HomeMy WebLinkAboutContract 48506-CD1EC1 CITY SECRETARY ,
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CONSENT TO LEASEHOLD DEED OF TRUST AND ESTOPPEL
C1 'pFFO��vvpRO� FORT WORTH SPINKS AIRPORT LEASE AGREEMENT
C1�l SFCREC�R( LEASE SITE 20E
CITY SECRETARY CONTRACT NO. 48506
This CONSENT TO LEASEHOLD DEED OF TRUST AND ESTOPPEL(this"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, DUMONT GROUP PROPERTIES VI,
LLC ("Lessee"), a Delaware limited liability company, and Groupo Piraino, LLC, a Delaware
Limited Liability Company ("Piraino Lender" and Deak Companies, LLC, a Delaware Limited
Liability Company("Deak Lender"; together with the Piraino Lender,the"Lenders").
The following introductory provisions are true and correct and form the basis of this Consent:
A. On December 27, 2016 (M&C C-28043), Lessor and Lessee entered into City Secretary Contract
("CSC") No. 48506 Fort Worth Spinks Airport Hangar and Ground Lease Agreement (the "Lease"),
pursuant to which Lessor leased to Lessee 158,735 square feet of ground space, including a 51,300 square
foot hangar, known as Lease Site 20E ("Leased Premises") at Fort Worth Spinks Airport ("Airport") in
Fort Worth, Tarrant County, Texas, as more particularly described in the Lease.
B. Pursuant to a financing arrangement (the "Financing Arrangement"), Lessee is obtaining
financing from Lenders. As collateral for the Financing Arrangement, among other things, Lessee is
granting to Lenders a lien on Lessee's leasehold interest in the Leased Premises,pursuant to a certain Deed
of Trust, Security Agreement and Fixture Filing in favor of Lenders(the"Deed of Trust").
C. Lessee and the Lenders desire Lessor to consent to the execution by Lessee of the Deed of Trust on
the Leased Premises in favor of the Lenders.
NOW, THEREFORE, Lessor, Lessee and the Lenders 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 Lenders have entered into this Agreement. The Lease is a public document
on file in Lessor's City Secretary's Office, was recorded with the Tarrant County Land Records on
December 30, 2016 as Document No. D216305300, and is incorporated herein by reference for all
purposes. This Agreement may be publicly recorded by Lenders.
2. Lessor hereby consents to the execution and delivery by Lessee to the Lenders of the Deed of Trust.
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, Lenders, 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
Lenders acknowledge, understand and agree that Lessee and the Lenders do not have any right to
convey any interests in the Leased Premises greater than those granted specifically by the Lease.
Lessee and the Lenders further acknowledge, understand and agree that Lessor retains the mineral
interest and the right to develop such interest. 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 Lenders'
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.
Consent to Leasehold Deed of Trust and Estoppel
OFFICIAL EC RL)
Page 1 of 10 CITY SEC' ETA Y
FT WORTH, Sit
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 Lenders. Lessor agrees that(i)the Lenders 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 Lenders' 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 Lenders with written notice of its intent to exercise such any such right. The Lenders
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 Lenders, 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 Lenders shall
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 (i) receiving the Lenders' written consent thereto, which
consent shall not be unreasonably withheld, delayed or conditioned; provided that it shall not be
deemed unreasonable for Lenders to withhold consent to any modifications, amendments or
assignments that Lenders determine in their sole discretion will adversely affect Lenders' liens and
security interests, or would impair the value of the Lease as collateral for the Financing
Arrangement and(ii) providing a copy of such written consent to Lessor. Lessee understands and
agrees that any such consent, modification, amendment or assignment, granted by Lessor without
Lenders'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. As long as such does not conflict with Lessor's rights under the Lease, Lessor consents to the
exercise by the Lenders of any and all rights and remedies permitted under the Deed of Trust
(including judicial and/or non judicial foreclosure on the Leased Premises), and to the exercise of
such additional legal and equitable rights and remedies as may be available to Lenders, if an Event
of Default occurs under the Deed of Trust. Any such exercise of remedies by Lenders shall not
constitute a default by Lessee under the Lease. In the event that Lenders undertakes action 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 Lenders in its efforts to assemble and/or
remove any personal property of Lessee on the Premises. The Lenders 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 Lenders 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 Lenders hereby agree and covenant that any and all proceeds payable under the terms
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 indebtedness to the
Lenders.
Consent to Leasehold Deed of Trust and Estoppel
Page 2 of 10
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 limited to, cancellation
of Lessee's interest as provided by the Lease and in accordance with this Agreement.
9. The Lenders agree that they promptly will notify Lessor in writing when the Lenders have released
its rights under the Deed of Trust. This Agreement will automatically terminate on the earlier of(i)
the date as of which the Lenders release such rights or(ii)the date upon which the Lease expires or
is terminated.
10. If the Lenders foreclose on the Leased Premises as a result of exercising their rights under the Deed
of Trust, the Lenders may become the owner of all of Lessee's rights under the Lease, without
Lessor's further action or consent. However, if the Lenders desire to sell or otherwise transfer their
leasehold interest in the Leased Premises to a third party(either at or after foreclosure),the Lenders
must obtain the Lessor's written consent to and approval of the purchaser. Such consent and
approval will not be unreasonably withheld, conditioned or delayed. At the request of Lenders or
any such transferee,Lessor shall enter into a new lease agreement with Lenders or such transferee,
as applicable, having substantially the same terms and conditions as the Lease. Nothing in this
Agreement is intended to prohibit the Lenders from assigning the liens and security interests created
by the Deed of Trust to another financial institution with Lessor's prior written consent,which such
consent will not be unreasonably withheld, conditioned, or delayed.
12. Notices to the Lenders required pursuant to the provisions of this Agreement shall be conclusively
determined to have been delivered when(i)hand-delivered to the Lenders,their agents,employees,
servants or representatives, or (ii) deposited in the United States Mail, certified, return receipt
requested, addressed as follows:
Groupo Piraino,LLC
16 Summit Lane
Wilmington,DE 19807
Deak Companies,LLC
1020 N. Bancroft Parkway, Suite 100
Wilmington,DE 19805
With a copy to:
Cullen and Dykman LLP
80 State Street, Suite 900
Albany,NY 12207
Attn: John F. State,Esq.
13. 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, equipment, machinery, furnishings and other items may specifically be removed
from the Leased Premises in accordance with the Lease. Notwithstanding the foregoing, or
anything to the contrary contained in the Lease or under applicable law, Lessor hereby
acknowledges that it has no right,title and/or interest(including, a security interest) in and to, and,
only to the extent of any interest it may have in or to personal property of Lessee, hereby releases
and terminates any and all right, title and/or interest (including, a security interest) in and to the
personal property collateral and any and all cash or non-cash proceeds thereof. In the event that the
Consent to Leasehold Deed of Trust and Estoppel
Page 3 of 10
Lease expires or is terminated,Lessee and the Lenders covenant and agree that nothing herein shall
obligate Lessor to assume in any way Lessee's indebtedness to the Lenders.
14. Estoppel.
a. The documents referred to above as comprising the Lease are the only documents which
constitute the Lease, and the Lease is in full force and effect and has not been modified,
changed, altered or amended in any respect.
b. The Lease is the only agreement between Lessor and Lessee relating to the Lease at the
Airport and,together with the minimum standards and other general regulations that may
apply to the lessee under the Lease, contain the entire agreement and understanding of
Lessor and Lessee with respect thereto.Lessee is the current holder of the leasehold interest
in the premises under the Lease.
C. To the best knowledge of Lessor,no monetary or non-monetary default by Lessee presently
exists under the Lease and no state of facts exist which with the passage of time or giving
of notice, or both,would constitute a default by Lessee under the Lease.
d. To the best knowledge of Lessor,no monetary or non monetary default by Lessor presently
exists under the Lease and no state of facts exist which with the passage of time or giving
of notice, or both, would constitute a default by Lessor under the Lease.
e. Lessor has not taken, and does not currently anticipate taking any action to, or that would,
terminate the Lease.
f. All improvements,facilities,work and alterations required to be furnished by Lessee under
the Lease have been satisfactorily constructed.
g. Lessee is current in the payment of any and all rent and any other charges required to be
paid by Lessee under the Lease.The current rent under the Lease is$3,820.22 per month.
h. There are no escrows or other deposits from Lessee held by Lessor pursuant to the Lease.
i. Pursuant to the Lease,the Initial Term of the Lease expires on December 31,2056 at 11:59
PM.There are no renewal terms set forth in the Lease.
j. Lessor's current correct address for notices is: City of Fort Worth, Aviation Department,
201 American Concourse, Suite 330,Fort Worth TX, 76106.
k. Lessor has not received written notice of any pending eminent domain proceedings or other
governmental actions or any judicial actions of any kind against Lessor's interest in the
Leased Premises
15. The provisions of this Agreement shall be self-operative and effective without the execution of any
further instruments on the part of any party hereto.
16. Lessor understands and agrees that this Agreement is for the benefit of the Lenders,that the Lenders
relied upon this Agreement in making its decision to make loans to Lessee pursuant to the Financing
Arrangement and that the Lenders would not make any such loans absent Lessor's execution and
delivery of this Agreement.Notwithstanding anything contained herein to the contrary, Sections 2,
6 and 10 of this Agreement are subject to the City Council of the City of Fort Worth, Texas
Consent to Leasehold Deed of Trust and Estoppel
Page 4 of 10
authorizing the City Manager to execute a consent to the execution by Lessee of the Deed of Trust
in favor of the Lenders as part of the Financing Arrangement.
17. 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 the Lender
covenant and agree that they will not amend any material changes to the Deed of Trust, or assign
any rights and/or obligations thereunder,without the prior written consent of Lessor,which consent
will not be unreasonable withheld, conditioned,or delayed.
18. 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.
19. This written instrument, including any documents attached hereto and/or incorporated herein by
reference,contains the entire understanding and agreement between Lessor,Lessee and the Lenders
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.
20. Each party warrants that the person signing this Agreement hereby warrants that he/she has the
legal authority to execute this Agreement on behalf of the respective party, and that such binding
authority has been granted by proper order,resolution,ordinance or other authorization of the entity.
The other party is fully entitled to rely on this warranty and representation in entering into this
Agreement.
21. Upon any rejection or other termination of the Lease pursuant to any process undertaken with
respect to Lessee under the United States Bankruptcy Code, at the request of Lenders made after
any and all bankruptcy court judgments of such termination or rejection, Lessor shall enter into a
new lease agreement with Lenders, or their designee, having substantially the same terms and
conditions as the Lease.
22. There shall be no merger of the leasehold estate created by the Lease with the fee estate in the
Leased Premises by reason of the fact that the same person may own or hold: (A) the leasehold
estate created by the Lease or any interest therein; and(B)the fee estate in the Leased Premises or
any interest in such fee estate. So long as any obligations from Lessee to Lender remain in effect,
no such merger shall occur unless and until agreed to in writing by Lenders.
23. From time to time, within forty-five (45) days of written request by Lenders, Lessor shall provide
to Lenders an estoppel certificate certifying, to Lessor's knowledge, the items set forth in Section
13 hereof, and making such other representations, warranties, and accommodations reasonably
requested by Lenders,including without limitation,that there have been no unapproved(i.e., made
without the consent of Lenders) changes to the Lease.
(The remainder of this page is intentionally blank. Signature page follows.)
Consent to Leasehold Deed of Trust and Estoppel
Page 5of10
IN WITNESS, WHEREOF,the parties hereto have executed this Agreement in multiples on
this the Oik day of 474—&nc. 12020.
CITY OF FORT WORTH
By: 7 .;:— 1�—
Fernando Costa
Assistant City Manager
Date: -7"-ws 8 12020
BEFORE ME,the undersigned authority, a Notary Public in and for the State of Texas, on this
day personally appeared Fernando Costa,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 MY HAND AND SEAL OF OFFICE,this day of
2020
Py. - SELENA ALA
'' ,SNbtary Public. State of Texas
Opf Comm. Expires 03-31-2024 otar Public in and for the State of Tea «
Notary ID 13242252E y
x X jq.
APPROVED AS TO FORM ATTEST:
AND L GAI,IT
Name: Name:
Title: 1 Title:
' J
M&C: 20-0202
Date Approved: 03/24/20
Consent to Leasehold Deed of Trust and Estoppel P WOKK 71 X
Page 6 of 10 ._ __
LESSEE: ATTEST:
DUMONT GRO PERTIES VI,LLC
By:
Name: DdXel S. iraino '4 4'A.'4'L
Title: Manager
STATE OF �. � Q
COUNTY OF 41L)(A S44 §
BEFORE ME,the undersigned authority,a Notary Public in and for the State of
- bw lct -0 ,on this day personally appeared Daniel S. Piraino,Manager of Dumont Group
Properties VI,LLC,a Delaware limited liability company,laiown tome to be the person whose name is
subscribed to the foregoing instrument,and acknowledged to me that the same was the act of Dumont
Group Properties Vl,LLC and that he executed the same as the act of Dumont Group Properties VI,LLC
for the purposes and consideration therein expressed and in the capacity therein stated.
G1VEN MY HAND AND SEAL OF OFFICE,this day of duply
2020
otary Public
BROOKE LEIGH SAVADEL
NOTARY PUBLIC,
STATE OF DELAWARE
Commission Expires September 10,]2021
Consent to Leasehold Deed of Trust and Estoppel UFFM L RECORD
EC R�D'
Page of 10 U R TA [S
LENDER: ATTEST:
GROUPO PIRAINO.
By: By:
Name: Dani . Pi aino �� 1
Title: ilbb,�(-AO
Date:�.1 ��
STATE OF 4 fit' U)&. - _ S
COUNTY OF _Q
,� BEFORE ME,the undersigned authority,a Notary Public in and for tke State of
i V LL(I 0.V e on this day personally appeared
of Groupo Piraino,LLC,a Delaware Limited Liability Company,
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 Groupo Piraino.LLC and that he/she executed the same as the act of
Groupo Piraino,LLC.
GIVEN MY HAND AND SEAL OF OFFICE,this � (� day of �" _
2020
otary Public r t tate of Delaware
BROOKE LEIGH SAVADE=L
(VOTARY PUBLIC_
STATE OF OELAWARE
MY Commission Expires September 10,2021
Consent to Leasehold Deed of Trust and Estoppel - -
Page S of10 OFFOCAL RECURG
Law SECRETARY
r-~ WORMIX
LENDER: ATTEST:
DEAK COMPANIES, LLC
By: - By:
Nacre:YA&Adi Kuhlmann
Title:
Date: I
STATE OF I .t o,la Clr 2
COUNTY OF 1VOL) JSAJ.R_ §
BEFORE ME,the undersigned authority,a Notary Public in and for the State of
U18 L'I on this day personally appeared r .v
of Deal:Companies,LLC,a Delaware Limited Liability Company,
known to me to be the person whose nacre is subscribed to the foregoing instrument,and acknowledged to
me that the same was the act of Deak Companies,LLC and that he/she executed the same as the act of
Dealt Companies,LLC.
