HomeMy WebLinkAboutContract 35802CONSENT TO DEED OF TRUST LIEN UPON LEASEHOLD
FORT WORTH SPINKS AIlZPORT
iT1VIMPROVED GROUND LEASE AGREEMENT
WITH MANDATORY IlVIPROVEMENTS
(LEASE SITE NO. E-20)
(CITY SECRETARY CONTRACT NO. t � ��--
This CONSENT TO DEED OF TRUST LIEN UPON LEASEHOLD ("Agreement") is
made and entered into by and between the CITY OF FORT WORTH ("Lessor"), a home rule
municipal corporation organized under the laws of the State of Texas; NEWONE HANGARS,
LLC, a Texas limited liability company ("Lessee"); and FIRST STATE BANK TEXAS
("Bank"), a Texas bankuig association.
A. On or about , Lessor and Lessee entered into City Secretary Contract No.
(the "Lease"), an unimproved ground lease of land at Fort Worth Spinks Airport
("Airport") with associated mandatory improvements known as Lease Site No. E-20 (the "Leased
Premises").
B. In order for Lessee to obtain certain financing related to Lessee's construction of
improvements on the Leased Premises, Lessee and Bank desire Lessor to consent to the execution
by Lessee of a Leasehold Deed of Trust lien on the Leased Premises (the "Deed of Trust") in favor
of the Bank.
NOW, THEREFORE, Lessor, Lessee and the Bank hereby agree as follows:
1. The statements set forth in the recitals above are true and correct and form the basis upon
which Lessor, Lessee and the Bank have entered into this Agreement. The Lease is a public
document on file in Lessor's City Secretary's Office and is incorporated herein by reference for all
purposes.
2. Lessor hereby consents to the execution and delivery by Lessee to the Bank of the Deed of
Trust, which is attached hereto as E�ibit "A." Lessor does not adopt, ratify or approve of any of
the particular provisions of the Deed of Trust and does not grant any right, privilege or use to
Lessee, Bank, or any successor in interest pursuant to the Deed of Trust that is d.ifferent from or
more extensive than any right, privilege or use granted to Lessee under the Lease. Notwithstanding
anything contrary in the Deed of Trust, Lessee and the Bank acknowledge, understand and agree
that Lessee and the Bank do not have any right to convey any interests in the Leased Premises
Coasent to Deed of Trust between
Newone Hangars, LLC snd First State Bank Texas — Page 1
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greater than those granted specifically by the Lease. In the event of any conflict between the Deed
of Trust and the Lease, the Lease shall control in all respects as to Lessor and as to Lessee's and the
Bank's obligations to Lessor established by the Lease and/or this Agreement. In the event of any
conflict between the Deed of Trust and this Agreement, this Agreement shall control. In the event
of any conflict between this Agreement and the Lease, the Lease shall control.
3. In the event that Lessor is required by the Lease to provide any kind of written notice to
Lessee with regard to the Leased Premises, including notice of breach or default by Lessee, Lessor
shall also provide a copy of such written notice to the Bank. Lessor agrees that (i) the Bank may
perform any of the obligations or requirements imposed on Lessee by the Lease in order to avoid a
breach or default under the Lease by Lessee and (ii) Lessor will accept the Bank's performance the
same a5 if Lessee had performed such obligations or reqturements.
4. Lessor agrees and covenants that it will not exercise any rights it may have under the Lease
to cancel or terminate the Lease or to force surrender of all or part of the Leased Premises unless it
first has provided the Bank with written notice of its intent to exercise any such right. The Bank
shall have ten (10) calendar days from the date it receives such notice to cure any monetary default
under the Lease and tivriy (30) calendar days from the date it receives such notice to cure any other
default under the Lease to Lessor's reasonable satisfaction in order to avoid such cancellation,
termination or surrender; provided, however, that if the Bank, in good faith and after diligent and
continuous efforts to remedy any non-monetaty default under the Lease, cannot cure such default
within tlurty (30) calendar days, it sha11 notify Lessor in writing and Lessor and the Bank sha11
negotiate in good faith a reasonable amount of additional time to cure such default.
