19-397ORDINANCE NO. 19-397
AN ORDINANCE OF THE CITY OF DENTON APPROVING A CONSENT TO
COLLATERAL ASSIGNMENT OF AN AIRPORT LAND LEASE AGREEMENT BETWEEN
MARK HICKS TRANSPORT, LLC AND ACCESSBANK TEXAS; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, contemporaneous with this ordinance, the City of Denton, a Texas home -
rule municipal corporation (the "City"), considered and approved that certain Airport Land Lease
Agreement (the "Lease") to Mark Hicks Transport, LLC ("Hicks Transport"); and
WHEREAS, Hicks Transport has agreed to collaterally assign its interest in the Lease to
AccessBank Texas, N.A. ("Bank") as evidenced by that certain Deed of Trust, dated April 2,
2019; and
WHEREAS, the Lease requires written consent of the City for the Collateral Assignment
to be effective and Hicks Transport has requested the City for such consent; and
WHEREAS, at the April 23, 2019 meeting of the Council Airport Committee, the
committee recommended that the City approve the Consent by a vote of 2 - 0; and
WHEREAS, the City Council deems it in the public interest to give consent to the
collateral assignment contemplated above; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this Ordinance
are incorporated herein by reference.
SECTION 2. The City Manager, or his designee, is hereby authorized to execute a
Consent to the Collateral Assignment of Lease in the form attached hereto as Exhibit "A" and
made a part of this Ordinance for all purposes.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
Y ............
......... ..n ,m____ _______ the or���L;N��a��c was passed..��i��� ��1.�����ave and
The motion to approve ov this ordinance was made by
seconded bd by
the 1`611owing vwe � 1� i... ` c"", J:
1
Chris Watts, Mayor:
Gerard Hudspeth, District 1:
Keely Briggs, District 2: V/
Don Duff, District 3: 1d111'
. . . .. . ....... -
John Ryan, District 4: . .......... . .
Deb Annintor, At Large Place 5:
Paul Meltzer, At Large Place 6:
PASSED AND APPROVED this the'..'_"' dayof 2019.
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A' uZ
ATTEST:
ROSA RIOS, CITY Sl"C'W"ITAICY
BY:
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY:
........ ................................ . . . . . . . . . . . . . . . . ... . .
.............. . . . . . .
- ----------- ( . ..... .
CHRIS W-A11 S, MAYOR
CONSENTTO COLLATERAL ASSIGNMENT OF LEASE
This Consent to Collateral Assignment ol.' Lease is made between the City of Denton,
Texas, a Texas home rUIC municipal corporation ("City" or "Landlord"), Mark Hicks Transport,
1.1,C, a Texas limited liability company ("Assignor") and AccessBank Texas, a Texas state
banking association ("Assignee").
Wl IEREAS, the City is the sole owner and landlord of'a 1.298 acre tract of.'property at
Denton Enterprise Airport more specifically described in Exhibit "A" to the Lease, and Exhibit
"A" to the Deed of Trust attached hereto (the "Property"); and
WHEREAS, the Property is subject to a ground lease, described as the Airport Lease
Agreement Commercial Operator dated eff.ective April 2, 2019, by and between the City, as
Lessor, and Mark [licks Transport, LLC, as Lessee (the "Lease"); and
WHEREAS, Assignee provided financing for the purchase of the Leasehold Estate and
certain improvements on such ground leased property (the "Leasehold Estate"); and
WHEREAS, for the purpose of securing and enforcing the payment obligations of Assignor
to Assignee, Assignor now wishes to collaterally assign the Lease to the Assignee through the
Leasehold Deed of Trust attached hereto as Exhibit "A;" and
WHEREAS, Section 8.4 of the Lease provides that it may not be collaterally assigned
without the written consent of City, at City's sole discretion, and Assignor has requested the City's
consent; and
WHEREAS, Section 8.5 of the Lease provides preconditions that must be met before the
City will consent to a collateral assignment and those preconditions have been satisfied or are
satisfied herein;
NOW THEREFORE, in consideration of the mutual covenants set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the C ity hereby consents to Assignor's collateral assignment of.' the Leasehold
Estate to Assignee, through the Leaschold Deed offrust (the "Collateral Assignment") attached
as Exhibit "A," under the following terms and conditions:
1. Assignor shall pay to the City a transfer:fee of live Hundred Dollars ($500.00) in
connection with the City providing its consent to the Collateral Assignment of the
Leasehold Estate.
2. Assignor will pay or will have Assignee pay for all of the City's administrative costs
on handling and processing the assignment of the Leaschold Estate from Assignor to
Assignee,
3, Assignee certifies that it has reviewed the Lease and accepts the provisions applicab
to the Assignee as Lender, including but not limited to Section 8.5. 1
Page 1
4. Assignee shall give the City copies of any written notice which Assignee gives to
Assignor of any default by Assignor under any financing agreement, promissory note,
or the Collateral Assignment at the same time it gives notice to the Assignor, Any such
notice shall be delivered as follows:
City Manager
City of Denton
215 E. McKinney
Denton, Texas 76201
Airport Manager
Denton Ent
5000 Airport Road
xas76207 Denton., Te Rd
City Attorney
City of Denton
215 E. McKinney
Denton, Texas 76201
5. The City agrees to provide Assignee a contemporaneous copy of all written notices
provided to Assignor under the Lease. Wherein a notice of default or breach has been
provided by the City to Assignor and Assignee, Assignee shall be entitled, at its option,
to cure such default or breach, and the City shall accept such cure from Assignee, If
the default or breach is not cured as provided under tile 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:
AccessBank'rexas
Attn: Jason Adamson
320 W. Eagle Drive, Suite 1.00
Denton, Texas 76201
6. Should Assignee foreclose or otherwise obtain Assignor's rights and interest in the
Leasehold Estate, the City will not unreasonably withhold its consent to an assignment
by Assignee to :future successors upon being provided with the potential successor's (i)
financial statement, (ii) confirmation ofno 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.
7. In the event of any inconsistency between the terms and conditions of the Lease and
tile terins and conditions of this Consent, then the Lease shall govern and control,
sm
8, If any provisions of this Consent shall be held or deemed to be illegal, inoperative, or
unenforceable, the same shall not affect any other provisions contained herein; the
remaining provisions to remain in full force and effect,
9, The City hereby represents and warrants that this Consent is made with proper authority
under Ordinance.
10. Assignee, its authorized representatives or agents, may, upon reasonable advanced
notice (written or oral) to Assignor and City and at any reasonable times, enter the
Property for the purposes of inspecting, repairing, or removing personal property.
Assignee may further, upon reasonable advanced written notice to City and Assignor
and at reasonable tirnes, enter upon the Property to exhibit or conduct a sale(s) of any
or all o:f.'the collateral pledged to Assignee, subject to the City's interests under the
Lease,
11. This Consent to Collateral Assignment shall be governed by and construed in
accordance with the laws of the State of Texas. Exclusive venue for any action related
to this Consent shall be solely in a court of competent jurisdiction in Denton County,
Texas,
12. This Consent to Collateral Assignment of Lease will bind and inure to the benefit of
the parties, their heirs, executors, administrators, successors in interest, and assigns.
IN WITNESS I IEREOF, the parties have executed this Consent to Collateral Assignment
ofLease as of the Date written below,
01M
ATTEST:
ROSA RIOS, CITY SECRETARY
By:
APPROVE ASTO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
By,,
at
Page 4
Datcd;
ASSIGNOR:
Mark Hicks'l.'ransport, LLC, a Texas
Iin1i(cd14'jb1'Ht"() pany
By:
Name:
Title:
ASSIGNEE:
AccessBank Texas
By:
Narne:
Title:
---------- - -
ACKNOVIWLEDGMEN'.1' OF ASSIGNOR
STATI; O TI_J,XAS § � ��" KATHY MITH
11My �11 783
COUNTY OF DENTON §
"Phis instrument was acknowledged before me on April . '.....11 2019, by Mark Hicks, Manager, of
.......
Mark I licks Transport, I..LC, a Texas limited liabl twy company, on Nhatf of said entity.
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State o
ACKNOWLEDGMENT OF ASSIGNEE
STA'I F OF TEXAS
COUNTY OU .I.)F'N'1'ON
This instrument was acknowledged before me on April � .r , 2019, by Jason Adamson, Senior
Vice President, of ACCI SSBANK TEXAS, a Texas state banking; association, on behalf ol'said entity.
TONYA GUNotary Public, State of Texas `I°AIDIz I 1 'Stto6i TeaxasComm. Expires 08-06-2022
[IF Notary ID 126349367
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ACKNOWLEDGMENT OF LANDLORD
STAT[' '. OF 'I EXAS
COUNTY OF DF',NTON
I hi mienl was acknowledged before m on prig � 21119, by 7W�
� is Mra�Ia�N
f oratal , ofIlie CIT), 01' DENTON a'texas home rule muitierpcorp
oration, p rou on behall'o1'
said,-- it
p'1'-i1= rtwty !! ;,w;r aauary .i .r gli..........