GIVEN MY HAND AND SEAL OF OFFICE,this day of IkPy)
2020
1otary Public in d r the State of Delaware
BROOKr=LEIGH SAVAOEL
NOTARY PUBLIC.
STATE OF DELAWARE
My Commission Expires Sepiembar 10,2021
Consent to Leasehold Deed of Trust and Estoppel ECD
Page 9 of 10
CoIV
��WORTH,,Tn
EXHIBIT A
(DEED OF TRUST)
Consent to Leasehold Deed of Trust and Estoppel
Page 10 of 10
TO BE RECORDED IN THE
REAL PROPERTY RECORDS OF
TARR-ANT COUNTY,TEXAS
DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING
(Texas)
THIS DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING dated as of
September 30, 2019 (together with all supplements hereto and amendments hereof, this "Deed of
Trust"), is made by and between DUMONT GROUP PROPERTIES VI,LLC,a Delaware limited liability
company having an address at c/o Dumont Aviation Group, Inc. ("Dumont"), 2000 Brett Road, New
Castle, DE 19720 (together with its heirs, personal representatives, successors and assigns as owner of
any or all of the Property, "Grantor"), and Larry Shosid, (the "Trustee"), for the benefit of GROUPO
PIRAINO, LLC, having an address of 16 Summit Lane, Wilmington, DE 19807 ("Piraino Lender"),
and DEAK COMPANIES, LLC, having an address of 1020 N. Bancroft Parkway, Suite 100,
Wilmington,DE 19805 ("Deaf Lender"; together with the Piraino Lender,the "Lenders").
RECITALS
WHEREAS, City of Fort Worth ("Landlord") owns fee simple title to the premises known as
Leased Site 20E at the Fort Worth Springs Airport located in Tarrant County, Texas, which premises is
more fully described on the attached Schedule A(the"Land"); and
WHEREAS, Landlord and Grantor entered into that certain Fort Worth Springs Airport Hanger
and Ground Lease Agreement dated December 27,2016(the"Ground Lease"),and pursuant to the Ground
Lease, Landlord leased to Grantor that portion of the Land described on Schedule B attached hereto (the
"Leased Premises"and such description,the"Legal Description"); and
WHEREAS, Dumont has entered into a number of loan transactions with Lenders under which
Lenders advanced the following funds to Dumont, for the benefit of Dumont and its subsidiaries and
affiliates, including Grantor:
Doak Lender: $1,325,000.00 Piraino Lender: $1,200,000.00
Deak Lender: $1,330,000.00 Piraino Lender: $1,000,000.00
Deak Lender. $1,500,000.00 Piraino Lender: $800,000.00
Deak Lender: $800,000.00
Total$4,955,000.00 Total$3,000,000.00
(each of the agreements under which such funds were advanced or under which Dumont agreed to
make payment are hereinafter referred to as the"Debt Instruments").
WHEREAS, Grantor desires to secure,for the benefit of Lenders,the payment or repayment of all
sums secured hereby in compliance with the terms, covenants and conditions, expressed or implied, set
forth in the Debt Instruments, this Deed of Trust and any other applicable documents, in the following
proportions: sixty-five percent (65%) in favor of the Doak Lender, and thirty-five percent (35%) in favor
of the Piraino Lender.
WHEREAS, as a condition to advancing certain loan proceeds under the Debt Instrument,Lenders
have required that Grantor execute this Deed of Trust to encumber its interest in the Property (as defined
herein).
GRANT
NOW, THEREFORE, FOR AND IN CONSIDERATION of the said indebtedness evidenced by
the Debt Instrument and all other sums payable under or otherwise referenced in this Deed of Trust, of the
acceptance by the Trustee of the trust hereby created, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Grantor hereby irrevocably grants, bargains and
conveys to the Trustee, its survivors or other successor or successors in trust, and their assigns, in trust,
with power of sale,the following(hereinafter referred to collectively as,the"Property"):
the Leased Premises;
TOGETHER WITH all of Grantor's estate, right, title and interest as lessee or tenant under that
certain Ground Lease,including but not by way of limitation(i)all rights of Grantor to renew or extend the
term of the Ground Lease, (ii) all amounts deposited by Grantor to the lessor under the Ground Lease, (iii)
any rights or privilege of Grantor to terminate, cancel,surrender,modify or amend the Ground Lease, and
(iv)any other options, privileges and rights granted and demised directly or indirectly to Grantor under the
Ground Lease(the"Leasehold Estate");
TOGETHER WITH the Leasehold Estate in all buildings, structures and improvements of every
kind and description now or hereafter erected, constructed,situated or placed on the Leased Premises, and
all fixtures and equipment and other personal property owned by Grantor now or hereafter attached or
affixed to, or used in connection with, the Leased Premises and any and all replacements thereof and
additions thereto, all of which shall be deemed to be and remain and form a part of the Leased Premises
and are covered by the lien of this Deed of Trust and all materials now owned or hereafter acquired by
Grantor and intended for construction, reconstruction, alteration and repair thereof, all of which materials
shall be deemed to be included within the Property immediately on their delivery to the Leased Premises
(all of which are hereinafter referred to collectively as the "Improvements" and together with the Legal
Description and the Leasehold Estate, collectively,the"Premises");
TOGETHER WITH: (A) all leases, subleases, subsubleases, lettings, licenses, permits, sales
contracts,concessions or other agreements(whether written or oral)pursuant to which any person is granted
a possessory interest in, or right to use or occupy all or any portion the Premises and every modification,
amendment or other agreement relating to such leases,subleases,subsubleases,or other agreements entered
into in connection with such leases, subleases, subsubleases, or other agreements (collectively,
the"Leases"); (B) every guarantee of the performance and observance of the covenants, conditions, and
agreements to be performed and observed by the other party thereto, heretofore or hereafter entered into,
whether before or after the filing by or against Grantor of any petition for relief under the Bankruptcy Code
(as ,defined herein) and all right, title and interest of Grantor, its successors and assigns therein and
thereunder,including,without limitation,cash or securities deposited thereunder to secure the performance
by the lessees of their obligations thereunder; (C) all rents (as defined in Chapter 64 of the Texas Property
Code or any successor statute, as amended from time to time, the"Texas Assignment of Rents Act"),
royalties, income, receipts, revenues, issues and profits (collectively, the"Rents") payable to Grantor
pursuant to the Leases arising out of or in connection with the Property (as defined herein) from time to
time accruing under the Leases or tenancies now existing or hereafter created, subject, however, to the
provisions hereof; and(D)all proceeds of the conversion, voluntary or involuntary of any of the foregoing
into cash or liquidated claims, including without limitation, proceeds of insurance and condemnation
awards and all proceeds from the sale or other disposition of such leases and the right to receive and apply
the Rents to the payment of the Obligations;
TOGETHER WITH any and all right,title and interest of Grantor in and to all substances in, on,
under, above, produced from, or allocated to, the Leased Premises, which are now, or may become in the
future,intrinsically valuable and which now or may be in the future enjoyed through extraction or removal
from the Leased Premises, including, without limitation, oil, gas, all other hydrocarbons, coal, lignite,
carbon dioxide, all other non-hydrocarbon gases, uranium, all other radioactive substances, gold, silver,
copper, iron, all other metallic substances or ores, and all other minerals, and all products processed or
obtained therefrom, and the proceeds thereof,
TOGETHER WITH all of Grantor's right, title and interest, if any (including any after-acquired
title or reversion), in and to the land lying in the bed of any street, alley, highway, road, ways, waters,
privileges, appurtenances and advantages, waterways and public places open or proposed, located in front
of,wholly or partially within the boundary of the Premises or adjacent thereto;and all easements and rights
of way, public and private, now or hereafter used in connection with the Premises; as well as any after-
acquired title,franchise, license,reversion and remainder associated with the Premises;
TOGETHER WITH all strips and gores of land adjoining or abutting the Premises;
TOGETHER WITH all tenements, hereditaments and appurtenances and all the estate and rights
of Grantor in and to the Premises;
TOGETHER WITH all other, further or additional right, title, interest or estate at any time
heretofore or hereafter acquired by Grantor in or to the Premises (all of which shall automatically be and
become subject to the lien, operation and effect of this Deed of Trust upon their acquisition by Grantor);
TOGETHER WITH all of the walks,fences,shrubbery, driveways,fixtures,machinery,apparatus,
equipment, fittings, and other goods of every kind and description whatsoever, now owned or hereafter
acquired by Grantor and attached to or contained in and used in connection with any present or future
operation of the Premises, including but not limited to all lighting, laundry, incinerating and power
equipment; all engines, boilers, machines, motors, furnaces, compressors and transformers; all generating
equipment; all pumps, tanks, ducts, conduits, wire, switches, electrical equipment and fixtures, fans and
switchboards; all telephone equipment (except that leased from a telephone company); all piping,tubing,
plumbing equipment and fixtures; all heating, refrigeration, air conditioning, cooling, ventilating,
sprinkling, water, power and communications equipment, systems and apparatus; all water coolers and
water heaters; all fire prevention, alarm and extinguishing systems and apparatus; all cleaning equipment;
all lift, elevator and escalator equipment and apparatus; all partitions, shades, blinds, awnings, screens,
screen doors, storm doors, exterior and interior signs, gas fixtures, stoves, ovens, refrigerators, garbage
disposals, dishwashers, cabinets, mirrors, mantles, floor coverings, carpets, rugs, draperies and other
furnishings and furniture installed or to be installed or used or usable in the operation of any Improvements
or appurtenant facilities erected or to be erected in or upon the Leased Premises; and every renewal or
replacement thereof or articles in substitution therefor, whether or not the same are now or hereafter
attached to the Premises in any manner (it being agreed by the parties hereto that all property owned by
Grantor and placed by it on the Premises shall, so far as permitted by law, be deemed to be affixed to the
Premises, appropriated to its use, and covered by this Deed of Trust);
TOGETHER WITH all of Grantor's right,title and interest in and to any and all awards heretofore
or hereafter made by any federal, state, county, municipal or other governmental authority, or quasi-
governmental authority, or by any other authority or corporation, or by whomsoever made in any
condemnation or eminent domain proceedings whatsoever, to the present or subsequent owners of the
Premises or any portion thereof, for the acquisition for public purposes of the Premises or any portion
thereof or any interest therein or any use thereof,or for consequential damages on account thereof,including
but not limited to any award for any change of grade or widening of any street or road affecting the Premises,
or any portion thereof and any award for any damage to the Premises or any portion thereof or any interest
therein or any use thereof; all of which awards,rights thereto and shares therein are hereby assigned to the
Trustee, who is hereby authorized to collect and receive the proceeds thereof and to give proper receipts
and acquittances therefor and, subject to the provisions of the Section entitled "Condemnation", to apply
the net proceeds thereof,after deducting expenses of collection,as a credit upon any portion, as selected by
the Trustee of the indebtedness secured hereby;
PROVIDED,HOWEVER, if,now or in the future, any of the obligations secured pursuant to any
security interest or lien created by this instrument include any Special Flood Zone Loan,then the following
shall apply: any such Special Flood Zone Loan shall not be secured pursuant to any security interest or lien
created by this instrument in personal property that would constitute"contents"located within Flood Zone
Improvements securing such Special Flood Zone Loan,where,for purposes of the foregoing,"Flood Zone
Improvements"means any"improved"real property that is located within a Special Flood Hazard Area,a
"Special Flood Zone Loan" means a loan, line of credit or other credit facility which is secured by Flood
Zone Improvements,and the terms"improved"real property,"Special Flood Hazard Area,"and"contents"
shall have the meaning ascribed to them by the Flood Disaster Protection Act of 1973,42 U.S.C. §4001 et
seq., and implementing regulations,44 C.F.R.Parts 59 et seq.,and/or the Federal Emergency Management
Agency, all as may be amended from time to time;
TO HAVE AND TO HOLD unto the Trustee,its survivors or other successor or successors in trust
and their assigns,its Ieasehold estate in the Property,subject to and only to the operation and effect of those
instruments and matters listed on Schedule C attached hereto,
PROVIDED,HOWEVER,that if Grantor pays or causes to be paid to the Lenders all sums secured
hereby in the manner provided in the Debt Instrument and in this Deed of Trust, and keeps and performs
every obligation,term,covenant,condition and warranty contained in the Debt Instrument and in this Deed
of Trust,then and in such case,the estate,right,title and interest of the Trustee in and to the Property shall
cease, terminate and become void, and upon proof being given to the satisfaction of the Trustee that the
indebtedness evidenced by the Debt Instrument, together with all interest accrued thereon, have been
irrevocably paid or satisfied in accordance with its terms, and upon payment of all fees,costs, charges and
liabilities chargeable to or incurred by the Trustee or otherwise provided for in this Deed of Trust, the
Trustee shall, upon receipt of a written request therefor from the Lenders, and at Grantor's sole expense,
(a) release and discharge the lien of this Deed of Trust, (b) cause this Deed of Trust to be canceled and
marked"satisfied" of record, and (c)transfer and deliver to Grantor, without warranty, any property then
subject to the lien of this Deed of Trust and in their possession(provided,that the Trustee shall be entitled
to a reasonable fee for any full or partial release and reconveyance of the Property),
BUT IN TRUST, NEVERTHELESS, for and upon the uses, intents and purposes hereinafter
mentioned, as security for the Lenders' benefit and for enforcement of(1) the full and punctual payment
and performance of the obligations evidenced by the Debt Instruments and all renewals and extensions of
any or all of the same, with interest thereon, including, if the Debt Instruments so provides, all future
advances, and re-advances made by the Lenders to Grantor; (2) the payment and performance of the
covenants and obligations herein contained; and(3)the reimbursement to the Lenders or the Trustee of all
money which may be advanced or expended (including reasonable attorneys' fees) as provided herein,
together with interest thereon as set forth herein; and
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, GRANTOR HEREBY
COVENANTS,AGREES AND WARRANTS AS FOLLOWS:
1. OBLIGATIONS.
1.1. Obligations Secured. (a) Grantor makes this Deed of Trust for the purpose of securing
the following obligations(collectively,the"Obligations"):
(i) Payment and performance of all liabilities and obligations of Grantor to Lenders under the
Debt Instruments including principal,interest,fees and costs(and including, if the Debt Instrument
so provides, all future advances and re-advances made by the Lenders to Grantor); provided,
however, if the principal amount inserted at the end of this subsection is less than the original
principal(or maximum principal)amount of the Debt Instruments as set forth above in the Recitals,
then the principal amount of the Debt Instruments secured by this Deed of Trust is limited to that
amount ("Maximum Secured Principal Amount"), plus the sum of all other liabilities and
obligations(other than principal)which accrue on the Debt Instruments and this Deed of Trust until
payment of the Debt Instruments and the obligations under this Deed of Trust in full. Maximum
Secured Principal Amount: Five Million One Hundred Fifty Thousand and 00/100 Dollars
($5,150,000.00); and
(ii) All money which may be advanced or expended by the Lenders or the Trustee as provided
herein, and all expenses (including reasonable attorneys' fees) as provided herein, together with
interest thereon as set forth herein; and
(iv) All modifications, extensions and renewals of any of the Obligations,however evidenced,
including: (a)modifications of the required principal payment dates or interest payment dates or
both, as the case may be, deferring or accelerating such payment dates wholly or partly; or (b)
modifications,extensions or renewals at a different rate of interest whether or not in the case of the
Debt Instruments, the modification, extension or renewal is evidenced by a new or additional
promissory note or notes.
