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18-835s:\legal\our docurnents\ordinances�l8\airport - consent to collateral assignment af mark hicks transport to guaranty bank.doc � �' � � ' * � , AN ORDINANCE OF THE CITY OF' DENTON, TEXAS APPROVING A CONSENT TO COLLATERAL ASSIGNMENT OF AN AIRPORT LEASE BETVVEEN MARK HICKS TRANSPORT, LLC AND GUARANTY BANK & TRUST, N.A.; AND PROVIDING AN EFFECTIVE DATE. . , . �, , .� � ,, . . � �. � , . , r . � r�. � '-'' � . � . . � � . ^ � �� . � �� . � � i � � . < . .� � � � r . . . _ - � � � . � � f � '� . �, ♦ � ��'�� WHEREAS, Hicks Transport has agreed to collaterally assign its interest in the Lease to Guaranty ank & Trust, N.A. (" ank"} as evidenced by that certain Deed of Trust, dated May 22, 2018; and . . .. � . . � . . � �� - � � , • `�� .� �� - , .� _ �.� - - � �� , i♦ . . . . _ �� - . � � . � � � � . _ � .� � . � � � � . ., ._ . � � i-� .�r;� , . �, . ��- � ; 1 . . � � � � � . . � � �� . . �� . � � . �, _ � . , . � _ _� •� -�� • . ,�. • ! • . •' i' SECTION 1, The findings and recitations contained in the preamble af this Ordinance are incorporated herein by reference. . , 4 �- � . � f . ! !� ` � ` ,, � � � � • � �, . � .� . � � � �. . � �,; � �� i �� f'� s ` � i � '��, � � " 1 . i 1' . SEC,TImON 3, This Ordinance shall become effective immediately upon its passage and approval. The motion t�w ,r��e his ordinance was made by _____��`,�",___��°��" �� and seconded by ��' �� ___ _ the ordinance was �a��; `��i�i approved by the _. .""_" ....._._._S followmg vote [� - S _� 1 Chris Watts, Mayor: Gerard Hudspeth, District 1 Keely Briggs, District 2: Don Duff, District 3: John Ryan, District 4: Dalton Gregory, At Large Place 5 Paul Meltzer, At Large Place 6: � J V Abstain Absent � PASSED AND APPROVED this the ��/�� day of ,�� ° , 2018, -- — � �� h� � �� w � �� CHRIS W� T�, "�� OR � ---- _ ATTEST: JENNIFER WALTERS, CITY SECRETARY �� ' � BY: � e �.a. .��.� ..�� ,�� d.��. , �°�;� ��,.,, .,,..... � � ��,, APPROVED AS TO LEGAL FORM; AARON LEAL, CITY ATTORNEY � f� , . � n.��s.� . � � � � � �,�� V � BY: " � �� w , �.� .� � .,�, �. � — ---- ��--- �-- _. C S< N C LA � ASST N JNT AS ' This Consent to Callater�] nssignment of I.�ease is rnade between the City of Denton, Texas, a TeXa5 I70117e I`U1e li1U111C1p1I COl°�701'atldl7 ("City" or "Landloi°d"), Mark Ilicks Ti°anspoi-t, LI�C, a Texas limited liability campany, successor in interest to Petersen Hangars ("Assignor"} arld Guar•anty Bank & Ti°ust, N.A, ("Assignee"). WHEREAS, the City is the sole ownei• and landlord of a pad site at Denton F.,nterpi°ise Aii°pai•t Iocated at 4736 Clear Star and 465d Clear Siar (the "Praperty"); and WHF?RF.,AS, the I'roperty is subjeet t� a ground lease, described as the Airpart Lease Agreement Cammercial Operator dated effective September 21, 2004, by and between the City, as Lessor, and JVC Real Estate, LLC, a limited liability company, as Lessee, which was assigned and assumed by 4736 Lackheed /tssociates, Ltd, a Texas limited coinpany, by eei°tain Assig ent ac�d Assumption of Airpart Lease Agreement — Commercial Operator dated July 25, 2006, which was assigned and assumed by T'etersen Hangars, LLC, a Texas limited liability campany, by cei-tain Assigtli�ient and Assumption of` Airpoi-t Lease Agi'eernent, dated SeptembeY° 4, 2015 and cei°tired by the City oi'Denton on Septembei• l 1, 2015, which was assigned and assumed by ark Hicks Transport, LLC, a Texas limited liability company, by certain Lease Assignment of 1'ad Site, dated May 22, 2018 (the "Lease"); and WH�R�AS, Assignee provided financing foi° the pttrchase of the Leasehold Estate and cei•tain imp�°ovetnetlts nn such ground leased property; and WH�R�AS, for tlle purpose af securing and enforcing tl�e payrnent abligations of Assignai• ta Assignee, Assignor naw wishes to collater•ally assign the Lease to tlie Assignee thi•ough the Deed of Trust attached hereto as Exhibit "A;" and WHEREAS, Article IX of the Lease pravides that it may not be collaterally assigned without the written consent af City, at City's sole discretion, and Assignor has requested the City's consent; NOW THEREFORE, in consideration of the mutual covenants set forth herein and far other good and valunble cansideration, tlle receipt and sufficiency of which is hei•eby acknawledged, the City l�er�eby cansents to Assignoi•'s collatei°al assignment of the Lease to Assignee, �111'OLl��1 the Deed af Trust attached as �xhibit "A," under the following terms and concliti�ns; 1, Assignoi• s11a11 pay to the City a tr�ansfer fee of Five Hundi•ed Dollars ($500.00} in connection with the City providing its consent to the Collateral Assignment of the I,ease. . * � •. .� . - � . � r ` - � ' . � � 3. Assignec shall give the City written noticc of a�1y dcfault by Assignor under any financin� agreement, prornissoiy note, or the Deed of Trust. Any such notice shall be delivered as follows; City Man�ger City of Denion 215 F,. McKinney Denton, Texas 762U l with copies to: Aiiport Manager Dentoi� Cnterprise Airport SOOQ Airport Road Denton, "I'exas 76207 City Attorney City of Denton 21 S E, McKinney Denton, Texas 76201 4, '1'he City agrees to provide Assignee a contemporaneous copy of all written notices provided to Assignor under the I_,ease. Wl1er•ein a notice of default or breach has been provided by the City to Assignor and Assignee, E1ssi�nee shall be entitled, at its option, to cure such default or breach, and the City shall accept such cure fi•om Assignee, If the default or breach is not cured as provided under the Lease, the City shall have the remedies available to it as set out therein. Any notice to be delivered from City to Assignee shall be delivered to the following: Guaranty Bank & Tiust, N A. Attnu ��?�_�� .__ � „�� '��'�^�� .. 100 Wes�^�,�� sas'�ir�:�� Mt. Pleasant, Texas 75455 5. Should Assignee foreclose or otherwise obtain Assignor's rights and interest in the Leasehold Lstatc, the City will not unreasoiiably witlihold its consent to an assignment by Assi�;nce to future successors upon being provided with the potential successor's (i) f nancial stateinent, (ii) confirmation of no outstanding taxes, liens, or judgments, and (ii) a demonstrated history of aviation experience, The City shall be the sole judge of any potential successor's qualifications, which shall be reasonably exercised, 6, Tn the event of any inconsistency between the terms and conditions of the Lease and the terms and conditions of this Consent, then thc Lease shall govern and control. Page 2 7, If a�ay provisions af tl�is Consent sllall be held ai• deerncd to be iliegai, inoperative, or unenforc�able, thc sai��e s11a11 i�ot affect any Oi;11EI' �i°0�1S10IIS COI1��i11CC� �'iCT°2111; the remaii�ing provisions to i°e711ain in full %oi•ce atid efFect, �, The City llereby rep�•esents arlci warrants that th'rs Consent is made with proper atathority irrid�r Or-dinaiice, 9, Assi�tz��, its atttharized representatives or �geilts, may, upoi� i•�asoriable advanced t�otice (�ri°itten ot° ar°al) io Assigt7or �nd City and at any t°easonable tirn�s, enter th� Propei°ty for• thc. pur•poses UC it7spectirig, r�pairin�, or remo�rin� p�rsonal property. nssignee may fiir•the�°, upon re�i�onable �dvaticed w1°ittei� notice to City and Pbssi�nor and at �°�asanable titnes, enter upotl the Pt°oper•ty to exhibit ai° �onduct a sale(s} of any or all of th� collat�t°al pledged to Assigtze�, subject to the �iiy's inter�sts und�r the i,ease. 10, This Caizs��xt to Collateral P�ssigi�ment shall be gover�z�d by aild canstru�d in accordanc� �vith the I�ws of'the Statc of Texas. Excilisiv� venue 1°or any action related ta this Consent shall bc solely it1 a co�irt of campet�nt jurisdiction it1 l�enton Cownty, Texas. - � • =r � , � . • II�1 WITN��S I-�EREO�', the parties have execttted this �ons�nt ta Collateral �issignment of Leas� as af th� I�ate vvt°itten belavv. � Dated. ATTCST; JCNNIP�R WAI.TI;RS, CITY SLCRETARY ��1 , � � B g'� �. "� � � .. �,�, , �. �� ...� �_.. �. -- _,. � APPRUVED AS TU LEGAL FORM; AnRON LEAL, CITY ATTORN�Y � �w.. �� f�°� � �� _._._ ..� By, w ,-� � � ° '� ..... ,� r��- p�,,:.,, ,5.,,....�.��, ........ Page 4 ASSIGNOR; Mark I-Iicks l"b��:��+��°� ,��'��C, a Texas �" limited liability �� rs� ^ � ��'�� `� � �,� BY ._ -- .� � .--- .... --- Name � � ...._ __� ___ ._�..... Title: _ _��- nSSIGNEE: Guar�.�a�� Bank & Trust, N.A. ...w B Y � � �� Name ° "�.�.��_�.. _� '�� ,�� .��: e ... .. ........ . . � ,, .. Title � � �� ,�,.�:. .._m�� __ CITY OF DENTON, TEXAS Landlord � � � � m��. B Y� .._.__ ° _ .m._..�_ __ ��_....� �..... Name� �td�� d�� .B��C�� .. _ _ � Title �..�p. �' �� ,�'�� ..��._ i , s After recording, return to: HIGIER ALLEN & LAUTIN, P.C. 2711 N. Haskell Ave., Suite 2400 Dallas, Texas 75204 Attn: Ryan S. Foster � � # 1 ' ! . r . � . � • �� ', r � ; �•' • ' �r • � � � �� "; ��,� , r ,, E, r ., � r , r�. r �i � � � � � � , r � r i � ' � r �' � � '� r ` � � r ` � � � � � , � r LEASEHOLD DEED OF TRiJST �.'4�if��► ��*.r.M�ur•o�C� �,��r�r��a.