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NOuh'ARY PUBLIC, State of Texas
Page 5
1 IL:g IN k III f' �. 3 wt Ilts • is
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RECORDIN REAL PROPERTY BEFORE IT IS FILED FOR IN THE PUBLIC
SOCIALRECORDS: YOUR Y DRIVER'S
LICENSE NUMBER."
DEED OF TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT
("Deed of Trust")
STATE OF TEXAS §
COUNTY OF DENTON
called "Mortgagor," one or more),i #Ponder,# D
(hereafter called "Trustee") as trustee for the benefit of ACCESSBANK TEXAS, a Texas state banking association
calledagee"), whose address Is 320 W. Eagle Drive, Suite 100, Denton, 6201
SECTION 1, DEFINITIONS.
1A The term "Mortgaged property ,# personal pr
will become personal property by item or tyfe
Being the f Z"Leasehold 5 whether nowowned 9 is #,acquired
Mortgagor, In and to that certain real property located In Denton, Denton County, Texas, and being more
particularly described In Exhibit A attached hereto and Incorporated2 1 this reference for all
purposes,leasehold 3 described ♦ i M Lease
Agreementff A4� li; (heroin f f fl to as theexecuted by and between
City of Denton (heroin referred to as the "City"), as lessor, and
agor, as losseo, encumbering that
certain real �if:f ai f s a`Promises,�consisting of approximately C
acres of f e particularly described In Exhibitr,
TOGETHER WITH all improvements now or hereafter placed upon such property and all appurtenances, servitudes, rights,
ways, privileges, prescriptions and advantages In any way thereunto belonging or appertaining.
1.2 The term "Obligations"
& A promissory note dated of even date herewith In the principal sum of $1,229,132.00 executed by Mortgagor ani
i #IA # i i iii##• a i Ii I�^ +., i s 4
i # #
B. Ail promissory notes evidencing additional loans which Mortgagee may hereafter make to Mortgagor (although it
is understood that Mortgageei` # to do o
C. All other indebtedness and liabilitiesof all kinds of Mortgagor to Mo a .. now existing#
whether fixed or contingent, ioint and/or several. direct or Indirect. primary or secondary and roaardless of how created or
-ate of eighteen percent (18%) per annurn from the date paid until reimbursed-. and
E. All renewals, extensions and/or modifications of all of the above whether or not Mortgagor executes any renewal,
extension or modification agreement;
Provided however the term "ObW ations" shall not include ano extension of credit described in or intended to corn �Aj with
Texas Constitution Article 16 Section 50(a)(6),
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b #:#' is i#'; # i f # # A•
DEED OF TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT PAGE 1
Consentt Ill Assignment of Lease - EXHIBIT
minerals in and under and that may be produced from the Mortgaged Premises be included as part of the Mortgaged
Piornises and covered by Mortgagor's warranty of title).
SECTION 111, MORTGAGOR'S REPRESENTATIONS AND WARRANTIES.
In order to induce Mort Qee to extend or
and covenants that:
A. Accurate Loan Information. All information contained in statements furnished or to be furnished Mortgagee by or
on behalf of Mortgagor in connection with the Obligations secured by this Instrument is or will be complete and accurate.
B, Valid Title, Mortgagor has valid and indefeasible title to the Mortgaged Premises and has a legal right to grant
and convey same to Trustee for the benefit of Mortgagee, and Mortgagor shall, if requested by Mortgagee, execute all
proper additional assurances of title,
C. Free From Encumbrances, The Mortgaged Premises are free from all HEWIS, SMAIlly 1111MCSIS or Other
"-PGWAU� 44�
D. Propedy ir-icludei.J as Fixtures, Ali nwnlngs, door ano Wridow screens, Mown Wridows, and doors, rnantels,
cabinols, PLgs-lovm. shades. blhjdp, oil s nd Othor ft1i,1LLLLUL0-&V"2eUjs Bad f"Agill)VII
iloor coverinq�,,
UM41H M111malliffINFEWWWOMM, HiffulffINERM
10,0141 1
Premises,
E. Representations, Warranties and Covenants of Corporate Mortgagor If Mortgagor is a corporation (I) It is, and
W. W11
Instruments by resolution of ffie corporation's board of directors, and (iii) it shall riot, without Mortgagee's prior written
consent, reorganize, consolidate or merge with any other corporation,
SECTION IV. MORTGAGOR'S COVENANTS.
As long as any of the Obligations remains unpaid, Mortgagor shall (at Mortgagor's own expense):
A, Maintain Premises and Permit Inspection, Cause the Mortgaged Premises to be maintained in good condition
and revir and cause to be made a
the purpose of investigating and inspecting the condition and operation of the Mortgaged Premises; provided, however,
Mortgagor shall not make any material alterations to the Mortgaged Premises Without Mortgagee's prior written consent.
B. Prevent Vacancies, Keep occupied habitable Improvements on the Mortgaged Premises so as not to Impair the
insurance carded thereon and In th"1111111
♦
17 obtaining Mortgagee's �rlo"r written consent shall be deemed to be a transfer in violation of this covenant,
D. Prevent Other Encumbrances. Cause the Mortgaged Premises to be kept free and clear of lions, charges,
securltv Interests and encumbrances of every ciaracter. ot'*Pr tWan (1) tW,p ot'ipr eacumbraimps rre,2.teie bv this
RNOURK01161 11 lint WE
gap. #1 W. IMM ffiffil 41 1111 1� I
as not to jeopardize Mortgagee's rights In and to the Mortgaged Premises, and (vi) those consented to in writing by
as a valid and enforceable lien on the Mortgaged Premises.
E. Carry Insurance. Carry insurance In respect of the improvements now or hereafter located on the Mortgaged
Promises fire. s♦n#,* Q "i aq
. �A+
APEED or TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT P A GF,-_]
or waive any default.
F. Pay Recording Expenses and Maintain Liens, File at Mortgagor's expense this and every other instrument in
as may be necessary in Mortgagee's opinion to preserve, protect and renew the liens and other encumbrances herein
L
N.A. 0160106A A.W. .4, 1401*1 "M *11,10 011M. 0#114 "', W 00101, N
w1 # # # 0110 11 111 1,
the liens and other (,niconniorances crented therein.
GPay Chargos Accruing to Premises. Prorisiptly pay or cause to be paid prior to delinquency (I) all rentals payable
such Items. In the event of foreclosure of this Deed of Trust fi�n,-the obligation of Mortgagor under this paragraph to pay
any taxes or other charges which accrued at or prior to such foreclosure, shall survive the foreclosure.
H. Reserve for Expenses, Upon request by Mortgagee the Mortgagor sfuifl deposit with Mortgagee with and in
addition to installment payments on the Obligations (if any) a sum equal to one -twelfth (1/12111) of the esilnialed annual
ground rents, taxes, hazard Insurance premiums and other charges referred to in florK qi,rdj _Q herein next due on the
Mortgaged Premlses. If the arnount so paid Is not Sufficient to pay such items as and when they becorne due, then
Mort acor shall detost immediatelo with Mort oe an amount sufficient to %lrj such items, If there Occurs an "Event of
Default" (as hereinafter defined), Mortgagee may at anytime thereafter apply the balance then remaining of the funds
accumulated under this provision as a credit against the amount then remaining unpaid under the Obligations hereby
secured. No interest shall accrue or be allowed on any payments made under the provisions of this paragraph.
L Construction Loan. To the extent all or any part of the Obligations are advanced by Mortgagee to construct and
11000111161ANIN 11111 Ai 1
herein, dealing with insurance on the Mortgaged Premises.
J. Furnish Financial Information, Mortgagor shall furnish and shall cause all guarantors of the Obligations (or any
O*Xlon therq#� t* furAlgX tQ M#rt9,?.,vet vmAu2l, c�,,rre;0 fln?.ririvl st9ternsntv, 9=.vratV1y 9.Ad cgxWlPtely %P.ttlng f*rth the
financlal condition of Mortgagor and guarantors, as applicable, in such form as Mortgagee shall reasonably require.
SECTION V, PROVISIONS REGARDING SECURITY INTEREST IN FIXTURES.