1.2. Incorporation. All terms of the Obligations and the documents evidencing such
Obligations are incorporated herein by this reference. All persons who may have or acquire an interest in
the Property shall be deemed to have notice of the terms of the Obligations and to have notice, if provided
therein, that: (a) the Debt Instrument may permit borrowing, repayment and re-borrowing so that
repayments shall not reduce the amounts of the Obligations; and (b) the rate of interest on one or more
Obligations may vary from time to time.
1.3. Payment of Obligations. Grantor shall pay promptly any and all Obligations under the
Debt Instruments at the date and place and in the manner provided therein. If the principal amount of the
indebtedness outstanding under the Debt Instruments at any time exceeds the Maximum Secured Principal
Amount, all payments in reduction of such indebtedness shall be applied first to such excess not secured
hereby and the lien of this Deed of Trust shall continue until all Obligations secured hereby, including
outstanding contingent liabilities,if any, are finally and irrevocably paid in full.
1.4. Payment of additional sums. Grantor shall repay to the Trustee or the Lenders, as the
case may be, at the times and in the manner provided herein,any additional sums advanced or expended by
the Trustee or the Lenders for Grantor's account pursuant to this Deed of Trust, together with interest
thereon as set forth herein.
1.5. Performance of other Obligations. Grantor shall comply with and perform each covenant
and condition of Grantor set forth in the Debt Instruments, this Deed of Trust or any other document or
agreement pertaining to the Property or referred to in this Deed of Trust.
2. INSURANCE.
2.1. Casualty Insurance. Grantor (a) shall keep the Property and any buildings or other
Improvements now or hereafter existing on the Land insured for the Lenders'benefit against loss or damage
by, or abatement of rental income (for periods of up to and including twelve (12) consecutive months in
duration) resulting from (i) fire, lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion,aircraft,vehicles,smoke,vandalism,malicious mischief and water damage,(ii)war risk(when
available from any governmental or quasi-governmental agency and commonly required by prudent
institutional lenders), (iii)flood(if and when any or all of the Property is located in an area for which flood
insurance is made available under the National blood Insurance Act of 1968), and (iv) when and to the
extent required by the Lenders, any other risks or hazards now or hereafter customarily insured against by
persons operating a business in the locality of the Property, in such amounts and for such periods as the
Lenders may from time to time require and approve (which insurance shall in any event be in amounts
which are not less than the greater of Maximum Secured Principal Amount or one hundred percent(100%)
of the full replacement cost of the Property), and(b)shall pay promptly, when due, all premiums for such
insurance.
2.2. Requirements for Insurance. All insurance required hereunder shall be carried with
insurance companies acceptable by the Lenders, licensed to do business in Texas and having a rating in
Best's Key Rating Guide acceptable to the Lenders. The original of all such policies and renewals thereof,
together with receipts satisfactory to the Lenders evidencing payment of the current premiums therefor,
shall be delivered to and held by the Lenders as additional security for Grantor's performance of its
obligations hereunder. Grantor hereby assigns to the Lenders all of Grantor's present and future rights
thereunder,including any right to the return of any premium. Each such policy shall provide that it cannot
be terminated except upon thirty (30) days prior written notice to the Lenders, and shall have attached
thereto a standard noncontributing mortgagee clause (in favor of the Lenders and their successors and
assigns and entitling the Lenders to collect any and all of the proceeds payable under all such insurance),
as well as a standard waiver of subrogation endorsement, all in such form as is acceptable to the Lenders.
At least forty-five(45)days before each such policy expires, Grantor shall deliver to the Lenders a policy
renewing or extending the insurance afforded thereby, with a receipt evidencing payment of the premium
therefor. If any such policy, or renewal or extension thereof, together with a receipt satisfactory to the
Lenders evidencing payment of the premium therefor, is not delivered to the Lenders in the manner herein
specified, the Lenders may upon five (5) business day's prior notice obtain, and/or take such action so as
to maintain uninterrupted, such insurance as it may elect on Grantor's behalf and pay such premium(all of
which sums so expended shall be added to the Obligations secured hereby and be repayable by Grantor to
the Lenders on demand). At the Lenders' option, the Lenders may add any such sums to the principal
amount of the Debt Instruments which shall accrue interest and be payable in accordance with the terms
thereof. Neither the Trustee nor the Lenders shall be responsible for obtaining or maintaining any insurance
required by this paragraph, or shall, by reason of accepting, rejecting, approving or obtaining any such
insurance,incur any liability for the existence,non-existence,form or legal sufficiency thereof,the solvency
of any insurer or the payment of any losses, and Grantor hereby expressly assumes full responsibility
therefor and liability, if any, thereunder. Grantor shall not carry separate insurance, concurrent in kind or
form, or contributing in the event of loss,with any insurance required hereunder.
2.3. Notice of Transfer or Loss. In the event of a change in ownership or occupancy of the
Property,Grantor shall give immediate notice thereof by mail to all insurers thereof(provided,that nothing
herein shall be construed to permit such change in ownership if otherwise prohibited under the provisions
hereof)and, in the event of loss,Grantor will give immediate notice thereof to the Lenders and the Lenders
may,but is not obligated to,make proof of loss if not made promptly by Grantor.
2.4. Lenders' Rights. Grantor hereby authorizes the Lenders, at its sole option, to collect,
adjust and compromise any loss claimed under any such insurance and, after deducting the costs of such
collection, adjustment and compromise, at its option, (a) to apply the proceeds as a credit upon the
Obligations secured hereby, or to the restoration of the Property (in which event the Lenders shall not be
obligated to see to the proper application thereof nor shall the amount so released or used be deemed a
payment on any indebtedness secured hereby), or(b)to deliver the same to Grantor. Notwithstanding the
foregoing, so long as no Event of Default has occurred and is continuing, such proceeds shall be used in
restoration of the Property, unless otherwise agreed to by the parties in writing.
2.5. Foreclosure or Extinguishment of Obligations. If any or all of the Property is sold in a
foreclosure proceeding brought under this Deed of Trust, or if the title to any or all of the Property is
transferred in extinguishment of the Obligations secured hereby, all of Grantor's right,title and interest in
and to any such insurance policy then in force shall, to the extent assignable, inure to the benefit of, and
pass to,the purchaser or grantee of the Property.
3. PAYMENT OF ASSESSMENTS,LIENS AND OTHER CHARGES.
3.1. Payment by Grantor. Grantor shall (a) keep the Property free from liens of every kind,
and (b) pay, at Ieast ten (10) days before delinquency and before any interest or penalty for nonpayment
attaches thereto, all taxes, bonds, assessments, levies, water rates, sewer rentals and other governmental,
quasi-governmental, public and private dues, fines, impositions (including but not limited to any benefit
charge assessed for water and sewer facilities) and other charges heretofore or hereafter levied or assessed
against any or all of the Property(including but not limited to all taxes to which Grantor and any company,
corporation,joint stock association or limited partnership in which the Leasehold Estate in and to any or all
of the Property may hereafter vest may now or hereafter be liable under applicable law, and which under
such law may become a lien against the Property or be first distributable,allowable or payable before any
amount evidenced by the Debt Instrument, out of the proceeds of any judicial sale of the Property) (all of
which are hereinafter referred to collectively as"Assessments"),excluding,however,the Lenders' income
and franchise taxes and any tax imposed by reason of or in connection with the Lenders' death. If any ad
valorem or excise tax or other public charge(other than any tax in the nature of an income tax)is imposed
or levied on the Debt Instruments, this Deed of Trust or any other instrument held by the Lenders as
additional security for the Debt Instrument, or on the Lenders' interest in or acquisition of any of the
foregoing,Grantor shall promptly upon demand pay such tax or charge,including any interest and penalties
incurred in connection therewith. At least ten (10) days before delinquency, Grantor shall submit to the
Lenders evidence satisfactory to the Lenders of the payment of each Assessment.
3.2. Payment by Lenders. The Lenders shall be entitled, in connection with any payment
hereby authorized in Grantor's place and stead relating to (a) any Assessment, sale, forfeiture, tax lien, or
title or claim thereof made against the Property,to make such payment according to any bill, statement or
estimate procured from the appropriate governmental or quasi-governmental authority without inquiring as
to its accuracy or as to the validity of such Assessment,sale,forfeiture,tax lien,or title or claim thereof; or
(b)any apparent or threatened adverse title,lien,statement of lien,encumbrance,claim or charge,to be the
sole judge of its legality or validity; or(c)the expense of any repair or replacement of any of the Property,
to be the sole judge of its state of repair and of the necessity for incurring the expense of any such repair or
replacement; or (d) any other purpose hereby authorized, but not listed in this subsection, to make such
payment whenever in the Lenders'judgment it is necessary or desirable to protect the full security intended
to be created by this Deed of Trust.
3.3. Contested Matters. Grantor shall have the right to contest in good faith the amount or
validity of any Assessment by appropriate judicial proceedings conducted promptly and at Grantor's sole
expense, but such proceedings shall not relieve Grantor of its covenant hereunder to pay such Assessments
at the time and in the manner herein provided, or to extend the time for such payment,unless such judicial
proceedings operate to prevent or suspend the collection of the Assessments so contested and the sale of
the Property for or on account of their non-payment.
3.4. Change in Law. In the event of(a) the passage, after the date hereof, of any applicable
law changing the laws for the taxation of mortgages or deeds of trust or indebtedness secured thereby for
federal, state or local purposes, or the manner of collection of any such Assessments, so as to affect this
Deed of Trust, or(b)the passage, after the date hereof, of any applicable law, or the determination by any
governmental or quasi-governmental entity requiring internal revenue or other documentary stamps to be
purchased for or placed on this Deed of Trust or the Debt Instrument, or(c) the rendition by any court of
competent jurisdiction of a decision that any undertaking by Grantor under the provisions of this Section is
Iegally inoperative,then,in any such event,the Obligations secured hereby and the interest accrued thereon
shall, at the Lenders' option and upon thirty(30)days prior written notice to Grantor, become immediately
due and payable(but there shall accrue no premium or penalty for prepayment which,but for this provision,
would accrue under the provisions of this Deed of Trust,the Debt Instrument or any other document relating
to the loan secured hereby, because of any payment made pursuant to such notice); provided, that such
option and right shall be unavailing and the Debt Instrument and this Deed of Trust shall remain in effect
as though such law had not been enacted or promulgated if, notwithstanding such law, Grantor lawfully
pays when due and payable all such Assessments or the amount of all internal revenue or other documentary
stamps, including all interest and penalties accrued thereon, to or for the Lenders. The provisions of this
Section are not intended in any way to affect the Lenders with respect to any Obligations which may now
or hereafter be payable on demand.
3.5. Escrow. If Grantor is not required to pay tax escrows pursuant to this section, Grantor
shall provide to the Lenders, not later than the last date such payment is due and payable without interest
or penalty, official receipted tax bills, canceled checks, or other evidence satisfactory to the Lenders
evidencing that all such taxes and assessments levied or assessed against the Property have been paid in a
timely manner.In the event(i)Grantor does not provide evidence of payment of taxes as required above or
(ii)of the occurrence and continuance of an Event of Default beyond any applicable notice and cure periods;
Grantor shall, if requested by the Lenders, pay to the Lenders at the time of each installment of principal
and interest due under any of the Debt Instrument, one twelfth (1/12) of the annual taxes and assessments
levied or assessed against the Property and any premium for applicable insurance, as estimated by the
Lenders, from time to time, unless Grantor demonstrates to the Lenders that it is paying such taxes,
assessment or insurance to a holder of a prior permitted encumbrance as set forth on Schedule C attached
hereto. Such payment shall be held by the Lenders and used by the Lenders in payment of such taxes,
assessments or insurance premium. if such escrow funds are not sufficient to pay such taxes and
assessments, as the same become payable, Grantor shall pay to the Lenders, upon request, such additional
amounts as the Lenders shall estimate to be sufficient to make up any such deficiency. No amount paid to
the Lenders hereunder shall be deemed to be trust funds but may be commingled with general funds of the
Lenders,and no interest shall be payable thereon.
4. FURTHER ASSURANCES. Grantor shall, at its expense, promptly execute,
acknowledge, deliver and cause to be recorded or filed all such further instruments, deeds, conveyances,
supplemental deeds of trust, assignments, financing statements, renewals, continuation statements,
transfers, assurances or other documents as are necessary, in the Lenders' sole opinion,to (a) subject the
Property to the lien of this Deed of Trust; (b) create, provide, perfect, preserve, continue and protect such
lien thereon, whether now owned or hereafter acquired by Grantor; (c) secure the rights and remedies of
the Trustee and the Lenders hereunder or under the Debt Instruments; (d)transfer the Property to any new
trustee in accordance with Section 21 hereof, or (c) better assure, assign and confirm to the Lenders the
Leases and the Rents. Grantor shall pay to the Lenders on demand the amount of the expenses,charges and
taxes incurred by the Lenders in preparing, executing, recording, rerecording, filing or refiling any such
document and such amounts shall accrue interest at the Default Rate until payment thereof.
5. MAINTENANCE AND USE OF PROPERTY. Grantor shall(a)maintain the Property
in good condition and repair; (b) effect such repairs thereof as the Lenders reasonably require to maintain
the property in good condition and repair; (c) from time to time make all needed and proper replacements
thereto so that the Property will at all times be in good condition, fit and proper for the purposes for which
it was originally erected or installed; (d)not commit or suffer any waste or deterioration of the Property or
make change in the use of the Property which may increase any ordinary fire, environmental or other risk
thereto; (e) (except for the replacement of fixtures, personal property and non-structural elements of the
improvements made for the purpose of enhancing the economic viability of the Property, and by fixtures,
personal property and non-structural elements which are of at least like quality), not permit the removal,
demolition or material alteration of any building or other Improvement covered by the lien of this Deed of
Trust, without obtaining the Lenders' prior written consent thereto; (f)promptly repair, restore,replace or
rebuild any part of the Property now or hereafter subject to the lien of this Deed of Trust which may be
dainaged or destroyed by any casualty whatsoever, or if applicable, affected by any proceeding of the
character referred to in the Section entitled"Condemnation";(g)obey and comply with every federal,state,
local governmental and quasi-governmental law, statute, rule, directive, order, standard, ordinance and
requirement applicable to or affecting any or all of the Property,now or hereafter enacted,adopted or issued
and in force including, but not limited to, the Americans with Disabilities Act of 1990, as amended; (h)
observe and comply with all conditions and requirements necessary to preserve and extend any and all
rights,licenses,permits (including but not limited to all building,fire and health codes and ordinances and
zoning variances, special exceptions and non-conforming uses), privileges, franchises and concessions
applicable to the Property or granted to or contracted for by Grantor in connection with any existing or
contemplated use of the Property; (i) obey and carry out every covenant, agreement, restriction and
encumbrance contained in any instrument recorded among the Land Records of the said county where the
Property is located or known to Grantor,which may from time to time be in force and apply to or affect the
Property or Grantor's interest therein, and not use or permit the use of any or all of the Property in
contravention thereof; and 0)permit the Lenders,the Trustee, and their agents or employees to enter upon
and inspect the Property at any reasonable time during normal business hours and to examine, audit, copy
and extract each record of Grantor relating to the Property or any portion thereof and/or to conduct
appraisals or other valuations of the Property.
