HomeMy WebLinkAboutPR 19408: FUNDING OF THE CONDITONAL LOAN/GRANT AND PERMANENT LOAN WITH NAUTICAL AFFORDABLE HOUSING INC., EDC P. R. No. 19408
5/31/2016
RESOLUTION NO.
A RESOLUTION APPROVING THE FUNDING OF THE CONDITIONAL
LOAN/GRANT AND PERMANENT LOAN BY AND BETWEEN
NAUTICAL AFFORDABLE HOUSING, INC., AND THE CITY OF PORT
ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION,
FOR THE SEAHAWK LANDING STUDENT HOUSING PROJECT AT
LAMAR STATE COLLEGE PORT ARTHUR, PURSUANT TO THE
$1,000,000.00 CONDITIONAL LOAN/GRANT AGREEMENT AND THE
$1,000,000.00 PERMANENT LOAN TO SEAHAWK LANDING LLC
WHEREAS, on March 20, 2014, at a joint meeting with the City of Port Arthur Section
4A Economic Development Corporation (the "PAEDC"), the City Council for the City of Port
Arthur, Texas (the "City") made a motion to approve the City of Port Arthur to give its full
support of the concept of a Grant/Loan in an amount not to exceed Two Million Dollars for the
purpose of student housing in conjunction with Lamar State College Port Arthur; and
WHEREAS, Seahawk Landing LLC is an affiliate of ITEX Development, LLC which
has collaborated with LSCPA and the Texas State University System to develop and construct
the student housing project at LSCPA; and
WHEREAS, Seahawk Landing LLC has a leasehold interest pursuant to a Ground Lease
in certain property in the City on the campus of LSCPA which is under construction for the
development of the Seahawk Landing student housing project; and
WHEREAS, Nautical Affordable Housing, Inc. is a Texas non-profit corporation
("Nautical") whose corporate purpose includes providing assistance to the development of
affordable housing and is a member of Seahawk Landing, LLC and a development partner for
the Seahawk Landing student housing project located at LSCPA; and
WHEREAS, PAEDC has heretofore committed to provide funding to the Seahawk
Landing student housing project as evidenced through a Conditional Loan/Grant Agreement
(the "Agreement") in the sum of$1,000,000 and a $1,000,000 permanent loan; and
WHEREAS, in order to provide development assistance, Nautical has undertaken
certain development and funding obligations for the Seahawk Landing student housing project
as set forth in the executed Agreement attached hereto as Exhibit "A" and made a part hereof
for all purposes; and
WHEREAS, Nautical has executed to and for the benefit of PAEDC in consideration
for the satisfaction of the covenants and conditions of the Agreement, a Conditional
Commercial Promissory Note, Subordinate Leasehold Estate Deed of Trust, Security
Agreement and Financing Statement and Collateral Assignment of Notes and Liens attached
hereto as Exhibits "Bl", "B2" and "B3"; and
WHEREAS, upon completion and acceptance of the Seahawk Landing student housing
project by LSCPA and the Texas State University System, the $1,000,000 Conditional
Loan/Grant Agreement obligations shall be satisfied, and the $1,000,000 in construction funds
shall be a grant to the project; and
WHEREAS, Seahawk Landing LLC has executed a Loan Agreement
(Borrower/Owner), $1,000,000 Promissory Note and a Subordinate Leasehold Estate Deed of
Trust, Security Agreement and Financing Statement attached hereto as Exhibits "Cl". "C2"
and "C3" to evidence the $1,000,000 permanent loan; and
WHEREAS, the City Council finds that approval of the terms, conditions, covenants and
agreements in the Agreement by and between Nautical and PAEDC will provide for the
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a
,
NOES: .
Deloris "Bobbie" Prince, Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED:
/—ee etc---A- --t---
Floyd Batiste,rEDC CEO
APPROVE i • T 4 • ' :
Guy N. Goodson, PAEDC Attorney
APPROVED AS TO FORM:
50 ,-141.04171)
Valecia R. Tizeno, City Attorney
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EXHIBIT " A "
CONDITIONAL LOAN/GRANT AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of the 'i day ofr k.2016,
by and between NAUTICAL AFFORDABLE HOUSING, INC., a Texas non-profit corporation,
with an address of 1885 E. Farragut, Orange, Texas 77630 ("Borrower") and CITY OF PORT
ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORA"f"ION, a Texas
corporation,with an office at 501 Procter, Suite 100,Port Arthur,Texas 77640 ("Lender").
WITNESSETH
A. Borrower is a Texas non-profit corporation whose corporate purposes include
providing assistance to the development of housing in Southeast Texas, and a member of
Seahawk Landing, LLC ("Seahawk Landing").
B. Seahawk Landing is the owner of a leasehold interest pursuant to a Ground Lease
Agreement (as hereinafter defined) in certain property in Port Arthur, Texas, being a part of
Lamar State College Port Arthur ("LSCPA"), which parcels of ground are more particularly
described in Exhibit A-1 (the "Leasehold Premises") and Exhibit A-2 (the "Fee Interest")
attached hereto and made a part hereof(collectively,the"Land").
C. Seahawk Landing is an affiliate of ITEX Development, LLC ("Developer"),
which intends to construct or cause to be constructed a student housing project for LSCPA on a
portion of the Land, together with appurtenant easements, licenses, site improvements and
facilities (the "Development"), pursuant to Development Agreement between TSUS/LSCPA and
the Developer.
D. Lender has agreed to provide to Borrower, a Loan as hereinafter described to be
used to assist in the construction of the Development, appurtenant site improvements and
facilities on the Land as more fully described in Exhibit B attached hereto and made a part
hereof(the "Improvements"). The Land and Improvements are hereinafter collectively referred
to herein as the "Project". The Improvements shall be constructed in accordance with certain
plans and specifications as they relate to the Project hereinafter referred to, together with all
modifications thereto approved to date by the Texas State University System ("TSUS") and
LSCPA(as hereinafter defined)as the"Plans and Specifications".
E. Pursuant to this Agreement, Lender will lend to Borrower funds to facilitate the
construction of the Development in consideration of the Borrower satisfying the terms and.
conditions of this Agreement, which if satisfied, shall convert the Loan (as hereinafter defined)
to a grant in accordance with the authorities provided to the Lender pursuant to Sections
501.007,Texas Local Government Code.
F. Lender is prepared to lend Borrower the sum of ONE MILLION DOLLARS
($1,000,000.00)to assist in the construction of the Improvements. The proceeds of the Loan will
be funded by Lender through its Development Fund and as stated in accordance with Section
501.007, Texas Local Government Code. Such sum shall be evidenced by that certain
Conditional Commercial Promissory Note of even date herewith (the "Note") from Borrower to
Lender.
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G. Borrower has agreed to provide as security for the repayment of the loan, a
Collateral Assignment of Note and Lien, Financing Statement, and Designation of Beneficiary to
Performance and Payment Bonds as more fully described in Section 2.3 of this Agreement.
H. Borrower is operating pursuant to its Certificate of Incorporation under File No.
800089058, Office of the Secretary of State for the State of Texas, as filed in said office on May
31, 2002 and in accordance with the Bylaws of the corporation as duly adopted, and as the
Borrower is further authorized to operate in accordance with its non-profit status as provided
through Department of Treasury Internal Revenue Service under Employer Identification No. 04-
3674725 (the"Governing Documents") as hereinafter described.
I. Borrower covenants and agrees that it may utilize the Loan only for the purposes
of expenditures that are for development or construction of the Improvements and may not be
utilized for any development fees, construction management fees,closing expenses or costs.
J. This Agreement shall set forth the terms and conditions pursuant to which the
Lender shall disburse the Loan.
NOW, THEREFORE,the parties hereto, in accordance with the Recitals set forth above
and the covenants, conditions, and agreements set forth below, intending to be legally bound
is
hereby, and said Recitals being incorporated as fully set forth below in the this Agreement, and
in consideration of the covenants hereinafter contained agree as follows:
ARTICLE I. DEFINITIONS
As used in this Agreement, the following terms shall have the respective meanings
indicated below. Where there are blanks to be completed in any meaning and the words "None"•
or "Not applicable" or "N/A" are inserted, requirements involving the application of that term
are of no effect to the extent that such term would be applicable.
Advance Request-See Section 7.1(a).
Assignments - See Section 2.3(a).
Budgeted Category- See Section 5.2.
Budgeted Loan Amount- See Section 5.2.
Building Contracts -means all construction management contracts, general and/or
other construction contracts, architects' contracts, if any, and interior design
contracts, if any, which Borrower now has or will hereafter enter into m
connection with the construction of the Project.
CBOT-CommunityBank of Texas,N.A.
CBOT Loan Documents—means those documents evidencing that certain loan of
from CommunityBank of Texas,NA. to the Partnership.
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Commencement Date - means not later than March 7,2016.
Commitment for Title Insurance - See Section 4,4(a).
Completion Date—means August 15,2016.
Contractor - means the Borrower which shall serve in order to achieve cost
savings on the Project. Contractor shall have the right to engage a Primary Sub-
Contractor (as defined herein). ICON Builders, L.L.C., Borrower's construction.
manager, and/or such contractor(s)as Lender shall designate.
Cost Breakdown - means the itemized breakdown of costs which sets forth, under
the separate columns entitled and hereinafter sometimes referred to as, the
"Estimated Cost Amount"and the"Budgeted Loan Amount".
Default Rate-means that rate specified as the Default Rate in the Note.
Direct Costs- See Section 5.2.
Estimated Cost Amount-See Section 5.2.
Event of Default- See Section 8.
Fee Interest - means the tract of land located in Port Arthur, Jefferson County,
Texas,and which is more particularly described in Exhibit A-2 hereto.
Governing Documents - means the articles of incorporation and by-laws of
Borrower.
Ground Lease - means that certain ground lease of the Land dated as of even date
herewith from Lamar State College Port Arthur("LSCPA")acting by and through
the Texas State University System("TSUS"),to Seahawk Landing, as tenant.
Hazardous Substances - means those elements and compounds which are s_
designated as such in Section 101(14) of the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Section 9601
(14) and any other hazardous substances as that term may be further defined in
applicable federal, state or local laws.
Hazardous Waste - means any hazardous waste, residual waste, solid waste or
other waste as those terms are defined in applicable federal,state or local laws.
Improvements-means the Improvements referred to and described in Exhibit B.
Indirect Costs-See Section 5.2.
Land-means the land referred to and described in Exhibit A-1.
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Leasehold Premises —means the 2.204 acre (more or less)tract of land, which is
located in Port Arthur, Jefferson County,Texas and more particularly described in
Exhibit A-1.
Loan-means the sums to be loaned as set forth in.Recital F above.
Loan IJocuments- See Section 2.3.
Mortgage - means the Subordinated Leasehold Deed of Trust and Security
Agreement of even date herewith from Seahawk Landing to Borrower covering,
among other things, the leasehold interest in the Leasehold Premises and the
Improvements, and all amendments, supplements, restatements, renewals, and
extensions thereof
Note - means the promissory note of even date herewith given by Borrower as
maker to Lender as payee referred to in Recital F above.
Plans and Specifications - means the Plans and Specifications referred to in
Recital D above.
Primary Sub-Contractor —means ICON Builders, L,L.C., a Texas limited liability
company.
Project - means the Land and Improvements as set forth in Recitals B and D
above.
Project Costs - means any item or cost intended or required to be incurred to lx
complete the Improvements and to carry the Project and to service the Loan for ss'
the period from the initial advance hereunder until the Completion Date.
Survey-means the survey required by Section 4.4(f)herein.
Title Insurer- See Section 4.4(a).
ARTICLE II. THE LOAN
2.1 Purpose and Amount.
Ix
(a) Lender, pursuant to Article VII of this Agreement and in accordance with
the itemized Cost Breakdown attached hereto as Exhibit C and made a part hereof. The Loan
shall be advanced by Lender and used upon the conditions and subject to the provisions
hereinafter set forth. Borrower or its duly assigned agent or trustee will transfer the Loan
proceeds in accordance with the Cost Breakdown.
(b) Additional funding for the construction of the Development is being
provided as follows:
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(i) A loan from the CommunityBank of Texas,N.A. ("CBOT") in the
original principal amount$4,000,000(the"Loan");
(ii) A subordinated loan from Lender to Seahawk Landing in the
original principal amount of$1,000,000("Subordinated Loan"); and
(in) Developer Equity in the amount of$935,160.
2.2 Note and Mortgage. Borrower has executed the Note in the amount of the Loan;
however, if the covenants, conditions, and agreements contained herein are satisfied and TSUS
and LSCPA provide written acceptance to Lender of the Development for student housing,
Lender shall cancel the Loan and provide the$1,000,000.00 in proceeds of said Loan as a grant
to the Development.
2.3 Security for Loan. As security for the Loan as evidenced by the Promissory Note,
and for Borrower's obligations thereunder and hereunder, Borrower shall deliver, or cause to be
delivered,to Lender at or before closing hereunder, the following documents (which documents,
together with the Note, this Agreement and all other documents relating to the Loan, are
collectively called the"Loan Documents"):
(a) Collateral Assignment of Note and. Lien as to the Subordinated Deed of
Trust, Security Agreement & Financing Statement as executed by between Seahawk Landing,
LLC and Nautical Affordable Housing,Inc. (the"Mortgage").
(b) Financing Statements to be filed in such public offices as Lender and
Lender's counsel may deem necessary to perfect a security interest in any of two items referred
to in the Mortgage.
(c) Designation as Beneficiary in and to Performance and Payment Bonds to
which Developer and/or Seahawk Landing shall become an insured parties as required by
Section 4.4(i)in this Agreement.
(d) Commitment for Title Insurance. The document described in
Section 4.4(a).
ARTICLE III. BORROWER'S REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties. Borrower specifically represents and warrants
to Lender that as of the date of this Agreement and as of the date of each advance of the Loan:
(a) Borrower (i)has full power and authority to engage in all the transactions
contemplated by this Agreement and (u)has full power, authority and legal right to execute and
deliver, and to comply with its obligations under the Loan Documents, which documents
constitute the legally binding obligations of Borrower, enforceable against Borrower in
accordance with their respective terms.
(b) There is no suit, action, or proceeding pending, or to the best of
Borrower's knowledge, threatened against or affecting Borrower, Seahawk Landing, the Land or
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Improvements before or by any court, administrative agency or other governmental authority
which brings into question the validity of the transactions contemplated hereby or would
interfere with the ability of Borrower to comply with the terms hereof
(c) Borrower is a corporation, duly organized, validly existing, in good
standing under the laws of the state of its incorporation, is qualified to do business and is in
active status in the state in which the Project is located with full power and authority to
consummate the transactions contemplated hereby;
(d) Neither the execution nor delivery of this Agreement, the Note, the
Mortgage, the Assignments or any other Loan Documents or the security or collateral relating
hereto or thereto will conflict with or result in a breach of any of the provisions of the Governing
Documents or of any applicable law,judgment,order, writ, injunction, decree, rule or regulation
of any court, administrative agency or other governmental authority, or of any agreement or
other instrument to which Borrower is a party or by which Borrower is bound, or constitute a
default under any of the aforementioned or result in the creation or imposition of any lien, charge
or encumbrance upon any property of Borrower or the Land and/or Improvements, or any other
property of Borrower other than those in favor of Lender.
(e) No consent, approval or other authorization of or by any court,
administrative agency or other governmental authority or any other entity is required that
remains outstanding in connection with the execution or delivery by Borrower of the Loan
Documents, or compliance with the provisions hereof or of any of the Loan Documents.
(f) All approvals from governmental or quasi-governmental authorities
having jurisdiction over the Land and Improvements, including, but not limited to, building
permits, street openings or closings, zoning or use permits, variances or special exceptions,
zoning reclassifications, setback requirements however established, and approvals of any
applicable insurance underwriters necessary as of the date of this Agreement to commence
construction of the Improvements have been obtained (or will be obtained) and remain in full
force and effect without restriction or modification.
(g) All balance sheets, earnings statements and other financial data which
have been or shall hereafter be furnished to Lender to induce it to enter into this Agreement or
otherwise in connection herewith or with the Loan Documents, do or will fairly represent the
financial condition of Borrower as of the respective dates thereof and the results of its operations
for the period for which the same are furnished to Lender and have been or will be prepared in
accordance with generally accepted accounting principles consistently applied, except as
disclosed to Lender, and all other information, reports and other papers and data furnished to
Lender are or will be, at the time the same are so furnished, accurate and correct in all material
respects and complete insofar as completeness may be necessary to give Lender a true and
accurate knowledge of the subject matter. There are no material liabilities of any kind as of the
date of the most recent financial statements which are not reflected therein.
(h) The construction of the Improvements funded through proceeds of the
Loan shall be performed in conformity with all applicable statutes, laws, codes, rules,
regulations,resolutions and ordinances, and the Plans and Specifications.
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(i) The Plans and Specifications, as of the date of this Agreement, have been
approved by all applicable governmental authorities. All construction, if any, heretofore
performed on the Improvements has been performed within the perimeter of the Land in
accordance with the Plans and Specifications and all applicable governmental authorities, and in
accordance with any restrictive covenants applicable thereto. The anticipated use of the
Improvements complies with applicable zoning ordinances and all regulations affecting the
Project and all governmental requirements for such use as of the date of this Agreement have
been satisfied.
(j) There is no default on the part of Borrower under this Agreement, the
Note, the Mortgage, or any of the other Loan Documents, and no event has occurred and is
continuing which with notice or the passage of time would constitute a default thereunder.
(k) The Borrower is not in default with respect to any order, writ, injunction,
decree or demand of any court or any governmental authority.
(l) Seahawk Landing has a leasehold title to the Land and title to all other
collateral given as security to Borrower and collaterally assigned to Lender, free and clear of all
mortgages, pledges, liens, security interests or other encumbrances, except for the CBOT Loan
the Subordinated Loan and Permitted Encumbrances(as defined in the Ground Lease).
3.2 Survival of Representations and Warranties. All of the representations and
warranties of Borrower as set forth in this Agreement shall survive the making of this
Agreement and the full repayment of the Loan and shall be continuing. Each and every
Advance Request submitted by Borrower for funds under this Agreement shall constitute a
new and independent representation and warranty to Lender with respect to all of the matters
set forth in this Agreement,as of the date of such application.
ARTICLE IV. CONDITIONS PRECEDENT
The obligations of Lender to make the initial advance to Borrower and all additional
advances under the Loan is subject to each of the following conditions precedent:
4.1 Representations and Warranties. The representations, covenants and
warranties made by Borrower in this Agreement shall be true and correct in all material
respects on and as of the date of each such advance.
4.2 No Event of Default. There shall be no Event of Default under any of the Loan
Documents (or an event which would be an Event of Default but for the passage of time or the
giving of notice or both).
4.3 Delivery of Loan Documents. All of the Loan Documents shall have been duly
executed and delivered to Lender, and the Mortgage, financing statements and other
recordable Loan Documents, shall have been recorded in the appropriate public offices or if
not so recorded then the Title Insurer will insure any applicable"gap" in a manner satisfactory
to Lender in its sole discretion.
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4.4 Delivery of Other Documents. Borrower shall have delivered, or caused to be
delivered,to Lender the following, unless otherwise waived by Lender:
(a) Commitment for Title Insurance. A marked-up commitment for title
insurance (the "Commitment for Title Insurance') issued by a title company or companies
acceptable to Lender(the "Title Insurer"), representing Title Insurer's commitment to issue, in
favor of Lender, but at the expense of Borrower, a standard mortgagee title insurance policy,
insuring the lien of the Mortgage as a third mortgage lien on Seahawk Landing's interest in the
Land and the Improvements, free and clear of all prior liens and encumbrances (including
possible mechanics' or construction liens) other than CBOT's lien, the Subordinated Loan, and
also subject to such objections and exceptions as are reasonably acceptable to Lender and its
counsel and which policy shall contain such endorsements as Lender shall require in its
reasonable discretion. At Lender's option, such title policy shall include a pending
disbursements clause in form reasonably acceptable to Lender. In connection with each advance,
Lender shall at its option receive a notice of title continuation or an appropriate endorsement
from the Title Insurer(i) indicating that, since the last preceding disbursement, there has been no
change in the state of title theretofore approved by Lender (including, without limitation, no
mechanics' or construction lien, notice of unpaid balance and right to file lien or other notice or
claim in connection therewith), (ii) increasing the coverage of the policy by an amount equal to
the disbursement then being made,so that the total amount insured equals the total amount of the
Loan disbursed by Lender, and (iii) changing the effective date of the policy to the date of
disbursement. In addition, at its option, Lender may require the Title Insurer to obtain
co-insurance or reinsurance in such amounts as Lender shall reasonably determine.
(b) Property and Liability Insurance. A policy or policies of fire insurance
with extended coverage, "builder's risk" insurance, and coverage against such other risks as
CBOT shall require, workers compensation, contingent and public liability insurance and such
other insurance (including federal flood insurance if required by law) as CBOT may require,
covering any loss or damage to the Improvements or to persons or other property in, on, or about
the Land and Improvements during the period of construction and thereafter, howsoever such
loss or damage may arise, such insurance to be issued in such form and placed with such
companies and in such amounts as Lender shall reasonably_require. All premiums required to
maintain all such insurance in full force and effect shall be paid by Developer and/or Seahawk
Landing,and evidence of payment shall be furnished by Borrower to Lender. All such insurance
shall be maintained in such form as to be available to and for the protection of Borrower and
Borrower's agents as its interests may appear, and shall contain provisions allowing the insured
to complete the construction provided for under this Agreement and the Building Contracts
executed for the Development and shall cover materials on the Land during construction. All
such policies shall contain a non-contributory mortgagee clause acceptable to Lender making
losses payable thereunder, without contribution or assessment, and shall obligate the insurer to
give not less than thirty (30)days' notice to Lender prior to expiration or cancellation of such
policies or material change in the coverage thereof All of the proceeds of such policies as to the
interests of Borrower are hereby assigned by Borrower to Lender as collateral security for the
repayment of the Loan. Receipt of insurance policies acceptable to Lender shall not thereafter
bar Lender from requiring additional insurance,as Lender may deem necessary or desirable from
time to time. Lender's rights under the insurance policies shall be subordinate to those of CBOT.
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(c) Building Contracts. Executed copies of all Building Contracts necessary
to complete the Project, together with a list thereof and a list of all engineers, architects,
contractors, and subcontractors in connection with the construction of the Improvements.
(d) Permits. Copies of building permit or permits, site plan approval,
approved plat, planning, zoning, subdivision, use, federal and state environmental, and all other
permits and approvals with respect to the construction and operation of the Improvements and
such other evidence as Lender may reasonably require showing the construction of the
Improvements and uses thereof are permitted by and comply with all applicable statutes, codes,
laws,rules,regulations,ordinances and resolutions.
(e) Utilities. Evidence that water, sewer, electrical and other utilities are
available in adequate capacities and are either in existence or will be available to the Land so that
they can be accessed for use at the Project upon completion of the Improvements.
(f) Survey. A survey of the Land showing any encroachments by or on the
Land or any existing improvements thereon, discrepancies or conflicts in boundary lines, the
location of the foundations of the Improvements and all easements and rights of way affecting
the Land. Such survey shall be certified to Lender and to Title Insurer by a licensed surveyor or
civil engineer and dated not more than ninety(90) days prior to Closing.
(g) Opinion of Borrower's Counsel. The opinion(s) of Borrower's counsel
dated as of the date hereof and in form and substance reasonably satisfactory to Lender and
Lender's counsel.
(h) Governing Documents. Certified copies of the Governing Documents,
any amendments thereto and the certificates thereof and such other documents, active status
certificates, authority to do business in a foreign jurisdiction, incumbency certificates, certified
resolutions, or authorisations as may be required to establish the power and authority of
Borrower and its members, general partners and/or controlling shareholders to execute and
deliver the Loan Documents(as applicable).
(i) Bonds. Contractor shall be required to obtain a surety bond which shall
include coverage for the Contractor's or Primary Sub-Contractor's faithful performance and
completion of its work (including defects arising within the guarantee period) and a separate
labor and material payment bond covering the payment of all obligations arising in connection
therewith, each of which shall be in the amount of the contract price. The surety bonds shall be
issued by companies and in amounts and in form satisfactory to Lender in its sole discretion.
4.5 Fees, Charges and Premiums. Borrower shall provide evidence that all
recording, filing and conveyancing in connection with the closing, including, without
limitation title insurance fees, costs or premiums assessed against Borrower have been paid.
4.6 No Damage or Taking. No portion of the Improvements shall have been
damaged by fire or other casualty which is not covered by insurance and no condemnation or
taking of the entire Project or any portion thereof which would result in the termination of
Seahawk Landing's leasehold estate in the Land shall be pending or threatened.
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4.7 Licenses and Permits. All licenses, permits, consents, approvals and
authorizations for the construction of the Improvements necessary as of the date of this
Agreement shall be in full force and effect and no notices of violation or revocation with
respect thereto shall have been received.
ARTICLE V. AMOUNT; COST BREAKDOWN; BORROWER'S INVESTMENT
5.1 Funding. Lender agrees to lend and Borrower agrees to borrow (subject to the
terms and conditions herein set forth), a sum aggregating not in excess of the Loan which
sums shall be disbursed by Lender in connection with the terms and conditions of this
Agreement. Lender shall have the right, but not the obligation, after occurrence of an Event
of Default to fund amounts in excess of the Loan, to pay accrued and unpaid interest, to
complete construction of the Improvements, or to correct any defaults under any of the Loan
Documents (provided, however, that no such corrective action taken by Lender shall be
deemed to cure.Borrower's default). Any excess amount so funded shall be evidenced by the
Note to the fullest extent possible and by this Agreement. Such excess amount shall bear
interest at the Default Rate specified in the Note and shall be secured by the Mortgage, the
Assignments and the other Loan Documents. Borrower hereby agrees to execute additional.
notes, mortgages and other additional documents and modifications thereto, evidencing and
securing amounts funded in excess of the Loan,promptly upon request by Lender.
5.2 Cost Breakdown. The Cost Breakdown that has been prepared by Seahawk
Landing and approved by TSUS & LSCPA in the form attached hereto as Exhibit C is a
breakdown of Project Costs and sources and uses of funds (including categories sometimes
hereinafter referred to as the "Estimated Cost Amount" and the "Budgeted Loan Amount")
and the constituent amounts allocated to each category of cost shown therein (a `Budgeted
Category"). The Budgeted Categories have been grouped or classified in the Cost Breakdown
and such groupings are herein sometimes referred to as the "Direct Costs" and the "Indirect
Costs".