To the extent permitted by law, this Deed of Trust also shall be construed to be a security agreement whereby and
SECTION VI. ADDITIONAL SECURITY,
As additional security for the payment and performance of the Obligations hereby secured, Mortgagor hereby transfers and
assigns to Mortgagee, the following:
DEED OF TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT PAGE 3
A. All the rents, royalties, issues, profits, revenue, income and other benefits derived from the Mortgaged Premises
or arising from the use or enjOyinent Of any portion thereof or from any lease or agreement pertaining thereto (hereinafter
called the "Rents and Profits") are hereby collaterally assigned, transferred, conveyed and set over to Mortgagee to be
ap["Iflod by Morilgagoo III payment of thug, prim iiiall and intereM and all rilhor payohlo on than Note, and all
illdcr1:4cdnnss secured himeby, morlwagor will 1101 (1) execute .111 nsslrpnlrn,�rif of mny (it its right, tHlo ot interest li) Ou., Wmfta
armt! Profits, or (al) oxcel'it whore lho lozsco is in defaUlt thOfeUndcr, terminale or crnifwnt to Ox,,, conc<fllaflon rat
any lease of the Mortgaged Premises or any part thereof, now or hereafter existing having an unexpired term of one (1)
year or more, except that any lease may be canceled, provided that promptly after the cancellation or Surrender thereof, a
new lease is entered into with a new lwmcw having a credit standing, in the jutignierA oll Mortgagee at least equivalent to
that of the lessee whose lease was cancolorl, on substantially the same terms as lho tonnimited or canceled lease, or (111)
modily arry is also of the Morligaged Pa,,ritises or �any parl thereof 4,o as to shoilum tho urmxpired tonh thotefor so Eta to
00CI'aauktSe tile i0VIOL1111 Of the ieurf payable ffiere'uru]of, Or (IV) ticcept prepaymenho (if any of retil to hoc, wna due
tirotor any of siich leasos in eixcess of orio (1) moriffi, oxcef,4 propayments In 11"in naluro of sacurlty for the perlorrnainre, of
lhr.L^ 10s,soo llhorcundcrr, or (v) in any othorinanner Jtrjpnlr flia vr,ilur) of Rh(:i Mr.)rtoigod Promicei or lho twcurftyoi thuds Dood
or Triral, Mor1qagor will not execute any lease of all or any subsiant4,11 podion of Gho> Mortgaged Prarrifises, axcefit for actual
Liocuix"Incy by the ll.,,,nsee theiriondor unit will al all finius plotriptly aill"I faillifidly perforrii, or cauSo to be, ljellbirnod, each
covenant, condition and agreement contained in each lease of the Mortgaged Premises now or hereafter existing, on the
by morigiqlao to do SO, a Writlerl statement cootalnhi�"J Via name's or ,III tesso(,�,s of lhe Morl5jafjr,,d PremJsos,,, the torirwi of
th� �W iespectivo ofisrm, lfjf, SpriGog o0cufjloe alridi the ren(nis priyablo 0)aroundcr, It Ilia Obllqaflons hereby ,wcured ai,L- not
paid tit inrIturity, howsoover such malurity may dart brought al,aotu4 or It art l"vord of Doloult or;rAirs under Wifs Dried of -1 rost,
lhoroupoin or ,,,0 arry[lrne dl rearerafteau w1flio Soo) or any Sutrsequent dclvi,111 continues, morigagoa nuly, pm'sonnfly or thro"i'Ji)
an agent selected by Mortgagee, take or have the Trustee take possession and control of the Mortgaged Premises or any
part thereof, and receive and collect all rents, revenues, profits and Income theretofore accrued or [hereafter accruing
therefrom so long as any of the Obligations remain unpaid or until the foreclosure of this Deed of Trust, applying the sums
so collected, first to the ordinary and necessary expense incident to such possession, control and collection, and second,
to the payment of the Obligations, irrespective of whether then mature, paying the balance, if any, to Mortgagor. In the
event Mortgagor shall execute a separate assignment to Mortgagee of the Leases and Rents, the terms and conditions of
the separate assignment shall control over any conflicting provislorm of this Sect I is assignment shrill be construed
as, constitute and serve as a security Instrument under Tex. Prop. Code, ( huller 04 mid as a security agrriement unth"J,
Chapter 9 of the Texas Business and Commerce Code with regard to the Rents and Profits and the proceeds thereof.
B. All judgment, awards of damages and settlements hereafter made resulting from condemnation proceedings (or
threatened condemnation proceedings) or the taking of all or any part of the Mortgaged Premises under the power of
erninont domain, or for any damage (whether caused by such taking or otherwise) to the Mortgaged Premises or any part
thereof, or to any rights appurtenant thereto, including any award for change of grade of streets. Mortgagee Is hereby
authorized, but shall not be required, on behalf of and in the name of Mortgagor, to execute and deliver acquittances for,
and to appeal from, any such judgments or awards. Mortgagee may apply all such SLIMS or any part thereof so received,
after the payment of all expenses, including costs and attorneys' fees, on the Note and other obligations hereby secured in
SLICh manner as Mortgagee elects.
C. Mortgagor also grants to the Trustee a security interest in all oil, gas, and other minerals that might be produced
from the Mortgaged Premises covered by this deed of trust, This Deed of Trust (1) is to be filed in the real property records
of the county in which the Mortgaged Premises are located, (it) covers all "as -extracted collateral," as defined in Texas
Business and Commerce Code §9,102, attributable to the Mortgaged Premises, (111) serves as a security agreement covering
the as -extracted collateral, (Iv) serves as an assignment of all payments made for damages or anticipated damages to the
Mortgaged Premises, and (v) serves as a financing statement covering as -extracted collateral and fixtures as provided in
Texas Business and Commerce Code §9.502. The provisions of this paragraph are cumulative of all other provisions of this
Deed of Trust,
D. As additional security, Mortgagor also grants to the Trustee a security interest in all contracts for the sale of all
or any portion of the Mortgaged Premises and any earnest money deposited thereunder and any deposit accounts Into
which such earnest money is deposited,
E. Mortgagor authorizes Mortgagee to file such financing statements as Mortgagee may determine are necessary
in connection with any and all security interests created by this Deed of Trust and any separate Assignment of Leases and
Rents covering rents, income, revenues and/or proceeds and other benefits derived from the Mortgaged Premises,
SECTION Vil, EVENTS OF DEFAULT,
T1 Acts Constituting Default, Mortgagor will be in default under this Deed of Trust upon the happening of any of the
following events or conditions (hereafter called an "Event of Default"):
A. Mortgagor falls to pay when due any principal or interest owing under the Note or any of the other written
instruments comprising part or all of the Obligations or otherwise breaches any of the provisions contained in said written
Instruments,
B. Any warranty, or representation made in this Deed of Trust by Mortgagor is determined by Mortgagee to be untrue
in any material respect.
C. Within ten (10) days after the notice thereof from Mortgagee, Mortgagor fails to cure a default in the due
performance or observance of any covenant or agreement contained In this Deed of Trust (other than payment of the
Obligations),
D. Subsequent to the date of execution of this Deed of Trust, there Is passed any lawwhich deducts any lien on the
Mortgaged Premises from the value of the Mortgaged Promises for purposes of state or local taxation of deeds of trust and
security agreements or debts secured thereby, or which changes the manner of collection of any such taxes in such a way
that Mortgagee's interest in the Mortgaged Premises is adversely affected.
E. Mortgagor makes an assignment for the benefit of creditors, becomes insolvent, files for bankruptcy or involuntary
bankruptcy proceedings are instituted against Mortgagor; or the Mortgaged Premises are attached or otherwise levied upon
or placed in the hands of a receiver or other representative of a court,
F, A subMantlal portion of the improvements on the Mortgaged Premises are damaged or destroyed, or Mortgagor's
title to the Mortgaged Promises or any substantial part thereof becomes the subject matter of litigation which would or might,
in Mortgagee's opinion, Upon final determination result in substantial Impairment or loss of the security provided by this
Deed of Trust,
G. The occurrence of any event constituting a default under any guaranty executed in connection with and
guaranteeing prompt payment of any indebtedness constituting part of the Obligations.
7.2 Acceleration upon Default. Upon the occurrence of any such Event of Default, or at anytime thereafter, Mortgagee
may, at its option, declare the entire unpaid principal of and the Interest accrued on the Obligations to be forthwith due and
payable without any notice, presentment, protest, notice of protest or demand of any kind, all of which Eire hereby expressly
waived, including, Without limitation, notice of intent to accelerate and notice of acceleration.
0
81 Operation of Property by Trustee, Upon the occurrence of an Event of Default, or at anytirne thereafter, and in
addition to all other rights herein conferred on the Trustee, the Trustee (or any person, firm or corporation designated by
the Trustee) may, but Will riot be obligated to, enter upon and take possession of any of the Mortgaged Premises, exclude
Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so. If
the Mortgaged Premises consist of any type of business enterprise, the Trustee may operate and manage Such business
without any liability to Mortgagor resulting therefrom (excepting failure to use ordinary care of the operation and
management of the Mortgaged Premises); and the Trustee may collect, receive and receipt for all proceeds accruing from
such operation and management, make repairs and purchas -a needed additional property and exercise every power, right
and privilege of Mortgagor with respect to the Mortgaged Promises, When and if the expenses of such operation and
management have been paid and the Obligations paid, the Mortgaged Promises shall be returned to Mortgagor (providing
there has been no foreclosure sale),
8.2 Judicial Proceedings. Upon the occurrence of an Event of Default, or at anytime thereafter, the Trustee, in lieu
of or In addition to exercising the power of sale hereafter given, may proceed by legal action to require the specific
performance of any covenant or agreement herein contained or to aid in the execution of any power herein granted; to have
appointed a recolver pending any foreclosure hereunder or any sale of the Mortgaged Premises: to enforce any other
appropriate legal or equitable remedy, and/or in lieu of the non -judicial power of sale hereafter given, to proceed by Suit for
a foreclosure of Its lien on the Mortgaged Premises. In connection with any Such judicial proceeding instituted for the
purpose of foreclosing on and selling the Mortgaged Promises, Mortgagor agrees not to assert in the same proceeding any
counterclaims Mortgagor may have against Mortgagee.