6. ENVIRONMENTAL REPRESENTATIONS, WARRANTIES AND
INDEMNIFICATION. Grantor represents and warrants to the Lenders that(a)Grantor and the Land are
in compliance with each statute, regulation or other law and each judgment, order or award of any court,
agency or other governmental or quasi-governmental authority or of any arbitrator and regulations
promulgated thereunder as the same may be amended from time to time(individually an "Environmental
Requirement"), relating to the protection of any water, water vapor, land surface or subsurface, air, fish,
wildlife,biota or other natural resources or governing the use,storage,treatment,generation,transportation,
processing, handling, production or disposal of any chemical, natural or synthetic substance, waste,
pollutant or contaminant(collectively "Regulated Materials"); (b) Grantor has not been charged with, or
has received any written notice that it is under investigation for, the failure to comply with any
Environmental Requirement, nor has Grantor received any written notice that it has or may have any
liability or responsibility under any Environmental Requirement with respect to the Land or otherwise; (c)
to the actual knowledge of Grantor,the Land has never been used for(i)the storage,treatment,generation,
transportation, processing, handling, production or disposal of Regulated Materials, except in accordance
with or as otherwise permitted by law, (ii) a landfill or other waste disposal site or(iii)military purposes;
(d) no underground storage tanks are located on the Land; (e) to the actual knowledge of Grantor, the
environmental media at the Property do not contain Regulated Materials beyond any legally permitted level;
(f)to the actual knowledge of Grantor, (i) there has never been any release, threatened release, migration
or uncontrolled presence of any Regulated Materials on, at or from the Land or, (ii) within the immediate
vicinity of the Property; and(g) Grantor has not received any written notice of any such release,threatened
release, migration or uncontrolled presence. Grantor shall not cause or permit the Land to be used in any
way that would result in any of the representations and warranties contained in the preceding sentence to
be false or misleading at any future time. To the extent any such representation or warranty at any time is
or becomes false or misleading, Grantor shall promptly notify the Lenders thereof. Grantor shall, at
Grantor's own cost and expense,conduct and complete all investigations,studies,sampling and testing with
respect to the Land requested by the Lenders. Grantor shall promptly furnish to the Lenders copies of all
such investigations, studies, samplings and tests. Grantor shall (a) conduct and complete all such
investigations, studies, samplings and testing, and all remedial, removal and other actions necessary with
respect to the Land, in accordance with all applicable Environmental Requirements and promptly furnish
to the Lenders copies of all documents generated in connection therewith.; and (b) defend, reimburse,
indemnify and hold harmless the Lenders and the Trustee and their employees, agents, officers and
directors, from and against any claims,demands,penalties, fines,liabilities, settlements,damages, costs or
expenses of whatever kind or nature, known or unknown,contingent or otherwise, arising out of, or in any
way related to,the violation of,or other Iiability or responsibility under,any Environmental Requirements,
or the release, threatened release, migration or uncontrolled presence of any Regulated Materials on, at or
from the Land, including reasonable attorney and consultant fees, investigation and laboratory fees, court
costs and litigation expenses. In the event this Deed of Trust is foreclosed, or Grantor tenders a deed in
lieu of foreclosure which the Lenders agrees to accept,Grantor shall be responsible to deliver the Land free
of any and all Regulated Materials other than any that are (a) normally used in Grantor's business; and(b)
located and maintained thereon in compliance with all applicable Environmental Requirements and in a
condition that conforms with all applicable Environmental Requirements. The provisions of this Section
shall be in addition to any and all other obligations and liabilities Grantor may have to the Lenders or the
Trustee at common law, and shall survive the transactions contemplated in this Deed of Trust and the
termination of this Deed of Trust.
7. SUBSEQUENT ENACTMENTS. Grantor agrees that in the event of the enactment of
any law or ordinance, the promulgation of any zoning or other governmental or quasi-governmental
regulation,or the rendition of any judicial decree restricting or affecting the use of the Land or rezoning the
area wherein the same shall be situate, which the Lenders believe adversely affects the Land, the Lenders
may, upon at least sixty (60) days written notice to Grantor, require payment of the Debt Instruments at
such time as may be stipulated in such notice, and the Debt Instruments shall thereupon become due and
payable. The provisions of this Section are not intended in any way to affect the Lenders with respect to
any Obligations which may now or hereafter be payable on demand.
8. TRANSFERS, LIENS AND ENCUMBRANCES. Grantor shall (a) not sell, abandon,
cease to own, assign, transfer or dispose of any or all of the Property or any interest therein, without
obtaining the Lenders' prior written consent thereto; (b) except as permitted by the Debt Instruments, not
create or otherwise permit to be created any lien or encumbrance against the Property or any interest of
Grantor therein, by or pursuant to any mortgage, deed of trust, security agreement or other instrument, as
security for the repayment of any indebtedness or the performance of any obligation or undertaking by
Grantor or any other person; (c) except as permitted by the Debt Instruments, not create or permit to be
created or filed against the Property any other lien or encumbrance (other than utility easements which
benefit the Property); and(d)keep and maintain the Property free from the claims of all persons supplying
labor or materials in connection with the construction or reconstruction of any Improvements on the
Property, regardless of by whom such labor or materials may have been contracted. A "transfer" of the
Property includes(i)the direct or indirect sale,transfer or conveyance of the Property or any portion thereof
or interest therein; (ii)the execution of an installment sale contract or similar instrument affecting all or a
portion of the Property;(iii)if Grantor is a partnership,joint venture,limited liability company,corporation
or some other type of legal entity, any direct or indirect change (whether in one transaction or a series of
transactions or whether by operation of law or otherwise) in the beneficial ownership or number of issued
and outstanding ownership interests in such entity (e.g., shares in a corporation) of any class after which
the percentage of such ownership interest in such entity owned by any person or group of persons is at least
ten percent (10%) more or less than it was on the date of this Deed of Trust; and (iv) a Lease or Leases
which, separately or in the aggregate, cover cumulatively more than twenty percent (20%) of the usable
space on the Land.
9. FINANCIAL INFORMATION. Intentionally omitted.
10. ASSIGNMENT OF LEASES AND RENTS.
10.1. Assignment. As further and additional security for the due performance and observance
of the covenants and conditions to be performed and observed by Grantor under the provisions of the Debt
Instruments and this Deed of Trust, Grantor hereby assigns and transfers to the Lenders (a) all right, title
and interest of Grantor in and to all Leases and(b)the immediate and continuing right to collect and receive
all of the Rents payable to Grantor pursuant to each Lease; provided,that Grantor shall have a license to
collect any or all of the Rents when due,to hold them as a trust fund,and to apply them to the payment of
(a) any Assessment having priority over the lien created by this Deed of Trust, (b) the premiums for
insurance which Grantor is obligated to pay pursuant to the terms of this Deed of Trust,and(c)the principal,
interest and any other sums then due by Grantor to the Lenders and secured by this Deed of Trust, before
using any part of the Rents for any other purpose. The foregoing general assignment of Leases and Rents
shall have priority over any future specific assignment of any of the Leases and the Rents to any person
other than the Lenders.
10.2. Warranty. Grantor hereby represents and warrants to the Lenders that there is not now in
effect any previous assignment or transfer in any manner of any of the Leases or the Rents.
I0.3. Covenant to Perform. Grantor hereby agrees (a) to perform and observe all of the
covenants and conditions to be performed or observed by the landlord(and/or lessor)under each Lease,(b)
to give prompt notice to the Lenders of any failure of Grantor to so perform and observe, (c)to enforce the
performance and observance of all covenants and conditions to be performed or observed by the tenant or
guarantor under each Lease,(d)to appear in and defend any action or proceeding arising out of or connected
with any Lease, in Grantor's name and, at the Lenders' request, in the Lenders' name but at Grantor's
expense,and(e)to pay all costs and expenses of the Lenders in connection with such action or proceeding.
10.4. Affirmative Obligations. Grantor hereby agrees that,without obtaining the Lenders'prior
written consent thereto, Grantor will not (a) receive or collect(in cash, by promissory note or otherwise)
any Rents for a period of more than one (1) month in advance of the date on which they accrue under the
provisions of the Leases; (b) assign or transfer in any manner any future payment of the Rents or any of
Grantor's rights under any Lease to any person other than a person lawfully succeeding, subject to this
Deed of Trust, to all of Grantor's right,title and interest in and to all or part of the Property; (c)waive the
performance or observance by the tenant or guarantor under any Lease of any covenant or condition to be
performed or observed by such tenant or guarantor thereunder; (d) cancel, terminate or consent to any
surrender of any Lease;(e)commence an action of ejectment or any summary proceeding for dispossession
of any tenant under any Lease; (f) exercise any right of recapture provided in any Lease; (g) modify or in
any way alter the terms of any Lease (in any way which materially and adversely affects the Lenders'
interests hereunder); (h) consent to any subletting of any or all of the Property or to any assignment of any
Lease by any tenant thereunder or to any assignment or further subletting of any sublease;or(i)do or permit
anything which will cause any Lease to be subordinate to any mortgage or deed of trust covering any or all
of the Property which is subordinate to this Deed of Trust. Any action of Grantor enumerated in the
immediately preceding sentence taken without the Lenders' prior written consent thereto shall be void and
of no force or effect and shall be unenforceable against the Trustee, the Lenders or any purchaser at any
foreclosure hereunder or grantee under any deed in lieu of such foreclosure.
10.5. Subsequent Leases.
10.5.1. if Grantor has leased or hereafter leases any or all of the Property which is
subordinate (either by operation of law or by the express terms thereof)to the lien of this Deed of
Trust, such Lease shall be subject to the condition that, in the event of any sale of any or all of the
Property pursuant to this Deed of Trust, such Lease shall continue in full force and effect(unless
the Lenders elects,subject to any written attornment and non-disturbance or similar agreement with
the tenant thereunder, if the Lenders is bound thereby, that such Lease thereby be extinguished),
and the tenant thereunder will,upon request,attorn to and acknowledge the purchaser at such sale
as landlord thereunder.
10.5.2. Each Lease shall have been approved in form and substance by the Lenders,
expressly and in writing. The Lenders may require as a condition of such approval that Grantor
and the tenant thereunder enter into a subordination, attornment and non-disturbance agreement,
on such terms as are satisfactory to the Lenders and containing such other provisions as the Lenders
may additionally require. Promptly after the execution and delivery of any Lease, Grantor shall
deliver a counterpart original thereof to the Lenders.
I l. CONDEMNATION. Grantor hereby agrees that all awards due to Grantor,for damages,
and all other compensation, including settlement proceeds (each of which awards,compensation, damages
and proceeds is hereinafter referred to as an"Award")paid to Grantor by reason of a taking for public or
quasi-public use of, or an actual or threatened action in eminent domain by any governmental or quasi-
government authority affecting, any or all of the Property or any interest therein(each of which actions is
hereinafter referred to as a"Condemnation"),are hereby assigned and shall be paid directly to the Lenders,
and shall be applied by the Lenders against the outstanding balance of the loan secured by this Deed of
Trust, and provided there is no Event of Default any surplus shall be delivered to Grantor. Grantor hereby
agrees (a)to give the Lenders immediate notice of the initiation of any Condemnation and a copy of every
paper served in connection with any Condemnation,and(b)to make, execute and deliver to the Lenders, at
any time upon request, free, clear and discharged of any encumbrance of any kind whatsoever, except as
aforesaid,such further assignments and every other instrument deemed necessary in the Lenders' discretion
to validly and sufficiently assign each such Award to the Lenders. if the Property is sold at any foreclosure
proceeding brought under this Deed of Trust before the Lenders' receipt of any such Award, the Lenders
shall have the right to receive out of such Award the difference between the proceeds derived from such
sale and the amount of the indebtedness secured hereby and all interest and other amounts accruing
hereunder,whether or not a deficiency judgment on this Deed of Trust has been sought,recovered or denied,
plus any reasonable attorneys' fees, costs and disbursements incurred by the Lenders in connection with
the collection of such Award.
12. EXPENSES. Grantor shall pay to the Lenders on demand all costs and expenses
(including but not limited to reasonable attorneys' fees and disbursements whether for internal or outside
counsel) incurred by the Lenders in connection with the Obligations or this Deed of Trust at any time,
including after entry of a judgment of foreclosure, and which shall in all instances include, without
limitation,costs of collection, of preserving or exercising any right or remedy of the Lenders or the Trustee
under this Deed of Trust or any related security agreement or guaranty, of workout or bankruptcy
proceedings by or against Grantor, of defending against any claim asserted as a direct or indirect result of
the Obligations, of any appraisal required by the Lenders or of performing any Obligation of Grantor
pursuant to this Deed of Trust or otherwise (including payment of any amount Grantor is obligated to pay
to the Lenders pursuant to the Debt Instrument and/or this Deed of Trust). The Lenders reserve the right to
have Grantor pay, upon demand, administrative fee(s) in regard to any administrative action the Lenders
are required or requested to take including the preparation of discharges, releases or assignments to third
parties. Costs, expenses and fees shall accrue interest at the Default Rate from the date of demand until
payment is actually received by the Lenders. Each such cost, expense and fee, and any interest thereon,
shall constitute part of the Obligations and be secured by this Deed of Trust and may be added to the
judgment in any suit brought by the Lenders against Grantor on this Deed of Trust. In any action or
proceeding to foreclose this Deed of Trust or to recover or collect the Obligations secured hereby, the
provisions of law respecting the recovery of costs, disbursements and allowances shall prevail unaffected
by this covenant.