5.3 Exceeding Budgeted Amounts, Reallocation. Lender is not obligated to pay
out or advance proceeds of the Loan for the payment of any Project Costs which exceed the
Budgeted Loan Amount for the applicable Budgeted Category. If at any time during the
existence of this Agreement, the undisbursed balance of the Budgeted Loan Amount for any
Budgeted Category is, in Lender's reasonable judgment, excessive, that excess may be
reallocated, with the approval of Borrower, which approval shall not be unreasonably
withheld, to any other category as to which the Budgeted Loan Amount is deemed to be
insufficient. Disbursements shall be made from the "contingency" and "miscellaneous"
categories of the Cost Breakdown if any, only for such costs as Lender, in its reasonable
discretion,may approve in advance in writing.
ARTICLE VI. CONSTRUCTION AND CONDUIT COVENANTS
While Developer is responsible for the construction of the Improvements at the Project in
conjunction with Contractor, Borrower agrees to the following conduit covenants which it shall
either assume as herein stated or shall assure performance by Developer or Seahawk Landing to
enable the disbursement of funds as provided in Article VII of this Agreement:
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6.1 Commencement, Prosecution and Completion of Construction. Developer
shall cause the Contractor to commence the construction of the Improvements according to
the Plans and Specifications by the Commencement Date, and to proceed diligently,
employing sufficient workers and supplying sufficient materials for that purpose, so that the
Improvements shall be completed no later than the Completion Date.
6.2 Extras and Change Orders. Except to the extent otherwise provided in Section
9.14 of this Agreement, no extra work or change orders shall be ordered by Developer and/or
Seahawk Landing or furnished by the Contractor, nor shall any change in the Plans and
Specifications or supplements thereto be made without first obtaining written approval of
Lender, which such approval not to be unreasonably withheld, delayed or conditioned. Before
Lender shall be required to consider any such change,plans or bids,Borrower shall furnish to
Lender any other information or documentation reasonably requested by Lender respecting
the proposed extra work or change.
6.3 Conduit Covenants. Borrower covenants that it shall assure that as to the
Project:
(a) All materials and labor to be used in the construction of the Improvements
shall be in accordance with the Plans and Specifications, and the Improvements will be
completed in accordance with the Plans and Specifications and supplements thereto,as well as
with all applicable building codes and regulations and all other applicable governmental and
quasi-governmental requirements including the requirements of any applicable insurance
underwriters. The construction shall proceed diligently and continuously and that such
construction will be completed by the Completion Date. Construction of the Improvements shall
be performed, free and clear of liens or claims for liens for material supplied and for labor or
services performed in connection with the construction of the Improvements. All payments of
worker's compensation premiums, Social ,Security taxes, withholding taxes, all other taxes,
unemployment compensation premiums and any charges which may constitute a lien on the
Project shall be paid timely.
(b) Any structural defect in the Improvements or any material departure from
the Plans and Specifications other than any change approved in accordance with this Agreement
shall be corrected. The advance of any proceeds of the Loan shall not constitute a waiver of
Lender's right to require compliance with this covenant with respect to any such defects or
departures from the Plans and Specifications.
(c) All easements affecting the Project shall be submitted to Lender shall be
accompanied by a drawing or survey showing the location thereof.
(d) Any and all governmental requirements shall be met and Lender, upon
request, shall be furnished with copies of official inspection reports made by any governmental
authority.
(e) Borrower will permit Lender,or its representatives,to enter upon the Land
during business hours to, inspect the Improvements and all materials to be used in the
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construction thereof and to examine all detailed plans and shop drawings which are or may be
kept at the construction site.
(f) All taxes and recording expenses, including documentary stamp taxes, if
any; and all costs associated with loan disbursements including, without limitation, all title
search costs and the fees and shall be paid as incurred.
(g) The Improvements when erected will be within all building setback lines,.
and the Improvements will not violate applicable use, construction or other restrictions, zoning
laws or regulations. Upon their completion, Lender shall be provided with an as-built survey by
a registered surveyor or engineer, (i) showing that the construction is entirely on the Land and
free from any such violations, and does not encroach upon or overhang any easements,
rights-of-way, or land of others,and(ii)containing and/or showing such other matters and detail
as Lender may reasonably require.
(h) All requirements of any governmental or quasi-governmental agency,
authority or department in connection with the construction of the Improvements shall be met,
including obtaining all required permits, licenses and approvals, and such additional permits or
approvals as may he required at any time after the date of this Agreement.
(i) On or before the Completion. Date, Borrower or Seahawk Landing shall
deliver to Lender certificates of occupancy issued by the public authorities having jurisdiction
over the Land and Improvements confirming that construction of the Improvements has been
completed in accordance with all applicable requirements.
(j) Payments to Contractor, or any subcontractors, laborers or materialmen
shall be made, when due, and to obtain and deliver to Lender and the Title Insurer, lien waivers,
subordinations of lien, releases of liens, releases of notices of unpaid balance and right to file
lien, affidavits of payment and any and all other documents and instruments necessary to induce
the Title Insurer to at all times insure the lien of the Mortgage free and clear of mechanics' and
materialmens' liens and the like. Borrower shall furnish to Lender and file with public
authorities as appropriate such lien waivers, subordinations of lien, affidavits, and/or releases,
together with paid receipts, as Lender and/or the Title Insurer and/or other applicable title
insurance companies may require prior to the commencement of construction of the
Improvements and from time to time thereafter to assure proper expenditure of advances made or
to be made by Borrower hereunder.
(k) Borrower will deliver to Lender upon request, copies of any contracts,
bills of sale, statements, receipted vouchers or agreements,under which Borrower claims title to
any materials, fixtures or articles incorporated in the Improvements or subject to the lien of the
Mortgage.
(1) Without the prior written consent of Lender which consent shall not be
unreasonably withheld, Borrower will not execute any contract or become a party to any
arrangement for the performance of construction work at the Project except with Contractor.
(m) Borrower agrees to make its books and accounts relating to the Project
available for inspection by Lender or its representatives upon reasonable request.
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(n) During the course of construction of the Improvements, Borrower shall
provide Lender with such additional surveys as requested by Lender, in its reasonable discretion,
or by the Title Insurer, including but not limited to a revised survey showing the location of
foundation(s)when completed at Seahawk Landing's expense.
(o) Lender shall not be required to make advances in excess of the Loan,
regardless of any approvals by Lender of change orders subject, however, to the right of
Borrower to reallocate certain portions of budgeted Categories, which reallocation shall be
submitted to Lender for reasonable review and approval.
6.4 Negative Covenants. In addition to those provisions contained elsewhere in
this Agreement,Borrower agrees not to do any of the following without Lender's prior written
consent which consent shall not be unreasonably withheld:
(a) Amend, or permit to be amended in any material respect, the Plans and
Specifications,any of the Building Contracts or any other document referred to herein.
(b) Grant or acquiesce in granting any easement with respect to the Project.
(c) Assign, pledge or encumber this Agreement or any funds held pursuant
hereto. No such assignment,pledge or encumbrance shall be effective.
(d) Commence or permit the commencement of any work with respect to any
particular segment of construction until the Plans and Specifications for such segment shall have
been submitted to and approved by TSUS,College and CBOT.
(e) Either (i)store, use or generate any Hazardous Substance in or on the
Project except in such amounts as are ordinarily used, stored or generated in similar projects;
(ii)treat or dispose of any Hazardous Waste in or on the Project; and(iii) nor will Borrower, for
more than the maximum period of time allowed by the applicable federal, state or local law,
without being required to obtain a permit or approval, therefore, store any Hazardous Waste or
Hazardous Substance in or on the Project, but in no event will Borrower store any Hazardous
Waste or Hazardous Substance in or on the Project for more than ninety(90) days. Lender
reserves its right, as a condition to approving any of the foregoing, to require written
confirmation in the form reasonably acceptable to Lender and its counsel that: (x)Borrower has
obtained all necessary permits and approvals to perform such activities; and (y) Borrower will
perform such activities in material compliance with all applicable laws in a safe and effective
manner that will not endanger persons or property and will not materially diminish the value of
any collateral or other security provided by Borrower to Lender to secure any and all advances
hereunder.
6.5 Other Covenants. Borrower further covenants as follows:
(a) As of the date of closing hereunder, there shall be no lien or security
interest held by any third party with respect to the Land or Improvements or any item or
property, whether or not a fixture, installed thereon or stored on such site, other than those
permitted under the Loan Documents, the CBOT Loan Documents, the Subordinate Loan
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documentation, and the Ground Lease, and Borrower shall keep such property free from any
other hen or security interest.
(b) Borrower shall not undertake additional financing in the future secured by
any lien or security interest on the Land, or any other real or personal property encumbered in
favor of Lender to secure the Loan, without first obtaining Lender's written consent which
consent shall not be unreasonably withheld.
ARTICLE VII. 'DISBURSEMENTS
7.1 Advances by Lender. Subject to the terms and conditions hereof, Lender shall
undertake to disburse the proceeds of the Loan from time to time in connection with
construction costs of the Improvements and other development costs, all as described in the
Cost.Breakdown,as each such portion of construction is completed. The obligation of Lender
to make any such disbursement is conditioned upon a request of Borrower, delivery by
Borrower and approval by Lender of the items required pursuant to Section 4 hereof,
satisfaction of all other conditions to disbursements set forth herein, delivery of the items
specified below and the satisfaction by Borrower of all of its conduit or other covenants,
agreements and obligations under this Agreement and the other Loan Documents.
(a) Requisition. At least ten (10) business days prior to the date on which fk
Borrower desires a disbursement, Borrower shall submit to Lender (i)the requisition submitted
to CBOT on AIA Form G702/G703 or such other form as designated by CBOT, signed by the
Contractor and Bonower's architect and notarized, accompanied by original lien waivers for the
prior period(as provided under Section 7.1(c))and original change orders, and copies of invoices
for indirect construction costs, and such other information and documentation required
hereunder, signed by Seahawk Landing, the Contractor and Project architect ("Advance
Request"); and (ii) a revised project budget showing the total project costs to date and the
balance of each category of construction costs.
(b) Timing. Requests for disbursements shall not be made more often than
once a month and the amount advanced shall be subject to retainage as set forth in Section 7.3
below until the retainage disbursement is made. Prior to each disbursement, Lender may inspect
the Improvements to verify the accuracy of all other reports,requests or documents submitted by
Borrower.
(c) Lien Release. If requested by Lender, Borrower shall furnish Lender with
a schedule identifying all contractors or subcontractors who have performed work or furnished
materials in connection with the Improvements, together with lien waivers from the Contractor
and all subcontractors who have performed work or furnished materials in connection with the
Improvements, current through the end of the previous period covered by Borrower's prior
requisition.
7.2 Other Conditions for Disbursements. Advances hereunder shall be in amounts
not exceeding the cost in the Lender's reasonable judgment, of labor furnished and materials
physically incorporated into the Improvements, that Seahawk Landing has reasonably
expended therefor,it being expressly understood that under no circumstances shall the Lender
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be obligated to advance from proceeds of the Loan an amount for any items of Direct Cost in
excess of the Budgeted Loan Amount for the item. Lender shall not be required to make
disbursements for costs incurred by Borrower with respect to material stored on or off the
Land unless Lender shall, in its reasonable discretion, deem it advisable to do so. Each
Advance Request shall constitute a representation that the work done and the materials
supplied to date are in accordance with the Plans and Specifications; that the work and
materials for which payment is requested have been physically incorporated into the
Improvements and that its value is as stated; that such work and materials conform with all
applicable rules and regulations of the public authorities having jurisdiction over the Land and
Improvements; and that payment for the work or materials described in such Advance Request
has been made or will be made with the proceeds of the advance in connection with which the
Advance Request is submitted. Disbursement of proceeds of the Loan will also be contingent
upon a continuation of title to the date of each disbursement showing: (1) leasehold title
vested in Seahawk Landing; (2) that all real estate taxes have been paid to date; (3) the filing
of no mechanic's or construction lien or notice of unpaid balance and right to file lien; and(4)
no exceptions to title other than those previously approved by Lender. During the course of
construction of the Improvements,Borrower shall provide to Lender monthly reports in form
satisfactory to Lender indicating the projected disbursements of the Loan from the
undisbursed balance of proceeds of the Loan. All costs associated with loan disbursements
including, without limitation, title search and inspection fees, shall be paid by Borrower or
Seahawk Landing.
7.3 Retainage. Lender reserves the right, at its own discretion and without liability
to Borrower, to withhold from the amount of any advances made hereunder for or with respect
to Direct Costs (pending completion of construction of the Improvements in accordance with
the Plans and Specifications)ten percent (10%) of each request for an advance; except,that if
upon completion of 50 percent of the construction of the Improvements in accordance with
the Plans and Specifications, Lender may make the remaining payments in full for the work
subsequently completed. If the Lender subsequently determines or is advised that the
Contractor's performance and progress are unsatisfactory, Lender shall reinstate the ten
percent (10%) retainage until such time as Lender determines that performance and progress
are satisfactory.
7.4 Retainage Payment. In the case of advances of any of the retainage of the
proceeds of the Loan, any other retainages by CBOT, and any balance of proceeds to be
advanced under the Loan, it shall be a condition precedent to each such advance that Lender
shall have also received:
(a) Evidence of the approval by all applicable governmental authorities of the
Improvements in their entirety for permanent occupancy to the extent any such approval is a
condition of the lawful use and occupancy of the Improvements, any and all certificates of
occupancy and other permits and approvals required by any governmental authority, and
evidence of such approval by the local Board of Fire Underwriters or its equivalent and evidence
of the approval of the contemplated use thereof by all applicable governmental authorities;
(b) Written acceptance by TSUS/LSCPA to the effect that the Improvements
have been completed in accordance with the PIans and Specifications;
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(c) A final as-built survey showing the completed Improvements and all
easements;
(d) The full and complete release of all liens and the right to lien the.Project in
connection with any and all work performed,or labor and materials supplied, for the Land or the
Improvements to the extent then permitted by law; and
(e) Such other information and documentation as may be reasonably
requested by Lender.
7.5 Absence of Certain Events; Material Damage. If, at the time any advance is
requested, any event shall have occurred and be continuing which,with the passage of time or
the giving of notice or both,would be an Event of Default (as hereinafter defined) hereunder,
then Lender shall have no further obligation to make any further advances unless such event
shall be cured before it gives rise to an Event of Default. Furthermore, if the Project shall
have suffered any material damage or destruction prior to any disbursement,such damaged or
destroyed portion shall be restored or replaced in a manner reasonably acceptable to Lender
without cost to Lender prior to any further disbursement from Lender.
7.6 Liens. If any mechanics' or construction lien or claim of mechanics' or
construction lien or if applicable any other notice or claim including without limitation any
notice of unpaid balance and right to file lien shall be filed against the Land or Improvements
or any interest therein by reason of work, labor, services, or materials supplied or claimed to
have been supplied, and if such lien, claim or notice is not fully and finally discharged,
released or withdrawn as applicable against the Land and Improvements in a manner
reasonably satisfactory to Lender within sixty (60) days after such lien, claim or notice shall
have been filed and Borrower shall have received actual notice of the filing thereof, then
Lender,at its option, may (a)pay and discharge any lien, in which case the sum which Lender
shall have so advanced shall be due immediately from Borrower to Lender, shall be secured
by the Mortgage, and shall bear interest at the Default. Rate from the date of payment by
Lender until the date of repayment, and/or (b)treat such occurrence as an Event of Default
hereunder.
7.7 No Approval. The making of any advance by Lender shall under no
circumstances be deemed an approval or acceptance by Lender of any work done prior
thereto. Although Lender may inspect the Plans and Specifications, Project Cost estimates
and budgets, the course of developmental activities, and other matters pertaining to the Loan,
such inspections are solely for the protection of Lender as Lender and Borrower shall have no
right to rely thereon. Borrower hereby confirms that Lender is not making and will not make �=
any representations and warranties as to any matters respecting the Loan, including, without
limiting the generality of the foregoing,the sufficiency of the Loan,the adequacy of any Plans
and Specifications,or the proper performance of any construction work.
ARTICLE VIII. DEFAULTS
8.1 Events of Default. The occurrence of any one or more of the following events,
shall constitute an"Event of Default"hereunder:
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(a) If any of the following occurs with respect to Borrower: (i)insolvency,
assignment for the benefit of creditors, filing of a petition under Title 11 of the United States
Bankruptcy Code or the filing of a bill in equity or the institution of other proceedings for the
appointment of a receiver of assets provided, however, if such event is involuntary in nature
Borrower shall have ninety (90) days in which to seek to have it dismissed; (ii)the filing of a
petition or institution of other proceedings in any court for the composition with creditors or for
relief in any manner from the payment of debts when due under any state or local law; or(iii)the
institution by any creditor of any proceedings under Title 11 of the United States Bankruptcy
Code or for the appointment of a receiver under any state or federal law whichis not dismissed
within ninety (90)days;
(b) If any representation or warranty made by Borrower hereunder or in any
Loan Document proves to be inaccurate or untrue in any material respect as of the date of the
execution hereof or as of the date of any advance, or any statement or certificate furnished by
Borrower hereunder or in any Loan Document proves to be inaccurate or untrue in any material
respect as of the date as to which the facts therein set forth were stated or certified, and such
misrepresentation or warranty concerns an issue which materially jeopardizes Lender's interest
in the Project or demonstrates a material adverse change in the financial condition of Borrower;
(c) If Borrower shall have failed to observe and perform any of the terms,
covenants, promises and agreements on its part to be observed and performed under this
Agreement (other than those described in and embraced by the terms of the other subsections of
this Section), or under any Loan Document, which in Lender's reasonable judgment would have
a material adverse impact on the Project, Borrower or Lender, and such failure is not cured
within thirty(30) days after written notice thereof provided,however, if such failure is of such a
nature that it cannot be cured within a thirty (30) day period and during such period Borrower
commences such cure and thereafter diligently continues to cure the failure then the thirty (30)
day period shall be extended for such additional time as may be reasonably required to complete
the cure which period in no event shall exceed ninety (90) days after the notice to Borrower.
(Notwithstanding the foregoing, there is no intent that there be a cumulation of grace periods
under this Agreement and the other Loan Documents with respect to any particular default or
Event of Default);
(d) If any event of default and the expiration of any applicable period of grace
(or event giving rise to the acceleration of the Loan) occurs under any of the other Loan
Documents and such event of default remains uncured;
(e) If the construction of the Improvements shall, at any time,be discontinued
(i)for a continuous period of thirty (30) days for reasons within the reasonable control of
Developer and/or Seahawk Landing and/or its Contractor, or (ii)for a continuous period of
sixty(60) days for reasons beyond such reasonable control (provided, however, that in no event
shall the aggregate of all such periods equal more than ninety(90) days or cause the Completion
Date to be extended or delayed);
(f) If Developer and/or Seahawk Landing shall have failed to comply with
any requirements of any governmental authority concerning the Improvements which in
Lender's reasonable judgment would have a material adverse impact on the Project, Borrower or
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Lender within thirty(30) days after notice in writing of such requirements shall have been given
to Borrower provided,however,if such failure is of such a nature that it cannot be cured within a
thirty(30) day period and during such period Developer and/or Seahawk Landing commences
such cure and thereafter diligently continues to cure the failure then the thirty (30) day period
shall be extended for such additional time as may be reasonably required to complete the cure(so
long as enforcement of such requirements are stayed during such cure) which period in no event
shall exceed ninety(90) days after the notice to Borrower;
(g) If Borrower, Developer or Seahawk Landing, without the Lender's
consent, shall have created any security interest in favor of any party (other than CBOT or
Lender) in any materials, fixtures, machinery or equipment then,or thereafter to be,incorporated
or placed in the Improvements or shall have failed to purchase any such materials, fixtures,
machinery or equipment so as to vest the ownership thereof in Seahawk. Landing,
unconditionally and free from any other security interest or other encumbrance, upon the
delivery thereof to the Project and Borrower fails to cure such act or omission within thirty (30)
days after Lender provides Borrower with written notice of such occurrence provided, however,
that if the breach is of a nature that it cannot be cured within a thirty (30) day period and during
such period Borrower commences such cure and thereafter diligently continues to cure the
breach then the thirty (30) day period shall be extended for such additional time as may be
reasonably required to complete the cure which period in no event shall exceed ninety(90) days
after the notice to Borrower;
(h) If a notice of Federal or State tax lien is filed which materially adversely
affects the leasehold title to the Project(and, for this purpose, an exception taken for such lien by
the Title Insurer which insures title to the Project in the continuation reports or endorsements
contemplated hereunder shall be treated as conclusive) and the same is not discharged, bonded
off or insured over by the Title Insurer within sixty (60) days after notice in writing from Lender
to Borrower;
(i) If any execution shall have been levied against, or attachment or other
judicial seizure made of the Project which shall remain undismissed, undischarged, or not
bonded off for a period of thirty (30) days after notice in writing from Lender to Borrower,
Developer and/or Seahawk Landing; or
(j) If the Improvements either cannot be completed on or before the
Completion Date or, in fact, are not completed by the Completion Date, provided, however,that
CBOT shall have the right,but not the obligation,to extend the Completion Date for up to six(6)
months,provided TSUS/LSCPA extends the Completion Date commensurately.
8.2 Lender's Rights and Remedies.
(a) Upon any Event of Default, Lender may exercise any or all of the
following rights and remedies as it may deem reasonably necessary or appropriate:
(i) Withhold any advances hereunder which would otherwise become
due to Borrower;
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(ii) Declare immediately due and payable all monies advanced under
the Note, and/or pursuant to this Agreement which are then unpaid,with all arrearages of interest
(and, accordingly, accelerate payment thereof, notwithstanding any contrary terms of payment
stated therein);
(iii) Advance any remaining balance of the proceeds of the Loan to pay
for the completion of the Improvements pursuant to an irrevocable authorization from Borrower
for such purpose,but Lender shall not be obligated to do so; it being further understood that;
a. No further direction or authorization from Borrower shall be
necessary to warrant such direct advances and to the extent they represent advances of proceeds
of the Loan shall satisfy the obligations of Lender hereunder and shall be secured by the
Mortgage as fully as if made to Borrower and regardless of the disposition thereof by the
Contractor,any subcontractor or other person.
b. Lender may impose any reasonable condition for such direct
payment including,but not limited to,estoppel certificates,waivers of lien,releases and the like.
c. In any action or proceeding for recovery of any sums expended by
Lender in connection with the completion of the Improvements, a statement of such
expenditures, verified by the affidavit of an officer of Lender, shall be prima facie evidence of
the amounts so expended and of the propriety of and necessity for such expenditures, and the ,
burden of proving the contrary shall be upon Borrower.
d. The remedies provided in this Agreement are cumulative and shall
be in addition to and not in substitution for the rights and remedies which would otherwise be
vested in Lender under the Loan Documents or otherwise at law or in equity, all of which rights
and remedies are specifically reserved by Lender. Failure of Lender to exercise any remedy shall
not constitute a waiver of Lender's rights for that default nor for any further or future default.
The exercise of any right or remedy by Lender hereunder shall not in any way constitute a cure
or waiver of default hereunder, or invalidate any act done pursuant to any notice of default, or
prejudice Lender in the exercise of any of its rights hereunder, unless, in the exercise of said
rights,Lender realizes all amounts owed hereunder or under the other Loan Documents.
ARTICLE IX. MISCELLANEOUS
9.1 Lender's Discretion. With respect to any provision of this Agreement which
requires the submission of evidence of the existence or non-existence of a specified fact or
facts Lender shall, at all times, be free independently to establish to its satisfaction and in its
reasonable discretion such existence or non-existence.
9.2 No Third Party Beneficiaries Nor Rights to Rely on Supervision. No part of
the Loan will at any time be subject or liable to attachment or levy at the suit of any creditor
of Borrower or of any other interested party, or at the suit of any contractor, subcontractor,
subsubcontractor or materialmen, or any of their creditors. This Agreement is solely for the
benefit of Lender and Borrower and no third parties except Seahawk Landing shall have any
rights herein or hereunder. All inspections and supervision performed by Lender are solely
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for the benefit of Lender and Borrower is required to monitor the progress of the construction
for its own benefit and on its own behalf.
9.3 Modifications. This Agreement may be changed, waived, discharged, or
terminated only by an instrument in writing duly executed by the party against which
enforcement of such change, waiver,discharge, or termination is sought.
9.4 Notices. All notices, requests, demands, approvals, or other communications
given hereunder or in connection with this Agreement shall be in writing and shall be deemed
given when delivered by hand or sent by registered or certified mail, return receipt requested,
federal express or other courier services addressed as follows:
If to Lender: Floyd Batiste, CEO
Port Arthur Section 4A Economic Development Corp.
501 Procter, Suite 100
Port Arthur,TX 77640
Telephone: (409)963-0579
Facsimile: (409)962-4445
E-mail: (batiste@paedc.org
With Copies to: Guy N. Goodson,EDC Attorney
Germer PLLC
P. O. Box 4915
Beaumont, Texas 77704
Telephone: (409)654-6730
Facsimile: (409) 835-2115 'S
E-mail: ggoodson@germer.com
If to Borrower: Nautical Affordable Housing,Inc.
Attn:Donald R. Ball
1885 E. Farragut
Orange, TX 77630
Telephone: (409)988-1851
E-mail: Donald.Ba11@nauticalaffordablehousing.org
With Copies to: Coats Rose
Attn: Barry J. Palmer
9 Greenway Plaza, Suite 1100
Houston, Texas 77046
9.5 Headings, The headings preceding the text of the sections and subsections of
this Agreement are used solely for convenience of reference and shall not affect the meaning,
construction,or effect of this Agreement.
9.6 Parties to Agreement and Governing Law. Borrower shall not assign this
Agreement without the prior written consent of Lender which may be granted or withheld in
its sole discretion, and any assignment in violation hereof shall be of no force and effect and
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1
•
shall constitute an Event of Default herein. Subject.to the previous sentence,this Agreement
shall extend to and bind the parties hereto, their respective successors and assigns. This
Agreement shall be governed by and construed in accordance with the laws of Texas to
contracts executed therein and to be wholly performed therein.
9.7 No Waiver., Enforcement. No advance of proceeds of the Loan hereunder shall
constitute a waiver of any of the conditions of Lender's obligation to make further advances
nor, in the event Borrower is unable to satisfy any such condition, shall any waiver have the
effect of precluding Lender from thereafter declaring such inability to be an Event of Default
as hereinabove provided. All conditions of the obligations of Lender to make advances
hereunder are imposed solely and exclusively for the benefit of Lender and its assigns and no
other person shall have standing to require satisfaction of such conditions in accordance with
their terms or be entitled to assume that Lender will refuse to make advances in the absence of
strict compliance with any or all thereof and no other person shall, under any circumstances,
be deemed to be beneficiary of such conditions, any or all of which may be freely waived in
whole or in part by Lender at any time if in its sole discretion it deems it advisable to do so.