*�rt �r��l d4��r�;r7��rzarYt�. ��Y I�c.axC�� STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON THAT THE LJNDERSIGNED, MARK HICKS TRANSPORT, LLC, a Texas limited liability company (hereinafter called "Grantor", whether one or more), whose mailing address is 7420 FM 2449, Ponder, Texas 76259-8051, Attn: John Mark Hicks, for and in consideration of the debt hereinafter described, has granted, bargained, sold, transferred, assigned, and conveyed, and by these presents does grant, bargain, sell, transfer, assign and convey, in trust unto KIRK L. LEE, as trustee, and unto his, her or their successors or substitutes in the trust hereby created (such trustee and any successors or substitutes being hereinafter collectively called "°"��`�•xu�t��.,,), and unto the Trustee's assigns, forever, all and singular the property of Grantor, both real and personal, situated in the County of Denton and State of Texas, which is described as follows: Grantor's interest in: those certain Lease and Operating Agreements between the City of Denton ("L��rocJ'G�ar°cE"), as Lessor, and Grantor, (as modified and amended from time to time, the "Ground Lease"), as evidenced by that certain Airport Lease Agreement Commercial Operator September 21, 2004 filed of record November 8, 2005, under County Clerk's Instrument Number 2005-139439, of the Real Property Records of Denton County, Texas, as modified and amended by that certain Assignment and Assumption of Airport Lease Agreement Commercial Operator dated September 4, 2015, and the leasehold estate created by the Ground Lease (the "l�c.x��rcalc� ��t�at�") covering the land described on Exhibit A attached hereto and made a part hereof by this reference for all purposes; together with all improvements thereon or hereafter placed thereon with all equipment, fixtures and articles ofpersonal property now or hereafter attached to or used in and about the buildings and other improvements located upon the property; all renewa(s or replacements thereof or in substitution therefor, whether or not the same are or shall be attached to the property in any manner; all building materials and equipment now or hereafter delivered to the property and intended to be installed therein; all plans and specifications for the property; all deposits, funds, accounts, reserve accounts, escrow accounts (to the extent permitted by applicable law), instruments, documents, general intangibles (including trademarks, trade names and symbols used in connection therewith); all contract rights and all declarant's rights pertaining to the land and all rights arising under the restrictive covenants applicable to the land; and all notes or chattel paper and all supporting obligations arising from or by virtue of any transactions related to the property; all permits, licenses, certificates and other rights and privileges obtained in connection with the property; all proceeds arising from or by virtue of the sale, lease or other disposition of any of the real or personal property described herein; all proceeds (including premium refunds) payable or to be payable under any policy of insurance relating to the property; all proceeds arising from the taking of all or a part of the real property or any rights �w:t�o�s�a7av.csnrv r�r�cun�ec:r�steresr��r�s wxrea � I � appurtenant thereto, for any public or quasi-public use under any law, or by right of emsnent domain, or by private or other purchase in lieu thereaf; all of the ail, gas and minerals, in, on or under the land; all royalt►es, water rights and wind rights related to the land; and all other rights and interests of every kind and character which Grantor now has or at any time hereafter acquires in and ta the above-described real and persanal praperty and all property which is used or useful in connection therewith, including rights of ingress and egress and all reversionary rights or interests of Grantar with respect to such property. It is hereby agreed that to the extent permitted by law all of the foregoing personal property and iixtures (hereinafter collectively referred to as "(`�c��9��n°ya�ll") are to be deemed and held to be a part of and affixed to the real property. In the event the estate of the Grantor in and to any of the above-described property is a leasehold estate, this conveyance shall include and the lien, security interest and assignment created hereby shall encumber and extend to all other, further or additional title, estates, interest or rights which may exist now ar at any time be acquired by Grantor in ar to the property demised under the lease creating such leasehold estate and including Grantor's rights, ►f any, to purchase the property demised under such lease, and ►f fee simple title to any of such praperty shall ever become vested in Grantor, such fee simple interest shall be encurnbered by this Leasehold Deed of Trust (the "9��c�c� ��i"'1'¢��t�e") in the same manner as if Grantor had fee simple title to such property as of the date of execution hereof. The foregoing described real and personal praperty is hereinafter collectively called the °°h�1�rGfl��Ri��cl �"��;�°�°°. TO HAVE AND TO HOLD the Mortgaged Property unto the Trustee and his or her successars or substitutes farever, Grantor hereby binds itself and its successors and assigns to warrant and forever defend the title to the Mortgaged Property unto the Trustee and his or her successors and substitutes, against every person lawfully claiming or to claim the same or any part thereof. This conveyance is made in trust, however, to secure and enforce the payment af that certain Prom►ssary Note dated of even date herewith (hereinafter called the "Note"}, executed by Grantor, payable to the order of GUARANTY BANK & TRUST, N,A. (hereinafter called °°��a�cG �c:i,�r�"}, whose address is 100 West Arkansas St., Mt. Pleasant, Texas 75455, Attn: Jeremy Fykes, in the stated principal amount of ONE MILLION TWO �-TC.JNDRED NINETY-SIX THOUSAND AND NO/100 DOLLARS ($1,296,000.00), bearing interest, being payable and maturing as more particularly set forth therein. The Note evidences, among other indebtedness, the loan governed by that certain Loan Agreetnent of even date herewith (the °°i��r�A,o� .� �a�� xa�cM7� °°), by and between Grantor and Beneficiary, among others. The Note, the Loan Agreement, this Deed of Trust and all of the other agreements, documents and instruments now or hereafter evidenc►ng, governing, securing or guaranteeing any part►on of the indebtedness evidenced by the Note or the performance and discharge ofthe obligations related hereto or thereto, together with any and all renewals, modifications, amendments, restatements, consolidations, substitutions, replacements, extensrons and supplements hereof or thereof, oo_.m� �oo are co ect'vely referred to herein as the I.,��ze C)a,�c�:��er��.i�� . This Deed of Trust shall secure, in addition to the Note, all funds hereafter advanced by Beneficiary to or for the benefit or account of Grantor, as cantemplated by any covenant or pravision herein contained or contained in the Note or any of the Loan Documents, and all other ►ndebtedness, of whatever kind or character, owing or which may hereafter become owing by Grantor to Beneficiary, whether such indebtedness is evidenced by note, open account, overdraft, endorsement, surety agreement, guaranty, or otherwise, it being contemplated that Grantor may herea8er become indebted to Beneficiary for further sums, and any security given or pledged in connectian with any such other indebtedness or hereafter ow►ng by Grantor to Beneficiary shall likewise secure ail indebtedness evidenced by the Note and this Deed of Trust. All indehtedness secured hereby shall be payable at Beneficiary's address above, and, unless otherwise provided in the instrument evidencing such indebtedness, shall bear interest at the same rate per annum as the Note bears, from the date of accrual of such indebtedness until paid. If the Note or any other indebtedness secured hereby shall be collected by legal proceedings, whether through a probate or bankruptcy court or otherwise, or shall be placed ►n the hands of an attorney for collection following default or after maturity, whether matured by the expiration of time or by any option given to the Beneficiary to accelerate the maturity, Grantor agrees to pay Beneficiary°s reasonable attorneys' and collection fees, and such fees shall be a part of the indebtedness secured hereby. Ta better secure payment of such indebtedness, Grantor does hereby covenant, warrant and represent to and agree with Beneficiary and with the Trustee as follows: b'�:lTQk7�V�P'lft\L�9FM1.Pd q;D&14JB.PlWdI�Yt�'1f�;tC�IEIf�D'"A'�E.,5.6�'llAL9 -. 