2012 NSP TDHCA promissory docs 770999991261fri‘
Dear NSP Borrower,
Enclosed please find the original
Promissory Note and recorded Deed
of Trust documents associated with
your loan through TDHCA, which has
been fully released.
Please archive these documents with any
other original documents associated to
loan number 770 99 999 /24
If you have any questions, please contact
Melissa M. Whitehead by email at
melissa .whiteheadptdhca.state.tx.us.
You may also call (800) 298 -4013 or
(512) 475-3349.
IT HAS BEEN A PLEASURE
DOING BUSINESS WITH YOUR
ORGANIZATION.
U.S. $110,188.25
PROMISSORY NOTE
PAID IN FULL
L1,1 17e 999991241
April 11 , 2012
NEIGHBORHOOD STABILIZATION PROGRAM ( "NSP ")
Awarding Federal Agency: United States Department of Housing and Urban Development
TDHCA Federal Award Number: B- 08 -DN -48 -0001
Federal Award Year (Year of Award from HUD to TDHCA): 2008
TDHCA Award Year (Year of TDHCA Board Approval): 2009
For value received, CITY OF HUNTSVILLE, a political subdivision of the State of Texas
( "Maker ") promises to pay to the order of TEXAS DEPARTMENT OF HOUSING AND
COMMUNITY AFFAIRS, a public and official agency of the State of Texas ("Payee") at 221 E. 11th
Street, P.O. Box 13941 in the City of Austin, Travis County, Texas 78711 -3941 (or at such other place
in Austin, Travis County, Texas, as Payee may from time to time designate by written notice to
Maker), the sum of One Hundred Ten Thousand One Hundred Eighty Eight and 25/100 Dollars
($110,188.25), or so much thereof as may be advanced and outstanding, together with interest on the
principal balance from the date hereof at a rate equal to Zero percent (0 %) per annum.
No interest shall accrue on this Note unless the maturity of this Note has been accelerated as
hereinafter provided.
The principal and interest, if any, of this Note shall be due and payable upon the sale of the
developed real property described below or on August 31, 2012, whichever occurs first ( "maturity ").
Payee agrees to defer and waive repayment of the principal loan amount, but only in the event
Maker: (1) has not at any time been in default under any terms of this Note or any document securing
payment of this Note, including without limitation, the Deed of Trust; (2) has complied with the
affordability requirements to wit, the rehabilitated or newly constructed single family residential
dwelling must be set aside for an individual or family whose annual income does not exceed 120% of
the area median income as defined in the Housing and Economic Recovery Act 2301(f)(3)(A)(i) and
(ii) of 2008 ( "Eligible Household "); (3) has sold the rehabilitated or newly constructed single family
residential dwelling at a sales price not to exceed $110,188.25 (an amount equal to the acquisition cost
of the property and cost to construct such single family residential dwelling to a decent, safe, and
habitable condition); (4) has converted the deferred, waived principal loan amount to a permanent
mortgage loan and/or down payment assistance loan under the NSP Program to an Eligible Household;
and (5) has submitted to Payee evidence fully executed and recorded, if applicable, homebuyer
assistance loans in a total amount not to exceed $110,188.25.
Upon maturity or the sale of the developed lot to an Eligible Household, whichever is earlier,
any deferred, unpaid and unwaived balance remaining hereunder shall be forgiven, but only in the
event Maker has not at anytime been in default under any terms of this Note or any other documents
securing same.
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ORIGINAL
Computations of interest on the unpaid principal balance of this Note shall be made on the basis
of 365 or 366 days in a year, as applicable.
After maturity (by acceleration or otherwise) and until paid, the unpaid, unwaived principal
balance and accrued interest then due shall bear interest at the lesser of (i) ten percent (10 %) per annum
or (ii) the highest interest rate allowed by Applicable Law ( "Default Interest Rate "). Notwithstanding
any other provision of this Note, the daily Default Interest Rate shall be calculated by dividing the
Default Interest Rate per annum applicable for such day by the actual number of days in the calendar
year (whether 365 or 366).
This Note may be prepaid in part or in its entirety at any time, without notice or penalty but any
amounts prepaid may not be reborrowed. Partial prepayment shall be applied first to accrued and
unpaid interest, if any, with the balance to the principal installments in inverse order of maturity. Any
payment received more than thirty (30) days before it is due shall be considered a prepayment, unless
Maker otherwise designates in writing at the time such payment is made.
Any amounts owing on this Note shall be payable at the address of Payee stated above (or at
such other place in Austin, Travis County, Texas designated by Payee in writing delivered to Maker at
the address of Maker set forth above) in lawful money of the United States of America that is legal
tender for public and private debts at the time of payment. The making of any payment in other than
immediately available funds, which Payee, at its option, elects to accept shall be subject to collection,
and interest shall continue to accrue until the funds by which such payment is made are available to
Payee for its use.
If any payment required under this Note is not paid within 15 days after it becomes due and
payable, then Maker shall pay to Payee, subject to the provisions of this Note limiting the amount of
interest, the payment of a late charge (the "Late Charge ") to compensate Payee for the loss of use of
funds and for the administrative expenses and costs of handling such delinquent payment equal to a
one -time charge of five percent (5.00 %) of the amount of such payment that was not timely paid (but
such Late Charge together with all interest payable hereon shall not exceed the maximum lawful rate
under Applicable Law). The term "Applicable Law" as used herein means (1) the law pertaining to
maximum rates of interest that is now in effect and (2) any law that comes into effect at any time in the
future allowing a higher maximum interest rate than the law now in effect. Payee is not obligated to
accept any past due payment that is not accompanied by a Late Charge, but may accept such payment
without waiving its rights to collect the Late Charge. In no event shall a Late Charge be payable by
reason of the acceleration of the indebtedness evidenced by this Note; therefore, a Late Charge would
only be due and payable with respect to payments under this Note which became delinquent prior to the
acceleration of the indebtedness evidenced hereby.
Maker shall pay a charge of $25.00 for any check returned for any reason.
If this Note is placed in the hands of an attorney for collection or is collected by legal
proceedings of any kind, Maker agrees to pay all costs of collection, including reasonable attorneys' fee
and costs to the extent allowed by law.
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Except as provided in this Note, Maker and each endorser and guarantor of this Note jointly and
severally waive grace, presentment for payment, notice of renewals and extensions, notice of
nonpayment, notice of protest, notice of and demand for payment of installments or other amounts
coming due under this Note that are not paid when due, notice of intent or election to accelerate
maturity or the actual acceleration of maturity of the indebtedness evidenced by this Note, and
diligence in the collection of this Note, in filing suit on this Note and in seizing or foreclosing on any
collateral securing this Note and agree to one or more extensions of maturity and partial payments
before or after maturity without prejudice to rights of the holder of this Note.
This Note is secured by the liens and security interests granted in the deed of trust (with security
agreement and assignment of rents) ( "Deed of Trust ") dated of even date herewith from Maker to
Timothy K. Irvine, Trustee for Payee conveying the following property (hereinafter referred to as the
"Property"):
LOT NINE (9), BLOCK TWENTY -FOUR (24) of HIGHLAND ADDITION No. 3, a
subdivision within the City of Huntsville, P. Gray League, A -24, Walker County, Texas
according to the map or plat thereof recorded in Volume 1 Page 6 of the Plat Records,
Walker County, Texas.
This Note is given in renewal and extension, and not in extinguishment, of the sum of One
Hundred Six Thousand Seven Hundred Ninety Seven and 65/100 Dollars ($106,797.65), left owing
and unpaid by Maker herein on that one certain promissory note in the original principal sum of One
Hundred Six Thousand Seven Hundred Ninety Seven and 65/100 Dollars($106,797.65), dated June 6,
2011, executed by Maker and payable to the order of Payee, more fully described in and secured by a
Deed of Trust of even date therewith to Michael Gerber, Trustee, duly recorded on June 7, 2011 under
Document No.00003718, Volume 983, Page 85, of the Official Public Records of Walker County,
Texas, and all liens, rights and interests securing same are hereby ratified, renewed and bought forward
for the benefit of Payee.
The construction costs will be advanced to Maker at its special instance and request in
accordance with the terms of that certain Construction Loan Agreement dated of even date herewith,
between Maker and Payee (collectively, the "Loan Agreement "), and incorporated herein by reference
for all purposes.
Any default under the Deed of Trust securing this Note shall be deemed to be a default under
this Note. IF ANY PART OF THE COLLATERAL SECURING THIS NOTE IS
TRANSFERRED OR CONVEYED WITHOUT PAYEE'S PRIOR CONSENT, THIS NOTE IS
IMMEDIATELY DUE AND PAYABLE AND PAYEE MAY INVOKE ANY REMEDIES
PROVIDED UNDER THE DEED OF TRUST SECURING THIS NOTE. If the collateral is
residential real property containing fewer than five dwelling units or a residential manufactured
home occupied by Maker, exceptions to this provision are limited to (a) a subordinate lien or
encumbrance that does not transfer rights of occupancy of the property; (b) creation of a
purchase money security interest for household appliances; (c) transfer by devise, descent, or
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als
operation of law on the death of a co- owner; (d) grant of a leasehold interest of three years or
less without an option to purchase; (e) transfer to a spouse or children of owner or between co-
owners; (f) transfer to a relative of owner or on owner's death; and (g) transfer to an inter vivos
trust in which owner is and remains a beneficiary and occupant of the property
In the event of default in the payment of any part of the principal or interest on this Note and
Maker's failure to cure the default within thirty (30) days after Payee's delivery of written notice of
default to Maker, or in the event of default in the performance of any other agreement contained in the
Loan Agreement or any document securing the payment of this Note or otherwise executed in
connection herewith, and Maker's failure to cure the default within thirty (30) days after Payee's
delivery of written notice of the default to Maker, then the holder of this Note shall have the
unconditional right, without demand, notice, or other action, to declare the unpaid principal balance of
this Note, together with interest accrued on the unpaid principal balance, at once due and payable and
to foreclose each lien and security interest securing the payment of this Note, either under any power of
sale contained in any documents creating such lien or security interest or by court proceedings, as the
holder may elect. Notice shall be deemed to have been delivered upon actual receipt or upon deposit, if
deposited in an official depository of the United States Postal Service, properly addressed to the party
entitled to the notice, marked certified mail, return receipt requested, and containing sufficient postage.
For the purpose of notice, Maker's address is 1212 Avenue M, Huntsville, Walker County, Texas
77340. Maker shall have the right to change its address and specify any other address within the
United States of America by at least ten (10) days' written notice to Payee.
All agreements and transactions between Maker and Payee, whether now existing or hereafter
arising, whether contained herein or in any other instrument, and whether written or oral, are hereby
expressly limited so that in no contingency or event whatsoever, whether by reason of acceleration of
the maturity hereof, prepayment, demand for payment or otherwise, shall the amount contracted for,
charged or received by Payee from Maker for the use, forbearance, or detention of the principal
indebtedness or interest hereof, which remains unpaid from time to time, exceed the maximum amount
permissible under Applicable Law, it particularly being the intention of the parties hereto to conform
strictly to the law of the State of Texas and of the United States of America, whichever is applicable.
Any interest payable hereunder or under any other instrument relating to the loan evidenced hereby that
is in excess of the legal maximum under Applicable Law, shall, in the event of acceleration of maturity,
prepayment, demand for payment or otherwise, be automatically, as of the date of such acceleration,
prepayment, demand or otherwise, applied to a reduction of the principal indebtedness hereof and not
to the payment of interest, or if such excessive interest exceeds the unpaid balance of such principal,
such excess shall be refunded to Maker. To the extent permitted by Applicable Law, determination of
the legal maximum amount of interest shall at all times be made by amortizing, prorating, allocating
and spreading in equal parts during the period of the full stated term of the loan, all interest at any time
contracted for, charged or received from Maker in connection with the loan, so that the actual rate of
interest on account of such indebtedness is uniform throughout the term thereof.
This Note shall be governed by and construed in accordance with the laws of the State of Texas
and the United States of America from time to time in effect.
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Notwithstanding anything herein to the contrary, Payee shall have no recourse against Maker,
nor against any guarantor, if any, for payment and performance of all of the obligations, covenants and
agreements of Maker under this Note and the documents securing same including, but not limited to
the Deed of Trust (said documents hereafter collectively called "Security Documents "), except to the
full extent of all of the Property which constitutes security for this Note. If default occurs in the timely
and proper payment of any portion of such indebtedness or in the timely performance of any of such
obligations, agreement or covenants, any judicial proceedings brought by Payee against Maker or any
guarantor shall be limited to the protection and preservation of the Property, the preservation,
enforcement and foreclosure of the liens, mortgages, assignments, rights and security interests now or
at any time hereafter securing the payment of the Note, and enforcement and collection of obligations,
covenants and indebtedness for which Maker and any guarantors remain liable as provided in this
paragraph. If there is a foreclosure of any such liens, mortgages, assignments, rights, and security
interests securing the payment of this Note, by power of sale or otherwise, no judgment for any
deficiency upon such indebtedness shall be sought or obtained by Payee against Maker.
Notwithstanding the foregoing provisions of this paragraph or any other agreement, Payee shall have
full recourse against Maker and all guarantors, if any, for: (a) fraud or misrepresentation by Maker or
any guarantor in connection with the transactions herein contemplated; (b) failure to pay taxes,
assessments, charges for labor or materials or other charges that can create liens on any portion of the
Property; (c) the misapplication of (i) proceeds of insurance covering any portion of the Property, or (ii)
proceeds of the sale or condemnation of any portion of the Property, or (iii) rentals received by or on
behalf of Maker subsequent to the date on which Payee gives written notice of the posting of
foreclosure notices, (d) failure to prevent waste to the Property unless Payee is compensated therefor by
insurance proceeds collected by Maker; (e) the return to Payee of all unearned advance rentals and
security deposits paid by tenants of the Property and not refunded to or forfeited by such tenants, (f) the
return of, or reimbursement for, all personalty taken from the Property by or on behalf of Maker, (g) all
court costs and for all attorneys' fees provided for in any instrument governing, securing or pertaining
to the payment of the Note; and (h) failure to comply with any indemnification provision or covenants
pertaining to environmental matters contained in the Security Documents.
Each term and provision of this Note is expressly subject to the terms and conditions of the
Neighborhood Stabilization Program Contract #77099999126 executed between Office of Rural
Affairs established within the Department of Agriculture, a public and official agency of the State of
Texas, and Maker herein, dated to be effective September 1, 2009 in the original amount of
$1,050,000.00, as assigned and transferred to Payee by assignment of Contract on August 30, 2011 and
as may be amended from time to time ( "NSP Contract "), which provides acquisition and rehabilitation
or new construction of lot(s) development under the NSP; said NSP Contract is incorporated herein by
reference. The terms of the NSP Contract shall govern over any conflicting provisions hereof.
THIS WRITTEN AGREEMENT AND THE OTHER WRITTEN AGREEMENTS,
INCLUDING THE COLLATERAL AGREEMENTS, SIGNED CONTEMPORANEOUSLY
WITH THE SIGNING HEREOF REPRESENT 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.
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MAKER:
CITY OF HUNTSVILLE, a political subdivision of the
State of Texas
By:
Name: Bill Baine
Title: City Manager
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PROMISSORY NOTE
U.S. $106,797.65
NEIGHBORHOOD STABILIZATION PROGRAM ( "NSP ")
Awarding Federal Agency: United States Department of Housing and Urban Development
TDHCA Federal Award Number: B- 08 -DN -48 -0001
Federal Award Year (Year of Award from HUD to TDHCA): 2008
TDHCA Award Year (Year of TDHCA Board Approval): 2009
For value received, CITY OF HUNTSVILLE, a political subdivision of the State of Texas
( "Maker ") promises to pay to the order of TEXAS DEPARTMENT OF HOUSING AND
COMMUNITY AFFAIRS, a public and official agency of the State of Texas ( "Payee ") at 221 E. 1 lth
Street, P.O. Box 13941 in the City of Austin, Travis County, Texas 78711 -3941 (or at such other place
in Austin, Travis County, Texas, as Payee may from time to time designate by written notice to
Maker), the sum of One Hundred Six Thousand Seven Hundred Ninety -Seven and 65/100 Dollars
($106,797.65), or so much thereof as may be advanced and outstanding, together with interest on the
principal balance from the date hereof at a rate equal to Zero percent (0 %) per annum.
No interest shall accrue on this Note unless the maturity of this Note has been accelerated as
hereinafter provided.
The principal and interest, if any, of this Note shall be due and payable upon the sale of the
developed real property described below or on August 31, 2011, whichever occurs first ( "maturity ").
Payee agrees to defer and waive repayment of the principal loan amount, but only in the event
Maker: (1) has not at any time been in default under any terms of this Note or any document securing
payment of this Note, including without limitation, the Deed of Trust; (2) has complied with the
affordability requirements to wit, the rehabilitated or newly constructed single family residential
dwelling must be set aside for an individual or family whose annual income does not exceed 120% of
the area median income as defined in the Housing and Economic Recovery Act 2301(f)(3)(A)(i) and
(ii) of 2008 ( "Eligible Household "); (3) has sold the rehabilitated or newly constructed single family
residential dwelling at a sales price not to exceed $106,797.65 (an amount equal to the acquisition cost
of the property and cost to construct such single family residential dwelling to a decent, safe, and
habitable condition); (4) has converted the deferred, waived principal loan amount to a permanent
mortgage loan and /or down payment assistance loan under the NSP Program to an Eligible Household;
and (5) has submitted to Payee evidence fully executed and recorded, if applicable, homebuyer
assistance loans in a total amount not to exceed $106,797.65.
Upon maturity or the sale of the developed lot to an Eligible Household, whichever is earlier,
any deferred, unpaid and unwaived balance remaining hereunder shall be forgiven, but only in the
event Maker has not at anytime been in default under any terms of this Note or any other documents
securing same.
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OR161NAL
Computations of interest on the unpaid principal balance of this Note shall be made on the basis
of 365 or 366 days in a year, as applicable.
After maturity (by acceleration or otherwise) and until paid, the unpaid, unwaived principal
balance and accrued interest then due shall bear interest at the lesser of (i) ten percent (10 %) per annum
or (ii) the highest interest rate allowed by Applicable Law ( "Default Interest Rate "). Notwithstanding
any other provision of this Note, the daily Default Interest Rate shall be calculated by dividing the
Default Interest Rate per annum applicable for such day by the actual number of days in the calendar
year (whether 365 or 366).
This Note may be prepaid in part or in its entirety at any time, without notice or penalty but any
amounts prepaid may not be reborrowed. Partial prepayment shall be applied first to accrued and
unpaid interest, if any, with the balance to the principal installments in inverse order of maturity. Any
payment received more than thirty (30) days before it is due shall be considered a prepayment, unless
Maker otherwise designates in writing at the time such payment is made.
Any amounts owing on this Note shall be payable at the address of Payee stated above (or at
such other place in Austin, Travis County, Texas designated by Payee in writing delivered to Maker at
the address of Maker set forth above) in lawful money of the United States of America that is legal
tender for public and private debts at the time of payment. The making of any payment in other than
immediately available funds, which Payee, at its option, elects to accept shall be subject to collection,
and interest shall continue to accrue until the funds by which such payment is made are available to
Payee for its use.
If any payment required under this Note is not paid within 15 days after it becomes due and
payable, then Maker shall pay to Payee, subject to the provisions of this Note limiting the amount of
interest, the payment of a late charge (the "Late Charge ") to compensate Payee for the loss of use of
funds and for the administrative expenses and costs of handling such delinquent payment equal to a
one -time charge of five percent (5.00 %) of the amount of such payment that was not timely paid (but
such Late Charge together with all interest payable hereon shall not exceed the maximum lawful rate
under Applicable Law). The term "Applicable Law" as used herein means (1) the law pertaining to
maximum rates of interest that is now in effect and (2) any law that comes into effect at any time in the
future allowing a higher maximum interest rate than the law now in effect. Payee is not obligated to
accept any past due payment that is not accompanied by a Late Charge, but may accept such payment
without waiving its rights to collect the Late Charge. In no event shall a Late Charge be payable by
reason of the acceleration of the indebtedness evidenced by this Note; therefore, a Late Charge would
only be due and payable with respect to payments under this Note which became delinquent prior to the
acceleration of the indebtedness evidenced hereby.
Maker shall pay a charge of $25.00 for any check returned for any reason.
If this Note is placed in the hands of an attorney for collection or is collected by legal
proceedings of any kind, Maker agrees to pay all costs of collection, including reasonable attorneys' fee
and costs to the extent allowed by law.
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Except as provided in this Note, Maker and each endorser and guarantor of this Note jointly and
severally waive grace, presentment for payment, notice of renewals and extensions, notice of
nonpayment, notice of protest, notice of and demand for payment of installments or other amounts
coming due under this Note that are not paid when due, notice of intent or election to accelerate
maturity or the actual acceleration of maturity of the indebtedness evidenced by this Note, and
diligence in the collection of this Note, in filing suit on this Note and in seizing or foreclosing on any
collateral securing this Note and agree to one or more extensions of maturity and partial payments
before or after maturity without prejudice to rights of the holder of this Note.
This Note is secured by the liens and security interests granted in the deed of trust (with security
agreement and assignment of rents) ( "Deed of Trust ") dated of even date herewith from Maker to
Michael Gerber, Trustee for Payee conveying the following property (hereinafter referred to as the
"Property "):
LOT NINE (9), BLOCK TWENTY -FOUR (24) of HIGHLAND ADDITION No. 3, a subdivision
within the City of Huntsville, P. Gray League, A -24, Walker County, Texas according to the map or
plat thereof recorded in Volume 1 Page 6 of the Plat Records, Walker County, Texas.
$100,000.00 of this for reimbursement of acquisition and $6,797.65 is for construction costs for
the Property as defined herein. The construction costs will be advanced to Maker at its special instance
and request in accordance with the terms of that certain Construction Loan Agreement dated of even
date herewith, between Maker and Payee (collectively, the "Loan Agreement "), and incorporated herein
by reference for all purposes
Any default under the Deed of Trust securing this Note shall be deemed to be a default under
this Note. IF ANY PART OF THE COLLATERAL SECURING THIS NOTE IS
TRANSFERRED OR CONVEYED WITHOUT PAYEE'S PRIOR CONSENT, THIS NOTE IS
IMMEDIATELY DUE AND PAYABLE AND PAYEE MAY INVOKE ANY REMEDIES
PROVIDED UNDER THE DEED OF TRUST SECURING THIS NOTE. If the collateral is
residential real property containing fewer than five dwelling units or a residential manufactured
home occupied by Maker, exceptions to this provision are limited to (a) a subordinate lien or
encumbrance that does not transfer rights of occupancy of the property; (b) creation of a
purchase money security interest for household appliances; (c) transfer by devise, descent, or
operation of law on the death of a co- owner; (d) grant of a leasehold interest of three years or
less without an option to purchase; (e) transfer to a spouse or children of owner or between co-
owners; (f) transfer to a relative of owner or on owner's death; and (g) transfer to an inter vivos
trust in which owner is and remains a beneficiary and occupant of the property
In the event of default in the payment of any part of the principal or interest on this Note and
Maker's failure to cure the default within thirty (30) days after Payee's delivery of written notice of
default to Maker, or in the event of default in the performance of any other agreement contained in the
Loan Agreement or any document securing the payment of this Note or otherwise executed in
connection herewith, and Maker's failure to cure the default within thirty (30) days after Payee's
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delivery of written notice of the default to Maker, then the holder of this Note shall have the
unconditional right, without demand, notice, or other action, to declare the unpaid principal balance of
this Note, together with interest accrued on the unpaid principal balance, at once due and payable and
to foreclose each lien and security interest securing the payment of this Note, either under any power of
sale contained in any documents creating such lien or security interest or by court proceedings, as the
holder may elect. Notice shall be deemed to have been delivered upon actual receipt or upon deposit, if
deposited in an official depository of the United States Postal Service, properly addressed to the party
entitled to the notice, marked certified mail, return receipt requested, and containing sufficient postage.
For the purpose of notice, Maker's address is 1212 Avenue M, Huntsville, Walker County, Texas
77340. Maker shall have the right to change its address and specify any other address within the
United States of America by at least ten (10) days' written notice to Payee.
All agreements and transactions between Maker and Payee, whether now existing or hereafter
arising, whether contained herein or in any other instrument, and whether written or oral, are hereby
expressly limited so that in no contingency or event whatsoever, whether by reason of acceleration of
the maturity hereof, prepayment, demand for payment or otherwise, shall the amount contracted for,
charged or received by Payee from Maker for the use, forbearance, or detention of the principal
indebtedness or interest hereof, which remains unpaid from time to time, exceed the maximum amount
permissible under Applicable Law, it particularly being the intention of the parties hereto to conform
strictly to the law of the State of Texas and of the United States of America, whichever is applicable.
Any interest payable hereunder or under any other instrument relating to the loan evidenced hereby that
is in excess of the legal maximum under Applicable Law, shall, in the event of acceleration of maturity,
prepayment, demand for payment or otherwise, be automatically, as of the date of such acceleration,
prepayment, demand or otherwise, applied to a reduction of the principal indebtedness hereof and not
to the payment of interest, or if such excessive interest exceeds the unpaid balance of such principal,
such excess shall be refunded to Maker. To the extent permitted by Applicable Law, determination of
the legal maximum amount of interest shall at all times be made by amortizing, prorating, allocating
and spreading in equal parts during the period of the full stated term of the loan, all interest at any time
contracted for, charged or received from Maker in connection with the loan, so that the actual rate of
interest on account of such indebtedness is uniform throughout the term thereof.
This Note shall be governed by and construed in accordance with the laws of the State of Texas
and the United States of America from time to time in effect.
Notwithstanding anything herein to the contrary, Payee shall have no recourse against Maker,
nor against any guarantor, if any, for payment and performance of all of the obligations, covenants and
agreements of Maker under this Note and the documents securing same including, but not limited to
the Deed of Trust (said documents hereafter collectively called "Security Documents "), except to the
full extent of all of the Property which constitutes security for this Note. If default occurs in the timely
and proper payment of any portion of such indebtedness or in the timely performance of any of such
obligations, agreement or covenants, any judicial proceedings brought by Payee against Maker or any
guarantor shall be limited to the protection and preservation of the Property, the preservation,
enforcement and foreclosure of the liens, mortgages, assignments, rights and security interests now or
at any time hereafter securing the payment of the Note, and enforcement and collection of obligations,
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Initials
covenants and indebtedness for which Maker and any guarantors remain liable as provided in this
paragraph. If there is a foreclosure of any such liens, mortgages, assignments, rights, and security
interests securing the payment of this Note, by power of sale or otherwise, no judgment for any
deficiency upon such indebtedness shall be sought or obtained by Payee against Maker.
Notwithstanding the foregoing provisions of this paragraph or any other agreement, Payee shall have
full recourse against Maker and all guarantors, if any, for: (a) fraud or misrepresentation by Maker or
any guarantor in connection with the transactions herein contemplated; (b) failure to pay taxes,
assessments, charges for labor or materials or other charges that can create liens on any portion of the
Property; (c) the misapplication of (i) proceeds of insurance covering any portion of the Property, or (ii)
proceeds of the sale or condemnation of any portion of the Property, or (iii) rentals received by or on
behalf of Maker subsequent to the date on which Payee gives written notice of the posting of
foreclosure notices, (d) failure to prevent waste to the Property unless Payee is compensated therefor by
insurance proceeds collected by Maker; (e) the return to Payee of all unearned advance rentals and
security deposits paid by tenants of the Property and not refunded to or forfeited by such tenants, (f) the
return of, or reimbursement for, all personalty taken from the Property by or on behalf of Maker, (g) all
court costs and for all attorneys' fees provided for in any instrument governing, securing or pertaining
to the payment of the Note; and (h) failure to comply with any indemnification provision or covenants
pertaining to environmental matters contained in the Security Documents.
