HomeMy WebLinkAboutContract 31190 CITY SECRETARY
CONTRACT NO.
CONSENT TO PFFD OF TRUST LIEN UPON IYASF,HOLD
FORT WORTH SPINKS AIRPORT
IMPROVED AND UNIMPROVED GROUND LEASE AGREEMENT
WITH MANDATORY IMPROVEMENTS
(LEASE SITE NO.E-4)
(CITY SECRETARY CONTRACT NO. 30881)
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; JOHN L. DUBOSQUE
("Lessee"), an individual; and FIRST STATE BANK TEXAS ("Bank"), a Texas banking
association.
A. On or about October 18, 2004, Lessor and Lessee entered into City Secretary Contract No.
30881 (the "Lease"), a lease of improved and unimproved land at Fort Worth Spinks Airport
("Airport")known as Lease Site No. E-4(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 Exhibit "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 different 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
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
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Consent to Deed of Trust between 2. '1
John L.Dubosque and First State Bank Texasf,JL,JG?� COOr�
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 as if Lessee had performed such obligations or requirements.
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 such 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 thirty (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-monetary default under the Lease, cannot cure
such default within thirty (30) calendar days, it shall notify Lessor in writing and Lessor and the
Bank shall negotiate in good faith a reasonable amount of additional time to cure such default.
5. Lessee agrees that it will not request to 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 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 all insurance policies required by the Lease to name both Lessor and
the Bank as additional insureds and to cover all public risks related to the leasing, use, occupancy,
maintenance, existence or location 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 terns of such insurance policies shall first be applied to cover the replacement of
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
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Consent to Deed of Trust between
John L.Dubosque and First State Bank Texas
indebtedness to the Bank.
S. 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 limited 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 or(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 transfer 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 States 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 terminated,
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 and/or obligations thereunder, without the
prior written consent of Lessor. Lessee and Bank shall 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.
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
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Consent to Deed of Trust between
John L.Dubosque and First State Bank Texas ;� rrC, D
!1f°?Y
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 and/or 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples
as of the latest date below:
CITY OORT WORT ATTEST:
LA.J/ 1
By. By:
arc Ott Marty Hendrix
Assistant City Manager City Secretary
Date:
APPROVED AS TO FORM AND LEGALITY:
Maleshia . Farmer
Assistant City Attorney
M&C: 1--A q D 0 - -
JOHN L. DUBOSQUE ATTEST:
an individual:
By: I - By:
ame:
Title:
Page 4
Consent to Deed of Trust between
John L.Dubosque and First State Bank Texas
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 the City of Fort Worth for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day
20(K.-5
ETTIE LANA
' MY COMMISSION EXPIRES Notary Public in and for the State of Texas
+hCF July 26,2007
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 John L. 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 John
L. Dubosque and that s/he executed the same as the act of John L. Dubosque for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVE UNDER MY HAND AND SEAL OF OFFICE this o day
,Q
52004.
ii F t J
BETTY L. COOK
* Notary Public
STATE OF TEXAS
F OF��} My Comm.Exp.05/19/2006 Notary Pu lic in and for the State of Texas
01 0010,�'
Date:
FIRST STATE BANK TEXAS, ATTEST:
a Texas banking association:
B ���
y: By:
Name: o.,., y K✓,
Title: Fiv -v e Ur ce
Date: Y'
Page 5
Consent to Deed of Trust between
John L.Dubosque and First State Bank Texas Crffl
mur
STATE OF TEXAS §
COUNTY OF JOHNSON §
BEFORE ME, the undersigned authority, a Notary Public in and for the State 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 s/he executed the same as the act of First State Bank Texas for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN ER MY HAND AND SEAL OF OFFICE this day
2004.
6E I TY L. COOK
Notary Public Notary Publ c in and for the State of Texas
STATE OF TEXAS
My comm.Exp.05/19/2006
i I V JE LP v
EXHIBIT "A"
CONSENT TO DEED OF TRUST LIEN UPON LEASEHOLD
(LEASE SITE NO. E-4)
(CITY SECRETARY CONTRACT NO. 30881)
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION
FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE
NUMBER.