'Z .. Address. Grantor's mailing address as shawn in the first paragraph hereof is true and correct. 2. M!''sz��Ma�r att.; Grantor will pay all ofthe indebtedness secured hereby, together with the interest therean, when the same shall become due, in accordance with the terms of the Note or any other instrument evidencing, securing, or pertaining to such indebtedness, or evidencing any renewal or extensian of such indebtedness, or any part thereof, and further, Grantor shall punctually and properly perform all of Grantor's covenants, obligations, and liabilities hereunder and under any other security agreement, mortgage, deed oftrust, collateral pledge agreement, contract, assignment, loan agreement or any other instrument or agreement of any kind now ar hereafter existing as security for, executed in connection with, or related to the indehtedness, or any part thereof. 3. Title. Grantor has in its own right gaod, and indefeasihle title in its leasehold estate as set forth in the policy of title insurance insuring the lien of this Deed of Trust, except as otherwise provided herein, to the Mortgaged Property which is free from encumbrance superior to the indebtedness hereby secured, except as otherwise provided herein, and has full right to make this conveyance, and with respect to each Grantor wha is an individual, na part of the Mortgaged Property constitutes any part of his business or residential hamestead. 4. 1��st;u�^�s��+�t��,. Grantor will keep all insurable Mortgaged Property insured against the risks covered by policies of fire and extended coverage insurance and such other risks as Beneficiary may require, such insurance ta be written in fortn and with companies acceptable to Beneficiary, with lass made payable to Beneficiary by martgagee clauses of standard form, and will deliver the pal icies of insurance to Beneficiary promptly as issued; and in case Grantor fails to do so, Beneficiary, at its option, may procure such insurance at Grantor's expense. In the event the Mortgaged Property, or any portion thereof, lies within a flood plain, a flood prone area or any designated flood hazard area, Grantor shall, in addition ta the foregoing insurance, ohtain and maintain flood insurance in form and with campanies acceptable to Beneficiary, with loss made payable to Beneficiary by mortgagee clauses of standard form. All renewal and substitute certificates of insurance shall be delivered at the office af Beneficiary, premiums paid, at least ten (10} days before termination of policies theretofore delivered to Beneficiary. If renewal palicies are not so delivered to Beneficiary, Beneficiary, while not obligated, may obtain the required insurance on hehalf of Grantor (or insurance in favor of Beneiiciary alone) and pay the premiums thereon. Beneficiary may rely upon any cancellation notice from any insurance carrier of any policy of insurance furnished pursuant to this provision and may, but shall not be obligated, to ohtain the required insurance as authorized herein and such coverage sha(1 continue in the campany selected by Beneficiary, and Grantor shall pay on demand the premiums far such coverage notwithstanding the fact that Grantar may have procured separate or additional coverage ta that ohtained by Beneficiary. Tn case of any loss or casualty and to the extent permitted under the Ground Lease (herein so called and as defined in the Loan Agreement), (a) if Grantor is in default hereunder, Beneficiary, at its option, shall be entitled to receive and retain all proceeds ofthe insurance policies, and shall apply the praceeds to the indebtedness secured hereby or Benefciary may, at its option, apply such proceeds to restore the Martgaged Property, and (b) if Grantar is not in default hereunder, Grantor may, at its aptian, apply such proceeds to the indebtedness secured hereby or apply such proceeds to the restoration ofthe Mortgaged Property. If Grantar elects to apply such proceeds to the restoratian of the Mortgaged Property, such restaration shall be pramptly completed in accordance with plans and specifications approved by Beneficiary, and the costs and expenses thereof, to the extent they exceed the proceeds af the insurance policies, shall be borne by Grantor. 5. Taxes. Grantor will pay all taxes and assessments against or affecting the Martgaged Property as the same hecome due and payable (unless such payments are made by Beneficiary as hereinafter provided), and, if Grantar fails to do so, the Beneficiary may pay them (but shall have no obligation to do so}, together with all costs and penalties thereon, at Grantor's expense. Grantor shall not re-finance any of the taxes and assessments against or affecting all or any portion af the Martgaged Properiy using any methad which maintains a superiar lien on or charge against the Mortgaged Property, and Grantor shal l execute, deliver and recard no documents ar instruments which assign, re-finance, renew or continue the lien securing or arising in connection with any taxes or assessments against all or any portion of the Mortgaged Property. Provided however, that, upon strict compliance by Grantor of the requirements stated below, Grantor may, in lieu af paying such taxes and assessments as they hecome due and payable, contest the validity thereof in gaod faith and hy appropriate proceedings; and pending such contest Grantor shall not be deemed in default hereunder because of such nanpayment, if (a) prior to delinquency of the asserted tax or assessment, Grantor furnishes the Beneficiary an indemnity bond, conditianed that such tax or assessment with interest, cost and penalties be paid as therein stipulated secured by a deposit in cash, or security acceptable to Beneficiary, or with surety acceptable to Beneficiary, �v:�r€r r��c: rsts.�:�.r� ua�a�4�xr��r�-u,�tru�u.ua�.�..u�.� �uzu� . 3 ., in the amount of the tax or assessment being contested by Grantar, and a reasonable additianal sum to pay all possible costs, interest and penalties imposed or likely ta be incurred in connectian therewith, (h} Grantor promptly pays any amount adjudged by a court of competent jurisdiction to be due, with al1 costs, penalties and interest thereon, befare such judgment becomes final, and (c} in any event, each such contest shall be concluded and the tax, assessment, penalties, interest and costs shall be paid prior to the date such judgment becomes final or any writ or arder is issued under which the Mortgaged Property may be sold pursuant to such judgment. 6. ��c�s� ��, �+"caibclw�. At the request of Benefic►ary, Grantor shall create a fund or reserve for the payment of all insurance prerniums, taxes, and assessments against or affecting the Mortgaged Property by paying to Beneficiary, on the first day of each calendar month prior to the maturity of the Nate, a sum equal to the premiums that will next became due and payable on the hazard insurance pol►cies covering the Mortgaged Property, or any part thereof, plus taxes and assessments next due on the Mortgaged Property, or any part thereof, as estimated by Beneficiary, less all sums paid previously to Benefrcrary therefor, divided by the number of months ta elapse befare one month prior to the date when such premiums, taxes and assessments will become delinquent, such sums to be held by Beneficiary, withaut interest, unless interest is required by applicable law, for the purposes of paying such premiums, taxes and assessments. Any excess reserve shall, at the discretion of Beneficiary, be credited by Beneficiary an subsequent reserve payments or subsequent payments to be made on the Note by the maker thereof, and any deficiency shall be paid by Grantor to Beneficiary on or before the date when such premiums, taxes, and assessments shall become delinquent. Transfer of legal title to the Mortgaged Property shal l automatically transfer title ta all sums deposited with Beneficiary under the provisions hereof or otherwise. 7. t'w�°�w�rai�t��w��w��rw To the extent permitted by the Ground Lease, all judgment, decrees and awards for injury or darnage to the Mortgaged Property, and all awards pursuant to proceedings for condemnation thereof, are hereby ass►gned in their entirety to Beneficiary, wha shall apply the same to the indebtedness secured hereby, first to interest accrued as of the date of application of the condemnation proceeds and then to principal outstanding, provided however, in the event Grantor is not in default hereunder, Grantor may apply proceeds to the indebtedness secured herehy or may apply same to restore the Mortgaged Property, to the extent, but only to the extent, that such restoration is commercially feasible. Beneficiary is hereby authorized, in the name of Grantor, to execute and deliver valid acquittances for, and to appeal from, any such award, judgment or decree. In the event Beneficiary, as a result of any such judgment, decree or award, believes that the payment of any indebtedness or perfarmance of any obligation secured by this Deed of Trust is impaired, Beneficiary may, after any applicable natice, cure or grace period, declare all of the ►ndebtedness secured hereby immediately due and payable. 