Each term and provision of this Note is expressly subject to the terms and conditions of the
Neighborhood Stabilization Program Contract #77099999126 executed between Payee herein and
Maker herein, dated to be effective September 1, 2009 in the original amount of 1,050,000.00, as
increased and amended and as may be further amended from time to time ( "NSP Contract "), which
provides acquisition and rehabilitation or new construction of lot(s) development under the NSP; said
NSP Contract is incorporated herein by reference. The terms of the NSP Contract shall govern over
any conflicting provisions hereof.
THIS WRITTEN AGREEMENT AND THE OTHER WRITTEN AGREEMENTS,
INCLUDING THE COLLATERAL AGREEMENTS, SIGNED CONTEMPORANEOUSLY
WITH THE SIGNING HEREOF REPRESENT 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.
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Initials
MAKER:
CITY OF HUNTSVILLE, a political subdivision of the
State of Texas
By:
Name: Bill Baine
Title: City Manager
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Initials
'7 '709 971g/014(
• • BY-c Vol Pst
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2 = X 00003718 OR 983 u
ozP-
0 W ' . INTERIM CONSTRUCTION DEED OF TRUST
o J B° (WITH SECURITY AGREEMENT AND ASSIGNMENT OF RENTS)
"'' A ( "Deed of Trust ")
iLl 4
p z > NEIGHBORHOOD STABILIZATION PROGRAM
V Wvar ing Federal Agency: United States Department of Housing and Urban Development
cc
TDHCA Federal Award Number: B- 08 -DN -48 -0001
u- Federal Award Year (Year of Award from HUD to TDHCA): 2008
p TDHCA Award Year (Year of TDHCA Board Approval): 2009
THE STATE OF TEXAS
COUNTY OF WALKER
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.
ARTICLE I
Definitions
The following terms shall have the respective meanings assigned to them when used
herein.
1.01 Grantor: CITY OF HUNTSVILLE, a political subdivision of the State of Texas
1.02 Grantor's mailing address: 1212 Avenue M, Huntsville, Walker County, Texas 77340
1.03 Beneficiary: TEXAS DEPARTMENT OF HOUSING AND COMMUNITY
AFFAIRS, a public and official agency of the State of Texas, and any lawful owner, holder,
pledgee, or assignee of any indebtedness secured hereby.
1.04 Beneficiary's mailing address: P.O. Box 13941, Austin, Travis County, Texas 78711-
3941.
1.05 Trustee: Michael Gerber of Travis County, Texas.
1.06 Mortgaged Property: The Real Property and the Personal Property.
1.07 Project: Single- family dwelling to be constructed or rehabilitated on the Real Property.
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1.08 NSP: Neighborhood Stabilization Program or ( "Program ") as authorized by the Housing
and Economic Recovery Act of 2008 as an adjunct to the Community Development Block Grant
Program. (Housing and Economic Recovery Act of 2008, Pub. L. 110 -289, 112 STAT 2850.)
1.09 NOFA: Notice of Funding Availability issued by TDHCA for the NSP issued in 2009.
1.10 NOFA -R: Notice of Funding Availability Re- Allocation.
1.10 NOFA -R- SERIES 2: Neighborhood Stabilization Program Re- allocation — Series 2
(NSPR- Series 2) issued in 2010.
1.11 Eligible Household: Individual or families whose income[s] do not exceed 120% of
area median income ( "AMP') as defined in the . Housing and Economic Recovery Act 2301
(f)(3)(A)(i) and (ii) of 2008.
1.12 Financing Mechanisms: Mechanisms that provide affordable homeownership
opportunities to assist homebuyers to purchase and redevelop a foreclosed property at a discount
and /or rehabilitate the property as defined in the Housing and Economic Recovery Act 2301
(c)(3)(A) of 2008 and the Beneficiary.
1.13 Real Property: The real property described as:
LOT NINE (9), BLOCK TWENTY -FOUR (24) of HIGHLAND ADDITION No. 3, a
subdivision within the City of Huntsville, P. Gray League, A -24, Walker County, Texas
according to the map or plat thereof recorded in Volume 1 Page 6 of the Plat Records, Walker
County, Texas, together with (i) all improvements thereon, all rights, hereditaments and
appurtenances belonging thereto including rights of ingress and egress, easements, licenses, and
all reversionary rights or interests of Grantor; (ii) all fixtures and personal property now or
hereafter attached to the Real Property; (iii) all renewals or replacements thereof or articles in
substitution therefore, whether or not now or later attached to the Project in any manner; and (iv)
all other interests of every kind which Grantor now has or at any time hereafter acquires in and to
the Real Property.
1.14 Personal Property: (i) all furniture, equipment and other personal property now or
hereafter owned by Grantor, located on the Mortgaged Property, and all renewals or
replacements thereof or articles in substitution therefore, whether or not the same are or shall be
attached to the Project in any manner; (ii) all building materials and equipment now or hereafter
delivered to the Mortgaged Property and all building and construction materials, equipment and
parts intended to be installed in or on the Real Property or Project; (iii) all plans and
specifications for the Project; (iv) all contracts and subcontracts relating to the Project; (v) all
deposits (including tenant's security deposits, if any), funds, accounts (including any accounts in
which escrows are deposited as a reserve for the payment of taxes, assessments and insurance on
the Mortgaged Property), contract rights, instruments, documents, general intangibles (including
trademarks, trade names and symbols used in connection therewith), and notes or chattel paper
arising from or by virtue of any transactions related to the Mortgaged Property; (vi) all permits,
licenses, franchises, certificates, and other rights and privileges obtained in connection with the
Mortgaged Property; (vii) all bank accounts in which rental income from the Mortgaged Property
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is deposited; (viii) all proceeds arising from or by virtue of the sale, lease or other disposition of
any of the Real or Personal Property; (ix) all proceeds (including premium refunds) payable or to
be payable under each policy of insurance relating to the Project; (x) all proceeds arising from
the taking of all or a part of the Real Property or any rights appurtenant thereto, including change
of grade of streets, curb cuts or other rights of access, for any public or quasi - public use under
any law, or by rights of eminent domain, or by private or other purchase in lieu thereof; (xi) all
other interests of every kind and character which Grantor now has or at any time hereafter
acquires in and to the Personal Property and all property which is used or useful in connection
therewith.
1.15 Construction Loan Agreement: The NSP Construction Loan Agreement ( "Loan
Agreement ") of even date herewith executed by and between Grantor (Borrower in Loan
Agreement or the maker of the Note if different from Grantor) and Beneficiary (Lender in Loan
Agreement), which Loan Agreement sets forth, among other things, the procedure and
requirements for disbursing the loan proceeds to be evidenced by the Note.
1.16 Note: The NSP promissory note ( "Note ") of even date herewith executed by Grantor
payable to the order of Beneficiary in the original principal sum of $106,797.65 payable as
therein provided and finally maturing August 31, 2011, and all modifications, extensions and
renewals thereof.
1.17 Loan Documents: The NSP Note, this Deed of Trust, the Construction Loan Agreement,
and any and all other documents or instruments heretofore or hereafter executed by Grantor (or
the maker of the Note if different from Grantor) securing, evidencing or in any way pertaining to
the indebtedness evidenced by the Note and hereafter are the ( "Loan Documents. ")
1.18 Governmental Requirements. All laws, ordinances, statutes, codes, rules, regulations,
orders and decrees of the United States, the state, the county, the city, or any other political
subdivision in which the Mortgaged Property is located, and any other political subdivision,
agency or instrumentality exercising jurisdiction over Grantor or the Mortgaged Property
including, without limitation, the following: the Civil Rights Act of 1964 (42 U.S.C. 2000(d);
Executive Order 11063, as amended by Executive Order 12259; Executive Order 11246; Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.); Equal Credit Opportunity Act (15 U.S.C.
1691 et seq.); Fair Credit Reporting Act (15 U.S.C. 1681 et seq.); Fair Housing Act (42 U.S.C.
3601 et seq.); the Americans with Disabilities Act of 1990 (P.L. 101 -336); of the Rehabilitation
Act of 1973 (29 U.S.C. 794) and implementing regulations (24 CFR Part 8); Architectural
Barriers Act of 1968 (42 U.S.C. 4151 et seq.); Federal Drug Free Workplace Act of 1988 and the
regulations promulgated thereunder including, without limitation, 54 CFR Part 4956, Section 3
of the Housing and Urban Development Act of 1968; Executive Orders 11625, 12432 and 12138,
as amended; the Copeland "Anti- Kickback" Act (18 U.S.C. § 874 et seq.); the Davis -Bacon Act
(40 U.S.C. § 276a et seq.); Sections 103 and 107 of the Work Hours and Safety Standards Act.
(40 U.S.C. § 327 et seq.); the Uniform Relocation Assistance and Real Property Acquisition
Policies Act (42 U.S.C. § 4201 et seq.); the Housing and Community Development Act of 1974;
the National Environmental Policy Act (42 U.S.C. § 4321 et seq.); ( "NEPA "); the Lead -Based
Paint Poisoning Prevention Act (42 U.S.C. § 4321 et seq.); The Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970; the State of Texas Senate Bill 1356; Title 8,
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and Chapter 92 of the Texas Property Code; Solid Waste Disposal Act TEX. HEALTH &
SAFETY CODE Ann. Ch. 361; Comprehensive Municipal Solid Waste Management, Resource
Recovery, and Conservation Act. TEX. HEALTH & SAFETY CODE Ann. Ch 363; County
Solid Waste Control Act. TEX. HEALTH & SAFETY CODE Ann. Ch 364; Texas Clean Air
Act, TEX. HEALTH AND SAFETY CODE Ann. Ch.; and Hazardous Communication Act,
TEXAS HEALTH AND SAFETY CODE Ann. Ch. 502; and such Governmental Requirements
as may be from time to time amended or superseded and all of their implementing regulations, as
may be amended.
1.19 Anti- Terrorism Laws. Any and all present and future judicial decisions, statutes,
rulings, rules, regulations, permits, certificates, orders and ordinances of any Governmental
Authority relating to terrorism or money laundering, including, without limiting the generality of
the foregoing, the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 (Pub. L. No. 107 -56); the Trading the Enemy
Act (50 U.S.C.A. App. 1, et seq.); the International Emergency Economic Powers Act (50 U. S.
C. A. §1701 -06); Executive Order No. 13224 on Terrorist Financing, effective September 24,
2001 (relating to "Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threatened to Commit, or Support Terrorism ") and the United States Treasury Department's
Office of Foreign Assets Control list of "Specifically Designated National and Blocked Persons"
(as published from time to time in various mediums, including, without limitation, at
http: www.treas. gov/ofachllsdn.pdf).
1.20 Prohibited Person. Any person or entity that (i) is specifically named or listed in, or
otherwise subject to, any Anti - Terrorism Laws, (ii) is owned or controlled by, or acting for or on
behalf of any person or entity specifically named or listed in, or otherwise subject to, any Anti -
Terrorism Laws, (iii) Beneficiary is prohibited from dealing with, or engaging in any transaction
with, pursuant to an Anti - Terrorism Laws, or (iv) is affiliated with any person or entity described
in clauses (i) - (iii) of this definition.
1.21 Environmental Laws and Regulations. Any federal, state, or local law, statute,
ordinance, or regulation, whether now or hereafter in effect, pertaining to health, industrial
hygiene, or the environmental conditions on, under, or about the Land or the Improvements,
including without limitation, the following, as now or hereafter amended, Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 ( "CERCLA "), 42 U.S.C.A.
§9601 et seq.; Resource, Conservation and Recovery Act ( "RCRA "), 24 U.S.C.A. §6901 et seq.
as amended by the Superfund Amendments and Reauthorization Act of 1986 ( "SARA "), Pub. L.
No. 99 -499, 100 Stat. 1613; the Toxic Substances Control Act, 15 U.S.C.A. §2601 et seq.;
Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.A. §1101 et seq.;
Clean Water Act ( "CWA "), 33 U.S.C.A. §1251 et seq., Clean Air Act ( "CAA "), 42 U.S.C.A.
§7401 et seq.; Federal Water Pollution Control Act ( "FWPCA "), 33 U.S.C.A. §1251 et seq.; );
Protection of Wetlands (Executive Order 11990, Mary 24, 1977); Coastal Management Act
(Sections 307 (c) and (d)); Safe Water Driving Act (42 U.S.C. 201, 300(f) and 21U.S.C. 349);
Protection of the Environment, Sole Source Aquifers (40 CFR 149); Endangered Species Act (50
CFR 402); Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq. as amended, particularly section
7(b) and (c)); Farmland Protection Policy Act (7 CFR 658); Federal Actions to Address
Environmental Justice in Minority Populations and Low Income Populations (Executive Order
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12898, February 11, 1994); Parts of Environmental Review Procedures for Entities Assuming
HUD Environmental Responsibilities: Noise Abatement and Control (24 CFR 51B); Explosive
and Flammable Operations (24 CFR 51C); Toxic Chemicals and Radioactive Materials (24 CFR
58.5(a); Airport Clear zones and Accident Potential Zones (24 CFR51 D); and any corresponding
state laws or ordinances including but not limited to the Texas Water Code ( "TWC ") §26.001 et
seq.; Texas Health & Safety Code ( "THSC ") §361.001 et seq.; Texas Solid Waste Disposal Act,
Tex. Rev. Civ. Stat. Ann. Art. 4477 -7; and regulations, rules, guidelines, or standards
promulgated pursuant to such laws, statute and regulations, as such statutes, regulations, rules,
guidelines, and standards are amended from time to time.
The environmental effects of each activity carried out with funds provided under the
NSP program must be assessed in accordance with the provisions of the Texas NSP NOFA,
National Environmental Policy Act of 1969 (NEPA) and the related activities listed in HUD's
implementing regulations at 24 CFR Parts 50, 51, 55 and 58. Each such activity must have an
environmental review completed and support documentation prepared complying with the
National Environmental Policy Act of 1969 and regulations at 24 CFR Parts 50, 51, 55 and Part
58. No funds may be requested or committed to an activity before the completion of the
environmental review process, including the requirements of 24 CFR §58.6, and written
clearance has been provided by the Department.
1.22 Permitted Exceptions. The exceptions from coverage found in Schedule B of the
commitment for mortgagee policy of title insurance issued by Stewart Title Guaranty Company,
GF #201009849, issued to Beneficiary herein on April 18, 2011.
ARTICLE II
Conveyance in Trust
2.01 Grant. Grantor, for and in consideration of the debt evidenced by the Note, has granted,
assigned, and conveyed, and by these presents does grant, assign and convey the Mortgaged
Property, in trust unto the Trustee, his successors and assigns, to have and to hold the Mortgaged
Property, unto Trustee, his successors and assigns, forever. To the extent permitted by law, the
Personal Property shall be deemed to be a part of and affixed to the Real Property. In the event
the estate of the Grantor in and to any of the Mortgaged Property is a leasehold estate, this
conveyance shall include and the lien and security interest and assignment created hereby shall
encumber and extend to all other, further or additional title, estates, interest or rights which may
exist now or at any time be acquired by Grantor in or to the property demised under the lease
creating such leasehold estate and including Grantor's rights, if any, to purchase the property
demised under such lease and, if fee simple title to any of such property shall ever become vested
in Grantor, such fee simple interest shall be encumbered by this Deed of Trust in the same
manner as if Grantor had fee simple title to such property as of the date of execution hereof.
Grantor hereby binds itself, its successors and assigns, to warrant and forever defend the
Mortgaged Property unto Trustee, his successors and assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof.
2.02 Security. This conveyance is made in trust, however, to secure and enforce the payment
of the Note, the obligations of Grantor (and /or the maker of the Note, if different from Grantor)
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•
under the other Loan Documents and payment of the Other Indebtedness as defined herein. If
Grantor shall perform the covenants and agreements herein contained, then, and only then, this
conveyance shall become null and void and shall be released at Grantor's expense; otherwise it
shall remain in full force and effect. No release of this conveyance, or of the lien or security
interest or assignment created and evidenced hereby, shall be valid unless executed by
Beneficiary.
2.03 Other Indebtedness. This Deed of Trust shall secure, in addition to the Note, all funds
hereafter advanced by Beneficiary to or for the benefit of Grantor as contemplated by any
provision herein or for any other purpose, and all Other Indebtedness, of whatever kind or
character, owing or which may hereafter become owing by Grantor to Beneficiary, whether such
indebtedness is evidenced by note, open account, overdraft, endorsement, surety agreement,
guaranty, or otherwise, it being contemplated that Grantor may hereafter become indebted to
Beneficiary in further sum or sums ( "Other Indebtedness "); provided, however, in no event shall
this Deed of Trust secure payment of any installment loan or any open -end line of credit
established under Chapter 3, Chapter 4 or Chapter 15 of the Texas Finance Code. This Deed of
Trust shall also secure all renewals and extensions of any of the Other Indebtedness secured
hereby. If the Note or Other Indebtedness shall be collected by legal proceedings, whether
through a probate or bankruptcy court or otherwise, or shall be placed in the hands of an attorney
for collection after maturity, whether matured by the expiration of time or by any option given to
the Beneficiary to mature same, Grantor agrees to pay Beneficiary's attorney's and collection fees
in the amount set forth in the Note, and such fees shall be a part of the indebtedness secured
hereby.
ARTICLE III
Grantor's Covenants and Representations
Grantor hereby covenants, warrants and represents to and agrees with Beneficiary and
with Trustee as follows:
3.01 Payment and Performance. Grantor (i) will pay all of the indebtedness secured hereby,
together with the interest thereon, when the same shall become due, in accordance with the terms
of the Note or any other instrument evidencing, securing, or pertaining to such indebtedness or
evidencing any renewal or extension of such indebtedness, or any part thereof, and (ii) will
punctually and properly perform all of Grantor's covenants, obligations, and liabilities under any
other security agreement, mortgage, deed of trust, collateral pledge agreement, contract,
assignment, loan agreement or any other instrument or agreement of any kind now or hereafter
existing as security for, executed in connection with, or related to the indebtedness or other
obligations secured hereby, or any part thereof.
3.02 Title and Right to Convey. Grantor (i) has in its own right good and indefeasible title in
fee simple, except as otherwise provided herein, to the Mortgaged Property which is free from
encumbrance superior to the indebtedness hereby secured, except as otherwise provided herein,
and (ii) has full right to make this conveyance.
Bk VD1 Ps
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3.03 Insurance. Grantor shall require the builder and/or its general contractor to obtain and
maintain at said builder's and /or general contractor's sole expense: (1) all -risk insurance with
respect to all insurable Mortgaged Property, against loss or damage by fire, lightning, windstorm,
explosion, hail, tornado and such hazards as are presently included in so- called "all- risk"
coverage and against such other insurable hazards as Beneficiary may reasonably require, in an
amount not less than the unpaid balance of the Note, or if available and requested by Beneficiary
100% of the full replacement cost, including the cost of debris removal, without deduction for
depreciation and sufficient to prevent Grantor and Beneficiary from becoming a coinsurer, such
insurance to be in Builder's Risk (non- reporting) form during and with respect to any
construction on the Real Property; (2) if and to the extent any portion of the Project is in a
special flood hazard area, a flood insurance policy in an amount equal to the lesser of the
principal face amount of the Note or the maximum amount available; (3) commercial general
liability insurance, on an "occurrence" basis, against claims for bodily injury, death or property
damage occurring on or about the Project, to afford protection in a "single limit" of not less than
$1,000,000 in the event of bodily injury to, or death of, any number of persons or of damage to
property arising out of one occurrence, for the benefit of Grantor and Beneficiary as named
insured; and (4) such other insurance on the Mortgaged Property as may from time to time be
reasonably required by Beneficiary, if available, (including but not limited to rent loss or boiler
and machinery insurance) and against other insurable hazards or casualties which at the time are
commonly insured against in the case of premises similarly situated, due regard being given to
the height, type, construction, location, use and occupancy of buildings and improvements. All
insurance policies shall be issued and maintained by insurers, in amounts, with deductibles, and
in form reasonably satisfactory to Beneficiary, and shall require not less than fifteen (15) days'
prior written notice to Beneficiary of any cancellation or change of coverage. All insurance
policies maintained, or caused to be maintained, by Grantor with respect to the Mortgaged
Property, except for public liability insurance, shall provide that each such policy shall be
primary without right of contribution from any other insurance that may be carried by Grantor or
Beneficiary and that all of the provisions thereof, except the limits of liability, shall operate in
the same manner as if there were a separate policy covering each insured. If any insurer which
has issued a policy of hazard, liability or other insurance required pursuant to this Deed of Trust
becomes insolvent or the subject of any bankruptcy, receivership or similar proceeding or if in
Beneficiary's reasonable opinion the financial responsibility of such insurer is or becomes
inadequate, Grantor shall, in each instance promptly upon the request of Beneficiary and at
Grantor's expense, obtain and deliver to Beneficiary a like policy (or, if and to the extent
permitted by Beneficiary, a certificate of insurance) issued by another insurer, which insurer and
policy meet the requirements of this Deed of Trust. All such policies for loss of or damage to the
Mortgaged Property shall contain a standard mortgage clause (without contribution) naming
Beneficiary as mortgagee with loss proceeds payable to Beneficiary notwithstanding (i) any act,
failure to act or negligence of or violation of any warranty, declaration or condition contained in
any such policy by any named insured; (ii) the occupation or use of the Mortgaged Property for
purposes more hazardous than permitted by the terms of any such policy; (iii) any foreclosure or
other action by Beneficiary under this Deed of Trust; or (iv) any change in title to or ownership
of the Mortgaged Property or any portion thereof, such proceeds to be held for application as
provided in this Deed of Trust. A copy of each initial insurance policy (or a satisfactory
certificate of insurance) shall be delivered to Beneficiary at the time of execution of this Deed of
Trust, with premiums fully paid, and each renewal or substitute policy (or certificate) shall be
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delivered to Beneficiary, with premiums fully paid, at least ten (10) days before the termination
of the policy it renews or replaces. Grantor shall pay all premiums on policies required
hereunder as they become due and payable and promptly deliver to Beneficiary evidence
satisfactory to Beneficiary of the timely payment thereof. If any loss occurs at any time when
Grantor has failed to perform Grantor's covenants and agreements in this section, Beneficiary
shall nevertheless be entitled to the benefit of all insurance covering the loss and held by or for
Grantor, to the same extent as if it had been made payable to Beneficiary. Upon any foreclosure
hereof or transfer of title to the Mortgaged Property in extinguishment of the whole or any part
of the secured indebtedness, all of Grantor's right, title and interest in and to the insurance
policies referred to in this section (including unearned premiums) and all proceeds payable
thereunder shall thereupon vest in the purchaser at foreclosure or other such transferee, to the
extent permissible under such policies. Beneficiary shall have the right (but not the obligation)
to receive the proceeds of, all insurance for loss of or damage to the Mortgaged Property. If
Grantor fails to act reasonably and promptly in making proof of loss for, or settling or adjusting
any claim under, any such insurance, then Beneficiary shall have the right to make such proof
and settle and /or adjust, such claim; and the expenses incurred by Beneficiary in the adjustment
and collection of insurance proceeds shall be a part of the secured indebtedness and shall be due
and payable to Beneficiary on demand. Beneficiary shall not be, under any circumstances, liable
or responsible for failure to collect or exercise diligence in the collection of any of such proceeds
or for the obtaining, maintaining or adequacy of any insurance or for failure to see, to the proper
application of any amount paid over to Grantor. Any such proceeds received by Beneficiary
shall, after deduction therefrom of all reasonable expenses actually incurred by Beneficiary,
including attorneys' fees, at Beneficiary's option be (a) released to Grantor, or (b) applied (upon
compliance with such reasonable terms and conditions as may be required by Beneficiary) to
repair or restoration, either partly or entirely, of the Mortgaged Property so damaged, or (c)
applied to the payment of the secured indebtedness in such order and manner as Beneficiary, in
its sole discretion, may elect, whether or not due; provided, however, that Beneficiary shall make
such proceeds available to Grantor to pay for restoration or repair of the Mortgaged Property, so
damaged, if either (i) the amount of such proceeds is less than $25,000.00, or (ii) Grantor agrees
to reasonable, Construction Loan provisions (primarily regarding advances of those proceeds and
Beneficiary's "pricing" of its activities and expenses connected therewith) and amendments to the
Loan Documents executed in connection with the Note, as then proposed by Beneficiary. In any
event, the unpaid portion of the secured indebtedness shall remain in full force and effect and the
payment thereof shall not be excused. Grantor shall at all times comply with the requirements of
the insurance policies required hereunder and of the issuers of such policies and of any board of
fire underwriters or similar body as applicable to or affecting the Mortgaged Property.
3.04 Taxes and Other Impositions. Grantor will pay all taxes and assessments against or
affecting the Mortgaged Property as the same become due and payable, and, if Grantor fails to do
so, Beneficiary may pay them, together with all costs and penalties thereon, at Grantor's expense
or out of an individual reserve account created to fund any necessary repairs for Mortgaged
Property maintained by a first lien Iender or bank trustee. Grantor, however, may in good faith,
in lieu of paying such taxes and assessments as they become due and payable, contest by
appropriate proceedings the validity thereof, and pending such contest Grantor shall not be
deemed in default hereunder because of such nonpayment, (i) if prior to delinquency of the
asserted tax or assessment, Grantor furnishes Beneficiary an indemnity bond, conditioned that
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penalties 1 b 1 i lIe'fein slated, secur9�a
such tax or assessment with interest, cost and a al s
deposit in cash, or security or surety acceptable to Beneficiary, in the amount of the contested tax
or assessment, and a reasonable additional sum to pay all possible costs, interest and penalties
imposed or incurred in connection therewith, and (ii) if Grantor promptly pays any amount
adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest
thereon, before such judgment becomes final or before any writ or order is issued under which
the Mortgaged Property may be sold pursuant to such judgment, whichever first occurs.
Grantor shall provide to Beneficiary, on or before January 31 of each year during the term of the
Note secured hereby, written evidence that all ad valorem taxes and other assessments against
the Mortgaged Property have been paid in full.
3.05 Tax and Insurance Escrow. Intentionally omitted.
3.06 Assignment of Awards. If the lien secured by this Deed of Trust is first and superior,
Grantor will hereby assign all judgments, decrees and awards for injury or damage to the
Mortgaged Property, all awards or settlements pursuant to proceedings for condemnation thereof,
in their entirety to Beneficiary, who may apply the same to the indebtedness secured hereby in
such manner as it may elect. Grantor will further hereby authorize Beneficiary to execute and
deliver valid acquittances for, and to appeal from, any such award, judgment or decree in the
name of Grantor. In the event Beneficiary, as a result of any such judgment or decree of award,
believes that the payment or performance of any obligation secured by this Deed of Trust is
impaired, Grantor authorizes Beneficiary to declare, without notice, all of the indebtedness
secured hereby immediately due and payable.