5. Lessee agrees that it will not request or consent to any future modifications, amendments or
assignments of the Lease without first receiving the Bank's written consent thereto and providing a
copy of such written consent to Lessor. Lessee understands and agrees that any such consent
granted by Lessor without Bank's advance written consent shall be void and specifically releases,
holds harmless and agrees to indemnify Lessor for any damages that may arise as a result of any
such consent.
6. In the event that Bank undertakes to enforce its rights to any collateral granted by the Deed
of Trust on account of default by Lessee under the Deed of Trust, Lessor will cooperate with the
Bank in its efforts to assemble and/or remove any personal property of Lessee on the Premises. The
Bank hereby agrees to repair any damages at or to the Airport, including the Leased Premises,
caused by or incident to such removal.
7. As a condition precedent to the effectiveness of this Agreement, Lessee agrees and
covenants that it will endorse a.11 insurance policies required by the Lease to name both Lessor and
the Bank as additional insureds and to cover a11 public risks related to the leasing, use, occupancy,
maintenance, e�stence or locarion of the Leased Premises. Notwithstanding anything to the
contrary in the Deed of Trust, the Bank hereby agrees and covenants that any and all proceeds
payable under the terms of such insurance policies sha11 first be applied to cover the replacement of
Consent to Deed of Trust between
Newone Hangars, LLC and First State Bank Teaas — Page 2
all facilities and improvements on the Leased Premises and to satisfy fully the terms and conditions
of the Lease. Payment of such proceeds shall apply secondarily to secure any of Lessee's
indebtedness to the Bank.
8. Subject to Sections 4 and 6 of this Agreement, Lessor may take all action available to it
under the Lease, at law or in equity in order to protect its interests, including, but not lunited to,
cancellation of Lessee's interest as provided by the Lease and in accordance with this Agreement.
9. The Bank agrees that it promptly will notify Lessor in writing when the Bank has released
its rights under the Deed of Trust. This Agreement will automatically terminate on the earlier of (i)
the date as of which the Bank releases such rights ar(ii) the date upon which the Lease expires or is
terminated.
10. The Bank may not sell or otherwise transfer in any way any of the Bank's or Lessee's rights
or interest in the Leased Premises unless Lessor consents to such sale or trausfer in the form of a
written agreement approved in advance by Lessor's City Council.
11. Notices to the Bank required pursuant to the provisions of this Agreement shall be
conclusively determined to have been delivered when (i) hand-delivered to the Bank, its agents,
employees, servants or representatives, or (ii) deposited in the United Sta.tes Mail, certified, return
receipt requested, addressed as follows:
First State Bank Texas
P.O. Box 676
Keene, TX 76059
Attn: Ronny Korb
12. The parties hereto understand and agree that upon expiration or termination of the Lease, all
structures, improvements and fixtures on the Leased Premises, and any items permanently attached
to any such structure, fixture or improvement, will become the sole property of Lessor, free and
clear of all liens, including the Deed of Trust, except for improvements of a non-permanent nature,
all trade fixtures, machinery, furnishings and other items may specifically be removed from the
Leased Premises in accordance with the Lease. In the event that the Lease expires or is terininated,
Lessee and the Bank covenant and agree that nothing herein shall obligate Lessor to assume in any
way Lessee's indebtedness to the Bank.
13. This Agreement may not be withdrawn, amended or modified except by a written
agreement executed by the parties hereto and approved by Lessor's City Council. Lessee and Bank
covenant and agree that they will not assign any rights andlor obligations thereunder, without the
prior written consent of Lessor. Lessee and Bank sha11 have the right to modify and extend the
terms of the note secured by the Deed of Trust and to file such modifications in the Deed Records
of Tarrant County, Texas.
Consent to Deed of Trust between
Newone Hangars, LLC aod First State Bank Texas — Page 3
14. This Agreement shall be construed in accordance with the laws of the State of Texas.
Venue for any action arising under the provisions of this Agreement shall lie in state courts located
in Tarrant County, Texas or in the United States District Court for the Northern District of Texas,
Fort Worth Division.