8,3 Foreclosure by Sale
A. Mechanics of Sale. Upon the occurrence of any Event of Default, or at anytime thereafter, the Trustee shall, in
response to Mortgagee's request (which Mortgagor agrees will be prosurned to have been given), enforce this trust or
agreement by selling the Mortgaged Premises in their entirety or in parcels, as the Trustee may elect, to the highest bidder
or bidders for cash at public auction in the following manner. Written or printed notices containing the time, place and terms
of sale shall be posted at the courthouse door and a copy thereof filed with the County Clerk, of the county or Counties
where the Mortgaged Premises are located, at least twenty-one (21) days prior to the sale. In addition, Mortgagee shall, at
least twenty. -one (21) days preceding the date of sale, serve written notice of the proposed sale by certified mail, return
receipt requested, on Mortgagor and all other debtors obligated to pay the Note and other indebtedness Secured hereby
according to the records of the Mortgagee. Service of such notices shall be completed upon deposit of the notices, enclosed
in postpaid wrappers, properly addressed to Mortgagor and to such debtors at the most recent address for each as shown
by Mortgages s records, in a post office or official depository under the care and custody of the United States Postal Service.
I hereafter, the sale shall take place at the courthouse door of the County where the Mortgaged Premises are located on
the first Tuesday in any month between the hours of 10:00 o'clock a.m. and 4:00 o'clock p.m., provided, however, if the
Mortgaged Premises are located in more than one (1) County, such sale may take place at the courthouse door of any of
the counties wherein a portion of the Mortgaged Premises Is located, and the aforesaid notices shall specify the county of
sale, Any purchaser or purchasers will be provided with a general warranty conveyance binding Mortgagor. Sale of a part
of the Mortgaged Premises will not exhaust the power of sale, and sales may be made from time to time until all the property
is sold or the Obligations are paid in full, The YrUSteo Will have the authority to appoint an attorney -in -fact to act as trustee
in conducting the foreclosure sale and executing a deed to the purchasers. In the event of any inconsistency between the
foregoing provisions relating to the mechanics of sale and the provisions of Section 51,002 of the Texas Property Code, the
provisions of Section 51.002 (or its Successor), shall govern the mechanics of sale.
DEED of TRUST, SECURITY AGREEMENTAND FINANCING STATEMENT PAGE 5
B. Certain Aspects of Sale. Mortgagee will have the right to become the purchaser at any sale of the Mortgaged
Premises, and Mortgagee will have the right to credit upon the amount of the bid made therefore the amount payable out of
the net proceeds of such sale to it. Recitals contained in any conveyance to any purchaser at any sale made hereunder
will conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of
the foregoing, non-payment of the unpaid principal SLIFTI of (and the interest accrued on) the written instruments constituting
part or all of the Obligations after the same have become due and payable, advertisement and conduct of such sale in the
manner provided herein and appointment of any successor trustee hereunder. Mortgagor does hereby ratify and confirm
all legal acts that the Trustee may do in carrying the Trustee's duties and obligations under this Deed of Trust,
C. Receipt to Purchaser, Upon any sale made under the power of sale herein granted, the receipt of the Trustee
will be sufficient discharge to the purchaser or purchasers at any sale for his, her, its or their purchase money; and such
purchaser or purchasers will not, after paying such purchase money and receiving Such receipt of the Trustee, be obliged
to see to the application Of Such purchase money or be in anywise answerable for any loss, misapplication or non -application
thereof,
D. Effect of Sale. Any sale or sales of the Mortgaged Premises will operate to divest all right, title, interest, claim
and demand whatsoever either at law or in equity, of Mortgagor in and to the premises and the property sold, and will be a
perpetual bar, both at law and in equity, against Mortgagor, Mortgagor's successors or assigns and against any and all
persons claiming or who shall thereafter claim all or any of the property sold from, through or under Mortgagor, or
Mortgagor's successors or assigns. Nevertheless, if requested by the Trustee so to do, Mortgagor shall join in the execution
and delivery of all property conveyances, assignments and transfers of the properties so sold. The purchaser or purchasers
at the foreclosure sale will receive, as Incident to his, her, its or their ownership, Immediate possession of the property
purchased, and Mortgagor agrees that if Mortgagor, or any person claiming under Mortgagor, whether tenant or otherwise,
retains possession of the Mortgaged Premises, or any part thereof, Subsequent to such sale, Mortgagor will be considered
a tenant at sufferance of the purchaser or purchasers and will, if Mortgagor remains in possession after demand to remove,
be guilty of forcible detainer and will be subject to eviction and removal, forcible or otherwise, with or without process of law;
and all damages by reason thereof are hereby expressly waived. All rental or lease agreements hereafter entered into by
Mortgagor in connection with the Mortgaged Prernises shall be expressly made subject to this provision.
Er Application of Proceeds. The proceeds of any sale of the Mortgaged Premises or any part thereof, whether under
the power of sale herein granted and conferred or by virtue Of judicial proceedings, will be applied as follows: FIRST - To
the payment of all expenses incurred by Mortgagee in preparing for and completing the foreclosure, including, without
limiting the generality of the foregoing, court costs, cornicensatlon of agents and ornployees, legal fees, appraisal fees, title
examination or reports, environmental audit costs and a commission of five percent (5%) to the Trustee, Plus expenses of
any entry or taking of possession, sale, advertising or conveyance thereof; SECOND - To the payment of the Obligations;
and THIRD - Any surplus thereafter rernaining will be paid to Mortgagor or such other persons entitled by law to receive
same; provided that in the event of a dispute over any such SUrPILIS, Mortgagee and/or the Trustee shall be entitled to
interplead Such Surplus with a court of cornicetent jurisdiction without liability to Mortgagor and Mortgagee shall be ontilled
to recover its costs and legal fees incurred.
F. Waiver of Laws. Mortgagor waives the benefit of all laws now existing or hereafter enacted providing for (I) any
appralsoniGnt before sale of any portion of the Mortgaged Premises (commonly known as Appralsement Laws), or (!I) any
extension of time for the enforcement of the collection of the Obligations or any creation or extension of a period of
redemption frorn any sale made in collecting the Obligations (commonly known as Stay Laws and Redemption Laws); and
Mortgagor hereby agrees and contracts that the laws of the State of Texas, save as above excepted, now In force relative
to the collection of the Obligations and the application to the payment thereof, are expressly adopted and made a part
hereof. Mortgagor hereby waives all rights of marshalling of assets. To the full extent allowed by law, Mortgagor waives
any rights Mortgagor has under, or any requirements imposed by (I) the suretyship law of the State of Texas, including
without limitation, any rights Mortgagor may have pursuant to Sections 51.003 - 51.005 of the Texas Property Code, as in
effect on the date of this Deed of Trust, and as it may be amended from firrie to tirne,
SECTION IX. MISCELLANEOUS,
9.1 Appraisal. In the event (1) bank examiners require an appraisal, or (ii) Mortgagee reasonably believes that the
value ofthe Mortgaged Premises has declined Such that Mortgagee's collateral position is likely impaired, then at the request
of Mortgagee, Mortgagor shall furnish to Mortgagee, at Mortgagor's expense, an appraisal of the Mortgaged Premises, to
be prepared by an appraiser reasonably acceptable to Mortgagee and in accordance with appraisal guidelines furnished by
Mortgagee. In addition, if Mortgagor is in default hereunder, Mortgagee may obtain an appraisal of the Mortgaged Premises
and the costs of such appraisal shall be reimbursed by Mortgagor upon demand All surns advanced by Mortgagee for
appraisals shall bear interest at the highest lawful rate and shall be secured by this Deed of Trust.