3.07 Trustee's Title and Future Laws. If, while this trust is in force, the title of Trustee to,
or the interest of Beneficiary in, the Mortgaged Property or any part thereof, shall be endangered
or shall be attacked directly or indirectly, Grantor authorizes Beneficiary, at Grantor's expense, to
take all necessary and proper steps for the defense of such title or interest, including the
employment of counsel, the prosecution or defense of litigation, and the compromise or
discharge of claims made against such title or interest. If 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 Note, or any part thereof, Grantor
shall immediately pay all such taxes. In the alternative, Grantor may, in the event of the
enactment of such a law, and must, if it is unlawful for Grantor to pay such taxes, prepay the
Note and the Other Indebtedness in full within sixty (60) days after demand therefore by
Beneficiary. Grantor shall at any time and from time to time, furnish promptly, upon request, a
written statement or affidavit, in such form as may be required by Beneficiary, stating the unpaid
balance of the Note, and that there are no offsets or defenses against full payment of the Note
and performance of the terms hereof, or if there are any such offsets and defenses, specifying
them.
3.08 Repayment to Beneficiary. If, pursuant to any covenant contained herein or in any
other instrument executed in connection with the loan evidenced by the Note or in connection
with any Other Indebtedness secured hereby, Beneficiary shall expend any money chargeable to
Grantor or subject to reimbursement by Grantor under the terms of such covenant or agreement,
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Grantor will repay the same to Beneficiary immediately at the place where the Note or Other
Indebtedness secured hereby is payable, together with interest thereon at the rate of interest
payable on account of the Note or such Other Indebtedness in the event of a default hereunder
from and after the date of Beneficiary's making such payment. The sum of each such payment
shall be added to the indebtedness hereby secured and thereafter shall form a part of the same,
and it shall be secured by this Deed of Trust and, by subrogation to all of the rights of the person
or entity receiving such payment.
3.09 Condition of Property. Upon completion of certain renovations, additions and
improvements to the Project, Grantor will keep every part of the Mortgaged Property in good
condition and presenting a good appearance, making promptly all repairs, renewals and
replacements necessary to such end, and doing promptly all else necessary to such end. Grantor
will discharge all claims for labor performed and material furnished therefore, and will not suffer
any lien of mechanics or materialman to attach to any part of the Mortgaged Property. Grantor
will guard every part of the Mortgaged Property from removal, destruction and damage, and will
not do or suffer to be done any act whereby the value of any part of the Mortgaged Property may
be lessened.
3.10 Successors. If the ownership, control or management of the Mortgaged Property or any
part thereof becomes vested in a person other than Grantor, or in the event of a change of
ownership of more than thirty percent (30 %) interest in any Grantor other than an individual,
Grantor agrees that Beneficiary may, without notice to Grantor, deal with such successor or
successors in interest with reference to this Deed of Trust and to the indebtedness hereby secured
in the same manner as with Grantor without in any way vitiating or discharging Grantor's
liability hereunder or upon the indebtedness hereby secured. No sale of the Mortgaged Property,
and no forbearance on the part of Beneficiary, and no extension of the time for the payment of
the indebtedness hereby secured, given by Beneficiary, shall operate to release, discharge,
modify, change or affect the original liability of Grantor or the liability of any guarantors or
sureties of Grantor, either in whole or in part.
3.11 Compliance with Governmental Requirements. Grantor covenants that the Mortgaged
Property and the improvements now or hereafter erected thereupon and the intended use thereof
by Grantor comply with all Governmental Requirements, including, without limitation, all
applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood
disaster laws, applicable health and Environmental Laws and Regulations and all other
ordinances, orders or requirements issued by any state, federal or municipal authorities having or
claiming jurisdiction over the Mortgaged Property.
Any rehabilitation of an abandoned or foreclosed upon home or residential property under NSP
shall be to the extent necessary to comply with applicable, laws, codes, and other requirements
related to housing safety, quality, and habitability, in order to sell, rent, or redevelop such homes
and properties. Rehabilitation may include improvements to increase the energy efficiency or
conservation of such homes and properties or provide a renewable energy source or sources for
such homes and properties. Housing and Economic Recovery Act Section 2301 (d)(2) of 2008.
The eligibility of renewable energy equipment on existing structures shall be determined by the
Beneficiary.
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Housing that is constructed, including new construction, or rehabilitation with NSP funds must
meet all applicable local codes, rehabilitation standards, ordinances, and zoning ordinances at the
time of completion. In the absence of a local code for new construction or rehabilitation, the
housing must meet the most current International Building Code. In addition, all NSP funded
housing must meet the Texas Minimum Construction Standards, as published in the Texas NSP
NOFA. NSP assisted new construction or rehabilitation will comply with HUD Program lead -
based paint requirements including lead screening in housing built before 1978 in accordance
with 24 CFR Part 92.355 and 24 CFR Part 35, subparts A, B, J, K, M, and R. Multifamily
housing assisted with NSP funds must meet the accessibility requirements at 24 CFR part 8,
which implements Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Section 794) and
covered multifamily dwellings, as defined at 24 CFR 100.201, and the design and construction
requirements at 24 CFR 100.205, which implement the Fair Housing Act (42 U.S.C. 3601 - 3619).
Finally, NSP assisted housing must meet Energy Efficiency Standards in accordance with
Section 2306.187 of the Texas Government Code.
3.12 Money Laundering; Anti - Terrorism Laws.
(a) Grantor will furnish all of the funds for the purchase of the Mortgaged Property,
other than funds supplied by Beneficiary, and such funds will not be from sources that are
described in 18 U.S.C.A. §1956 and §1957 as funds or property derived from "specified
unlawful activity."
(b) None of Grantor, and constituent party nor Guarantor, if applicable, (nor any person
or entity owning an interest in Grantor, and constituent party or Guarantor, if applicable) (i) is a
Prohibited Person, or (ii) has violated any Anti - Terrorism Laws. No Prohibited Person holds or
owns any interest of any nature whatsoever in Grantor, any constituent party or Guarantor, if
applicable, as applicable, and none of the funds of Grantor, any constituent party or Guarantor, if
applicable, have been derived from any activity in violation of Anti - Terrorism Laws.
3.13 No Foreign Person. Neither Maker, nor Guarantor, if applicable, is a "foreign person"
within the meaning of § 1445(0(3) of the Tax Code.
3.14 Payment of Labor and Materials. Grantor will promptly pay all bills for labor,
materials, and specifically fabricated materials incurred in connection with the Mortgaged
Property and never permit to exist in respect of the Mortgaged Property or any party thereof any
lien or security interest, even though inferior to the liens and security interest, hereof, for any
such bill, and in any event never permit to be created or exist in respect of the Mortgaged
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 interest hereof, except for the Permitted
Exceptions.
3.15 Sources and Uses of Funds. Without limiting the requirements of Section 3.12 hereof,
Grantor has taken, and shall continue to take until the Indebtedness is fully repaid and each and
all of the Obligations are satisfied in full, such measures as are required by any and all Anti -
Terrorism Laws to assure that the funds invested in Grantor and/or used to make payments on the
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Indebtedness or the Obligations are derived from (a) transactions and sources that do not violate
any Anti - Terrorism Laws, nor to the extent such funds originate outside the United States, do not
violate the laws of the jurisdiction from which they originated; and (b) permissible sources
under Anti - Terrorism Laws or, to the extent such funds originate outside the United States, under
the laws of the jurisdiction from which they originated. If Beneficiary reasonably believes that
Grantor, Guarantor, if applicable, any constituent party, or any affiliate of any such parties may
have breached any of the representations, warranties or covenants set forth in this Deed of Trust
or the other Loan Documents relating to any Anti - Terrorism Laws, any violations of the Byrd
Amendment referenced herein and Section 3.16 hereof, or the identity of any person or entity as
a Prohibited Person, or person influencing or attempting to influence the federal persons
referenced herein and Section 3.16 hereof, then, Beneficiary shall have the right, with or without
notice to Grantor, to (1) notify the appropriate governmental authority and to take such action as
such governmental authority or applicable Anti - Terrorism Laws or Byrd Amendment may direct;
(2) withhold Loan advances and segregate the assets constituting the Loan or any of Grantor's
funds or assets deposited with or otherwise controlled by Beneficiary pursuant to the Loan
Documents; (3) decline any payment (or deposit such payment with an appropriate United States
governmental authority or court) or decline any prepayment or consent request; and/or (4)
declare an Event of Default and immediately accelerate the Loan in connection therewith,
Grantor agrees that none of Grantor, Guarantor, if applicable, nor any constituent party will
assert any claim (and hereby waives, for itself and on behalf of its affiliates, successors, assigns,
representatives or agents for any form of damages as a result of any of the foregoing actions,
regardless of whether or not Beneficiary 's reasonable belief is ultimately demonstrated to be
accurate. Without limiting the requirements of Section 3.11 hereof, Grantor has taken, and shall
continue to take until the Indebtedness is fully repaid and each and all of the Obligations are
satisfied in full, such measures as are required by the Byrd amendment to the fiscal 1990
appropriations measures for the United States Department of the Interior (P. L. 101 -121) and any
guidelines and rules issued by any federal entity in connection therewith, if applicable, to assure
that no federal appropriated funds have been paid or will be paid, by or on behalf of Grantor, (i)
to any person influencing or attempting to influence, or (ii) for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with this award and loan
under the NSP.
3.16 Byrd Amendment: Prohibition for Influencing Federal Entities. Grantor covenants
that, to the best of Grantor's knowledge, Grantor has complied with all restrictions, certifications
and disclosure requirements contained in the Byrd amendment to the fiscal 1990 appropriations
measures for the United States Department of the Interior (P.L. 101 -121) and with any guidelines
and rules issued by any federal entity in connection therewith, if applicable.
ARTICLE IV
Events of Default
4.01 Events of Default. The following shall be events of default ( "Events of Default ")
hereunder:
(a) The sale of the Mortgaged Property, or any part thereof without, the prior written
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00003718 OR 983 97
consent of Beneficiary, except the sale to an Eligible Household.
(b) Grantor's agreement to or the granting of an easement, restrictive covenant or other
encumbrance affecting the Mortgaged Property without the prior written consent of Beneficiary.
(c) If Grantor is a corporation, partnership, or limited liability company, more than thirty
percent (30 %) of ownership of Grantor (determined by interest held and not by number of the
shareholders, partners or members, as applicable) changes other than changes resulting from the
transfer of shares or interest among the present owners of Grantor, such determination to be
made by aggregating all ownership changes (other than those involving only the present owners
of Grantor) occurring subsequent to the date hereof.
(d) Grantor's failure to promptly pay when due the indebtedness secured hereby, or any
part thereof and such failure continues for a period of thirty (30) days after written notice of such
failure is given by Beneficiary to Grantor; or Grantor's failure to keep and perform any of the
covenants (other than the failure to pay the indebtedness) or agreements contained herein or in
any of the other Loan Documents within thirty (30) days after written notice of such failure is
given by Beneficiary to Grantor.
(e) Beneficiary's discovery that any statement, representation or warranty in the Note,
this Deed of Trust or the other Loan Documents, or in any other writing delivered to Beneficiary
in connection with the indebtedness secured hereby is false, misleading or erroneous in any
material respect.
(f) If Grantor, or any person liable for the indebtedness secured hereby, or any part
thereof, including any guarantor of or surety for the performance of any obligation hereunder, (i)
files a voluntary petition in bankruptcy; (ii) makes an assignment for the benefit of any creditor;
(iii) suffers an order for relief in bankruptcy to be entered against it; (iv) admits in writing its
inability to pay its debts generally as they become due; (v) applies for or consents to the
appointment of a receiver, trustee, or liquidator of Grantor or of any such guarantor or surety or
of all or a substantial part of its assets; (vi) takes advantage of or seeks any relief under any
bankruptcy, reorganization, debtor's relief or other insolvency law now or hereafter existing; (vii)
files an answer admitting the material allegations of, or consenting to, or defaulting in, a petition
against Grantor or any such guarantor or surety, in any bankruptcy, reorganization, or other
insolvency proceedings; or (viii) institutes or voluntarily is or becomes a party to any other
judicial proceedings intended to effect a discharge of the debts of Grantor or of any guarantor or
surety, in whole or in part, or to effect a postponement of the maturity or the collection thereof,
or to effect a suspension of any of the rights or powers of Beneficiary granted in the Note, this
Deed of Trust or in any other instrument evidencing or securing the indebtedness secured hereby.
(g) If an order, judgment or decree shall be entered by any court of competent
jurisdiction appointing a receiver, trustee or liquidator of Grantor or of any guarantor or surety or
of all or any substantial part of the assets of Grantor or of any such guarantor or surety; or if
Grantor or any guarantor or surety shall fail to pay any money judgment against it within thirty
(30) days after any such judgment becomes final and non - appealable.
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(h) If Grantor or any such guarantor or surety shall fail to have discharged any
attachments, sequestration, or similar proceedings against any assets of Grantor or of any
guarantor or surety which remains undischarged and unstayed for a period of thirty (30)
consecutive days; or if the Mortgaged Property is placed under control or in the custody of any
court, or if Grantor abandons any of the Mortgaged Property.
(i) Grantor's execution or delivery of any pledge, security agreement, mortgage or deed
of trust covering all or any portion of the Mortgaged Property ( "Subordinate Mortgage ") without
the prior written consent of Beneficiary (which consent may be withheld). In the event of consent
by Beneficiary to the foregoing or in the event the foregoing prohibition is determined by a court
of competent jurisdiction to be unenforceable by the provisions of any applicable law, Grantor
will not execute or deliver any Subordinate Mortgage unless there shall have been delivered to
Beneficiary not less than ten (10) days prior to the date thereof a copy thereof which shall
contain express covenants to the effect:
(i) That the Subordinate Mortgage is in all respects unconditionally subject and
subordinate to the lien, security interest and assignment evidenced by this Deed of Trust and
each term and provision hereof;
(ii) That if any action or proceeding shall be instituted to foreclose the
Subordinate Mortgage (regardless of whether the same is a judicial proceeding or pursuant to a
power of sale contained therein), no tenant of any portion of the Mortgaged Property will be
named as a party defendant, nor will any action be taken with respect to the Mortgaged Property
which would terminate any occupancy or tenancy of the Mortgaged Property without the prior
written consent of Beneficiary;
(iii) That all of the rents, royalties (including, but not limited to, royalties arising
out of the sale of oil, gas, and any other minerals produced from the Mortgaged Property, or any
properties pooled with the Mortgaged Property), issues, profits, revenue, income and other
benefits derived from the Mortgaged Property or arising from the use or enjoyment of any
portion thereof or from any lease or agreement pertaining thereto, if collected through a receiver
or by the holder of the Subordinate Mortgage, shall be applied first to the obligations secured by
this Deed of Trust, including principal and interest due and owing on or to become due and
owing on the Note and the Other Indebtedness secured hereby and then to the payment of
maintenance, operating charges, taxes, assessments, and disbursements incurred in connection
with the ownership, operating and maintenance of the Mortgaged Property; and
(iv) That if any action or proceeding shall be brought to foreclose the Subordinate
Mortgage, written notice of the commencement thereof will be given to Beneficiary
contemporaneously with the commencement of such action or proceeding.
(j) The liquidation, termination, dissolution, merger, consolidation or failure to maintain
good standing in the State of Texas (or in the case of an individual, the death or legal incapacity)
of the owner of the Mortgaged Property or any person obligated to pay any part of the secured
indebtedness.
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(k) The liens, mortgages or security interests of Beneficiary in any of the Mortgaged
Property become unenforceable in whole or in part, or cease to be of the priority herein required,
or the validity or enforceability thereof, in whole or in part, shall be challenged or denied by
Grantor or any person obligated to pay any part of the secured indebtedness.
(1) If the ownership of any of the Mortgaged Property is forfeited or otherwise
transferred to any governmental agency under a federal or state law for which forfeiture of
property is a potential penalty or remedy.
(m) A default or event of default occurs under any other documents executed as security
for or in connection with the Note or under any other documents evidencing a loan or
indebtedness owed by Grantor to Beneficiary or any other agency of the State of Texas, and the
same is not remedied within the applicable period for curing such default (if any).
(n) Any portion of the surface of the Mortgaged Property is disturbed or otherwise
used by any person in connection with the exploration for or production of any oil, gas or other
minerals without the prior written consent of Beneficiary.
(o) If Grantor, without Beneficiary's consent, (i) seeks or acquiesces in a zoning
reclassification, zoning variance or special exception to zoning of all or any portion of the
Mortgaged Property, (ii) grants or consents to any easement, dedication, plat, or restriction (or
allows any easement to become enforceable by prescription), (iii) seeks or acquiesces to any
imposition of any addition of Governmental Requirements or any amendment or modification
thereof, covering all or any portion of the Mortgaged Property.
4.02 Remedies. Upon the occurrence of any Event of Default, Beneficiary, at its sole
option, may declare the Note and all Other Indebtedness secured hereby immediately due and
payable and /or may pursue any rights and remedies it may have hereunder or at law or in equity.
ARTICLE V
Nonjudicial Foreclosure and Sale
5.01 Trustee's Sale. Upon an Event of Default, Grantor authorizes and empowers the
Trustee, at the request of Beneficiary, at any time during the continuance of any default, to sell
all or any portion of the Mortgaged Property, at public auction, to the highest bidder, for cash or
for credit against the indebtedness secured hereby if Beneficiary is the highest bidder, at the
county court house of the county in Texas in which such Mortgaged Property or any part thereof
is situated, as herein described, in the area designated by the commissioners court for such
purpose pursuant to a recordation of such designation in the real property records of such county,
or if no such recorded designation by the commissioners court has been made, in the area at the
county court house designated in the notice of proposed sale posted, filed and served in
accordance with the further provisions of this paragraph, between the hours of 10:00 o'clock
A.M. and 4:00 o'clock P.M. on the first Tuesday of any month. The Trustee shall give notice of
the time, place and terms of said sale, and of the property to be sold, as follows:
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Notice of such proposed sale shall be given by posting written notice thereof at least
twenty -one (21) days preceding the date of the sale at the court house door, and by filing a copy
of the Notice in the office of the county clerk of the county in which the sale is to be made, and if
the property to be sold is situated in more than one county, one notice shall be posted at the court
house door and filed with the county clerk of each county in which the property to be sold is
situated. In addition, Beneficiary shall, at least twenty -one (21) days preceding the date of sale,
serve written notice of the proposed sale by certified mail on each debtor obligated to pay the
debt secured hereby according to the records of beneficiary. Service of such notice shall be
completed upon deposit of the notice, enclosed in a postpaid wrapper, properly addressed to such
debtor at the most recent address as shown by the records of Beneficiary, 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 such service was completed shall
be prima facie evidence of the fact of service.
Any notice that is required or permitted to be given to Grantor may be addressed to
Grantor at Grantor's mailing address. Any notice that is to be given by certified mail to any other
debtor may, if no address for such other debtor is shown by the records of Beneficiary, be
addressed to such other debtor at Grantor's mailing address. Notwithstanding the foregoing
provisions of this paragraph, notice of such sale given in accordance with the requirements of the
applicable law of the State of Texas in effect at the time of such sale shall constitute sufficient
notice of such sale. Grantor hereby authorizes and empowers the Trustee to sell all or any
portion of the Mortgaged Property, together or in lots or parcels, as the Trustee may deem
expedient, and to execute and deliver to the purchaser or purchasers of such property, good and
sufficient deeds of conveyance of fee simple title with covenants of general warranty made on
behalf of the Grantor. In no event shall the Trustee be required to exhibit, present or display at
any such sale, any of the personalty described herein to be sold at such sale. The Trustee making
such sale shall receive the proceeds thereof and shall apply the same as follows: (i) first, he shall
pay the reasonable expense of executing this trust including a reasonable Trustee's fee or
commission; (ii) second, he shall pay, so far as may be possible, the indebtedness secured
hereby, discharging first that portion of the indebtedness arising under the covenants or
agreements herein contained and not evidenced by the Note; (iii) third, he shall pay the residue,
if any, to the person or persons legally entitled thereto. Payment of the purchase price to the
Trustee shall satisfy the obligation of the purchaser at such sale therefore, and such purchaser
shall not be bound to look after the application thereof. The sale or sales by the Trustee of less
than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and
the Trustee is specifically empowered to make successive sale or sales under such power until
the whole of the Mortgaged Property shall be sold; and if the proceeds of such sale or sales of
less than the whole of such Mortgaged Property shall be less than the aggregate of the
indebtedness secured hereby and the expense of executing this trust, this Deed of Trust and the
lien, security interest and assignment hereof shall remain in full force and effect as to the unsold
portion of the Mortgaged Property just as though no sale or sales had been made; provided,
however, that Grantor shall never have any right to require the sale or sales of less than the
whole of the Mortgaged Property, but Beneficiary shall have the right, at its sole election, to
request the Trustee to sell less than the whole of the Mortgaged Property. If default is made
hereunder, the holder of the indebtedness or any part thereof on which the payment is delinquent
shall have the option to proceed with foreclosure in satisfaction of such item either through
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judicial proceedings or by directing the Trustee to proceed as if under a full foreclosure,
conducting the sale as herein provided without declaring the entire indebtedness secured hereby
due, and if sale is made because of default of an installment, or a part of an installment, such sale
may be made subject to the unmatured part of the Note and Other Indebtedness secured by this
Deed of Trust; and it is agreed that such sale, if so made, shall not in any manner affect the
unmatured part of the indebtedness secured by this Deed of Trust, but as to such unmatured part,
this Deed of Trust shall remain in full force and effect 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 secured hereby.
5.02 Successor Trustee. If the Trustee shall die or become disqualified from acting in the
execution of this trust, or shall fail or refuse to execute the same when requested by Beneficiary
to do so; or if, for any reason, Beneficiary shall prefer to appoint a substitute Trustee to act
instead of the Trustee named herein, Beneficiary shall have full power to appoint, by written
instrument, a substitute Trustee, and, if necessary, several substitute Trustees in succession, who
shall succeed to all the estate, rights, powers, and duties of the original Trustee named herein.
Such appointment may be executed by any authorized agent of Beneficiary; and if Beneficiary is
a corporation and such appointment is executed in its behalf by any officer of such corporation,
such appointment shall be conclusively presumed to be executed with authority and shall be
valid and sufficient without proof of any action by the board of directors or any superior officer
of the corporation. In the event of an assignment of the interests of Beneficiary under this Deed
of Trust, all rights and remedies granted to Beneficiary in this Deed of Trust shall inure to the
benefit of, and may be exercised by, the assignee.
5.03 Acts and Statements of Trustee. Grantor hereby agrees, in its behalf and in behalf of its
heirs, executors, administrators, successors, personal representatives and assigns, that any and all
statements of fact or other recitals made in any deed of conveyance given by the Trustee, with
respect to the identity of Beneficiary, or with respect to the occurrence or existence of any
default, or with respect to the acceleration of the maturity of any indebtedness secured hereby, or
with respect to the request to sell, the notice of sale, the giving of notice to all debtors legally
entitled thereto, the time, place, terms, and manner of sale, and receipt, distribution, and
application of the money realized therefrom, or with respect to the due and proper appointment
of a substitute Trustee, and, without being limited by the foregoing, with respect to any other act
or thing having been duly done by the Beneficiary or by the Trustee hereunder, shall be taken by
all courts of law and equity as prima facie evidence that the statements or recitals state facts and
are without further question to be so accepted, and Grantor hereby ratifies and confirms every act
that Trustee or any substitute Trustee hereunder may lawfully do in the premises by virtue
hereof.
5.04 Disaffirmance by Purchaser. The purchaser at any trustee's or foreclosure sale
hereunder may disaffirm any easement granted, or rental, lease or other contract made, in
violation of any provision of this Deed of Trust, and may take immediate possession of the
Mortgaged Property free from, and despite the terms of, such grant of easement and rental or
lease contract, subject to the Protecting Tenants at Foreclosure Act of 2009, Title VII of the
Helping Families Save Their Homes Act of 2009 (Public Law 111 -22, §702) and other
governmental requirements.
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5.05 Beneficiary May Bid. Beneficiary shall have the right to become the purchaser at all
sales to enforce this trust, being the highest bidder, and to have the amount of which such
property is sold credited on the indebtedness secured hereby which is then owing.
ARTICLE VI
Hazardous Materials
6.01 Definitions. For the purpose of this Deed of Trust, Grantor, Beneficiary and Trustee
agree that, unless the context otherwise specifies or requires, the following terms shall have the
meaning herein specified:
(a) Hazardous Materials: Any substance the presence of which on the Mortgaged
Property is regulated by any Governmental Requirements and Environmental Laws and
Regulations, including but not limited to: (i) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et sue.), as amended from time
to time, and regulations promulgated thereunder; (ii) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. Section 9601 et .) ( "CERCLA" or "SuperFund "), as amended from time to time, and
regulations promulgated thereunder; (iii) asbestos; (iv) polychlorinated biphenyls; (v) any
petroleum -based products; and (vi) underground storage tanks, whether empty, filled or partially
filled with any substance.
(b) Hazardous Materials Contamination: The contamination (whether presently existing
or hereafter occurring) of the improvements, facilities, soil, groundwater, air or other elements
on, over or under the Mortgaged Property by Hazardous Materials, or the contamination of the
improvements, facilities, soil, ground- water, air or other elements on, over or under any other
property as a result of Hazardous Materials at any time (whether before or after the date of this
Deed of Trust) emanating from the Mortgaged Property.
6.02 Representations and Warranties. Grantor hereby represents and warrants that to the
best of Grantor's knowledge:
(a) No Hazardous Materials are located on the Mortgaged Property or have been
released into the environment, or deposited, discharged, placed or disposed of at, on, under or
near the Mortgaged Property, or transported to or from the Mortgaged Property. No portion of
the Mortgaged Property is being used or, to the best of Grantor's knowledge, has been used at
any previous time, for the disposal, storage, treatment, processing, manufacturing or other
handling of Hazardous Materials nor is any part of the Mortgaged Property affected by any
Hazardous Materials Contamination.
(b) No Hazardous Materials are located on property adjoining the Mortgaged
Property. No property adjoining the Mortgaged Property has ever been used at any previous
time for the disposal, storage, treatment, processing, manufacturing or other handling of
Hazardous Materials. No property adjoining the Mortgaged Property is affected by Hazardous
Materials Contamination.
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(c) No asbestos or asbestos containing materials have been installed, used,
incorporated into, or disposed of on the Mortgaged Property.
(d) No polychlorinated biphenyls or materials containing polychlorinated biphenyls
are located on or in the Mortgaged Property, in the form of electrical transformers, fluorescent
light fixtures with ballasts, cooling oils, or any other device or form.
(e) No underground storage tanks are located on the Mortgaged Property or, to the
best of Grantor's knowledge, were previously located on the Mortgaged Property and
subsequently removed or filled.
(f) No investigation, administrative order, consent order, agreement, litigation or
settlement with respect to Hazardous Materials or Hazardous Materials Contamination is
proposed, threatened, anticipated or in existence with respect to the Mortgaged Property. The
Mortgaged Property and its existing and prior uses comply and at all times have complied with
any applicable Governmental Requirements relating to environmental matters or Hazardous
Materials. There is no condition on the Mortgaged Property which is in violation of any
applicable Governmental Requirements relating to Hazardous Materials, and Grantor has
received no communication from or on behalf of any Governmental Authority that any such
condition exists. The Mortgaged Property is not currently on, and to the best of Grantor's
knowledge, has never been on, any federal, state or local "Superfund" or "Superlien" list.