9.8 Lender Approval. All proceedings taken in connection with the transactions
provided for herein, all surveys, appraisals and documents required or contemplated by this
Agreement or any other Loan Documents (and the persons responsible for the execution and
preparation thereof) including, without limitation, Contractor, insurers and the form of all of
the Building Contracts, all leases, bonds, policies of insurance and other documents shall be
reasonably satisfactory to Lender, and Lender's counsel shall have received copies (or
certified copies where appropriate in such counsel's judgment) of all documents which they
may reasonably request in connection therewith.
9.9 Materials. All materials delivered upon the Land for the purposes of being
used in the construction of the Improvements shall be considered annexed thereto and shall
become a part of the Land as if actually incorporated in the Improvements and as against
Borrower and all parties acting or claiming under Borrower, shall be subject to the rights,
conditions and covenants to which the Land and the Improvements are subject under this
Agreement, provided that nothing herein contained shall be construed to make Lender
responsible for any loss, damage or injury to such materials, nor for payment of the same.
Borrower shall not make or cause to be made any contract for materials or equipment of any
kind or nature to be incorporated in or to become a part of the Improvements if title to such
materials or equipment is reserved under a conditional sales contract or otherwise, or is
subject to a chattel mortgage or security interest in favor of a third person.
9.10 Courts of Jefferson County Jurisdiction. Borrower irrevocably consents to the
exclusive jurisdiction of the state and federal courts of the State of Texas, in any and all
actions and proceedings whether arising hereunder or under any other agreement. Borrower
waives any objection, now or hereafter, to the laying of venue of any such action, suit or
proceeding, and irrevocably submits to the jurisdiction of any of said courts in any action,suit
or proceeding. Any service of process and other notice in any action, suit or proceeding shall
be effective against Borrower if given by registered or certified mail,return receipt requested,
or by any other means of mail which requires a signed receipt, postage prepaid, mailed to
-21 -
#1242960
Borrower as herein provided for notice purposes. Nothing herein contained shall be deemed
to affect the right of any party to serve process in any other manner permitted by law.
9.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, and such
counterparts shall together constitute one and the same instrument.
9.12 Force Majeure. Except to the extent otherwise specified herein a party to this
Agreement shall not be in default hereunder if the delay in performance of its obligations
arises from unforeseeable causes beyond its control (collectively, "Force Majeure") and
without the fault or negligence of the party in question. Examples of such causes include (a)
acts of God, or public enemy, (b) fires, (c) floods, (d) epidemics, (e) quarantine restrictions,
(f) freight embargoes, (g) unusually severe weather, or (h) shortages in labor or material, (i)
labor disputes not caused by Borrower. The party prevented from acting within a reasonable
time from the beginning of such delay shall advise the other party in writing of the cause and
likely duration of such delay.
9.13 Limitation of Liability. The liability of Borrower under this Agreement shall
be limited in the same manner and to the same extent specified in the Note and the Mortgage.
[the remainder of this page intentionally left blank]
-22-
#1242960
IN WITNESS WHEREOF,the parties hereto have caused this Conditional Loan/Grant
Agreement to be duly executed.
NAUTICAL AFFORDABLE HOUSING,INC., a
Texas non-profit corporation
3..
By: f
Name: Donald R. :all
Title: Executive Director
•
-23 -
#1242960
EXHIBIT A-i
LEGAL DESCRIPTION OF THE LEASEHOLD PREMISES
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EXHIBIT A-2
LEGAL DESCRIPTION OF THE FEE INTEREST
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LEGAL DESCRIPTION
Being 2.204(called 2.203) acres of land,known as LAMAR PORT ARTHUR DORMS, PHASE
I,out of Lakeshore Park to the City of Port Arthur,Jefferson County,Texas, as the same appears
upon the map or plat thereof, on file and of record under County Clerk's File No.2015041258
Official Public Records of Jefferson County, Texas.
TAX CERTIFICATE
ts, 1 PG 201504125$
111111 I. ) 15041II I)
IlD
ALLISON NATHAN GETZ,P.C.C.
JEFFERSON COUNTY TAX ASSESSOR-COLLECTOR
P.O.BOX 2112,BEAUMONT,TX 77704
EMAIL:PROPERTY@CO.JEFFERSON.TX.US
Issued To: Legal Description
SOUTEX SURVEYORS,INC OUT OF LAKESHORE PARK LT E ELK 154 TR 2
3737 DOCTORS DRIVE CITY OF PORT ARTHUR 2.200
PORT ARTHUR, TX 77642
Fiduciary Number: 7034 Parcel Address:
<--
_ Legal Acres: 2.2006
Account Number: 053400-000/174540-00000 Print Date: 11/20/2015
Paid Date:
Certificate No: 229796418 Issue Date: 11/20/2015
Certificate Fee: $10.00 Operator ID: CINDYY
Parent No. 59186-J
TAX CERTIFICATES ARE ISSUED WITH THE MOST CURRENT INFORMATION AVAILABLE.ALL ACCOUNTS ARE SUBJECT TO CHANGE
PER SECTION 26.15 OF THE TEXAS PROPERTY TAX CODE. THIS 1S TO CERTIFY THAT ALL TAXES DUE ON THE ABOVE DESCRIBED I
PROPERTY HAVE BEEN EXAMINED,UP TO AND INCLUDING THE YEAR 2015.ALL TAXES ARE PAID IN FULL I
Exemptions: i
Certified Owner:
I'
PRO SCHOOLS LAMAR STATE COLLEGE ,
PORT ARTHUR
PO BOX 310
PORT ARTHUR , TX 77641-0310
i
Certified Tax Unit(s): la
2015 Value: 8,370 1 JEFFERSON COUNTY r
2015 Levy: 54.00 9 PORT ARTHUR ISD
35 CITY OF PORT ARTHUR
2015 Levy Balance: $0.00 43 PORT OF PORT ARTHUR '1'
51 DRAINAGE DISTRICT#7 z
Prior Year Levy Balance: 50.00 55 SAI31NE-NECHES NAV.DIST.
Total Levy Due: $0.00 1`
P&I+Attorney Fee: $0.00 1 . fit, 1
Total Amount Due: $0.00 CITY OF PORT ARTHUR '
} 444 4TH STREET
PORT ARTHUR TX 77640
i FILED AND RECORDED
Reference(GF)No: N/A OFFICIAL PUBLIC RECORDS i
Issued By: LC.C, ,44s,,t
ALLISON NATHAN C•-
JEFFERSON COUNTY TAX ASSESSOR-COLLECTOR
(409)835-85I6,WEBSITE:WWW.JEFFCOTAX.COM Carolyn L. Guidry, County Clerk
Jefferson County, Texas
December 22, 2015 04:21:58 PM
FEE, $46,00 2015041255
53.1.80
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EXHIBIT B
IMPROVEMENTS
Seahawk Landing, LLC is building a 37 suite, 101 bed student housing development. It will be
comprised of one building with three floors serviced by an elevator. There will be 36 two-
bed/one-bath and four-bed/two-bath suites, and one one-bed/one-bath suite for a Resident
Assistants. The building will have a common area that will consist of management offices,
computer lab, study room, lounge with kitchen, and laundry room. The site amenities will
include volleyball court, half size basketball court, splash pad, and barbecue grills with picnic
tables."
B-1
EXHIBIT C
COST BREAKDOWN
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EXHIBIT " B1 "
CONDITIONAL COMMERCIAL PROMISSORY NOTE
Port Arthur,Texas
This COMMERCIAL PROMISSORY NOTE becomes effective on the date when Nautical
Affordable Housing, Inc., a Texas corporation (hereinafter called "Maker") breaches that certain
Conditional Loan/Grant Agreement between the City of Port Arthur Section 4A Economic
Development Corporation(hereinafter called"Lender")and Maker,dated March ,2016.
Effective Date of Note: This Note shall become effective on the date of breach of its obligations
under this Agreement and following notice thereof from PAEDC and thirty-day (30-day)
opportunity to cure, said date being the day of , 2016 ("Note Date").
Principal Amount: $1,000,000.00.
Term of the Loan: This loan shall have a term from the Note Date to (the "Final
Payment Date").
Payment Schedule: The principal amount together with interest at the hereinafter described rate
shall be payable in equal monthly installments from the Note Date until , and all
outstanding principal and interest due hereunder shall be due and payable.
FOR VALUE RECEIVED, the undersigned "Maker", promises to pay to Lender, at its office at
P.O. Box 1089, Port Arthur, Texas, 77640-1089, or such other place or places as the holder hereof
shall from time to time designate in written notice to Maker, the principal amount, in legal and
lawful money of the United States of America, together with interest thereon from the date hereof
until maturity at the rate of seven percent(7%)per annum as detailed herein.
All past due principal and interest shall bear interest from date of maturity until paid at the
rate of ten percent (10%) per annum, or to the maximum extent allowed by law (whichever is
greater)as may hereafter be in effect,payable on demand after maturity.
Any notices required or permitted to be given by the holder hereof to Maker pursuant to the
provisions of this note shall be in writing and shall be either personally delivered or transmitted by
first class United States mail, addressed to Maker at the address designated below for receipt of
notice (or at such other address as Maker may, from time to time, designate in writing to the holder
hereof for receipt of notices hereunder). Any such notice personally delivered shall be effective as
of the date of delivery, and any notice transmitted by mail, in accordance with the foregoing
provisions, shall be deemed to have been given to and received by Maker as of the date on which
such notice was deposited with the United States Postal Service, properly addressed and with
postage prepaid.
This note is also secured by and entitled to the benefits of all other security agreements,
pledges, collateral assignments, deeds of trust, guaranties, mortgages, assignments, and lien
instruments, if any, of any kind executed by Maker or by any other party as security for any loans
owing by Maker to the Lender. Such lien instruments shall include those executed simultaneously
herewith,those heretofore executed, and those hereafter executed.
If any installment or payment of principal or interest of this note is not paid when due or any
drawer, acceptor, endorser, guarantor, surety, accommodation party or other person now or hereafter
primarily or secondarily liable upon or for payment of all or any part of this note (each hereinafter
called an "other liable party") shall die, or become insolvent (however such insolvency may be
evidenced); or if any proceeding, procedure or remedy supplementary to or in enforcement of
judgment shall be resorted to or commenced against Maker or any other liable party, or with respect
to any property of any of them; or if any governmental authority or any court at the instance thereof
shall take possession of any substantial part of the property of or assume control over the affairs or
'I'
operations of, or a receiver shall be appointed for or take possession of the property of, or a writ or
order of attachment or garnishment shall be issued or made against any of the property of Maker or
any other liable party; or if any indebtedness for which Maker or any other liable party is primarily
or secondarily liable shall not be paid when due or shall become due and payable by acceleration of
maturity thereof, or if any event or condition shall occur which shall permit the holder of any such
indebtedness to declare it due and payable upon the lapse of time, giving of notice or otherwise; or
if Maker or any other liable party (if other than a natural person) shall be dissolved, wound up,
liquidated or otherwise terminated, or a party to any merger or consolidation without the written
consent of Lender; or if Maker or any other liable party shall sell substantially all or an integral
portion of its assets without the written consent of Lender; or if Maker or any other liable party fails
to furnish financial information requested by Lender; or if Maker or any other liable party furnishes
or has furnished any financial or other information or statements which are misleading in any
respect; or if a default occurs under any instrument now or hereafter executed in connection with or
as security for this note; or any event occurs or condition exists which causes Lender to in good
faith reasonably deem itself insecure or in good faith reasonably believe the prospect of payment or
performance by Maker or any other liable party under this note, under any instrument or agreement
executed in connection with or as security for this note, or under any other indebtedness of Maker or
any other liable party to Lender is impaired; thereupon, at the option of Lender, the principal
balance and accrued interest of this note and any and all other indebtedness of Maker to Lender
shall become and be due and payable forthwith without demand, notice of default, notice of
acceleration, notice of intent to accelerate the maturity hereof, notice of nonpayment, presentment,
protest or notice of dishonor, all of which are hereby expressly waived by Maker and each other
liable party. Lender may waive any default without waiving any prior or subsequent default.
If this note is not paid at maturity whether by acceleration or otherwise, and is placed in the
hands of any attorney for collection, or suit is filed hereon, or proceedings are had in probate,
bankruptcy, receivership, reorganization, arrangement or other legal proceedings for collection
hereof, Maker and each other liable party agree to pay Lender its collection costs, including court
costs and a reasonable amount for attorney's fees.
It is the intention of Maker and Lender to conform strictly to applicable usury laws.
Accordingly, if the transaction contemplated hereby would be usurious under applicable law, then,
in that event, notwithstanding anything to the contrary herein or in any agreement entered into in
connection with or as security for this note, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under applicable law that is taken, reserved, contracted for,
charged or received under this note or under any of the other aforesaid agreements or otherwise in
connection with this note shall under no circumstances exceed the maximum amount of interest
allowed by applicable law, and any excess shall be credited on this note by the holder hereof(or, if
this note shall have been paid in full, refunded to Maker); (ii) in the event that maturity of this note
is accelerated by reason of an election by the holder hereof resulting from any default hereunder or
otherwise, or in the event of any required or permitted prepayment, then such consideration that
constitutes interest may never include more than the maximum amount allowed by applicable law,
and excess interest, if any, provided for in this note or otherwise shall be canceled automatically as
of the date of such acceleration or prepayment and, if theretofore prepaid, shall be credited on this
note (or if this note shall have been paid in full, refunded to Maker); and (iii) all calculations of the
rate of interest taken, reserved, contracted for, charged or received under this note or under any of
the other aforesaid agreements or otherwise in connection with this note, that are made for the
purpose of determining whether such rate exceeds the maximum lawful rate shall be made, to the
extent permitted by applicable law, by amortizing, prorating, allocating, and spreading such interest
over the entire term of the loan evidenced by this note(including all renewal and extended terms).
Maker may prepay all or any part of the principal of this note before maturity without
penalty. No partial prepayment shall reduce, postpone or delay the obligation of Maker to continue
paying the installments herein provided on their respective due dates following any such partial
prepayment until this note is fully paid.
#1242611
The Maker shall be directly and primarily liable for the payment of all sums called for
hereunder; and, except for notices specifically required to be given by the holder hereof to Maker
pursuant to the earlier provisions of this note, Maker and each other liable party hereby expressly
waive demand, presentment for payment, notice of other loan documents of nonpayment, protest,
notice of protest,notice of intention to accelerate maturity,notice of acceleration of maturity,and all
other notice, filing of suit and diligence in collecting this note or enforcing or handling any of the
security therefor, and do hereby agree to any substitution, exchange or release, in whole or in part,
of any security or the release of any other liable party, and do hereby consent to any and all
renewals or extensions from time to time, of this note, or any part hereof, either before or after
maturity, all without any notice thereof to any of them and without affecting or releasing the liability
of any of them. Each holder hereof, in order to enforce payment of this note by any other liable
party, shall be required to first institute suit or exhaust its remedies against Maker and to enforce its
rights against any security therefor prior to enforcing payment of this Note by any other liable party.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
#1242611
SIGNED AND AGREED TO on the day of , 2016.
Nautical Affordable Housing, Inc.,
a Texas corporation
By:
Donald R. Ball
Its:
Executive Director
THE STATE OF TEXAS §
§ ACKNOWLEDGEMENT
COUNTY OF JEFFERSON §
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally appeared
Donald R. Ball, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he/she executed the same as the act and deed of Nautical
Affordable Housing,Inc., a Texas non-profit corporation, for the purposes and consideration therein
expressed, and the Capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
,2016.
Notary Public, State of Texas
#1242611
MAKERS' ADDRESS FOR RECEIPT OF NOTICE:
Nautical Affordable Housing, Inc.,
a Texas corporation
c/o Donald R. Ball
1885 E. Farragut
Orange, Texas 77630
#1242611
EXHIBIT " B2 "
FILED AND RECORDED
rOFFICIAL PUBLIC RECORDS
2016 Mar 10 02:41 PM Fee: $110.00
2016007582
When recorded, return to: CAROLYN L. GUIDRY, COUNTY CLERK
Tarnea A. Dula JEFFERSON COUNTY TEXAS
Coats Rose, P.C. 'Electronically Recorded
9 Greenway Plaza, Suite 1100
Houston,TX 77046
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION
FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY
BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL
SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
kic3$-fit-1
SUBORDINATE LEASEHOLD ESTATE DEED OF TRUST, SECURITY AGREEMENT AND FINANCING
STATEMENT
From
Seahawk Landing, LLC,
a Texas limited liability company
as Grantor
to
Donald R.Ball,
as Trustee
for the benefit of
Nautical Affordable Housing, Inc.,
a Texas non-profit corporation •
as Beneficiary
•
4846-6794-1930.v3
2016007582 Page 2 of 22
SUBORDINATE DEED OF TRUST, SECURITY AGREEMENT
AND FINANCING STATEMENT •
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
That in consideration of certain indebtedness hereinafter described, justly owing by Seahawk Landing,
LLC, a Texas limited liability company, ("Grantor''), to Nautical Affordable Housing, Inc., a Texas non-
profit corporation ("Beneficiary") and in consideration of the sum of Ten and No/100 Dollars ($10.00) and
other valuable consideration paid to the Grantor, the receipt and sufficiency of which are hereby
acknowledged, Grantor has GRANTED, ASSIGNED, TRANSFERRED and CONVEYED, and does
hereby GRANT, ASSIGN, TRANSFER and CONVEY unto Donald R. Ball, as trustee ("Trustee"), all of
the following described property is collectively referred to herein as the"Property":
A. All of Grantor's right, title and interest,whether now or hereafter arising, in and to:
(i) The leasehold estate in real property situated in Jefferson County,Texas,
pursuant to that certain Ground Lease Agreement executed March 7 , 2016,
more accurately described in EXHIBIT A hereto, together with all right, title
and interest now and/or hereafter owned by Grantor, its successors and assigns,
in the whole or any part of the above described leasehold estate in real property,
and/or any street or road adjacent and/or contiguous to the above described real
property("Land").
(ii) All of Grantor's right, title and interest,whether now or hereafter arising, in and to
all buildings and other improvements now or hereafter placed on the Land, as
well as all appurtenances, betterments and additions thereto("Improvements");
all and singular the rights, privileges. hereditaments and appurtenances in
anywise incident or appurtenant to the Land and Improvements;and the rents,
revenue, profits and income from the Land and Improvements.
(iii) All of Grantor's right, title and interest,whether now or hereafter arising, in and to
any and all plumbing, electrical, heating,cooling and other equipment and all
building materials and other goods of every type, kind and character that are now
or hereafter situated upon the Land and which (i)are intended to be incorporated
into the Improvements or(ii)are now, or hereafter become,fixtures related to the
Land or the Improvements; any and all other goods of every type, kind and
character, including without limitation, all appliances,furniture,fixtures, inventory
and equipment now owned or hereafter acquired by Grantor that are now or
hereafter situated upon the Land (whether or not situated within or attached to
the Improvements)and that facilitate the use and occupancy of the
Improvements for the purpose for which they were or are to be constructed; all
plans and specifications for the Improvements,all rights of Grantor under ail
existing and future leases, construction, maintenance and other contracts
covering or relating to the Land or the Improvements,all tenants deposits made
pursuant to or in connection with such leases, all rights of ingress and egress,
easements,water and wastewater rights, and to the extent assignable, all
licenses, permits,franchises,certificates, accounts, instruments,chattel paper,
documents, agreements, contracts,and general intangibles, and all rights of
Grantor in and to any development rights relating to the Land or the
Improvements (including,without limitation, trade names and symbols used in
connection therewith and any deposits with utility companies)and all other rights
and privileges obtained in connection with, relating to or associated with the Land
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or the Improvements(collectively, the"Personalty")and all proceeds of the
Persona Ity.
B. All of Grantor's right,title and interest, whether now or hereafter arising, in and to any tax
refunds, including interest thereon, tax rebates, ad valorem tax credits, and tax abatements, and the right
to receive the same, which may be payable or available with respect to the Property.
C. All of Grantor's right, title and interest in the proceeds (including conversion to cash or
liquidation claims) of (A) insurance relating to the Property and (B) all awards made for the taking by
eminent domain (or by any proceeding or purchase in lieu thereof) of the Property, including awards
resulting from a change of any streets (whether as to grade, access, or otherwise) and for severance
damages.
D. All of Grantor's right, title and interest, if any, in and to all substances in, on, or under the
Land which are now, or may become in the future, intrinsically valuable, that is, valuable in themselves,
and which now or may be in the future enjoyed through extraction or removal from the property, including
without limitation, oil, gas, and all other hydrocarbons, coal, lignite, carbon dioxide and all other
nonhydrocarbon gases, uranium and all other radioactive substances, and gold, silver, copper, iron and
all other metallic substances or ores (collectively, "Minerals").
E. All funds of Grantor that may be deposited with Beneficiary at any time and from time to
time for any purpose, which funds shall be deemed to be part of the Personalty for purposes hereof. In
the event of a conflict between the terms and conditions of this instrument and the instrument under
which Beneficiary holds any funds of Grantor, the terms and conditions of the latter instrument shall
prevail.
TO HAVE AND TO HOLD the Property unto the Trustee and the assigns of the Trustee, and
Grantor does hereby bind Grantor and the successors and assigns of Grantor, to WARRANT AND
FOREVER DEFEND all and singular the Property and title thereto unto the Trustee and unto the assigns
of the Trustee, against every person or party whomsoever claiming or to claim the same, or any part
thereof, subject, however, to the permitted encumbrances set forth on EXHIBIT B attached hereto (the
"Permitted Encumbrances")and the liens securing the Senior Notes (as described below).
1.
SECURITY FOR PERFORMANCE OF OBLIGATIONS
This conveyance is made in trust, however, to secure the performance of all covenants and
agreements contained in this Subordinate Deed of Trust, Security Agreement and Financing Statement
("Deed of Trust") and that one certain Loan Agreement (the "Loan Agreement") executed or to be
executed between Grantor and Beneficiary, and the full and prompt payment when due (by lapse of time
or otherwise), of the following indebtedness (the"Indebtedness"):
A. Loan. All sums, including principal, interest and attorneys' fees, called for in that certain
promissory note (the "Note") executed by Grantor payable to the order of Beneficiary, in the principal
amount of ONE MILLION AND NO/104 DOLLARS ($1.000,000.00) or so much thereof as shall be
advanced, which Note evidences that certain loan from Beneficiary to Grantor of the amount set forth in •
the Note (the "Loan"), and which Note bears interest at the rates therein stated and provides for
acceleration of maturity should a default under such Note or any of the documents evidencing, securing,
or otherwise pertaining to the Loan occur. Advancements pursuant to the Note shall be made from, and
within five days of receipt of, the proceeds of that certain Development Agreement even date herewith, as
defined in the Loan Agreement, with respect to up to a maximum of $1,000,000.00 in reimbursable
expenses for the payment of hard costs associated with installation of a student housing facility on the
Property.
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B. Other Sums. All other sums owing by Grantor to Beneficiary or other holder(s) of any
part of the Indebtedness or becoming due under the Loan Agreement. This Deed of Trust and all other
instruments now or hereafter evidencing, governing or securing any part of the Indebtedness are
hereinafter collectively referred to as the"Loan Documents").
If.
PAYMENT OF THE INDEBTEDNESS:
DEFAULT; ENFORCEMENT OF TRUST
A. Payments. If the Indebtedness is fully paid and if all of Grantor's covenants and
agreements herein and in the Loan Agreement and the other Loan Documents are fully kept and
performed, then this conveyance shall thereupon become of no further force and effect and shall be •
released by Beneficiary or other holder(s) of the Indebtedness upon the written request and at the
expense of Grantor.
B. Enforcement. But if there occurs any Default (as defined in the Loan Agreement), the
whole of the Indebtedness shall at the option of Beneficiary, without notice to Grantor or any other
person, which notice is hereby waived, become immediately due and payable and thereupon, or at any •
time thereafter that the Indebtedness or any part thereof remains unpaid, it shall be the duty of the
Trustee, or the Substitute Trustee, as hereinafter defined, at the request of Beneficiary, or the holder(s) of
the Indebtedness, which request shall be presumed, to enforce this Trust and to sell as an entirety, or in
parcels, by one sale or by several sales, held at one time or at different times, as the Trustee acting may
elect (all rights to a marshaling of Grantor's assets, including Property, or to a sale in inverse order of
alienation, being hereby expressly waived by Grantor), the Property in the county in which the Property,
or a part of the Property to be sold, is situated (the "County")at such area at the courthouse designated
by the Commissioner's Court of the County as the area where sales are to take place, or if no area is
designated, at the door of the County Courthouse, each sale to be made on the first Tuesday of a
calendar month between the hours of 10:00 A.M. and 4:00 P.M. to the highest bidder for cash at public
auction, after both posting or causing to be posted written or printed notice of the time (including the
earliest time at which the sale will occur), place, and term of sale at the door of the Courthouse of the
County and filing or causing to be filed a copy of the notice in the Office of the County Clerk of the
County, for at least twenty-one (21) days preceding the day of sale, and to execute and to deliver to the
purchaser(s) at each such sale proper conveyance(s) of the property interest sold,with general warranty
of title binding upon Grantor and the sucrpssors and assigns of Grantor; or Beneficiary or other holder(s)
of the Indebtedness may foreclose or cause to be foreclosed the Lien of this Deed of Trust, in whole or in
part, through judicial foreclosure or in any manner as may at any time be authorized under the statutes of
the State of Texas. In addition, the holder(s) of the Indebtedness to which the power is related shall, at
least twenty-one (21) days preceding the date of sale, serve written notice of the proposed sale by
certified mail on each person obligated to pay the Indebtedness according to the records of the holder(s).
Service of the notice shall be completed upon deposit of the notice, enclosed in a postpaid wrapper, •
properly addressed to each debtor at the most recent address as shown by the records of the holder(s) of
the Indebtedness, in a post office or official depository under the care and custody of the United States
Postal Service. The Affidavit of any person having knowledge of the facts to the effect that service was
completed shall be prima facie evidence of the fact of service. No notice of the sale or sales other than
that herein provided for need be given to Grantor or any other person or party, and any other notice is
hereby waived. Beneficiary or other holder(s) of the Indebtedness shall have the right to become the
purchaser at any sale to the same extent as any other party, being the highest bidder, and in lieu of
paying cash may credit the amount of the bid upon the Indebtedness up to the full amount of the
Indebtedness then unpaid.