15. This written instrument, including any documents attached hereto andlor incorporated
herein by reference, contains the entire understanding and agreement between Lessor, Lessee and
Bank as to the matters contained herein. Any prior or contemporaneous oral or written agreement
concerning such matters is hereby declared null and void to the extent in conflict with this
Agreement.
[Signature Pages Follow]
Conseut to Deed of Trust between
Newone Hangars, LLC and First State Bauk Texas — Page 4
���I TNES � REOF the parties hereto have executed this Lease in multiples, this
ay of �2007.
LESSOR:
CITY OF FOR TH:
By:
Marc A. Ott
Assistant City Manager
Date: % � � 7= r� �
STATE OF TEXAS
COUNTY OF TARRANT
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Marc Ott, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the
City of Fort Worth and that he executed the same as the act of said City of Fort Worth for the
purposes and consideration therein expressed and in the capacity therein sta.ted.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this
HE7TIE LANE
MY COMMISSION CXPIRES
July 26, 2011
APPROVED �S TO FORM AND LEGALITY:
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Maleshia �. Farmer
Assistant City Attorney
Contract Authorization:
M&C: �J��`���
Date Approved: � "?-2� �4 �'
LESSEE:
Consent to Deed of Trust between
Newone Hangars, LLC and First State Bank Teaas — Page 5
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2007.
Public in and for the State of Texas
ATTEST:
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Marty Hen
City Secretary
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NEW ONE HANGARS, LLC.
a Texas Limited Liability Company
By:
Jq' Dubosque, reside
Date: � � 2 9 - �� �
ATTEST:
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STATE OF TEXAS § ° ` �h1 �!oiary Public ',
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BEFORE ME, the undersigned authority, a Notaty Public in and for the State of Texas,
on tihis day personally appeared John Dubosque, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same was the act of
Newone Hangars, LLC, and that he executed the same as the act of Newone Hangars, LLC,
for the purposes and consideration therein expressed and in tl�e capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this � day of 2007.
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BANK:
Consent to Deed of Trust between
Newone Hangars, LLC and First State Bank Teaas — Page 6
FIRST STATE BANK TEXAS, ATTEST:
a Texas banking association:
By: � ,�'� �Ct�/-- BY�
RONNY KORB, Executive Vice
President
Date: .�� z c�" �7
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STATE OF TEXAS § ��PA=��e. 4;HR�STf �G�U ANN MASO�;
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BEFORE ME, the undersigned authority, a Notary Public m an�or � e�Sta.te of Texas, on
this day personally appeared Ronny Korb, known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that the same was the act of First State Bank
Texas and that slhe executed the same as the act of First State Bank Tegas for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this — ��� day ° '� 2007.
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Pub� ' in and for e Sta.te of Texas
Consent to Deed of Trust betweeu
Newone Hangars, LLC and First State Bank Texas — Page 1
�XHIBIT "A"
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMSER.
Leasehold Deed of Trust
Terms
Date:
Grantor: NEWONE HANGARS, LLC, a Texas limited liability company, whose
registration identification number is 800668720
Grantor's Mailing Address: 202 Edge Hill Rd., Joshua, Johnson County, Texas 76058
Trustee: PETER G. BENNIS
Trustee's Mailing Address: P. O. Box 676, Keene, Johnson County, Texas 760�9
Lender: FIRST STATE BANK TEXAS
Lender's Mailing Address: P. O. Box 676, Keene, Johnson County, Texas 76059
Obligation
Note
Date:
Original principal amount: EIGHT HUNDRED NINETY THOUSAND AND
NO/100 DOLLARS ($890,000.00)
Borrower: NEWONE HANGARS, LLC, a Texas limited liability company
LEASEHOLD DEED OF TRUST - PAG� 1
EXHIBIT "A"
Lender: FIRST STATE BANK TEXAS
Maturity date: As provided in said note.