(g) Except for studies, audits, and reports pertaining to the Mortgaged Property which
have been made available to Beneficiary, there have been no environmental investigations,
studies, audits, tests, reviews or other analyses conducted by or which are in the possession of or
available to Grantor in relation to the Mortgaged Property.
(h) All representations and warranties contained in this Section 6.02 shall survive the
consummation of the transactions contemplated by this Deed of Trust.
6.03 Covenants. Grantor agrees: (a) that Grantor shall not receive, store, dispose or release
any Hazardous Materials on or to the Mortgaged Property or transport any Hazardous Materials
to or from the Mortgaged Property or permit the existence of any Hazardous Materials
Contamination; (b) to give written notice to Beneficiary immediately upon Grantor's acquiring
knowledge of the presence of any Hazardous Materials on the Mortgaged Property or of the
transport of any Hazardous Materials to or from the Mortgaged Property or of the existence of
any Hazardous Materials Contamination, with a full description thereof; (c) promptly, at
Grantor's sole cost and expense, to comply with any Governmental Requirements requiring the
removal, treatment or disposal of such Hazardous Materials or Hazardous Materials
Contamination and provide Beneficiary with satisfactory evidence of such compliance; (d) to
provide Beneficiary, within thirty (30) days after demand by Beneficiary, with financial
assurance evidencing to Beneficiary's satisfaction that the necessary funds are available to pay
the cost of removing, treating and disposing of such Hazardous Materials or Hazardous Materials
Contamination and discharging any assessments which may be established on the Mortgaged
Property as a result thereof; and (e) to insure that all leases, licenses, and agreements of any kind
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0000371F OR 983 104
now or hereafter executed which permit any party to occupy, possess, or use in any way the
Mortgaged Property or any part thereof, whether written or oral, include an express prohibition
on the disposal or discharge of any Hazardous Materials at or affecting the Mortgaged Property,
and a provision that failure to comply with such prohibition shall expressly constitute a default
under any such agreement.
6.04 Liens. Grantor shall not cause or suffer any liens to be recorded against the Mortgaged
Property as a consequence of, or in any way related to, the presence, remediation or disposal of
Hazardous Materials in or about the Mortgaged Property, including any so- called state, federal or
local "Superfund" lien relating to such matters.
6.05 Site Assessments. Beneficiary (by its officers, employees and agents) at any time and
from time to time, either prior to or after the occurrence of an Event of Default, may contract for
the services of persons (the "Site Reviewers ") to perform environmental site assessments ( "Site
Assessments ") on the Mortgaged Property for the purpose of determining whether there exists on
the Mortgaged Property any environmental condition which could result in any liability, cost or
expense to the owner, occupier or operator of such Mortgaged Property arising under any
Governmental Requirements relating to Hazardous Materials. The Site Assessments may be
performed at any time or times, upon reasonable notice, and under reasonable conditions
established by Grantor which do not impede the performance of the Site Assessment. The Site
Reviewers are hereby authorized to enter upon the Mortgaged Property for such purposes. The
Site Reviewers are further authorized to perform both above and below - ground testing for
environmental damage or the presence of Hazardous Materials or Hazardous Materials
Contamination on the Mortgaged Property and such other tests on the Mortgaged Property as
may be necessary to conduct the Site Assessments in the reasonable opinion of the Site
Reviewers. Grantor will supply to the Site Reviewers such historical and operational
information regarding the Mortgaged Property as may be reasonably requested by the Site
Reviewers to facilitate the Site Assessments and will make available for meetings with the Site
Reviewers appropriate personnel having knowledge of such matters. On request, Beneficiary
shall make the results of such Site Assessments fully available to Grantor, which (prior to an
Event of Default) may at its election participate under reasonable procedures in the direction of
such Site Assessments and the description of tasks of the Site Reviewers. The cost of
performing such Site Assessments shall be paid by Grantor upon demand of Beneficiary and any
such obligations shall be indebtedness secured by this Deed of Trust.
6.06 INDEMNIFICATION GRANTOR SHALL AT ALL TIMES RETAIN ANY AND
ALL LIABILITIES ARISING FROM THE PRESENCE, HANDLING, TREATMENT,
STORAGE, TRANSPORTATION, REMOVAL OR DISPOSAL OF HAZARDOUS
MATERIALS ON THE MORTGAGED PROPERTY. REGARDLESS OF WHETHER
ANY SITE ASSESSMENTS ARE CONDUCTED HEREUNDER, AND REGARDLESS
OF WHETHER ANY EVENT OF DEFAULT (AS DEFINED IN SECTION 4.01 OF THIS
DEED OF TRUST) SHALL HAVE OCCURRED AND BE CONTINUING OR ANY
REMEDIES IN RESPECT TO THE MORTGAGED PROPERTY ARE EXERCISED BY
BENEFICIARY, GRANTOR SHALL TO THE EXTENT AUTHORIZED BY LAW AND
SUBJECT TO FUNDS LEGALLY AVAILABLE FOR THE PURPOSE, DEFEND,
INDEMNIFY AND HOLD HARMLESS BENEFICIARY AND TRUSTEE (AND ANY
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SUCCESSOR TO THE TRUSTEE) FROM AND AGAINST ANY AND ALL
LIABILITIES (INCLUDING STRICT LIABILITY), SUITS, ACTIONS, CLAIMS,
DEMANDS, PENALTIES, DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST
PROFITS, CONSEQUENTIAL DAMAGES, INTEREST, PENALTIES, FINES AND
MONETARY SANCTIONS), LOSSES, COSTS AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND REMEDIAL
COSTS) (THE FOREGOING ARE HEREINAFTER COLLECTIVELY REFERRED TO
AS "LIABILITIES ") WHICH MAY NOW OR IN THE FUTURE (WHETHER BEFORE
OR AFTER THE CULMINATION OF THE TRANSACTIONS CONTEMPLATED BY
THIS DEED OF TRUST) BE INCURRED OR SUFFERED BY BENEFICIARY OR
TRUSTEE (OR ANY SUCCESSOR TO THE TRUSTEE) BY REASON OF, RESULTING
FROM, IN CONNECTION WITH, OR ARISING IN ANY MANNER WHATSOEVER
OUT OF THE BREACH OF ANY WARRANTY OR COVENANT OR THE
INACCURACY OF ANY REPRESENTATION OF GRANTOR CONTAINED OR
REFERRED TO IN THIS ARTICLE VI OR IN ANY LOAN AGREEMENT MADE AND
ENTERED INTO BETWEEN GRANTOR AND BENEFICIARY RELATING TO THE
MORTGAGED PROPERTY OR WHICH MAY BE ASSERTED AS A DIRECT OR
INDIRECT RESULT OF THE PRESENCE ON OR UNDER, OR ESCAPE, SEEPAGE,
LEAKAGE, SPILLAGE, DISCHARGE, EMISSION OR RELEASE FROM THE
MORTGAGED PROPERTY OF ANY HAZARDOUS MATERIALS OR ANY
HAZARDOUS MATERIALS CONTAMINATION OR ARISE OUT OF OR RESULT
FROM THE ENVIRONMENTAL CONDITION OF THE MORTGAGED PROPERTY
OR THE APPLICABILITY OF ANY GOVERNMENTAL REQUIREMENTS
RELATING TO HAZARDOUS MATERIALS.
SUCH LIABILITIES SHALL INCLUDE, WITHOUT LIMITATION: (I) INJURY
OR DEATH TO ANY PERSON; (II) DAMAGE TO OR LOSS OF THE USE OF ANY
PROPERTY; (III) THE COST OF ANY DEMOLITION AND REBUILDING OF ANY
IMPROVEMENTS NOW OR HEREAFTER SITUATED ON THE MORTGAGED
PROPERTY OR ADJACENT PROPERTY, AND THE COST OF ANY REPAIR OR
REMEDIATION OF ANY SUCH IMPROVEMENTS; (IV) THE COST OF ANY
ACTIVITY REQUIRED BY ANY GOVERNMENTAL AUTHORITY; (V) ANY
LAWSUIT BROUGHT, GOOD FAITH SETTLEMENT REACHED, OR
GOVERNMENTAL ORDER RELATING TO THE PRESENCE, DISPOSAL, RELEASE
OR THREATENED RELEASE OF ANY HAZARDOUS MATERIALS, ON, FROM OR
UNDER THE MORTGAGED PROPERTY; AND (VI) THE IMPOSITION OF ANY
LIENS ON THE MORTGAGED PROPERTY ARISING FROM THE ACTIVITY OF
GRANTOR OR GRANTOR'S PREDECESSORS IN INTEREST ON THE
MORTGAGED PROPERTY OR FROM THE EXISTENCE OF HAZARDOUS
MATERIALS UPON THE MORTGAGED PROPERTY OR HAZARDOUS MATERIALS
CONTAMINATION. THE COVENANTS, WARRANTIES, AGREEMENTS AND
INDEMNIFICATIONS CONTAINED IN THIS ARTICLE VI SHALL SURVIVE THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS DEED OF
TRUST.
Bk Val F'9
00003718 OR 983 105
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6.07 Right of Entry. Beneficiary shall have the right but not the obligation, without in any
way limiting Beneficiary's other rights and remedies under this Deed of Trust, to enter onto the
Mortgaged Property or to take such other actions as it deems necessary or advisable to clean up,
remove, resolve or minimize the impact of, or otherwise deal with, any Hazardous Materials or
Hazardous Materials Contamination on or under the Mortgaged Property following receipt of
any notice from any person or entity asserting the existence of any Hazardous Materials or
Hazardous Materials Contamination pertaining to the Mortgaged Property, or any part thereof
which, if true, could result in an order, notice, suit, imposition of a lien on the Mortgaged
Property, or other action, and /or which, in Beneficiary's sole opinion, could jeopardize
Beneficiary's security upon this Deed of Trust. All costs and expenses paid or incurred by
Beneficiary in the exercise of any such rights shall be indebtedness secured by this Deed of Trust
and shall be payable by Grantor upon demand.
ARTICLE VII
Additional Provisions
7.01 Rights of Beneficiary. If any of the indebtedness hereby secured shall become due and
payable, Trustee or Beneficiary shall have the right and power to proceed by a suit or suits in
equity or at law, whether for the specific performance of any covenant or agreement herein
contained or in aid of the execution of any power herein granted, or for any foreclosure
hereunder or for the sale of the Mortgaged Property under the judgment or decree of any court or
courts of competent jurisdiction or for the appointment of a receiver pending any foreclosure
hereunder or the sale of the Mortgaged Property under the order of a court or courts of competent
jurisdiction or under executory or other legal process, or for the enforcement of any other
appropriate legal or equitable remedy. Grantor agrees, to the full extent that it lawfully may, that
in case one or more of the Events of Default hereunder shall have occurred and shall not have
been remedied, then, and in every such case, the Beneficiary shall have the right and power to
enter into and upon and take possession of all or any part of the Mortgaged Property. in the
possession of the Grantor, its successors or assigns, or its or their agents or servants, and may
exclude Grantor, its successors or assigns, and all persons claiming under Grantor, and its or
their agents or servants, wholly or partly therefrom; and, holding the same, the Beneficiary may
use, administer, manage, operate and control the Mortgaged Property and conduct the business
thereof to the same extent as Grantor, its successors or assigns, might at the time do and may
exercise all rights and powers of Grantor, in the name, place and stead of Grantor, or otherwise
as the Beneficiary shall deem best; and in the exercise of any of the foregoing rights and powers
Beneficiary shall not be liable to Grantor for any loss or damage thereby sustained.
7.02 The Lien. Any part of the Mortgaged Property may be released by the Beneficiary
without affecting the lien, security interest and assignment hereof against the remainder. The
lien, security interest and other rights granted hereby shall not affect or be affected by any other
security taken for the same indebtedness or any part thereof. The taking of additional security, or
the extension or renewal of the indebtedness secured hereby or any part thereof, shall not release
or impair the lien, security interest and other rights granted hereby, or affect the liability of any
endorser, guarantor or surety, or improve the right of any permitted junior lienholder; and this
Deed of Trust, as well as any instrument given to secure any renewal or extension of the
indebtedness secured hereby, or any part thereof, shall be and remain a first and prior lien, except
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00003741 OR
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983 107
as otherwise provided herein on all of the Mortgaged Property not expressly released until the
indebtedness secured hereby is completely paid.
7.03 Waiver. To the extent that Grantor may lawfully do so, Grantor agrees that Grantor shall
not assert and hereby expressly waives, any right under any statute or rule of law pertaining to
the marshalling of assets, the exemption of homestead, the administration of estates of decedents,
or other matter whatever to defeat, reduce or affect the right of Beneficiary, under the terms of
this Deed of Trust, to sell the Mortgaged Property for the collection of the indebtedness secured
hereby (without any prior or different resort for collection) or the right of Beneficiary, under the
terms of this Deed of Trust, to the payment of such indebtedness out of the proceeds of sale of
the Mortgaged Property in preference to every other person and claimant whatever (only
reasonable expenses of such sale being first deducted). No provision of this Deed of Trust or any
other document securing or pertaining to the Note shall be construed to impose on Beneficiary
any duty to sell the Mortgaged Property or any other collateral for the Note for collection of the
indebtedness secured by this Deed of Trust or to pursue any other remedy in Beneficiary's power
whatsoever. Grantor expressly waives and relinquishes any right or remedy which it may have
or be able to assert by reason of the provisions of Chapter 34 of the Business and Commerce
Code of the State of Texas, pertaining to the rights and remedies of sureties. To the full extent
permitted by applicable law, Grantor waives any right to require Beneficiary to use diligence in
collection of any indebtedness secured by this Deed of Trust, to proceed against or exhaust any
security or collateral for the loan evidenced by the Note, to mitigate Beneficiary's damages in
connection with the loan evidenced by the Note, or to pursue any other remedy in Beneficiary's
power whatsoever.
7.04 Subrogation. To the extent that proceeds of the Note are used to pay an outstanding lien,
charge or encumbrance against or affecting the Mortgaged Property, such proceeds have been
advanced by Beneficiary at Grantor's request, and Beneficiary shall be subrogated to all rights,
interests and liens owned or held by any owner or holder of such outstanding liens, charges and
encumbrances, irrespective of whether such liens, charges or encumbrances are released of
record.
7.05 Limitation on Interest. All agreements between Grantor and Beneficiary, whether now
existing or hereafter arising and whether written or oral, are expressly limited so that in no
contingency or event whatsoever shall the amount paid, or agreed to be paid, to Beneficiary for
the use, forbearance, or detention of the money to be loaned pursuant to the Note or otherwise, or
for the performance or payment of any covenant or obligation contained herein, exceed the
maximum amount permissible under applicable law. If from any circumstance whatsoever
fulfillment of any provision hereof at the time performance of such provision shall be due shall
involve transcending the limit of validity prescribed by law, then, ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity, and if from any such circumstance
Beneficiary shall ever receive as interest under such Note or this Deed of Trust or otherwise an
amount that would exceed the highest lawful rate, such amount that would be excessive interest
shall be applied to the reduction of the principal amount owing under the Note or on account of
the Other Indebtedness secured hereby and not to the payment of interest or if such excessive
interest exceeds the unpaid balance of principal of the Note and such Other Indebtedness, such
excess shall be refunded to Grantor, or to the maker of the Note or other evidence of
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00003718 OR 983 108
indebtedness if other than Grantor. All sums paid or agreed to be paid to Beneficiary for the use,
forbearance, or detention of the indebtedness secured hereby shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full term of such
indebtedness until payment in full so that the actual rate of interest on account of such
indebtedness is uniform throughout the term thereof. The terms and provisions of this Section
shall control and supersede every other provision of all agreements between Grantor, the maker
of the Note or other evidence of indebtedness if other than Grantor, and Beneficiary.
7.06 Waiver and Invalidity. No waiver of any default on the part of Grantor or breach of any
of the provisions of this Deed of Trust or of any other instrument executed in connection with the
indebtedness secured hereby shall be considered a waiver of any other or subsequent default or
breach, and no delay or omission in exercising or enforcing the rights and powers herein granted
shall be construed as a waiver of such rights and powers, and likewise no exercise or
enforcement of any rights or powers hereunder shall be held to exhaust such rights and powers,
and every such right and power may be exercised from time to time. If any provision of this
Deed of Trust is held to be illegal, invalid, or unenforceable under present or future laws
effective while this Deed of Trust is in effect, the legality, validity, and enforceability of the
remaining provisions of this Deed of Trust shall not be affected thereby, and in lieu of each such
illegal, invalid, or unenforceable provision there shall be added automatically as a part of this
Deed of Trust a provision as similar in terms to such illegal, invalid, or unenforceable provision
as may be possible and be legal, valid, and enforceable. If any of the liens, security interest or
assignment of rents created by this Deed of Trust shall be invalid or unenforceable, the
unsecured portion of the indebtedness secured hereby shall be completely paid prior to the
payment of the remaining and secured portion of such indebtedness and all payments made on
account of such indebtedness shall be considered to have been paid on and applied first to the
complete payment of the unsecured portion of such indebtedness.
7.07 Tenancy at Will. In the event of a trustee's sale hereunder and if at the time of such sale
the Grantor occupies the portion of the Mortgaged Property so sold, or any part thereof, Grantor
shall immediately become the tenant of the purchaser at such sale, which tenancy shall be a
tenancy from day to day, terminable at the will of either tenant or landlord, at a reasonable rental
per day based upon the value of the portion of the Mortgaged Property so occupied, such rental
to be due and payable daily to the purchaser. An action of forcible detainer shall lie if the tenant
holds over after a demand in writing for possession of such Mortgaged Property and premises;
and this agreement and any trustee's deed shall constitute a lease and agreement under which the
tenant's possession, each and all, arose and continued.
7.08 Security Agreement. With respect to any portion of the Mortgaged Property which
constitutes personal property or fixtures governed by the Uniform Commercial Code of the State
of Texas (hereinafter called the "Code "), this Deed of Trust shall constitute a security agreement
between Grantor as the Debtor and Beneficiary as the Secured Party, and Grantor hereby grants
to Beneficiary a security interest in such portion of the Mortgaged Property. Cumulative of all
other rights of Beneficiary hereunder, Beneficiary shall have all of the rights conferred upon
secured parties by the Code. Grantor will execute and deliver to Beneficiary all financing
statements that may from time to time be required by Beneficiary to establish and maintain the
validity and priority of the security interest of Beneficiary, or any modification thereof, and all
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00003718 OR 983 109
costs and expenses of any searches reasonably required by Beneficiary. Beneficiary may exercise
any or all of the remedies of a secured party available to it under the Code with respect to such
property, and it is expressly agreed that if upon default Beneficiary should proceed to dispose of
such property in accordance with the provisions of the Code, then (10) days' notice by
Beneficiary to Grantor shall be deemed to be reasonable notice under any provision of the Code
requiring such notice; provided, however, that Beneficiary may at its option dispose of such
property in accordance with Beneficiary's rights and remedies with respect to the real property
pursuant to the provisions of this Deed of Trust, in lieu of proceeding under the Code.
7.09 Changes in Grantor's Identity. Grantor shall give advance notice in writing to
Beneficiary of any proposed change in Grantor's name, address, identity, or corporate structure
and will execute and deliver to Beneficiary, prior to or concurrently with the occurrence of any
such change, all additional financing statements that Beneficiary may require to establish and
maintain the validity and priority of Beneficiary's security interest with respect to any Mortgaged
Property described or referred to herein.
7.10 Fixtures. Some of the items of Mortgaged Property described herein are goods that are
or are to become fixtures related to the real estate described herein, and it is intended that as to
those goods, this Deed of Trust shall be effective as a financing statement filed as a fixture filing
from the date of its filing for record in the real estate records of the county in which the
Mortgaged Property is situated. Information concerning the security interest created by this
instrument may be obtained from Beneficiary, as secured party, at the address of Beneficiary
stated above. The mailing address of the Grantor, as debtor, is as stated in Section 1.02.
7.11 NSP Subrecipient Activity Report. Until all NSP requirements are met, the NSP
Subrecipient Activity Report shall be submitted monthly. Thereafter, the NSP Subrecipient
Activity Report shall be submitted quarterly. The Beneficiary shall determine whether all NSP
obligation requirements have been met and may amend this rule from time to time or as needed.
7.12 Applicable Law. All references in this Deed of Trust to the "law" or to "lawful rate"
shall be construed to be the laws of the State of Texas and the United States, whichever is
applicable. "Applicable law" as used herein means (a) the law pertaining to maximum rates of
interest that is now in effect, and (b) any law that comes into effect at any time in the future
allowing a higher maximum rate than the law now in effect.
7.13 Binding Effect. The covenants herein contained shall bind, and the benefits and
advantages shall inure to, the respective heirs, executors, administrators, personal
representatives, successors and assigns of the parties hereto, and to any substitute Trustee.
Whenever used, the singular number shall include the plural and the singular, and the use of any
gender shall be applicable to all genders. The duties, covenants, conditions, obligations and
warranties of Grantor in this Deed of Trust shall be joint and several obligations of Grantor and
each Grantor if more than one, and Grantor's heirs, personal representatives, successors and
assigns. Each party who executes this Deed of Trust (other than Beneficiary), and each
subsequent owner of the Mortgaged Property, or any part thereof, covenants and agrees that it
will perform, or cause to be performed, each condition, term, provision, and covenant of this
Deed of Trust.
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00003718 OR
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7.14 Right to Inspect. Beneficiary shall have at all times a right of access to and upon the
Mortgaged Property for purposes of inspection and, at Beneficiary's option, for purposes of
performing any obligations required of Grantor hereunder.
7.15 Notices. All notices, requests, consents, demands and other communications required or
which any part desires to give hereunder shall be in writing. Notice will be deemed effective
upon deposit in the United States mail, postage prepaid, by certified mail, return receipt
requested, addressed to the party to whom directed at the addresses specified in Article I of this
Deed of Trust (unless changed by notice in writing given by the particular party whose address is
to be changed). Notice given in any other manner shall be deemed effective only if and when
received by the party to be notified. Provided, however, service of a notice required by Texas
Property Code Section 51.002, as amended, shall be considered complete when the requirements
of that statute are met. Notwithstanding the foregoing, no notice of change of address shall be
effective except upon receipt. This section shall not be construed in any way to affect or impair
any waiver of notice or demand provided in the Note or any other instrument securing the Note
or to require giving of notice or demand to or upon any person in any situation or for any reason.
7.16 Assignment of Rents. All of the rents, royalties (including, but not limited to, royalties
arising out of the sale of oil, gas, and any other minerals produced from the Mortgaged Property,
or any properties pooled with the Mortgaged Property), issues, profits, revenue, income and
other benefits derived from the Mortgaged Property or arising from the use or enjoyment of any
portion thereof or from any lease or agreement pertaining thereto (hereinafter called the "Rents
and Profits ") are hereby assigned, transferred, conveyed and set over to Beneficiary as security
for (i) payment of the principal and interest and all other sums payable on the Note, (ii) payment
of any Other Indebtedness secured hereby and (iii) the performance and discharge of each and
every obligation, covenant and agreement of Grantor set forth herein or in the Note or in any
other instrument securing payment of the Note. Prior to the occurrence of any Event of Default
hereunder, Grantor shall collect and receive all Rents and Profits, and Grantor shall apply the
funds so collected first to the payment of the principal and interest and all other sums payable on
the Note and in payment of all Other Indebtedness secured hereby and thereafter, so long as no
Event of Default hereunder has occurred, the balance shall be distributed to the account of
Grantor. Grantor will not (i) execute an assignment of any of its right, title or interest in the
Rents and Profits, or (ii) except in the ordinary course of business, including but not limited to
where the lessee is in default thereunder, terminate or consent to the cancellation or surrender of
any lease of the Mortgaged Property or any part thereof, now or hereafter existing having an
unexpired term of one year or more except that any lease may be canceled, provided that
promptly after the cancellation or surrender thereof a new lease is entered into with a new lessee
having a credit standing, in the judgment of Beneficiary, at least equivalent to that of the lessee
whose lease was canceled, on substantially the same terms as the terminated or canceled lease, or
(iii) except in the ordinary course of business, modify any lease of the Mortgaged Property or
any part thereof so as to shorten the unexpired term thereof or so as to decrease any amount of
the rent payable thereunder, or (iv) accept prepayments of any installments of rent to become due
under any of such leases in excess of one month, except prepayments in the nature of security for
the performance of the lessee thereunder, or (v) in any other manner impair the value of the
Mortgaged Property or the security of this Deed of Trust. Upon an Event of Default in the
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payment of the Note or any Other Indebtedness secured hereby, Beneficiary may, at its option,
and without notice to Grantor receive and collect all Rents and Profits. Effective upon such
Event of Default and for the foregoing purpose Grantor has irrevocably made, constituted and
appointed, and by these presents does irrevocably make, constitute and appoint Beneficiary as its
true and lawful attorney for it and in its name, place and stead to receive and collect the Rents
and Profits, compromise and settle all claims therefore, and execute, deliver, cancel, modify and
to release any and all leases and lessees, giving and granting unto Beneficiary full power and
authority to do and perform all and every act and thing whatsoever, requisite and necessary to be
done in connection therewith, as fully, to all intents and purposes, as Grantor might or could do if
personally present and also giving and granting unto Beneficiary full power to substitute one or
more attorney or attorneys under it, concerning such matters. Default shall be presumed upon
Beneficiary's filing with the County Clerk of the County in which the Mortgaged Property is
located of an affidavit to the effect that an Event of Default has occurred hereunder and all
persons dealing with Beneficiary may rely upon such affidavit. Grantor agrees that all persons
dealing with Beneficiary and its substitutes that this power of attorney shall remain effective for
so long as there is an Event of Default under the terms hereof. Grantor agrees to indemnify and
hold Beneficiary and its substitutes harmless from any and all liability arising out of
Beneficiary's or its substitutes' acts pursuant to the authority herein granted to the extent allowed
by law. This power of attorney is one coupled with an interest.
7.17 Construction Mortgage. This Deed of Trust constitutes a "Construction Mortgage" as
defined in the Texas Business and Commerce Code and secures an obligation incurred for the
construction of improvements on the Real Property described herein.
7.18 Loan Agreement. It is understood and agreed that all or a portion of the funds to be
advanced under the Note are to be used in the construction or Rehabilitation of the Project in
accordance with the NSP Construction Loan Agreement dated on even date herewith made by
and between Grantor (Borrower in Loan Agreement or the Maker of the Note if different from
Grantor) and Beneficiary (Lender in Loan Agreement), which said Loan Agreement is
incorporated herein by reference to the same extent and effect as if fully set forth herein and
made a part hereof. This Deed of Trust secures the payment of all sums and the performance of
all covenants required by Grantor (or the Maker of the Note if different from Grantor) under the
Loan Agreement, and upon the failure of Grantor (or the maker of the Note if different from
Grantor) to keep and perform all the covenants, conditions and agreements of the Loan
Agreement, the indebtedness secured hereby shall, at the option of Beneficiary, become due and
payable, anything herein contained to the contrary notwithstanding.