8. �D�f��a��ak ��' 1 a1l�a., If, while this trust is in force, the title of the Trustee to, or the interest of Beneficiary in, the Mortgaged Property hereby conveyed or any part thereof, shall be endangered or shall be attacked directly or indirectly, Grantor herehy authorizes Benefciary, at Grantor's expense, to take all necessary and proper steps for the defense of such t►tle or interest, including the employment of counsel, the prosecution or defense of 1►tigation, and the compromise or discharge of claims made against such title or interest. At any time any law shall be enacted imposing or authorizing the impositian of any tax upon this Deed of Trust, or upon any r►ghts, t►tles, 1►ens, or security interests created hereby, or upon the Note, or any part thereof, Grantor shall immediately pay all such taxes, or cause same to be paid or reimburse Beneficiary far the payment of same immediately upon written nofrce from Beneficiary. Grantor shall at any time and from time to time, furnish promptly, upon request, a written statement or affidavit, in such form as may be required by Benefic►ary, stating the unpaid balance afthe Note, and stating that there are no offsets or defenses against full payment of the Note and performance of the terms hereof, or if there are any such offsets and defenses, specifying them. 9. I��i�zwR�a��°«��M�d;�, If, in pursuance of any covenant contained herein or in any other ►nstrument executed in connection with the Loan evidenced by the Note or in connection with any other indebtedness secured hereby, Benefciary shall expend any money chargeable to Grantor or subject to reimbursement by Grantor under the terms of such covenant or agreement, Grantor will repay the same to Beneficiary immediately upon demand at the place where the Note or other indebtedness secured hereby is payable, together with interest thereon at the rate of interest payable under the Note or on account of such other indebtedness in the event of a default thereunder from and after the date of Beneficiary°s expenditure. The sum of each such payment shall be added to the indebtedness hereby secured and W:\7G76t0'76l[.,d�F�,1V N:3Cl�C'C1Mk;NT'"v\S.)k"sk;E:?"T'CLB. WS�B.1 ^. 4 ^ thereafter shall farm a part of the same, and it shall be secured by this Deed of Trust and by suhrogatian ta all of the rights of the person or entity receiving such payment. u.�a�A��e r.�d'��t r��m�',tl�� Grantor will keep every part afthe Mortgaged Property in good condition 10. ��s��atc,�_.,� and presenting a good appearance, making pramptly all repairs, renewals and replacements necessary to such end, and daing pramptly all else necessary ta such end; but Grantor will discharge all clairrrs for labor performed and material furnished therefor, and will not suffer any lien af inechanics or materialmen ta attach to any part of the Mortgaged Property; and Grantor will guard every part of the Martgaged Property from removal, destruction and damage, and will not da or suffer ta be done any act whereby the value of any part af the Mortgaged Praperty may be lessened. 11. Prohibition of Transfer or Encumbrance. The sale, transfer, disposition or encumbrance, whether by aperatian of law or atherwise, af all or any part afthe Martgaged Property (other than items af personalty which have become obsolete or worn beyond practical use and which have been replaced by adequate substitutes having a value equal ta ar greater than the replaced items when new) without the written cansent ofBeneficiary shall constitute a default hereunder. Grantor shall nat grant any easement or encumbrance ar impose any restrictian whatsaever with respect to any of the Mortgaged Property without the joinder therein af Beneficiary, nar shall Grantor rent or lease any of the Mortgaged Property for any purpase whatsoever without the prior written consent of Beneficiary. In the event Grantor is a corparatian or a limited liability campany, it agrees that the sale, canveyance, hypathecatian, transfer ar disposition of mare than ten percent (10%) of its issued and outstanding capital stack ar ownership interests, without the priar written cansent ofBeneficiary, shall constitute a defaulty OCy that in the event Grantor is a limited or general partnership, or a joint venture, a change of any general partner or any joint venturer, either voluntarily or involuntarily, or the sale, canveyance, transfer, dispasitian or encumbrance of any such general partner or joint venture interests ar of more than twenty percent (20%) of the partnership or venture interests, without the prior written consent of Beneficiary, shall constitute a default. In the event Benefciary should consent to any sale or conveyance af the Mortgaged Property, Grantor will not sell all or any partion ofthe Martgaged Praperty unless the purchaser, as a part ofthe cansideratian, either (a) expressly agrees ta assume the payment af the indebtedness hereby secured, or (b) expressly agrees that the title and rigtrts of purchaser are and shall remain unconditionally subject to all of the terms of this Deed of Trust for the complete fulfi llment of all obligations af the Grantor hereunder, and the deed effecting such transfer shall expressly set farth such agreement of the purchaser. 12. NoITDischarge Upon Transfer. If the ownership af the Mortgaged Praperty ar any part thereof becomes vested in a person other than Grantor, Beneficiary may, withaut notice to Grantor, deal with such successor or successors in interest with reference ta this Deed of Trust and to the indebtedness herehy secured in the same manner as with Grantor without in any way vitiating or discharging Grantor's liability hereunder or upon the indebtedness hereby secured. No sale ofthe Mortgaged Property, and no forbearance an the part ofBeneficiary, and no extension afthe time far the payment of the indebtedness hereby secured, given by Beneficiary, shall operate to release, discharge, madify, change or affect the original liability af Grantor ar the liability af any guarantors ar sureties of Grantor, either in whole or in part. 13. 1��N`o-N�r�� nM �'a� ��At�c�r�tl �°r�� a ��!`�,�°t��r��: Upon the occurrenee (beyond any applicable notice, cure or grace period) of any "l;�r�:A�� c�'��1�" (herein so called and as defined in the Loan Agreement), Beneficiary, at its option, without further notice, may pursue any rights and remedies it may have hereunder or at law, or in equity, including without limitation, filing suit on the Note and/ar enforcing the power of sale granted herein, and Beneficiary may, withaut limitatian, declare the entire indebtedness secured hereby immediately due and payable, whereupon it shall be so due and payable. 14. ��r� #��r �M'"A��wwt�w�h« If Grantar pays the Nate and other debt that may be owing, or causes same to be paid, and keeps and performs each and every covenant, condition and stipulation cantained herein and in the Note, then this Deed of Trust shall became null and vaid; otherwise to be and remain in full farce and effect. If there is a default hereunder, or under the Note ar the Loan Agreement, then the Note, together with all other sums secured hereby, shall at the option of the Beneficiary, become at once due and payable without demand, notice or judicial hearing except as may be required by law (such requirement of law being hereby waived to the extent permitted by law), and the Trustee, when requested to do sa by the Beneficiary after such default, shall sell the Mortgaged Property, at puhlic auction, to the highest bidder, for cash at the caunty courttrouse ofthe county in Texas in which the Mortgaged Property or any part VU.\797[bl0'PftIY.G/V.hYi1Q�'iJ'10.