9,2 Compliance with Applicable Laws. Mortgagor shall at its sole cost and expense cause the Mortgaged PreiniSeS
to be In compliance at all firries with all applicable laws, rules, regulations and ordinances applicable to the Mortgaged
Promises (collectively, "Applicable Laws"), including, without limitation, all such Applicable Laws dealing with (I)
environmental matters, (11) fair housing laws, and (Ili) disabled persons (including American with Disabilities Act), Mortgagor
warrants and represents to Mortgagee that as of the date hereof (I) no hazardous materials or substances are located upon,
within or Linder the Mortgaged Premises, (11) no underground fuel storage tanks are located on the Mortgaged Premises,
except those which are disclosed to Mortgagee In writing and are registered with the Texas Water Commission with all
registration fees being paid current, In the event Mortgagee should reasonably believe that the Mortgaged Premises are in
violation of (or are likely to be in violation do Applicable Laws pertaining to environmental matters, or in the event Mortgagee
should commence judicial or non -judicial foreclosure proceedings hereunder, Mortgagee shall have the right to hire
J-EED OF TRUST, SECURITY AGREEMENT ANn FINANCING STATEMENT PAGE 6
consultants to perform an environmental study of the Mortgaged Promises. Such consultants arc, hereby authorized by
Mortgagor to enter the Mortgaged Promises to conduct such above and below -ground tests as such consultants deem
necessary to perform an environmental study as requested by Mortgagee. The cost of performing such onvironmental test
shall be paid by Mortgagor and shall be secured by this Deed of Trust. Mortgagor hereby Indemnities and agrees to hold
Mortgages, its directors, officers, employees and agents harmless from all loss, liability, claims, damages and expenses
suffered by or asserted against any of the indemnified parties and arising out of a violation or claimed violation of any
Applicable Laws pertaining to the Mortgaged Promises, Such indemnity and hold harmless agreement shall survive any
foreclosure of this Deed of Trust lien.
9.3 Successor Trustee. The Trustee (and any successor trustee appointed hereunder) may resign in writing
addressed to Mortgagee or be removed at anytime with or without cause by On instrument in writing duly executed by
Mortgagee, In case of death, resignation of removal of the Trustee (or any Successor trustee appointed hereunder}, a
Successor may be appointed by Mortgagee without other formality than an appointment and designation in writing, Such
appointment and designation will be full evidence of the right and authority to make the same and of all facts therein recited,
and upon the making of any such appointment and designation, this conveyance will vast in the named Successor trustee
all the estate and title of the Trustee in all of the Mortgaged Premises and said successor will thereupon succeed to all the
rights, powers, privileges, immunities and duties hereby conferred upon the Trustee. All references in this instrument to the
Trustee will be deemed to refer to the Trustee and any successor trustee from time to time acting hereunder,
9A Advances by Mortgagee or the Trustee. Each and every covenant herein contained shall be performed and kept
by Mortgagor solely at Mortgagor's expense, If Mortgagor falls to perform or keep any of the covenants of whatsoever kind
Of nature contained in this Instrument, Mortgagee, or the Trustee or any receiver appointed hereunder, may, but will not be
obligated to, make advances to perform the same in the Mortgagor's behalf, and Mortgagor hereby agrees to repay such
surns and any attorneys' fees Incurred in connection therewith upon demand plus interest at the maxii-nUrn rate permitted
by applicable law This amount will be in addition to any sum of money which may, pursuant to the terms and conditions of
any written instruments comprising part or all of the Obligations, be due and owing apart from the principal and interest
thoroon. No such advance will be deemed to relieve Mortgagor from any default hereunder.
9.5 Defense of Claims, Mortgagor shall promptly notify Mortgagee in writing of the COITImencernent of any legal
proceedings affecting Mortgagee's interest in the Mortgaged Premises, or any part thereof, and shall take such action,
employing attorneys agreeable to Mortgagee, as may be necessary to preserve Mortgagor's and Mortgagee's rights affected
thereby; and should Mortgagor fall or refuse to take any such action, Mortgagee may take such action on behalf of and in
the name of the Mortgagor and at Mortgagor's expense. Moreover, Mortgagee may take such independent action in
connection therewith as in its own discretion it deems proper and Mortgagor hereby agrees to make reimbursement for all
sums advanced and all expenses incurred in such action Plus interest at the maximum rato permitted by applicable law.
9.6 Termination, If all the Obligations are paid in full and the covenants herein contained are well and truly performed,
then the Mortgaged Premises will revert to Mortgagor and the entire estate, right, title and interest of the Trustee and
Mortgagee will thereupon cease: and the Trustee in Such case shall, upon the request of Mortgagor at Mortgagor's cost and
expense, deliver to Mortgagor Instruments acknowledging satisfaction of this Instrument,
9.7 Renewals, Amendments and Other Security. Renewals and extensions of the written Instruments constituting
part or all of the Obligations may be given at anytime, amendments may be made to agreements relating to any part of such
written instruments or the Mortgaged Premises. and Mortgagee may take or hold other security for the Obligations without
notice to or consent of Mortgagor. The Trustee or Mortgagee may resort first to such other security or any part thereof, or
first to the Security herein given or any pail thereof, or from time to time to either or both, even to the partial or complete
abandonment of either security, and such action will not be a waiver of any rights conferred by this instrument. All
amendments to and modifications of this instrument must be in writing signed by Mortgagee,
9.8 instrument an Assignment, Etc. This instrument will be deemed to be and may be enforced from time to firne as
an assignment, chattel mortgage, contract, deed of trust, financing statement, real estate mortgage, or security agreernent,
and from time to fivne, as any one (1) or more thereof if appropriate under applicable state law.
9.9 Limitation on Interest. No provision of this Instrument or of the Note or other written Instruments constituting part
or all of the Obligations shall require the payment or permit the collecting of interest In excess of the maximum rate permitted
by applicable law. If any excess of interest in such respect exists herein or in said Note or other written instruments, or are
adjudicated to be so provided for herein or in said Note or other written instruments, the provisions of this paragraph shall
govern, and noither the Mortgagor nor its successors and assigns shall be obligated to pay such interest to the extent that
it is in excess of the maximum amount permitted by law. If an excess should be collected, it shall be construed as a Mutual
mistake of the parties, and the excess shall be credited to principal; however, in the event the Note and other written
instruments have been paid In full, then Mortgagor, its successors and assigns, shall be entitled to a refund of the excess
amount collected, As used herein, the phrase "maximum rate permitted by applicable law" shall rnean the greater as
between the highest of such rate in effect on the date of the Note and the highest Of Such rate in effect on the date for which
a determination of interest accrued under the Note is made.
9.110 Unenforceable or Inapplicable Provisions, If any provision hereof or any of the written Instruments constituting
part or all of the Obligations Is Invalid or unenforceable, the other provisions hereof or of said written Instruments will remain
in fLIII force and effect, and the remaining provisions hereof will be liberally construed in favor of the Trustee and Mortgagee
in order to carry out the provisions hereof, If the lien or other encumbrances created by this instrument are invalid or
Unenforceable as to any part of the Obligations, or if the liens or other encumbrances are invalid or unenforceable as to any
part of the Mortgaged Promises, the unsecured or partially secured portion of the Obligations shall be completely paid prior
to the payment of the remaining secured or fully secured portion of the Obligations, and all payments made on the
DEED OF TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT PAGE 7
Obligations, whether voluntary or under foreclosure or other enforcernent action or procedure, shall be considered to have
been first paid on and applied to the full payment of that portion of the Obligations which is riot secured or fully secured by
the liens or other encumbrances created by this instrument,
9,11 Rights CUITIulative. Each and every right, power and remedy herein given to the Trustee or Mortgagee will be
CUITILIlative and not exclusive; and each and every right, power and remedy, whether specifically herein given or otherwise
existing, may be exercised from time to time and as often and in such order as may be deemed expedient by the Trustee
or Mortgagee, as the case may be, and the exercise, or the beginning of the exercise of any such right, power or remedy
will not be deemed a waiver of the right to exercise, at the same time or thereafter, any other right, power or remedy. No
delay or omission by the Trustee or by Mortgagee in the exercise of any right, power or remedy will impair any such right,
power or remedy or operate as a waiver thereof or of any other right, power or remedy then or thereafter existing.
9.12 Waiver. Any and all covenants In this instrument may from time to time by instrument in writing signed by
Mortgagee be waived to such extent and in such manner as Mortgagee may desire, but no such waiver will ever affect or
Impair Mortgagee's rights hereunder, except to the extent specifically stated in such written instrument, Acceptance by
Mortgagee of any payment in an amount less than that portion of the Obligations then due and owing shall be deemed an
acceptance on account only and not a waiver, and the failure to pay the entire amount then due shall continue to be an
Event of Default.
9.13 Joint and Several Liability. The term "Mortgagor" as used in this instrument will be construed as singular or plural
to correspond with the number of persons executing this instrument as Mortgagor. If more than one (1) person executes
this instrument as Mortgagor, his, her, their or its duties and liabilities under this instrument will be joint and several.