7.19 Attorney in Fact. Grantor has irrevocably made, constituted and appointed, and by these
presents does irrevocably make, constitute and appoint Beneficiary its true and lawful attorney,
for it and in its name, place and stead in the Event of Default to contract for the sale of and
convey all or any part of the Mortgaged Property, giving and granting unto Beneficiary full
power and authority to do and perform all and every act and thing whatsoever requisite and
necessary to be done in connection therewith, as fully, to all intents and purposes, as Grantor
might or could do if personally present and also giving and granting unto Beneficiary full power
to substitute one or more attorneys under it, in or concerning such matters. Grantor agrees that
this power of attorney shall be effective upon an Event of Default in the payment of the Note or
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001003718 OR 983 112
under any instrument executed as security therefore, and Grantor agrees and represents to those
dealing with Beneficiary, and its substitute or substitutes, that this power of attorney shall be
effective upon Beneficiary's filing with the County Clerk of the county in which the Mortgaged
Property is situated, an affidavit to the effect that an Event of Default has occurred under the
terms of the Note or any instruments executed as security therefore and such persons may rely
upon Beneficiary's representation with regard to the continuation of such default, Grantor agrees
with all persons dealing with Beneficiary, its substitute and substitutes that this power of attorney
shall remain effective for so long as there is an Event of Default under the terms of the Note or
any instruments executed as security therefore, and further agrees with such persons that they
may rely upon the representations of Beneficiary, its substitute and substitutes, with regard to the
continuation of such default. TO THE EXTENT AUTHORIZED BY LAW, AND SUBJECT
TO THE LIMITATIONS CONTAINED HEREIN, AND FUNDS LEGALLY AVAILABLE
FOR THE PURPOSE, GRANTOR AGREES TO INDEMNIFY AND HOLD BENEFICIARY
AND ITS SUBSTITUTES HARMLESS FROM ANY AND ALL LIABILITY ARISING OUT
OF BENEFICIARY'S OR ITS SUBSTITUTES' ACTS PURSUANT TO THE AUTHORITY
HEREIN GRANTED TO THE EXTENT ALLOWED BY LAW. THIS POWER OF
ATTORNEY IS ONE COUPLED WITH AN INTEREST.
7.20 Covenants Running with the Land. All of the covenants, conditions, warranties,
representations and other obligations made or undertaken by Grantor 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 Mortgaged Property until the lien of this Deed
of Trust has been fully released by Beneficiary.
7.21 Foreclosure. If the Mortgaged Property becomes the subject of a foreclosure proceeding
that results in the sale of part or all of the Mortgaged Property, all sums in excess of those paid to
superior lien holders shall be paid to Beneficiary to apply to the outstanding balance under the
Note. If there are insufficient funds to pay off the Note secured herein, Beneficiary may in its
own discretion waive the payment of any or all of the outstanding loan balance under the Note.
7.22 Non - Recourse. Notwithstanding anything herein to the contrary, Beneficiary shall have
no recourse against Grantor, nor against any guarantor, if any, for payment and performance of
all of the obligations, covenants and agreements of Grantor under the Note and the documents
securing same including, but not limited to this Deed of Trust (said documents hereafter
collectively called "Security Documents "), except to the full extent of all of the Mortgaged
Property which constitutes security for the Note. If default occurs in the timely and proper
payment of any portion of such indebtedness or in the timely performance of any of such
obligations, agreement or covenants, any judicial proceedings brought by Beneficiary against
Grantor or any guarantor shall be limited to the protection and preservation of the Mortgaged
Property, the preservation, enforcement and foreclosure of the liens, mortgages, assignments,
rights and security interests now or at any time hereafter securing the payment of the Note, and
enforcement and collection of obligations, covenants and indebtedness for which Grantor and
any guarantors remain liable as provided in this paragraph. If there is a foreclosure of any such
liens, mortgages, assignments, rights, and security interests securing the payment of the Note, by
power of sale or otherwise, no judgment for any deficiency upon such indebtedness shall be
sought or obtained by Beneficiary against Grantor. Notwithstanding the foregoing provisions of
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000003718 OR 983 113
this paragraph or any other agreement, Beneficiary shall have full recourse against Grantor and
all guarantors, if any, for: (a) fraud or misrepresentation by Grantor or any guarantor in
connection with the transactions herein contemplated; (b) failure to pay taxes, assessments,
charges for labor or materials or other charges that can create liens on any portion of the
Mortgaged Property; (c) the misapplication of (i) proceeds of insurance covering any portion of
the Mortgaged Property, or (ii) proceeds of the sale or condemnation of any portion of the
Mortgaged Property, or (iii) rentals received by or on behalf of Grantor subsequent to the date on
which Beneficiary gives written notice of the posting of foreclosure notices, (d) failure to prevent
waste to the Mortgaged Property unless Beneficiary is compensated therefore by insurance
proceeds collected by Grantor; (e) the return to Beneficiary of all unearned advance rentals and
security deposits paid by tenants of the Mortgaged Property and not refunded to or forfeited by
such tenants, (f) the return of, or reimbursement for, all personalty taken from the Mortgaged
Property by or on behalf of Grantor, (g) all court costs and for all attorneys' fees provided for in
any instrument governing, securing or pertaining to the payment of the Note; and (h) failure to
comply with any indemnification provision or covenants pertaining to environmental matters
contained in the Security Documents.
7.23 Release. Subject to the following terms, Beneficiary will release the entire Mortgaged
Property or individual lots on the Mortgaged Property from all liens securing the Note upon
closing of a permanent mortgage loan (purchase money) with an Eligible Household utilizing the
Financing Mechanisms available under the NSP, when applicable:
(a) Grantor must not be in default under this Deed of Trust, Loan Agreement or the
Note at the time of the request for lot release.
(b) The release must be on a form approved by Beneficiary that is prepared and
recorded at Grantor's expense.
(c) The purchase price of Mortgaged Property to the Eligible Household shall be the
lesser of one the following amounts: (1) the cost to acquire and construct or rehabilitate the
Project to a decent, safe, and habitable condition, or (2) one hundred percent (100 %) of the
appraised value after rehabilitation or construction. In no instance shall the purchase price of the
Mortgaged Property to the Eligible Household exceed either of the amounts set out in this
Section 7.23 (c.)
(d) The constructed or rehabilitated single family dwelling must be made available
for sale to Eligible Households within twelve (12) months from the date of acquisition under the
NOFA or from completion of Rehabilitation under the NOFA -R.
(e) The lot to be released must be improved with a single- family dwelling completed
in a good and workmanlike manner in accordance with plans and specifications approved by
Beneficiary and must, at a minimum, meet the Texas Minimum Construction Standards (TMCS)
and the NSP Rehabilitation Standards as noted herein, and must incorporate construction
requirements imposed for single family affordable housing as cited as Texas Government Code,
Section 2306.514, as may be amended from time to time.
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000103718 OR 983 114
(f) The lot release price upon closing of the permanent mortgage made to an Eligible
Household will be $106,797.65, the full unpaid principal balance of the Note. Upon receipt of
payment of the release price from the Grantor Beneficiary shall immediately credit said amount
against the principal balance of the Note.
As provided herein, Beneficiary may forgive some or all of the lot release price and said amount
shall be immediately credited against the principal balance of the Note as stated in Sections 7.23
(g) and (h) of this Deed of Trust.
(g) If Grantor utilizes Financing Mechanisms under NSP and the Eligible Household
qualifies, then in lieu of payment of the full lot release price, the Beneficiary may forgive up to
$30,000.00 in a deferred forgivable down payment assistance loan from Beneficiary to an
Eligible Household whose income exceeds fifty percent (50 %) but is less than one hundred
twenty (120 %) of the area median income as defined by NSP for the payment of down payment
assistance, reasonable closing costs, principal reductions and gap financing in conjunction with a
permanent mortgage loan for the purchase of the single family dwelling from a private mortgage
lender to said Eligible Household. The full amount of any partial release price for the Mortgaged
Property shall be immediately credited against the principal balance of the Note upon receipt of
the fully, executed subordinate, deferred forgivable down payment assistance loan in a form
approved by Beneficiary, in addition to payment of the remaining balance of the lot release price.
(h) If Grantor utilizes Financing Mechanisms under NSP, and the Eligible Household
qualifies, then in lieu of payment of the lot release price, Grantor may forgive up to an amount
equal to the full unpaid principal balance of the Note for the Mortgaged Property to a thirty (30)
year, zero percent (0 %) interest, fully amortizing permanent mortgage loan from Beneficiary to
an Eligible Household whose income does not exceed fifty percent (50 %) of area median income
as defined by NSP for the purchase of the single - family dwelling. For an Eligible Household
whose income does not exceed fifty percent (50 %) of the area median income as defined by
NSP, Grantor, in lieu of payment, may also convert up to $30,000.00 of the unpaid principal
balance of the Note per individual lot to a deferred forgivable down payment assistance loan
from Beneficiary to said Eligible Household for the payment of principal reductions and gap
financing in conjunction with and in addition to the permanent mortgage loan from Beneficiary
to said Eligible. The full amount of any partial release price for the Mortgaged Property shall be
immediately credited against principal balance of the Note upon receipt of fully, executed
permanent mortgage loan documents and, if applicable, homebuyer assistance loan documents,
in a form approved by Beneficiary.
(i) Grantor must provide Beneficiary ten (10) days notice of any requested release.
At the time a release is requested, the party requesting the release must furnish to the holder of
the Note a calculation of area by field notes and a plat or survey, indicating the area to be
released and its relationship to the portion of the Property not to be released and shall provide
evidence that the lot is being sold to an Eligible Household by submitting an income certification
in a form prescribed by Beneficiary. All expenses incident to the granting of release will be
borne by the party requesting the release, including but not limited to the cost of the survey,
Lender's attorney's fees, and recording costs.
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00003718 OR 983 115
7.24 Low and Moderate Income Requirement. It is the intent of Beneficiary and Grantor
that 100% of the funds made available under NSP are to be used to meet the low and moderate
income requirement established in the Housing and Economic Recovery Act Section 2301
(f)(3)(A)(i) and (ii). The low and moderate income requirement includes individuals and
families whose incomes do not exceed 120% of area median income as defined therein.
Such individuals and families will be considered an Eligible Household, as determined by
Beneficiary as stated herein or in accordance with any corresponding provision of federal law or
provisions of succeeding laws as may be amended from time to time. The determination of
whether a purchaser is an Eligible Household shall be made by Beneficiary, in its sole absolute
discretion.
7.25 NSP Contract. Each term and provision of this Deed of Trust is expressly subject to the
terms and condition of the Neighborhood Stabilization Program Contract Number 77099999126
executed between Beneficiary herein and Grantor herein, dated to be effective September 1,
2009 in the original amount of $1,050,000.00, and as increased and amended and as further
amended from time to time, upon written request and express approval by the Beneficiary under
the Neighborhood Stabilization Program ( "NSP Contract ") which is incorporated herein by
reference. The lot or lots securing this loan must be improved with a single family dwelling
completed in good and workmanlike manner and sold to an Eligible Household who will
maintain the affordability period for rental or homeownership in accordance with the NSP. The
terms of the NSP contract shall govern over any conflicting provision hereof.
7.26 Due on Transfer - Nonresidential Property. BENEFICIARY MAY DECLARE THE
DEBT SECURED BY THIS DEED OF TRUST IMMEDIATELY DUE AND PAYABLE
AND INVOKE ANY REMEDIES PROVIDED IN THIS DEED OF TRUST FOR
DEFAULT IF GRANTOR TRANSFERS ANY OF THE MORTGAGED PROPERTY TO
A PERSON WHO IS NOT A PERMITTED TRANSFEREE WITHOUT
BENEFICIARY'S CONSENT. "PERMITTED TRANSFEREE" FOR A NATURAL
PERSON MEANS THAT PERSON'S SPOUSE OR CHILDREN, ANY TRUST FOR
THAT PERSON'S BENEFIT OR THE BENEFIT OF THE PERSON'S SPOUSE OR
CHILDREN, OR ANY CORPORATION, PARTNERSHIP, OR LIMITED LIABILITY
COMPANY IN WHICH THE DIRECT AND BENEFICIAL OWNER OF ALL THE
EQUITY INTEREST IS A NATURAL PERSON OR THAT PERSON'S SPOUSE OR
CHILDREN OR ANY TRUST FOR THE BENEFIT OF THEM; AND THE HEIRS,
BENEFICIARIES, EXECUTORS, ADMINISTRATORS, OR PERSONAL
REPRESENTATIVES OF A NATURAL PERSON ON THE DEATH OF THAT PERSON
OR ON THE INCOMPETENCY OR DISABILITY OF THAT PERSON FOR PURPOSES
OF THE PROTECTION AND MANAGEMENT OF THAT PERSON'S ASSETS; AND
FOR A PERSON THAT IS NOT A NATURAL PERSON, ANY OTHER PERSON
CONTROLLING, CONTROLLED BY, OR UNDER COMMON CONTROL WITH
THAT PERSON.
7.27 Entire Agreement; Amendment. THIS DEED OF TRUST AND THE OTHER LOAN
DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES
HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
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• •
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO.
THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO. The provisions
hereof and the other Loan Documents may be amended or waived only by an instrument in
writing signed by Grantor and Beneficiary.
Bk Val Ps
00003718 OR 983 116
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•
1
EXECUTED this
THE STATE OF TEXAS § 9.
7ktieit) §
COUNTY OF §
This instrument was acknowledged
by Bill Baine, City Manager of City of H
acting on behalf of said political subdivision
•
Bk VD1
00003718 OR 983 117
GRANTOR:
CITY OF HUNTSVILLE, a political subdivision
of the State of Texas
By:
Name: Bill Baine
Title: City Manager
before me on this day of A, ' , 2011,
untsville, a political subdivision fthe State of Texas,
and in the official capacity herein stated.
(Seal)
PREPARED BY:
Texas Department of Housing
and Community Affairs
Legal Services Division
P.O. Box 13941
Austin, Texas 78711 -3941
(512) 475 -2574
Notary ' i blic, Staff of Texas
AFTER RECORDING RETURN TO:
Walker County Title Company
1109 University Ave.
Huntsville, Texas 77340
Attn: Ju
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Page 33 of 33
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• Bk tia'o1 P9
00002772 OR 1019 788
INTERIM CONSTRUCTION DEED OF TRUST
(WITH SECURITY AGREEMENT AND ASSIGNMENT OF RENTS)
( "Deed of Trust ")
NEIGHBORHOOD STABILIZATION PROGRAM
ing Federal Agency: United States Department of Housing and Urban Development
TDHCA Federal Award Number: B- 08 -DN -48 -0001
Federal Award Year (Year of Award from HUD to TDHCA): 2008
TDHCA Award Year (Year of TDHCA Board Approval): 2009
THE STATE OF TEXAS
COUNTY OF WALKER
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.
ARTICLE I
Definitions
The following terms shall have the respective meanings assigned to them when used
herein.
1.01 Grantor: CITY OF HUNTSVILLE, a political subdivision of the State of Texas
1.02 Grantor's mailing address: 1212 Avenue M, Huntsville, Walker County, Texas 77340
1.03 Beneficiary: TEXAS DEPARTMENT OF HOUSING AND COMMUNITY
AFFAIRS, a public and official agency of the State of Texas, and any lawful owner, holder,
pledgee, or assignee of any indebtedness secured hereby.
1.04 Beneficiary's mailing address: P.O. Box 13941, Austin, Travis County, Texas 78711-
3941.
1.05 Trustee: Timothy K. Irvine of Travis County, Texas.
1.06 Mortgaged Property: The Real Property and the Personal Property.
1.07 Project: Single - family dwelling to be constructed or rehabilitated on the Real Property.
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ENTERED JUN 14 2012
•
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000027 OR 1019 789
1.08 NSP: Neighborhood Stabilization Program or ( "Program ") as authorized by the Housing
and Economic Recovery Act of 2008 as an adjunct to the Community Development Block Grant
Program. (Housing and Economic Recovery Act of 2008, Pub. L. 110 -289, 112 STAT 2850.)
1.09 NOFA: Notice of Funding Availability issued by TDHCA for the NSP issued in 2009.
1.10 NOFA -R: Notice of Funding Availability Re- Allocation.
1.11 NOFA -R- SERIES 2: Neighborhood Stabilization Program Re- allocation — Series 2
(NSPR- Series 2) issued in 2010.
1.12 Eligible Household: Individual or families whose income[s] do not exceed 120% of
area median income ( "AMI ") as defined in the Housing and Economic Recovery Act 2301
(f)(3)(A)(i) and (ii) of 2008.
1.13 Financing Mechanisms: Mechanisms that provide affordable homeownership
opportunities to assist homebuyers to purchase and redevelop a foreclosed property at a discount
and/or rehabilitate the property as defined in the Housing and Economic Recovery Act 2301
(c)(3)(A) of 2008 and the Beneficiary.
1.14 Real Property: The real property more specifically described as:
LOT NINE (9), BLOCK TWENTY -FOUR (24) of HIGHLAND ADDITION No. 3, a
subdivision within the City of Huntsville, P. Gray League, A -24, Walker County, Texas
according to the map or plat thereof recorded in Volume 1 Page 6 of the Plat Records, Walker
County, Texas, together with (i) all improvements thereon, all rights, hereditaments and
appurtenances belonging thereto including rights of ingress and egress, easements, licenses, and
all reversionary rights or interests of Grantor; (ii) all fixtures and personal property now or
hereafter attached to the Real Property; (iii) all renewals or replacements thereof or articles in
substitution therefore, whether or not now or later attached to the Project in any manner; and (iv)
all other interests of every kind which Grantor now has or at any time hereafter acquires in and to
the Real Property.
1.15 Personal Property: (i) all furniture, equipment and other personal property now or
hereafter owned by Grantor, located on the Mortgaged Property, and all renewals or
replacements thereof or articles in substitution therefore, whether or not the same are or shall be
attached to the Project in any manner; (ii) all building materials and equipment now or hereafter
delivered to the Mortgaged Property and all building and construction materials, equipment and
parts intended to be installed in or on the Real Property or Project; (iii) all plans and
specifications for the Project; (iv) all contracts and subcontracts relating to the Project; (v) all
deposits (including tenant's security deposits, if any), funds, accounts (including any accounts in
which escrows are deposited as a reserve for the payment of taxes, assessments and insurance on
the Mortgaged Property), contract rights, instruments, documents, general intangibles (including
trademarks, trade names and symbols used in connection therewith), and notes or chattel paper
arising from or by virtue of any transactions related to the Mortgaged Property; (vi) all permits,
licenses, franchises, certificates, and other rights and privileges obtained in connection with the
Mortgaged Property; (vii) all bank accounts in which rental income from the Mortgaged Property
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1 •
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0000277', O
1019
is deposited; (viii) all proceeds arising from or by virtue of the sale, lease or other disposition of
any of the Real or Personal Property; (ix) all proceeds (including premium refunds) payable or to
be payable under each policy of insurance relating to the Project; (x) all proceeds arising from
the taking of all or a part of the Real Property or any rights appurtenant thereto, including change
of grade of streets, curb cuts or other rights of access, for any public or quasi - public use under
any law, or by rights of eminent domain, or by private or other purchase in lieu thereof; (xi) all
other interests of every kind and character which Grantor now has or at any time hereafter
acquires in and to the Personal Property and all property which is used or useful in connection
therewith.
1.16 Construction Loan Agreement: The NSP Construction Loan Agreement ( "Loan
Agreement ") executed by and between Grantor (Borrower in Loan Agreement or the maker of
the Note if different from Grantor) and Beneficiary (Lender in Loan Agreement), dated June 6,
2011, and amended of even date herein, which Loan Agreement sets forth, among other things,
the procedure and requirements for disbursing the loan proceeds to be evidenced by the Note.
1.17 Note: The NSP promissory note ( "Note ") of even date herewith executed by Grantor
payable to the order of Beneficiary in the original principal sum of $110,188.25 payable as
therein provided and finally maturing August 31, 2012, and all modifications, extensions and
renewals thereof.
1.18 Loan Documents: The NSP Note, this Deed of Trust, the Construction Loan Agreement,
and any and all other documents or instruments heretofore or hereafter executed by Grantor (or
the maker of the Note if different from Grantor) securing, evidencing or in any way pertaining to
the indebtedness evidenced by the Note and hereafter are the ( "Loan Documents. ")
1.19 Governmental Requirements. All laws, ordinances, statutes, codes, rules, regulations,
orders and decrees of the United States, the state, the county, the city, or any other political
subdivision in which the Mortgaged Property is located, and any other political subdivision,
agency or instrumentality exercising jurisdiction over Grantor or the Mortgaged Property
including, without limitation, the following: the Civil Rights Act of 1964 (42 U.S.C. 2000(d);
Executive Order 11063, as amended by Executive Order 12259; Executive Order 11246; Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.); Equal Credit Opportunity Act (15 U.S.C.
1691 et seq.); Fair Credit Reporting Act (15 U.S.C. 1681 et seq.); Fair Housing Act (42 U.S.C.
3601 et seq.); the Americans with Disabilities Act of 1990 (P.L. 101 -336); of the Rehabilitation
Act of 1973 (29 U.S.C. 794) and implementing regulations (24 CFR Part 8); Architectural
Barriers Act of 1968 (42 U.S.C. 4151 et seq.); Federal Drug Free Workplace Act of 1988 and the
regulations promulgated thereunder including, without limitation, 54 CFR Part 4956, Section 3
of the Housing and Urban Development Act of 1968; Executive Orders 11625, 12432 and 12138,
as amended; the Copeland "Anti- Kickback" Act (18 U.S.C. § 874 et seq.); the Davis -Bacon Act
(40 U.S.C. § 276a et seq.); Sections 103 and 107 of the Work Hours and Safety Standards Act.
(40 U.S.C. § 327 et seq.); the Uniform Relocation Assistance and Real Property Acquisition
Policies Act (42 U.S.C. § 4201 et seq.); the Housing and Community Development Act of 1974;
the National Environmental Policy Act (42 U.S.C. § 4321 et seq.); ( "NEPA "); the Lead -Based
Paint Poisoning Prevention Act (42 U.S.C. § 4321 et seq.); The Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970; the State of Texas Senate Bill 1356; Title 8,
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and Chapter 92 of the Texas Property Code; Solid Waste Disposal Act TEX. HEALTH &
SAFETY CODE Ann. Ch. 361; Comprehensive Municipal Solid Waste Management, Resource
Recovery, and Conservation Act. TEX. HEALTH & SAFETY CODE Ann. Ch 363; County
Solid Waste Control Act. TEX. HEALTH & SAFETY CODE Ann. Ch 364; Texas Clean Air
Act, TEX. HEALTH AND SAFETY CODE Ann. Ch.; and Hazardous Communication Act,
TEXAS HEALTH AND SAFETY CODE Ann. Ch. 502; and such Governmental Requirements
as may be from time to time amended or superseded and all of their implementing regulations, as
may be amended.
1.20 Anti - Terrorism Laws. Any and all present and future judicial decisions, statutes,
rulings, rules, regulations, permits, certificates, orders and ordinances of any Governmental
Authority relating to terrorism or money laundering, including, without limiting the generality of
the foregoing, the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 (Pub. L. No. 107 -56); the Trading the Enemy
Act (50 U.S.C.A. App. 1, et seq.); the International Emergency Economic Powers Act (50 U. S.
C. A. §1701 -06); Executive Order No. 13224 on Terrorist Financing, effective September 24,
2001 (relating to "Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threatened to Commit, or Support Terrorism ") and the United States Treasury Department's
Office of Foreign Assets Control list of "Specifically Designated National and Blocked Persons"
(as published from time to time in various mediums, including, without limitation, at
http :www.treas. gov/ofac/tllsdn.pdf).
1.21 Prohibited Person. Any person or entity that (i) is specifically named or listed in, or
otherwise subject to, any Anti- Terrorism Laws, (ii) is owned or controlled by, or acting for or on
behalf of any person or entity specifically named or listed in, or otherwise subject to, any Anti -
Terrorism Laws, (iii) Beneficiary is prohibited from dealing with, or engaging in any transaction
with, pursuant to an Anti - Terrorism Laws, or (iv) is affiliated with any person or entity described
in clauses (i) - (iii) of this definition.
1.22 Environmental Laws and Regulations. Any federal, state, or local law, statute,
ordinance, or regulation, whether now or hereafter in effect, pertaining to health, industrial
hygiene, or the environmental conditions on, under, or about the Land or the Improvements,
including without limitation, the following, as now or hereafter amended, Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 ( "CERCLA "), 42 U.S.C.A.
§9601 et seq.; Resource, Conservation and Recovery Act ( "RCRA "), 24 U.S.C.A. §6901 et seq.
as amended by the Superfund Amendments and Reauthorization Act of 1986 ( "SARA "), Pub. L.
No. 99 -499, 100 Stat. 1613; the Toxic Substances Control Act, 15 U.S.C.A. §2601 et seq.;
Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.A. §1101 et seq.;
Clean Water Act ( "CWA "), 33 U.S.C.A. §1251 et seq., Clean Air Act ( "CAA "), 42 U.S.C.A.
§7401 et seq.; Federal Water Pollution Control Act ( "FWPCA "), 33 U.S.C.A. §1251 et seq.; );
Protection of Wetlands (Executive Order 11990, Mary 24, 1977); Coastal Management Act
(Sections 307 (c) and (d)); Safe Water Driving Act (42 U.S.C. 201, 300(0 and 21U.S.C. 349);
Protection of the Environment, Sole Source Aquifers (40 CFR 149); Endangered Species Act (50
CFR 402); Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq. as amended, particularly section
7(b) and (c)); Farmland Protection Policy Act (7 CFR 658); Federal Actions to Address
•Environmental Justice in Minority Populations and Low Income Populations (Executive Order
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12898, February 11, 1994); Parts of Environmental Review Procedures for Entities Assuming
HUD Environmental Responsibilities: Noise Abatement and Control (24 CFR 51B); Explosive
and Flammable Operations (24 CFR 51 C); Toxic Chemicals and Radioactive Materials (24 CFR
58.5(a); Airport Clear zones and Accident Potential Zones (24 CFR51 D); and any corresponding
state laws or ordinances including but not limited to the Texas Water Code ( "TWC ") §26.001 et
seq.; Texas Health & Safety Code ( "THSC ") §361.001 et seq.; Texas Solid Waste Disposal Act,
Tex. Rev. Civ. Stat. Ann. Art. 4477 -7; and regulations, rules, guidelines, or standards
promulgated pursuant to such laws, statute and regulations, as such statutes, regulations, rules,
guidelines, and standards are amended from time to time.
The environmental effects of each activity carried out with funds provided under the
NSP program must be assessed in accordance with the provisions of the Texas NSP NOFA,
National Environmental Policy Act of 1969 (NEPA) and the related activities listed in HUD's
implementing regulations at 24 CFR Parts 50, 51, 55 and 58. Each such activity must have an
environmental review completed and support documentation prepared complying with the
National Environmental Policy Act of 1969 and regulations at 24 CFR Parts 50, 51, 55 and Part
58. No funds may be requested or committed to an activity before the completion of the
environmental review process, including the requirements of 24 CFR §58.6, and written
clearance has been provided by the Department.
1.23 Permitted Exceptions. The exceptions from coverage found in Schedule B of the
commitment for mortgagee policy of title insurance issued by Stewart Title Guaranty Company,
GF #201201084, issued to Beneficiary herein on January 31, 2012.
