307       5,889,307        Utility Fund 300 Revenues ‐                       ‐                        4,481               4,481               4,481               0% Expenditures ‐                       ‐                        34,299             34,299             34,299             0% Revenues over/(under) Expenditures ‐                        (29,818)            (29,818)             Capital Fund 400 Revenues 2,669,000          2,669,000            14,083             14,083             (2,654,917)      1% Expenditures 2,669,000          2,669,000            291,069           291,069           (2,377,931)      11% Revenues over/(under) Expenditures ‐                        (276,986)         (276,986)          Stormwater Fund 600 Revenues 620,996              620,996               35,083             35,083             (585,913)         6% Expenditures 620,996              620,996               22,516             22,516             (598,480)         4% Revenues over/(under) Expenditures ‐                        12,567             12,567              Total All Funds Revenues 17,744,708        17,744,708          8,495,737       8,495,737       (9,248,971)      48% Expenditures 17,744,708        17,744,708          2,787,257       2,787,257       (14,957,451)    16% Revenues over/(under) Expenditures (0)                          5,708,480       5,708,480        Financial Report Summar August 31, 2022 Adopted Revised YTD MTD YTD Remaining % Budget Budget Posted Posted Balance YTD General Fund 20 Revenues 10,246,695        10,246,695          561,449           1,204,584       (9,042,112)      12% Expenditures 10,246,695        10,246,695          830,089           1,359,815       (8,886,881)      13% Revenues over/(under) Expenditures ‐                        (268,641)         (155,231)          Grant Fund 250 Revenues 4,208,017          4,208,017            40,273             7,839,228       3,631,211       186% Expenditures 4,208,017          4,208,017            145,506           2,055,154       (2,152,863)      49% Revenues over/(under) Expenditures ‐                        (105,233)         5,784,074        Utility Fund 300 Revenues ‐                       ‐                        128                   4,609               4,609               #DIV/0! Expenditures ‐                       ‐                        274,798           309,097           309,097           #DIV/0! Revenues over/(under) Expenditures ‐                        (274,671)         (304,488)          Capital Fund 400 Revenues 2,669,000          2,669,000            14,083             28,167             (2,640,833)      1% Expenditures 2,669,000          2,669,000            291,489           291,489           (2,377,511)      11% Revenues over/(under) Expenditures ‐                        (277,406)         (263,322)          Stormwater Fund 600 Revenues 620,996              620,996               35,083             70,166             (550,830)         11% Expenditures 620,996              620,996               59,959             82,475             (538,521)         13% Revenues over/(under) Expenditures ‐                        (24,876)            (12,309)             Total All Funds Revenues 17,744,708        17,744,708          651,016           9,146,753       (8,597,955)      52% Expenditures 17,744,708        17,744,708          1,601,841       4,098,030       (13,646,679)    23% Revenues over/(under) Expenditures ‐                        (950,825)         5,048,724