13. INDEMNIFICATION. Grantor shall indemnify each Lender and its respective Affiliates
(as defined herein) and each officer, employee, accountant, attorney and other agent thereof and each
Trustee(each such person being an"Indemnified Party")on demand,without any limitation as to amount,
against each liability,claim of liability,loss,damage,demand or expense(including all reasonable fees and
disbursements of counsel(whether for internal or external counsel)retained for advice,suit,appeal or other
proceedings or purpose,and of any expert or agents an Indemnified Party may retain)heretofore or hereafter
imposed on, incurred by or asserted against any Indemnified Party (including any claim involving any
allegation of any violation of applicable law of any governmental or quasi-governmental authority
(including any environmental law or criminal law)),however asserted and whether now existing or hereafter
arising, arising out of any ownership, or disposition or use of any of the Property,the lien thereon granted
under this Deed of Trust or any other right granted hereunder including the assignment of Leases and Rents
as set forth herein and further agrees to pay, upon demand, any expense that Lenders may incur(including
attorneys' fees and disbursements whether for internal or outside counsel) due to Grantor's failure to
provide appropriate defense and indemnification to Lenders in a timely manner. The foregoing indemnity
shall not apply to any liability,cost or expense solely attributable to an Indemnified Party's gross negligence
or willful misconduct. The amount of any such liability, loss, damage, demand or expense, together with
interest thereon at the Default Rate,shall, immediately and without notice, be due and payable by Grantor
to the Lenders. This indemnity agreement shall survive payment and performance of the Obligations. Any
amounts payable under this or any other section of this Deed of Trust shall be additional Obligations secured
hereby.
14. EVENTS OF DEFAULT. As used in this Deed of Trust, the term "Event of Default"
shall have the meaning specified in the Debt Instruments.
15. LENDERS' RIGHTS ON EVENT OF DEFAULT. If an Event of Default occurs, and
is continuing beyond any applicable notice and cure period, the Lenders (or the Trustee on written
authorization of the Lenders) may,to the extent permitted by applicable law, without further notice to or
demand upon Grantor or any other party having an interest in the Property or any Guarantor, and without
regard to the value of the Property held as security for the Obligations due hereunder or the solvency of any
person liable for the payment of such Obligations, at its option and whether or not electing to declare the
whole Obligation due and payable, do any or all of the following:
15.1. Declare the entire amount of the Obligations which is then unpaid, including any interest
and other unpaid sums accruing thereunder, and any other amounts payable under this Deed of Trust or any
other document executed in connection therewith, to be immediately due and payable. All or any part of
any Obligations,whether or not payable on demand,shall be immediately due and payable,without demand
or notice of any kind, automatically upon the commencement of Grantor's bankruptcy, if voluntary, and
upon the lapse of forty-five(45)days without dismissal, if involuntary. The provisions of this Section are
not intended in any way to affect any rights of the Lenders with respect to any Obligations which may now
or hereafter be payable on demand.
15.2. Either personally or by any attorney or agent without bringing any action or proceeding,or
by a receiver appointed by a court of competent jurisdiction, enter upon and/or take possession of any or
all of the Property (including but not limited to any of the Property which may constitute goods or other
personal property). Upon such entry, the Lenders shall have the right, subject to the terms and conditions
of the Ground Lease, (a)to exclude Grantor its agents and servants wholly from the Property, and to have,
hold, manage, lease, use, operate and control it on such terms and for such period of time as the Lenders
deems proper in their sole discretion; and (b) in accordance with the Debt Instruments and the Texas
Assignment of Rents Act,to sue for,collect,and receive,all payments and Rents with respect to any Leases,
for which this Deed of Trust shall be sufficient authority whether or not any such Leases have been assigned
to the Lenders. Upon every such entry, subject to the terms and conditions of the Ground Lease, the
Lenders, at Grantor's expense, may from time to time (a) take such steps and expend such sums as are
reasonably necessary to preserve and protect the Property; provided, however, no such expenditure or
payment shall constitute a waiver of any Event of Default; and (b) make all necessary and proper repairs,
renewals, replacements and useful or required alterations and improvements to the Property as, in the
Lenders' sole judgment,are reasonably necessary or desirable. After deducting the expenses of, or incident
to,managing and operating the Property,conducting the business thereof,making any repairs,maintenance,
renewals, replacements, alterations and improvements thereto, taking and retaining possession of the
Property,and keeping it properly insured,the Lenders shall be entitled to apply the residue of the Rents and
the payments, if any, arising as aforesaid, to the payment of(a) any Assessment having priority over the
lien created by this Deed of Trust; (b) premiums for all insurance which the Lenders deem necessary or
desirable, with interest thereon; (c) the Obligations secured by this Deed of Trust; and (d) all costs and
attorneys' fees incurred in connection therewith,all in such order or priority as the Lenders determine,any
statute, law,custom or use to the contrary notwithstanding. The remedies in this subsection are in addition
to other remedies available to the Lenders and the exercise of the remedies in this subsection shall not be
deemed to be an election of nonjudicial or judicial remedies otherwise available to the Lenders.
15.3. Cure any Event of Default without releasing Grantor from any obligation hereunder.
15.4. Commence and maintain one or more actions at law or in equity or by any other appropriate
remedy to(a)protect and enforce the Lenders' rights,whether for the specific performance of any covenant
or agreement herein contained (which covenants and agreements Grantor agrees shall be specifically
enforceable by injunctive or other appropriate equitable remedy);or(b)collect any sum then due hereunder;
or (c) aid the execution of any power herein granted; or (d) foreclose this Deed of Trust; or (e) sell the
Property without prejudice to the right of the Lenders thereafter to pursue and enforce any other appropriate
remedy against Grantor, whether such remedy is provided for hereunder or by any applicable law for any
Event of Default which may have occurred at the time at which any such earlier action was commenced.
15.5. Lenders, as a matter of right and without regard to the sufficiency of the security for
repayment of the Obligations, without notice to Grantor and without any showing of insolvency, fraud, or
mismanagement on the part of Grantor, and without the necessity of filing any judicial or other proceeding
other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver
or receivers of the Property or any part thereof, and of the Rents, and Grantor hereby irrevocably consents
to the appointment of a receiver or receivers. Any receiver appointed pursuant to the provisions of the
terms hereof shall have the usual powers and duties of receivers in such matters.
16. POWER OF SALE. Upon the occurrence and during the continuance of an Event of
Default, beyond any notice and cure periods, Lenders may proceed, or may request the Trustee proceed,
with foreclosure under the power of sale which is hereby conferred, and the Trustee is hereby authorized
and empowered,and it shall be the Trustee's special duty,upon such request of Lenders,to sell the Property,
or any part thereof,at public auction to the highest bidder for cash,with or without having taken possession
of same. Any such sale (including notice thereof) shall comply with the applicable requirements, at the
time of the sale, of Section 51.002 of the Texas Property Code or, if and to the extent such statute is not
then in force, with the applicable requirements, at the time of the sale, of the successor statute or statutes,
if any, governing sales of Texas real property under powers of sale conferred by deeds of trust. if there is
no statute in force at the time of the sale governing sales of Texas real property under powers of sale
conferred by deeds of trust, such sale shall comply with applicable law, at the time of the sale, governing
sales of Texas real property under powers of sale conferred by deeds of trust. in the event a foreclosure by
power of sale is commenced by the Trustee, at any time before the sale,the Trustee may abandon the sale,
and Lenders may then institute suit for the collection of the Obligations and for the foreclosure of the liens
and security interests hereof. If Lenders should institute a suit for the collection of the Obligations and for
a foreclosure of the liens and security interests,Lenders may,at any time before the entry of a final judgment
in said suit, dismiss the same and require the Trustee to sell the Property or any part thereof in accordance
with the provisions of this Deed of Trust.
17. FORECLOSURE SALE.
17.1. If any or all of the Property or any estate or interest therein is to be sold pursuant to this
Deed of Trust, by a judicial sale or otherwise, it may be sold at public auction, as an entirety or in one or
more parcels,by one sale or several sales held at one time or at different times, with such postponement of
any such sale as the Trustee deems appropriate and without regard to any right of Grantor or any other
person to the marshalling of assets. Any such sale shall be held at such time and at such place,and shall be
made upon such terms and after such previous public notice as required by law, as the Trustee deems
appropriate. The Lenders may bid and become the purchasers at any such sale,and shall,upon presentation
of the Debt Instruments or a true copy thereof at such sale,be credited for the unpaid balance due under the
Debt Instruments and any interest accrued and unpaid thereon, or such portion of such unpaid balance or
interest as the Lenders may specify,against any price bid by the Lenders thereat or any deposit required or
paid in connection therewith. The terms of sale being complied with, the Trustee shall (at the expense of
the purchaser) convey to the purchaser at such sale Grantor's interest in so much of the Property as is so
sold, free of and discharged from all estate, right, title or interest of Grantor at law or in equity, such
purchaser being hereby discharged from all liability to see to the application of the purchase money. If the
liens or security interests hereof shall be foreclosed by power of sale granted herein, by judicial action, or
otherwise,the purchaser at any such sale shall receive, as an incident to purchaser's ownership, immediate
possession of the property purchased, and if Grantor or Grantor's successors shall hold possession of said
property or any part thereof subsequent to foreclosure without a lease or other license permitted by the
purchaser, Grantor and Grantor's successors shall be considered as tenants at sufferance of the purchaser at
foreclosure sale (without limitation of other rights or remedies, at a reasonable rental per day, due and
payable daily,based upon the value of the portion of the Property so occupied and sold to such purchaser),
and anyone occupying such portion of the Property, after demand is made for possession thereof, shall be
guilty of forcible detainer and shall 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. Lenders may be the
purchasers of the Property or any part thereof, at any sale thereof,whether such sale be under the power of
sale herein vested in the Trustee or upon any other foreclosure of the liens and security interests hereof, or
otherwise, and Lenders shall,upon any such purchase, acquire good title to the Property so purchased,free
of the Bens and security interests hereof, unless the sale was made subject to an unmatured portion of the
Obligations. Lenders, as purchaser, shall be treated in the same manner as any third party purchaser.
17.2. On any sale of Grantor's interest in any or all of the Property, whether under the assent to
a decree or power of sale herein granted, or by other foreclosure or judicial proceedings,the proceeds of
such sale, together with any other sum then held as security hereunder or due under any of the provisions
hereof as part of the Property, shall be applied (after paying all expenses of sale, including reasonable
attorneys'fees and a commission to the party making the sale equal to the commission allowed to the trustee
for making sales of property under orders or decrees of a court having competent jurisdiction, and all
Assessments which the Trustee and the Lenders deem it advisable to pay and all sums advanced, with
interest thereon, as herein provided)to the payment of the aggregate Obligations then secured hereby and
interest thereon to the date of payment,paying over the surplus,if any,less the expense, if any,of obtaining
possession, to Grantor or any person entitled thereto upon the surrender and delivery to the purchaser of
possession of the Property.
18, WAIVER OF DEFICIENCY STATUTE.
18.1. Waiver. In the event an interest in any of the Property is foreclosed upon pursuant to a
judicial or nonjudicial foreclosure sale, Grantor agrees as follows: notwithstanding the provisions of
Sections 51.003, 51.004, and 51.005 of the Texas Property Code(as the same may be amended from time
to time),and to the extent permitted by law,Grantor agrees that Lenders shall be entitled to seek a deficiency
judgment from Grantor and any other party obligated on the Debt Instruments equal to the difference
between the amount owing on the Debt Instruments and the amount for which the Property was sold
pursuant to judicial or nonjudicial foreclosure sale. Grantor expressly recognizes that this ,section
constitutes a waiver of the above-cited provisions of the Texas Property Code which would otherwise
permit Grantor and other persons against whom recovery of deficiencies is sought to present competent
evidence of the fair market value of the Property as of the date of the foreclosure sale and offset against any
deficiency the amount by which the foreclosure sale price is determined to be less than such fair market
value. Grantor further recognizes and agrees that this waiver creates an irrebuttable presumption that the
foreclosure sale price is equal to the fair market value of the Property for purposes of calculating
deficiencies owed by Grantor and others against whom recovery of a deficiency is sought.
18.2. Alternative to Waiver. Alternatively, in the event the waiver provided for in
subsection 18.1 above is determined by a court of competent jurisdiction to be unenforceable,the following
shall be the basis for the finder of fact's determination of the fair market value of the Property as of the date
of the foreclosure sale in proceedings governed by Sections 51.003, 51.004 and 51.005 of the Texas
Property Code (as amended from time to time): (i)the Property shall be valued in an"as is" condition as
of the date of the foreclosure sale,without any assumption or expectation that the Property will be repaired
or improved in any manner before a resale of the Property after foreclosure;(ii)the valuation shall be based
upon an assumption that the foreclosure purchaser desires a resale of the Property for cash promptly (but
no later than 12-months)following the foreclosure sale; (iii)all reasonable closing costs customarily borne
by the seller and purchaser in commercial real estate transactions in the vicinity of Property of a similar
type as the Property should be deducted/credited, as applicable, from the gross fair market value of the
Property, including, without limitation, brokerage commissions, title insurance, a survey of the Property,
tax prorations,attorneys'fees,and marketing costs; (iv)the gross fair market value of the Property shall be
further discounted to account for any estimated holding costs associated with maintaining the Property
pending sale, including, without limitation, utilities expenses, property management fees, taxes and
assessments (to the extent not accounted for in (iii)above), and other maintenance, operational and
ownership expenses; and (v) any expert opinion testimony given or considered in connection with a
determination of the fair market value of the Property must be given by persons having at least five(5)
years' experience in appraising property similar to the Property and who have conducted and prepared a
complete written appraisal of the Property taking into consideration the factors set forth above.
19. COMMISSIONS: PREPAYMENT PREMIUMS. Immediately on the first insertion of
any advertisement or notice of any such sale,there shall become due and owing by Grantor to the Lenders
all expenses incident to such advertisement or notice, all court costs and all other expenses incident to any
foreclosure proceedings brought under this Deed of Trust or otherwise in connection with such sale, and a
commission on the total amount of the Obligations then due hereunder equaling one-half of the commission
allowed to trustees for making sales of property under orders or decrees of a court having competent
jurisdiction,and the Lenders or Trustee as applicable shall receive in addition to the aggregate Obligations
then secured hereby with interest thereon to the date of payment,together with and accompanied by a tender
of payment of such expenses, costs and commissions.
20. EFFECT OF PAYMENT. Any payment made under this Deed of Trust by any
subsequent owner of any or all of the Property, any other person whose interest in the Property might be
prejudiced in the event of a failure to make such payment, or any stockholder, officer or director of a,
corporation which at any time is liable for such payment or owns or has an interest in the Property or in
Grantor,shall be deemed,as between the Lenders and all persons who at any time may be liable as aforesaid
or may own any or all of the Property or Grantor,to have been made on behalf of all such persons.
21. TRUSTEE.
21.1. No Required Action. The Trustee shall not be required to take any action toward the
execution and enforcement of the trust hereby created or to institute, appear in, or defend any action, suit,
or other proceeding in connection therewith where, in the Trustee's opinion,such action would be likely to
involve the Trustee in expense or liability, unless requested so to do by a written instrument signed by
Lenders and, if the Trustee so requests, unless the Trustee is tendered security and indemnity satisfactory
to the Trustee against any and all cost, expense, and liability arising therefrom. The Trustee shall not be
responsible for the execution, acknowledgment, or validity of the Loan Documents, or for the proper
authorization thereof, or for the sufficiency of the lien and security interest purported to be created hereby,
and the Trustee makes no representation in respect thereof or in respect of the rights, remedies, and
recourses of Lenders.