9 14 Section and Paragraph Headings, Section and paragraph headings are used in this instrument for convenience
only and shall be given no Substantive meaning or significance whatsoever in the construction and interpretation of the
terms and provisions herein contained,
9.115 Rights of Assignee, The terms "Mortgagee" and "Mortgagor" as used in this instrument include the heirs,
executors or administrators, successors, representatives, receiver, trustees and assigns of those parties. This instrument
is binding upon the Mortgagor, his, her or their heirs and legal representatives, and Mortgagor's successors and assigns,
and will inure to the benefit of the Trustee and the Trustee's successors and Mortgagee and its successors and assigns. It
is understood and agreed between the parties hereto that Mortgagee may assign any pail or all of the Obligations and this
instrument to a third party who shall become entitled to all rights and benefits given herein to Mortgagee. In particular, the
insurance policies referred to In P', I .,g,(L L1.1y above shall be rewritten to show such third party as the
mortgagee entitled to exercise all rights given to Mortgagee In such qrp,
9,116 Place of Performance. The duties and obligations herein imposed on Mortgagor are performable in the county of
Mortgagee's office at the address listed for Mortgagee at the end of this dOCUrnent,
917 Counterparts, This instrument may be executed in any number of Counterparts, each of which will for all purposes
be deemed to be an original, and all of which are identical,
9.18 Subrogation. To the extent that the proceeds of the Note or any of the other Obligations hereby secured have
been or will be advancod to srillsly, discharge or pay, either directly or indirectly, any inflebtednem', or other offlipation
secured by any right, title, interesi, lien, benefit, ron,)ody, equity, Superior title and/or seruilty Into rost (the "Subrogaled
Hans") in or against the Mortgaged Premises, the Mortgagee shall be subrogated to all such Subrogated Liens, and the
same shall be renewed, extended, rearranged and continued in full force and effect, in addition to and cumulative of the lien
and security interests of this Dead of Trust, irrespective of any formal or informal acknowledgment of partial or complete
satisfaction or release of the obligations thereby secured,
SECT ION X. ADDII'IONAL PROVISIONS,
(in the event of a conflict between the printed provisions of this instrument and the additional provisions (if any) contained
in Ibis section, the latter shall control).
10A PUFdK1Se Money A portion of the funds advanced under the Note represent funds advanced as a part of the
purchase price of the Mortgaged Premises, and this Deed of Trust is in addition to the vendor's lien retained in a Deed given
to Mortgagor securing the payment of the indebtedness described herein; and it is expressly agreed that the same shall not
operate as a waiver of the lien created by this Deed of Trust, it being agreed that said lien and rights created by this
instrUrTlent shall be cumulative and in addition to said vendor's lien above mentioned, and that the owner or holder of the
above described indebtedness may foreclose under either or both of said liens, as the owner or holder may elect, without
waiving the other; said deed above mentioned, together with its record, being herein referred to and made a part of this
instrument.
10.2 Additional Security Interests for Construction Loan, As additional security for the payment and performarwo of
the Obligations hereby secured, Mortgagor hereby grants to Mortgagee a security Interest in and to the following:
(1) all fi,xkures, eqLiinrh(,Mt, Systems, machinery, furnfriire, furnishings, inventory, goods, building and
construction materials, supplies, and articles of personal property, of every kind and character, now owned or
hereafter acquired by Mortgagor, which are now or hereafter attached to or situated in, on or about the Mortgaged
Premises or the improvements thereon (the "Irnprovements"), or used in or necessary to the complete and proper
DEED of TRUST, SECURITY AGREEMENT ANo FINANCING STATEmrNT PAGE 3
planning, development, Use, occupancy or operation thereof, or acquired (whether delivered to the Mortgaged
Promises or stored elsewhere) for Use Or installation in or on the Mortgaged Premises or the Improvements, and
i( all , renewals and replacements of, substitutions for and additions to the foregoing, Including, but without limiting
the foregoing, any and all fixtures, equipment, machinery, systems, facilities and apparatus for heating, ventilating,
air conditioning, refrigerating, plumbing, sewer, lighting, generating, cleaning, storage, incinerating, waste
disposal, sprinkler, fire extinguishing, communications, transportation (of people or things, Including, but not
limited to, stairways, elevators, escalators and conveyors), data processing, security and alarm, laundry, food or
drink preparation, storage or serving, gas, electrical and electronic, water, and recreational uses or purposes; all
tanks, pipes, wiring, conduits, ducts, doors, partitions, rugs and other floor coverings, wall coverings, windows,
drapes, window screens and shades, awnings, fans, motors, engines and boilers; and decorative items and art
objects (all of which are herein sometimes referred to together, as the "Accessories");
(2) all (a) plans and specifications for the Improvements; (b) contracts relating to the Mortgaged Promises,
or the Improvements or the Acceqsoilos or any part thereof: (c) deposits, (Including, but not limited to, Mortgagor's
rights in tenants' security deposits, deposits with respect to utility services to the Mortgaged Premises, or the
Improvements or the Accessories or any part thereof, and any deposits or reserves hereunder or under any other
Loan Document (as hereinafter defined) for taxes, insurance or otherwise, funds, accounts, contract rights,
instruments, documents, commitments, general intangibles (including, but not Ilrnted to, trademarks, trade names
and symbols), notes and chattel paper used in connection with or arising from or by virtue of any transactions
related to the Mortgaged Premises, or the Improvements or the Accessories or any part thereof; (d) permits,
licenses, franchises, certificates and other rights and privileges obtained in connection with the Mortgaged
Premises, or the Improvements or the Accessories or any part thereof; (a) leases, rents, royalties, bonuses,
issues, profits, revenues and other benefits of the Mortgaged Premises, the Improvements and the Accessories;
and (f) other properties, rights, titles and interests, if any, specified in any Section or any Article of this Deed of
Trust as being part of the Mortgaged Premises; and
(3) all (a) proceeds of or arising from the properties, rights, titles and interests referred to above in
paragraphs (1) and (2), including, but not limited to, proceeds of any sale, lease or other disposition thereof,
proceeds of each policy of insurance relating thereto (including promfurn refunds), proceeds of the taking thereof
or of any rights appurtenant thereto by eminent domain or sale in lieu thereof for public or quasi -public use under
any law, and proceeds arising out of any damage thereto whether Caused by such a taking (including change of
grade of streets, curb cuts or other rights of access) or otherwise caused; and (b) other Interests of every kind
and character, and proceeds thereof, which Mortgagor now has or heroafter acquires In, to or for the benefit of
the properties, rights, titles and interests referred to above in paragraphs (1) and (2) and all Property used or
useful in connection therewith, including, but not limited to, remainders, reversions and reversionary rights or
interests. In the event the estate of Mortgagor in and to any of the Mortgaged Promises is a leasehold estate,
this conveyance shall include, and the lien and security interest created hereby shall encumber and extend to, all
other further or additional title, estates, interest or rights which may exist now or at any time be acquired by
Mortgagor in or to the property dernised under the lease creating such leasehold estate and Including Mortgagor's
rights, if any, to the property demised under such lease and, if foe simple title to any of such property shall ever
become vested in Mortgagor such fee simple interest shall be encumbered by this Deed of Trust in the same
manner as if Mortgagor had fee simple title to said property as of the date of execution hereof.
Mortgagor authorizes Mortgagee to file Such financing staternents as Mortgagee deems necessary to perfect the
security interests granted herein,
10.3 Surface Rights, To the extent Mortgagor has a right to make or participate in any decision regarding access to
and use of the Mortgaged Premises for the purpose of exploring for, developing and/or producing the oil, gas and/or other
minerals in and under, and that may be produced from, the Mortgaged Premises, or any other purpose Incident thereto,
Mortgagor shall not allow access to or use of the Mortgaged Premises for any such purpose without first obtaining the
written consent of Mortgagee thereto,
10A Ad Valorem Tax Lien. As long as any of the Obligations remains unpaid, Mortgagor shall not, without the prior
written consent of Mortgagee, enter into any third party arrangeryient for payment of ad valorem taxes on the Mortgaged
Promises that would grant to such third party or result in such third party acquiring a lien on the Mortgaged Premises
pursuant to Section 32.06 of the Texas Tax Code or any similar statute; and Mortgagor's authorization to any third party
(other than Mortgagee) to pay the ad valorem taxes and receive transfer of a taxing entity's lien for ad valorem taxes shall
be null and void and of no force and effect unless Mortgagee, within ten days after receiving written notice from Mortgagor,
fails to pay the ad valorern taxes pursuant to Lender's rights as set forth in this instrument,
10.5 Leasehold Deed of Trust Provisions,
AThe Ground Lease creating the L.easehold Estate is a legal, valid, binding and enforceable agreerne.nt between
the parties thereto, except as limited by any applicable bankruptcy, insolvency. reorganization, moratorium, or
other similar law affecting creditors' rights generally, and the Ground Lease has not been modified or amended
in any respect unless a copy of such modification or amendment has been provided to Mortgagee, Mortgagor is
the owner of the lessee's interest in lhe Leasehold Estate, free and clear of any liens, charges, encumbrances,
security interests and adverse claims whatsoever except those approved by Mortgagee. This Deed of Trust
constitutes a valid, subsisting first lien deed of trust on the lessee's interest in the Leasehold Estate in accordance
with the terms hereof. Mortgagor is not in default thereunder, and to the best of Mortgagor's knowledge, the
Landlord under the Ground Lease is not in default thereunder, arid no event exists which, with the passage of
time or the giving of notice, or both, shall constitute an event of default thereunder.