C. Proceeds. The Trustee acting shall apply the proceeds arising from each sale, first, to
pay all reasonable expenses of the sale actually incurred, second, to reimburse Beneficiary for any
expenses incurred by Beneficiary in protecting, administering or operating the Property prior to the
foreclosure sale and third, to the payment of the Indebtedness (including all principal, interest and
attorneys' fees owing as part of the Indebtedness). The proceeds of each sale paid to Beneficiary may
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•
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•
•
•
be applied by Beneficiary on the Indebtedness in any order and manner as Beneficiary may elect. Any
•
surplus funds from the foreclosure sale or sales hereunder shall be paid to Grantor or the person(s) •
lawfully entitled thereto.
III.
UNMATURED INDEBTEDNESS •
•
•
If any Default occurs, Beneficiary or other holder(s) thereof shall, in addition to any remedies
available to Beneficiary at law or in equity, have the option to proceed with foreclosure in satisfaction of
such item or items, either through the courts or by directing the Trustee, or the Substitute Trustee, as
hereinafter provided for, to proceed as if under.a foreclosure,conducting the sale as herein provided and
without declaring the whole debt due, and if a sale is made because of such Default, the sale may be
made subject to the unmatured part of the Indebtedness, but as to the unmatured part of the
Indebtedness, this Deed of Trust shall remain in full force and effect just as though no sale had been
made under the provisions of this paragraph. Several sales may be made hereunder without exhausting
the right of sale for any unmatured part of the Indebtedness, it being the purpose hereof to provide for a
foreclosure and sale of the Property, in whole or in part, for any matured portion of the Indebtedness
without exhausting the power of foreclosure and the power to sell the Property, in whole or in part, for any
other part of the Indebtedness subsequently maturing.
IV.
SUBSTITUTE TRUSTEE
•
In case of the resignation of the Trustee, or the inability (through death or otherwise), refusal or •
failure of the Trustee to act, or at the option of Beneficiary or the holder(s) of the Indebtedness for any
other reason (which reason need not be stated), a substitute trustee ("Substitute Trustee") may be
named, constituted and appointed by Beneficiary or the holder(s) of the Indebtedness, without other
formality than an appointment and designation in writing; the appointment and designation shall be full
evidence of the right and authority to make the same and of all facts therein recited; and this conveyance
shall vest in the Substitute Trustee the title, power and duties herein conferred on the Trustee originally ••
•
•
named herein and the conveyance of the Substitute Trustee to the purchaser(s) at any sale shall be •
equally valid and effective. The right to appoint a Substitute Trustee shall exist as often and whenever •
from any of said causes,the Trustee,original or Substitute,resigns, or cannot,will not, or does not act,or
Beneficiary or the holder(s) of a majority of the Indebtedness desire to appoint a new Trustee. No bond
shall ever be required of the Trustee, original or Substitute. The recitals in any conveyance made by the
Trustee, original or Substitute, shall be accepted and construed in court and elsewhere as prima facie
evidence and proof of the facts recited and no other proof shall be required as to the request by
Beneficiary or the holder(s)of a majority of the Indebtedness to the Trustee to enforce this Trust, or as to
the notice of or holding of the sale, or as to any particulars thereof, or as to the resignation of the Trustee,
original or Substitute, or as to the inability, refusal or failure of the Trustee, original or Substitute, to act or
as to the election of Beneficiary or the holder(s) of a majority of the Indebtedness to appoint a new
Trustee, or as to appointment of a Substitute Trustee, and all prerequisites of the sale shall be presumed
to have been performed; and each sale made under the powers herein granted shall be a perpetual bar •
•
against Grantor and the successors and assigns of Grantor.
V.
REPRESENTATIONS,WARRANTIES,COVENANTS AND AGREEMENTS OF GRANTOR
For the purpose of better securing to Beneficiary the payment of the Indebtedness, Grantor
represents,warrants and covenants to Beneficiary as follows:
A. Title, Authority, and Performance under Leases. At the time of the execution and
delivery of this Deed of Trust, Grantor is the sole and lawful owner of the Land in fee simple,and Grantor
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has the authority to execute this Deed of Trust. The Property is free from all encumbrances and charges
whatsoever except for the liens securing the Senior Notes and the Permitted Encumbrances. No
assignments or pledges are currently in effect with respect to any leases of or rentals or income from the
Property except for assignments and/or pledges to Beneficiary and those expressly stated in EXHIBIT B
and those securing the Senior Notes, and until the Indebtedness is fully paid and this Deed of Trust is
released, Grantor shall not make any additional assignment or pledge thereof without Beneficiary's prior
written consent.
B. Tax and Insurance Escrow. Upon written request by Beneficiary, Grantor agrees to
deposit with Beneficiary on a monthly basis, or at other intervals as specified, a sum that shall be
sufficient to pay taxes, assessments, charges, and insurance premiums as they become due, all as
reasonably estimated by Beneficiary, which sum shall be held by Beneficiary (or by a banking institution
selected by Beneficiary whose funds are insured by a federal agency or instrumentality) in trust to pay
taxes, assessments, charges and premiums, but which shall not bear interest and may be commingled
with other funds. If at any time the funds so held by (or on behalf of) Beneficiary are insufficient to pay
any tax, assessment, charge or insurance premium, Grantor shall, upon receipt of notice, deposit with
Beneficiary(or such banking institution), all additional funds as are necessary to remove the deficiency. If
the Indebtedness is for any reason declared immediately due and payable,funds held by(or on behalf of)
Beneficiary for payment of taxes, assessments, charges or premiums as herein provided may, at
Beneficiary's election, be applied on the Indebtedness in any manner as Beneficiary so elects. In the
event that Grantor is escrowing with a Senior Lender (as defined below) a sum for payment of taxes,
assessments, charges and insurance premiums and such amount is sufficient to fully discharge such
taxes, assessments, charges and insurance premiums, Beneficiary agrees not to require an additional
escrow deposit under this paragraph. In the event that Beneficiary does not require the escrow deposits
described in the paragraph, Grantor shall provide Beneficiary with written evidence that (i) all applicable
taxes and assessments have been paid at least thirty(30)days prior to delinquency and (ii)all insurance
premiums have been paid thirty(30)days before the renewal date of the applicable policies. Grantor shall
duly pay and discharge, or cause to be paid and discharged, all taxes, assessments, charges, and
insurance premiums as they become due.
C. Insurance. Grantor shall, prior to or concurrently with the execution of this Deed of Trust,
deliver to Beneficiary all of the following insurance policies together with evidence of such other insurance
coverage as required pursuant to the Loan Agreement, accompanied by paid premium receipts
evidencing payment in full of the required premiums for at least the first full year of coverage:
(i) fire insurance with extended coverage and standard Beneficiary and replacement
cost endorsement for the full insurable value of the insurable portion of the
Property, but in no event for an amount less than the amount of the Note (90%
shall be acceptable co-insurance rates for fire insurance);and
(ii) public liability insurance in the amount of $1,000,000.00 per occurrence and
$2,000,000.00 in the aggregate for a twelve (12) month policy period. Each
renewal policy shall be delivered to Beneficiary not less than thirty (30) days
before the termination of the prior policy and with each policy there shall be
delivered to Beneficiary a receipt showing payment of the premium therefor.
Upon request, Grantor shall also carry additional insurance or additional reasonable amounts of
insurance covering Grantor or the Property as Beneficiary shall reasonably require, insuring against such
other insurable hazards which at the time are commonly insured against for property similar to the
Property located in the region where the Property is located.
If the Property or any part thereof has been or at any time during the term of this Deed of Trust or
any extension or renewal thereof is designated as a flood-prone or flood-risk area pursuant to the Flood
Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each have been
or may be amended, or any successor law, Grantor shall obtain flood insurance in such total amounts as
Beneficiary may from time to time require and shall otherwise comply with the requirements of the
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National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973 or the
National Flood insurance Reform Act of 1994,or any successor law.
All insurance required under this Deed of Trust and the Loan Agreement shall be fully paid for,
non-assessable, and such policies shall contain such provisions, endorsements, and expiration dates as
Beneficiary shall reasonably require. Such policies shall be issued by insurance companies authorized
and licensed to transact business in the State of Texas with ratings acceptable to Beneficiary in its sole
and absolute discretion and shall name Beneficiary as an additional insured.
D. Operations. Grantor will abstain from and not permit the commission of waste in or about
the Property, will maintain the Property in good operating condition and repair at all times, ordinary wear
and tear excepted, will not remove or demolish the buildings or other improvements now or hereafter
constituting a part of the Property, or alter the design or structural character of any buildings or
improvements unless Beneficiary shall first consent thereto in writing, which consent shall be granted or
denied in Beneficiary's reasonable discretion, and will comply with all laws, ordinances, regulations,
covenants, conditions and restrictions affecting the Property or the use thereof, which consent shall not
be unreasonably withheld, delayed or conditioned. Grantor will not seek or acquiesce in a zoning
reclassification of all or any portion of the Property or grant or consent to any easement, dedication, plat,
or restriction (or allow any easement to become enforceable by prescription), or any amendment or
modification thereof,covering all or any portion of the Property,without Beneficiary's prior written consent.
Grantor will not, without the prior written consent of Beneficiary, permit any drilling or exploration for or
extraction, removal, or production of, any Minerals from the surface or subsurface of the Land regardless
of the depth thereof or the method of mining or extraction thereof.
E. Obligations Under Other Loan Documents. Grantor hereby agrees to comply with and
perform all of its obligations under the other Loan Documents and agrees to be bound by the •
•
•
representations, warranties and covenants made by Grantor contained in the Loan Documents. All of •
representations, warranties and covenants contained in the other Loan Documents are hereby fully •
incorporated herein.
F. Casualty and Condemnation Proceeds. Subject to the terms of the Loan Agreement and
the Intercreditor Agreement (as defined below), in the event of any fire or other casualty to the Property or
eminent domain proceedings resulting in condemnation of the Property or any part thereof, Grantor shall
have the right to rebuild the Property, and to use all available insurance or condemnation proceeds therefor,
provided that(a)such proceeds are sufficient to keep the Indebtedness in balance and rebuild the Project in
a manner that provides adequate security to Beneficiary for repayment of the Indebtedness or if such
proceeds are insufficient then Grantor shall have funded any deficiency, (b) Beneficiary shall have the right
to approve plans and specifications for any major rebuilding and the right to approve disbursements of
insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement,
which approval Beneficiary shall not withhold if the senior lender approves the same,and (c)no Default then
exists under the Loan Documents. If the casualty or condemnation affects only part of the Property and total
rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the •
Indebtedness in a manner that provides adequate security to Beneficiary for repayment of the remaining
balance of the Indebtedness.
G. Failure to Pay. All taxes and any assessments that are due and payable affecting the
Property shall be paid and discharged in full prior to execution and delivery of this Deed of Trust, or as
•
they subsequently become due and payable and prior to delinquency. If Grantor fails to pay any tax, •
assessment, charge or insurance premium called for herein, Beneficiary may, at its option, pay the same,
or if Grantor fails to perform any of Grantor's covenants or agreements herein, Beneficiary may, at its
option, correct or cause to be corrected the same and pay any sums in connection therewith as
Beneficiary shall determine to be necessary or advisable,and all taxes, assessments, charges, insurance
premiums and sums paid by Beneficiary in connection with such matters (collectively, whether one or
more, an "Assessment")shall be immediately repayable by Grantor to Beneficiary, together with interest
on each amount at the default rate provided in the Note from the date the sum is paid by Beneficiary, until
the same is refunded to Beneficiary and all such amounts and interest thereon, shall be secured hereby.
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Notwithstanding the foregoing, Grantor shall have the right to object and protest to ad valorem taxes on
the Property in good faith and with due diligence provided that (i) no Default exists under this Deed of
Trust or any of the other Loan Documents, (ii)Grantor gives Beneficiary prior written notice of its intent to
contest an Assessment; (iii) Grantor demonstrates to Beneficiary's reasonable satisfaction that (A) the
Property will not be sold to satisfy the Assessment prior to the final determination of the legal
proceedings, (B)Grantor has taken such actions as are required or permitted to accomplish a stay of any
such sale, and (C) Grantor has either(1) furnished a bond or surety (satisfactory to Beneficiary in form
and amount) sufficient to prevent a sale of the Property or (2) at Beneficiary's option, deposited one
hundred fifty percent (150%) of the full amount necessary to pay any unpaid portion of any Assessment
with Beneficiary; and (iv)such proceeding shall be permitted under any other instrument to which Grantor
or the Property is subject(whether superior or inferior to this Instrument).
H. Title Litigation. Subject to title insurance coverage, in case of any litigation involving the
title to any part of the Property, or the validity of this Deed of Trust, Beneficiary may be represented in the •
litigation through attorneys of its own selection and Grantor shall, upon demand, promptly reimburse
Beneficiary for all court costs and reasonable attorneys' fees incurred by Beneficiary in defending and/or
protecting its rights in any litigation.
Default Subject to applicable notice provisions, if a Default (as defined in the Loan
Agreement) occurs, the whole of the Indebtedness, at the option of Beneficiary, shall become
immediately due and payable,without further notice or demand.
J. Tenancy at Sufferance. Following any sale of the Property,or any part thereof, under the
provisions of this Deed of Trust, and to the extent permissible under applicable law, all persons and
parties in possession of the Property sold shall be obligated to immediately vacate the premises and prior
to such vacation shall be tenants at sufferance of the purchaser of the Property sold and shall be subject
to eviction in an action of forcible detainer, provided, the provisions of this Subparagraph J shall be
subject to any agreements made in writing by Beneficiary with reference to any existing and/or future
leases; provided, further, the purchaser at any foreclosure sale shall have the option to affirm any then
existing leases or tenancies or otherwise to succeed to the rights of Grantor thereunder.
K. Subrogation. To the extent that any of the Indebtedness represents funds utilized to
satisfy any outstanding Indebtedness or obligations secured by liens, rights, or claims against the
Property or any part thereof, Beneficiary shall be subrogated to any and all liens,rights, superior titles and
equities owned or claimed by the holder of any outstanding indebtedness or obligation so satisfied,
however remote, regardless of whether the liens, rights, superior titles and equities are assigned to
Beneficiary or released by the holder(s)thereof.
L. Homestead Disclaimer. Grantor represents and covenants that the Property forms no
part of any property owned, used, or claimed by Grantor as a business or residential homestead, or as
exempt from forced sale under the laws of the State of Texas and disclaims and renounces all and every
such claim thereto. •
M. Additional Transfers and Encumbrances. Beneficiary shall have the right to declare the
Indebtedness secured hereby immediately due and payable in the event the Grantor sells, transfers,
assigns, or conveys its interest, whether voluntarily or involuntarily, in the Property, or any part thereof,
without the prior written consent of Beneficiary,such request not to be unreasonably withheld, delayed or
conditioned or in the event any junior or subordinate mortgage, lien, deed of trust,or other encumbrance
is placed upon the Property without the prior written consent of Beneficiary, provided the foregoing shall
not prohibit the removal of worn or obsolete Personalty that is replaced with new items of the same or
similar quality. If Beneficiary consents to the sale, transfer, assignment, or conveyance of Grantor's
interest in the Property,or any part thereof, and waives in writing its right to accelerate the Indebtedness
secured hereby as provided in this Subparagraph M, Beneficiary may require that the transferee assume
all the obligations of Grantor under this Deed of Trust, the Loan Agreement and the Note in a form
reasonably acceptable to Beneficiary and its legal counsel. For purposes of this Subparagraph M,
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"transfer" of the Property shall not include the transfer of any direct or indirect ownership interests in
Grantor and such transfers shall not require the consent of Beneficiary hereunder.
N. No Reliance on Beneficiary. Grantor is experienced in the ownership and operation of
properties similar to the Property, and Beneficiary is relying solely upon Grantor's expertise and business
plan in connection with the construction of the Improvements and ownership and operation of the
Property. Grantor is not relying on Beneficiary's expertise or business acumen in connection with the
Property or in connection with the construction of the Improvements.
0. No Litigation. Except as disclosed in writing to Beneficiary, there are no(i) actions,suits,
or proceedings, at law or in equity, before any Governmental Authority or arbitrator pending or threatened
against or affecting Grantor, any guarantor,or involving the Property, (ii)outstanding or unpaid judgments
against the Grantor or the Property, or(iii)defaults by Grantor with respect to any order, writ, injunction,
decree, or demand of any Governmental Authority or arbitrator.
P. Payment for Labor and Materials. Grantor will promptly pay all bills for labor, materials,
and specifically fabricated materials incurred in connection with the Property (which shall be deemed an
Assessment on the Property) and never permit to exist in respect of the Property or any part thereof any
unbonded lien or security interest, even though inferior to the liens and security interests hereof,for any
such bill, and in any event never permit to be created or exist in respect of the Property or any part
thereof any other or additional lien or security interest on a parity with, superior, or inferior to any of the
liens or security interests hereof, except for the Permitted Encumbrances and the liens securing the
Senior Notes. In the event that Grantor becomes aware that such lien has been recorded against the
Property, Grantor shall have such lien released within thirty(30)days. If Grantor fails to pay any bills for
labor, materials, and specifically fabricated materials incurred in connection with the Property, Beneficiary
shall have the rights set forth in Section V.G for Grantor's failure to pay any Assessment.
Q. Tax on Deed of Trust. At any time any law shall be enacted imposing or authorizing the
imposition of any tax upon this Deed of Trust, or upon any rights,titles, liens, or security interests created
hereby, or upon the Indebtedness or any part thereof, Grantor will immediately pay all such taxes, •
provided that if such law as enacted makes it unlawful for Grantor to pay such tax, Grantor shall not pay
nor be obligated to pay such tax. Nevertheless, if a law is enacted making it unlawful for Grantor to pay
such taxes,then Grantor must prepay the Indebtedness in full within sixty(60)days after demand therefor
by Beneficiary.
R. ERISA. If and to the extent that Grantor is obligated under any plan governed by or
subject to the Employee Retirement Income Security Act, as amended ("ERISA"), Grantor shall fully
discharge and satisfy all of its obligations and funding requirements under such plan, ERISA and the
Internal Revenue Code, as amended ('IRC"). Furthermore, Grantor shall comply in all material respects
with any and all applicable provisions of ERISA and the IRC and will not incur or permit to exist any •
unfunded liabilities to the Pension Benefit Guaranty Corporation or to such plan under ERISA or the IRC.
S. Disclosures. If at any time Grantor shall become aware of the existence or occurrence of
any financial or economic conditions or natural disasters which are likely to have a material adverse affect
on the Property or Grantor's financial condition, Grantor shall promptly notify Beneficiary of the existence
or occurrence thereof and of Grantor's opinion as to what effect such may have on the Property or
Grantor. Grantor shall also give prompt notice to Beneficiary of (i)the serious illness or death of any
principal or key employee of Grantor, (ii)any litigation or dispute, threatened or pending against or
affecting Grantor, the Property or any guarantor which could have a material adverse effect on the
Property or the financial condition or business of any of the aforementioned parties, (iii)any Default,
(iv)any default by Grantor or any acceleration of any indebtedness owed by Grantor under any contract
to which Grantor is a party, and (v)any change in the character of Grantor's business as it existed on
the date hereof.
s
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VI •.
CAPTIONS
•
The captions contained in this Deed of Trust are for convenience only and shall not be taken into
account in determining the meaning of any provision of this Deed of Trust. •
VII.
ASSIGNMENT OF LEASES
As further security for the payment of the Indebtedness, and subject to the rights of senior
lienholders, Grantor hereby assigns to Beneficiary, its successors and assigns, all leases,whether now in
existence or hereafter created, covering all or any portion of the Property together with all rents to
become due under each such lease, subject, however,to any prior assignment in connection with senior
indebtedness. For so long as no Default exists, Grantor may collect the rents, but not more than one(1)
month in advance, in the ordinary course of business, unless otherwise provided by the express terms of
the leases and approved by Beneficiary. In the event of any Default and at any and ail times during the
continuance thereof, in addition to all other rights and remedies of Beneficiary, Beneficiary shall have the
exclusive right and power (but not the obligation) to enter upon and take possession of the Property or
any part thereof, to rent or re-rent the same, either in the name of Beneficiary or Grantor, to receive all
rents, revenues, profits, or other income from the Property and to apply all amounts received first, to the
costs and expenses incurred by Beneficiary in protecting and operating the Property and next, to the
payment of the Indebtedness in any manner and in any order of priority as Beneficiary shall determine.
This action by Beneficiary shall not operate as a waiver of the Default, or as an affirmance of any lease or
of the rights of any tenant of title to that part of the Property covered by the lease or held by the tenant,
should the Property, or any part thereof, be acquired by Beneficiary or other purchaser at a foreclosure
sale. The right of Beneficiary to receive all rents, revenues, profits, or other income from the Property
during the continuance of any Default shall be applicable whether Beneficiary has entered upon or taken
possession of the Property, or has otherwise attempted to exercise its rights hereunder and if any rents,
revenues, profits, or other income are paid to or received by Grantor, Grantor shall immediately pay the
same to Beneficiary,without the necessity of any request or demand therefor. Grantor agrees at any time
and from time to time until the Indebtedness is paid in full to execute and to deliver any additional
assignments of leases and/or rents, security agreements and other instruments as Beneficiary shall from
time to time reasonably require. The substance, form, execution and delivery of additional assignments
of leases and/or rents, security agreements and other instruments shall be reasonably satisfactory to
Beneficiary.
•
•
VIII.
PERSONALTY
•
This Deed of Trust covers and includes, without limitation, Grantor's interest in the Personalty
hereinabove described. •
•
IX.
USE OF PERSONALTY •
•
Grantor represents that all Personalty is property for business use and is not consumer goods.
Grantor further covenants that there are and shall be no conditional sales contracts that cover any of the
Personalty.
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X.
SECURITY INTEREST IN PERSONALTY
Without limiting any of the provisions of this instrument, Grantor, as referred to in this paragraph
as"Debtor,"expressly does the following: •
A. Grant. Debtor hereby grants unto the holder of all Indebtedness, described herein as
Secured Party, and referred to in this paragraph as "Secured Party", a security interest in Debtor's
interest in the Personalty.
B. UCC Remedies. Debtor agrees, in addition to any other remedies granted in this
instrument to Secured Party or the Trustee, that Secured Party may, during the existence of any Default,
proceed under Chapter 9 of the Texas Uniform Commercial Code (the "UCC') as to all or any part of the
Personalty and shall have and may exercise with respect to the Personalty all the rights, remedies and
powers of a Secured Party under the UCC, including, without limitation, the right and power to sell at
public or private sale or sales, or otherwise to dispose of, to lease, or to utilize the Personalty and any
part or parts thereof, in any manner authorized or permitted under the UCC after default by a debtor and
to apply the proceeds thereof toward payment of any costs, expenses and attorneys' fees and legal
expenses thereby incurred by Secured Party and toward the payment of Debtor's obligations, including
the Note and all other Indebtedness described in this instrument in any order or manner as Secured Party
•
may elect. Among the rights of Secured Party during the existence of a Default, and without limitation, •
Secured Party shall have the right to take possession of the Personalty and to enter upon any premises
where same may be situated for this purpose without being deemed guilty of trespass and without liability
for damages thereby occasioned and to take any action deemed necessary or appropriate or desirable by
Secured Party, at its option and in its discretion, to repair, refurbish or otherwise prepare the Personalty
for sale, lease, or other use or disposition as herein authorized. Debtor agrees that if any notice of sale
required under the UCC is mailed, postage prepaid, to Debtor at the address shown herein at least ten
(10)days before the time of the sale or disposition, the notice shall be deemed reasonable and shall fully
satisfy any requirement for giving of the notice.
To the extent it may lawfully do so and without limiting any rights and/or privileges herein granted
to Secured Party, Debtor agrees that Secured Party and/or the above Trustee and any Substitute
Trustee, may dispose of any or all of the Personalty at the same time and place and after giving the same
notice provided for in this Deed of Trust in connection with a nonjudicial foreclosure sale under the terms
•
and conditions set forth in this Deed of Trust. In this connection, Debtor agrees that the sale may be •
conducted by the Trustee or the Substitute Trustee; that the sale of the Land and Improvements •
described in this Deed of Trust and the Personalty or any part thereof, may be sold separately and/or
together; and that if the Land and Improvements described herein and the Personalty or any part thereof,
are sold together, the Secured Party will not be obligated to allocate the consideration received as
between the Land and Improvements and the Personalty.
C. Possession. Debtor hereby grants to Secured Party the right, at its option upon a Default
to transfer at any time to itself or to its nominee the Personalty, or any part thereof and to receive the
monies, income, proceeds or benefits attributable or accruing thereto and to hold the same as security for
Debtor's obligations or to apply it on the principal and interest or other amounts owing on any of Debtor's
obligations, whether or not then due, in any order or manner as Secured Party may elect. All rights with
respect to marshalling of assets of Debtor, including with respect to the Personalty, or to a sale in inverse
order of alienation, are hereby waived.
D. Authority. Debtor hereby covenants, stipulates and agrees that all recitals in any
instrument of assignment or any other instrument executed by Secured Party incident to the sale,
transfer, assignment, lease or other disposition or utilization of the Personalty or any part thereof
hereunder shall be prima facie evidence of the matters stated therein and all prerequisites of the sale or
other action taken by Secured Party or of any fact, condition or thing incident thereto shall be rebuttably
presumed to have been performed or to have occurred.
4846-6794-1930.v3
2016007582 Page 12 of 22
E. Assembly and Expenses. Debtor hereby covenants and agrees that Secured Party upon
a Default may require Debtor to assemble the Personalty and to make it available to Secured Party at a
place to be designated by Secured Party that is reasonably convenient to both parties. All expenses of
retaking, holding, preparing for sale, lease, or other use or disposition, selling, leasing or otherwise using
or disposing of the Personalty and the like that are incurred or paid by Secured Party as authorized or
permitted hereunder, including also all attorneys' fees, legal expenses and costs, shall be added to the
indebtedness and Debtor shall be liable therefor.