Other Debt: This conveyance is also made in trust to secure payment of all other
present and future debts that Grantor may owe to Lender, regardless of
how any other such debt is incurred or evidenced. Payment on all present
and future debts of Grantor to Lender will be made at FIRST STATE
BANK TEXAS in Keene, Johnson County, Texas, and the debts will bear
interest as provided in notes or other evidences of debt that Grantor will
give to Lender. This conveyance is also made to secure payment of any
renewal or extension of any present or future debt that Grantor owes to
Lender, including any loans and advancements from Lender to Grantor
under the provisions of this deed of trust. When Grantor repays all debts
owed to Lender, this deed-of-trust lien will terminate only if Lender
releases this deed of trust at the request of Grantor. Until Lender releases
it, this deed of trust will remain fully in effect to secure other present and
future advances and debts, regardless of any additional security given for
any debt and regardless of any modification.
Property (including any itnprovements): The Leasehold Estate in and to the following
described real property, to-wit:
BE1NG A TR.ACT OF LAND SITUATED 1N THE SARAH GRAY SURVEY, ABSTRACT
NO. 558, AND BEING A PORTION OF BLOCK 5, OF THE FORT WORTH SPINKS
AIRPORT, CABINET A, SLIDE 353, PLAT RECORDS, TARRANT COLJNTY, TEXAS,
AND BE1NG MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS
FOLLOVJS:
BEGINNING AT A 1/2 INCH IRON ROD SET WITH A PLASTIC CAP STAMPED, "RPLS
5544" FOR THE SOUTHWESTERLY CORNER OF TI-� SUBJECT TRACT FROM WHICH
SPINKS CONTROL MONUMENT NO. 3 BEARS NORTH 89°14'S7" WEST 3,324.17 FEET
AND NORTH 00°00' 16" EAST �480.66 FEET;
THENCE NORTH 00°45'03' EAST A DISTANCE OF 400.00 FEET TO A%Z INCH IRON
ROD SET WITH A PLASTIC CAP STAMI'ED, "RPLS 5544";
THENCE SOUTH 89°14'S7" EAST A DISTANCE OF 200.00 FEET TO A%2 INCH IRON
ROD SET WITH A PLASTIC CAP STAMPED, "RPLS 5544";
THENCE SOUTH 00°45'03" WEST A DISTANCE OF 400.00 FEET TO A 1/2 INCH IIZON
ROD SET WITH A PLASTIC CAP STAMPED, "RPLS 5544";
THENCE NORTH 89°14'S7" WEST A DISTANCE OF 200.00 FEET TO THE POINT OF
BEGINNING AND CONTAINING 80,000 SQUARE FEET, OR 1.8365 ACRES, MORE OR
LESS
LEASEHOLD DEED OF TRUST - PAGE 2
Lease
EXHIBIT "A"
Effective Date:
Landlord: CITY OF FORT WORTH
Tenant: NEWONE HANGARS, LLC, a Texas limited liability company
Premises: BEING A TRACT OF LAND SITUATED IN THE SARAH GRAY
SURVEY, ABSTRACT NO. 558, AND BElNG A PORTION OF
BLOCK 5, OF THE FORT WORTH SPINKS AIRPORT, CABINET A,
SLIDE 353, PLAT RECORDS, TARRANT COLTNTY, TEXAS, AND
BEING MORE PARTICULARLY DESCRIBED BY METES AND
BOUNDS AS FOLLOWS:
BEGINNING AT A 1/2 INCH IIZON ROD SET WITH A PLASTIC CAP
STAMPED, "RPLS 5544" FOR 'TI� SOUTHWESTERLY CORNER OF
THE SUBJECT TRACT FROM WHICH SPINKS CONTROL
MONUMENT NO. 3 BEARS NORTH 89°14'S7" WEST 3,324.17 FEET
AND NORTH 00°00' 16" EAST 480.66 FEET;
THENCE NORTH 00°45'03' EAST A DISTANCE OF 400.00 FEET TO
A 1/2 INCH IRON ROD SET WITH A PLASTIC CAP STAMPED,
"RPLS 5544";
THENCE SOUTH 89°14'S7" EAST A DISTANCE OF 200.00 FEET TO
A%2 1NCH IRON ROD SET WITH A PLASTIC CAP STAMPED,
"RPLS 5544";
THENCE SOUTH 00°45'03" WEST A DISTANCE OF 400.00 FEET TO
A%z 1NCH IRON ROD SET WITH A PLASTIC CAP STAMPED,
"RPLS 5544";
THENCE NORTH 89°14'S7" WEST A DISTANCE OF 200.00 FEET TO
THE POINT OF BEGINNING AND CONTAINING 80,000 SQUARE
FEET, OR 1.8365 ACRES, MORE OR LESS
Amendments (if applicable): NONE
Leasehold Estate: All of Tenant's rights under the Lease.