21.2. Certain Rights. With the approval of Lenders,the Trustee shall have the right to take any
and all of the following actions: (i)to select, employ,and advise with counsel (who may be, but need not
be, counsel for Lenders) upon any matters arising hereunder, including the preparation, execution, and
interpretation of the Debt Instruments, and shall be fully protected in relying as to legal matters on the
advice of counsel, (ii)to execute any of the trusts and powers hereof and to perform any duty hereunder
either directly or through the Trustee's agents or attorneys, (iii)to select and employ, in and about the
execution of the Trustee's duties hereunder, suitable accountants, engineers and other experts, agents and
attorneys-in-fact, either corporate or individual,not regularly in the employ of the Trustee, and the Trustee
shall not be answerable for any act, default, negligence, or misconduct of any such accountant,engineer or
other expert, agent or attorney-in-fact, if selected with reasonable care, or for any error of judgment or act
done by the Trustee in good faith, or be otherwise responsible or accountable under any circumstances
whatsoever, except for the Trustee's gross negligence or bad faith, and(iv) any and all other lawful action
as Lenders may instruct the Trustee to take to protect or enforce Lenders' rights hereunder. The Trustee
shall not be personally liable in case of entry by the Trustee, or anyone entering by virtue of the powers
herein granted to the Trustee,upon the Property for debts contracted for or liability or damages incurred in
the management or operation of the Property,except to the extent that any such debts,liabilities or damages
are attributable to gross negligence or willful misconduct of the Trustee.The Trustee shall have the right to
rely on any instrument, document, or signature authorizing or supporting any action taken or proposed to
be taken by the Trustee hereunder, believed by the Trustee in good faith to be genuine. The Trustee shall
be entitled to reimbursement for expenses incurred by the Trustee in the performance of the Trustee's duties
hereunder and to reasonable compensation for such of the Trustee's services hereunder as shall be rendered.
Grantor will, from time to time, pay the compensation due to the Trustee hereunder and reimburse the
Trustee for,and save the Trustee harmless against,any and all liability and expenses which may be incurred
by the Trustee in the performance of the Trustee's duties, except to the extent that any such liabilities or
expenses are attributable to the gross negligence or willful misconduct of the Trustee.
21.3. Retention of Money. All moneys received by the Trustee shall, until used or applied as
herein provided,be held in trust for the purposes for which they were received, but need not be segregated
in any manner from any other moneys (except to the extent required by applicable law) and the Trustee
shall be under no liability for interest on any moneys received by the Trustee hereunder.
21.4. Successor Trustee. The Trustee may resign by the giving of notice of such resignation in
writing or verbally to Lender. If the Trustee shall die, resign, or become disqualified from acting in the
execution of this trust, or if, for any reason, Lenders shall prefer to appoint a substitute Trustee, or a
successive substitute Trustee, to act instead of the aforenamed Trustee, Lenders shall have full power to
appoint a substitute Trustee in succession who shall succeed to all the estates,rights,powers, and duties of
the aforenamed Trustee. Such appointment may be executed by any authorized agent of Lenders, and if
any such Lender be a corporation, such appointment may be executed in its behalf by any officer of such
corporation, and such appointment shall be conclusively presumed to be executed with authority and shall
be valid and sufficient without proof of any action by the board of directors or any superior officer of the
corporation. Grantor hereby ratifies and confirms any and all acts which the aforenamed Trustee, or his
successor or successors in this trust, shall do lawfully by virtue hereof.
21.5. Perfection of Appointment. Should any deed, conveyance, or instrument of any nature
be required from Grantor by any the Trustee, or substitute Trustee, to more fully and certainly vest in and
confirm to the Trustee, or substitute Trustee,such estates,rights,powers,and duties,then, upon request by
the Trustee, or substitute Trustee, any and all such deeds, conveyances and instruments shall be made,
executed, acknowledged, and delivered and shall be caused to be recorded and/or filed by Grantor.
21.6. Succession Instruments. Any substitute Trustee appointed pursuant to any of the
provisions hereof shall, without any further act, deed, or conveyance, become vested with all the estates,
properties, rights, powers, and trusts of its or his predecessor in the rights hereunder with like effect as if
originally named as the Trustee herein; but nevertheless, upon the written request of Lenders or of the
substitute Trustee, the Trustee ceasing to act shall execute and deliver any instrument transferring to such
substitute Trustee,upon the trusts herein expressed, all the estates, properties, rights, powers, and trusts of
the Trustee so ceasing to act, and shall duly assign, transfer and deliver any of the property and moneys
held by such Trustee to the substitute Trustee so appointed in the Trustee's place.
21.7. No Representation by Trustee or Lenders. By accepting or approving anything required
to be observed, performed, or fulfilled or to be given to the Trustee or Lenders pursuant to the Debt
Instruments, including without limitation, any officer's certificate, balance sheet, statement of profit and
loss or other financial statement, survey, appraisal, or insurance policy, neither the Trustee nor Lenders
shall be deemed to have warranted, consented to, or affirmed the sufficiency, legality, effectiveness, or
legal effect of the same, or of any term, provision, or condition thereof, and such acceptance or approval
thereof shall not be or constitute any warranty or affirmation with respect thereto by the Trustee or Lenders.
22. ESTOPPEL CERTIFICATES. Grantor shall, within five (5) days after receiving a
written request thereof from the Lenders,certify to the Lenders or any party designated by the Lenders,by
a writing duly acknowledged,the amount of principal and interest then owing under the Debt Instruments
and whether any offset or defense exists against the Obligations secured thereby.
23. NOTICES. Any notice, demand, consent, approval, request or other communication or
document to be provided hereunder or under any applicable law pertaining hereto to a party hereto shall be
in writing and duly given if delivered to (a) Grantor(at its address on Lenders' records), and (b) Lenders
(at the address on page one or such other addresses as Lenders may provide to Grantor in writing from time
to time). Such notice or demand shall be deemed sufficiently given for all purposes when delivered(i)by
personal service and shall be deemed effective when delivered,or(ii)by mail or courier and shall be deemed
effective three(3)business days after deposit in an official depository maintained by the United States Post
Office for the collection of mail or one (1)business day after delivery to a nationally recognized overnight
courier service (e.g., Federal Express). Notice by e-mail is not valid notice under this or any other
agreement between Grantor and the Lenders.
24. WARRANTY OF TITLE; TITLE INSURANCE. Grantor hereby warrants that: (a) it
lawfully holds good and marketable title to,and possesses,a leasehold estate in the Property,subject to and
only to the operation and effect of those instruments and matters listed in Schedule C; (b) it holds the right
to encumber such title by this Deed of Trust; (c) it will protect, preserve and defend its leasehold estate in
the Property against the claims of any party whatsoever; (d) it will give such further assurances thereof as
may be required by the Lenders; (e) this Deed of Trust constitutes a legal, valid and binding obligations
enforceable against Grantor, in accordance with its terms; and(f)the execution and delivery of each of this
Deed of Trust,the Debt Instrument and the other Debt Documents have been duty authorized by Grantor
and that there is no provision in any document relating to Grantor that evidences or establishes the existence
of Grantor requiring further consent for such action by any other person; that it is duly organized, validly
existing and is in good standing under the laws of the state of its organization; that it has (i) all necessary
licenses, authorizations,registrations,permits and/or approvals and(ii) full power and authority to own its
properties and carry on its business as presently conducted by it and the execution and delivery of and
performance of its obligations under this Deed of Trust and the Debt Instruments will not result in Grantor
being in default under any provisions of any document that evidences or establishes the existence of Grantor
or of any deed of trust,credit or other agreement to which Grantor is a party or by which it is bound or that
affects Grantor or the Property,or any part thereof. Grantor shall furnish,on or before the date of execution
hereof, to the Lenders at Grantor's own cost and expense a title insurance policy in the then outstanding
amount of the Obligations secured hereby, (a) naming the Lenders as mortgagee; (b) insuring the lien on
Grantor's leasehold estate in the Property granted pursuant to this Deed of Trust;(c)containing no exception
other than those set forth on Schedule C attached hereto or those otherwise approved in writing by the
Lenders; (d)issued by a title insurance company qualified to do business in the state where the Property is
located and satisfactory to the Lenders;and(e)otherwise in form and substance satisfactory to the Lenders.
25. AUTHORIZATION AND POWER OF ATTORNEY. The Lenders are, upon the
occurrence and during the continuation of an Event of Default beyond any applicable notice and cure period,
irrevocably and unconditionally authorized to act, and Grantor irrevocably and unconditionally appoints
the Lenders,as the attorney-in-fact of Grantor,with full power of substitution and of revocation,to take, in
the name of Grantor or otherwise at the sole option of the Lenders, each action relating to the Property or
any portion thereof that, subject to this Deed of Trust, Grantor could take in the same manner,to the same
extent and with the same effect as if Grantor were to take such action;provided,however,that the Lenders
shall not have the right, pursuant to such authorization or as such attorney-in-fact, to sell or otherwise
dispose of the Property or any portion thereof. Such power of attorney is irrevocable and is coupled with
an interest in the Property in favor of the Lenders, and shall not be terminated or otherwise affected by the
death,disability or incompetence of Grantor,if an individual. No other person shall be appointed Grantor's
attorney with any of such powers, so long as any part of Obligations secured hereby is unpaid.
26. RIGHT OF SETOFF, if an Event of Default occurs and is continuing beyond any
applicable notice and cure period, the Lenders shall have the right to set off against the Obligations any
property held in a deposit or other account with the Lenders or any of their respective Affiliates or otherwise
owing by the Lenders or any of their respective Affiliates in any capacity to Grantor. Such set-off shall be
deemed to have been exercised immediately at the time the Lenders or such Affiliate elect to do so.
27. USA PATRIOT ACT NOTICE. Lenders hereby notify Grantor that pursuant to the
requirements of the USA PATRIOT Act ("Patriot Act"), it may be required to obtain, verify and record
information that identifies Grantor,which information includes the name and address of Grantor and other
information that will allow Lenders to identify Grantor in accordance with the Patriot Act. Grantor agrees
to, promptly following a request by Lenders, provide all such other documentation and information that
Lenders request in order to comply with its ongoing obligations under applicable "know your customer"
and anti-money laundering rules and regulations,including the Patriot Act.
28. GENERAL.
28.1. Definitions and Construction.
28.1.1. As used herein:
"Affiliate"means any subsidiary or affiliate of a Lender;
"Bankruptcy Code"means the United States Bankruptcy Code, 11 U.S.C. §101,
et seq., as the same may be amended.
"Debt Documents"means this Deed of Trust,the Debt Instruments and all other
financing documents executed and delivered in connection therewith.
"Default Rate" means the default rate of interest as set forth in the Debt
Instruments;
The term "Obligations" is used herein in its broadest and most comprehensive
sense and shall be deemed to include all interest and charges, prepayment charges (if any), late
charges and loan fees at any time accruing or assessed on any of the Obligations;
"Person" means any individual, corporation, receiver, trustee, firm, partnership,
joint venture,unincorporated association or other legal or commercial entity;
"Rents"shall have the meaning set forth in the above granting clause.
29.1.2. All references made: (a) in the neuter, masculine or feminine gender shall be
deemed to have been made in all such genders;(b)in the singular or plural number shall be deemed
to have been made,respectively,in the plural or singular number as well; (c)to the word"or"has
the inclusive meaning represented by the phrase "and/or", the word "including", "includes" and
"include"shall be deemed to be followed by the words"without limitation";and(d)to any section,
subsection,paragraph or subparagraph shall, unless therein expressly indicated to the contrary, be
deemed to have been made to such section,subsection,paragraph or subparagraph of this Deed of
Trust.
28.2. Governing Law; Jurisdiction. This Deed of Trust shall be governed by and construed,
interpreted and enforced in accordance with the internal law of the State of Texas, without regard to
principles of conflict of laws. GRANTOR HEREBY IRREVOCABLY CONSENTS AND AGREES
TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN TARRANT
COUNTY, TEXAS. GRANTOR CONSENTS THAT THE LENDERS MAY EFFECT ANY
SERVICE OF PROCESS IN THE MANNER AND AT GRANTOR'S ADDRESS SET FORTH
ABOVE IN THE SECTION ENTITLED"NOTICES"FOR PROVIDING NOTICE OR DEMAND;
PROVIDED,HOWEVER,GRANTOR AGREES THAT NOTHING CONTAINED HEREIN WILL
PREVENT THE LENDERS FROM BRINGING ANY ACTION,ENFORCING ANY AWARD OR
JUDGMENT OR EXERCISING ANY RIGHTS AGAINST GRANTOR INDIVIDUALLY,
AGAINST ANY OF THE PROPERTY OR AGAINST ANY OTHER PROPERTY OF GRANTOR
WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC
JURISDICTION. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. Grantor acknowledges and agrees that the venue provided above is
the most convenient forum for Grantor, the Trustee and the Lenders and Grantor waives any objection to
venue and any objection based on a more convenient forum in any action instituted under this Deed of
Trust. The remedies hereunder are available under and governed by the real property laws of Texas and
are not governed by the personal property laws of Texas in accordance with the provisions of Section 9.604
of the Texas Business and Commerce Code, including, the power to dispose of personal property in a
commercially reasonable manner under Section 9.627 of the Texas Business and Commerce Code or the
application of proceeds under Section 9.615 of the Texas Business and Commerce Code. No action by
Lenders taken pursuant to this subsection shall be deemed to be an acceptance of collateral in satisfaction
of obligations under Section 9.620 of the Texas Business and Commerce Code. Any receipt of
consideration received by Lenders pursuant to this subsection shall be immediately credited against the
Obligations (in the inverse order of maturity) and the value of said consideration shall be treated like any
other payment against the Obligations.
28.3. Covenants to Run with Land. The grants, terms, covenants, provisions and conditions
hereof shall run with the land and shall be binding upon Grantor, its heirs, personal representatives,
successors and permitted assigns, and shall inure to the benefit of the Trustee and their survivors and
successors,and the Lenders and their successors and assigns.
28.4. Miscellaneous. Time shall be of the essence with respect to this Deed of Trust. This Deed
of Trust may be amended or supplemented only by a written agreement executed and, if necessary,
acknowledged by the party against whom enforcement of such amendment or supplement is sought. The
headings of the sections, subsections, paragraphs and subparagraphs hereof are provided herein for and
only for convenience of reference, and shall not be considered in construing their contents. Each writing
or plat referred to herein as being attached hereto as an exhibit or otherwise designated herein as an exhibit
hereto is hereby made a part hereof. Nothing in this Deed of Trust and no transaction related hereto shall
operate or be construed to require Grantor to make any payment or do anything contrary to applicable law.
No determination by any court,governmental or quasi-governmental body or otherwise that any provision
of this Deed of Trust or any amendment hereof is invalid or unenforceable in any instance shall affect the
validity or enforceability of(a) any other such provision; or (b) such provision in any circumstance not
controlled by such determination. Each such provision shall be valid and enforceable to the fullest extent
allowed by,and shall be construed wherever possible as being consistent with,applicable law.