F. Financing Statement. A carbon, photographic,or other reproduction of this Deed of Trust
may be filed as a Financing Statement under the UCC between Debtor and Secured Party whose
addresses are set forth below. Except for the security interest granted hereby in the Personalty or
otherwise expressly stated in EXHIBIT B hereto, Debtor is owner and holder of the Personalty free of any •
adverse claim, security interest or encumbrance, and Debtor will defend the Personalty against all claims
and demands of any person at any time claiming the same or any interest therein. Debtor has not
heretofore signed any financing statement and no financing statement signed by Debtor is now on file in
any public office except those statements, true and correct copies of which have been delivered to the
Secured Party or in connection with the Senior Notes (as defined below). So long as any amount
remains unpaid on any Indebtedness described in this Deed of Trust. Debtor will not execute and there
will not be filed in any public office any financing statement or statements affecting the Personalty other
than financing statements in favor of the Senior Lender or Secured Party hereunder, unless the prior
written specific consent and approval of Secured Party shall have first been obtained. Debtor authorizes
Secured Party to file, in jurisdiction where this authorization will be given effect, a financing statement
signed only by Secured Party covering the Personalty and at the request of Secured Party, Debtor will
join Secured Party in executing one or more financing statements, pursuant to the UCC in form
satisfactory to Secured Party and will pay the cost of filing the same or filing or recording this instrument •
as a financing statement, in all public offices at any time and from time to time whenever filing or
recording of any financing statement or of this instrument is deemed by Secured Party to be necessary or •
desirable.
XI_
ADDRESSES - ••
The addresses of Grantor and Beneficiary, are as follows: •
Grantor. Seahawk Landing,LLC
3735 Honeywood Court
Port Arthur,Texas 77642
Attention: Christopher A.Akbari
With a copy to: Coats Rose
9 Greenway Plaza
Suite 1100
Houston, Texas 77046
Attention: Barry J. Palmer
•
Beneficiary Nautical Affordable Housing,Inc.
1885 E.Farragut
Orange, Texas 77630
- Donald R.Ball,Executive Director
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Trustee: Donald R. Ball, Trustee
1 885 E. Farragut
Orange, Texas 77630
Each party shall have the right to designate from time to time another address within the
continental United States for purposes of this Deed of Trust by written notice to the other party.
Notwithstanding the foregoing agreement to provide courtesy copies,such copies shall be a courtesy only
and failure to provide such copies shall have no effect on the validity of a notice properly given to Grantor.
Notices under this Deed of Trust shall be effective in the case of utilization of the U.S. Mail
Service, upon the earlier of(i)three days after deposit of such notice in the mail, return receipt requested
or (ii) delivery. Notices sent by overnight courier services shall be effective one day after deposit with
such service. All other notices shall be effective upon delivery. Notwithstanding the foregoing, any
foreclosure notices shall be effective upon deposit with the U.S. Mail Service.
XII.
RESERVED
XIII.
ENVIRONMENTAL MATTERS
A. Compliance with Laws. Grantor hereby represents, warrants, covenants and agrees to
and with Beneficiary that:
(i) Grantor will not and will not permit any tenant or occupant of the Property to,
generate, store, handle or otherwise deal with hazardous or toxic substances in,
on, about or under the Property; and
(ii) Grantor has not at any time engaged in or permitted, nor, to the best of Grantor's
knowledge after reasonable and prudent inquiry, which has consisted of the
Phase 1 report, has any current or former tenant, occupant or owner of the
Property, or any portion thereof, engaged in or permitted any generation,
storage, handling, dumping, discharge, disposal, spillage or leakage of any
hazardous or toxic substances, at, on, or about the Property, or any portion
thereof, except as disclosed on the Phase I report, deliverable to Beneficiary
upon request.
Notwithstanding the foregoing, Grantor shall be permitted to have such chemicals, materials and supplies
on the Property which are normally used in connection with the prudent operation, use, maintenance and
ownership of a multi-unit student housing facility and which are used in compliance with environmental
laws.
B. Indemnification. GRANTOR HEREBY AGREES TO INDEMNIFY, PROTECT, DEFEND
(WITH COUNSEL REASONABLY APPROVED BY BENEFICIARY)AND TO HOLD BENEFICIARY, ITS
AGENTS, MEMBERS, OFFICERS, REPRESENTATIVES AND ITS EMPLOYEES FREE AND
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, ADMINISTRATIVE
PROCEEDINGS, JUDGMENTS, DAMAGES, PUNITIVE DAMAGES, PENALTIES, FINES, COSTS,
LIABILITIES (INCLUDING SUMS PAID IN SETTLEMENT OF CLAIMS), INTEREST OR LOSSES,
INCLUDING REASONABLE ATTORNEYS', CONSULTANTS' AND EXPERTS' FEES AND
EXPENSES, OF ANY KIND OR NATURE (COLLECTIVELY, THE "COSTS") THAT ARISE DIRECTLY
OR INDIRECTLY, FROM OR IN CONNECTION WITH THE PRESENCE, SUSPECTED PRESENCE, •
13
4846-6794-1930.v3
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RELEASE OR SUSPECTED RELEASE (A "RELEASE") OF ANY HAZARDOUS OR TOXIC
SUBSTANCE, FROM, ON, ABOUT, UNDER OR WITHIN THE PROPERTY, OR ANY PORTION
THEREOF WHICH OCCURS DURING OR PRIOR TO SUCH TIME AS GRANTOR OWNS THE
PROPERTY. NOTWITHSTANDING THE FOREGOING TO THE CONTRARY, GRANTOR'S LIABILITY
HEREUNDER, SUBJECT TO THE DE MINIMIS PROVISIONS OF ARTICLE XIII(A)(ii) ABOVE, SHALL
NOT INCLUDE ANY LOSS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF BENEFICIARY OR ANY EMPLOYEE, AGENT OR REPRESENTATIVE OF
BENEFICIARY OR RELEASE OF HAZARDOUS OR TOXIC SUBSTANCES BY BENEFICIARY OR
ANY EMPLOYEE, AGENT OR REPRESENTATIVE OF BENEFICIARY AFTER BENEFICIARY HAS
TAKEN POSSESSION OF THE PROPERTY.
C. Remediation. If any investigation or monitoring of site conditions, or any cleanup,
containment, restoration, removal or other remedial work (collectively, the "remedial work") is required
under any applicable federal, state or local law or regulation, by any judicial order, or by any
governmental entity, or in order to comply with any agreements affecting the Property because of, or in
connection with any release of hazardous or toxic substances, Grantor shall perform, or cause to be
performed, the remedial work in compliance with such law, regulation, order or agreement. All remedial
work shall be performed by one or more contractors selected by Grantor and approved in advance, in
writing, by Beneficiary and under the supervision of a consulting engineer selected by Grantor and
approved in advance, in writing, by Beneficiary. All costs of any remedial work shall be paid by Grantor,
including, without limitation, the reasonable charges of contractor(s) and/or the consulting engineer and
Beneficiary's reasonable attorneys'fees and costs incurred in connection with the monitoring or review of
any remedial work. If Grantor shall fail to timely commence or cause to be timely commenced, or fail to
diligently prosecute to completion, any remedial work, then Beneficiary may, but shall not be required to,
cause such remedial work to be performed and all costs and expenses thereof, or incurred in connection
therewith, shall be "Costs" within the meaning of Subparagraph B above. All costs shall be due and
payable upon demand therefor by Beneficiary,together with interest thereon at the Default Rate provided
in the Note from the date such costs are paid by Beneficiary, until the same are refunded to Beneficiary
and all such costs and the interest thereon shall be secured hereby.
D. Survival. Notwithstanding anything to the contrary contained herein, or in the Note or
Loan Agreement, the obligations of Grantor under this Paragraph XIII shall survive any assumption of the
Indebtedness by a successor to Grantor (whether or not the assumption has been approved or
disapproved, or whether or not Grantor was released from liability on the Indebtedness), foreclosure of
this Deed of Trust (or transfer of the Property in lieu of foreclosure) and release or termination of this
Deed of Trust.
XIV.
MISCELLANEOUS
A. No Waiver, No delay by Beneficiary in exercising any right, option or remedy hereunder,
or otherwise afforded by law, shall operate as a waiver thereof or preclude the exercise thereof during the
continuance of any Default.
B. Cumulative Remedy. All rights and remedies of Beneficiary under this Deed of Trust and
any and all other instruments evidencing or securing the Indebtedness, are cumulative and concurrent
and may be exercised singularly,successively, or concurrently.
C. No Release. The granting to Grantor or to any other person or party of any extension(s)
of time for payment of all or any part of the Indebtedness or the performance of any covenant or
agreement contained herein, or the taking of other or additional security for the payment of the whole or
any part of the Indebtedness, or the releasing of any part of the security at any time held in connection
with the Indebtedness, shall not in any way release Grantor or any other person or party obligated for the
payment of the Indebtedness, or release or impair this Deed of Trust or any other security held in
14
4346-6794-1930.v3
•
2016007582 Page 15 of 22
connection with the Indebtedness, except to the extent of the person, party or property expressly released
in writing by Beneficiary
D. Severability, If any provision in this Deed of Trust is invalid or unenforceable in whole or
in part,this instrument shall in all other respects remain in full force and effect.
E. Successors and Assigns. All of the provisions hereof shall apply to and be binding upon
Grantor and the successors and assigns of Grantor (provided the foregoing shall not be construed as
consent to any transfer by Grantor of the Property).
F. Further Assurances and Corrections. From time to time, at the request of Beneficiary,
Grantor will (i)promptly correct any defect,error, or omission which may be discovered in the contents of
this Deed of Trust or in any other Loan Document or in the execution or acknowledgment thereof;
(ii)execute, acknowledge,deliver, record and/or file such further instruments (including,without limitation,
further deeds of trust, security agreements, financing statements, continuation statements and
assignments of rents or leases) and perform such further acts and provide such further assurances as
may be necessary, desirable, or proper, in Beneficiary's reasonable opinion, to carry out more effectively
the purposes of this Deed of Trust and the Loan Documents and to subject to the liens and security
interests hereof and thereof any property intended by the terms hereof or thereof to be covered hereby or
thereby, including without limitation, any renewals, additions, substitutions, replacements, or
appurtenances to the Property; (iii)execute, acknowledge, deliver, procure, file, and/or record any
document or instrument (including without limitation, any financing statement) deemed advisable by
Beneficiary to protect the liens and the security interests herein granted against the rights or interests of
third persons; and (iv) pay all costs connected with any of the foregoing.
G. Choice of Law, This Deed of Trust shall be performable and enforced in Jefferson
County, Texas, and shall be construed in accordance with the laws of the State of Texas from time to
time in effect except to the extent preempted by the United States federal law. Venue shall be
appropriate in Jefferson County, as applicable.
H. Usury. In no event shall any provision of this Deed of Trust, the Note, the Loan
Agreement or any other instrument evidencing or securing the Indebtedness ever obligate Grantor to pay
interest on the Note secured hereby at a rate greater than that permitted by law, or obligate Grantor to
pay any taxes, assessments, charges, insurance premiums, or other amounts to the extent that the
payments constitute interest under applicable law and when added to the interest payable on the Note
secured hereby, would be held to constitute the payment by Grantor of interest at a rate greater than that
permitted by law; and this provision shall control over any provision to the contrary.
It is expressly stipulated and agreed to be the intent of Grantor and Beneficiary at all times to
comply strictly with the applicable Texas law governing the maximum rate or amount of interest payable
on the Note or the Indebtedness or applicable United States federal law to the extent that it permits
Beneficiary to contract for,charge,take, reserve or receive a greater amount of interest than under Texas
law("Highest Lawful Rate"). If the applicable law is ever judicially interpreted so as to render usurious
any amount(i)contracted for,charged, taken, reserved or received pursuant to the Note, any of the other
Loan Documents or any other communication or writing by or between Grantor and Beneficiary related to
the transaction or transactions that are the subject matter of the Loan Documents, (ii)contracted for,
charged or received by reason of Beneficiary's exercise of the option to accelerate the maturity of the
Note and/or the Indebtedness,or(iii)Grantor will have paid or Beneficiary will have received by reason of •
any voluntary prepayment by Grantor of the Note and/or the Indebtedness, then it is Grantor's and ••
Beneficiary's express intent that all amounts charged in excess of the Highest Lawful Rate shall be
automatically cancelled, ab initio, and all amounts in excess of the Highest Lawful Rate theretofore
collected by Beneficiary shall be credited on the principal balance of the Note and/or the Indebtedness
(or, if the Note and all Indebtedness have been or would thereby be paid in full, refunded to Grantor), and
the provisions of the Note and the other Loan Documents immediately be deemed reformed and the
amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution
of any new document, so as to comply with the applicable law, but so as to permit the recovery of the
•
15
4846-6794-1930.v3
2016007582 Page 16 of 22
fullest amount otherwise called for hereunder and thereunder. Grantor hereby agrees that as a condition
precedent to any claim seeking usury penalties against Beneficiary, Grantor will provide written notice to
Beneficiary, advising Beneficiary in reasonable detail of the nature and amount of the violation, and
Beneficiary shall have sixty (60) days after receipt of such notice in which to correct such usury violation,
if any, by either refunding such excess interest to Grantor, or crediting such excess interest against the
Note and/or the Indebtedness then owing by Grantor to Beneficiary. All sums contracted for, charged or
received by Beneficiary for the use, forbearance or detention of any debt evidenced by the Note and/or
the Indebtedness shall, to the extent permitted by applicable law, be amortized or spread, using the
actuarial method, throughout the stated term of the Note and/or the Indebtedness (including any and all
renewal and extension periods) until payment in full so that the rate or amount of interest on account of
the Note and/or the Indebtedness does not exceed the Highest Lawful Rate from time to time in effect
and applicable to the Note and/or the Indebtedness for so long as debt is outstanding. In no event shall
the provisions of Chapter 346 of the Texas Finance Code (which regulates certain revolving credit loan
accounts and revolving triparty accounts) apply to the Note and/or the Indebtedness. Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents, it is not the intention of
Beneficiary to accelerate the maturity of any interest that has not accrued at the time of such acceleration
or to collect unearned interest at the time of such acceleration.
I. Covenants Run with the Land. All Obligations contained in this Deed of Trust and the
other Loan Documents are intended by Grantor, Beneficiary and Trustee to be, and shall be construed
as, covenants running with the Property until the lien of this Deed of Trust has been fully released by
Beneficiary.
J. JURY WAIVER. GRANTOR AND BENEFICIARY ACKNOWLEDGE THAT THE RIGHT
TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED, EACH PARTY,
AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES
ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE
OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS NOTE, THE INDEBTEDNESS OR
THIS DEED OF TRUST.
K. Entire Agreement. THIS DEED OF TRUST, TOGETHER WITH THE NOTE AND LOAN
AGREEMENT, THE OTHER LOAN DOCUMENTS, AND THE RESTRICTIVE COVENANTS
CONSTITUTE A WRITTEN LOAN AGREEMENT AS DEFINED IN SECTION 26.02 OF THE TEXAS
BUSINESS AND COMMERCE CODE. THIS WRITTEN LOAN AGREEMENT CONSTITUTES THE •
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. ••
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
•
L. Subordination. It is the intent of Beneficiary and Grantor that the indebtedness evidenced
by the Note shall be subordinate in right of payment to the prior payment in full of the following
indebtedness: (i) Promissory Note in the maximum principal amount of up to FOUR MILLION AND
NO/100 DOLLARS ($4,000,000.00) to be issued by Grantor and payable to CommunityBank of Texas,
N.A. ("Bank" ), or order, to the extent and in the manner provided in a certain Intercreditor Agreement to
be entered into between Beneficiary, Grantor,the City of Port Arthur Section 4A Economic Development
Corporation (the "EDC"), and CommunityBank of Texas, N.A., a national banking association collectively •
referred to as "Senior Lender" (the "lntercreditor Agreement"); and (ii) Promissory Note in the
maximum principal amount of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) to be issued by
Grantor and payable to the EDC or order, to the extent and in the manner provided in the Intercreditor
Agreement; (collectively, the "Senior Notes"). This Deed of Trust and all of the other Loan Documents
are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of
the deeds of trust securing the Senior Notes as more fully set forth in the lntercreditor Agreement. The
rights and remedies of the Beneficiary and each subsequent holder of this Note and the Deed of Trust are
subject to the restrictions and limitations set forth in the lntercreditor Agreement. Each subsequent holder
of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform
16
4846-6794-1930.v3
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•
and observe all of the terms, covenants and conditions to be performed or observed by Beneficiary under
the lntercreditor Agreement.
[Signatures on following page]
i
•
•
•
17
4846-6794-1930.v3 •
2016007582 Page 18 of 22
Signature Page
Subordinate Deed of Trust, Security Agreement and Financing Statement
IN WITNESS WHEREOF, Grantor has executed this Subordinate Leasehold Estate Deed of
Trust, Security Agreement and Fin racing Statement on the date sat forth in the acknowledgments below
but to be effective as of March r , 2016.
GRANTOR:
SEAHAWK LANDING, LLC a Texas limited
liability company
By: ITEX Advisors, LLC,
a Texas limited lia lity 9orripany, its
Sole Manager i j
By: ;<
Christopher Akbari, President
ATTACHMENTS:
EXHIBIT "A" Land
EXHIBIT "B" Permitted Encumbrances
•
STATE OF TEXAS §
COUNTY OF-HARRIS §
This instrument was acknowledged before me on qy-c..er—. , 2016, by Christopher A.
Akbari, the President of ITEX Advisors, LLC, a Texas limited liability company the sole manager of
SEAHAWK LANDING, LLC, a Texas limited liability company on behalf of said limited liability company.
4".41`t'• -L MALLET NOTARY PU:ji , State of Texas
Adiy My Notary ID#315201-9 t
1 ',0V,p Expires May 18,2016
PRINTED NAME OF NOTARY
My COMMISSION EXPIRES:
•
•
18
4346-6794-1930.v3 ••
2016007682 Page 19 of 22
Exhibit "A"
LEGAL DESCRIPTION
Being 2.204(called 2.203)acres of land,known as LAMAR PORT ARTHUR DORMS,PHASE
I,out of Lakeshore Park to the City of Port Arthur,Jefferson County,Texas,as the same appears
upon the map or plat thereof,on file and of record under County Clerk's File No, 2015041258
Official Public Records of Jefferson County,Texas.
1
'
is
•
2016007582 Page 20 of 22
EXHIBIT B
PERMITTED ENCUMBRANCES
[ATTACH]
•
•
I.:
20
4846-6794-1930_0
2016007582 Page 21 of 22
Permitted Encumbrances
A. Leasehold Deed of Trust, Assignment of Rents and Security Agreement and Fixture
Filing dated March 7, 2016, filed or to be filed in the Official Public Records, Jefferson County,
Texas, executed by Scahawk Landing, LLC, a Texas limited liability company, to Joe F. West,
Trustee for the benefit of CommunityBank of Texas, N.A., given to secure the payment of one
certain promissory note for the sum of$4,000,000.00.
B. Thirty (30) foot utility easement in favor of the City of Port Arthur as recorded under
County Clerk's Film Code No. 100-76-0128 Real Property Records of Jefferson County,Texas.
C. Easement in favor of Gulf States Utilities Company as recorded under County Clerk's
Film Code No. 103-07-0624 Real Property Records of Jefferson County, Texas.
D. Amended Information form filed by Jefferson County Drainage District No. 7, recorded
under County Clerk's File No. 2014023296,Official Public Records of Jefferson County,Texas.
between
E. Terms and conditions of that certain Ground Lease for Seahawk Landing, LP
Lamar State College-Port Arthur and Seahawk Landing, LP, a Memorandum of Ground Lease
recorded or to be recorded in the Official Public Records of Jefferson County,Texas.
F. UCC-1 Financing Statement from Seahawk Landing, LLC, Debtor, to CommunityBank
of Texas, N.A., Secured Party, filed or to be filed in the Official Public Records, Jefferson
County, Texas.
G. Subordinate Leasehold Estate Deed of Trust, Security Agreement and Financing
Statement dated March 7, 2016, filed or to be filed in the Official Public Records, Jefferson
County, Texas, executed by Seahawk Landing, LLC, a Texas limited liability company, to
Donald R. Ball, Trustee on behalf of Nautical Affordable Housing, Inc., a Texas non-profit
corporation, given to secure the payment of one certain promissory note in the amount of
$1,000,000.00. Intercreditor and Subordination Agreement by and between Nautical Affordable
Housing, Inc., CommunityBank of Texas, N.A. and Seahawk Landing, LLC dated March 7,
2016, filed or to be filed in the Official Public Records, Jefferson County, Texas. Collateral
Assignment of Note and Liens dated March 7, 2016, filed or to be filed in the Official Public
Records, Jefferson County, Texas, executed by Nautical Affordable Housing, Inc..to Guy N.
Goodson, Trustee for the benefit of the City of Port Arthur Section 4A Economic Development
Corporation.
2016007582 Page 22 of 22
H. UCC-1 Financing Statement from Seahawk Landing, LLC, Debtor, to Nautical
Affordable Housing, Inc., Secured Party, filed or to be filed in the Official Public Records,
Jefferson County, Texas.
I. Subordinate Leasehold Estate Deed of Trust, Security Agreement and Financing
Statement dated March 7, 2016, filed or to be filed in the Official Public Records, Jefferson
County, Texas, executed by Seahawk Landing, LLC, a Texas limited liability company, to Guy
N. Goodson, Trustee on behalf of City of Port Arthur Section 4A Economic Development
Corporation, a Texas non-profit corporation, given to secure the payment of one certain
promissory note in the amount of$1,000,000.00. hrtercreditor and Subordination Agreement by
and between City of Port Arthur Section 4A Economic Development Corporation,
CommunityBank of Texas,N.A. and Seahawk Landing, LLC dated March 7,2016, filed or to be
filed in the Official Public Records,Jefferson County,Texas.
J. UCC-1 Financing Statement from Seahawk Landing, LLC,Debtor,to City of Port Arthur
Section 4A Economic Development Corporation, Secured Party, filed or to be filed in the
Official Public Records,Jefferson County,Texas.
•
EXHIBIT " B3 "
•
FILED AND RECORDED
,/;,OFFICIAL PUBLIC RECORDS
C
1\L3%_t.2016 Mar 10 03:36 PM Fee: $50-00
COLLATE L ASSIGNMENT OF 2016007614
CAROLYN L.GUIDRY, COUNTY CLERK
NOTE AND LIENS JEFFERSON COUNTY TEXAS ;.
*Electronically Recorded*
THIS COLLATERAL ASSIGNMENT OF NOTE AND LIENS (this "Assignment"), is
made as of the 1 day of March, 2016, by NAUTICAL AFFORDABLE HOUSING, INC., a
Texas non-profit corporation ("Nautical") to GUY N. GOODSON, an individual ("Trustee"),
solely in his capacity as trustee for the benefit of the CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION, a Texas non-profit corporation ("EDC"),
relating to EDC's $1,000,000.00 grant (the "Grant Funds"), to Nautical to assist in financing �-
the development of a student housing project to be located on the real property described in
Exhibit "A" attached hereto (the "Property"). EDC and Nautical have entered into a Grant
Agreement of even date herewith (the "Grant Agreement") setting forth certain agreements
concerning the use of the Grant Funds for the development and restricted use of the Property. As
security for its performance under the Grant Agreement,Nautical hereby assigns to Trustee all of
its right, title, and interest in, to, and under that certain Loan Agreement and the related
$1,000,000.00 Promissory Note and Deed of Trust (collectively, the "Loan Documents")
executed by and between Assignor as lender and Seahawk Landing, LLC, a Texas limited
liability company("Seahawk"),as borrower, dated on or about March '1 ,2016,
Nautical acknowledges that neither the Trustee nor EDC assumes any of Nautical's
obligations or duties under the Loan Documents pursuant to this Assignment. Further,Trustee is
is
under no obligation to take any action hereunder or under the Loan Documents except and until
Trustee forecloses in accordance with the provisions of this Assignment.
Nautical hereby authorizes Trustee to demand, receive, receipt for, and enforce any and
all of Nautical's rights and entitlements under the Loan Documents, including without limitation
the right to sue for breach of any warranties, express or implied, and to perform any and all acts is
with respect thereto with the same force and effect as if performed by Nautical in the absence of
this Assignment.
Nautical hereby represents and warrants to Trustee that no previous assignment of its
rights under the Loan Documents has been made, and Nautical agrees not to further assign, sell,
pledge, transfer, mortgage, or otherwise encumber in any manner its rights in, to, and under the
Loan Documents,so long as this Assignment remains in effect.
1. This Assignment is made to secure the performance and discharge of each and G'
every obligation and agreement of Nautical under the Grant Agreement of even date herewith by
and between EDC as grantor and Nautical as grantee.
2. Notwithstanding this Assignment, until such time as Nautical is in default under
the Grant Agreement or any instrument,document, or agreement securing performance under the •
Grant Agreement, Trustee shall not exercise any of Nautical's rights with respect to the Loan
Documents. IJpon the occurrence and continuance of any such default and the expiration of all
applicable cure periods, Trustee may, without affecting any of its rights or remedies against
Nautical under any other instrument, document, or agreement, immediately exercise its rights
under this Assignment by giving notice to Nautical and to Seahawk that Seahawk is no longer
1
4826-6323-2811.v6
2016007614 Page 2 of 7
•
authorized to deal with Nautical with respect to the Loan Documents. In addition, Trustee shall •
have and possess, without limitation, any and all rights and remedies of a secured party as
provided by law.
3. Nautical hereby agrees to indemnify, defend, and hold Trustee harmless from and
against any and all claims, demands, liabilities, losses, lawsuits, judgments, and costs and
expenses (including without limitation any attorneys' fees) to which Trustee may become
exposed,or which Trustee may incur, in exercising any of its rights under this Assignment. THE
INDEMNIFICATION PROVISION PROVIDED FOR HEREIN SHALL BE
APPLICABLE WHETHER OR NOT NEGLIGENCE OF TRUSTEE IS ALLEGED OR
PROVEN.
4. Subject to the aforesaid limitation on further assignment by Nautical, this
Assignment shall be binding upon and inure to the benefit of the heirs, legal representatives,
assigns,and successors in interest of Nautical,Trustee,EDC and Seahawk.
S. In the event any action or proceeding is brought to enforce or interpret the
provisions of this Assignment, the prevailing party shall be entitled to recover, as a part of the
prevailing party's costs, a reasonable attorneys' fee, the amount of which shall be fixed by the
court and made a part of any judgment rendered.
6. This Assignment shall be governed by and construed in accordance with the laws
of the State of Texas as those laws are applied to contracts between residents of said state to be
performed within said state. ,..
7. THE EXCLUSIVE VENUE FOR THIS ASSIGNMENT SHALL BE TILE
STATE OF TEXAS. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET
FORTH IN THIS ASSIGNMENT, THE UNDERSIGNED HEREBY AGREE THAT THE
STATE AND FEDERAL COURTS LOCATED IN JEFFERSON COUNTY, TEXAS SHALL
HAVE EXCLUSIVE JURISDICTION AND VENUE WITH RESPECT TO ALL ACTIONS
BROUGHT BY OR AGAINST ANY PARTY UNDER OR PURSUANT TO THIS
ASSIGNMENT, AND THE UNDERSIGNED HEREBY CONSENT TO THE EXCLUSIVE
JURISDICTION OF SUCH COURTS.