Leasehold Deed of Trust
Terms
Date: , 2004
Grantor: JOHN L. DUBOSQUE and wife, ESTHER K. DUBOSQUE
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 76059
Lender: FIRST STATE BANK TEXAS
Lender's Mailing Address: P. O. Box 676, Keene, Johnson County, Texas 76059
Obligation
Note
Date: , 2004
Original principal amount: ONE HUNDRED TWENTY-SEVEN THOUSAND
AND NO/100 DOLLARS ($127,000.00)
Borrower: JOHN L. DUBOSQUE and wife, ESTHER K. DUBOSQUE
Lender: FIRST STATE BANK TEXAS
LEASEHOLD DEED OF TRUST-PAGE 1
CITY �� 1U?
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 improvements): The Leasehold Estate in and to the following
described real property, to-wit:
BEING a tract of land situated in the Hiram Little Survey, Abstract No. 930, and being a portion
of Block 5, of the Fort Worth Spinks Airport, Cabinet A, Slide 353, Plat Records, Tarrant
County, Texas (P.R.T.C.T.), and being more particularly described by metes and bounds as
follows:
BEGINNING at a %2 inch iron rod set "RPLS 5544" from which the Northeast corner of said
Block 5 bears South 89° 06' 49" East, 25.0 feet, North 00° 43' 20" West, 492.1 feet, and North
89° 57' 45"East, 532.9 feet;
THENCE South 00°43' 27"West, 120.00 feet to a%2 inch iron rod set"RPLS 5544";
THENCE North 89° 06' 49"West, 229.71 feet to a %2 inch iron rod set"RPLS 5544";
THENCE North 00° 53' 11"East, 120.00 feet to a %2 inch iron rod set"RPLS 5544";
THENCE South 89° 06' 49" East, 229.37 feet to the Point of Beginning and containing 0.632
acres or 27544 square feet of land,more or less.
Lease
Effective Date: NOVEMBER 4, 2004
Landlord: CITY OF FORT WORTH
Tenant: JOHN L. DUBOSQUE
Premises: BEING a tract of land situated in the Hiram Little Survey, Abstract No.
930, and being a portion of Block 5, of the Fort Worth Spinks Airport,
LEASEHOLD DEED OF TRUST-PAGE 2
ti��ptiy Jig i
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Cabinet A, Slide 353, Plat Records, Tarrant County, Texas (P.R.T.C.T.),
and being more particularly described by metes and bounds as follows:
BEGINNING at a %2 inch iron rod set "RPLS 5544" from which the
Northeast corner of said Block 5 bears South 89° 06' 49" East, 25.0 feet,
North 00° 43' 20" West, 492.1 feet, and North 89° 57' 45" East, 532.9
feet;
THENCE South 00° 43' 27" West, 120.00 feet to a %2 inch iron rod set
"RPLS 5544";
THENCE North 89° 06' 49" West, 229.71 feet to a %2 inch iron rod set
"RPLS 5544";
THENCE North 00° 53' 11" East, 120.00 feet to a %2 inch iron rod set
"RPLS 5544";
THENCE South 89° 06' 49" East, 229.37 feet to the Point of Beginning
and containing 0.632 acres or 27544 square feet of land, more or less.
Amendments (if applicable): NONE
Leasehold Estate: All of Tenant's rights under the Lease.
Prior Lien: NONE
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 payment 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 Warranty. On payment of the Obligation 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;
LEASEHOLD DEED OF TRUST-PAGE 3 --
R WORM, �,
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 the 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 of each modification (together with
copies of each modification), (b) the date to which all 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;
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 all prior lien instruments; and
10. notify Lender of any change of address.