28.5. Waiver. All rights, remedies, privileges or discretions of the Lenders and the Trustee
under this Deed of Trust and applicable law are cumulative, and no right or remedy shall be exclusive of
any other right or remedy. No single, partial or delayed exercise by the Lenders and the Trustee of any
right or remedy shall preclude full and timely exercise by the Lenders and the Trustee at any time of any
right or remedy of the Lenders and the Trustee without notice or demand, at the Lenders' or Trustee's sole
option. No course of dealing or other conduct,no oral agreement or representation made by the Lenders or
the Trustee or usage of trade shall operate as a waiver of any right or remedy of the Lenders or the Trustee.
No waiver of any right or remedy of the Lenders or the Trustee shall be effective unless made specifically
in writing by the Lenders or the Trustee. Neither Grantor nor any other person now or hereafter obligated
to pay any or all of the Obligations secured by this Deed of Trust shall be relieved of such obligation by
reason of(a) the failure of the Lenders, the Trustee or any other person to comply with any request of
Grantor, or to take any action to foreclose this Deed of Trust or otherwise enforce any of the provisions of
this Deed of Trust or any Obligations secured hereby;(b)the release,regardless of consideration,of any or
all of the Property; or(c)the agreement or stipulation,by Grantor or any subsequent owner of any or all of
the Property and the Lenders, extending the time of payment or modifying the terms of the Debt
Instruments,this Deed of Trust or any other document executed in connection therewith,without the prior
written consent of Grantor or such other person, and in the event of any such agreement or stipulation,
Grantor and each such other person shall continue to be liable to make such payments according to the
terms of any such agreement of extension or modification unless expressly released and discharged in
writing by the Lenders.
28.6. Joint and Several Liability. If there is more than one Grantor, each of them shall be
jointly and severally liable for adhering to the terms and satisfying the conditions hereof and the term
"Grantor"shall include each as well as all of them. If there is more than one Guarantor the term"Guarantor"
shall include each as well as aII of them.
29. SECURITY AGREEMENT. This Deed of Trust shall constitute a"security agreement"
within the meaning of,and shall create and grant(and Grantor does hereby create and grant)to the Lenders
a security interest under, Revised Article 9 of the Uniform Commercial Code, as codified in Article 9 of
the Texas Business and Commerce Code(as the same may be in effect as amended from time to time), in
all such goods, as well as in all present and future accounts, equipment, fixtures, goods that are or are to
become fixtures, as-extracted items and timber to be cut, as such terms and categories may be defined or
described in the UCC, as applicable, general intangibles, chattel paper, documents and other personalty
now or hereafter affixed to, or used in connection with, any portion of the Property and in all proceeds
thereof (including all construction contracts, permits, public works agreements, bonds, deposits and
payments thereunder, relating or appertaining to the Property and other property and its development).
Grantor acknowledges and agrees that, in applying the law of any jurisdiction that at any time enacts all or
substantially all of the uniform provisions of Revised Article 9 of the Uniform Commercial Code (1999
Official Text), the foregoing collateral description covers all assets of Grantor affixed to, or used in
connection with any portion of the Property. It is the intent of Grantor, Lenders, and the Trustee that this
Deed of Trust encumber all Leases and that all items contained in the definition of"Leases" which are
included within the Texas Business and Commercial Code be covered by the security interest granted in
this Section 29; and all items contained in the definition of"Leases" which are excluded from the Texas
Business and Commercial Code be covered by"Grant" recitals beginning on page 1 of this Deed of Trust.
The Lenders shall have the right to file in any public office,without the signature of Grantor,each financing
statement relating to such fixtures and equipment and other personal property and proceeds therefrom that
the Lenders shall deem necessary or desirable at the sole option of the Lenders. The Lenders shall have all
of the rights with respect to such personal property afforded to it as a secured party by the Uniform
Commercial Code as codified in Article 9 of the Texas Business and Commerce Code,as the same may be
in effect from time to time, in addition to,but not in limitation of,the other rights afforded the Lenders by
the provisions of this Deed of Trust. IT IS INTENDED BY GRANTOR AND LENDERS THAT THIS
DEED OF TRUST BE EFFECTIVE AS A FINANCING STATEMENT FILED WITH THE REAL
ESTATE RECORDS AS A FIXTURE FILING.
30. WAIVER OF JURY TRIAL. GRANTOR, THE LENDERS AND THE TRUSTEE
EACH HEREBY KNOWINGLY,VOLUNTARILY,AND INTENTIONALLY WAIVE ANY RIGHT TO
TRIAL BY JURY THEY MAY HAVE IN ANY ACTION OR PROCEEDING,IN LAW OR IN EQUITY,
IN CONNECTION WITH THIS DEED OF TRUST OR THE TRANSACTIONS RELATED THERETO.
GRANTOR REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF
EITHER LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDERS
WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS RIGHT TO JURY TRIAL
WAIVER. GRANTOR ACKNOWLEDGES THAT LENDERS HAVE BEEN INDUCED TO ACCEPT
THIS DEED OF TRUST BY,AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
31. GROUND LEASE COVENANTS.
(a) Grantor hereby covenants and agrees that Grantor shall (i) pay all rents, additional rents
and other sums required to be paid by Grantor under and pursuant to the provisions of the Ground Lease as
and when the same shall become due, (ii)promptly and faithfully observe,perform and comply with all of
the terms, covenants and provisions of the Ground Lease on the part of Grantor to be observed,performed
and complied with, at the times set forth therein, and do all things necessary to preserve unimpaired its
rights under the Ground Lease, and(iii)promptly notify Lenders of the giving of any written notice by the
landlord under the Ground Lease to Grantor of any default by Grantor in the performance or observance of
any of the terms, covenants or conditions of the Ground Lease on the part of Grantor to be performed or
observed and deliver to Lenders a true copy of each such notice. Grantor shall not,without the prior written
consent of Lenders, which consent will not be unreasonably withheld or delayed, surrender the leasehold
estate created by the Ground Lease or terminate or cancel the Ground Lease or modify,change,supplement,
alter or amend the Ground Lease, in any material respect, either orally or in writing, and Grantor hereby
assigns (upon occurrence and during the continuance of an Event of Default beyond any applicable notice
and cure period)to Lenders,as further security for the payment of the Obligations and for the performance
and observance of the terms,covenants and conditions of this Deed of Trust,all of the rights,privileges and
prerogatives of Grantor, as tenant under the Ground Lease,to surrender the leasehold estate created by the
Ground Lease or to terminate, cancel,modify, change, supplement, alter or amend the Ground Lease, and
any such surrender of the leasehold estate created by the Ground Lease or termination, cancellation,
modification, change, supplement, alteration or amendment of the Ground Lease without the prior written
consent of Lenders shall be void and of no force and effect. Grantor shall, within ten(10) business days
after written request by Lenders, furnish to Lenders an estoppel certificate, together with such supporting
information and evidence as Lenders may reasonably require which is in the possession or control of
Grantor,concerning Grantor's due observance,performance and compliance with the terms,covenants and
provisions of the Ground Lease.
(b) Tf Grantor shall default beyond any applicable notice and cure period in the Ground Lease
in the performance or observance of any term, covenant or condition of the Ground Lease on the part of
Grantor to be performed or observed, including, without limitation, any default in the payment of rent,
additional rent and other charges and impositions made payable by the tenant under the Ground Lease,then,
in each and every case, without limiting the generality of the other provisions of this Deed of Trust and
without waiving or releasing Grantor from any of its obligations hereunder, Lenders shall have the right,
but shall be under no obligation, at its option and without notice, to pay any sums or perform any act or
take any action as may be appropriate to cause the default or defaults to be remedied and all of the terms,
covenants and conditions of the Ground Lease on the part of Grantor to be performed or observed, to the
end that the rights of Grantor in, to and under the Ground Lease shall be kept unimpaired and free from
default,even though the existence of such event of default or the nature thereof be questioned or denied by
Grantor or by any party on behalf of Grantor. In any such event,subject to the rights of tenants,subtenants
and other occupants under any leases, Lenders and any person designated by Lenders shall have, and are
hereby granted,the right to enter upon the Land at any time and from time to time for the purpose of taping
any such action. Grantor shall,on demand,reimburse Lenders for all advances made and expenses incurred
by Lenders in curing any such default (including, without limitation, attorneys' fees and disbursements),
together with interest thereon at the Default Rate from the date that an advance is made or expense is
incurred to and including the date the same is paid, and such monies so expended by Lenders with interest
thereon shall be secured by this Deed of Trust and by all of the other documents securing all or any part of
the indebtedness evidenced by the Debt Instrument(the "Other Financing Documents"). If the landlord
under the Ground Lease shall deliver to Lenders a copy of any notice of default sent by said landlord to
Grantor, as tenant under the Ground Lease, such notice shall constitute full authority and protection to
Lenders for any action taken or omitted to be taken by Lenders, in good faith, in reliance thereon.
(c) So long as any portion of the Obligations shall remain unpaid, Grantor shall exercise each
individual option,if any,to extend or renew the term of the Ground Lease as provided therein upon demand
by Lenders made at any time within one(1)year prior to the last day upon which any such option may be
exercised, and Grantor hereby expressly authorizes and appoints Lenders its attorneys-in-fact to exercise
any such option in the name of and upon behalf of Grantor, which power of attorney shall be irrevocable
and shall be deemed to be coupled with an interest.
(d) Grantor will not subordinate or consent to the subordination of the Ground Lease to any
mortgage, security deed, lease or other interest on or in the landlord's interest in all or any part of the
Property, unless, in each such case, the written consent of Lenders shall have been first had and obtained,
which consent will not be unreasonably withheld or delayed.
(e) If the Ground Lease is for any reason whatsoever terminated prior to the natural expiration
of its term, and if,pursuant to any provisions of the Ground Lease or otherwise, Lenders or their designees
shall acquire from the landlord thereunder another lease of the Property, Grantor shall have no right, title
or interest in or to such other lease or the leasehold estate created thereby, unless, in each such case, the
written consent of Lenders shall have been first had and obtained, which consent will not be unreasonably
withheld or delayed.
(f) Grantor shall use its diligent efforts to obtain and deliver to Lenders from time to time
within thirty (30) days after written demand by Lenders, but in no event more than once a year unless an
Event of Default shall have occurred and be continuing, an estoppel certificate from the landlord under the
Ground Lease, as requested by Lenders,setting forth(i)the name of the landlord under the Ground Lease,
(ii)that the Ground Lease has not been modified or, if it has been modified, the date of each modification
(together with copies of each such modification), (iii)the basic rent and additional rent payable under the
Ground Lease, (iv) the date to which all rental charges have been paid by the tenant under the Ground
Lease, and (v) whether there are any alleged defaults of the tenant under the Ground Lease or if there are
any events which have occurred which with notice, passage of time or both, would constitute a default
under the Ground Lease, and, if there are, setting forth the nature thereof in reasonable detail.
(g) Lenders shall have no liability or obligation under the Ground Lease by reason of its
acceptance of this Deed of Trust. Lenders shall be liable for the obligations of the tenant arising under the
Ground Lease for only that period of time which Lenders are in possession of the Property or has acquired,
by foreclosure or otherwise,and is holding all of Grantor's right,title and interest therein.
(h) No release or forbearance of any of Grantor's obligations under the Ground Lease,pursuant
to the Ground Lease or otherwise, shall release Grantor from any of its obligations under this Deed of Trust
or the Debt Instruments.
(i) Grantor shall enforce the obligations of the landlord under the Ground Lease to the end
that Grantor may enjoy all of the rights granted to it under the Ground Lease. Grantor will promptly notify
Lenders in writing of any material default by the landlord under the Ground Lease of which it is aware in
the performance or observance of any of the terms, covenants and conditions on the part of such landlord
to be performed or observed under the Ground Lease.
{j) Grantor shall give Lenders prompt notice of the commencement of any arbitration or
appraisal proceeding to which Grantor is a party or of which Grantor has been otherwise notified in writing
concerning the provisions of the Ground Lease. Lenders shall have the right to intervene and participate in
any such proceeding if such proceeding, if adversely determined, would be reasonably expected to have a
material adverse effect on Grantor or the Property,and Grantor shall confer with Lenders and their attorneys
and experts and cooperate with them to the extent which Lenders deem reasonably necessary for the
protection of Lenders. Upon the reasonable request of Lenders,Grantor will exercise all rights of arbitration
conferred upon it by the Ground Lease. If at any time such proceeding shall have commenced, Grantor
shall be in material default beyond any applicable notice and cure period as provided in the Ground Lease
in the performance or observance of any covenant, condition or other requirement of the Ground Lease on
the part of Grantor to be performed or observed or a default shalt have occurred and is continuing beyond
any applicable notice and cure period hereunder, Lenders shall have, and are hereby granted the sole and
exclusive right to designate and appoint on behalf of Grantor, the arbitrator or arbitrators, or appraiser, in
such proceeding.
(k) Grantor will, promptly after the execution and delivery of this Deed of Trust, notify the
landlord under the Ground Lease,in writing,of the execution and delivery of this Deed of Trust and,to the
extent required under the Ground Lease, deliver to the landlord a copy of this Deed of Trust.
32. NON-MERGER OF GROUND LEASE; PARTIAL RELEASE.
(a) So long as any portion of the Obligations shall remain unpaid, unless Lenders shall otherwise
consent in writing, the fee title to the Property and the leasehold estate therein created pursuant to the
provisions of the Ground Lease shall not merge but shall always be kept separate and distinct,
notwithstanding the union of such estates in Grantor, in Lenders or in any other person by purchase,
operation of law or otherwise.
(b) Lenders reserve the right, at any time, to release portions of the Property, including, but
not Iimited to,the leasehold estate created by the Ground Lease,with or without consideration,at Lenders'
election, without waiving or affecting any of its rights hereunder or under the Debt Instruments and any
such release shall not affect Lenders' rights in connection with the portion of the Property not so released.
33. NON-MERGER PROVISIONS. In the event that Grantor shall become the owner and
holder of the fee title to the Property or any other estate, title or interest in the property demised by the
Ground Leases,or any part thereof,causing the leasehold estate created by the Ground Lease to merge into
the fee title to the Property,the lien of this Deed of Trust shall attach to, cover and be a lien upon such fee
title to the Property or other acquired estate,title or interest and the same shall thereupon be and become a
part of the Property with the same force and effect as if specifically encumbered herein. Grantor agrees,at
its sole cost and expense, including, without limitation, payment by Grantor of Lenders' reasonable
attorneys' fees,to (i)execute any and all documents or instruments which Lenders may reasonably require
to subject the fee title to the Property or such other acquired estate,title or interest to the lien of this Deed
of Trust; and (ii)provide a title insurance policy which shall insure that the lien of this Deed of Trust is a
first lien on the fee title to the Property or such other acquired estate, title or interest. Furthermore, if an
Event of Default occurs and continues beyond any applicable notice and cure period, Grantor hereby
appoints Lenders its true and lawful attorneys-in-fact to execute and deliver all such instruments and
documents in the name and on behalf of Grantor. This power, being coupled with an interest, shall be
irrevocable as long as the Obligations secured hereby remain unpaid. Grantor shall not purchase the
premises demised by the Ground Lease, or any part thereof, or acquire the interest of the landlord in such
premises,or any part thereof, or sell its interest in the leasehold estates created by the Ground Lease,or any
part thereof, without Lenders' prior written consent, which consent will not be unreasonably withheld or
delayed.