[SIGNATURE PAGE FOLLOWS]
•
2
4826-6323-2811.v6
2016007614 Page 3 of 7
NAUTICAL:
NAUTICAL AFFORDABLE HOUSING INC.,
a Texas non-profit corporation
By: /2.../,i 4
Donald R. Bal ,Executive Director
THE STATE OF TEXAS
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on ruk , 2016 by Donald R. Ball,
Executive Director of Nautical Affordable Housing, Inc., a Texas non-profit corporation, on
behalf of said corporation.
(SEAL) e"."0* MOLLY MALLET �
F,N s;;
1" My Notary IN 315201.9
f
t Expires May 18,2016 Notary Publictate of Texas
3
4826-6323-2811.v6
•
2016007614 Page 4 of 7
ACKNOWLEDG I,AF ,FIRMED,AND AGREED TO:
1
TRUS ,E:
'r
GU( .l
N. GOODSON,AS TRUSTEE
•
THE STATE OF TEXAS § �.
§
COUNTY OF JEFFERSON §
This instnnnent was acknowledged before me on t i i,t.-t`,. i.L--, 2016 by Guy N. Goodson, an
individual, and Trustee for the City of Port Arthur Section 4A Economic Development •
Corporation,a Texas non-profit corporation, on behalf of said corporation.
(SEAL) F�;r t 4 11 � :l '
•
Notary Public—State of Texas
'nv'PiN KALA GOHLKE
I
, n s Notary Public,State of Texas
y1, :,V Comm_Expires 02/23/2019
%it's Notary ID #12521408-9
4
4826-6323-2811.v6
2016007614 Page 5 of 7
SEAHAWK:
SEAHAWK LANDING,LLC,
a Texas limited liability company
By: ITEX Advisors,LLC,
a Texas limited liability company,
its Sole Manager ,
/
By:
Christophe-A.Akbari,President
THE STATE OF TEXAS §
J o,§
COUNTY OF HARRIS §
This instrument was acknowledged before me on L rcA,r(, 2016 by Christopher A.Akbari, •
President of Scahawk Landing, LLC, a Texas non-profit corporation, on behalf of said
corporation.
MOLLY MALLET f
,..*'."06•f "n
(SEAL) c N, ;10; Notary l 3152x01.9 /1
r.Orkr Expires May 18,2016 ? Notary Public •
-te of Texas
•
5
4826-6323-2R11.v6
2016007614 Page 6 of 7
EDC:
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION,
a Texas non-profit corporation
Br•-.7-1;1-e4, --"" . 6" ''''
^1,t,Let. /71 4-141A--.0.) •.
Name: (13-0,.-;d fk-1,—i ...
,
Title: t Pre{i Li 4 r1 IL
THE STATE OF TEXAS §
§
COUNTY OF JEFFERSON §
strument was acknowledged before me o /4,,,,:, g �'1
g �7911h` �_ ,2016 b a
„,..,),(e.,„,-- of the City of Port Arthur Sec on 4A Economic Deve opment Corporation, a •
Texas non-profit corporation,on behalf of said corporation.
RACHEL A. JACQUET ke(SEAL) = �JUNE Notary Public-St974J
of Texas
10,2019
••
6
4826i-6323-2811.v6
2016007614 Page 7 of 7
Exhibit "A"
LEGAL DESCRIPTION
Being 2.204(called 2.203)acres of land,known as LAMAR PORT ARTHUR DORMS,PHASE
I,out of Lakeshore Park to the City of Port Arthur, Jefferson County,Texas,as the same appears
upon the map or plat thereof,on file and of record under County Clerk's File No.2015041258
Official Public Records of Jefferson County,Texas,
•
EXHIBIT " Cl "
Loan Agreement
(Borrower/Owner)
This Loan Agreement ("Loan Agreement") is made and entered into this the 1 day of March,
2016 by and between the City of Port Arthur Section 4A Economic Development
Corporation, a Texas public non-profit corporation ("Lender"), and Seahawk Landing, LLC, a
Texas limited liability company ("Borrower"), for the purposes and consideration hereinafter set
forth.
RECITALS
Lender has agreed to make a loan ("Borrower Loan") to Borrower in the original
principal sum of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00), as evidenced by a
note ("Borrower Note") of even date herewith and secured by a Subordinate Leasehold Estate
Deed of Trust, Security Agreement and Financing Statement ("Deed of Trust") against the
property("Property")more particularly described in Exhibit A attached hereto;
WHEREAS, Borrower and Lender desire to enter into this Agreement to set forth certain
terms and conditions of the Borrower Loan to supplement the provisions of the other documents
executed in connection with or securing the Borrower Loan("Loan Documents").
NOW THEREFORE, for and in consideration of the Borrower Loan and the mutual
covenants contained herein,the parties agree as follows:
1. Terms of Borrower Loan. The terms of the Borrower Loan are as follows:
(a) Note. Borrower's obligation to repay Lender is evidenced by a
promissory note of even date herewith, payable to Lender in the original principal
amount of$1,000,000.00, or so much thereof as shall be advanced.
(b) Purpose. The purpose of the loan is to provide subordinated permanent
loan financing for that certain 101-unit student housing facility, known as
Seahawk Landing (the"Project").
(c) Term. The term of the Loan shall commence on the Closing Date (as
herein defined) and shall mature twenty-three (23) years thereafter (the "Maturity
Date").
(d) Interest. The Loan shall bear interest at the rate of zero percent (0%) per
annum.
(e) Maturity Schedule. Payment of principal or interest shall be payable
under this Note in accordance with the Note Amortization Schedule attached
•
hereto as Exhibit"A" and made a part hereof for all purposes except in the Event
of a Default (as hereinafter defined). The unpaid principal balance of the Note
together with accrued interest thereon shall be due and payable on the Maturity
Date.
(f) Amortization Commencement Date. The Note Amortization Schedule
shall commence as of the Amortization Commencement Date as defined in the
Promissory Note between Borrower and Senior Lender and shall mature twenty-
three (23) years after the Amortization Commencement Date (the "Maturity
Date")
2. Senior Lien Loan Agreement. Borrower and CommunityBank of Texas ("Senior
Lender") have entered into a Loan Agreement dated the I day of March, 2016, for the
provision of the Senior Lien permanent financing for the Project ("Senior Lien Loan
Agreement"). Borrower agrees that (i) all terms and conditions of the Senior Lien Loan
Agreement; and (ii) all terms and conditions specified in the Subordinate Leasehold
Estate Deed of Trust, Security Agreement and Financing Statement (the "Subordinated
Leasehold Deed of Trust") executed by Borrower to Guy N. Goodson as Trustee for the
Lender, are incorporated into this Agreement as if fully set forth herein.
3. Funding. Lender shall fund to Borrower the proceeds of the Note at the Closing
Date as defined in the Senior Lien Loan Agreement (the "Closing Date") and/or
acknowledges that the funds from the Borrower may only be used to provide permanent
financing for the Project.
4. Default under this Agreement. The Lender may declare a default ("Default")
under this Agreement or any one or more of the Loan Documents upon the occurrence of
any one or more of the following circumstances:
(a) Monetary Default. If Borrower fails to pay when due any portion of the
sums owing under the Borrower Note, this Agreement and/or any of the Loan
Documents and such failure continues for ten (10) business days after written
notice thereof from the Lender or any holder of the Borrower Loan;
(b) Non-Monetary Default. If Borrower fails, refuses or neglects to perform
fully and timely any obligation or breaches and covenant, condition,
representation or warranty under this Agreement or any other Loan Document and
such failure continues for thirty(30)days following written notice from Lender to
Borrower, provided however, that in the event that any such cure periods would
cause a material violation to occur under applicable law or any breach or failure
of a life safety covenant, such event shall be deemed a "Default" hereunder
without any notice or opportunity to cure;
5. Notice and Cure Rights. Notwithstanding anything to the contrary contained in
the Loan Documents, Lender hereby agrees that any cure of any default made or tendered
#1254357 2
by a partner of Borrower shall be deemed to be a cure by Borrower and shall be accepted
or rejected on the same basis as if made or tendered by Borrower.
6. Lender's Remedies. Upon the occurrence of a Default under this Agreement,
Lender shall be entitled to exercise all rights and remedies available under the Loan
Documents, without further notice or opportunity to cure by Borrower except as may be
required by applicable law, provided however, that in the event of a non-monetary
default, if such default cannot be cured within thirty (30) days and Borrower is diligently
pursuing such cure to completion, then Borrower shall be provided an amount of time
reasonably required to achieve such cure.
7. Miscellaneous.
(a) This Agreement as supplemented by the Loan Documents contains the
entire agreement between the parties relating to the Loan and shall be amended
only by an instrument in writing executed by the parties hereto.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, personal representatives, successors and
assigns, as the case may require.
(c) This Agreement shall be governed by the law of the State of Texas. Any
dispute arising out of or in connection with this Agreement shall be resolved in
the state courts located in Jefferson County, Texas.
(d) This Agreement may be executed in multiple counterparts, each of which
shall constitute an original.
(e) Notices under the Loan Documents shall be effective in the case of
utilization of the U.S. Mail Service, upon the earlier of(i)three days after deposit
of such notice in the mail, return receipt requested or (ii) delivery. Notices sent
by overnight courier services shall be effective one day after deposit with such
service. All other notices shall be effective upon delivery. Notwithstanding the
foregoing, any foreclosure notices shall be effective upon deposit with the U.S.
Mail Service.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
#1254357 3
SIGNATURE PAGE
LOAN AGREEMENT
(BORROWER)
Executed effective as of the date set forth above.
BORROWER:
SEAHAWK LANDING, LLC
a Texas limited liability company
By: ITEX Advisors, LLC,
A Texas limited liability company, its
Sole Manager
By:
Christophe A. Akbari,President
•
#1254357 4
SIGNATURE PAGE
LOAN AGREEMENT
(OWNER)
LENDER:
CITY OF PORT ARTHUR SECTION 4A '
ECONOMIC DEVELOPMENT CORPORATION,
a Texas public non-profit corporation
By -._ - kA OCs
Inge i olmes, President
Langston'•'ms, Secretary
#1254357 5
Exhibit "A"
LEGAL DESCRIPTION
Being 2.204(called 2.203)acres of land,known as LAMAR PORT ARTHUR DORMS,PHASE
I, out of Lakeshore Park to the City of Port Arthur,Jefferson County,Texas,as the same appears
upon the map or plat thereof,on file and of record under County Clerk's File No.2015041258
Official Public Records of Jefferson County,Texas.
Exhibit "B"
•
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EXHIBIT " C2 "
PROMISSORY NOTE A ��
$1,000,000.00 t rcQ 1 , 2016
I. PROMISE TO REPAY.
FOR VALUE RECEIVED, Seahawk Landing, LLC, a Texas Limited Liability
Company ("Maker")hereby agrees and promises to pay to the order of the City of Port Arthur
Section 4A Economic Development Corporation, a Texas public non-profit corporation
("Payee"), at Jefferson, Texas or at any other place as the holder hereof may from time to time in
writing designate, on the Maturity Date, in coin or currency, which at the time of payment shall
constitute legal tender of the United States of America, the principal sum of ONE MILLION
AND NO/100 DOLLARS ($1,000,000.00) or so much thereof as may be advanced, together
with interest thereon at the rate of zero (0.0%)per annum, compounded annually.
The loan ("Loan") evidenced by this Note is subject to the terms and conditions of that
one certain Loan Agreement ("Loan Agreement") between Maker and Payee of even date
herewith which incorporates terms and conditions of the Loan Agreement between Maker and
CommunityBank of Texas (the"Senior Lien Loan Agreement").
II. TERM.
The term of the Loan shall commence on the date specified as the day of closing in the
Senior Lien Loan Agreement ("Closing Date") and shall mature upon the date defined in the
Loan Agreement (Borrower/Owner) executed by and between Maker and Payee and as
evidenced by the final payment date in the Note Amortization Schedule (defined herein) (the
"Maturity Date"). This Note is secured by and entitled to the benefits of a Subordinate
Leasehold Estate Deed of Trust, Security Agreement and Financing Statement of even date
("Deed of Trust") by Maker to Guy N. Goodson, Trustee, covering leasehold estate ownership
interest in the real property located at 1550 Lakeshore Drive, Port Arthur, Texas, and with fee
ownership of the buildings and other improvements now or hereafter erected thereon, together
with the personal property attached to or used in connection therewith.
III. PAYMENTS.
Payment of principal or interest shall be payable under this Note in accordance with the
Note Amortization Schedule attached hereto as Exhibit "A" and made a part hereof for all
purposes except in the Event of a Default(as hereinafter defined). The unpaid principal balance
of the Note together with accrued interest thereon shall be due and payable on the Maturity Date.
IV. DEFAULT; ACCELERATION.
If a Default shall occur, the entire debt represented by this Note, consisting of the
outstanding principal balance and all accrued interest thereon, shall, at the option of the holder
hereof, become immediately due and payable, and except as otherwise herein provided, without
notice, presentment for payment, demand, notice of nonpayment, notice of intention to
accelerate, acceleration, or other notices of any type which are specifically waived. Time being
of the essence hereof. Payee's rights under this paragraph shall be in addition to any other rights
or remedies it may have under the Loan Agreement and any other loan documents executed in
connection therewith ("Loan Documents"), at law or in equity, to enforce Maker's obligations
under the Loan Documents. For purposes of this Note, the term "Default" shall mean a default
in payment of the Note or under the terms of this Note, the Deed of Trust, the Loan Agreement,
the Development Agreement or any other Loan Document securing or executed in connection
with the Note.
V. PREPAYMENT/MODIFICATION.
THIS NOTE MAY BE PREPAID WITHOUT THE PRIOR WRITTEN CONSENT
OF THE PAYEE.
VI. APPLICATION OF PAYMENTS.
Each payment made on this Note shall be credited first to accrued,unpaid interest and the
remainder to principal.
VII. WAIVER.
Maker hereby waives presentment for payment, protest and demand, notice of protest,
demand and dishonor, and non-payment of this Note, and except as otherwise specified in the
Loan Agreement between the parties, waives notice of default, notice of acceleration, and notice
of intent to accelerate, and hereby consents that the holder hereof may extend the time of
payment or otherwise modify the terms of payment of any part or the whole of the debt
evidenced by this Note, at the request of any other person liable hereon, and such consent shall
not alter nor diminish the liability of any person. The failure to exercise any remedy available to
Payee shall not be deemed to be a waiver of any rights or remedies of Payee under this Note or
under any of the other Loan Documents, or at law or in equity. No extension of the time for the
payment of this Note or any installment due hereunder,made by agreement with any person now
or hereafter liable for the payment of this Note, shall operate to release, discharge, modify,
change or affect the original liability of Maker under this Note, either in whole or in part, unless
Payee specifically, unequivocally and expressly agrees otherwise in writing. This note may not
be changed orally, but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change or modification is sought.
VIII. COSTS OF COLLECTION; ATTORNEYS' FEES.
Maker agrees to pay all costs of collection, including reasonable attorneys' fees, if the
principal of this Note or any payment on the principal or interest hereon is not paid at the
respective maturity and to pay all reasonable costs including,attorneys' fees and court costs, if it
becomes necessary to protect the security hereof, whether suit be brought or not, after default
hereunder by Maker.
#1254438 2
IX. USURY LIMITATIONS.
No provision of the Loan Agreement, this Note, or any instrument securing payment of or
relating to the indebtedness, shall require the payment or permit the collection of interest in
excess of ten (10) percent(the "Default Rate"). If any excess of interest in such respect is herein
or in any other instrument provided for, or shall be adjudicated to be so provided for herein or in
any other instrument, the provisions of this paragraph shall govern and neither Maker nor any
guarantor or endorser of this Note nor their respective heirs,personal representatives, successors,
or assigns shall be obligated to pay such interest to the extent it is in excess of the Default Rate.
Any fees or other sums that under applicable law are deemed to constitute interest shall be or
other sums so deemed interest shall be amortized, prorated, allocated and spread in equal parts
over the full stated term of the loan evidenced hereby.
If the maturity of this Note is accelerated for any reason before the due date stated, or in
the event of any prepayment by Maker, or in any other event, earned interest may never exceed
the Default Rate, computed from the date of disbursement of the loan evidenced hereby until
payment, and any unearned interest otherwise payable hereunder that is in excess of the Default
Rate shall be cancelled automatically as of the date of the acceleration, prepayment, or other
event, and if previously paid, shall at the option of the holder of this Note be either refunded to
Maker or credited on the principal of this Note, provided that, if the holder elects to credit the
unearned interest on the principal of this Note, and such unearned interest exceeds the principal
balance, the excess shall be refunded to Maker. Any interest computation under this Note and
the Loan Agreement shall be at not more than the Default Rate upon the portion of the face
amount hereof representing principal that remains unpaid from time to time, it being the
intention of the parties hereto to conform strictly to the laws applicable to the loan evidenced by
this Note and the Loan Agreement, and should it be held that interest payable under this Note
and the Loan Agreement is in excess of the Default Rate, the interest chargeable hereunder shall
be reduced to the maximum amount permitted by law.
X. GOVERNING LAW.
This Note is made in the State of Texas and shall be governed by and construed in
accordance with the internal laws of the State of Texas, without regard to conflicts of laws
principles.
XI. SUCCESSORS.
This Note shall he binding upon the parties hereto and their respective successors and
assigns.
XII. ENTIRE AGREEMENT.
THIS WRITTEN LOAN AGREEMENT (AS DEFINED BY SECTION 26.02 OF
THE TEXAS BUSINESS AND COMMERCE CODE) REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
#1254438 3
AGREEMENTS OF THE PATIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
#1254438 4
•
EXECUTED on the date first written above.
MAKER:
SEAHAWK LANDING, LLC
a Texas limited liability company
By: Il'EX Advisors, LLC
A Texas limited liability company,
Its Sole Manager
By: 1/
.
Christoph: A. Akbari, President
#1254438 5
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EXHIBIT " C3 "
FILED AND RECORDED
`";< .OFFICIAL PUBLIC RECORDS
When recorded,return to: 2016 Mar 10 03:36 PM Fee: 3 130.00
2016007612
CAROLYN L.GUIDRY, COUNTY CLERK
Germer PLLC JEFFERSON COUNTY TEXAS
Attn: Guy Goodson *Electronically Recorded*
P.O. Box 4915
Beaumont, Texas 77704-4915
Ck LA
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL
PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE
FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT
TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED
FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY
NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
SUBORDINATE LEASEHOLD ESTATE DEED OF TRUST, SECURITY AGREEMENT
AND FINANCING
STATEMENT
From
Seabawk Landing,LLC,
a Texas limited liability company
as Grantor
to
Guy N.Goodson,
as Trustee
for the benefit of
City of Port Arthur Section 4A Economic Development Corporation,
a Texas public non-profit corporation
as Beneficiary
2016007612 Page 2 of 27
SUBORDINATE LEASEHOLD ESTATE DEED OF TRUST,SECURITY AGREEMENT
AND FINANCING STATEMENT
THE STATE OF TEXAS §
COUNTY OF JEFFERSON
ERSON §
That in consideration of certain indebtedness hereinafter described, justly owing by Seahawk
Landing, LLC, a Texas limited liability company, ("Grantor"), to the City of Port Arthur
Section 4A Economic Development Corporation, a Texas public non-profit corporation
("Beneficiary") and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other •
•
valuable consideration paid to the Grantor, the receipt and sufficiency of which are hereby
acknowledged, Grantor has GRANTED, ASSIGNED, TRANSFERRED and
CONVEYED, and does hereby GRANT, ASSIGN, TRANSFER and CONVEY unto Guy N.
Goodson, as trustee("Trustee"), all of the following described property is collectively referred to
herein as the"Property":
A. All of Grantor's right,title and interest,whether now or hereafter arising,in and to:
(i) The leasehold estate in real property situated in Jefferson County, Texas,
pursuant to that certain Ground Lease Agreement executed the day of
March, 2016,more accurately described in EXHIBIT A hereto,together with
all right, title and interest now and/or hereafter owned by Grantor, its
successors and assigns, in the whole or any part of the above described
leasehold estate in real property, and/or any street or road adjacent and/or
contiguous to the above described real property("Land").
(ii) All of Grantor's right, title and interest, whether now or hereafter arising,in
and to all buildings and other improvements now or hereafter placed on
the Land, as well as all appurtenances, betterments and additions thereto
("Improvements"); all and singular the rights, privileges, hereditaments
and appurtenances in anywise incident or appurtenant to the Land and
Improvements; and the rents, revenue, profits and income from the Land
and Improvements.
(iii) All of Grantor's right, title and interest, whether now or hereafter arising, in
and to any and all plumbing, electrical, heating, cooling and other
equipment and all building materials and other goods of every type, kind
and character that are now or hereafter situated upon the Land and which(i)
are intended to be incorporated into the Improvements or (ii) are now, or
hereafter become,fixtures related to the Land or the Improvements; any and
all other goods of every type, kind and character, including without
limitation, all appliances, furniture, fixtures, inventory and equipment now
owned or hereafter acquired by Grantor that are now or hereafter situated
upon the Land (whether or not situated within or attached to the
Improvements) and that facilitate the use and occupancy of the
Improvements for the purpose for which they were or are to be
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2016007612 Page 3 of 27
constructed; all plans and specifications for the Improvements, all rights
of Grantor under all existing and future leases, construction,
maintenance and other contracts covering or relating to the Land or the
Improvements, all tenants deposits made pursuant to or in connection with
such leases, all rights of ingress and egress, easements, water and
wastewater rights, and to the extent assignable, all licenses, permits,
franchises, certificates, accounts, instruments, chattel paper, documents,
agreements, contracts, and general intangibles, and all rights of Grantor
in and to any development rights relating to the Land or the
Improvements(including,without limitation,trade names and symbols used
in connection therewith and any deposits with utility companies) and all
other rights and privileges obtained in connection with, relating to or
associated with the Land or the Improvements (collectively, the
"Personalty")and all proceeds of the Personalty.
B. All of Grantor's right,title and interest,whether now or hereafter arising,in and to any
tax refunds,including interest thereon,tax rebates, ad valorem tax credits, and tax abatements, and
the right to receive the same,which may be payable or available with respect to the Property.
C. All of Grantor's right,title and interest in the proceeds(including conversion to cash
or liquidation claims) of(A) insurance relating to the Property and (B) all awards made for the
taking by eminent domain (or by any proceeding or purchase in lieu thereof) of the Property,
including awards resulting from a change of any streets (whether as to grade, access, or
otherwise)and for severance damages.
D. All of Grantor's right, title and interest, if any, in and to all substances in, on, or �.
under the Land which arc now, or may become in the future, intrinsically valuable, that is,
valuable in themselves, and which now or may be in the future enjoyed through extraction or
removal from the property, including without limitation, oil, gas, and all other hydrocarbons,
coal, lignite, carbon dioxide and all other nonhydrocarbon gases, uranium and all other
radioactive substances, and gold, silver, copper, iron and all other metallic substances or ores
(collectively, "Minerals").
E. All funds of Grantor that may be deposited with Beneficiary at any time and from
time to time for any purpose, which funds shall be deemed to be part of the Personalty for
purposes hereof In the event of a conflict between the terms and conditions of this instrument
and the instrument under which Beneficiary holds any funds of Grantor,the terms and conditions
of the latter instrument shall prevail.
TO HAVE AND TO HOLD the Property unto the Trustee and the assigns of the
Trustee, and Grantor does hereby bind Grantor and the successors and assigns of Grantor, to
WARRANT AND FOREVER DEFEND all and singular the Property and title thereto unto the
Trustee and unto the assigns of the Trustee, against every person or party whomsoever claiming
or to claim the same, or any part thereof, subject,however,to the permitted encumbrances set forth
on EXHIBIT B attached hereto (the "Permitted Encumbrances") and the liens securing the •
Senior Note(as described below).
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2016007612 Page 4 of 27
I.
SECURITY FOR PERFORMANCE OF OBLIGATIONS
This conveyance is made in trust, however, to secure the performance of all covenants
and agreements contained in this Subordinate Leasehold Estate Deed of Trust, Security
Agreement and Financing Statement("Deed of Trust") and that one certain Loan Agreement(the
"Loan Agreement") executed or to be executed between Grantor and Beneficiary, and the full
and prompt payment when due (by lapse of time or otherwise), of the following indebtedness(the
"Indebtedness"):
A. Loan. All stuns, including principal, interest and attorneys'fees, called for in that
certain promissory note (the "Note") executed by Grantor payable to the order of Beneficiary, in
the principal amount of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) or so much
thereof as shall be advanced, which Note evidences that certain loan from Beneficiary to Grantor
of the amount set forth in the Note (the "Loan"), and which Note bears interest at the rates
therein staled and provides for acceleration of maturity should a default under such Note or any of •
the documents evidencing, securing,or otherwise pertaining to the Loan occur.
B. Other Sums. All other sums owing by Grantor to Beneficiary or other holder(s)
of any part of the Indebtedness or becoming due under the Loan Agreement. This Deed of Trust
and all other instruments now or hereafter evidencing, governing or securing any part of the
Indebtedness are hereinafter collectively referred to as the"Loan Documents").
PAYMENT OF THE INDEBTEDNESS;
DEFAULT;ENFORCEMENT OF TRUST
Payments. If the Indebtedness is fully paid and if all of Grantor's covenants
and agreements herein and in the Loan Agreement and the other Loan Documents are fully
kept and performed, then this conveyance shall thereupon become of no further force and effect
and shall be released by Beneficiary or other holder(s) of the Indebtedness upon the written
request and at the expense of Grantor.