Prior Lien: NONE
LEASEHOLD DEED OF TRUST - PAGE 3
EXHIBIT "A"
Other Exceptions to Conveyance and Warranty: Any and all easements, restrictions,
covenants, conditions and reservations of record, if any, applicable to the herein conveyed property
or any part thereof.
For value received and to secure payrnent of the Obligation, Grantor conveys the
Property to Trustee in trust. Grantor warrants and agrees to defend the title to the Property,
subject to the Other Exceptions to Conveyance and Wa.rranty. On payment of the �bligation and
all other amounts secured by this deed of trust, this deed of trust will have no further effect, and
Lender will release it at Grantor's expense.
Clauses and Covenants
A. Grantor's Obligations
Grantor agrees to-
1. perform all of Tenant's obligations under the Lease and deliver, on Lender's
written request, satisfactory evidence of timely payment of all rents and other charges due under
the Lease;
2. enforce Landlord's obligations under the Lease;
3. within five (5) days after receipt, deliver a copy of eaCh notice received by
Grantor from Landlord to Lender;
4. timely exercise each option to extend the term of the Lease as long as the
Obligation remains unpaid and concurrently deliver to Lender a copy of the notice doing so. If
Grantor does not exercise an option to extend the term of the Lease, Lender may, at its option,
exercise the option on behalf of Grantor. Grantor appoints Lender its attorney-in-fact to execute
and deliver all instruments necessary to extend the term of the Lease or to exercise any other
rights, powers, or privileges under the Lease; this power, being coupled with an interest, is
irrevocable as long as tl�e Obligation remains unpaid;
5. use commercially reasonable efforts to deliver to Lender, within twenty days after
written request by Lender, an estoppel certificate from Landlord setting forth (a) that the Lease
has not been modified or, if it has been modified, the date af each modification (together with
copies of each modification), (b) the date to which a11 rent has been paid by Tenant under the
Lease, and (c) whether there are any defaults of Tenant under the Lease and, if there are, setting
forth the nature of the default(s) in reasonable detail;
LEASEHOLD DEED OF TRUST - PAGE 4
EXHIBIT "A"
6. execute and deliver on the request of Lender any instruments required to permit
Lender to cure any default under the Lease or preserve the interest of Lender in the Leasehold
Estate;
7. defend title to the Property subject to the Other Exceptions to Conveyance and
Warranty and preserve the lien's priority as it is established in this deed of trust;
8. obey all laws, ordinances, and restrictive covenants applicable to the Property;
9. if the lien of this deed of trust is not a first lien, pay or cause to be paid all prior
lien notes and abide by or cause to be abided by a11 prior lien instruments; and
10. notify Lender of any change of address.
Grantor agrees not to-
1. do or permit anythuig to be done that will impair the security of this deed of trust
or will be grounds for tenninating the Lease; or
2. consent, withoat Lender's prior written consent, to (a) any waiver, cancellation, or
amendment of any provision of the Lease or (b) the subordination of the Lease to any mortgage
of the fee interest of Landlord in the Premises.
Grantor represents that-
1. the Lease is enforceable;
2. except as set forth above, there are no amendments to the Lease; and
3. . Grantor is not in default under the Lease and, to the best of Grantor's knowledge,
Landlord is not in default under the Lease, and no event exists that, with the passage of time or
the giving of notice, or both, would constitute a default under the Lease.
B. Lender's Rights
1. Lender or Lender's mortgage servicer may appoint in writing a substitute tzustee,
succeeding to all rights and responsibilities of Trustee.