ARTICLE II
Conveyance in Trust
2.01 Grant. Grantor, for and in consideration of the debt evidenced by the Note, has granted,
assigned, and conveyed, and by these presents does grant, assign and convey the Mortgaged
Property, in trust unto the Trustee, his successors and assigns, to have and to hold the Mortgaged
Property, unto Trustee, his successors and assigns, forever. To the extent permitted by law, the
Personal Property shall be deemed to be a part of and affixed to the Real Property. In the event
the estate of the Grantor in and to any of the Mortgaged Property is a leasehold estate, this
conveyance shall include and the lien and security interest and assignment created hereby shall
encumber and extend to all other, further or additional title, estates, interest or rights which may
exist now or at any time be acquired by Grantor in or to the property demised under the lease
creating such leasehold estate and including Grantor's rights, if any, to purchase the property
demised under such lease and, if fee simple title to any of such property shall ever become vested
in Grantor, such fee simple interest shall be encumbered by this Deed of Trust in the same
manner as if Grantor had fee simple title to such property as of the date of execution hereof.
Grantor hereby binds itself, its successors and assigns, to warrant and forever defend the
Mortgaged Property unto Trustee, his successors and assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof.
2.02 Security. This conveyance is made in trust, however, to secure and enforce the payment
of the Note, the obligations of Grantor (and /or the maker of the Note, if different from Grantor)
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under the other Loan Documents and payment of the Other Indebtedness as defined herein. If
Grantor shall perform the covenants and agreements herein contained, then, and only then, this
conveyance shall become null and void and shall be released at Grantor's expense; otherwise it
shall remain in full force and effect. No release of this conveyance, or of the lien or security
interest or assignment created and evidenced hereby, shall be valid unless executed by
Beneficiary.
2.03 Other Indebtedness. This Deed of Trust shall secure, in addition to the Note, all funds
hereafter advanced by Beneficiary to or for the benefit of Grantor as contemplated by any
provision herein or for any other purpose, and all Other Indebtedness, of whatever kind or
character, owing or which may hereafter become owing by Grantor to Beneficiary, whether such
indebtedness is evidenced by note, open account, overdraft, endorsement, surety agreement,
guaranty, or otherwise, it being contemplated that Grantor may hereafter become indebted to
Beneficiary in further sum or sums ( "Other Indebtedness "); provided, however, in no event shall
this Deed of Trust secure payment of any installment loan or any open -end line of credit
established under Chapter 3, Chapter 4 or Chapter 15 of the Texas Finance Code. This Deed of
Trust shall also secure all renewals and extensions of any of the Other Indebtedness secured
hereby. If the Note or Other Indebtedness shall be collected by legal proceedings, whether
through a probate or bankruptcy court or otherwise, or shall be placed in the hands of an attorney
for collection after maturity, whether matured by the expiration of time or by any option given to
the Beneficiary to mature same, Grantor agrees to pay Beneficiary's attorney's and collection fees
in the amount set forth in the Note, and such fees shall be a part of the indebtedness secured
hereby.
ARTICLE III
Grantor's Covenants and Representations
Grantor hereby covenants, warrants and represents to and agrees with Beneficiary and
with Trustee as follows:
3.01 Payment and Performance. Grantor (i) will pay all of the indebtedness secured hereby,
together with the interest thereon, when the same shall become due, in accordance with the terms
of the Note or any other instrument evidencing, securing, or pertaining to such indebtedness or
evidencing any renewal or extension of such indebtedness, or any part thereof, and (ii) will
punctually and properly perform all of Grantor's covenants, obligations, and liabilities under any
other security agreement, mortgage, deed of trust, collateral pledge agreement, contract,
assignment, loan agreement or any other instrument or agreement of any kind now or hereafter
existing as security for, executed in connection with, or related to the indebtedness or other
obligations secured hereby, or any part thereof.
3.02 Title and Right to Convey. Grantor (i) has in its own right good and indefeasible title in
fee simple, except as otherwise provided herein, to the Mortgaged Property which is free from
encumbrance superior to the indebtedness hereby secured, except as otherwise provided herein,
and (ii) has full right to make this conveyance.
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3.03 Insurance. Grantor shall require the builder and/or its general contractor to obtain and
maintain at said builder's and/or general contractor's sole expense: (1) all -risk insurance with
respect to all insurable Mortgaged Property, against loss or damage by fire, lightning, windstorm,
explosion, hail, tornado and such hazards as are presently included in so- called "all- risk"
coverage and against such other insurable hazards as Beneficiary may reasonably require; in an
amount not less than the unpaid balance of the Note, or if available and requested by Beneficiary
100% of the full replacement cost, including the cost of debris removal, without deduction for
depreciation and sufficient to prevent Grantor and Beneficiary from becoming a coinsurer, such
insurance to be in Builder's Risk (non- reporting) form during and with respect to any
construction on the Real Property; (2) if and to the extent any portion of the Project is in a
special flood hazard area, a flood insurance policy in an amount equal to the lesser of the
principal face amount of the Note or the maximum amount available; (3) commercial general
liability insurance, on an "occurrence" basis, against claims for bodily injury, death or property
damage occurring on or about the Project, to afford protection in a "single limit" of not less than
$1,000,000 in the event of bodily injury to, or death of, any number of persons or of damage to
property arising out of one occurrence, for the benefit of Grantor and Beneficiary as named
insured; and (4) such other insurance on the Mortgaged Property as may from time to time be
reasonably required by Beneficiary, if available, (including but not limited to rent loss or boiler
and machinery insurance) and against other insurable hazards or casualties which at the time are
commonly insured against in the case of premises similarly situated, due regard being given to
the height, type, construction, location, use and occupancy of buildings and improvements. All
insurance policies shall be issued and maintained by insurers, in amounts, with deductibles, and
in form reasonably satisfactory to Beneficiary, and shall require not less than fifteen (15) days'
prior written notice to Beneficiary of any cancellation or change of coverage. All insurance
policies maintained, or caused to be maintained, by Grantor with respect to the Mortgaged
Property, except for public liability insurance, shall provide that each such policy shall be
primary without right of contribution from any other insurance that may be carried by Grantor or
Beneficiary and that all of the provisions thereof, except the limits of liability, shall operate in
the same manner as if there were a separate policy covering each insured. If any insurer which
has issued a policy of hazard, liability or other insurance required pursuant to this Deed of Trust
becomes insolvent or the subject of any bankruptcy, receivership or similar proceeding or if in
Beneficiary's reasonable opinion the financial responsibility of such insurer is or becomes
inadequate, Grantor shall, in each instance promptly upon the request of Beneficiary and at
Grantor's expense, obtain and deliver to Beneficiary a like policy (or, if and to the extent
permitted by Beneficiary, a certificate of insurance) issued by another insurer, which insurer and
policy meet the requirements of this Deed of Trust. All such policies for loss of or damage to the
Mortgaged Property shall contain a standard mortgage clause (without contribution) naming
Beneficiary as mortgagee with loss proceeds payable to Beneficiary notwithstanding (i) any act,
failure to act or negligence of or violation of any warranty, declaration or condition contained in
any such policy by any named insured; (ii) the occupation or use of the Mortgaged Property for
purposes more hazardous than permitted by the terms of any such policy; (iii) any foreclosure or
other action by Beneficiary under this Deed of Trust; or (iv) any change in title to or ownership
of the Mortgaged Property or any portion thereof, such proceeds to be held for application as
provided in this Deed of Trust. A copy of each initial insurance policy (or a satisfactory
certificate of insurance) shall be delivered to Beneficiary at the time of execution of this Deed of
Trust, with premiums fully paid, and each renewal or substitute policy (or certificate) shall be
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delivered to Beneficiary, with premiums fully paid, at least ten (10) days before the termination
of the policy it renews or replaces. Grantor shall pay all premiums on policies required
hereunder as they become due and payable and promptly deliver to Beneficiary evidence
satisfactory to Beneficiary of the timely payment thereof. If any loss occurs at any time when
Grantor has failed to perform Grantor's covenants and agreements in this section, Beneficiary
shall nevertheless be entitled to the benefit of all insurance covering the loss and held by or for
Grantor, to the same extent as if it had been made payable to Beneficiary. Upon any foreclosure
hereof or transfer of title to the Mortgaged Property in extinguishment of the whole or any part
of the secured indebtedness, all of Grantor's right, title and interest in and to the insurance
policies referred to in this section (including unearned premiums) and all proceeds payable
thereunder shall thereupon vest in the purchaser at foreclosure or other such transferee, to the
extent permissible under such policies. Beneficiary shall have the right (but not the obligation)
to receive the proceeds of, all insurance for loss of or damage to the Mortgaged Property. If
Grantor fails to act reasonably and promptly in making proof of loss for, or settling or adjusting
any claim under, any such insurance, then Beneficiary shall have the right to make such proof
and settle and/or adjust, such claim; and the expenses incurred by Beneficiary in the adjustment
and collection of insurance proceeds shall be a part of the secured indebtedness and shall be due
and payable to Beneficiary on demand. Beneficiary shall not be, under any circumstances, liable
or responsible for failure to collect or exercise diligence in the collection of any of such proceeds
or for the obtaining, maintaining or adequacy of any insurance or for failure to see, to the proper
application of any amount paid over to Grantor. Any such proceeds received by Beneficiary
shall, after deduction therefrom of all reasonable expenses actually incurred by Beneficiary,
including attorneys' fees, at Beneficiary's option be (a) released to Grantor, or (b) applied (upon
compliance with such reasonable terms and conditions as may be required by Beneficiary) to
repair or restoration, either partly or entirely, of the Mortgaged Property so damaged, or (c)
applied to the payment of the secured indebtedness in such order and manner as Beneficiary, in
its sole discretion, may elect, whether or not due; provided, however, that Beneficiary shall make
such proceeds available to Grantor to pay for restoration or repair of the Mortgaged Property, so
damaged, if either (i) the amount of such proceeds is less than $25,000.00, or (ii) Grantor agrees
to reasonable, Construction Loan provisions (primarily regarding advances of those proceeds and
Beneficiary's "pricing" of its activities and expenses connected therewith) and amendments to the
Loan Documents executed in connection with the Note, as then proposed by Beneficiary. In any
event, the unpaid portion of the secured indebtedness shall remain in full force and effect and the
payment thereof shall not be excused. Grantor shall at all times comply with the requirements of
the insurance policies required hereunder and of the issuers of such policies and of any board of
fire underwriters or similar body as applicable to or affecting the Mortgaged Property.
3.04 Taxes and Other Impositions. Grantor will pay all taxes and assessments against or
affecting the Mortgaged Property as the same become due and payable, and, if Grantor fails to do
so, Beneficiary may pay them, together with all costs and penalties thereon, at Grantor's expense
or out of an individual reserve account created to fund any necessary repairs for Mortgaged
Property maintained by a first lien lender or bank trustee. Grantor, however, may in good faith,
in lieu of paying such taxes and assessments as they become due and payable, contest by
appropriate proceedings the validity thereof, and pending such contest Grantor shall not be
deemed in default hereunder because of such nonpayment, (i) if prior to delinquency of the
asserted tax or assessment, Grantor furnishes Beneficiary an indemnity bond, conditioned that
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such tax or assessment with interest, cost and penalties be paid as herein stipulated, secured by a
deposit in cash, or security or surety acceptable to Beneficiary, in the amount of the contested tax
or assessment, and a reasonable additional sum to pay all possible costs, interest and penalties
imposed or incurred in connection therewith, and (ii) if Grantor promptly pays any amount
adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest
thereon, before such judgment becomes final or before any writ or order is issued under which
the Mortgaged Property may be sold pursuant to such judgment, whichever first occurs.
Grantor shall provide to Beneficiary, on or before January 31 of each year during the term of the
Note secured hereby, written evidence that all ad valorem taxes and other assessments against
the Mortgaged Property have been paid in full.
3.05 Tax and Insurance Escrow. Intentionally omitted.
3.06 Assignment of Awards. If the lien secured by this Deed of Trust is first and superior,
Grantor will hereby assign all judgments, decrees and awards for injury or damage to the
Mortgaged Property, all awards or settlements pursuant to proceedings for condemnation thereof,
in their entirety to Beneficiary, who may apply the same to the indebtedness secured hereby in
such manner as it may elect. Grantor will further hereby authorize Beneficiary to execute and
deliver valid acquittances for, and to appeal from, any such award, judgment or decree in the
name of Grantor. In the event Beneficiary, as a result of any such judgment or decree of award,
believes that the payment or performance of any obligation secured by this Deed of Trust is
impaired, Grantor authorizes Beneficiary to declare, without notice, all of the indebtedness
secured hereby immediately due and payable.
3.07 Trustee's Title and Future Laws. If, while this trust is in force, the title of Trustee to,
or the interest of Beneficiary in, the Mortgaged Property or any part thereof, shall be endangered
or shall be attacked directly or indirectly, Grantor authorizes Beneficiary, at Grantor's expense, to
take all necessary and proper steps for the defense of such title or interest, including the
employment of counsel, the prosecution or defense of litigation, and the compromise or
discharge of claims made against such title or interest. If 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 Note, or any part thereof, Grantor
shall immediately pay all such taxes. In the alternative, Grantor may, in the event of the
enactment of such a law, and must, if it is unlawful for Grantor to pay such taxes, prepay the
Note and the Other Indebtedness in full within sixty (60) days after demand therefore by
Beneficiary. Grantor shall at any time and from time to time, furnish promptly, upon request, a
written statement or affidavit, in such form as may be required by Beneficiary, stating the unpaid
balance of the Note, and that there are no offsets or defenses against full payment of the Note
and performance of the terms hereof, or if there are any such offsets and defenses, specifying
them.
3.08 Repayment to Beneficiary. If, pursuant to any covenant contained herein or in any
other instrument executed in connection with the loan evidenced by the Note or in connection
with any Other Indebtedness secured hereby, Beneficiary shall expend any money chargeable to
Grantor or subject to reimbursement by Grantor under the terms of such covenant or agreement,
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1019
Grantor will repay the same to Beneficiary immediately at the place where the Note or Other
Indebtedness secured hereby is payable, together with interest thereon at the rate of interest
payable on account of the Note or such Other Indebtedness in the event of a default hereunder
from and after the date of Beneficiary's making such payment. The sum of each such payment
shall be added to the indebtedness hereby secured and thereafter shall form a part of the same,
and it shall be secured by this Deed of Trust and, by subrogation to all of the rights of the person
or entity receiving such payment.
3.09 Condition of Property. Upon completion of certain renovations, additions and
improvements to the Project, Grantor will keep every part of the Mortgaged Property in good
condition and presenting a good appearance, making promptly all repairs, renewals and
replacements necessary to such end, and doing promptly all else necessary to such end. Grantor
will discharge all claims for labor performed and material furnished therefore, and will not suffer
any lien of mechanics or materialman to attach to any part of the Mortgaged Property. Grantor
will guard every part of the Mortgaged Property from removal, destruction and damage, and will
not do or suffer to be done any act whereby the value of any part of the Mortgaged Property may
be lessened.
3.10 Successors. If the ownership, control or management of the Mortgaged Property or any
part thereof becomes vested in a person other than Grantor, or in the event of a change of
ownership of more than thirty percent (30 %) interest in any Grantor other than an individual,
Grantor agrees that Beneficiary may, without notice to Grantor, deal with such successor or
successors in interest with reference to this Deed of Trust and to the indebtedness hereby secured
in the same manner as with Grantor without in any way vitiating or discharging Grantor's
liability hereunder or upon the indebtedness hereby secured. No sale of the Mortgaged Property,
and no forbearance on the part of Beneficiary, and no extension of the time for the payment of
the indebtedness hereby secured, given by Beneficiary, shall operate to release, discharge,
modify, change or affect the original liability of Grantor or the liability of any guarantors or
sureties of Grantor, either in whole or in part.
3.11 Compliance with Governmental Requirements. Grantor covenants that the Mortgaged
Property and the improvements now or hereafter erected thereupon and the intended use thereof
by Grantor comply with all Governmental Requirements, including, without limitation, all
applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood
disaster laws, applicable health and Environmental Laws and Regulations and all other
ordinances, orders or requirements issued by any state, federal or municipal authorities having or
claiming jurisdiction over the Mortgaged Property.
Any rehabilitation of an abandoned or foreclosed upon home or residential property under NSP
shall be to the extent necessary to comply with applicable, laws, codes, and other requirements
related to housing safety, quality, and habitability, in order to sell, rent, or redevelop such homes
and properties. Rehabilitation may include improvements to increase the energy efficiency or
conservation of such homes and properties or provide a renewable energy source or sources for
such homes and properties. Housing and Economic Recovery Act Section 2301 (d)(2) of 2008.
The eligibility of renewable energy equipment on existing structures shall be determined by the
Beneficiary.
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Housing that is constructed, including new construction, or rehabilitation with NSP funds must
meet all applicable local codes, rehabilitation standards, ordinances, and zoning ordinances at the
time of completion. In the absence of a local code for new construction or rehabilitation, the
housing must meet the most current International Building Code. In addition, all NSP funded
housing must meet the Texas Minimum Construction Standards, as published in the Texas NSP
NOFA. NSP assisted new construction or rehabilitation will comply with HUD Program lead -
based paint requirements including lead screening in housing built before 1978 in accordance
with 24 CFR Part 92.355 and 24 CFR Part 35, subparts A, B, J, K, M, and R. Multifamily
housing assisted with NSP funds must meet the accessibility requirements at 24 CFR part 8,
which implements Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Section 794) and
covered multifamily dwellings, as defined at 24 CFR 100.201, and the design and construction
requirements at 24 CFR 100.205, which implement the Fair Housing Act (42 U.S.C. 3601- 3619).
Finally, NSP assisted housing must meet Energy Efficiency Standards in accordance with
Section 2306.187 of the Texas Government Code.
3.12 Money Laundering; Anti - Terrorism Laws.
(a) Grantor will furnish all of the funds for the purchase of the Mortgaged Property,
other than funds supplied by Beneficiary, and such funds will not be from sources that are
described in 18 U.S.C.A. §1956 and §1957 as funds or property derived from "specified
unlawful activity."
(b) None of Grantor, and constituent party nor Guarantor, if applicable, (nor any person
or entity owning an interest in Grantor, and constituent party or Guarantor, if applicable) (i) is a
Prohibited Person, or (ii) has violated any Anti- Terrorism Laws. No Prohibited Person holds or
owns any interest of any nature whatsoever in Grantor, any constituent party or Guarantor, if
applicable, as applicable, and none of the funds of Grantor, any constituent party or Guarantor, if
applicable, have been derived from any activity in violation of Anti - Terrorism Laws.
3.13 No Foreign Person. Neither Maker, nor Guarantor, if applicable, is a "foreign person"
within the meaning of §1445(0(3) of the Tax Code.
3.14 Payment of Labor and Materials. Grantor will promptly pay all bills for labor,
materials, and specifically fabricated materials incurred in connection with the Mortgaged
Property and never permit to exist in respect of the Mortgaged Property or any party thereof any
lien or security interest, even though inferior to the liens and security interest, hereof, for any
such bill, and in any event never permit to be created or exist in respect of the Mortgaged
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 interest hereof, except for the Permitted
Exceptions.
3.15 Sources and Uses of Funds. Without limiting the requirements of Section 3.12 hereof,
Grantor has taken, and shall continue to take until the Indebtedness is fully repaid and each and
all of the Obligations are satisfied in full, such measures as are required by any and all Anti -
Terrorism Laws to assure that the funds invested in Grantor and/or used to make payments on the
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Indebtedness or the Obligations are derived from (a) transactions and sources that do not violate
any Anti- Terrorism Laws, nor to the extent such funds originate outside the United States, do not
violate the laws of the jurisdiction from which they originated; and (b) permissible sources
under Anti- Terrorism Laws or, to the extent such funds originate outside the United States, under
the laws of the jurisdiction from which they originated. If Beneficiary reasonably believes that
Grantor, Guarantor, if applicable, any constituent party, or any affiliate of any such parties may
have breached any of the representations, warranties or covenants set forth in this Deed of Trust
or the other Loan Documents relating to any Anti - Terrorism Laws, any violations of the Byrd
Amendment referenced herein and Section 3.16 hereof, or the identity of any person or entity as
a Prohibited Person, or person influencing or attempting to influence the federal persons
referenced herein and Section 3.16 hereof, then, Beneficiary shall have the right, with or without
notice to Grantor, to (1) notify the appropriate governmental authority and to take such action as
such governmental authority or applicable Anti- Terrorism Laws or Byrd Amendment may direct;
(2) withhold Loan advances and segregate the assets constituting the Loan or any of Grantor's
funds or assets deposited with or otherwise controlled by Beneficiary pursuant to the Loan
Documents; (3) decline any payment (or deposit such payment with an appropriate United States
governmental authority or court) or decline any prepayment or consent request; and/or (4)
declare an Event of Default and immediately accelerate the Loan in connection therewith,
Grantor agrees that none of Grantor, Guarantor, if applicable, nor any constituent party will
assert any claim (and hereby waives, for itself and on behalf of its affiliates, successors, assigns,
representatives or agents for any form of damages as a result of any of the foregoing actions,
regardless of whether or not Beneficiary 's reasonable belief is ultimately demonstrated to be
accurate. Without limiting the requirements of Section 3.11 hereof, Grantor has taken, and shall
continue to take until the Indebtedness is fully repaid and each and all of the Obligations are
satisfied in full, such measures as are required by the Byrd amendment to the fiscal 1990
appropriations measures for the United States Department of the Interior (P. L. 101 -121) and any
guidelines and rules issued by any federal entity in connection therewith, if applicable, to assure
that no federal appropriated funds have been paid or will be paid, by or on behalf of Grantor, (i)
to any person influencing or attempting to influence, or (ii) for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with this award and loan
under the NSP.
3.16 Byrd Amendment: Prohibition for Influencing Federal Entities. Grantor covenants
that, to the best of Grantor's knowledge, Grantor has complied with all restrictions, certifications
and disclosure requirements contained in the Byrd amendment to the fiscal 1990 appropriations
measures for the United States Department of the Interior (P.L. 101 -121) and with any guidelines
and rules issued by any federal entity in connection therewith, if applicable.
ARTICLE IV
Events of Default
4.01 Events of Default. The following shall be events of default ( "Events of Default ")
hereunder:
(a) The sale of the Mortgaged Property, or any part thereof without, the prior written
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00002772 OR 1019 800
consent of Beneficiary, except the sale to an Eligible Household.
(b) Grantor's agreement to or the granting of an easement, restrictive covenant or other
encumbrance affecting the Mortgaged Property without the prior written consent of Beneficiary.
(c) If Grantor is a corporation, partnership, or limited liability company, more than thirty
percent (30 %) of ownership of Grantor (determined by interest held and not by number of the
shareholders, partners or members, as applicable) changes other than changes resulting from the
transfer of shares or interest among the present owners of Grantor, such determination to be
made by aggregating all ownership changes (other than those involving only the present owners
of Grantor) occurring subsequent to the date hereof.
(d) Grantor's failure to promptly pay when due the indebtedness secured hereby, or any
part thereof and such failure continues for a period of thirty (30) days after written notice of such
failure is given by Beneficiary to Grantor; or Grantor's failure to keep and perform any of the
covenants (other than the failure to pay the indebtedness) or agreements contained herein or in
any of the other Loan Documents within thirty (30) days after written notice of such failure is
given by Beneficiary to Grantor.
(e) Beneficiary's discovery that any statement, representation or warranty in the Note,
this Deed of Trust or the other Loan Documents, or in any other writing delivered to Beneficiary
in connection with the indebtedness secured hereby is false, misleading or erroneous in any
material respect.
(f) If Grantor, or any person liable for the indebtedness secured hereby, or any part
thereof, including any guarantor of or surety for the performance of any obligation hereunder, (i)
files a voluntary petition in bankruptcy; (ii) makes an assignment for the benefit of any creditor;
(iii) suffers an order for relief in bankruptcy to be entered against it; (iv) admits in writing its
inability to pay its debts generally as they become due; (v) applies for or consents to the
appointment of a receiver, trustee, or liquidator of Grantor or of any such guarantor or surety or
of all or a substantial part of its assets; (vi) takes advantage of or seeks any relief under any
bankruptcy, reorganization, debtor's relief or other insolvency law now or hereafter existing; (vii)
files an answer admitting the material allegations of, or consenting to, or defaulting in, a petition
against Grantor or any such guarantor or surety, in any bankruptcy, reorganization, or other
insolvency proceedings; or (viii) institutes or voluntarily is or becomes a party to any other
judicial proceedings intended to effect a discharge of the debts of Grantor or of any guarantor or
surety, in whole or in part, or to effect a postponement of the maturity or the collection thereof,
or to effect a suspension of any of the rights or powers of Beneficiary granted in the Note, this
Deed of Trust or in any other instrument evidencing or securing the indebtedness secured hereby.
(g) If an order, judgment or decree shall be entered by any court of competent
jurisdiction appointing a receiver, trustee or liquidator of Grantor or of any guarantor or surety or
of all or any substantial part of the assets of Grantor or of any such guarantor or surety; or if
Grantor or any guarantor or surety shall fail to pay any money judgment against it within thirty
(30) days after any such judgment becomes final and non - appealable.
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(h) If Grantor or any such guarantor or surety shall fail to have discharged any
attachments, sequestration, or similar proceedings against any assets of Grantor or of any
guarantor or surety which remains undischarged and unstayed for a period of thirty (30)
consecutive days; or if the Mortgaged Property is placed under control or in the custody of any
court, or if Grantor abandons any of the Mortgaged Property.
(i) Grantor's execution or delivery of any pledge, security agreement, mortgage or deed
of trust covering all or any portion of the Mortgaged Property ( "Subordinate Mortgage ") without
the prior written consent of Beneficiary (which consent may be withheld). In the event of consent
by Beneficiary to the foregoing or in the event the foregoing prohibition is determined by a court
of competent jurisdiction to be unenforceable by the provisions of any applicable law, Grantor
will not execute or deliver any Subordinate Mortgage unless there shall have been delivered to
Beneficiary not less than ten (10) days prior to the date thereof a copy thereof which shall
contain express covenants to the effect:
(i) That the Subordinate Mortgage is in all respects unconditionally subject and
subordinate to the lien, security interest and assignment evidenced by this Deed of Trust and
each term and provision hereof;
(ii) That if any action or proceeding shall be instituted to foreclose the
Subordinate Mortgage (regardless of whether the same is a judicial proceeding or pursuant to a
power of sale contained therein), no tenant of any portion of the Mortgaged Property will be
named as a party defendant, nor will any action be taken with respect to the Mortgaged Property
which would terminate any occupancy or tenancy of the Mortgaged Property without the prior
written consent of Beneficiary;
(iii) That all of the rents, royalties (including, but not limited to, royalties arising
out of the sale of oil, gas, and any other minerals produced from the Mortgaged Property, or any
properties pooled with the Mortgaged Property), issues, profits, revenue, income and other
benefits derived from the Mortgaged Property or arising from the use or enjoyment of any
portion thereof or from any lease or agreement pertaining thereto, if collected through a receiver
or by the holder of the Subordinate Mortgage, shall be applied first to the obligations secured by
this Deed of Trust, including principal and interest due and owing on or to become due and
owing on the Note and the Other Indebtedness secured hereby and then to the payment of
maintenance, operating charges, taxes, assessments, and disbursements incurred in connection
with the ownership, operating and maintenance of the Mortgaged Property; and
(iv) That if any action or proceeding shall be brought to foreclose the Subordinate
Mortgage, written notice of the commencement thereof will be given to Beneficiary
contemporaneously with the commencement of such action or proceeding.