B. Enforcement. But if there occurs any Default (as defined in the Loan
Agreement),the whole of the Indebtedness shall at the option of Beneficiary, without notice to
Grantor or any other person, which notice is hereby waived, become immediately due and
payable and thereupon, or at any time thereafter that the Indebtedness or any part thereof remains
unpaid, it shall be the duty of the Trustee, or the Substitute Trustee, as hereinafter defined, at the
request of Beneficiary, or the holder(s) of the Indebtedness, which request shall be presumed, to
enforce this Trust and to sell as an entirety,or in parcels,by one sale or by several sales,held at one
time or at different times, as the Trustee acting may elect (all rights to a marshaling of Grantor's
assets, including Property, or to a sale in inverse order of alienation, being hereby expressly
waived by Grantor), the Property in the county in which the Property, or a part of the Property to
be sold, is situated (the "County") at such area at the courthouse designated by the
Commissioner's Court of the County as the area where sales are to take place, or if no area is
designated, at the door of the County Courthouse, each sale to be made on the first Tuesday of
4
#1254476
2016007612 Page 5 of 27
a calendar month between the hours of 10:00 A.M. and 4:00 P.M. to the highest bidder for cash at
public auction, after both posting or causing to be posted written or printed notice of the time
(including the earliest time at which the sale will occur),place, and term of sale at the door of the
Courthouse of the County and filing or causing to be filed a copy of the notice in the Office of
the County Clerk of the County, for at least twenty-one (21)days preceding the day of sale, and to
execute and to deliver to the purchaser(s) at each such sale proper conveyance(s) of the property
interest sold, with general warranty of title binding upon Grantor and the successors and assigns
of Grantor; or Beneficiary or other holder(s) of the Indebtedness may foreclose or cause to be
foreclosed the Lien of this Deed of Trust,in whole or in part,through judicial foreclosure or in any �.
manner as may at any time be authorized under the statutes of the State of Texas. In addition,the
holder(s) of the Indebtedness to which the power is related shall, at Ieast twenty-one (21) days
preceding the date of sale, serve written notice of the proposed sale by certified mail on each •
person obligated to pay the Indebtedness according to the records of the holder(s). Service of the
notice shall be completed upon deposit of the notice, enclosed in a postpaid wrapper, properly
addressed to each debtor at the most recent address as shown by the records of the holder(s)of the
Indebtedness, in apost office or official depository under the care and custodyof the United
l Y
States Postal Service. The Affidavit of any person having knowledge of the facts to the effect that
service was completed shall be prima facie evidence of the fact of service. No notice of the sale I.
or sales other than that herein provided for need be given to Grantor or any other person or party,
and any other notice is hereby waived. Beneficiary or other holder(s) of the Indebtedness shall
have the right to become the purchaser at any sale to the same extent as any other party, being
the highest bidder, and in lieu of paying cash may credit the amount of the bid upon the
Indebtedness up to the full amount of the Indebtedness then unpaid.
C. Proceeds. The Trustee acting shall apply the proceeds arising from each sale, I:
first, to pay all reasonable expenses of the sale actually incurred, second, to reimburse
Beneficiary for any expenses incurred by Beneficiary in protecting, administering or operating
the Property prior to the foreclosure sale and third, to the payment of the Indebtedness
(including all principal, interest and attorneys' fees owing as part of the Indebtedness). The
proceeds of each sale paid to Beneficiary may be applied by Beneficiary on the Indebtedness in
any order and manner as Beneficiary may elect. Any surplus fluids from the foreclosure sale or
•
sales hereunder shall be paid to Grantor or the person(s)lawfully entitled thereto.
III.
UNMATURED INDEBTEDNESS
If any Default occurs, Beneficiary or other holder(s) thereof shall, in addition to any
remedies available to Beneficiary at law or in equity,have the option to proceed with foreclosure
in satisfaction of such item or items, either through the courts or by directing the Trustee, or the
Substitute Trustee, as hereinafter provided for,to proceed as if under a foreclosure, conducting the
sale as herein provided and without declaring the whole debt due, and if a sale is made because
of such Default, the sale may be made subject to the unmatured part of the Indebtedness, but
as to the unmatured part of the Indebtedness, this Deed of Trust shall remain in full force and
effect just as though no sale had been made under the provisions of this paragraph. Several sales
may be made hereunder without exhausting the right of sale for any unmaturcd part of the
Indebtedness, it being the purpose hereof to provide for a foreclosure and sale of the Property, in
whole or in part, for any matured portion of the Indebtedness without exhausting the power of •
5
#1254476
2016007612 Page 6 of 27
foreclosure and the power to sell the Property, in whole or in part, for any other part of the
Indebtedness subsequently maturing.
Iv.
SUBSTITUTE TRUSTEE
In case of the resignation of the Trustee, or the inability (through death or otherwise), �.
refusal or failure of the Trustee to act, or at the option of Beneficiary or the holder(s) of the
Indebtedness for any other reason (which reason need not be stated), a substitute trustee
("Substitute Trustee")may be named, constituted and appointed by Beneficiary or the holder(s)
•
of the Indebtedness, without other formality than an appointment and designation in writing; the
appointment and designation shall be full evidence of the right and authority to make the same and •
of all facts therein recited; and this conveyance shall vest in the Substitute Trustee the title, power
and duties herein conferred on the Trustee originally named herein and the conveyance of the
Substitute Trustee to the purchaser(s) at any sale shall be equally valid and effective. The right i
to appoint a Substitute Trustee shall exist as often and whenever from any of said causes, the
Trustee, original or Substitute, resigns, or cannot, will not, or does not act, or Beneficiary or the
holders) of a majority of the Indebtedness desire to appoint a new Trustee.No bond shall ever be
required of the Trustee,original or Substitute. The recitals in any conveyance made by the Trustee,
original or Substitute, shall be accepted and construed in court and elsewhere as prima facie
evidence and proof of the facts recited and no other proof shall be required as to the request
by Beneficiary or the holder(s) of a majority of the Indebtedness to the Trustee to enforce this
Trust, or as to the notice of or holding of the sale, or as to any particulars thereof, or as to the
resignation of the Trustee, original or Substitute, or as to the inability, refusal or failure of the •
Trustee, original or Substitute, to act or as to the election of Beneficiary or the holder(s) of a
majority of the Indebtedness to appoint a new Trustee, or as to appointment of a Substitute
Trustee, and all prerequisites of the sale shall be presumed to have been performed; and each sale
made under the powers herein granted shall be a perpetual bar against Grantor and the successors
and assigns of Grantor.
V.
REPRESENTATIONS,WARRANTIES,
COVENANTS AND AGREEMENTS OF GRANTOR
For the purpose of better securing to Beneficiary the payment of the Indebtedness,
Grantor represents,warrants and covenants to Beneficiary as follows: j.
A. Title,Authority, and Performance under Leases. At the time of the execution and
delivery of this Deed of Trust, Grantor is the sole and lawful owner of the Land in fee simple,and
Grantor has the authority to execute this Deed of Trust. The Property is free from all encumbrances
and charges whatsoever except for the liens securing the Senior Note and the Permitted
Encumbrances. No assignments or pledges are currently in effect with respect to any leases of or
rentals or income from the Property except for assignments and/or pledges to Beneficiary and
those expressly stated in EXHIBIT B and those securing the Senior Note, and until the
Indebtedness is fully paid and this Deed of"frust is released, Grantor shall not make any additional
assignment or pledge thereof without Beneficiary's prior written consent.
6 •
01254475
•
2016007612 Page 7 of 27
B. Tax and Insurance Escrow. Upon written request by Beneficiary, Grantor •
agrees to deposit with Beneficiary on a monthly basis, or at other intervals as specified, a sum
that shall be sufficient to pay taxes, assessments, charges, and insurance premiums as they
become due, all as reasonably estimated by Beneficiary, which sum shall be held by Beneficiary
(or by a banking institution selected by Beneficiary whose funds are insured by a federal agency
or instrumentality)in trust to pay taxes, assessments, charges and premiums,but which shall not
•
hear interest and may be commingled with other funds.Hat any time the funds so held by(or on
behalf of) Beneficiary are insufficient to pay any tax, assessment, charge or insurance premium,
Grantor shall, upon receipt of notice, deposit with Beneficiary (or such banking institution), all
additional funds as are necessary to remove the deficiency. If the Indebtedness is for any reason
declared immediately due and payable, funds held by(or on behalf of)Beneficiary for payment of
taxes, assessments, charges or premiums as herein provided may, at Beneficiary's election,be
applied on the Indebtedness in any manner as Beneficiary so elects. In the event that Grantor is
escrowing with a Senior Lender (as defined below) a sum for payment of taxes, assessments,
charges and insurance premiums and such amount is sufficient to fully discharge such taxes,
assessments, charges and insurance premiums, Beneficiary agrees not to require an additional
escrow deposit under this paragraph. In the event that Beneficiary does not require the escrow
deposits described in the paragraph, Grantor shall provide Beneficiary with written evidence that
(i) all applicable taxes and assessments have been paid at least thirty(30)days prior to delinquency
and (ii) all insurance premiums have been paid thirty (30) days before the renewal date of the
applicable policies. Grantor shall duly pay and,discharge, or cause to be paid and discharged, all
taxes, assessments, charges, and insurance premiums as they become due.
C. Insurance. Grantor shall,prior to or concurrently with the execution of this Deed of
Trust, deliver to Beneficiary all of the following insurance policies together with evidence of such
other insurance coverage, accompanied by paid premium receipts evidencing payment in full of
the required premiums for at least the first full year of coverage:
(i) fire insurance with extended coverage and standard Beneficiary and
replacement cost endorsement for the full insurable value of the insurable
portion of the Property, but in no event for an amount less than the ••
amount of the Note (90% shall be acceptable co-insurance rates for fire
•
insurance);and
(ii) public liability insurance in the amount of$1,000,000.00 per occurrence
and $2,000,000.00 in the aggregate for a twelve (12) month policy
period. Each renewal policy shall be delivered to Beneficiary not less
than thirty (30) days before the termination of the prior policy and with
each policy there shall be delivered to Beneficiary a receipt showing
payment of the premium therefor.
Upon request,Grantor shall also carry additional insurance or additional reasonable amounts
of insurance covering Grantor or the Property as Beneficiary shall reasonably require, insuring
against such other insurable hazards which at the time are commonly insured against for
property similar to the Property located in the region where the Property is located.
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If thc Property or any part thereof has been or at any time during the term of this Deed of •
Trust or any extension or renewal thereof is designated as a flood-prone or flood-risk area pursuant
to the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of
1994, as each have been or may be amended, or any successor law, Grantor shall obtain flood
insurance in such total amounts as Beneficiary may from time to time require and shall otherwise j.
comply with the requirements of the National Flood Insurance Program as set forth in the
Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, or
any successor law.
All insurance required under this Deed of Trust shall be fully paid for, non-assessable,
and such policies shall contain such provisions,endorsements,and expiration dates as Beneficiary
shall reasonably require. Such policies shall be issued by insurance companies authorized and
licensed to transact business in the State of Texas with ratings acceptable to Beneficiary in its
sole and absolute discretion and shall name Beneficiary as an additional insured.
D. Operations. Grantor will abstain from and not permit the commission of waste in
or about the Property, will maintain the Property in good operating condition and repair at all
times, ordinary wear and tear excepted, will not remove or demolish the buildings or other
improvements now or hereafter constituting a partt of the Property, or alter the design or
structural character of any buildings or improvements unless Beneficiary shall first consent
thereto in writing, which consent shall be granted or denied in Beneficiary's reasonable •
discretion, and will comply with all laws, ordinances, regulations, covenants, conditions and
restrictions affecting the Property or the use thereof, which consent shall not be unreasonably
withheld, delayed or conditioned. Grantor will not seek or acquiesce in a zoning
reclassification of all or any portion of the Property or grant or consent to any easement,
dedication,plat, or restriction (or allow any casement to become enforceable by prescription), or f,
any amendment or modification thereof, covering all or any portion of the Property, without
Beneficiary's prior written consent. Grantor will not, without the prior written consent of
Beneficiary, permit any drilling or exploration for or extraction, removal, or production of, any
Minerals from the surface or subsurface of the Land regardless of the depth thereof or the method
of mining or extraction thereof
E. Obligations Under Other Loan Documents. Grantor hereby agrees to comply
with and perform all of its obligations under the other Loan Documents and agrees to be
bound by the representations, warranties and covenants made by Grantor contained in the Loan
Documents. All of representations, warranties and covenants contained in the other Loan
Documents are hereby fully incorporated herein.
is
F. Casualty and Condemnation Proceeds. Subject to the terms of the Loan
Agreement and the Intercreditur Agreement (as defined below), in the event of any fire or other F:
casualty to the Property or eminent domain proceedings resulting in condemnation of the Property t.
or any part thereof, Grantor shall have the right to rebuild the Property, and to use all available
insurance or condemnation proceeds therefor,provided that(a) such proceeds are sufficient to keep
the Indebtedness in balance and rebuild the Project in a manner that provides adequate security to
Beneficiary for repayment of the Indebtedness or if such proceeds are insufficient then Grantor
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shall have funded any deficiency, (b) Beneficiary shall have the right to approve plans and
specifications for any major rebuilding and the right to approve disbursements of insurance or
condemnation proceeds for rebuilding under a construction escrow or similar arrangement, which
approval Beneficiary shall not withhold if the senior lender approves the same,and(c)no Default then •
exists under the Loan Documents.If the casualty or condemnation affects only part of the Property and
total rebuilding is infeasible,then proceeds may be used for partial rebuilding and partial repayment
of the Indebtedness in a manner that provides adequate security to Beneficiary for repayment of the
remaining balance of the Indebtedness.
Ca,, Failure to Pay. All taxes and any assessments that are due and payable affecting
the Property shall be paid and discharged in full prior to execution and delivery of this Deed of
Trust, or as they subsequently become due and payable and prior to delinquency. If Grantor fails
to pay any tax,assessment, charge or insurance premium called for herein, Beneficiary may, at its
option, pay the same, or if Grantor fails to perform any of Grantor's covenants or agreements
herein, Beneficiary may, at its option, correct or cause to be corrected the same and pay any
sums in connection therewith as Beneficiary shall determine to be necessary or advisable, and all •
taxes, assessments, charges, insurance premiums and sums paid by Beneficiary in connection
with such matters (collectively, whether one or more, an "Assessment") shall be immediately
repayable by Grantor to Beneficiary, together with interest on each amount at the default rate
provided in the Note from the date the sum is paid by Beneficiary, until the same is refunded to
Beneficiary and all such amounts and interest thereon,shall be secured hereby.Notwithstanding the ;.
foregoing, Grantor shall have the right to object and protest to ad valorem taxes on the Property
in good faith and with due diligence provided that (i) no Default exists under this Deed of Trust
or any of the other Loan Documents, (ii) Grantor gives Beneficiary prior written notice of its
intent to contest an Assessment; (iii) Grantor demonstrates to Beneficiary's reasonable
satisfaction that(A)the Property will not be sold to satisfy the Assessment prior to the final
determination of the legal proceedings, (B) Grantor has taken such actions as are required or
permitted to accomplish a stay of any such sale, and (C) Grantor has either (1)furnished a bond
or surety (satisfactory to Beneficiary in form and amount) sufficient to prevent a sale of the
Property or (2) at Beneficiary's option, deposited one hundred fifty percent (150%) of the full
amount necessary to pay any unpaid portion of any Assessment with Beneficiary; and (iv) such
proceeding shall be permitted under any other instrument to which Grantor or the Property is •
subject(whether superior or inferior to this Instrument).
H. Title Litigation. Subject to title insurance coverage, in case of any litigation
involving the title to any part of the Property, or the validity of this Deed of Trust,Beneficiary may
be represented in the litigation through attorneys of its own selection and Grantor shall, upon
demand, promptly reimburse Beneficiary for all court costs and reasonable attorneys' fees incurred
by Beneficiary in defending and/or protecting its rights in any litigation
L Default. Subject to applicable notice provisions, if a Default (as defined in the
Loan Agreement) occurs, the whole of the Indebtedness, at the option of Beneficiary, shall
become immediately due and payable,without further notice or demand.
). Tenancy at Sufferance. Following any sale of the Property,or any part thereof,under
the provisions of this Deed of Trust, and to the extent permissible under applicable law, all
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persons and parties in possession of the Property sold shall be obligated to immediately vacate the
premises and prior to such vacation shall be tenants at sufferance of the purchaser of the Property
sold and shall be subject to eviction in an action of forcible detainer; provided, the provisions of
this Subparagraph J shall be subject to any agreements made in writing by Beneficiary with
reference to any existing and/or future leases; provided, further, the purchaser at any foreclosure
sale shall have the option to affirm any then existing leases or tenancies or otherwise to succeed to
the rights of Grantor thereunder.
K. Subrogation. To the extent that any of the Indebtedness represents funds utilized •
to satisfy any outstanding Indebtedness or obligations secured by liens, rights, or claims
against the Property or any part thereof, Beneficiary shall be subrogated to any and all liens,rights,
superior titles and equities owned or claimed by the holder of any outstanding indebtedness or
obligation so satisfied, however remote, regardless of whether the liens, rights, superior titles
and equities are assigned to Beneficiary or released by the holder(s)thereof
Homestead Disclaimer. Grantor represents and covenants that the Property
forms no part of any property owned, used, or claimed by Grantor as a business or residential
homestead, or as exempt from forced sale under the laws of the State of Texas and disclaims and
renounces all and every such claim thereto.
M. Additional Transfers and Encumbrances. Beneficiary shall have the right to declare
the Indebtedness secured hereby immediately due and payable in the event the Grantor sells,
transfers, assigns, or conveys its interest, whether voluntarily or involuntarily, in the Property, or
any part thereof, without the prior written consent of Beneficiary, such request not to be unreasonably
withheld, delayed or conditioned or in the event any junior or subordinate mortgage, lien, deed of
trust, or other encumbrance is placed upon the Property without the prior written consent of
Beneficiary,provided the foregoing shall not prohibit the removal of worn or obsolete Personalty •
that is replaced with new items of the same or similar quality. If Beneficiary consents to the sale,
transfer, assignment, or conveyance of Grantor's interest in the Property, or any part thereof, and
waives in writing its right to accelerate the Indebtedness secured hereby as provided in this
Subparagraph M, Beneficiary may require that the transferee assume all the obligations of
Grantor under this Deed of Trust, the Loan Agreement and the Note in a form reasonably
acceptable to Beneficiary and its legal counsel. For purposes of this Subparagraph M,
"transfer" of the Property shall not include the transfer of any direct or indirect ownership
interests in Grantor and such transfers shall not require the consent of Beneficiary hereunder.
NI. No Reliance on Beneficiary. Grantor is experienced in the ownership and •
operation of properties similar to the Property, and Beneficiary is relying solely upon Grantor's
expertise and business plan in connection with the construction of the Improvements and
ownership and operation of the Property. Grantor is not relying on Beneficiary's expertise or ;!
business acumen in connection with the Property or in connection with the construction of the
Improvements. •
•
o. No Litigation. Except as disclosed in writing to Beneficiary, there arc no (i)
actions, suits,_or proceedings, at law or in equity, before any Governmental Authority or arbitrator
pending or threatened against or affecting Grantor, any guarantor, or involving the Property, (ii)
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outstanding or unpaid judgments against the Grantor or the Property,or(iii) defaults by Grantor with
respect to any order, writ, injunction, decree, or demand of any Governmental Authority or
arbitrator.
P. Payment for Labor and Materials. Grantor will promptly pay all bills for labor,
materials,and specifically fabricated materials incurred in connection with the Property(which shall
be deemed an Assessment on the Property) and never pemiit to exist in respect of the Property or
any part thereof any unbonded lien or security interest, even though inferior to the liens and
security interests hereof,for any such bill, and in any event never permit to be created or exist in
respect of the Property or any part thereof any other or additional lien or security interest on a
parity with, superior, or inferior to any of the liens or security interests hereof, except for the •
Permitted Encumbrances and the liens securing the Senior Note. In the event that Grantor
becomes aware that such lien has been recorded against the Property, Grantor shall have such lien
released within thirty (30) days. If Grantor fails to pay any bills for labor, materials, and
specifically fabricated materials incurred in connection with the Property, Beneficiary shall have
the rights set forth in Section V.G for Grantor's failure to pay any Assessment_
Q� Fax on Deed of Trust.At any time any law shall be enacted imposing or authorizing f
the imposition of any tax upon this Deed of Trust, or upon any rights, titles, liens, or security i<
interests created hereby, or upon the Indebtedness or any part thereof, Grantor will immediately •
pay all such taxes, provided that if such law as enacted makes it unlawful for Grantor to pay such
tax, Grantor shall not pay nor be obligated to pay such tax. Nevertheless, if a law is enacted
making it unlawful for Grantor to pay such taxes, then Grantor must prepay the Indebtedness in
full within sixty(60)days after demand therefor by Beneficiary.
R ERISA. If and to the extent that Grantor is obligated under any plan governed by
or subject to the Employee Retirement Income Security Act, as amended ("ERISA"), Grantor
shall fully discharge and satisfy all of its obligations and funding requirements under such plan,
ERISA and the Internal Revenue Code, as amended ("IRC"). Furthermore, Grantor shall
comply in all material respects with any and all applicable provisions of ERISA and the IRC and
will not incur or permit to exist any unfunded liabilities to the Pension Benefit Guaranty
Corporation or to such plan under ERISA or the IRC.
S. Disclosures. If at any time Grantor shall become aware of the existence or
occurrence of any financial or economic conditions or natural disasters which are likely to have a
material adverse affect on the Property or Grantor's financial condition, Grantor shall promptly
notify Beneficiary of the existence or occurrence thereof and of Grantor's opinion as to what
effect such may have on the Property or Grantor. Grantor shall also give prompt notice to
Beneficiary of(i) the serious illness or death of any principal or key employee of Grantor, (ii)
any litigation or dispute,threatened or pending against or affecting Grantor, the Property or any
guarantor which could have a material adverse effect on the Property or the financial condition
or business of any of the aforementioned parties, (iii) any Default, (iv) any default by Grantor or
any acceleration of any indebtedness owed by Grantor under any contract to which Grantor is a
party, and(v)any change in the character of Grantor's business as it existed on the date hereof
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VI.
CAPTIONS
The captions contained in this Deed of Trust are for convenience only and shall not be taken
into account in determining the meaning of any provision of this Deed of Trust.
VII.
ASSIGNMENT OF LEASES iI
As further security for the payment of the Indebtedness, and subject to the rights of senior
lienholders, Grantor hereby assigns to Beneficiary, its successors and assigns, all leases, whether
now in existence or hereafter created, covering all or any portion of the Property together with
all rents to become due under each such lease, subject, however, to any prior assignment in
connection with senior indebtedness. For so long as no Default exists,Grantor may collect the rents,
but not more than one (1)month in advance, in the ordinary course of business, unless otherwise
provided by the express terms of the leases and approved by Beneficiary. In the event of any
Default and at any and all times during the continuance thereof, in addition to all other rights and
remedies of Beneficiary, Beneficiary shall have the exclusive right and power (but not the
obligation)to enter upon and take possession of the Property or any part thereof,to rent or re-rent •
the same, either in the name of Beneficiary or Grantor, to receive all rents, revenues, profits, or
other income from the Property and to apply all amounts received first, to the costs and expenses
incurred by Beneficiary in protecting and operating the Property and next,to the payment of the
Indebtedness in any manner and in any order of priority as Beneficiary shall determine. This •
action by Beneficiary shall not operate as a waiver of the Default, or as an affirmance of any lease
or of the rights of any tenant of title to that part of the Property covered by the lease or held by the
tenant, should the Property, or any part thereof, be acquired by Beneficiary or other purchaser at
a foreclosure sale. The right of Beneficiary to receive all rents, revenues,profits, or other income
from the Property during the continuance of any Default shall be applicable whether Beneficiary has
entered upon or taken possession of the Property, or has otherwise attempted to exercise its rights
hereunder and if any rents, revenues, profits, or other income are paid to or received by Grantor,
Grantor shall immediately pay the same to Beneficiary, without the necessity of any request or
demand therefor. Grantor agrees at any time and from time to time until the Indebtedness is paid
in full to execute and to deliver any additional assignments of leases and/or rents, security
agreements and other instruments as Beneficiary shall from time to time reasonably require. The
substance,form, execution and delivery of additional assignments of leases and/or rents, security
agreements and other instruments shall be reasonably satisfactory to Beneficiary.
VIII.
PERSONALTY
This Deed of Trust covers and includes, without limitation, Grantor's interest in the
Personalty hereinabove described.
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LX.
USE OF PERSONALTY
Grantor represents that all Personalty is property for business use and is not consumer
goods. Grantor further covenants that there are and shall be no conditional sales contracts that cover
any of the Personalty.
X.
•
SECURITY INTEREST IN PERSONALTY
Without limiting any of the provisions of this instrument, Grantor, as referred to in this
paragraph as "Debtor," expressly does the following:
A. Grant. Debtor hereby grants unto the holder of all Indebtedness, described herein as
Secured Party, and referred to in this paragraph as "Secured Party", a security interest in Debtor's
interest in the Personalty.
B. UCC Remedies. Debtor agrees, in addition to any other remedies granted in this
instrument to Secured Party or the Trustee,that Secured Party may,during the existence of any Default,
proceed under Chapter 9 of the Texas Uniform Commercial Code(the"UCC")as to all or any part of the
Personalty and shall have and may exercise with respect to the Personalty all the rights,remedies and
powers of a Secured Party under the UCC,including,without limitation, the right and power to sell
at public or private sale or sales,or otherwise to dispose of,to lease,or to utilize the Personalty and
any part or parts thereof, in any manner authorized or permitted under the UCC after default by a
debtor and to apply the proceeds thereof toward payment of any costs, expenses and attorneys'fees
•
and legal expenses thereby incurred by Secured Party and toward the payment of Debtor's
obligations, including the Note and all other Indebtedness described in this instrument in any order or
manner as Secured Party may elect Among the rights of Secured Party during the existence of a
Default,and without limitation,Secured Party shall have the right to take possession of the Personalty
and to enter upon any premises where same may be situated for this purpose without being deemed
guilty of trespass and without liability for damages thereby occasioned and to take any action deemed
necessary or appropriate or desirable by Secured Party, at its option and in its discretion, to repair,
refurbish or otherwise prepare the Personalty for sale, lease, or other use or disposition as herein
authorized.Debtor agrees that if any notice of sale required under the UCC is mailed,postage prepaid,
to Debtor at the address shown herein at least ten(10) days before the time of the sale or disposition,
the notice shall be deemed reasonable and shall fully satisfy any requirement for giving of the notice.
To the extent it may lawfully do so and without limiting iting any rights and/or privileges herein
granted to Secured Party, Debtor agrees that Secured Party and/or the above Trustee and any
Substitute Trustee, may dispose of any or all of the Personalty at the same time and place and after
giving the same notice provided for in this Deed of Trust in connection with a nonjudicial foreclosure
sale under the terms and conditions set forth in this Deed of Trust. In this connection, Debtor agrees
that the sale may be conducted by the Trustee or the Substitute Trustee; that the sale of the Land
and Improvements described in this Deed of Trust and the Personalty or any part thereof,may be sold
separately and/or together; and that if the Land and Improvements described herein and the Personalty
or any part thereof, are sold together, the Secured Party will not be obligated to allocate the
consideration received as between the Land and Improvements and the Personalty.