2. If the proceeds of the Obligation are used to pay any debt secured by prior liens,
Lender is subrogated to all the rights and liens of the holders of any debt so paid.
LEASEAOLD DEED OF TRUST - PAGE 5
EXHIBIT "A"
3. Notwithstanding the terms of the Note to the contrary, and unless applicable law
prohibits, all payments received by Lender from Grantor with respect to the Obligation or this
deed of trust may, at Lender's discretion, be applied first to amounts payable under this deed of
trust and then to amounts due and payable to Lender with respect to the Obligation, to be applied
to late charges, principal, or interest in the order Lender in its discretion determines.
4. If Grantor fails to perform any of Grantor's obligations, Lender may perform
those obligations and be reimbursed by Grantor on demand for a.ny amounts so paid, including
attorney's fees, plus interest on those amounts from the dates of payment at the rate stated in the
Note for matured, unpaid amounts. The amount to be reimbursed will be secured by this deed of
trust.
5. If there is a default on the Obligation or if Grantor fails to perform any of
Grantor's obligations and the default continues after any required notice of the default and the
time allowed to cure, Lender may—
a. declare the unpaid principal balance and earned interest on the Obligation
immediately due;
b. direct Trustee to foreclose this lien, in which case Lender or Lender's
agent will cause notice of the foreclosure sale to be given as provided by
the Texas Property Code as then in effect; and
c. purchase the Property at any foreclosure sale by offering the highest bid
and then have the bid credited on the Obligation.
6. Lender may remedy any default without waiving it and may waive any default
without waiving any prior or subsequent default.
7. If Grantor fails to perform any of its obligations, covenants, or agreements under
the Lease, Lender may do any act it deems necessary to cure such failure. Lender may enter the
Premises with or without notice and to do anything that Lender deems necessary or prudent to
do.
8. If Lender elects to make any payments or do any act or thirig required to be paid
or done by Grantor as Tenant under the Lease, Lender will be fu11y subrogated to the rights of
Landlord, and any sums advanced by Lender are a part of the Qbligation.
C. Trustee's Rights and Duties
If directed by Lender to foreclose this lien, Trustee will—
LEAS�HOLD DEED OF TRUST - PAGE 6
EXHIBIT "A"
1. either personally or by agent give notice of the foreclosure sale as required by the
Texas Property Code as then in effect;
2. sell and convey a11 or part of the Property "AS IS" to the highest bidder for cash
with a general warranty binding Grantor, subject to the Prior Lien and to the Other Exceptions to
Conveyance and Warranty and without representation or warranty, express or implied, by
Trustee;
3. from the proceeds of the sale, pay, in this order—
a. expenses of foreclosure, including a reasonable commission to Trustee;
b. to Lender, the full amount of principal, interest, attorney's fees, and other
charges due and unpaid;
c. any amounts xequired by law to be paid before payment to Grantor; and
d. to Grantor, any balance; and
4. be indemnified, held harmless, and defended by Lender against all costs,
expenses, and liabilities incurred by Trustee for acting in the execution or enforcement of the
trust created by this deed of trust, which includes all court and other costs, including attorney's
fees, incurred by Trustee in defense of any action or proceeding taken against Trustee in that
capacity.
D. General Provisions
1. If any of the Property is sold under this deed of trust, Grantor must immediately
surrender possession to the purchaser. If Grantor fails to do so, Grantor will become a tenant at
sufferance of the purchaser, subject to an action for forcible detainer.
2. Recitals in any trustee's deed conveying the Property will be presumed to be true.
3. Proceeding under this deed of trust, filing suit for foreclosure, or pursuing any
other remedy will not constitute an election of remedies.
4, This lien will remain superior to liens later created even if the time of payment of
a11 or part of the Obligation is extended or part of the Property is released.
LEAS�HOLD DEED OF TRUST - PAGE 7
EXHIBIT "A"
5. If any portion of the Obligation cannot be lawfully secured by this deed of trust,
payments will be applied first to discharge that portion.