(j) The liquidation, termination, dissolution, merger, consolidation or failure to maintain
good standing in the State of Texas (or in the case of an individual, the death or legal incapacity)
of the owner of the Mortgaged Property or any person obligated to pay any part of the secured
indebtedness.
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ak
000027 OR
Vol
1019
(k) The liens, mortgages or security interests of Beneficiary in any of the Mortgaged
Property become unenforceable in whole or in part, or cease to be of the priority herein required,
or the validity or enforceability thereof, in whole or in part, shall be challenged or denied by
Grantor or any person obligated to pay any part of the secured indebtedness.
(1) If the ownership of any of the Mortgaged Property is forfeited or otherwise
transferred to any governmental agency under a federal or state law for which forfeiture of
property is a potential penalty or remedy.
(m) A default or event of default occurs under any other documents executed as security
for or in connection with the Note or under any other documents evidencing a loan or
indebtedness owed by Grantor to Beneficiary or any other agency of the State of Texas, and the
same is not remedied within the applicable period for curing such default (if any).
(n) Any portion of the surface of the Mortgaged Property is disturbed or otherwise
used by any person in connection with the exploration for or production of any oil, gas or other
minerals without the prior written consent of Beneficiary.
(o) If Grantor, without Beneficiary' s consent, (i) seeks or acquiesces in a zoning
reclassification, zoning variance or special exception to zoning of all or any portion of the
Mortgaged Property, (ii) grants or consents to any easement, dedication, plat, or restriction (or
allows any easement to become enforceable by prescription), (iii) seeks or acquiesces to any
imposition of any addition of Governmental Requirements or any amendment or modification
thereof, .covering all or any portion of the Mortgaged Property.
4.02 Remedies. Upon the occurrence of any Event of Default, Beneficiary, at its sole
option, may declare the Note and all Other Indebtedness secured hereby immediately due and
payable and /or may pursue any rights and remedies it may have hereunder or at law or in equity.
ARTICLE V
Nonjudicial Foreclosure and Sale
5.01 Trustee's Sale. Upon an Event of Default, Grantor authorizes and empowers the
Trustee, at the request of Beneficiary, at any time during the continuance of any default, to sell
all or any portion of the Mortgaged Property, at public auction, to the highest bidder, for cash or
for credit against the indebtedness secured hereby if Beneficiary is the highest bidder, at the
county court house of the county in Texas in which such Mortgaged Property or any part thereof
is situated, as herein described, in the area designated by the commissioners court for such
purpose pursuant to a recordation of such designation in the real property records of such county,
or if no such recorded designation by the commissioners court has been made, in the area at the
county court house designated in the notice of proposed sale posted, filed and served in
accordance with the further provisions of this paragraph, between the hours of 10:00 o'clock
A.M. and 4:00 o'clock P.M. on the first Tuesday of any month. The Trustee shall give notice of
the time, place and terms of said sale, and of the property to be sold, as follows:
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0
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444427 OR
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1019 803
Notice of such proposed sale shall be given by posting written notice thereof at least
twenty -one (21) days preceding the date of the sale at the court house door, and by filing a copy
of the Notice in the office of the county clerk of the county in which the sale is to be made, and if
the property to be sold is situated in more than one county, one notice shall be posted at the court
house door and filed with the county clerk of each county in which the property to be sold is
situated. In addition, Beneficiary shall, at least twenty -one (21) days preceding the date of sale,
serve written notice of the proposed sale by certified mail on each debtor obligated to pay the
debt secured hereby according to the records of beneficiary. Service of such notice shall be
completed upon deposit of the notice, enclosed in a postpaid wrapper, properly addressed to such
debtor at the most recent address as shown by the records of Beneficiary, 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 such service was completed shall
be prima facie evidence of the fact of service.
Any notice that is required or permitted to be given to Grantor may be addressed to
Grantor at Grantor's mailing address. Any notice that is to be given by certified mail to any other
debtor may, if no address for such other debtor is shown by the records of Beneficiary, be
addressed to such other debtor at Grantor's mailing address. Notwithstanding the foregoing
provisions of this paragraph, notice of such sale given in accordance with the requirements of the
applicable law of the State of Texas in effect at the time of such sale shall constitute sufficient
notice of such sale. Grantor Hereby authorizes and empowers the Trustee to sell all or any
portion of the Mortgaged Property, together or in lots or parcels, as the Trustee may deem
expedient, and to execute and deliver to the purchaser or purchasers of such property, good and
sufficient deeds of conveyance of fee simple title with covenants of general warranty made on
behalf of the Grantor. In no event shall the Trustee be required to exhibit, present or display at
any such sale, any of the personalty described herein to be sold at such sale. The Trustee making
such sale shall receive the proceeds thereof and shall apply the same as follows: (i) first, he shall
pay the reasonable expense of executing this trust including a reasonable Trustee's fee or
commission; (ii) second, he shall pay, so far as may be possible, the indebtedness secured
hereby, discharging first that portion of the indebtedness arising under the covenants or
agreements herein contained and not evidenced by the Note; (iii) third, he shall pay the residue,
if any, to the person or persons legally entitled thereto. Payment of the purchase price to the
Trustee shall satisfy the obligation of the purchaser at such sale therefore, and such purchaser
shall not be bound to look after the application thereof. The sale or sales by the Trustee of less
than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and
the Trustee is specifically empowered to make successive sale or sales under such power until
the whole of the Mortgaged Property shall be sold; and if the proceeds of such sale or sales of
less than the whole of such Mortgaged Property shall be less than the aggregate of the
indebtedness secured hereby and the expense of executing this trust, this Deed of Trust and the
lien, security interest and assignment hereof shall remain in full force and effect as to the unsold
portion of the Mortgaged Property just as though no sale or sales had been made; provided,
however, that Grantor shall never have any right to require the sale or sales of less than the
whole of the Mortgaged Property, but Beneficiary shall have the right, at its sole election, to
request the Trustee to sell less than the whole of the Mortgaged Property. If default is made
hereunder, the holder of the indebtedness or any part thereof on which the payment is delinquent
shall have the option to proceed with foreclosure in satisfaction of such item either through
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judicial proceedings or by directing the Trustee to proceed as if under a full foreclosure,
conducting the sale as herein provided without declaring the entire indebtedness secured hereby
due, and if sale is made because of default of an installment, or a part of an installment, such sale
may be made subject to the unmatured part of the Note and Other Indebtedness secured by this
Deed of Trust; and it is agreed that such sale, if so made, shall not in any manner affect the
unmatured part of the indebtedness secured by this Deed of Trust, but as to such unmatured part,
this Deed of Trust shall remain in full force and effect 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 secured hereby.
5.02 Successor Trustee. If the Trustee shall die or become disqualified from acting in the
execution of this trust, or shall fail or refuse to execute the same when requested by Beneficiary
to do so; or if, for any reason, Beneficiary shall prefer to appoint a substitute Trustee to act
instead of the Trustee named herein, Beneficiary shall have full power to appoint, by written
instrument, a substitute Trustee, and, if necessary, several substitute Trustees in succession, who
shall succeed to all the estate, rights, powers, and duties of the original Trustee named herein.
Such appointment may be executed by any authorized agent of Beneficiary; and if Beneficiary is
a corporation and such appointment is executed in its behalf by any officer of such corporation,
such appointment shall be conclusively presumed to be executed with authority and shall be
valid and sufficient without proof of any action by the board of directors or any superior officer
of the corporation. In the event of an assignment of the interests of Beneficiary under this Deed
of Trust, all rights and remedies granted to Beneficiary in this Deed of Trust shall inure to the
benefit of, and may be exercised by, the assignee.
5.03 Acts and Statements of Trustee. Grantor hereby agrees, in its behalf and in behalf of its
heirs, executors, administrators, successors, personal representatives and assigns, that any and all
statements of fact or other recitals made in any deed of conveyance given by the Trustee, with
respect to the identity of Beneficiary, or with respect to the occurrence or existence of any
default, or with respect to the acceleration of the maturity of any indebtedness secured hereby, or
with respect to the request to sell, the notice of sale, the giving of notice to all debtors legally
entitled thereto, the time, place, terms, and manner of sale, and receipt, distribution, and
application of the money realized therefrom, or with respect to the due and proper appointment
of a substitute Trustee, and, without being limited by the foregoing, with respect to any other act
or thing having been duly done by the Beneficiary or by the Trustee hereunder, shall be taken by
all courts of law and equity as prima facie evidence that the statements or recitals state facts and
are without further question to be so accepted, and Grantor hereby ratifies and confirms every act
that Trustee or any substitute Trustee hereunder may lawfully do in the premises by virtue
hereof.
5.04 Disaffirmance by Purchaser. The purchaser at any trustee's or foreclosure sale
hereunder may disaffirm any easement granted, or rental, lease or other contract made, in
violation of any provision of this Deed of Trust, and may take immediate possession of the
Mortgaged Property free from, and despite the terms of, such grant of easement and rental or
lease contract, subject to the Protecting Tenants at Foreclosure Act of 2009, Title VII of the
Helping Families Save Their Homes Act of 2009 (Public Law 111 -22, §702) and other
governmental requirements.
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0000277 71 OR 1019 805
5.05 Beneficiary May Bid. Beneficiary shall have the right to become the purchaser at all
sales to enforce this trust, being the highest bidder, and to have the amount of which such
property is sold credited on the indebtedness secured hereby which is then owing.
ARTICLE VI
Hazardous Materials
6.01 Definitions. For the purpose of this Deed of Trust, Grantor, Beneficiary and Trustee
agree that, unless the context otherwise specifies or requires, the following terms shall have the
meaning herein specified:
(a) Hazardous Materials: Any substance the presence of which on the Mortgaged
Property is regulated by any Governmental Requirements and Environmental Laws and
Regulations, including but not limited to: (i) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), as amended from time
to time, and regulations promulgated thereunder; (ii) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. Section 9601 et seq.) ( "CERCLA" or "SuperFund "), as amended from time to time, and
regulations promulgated thereunder; (iii) asbestos; (iv) polychlorinated biphenyls; (v) any
petroleum -based products; and (vi) underground storage tanks, whether empty, filled or partially
filled with any substance.
(b) Hazardous Materials Contamination: The contamination (whether presently existing
or hereafter occurring) of the improvements, facilities, soil, groundwater, air or other elements
on, over or under the Mortgaged Property by Hazardous Materials, or the contamination of the
improvements, facilities, soil, ground- water, air or other elements on, over or under any other
property as a result of Hazardous Materials at any time (whether before or after the date of this
Deed of Trust) emanating from the Mortgaged Property.
6.02 Representations and Warranties. Grantor hereby represents and warrants that to the
best of Grantor's knowledge:
(a) No Hazardous Materials are located on the Mortgaged Property or have been
released into the environment, or deposited, discharged, placed or disposed of at, on, under or
near the Mortgaged Property, or transported to or from the Mortgaged Property. No portion of
the Mortgaged Property is being used or, to the best of Grantor's knowledge, has been used at
any previous time, for the disposal, storage, treatment, processing, manufacturing or other
handling of Hazardous Materials nor is any part of the Mortgaged Property affected by any
Hazardous Materials Contamination.
(b) No Hazardous Materials are located on property adjoining the Mortgaged
Property. No property adjoining the Mortgaged Property has ever been used at any previous
time for the disposal, storage, treatment, processing, manufacturing or other handling of
Hazardous Materials. No property adjoining the Mortgaged Property is affected by Hazardous
Materials Contamination.
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00O027A" OR 1019 806
(c) No asbestos or asbestos containing materials have been installed, used,
incorporated into, or disposed of on the Mortgaged Property.
(d) No polychlorinated biphenyls or materials containing polychlorinated biphenyls
are located on or in the Mortgaged Property, in the form of electrical transformers, fluorescent
light fixtures with ballasts, cooling oils, or any other device or form.
(e) No underground storage tanks are located on the Mortgaged Property or, to the
best of Grantor's knowledge, were previously located on the Mortgaged Property and
subsequently removed or filled.
(f) No investigation, administrative order, consent order, agreement, litigation or
settlement with respect to Hazardous Materials or Hazardous Materials Contamination is
proposed, threatened, anticipated or in existence with respect to the Mortgaged Property. The
Mortgaged Property and its existing and prior uses comply and at all times have complied with
any applicable Governmental Requirements relating to environmental matters or Hazardous
Materials. There is no condition on the Mortgaged Property which is in violation of any
applicable Governmental Requirements relating to Hazardous Materials, and Grantor has
received no communication from or on behalf of any Governmental Authority that any such
condition exists. The Mortgaged Property is not currently on, and to the best of Grantor's
knowledge, has never been on, any federal, state or local "Superfund" or "Superlien" list.
(g) Except for studies, audits, and reports pertaining to the Mortgaged Property which
have been made available to Beneficiary, there have been no environmental investigations,
studies, audits, tests, reviews or other analyses conducted by or which are in the possession of or
available to Grantor in relation to the Mortgaged Property.
(h) All representations and warranties contained in this Section 6.02 shall survive the
consummation of the transactions contemplated by this Deed of Trust.
6.03 Covenants. Grantor agrees: (a) that Grantor shall not receive, store, dispose or release
any Hazardous Materials on or to the Mortgaged Property or transport any Hazardous Materials
to or from the Mortgaged Property or permit the existence of any Hazardous Materials
Contamination; (b) to give written notice to Beneficiary immediately upon Grantor's acquiring
knowledge of the presence of any Hazardous Materials on the Mortgaged Property or of the
transport of any Hazardous Materials to or from the Mortgaged Property or of the existence of
any Hazardous Materials Contamination, with a full description thereof; (c) promptly, at
Grantor's sole cost and expense, to comply with any Governmental Requirements requiring the
removal, treatment or disposal of such Hazardous Materials or Hazardous Materials
Contamination and provide Beneficiary with satisfactory evidence of such compliance; (d) to
provide Beneficiary, within thirty (30) days after demand by Beneficiary, with financial
assurance evidencing to Beneficiary's satisfaction that the necessary funds are available to pay
the cost of removing, treating and disposing of such Hazardous Materials or Hazardous Materials
Contamination and discharging any assessments which may be established on the Mortgaged
Property as a result thereof; and (e) to insure that all leases, licenses, and agreements of any kind
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17 00027 OR
V 1 Ps
1019 807
now or hereafter executed which permit any party to occupy, possess, or use in any way the
Mortgaged Property or any part thereof, whether written or oral, include an express prohibition
on the disposal or discharge of any Hazardous Materials at or affecting the Mortgaged Property,
and a provision that failure to comply with such prohibition shall expressly constitute a default
under any such agreement.
6.04 Liens. Grantor shall not cause or suffer any liens to be recorded against the Mortgaged
Property as a consequence of, or in any way related to, the presence, remediation or disposal of
Hazardous Materials in or about the Mortgaged Property, including any so- called state, federal or
local "Superfund" lien relating to such matters.
6.05 Site Assessments. Beneficiary (by its officers, employees and agents) at any time and
from time to time, either prior to or after the occurrence of an Event of Default, may contract for
the services of persons (the "Site Reviewers ") to perform environmental site assessments ( "Site
Assessments ") on the Mortgaged Property for the purpose of determining whether there exists on
the Mortgaged Property any environmental condition which could result in any liability, cost or
expense to the owner, occupier or operator of such Mortgaged Property arising under any
Governmental Requirements relating to Hazardous Materials. The Site Assessments may be
performed at any time or times, upon reasonable notice, and under reasonable conditions
established by Grantor which do not impede the performance of the Site Assessment. The Site
Reviewers are hereby authorized to enter upon the Mortgaged Property for such purposes. The
Site Reviewers are further authorized to perform both above and below - ground testing for
environmental damage or the presence of Hazardous Materials or Hazardous Materials
Contamination on the Mortgaged Property and such other tests on the Mortgaged Property as
may be necessary to conduct the Site Assessments in the reasonable opinion of the Site
Reviewers. Grantor will supply to the Site Reviewers such historical and operational
information regarding the Mortgaged Property as may be reasonably requested by the Site
Reviewers to facilitate the Site Assessments and will make available for meetings with the Site
Reviewers appropriate personnel having knowledge of such matters. On request, Beneficiary
shall make the results of such Site Assessments fully available to Grantor, which (prior to an
Event of Default) may at its election participate under reasonable procedures in the direction of
such Site Assessments and the description of tasks of the Site Reviewers. The cost of
performing such Site Assessments shall be paid by Grantor upon demand of Beneficiary and any
such obligations shall be indebtedness secured by this Deed of Trust.
6.06 INDEMNIFICATION GRANTOR SHALL AT ALL TIMES RETAIN ANY AND
ALL LIABILITIES ARISING FROM THE PRESENCE, HANDLING, TREATMENT,
STORAGE, TRANSPORTATION, REMOVAL OR DISPOSAL OF HAZARDOUS
MATERIALS ON THE MORTGAGED PROPERTY. REGARDLESS OF WHETHER
ANY SITE ASSESSMENTS ARE CONDUCTED HEREUNDER, AND REGARDLESS
OF WHETHER ANY EVENT OF DEFAULT (AS DEFINED IN SECTION 4.01 OF THIS
DEED OF TRUST) SHALL HAVE OCCURRED AND BE CONTINUING OR ANY
REMEDIES IN RESPECT TO THE MORTGAGED PROPERTY ARE EXERCISED BY
BENEFICIARY, GRANTOR SHALL TO THE EXTENT AUTHORIZED BY LAW AND
SUBJECT TO FUNDS LEGALLY AVAILABLE FOR THE PURPOSE, DEFEND,
INDEMNIFY AND HOLD HARMLESS BENEFICIARY AND TRUSTEE (AND ANY
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SUCCESSOR TO THE TRUSTEE) FROM AND AGAINST ANY AND ALL
LIABILITIES (INCLUDING STRICT LIABILITY), SUITS, ACTIONS, CLAIMS,
DEMANDS, PENALTIES, DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST
PROFITS, CONSEQUENTIAL DAMAGES, INTEREST, PENALTIES, FINES AND
MONETARY SANCTIONS), LOSSES, COSTS AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND REMEDIAL
COSTS) (THE FOREGOING ARE HEREINAFTER COLLECTIVELY REFERRED TO
AS "LIABILITIES ") WHICH MAY NOW OR IN THE FUTURE (WHETHER BEFORE
OR AFTER THE CULMINATION OF THE TRANSACTIONS CONTEMPLATED BY
THIS DEED OF TRUST) BE INCURRED OR SUFFERED BY BENEFICIARY OR
TRUSTEE (OR ANY SUCCESSOR TO THE TRUSTEE) BY REASON OF, RESULTING
FROM, IN CONNECTION WITH, OR ARISING IN ANY MANNER WHATSOEVER
OUT OF THE BREACH OF ANY WARRANTY OR COVENANT OR THE
INACCURACY OF ANY REPRESENTATION OF GRANTOR CONTAINED OR
REFERRED TO IN THIS ARTICLE VI OR IN ANY LOAN AGREEMENT MADE AND
ENTERED INTO BETWEEN GRANTOR AND BENEFICIARY RELATING TO THE
MORTGAGED PROPERTY OR WHICH MAY BE ASSERTED AS A DIRECT OR
INDIRECT RESULT OF THE PRESENCE ON OR UNDER, OR ESCAPE, SEEPAGE,
LEAKAGE, SPILLAGE, DISCHARGE, EMISSION OR RELEASE FROM THE
MORTGAGED PROPERTY OF ANY HAZARDOUS MATERIALS OR ANY
HAZARDOUS MATERIALS CONTAMINATION OR ARISE OUT OF OR RESULT
FROM THE ENVIRONMENTAL CONDITION OF THE MORTGAGED PROPERTY
OR THE APPLICABILITY OF ANY GOVERNMENTAL REQUIREMENTS
RELATING TO HAZARDOUS MATERIALS.
SUCH LIABILITIES SHALL INCLUDE, WITHOUT LIMITATION: (I) INJURY
OR DEATH TO ANY PERSON; (II) DAMAGE TO OR LOSS OF THE USE OF ANY
PROPERTY; (III) THE COST OF ANY DEMOLITION AND REBUILDING OF ANY
IMPROVEMENTS NOW OR HEREAFTER SITUATED ON THE MORTGAGED
PROPERTY OR ADJACENT PROPERTY, AND THE COST OF ANY REPAIR OR
REMEDIATION OF ANY SUCH IMPROVEMENTS; (IV) THE COST OF ANY
ACTIVITY REQUIRED BY ANY GOVERNMENTAL AUTHORITY; (V) ANY
LAWSUIT BROUGHT, GOOD FAITH SETTLEMENT REACHED, OR
GOVERNMENTAL ORDER RELATING TO THE PRESENCE, DISPOSAL, RELEASE
OR THREATENED RELEASE OF ANY HAZARDOUS MATERIALS, ON, FROM OR
UNDER THE MORTGAGED PROPERTY; AND (VI) THE IMPOSITION OF ANY
LIENS ON THE MORTGAGED PROPERTY ARISING FROM THE ACTIVITY OF
GRANTOR OR GRANTOR'S PREDECESSORS IN INTEREST ON THE
MORTGAGED PROPERTY OR FROM THE EXISTENCE OF HAZARDOUS
MATERIALS UPON THE MORTGAGED PROPERTY OR HAZARDOUS MATERIALS
CONTAMINATION. THE COVENANTS, WARRANTIES, AGREEMENTS AND
INDEMNIFICATIONS CONTAINED IN THIS ARTICLE VI SHALL SURVIVE THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS DEED OF
TRUST.
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00002771 OR 1019 809
6.07 Right of Entry. Beneficiary shall have the right but not the obligation, without in any
way limiting Beneficiary's other rights and remedies under this Deed of Trust, to enter onto the
Mortgaged Property or to take such other actions as it deems necessary or advisable to clean up,
remove, resolve or minimize the impact of, or otherwise deal with, any Hazardous Materials or
Hazardous Materials Contamination on or under the Mortgaged Property following receipt of
any notice from any person or entity asserting the existence of any Hazardous Materials or
Hazardous Materials Contamination pertaining to the Mortgaged Property, or any part thereof
which, if true, could result in an order, notice, suit, imposition of a lien on the Mortgaged
Property, or other action, and/or which, in Beneficiary's sole opinion, could jeopardize
Beneficiary's security upon this Deed of Trust. All costs and expenses paid or incurred by
Beneficiary in the exercise of any such rights shall be indebtedness secured by this Deed of Trust
and shall be payable by Grantor upon demand.
ARTICLE VII
Additional Provisions
7.01 Rights of Beneficiary. If any of the indebtedness hereby secured shall become due and
payable, Trustee or Beneficiary shall have the right and power to proceed by a suit or suits in
equity or at law, whether for the specific performance of any covenant or agreement herein
contained or in aid of the execution of any power herein granted, or for any foreclosure
hereunder or for the sale of the Mortgaged Property under the judgment or decree of any court or
courts of competent jurisdiction or for the appointment of a receiver pending any foreclosure
hereunder or the sale of the Mortgaged Property under the order of a court or courts of competent
jurisdiction or under executory or other legal process, or for the enforcement of any other
appropriate legal or equitable remedy. Grantor agrees, to the full extent that it lawfully may, that
in case one or more of the Events of Default hereunder shall have occurred and shall not have
been remedied, then, and in every such case, the Beneficiary shall have the right and power to
enter into and upon and take possession of all or any part of the Mortgaged Property in the
possession of the Grantor, its successors or assigns, or its or their agents or servants, and may
exclude Grantor, its successors or assigns, and all persons claiming under Grantor, and it's or
their agents or servants, wholly or partly therefrom; and, holding the same, the Beneficiary may
use, administer, manage, operate and control the Mortgaged Property and conduct the business
thereof to the same extent as Grantor, its successors or assigns, might at the time do and may
exercise all rights and powers of Grantor, in the name, place and stead of Grantor, or otherwise
as the Beneficiary shall deem best; and in the exercise of any of the foregoing rights and powers
Beneficiary shall not be liable to Grantor for any loss or damage thereby sustained.
7.02 The Lien. Any part of the Mortgaged Property may be released by the Beneficiary
without affecting the lien, security interest and assignment hereof against the remainder. The
lien, security interest and other rights granted hereby shall not affect or be affected by any other
security taken for the same indebtedness or any part thereof. The taking of additional security, or
the extension or renewal of the indebtedness secured hereby or any part thereof, shall not release
or impair the lien, security interest and other rights granted hereby, or affect the liability of any
endorser, guarantor or surety, or improve the right of any permitted junior lienholder; and this
Deed of Trust, as well as any instrument given to secure any renewal or extension of the
indebtedness secured hereby, or any part thereof, shall be and remain a first and prior lien, except
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•
OR 1019 810
as otherwise provided herein on all of the Mortgaged Property not expressly released until the
indebtedness secured hereby is completely paid.
7.03 Waiver. To the extent that Grantor may lawfully do so, Grantor agrees that Grantor shall
not assert and hereby expressly waives, any right under any statute or rule of law pertaining to
the marshalling of assets, the exemption of homestead, the administration of estates of decedents,
or other matter whatever to defeat, reduce or affect the right of Beneficiary, under the terms of
this Deed of Trust, to sell the Mortgaged Property for the collection of the indebtedness secured
hereby (without any prior or different resort for collection) or the right of Beneficiary, under the
terms of this Deed of Trust, to the payment of such indebtedness out of the proceeds of sale of
the Mortgaged Property in preference to every other person and claimant whatever (only
reasonable expenses of such sale being first deducted). No provision of this Deed of Trust or any
other document securing or pertaining to the Note shall be construed to impose on Beneficiary
any duty to sell the Mortgaged Property or any other collateral for the Note for collection of the
indebtedness secured by this Deed of Trust or to pursue any other remedy in Beneficiary's power
whatsoever. Grantor expressly waives and relinquishes any right or remedy which it may have
or be able to assert by reason of the provisions of Chapter 34 of the Business and Commerce
Code of the State of Texas, pertaining to the rights and remedies of sureties. To the full extent
permitted by applicable law, Grantor waives any right to require Beneficiary to use diligence in
collection of any indebtedness secured by this Deed of Trust, to proceed against or exhaust any
security or collateral for the loan evidenced by the Note, to mitigate Beneficiary's damages in
connection with the loan evidenced by the Note, or to pursue any other remedy in Beneficiary's
power whatsoever.
7.04 Subrogation. To the extent that proceeds of the Note are used to pay an outstanding lien,
charge or encumbrance against or affecting the Mortgaged Property, such proceeds have been
advanced by Beneficiary at Grantor's request, and Beneficiary shall be subrogated to all rights,
interests and liens owned or held by any owner or holder of such outstanding liens, charges and
encumbrances, irrespective of whether such liens, charges or encumbrances are released of
record.