Grantor agrees not to—
t. do or permit anything to be done that will impair the security of this deed of trust
or will be grounds for terminating the Lease; or
2. consent,without 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;
LEASEHOLD DEED OF TRUST-PAGE 4
CNN
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 trustee,
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.
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 any 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
LEASEHOLD DEED OF TRUST-PAGE 5
i
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 thing required to be paid
or done by Grantor as Tenant under the Lease, Lender will be fully subrogated to the rights of
Landlord, and any sums advanced by Lender are a part of the Obligation.
C. Trustee's Rights and Duties
If directed by Lender to foreclose this lien, Trustee will
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 all 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 required 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.
LEASEHOLD DEED OF TRUST-PAGE 6 w 1p )`t It
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
all or part of the Obligation is extended or part of the Property is released.
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. After 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 all 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 payment of the Obligation or performance of this deed of trust, Lender may terminate
Grantor's license to collect rent and other income and then as Grantor's agent may rent the
Property and collect all 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 voluntary or
involuntary debtor in bankruptcy, Lender's filing a proof of claim in bankruptcy will be deemed
equivalent to the appointment of a receiver under Texas law.
8. Interest on the debt secured by this deed of trust will not exceed the maximum
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,
LEASEHOLD DEED OF TRUST-PAGE 7 "?� �t,I A;I V 0`!-
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refunded. This provision overrides any conflicting provisions in this and all other instruments
concerning the debt.
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 all
demand for payment, presentation for payment, notice of intention to accelerate maturity, notice
of acceleration of maturity,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 unpaid, 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 estates.
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 trust. 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:
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
LEASEHOLD DEED OF TRUST-PAGE 8 rl
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the Lender as the construction 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.
JOHN L.DUBOSQUE
ESTHER K.DUBOSQUE
Acknowledgment
STATE OF TEXAS §
COUNTY OF JOHNSON §
This instrument was acknowledged before me on the day of , 2004, by
JOHN L.DUBOSQUE and wife,ESTHER K. DUBOSQUE.
NOTARY PUBLIC, STATE OF TEXAS
Notary's name(printed):
Notary's commission expires:
AFTER RECORDING RETURN TO: PREPARED IN THE LAW OFFICE OF:
Christopher D. Tharp Christopher D. Tharp
P. O.Box 551 P. O.Box 551
Keene,Texas 76059 Keene, Texas 76059
LEASEHOLD DEED OF TRUST-PAGE 9
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 1/11/2005
DATE: Tuesday, January 11, 2005
LOG NAME: 55DUBOSQUE2 REFERENCE NO.: **L-14011
SUBJECT:
Authorization to Execute a Written Consent to Execution of Deed of Trust Lien by John L. Dubosque
in Favor of First State Bank Texas for Lease Site E-4 at Fort Worth Spinks Airport
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a written consent to the
execution of a Deed of Trust Lien by John L. Dubosque in favor of First State Bank Texas on Mr.
Dubosque's Lease Hold Property at Fort Worth Spinks Airport.
DISCUSSION:
John L. Dubosque currently leases Site E-4 at Fort Worth Spinks Airport pursuant to City Secretary
Contract No. 30881. Under the agreement, Mr. Dubosque leases 14,000 square feet of unimproved ground
and is required to construct a 11,900 square foot box hangar for aircraft storage.
John L. Dubosque wishes to obtain financing for this project from First State Bank Texas. Accordingly, Mr.
Dubosque has requested the City's consent to his execution of a Deed of Trust Lien on the premises in
order for the Bank to secure his loan. The Deed of Trust Lien will grant the Bank the right to operate as
Lessee or to secure another tenant in place of Mr. Dubosque, if approved by the City Council, in the event
that Mr. Dubosque defaults on the loan or his lease with the City of Fort Worth. The Lease Agreement
prohibits John L. Dubosque 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.
Spinks Airport is located in Council District 6.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no material effect on City funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by Marc Ott (8476)
Originating Department Head: Mike Feeley (5403)
Additional Information Contact: Mike Feeley (5403)
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