6. Grantor assigns to Lender all amounts payable to or received by Grantor from
condemnation of all or part of the Property, from private sale in lieu of condemnation, and from
damages caused by public works or construction on or near the Property. Af�er deducting any
expenses incurred, including attorney's fees and court and other costs, Lender will either release
any remaining amounts to Grantor or apply such amounts to reduce the Obligation. Lender will
not be liable for failure to collect or to exercise diligence in collecting any such amounts. Grantor
will immediately give Lender notice of any actual or threatened proceedings for condemnation of
all or part of the Property.
7. Grantor assigns to Lender absolutely, not only as collateral, all present and future
rent and other income and receipts from the Property. Grantor warrants the validity and
enforceability of the assignment. Grantor may as Lender's licensee collect rent and other income
and receipts as long as Grantor is not in default with respect to the Obligation or this deed of
trust. Grantor will apply a11 rent and other income and receipts to payment of the Obligation and
performance of this deed of trust, but if the rent and other income and receipts exceed the amount
due with respect to the Obligation and the deed of trust, Grantor may retain the excess. If Grantor
defaults in payxnent of the Obligation or perfortnance of this deed of trust, Lender may terminaie
Grantor's license to collect rent and other income and then as Grantor's agent may rent the
Property and collect a11 rent and other income and receipts. Lender neither has nor assumes any
obligations as lessor or landlord with respect to any occupant of the Property. Lender may
exercise Lender's rights and remedies under this paragraph without taking possession of the
Property. Lender will apply all rent and other income and receipts collected under this paragraph
first to expenses incurred in exercising Lender's rights and remedies and then to Grantor's
obligations with respect to the Obligation and this deed of trust in the order determined by
Lender. Lender is not required to act under this paragraph, and acting under this paragraph does
not waive any of Lender's other rights or remedies. If Grantor becomes a volunta.ry or
involuntary debtor in bankruptcy, Lender's filing a proof of claim in bankruptcy will be deemed
equivalent to the appointtnent of a receiver under Texas law.
8. Interest on the debt secured by this deed of trust will not exceed the m�imum
amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received
under law. Any interest in excess of that maximum amount will be credited on the principal of
the debt or, if that has been paid, refunded. On any acceleration or required or permitted
prepayment, any excess will be canceled automatically as of the acceleration or prepayment or, if
already paid, credited on the principal of the debt or, if the principal of the debt has been paid,
refunded. This provision overrides any conflicting provisions in this and all other instnaments
concerning the debt.
LEA5�HOLD DEED bF TRUST - PAGE S
EXHIBIT "A"
9. In no event may this deed of trust secure payment of any debt that may not
lawfully be secured by a lien on real estate or create a lien otherwise prohibited by law.
10. When the context requires, singular nouns and pronouns include the plural.
11. The term Note includes all extensions, modifications, and renewals of the Note
and all amounts secured by this deed of trust.
12. This deed of trust binds, benefits, and may be enforced by the successors in
interest of all parties.
13. If Grantor and Borrower are not the same person, the term Grantor includes
Borrower.
14. Grantor and each surety, endorser, and guarantor of the Obligation waive a11
demand for payment, presentation for payment, notice of intention to accelerate maturity, notice
of acceleration of maturiiy, protest, and notice of protest, to the extent permitted by law.
15. Grantor agrees to pay reasonable attorney's fees, trustee's fees, and court and
other costs of enforcing Lender's rights under this deed of trust if this deed of trust is placed in
the hands of an attorney for enforcement.
16. If any provision of this deed of trust is determined to be invalid or unenforceable,
the validity or enforceability of any other provision will not be affected.
17. As long as the Obligation remains unpa.id, unless Lender otherwise consents in
writing, the fee title to the Premises and the Leasehold Estate will not merge but will always
remain separate, notwithstanding a union of the esta.tes.
18. This deed of trust does not constitute an assignment of the Lease, and Lender has
no liability or obligation under the Lease by reason of its acceptance of this deed of trttst. Lender
is liable for the obligations of Tenant arising out of the Lease for only that period of time after
Lender has acquired, by foreclosure or otherwise, and is holding Grantor's interest in the
Leasehold Estate.