�fldi:1V"I`SlIDR3S�.i�"1'"d`dgS.Wl�'S:) — 5 ' thereaf is situated as herein described in the area in such courthouse designated for real property foreclasure sales in accordance with applicable law (or in the absence of such designation, in the area set forth in the notice of sale hereinafter described), between the haurs of ] 0:00 o'clock A.M, and 4:00 o'clock P.M., on the first Tuesday of any month (or the first Wednesday if the first Tuesday falls on January 1 or July 4), after giv►ng notice of the time, place and terms of said sale, and of the property to be sold in accordance with applicable laws in the State af Texas in effect at the time such notice is given, provided however, such sale shall begin at the time stated in such notice or within three (3) hours thereafter. Notice of such praposed sale shall be given by pasting written notice of the sale at the courthouse, and, except as otherwise permitted or required by applicable law, by filing a copy af the notice rn the offce of the caunty clerk of the county in which the sale is to be made at least twenty-one (21} days preceding the date of the sale. If the property ta be sold is situated in more than one county, a notice shall be posted at the caurthause and filed with the county clerk of each county in which the property to be sald is situated. Tn add►tion, Benefrciary shall, at least twenty-one (21} days preceding the date of sale, serve written notice of the proposed sale by certified mail on each debtor obligated to pay the debt secured hereby accarding to the records of Benefic►ary. Serv►ce of such notice shall he completed upon deposit of the notice, enclosed in a postpaid wrapper, properly addressed to such dehtor at the most recent address as shown by the records af Beneficiary, in a post office or official depository under the care and custody of the United States Postal Service. The affidavit of any person having knowledge of the facts to the effect that such service was campleted shall be prima facde evidence of the fact of serv►ce. Any notice that is required or permitted to be given to Grantor may be addressed to Grantor at Grantor's address as stated above. Any notice that is to be given by certified mail to any other debtar may, if no address for such other debtor is shown hy the records of Benefic►ary, be addressed to such other debtor at the address of Grantor as ►s shown by the records of Beneficiary. The Trustee may appoint any attorney-in-fact or agent to act in his or her stead as Trustee to perform all duties of the Trustee authorized herein. Grantor authorizes and empowers the Trustee to sell the Mortgaged Properiy, together or in lots or parcels, as the Trustee shall deem expedient; to receive the proceeds of said sale; and to execute and deliver to the purchaser or purchasers thereof good and sufficient deeds of conveyance thereto by fee simple title, with covenants of general warranty, and Grantor binds himself or herself to warrant and forever defend the title of such purchaser or purchasers. The proceeds of such sale shall be applied in the following order: (a) to the payment of all necessary costs and expenses incident to the execution of said trust, including a reasonable fee to the Trustee not exceeding five percent (5%) of the gross proceeds of the sale of the Mortgaged Property; (b} the indehtedness secured hereby, discharg►ng first that port►on of the indebtedness arising under the covenants or agreements herein contained and not evidenced by the Note; (c) the remainder, if any, to Grantor or such other person or persons entitled thereto by lawa 15. �a ��i��4�� r.��" ��cc�ci��;�•. Upon the commencement of any action to enforce the lien herein given, Beneficiary shall have the add►tional right to have a court of competent jurisdiction appoint a receyver to take possession of the Mortgaged Property. This provision is a right created by this contract and is cumulative of, and shall not affect in any way, the r►ght of the Beneficiary to the appointment of a receiver given the Beneficiary by law. 16. p=�1�cV �aa�� " �d� sMtir [�i��ti. Upon the occurrence of a default hereunder, Beneficiary shall have the option to proceed with foreclosure in satisfact►on of such delinquent or then matured debt, e►ther through the courts or by directing the Trustee to proceed as if under a foreclosure, conducting the sale as herein pravided and without declaring the whole debt due, and provided that if said sale is made because of such default, such sale may be made subject to the unmatured part of the Note and debt secured by this Deed of Trust; such sale, ►f so made, shall not in any manner affect the unmatured part of the debt secured by this Deed of Trust, it be►ng the purpose to provide for a foreclosure and the sale of the Mortgaged Property for any matured portion af said debt, without exhausting the power of foreclosure, and ta sell the Mortgaged Property for any other part of said debt whether matured at the time or subsequently maturing. �:t�a rs��r7Hte.aa.�v K:ac�t�ur�F�.�v-�s�e�t:�:u°r�s wz�ta - 6 - 17. M'��Me�„��i,sii+��ITl�r �sw�� In case of any sale hereunder, all prerequisites to the sale shall be presumed to have been performed, and in conveyance given hereunder, all statements of facts or ather recitals made therein as to any of the following, shal l be taken in al l courts of law ar equity as przma facie evidence that the facts sa stated or recited are true; i.e., the nonpayment af money secured; the request to the Trustee to enforce this trust; the proper and due appointment af any substitute trustee; the advertisement of sale or time, place and manner of sale; or any other preliminary fact or thing. Trustee shall not be liable for any action taken or omitted to be taken by Trustee in goad faith and reasonably believed to be within the discretian or power conferred upan Trustee hy this Deed of Trust and shall be answerable only for losses occurring through his or her gross negligence or willful misconduct. Grantor agrees to save and hold the Trustee and Beneficiary harmless from all lass and expense, including reasanable attorneys' fees, costs af a title search or ahstract, and preparation of survey, incurred by reason of any action, suit or proceeding (including an action, suit ar praceeding to foreclase or to collect the debt secured hereby) in and to which Trustee ar Beneficiary may be or become a party hy reason hereof, including but not limited ta, candemnation, bankruptcy and administration praceedings, as well as any other praceeding wherein proof of claim is required by law to be filed or in which it becomes necessary to defend or uphold the terms af this Deed af Trust, and in each such instance, all money paid or expended by Trustee or Beneficiary, together with interest thereon from date of such payment at the rate set forth in said Note or at the legal rate, whichever is higher, shall be so much additional indebtedness secured hereby and shall be immediately due and payable by Grantor. 18. "��a��t,tzt�. l� tw.�ttw�.W Beneficiary may, at its aption, appaint a successor ar suhstitute Trustee withaut any formality or natice (except as may be required by law} other than a designatian in writing af such appointment to such successor ar substitute trustee wha shall thereupan became vested with and succeed to all the powers and duties named herein, the same as if the successor or substitute had been named original Trustee herein; such right to appoint a successor ar substitute trustee shall exist as aften and whenever the Beneiiciary desires. If the Beneficiary is a corporatian, it may act through any authorized officer or by any agent ar attorney-in-fact properly authorized by any such officer. 19. 'VVauiw�un� r��" ��"vera�u�� a�is�lc�. To the extent permitted by law, Grantor expressly waives and relinquishes any and all rights and remedies under Sections 51.003, 51.004 and S 1.Od5 of the Texas Property Code, as amended or re-codified ("�'��'u�.i�u�� Stut��r��"}, including without limitation, the right to seek a credit against or offset of any de�ciency judgment based on the fair market value ofthe Mortgaged Property sold at any judicial or non judicial foreclasure; and to the extent permitted by law, Grantor agrees that Beneficiary shall be entitled to seek a deficiency judgment from Grantor and/or any other party obligated on the indebtedness secured hereby equal to the difference between the amount awing on the indebtedness secured hereby and the foreclosure sales price. Alternatively, in the event the faregaing waiver is determined by a caurt of competent jurisdiction ta he unenforceable, the follawing shall be the basis far the finder of facYs determination of the fair market value af the Mortgaged Property as of the date af the foreclosure sale in proceedings governed by any af the Deficiency Statues: (i) the Mortgaged Property shall be valued in an "as is" condition as of the date of the forecfosure sale, without any assumption or expectation that the Mortgaged Property will be repaired or improved in any manner before a resale of the Mortgaged Praperty after foreclosure: (ii) the valuation shall be based upon an assumption that the foreclosure purchaser desires a resale of the Mortgaged Property for cash pramptly (but nat later than twelve (12) manths) following the foreclasure sale; (iii) all reasonable closing casts customarily borne by the seller in commercial real estate transactions shauld be deducted from the gross fair market value of the Mortgaged Property, including without limitation, brokerage commissions, title insurance premiums, cost of a survey, tax prorations, attorneys' fees, and marketing costs; (iv) the grass fair market value of the Mortgaged Praperty shall he further discounted to account far any estimated halding casts associated with maintaining the Mortgaged Property pending sale, including withaut limitation, utilities expenses, property management fees, security, taxes and assessments (without duplication), and other maintenance, operatianal and awnership expenses; and (v) any expert opinion testimony given or considered in connection with a determination of the fair market value of the Mortgaged Property must be given by persons having at least five (5) years experience in appraising property similar to the Martgaged Property and who have conducted and prepared a complete written appraisal ofthe Mortgaged Property and taking into consideration the factors set forth above. 