34. GROUND LEASE BANKRUPTCY PROVISIONS
(a) The lien of this Deed of Trust shall attach to all of Grantor's rights and remedies at any
time arising under or pursuant to Subsection 365(h)of the Bankruptcy Code,including,without limitation,
all of Grantor's rights to remain in possession of the Property.
(b) If the Ground Lease is terminated for any reason in the event of the rejection or
disaffirmance of the Ground Lease pursuant to the Bankruptcy Code or any other law affecting creditors'
rights, (i) Grantor, immediately after obtaining notice thereof,shall give written notice thereof to Lenders,
(ii)Grantor,without the prior written consent of Lenders,which consent will not be unreasonably withheld
or delayed, shall not elect to treat the Ground Lease as terminated pursuant to Section 365(h) of the
Bankruptcy Code or any comparable federal or state statute or law, and any election by Grantor made
without such consent shall be void, and (iii) this Deed of Trust and all the liens, terms, covenants and
conditions of this Deed of Trust shall extend to and cover Grantor's possessory rights under Section 365(h)
of the Bankruptcy Code and to any claim for damages due to the rejection of the Ground Lease or other
termination of the Ground Lease. In addition, Grantor hereby irrevocably assigns to Lenders, Grantor's
rights to remain in possession of the premises demised under the Ground Lease and to offset against the
rent reserved in the Ground Lease under Section 365(h)of the Bankruptcy Code the amount of any damages
caused by the nonperformance by the landlord of any of its obligations under the Ground Lease in the event
any case,proceeding or other action is commenced by or against the landlord under the Ground Lease under
the Bankruptcy Code or any comparable federal or state statute or law, provided that Lenders shall not
exercise such rights and shall permit Grantor to exercise such rights with the prior written consent of
Lenders, not to be unreasonably withheld or delayed, unless an Event of Default shall have occurred and
be continuing.
(c) Grantor hereby assigns to Lenders, (i) Grantor's right to reject the Ground Lease under
Section 365 of the Bankruptcy Code or any comparable federal or state statute or law with respect to any
case, proceeding or other action commenced by or against Grantor under the Bankruptcy Code or
comparable federal or state statute or law,and(ii)Grantor's right to seek an extension of the sixty(60)day
period within which Grantor must accept or reject the Ground Lease under Section 365 of the Bankruptcy
Code or any comparable federal or state statute or law; provided that Lenders shall not exercise any such
right, and shall permit Grantor to exercise such rights with the prior written consent of Lenders, not to be
unreasonably withheld or delayed, unless an Event of Default shall have occurred and be continuing.
Further, if Grantor shall desire to so reject the Ground Lease, Grantor shall give Lenders not less than ten
(10)days prior written notice of the date on which Grantor shall apply to the bankruptcy court for authority
to reject the Ground Lease.Lenders shall have the right,but not the obligation,to serve upon Grantor within
such 10-day period a notice stating that (i) Lenders demand that Grantor assume and assign the Ground
Lease to Lenders pursuant to Section 365 of the Bankruptcy Code and (ii) Lenders covenant to cure or
provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future
performance under the Ground Lease. If Lenders serve upon Grantor the notice described in the preceding
sentence, Grantor shall not seek to reject the Ground Lease and shall comply with the demand provided for
in clause(i)of the preceding sentence within thirty(30)days after the notice shall have been given,subject
to the performance by Lenders of the covenant provided for in clause(ii)of the preceding sentence.
(d) Grantor hereby agrees that if the Ground Lease is terminated for any reason in the event of
the rejection or disaffirmance of the Ground Lease pursuant to the Bankruptcy Code or any other law
affecting creditor's rights, any property not removed by Grantor as permitted or required by the Ground
Lease,shall at the option of Lenders be deemed abandoned by Grantor,provided that Lenders may remove
any such property required to be removed by Grantor pursuant to the Ground Lease and all costs and
expenses associated with such removal shall be paid by Grantor within five(5)business days of receipt by
Grantor of an invoice for such removal costs and expenses.
(The remainder of this page is intentionally blank. Signature page follows.)
IN WITNESS WHEREOF, Grantor, intending to be legally bound,has executed this Deed of Trust
as a SEALED INSTRUMENT or caused it to be executed and ensealed on its behalf by its duly authorized
representatives.the day and year first above written_
Grantor:
DUMONT GROUP PROPERTIES VI, LLC
By: (SEAL)
Name: D I'irai
Title: Manager
STATE OF �_��_ �.�}( )
T ) SS
COUNTY OF p t J )
On the day of � es _in the year 2019, before me,personally came Daniel
S. Piraino,to me known,who,bngby�me duly sworn,did depose and say that he resides in Wilmington,
Delaware; that he is the Manager of Dumont Group Properties VI, LLC, the limited liability company
described in and which executed the above instrument; that he knows the seal of said limited liability
company;that the seal affixed to said instrument is such corporate seal;that it was so affixed by authority
of the members of said limited liability company, and that he signed his nam #ereto by like authority.
(SEAL) -,Q 4 'q' ,a A
otary Public
My Commission Expires: Q
BROOKt LEI Y P BLICSpV D L U Gl�
NOTARY PLE8L1�
STATE Of DELAWARE Printed Name o� Public
MY Gommlss+vn @xP�tes September 70,2021 Votary
Schedule A
LEGAL DESCRIPTION- THE LAND
(See Attached)
Page 22 of 38
"Fo T W TH.
REAL PROPERTY DESCRIPTION
FOR
LEASE SITE 20E
A parcel of land lying and situated in Block 5,Fort worth Spinks Airport as receded in Cabinet
A,Slide 353,Plat IZnDrds of Tarrant County,Texas,and being Snore particularly described by
metes and bounds as follows:
Commencing at a 1/2"iron rod found(control monument)at the northeast comer of said Block 5
and being the northwest corner of that certain Tract 2 called 8.799 acres as conveyed to Phoenix
Industrial Park,LLC,according to the deed recorded at instrument No.D206319454,Deed
Records of Tarrant County,Texas;
Thence:with the common line between said Block 5 and said Tract 2 and generally along a chain
link fence.South 00 degrees 45 minutes 35 seconds West,880.31 feet to a 518"iron rod with
plastic cap stamped"FT wORTbI SURVEY DIVISION"set at the Place of Beginning ofherein
described lease:
Thence:continuing along said common line,South 00 degrees 45 minutes 35 seconds west,
392.94 feet to a 513"iron and with plastic cap stamped"FT WORTH SURVEY DIVISION"set,
fi'om which a 1/2"iron rod found at the southwest corner of said Tract 2 bears Soutb 00 degrees
45 minutes 35 seconds West,152.98 feet;
Thence:North 89 degrees 14 minutes 57 seconds West,404.07 feet to a"X"set in concrete;
Thence:North 00 degrees 45 minutes 35 seconds East,392.84 feet to PK nai[with shiner
stamped"CFW SURVEY-DIV"set in asphalt;
Thence:South 89 degrees 14 minutes 57 seconds East;404.07 feetto the Place of Beginning
containing 158,735 square feet of land,as,surveyed on the ground December 3,of 2014.
Basis ofBeaTings:Spinks Airport control monuments 1,2,&3 as shown on plat recorded in
Cabinet A,Slide 353,Plat Records of Tarrant County,Texas.Distances are ground
weasumaments.
Note_in accordance with the Texas Board of Professional Land Surveying,General Rules of
Procedures and Practices,663,19(9),this"report"consists of the hereon real property
description,and a Map of Survey being attached herewith,as prepared by Marshall Lancaster&
Associates,Inc.,Firm No. 10045100.
....
.. £..
N10HAEL W.CA irOl1N
6143p�'
Michael W.Calhoun
Texas Registered Professional baud Surveyor,No.6143 D sltR�
Date:December 9,2014
mARSHAj,1.LANCASTER&ASSOC3ATES,INC.
CONSULTING LAND SURVEYORS
1864 NORTH NORWOOD DRIVE,SMITE E
HU11ST,TE ,76054
FDtW No.10045100
IfRANSPORTATICINAND PUBLIC WORKS DirPAI TME>w T
Suncvsymo 8)-,MLV1CFs
Tia Ctit of FORT WORN, # 88:',t Camp BuSvta Btvrl SVest * FORr Wom,T'exns 76I76
817 M-7925 " Fax 817-392-7895
*ACS/TRC* TARRANT Doc: 0003055300 Date: 12/30/2016 Vol: 0000000 Page: 00000 Page: 22 Of 38
Page 23 of 38
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*ACS/TRC* TARRANT Doc: 000305300 Date: 12/30/2016 Vol: 0000000 Page: 00000 Page: 23 Of 38
Schedale B
LEGAL DESCRIPTION-THE LEASED PREMISES
(See Attached)
Page 39 of 39
CORRECTED EXHIBIT A
LEGAL DESCRIPTION
Being a 3.644 acre tract of land situated within the Hirman little Survey,Abstract Number 930,Tarrant County,
Texas and being a portion of Block 5, Fort Worth Spinks Airport,an addition to the City of Fart Worth,Tarrant
County,Texas as shown on plat recorded in Cabinet A,Slide 353 of the Plat Records of Tarrant County,Texas,
and being more particularly described by metes and bounds as follows: (Bearings referenced to U.S. State Plane
Grid 1983-Texas North Central Zone(4202)NAD83 as established using GPS Technology in conjunction with
the RTK Cooperative Network,all distances at ground and coordinates are grid)
BEGINNING at a found 518 capped iron rod marked "City of Fort Worth Survey Div."and having a Northing of
6,893,019.33 feet, and an Easting of 2,338,083.32 feet,from which a found 1/2-inch iron rod for the northeast
corner of said Block 5,same being the northwest corner tract of land as described by deed to Phoenix Industrial
Park LLC(Tract II)as recorded in Document Number D206319454 of the Deed Records of Tarrant County,Texas
(D.R.T.C.T.), bears North 00" 13'17"East, a distance of 880.51 feet, said POINT OF BEGINNING being in the
common line between said Block 5 and the said Phoenix Industrial Park tract;
THENCE South 00" 13'17"Vilest,with the said common line,a distance of 392.84 feet to a found 112 capped iron
rod marked"CITY OF FT WORTH SURVEY DIV" and having a Northing of 6,892,626.54 feet,and an Fasting of
2,338,081.80 feet,from which a found 112 inch iron rod for the southeast comer of the said said phoenix Industrial
Park tract bears South 00" 13' 17" West, a distance of 152.98 feet;
THENCE departing the said common line and over and across said Block 5 the following courses and distances:
North 89'47' 15" West,a distance of 404.07 feet to a found X-cut and having a Northing of 6,892,628.04 and an
Easting of 2,337,677,78 feet;
North 00013' 17"East,a distance of 392.84 feet to a found Pk nail with shiner marked"CFW SURVEY DIV"and
having a Northing of 6,893,020.83 feet and an Easting of 2k,337,679.30 feet;;
South 89'47' 15"East, a distance of 404.07 feet to the POINT OF BEGINNING and containing 158,735 square
feet of land and/or 3.644 acres of land, more or less.
Exhibit A{Legal Description) 02271
*ACS/TRC* TARRANT Roc: 000001778 bate: 01/04/2017 Vol: 0000000 Page: 00000 Page: 39 Of 39
Schedule C
PERMITTED EXCEPTIONS
None.
M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
REFERENCE **M&C 20- 55FWS CONSENT TO
DATE: 3/24/2020 NO.: 0202 LOG NAME: LEASEHOLD DEED OF
TRUST DUMONT
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: Authorize the Execution of a Consent to Leasehold Deed of Trust to Enable Dumont
Group Properties VI, LLC to Refinance a Business Loan to Facilitate Development at
Lease Site 20E Located at Fort Worth Spinks Airport (COUNCIL DISTRICT 6)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a Consent to Leasehold Deed of
Trust to Enable Dumont Group Properties VI, LLC to refinance a Business
Loan to facilitate Development at Lease Site 20E, at Fort Worth Spinks Airport.
DISCUSSION:
On December 13, 2016, (M&C C-28043) City Council approved City Secretary Contract No. 48506, a
Hangar and Ground Lease Agreement with Dumont Group Properties VI, LLC, (Dumont), for Lease
Site 20E at Fort Worth Spinks Airport.
On June 6, 2017, (M&C C-28263) City Council approved City Secretary Contract No. 35803, a
Consent to Leasehold Deed of Trust made between Dumont Group Properties VI, LLC, (Dumont),
and Wilington Savings Fund Society, FBS. If the Consent to Leasehold Deed of Trust with Deak
Companies, LLC and Groupo Piraino, LLC is approved by City Council, Wlington Savings Fund
Society, FBS will release the Leasehold Deed of Trust currently recorded for Lease Site 20E and the
lien will transfer to the new lenders.
The Consent to Leasehold Deed of Trust will grant Dumont's lenders, Deak Companies, LLC and
Groupo Piraino, LLC , the right, subject to the previous lien, to operate as Lessee or secure another
tenant in place of Dumont, if previously approved by the City Council, in the event Dumont defaults
on its loan or its lease with the City of Fort Worth. The Lease Agreement prohibits Dumont from
making any assignment of the lease or causing a lien to be made on improvements constructed on
the leased premises without City Council approval. This type of transaction is routine for airport
tenants and Staff has no objection to Dumont's request.
Fort Worth Spinks Airport is located in COUNCIL DISTRICT 6
FISCAL INFORMATIONICERTIFICATION:
The Director of Finance certifies that approval of these recommendations will have no material effect
on the $45,842.64 in annual revenue generated from the lease. Revenues associated with these
Agreements will be included in the upcoming fiscal year's budget and the Aviation Department (and
Financial Management Services) is responsible for the collection and deposit of funds.
TO
Fund Department Account Project Program Activity Budget Reference# I Amount
ID ID Year I (Chartfield 2
FROM
7�F��aID
rtment Account Project Program Activity Budget Reference# Amount I I ID I I Year I (Chartfield 2)
http://apps.cfwnet.org/council_packet/mc review.asp?ID=27771&councildate=3/24/2020 6/3/2020
M&C Review Page 2 of 2
Submitted for City Manager's Office by: Fernando Costa (6122)
Originating Department Head: Bill Welstead (5402)
Additional Information Contact: Ricardo Barcelo (5403)
ATTACHMENTS
http://apps.cfwnet.org/council_packet/mc review.asp?ID=27771&councildate=3/24/2020 6/3/2020