7.05 Limitation on Interest. All agreements between Grantor and Beneficiary, whether now
existing or hereafter arising and whether written or oral, are expressly limited so that in no
contingency or event whatsoever shall the amount paid, or agreed to be paid, to Beneficiary for
the use, forbearance, or detention of the money to be loaned pursuant to the Note or otherwise, or
for the performance or payment of any covenant or obligation contained herein, exceed the
maximum amount permissible under applicable law. If from any circumstance whatsoever
fulfillment of any provision hereof at the time performance of such provision shall be due shall
involve transcending the limit of validity prescribed by law, then, ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity, and if from any such circumstance
Beneficiary shall ever receive as interest under such Note or this Deed of Trust or otherwise an
amount that would exceed the highest lawful rate, such amount that would be excessive interest
shall be applied to the reduction of the principal amount owing under the Note or on account of
the Other Indebtedness secured hereby and not to the payment of interest or if such excessive
interest exceeds the unpaid balance of principal of the Note and such Other Indebtedness, such
excess shall be refunded to Grantor, or to the maker of the Note or other evidence of
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00002772 OR 1019 8 1 1
indebtedness if other than Grantor. All sums paid or agreed to be paid to Beneficiary for the use,
forbearance, or detention of the indebtedness secured hereby shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full term of such
indebtedness until payment in full so that the actual rate of interest on account of such
indebtedness is uniform throughout the term thereof. The terms and provisions of this Section
shall control and supersede every other provision of all agreements between Grantor, the maker
of the Note or other evidence of indebtedness if other than Grantor, and Beneficiary.
7.06 Waiver and Invalidity. No waiver of any default on the part of Grantor or breach of any
of the provisions of this Deed of Trust or of any other instrument executed in connection with the
indebtedness secured hereby shall be considered a waiver of any other or subsequent default or
breach, and no delay or omission in exercising or enforcing the rights and powers herein granted
shall be construed as a waiver of such rights and powers, and likewise no exercise or
enforcement of any rights or powers hereunder shall be held to exhaust such rights and powers,
and every such right and power may be exercised from time to time. If any provision of this
Deed of Trust is held to be illegal, invalid, or unenforceable under present or future laws
effective while this Deed of Trust is in effect, the legality, validity, and enforceability of the
remaining provisions of this Deed of Trust shall not be affected thereby, and in lieu of each such
illegal, invalid, or unenforceable provision there shall be added automatically as a part of this
Deed of Trust a provision as similar in terms to such illegal, invalid, or unenforceable provision
as may be possible and be legal, valid, and enforceable. If any of the liens, security interest or
assignment of rents created by this Deed of Trust shall be invalid or unenforceable, the
unsecured portion of the indebtedness secured hereby shall be completely paid prior to the
payment of the remaining and secured portion of such indebtedness and all payments made on
account of such indebtedness shall be considered to have been paid on and applied first to the
complete payment of the unsecured portion of such indebtedness.
7.07 Tenancy at Will. In the event of a trustee's sale hereunder and if at the time of such sale
the Grantor occupies the portion of the Mortgaged Property so sold, or any part thereof, Grantor
shall immediately become the tenant of the purchaser at such sale, which tenancy shall be a
tenancy from day to day, terminable at the will of either tenant or landlord, at a reasonable rental
per day based upon the value of the portion of the Mortgaged Property so occupied, such rental
to be due and payable daily to the purchaser. An action of forcible detainer shall lie if the tenant
holds over after a demand in writing for possession of such Mortgaged Property and premises;
and this agreement and any trustee's deed shall constitute a lease and agreement under which the
tenant's possession, each and all, arose and continued.
7.08 Security Agreement. With respect to any portion of the Mortgaged Property which
constitutes personal property or fixtures governed by the Uniform Commercial Code of the State
of Texas (hereinafter called the "Code "), this Deed of Trust shall constitute a security agreement
between Grantor as the Debtor and Beneficiary as the Secured Party, and Grantor hereby grants
to Beneficiary a security interest in such portion of the Mortgaged Property. Cumulative of all
other rights of Beneficiary hereunder, Beneficiary shall have all of the rights conferred upon
secured parties by the Code. Grantor will execute and deliver to Beneficiary all financing
statements that may from time to time be required by Beneficiary to establish and maintain the
validity and priority of the security interest of Beneficiary, or any modification thereof, and all
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00002772 OR 1019 812
costs and expenses of any searches reasonably required by Beneficiary. Beneficiary may exercise
any or all of the remedies of a secured party available to it under the Code with respect to such
property, and it is expressly agreed that if upon default Beneficiary should proceed to dispose of
such property in accordance with the provisions of the Code, then (10) days' notice by
Beneficiary to Grantor shall be deemed to be reasonable notice under any provision of the Code
requiring such notice; provided, however, that Beneficiary may at its option dispose of such
property in accordance with Beneficiary's rights and remedies with respect to the real property
pursuant to the provisions of this Deed of Trust, in lieu of proceeding under the Code.
7.09 Changes in Grantor's Identity. Grantor shall give advance notice in writing to
Beneficiary of any proposed change in Grantor's name, address, identity, or corporate structure
and will execute and deliver to Beneficiary, prior to or concurrently with the occurrence of any
such change, all additional financing statements that Beneficiary may require to establish and
maintain the validity and priority of Beneficiary's security interest with respect to any Mortgaged
Property described or referred to herein.
7.10 Fixtures. Some of the items of Mortgaged Property described herein are goods that are
or are to become fixtures related to the real estate described herein, and it is intended that as to
those goods, this Deed of Trust shall be effective as a financing statement filed as a fixture filing
from the date of its filing for record in the real estate records of the county in which the
Mortgaged Property is situated. Information concerning the security interest created by this
instrument may be obtained from Beneficiary, as secured party, at the address of Beneficiary
stated above. The mailing address of the Grantor, as debtor, is as stated in Section 1.02.
7.11 NSP Subrecipient Activity Report. Until all NSP requirements are met, the NSP
Subrecipient Activity Report shall be submitted monthly. Thereafter, the NSP Subrecipient
Activity Report shall be submitted quarterly. The Beneficiary shall determine whether all NSP
obligation requirements have been met and may amend this rule from time to time or as needed.
7.12 Applicable Law. All references in this Deed of Trust to the "law" or to "lawful rate"
shall be construed to be the laws of the State of Texas and the United States, whichever is
applicable. "Applicable law" as used herein means (a) the law pertaining to maximum rates of
interest that is now in effect, and (b) any law that comes into effect at any time in the future
allowing a higher maximum rate than the law now in effect.
7.13 Binding Effect. The covenants herein contained shall bind, and the benefits and
advantages shall inure to, the respective heirs, executors, administrators, personal
representatives, successors and assigns of the parties hereto, and to any substitute Trustee.
Whenever used, the singular number shall include the plural and the singular, and the use of any
gender shall be applicable to all genders. The duties, covenants, conditions, obligations and
warranties of Grantor in this Deed of Trust shall be joint and several obligations of Grantor and
each Grantor if more than one, and Grantor's heirs, personal representatives, successors and
assigns. Each party who executes this Deed of Trust (other than Beneficiary), and each
subsequent owner of the Mortgaged Property, or any part thereof, covenants and agrees that it
will perform, or cause to be performed, each condition, term, provision, and covenant of this
Deed of Trust.
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00002772 OR 1019 813
7.14 Right to Inspect. Beneficiary shall have at all times a right of access to and upon the
Mortgaged Property for purposes of inspection and, at Beneficiary's option, for purposes of
performing any obligations required of Grantor hereunder.
7.15 Notices. All notices, requests, consents, demands and other communications required or
which any part desires to give hereunder shall be in writing. Notice will be deemed effective
upon deposit in the United States mail, postage prepaid, by certified mail, return receipt
requested, addressed to the party to whom directed at the addresses specified in Article I of this
Deed of Trust (unless changed by notice in writing given by the particular party whose address is
to be changed). Notice given in any other manner shall be deemed effective only if and when
received by the party to be notified. Provided, however, service of a notice required by Texas
Property Code Section 51.002, as amended, shall be considered complete when the requirements
of that statute are met. Notwithstanding the foregoing, no notice of change of address shall be
effective except upon receipt. This section shall not be construed in any way to affect or impair
any waiver of notice or demand provided in the Note or any other instrument securing the Note
or to require giving of notice or demand to or upon any person in any situation or for any reason.
7.16 Assignment of Rents. All of the rents, royalties (including, but not limited to, royalties
arising out of the sale of oil, gas, and any other minerals produced from the Mortgaged Property,
or any properties pooled with the Mortgaged Property), issues, profits, revenue, income and
other benefits derived from the Mortgaged Property or arising from the use or enjoyment of any
portion thereof or from any lease or agreement pertaining thereto (hereinafter called the "Rents
and Profits ") are hereby assigned, transferred, conveyed and set over to Beneficiary as security
for (i) payment of the principal and interest and all other sums payable on the Note, (ii) payment
of any Other Indebtedness secured hereby and (iii) the performance and discharge of each and
every obligation, covenant and agreement of Grantor set forth herein or in the Note or in any
other instrument securing payment of the Note. Prior to the occurrence of any Event of Default
hereunder, Grantor shall collect and receive all Rents and Profits, and Grantor shall apply the
funds so collected first to the payment of the principal and interest and all other sums payable on
the Note and in payment of all Other Indebtedness secured hereby and thereafter, so long as no
Event of Default hereunder has occurred, the balance shall be distributed to the account of
Grantor. Grantor will not (i) execute an assignment of any of its right, title or interest in the
Rents and Profits, or (ii) except in the ordinary course of business, including but not limited to
where the lessee is in default thereunder, terminate or consent to the cancellation or surrender of
any lease of the Mortgaged Property or any part thereof, now or hereafter existing having an
unexpired term of one year or more except that any lease may be canceled, provided that
promptly after the cancellation or surrender thereof a new lease is entered into with a new lessee
having a credit standing, in the judgment of Beneficiary, at least equivalent to that of the lessee
whose lease was canceled, on substantially the same terms as the terminated or canceled lease, or
(iii) except in the ordinary course of business, modify any lease of the Mortgaged Property or
any part thereof so as to shorten the unexpired term thereof or so as to decrease any amount of
the rent payable thereunder, or (iv) accept prepayments of any installments of rent to become due
under any of such leases in excess of one month, except prepayments in the nature of security for
the performance of the lessee thereunder, or (v) in any other manner impair the value of the
Mortgaged Property or the security of this Deed of Trust. Upon an Event of Default in the
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000027. OR 1019 814
payment of the Note or any Other Indebtedness secured hereby, Beneficiary may, at its option,
and without notice to Grantor receive and collect all Rents and Profits. Effective upon such
Event of Default and for the foregoing purpose Grantor has irrevocably made, constituted and
appointed, and by these presents does irrevocably make, constitute and appoint Beneficiary as its
true and lawful attorney for it and in its name, place and stead to receive and collect the Rents
and Profits, compromise and settle all claims therefore, and execute, deliver, cancel, modify and
to release any and all leases and lessees, giving and granting unto Beneficiary full power and
authority to do and perform all and every act and thing whatsoever, requisite and necessary to be
done in connection therewith, as fully, to all intents and purposes, as Grantor might or could do if
personally present and also giving and granting unto Beneficiary full power to substitute one or
more attorney or attorneys under it, concerning such matters. Default shall be presumed upon
Beneficiary's filing with the County Clerk of the County in which the Mortgaged Property is
located of an affidavit to tie effect that an Event of Default has occurred hereunder and all
persons dealing with Beneficiary may rely upon such affidavit. Grantor agrees that all persons
dealing with Beneficiary and its substitutes that this power of attorney shall remain effective for
so long as there is an Event of Default under the terms hereof Grantor agrees to indemnify and
hold Beneficiary and its substitutes harmless from any and all liability arising out of
Beneficiary's or its substitutes' acts pursuant to the authority herein granted to the extent allowed
by law. This power of attorney is one coupled with an interest.
7.17 Construction Mortgage. This Deed of Trust constitutes a "Construction Mortgage" as
defined in the Texas Business and Commerce Code and secures an obligation incurred for the
construction of improvements on the Real Property described herein.
7.18 Loan Agreement. It is understood and agreed that all or a portion of the funds to be
advanced under the Note are to be used in the construction or Rehabilitation of the Project in
accordance with the NSP Construction Loan Agreement dated on even date herewith made by
and between Grantor (Borrower in Loan Agreement or the Maker of the Note if different from
Grantor) and Beneficiary (Lender in Loan Agreement), which said Loan Agreement is
incorporated herein by reference to the same extent and effect as if fully set forth herein and
made a part hereof. This Deed of Trust secures the payment of all sums and the performance of
all covenants required by Grantor (or the Maker of the Note if different from Grantor) under the
Loan Agreement, and upon the failure of Grantor (or the maker of the Note if different from
Grantor) to keep and perform all the covenants, conditions and agreements of the Loan
Agreement, the indebtedness secured hereby shall, at the option of Beneficiary, become due and
payable, anything herein contained to the contrary notwithstanding.
7.19 Attorney in Fact. Grantor has irrevocably made, constituted and appointed, and by these
presents does irrevocably make, constitute and appoint Beneficiary its true and lawful attorney,
for it and in its name, place and stead in the Event of Default to contract for the sale of and
convey all or any part of the Mortgaged Property, giving and granting unto Beneficiary full
power and authority to do and perform all and every act and thing whatsoever requisite and
necessary to be done in connection therewith, as fully, to all intents and purposes, as Grantor
might or could do if personally present and also giving and granting unto Beneficiary full power
to substitute one or more attorneys under it, in or concerning such matters. Grantor agrees that
this power of attorney shall be effective upon an Event of Default in the payment of the Note or
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0000274 OR
Vol
1019
under any instrument executed as security therefore, and Grantor agrees and represents to those
dealing with Beneficiary, and its substitute or substitutes, that this power of attorney shall be
effective upon Beneficiary's filing with the County Clerk of the county in which the Mortgaged
Property is situated, an affidavit to the effect that an Event of Default has occurred under the
terms of the Note or any instruments executed as security therefore and such persons may rely
upon Beneficiary's representation with regard to the continuation of such default, Grantor agrees
with all persons dealing with Beneficiary, its substitute and substitutes that this power of attorney
shall remain effective for so long as there is an Event of Default under the terms of the Note or
any instruments executed as security therefore, and further agrees with such persons that they
may rely upon the representations of Beneficiary, its substitute and substitutes, with regard to the
continuation of such default. TO THE EXTENT AUTHORIZED BY LAW, AND SUBJECT
TO THE LIMITATIONS CONTAINED HEREIN, AND FUNDS LEGALLY AVAILABLE
FOR THE PURPOSE, GRANTOR AGREES TO INDEMNIFY AND HOLD BENEFICIARY
AND ITS SUBSTITUTES HARMLESS FROM ANY AND ALL LIABILITY ARISING OUT
OF BENEFICIARY'S OR ITS SUBSTITUTES' ACTS PURSUANT TO THE AUTHORITY
HEREIN GRANTED TO THE EXTENT ALLOWED BY LAW. THIS POWER OF
ATTORNEY IS ONE COUPLED WITH AN INTEREST.
7.20 Covenants Running with the Land. All of the covenants, conditions, warranties,
representations and other obligations made or undertaken by Grantor 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 Mortgaged Property until the lien of this Deed
of Trust has been fully released by Beneficiary.
7.21 Foreclosure. If the Mortgaged Property becomes the subject of a foreclosure proceeding
that results in the sale of part or all of the Mortgaged Property, all sums in excess of those paid to
superior lien holders shall be paid to Beneficiary to apply to the outstanding balance under the
Note. If there are insufficient funds to pay off the Note secured herein, Beneficiary may in its
own discretion waive the payment of any or all of the outstanding loan balance under the Note.
7.22 Non - Recourse. Notwithstanding anything herein to the contrary, Beneficiary shall have
no recourse against Grantor, nor against any guarantor, if any, for payment and performance of
all of the obligations, covenants and agreements of Grantor under the Note and the documents
securing same including, but not limited to this Deed of Trust (said documents hereafter
collectively called "Security Documents "), except to the full extent of all of the Mortgaged
Property which constitutes security for the Note. If default occurs in the timely and proper
payment of any portion of such indebtedness or in the timely performance of any of such
obligations, agreement or covenants, any judicial proceedings brought by Beneficiary against
Grantor or any guarantor shall be limited to the protection and preservation of the Mortgaged
Property, the preservation, enforcement and foreclosure of the liens, mortgages, assignments,
rights and security interests now or at any time hereafter securing the payment of the Note, and
enforcement and collection of obligations, covenants and indebtedness for which Grantor and
any guarantors remain liable as provided in this paragraph. If there is a foreclosure of any such
liens, mortgages, assignments, rights, and security interests securing the payment of the Note, by
power of sale or otherwise, no judgment for any deficiency upon such indebtedness shall be
sought or obtained by Beneficiary against Grantor. Notwithstanding the foregoing provisions of
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815
•
Bk Val Po
0000277V OR 1019 816
this paragraph or any other agreement, Beneficiary shall have full recourse against Grantor and
all guarantors, if any, for: (a) fraud or misrepresentation by Grantor or any guarantor in
connection with the transactions herein contemplated; (b) failure to pay taxes, assessments,
charges for labor or materials or other charges that can create liens on any portion of the
Mortgaged Property; (c) the misapplication of (i) proceeds of insurance covering any portion of
the Mortgaged Property, or (ii) proceeds of the sale or condemnation of any portion of the
Mortgaged Property, or (iii) rentals received by or on behalf of Grantor subsequent to the date on
which Beneficiary gives written notice of the posting of foreclosure notices, (d) failure to prevent
waste to the Mortgaged Property unless Beneficiary is compensated therefore by insurance
proceeds collected by Grantor; (e) the return to Beneficiary of all unearned advance rentals and
security deposits paid by tenants of the. Mortgaged Property and not refunded to or forfeited by
such tenants, (f) the return of, or reimbursement for, all personalty taken from the Mortgaged
Property by or on behalf of Grantor, (g) all court costs and for all attorneys' fees provided for in
any instrument governing, securing or pertaining to the payment of the Note; and (h) failure to
comply with any indemnification provision or covenants pertaining to environmental matters
contained in the Security Documents.
7.23 Release. Subject to the following terms, Beneficiary will release the entire Mortgaged
Property or individual lots on the Mortgaged Property from all liens securing the Note upon
closing of a permanent mortgage loan (purchase money) with an Eligible Household utilizing the
Financing Mechanisms available under the NSP, when applicable:
(a) Grantor must not be in default under this Deed of Trust, Loan Agreement or the
Note at the time of the request for lot release.
(b) The release must be on a form approved by Beneficiary that is prepared and
recorded at Grantor's expense.
(c) The purchase price of Mortgaged Property to the Eligible Household shall be the
lesser of one the following amounts: (1) the cost to acquire and construct or rehabilitate the
Project to a decent, safe, and habitable condition, or (2) one hundred percent (100 %) of the
appraised value after rehabilitation or construction. In no instance shall the purchase price of the
Mortgaged Property to the Eligible Household exceed either of the amounts set out in this
Section 7.23 (c.)
(d) The constructed or rehabilitated single family dwelling must be made available
for sale to Eligible Households within twelve (12) months from the date of acquisition under the
NOFA or from completion of Rehabilitation under the NOFA -R.
(e) The lot to be released must be improved with a single - family dwelling completed
in a good and workmanlike manner in accordance with plans and specifications approved by
Beneficiary and must, at a minimum, meet the Texas Minimum Construction Standards (TMCS)
and the NSP Rehabilitation Standards as noted herein, and must incorporate construction
requirements imposed for single family affordable housing as cited as Texas Government Code,
Section 2306.514, as may be amended from time to time.
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(f) The lot release price upon closing of the permanent mortgage made to an Eligible
Household will be $110,188.25, the full unpaid principal balance of the Note. Upon receipt of
payment of the release price from the Grantor Beneficiary shall immediately credit said amount
against the principal balance of the Note.
As provided herein, Beneficiary may forgive some or all of the lot release price and said amount
shall be immediately credited against the principal balance of the Note as stated in Sections 7.23
(g) and (h) of this Deed of Trust.
(g) If Grantor utilizes Financing Mechanisms under NSP and the Eligible Household
qualifies, then in lieu of payment of the full lot release price, the Beneficiary may forgive up to
$30,000.00 in a deferred forgivable down payment assistance loan from Beneficiary to an
Eligible Household whose income exceeds fifty percent (50 %) but is less than one hundred
twenty (120 %) of the area median income as defined by NSP for the payment of down payment
assistance, reasonable closing costs, principal reductions and gap financing in conjunction with a
permanent mortgage loan for the purchase of the single family dwelling from a private mortgage
lender to said Eligible Household. The full amount of any partial release price for the Mortgaged
Property shall be immediately credited against the principal balance of the Note upon receipt of
the fully, executed subordinate, deferred forgivable down payment assistance loan in a form
approved by Beneficiary, in addition to payment of the remaining balance of the lot release price.
(h) If Grantor utilizes Financing Mechanisms under NSP, and the Eligible Household
qualifies, then in lieu of payment of the lot release price, Grantor may forgive up to an amount
equal to the full unpaid principal balance of the Note for the Mortgaged Property to a thirty (30)
year, zero percent (0 %) interest, fully amortizing permanent mortgage loan from Beneficiary to
an Eligible Household whose income does not exceed fifty percent (50 %) of area median income
as defined by NSP for the purchase of the single - family dwelling. For an Eligible Household
whose income does not exceed fifty percent (50 %) of the area median income as defined by
NSP, Grantor, in lieu of payment, may also convert up to $30,000.00 of the unpaid principal
balance of the Note per individual lot to a deferred forgivable down payment assistance loan
from Beneficiary to said Eligible Household for the payment of principal reductions and gap
financing in conjunction with and in addition to the permanent mortgage loan from Beneficiary
to said Eligible. The full amount of any partial release price for the Mortgaged Property shall be
immediately credited against principal balance of the Note upon receipt of fully, executed
permanent mortgage loan documents and, if applicable, homebuyer assistance loan documents,
in a form approved by Beneficiary.
(i) Grantor must provide Beneficiary ten (10) days notice of any requested release.
At the time a release is requested, the party requesting the release must furnish to the holder of
the Note a calculation of area by field notes and a plat or survey, indicating the area to be
released and its relationship to the portion of the Property not to be released and shall provide
evidence that the lot is being sold to an Eligible Household by submitting an income certification
in a form prescribed by Beneficiary. All expenses incident to the granting of release will be
borne by the party requesting the release, including but not limited to the cost of the survey,
Lender's attorney's fees, and recording costs.
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7.24 Low and Moderate Income Requirement. It is the intent of Beneficiary and Grantor
that 100% of the funds made available under NSP are to be used to meet the low and moderate
income requirement established in the Housing and Economic Recovery Act Section 2301
(f)(3)(A)(i) and (ii). The low and moderate income requirement includes individuals and
families whose incomes do not exceed 120% of area median income as defined therein.
Such individuals and families will be considered an Eligible Household, as determined by
Beneficiary as stated herein or in accordance with any corresponding provision of federal law or
provisions of succeeding laws as may be amended from time to time. The determination of
whether a purchaser is an Eligible Household shall be made by Beneficiary, in its sole absolute
discretion.
7.25 NSP Contract. Each term and provision of this Deed of Trust is expressly subject to the
terms and condition of the Neighborhood Stabilization Program Contract Number 77099999126
executed between Office of Rural Affairs established within the Department of Agriculture, a
public and official agency of the State of Texas, and Grantor herein, dated to be effective
September 1, 2009 in the original amount of $1,050,000.00, as assigned and transferred to
Beneficiary by Assignment of Contract on August 30, 2011, and as amended from time to time
( "NSP Contract ") which is incorporated herein by reference. The lot or lots securing this loan
must be improved with a single family dwelling completed in good and workmanlike manner
and sold to an Eligible Household who will maintain the affordability period for rental or
homeownership in accordance with the NSP. The terms of the NSP contract shall govern over
any conflicting provision hereof.
7.26 Due on Transfer - Nonresidential Property. BENEFICIARY MAY DECLARE THE
DEBT SECURED BY THIS DEED OF TRUST IMMEDIATELY DUE AND PAYABLE
AND INVOKE ANY REMEDIES PROVIDED IN THIS DEED OF TRUST FOR
DEFAULT IF GRANTOR TRANSFERS ANY OF THE MORTGAGED PROPERTY TO
A PERSON WHO IS NOT A PERMITTED TRANSFEREE WITHOUT
BENEFICIARY'S CONSENT. "PERMITTED TRANSFEREE" FOR A NATURAL
PERSON MEANS THAT PERSON'S SPOUSE OR CHILDREN, ANY TRUST FOR
THAT PERSON'S BENEFIT OR THE BENEFIT OF THE PERSON'S SPOUSE OR
CHILDREN, OR ANY CORPORATION, PARTNERSHIP, OR LIMITED LIABILITY
COMPANY IN WHICH THE DIRECT AND BENEFICIAL OWNER OF ALL THE
EQUITY INTEREST IS A NATURAL PERSON OR THAT PERSON'S SPOUSE OR
CHILDREN OR ANY TRUST FOR THE BENEFIT OF THEM; AND THE HEIRS,
BENEFICIARIES, EXECUTORS, ADMINISTRATORS, OR PERSONAL
REPRESENTATIVES OF A NATURAL PERSON ON THE DEATH OF THAT PERSON
OR ON THE INCOMPETENCY OR DISABILITY OF THAT PERSON FOR PURPOSES
OF THE PROTECTION AND MANAGEMENT OF THAT PERSON'S ASSETS; AND
FOR A PERSON THAT IS NOT A NATURAL PERSON, ANY OTHER PERSON
CONTROLLING, CONTROLLED BY, OR UNDER COMMON CONTROL WITH
THAT PERSON.
7.27 Renewal and Extension of Existing Deed -of -Trust Lien. The Note is for the principal
sum of $110,188.25 and is executed on the same date herein. A prior promissory note was issued
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for $106,797.65 for the Real Property. The Note added an additional $3,390.60 to the prior
promissory note, for a total of $110,188.25 on the Real Property. Therefore, the Note renews and
extends the balance of One Hundred Six Thousand Seven Hundred Ninety Seven and 65/100
Dollars ($106,797.65) that Grantor owes on the prior note which is dated June 6, 2011, executed
by City of Huntsville, a political subdivision of the State of Texas, and payable to the order of
Texas Department of Housing and Community Affairs, a public and official agency of the State
of Texas. The prior note is more fully described in and secured by a prior deed of trust on the
Property, which is dated June 6, 2011, and recorded under Document No.00003718, Volume
983, Page 85, June 7, 2011, in the Official Public Records of Walker County, Texas. Grantor
acknowledges that the lien securing the prior note is valid, that it subsists against the Property,
and that by this Deed of Trust, it is renewed and extended in full force to secure payment of the
Note.
7.28 Entire Agreement; Amendment. THIS DEED OF TRUST AND THE OTHER LOAN
DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES
HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO.
THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO. The provisions
hereof and the other Loan Documents may be amended or waived only by an instrument in
writing signed by Grantor and Beneficiary.
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1
0
EXECUTED this / day of April, 2012.
THE STATE OF TE
COUNTY OF
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00002772 OR 1019 820
GRANTOR:
CITY OF HUNTSVILLE, a political subdivision
of the State of Texas
By:
Name: Bill Baine
Title: City Manager
This instrument was acknowledged before me on this /1 day of 1, , 2012,
by Bill Baine, City Manager of City of Huntsville, a political subdivision of t; - State of Texas,
acting on behalf of said political subdivision and in the official capacity herein stated.
\���NNIIUIII/ / / w/
(Seal)
ZHORIyTO
PREPARED BY:
Texas Department of Housing
and Community Affairs
Legal Services Division
P.O. Box 13941
Austin, Texas 78711 -3941
(512) 475 -2574
AFTER RECORDING RETURN TO:
Walker County Title Company
1109 University Ave.
Huntsville, Texas 77340
Attn: Judy Thorton
GF # 201201084
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