20. No Waiver. The exercise of any aption given under the terms of this Deed af Trust shall not be considered a waiver of the right to exercise any other option herein; and the filing of a suit to foreclose this Deed of Trust, either an any matured portion of the debt ar for the whale deht, shall never be considered an election of remedies VJ:17078\Q7BlS.,i9A.�1 [)�l7CC7C�d1;Nk;5lK%l�.Fs9:Y"M'I�S VJF'k'1 — % ' so as to preclude foreclosure under power af sale after a dismissal of the suit; nor shall the filing of the necessary not►ces for foreclosure, as provided in this Deed of Trust, preclude the prasecution of a later suit thereon. ndlord - Tena„nt Relationshlp• Any sale of the Mortgaged Praperty under this Deed 21. Creationwwof_La .........................................._. .........�.��. of Trust shall, without further notice, create the relation of landlord and tenant at sufferance between the purchaser at such sale as landlord, and Grantor as tenant; and upon failure to surrender possessian thereof, Grantor may be remaved by a writ of possess►an at suit by the purchaser. 22. l'l, �_w�sN1�°a;u•�� I� zrcwa��N�� ':rme,�.�„ The purchaser at any trustee°s or foreclosure sale hereunder may disaffirm any easement granted, or rental, lease or other contract made, in violation of any provision of this Deed of Trust, and may take immed►ate possession of the Mortgaged Praperty free from, and despite the terms of, such easement or rental, lease or other contract. 23. f��c�uc°i�Nu�� ffti"NN�u p��l'. Beneficiary may bid and hecome the purchaser af all or any part of the Mortgaged Property at any Trustee's or foreclosure sale hereunder. 24. p��luf u�" �+��a#�°�; The Grantor agrees, to the full extent that Grantor lawfully may, that in case one or more of the defaults hereunder shall have occurred and shall not have been remedied, then, and in every such case, the Benefic'rary shall have the right and power to enter into and upon and take possession of all or any part of the Mortgaged Property in the possession of the Grantor, Grantor°s successors and assigns; and, holding the same, the Beneficiary may use, administer, manage, operate and control the Mortgaged Property and conduct the business thereofto the same extent as the Grantor, Grantor°s successors or assigns, might at the time do and may exerc►se all rights and powers of the Grantor, in the name, place and stead of the Grantor, or otherwise as the Beneficiary shall deem best; and in the exerc►se of any of the faregoing r►ghts and powers Beneficiary shall not be liable to Grantor for any loss or damage thereby sustained unless due solely to the willful misconduct or gross negligence of Beneficiary. 25, i��rl''�^.�a�;�. Any part of the Mortgaged Property may he released by the Beneficiary without affecting the lien, security interest and assignment hereofagainst the remainder. The lien, secur'rty interest and other rights granted hereby shall not affect or be affected by any other security taken for the same ►ndebtedness or any part thereof. The taking of additional security, ar the extension or renewal of the indebtedness secured hereby or any part thereof, shali not release or impair the lien, security interest and other rights granted herehy, or affect the liability of any endorser, guarantor or surety, or improve the right of any permitted junior lien holder; and this Deed of Trust, as well as any instrument given to secure any renewal or extension of the indebtedness secured herehy, or any part thereof, shall be and rernain a first and prior lien, except as otherwise provided herein, on all ofthe Mortgaged Property not expressly released until the indebtedness secured hereby is completely paid. 26. '��wiv�� crl" f1'M��ar��w.rAli��, �:t�. To the extent that Grantor may lawfully do so, Grantor agrees that Grantor shall not assert and hereby expressly waives, any right under any statute or rule of law pertaining to the marshalling of assets, the exemption af homestead, the administration of estates of decedents, or any other matter whatsoever to defeat, reduce or affect the right of Benefciary, under the terms of this Deed of Trust, ta sell the Mortgaged Property for the collection of the indebtedness secured hereby (without any prior ar different resort for collection) or the r►ght af Beneficiary, under the terms of this Deed of Trust, to the payment of such ►ndebtedness out of the proceeds of sale ofthe Mortgaged Property in preference to every other person and claimant whatsoever. Grantor expressly waives and relinquishes any right or remedy which it may have or be able to assert by reason ofthe provisions of Chapter 43 ofthe Texas Civil Practices and Remedies Code ofthe State ofTexas, pertaining to the rights and remedies af sureties. Grantor further waives, to the extent permitted by law, the benefit of all laws now existing or that hereafter may be enacted providing for (a) any appraisement before sale of any portion of the Mortgaged Premises, commonly knawn as Appraisement Laws, and (h) the benefit of all laws that may be hereafter enacted in any way extend►ng the time for the enforcement of the collection of the debt secured hereby or creating or extending a period of redemption from any sale made in collection of said debt, cammonly known as Stay Laws and Redemption Laws. 27, a'��,�;i�rt�� ad r�t" �'�� n��, �t,a,r� �Vtw�� 1��+�,d;�w,, (a} All ofthe rents, royalties, issues, profits, revenue, income and other benefits derived from the Mortgaged Property or arising from the use or enjoyment of any portion thereof or from any lease or agreement pertaining thereto (hereinafter called the "Rents") are hereby assigned, transferred, conveyed wv:t��r��r��a��r�tr ��o.ra r�a��ar�mmr�v��ts�u�u�,u��-u ua��.vu2^u� — 8 - and set over to Beneficiary, to be applied by Beneficiary in payment of the principal and interest and all other sums payable an the Note, and any other indebtedness secured hereby. Pr°rar ta the occurrence of any default hereunder, Grantor shall collect and receive all Rents as trustee far the benefit of Beneficiary, and Grantor shall apply the funds so collected first to the payment of the principal and interest and all other sums then due and payable on the Note and payment of all ather indebtedness secured hereby and then due and payable; next to the performance and discharge of the obligations of Grantor hereunder and under the other Loan Documents; and next to the payment of all costs and expenses related to the ownership, operation, management, repair and leasing of the Mortgaged Property, including without limitation, insurance premiums, praperty taxes, ordinary repairs, maintenance and security, and reasonable reserves therefor. 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(d} Grantor shall (a) submit any and all proposed leases to Beneficiary for approval prior to the execution thereof, except that Grantor may lease individual units in the Mortgaged Property to bona iide third-party tenants, for market rate rents and using industry-standard lease contracts or otherwise on leases and terms approved by Benefciary in advance in writing, (b} duly and punctually perform and comply with any and all representations, warrant►es, covenants, and agreements expressed as binding upon the lessor under any lease, (c) maintain each of the leases in full force and effect during the term thereof, (d) appear in and defend any action or proceeding in any manner connected with �:�•ra�r�esv�r�e�.