DEED or TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT PAGEM,
B. Nolwithstanding any conflict between the terrors of this Deed of Trust and the Ground Lease, this Deed of Trust
is executed and delivered in conformity with the Ground Lease, and in the event Of Such conflict, if any, the terms
Oil this ILN)eo or I rust r0mH hr,,, controlling as, lietwoon Morlg,,,,v or and MoiJqrj9(,,f,,
J
C. MoriWiqor Mmil ifinely arj(t fully observo and perforrin iM of Ihe terms, cowmarils, agreements and conditions of
Me GrounL] Lease reclulied thorcill to bf," absowod and purforined by Morigagor as lessee, and will furnish to
Mortgagee rental receipts from the Landlord under the Ground Lease or other satisfactory evidence of payment
evidencing the timely payment of all rents due thereunder. In addition, Mortgagor will not, whether or not in
accordance with the terms of the Ground Lease, do or permit anything to be done, the doing of which, or the
emission of which, will terminate or materially impair of tend to materially impair the security of this Deed of Trust
or will be grounds for terminating the Ground Lease or declaring a forfeiture thereof,
D, Mortgagor will (I) promptly notify Mortgagee in writing of the receipt by Mortgagor of any notice (other than notices
customarily sent on a regular perlodic basis) from Uio landlord Llud(ff ffira Ground Lease and ofany n0fice', noting
or ciahrilng any default by Mortgagor in the perforniance or obwrvnnce of any of the tciirnri, covenants or
con(floons on the part of Mortgagor to be performed or obf,,eavcd under the Ground Leriso(11) promptly notify
Mmtf,pg(,,,o in writing of the i(Telpt by Mortgagor of any notice lronr t the Landlord to MrAgagor of termination of
the Ground Lease pursuant to the provisions of the Ground Lease; and (111) promptly cause a copy of each Such
notice received by Mortgagor from Landlord to be delivered to Mortgagee and in any event, within forty-eight (48)
hours afler uracoilat thereof by Mortgagor,
E. Mortgagor wit not to any voo,N(m or cam';ellation of any tiraviiflon of the Ground Loose nor, will ol.it the
prior wrifton consant of Morigngeo, to tho subordination of the Ground Lease to tiny mortIlm, c of the fee Interest
of the Landlord in the Leasehold Estate, 9
F, Morigrigor will fi,ind5h to Mortgagee, upon demand, proof of 1.raynieirl of all fterns which are required to be paid
by Moogagor purswmt to the Ground Lonae and proof of paymerit of which is required to be given to Landlord in
the Leasehold Estate,
G. Mortgagor may exercise any option or right to renew or extend the term of the Ground Lease or exercise the fee
option contained therein without the prior written consent of Mortgagee. Mortgagor shall give Mortgagee
simultaneous written notice of the exercise of such option or right to renew or extend, together with a copy of the
instrument given to the Landlord under the Ground Lease exercising such option or right, and, thereafter, shall
promptly deliver to Mortgagee a copy of any acknowledgment by the Landlord the Ground Lease with respect to
the exercise of such option or right. If such option or right has not been exercised as aforesaid, then not more
than one hundred eighty (180) and not less than one hundred twenty (120) days before the right of Mortgagor to
exercise any option or right to renew or extend the term of the Ground Lease shall expire, Mortgagor shall give
Mortgagee written notice specifying the date, term and manner forwhich such option or renewal is to be exercised.
Within ten (10) days of written demand by Mortgagee, Mortgagor shall exercise any such option or renewal which
is necessary to extend the term of the Ground Lease beyond the term of this Deed of Trust or to comply with any
law affecting Mortgagor or Mortgagee or which is necessary, in Mortgagee's reasonable judgment, to preserve
the value of the security intended to be afford wt by this Decd of rust. Morigagor sh,,,01 prornf,itly provide evidenr.,e
of such exercise of such option or right to Mortgagee's w-,.isookible satisfaction. fii the event that Moilgagor falls
to so exercise any such option or right or in the event of any default hereunder which is continuing beyond the
applicable cure periods, Mortgagor hereby agrees and grants to Mortgagee all right and authority to exercise such
option in the name of Mortgagor or in its own name, Nothing contained herein shall affect or limit any rights of
Mortgagee granted under the Ground Lease.
1-1 Mortgagor will execute and deliver on the request of Mortgagee, such instruments as Mortgagee may deem useful
or required to permit Mortgagee to cure any default under the Ground Lease or permit Mortgagee to take such
other actions as Mortgagee considers desirable to cure or remedy the matter in default and preserve the interest
of Mortgagee in the Leasehold Estate,
I. In the event Mortgagor shall be In default of any of its obligations, covenants or agreements under the Ground
Lease and Mortgagor shall thereafter fail to cure such default within the applicable grace or curative period
provided in the Ground Lease, Mortgagee may take any act it deems necessary to cure such default Without
limiting such right of access as Mortgagee may otherwise have to the Mortgaged Promises under this Deed of
Trust, Mortgagor shall permit Mortgagee to enter upon the Mortgaged Premises with or without notice and to do
anything thereen or thereto which Mortgagee shall deem necessary or prudent for the purpose of curing any
default by Mortgagor. Notwithstanding anything herein contained, Mortgagee shall have only the right, but not the
obligation, to cure any default by Mortgagor. Mortgagee's curing of such default shall not have the effect of waiving
or releasing Mortgagor from any of its obligations under the Ground Lease or this Deed of Trust.
J. It Mortgagee shall make any payment or, perform any act or take any action in accordance with the preceding
subparagraph (i), all monies expended by Mortgagee, In connection therewith (Including, but not limited to, legal
expenses, including reasonable attorney's fees and disbursements), shall be paid by Mortgagor to Mortgagee
forthwith upon demand by Mortgagee, and shall be Loan Instrument by this Deed of Trust, and Mortgagee shall
have, in addition to any other right or remedy of Mortgagee, the some rights and remedies in the event of non-
payment of any such sums by Mortgagor as in the case of a default by Mortgagor In the payment of the
Obligations.
K. Mortgagor agrees that in the event Mortgagee elects to make any payments or do any act or thing required to be
paid or done by Mortgagor as lessee of the Ground Lease, Mortgagee shall in addition to all other remedies of
Mortgagee herein be fully subrogated to any and all rights of Mortgagor as lessee and of the fee owner of the
Mortgaged Premises, as lessor, under the terms and provisions of the Ground Lease arising from or relating to
such payment or performance under the Ground Lease, and any sums advanced by Mortgagee shall be a part of
the Obligations secured by this Deed of Trust,
L. Mortgagor covenants and agrees that!
DEED oF TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT PAGE 10
(1) It will not surrender or relinquish the Leasehold Estate created by the Ground Lease, nor terminate or cancel
the Ground Lease or any rights it may have with respect thereto, including but not limited to, any right of first
refusal or purchase option, and that it will not, without the express prior written consent of Mortgagee, modify,
change, supplement, alter or amend the Ground Lease or any of its rights with respect thereto, either orally or in
writing, and as further security for the repayment of the Obligations and for the performance of the covenants
herein and in the Ground Lease contained, Mortgagor hereby assigns to Mortgagee all of its rights, privileges and
prerogatives as lessee under the Ground Lease to surrender, relinquish, terminate, cancel, modify, change,
supplement, alter or amend the Ground Lease, and any such surrender, relinquishment, termination, cancellation,
modification, change, alteration or amendment of the Ground Lease without the prior written consent thereby by
Mortgagee shall be void and of no force and effect. As further security to Mortgagee, Mortgagor does hereby
deposit with Mortgagee the Ground Lease which shall be retained by Mortgagee until all Obligations are fully
paid; and
(2) No release or forbearance of any obligations of Mortgagor under the Ground Lease pursuant to the Ground
Lease or otherwise, shall release Mortgagor from any of its obligations under this Deed of Trust, including its
obligations with respect to payment or rents as provided for in the Ground Lease and the performance of all of
the terms, provisions, covenants, conditions and agreements contained in the Ground Lease, to be kept,
performed and complied with by the lessee therein.