19. The term Lender includes any mortgage servicer for Lender.
20. Grantor represents that this deed of trust and the Note are given for the following
purposes:
LEASEHOLD DEED OF TRUST - PAGE 9
EXHIBIT "A"
The Note hereby secured represents money borrowed from said Lender by the undersigned,
to construct improvements on the Property, and advances shall be made at the discretion of
the Lender as the conshuction progresses. The security Property and improvements,
together with all materials and supplies placed on the ground, are hereby impressed and
charged with this deed of trust lien, and also with an express mechanic's, materialman's and
laborers' lien for all advancements made hereunder. Failure to complete the improvements
shall not invalidate said liens, but they shall be enforceable for all funds advanced
hereunder.
NEWONE HANGARS, LLC, a Texas limited
liability company
�. �� ��� "_
. JOHN DUBOSQ , P IDENT
Acknowledgment
��_.
I���v!�.'�F;�; � F�;NRISTI L�U ANN MASON
S`rE�� OF ��S § '� `�°� \ �; Notary Public �
§ r�;, . �' ��(�ATE OF TEXAS
� -,-%
COUNTY OF JOHNSON § �`�=:�F=' �"�Y ��mm. Exp. 01/24/2011 ,,
: .--���,��.,� �
This instrument was aclalowledged before me on the � day oi ���L� �( �
2007, by JOHN DUBOSQUE, PRESIDENT of NEWONE HANGARS, LLC, exas limited
liability company, on behalf of said limited liabiliiy company.
N/�--�/I 1V.�z�i'i l�L�tiZ �- �'� /�C%�"�`' 7�
AFTER RECORDING RETURN TO:
Christopher D. Tharp
P. O. Box 551
Keene, Texas 76059
LEASEHOLD DEED OF TRUST — PAGE 10
�IOTARY�'UBLIC, 5T OF T�XA
Notaty's name (printed): /' '1. 2 �-� �� 6'1 ��� Sc�
Notary's commission expires: i�/ C�ll
PREPARED IN THE LAW OFFICE OF:
Christopher D. Tharp
P. O. Box 551
Keene, Texas 76059
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 8/28/2007
DATE: Tuesday, August 28, 2007
LOG NAME: 55NEWONE DOT
REFERENCE NO.: '�'�C-22345
SUBJECT:
Authorize Execution of a Consent to Deed of Trust Lien by New One Hangars, LLC, in Favor of First
State Bank Texas for Lease Site E-20 at Fort Worth Spinks Airport
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a Consent to Deed of Trust
Lien by New One Hangars, LLC, in favor of First State Bank Texas for Lease Site E-20 at Fort Worth Spinks
Airport.
DISCUSSION:
Presented earlier on the City Council agenda, City Council approved the execution of an unimproved
ground lease agreement with mandatory improvements with Mr. Jack Dubosque and Mr. Elwyn Owen of
New One Hangars, LLC, (New One) for construction of a 51,300 square foot aircraft maintenance facility on
the northeast side of Fort Worth Spinks Airport.
New One wishes to obtain financing for the hangar from First State Bank Texas. Accordingly, Mr.
Dubosque and Mr. Owen have requested the City's consent to their execution of a Deed of Trust Lien on
the premises in order for the bank to secure their loan. The Deed of Trust Lien will grant the bank the right
to operate as Lessee or to secure another tenant in place of New One, if approved by the City Council, in
the event that New One defaults on the loan or their lease with the City of Fort Worth. The Lease
Agreement prohibits New One from making any assignment of the Lease or causing any lien to be made on
improvements constructed on the Leased Premises without City Council approval. This type of transaction
is routine for large airport tenants and City staff has no objection to New One's request.
Fort Worth Spinks Airport is located in COUNCIL DISTRICT 8.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no material effect on City funds.
TO Fund/Account/Centers
Submitted for City Manager's Office bv:
Originating D�artment Head:
Additional Information Contact:
FROM Fund/Account/Centers
Marc A. Ott (8476)
Angie Highland (Acting) (5402)
Angie Highland (5402)
Logname: SSNEWONE DOT Page 1 of 1