�snavu�e��;ur��cr�,�ar�u�u:e�°a��nr�ua � 9 � any of the leases, (e) deliver to Beneficiary true, correct and camplete copies of each of the leases, and (� del►ver to Beneficiary such further information, and execute and deliver to Beneficiary such further assurances and assignments, w►th respect to the leases as Beneficiary may from time to time request. (e) Without Beneficiary's prior written consent, Grantor shall not (a) do ar know►ngly permit to be done anything to impair the value of any of any leases, (b) except for security or similar deposits, collect any of the rent more than one (1} month in advance of the time when the same becomes due under the terms of any lease, (c) discaunt any future accruing rents, or (d} amend, modify, rescind, conceal, surrender, assign, or terminate any of the leases, except °rn the ordinary and prudent aperation of the Martgaged Property. (fl These presents shall not be deerrred or construed to constitute Beneficiary as a"mortgagee in possession" of the Mortgaged Property or to obligate Beneficiary to take any action hereunder, to incur expenses or to perform or discharge any obligation, duty or liahility hereunder or under any of the leases of the Mortgaged Property. 28. ��t��:��,�r��Mr�a�t��'k��r�l�k�,��,. Grantorwillnot,withoutthepriorwrittenconsentofBeneficiary,execute or deliver any pledge, security agreement, mortgage or deed of trust covering all or any portion of the Mortgaged Property (hereinafter called °°��N��r��orr�id�, �9'�aa�� ,�r r�"}, In the event of consent by Benefciary to the foregoing or in the event the foregoing prohibition is determined by a court of competent jurisdiction to be unenforceable by the provisions of any appl►cable law, Grantor will not execute or del►ver any Subard►nate Mortgage unless there shall have been delivered to Beneficiary not less than ten (10) days prior to the date thereof a copy thereof which shall contain express covenants to the effect: (a} That the Subordinate Martgage is in all respects unconditBonally subject and subardinate to the lien, security interest and assignment evidenced by this Deed of Trust and each term and provision thereof; (6) That if any action or proceeding shall be instituted to foreclose the Subordinate Mortgage (regardless of whether the same is a judicial proceeding or pursuant to a power of sale contained there►n}, no tenant of any port►an ofthe Mortgaged property will be named as a party defendant, nor will any action be taken with respect to the Mortgaged Property which would terminate any occupancy or tenancy of the Mortgaged Property without the pr►or written consent of Beneficiary; (c} That the Rents and Profits, if collected through a rece►ver or by the holder of the Subordinate Mortgage, shall be applied first to the obligations secured by this Deed of Trust, including principal and interest due and owing on ar to become due and owing an the Note and the other indebtedness secured hereby and then to the payment of maintenance, operating charges, taxes, assessments, and dfsbursements incurred ►n connection w►th the ownership, operation and/or ma►ntenance of the Mortgage Praperty; and (d) That ifany action or proceeding shall he brought to foreclose the Subordinate Mortgage, written notice of the commencement thereof will be given to Beneficiary contemporaneously with the commencement of such action ar proceeding. 29. ��'��+�°��w�:rr� ��i" +CIM�I.��s��w�� 1.,ia�xusw To the extent that proceeds of the Note are used to pay any outstanding liens, charges or encumbrances against or affecting the Mortgaged Property, such proceeds have been advanced by Benefic►ary at Grantor's request, and Beneficiary shall be subrogated to all r►ghts, interest and liens owned or held by any owner or holder of such outstanding liens, charges and encumhrances, irrespective of whether such liens, charges or encumbrances are released of record. 30. �P�toy•��var�� 9"'�c��wA��. It is expressly stipulated and agreed to be the intent of Grantor and Beneficiary at all times to comply strictly with the applicable Texas law governing the maximum rate or amount of interest payable on the Indebtedness (as hereinafter defined}, or applicable United States federal law to the extent that such law permits Beneficiary to contract for, charge, take, reserve or receive a greater amount of interest than under Texas law. For purposes of this provision, °°l��cBc.l��t�¢ida��.s,'° shall mean all indebtedness evidenced by the Note, and all amounts payable in the performance of any covenant or obligation in any of the other Loan Documents or any other commun►cation or writing by or between Grantor and Beneficiary related to the transaction or transactions that are the w:�7�aa��r•r�t2..�e�rr �a��ax��r:�r�n;�au:ru�s�sur��cu��.�vuA� - 10 - subject matter of the Loan Documents, or any part af such indebtedness. If the applicable law is ever judicially interpreted so as to render usurious any amount cantracted for, charged, taken, reserved or received in respect af the Indehtedness, including by reason ofthe acceleration of the maturity ar the prepayment thereof, then it is Grantar's and Beneficiary's express intent that al l amounts charged in excess ofthe Maximum Lawful Rate (as hereinafter defined) shall be automatically canceled, ab initio, and all amounts in excess af the Maximum Lawful Rate theretofore collected by Benefciary shall be credited on the principal balance af the Indebtedness (or, if the Indebtedness has been ar would thereby be paid in full, refunded to Grantor), and the provisions af the Note and the other Loan Documents shall immediately he deemed refarmed and the amounts thereafter collectible hereunder and thereunder reduced, withaut the necessity af the execution of any new document, sa as to comply with the applicable laws, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder; provided, however, if the Note has been paid in full befare the end af the stated term hereof, then Grantor and Beneficiary agree that Beneficiary shall, with reasonable promptness after Beneficiary discovers or is advised by Grantor that interest was received in an amaunt in excess of the Maximum Lawful Rate, either credit such excess interest against the Indebtedness then owing by Grantar to Beneficiary and/or refund such excess interest ta Crrantar. Grantor hereby agrees that as a candition precedent to any claim seeking usury penalties against Beneficiary, Grantor will provide written notice to Beneficiary, advising Beneftciary in reasonable detail ofthe nature and amount ofthe violation, and Beneficiary shall have sixty (60} days after receipt of such natice in which to correct such usury violation, if any, hy either refunding such excess interest to Grantor or crediting such excess interest against the Indebtedness then owing by Grantor to Beneficiary. All sums contracted far, charged, taken, reserved or received by Beneficiary for the use, farbearance or detention of the Indebtedness shall, to the extent permitted by applicable law, be amortized, prorated, allocated or spread, using the actuarial method, throughout the stated term of the Note (including any and all renewal and extension periods) until payment in full so that the rate or amaunt of interest on account af the Indebtedness does not exceed the Maximum Lawful Rate from time ta time in effect and applicable to the Indebtedness for sa long as debt is outstanding. In no event shall the provisions af Chapter 346 of the Texas Finance Cade (which regulates certain revalving credit loan accounts and revolving triparty accaunts) apply to the Note or any other part af the Indebtedness. Notwithstanding anything ta the cantrary contained herein ar in any of the other Loan Documents, it is nat the intention of Beneficiary ta accelerate the maturity of any interest that has nat accrued at the time of such acceleration or to callect unearned interest at the time of such acceleration. The terms and pravisions of this paragraph shall contral and supersede every other term, cavenant ar pravisian contained herein, in any of the other Loan Dacuments ar in any ather document or instrument pertaining to the Indebtedness. 3 L Pw'I��x�n�w��r� � e�uw�°'��V l��►d+�,� �d c,��t�r��'I�,��aw. As used herein, the term "�,?��fiA�u�� .��a�rv�'ul ��tt�:." shall mean the maximum lawful rate of interest which may be contracted far, charged, taken, received or reserved by Beneficiary in accordance with the applicahle laws of the State of Texas (or applicable United States federal law to the extent that such law permits Beneficiary to contract far, charge, take, receive or reserve a greater amaunt of interest than under Texas law}, taking into account all fees, charges and any other value whatsoever made in cannection with the transactian evidenced by the Note and the other Loan Dacuments. To the extent that Beneficiary is relying on Chapter 303 of the Texas Finance Cade ta determine the Maximum Lawful Rate payable on the Nate ar any ather part of the Indebtedness, Beneficiary will utilize the weekly ceiling from time ta time in effect as provided in such Chapter 303, as amended. To the extent United States federal law permits Beneficiary to contract for, charge, take, receive ar reserve a greater amount of interest than under Texas law, Beneficiary will rely on United States federal law instead af such Chapter 303 for the purpose of determining the Maximum Lawful Rate. Additionally, to the extent permitted by applicahle law now ar hereafter in effect, Beneficiary may, at its aption and from time ta time, utilize any other methad of establishing the Maximum Lawful Rate under such Chapter 303, ar under other applicable law hy giving notice, if required, to Grantor as provided by such applicable law now or hereafter in effect. 