M. If there shall be filed by or against the Mortgagor a petition under the Bankruptcy Code, 11 U.S.C. Section 101
at. se (the "Bankruptcy Code"), and the Mortgagor, as lessee under the Ground Lease, shall determine to reject
the Ground Lease, pursuant to Section 365(a) of the Bankruptcy Code, then the Mortgagor shall give the
Mortgagee not less than fifteen (15) days prior written notice of the date on which the Mortgagor shall apply to
the Bankruptcy Court for authority to reject the Ground Lease. Mortgagee shall have the right, but not the
obligation, to serve upon the Mortgagor within such fifteen (15) day period a notice stating that (1) the Mortgagee
demands that the Mortgagor assume and assign the Ground Lease to the Mortgagee pursuant to Section 365 of
the Bankruptcy Code, and (2) the Mortgagee covenants to cure or provide adequate assurance of prompt cure of
all defaults and provide adequate assurance of future performance under the Ground Lease. If the Mortgagee
serves upon the Mortgagor the notice described in the preceding sentence, the Mortgagor shall not seek to reject
the Ground Lease and shall comply with the demand provided for in clause (1) of the preceding sentence within
thirty (30) days after the notice shall have been given, subject to the performance by the Mortgagee of the
covenants provided for in clause (2) of the preceding sentence.
V,. Effective upon the entry of an order for relief in respect of the Mortgagor under the Bankruptcy Code, the
Mortgagor hereby assigns and transfers to Mortgagee a non-exclusive right to apply to the bankruptcy court under
Section 364(d)(4) of the Bankruptcy Code for an order extending the period during which the Ground Lease may
be rejected or assumed.
D. So long as any of the Obligations secured by this Deed of Trust shall remain unpaid, unless the Mortgagee shall
otherwise consent in writing, the fee title to and the Leasehold Estate in the premises demised by the Ground
Lease shall not merge, but shall always be kept separate and distinct, notwithstanding the union of such estates,
either in the Landlord or the Mortgagor, or In a third party by purchase or otherwise.
'. Mortgagor shall fully perform and comply in all material respects with all covenants, warranties, representations,
and other obligations imposed upon or assumed by it as lessee under the Ground Lease, and, upon Mortgagor's
(allure or alleged failure (notwithstanding that the alleged failure may be contested by Mortgagor) so to do,
Mortgagee shall have the absolute and immediate right to enter upon the Mortgaged Premises and to take such
other action, to such extent and as often as Mortgagee, in its opinion, deems necessary or desirable, to prevent
or to cure any such failures or alleged failures by Mortgagor.
THE NOTE IS PAYABLE IN FULL ON OR BEFORE ITS STATED MATURII Y DATE. THE BORROWER/MORTGAGOR
MUST REPAY THE ENTIRE PRINCIPAL BALANCE OF THE LOAN AND UNPAID INTEREST WHEN DUE. THE
MOIRTGAGEE/LENDER IS UNDER NO OBLIGATION TO REFINANCE THE NOTE AT THAT TIME. THE
BORROWER/MORTGAGOR WILL, THEREFORE, BE REQUIRED TO MAKE. PAYMENT OUT OF OTHER ASSETS THAT
BORROWER/MORTGAGOR MAY OWN, OR BORROWER/MORTGAGOR WILL HAVE TO FIND A LENDER WILLING
TO LEND BORROWER/MORTGAGOR THE MONEY AT PREVAILING MARKET RATES, WHICH MAY BE
CONSIDERABLY HIGI IER THAN THE INTEREST RATE ON THE NOTE.
EXECUTED April 2019.
MORTGAGOR/DEBTOR:
MARK 1-10 S 131A 'PORT, VLC
By:
Mark Hicks Ma6141l"9
DEED OF TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT PAGE 11
STATE OF TEXAS
COUNTY OF DENTON
This Instrument was acknowledged before ine on April ,, 2
Transport, LLC. a Texas limltod liability co, r kX of said nnWyN
320 W. Eagle Drive, Suite 100
Denton, Texas 76201
R k ldl� — —Qsum I (ILL nwt!�'l TO:
ACCESSBANK TEXAS
320 W. Eagle Drive, Suite 100
Denton, Texas 76201
Attention: Jason Adamson
by Mark -flicks, Manager, of Mark Flicks
wt�ktl,
L
5
DEED OF TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT PAGE 12
musum
ALL It AT CERTAIN TRAcr OR PARCEL OF LAND IMM AAD BUNG NTMIED M THE WHATUI
"dO I SURD I. ARSTIIACTNUNIBER 970, (ITY(W KNIUN, WKNTOil,' A:Nl) RVING
10VWr()VL(yr 1,111AICK q THE SWn=r A WORT AIM InON,RECOROED UNKRanon,
CIERM DOCUMKNT NUNUIrk 201,201 PLXr WORDq DF,NVON Ell WAI'll,
(TWNNCVM0FC0RRK7WXFMED NOV KMBER IYZQ14, 1ANDFRCCW
RECORDS OF DENFON COUXIN,TEXAS, AND REMG RWRE PARMIARLY DESCRM91) All S FOLLUMV
CONINI k,NUNO kTAN W Pf CORm FOUND AT THE SOUTHEAsr CORNER OF SAID LOT 1,
S011111TANT AIRPORT ADWTION AND A"r THE NORTH EA91'C'01ZNER OF L011, BLOCK 1, ALDI
UNTWHUTU3N CgNTER, RECOR139D UNDER COUNTY ClIRMS DOCUNIENTNUNIIIJAJ 2009421 PLXI'
RECORDS, nf`,,KT0'N COIJNTY,TE•XAS, &AID "X"' AISO HUNG ON THE wwr RM1150rWAY LMY 014
WSTO)URTROAn;
THENCE NORTH 00i W4,1117,FS 16 �� IJINUTES -13,"41',CONDS WEITT' ),wriumu, EAMAAN1 OF SAID LOT 1,
SO UTHKAgr A I Rpowr A DOMN AND THEWEST LINF'OF W KSTCOLIL'J'1L0a�
DISTANCE OF 1172,81. FEETTO A 112 INCH MON PIN WITH A YELLOW PLASTIC CAP STAMPED
'TIETROPLEX I NU3N" SET ON THE EAM'LME OVSMD LOT 0SOUTIMASTAMPORTADDITION AND
WESTRIGHT-OF-WAY LINE OF WESTCOURT ROAD AND UMNOTHE POINTOv BEGINNINc Ole
TH I HEREIN DESCRIBED TRACT;
IT KNCE NORTH 09 DEGREFsji MINUTES 05SECONDS WEST, A DISTANCE OF ISC99 FEETTOA 1/2
INCH IRON PIN WITH A YELLOW PLASTIC CAP STAMPED "NIETROPLFX 10023300" SET' FOR CORNER;
THENCE NORTH 00 DEGREES H MJNuTES 59 SECONDS EAST, A DISTANCE OF 6C73 FERTTO A 112 INCH
MON PIN WITH A 'YELLOW PLASTIC CAP STAMPED "MPTROPLE X 10023300" SET FOR CORNER,
THENCE NORTH 89 DEGREES 42 MINUTES 29 SECONDS WZY11 A DISTANCE OF 71M vErr TO AN 0"
sj�,,r IN CONCRETE FOR CORNER;
IVENCE NOWIT 00 SECONDS 17 MINUTES 31 SECONDS CAST, A DISTANCT, OF 81.39 FEET To A 1/2 INCH
HWN MIN WITT A VELLOW PLASTIC CAP STAMPED "rVIETROPLEX 1002330011 SETPOR CORNI!:R�
THENCE SOUTII 89 DEGREES 42 MINUTES 29 SECONDS EAST, A MSTANCE OF 34.85 FEETTO A 1/2 INCH
MON PIN %7T" A YELLOW PLASTIC CAP STAMPED "METROPLEX 10023300" SET FOR CORNER;
THENCE NORTH 00 DEGREES 17 MINUTES 3[ SECONDS EAST, A oisTANCE OF 4103 FEETTO A 1/2INCH
MON PIN WITH A YELLOW PLASTIC CAP 8TAMPE'l) "ivIE'rRoj%t.x immm" swr FOR CORNER;
THENCE SOUTH 89 DEGREES 42 MINUITS 29 SECONDS EAST, A DISTANCE OF 26IS5 PEST To A u2
INCH IRON PIN WITH A YELLOW PLASTIC (CAP STARVED "PrINTROPLEX 1002330011 SET FOR CORNER;
THENNCE SOUTH 89 DEGREES 31 MINUTE'S M SECONDS EAST, A DISTANCE OF 2515 FEIN'TO it 112 INCH
MON PIN WITH A YE11OW PLASTIC CAP STARVED "METROPIXX I0031I00" SET ON THE EAST UNE
OF SAID LOT 4 SOUTVEAsT AIRPORT ADDITION AND THE WEST RIGHT-OF-WAY LINE OF
WESTCOURT ROAD; THENCE SOUTH 00 DEGREES 06 MINUTES 43 SECONDS EASTWITI (TH E EAST
LINE OF SAID LOT I, SOUIVEAST AIRPORT ADDITION AND TI-JE, MIESTRIGHT-Oli-WAY OF
WESTICOURT ROAD, A DISTANCE OF 19111 FEET TO THE POINT 01i'llEGINMNG, AND CONTAINING IN
ALL L2H ACRES OF LAND.
DEED OF TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT PAGE 13