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c. Possession. Debtor hereby grants to Secured Party the right, at its option upon a
Default to transfer at any time to itself or to its nominee the Personalty, or any part thereof and to
receive the monies,income,proceeds or benefits attributable or accruing thereto and to hold the same as
security for Debtor's obligations or to apply it on the principal and interest or other amounts owing on any
of Debtor's obligations,whether or not then due,in any order or mariner as Secured Party may elect.All
rights with respect to marshalling of assets of Debtor, including with respect to the Personalty, or to a
sale in inverse order of alienation,are hereby waived.
D. Authority. Debtor hereby covenants, stipulates and agrees that all recitals in any
instrument of assigmnent or any other instrument executed by Secured Party incident to the sale,
transfer, assignment, lease or other disposition or utilization of the Personalty or any part thereof
hereunder shall be prima facie evidence of the matters stated therein and all prerequisites of the sale or
other action taken by Secured Party or of any fact, condition or thing incident thereto shall be rebuttably
presumed to have been performed or to have occurred.
E. Assembly and Expenses. Debtor hereby covenants and agrees that Secured Party
upon a Default may require Debtor to assemble the Personalty and to make it available to Secured
Party at a place to be designated by Secured Party that is reasonably convenient to both parties. All
expenses of retaking, holding,preparing for sale,lease, or other use or disposition, selling,leasing or
otherwise using or disposing of the Personalty and the like that are incurred or paid by Secured
Party as authorized or_permitted hereunder,including also all attorneys'fees,legal expenses and costs,
shall be added to the Indebtedness and Debtor shall be liable therefor.
F. Financing Statement. A carbon,photographic, or other reproduction of this Deed of
Trust may be filed as a Financing Statement under the UCC between Debtor and Secured Party
whose addresses are set forth below. Except for the security interest granted hereby in the
Personalty or otherwise expressly stated in EXHIBIT B hereto, Debtor is owner and holder of the
Personalty free of any adverse claim, security interest or encumbrance, and Debtor will defend the
Personalty against all claims and demands of any person at any time claiming the same or any
interest therein. Debtor has not heretofore signed any financing statement and no financing statement
signed by Debtor is now on file in any public office except those statements,true and correct copies
of which have been delivered to the Secured Party or in connection with the Senior Note (as E'
defined below). So long as any amount remains unpaid on any Indebtedness described in this Deed
of Trust, Debtor will not execute and there will not be filed in any public office any financing
statement or statements affecting the Personalty other than financing statements in favor of the
Senior Lender or Secured Party hereunder, unless the prior written specific consent and approval of
Secured Party shall have first been obtained. Debtor authorizes Secured Party to file, in jurisdiction
where this authorization will be given effect, a financing statement signed only by Secured Party
covering the Personalty and at the request of Secured Party, Debtor will join Secured Party in
executing one or more financing statements,pursuant to the UCC in form satisfactory to Secured
Party and will pay the cost of filing the same or filing or recording this instrument as a financing
statement, in all public offices at any time and from time to time whenever filing or recording of any
financing statement or of this instrument is deemed by Secured Party to be necessary or desirable.
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•
XI.
ADDRESSES
The addresses of Grantor and Beneficiary,are as follows:
Grantor: Seahawk Land ng,LLC
3735 Honeywood Court
Port Arthur,Texas 77642
Attention:Christopher A.Akbari
With a Copy to: Coats Rose
9 Greenway Plaza,Suite 1100
Houston,Texas 77046
Attention:Barry J.Palmer
Beneficiary: City of Port Arthur Section 4A
Economic Development Corporation
501 Procter
Port Arthur,Texas 77640
Floyd Batiste,Executive Director .
Trustee: Guy N. Goodson,Trustee
Germer PLLC
550 Fannin, Suite 400
Beaumont,Texas 77701
Each party shall have the right to designate from time to time another address within the
continental United States for purposes of this Deed of Trust by written notice to the other party. •
•
Notwithstanding the foregoing agreement to provide courtesy copies, such copies shall be a courtesy
only and failure to provide such copies shall have no effect on the validity of a notice properly given to
Grantor.
Notices under this Deed of Trust shall be effective in the case of utilization of the U.S.Mail
Service, upon the earlier of (i) three days after deposit of such notice in the mail, return receipt
requested or(ii) delivery. Notices sent by overnight courier services shall be effective one day after
deposit with such service. All other notices shall be effective upon delivery. Notwithstanding the
foregoing,any foreclosure notices shall be effective upon deposit with the U.S.Mail Service.
XII.
BORROWER UNDERTAKINGS
A. Compliance with Laws. Grantor hereby represents, warrants, covenants and
agrees to and with Beneficiary that:
CO Grantor will not and will not permit any tenant or occupant of the Property to, i.
generate,store,handle or otherwise deal with hazardous or toxic substances in,
on,about or under the Property;and
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(ii) Grantor has not at any time engaged in or permitted, nor, to the best of Grantor's
knowledge after reasonable and prudent inquiry, which has consisted of the
Phase I report, has any current or former tenant, occupant or owner of the
Property, or any portion thereof, engaged in or permitted any generation,
storage, handling, dumping, discharge, disposal, spillage or leakage of any
hazardous or toxic substances, at, on, or about the Property, or any portion
thereof, except as disclosed on the Phase I report, deliverable to Beneficiary
upon request.
Notwithstanding the foregoing, Grantor shall be permitted to have such chemicals, materials
and supplies on the Property which are normally used in connection with the prudent operation, use, •
maintenance and ownership of a multi-unit student housing facility and which are used in compliance
with environmental laws. •
B. Indenmifica.tion. GRANTOR HEREBY AGREES TO INDEMNIFY,
PROTECT, DEFEND (WITH COUNSEL REASONABLY APPROVED BY
BENEFICIARY) AND TO HOLD BENEFICIARY, ITS AGENTS, MEMBERS,
OFFICERS, REPRESENTATIVES AND ITS EMPLOYEES FREE AND
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS,
ADMINISTRATIVE PROCEEDINGS, JUDGMENTS, DAMAGES, PUNITIVE
DAMAGES, PENALTIES, FINES, COSTS, LIABILITIES (INCLUDING SUMS PAID
IN SETTLEMENT OF CLAIMS), INTEREST OR LOSSES, INCLUDING
REASONABLE ATTORNEYS', CONSULTANTS' AND EXPERTS' FEES AND
EXPENSES,OF ANY KIND OR NATURE(COLLECTIVELY, THE• "COSTS")THAT •
•
ARISE DIRECTLY OR INDIRECTLY, FROM OR IN CONNECTION WITH THE •
PRESENCE, SUSPECTED PRESENCE,RELEASE OR SUSPECTED RELEASE (A
"RELEASE") OF ANY HAZARDOUS OR TOXIC SUBSTANCE, FROM, ON,
ABOUT, UNDER OR WITHIN THE PROPERTY, OR ANY PORTION THEREOF
WHICH OCCURS DURING OR PRIOR TO SUCH TIME AS GRANTOR OWNS
THE PROPERTY. NOTWITHSTANDING THE FOREGOING TO THE CONTRARY,
GRANTOR'S LIABILITY HEREUNDER, SUBJECT TO THE DE MINIMIS
PROVISIONS OF ARTICLE XII(A)(ii) ABOVE, SHALL NOT INCLUDE ANY
LOSS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF BENEFICIARY OR ANY EMPLOYEE, AGENT OR
REPRESENTATIVE OF BENEFICIARY OR RELEASE OF HAZARDOUS OR TOXIC
SUBSTANCES BY BENEFICIARY OR ANY EMPLOYEE, AGENT OR
REPRESENTATIVE OF BENEFICIARY AFTER BENEFICIARY HAS TAKEN
POSSESSION OF 1'JiE PROPERTY.
C. Remediation. If any investigation or monitoring of site conditions, or any
cleanup, containment,restoration,removal or other remedial work(collectively,the "remedial work")
is required under any applicable federal, state or local law or regulation, by any judicial order, or
by any governmental entity,or in order to comply with any agreements affecting the Property because of,
or in connection with any release of hazardous or toxic substances, Grantor shall perform, or cause to
be performed; the remedial work in compliance with such law, regulation, order or agreement. All
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remedial work shall be performed by one or more contractors selected by Grantor and approved in
advance, in writing, by Beneficiary and under the supervision of a consulting engineer selected by
Grantor and approved in advance, in writing, by Beneficiary. All costs of any remedial work shall be
paid by Grantor,including,without limitation,the reasonable charges of contractors)and/or the consulting
engineer and Beneficiary's reasonable attorneys' fees and costs incurred in connection with the
•
monitoring or review of any remedial work. If Grantor shall fail to timely commence or cause to be
timely commenced, or fail to diligently prosecute to completion, any remedial work, then Beneficiary
may,but shall not be required to, cause such remedial work to be performed and all costs and expenses
thereof or incurred in connection therewith, shall be "Costs" within the meaning of Subparagraph B
above. All costs shall be due and payable upon demand therefor by Beneficiary,together with interest
thereon at the Default Rate provided in the Note from the date such costs are paid by Beneficiary,until
the same are refunded to Beneficiary and all such costs and the interest thereon shall be secured
hereby.
D. Survival.Notwithstanding anything to the contrary contained herein, or in the Note
or Loan Agreement,the obligations of Grantor under this Paragraph XII shall survive any assumption of the
Indebtedness by a successor to Grantor (whether or not the assumption has been approved or
disapproved, or whether or not Grantor was released from liability on the Indebtedness),foreclosure
of this Deed of Trust(or transfer of the Property in lieu of foreclosure) and release or termination of
this Deed of Trust. `((
XIII.
MISCELLANEOUS
A. No Waiver. No delay by Beneficiary in exercising any right, option or remedy
hereunder, or otherwise afforded by law,shall operate as a waiver thereof or preclude the exercise thereof
during the continuance of any Default.
B. Cumulative Remedy.All rights and remedies of Beneficiary under this Deed of Trust
and any and all other instruments evidencing or securing the Indebtedness, are cumulative and
•
concurrent and may be exercised singularly,successively,or concurrently.
c. No Release_The granting to Grantor or to any other person or party of any extension(s)
of time for payment of all or any part of the Indebtedness or the performance of any covenant or
agreement contained herein,or the taking of other or additional security for the payment of the whole
or any part of the Indebtedness, or the releasing of any part of the security at any time held in
connection with the Indebtedness, shall not in any way release Grantor or any other person or party
obligated for the payment of the Indebtedness, or release or impair this Deed of Trust or any other
security held in connection with the Indebtedness,except to the extent of the person,party or property
expressly released in writing by Beneficiary.
p Severability. If any provision in this Deed of Trust is invalid or unenforceable in
whole or in part,this instrument shall in all other respects remain in full force and effect.
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E. Successors and Assigns.All of the provisions hereof shall apply to and be binding upon
Grantor and the successors and assigns of Grantor(provided the foregoing shall not be construed as
consent to any transfer by Grantor of the Property).
F. Further Assurances and Corrections. From time to time, at the request of
Beneficiary, Grantor will(i)promptly correct any defect,error,or omission which may be discovered
in the contents of this Deed of Trust or in any other Loan Document or in the execution or •
acknowledgment thereof; (ii)execute,acknowledge,deliver,record and/or file such further instruments
(including, without limitation, further deeds of trust, security agreements, financing statements,
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continuation statements and assignments of rents or leases) and perform such further acts and
provide such further assurances as may be necessary,desirable,or proper,in Beneficiary's reasonable
opinion, to carry out more effectively the purposes of this Deed of Trust and the Loan Documents
and to subject to the liens and security interests hereof and thereof any property intended by the terms
hereof or thereof to be covered hereby or thereby, including without limitation, any renewals,
additions, substitutions, replacements, or appurtenances to the Property; (iii) execute,
acknowledge, deliver, procure, file, and/or record any document or instrument (including without
limitation, any financing statement) deemed advisable by Beneficiary to protect the liens and the
security interests herein granted against the rights or interests of third persons; and (iv) pay all costs
connected with any of the foregoing.
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G. Choice of Law. This Deed of Trust shall be performable and enforced in Jefferson •
County, Texas,and shall be construed in accordance with the laws of the State of Texas from time
to time in effect except to the extent preempted by the United States federal law. Venue shall be
appropriate in Jefferson County,as applicable.
H. Usury. In no event shall any provision of this Deed of Trust, the Note, the Loan
Agreement or any other instrument evidencing or securing the Indebtedness ever obligate Grantor to pay
interest on the Note secured hereby at a rate greater than that permitted by law,or obligate Grantor to
pay any taxes, assessments, charges, insurance premiums, or other amounts to the extent that the •
payments constitute interest under applicable law and when added to the interest payable on the Note
secured hereby,would be held to constitute the payment by Grantor of interest at a rate greater than that
permitted by law;and this provision shall control over any provision to the contrary.
It is expressly stipulated and agreed to be the intent of Grantor and Beneficiary at all times to
comply strictly with the applicable Texas law governing the maximum rate or amount of interest
payable on the Note or the Indebtedness or applicable United States federal law to the extent that it
permits Beneficiary to contract for, charge, take, reserve or receive a greater amount of interest than
under Texas law("Highest Lawful Rate"). If the applicable law is ever judicially interpreted so as
to render usurious any amount (i) contracted for, charged, taken, reserved or received pursuant to the
Note, any of the other Loan Documents or any other communication or writing by or between Grantor
and Beneficiary related to the transaction or transactions that are the subject matter of the Loan
Documents,(ii)contracted for, charged or received by reason of Beneficiary's exercise of the option •
to accelerate the maturity of the Note and/or the Indebtedness, or (iii) Grantor will have paid or
Beneficiary will have received by reason of any voluntary prepayment by Grantor of the Note and/or
the Indebtedness, then it is Grantor's and Beneficiary's express intent that all amounts charged in •
excess of the Highest Lawful Rate shall be automatically cancelled, ab initio, and all amounts in
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2016007612 Page 19 of 27
excess of the Highest Lawful Rate theretofore collected by Beneficiary shall be credited on the •
principal balance of the Note and/or the Indebtedness(or, if the Note and all Indebtedness have been
or would thereby be paid in full, refunded to Grantor), and the provisions of the Note and the other
Loan Documents immediately be deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced,without the necessity of the execution of any new document,so as to comply
with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for
hereunder and thereunder. Grantor hereby agrees that as a condition precedent to any claim seeking usury
penalties against Beneficiary,Grantor will provide written notice to Beneficiary,advising Beneficiary in
reasonable detail of the nature and amount of the violation,and Beneficiary shall have sixty(60)days
after receipt of such notice in which to correct such usury violation, if any, by either refunding such
excess interest to Grantor, or crediting such excess interest against the Note and/or the Indebtedness
then owing by Grantor to Beneficiary. All sums contracted for, charged or received by Beneficiary
for the use, forbearance or detention of any debt evidenced by the Note and/or the Indebtedness shall,
to the extent permitted by applicable law, be amortized or spread, using the actuarial method,
throughout the stated term of the Note and/or the Indebtedness (including any and all renewal and
extension periods) until payment in full so that the rate or amount of interest on account of the Note
and/or the Indebtedness does not exceed the Highest.Lawful Rate from time to time in effectand
applicable to the Note and/or the Indebtedness for so long as debt is outstanding.In no event shall the
provisions of Chapter 346 of the Texas Finance Code (which regulates certain revolving credit loan
accounts and revolving triparty accounts) apply to the Note and/or the Indebtedness. Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents,it is not the intention of
Beneficiary to accelerate the maturity of any interest that has not accrued at the time of such
acceleration or to collect unearned interest at the time of such acceleration.
1. Covenants Run with the Land. All Obligations contained in this Deed of Trust and
the other Loan Documents are intended by Grantor, Beneficiary and Trustee to be, and shall be ••
construed as, covenants running with the Property until the lien of this Deed of Trust has been fully
released by Beneficiary.
J. JURY WAIVER GRANTOR AND BENEFICIARY ACKNOWLEDGE
THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT
MAY BE WAIVED, EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE
OPPORTUNITY TO CONSUL1) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY,AND FOR THEIR MUTUAL BENEFIT,WAIVES ANY RIGHT TO
TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE
OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS NOTE, THE
INDEBTEDNESS OR THIS DEED OF TRUST
K. Entire Agreement. THIS DEED OF TRUST, TOGETHER WITH THE NOTE
AND LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS, AND THE
RESTRICTIVE COVENANTS CONSTITUTE A WRITTEN LOAN AGREEMENT AS
DEFINED IN SECTION 26.02 OF THE TEXAS BUSINESS AND COMMERCE CODE.
THIS WRITTEN LOAN AGREEMENT CONSTITUTES TILE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
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2016007612 Page 20 of 27
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE I.
PARTIES. i.
L. Subordination. It is the intent of Beneficiary and Grantor that the indebtedness
evidenced by the Note shall be subordinate in right of payment to the prior payment in full of the •
following indebtedness: (i) Promissory Note in the maximum principal amount of up to FOUR
MILLION AND NO/100 DOLLARS ($4,000,000.00) to be issued by Grantor and payable to
CommunityBank of Texas,N.A. ("Issuer" ), or order,to the extent and in the manner provided in a
certain Intercreditor Agreement to be entered into between Beneficiary, Grantor, the Port Arthur
Economic Development Corporation (the "EDC"),rp and Senior Lender consisting of Issuer, and
CommunityBank of Texas, N.A., a national banking association collectively referred to as "Senior f
Lender" (the "Intercreditor Agreement"); and (ii) $1,000,000.00 to be issued by Grantor and
payable to the EDC or order, to the extent and in the "Senior Note." This Deed of Trust and all of
the other Loan Documents are and shall be subject and subordinate in all respects to the liens,terms,
covenants and conditions of the deeds of trust securing the Senior Note as more fully set forth in the
Intercreditor Agreement. The rights and remedies of the Beneficiary and each subsequent holder of
this Note and the Deed of Trust are subject to the restrictions and limitations set forth in the Intercreditor
Agreement. Each subsequent holder of this Note shall he deemed, by virtue of such holder's
acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and
conditions to be performed or observed by Beneficiary under the Intercreditor Agreement.
[Signatures on following page]
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41254474
A
2016007612 Page 21 of 27
Signature Page •
Subordinate Leasehold Estate Deed of Trust,Security Agreement and Financing Statement
IN WITNESS WHEREOF, Grantor has executed this Subordinate Leasehold Estate
Deed of Trust, Security Agreement and Financing Statement on the date set forth in the
acknowledgments below but to be effective as of/4a r c '7 , 2016.
GRANTOR:
i
SEAHAWK LANDING,LLC a Texas limited
liability company •
By: ITEX Advisors,LLC,
a Texas limited • company,its
Sole Manager
By: _
Christop er A. Akbari, President.
ATTACHMENTS:
EXHIBIT "A" Land
EXHIBIT "B" Permitted Encumbrances
STATE OF TEXAS�,
rte-
COUNTY OF 4.1ARIZIS
This instrument was acknowledged before me on r<ikc�rclr� j , 2016, by Christopher A.
Akbari, the President of 1TEX Advisors, LLC, a Texas limited liability company the sole
manager of SEAHAWK LANDING, LLC, a Texas limited liability company on behalf of said
limited liability company.
NOTARY PULtI.S1C,State of Texas
trALY mixt
i, � gi{ :r1 t�0 315x1.9
ai:i; E Pres May 18 2Q1 t
PRINTED NAME OF NOTARY
My COMMISSION EXPIRES:
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2016007612 Page 22 of 27
Exhibit "A"
LEGAL DESCRIPTION
Being 2.204(called 2.203)acres of land,known as LAMAR PORT ARTHUR DORMS,PHASE
1,out of Lakeshore Park to the City of Port Arthur,Jefferson County,Texas,as the same appears
upon the map or plat thereof,on file and of record under County Clerks File No.2015041258
Official Public Records of Jefferson County,Texas.
2016007612 Page 23 of 27
TAX CERTIFICATE
v IIIII I � II MoPG 2015041258
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S
ALLISON NATHAN GETZ,Y.C.C.
JEFFERSON COUNTY TAX ASSESSOR-COLLECTOR
P.O.BOX 2112,BEAUMONT,TX 77704
EMAIL:PROPERTY()CO.JEFFERSON,TX,US
Issued To: Legal Description
SOUTEX SURVEYORS,INC OUT OF LAKESHORE PARK LT E BLK 154 TR 2
3737 DOCTORS DRIVE CITY OF PORT ARTHUR 2.200
PORT ARTHUR, TX 77642
Fiduciary Number: 7034 Parcel Address:
<- -- Legal Acres: 2.2006
> I
Account Number: 053400-000/174540-00000 Print Date: 11/20/2015
Paid Date:
Certificate No; 229796418 Issue Date: 11/20/2015
Certificate Fee: $10.00 Operator ID: CINDYY
Parent No. 891864 •
TAX CERTIFICATES ARE ISSUED WITH THE MOST CURRENT INFORMATION AVAILABLE.ALL ACCOUNTS ARE SUBJECT TO CHANGE
PER SECTION 26.15 OF THE TEXAS PROPERTY TAX CODE.THIS IS TO CERTIFY THAT ALL TAXES DUE ON THE ABOVE DESCRIBED
PROPERTY HAVE BEEN EXAMINED,UP TO AND INCLUDING THE YEAR 2015.ALL TAXES ARE PAID IN FULL
Exemptions: Certified Owner:
PRO SCHOOLS LAMAR STATE COLLEGE
PORT ARTHUR
PO BOX 310
PORT ARTHUR , TX 776410310
•
Certified Tax Unit(s):
2015 Value: 8,370 1 JEFFERSON COUNTY
2015 Levy: $0.00 9 PORT ARTHUR ISD
3S CITY OF PORT ARTHUR
2015 Levy Balance: $0.00 43 PORT OF PORT ARTHUR
Prior Year Levy Balance: 50.00 51 DRAINAGE DISTRICT#7
55 SABINE•NECHES NAV.DIST.
Tot al Levy Due: $0.00
P&1 4-Attorney Fee: 50.00 Re-NAO.
Total Amount Due: $0.00 CITY OF PORT ARTHUR
444 4TR STREET
PORT ARTHUR TX 71640
FILED AND RECORDED
Reference(GF)No: N/A OFFICIAL PUBLIC RECORDS
Issued By: � .
ALLISOIN NATHAN bliETZ.P.C.C.
JEFFERSON COUNTY TAX ASSESSOR-COLLECTOR
(409)835-8516,WEBSITE:WWW.JEFFCOTAX.COM Carolyn L. Guidry, County Clerk
Jefferson County, Texas
December 22, 2015 04:21:58 P11
FEE: $46.00 2015041258
53.1.80
r '
ti 1 • _
2016007612 Page 24 of 27
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2016007612 Page 25 of 27
EXHIBIT B
PERMITTED ENCUMBRANCES
[ATTACH]
2016007612 Page 26 of 27
Permitted Encumbrances
A. Leasehold Deed of Trust, Assignment of Rents and Security Agreement and Fixture
Filing dated March 7, 2016, filed or to be filed in the Official Public Records, Jefferson County,
Texas, executed by Seahawk Landing, LLC, a Texas limited liability company, to Joe F. West,
Trustee for the benefit of CommunityBank of Texas, N.A., given to secure the payment of one
•
certain promissory note for the sum of$4,000,000.00.
B. Thirty (30) foot utility easement in favor of the City of Port Arthur as recorded under
County Clerk's Film Code No. 100-76-0128 Real Property Records of Jefferson County,Texas.
C. Easement in favor of Gulf States Utilities Company as recorded under County Clerk's
Film Code No. 103-07-0624 Real Property Records of Jefferson County,Texas.
D. Amended Information form filed by Jefferson County Drainage District No. 7, recorded
under County Clerk's File No.2014023296,Official Public Records of Jefferson County,Texas.
E. Terms and conditions of that certain Ground Lease for Seahawk Landing, LP between
Lamar State College-Port Arthur and Seahawk Landing, LP, a Memorandum of Ground Lease
recorded or to be recorded in the Official Public Records of Jefferson County,Texas.
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F. UCC-1 Financing Statement from Seahawk Landing, LLC, Debtor, to CommunityBank
of Texas, N.A., Secured Party, filed or to be filed in the Official Public Records, Jefferson !='
County,Texas.
G. Subordinate Leasehold Estate Deed of Trust, Security Agreement and Financing
Statement dated March 7, 2016, filed or to be filed in the Official Public Records, Jefferson
County, Texas, executed by Scahawk Landing, LLC, a Texas limited liability company, to
Donald R. Ball, Trustee on behalf of Nautical Affordable IIousing, Inc., a Texas non-profit
corporation, given to secure the payment of one certain promissory note in the amount of
$1,000,000.00. Interereditor and Subordination Agreement by and between Nautical Affordable
Housing, Inc., CommunityBank of Texas, N.A. and Seahawk Landing, LLC dated March 7,
2016, filed or to be filed in the Official Public Records, Jefferson County, Texas. Collateral
Assignment of Note and Liens dated March 7, 2016, filed or to be filed in the Official Public
Records, Jefferson County, Texas, executed by Nautical Affordable Housing, Inc_ to Guy N.
Goodson, Trustee for the benefit of the City of Port Arthur Section 4A Economic Development
Corporation.
2016007612 Page 27 of 27
H. UCC-1 Financing Statement from Seahawk Landing, LLC, Debtor, to Nautical
Affordable Housing, Inc., Secured Party, filed or to be filed in the Official Public Records,
Jefferson County,Texas.
1. Subordinate Leasehold Estate Deed of Trust, Security Agreement and Financing
Statement dated March 7, 2016, filed or to be filed in the Official Public Records, Jefferson
County, Texas, executed by Seahawk Landing, LLC, a Texas limited liability company, to Guy •
N. Goodson, Trustee on behalf of City of Port Arthur Section 4A Economic Development
Corporation, a Texas non-profit corporation, given to secure the payment of one certain
promissory note in the amount of$1,000,000.00. Intercreditor and Subordination Agreement by
and between City of Port Arthur Section 4A Economic Development Corporation,
CommunityBank of Texas,N.A. and Seahawk Landing,LLC dated March 7,2016, filed or to be
filed in the Official Public Records, Jefferson County,Texas. �.
J. UCC-1 Financing Statement from Seahawk Landing,LLC,Debtor, to City of Port Arthur
Section 4A Economic Development Corporation, Secured Party, filed or to be filed in the
Official Public Records,Jefferson County,Texas.
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