32. N� �;a��a�c�a �at•rt� '�'�°��ir�aw��. No waiver of any default on the part of Grantor or breach of any of the provisians of this Deed of Trust or of any other instrument executed in cannection with the indebtedness secured hereby shall be considered a waiver of any other or subsequent default ar hreach, and no delay ar omissian in exercising or enforcing the rights and powers herein granted shall be construed as a waiver of such rights and pawers, and likewise no exercise or enfarcement af any rights or powers hereunder shall be held to exhaust such rights and powers, and every such right and power may be exercised from time to time. If any provision of this Deed of Trust is held to be illegal, inval id, or unenforceable under present or future laws effective while this Deed of Trust is in effect, the legality, validity, and enfarceability of the remaining provisions afthis Deed ofTrust shall nat be affected thereby, and in lieu of each such �v:t�r��r��ra�rs�tx.,a�r� d:�e�C;z.rnn�r�-d��rR�:sb:��cKa.s.wR�N� — 11 — illegal, invalid, or unenforceable provision there shall be added automatically as a part of this Deed of Trust a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. If any af the liens, security interest or assignment of rents created by this Deed of Trust shall be invalid or unenfarceable, the unsecured portion ofthe indebtedness shall be campletely paid prior to the payment ofthe remaining and secured partian of such indebtedness and all payments made on account of such indebtedness shall he considered to have been paid on and applied first to the camplete payment of the unsecured portian of such indebtedness. 33. �a�•��a°��w^c•�M��u��r��„ (a) WithrespecttoanyoftheCollateralgovernedbytheUniformCommercial Code of the State of Texas (hereinafter called the "Code"), this Deed of Trust shall constitute a security agreement between Grantor as the debtor and Beneficiary as the secured party, and Grantor hereby grants to Beneficiary a security interest in such portion of the Mortgaged Property. Cumulative of all other rights of Beneficiary hereunder, Beneficiary shall have all of the rights conferred upon secured parties hy the Code. Grantor will execute and deliver to Benefciary all financing statements that may from time to time be required by Beneficiary to establish and maintain the validity and priority af the security interest af Beneficiary, or any modificatian thereof, and shall bear all casts and expenses af any searches reasanably required hy Beneficiary. Beneficiary may exercise any or all of the remedies of a secured party available to it under the Cade with respect to such property, and it is expressly agreed that if upan default Beneficiary should proceed to dispase of such property in accordance with the pravisions af the Code, then ten (10} days natice by Beneficiary to Grantar shall be deemed to be reasonable notice under any provision of the Code reyuiring such notice; provided, however, that Beneficiary may at its option dispose of such property in accordance with Beneficiary's rights and remedies with respect ta the real praperty pursuant ta the provisions of this Deed af Trust, in lieu of praceeding under the Code. Additionally, hut not in lieu of any other rights held by Beneficiary, Beneficiary may offset against any accounts or sums of Grantor held hy Beneficiary up to the full amount of the indebtedness secured hereby, as the same becames due. (b) �I�dkt.e ar1' 1V�� l�:�a�,. Grantar shall give advance notice in writing to Beneficiary of any proposed change in Grantor's name, identity, ar structure, and will execute and deliver ta Beneficiary, prior to or concurrently with the occurrence of any such change, all additianal financing statements that Beneficiary may require to establish and maintain the validity and priority of Beneficiary's security interest with respect to any Mortgaged Properiy described or referred to herein. (c) r� i�x� bap•c�. Shauld some af the items of Martgaged Praperty described trerein be goods that are or are to hecome fixtures related to the real estate described herein, it is intended that, as to any such goods, this Deed of Trust shall be effective as a financing statement filed as a fixture filing fram the date of its filing for record in the real estate records of the county in which the Mortgaged Praperty is situated. Infarmatian cancerning the security interest created by this instrument may be obtained from Beneficiary, as secured party, at the address of Beneficiary stated above, The mailing address of the Grantor, as debtar, is as stated above. 34. �';mma��c�mnmms��a�C��i�1:�rNrK°m Grantor,ifacarparation,agreesthataslangasitistheowneroftheMortgaged Property, it will do all things necessary to preserve and keep in full force and effect its existence, franchises, rights and privileges as a business or stock carporation under the laws of the state af its incorparation. 35. ��rc� a�wt��r ��r��% ,�^��x��m The covenants herein contained shall bind, and the benefits and advantages shall inure to, the respective heirs, executors, administrators, personal representatives, successors and assigns of the parties hereta, and ta any substitute Trustee. Whenever used, the singular number shall include the plural, the plural the singular, and the use of any gender shal I be applicable to all genders. The term "Grantor" shall include in their individual capacities, and jointly, all parties hereinabove named as Grantor. The term "Beneficiary" shall also include any lawful owner, holder, pledgee ar assignee of any indebtedness secured hereby. The duties, covenants, canditions, obligations and warranties of Grantar in this Deed af Trust shal I be jaint and several obligatians of Grantor and each Grantor if rnore than one, and Grantor's heirs, personal representatives, successors and assigns. Each party who executes this Deed of Trust (other than Beneficiary), and each subseyuent awner of the Martgaged Property, or any part thereof, covenants and agrees that it will perform, or cause to be performed, each condition, term, provision, and covenant of this Deed of Trust. �:edoass��•r��.c��rr�Acu�u�z��snc��tr��icra��rn��,v��u:A - 12 - ►� . l 4 . + w '�' f ' � �'w � 1�. i '� ... � -�..;� i ` ."` M n �• '�� ' . w i i w�' .�f'�'. .i `.,M, �i � ` �� 4 �.s','li � 4�� 1 ` f �: � f :r. . .... � ..r. 1 .:... ..... • ' 1 r... ` . . .. 6 4 P.. ��, .. ;� ' � ... . �.. � .. �.....,, ` . ,... S � i:..., . � � ^ ! - 1 1 ' .,. ;i . S . . � . 1 ♦ .,� �,. � • ,. ' � ,,." � � , �,.. S s f..... . . �,,. , f i ',, ti 4 4 � '� . :� 1 • . 4,, � f `. 4 � „ � ' 1 � �l,. 1 ' ��,, M ` � 4,, - . 4 , 4 4 • ., 1 • • 4 I .. i�� . . . :'f ' � ,.,i} IM. �4 .. '1 4V� . i 4�. 'fi .'� f ., ., � SI ` �i` S ".',. ` ',.'♦ M ' ' ' �.. . i�.. � ... F .�, � .�.i�� 'f` ;.ff -1 ;,. �.� � f � �.'.. � � ' i . .... � � � . � � ......... � WU:V'7(D'7�661"6�'M1A.S.A�.S� 11:�4D�tl.JY+�?R�"�'&.iC�'A�3%.��.9'"�`�.,5 �IV�4�1 - 13 ' �- �� e s • .a. • •, ' •; i MARK HICKS TRANSPORT, LLC, a Texas limited liability company : � • ,•. . .......� . .4 ' l....: i. 4 ... .4 .... .., w....... ' 1 � i 1 ........� r....... . � ,.... y i a � s � .� r � � I • . ' f � '! w I � . � . �f ' � f� . . � .. , 4 , d ' ' ��" 1i .� 1. �. I�i � •. II 1 i ' li ;... y :.:. { F. � �r:t r�r r��c r��e,z��a �sa��°au�aus�u ��ua��:u�° u ucs �r�As — 14 — ,...,,�,. .. 1'ItO�ERT�I DE��KIP"I"ICiN � �� m ��mu�� III�� n �� V�� i�� m�� u�� °��u�� `.�� °�� u�u��. �� I��°��, � ��'�� .��u�� '��u�� '�u, ��°m��.�� @��m�� ui��m��u� ��°� ��.��°� �� °�� °�� u°�� ,�� m�� :�� ,�� '�� "��'� ��°��°��,�� °��°�� :��°�� °�,I�� ,.�.u�� '°��m� �� II�� ..m,��;�� u�.�� IIY°��'�� '� �� '�� °�� "�� uf��u� ��u��" ��.IV°��'�� u°�� '� ��;,�� .��IIII'��° � �I��u�� '� �� ii��,�� ;'��.�m �� '�� u��w��'�� °�,��'�� ' ��'�� i'�'��u�� °�� " �� u�u�� m�'�'�� !�'��um,�� ,�� '�� Il��i�� ,;��,� i��'�� '��'��'�'�': �� m�� i� ��i��p, ��.. .. �� ,�„� ��i�� m�p�6�� .�� °��'ii�� m�� .�� .� ��.�� "��u...��.� �i��ii�.m�� ,�� ,��u. ��°�� '�� ;, ��t��,�� "�,�� " �'�,"��'�� IIII°�� m.�� U � �°��m�� ' �m� �i��u �� .��,. � �� '�� '�� '�'��'� � ' � °�� ui�� u.�°�� "��IIII''''��''�'� �u��'� In,� �� m��i�� "� ��°�u��m�� "� �� ,,, �� u�� ` ��'� �III� ��'�I�"��'�� °��ii�� w�� °��u�� u�� °��ii�� °��° ��i�� The Company is prohibited from insuring the area ar quantity af the land described herein. Therefare, the Campany does not represent that the acreage ar square footage calculations are correct. References ta quantity are far informatianal purposes only.